State v. Bell
| Decision Date | 09 December 1994 |
| Docket Number | No. 421A92,421A92 |
| Parties | STATE of North Carolina v. Elton Guy BELL. |
| Court | North Carolina Supreme Court |
Michael F. Easley, Atty. Gen. by David Roy Blackwell, Sp. Deputy Atty. Gen., for the State.
Stephen M. Valentine, Beaufort, for defendant-appellant.
Defendant, upon proper bills of indictment, was tried capitally and convicted of first-degree murder based on premeditation and deliberation and the felony-murder rule. Defendant was also convicted of felony conspiracy to commit robbery with a deadly weapon and attempted robbery with a firearm. Upon the jury's recommendation following a capital sentencing proceeding pursuant to N.C.G.S. § 15A-2000, the trial judge sentenced defendant to life imprisonment for the murder conviction and to consecutive sentences of forty years' imprisonment for the attempted armed-robbery conviction and ten years' imprisonment for the conspiracy conviction. For the reasons discussed below, we conclude that defendant's trial was free from prejudicial error.
The State presented evidence at trial tending to show that the victim, Donald Ray Tucker ("Officer Tucker"), a Clinton police officer, was working undercover as part of a drug investigation being conducted in Carteret County by the sheriff's department. To establish his new identity, Officer Tucker grew a beard, wore granny glasses, adopted the name "Sand Man," and professed to being a big time out-of-state drug dealer. As part of his cover, Officer Tucker became associated with Mark Balch ("Balch"), a local resident with a long history of drug offenses who had served time in prison for breaking and entering and larceny. Balch was paid a fee for turning in and assisting with the arrest of individuals involved with drugs. Balch had assisted Officer Tucker in making over seventy-five drug buys resulting in twenty-five successful arrests.
Pursuant to this arrangement, Balch began contacting David Bell ("David"), defendant's fifteen-year-old son whom Balch had seen on occasion with hashish in his possession. During the various communications, David offered to sell Balch some hashish. When Balch called to confirm the deal, David said he was having trouble getting the "stuff." Balch and Officer Tucker went to the Bell residence to complete the transaction but were confronted by defendant. Initially, Balch told defendant he was there only to take David skateboarding but later admitted he hoped to purchase some hashish from David. Defendant informed them the "hash was gone" but said his older son was on a fishing boat and would return with "some good hash" at the end of the week. However, when Balch called back, defendant still had no hashish. On this occasion, Balch offered to sell defendant some marijuana.
The parties met on 12 November 1991 at George's Party Pak to discuss the marijuana sale. Defendant asked Balch and Officer Tucker to follow him out to Salty Shores, a small campground near the marina. Defendant sampled the marijuana and then agreed to pay $5,400 for five pounds. They made plans to meet again on 14 November 1991 to complete the transaction.
At noon on the fourteenth, Balch telephoned defendant and was told to meet him "across the Broad Creek Loop down at the sound." Balch and Officer Tucker, riding in a white Mustang with tinted windows, arrived approximately five minutes prior to defendant. Defendant and his brother-in-law, Joey Lewis ("Lewis"), drove up in a green pickup truck. Balch said, "There's too many people out here, I don't like it here, let's get out of here." Defendant looked at Balch and said okay. Balch and Officer Tucker then followed defendant and Lewis to Bluewater Banks. Once the vehicles were parked, all four men moved to the rear of the Mustang. Officer Tucker placed the same duffel bag he had used at the earlier meeting on the trunk of the automobile and asked defendant if he had the money. Defendant answered, "We've got the f______ money, where's the pot?" After Officer Tucker opened the bag, Lewis rolled a joint for defendant to test the marijuana.
As defendant smoked the joint and commented on the quality of the seeds and stems, Lewis, standing six feet six inches tall and weighing approximately 350 pounds, suddenly backhanded Officer Tucker, knocking him to the ground. According to Balch's testimony, defendant was silhouetted against the white Mustang as he stood over the officer with a gun pointed at him. The fully extended hammer on the weapon was easily visible and the gun was pointed directly at Officer Tucker. Officer Tucker, attempting to rise from the ground, started to reach for his weapon and yelled, "Stop or I'll shoot." Defendant replied, "You won't shoot anybody" and shot Officer Tucker through the heart.
Following the shooting, Balch ran to a nearby house and called the authorities. Lewis escaped into the Croatan National Forest before turning himself in to the local authorities on the following Saturday. Defendant left the scene of the crime without taking the marijuana or any of Officer Tucker's personal belongings. He returned to the scene within an hour and was identified by Balch as the shooter. Defendant was subsequently arrested.
Lewis testified for the State that on the day of the shooting, he went over to defendant's home. Defendant asked if he was "[r]eady to go to work and make some money." Lewis learned that defendant's plan was to lure Balch and Officer Tucker to the scallop house at the end of the shore road and pretend that the two men were attempting to "rip us off by selling us a bunch of bad marijuana." Lewis was then to hit one of the men while defendant hit the other so they could steal the marijuana. Lewis agreed to participate and at the arranged time, drove defendant to the shore in his truck. On the way, defendant removed a pistol from his waistband, ejected the magazine, ejected a round from the chamber, chambered a round, replaced the magazine, released the hammer, and concealed the weapon in his waistband. When Lewis and defendant arrived at Salty Shores, defendant asked Balch and Officer Tucker to follow them to Bluewater Banks. Defendant then told Lewis that they should also steal "their watches, their rings, and their wallets." Once they arrived at Bluewater Banks, all four men stood around the white Mustang. While Lewis examined the marijuana, defendant told him to roll a joint. As defendant lit the joint, Lewis backhanded Officer Tucker, knocking him to the ground. He turned and noticed Balch running away from the scene. When he turned back around, Officer Tucker was holding a pistol, aimed directly at him, and saying, "You son of a b____, I will kill you, I'll kill you." Lewis testified that Officer Tucker had turned his gun towards defendant when defendant shot him.
Dr. Charles Garrett, the Carteret County medical examiner, testified that Officer Tucker was shot through the heart with a .45 caliber handgun from a distance of approximately three feet. Dr. Garrett opined that Officer Tucker was beneath the shooter when the gun was fired since the bullet entered his body seventeen inches from the top of his head and came to rest in a position some twenty-seven inches from the top of his head.
On his own behalf, defendant testified that Balch and Officer Tucker were trying to solicit his emotionally disturbed fifteen-year-old son to use and sell drugs. Defendant contends he confronted Balch on numerous occasions telling him to "stay the hell away from my son." Defendant first met with Balch at George's Party Pak "[t]o lay [a] cowboy whipping on his a__" for attempting to get his son in trouble. Even though he was armed with his .45 caliber handgun, he decided not to fight Balch when he saw that "Sand Man" was with him. Defendant then went along with the alleged drug sale in hopes of getting Balch alone at a future meeting. Defendant testified he asked Lewis to accompany him to the meeting on the day of the shooting solely to keep "Sand Man" from interfering while he fought with Balch.
Defendant further testified that while the four men examined the marijuana, he took two puffs of a joint and then tried unsuccessfully to hit Balch. Balch ran away and defendant could not follow him because of his bad back. When he turned back around, Officer Tucker was aiming a gun directly at Lewis and saying, "I am going to kill your d___ a____." Defendant removed his gun from his waistband and responded, Officer Tucker responded, "I am going to blow your f______ head off first" and aimed the gun at defendant. At this point, defendant testified he had time to cock his gun; say, ; and shoot Officer Tucker without Officer Tucker squeezing off a single round.
When defendant arrived home, he asked his wife to call the rescue squad and the police. He cleaned up, changed clothes, took a Valium, and drove back to the shore, apparently to commit suicide. While in the attic of an old scallop house, defendant changed his mind and threw the pistol away among the debris in the old building. Defendant then returned to the scene of the shooting where he learned from Balch that the man he had shot was a police officer. Defendant turned himself in and was arrested.
David testified that Balch approached him on numerous occasions about selling marijuana and cocaine for him. He claims he refused on each occasion and after a while, even refused to accept his telephone calls. On the occasion that Balch went to the Bell residence looking for David, defendant confronted Balch on David's behalf. Martha Lewis Bell ("Martha"), defendant's wife, testified that Balch called her home looking for David approximately three dozen times during September of 1991. She recalled that her husband became quite upset upon learning that Balch was soliciting David to...
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