Heard in the Supreme Court October 14, 2013
Roy Cooper, Attorney General, by Robert C. Montgomery, Special Deputy Attorney General, and Derrick C. Mertz, Assistant Attorney General, for the State.
Marilyn G. Ozer and William F.W. Massengale for defendant-appellant.
HUDSON, Justice. Chief Justice MARTIN joins in this dissenting opinion.
Appeal as of right pursuant to N.C.G.S. § 7A-27(a) from a judgment imposing a sentence of death entered by Judge Beverly T. Beal on 18 November 2011 in Superior Court, Gaston County, upon a jury verdict finding defendant guilty of first-degree murder. On 25 April 2013, while defendant's direct appeal was still pending, defendant filed a motion for appropriate relief with this Court pursuant to N.C.G.S.
Defendant Danny Robbie Hembree, Jr. was indicted on 14 December 2009 for the first-degree murders of Heather Marie Catterton, Randi Dean Saldana, and Deborah Denise Ratchford. The trial court denied the State's motion to join the Catterton and Saldana trials and defendant was first tried capitally for the Catterton murder, which is the matter at issue in this appeal. On 8 November 2011, the jury found defendant guilty of first-degree murder. After a capital sentencing proceeding, the same jury found two aggravating circumstances, both statutory. The first was that defendant had previously been convicted of violent felonies; the second was that Catterton's death occurred during a " course of conduct" involving violence to others. Despite finding fourteen mitigating circumstances, the jury recommended, and the trial court entered, a sentence of death. Defendant now appeals his conviction and sentence to this Court as a matter of right.
Defendant contends that the cumulative effect of several errors in the proceedings below denied him a fair trial. We agree. " Although none of the trial court's errors, when considered in isolation, were necessarily sufficiently prejudicial to require a new trial, the cumulative effect of the errors created sufficient prejudice to deny defendant a fair trial." State v. Canady, 355 N.C. 242, 246, 559 S.E.2d 762, 764 (2002). Accordingly, we vacate the conviction and sentence and remand for a new trial.
Defendant spent the latter half of 17 October 2009 drinking alcohol and buying and smoking crack cocaine with Heather Catterton, Catterton's friend Sommer Heffner, and Heffner's boyfriend Michael Moore. At the time of her death, Heather Catterton was seventeen years old. Defendant was dating Heather's older sister, Nicole. Both Heather and Nicole had sex with men in order to obtain drugs.
In the late afternoon, defendant picked up Heffner and Moore outside a shop on Route 321 in Gastonia, North Carolina. After stopping at defendant's mother's house for approximately half an hour, the three continued to the house where Catterton lived with her father.
Eventually, the four left Catterton's house and drove in defendant's car to a store on Route 321. For the first of several times that evening, a dealer walked up to defendant's car and sold defendant crack cocaine through the opened car window. After the initial purchase was made, the group went to the trailer home of one of defendant's friends, where they all smoked defendant's cocaine. Over the next several hours, the four went from place to place purchasing and using more crack cocaine, drinking alcohol, having sex, and searching for money for more drugs and alcohol.
Eventually, with defendant driving, the others left Moore, who was still heavily intoxicated, at a convenience store. The remaining three in the car--defendant, Catterton,
and Heffner--then drove to a local neighborhood where defendant purchased yet more crack cocaine. Defendant dropped Heffner off at Moore's mother's house at approximately 1:00 a.m. on 18 October. Catterton stayed with defendant and was not seen alive again.
Catterton's body was found in a culvert in York County, South Carolina several days later on 29 October 2009, dressed in a sweatshirt and socks, but otherwise nude. The remainder of her clothing and a crack pipe were recovered nearby two days later.
Approximately two weeks later, on 15 November 2009, a second body was discovered on a dirt road in York County. Two women were riding horses near King's Mountain National Military Park when one of them saw a " burn spot" on the side of the road. As they investigated, one woman saw what she first believed was a mannequin, but soon found was a body. Her friend called the police, who later confirmed via DNA testing that this was the burned body of Randi Dean Saldana.
Late on 4 December 2009, defendant was arrested in Gaston County for a series of armed robberies. Over the next several hours on 5 December, defendant was interviewed by officers from both North and South Carolina. At least twice, defendant was given Miranda warnings and then stated that he was willing to answer questions from police. He confirmed repeatedly that he was not under the influence of drugs or alcohol. While at the police station, defendant was given food, soda, and coffee, and was allowed to rest. These interviews were recorded electronically, transcribed, and later presented to the jury in redacted form. Defendant also signed a written confession, reviewed that confession with police, and directed police where to make changes in the text. During these interviews, defendant confessed to several crimes, including the murders of Heather Catterton, Randi Saldana, and Deborah Ratchford.
Among other accounts, defendant told police that he killed Heather Catterton in his mother's laundry room at approximately 4:30 in the morning on 18 October 2009. According to these statements, after Heffner was gone, defendant told Catterton that " her lighter was out," but that he had more lighters in a cabinet in the basement, and if " she'd come down there . . . we'd smoke some dope." He then followed her, used " some kind of cord" to strangle her from behind, and pulled her to the floor. Next he covered her mouth and nose with his hands " for like 10 or 15 minutes," then put a plastic Walmart bag over her face, and finally stood on her throat with his bare feet. Defendant told police that when these actions still failed to kill her, he punched her in the chest and her heart stopped beating.
Defendant stated that he then stored Catterton's body in a closet for several hours, until he disposed of it at approximately 6:00 p.m. that day. At that point, he wrapped the body in a blanket, drove it across the border to South Carolina, and dumped it near a creek along Robinson Yelton Road. Defendant said he later disposed of the blanket by throwing it in a dumpster and discarded the clothing by throwing it away near a creek. Defendant gave conflicting statements regarding his motive for the killing. At one point, he told police that he killed Heather Catterton for virtually no reason, but because he " [j]ust wanted to." At other times, he told them he killed her to help her escape a hard life that involved prostitution, beatings, and drugs.
During these same interviews, defendant also confessed to four other murders, two of which he said occurred in Florida. As for the other two homicides, defendant told police that he killed Randi Saldana several weeks after killing Catterton. In addition, defendant confessed to the August 1992 murder of Deborah Ratchford. Evidence about the Ratchford murder was not admitted at the Catterton trial.
Regarding the two women defendant claimed he killed in Florida, defendant refused throughout the interviews to provide details, but eventually did provide some information. Defendant told police that both women were white prostitutes, that he did not recall their names, and that their bodies
were buried on Merritt Island in Brevard County. However, his statements about these murders conflicted regarding other important details. At one point, he told police that he committed the murders in 1992; at another, he said he killed them in 2009.
Four days later, on 9 December 2009, defendant recanted his confessions to the Ratchford murder and the two Florida murders. At trial, defendant also denied intentionally killing Catterton and Saldana.
Defendant was indicted on 14 December 2009 for the murders of Heather Catterton, Randi Saldana, and Deborah Ratchford; he entered pleas of not guilty. The State moved to join the Catterton and Saldana murders for trial, but the trial court denied this motion. Thus unable to try the two cases together, the State elected to try the Catterton murder first and sought to present evidence of the Saldana and Ratchford murders under Rule of Evidence 404(b).
The trial court conducted two hearings, one that started on 6 July 2011, and a second that started on 8 August 2011, to determine what evidence the State could present under this Rule. The July hearing focused on the forecast Saldana evidence. The trial court found several similarities between the Saldana and Catterton murders, including that both decedents were white females who engaged in prostitution, that both had died in defendant's mother's house within a " matter of weeks," that the physical evidence in both cases was consistent to show that both bodies were temporarily stored in defendant's mother's basement closet, and that defendant had disposed of both bodies in York County, South Carolina. Based on these factual similarities, the trial court concluded that much of the Saldana evidence could be presented under Rule 404(b) to show that defendant acted with a common plan, scheme, or design. The trial court also rejected defendant's objection based on Rule of Evidence 403, and concluded that the probative value of the Saldana evidence would not be outweighed by the risks of unfair prejudice, delay, or confusion.
The August hearing focused on the evidence the State sought to present regarding the Ratchford murder. The trial court considered the State's forecast and found several important differences between the two cases, including the remoteness in time between the occurrences, the differences in the causes of death, the dissimilar alleged motives, and the role of a third party in Ratchford's death but not Catterton's. Based on these differences, the trial court concluded that evidence of the Ratchford murder was inadmissible under both Rule 404(b) and Rule 403.
Opening arguments at the trial for Heather Catterton's murder were delivered on 18 October 2011, and on the same day, the State began to present its case-in-chief. The State's first witnesses testified about the discovery of Catterton's body and the events leading up to her death, and the State focused throughout the trial on the substance of defendant's confessions. By the second day of trial, however, over defendant's continuing objection, the State began also to focus heavily on evidence regarding the death of Randi Saldana. For example, on the second day of trial, a witness described finding the burnt body of Randi Saldana and testifying that it " felt like human flesh." The day after that, the State called Saldana's sister to testify about Saldana's good character and their close relationship. In all, the State presented twelve witnesses who testified about the Saldana death; this presentation spanned seven of the eight days on which the State presented evidence.
The State concedes that " [i]t is true that there was more evidence presented concerning the Saldana murder than there was for the murder of Heather Catterton--at least in part because there simply existed more evidence about the Saldana murder." The
State argues that no authority prohibits it from " presenting Rule 404(b) evidence just because that evidence is worse for defendant than the evidence of the offense for which he is being tried."
Throughout the trial, the State presented at least sixteen photos of Randi Saldana, including more than a dozen photographs of Saldana's charred corpse. The trial court did, however, give repeated instructions to consider the Saldana evidence only insofar as it showed a common plan, scheme, or design involving both deaths.
The State also presented the testimony of medical experts. Anna Schandl, M.D., testified that she had conducted Catterton's autopsy, and that Catterton tested positive for an amount of cocaine which could potentially have been lethal. She also testified that there was no bruising or external trauma around Catterton's neck, but stated that this finding did not necessarily rule out defendant's account that he had strangled Catterton with a cord, pulled her to the floor, stood on her neck for several minutes, and suffocated her with a plastic bag. Ultimately, in her final autopsy report, Dr. Schandl indicated that the cause of Catterton's death was " undetermined."
In contrast with that of the Catterton experts, the testimony regarding the cause of Randi Saldana's death was more certain. The State's sole rebuttal witness was Nicholas Batalis, M.D., who conducted the autopsy on Randi Saldana and described the condition of Saldana's body in some detail, including multiple bruises on her neck and a fracture of her thyroid cartilage. In line with defendant's confession, Dr. Batalis concluded that Saldana had been killed by strangulation.
The defense evidence focused on discrediting the confessions defendant made on 5 December 2009 and then recanted. Defendant took the stand in his own defense to provide a different account of the night Catterton died. According to defendant, once Sommer Heffner left that evening, he and Catterton continued to smoke crack cocaine and have sex at his mother's house. Defendant claimed that they then went to bed, and Catterton was dead when he woke in the morning. Regarding Randi Saldana, he testified that he was performing oral sex on Saldana while squeezing her throat with one hand to intensify her orgasm. He claimed that her death accidentally resulted from his attempt at erotic asphyxiation.
Defendant also attempted to explain why he would falsely confess to multiple offenses, including several murders. Defendant testified that he had been arrested for a series of armed robberies, and that with his previous record, he could face a sentence of almost one hundred years. Defendant claimed that he believed confessing to the other offenses would grant him leverage with prosecutors on the robbery charges, but that he would not be convicted based on his (allegedly false) confessions once the police actually investigated his claims. In short, defendant testified that he falsely confessed in an attempt to " play[ ] the system."
The defense also presented evidence to contradict defendant's earlier claim that he had killed two women in Florida in either 1992 or 2009 and buried their bodies on Merritt Island. Detective Hensley testified that he relayed that information to authorities in Florida, who came to Gastonia to speak with defendant. A Florida detective testified, however, that no bodies were ever found at that location, that no unsolved murders matched the crimes defendant described, and that police were unable to verify many other details of defendant's statement.
Defense evidence also included the testimony of two medical experts regarding Catterton's cause of death. Forensic toxicologist Andrew Mason, Ph.D., testified that he had reviewed Catterton's toxicology reports and autopsy findings, and that the concentrations of cocaine and cocaine metabolites in her blood might have been, but were not necessarily, the cause of her death. In contrast, defense expert Donald Jason, M.D., a licensed medical doctor and associate professor, was the only expert at trial who offered a conclusion regarding the most likely cause of Heather Catterton's death. He reviewed the autopsy materials prepared by the State's expert, Dr. Schandl, and similarly concluded that Catterton's body had no significant
bruises or wounds. He noted that Catterton " did not have any trauma that would be consistent with being cause of death" and concluded " that the most probable cause of death is cocaine toxicity."
Both the State and the defense offered closing arguments on 7 November 2011. The defense emphasized the lack of certainty regarding the cause of Heather Catterton's death and the inconsistencies between the physical evidence and defendant's 5 December 2009 statements to police. The State emphasized the substance of defendant's confessions, the fact that forensic evidence did not preclude defendant's claim that he had suffocated Catterton with a plastic shopping bag, defendant's history of manipulating others, and that two women, Catterton and Saldana, had been killed.
The next day, 8 November 2011, the jury found defendant guilty of first-degree murder. On 18 November, after a capital sentencing proceeding, the jury found two aggravating circumstances and fourteen mitigating circumstances, and recommended a sentence of death, which the court imposed. Defendant appealed to this Court.
Defendant argues that the trial court committed several errors, the cumulative effect of which deprived him of a fair trial. We agree. We hold that the trial court committed three errors: first, by allowing admission of an excessive amount of the Saldana murder evidence under Evidence Rule 404(b), including more than a dozen photographs of her burnt body; second, by allowing Saldana's sister, Shellie Nations, to testify about Saldana's good character; and third, by allowing the prosecution to argue without basis to the jury that defense counsel had in effect suborned perjury. In light of the cumulative effect of these three errors, " we are unable to conclude that defendant was not unfairly prejudiced." State ...