State v. Call

• Decision Date: 04 May 2001
• Docket Number: No. 341A96-2.,341A96-2.
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Eric Lawrence CALL.

545 S.E.2d 190

353 N.C. 400

STATE of North Carolina v. Eric Lawrence CALL.

No. 341A96-2.

Supreme Court of North Carolina.

May 4, 2001.

Michael F. Easley, Attorney General, by Gail E. Weis, Special Deputy Attorney General, for the State.

Malcolm Ray Hunter, Jr., Appellate Defender, by Charlesena Elliott Walker, Assistant Appellate Defender, for defendant-appellant.

WAINWRIGHT, Justice.

On 9 October 1995, defendant was indicted for the first-degree murder of Macedonio Hernandez Gervacio (the victim). On 18 March 1996, defendant was indicted for robbery with a dangerous weapon, first-degree kidnapping, and assault with a deadly weapon with intent to kill inflicting serious injury. Defendant was tried capitally before a jury at the 15 July 1996 Criminal Session of Superior Court, Ashe County. The jury found defendant guilty of all charges, specifically finding defendant guilty of first-degree murder both on the basis of premeditation and deliberation and under the felony murder rule. Following a capital sentencing proceeding, the jury recommended a sentence of death for the first-degree murder, and the trial court entered judgment in accordance with that recommendation. The trial court also sentenced defendant to a concurrent sentence of sixty-three to eighty-five months' imprisonment for the kidnapping conviction and to consecutive sentences of fifty-five to seventy-five months' imprisonment for the robbery conviction and twenty-five to thirty-nine months' imprisonment for the assault conviction.

On appeal, this Court found no error in the guilt phase of defendant's trial with regard to his convictions for first-degree murder, first-degree kidnapping, and robbery with a dangerous weapon. State v. Call, 349 N.C. 382, 508 S.E.2d 496 (1998). However, we arrested judgment as to defendant's conviction for assault with a deadly weapon with intent to kill inflicting serious injury based on a fatal variance in the indictment. Id. at 424, 508 S.E.2d at 522. We also vacated defendant's sentence of death and remanded for resentencing because, during the capital sentencing proceeding, the prosecution was allowed to impeach defendant with evidence of his post-Miranda silence. Id. at 425-26, 508 S.E.2d at 523.

On 23 April 1999, the trial court entered an order transferring venue from Ashe County, North Carolina, to Wilkes County, North Carolina. Defendant's new capital sentencing proceeding was held at the 17 May 1999 Special Criminal Session of Superior Court, Wilkes County. On 21 May 1999, the jury once again recommended a sentence of death, and the trial court entered judgment in accordance with that recommendation. Defendant appeals his sentence of death to this Court.

The State's evidence at defendant's capital sentencing proceeding tended to show as follows: At around 9:30 p.m. on 24 August 1995, defendant visited the victim and offered him twenty-five dollars to help him move some things. The victim told his nephew, Gabriel Gonzalez (Gabriel), that he would "be right back," then departed the trailer with defendant.

At approximately 11:00 p.m., Gabriel heard a knock on the door and assumed that the victim had returned. When he opened the door, however, he saw that defendant had returned alone. Defendant offered Gabriel twenty dollars to help him move a refrigerator. Gabriel accepted defendant's offer and departed with defendant in defendant's pickup truck. Defendant took Gabriel to a cornfield several miles away and parked his pickup truck. Thereafter, defendant lured Gabriel outside of the vehicle by telling him the pickup truck was stuck. As Gabriel pushed the bumper of the pickup, defendant picked up an aluminum bat and, after pretending to use the bat to lift the tire, struck Gabriel on the head. Gabriel recovered, stood up, and ran to the edge of a nearby river. Defendant ran after him briefly, then returned to the pickup truck and departed the area. Gabriel then ran into the cornfield and lay on the ground all night.

The next morning, Gabriel swam across the river and sought assistance at area homes. Eventually, Gabriel received a ride home. At approximately 7:00 p.m. on 25 August 1995, Gabriel, through an interpreter, told the trailer park owner, David Shatley, what had happened the previous night. Thereafter, law enforcement officers were contacted, and Gabriel led a search team back to the cornfield to search for the victim. When the search party arrived at the cornfield, Gabriel excitedly told the same interpreter that defendant had brought him to that location and assaulted him. After walking six to eight rows into the cornfield, law enforcement officers found a baseball cap on the ground and noticed several broken corn stalks. As they continued their search, the officers noticed a plaid shirt near the edge of the cornfield. After walking toward the shirt, the officers discovered that the shirt was on the victim's body. The victim's body was partially covered by corn stalks. The officers noted that the victim had suffered severe head injuries. The victim's right foot was tied up to his shoulder area with a yellow rope, and the victim's hands were tied behind his back with a white rope. Shatley identified the victim's body, and Gabriel identified the baseball cap as the one the victim was wearing when he left the trailer with defendant. The officers also discovered a broken stick, similar to a shovel handle, at the scene.

After the victim's body was found, the authorities immediately began to search for defendant. Defendant was not found at his residence. However, based on information obtained at defendant's residence, a warrant was issued for his arrest. Defendant was arrested on 27 August 1995 in a motel room in Monroe, North Carolina. Defendant and his pickup truck were brought back to Ashe County, where officers inventoried the contents of defendant's pickup truck. Among items inventoried, officers found a bag of clothes and a steel rod that appeared to have blood and hair embedded in it. In addition, officers recovered a motel registration form in the name of "Rick N. Finley." A handwriting expert later determined that the registration form was written by defendant.

On 28 August 1995, Alan Varden, defendant's friend and associate, gave a statement to Steve Cabe, a special agent with the North Carolina State Bureau of Investigation. According to Varden, defendant repeatedly suggested robbing the victim in the weeks leading up to the murder and tried to obtain Varden's assistance. Defendant told Varden that the victim carried a large amount of cash that he was saving to purchase an automobile. On one occasion, defendant showed Varden a shovel handle that was in defendant's pickup truck and stated that he would like to use it to "whack" the victim in the head. On another occasion, defendant took Varden out to the cornfield where the victim's body was later found and told Varden that the cornfield, because it was desolate, would be a good place to rob the victim and dispose of the body. Defendant also offered to share the victim's money with Varden if he would help defendant take care of Gabriel because Gabriel was much bigger than defendant. Varden refused to help defendant.

At approximately 8:00 p.m. on the day of the murder, defendant told Varden he was going to help Shatley move some furniture out of a trailer and asked Varden to help. Varden refused to go but did give defendant a piece of yellow plastic rope to help tie the furniture down. At approximately 10:30 p.m., defendant returned home, where Varden and defendant's wife, Virginia Call (Jennie), were playing Nintendo. Defendant asked Varden to help him move a dresser, and Varden and defendant departed, each in his own pickup truck. On the way to Varden's trailer, defendant and Varden stopped at a church and used the rest room. While at the church, defendant handed Varden a one hundred dollar bill, stating that it was for the camper shell he had obtained from Varden. After leaving the church, defendant and Varden stopped at a service station, and defendant gave Varden a ten dollar bill and another one hundred dollar bill.

Upon arriving at Varden's trailer, defendant told Varden that he had hit the victim over the head, had broken a shovel handle, and had hit the victim with a tire iron. Defendant also described how he had tied the victim's right leg and hands behind the victim's back. Defendant told Varden he needed to go back and check the victim's pulse and that he also needed to get Gabriel. Once again, defendant sought Varden's assistance, stating that Varden's pickup truck had a quieter muffler. After Varden declined to help defendant, defendant put Varden's baseball bat in his pickup truck and departed in the direction of the victim's trailer. Varden returned to defendant's trailer.

Approximately thirty minutes later, defendant sped down his driveway and ran into his trailer, repeatedly telling Varden and Jennie that he had "f—ed up." Defendant told Varden that he had hit Gabriel with the bat but that Gabriel had gotten away. Defendant then gathered some clothes and said he was "leaving the country." Defendant, Varden, and Jennie went to Varden's trailer, where defendant showered and shaved off his mustache. Defendant also returned Varden's baseball bat to him. Varden went to defendant's trailer to get defendant's wallet and pants, as well as shoes for Jennie. When Varden returned to his trailer, defendant told him he had written a note and left it on Varden's coffee table. The note, which was recovered during the investigation, read as follows: "I Eric Call hereby declare that my wife Virginia Cox Call had absolutely no knowledge of what might have taken place. Signed Eric L. Call."

Sometime after midnight, defendant departed in his pickup truck, and Jennie and Varden followed defendant in Varden's pickup truck. After traveling some distance, defendant stopped and said goodbye to Jennie, then departed the area. Varden and...