State v. Burke

• Decision Date: 03 November 1995
• Docket Number: No. 413A94,413A94
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Bobby Paul BURKE.

Page 212

463 S.E.2d 212

342 N.C. 113

STATE of North Carolina v. Bobby Paul BURKE.

No. 413A94.

Supreme Court of North Carolina.

Nov. 3, 1995.

Michael F. Easley, Attorney General, by Ronald M. Marquette, Special Deputy Attorney General, for State.

Jean P. Hollowell and Teresa Freitas, Fremont, for defendant-appellant.

FRYE, Justice.

Defendant, Bobby Paul Burke, was tried noncapitally, and a jury found him guilty of the first-degree murder of Patrick Joseph Leuten. The trial judge imposed the mandatory sentence of life imprisonment. Defendant was also convicted of one count of discharging a firearm into an occupied motor vehicle, but judgment was arrested on this conviction. On this appeal, defendant makes six assignments of error. We conclude that defendant's trial was free from prejudicial error.

The State's evidence at trial tended to show the following facts and circumstances: In the early morning hours of 26 July 1991, Patrick Joseph Leuten and John Wright drove to a section of Maple Street in Goldsboro, North Carolina, where it was common for drugs to be sold in the street to people in their vehicles. Among the drug dealers on Maple Street were a man called "Jamaican Rick" and defendant, who was known as "Jamaican Bobby." Wright, a frequent purchaser of drugs, had been to the area earlier on the evening of 25 July 1991 with a person whose wallet had been taken either by Jamaican Rick, James Prioleau ("Big Deal"), or "Chevy."

Later during the early morning hours of 26 July 1991, Leuten drove Wright back to Maple Street in a borrowed truck to get the wallet. While they were stopped on Maple Street, the wallet was given to Wright by Big Deal. Wright observed defendant standing near the truck with a dull-colored automatic handgun. As Leuten drove away, Jamaican Rick yelled that he had been ripped off. At that point, Jamaican Rick and another black male began shooting at the truck driven by Leuten.

Leuten was struck by two bullets. Wright immediately pulled the truck to the side of the road, left the truck near the scene of the shooting with the key in the ignition, and ran home. The truck was found later that morning several miles from Maple Street near the trailer park where defendant resided. Leuten was found in the truck, dead from two gunshot wounds. A lead core that could have come from a .44-caliber gun was found in the decedent's abdomen. Also, parts of two nine-millimeter bullets were found under the floorboard and behind the seat of the truck.

Four days following the shooting, the Goldsboro Police Department received an anonymous tip that evidence could be found in a dumpster near the location of the shooting. On 30 July 1991, Goldsboro police searched the dumpster and found a shoe box containing a .44-caliber handgun and two boxes of .44-caliber ammunition. The gun which holds six rounds, had three bullet casings in it. Defendant's fingerprints were on one of the boxes of ammunition. Defendant admitted that he owned a .44-caliber handgun and had bought the ammunition for himself and Jamaican Rick.

Since it was undisputed that Jamaican Rick was one of the shooters, the major disputed issue at trial was the identity of the second shooter. The State presented testimony that defendant was the second shooter. Although defendant did admit that he was present at the scene of the murder, he presented evidence, through his own testimony as well as the testimony of others, that suggested that someone else was the second shooter.

For defendant's first assignment of error, he contends that the trial court erred in refusing to allow him to present evidence that would show that Big Deal was at one time considered a suspect in the case. First, defendant argues that it was error to refuse to admit defense exhibit # 3. Defense exhibit # 3 consisted of a set of Big Deal's fingerprints that was taken by the Goldsboro Police Department. This set of Big Deal's fingerprints, along with one set of decedent's fingerprints and two sets of defendant's fingerprints, was given to the State fingerprint expert for use in trying to find a match with any fingerprints lifted from evidence submitted to the SBI crime laboratory. The trial court did not allow the fingerprint expert to testify that defense exhibit # 3 was a set of Big Deal's fingerprints taken by the police department and did not admit the exhibit into evidence.

Defendant further contends that the court erred in not permitting Ronald Melvin, a Goldsboro police officer, to testify that he had listed Big Deal as a suspect in the case at the time he submitted various items of evidence to the SBI crime laboratory. Defendant contends that the excluded evidence, defense exhibit # 3 and Officer Melvin's testimony, corroborated defense testimony that Big Deal, not defendant, was the second shooter. Defense testimony showed that the .44-caliber gun pulled from the dumpster was the same one Big Deal carried the night of the murder. Defendant argues that since the only issue at trial was the identity of the second shooter, the evidence that Big Deal was a suspect points directly to Big Deal as the second shooter. As such, the evidence is highly probative in that it implicates Big Deal while exonerating defendant. We disagree with defendant's contentions and conclude that the trial court did not err by refusing to admit this evidence.

This Court has held that a defendant may introduce evidence tending to show that someone other than the defendant committed the crime charged, but such evidence is inadmissible unless it points directly to the guilt of the third party. Evidence which does no more than create an inference or conjecture as to another's guilt is inadmissible. State v. Jenkins, 292 N.C. 179, 188-89, 232 S.E.2d 648, 654 (1977); State v. Shinn, 238 N.C. 535, 537, 78 S.E.2d 388, 389 (1953); State v. Smith, 211 N.C. 93, 96, 189 S.E. 175, 176 (1937). "[T]he admissibility of another person's guilt now seems to be governed, as it should be, by the general principle of relevancy under which the evidence will be admitted unless in the particular case it appears to have no substantial probative value." Henry Brandis, Jr., 1 Stansbury's N.C. Evidence § 93, at 302-03 (Brandis rev. 1973).

In the instant case, the trial court admitted evidence (1) that Big Deal was present at the scene of the crime, and (2) that Big Deal was carrying a .44-caliber handgun the night of the shooting. However, the evidence that Big Deal was a suspect is not probative of whether Big Deal committed the crime in that it does not show that Big Deal was the second shooter. Being a suspect in a police investigation does not necessarily implicate the suspect in that it is not evidence that the suspect is guilty of the crime. Accordingly, the evidence that Big Deal was at one time considered a suspect does not directly point to the guilt of Big Deal, nor does it exonerate defendant. As such, the trial judge did not err in refusing to admit the evidence.

In his second assignment of error, defendant contends that the trial court erred in admitting State's exhibits # 28, # 29, # 31, # 32, # 33, # 34, and # 35. Among the items introduced into evidence by the State were a shoe box (exhibits # 29 & # 31), a .44-caliber handgun (exhibit # 28), two boxes of .44-caliber ammunition (exhibits # 33 & # 34), a spent cartridge from the gun (exhibit # 35), and three bullets found in the gun (exhibit # 32). All of the exhibits were found in a dumpster four days after the shooting and two days after defendant was interviewed by the Goldsboro police. Defendant contends that there was no connection between these items and the murder, and therefore, the exhibits should have been excluded. We disagree.

In order for evidence to be admissible, it must be relevant. N.C.G.S. § 8C-1, Rule 402 (1992). "The test of relevancy of evidence is whether it has 'any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.' " State v. Gappins, 320 N.C. 64, 68, 357 S.E.2d 654, 657 (1987) (quoting N.C.G.S. § 8C-1, Rule 401 (1986)).

Contradictory evidence as to who was carrying what type of gun was presented at trial. One witness testified that Jamaican Rick had a .44-caliber handgun similar to the one found in the dumpster and that he was carrying that gun on the night of the shooting. However, two other witnesses testified that Jamaican Rick was carrying a nine-millimeter handgun the night of the shooting. Two other witnesses testified that Big Deal was at the scene of the crime carrying a .44-caliber handgun similar to the one found in the dumpster. Another witness testified that defendant was carrying an automatic weapon the night of the murder, but defendant admitted to police that he owned a .44-caliber handgun.

The evidence in question is relevant because it tends to link defendant to the crime, thus allowing the jury to infer that defendant was the perpetrator of the crime. From the fact that a .44-caliber handgun was found in the dumpster along with a box of .44-caliber bullets linked to defendant through both his fingerprints and his own testimony, the jury could infer that it was defendant who fired the .44-caliber handgun the night of the murder. According to the State's evidence, the bullets found in the dumpster were consistent with the type of bullets recovered from the victim's body. Because the evidence was probative on the question of defendant's guilt and could be used to connect him to the crime, the trial judge did not err in admitting this evidence.

Defendant contends in his third assignment of error that the trial court committed reversible error by refusing to allow him to inquire into statements made by Corey Best. Two witnesses, Korteshia Williams and Sonita Williams, stated that defendant was one of the shooters. At trial, defendant presented testimony that Korteshia and Sonita...