State v. Burr

Decision Date08 September 1995
Docket NumberNo. 179A93,179A93
Citation461 S.E.2d 602,341 N.C. 263
PartiesSTATE of North Carolina v. John Edward BURR.
CourtNorth Carolina Supreme Court

Michael F. Easley, Attorney General by Ellen B. Scouten, Special Deputy Attorney General, for the State.

Malcolm Ray Hunter, Jr., Appellate Defender by Janine M. Crawley, Assistant Appellate Defender, for defendant-appellant.

ORR, Justice.

On 16 September 1991, defendant was indicted for the first-degree murder of Tarissa Sue O'Daniel, who, at the time of her death, was four months old, and in addition was indicted for one count of felony child abuse. These charges were joined for trial with defendant's appeal from a consolidated judgment finding defendant guilty of two counts of assault on a female entered 6 November 1991 in District Court, Alamance County. Following the presentation of the State's case, the trial court granted defendant's motion to dismiss one charge of assault on a female.

On 16 April 1993, the jury returned a verdict finding defendant guilty of the three remaining charges. Following a capital sentencing proceeding, the jury recommended a sentence of death for the first-degree murder conviction. The judge sentenced defendant in accordance with the jury's recommendation regarding the murder conviction and sentenced him to a term of thirty days' imprisonment for the assault on a female conviction. The judge arrested judgment on the conviction for felony child abuse. From The State's evidence tended to show the following: Tarissa Sue O'Daniel ("Susie") was born on 1 April 1991 to Lisa Porter Bridges and Bridges' husband at that time, John Wesley O'Daniel. When Susie was a few weeks old, Bridges began having sexual relations with defendant, who was separated from his wife at the time. When Susie was six weeks old, John O'Daniel discovered his wife was having an affair with defendant and told Bridges that he wanted a divorce.

these judgments and conviction, defendant appeals.

Subsequently, in June 1991, Bridges and her four children moved into a trailer located next to a trailer owned by Bridges' brother, Donald Wade. Near the end of June, defendant moved into the trailer with Bridges and her four children. Bridges testified that when defendant first moved in with her, "[h]e seemed like a pretty good person," but that after a few weeks, he became physically abusive toward her, bending her hands back in a painful manner, threatening her with a gun, bruising her body, and choking her. Bridges testified that she remained with defendant after this abuse because she "was scared of him."

On 24 August 1991, defendant and Bridges argued most of the day over defendant spending the previous night at his wife's house and his refusing to take Bridges to her parents' house. At approximately 6:00 p.m., Bridges' son Scott tripped over a cord while he was carrying Susie. Bridges testified, however, that she examined Susie after the fall and did not find any marks on her body except for some redness on her arm, which disappeared. Bridges further testified that later that evening, while she was sitting on the trailer steps with Susie and defendant was mowing the yard, defendant hit Bridges in her lower back with his fist.

After defendant hit her, Bridges went over to her brother's trailer, where defendant eventually joined her. Defendant and Bridges began arguing again, and Bridges left the trailer with the infant child. Bridges testified that defendant followed her and shoved her in the back while she was holding the child. Bridges also told defendant that he was going to make her hurt the child, but Bridges testified that "he just kept running his mouth" and followed her inside her trailer, still arguing.

Once inside the trailer, Bridges placed Susie in her infant swing located in the living room. Bridges testified that while she was still holding onto the swing, defendant pushed her down onto the couch, almost causing her to knock over the swing. When Bridges attempted to get up from the couch, defendant pushed her down again and told her not to leave the couch. Bridges sat on the couch a few minutes and then stood up and walked down the hallway into her bedroom. Bridges testified that defendant followed her to the bedroom and pushed her onto the waterbed, causing the waterbed to break. Bridges testified that after the waterbed broke, defendant "started talking like everything was fine." Bridges and defendant then began repairing the waterbed.

Bridges testified that as they were repairing the waterbed, Susie began to cry and that defendant told Bridges, "go on up there and get her, that's all in the hell she wants anyway, she is so damned spoiled." Bridges took the child out of her swing and brought her back to the bedroom, where she laid her on the waterbed. After defendant finished fixing the bed, Bridges helped her two sons, Scott and Tony, prepare for bed, while her youngest son, John, Jr., remained at Donald Wade's trailer. Bridges testified that she also "got [Susie] to sleep" and placed her in her "baby bed" located in Bridges' bedroom. Bridges testified that when she placed Susie in her bed, she appeared to be physically fine and that she did not have any marks on her. Bridges then went back to the Wades' trailer to wash the dishes. Bridges testified that when she left her trailer, Scott and Tony were ready for bed, Susie was asleep in her bed, and defendant was working on a plug in the living room.

Bridges' son Scott testified that after his mother left to go to the Wades' trailer, and after he went to bed, he was awakened by "hammer noises." When Scott awoke, he heard Susie crying. Scott testified that he then heard defendant "mumbling" and that After approximately forty-five minutes, Bridges returned to her trailer and found Susie in her swing in the living room. Bridges testified that defendant was pacing the floor at this time and that he told her to look at the bruises on Susie. Defendant told Bridges that he had moved the child to the swing after she woke up and that some of the marks were grease. Bridges attempted to wash these marks off but discovered that they were not grease.

after he heard defendant mumbling, Susie stopped crying.

Bridges testified that she observed bruises in the child's ears, under her neck, on her arms, and on her legs. Bridges further testified that her eyes did not "look right," that she did not act right, and that she did not smile or respond to anything. According to Bridges, defendant refused to take the child to the hospital, so Bridges called North Carolina Memorial Hospital in Chapel Hill from the Wades' trailer.

After Bridges talked to a person at the hospital, who instructed her to bring the child in to be examined, she told defendant that she would call an ambulance if he did not take her to the hospital, and defendant finally agreed to take Susie to the hospital. Bridges testified that at this time, Susie was "jerking." Bridges also testified that she did not know how to get to Memorial Hospital and that they ended up at Alamance County Hospital. On the way to the hospital, defendant stopped at a gas station for gas.

Susie was admitted to the Alamance County Hospital at 2:55 a.m. on 25 August 1991. Bridges told the examining doctor, Dr. Willcockson, that her son had fallen while holding the child the day before. Dr. Willcockson examined the child and observed that she was unconscious and "poorly responsive." The child's eyes were wandering but did not "have any particular following," and her right eye deviated to the right. Dr. Willcockson observed that the child made no oral sounds and that her movements appeared lethargic. The child had occasional twitching of the eyes, face, and arms, which appeared to be seizures according to Dr. Willcockson. The child's respiratory rate was fast, and she had multiple bruises and swellings all over her head, scalp, ears, face, neck, arms, legs, and main portion of her trunk. Further, the soft spot on the child's head where the bones were forming was bulging, a symptom which Dr. Willcockson testified indicates swelling in the head. Dr. Willcockson also testified that Susie had a "grating feeling" in both arms and legs which meant the bones were grating upon each other and which indicates bone fractures. The X rays revealed that both of the child's arms were broken, as well as both of her thigh bones. The X rays further showed that the child had suffered some posterior rib fractures.

Dr. Willcockson testified that based on the multiplicity of trauma, Bridges' story of another child falling with Susie did not account for the injuries, and he immediately asked Bridges if Susie had been abused, to which Bridges responded in the negative. Dr. Willcockson testified that he "felt that there was such a high suspicion of abuse in the matter" that he contacted the sheriff's department and social services. Dr. Willcockson further testified that based on the bruising around the head, the seizures, and the bulging of the soft spot, he formed the opinion that the child had suffered some form of "closed head injury."

At 5:15 a.m., the child was transferred by ambulance to the intensive care unit at Memorial Hospital in Chapel Hill. Dr. Azizkhan, who was the chief of pediatric surgery and associate professor of surgery at UNC Medical School at this time, testified that he examined Susie at 6:00 a.m. Dr. Azizkhan testified that Susie had bruising of the neck, particularly on the left side of the neck and a two-centimeter-by-two-centimeter area underneath the mastoid and the mandibular portion of her neck. Dr. Azizkhan observed bruising on the right side of the face that extended onto the ear, circumferential bruising of the right arm, and bruising on the back. Dr. Azizkhan testified that the child's blood pressure "was very low for a baby [her] age" and that she had lost "half of her blood volume" from internal bleeding.

Dr. Azizkhan further testified that the bones...

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