State v. Basden

• Decision Date: 30 December 1994
• Docket Number: No. 159A93,159A93
• Parties: STATE of North Carolina, v. Ernest West BASDEN.
• Court: North Carolina Supreme Court

Page 238

451 S.E.2d 238

339 N.C. 288

STATE of North Carolina, v. Ernest West BASDEN.

No. 159A93.

Supreme Court of North Carolina.

Dec. 30, 1994.

Michael F. Easley, Atty. Gen. by Clarence J. DelForge III, Asst. Atty. Gen., for State.

J. Kirk Osborn, for defendant-appellant.

PARKER, Justice.

Defendant was tried capitally on an indictment charging him with the first-degree murder of Billy Carlyle White. The jury returned a verdict finding defendant guilty of first-degree murder on the theory of premeditation and deliberation. Following a sentencing proceeding pursuant to N.C.G.S. § 15A-2000, the jury recommended that defendant be sentenced to death. The jury also found defendant guilty of conspiracy to commit murder and the trial court sentenced defendant to ten years, such sentence to be served after the death sentence. For the reasons discussed herein, we conclude the jury selection, guilt-innocence phase, and sentencing proceeding were free from prejudicial error and the death sentence is not disproportionate.

The State's evidence tended to show Sylvia White wanted to kill her husband, Billy White, for at least a year. She unsuccessfully tried to poison him with wild berries and poisonous plants. She also enlisted the help of Linwood Taylor, defendant's nephew. Taylor then approached defendant and told him he needed a hit man and asked defendant if he wanted the job. Defendant initially thought the idea was crazy and refused. Later, when defendant got into financial difficulty he asked Taylor if the offer still stood and agreed to kill White.

Taylor developed a scheme to lure White, who was an insurance salesman, to a location where he could be killed. Taylor pretended to be a wealthy businessman from out of town who had bought property in Jones County and wanted to buy insurance. Taylor arranged for White to meet him in a wooded rural area at 8:30 p.m. Sunday, 20 January 1992. On the day of the murder, Taylor and defendant drove to the designated spot and waited for White.

When White arrived, Taylor got out of his car and introduced himself to White as Tim Defendant and Taylor drove back to Taylor's house after the shooting. Taylor said he thought he left a map at the crime scene so they returned and went through White's pockets taking a blank check, wallet, and gold ring. They then returned to Taylor's house and burned all their clothing in the backyard. They also sawed the shotgun into three or four pieces with a hacksaw, put the pieces into a bucket of cement, and threw it over a bridge into the Neuse River. Taylor gave defendant three hundred dollars.

Conners. Then Taylor said he needed to use the bathroom and stepped to the other side of the road. Defendant got out of the car and picked up a twelve-gauge shotgun he had placed on the ground beside the driver's side of the car. Defendant pointed the gun at White and pulled the trigger. The shotgun did not fire because defendant had not cocked the hammer back. Defendant then cocked the hammer and fired. White was knocked to the ground. Defendant removed the spent shell casing and loaded another shell into the shotgun. Defendant then approached White, who was lying faceup on the ground, and while standing over White, shot him again. At trial the pathologist testified that White bled to death from massive shotgun wounds to the right upper chest and left lower abdomen. Although his aorta was nearly severed from his heart, White did not die instantly but would have remained conscious for some period of time and would have felt pain.

Prior to defendant's arrest, police officers retrieved two metal base portions of spent shotgun shells which were found in ashes from the fire in Taylor's backyard. Forensic examination indicated they were consistent with twelve-gauge shotgun shells and could have been fired from the same weapon. Officers also went to defendant's repair shop in Kinston and retrieved a man's gold-tone ring with three diamond settings from defendant, who had it in his pocket.

Taylor and Sylvia White were arrested for murder on 12 February 1992. Defendant went to the Jones County Sheriff's Department where Taylor told defendant that he had confessed. Taylor advised defendant to turn himself in and talk to SBI Agent Eric Smith. Defendant was interviewed by Agent Smith and Detective Simms of the Lenoir County Sheriff's Department. After giving some preliminary background information, defendant told the officers that he shot White. The officers immediately read defendant his Miranda rights and defendant signed a written waiver of his rights. Defendant then gave a detailed confession and stated that he killed White because he needed the money.

Defendant presented evidence that he suffered from depression, arthritis, kidney problems, pancreatitis, and drug and alcohol abuse. He is the youngest of ten children. He was extremely close to his mother, who was killed in a car accident when he was fourteen years old, and he never really recovered from her death. Defendant had been married once for about five years and was a good father to his stepchildren. Defendant was considered by friends and family to be a loner.

Dr. J. Don Everhart, a clinical psychologist, testified that defendant has a dependent personality disorder; he is lacking in self-confidence and clings to stronger people, performing unpleasant tasks for them to retain their support. Dr. Everhart further testified that defendant has an avoidance personality disorder; he is shy and uncomfortable in social settings and is easily isolated. Finally, defendant has a schizotypal personality disorder, with feelings of being disembodied and disassociated from life events.

Additional facts will be presented as necessary for an understanding of the issues.

JURY SELECTION ISSUES

Defendant first contends the trial court erred by excusing potential juror Jarman for cause because of her views on the death penalty.

A review of the transcript shows that while the trial court initially excluded Mrs. Jarman for cause, at the State's request, the trial court agreed to strike its prior ruling and allow the State to exclude her through a peremptory challenge. A prosecutor may properly exercise a peremptory challenge to excuse a juror due to his hesitancy over the Defendant also contends the trial court erred by excluding potential juror Pearsall for her feelings about the death penalty.

death penalty. State v. Robinson, 336 N.C. 78, 443 S.E.2d 306 (1994). Following Robinson, we hold that the trial court did not err in allowing the prosecutor to peremptorily excuse prospective juror Jarman.

The standard for determining whether a prospective juror may be properly excused for cause for his views on capital punishment is whether those views would "prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath." Wainwright v. Witt, 469 U.S. 412, 424, 105 S.Ct. 844, 852, 83 L.Ed.2d 841, 851-52 (1985); see also State v. Brogden, 334 N.C. 39, 42, 430 S.E.2d 905, 907 (1993) (reiterating Witt standard).

In the instant case, the transcript reveals that Mrs. Pearsall clearly and unequivocally stated she could not impose the death penalty even though she acknowledged some crimes were bad enough to warrant capital punishment.

Q. ... Can you tell me in your own words how you feel about the death penalty?

A. Well, I don't really know. I'm against the death penalty.

....

Q. Have you had that feeling about all of your adult life, Mrs. Pearsall?

A. Yes.

....

Q. Mrs. Pearsall, are you saying then that you would vote against any verdict that would mean the death penalty, is that right?

A. Yes.

Q. Are you saying also, Mrs. Pearsall, then that in no event and under no circumstances could you vote to return a verdict that would mean the death penalty regardless of the evidence and the law in the case, is that correct, ma'am?

A. Well, if the evidence was there, it would be different, you know. If the evidence proved that he was guilty, it would be different.

Q. Uh, huh. Well, let me ask you this, Mrs. Pearsall. Let me put it to you this way. Do you think that there are some cases that are bad enough that the death penalty ought to be imposed?

A. Yes.

....

Q. Well, let me ask you this, Mrs. Pearsall. Not talking about this case in particular, because you don't know anything yet about the evidence in this case, but just as a general proposition, do you think that you could sit on a jury and in an appropriate case, could you yourself vote to give somebody the death penalty? Could you do that?

A. No, I don't think so.

Q. You could not? So regardless of what your feelings were about the case, in other words and even though you say it may be appropriate in some cases, you're saying, ma'am, then that you yourself could not vote to give somebody the death penalty, is that right?

A. Yes.

Defendant contends that his counsel should have been allowed to rehabilitate juror Pearsall with further questions about her feelings on the death penalty. However, "where the record shows the challenge is supported by the prospective juror's answers to the prosecutor's and court's questions, absent a showing that further questioning would have elicited different answers, the court does not err by refusing to permit the defendant to propound questions about the same matter." State v. Gibbs, 335 N.C. 1, 35, 436 S.E.2d 321, 340 (1993), cert. denied, --- U.S. ----, 114 S.Ct. 2767, 129 L.Ed.2d 881 (1994). Pearsall's answers were unequivocal that she could not impose the death penalty and defendant has failed to show that additional questioning would have resulted in different answers.

On these facts and applying the foregoing principles, we conclude the trial court did not err in granting the prosecutor's challenge for cause without permitting defendant to attempt to rehabilitate Pearsall.

Defendant next contends the trial court erred when it continually asked, or permitted the...