State v. Bishop

• Decision Date: 31 July 1996
• Docket Number: No. 207A94,207A94
• Citation: 472 S.E.2d 842,343 N.C. 518
• Parties: STATE of North Carolina, v. Steven Mark BISHOP a/k/a Keith Darren Williams.
• Court: North Carolina Supreme Court

Page 842

472 S.E.2d 842

343 N.C. 518

STATE of North Carolina, v. Steven Mark BISHOP a/k/a Keith Darren Williams.

No. 207A94.

Supreme Court of North Carolina.

July 31, 1996.

Sam J. Ervin, IV, Morganton, for defendant-appellant.

ORR, Justice.

The State's evidence, predominantly through the testimony of Kenneth Kaiser, defendant's younger brother, tended to show the following. In August of 1991, defendant and Kaiser worked on a paint crew that painted the home of Nan Martin Schiffman, the victim. On one occasion while they were painting, defendant told Kaiser that Schiffman had some jewelry and expensive items in the house and that they could get her key duplicated and come back later and get what they wanted. Kaiser and defendant agreed they should wait a month or more so that they would not be suspected. Later that day, defendant left; when he returned, he showed Kaiser a copy of the house key that he had made.

On 3 October 1991, both defendant and Kaiser lost their jobs. On 6 October, they applied for a job selling vacuum cleaners, and on 7 October, they went for a training session. At lunch, Kaiser told defendant that the job was not what they thought it was going to be and that maybe it would be a good time to go into Schiffman's house and get what they could because they needed some money. When defendant agreed, Kaiser asked what would happen if Schiffman came home and recognized them. Defendant responded that they could kill her, and Kaiser agreed.

About 3:00 p.m. on that day, defendant and Kaiser drove defendant's Datsun pickup truck to Schiffman's house. Kaiser got out and let himself into the house with the duplicate key while defendant parked the truck at another location and returned on foot. Kaiser took some jewelry while defendant placed a box of silver by the back door. As they continued to look for things to steal, Schiffman drove into the driveway. Defendant and Kaiser hid in the master bedroom and bathroom, defendant holding a loaded .32-caliber revolver and Kaiser holding a loaded .22-caliber revolver.

After Schiffman entered the house, defendant and Kaiser came out of the master bedroom, and defendant told Schiffman that if she would be quiet, she would not get hurt. Kaiser went through her purse and took two one-hundred-dollar bills and her Citibank card. Kaiser asked her for the personal identification number used to get money out of a teller machine with the card. She responded that she did not know, but that it would be in her files.

Defendant said they should move out of the sunroom so that no one would see them. Schiffman began to run down the hall, but defendant caught her and put his gun against her and told her that if she tried that again, they would kill her. Then defendant and Kaiser took Schiffman to a bedroom where Defendant drove Kaiser and Schiffman to the Troxler farm. They took Schiffman into the house, which was abandoned. Defendant told Kaiser to move the car and take the silver out of the trunk. When Kaiser returned, defendant was zipping up his pants, and Schiffman was pulling up her pants. Defendant asked Kaiser if he wanted oral sex, and Kaiser said he did not. Defendant then whispered to Kaiser, "She knows who we are. We're going to have to do that." Defendant told Kaiser to take Schiffman out to a pit beside the house and "do it." The evidence is conflicting as to who actually pulled the trigger, killing Schiffman. Kaiser's first statement to police indicated that defendant killed Schiffman. Kaiser subsequently gave a revised statement that he shot Schiffman. Kaiser also testified at trial that he killed her. A prison inmate testified that defendant told him, "I killed the b____." Dr. Butts, the medical examiner, testified that the wound was caused by a bullet of at least .32-caliber in size. Kaiser testified that on the day of the murder, he carried a .22-caliber revolver and defendant carried a .32. After she was killed, defendant and Kaiser put Schiffman's body in the pit and covered it. Then, they drove Schiffman's car to Winston-Salem.

she told them where to find the personal identification number. Defendant said that they were going to the bank. He loaded the silver into the trunk of Schiffman's car, and Kaiser put Schiffman into the car.

After parking the car at Hanes Mall, defendant and Kaiser wiped off their fingerprints, withdrew $200.00 from an automatic teller machine (ATM) with Schiffman's Citibank card, went to a restaurant to drink beer, and then withdrew another $500.00. They called the vacuum cleaner sales company to see if they had the job because defendant thought it would look suspicious to spend money without a job. They paid for this call at a pay phone rather than calling collect because defendant said a collect call would place them in Winston-Salem at the time the card was used. Defendant then called Robin Heath and asked her to pick them up. When Heath arrived in defendant's Cadillac, defendant drove them back to Greensboro in his Cadillac, and they picked up the Datsun truck.

The next day, defendant gave Kaiser the keys to Schiffman's car and told him to leave the window down and the keys in it so someone would steal it and get their fingerprints on it; Kaiser did so. Then defendant and Kaiser went back to the Troxler farm, tried to shovel more dirt over Schiffman's body, and retrieved the box of silver. The following day, they bought twenty bags of potting soil and ten or fifteen bags of lime from Lowe's because defendant said the lime would make the body decompose faster. They subsequently spread the lime and the soil into the pit where Schiffman was buried.

Between 7 October and 23 October, defendant and Kaiser used Schiffman's Citibank card to withdraw $17,050 from automatic teller machines (ATMs). Investigators used a computer program to determine when and where the card was being used. They learned that the card was being used at the Wachovia ATM in Yanceyville and contacted the tellers there. On 23 October 1991, one of the tellers gave a description of two men and the truck they drove. Later that day, officers located and stopped the truck and arrested the occupants, defendant and Kaiser, for financial transaction card fraud and carrying concealed weapons. When police conducted a search incident to the arrest of Kaiser, they found Schiffman's credit card in his shoe. Kaiser's fingerprints matched those lifted from Schiffman's car. Some of Schiffman's personal property was found in the truck that defendant and Kaiser were stopped in, as well as in defendant's home. Kaiser told his cellmate where the body was buried, the cellmate told a police detective, and police found the body.

Defendant presented an alibi defense. The parents of defendant's girlfriend testified that they helped defendant work on his girlfriend's car on the day of the murder from 5:00 p.m. until 6:00 p.m. A co-worker of Schiffman's testified that Schiffman left work to go home around 4:00 p.m. Kaiser testified that he and defendant broke into the house around 3:30 p.m. Defendant argued that he could not have been home to work on his girlfriend's car by 5:00 p.m. if Kaiser's The jury found defendant guilty of first-degree murder based both upon premeditation and deliberation and upon the felony murder rule. The jury also found defendant guilty of breaking and entering, robbery with a dangerous weapon, first-degree kidnapping, financial transaction card fraud, and conspiracy, as well as guilty of being a habitual felon by reason of the convictions for breaking and entering and financial transaction card fraud. Judge Rousseau sentenced defendant to death for the first-degree murder conviction. Judge Rousseau also sentenced defendant to forty years imprisonment on the conviction of robbery with a dangerous weapon, thirty years on the conviction of second-degree kidnapping, a life sentence on the conviction of felonious breaking or entering while being a habitual felon, a life sentence on the conviction of financial transaction card fraud while being an habitual felon, and one year on the conviction of conspiracy, all sentences to run consecutively.

story were true. Defendant argued that Kaiser committed the murder alone.

JURY SELECTION

I.

Defendant first contends that the trial court violated Morgan v. Illinois, 504 U.S. 719, 112 S.Ct. 2222, 119 L.Ed.2d 492 (1992), during defendant's voir dire of prospective juror Whitaker. The court sustained the State's objection to the defendant's question, "Would you find it difficult to consider voting for life imprisonment for a person convicted of first-degree murder?" Defendant has shown neither an abuse of discretion nor prejudice, both of which are required to establish reversible error relating to voir dire. See, e.g., State v. Miller, 339 N.C. 663, 678, 455 S.E.2d 137, 145, cert. denied, 516 U.S. 893, 116 S.Ct. 242, 133 L.Ed.2d 169 (1995).

In Morgan v. Illinois, the Supreme Court held that during voir dire in a capital case, the trial court's refusal to permit inquiry into whether a prospective juror would automatically vote to impose the death penalty upon defendant's conviction regardless of the evidence of mitigating circumstances is inconsistent with the Due Process Clause of the Fourteenth Amendment. "Within this broad principle, however, the trial court has broad discretion to see that a competent, fair, and impartial jury is impaneled; its rulings in this regard will not be reversed absent a showing of abuse of discretion." State v. Yelverton, 334 N.C. 532, 541, 434 S.E.2d 183, 188 (1993).

In the case at bar, the trial court did not refuse Morgan inquiry. The court permitted defendant to ask juror Whitaker and other jurors other questions that gave defendant a fair opportunity to make the Morgan inquiries. The court sustained the objection to the question at issue because it disagreed with the wording. The court told the jury, "All these cases are difficult ...," and allowed defendant to...