State v. Hartman

• Decision Date: 11 October 1996
• Docket Number: No. 531A94,531A94
• Citation: 476 S.E.2d 328,344 N.C. 445
• Parties: STATE of North Carolina v. Edward Ernest HARTMAN.
• Court: North Carolina Supreme Court

Page 328

476 S.E.2d 328

344 N.C. 445

STATE of North Carolina v. Edward Ernest HARTMAN.

No. 531A94.

Supreme Court of North Carolina.

Oct. 11, 1996.

Michael F. Easley, Attorney General by G. Patrick Murphy, Special Deputy Attorney General, for State.

Malcolm Ray Hunter, Jr., Appellate Defender by Staples Hughes, Assistant Appellate Defender, for defendant-appellant.

ORR, Justice.

On 3 June 1993, twenty-eight-year-old defendant, Edward Ernest Hartman, shot Herman Smith, Sr., at close range in the back of the head while Mr. Smith was sitting in his recliner watching television. Mr. Smith was between seventy-two and seventy-seven years old, was in poor health, weighed only ninety-three pounds, and was suffering from emphysema at the time he was killed.

Defendant was indicted for first-degree murder and armed robbery and was tried capitally. Defendant was found guilty of first-degree murder based upon premeditation and deliberation and under the felony murder rule with robbery as the underlying felony. Defendant was also found guilty of robbery with a firearm.

Following a capital sentencing proceeding pursuant to N.C.G.S. § 15A-2000, the jury recommended a sentence of death for the first-degree murder conviction, and the trial court sentenced defendant accordingly. The trial court also entered a prayer for judgment continued with respect to the robbery conviction. On 13 January 1995, judgment was entered on the robbery conviction, and the trial court imposed a sentence of forty years' imprisonment to run consecutive to the sentence of death for the first-degree murder conviction.

Defendant appeals to this Court, asserting sixteen assignments of error. For the reasons stated herein, we conclude that defendant's trial and capital sentencing proceeding were free from prejudicial error and that defendant's sentence of death is not disproportionate.

During the guilt-innocence phase of defendant's trial, the State presented evidence tending to show the following: Defendant and Smith became acquainted through defendant's mother, Dot Simpson, who had lived with and cared for Smith some years earlier in Virginia and then later in Northampton County, North Carolina. One year prior to the murder, after Ms. Simpson moved back to Virginia, defendant, who apparently had no place else to live, moved in with Smith.

In February or March 1993, defendant told a friend, Emory K. Phipps, that Smith was a millionaire and always carried between four and five thousand dollars with him. Defendant also told Phipps that he wanted to kill Smith in order to get some of his money.

Defendant was arrested for Smith's murder on 24 June 1993. Defendant gave two statements to the police after his arrest. In his first statement, defendant indicated to the police that Smith's death was the result of an accidental shooting. Defendant later recanted that statement and confessed in a second statement to murdering Smith.

In this second statement, defendant stated that on Thursday, 3 June 1993, he had been working in the yard and drinking beer all afternoon. Around 7:00 p.m., having consumed a twelve-pack of beer, he bought another twelve-pack and ate dinner with Smith. Smith showed defendant his .38-caliber revolver, and they discussed repairing the gun. At approximately 11:00 p.m., Smith was sitting in a recliner watching the news, and defendant was at a table with the loaded revolver about five to six feet behind him. By this time, defendant had consumed four beers from the second twelve-pack. Defendant stated:

Herman was sitting in a recliner in the den. I picked the gun up off the table, walked up behind Herman, pointed the gun at the back of Herman's head. The sight of blood makes me sick so I turned my head and at very close range, pulled the trigger and shot Herman Smith in the back of the head.

Thereafter, defendant stated that he considered and decided against calling his mother or the police. Instead, he gathered the gun, the remaining beer, a change of clothes, his dog, and Smith's car keys, and leaving Smith's body in the recliner, drove in Smith's car to his (defendant's) mother's house in Norfolk, Virginia, for one day. Defendant's mother later testified that on 4 June 1993, the day after the murder, defendant asked her, "If Herman was to die, do you think you'd get anything?"

On Saturday, 5 June 1993, defendant returned home. Smith's body was still in the recliner. Defendant then headed to Roanoke Rapids, North Carolina, to play bingo. On three separate occasions between Saturday, 5 June 1993, and Tuesday, 8 June 1993, defendant used Smith's personal checks to write checks to himself. He cashed three of Smith's checks in the amount of $50.00 each at the bingo site and attempted to cash one for $2,500 at a bank, but the teller refused after the signature did not match the signature on file at the bank.

On Tuesday, 8 June 1993, defendant awoke at 3:00 a.m. to the smell of Smith's body, which was still in the recliner. After digging a hole in the stables in the backyard, defendant covered Smith's body in a blanket, dragged it out to the hole, and buried him. Before he buried the body, defendant removed a diamond ring from Smith's hand because defendant "did not have any money." He then drove Smith's car back to Norfolk, Virginia.

On 9 June 1993, defendant drove to Augusta, Georgia, to visit some friends. Defendant's friends testified that defendant drove Smith's car to Georgia. Defendant tried to sell to his friends several items belonging to Smith including the diamond ring, the car, a shotgun, and the .38-caliber pistol with which defendant had shot Smith. Defendant's friends in Augusta, Carlos Petersen and James Yanak, testified that they also saw defendant with Smith's television, VCR, leather jacket, and "a large ... lump of money."

The following Monday, 14 June 1993, defendant returned to Norfolk, where he pawned Smith's ring. Defendant was later arrested in Norfolk on 24 June 1993.

Beginning on Saturday, 8 June 1993, Smith's relatives could not get in touch with him and soon became concerned. On 10 June 1993, SBI Agent Malcolm McLeod found in a trash can located in defendant's home a ripped-up personal check of Smith's and a piece of paper on which Smith's name was written several times where defendant had apparently practiced Smith's signature in order to forge Smith's name on his personal checks. Agent Dennis Honeycutt, SBI crime technician, processed Smith's residence, and a luminal test revealed an uninterrupted blood line running from the recliner in the den out a side door towards the backyard. Smith's body was recovered from the grave in the stables in the backyard. Additionally, SBI Agent Jennifer Elwell, a forensic serologist, testified that she examined the gun recovered from under Smith's car seat after defendant was arrested. When she wiped the inside of the gun barrel, she found a positive reaction for blood.

Dr. Marcella F. Fierro, who at the time was a professor of pathology at East Carolina University, performed an autopsy on Smith's body and concluded that the contact gunshot wound to the back of Smith's head was the cause of Smith's death.

Defendant did not present any evidence at the guilt-innocence phase.

During the capital sentencing proceeding, defendant's evidence tended to show from previous psychiatric evaluations that defendant has an adjustment disorder with depressed mood, conversion disorder, a closed head injury, and a history of alcohol abuse. Dr. Billy W. Royal, a medical doctor specializing in psychiatry and forensic psychiatry, testified that his psychological evaluation of defendant revealed that defendant also has a personality disorder with immaturity, impulsivity, and identity problems. Defendant also suffers from chronic depression and an anxiety disorder. Defendant's mother testified that defendant had been sexually abused in the past by his sixteen-year-old uncle and one of his mother's stepsons and had been physically assaulted by one of his six stepfathers. In addition, defendant witnessed his mother attempt suicide and suffer numerous beatings at the hand of her husbands.

I.

In his first assignment of error, defendant contends that the trial court erred by holding a private, unrecorded conversation outside his presence with prospective juror Sarah White, in violation of his nonwaivable constitutional right to be present at all stages of his capital trial.

It is well settled that a defendant in a capital trial has an unwaivable right to be present at every stage of his trial. "This Court has repeatedly held that nothing should be done prejudicial to the rights of a person on his trial for a capital felony unless he is actually present...." State v. Jacobs, 107 N.C. 772, 779, 11 S.E. 962, 964 (1890). This right to presence derives from the Confrontation Clause of our State Constitution. Significantly, however, any violation of a defendant's right to be present is subject to a harmless error analysis.

State v. Hudson, 331 N.C. 122, 135, 415 S.E.2d 732, 738 (1992) (citations omitted), cert. denied, 506 U.S. 1055, 113 S.Ct. 983, 122 L.Ed.2d 136 (1993). "When a trial court conducts private unrecorded conferences with prospective jurors, the trial court commits reversible error unless the State can show that the error was harmless beyond a reasonable doubt." State v. Lee, 335 N.C. 244, 262, 439 S.E.2d 547, 555, cert. denied, 513 U.S. 891, 115 S.Ct. 239, 130 L.Ed.2d 162 (1994).

At the end of the first day of jury selection, the following exchange, which is a memorialization of the alleged ex parte conversation, transpired involving prospective juror White:

THE COURT: Ms. Sarah White, please come around.

(SHE DID AS REQUESTED.)

THE COURT: Gentlemen, this is a juror by the name of Sarah H. White. She was not here at the time the jurors were called. She has brought to me a statement from a doctor. I filed the statement with the clerk and the court is going to defer...