State v. Ashe

Decision Date03 July 1985
Docket NumberNo. 283A84,283A84
Citation331 S.E.2d 652,314 N.C. 28
CourtNorth Carolina Supreme Court
PartiesSTATE of North Carolina v. Hillard ASHE.

Rufus L. Edmisten, Atty. Gen., by Elizabeth C. Bunting, Asst. Attys. Gen., Edwin M. Spear, Sp. Deputy Atty. Gen., and Ellen B. Scouten, Associate Atty., Raleigh, for the State.

Herbert L. Hyde, Asheville, for defendant-appellant.

EXUM, Justice.

The dispositive question presented is whether the trial court committed reversible error in denying a request to review portions of the testimony, made by the jury foreman after deliberations began, without requiring that all jurors be present to hear the court's response. We conclude that it did and remand the case for a new trial.

I.

In the evening of 21 August 1974, officers from the Cherokee County Sheriff's Department discovered Charles Clinton Odom dead in the bedroom of his mobile home. An autopsy revealed that Odom died as a result of one or more blows to the head with a blunt instrument. The crime lay unsolved for nine years.

In 1983 Robert Bryson came forward and gave investigators information about Odom's death. Bryson told police that he and his companions knew Odom owned a coin toss show in a traveling carnival and often carried large amounts of cash on his person. They formulated a plan to rob Odom as he returned home on the evening of 20 August. Both Bryson and Cathy Gunter made statements implicating Ted Killian, Lloyd Ashe, and Delbert Hicky, but not the defendant, in the crime.

Ted Killian was the state's chief witness against defendant. As a result of statements made by Gunter and Bryson, Killian had been charged with Odom's murder. He and his counsel worked out a plea bargain with the state pursuant to which Killian agreed to testify against defendant. 2 Before Killian was charged with Odom's murder on 6 January 1983, he had not told anyone about his involvement in the affair. He admitted that he was the one who struck the fatal blow resulting in Odom's death. He further admitted that at this time he was regularly consuming drugs and alcohol and that it was probable he was under the influence of drugs when he committed the crime. He said he had not consumed alcohol or drugs since he became married in 1975.

Killian testified as follows: He, defendant, Lloyd Ashe (defendant's brother), Carl Hickey, Cathy Gunter and Robert Bryson, believing that Charles Odom was in the habit of carrying large amounts of cash on his person, planned on the evening of 20 August 1974 to rob him. Pursuant to their plan, Killian and defendant went inside the trailer to wait for Odom to come home. Hickey and Lloyd Ashe waited behind the trailer. Gunter and Bryson remained in the automobile which was parked about a quarter of a mile from the trailer. The plan was to ambush Odom when he entered his trailer and "knock him out" before he could recognize who was present. Defendant "shimmied the door with a knife or something" to Odom's trailer and "I think ... handed me a stick to knock Mr. Odom out with." When Odom entered the trailer door, Killian, with defendant standing at his side, hit Odom on the head with the stick, and Odom "fell back down into the yard." Defendant and Killian went out of the trailer and, together with Lloyd Ashe and Hickey, searched Odom's pockets. Odom "started coming to. When he started coming to, we ran off." Killian first learned that Odom was dead on 21 August 1974 but did not believe that he had killed him because "the paper stated he had died of natural causes." He said he first discovered he had killed Odom "when my lawyer went over the autopsy."

Defendant stipulated at trial to the truth of the conclusions of several physicians who examined Odom's body after his death including the testimony of the physician who performed the autopsy. In essence, defendant stipulated that: (1) Odom died from one or more blows to the head with a blunt instrument; (2) Odom could have lived and moved himself for one hour or more after the blows occurred; and (3) the death was not an accident, but a homicide.

Defendant's only defense was alibi. On his behalf, Donna Gail Nichols testified that her husband was shot to death in Hayesville, North Carolina, on 17 August 1974 and was buried on 20 August. 3 Mrs. Nichols knew defendant who had been friends with her husband. She called defendant on 19 August 1974 and told him of the death of her husband, David Lee. She called defendant again on 20 August 1974 and asked him if he would return with her to Canton, Georgia, where she lived. She picked defendant up in Murphy around 5:30 or 6:30 p.m. on 20 August 1974 and they drove together to Canton, Georgia, which is about forty or forty-five miles northwest of Atlanta, arriving around 9:30 p.m. Defendant stayed with her until 24 August when she brought him back to Murphy.

Nichols also knew defendant's brother Jim. She was present in the courtroom in Cherokee County in 1983 when defendant's other brother, Lloyd, pled guilty to second degree murder of Odom. She knew that defendant had also been charged with the murder. When she learned that the date of the murder was 20 August 1974, she said to Jim Ashe, "My God Hillard [defendant] was with me at that time. He couldn't have been there."

Patricia Howard, Nichols' sister, corroborated Nichols. She recalled defendant being in Nichols' home on the day Nichols' husband was buried because it had made her angry. She testified, "I stayed [in Nichols' home] until a little after midnight. I was very angry. We had words because I didn't feel like it looked good for her to have another man in the house the same day that her husband was buried. And we had an argument to that effect. I guess that's one reason it sticks in my mind so much." Howard also recalled arguing with defendant on this evening, saying, "I told him I didn't think it looked proper that he was there whenever one of his best friends had been married to Donna." Howard was reluctant to come to court to testify but ultimately did so willingly and without subpoena because "I couldn't let somebody go to jail I knew was innocent, because I would never help someone I knew was guilty, or even thought was guilty either." She said, "I'm not overly fond of [defendant], but I do know him."

To rebut defendant's alibi testimony the state called Dorothy Thaxton. Thaxton testified that she was presently a neighbor of Nichols in Canton, Georgia, but she had not lived in Canton in 1974. Nevertheless she said that Nichols asked her if she would testify that defendant was at Nichols' home on the night Nichols' husband died. Thaxton said, "I told her I didn't know, I will have to think about it." Finally, Thaxton determined that she would not testify for defendant. 4

In surrebuttal Nichols testified to "bad blood" between her and Thaxton because of an incident involving Nichols and Thaxton's children.

The state also offered evidence in rebuttal that defendant sometime in August 1974 was observed by Police Officer Grant Crawford committing a traffic violation. Crawford asked defendant for his driver's license and defendant refused to show it to him. Crawford then obtained a warrant charging defendant with exceeding a safe speed and failing to produce his driver's license. The warrant was issued and served by Crawford. Crawford could not recall the date except by reference to a date on a record in the police department. This record, the only record of this transaction available, was a green card maintained by the Murphy Police Department and originally prepared by Nada Pullium, then a secretary for the department. Pullium testified that she prepared the green card from a "white complaint form." The white complaint form was prepared by Pullium from a "yellow complaint form on each arrest" prepared by the officer. The green card, the last record prepared, contained the following notations: "8-21-74," "C," and "warrant pickup." The "C" stood for Officer Crawford. It was not clear from the testimony whether "8-21-74" referred to the date of the officer's action or the date Pullium prepared the green form. 5

II.

Having, in essence, this evidence before it, the jury retired for deliberations at 9:55 a.m. At 11:30 a.m. the jury foreman returned alone to the courtroom whereupon the following exchange took place:

THE COURT: Mr. Foreman, the bailiff indicates that you request access to the transcript?

FOREMAN: We want to review portions of the testimony.

THE COURT: I'll have to give you this instruction. There is no transcript at this point. You and the other jurors will have to take your recollection of the evidence as you recall it and as you can agree upon that recollection in your deliberations.

It is this colloquy between the jury foreman and the trial court that forms the basis for defendant's major arguments on appeal. Defendant contends that the trial court erred in failing to exercise its discretion in determining whether the jury could review the evidence and in not having all jurors summoned to the courtroom so that his response could be communicated firsthand to them all rather than to the foreman alone. We think there is merit to this argument.

N.C.G.S. § 15A-1233(a) provides:

If the jury after retiring for deliberation requests a review of certain testimony or other evidence, the jurors must be conducted to the courtroom. The judge in his discretion, after notice to the prosecutor and defendant, may direct that requested parts of the testimony be read to the jury and may permit the jury to reexamine in open court the requested materials admitted into evidence. In his discretion the judge may also have the jury review other evidence relating to the same factual issue so as not to give undue prominence to the evidence requested. [Emphases supplied.]

This statute imposes two duties upon the trial court when it receives a request from the jury to review evidence. First, the court must conduct all jurors to the courtroom. Second,...

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