State v. Brown

• Decision Date: 26 July 1990
• Docket Number: No. 661A85,661A85
• Citation: 327 N.C. 1,394 S.E.2d 434
• Parties: STATE of North Carolina v. Bobby Ray BROWN.
• Court: North Carolina Supreme Court

Page 434

394 S.E.2d 434

327 N.C. 1

STATE of North Carolina v. Bobby Ray BROWN.

No. 661A85.

Supreme Court of North Carolina.

July 26, 1990.

Lacy H. Thornburg, Atty. Gen. by William N. Farrell, Jr., Sp. Deputy Atty. Gen., Raleigh, for State.

Kenneth S. Broun and J. Anthony Penry, Raleigh, for defendant-appellant.

WHICHARD, Justice.

Defendant was convicted of murder in the first degree and conspiracy to commit murder. The jury recommended the death sentence for the murder. The trial court sentenced accordingly, and imposed a sentence of ten years imprisonment for the conspiracy conviction. We find no error in the guilt-innocence phase of the trial on either charge. Because we find prejudicial error in the sentencing phase on the murder charge, we remand for a new capital sentencing hearing.

Richard Lee Hopper, known as Ricky, was the State's principal witness at trial. He was twenty-one years old at the time of trial and had known defendant for approximately eight years. Defendant had worked for Hopper's father. After Hopper's father died when Hopper was thirteen, Hopper began spending most of his free time at the farm where defendant lived, and Hopper looked up to defendant almost as a father. Hopper quit school during the tenth grade.

Hopper testified that on 1 August 1981 he was at the farm with defendant. Defendant asked Hopper if he wanted to make some money and Hopper responded that he did. Defendant then said a man "had to be done away with" and Hopper could make $1500. Hopper was scared, but the money "sounded tremendously good." He saw defendant next on 3 August at the farm. Defendant asked if Hopper thought he could go through with it, and he said he could. Hopper testified: "I asked why he had to be killed and he said that he was going to testify in a federal grand jury in Roanoke, Virginia, against some powerful people." Defendant assured Hopper he would get $1500 and told him that Wayne Tilley was the person they were supposed to kill. Defendant said Lindley Tate would pay them for killing Tilley.

On 4 August 1981 Hopper borrowed his mother's car because his own car and defendant's car had loud engines and would be easy to identify. He met defendant at the farm. Defendant told Hopper they would leave a few minutes after 9:00 p.m. Defendant loaded a double-barreled sawed-off shotgun. Hopper drove his mother's car to Tilley's home with defendant sitting in the passenger seat. As they approached Tilley's home, Tilley was standing by his mailbox. When they were about six to eight feet from Tilley, defendant fired the first shot from the window of the passenger side of the car. Tilley fell to his knees. Hopper had stopped the car when defendant fired the first shot. When he saw that Tilley did not fall, Hopper was scared Tilley was still alive, so he jumped out of the car with the shotgun, leaned across the trunk of the car, and shot him again. Hopper testified he did not see anyone else around, but did see a bright-colored compact car sitting across the street from Tilley's house. Hopper drove away and rode around for approximately twenty minutes, then dropped defendant off at the farm. Hopper asked defendant about an alibi, and defendant said that his was taken care of. Hopper went to his mother's house at around 9:30 p.m. He then went to the Cook Block, a section of town where the young people hang out, and stayed there until about 2:00 a.m. Defendant paid Hopper $1500 on 5 August 1981 in the living room of defendant's home. Hopper testified that he was supposed to drive only and had not planned to shoot Tilley.

In 1984 Hopper began living with Michelle Tuttle, her sister Bamby, and defendant. Michelle was sentenced to jail for shoplifting in March 1985. She gave Hopper a message from a detective who wanted to talk to Hopper about the Tilley case. He spoke to the district attorney, who told him that if he was not the "trigger man," and if he would testify truthfully, he would be granted immunity for his actions in connection with the Tilley murder and could go into the federal witness protection program. Hopper said he needed more time to think. At the time he had no charges pending against him. In May 1985, while in custody on charges relating to a stolen truck, he gave a statement to Detective Page implicating defendant and himself in the Tilley murder. In this statement Hopper stated that he was driving defendant's van rather than his mother's car at the time of the murder, and that defendant fired both shots.

Hopper testified that on the Friday before trial the district attorney told him the details were not working out and he thought Hopper was holding back on him. Hopper then admitted to firing the second shot. Hopper testified that it was his understanding that in exchange for testifying truthfully in defendant's murder trial, he would be prosecuted for murder and conspiracy to commit murder but the district attorney would recommend a suspended sentence and probation. Hopper was not going into the federal witness relocation program, but would receive money to help him relocate. The money he received would help defray his expenses, but he was not "mak[ing] a profit out of this." While waiting for defendant's trial, the FBI and SBI had assisted Hopper and his family by providing a place for them to stay and buying food for them. Hopper estimated that the agencies spent $75-$125 per week for these expenses.

On cross-examination, Hopper testified that he was charged with uttering a forged instrument in 1985. That charge was still pending at the time of trial. In May 1985 Hopper was also charged with unauthorized use of a motor vehicle, larceny, and breaking and entering; all these charges were also still pending at the time of trial. Hopper gave his first statement to Detective Page after these charges had been filed against him. In that statement, Hopper stated that he and defendant drove around in Virginia for over an hour after shooting Tilley before returning to the farm, and that he spent the night at the farm after the murder rather than going back to his mother's house. Hopper stated that his direction of travel was north toward Virginia on Friendly Road. Detective Page then read into the record Hopper's statement made 16 May 1985, when he was arrested on charges relating to a stolen truck.

Thomas J. Barrington, Special Agent with the FBI, testified that the murder victim, Clarence Wayne Tilley, came to the SBI in 1979 to offer information about drug trafficking in Rockingham County, North Carolina and Wise County, Virginia. Tilley provided information to agents in both the SBI and FBI until his death in 1981, when he was preparing to testify before a federal grand jury.

Robert Craig, an FBI agent, testified that in June 1981 a reporter obtained a copy of a search warrant affidavit written by Agent Craig and based upon information given by Tilley. The court had ordered the affidavit sealed to protect the confidentiality of Tilley and other informers, but the affidavit was left in a file drawer and discovered by the newspaper reporter. The reporter then wrote a story based on the information in the affidavit, so that if one knew the background of the information, it was possible to guess the source. The newspaper story was published approximately six weeks before Tilley's death. Tilley received threatening telephone calls prior to his death. Tilley had been offered protection under the federal witness protection program but did not want to relocate.

Agent Craig testified further that Ricky Hopper had been offered protection under the federal witness protection program in connection with his testimony at trial. It was Craig's understanding that Hopper would not go to jail and would receive an allowance until he got established in a new area. Hopper had not entered the witness protection program officially, but had received assistance from the FBI, including money for living expenses, to relocate on his own.

Samuel S. Page, a detective with the Rockingham County Sheriff's Department, testified that in the spring of 1985 he had a conversation with Michelle Tuttle, who later married Ricky Hopper. Detective Page told Ms. Tuttle that if Ricky had information about the Tilley murder, he might be able to get into the witness protection program. Detective Page met with Ricky Hopper several times and encouraged him to make a statement. Hopper did make a statement in May 1985. On cross-examination, Detective Page agreed that Ms. Tuttle had been in jail during the spring of 1985, and during the time that she was giving Hopper messages her sentence was modified to weekend incarceration so that she could take care of her young child.

Terry Johnson, an SBI agent, served defendant with a warrant on 29 August 1981 in connection with the Tilley murder. Agent Johnson took defendant to the county jail for questioning. From there, defendant used a telephone located near the elevator to make a telephone call. Johnson observed defendant dial a number and say, "Listen, get in touch with Benny, that goddamn Ricky Hopper has done run his mouth."

Agent Johnson also read into the record a statement made by Ricky Hopper on 23 May 1985. In this statement, Hopper maintained that defendant fired both shots. As Hopper and defendant drove from the murder scene, they headed toward Virginia but went straight to the farm, where they both went to bed. Hopper stated he never saw the sawed-off shotgun again after the murder. In his previous statement, he said he saw it for the last time the next morning when he got up to cook breakfast.

Agent Johnson then testified that he and other investigators got together with the district attorney before the trial and decided Hopper was not being truthful. They confronted Hopper and told him "he better get his heart right, that I did not believe completely his original statement and now was the time." Johnson did not tell him what discrepancies existed between...