State v. Cheek

• Decision Date: 05 November 1999
• Docket Number: No. 577A97.,577A97.
• Citation: 351 N.C. 48,520 S.E.2d 545
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Jamey J.C. CHEEK.

520 S.E.2d 545

351 N.C. 48

STATE of North Carolina v. Jamey J.C. CHEEK.

No. 577A97.

Supreme Court of North Carolina.

November 5, 1999.

Michael F. Easley, Attorney General, by John G. Barnwell, Assistant Attorney General, for the State.

Margaret Creasy Ciardella, Chapel Hill, for defendant-appellant.

LAKE, Justice.

On 15 July 1996, defendant was indicted for first-degree murder; on 12 August 1996, he was indicted for robbery with a dangerous weapon; and on 19 May 1997, he was indicted for first-degree kidnapping. Defendant was tried capitally to a jury at the 9 June 1997 Criminal Session of Superior Court, New Hanover County. The jury found defendant guilty of first-degree murder on the basis of premeditation and deliberation and under the felony murder rule. The jury also found defendant guilty of robbery with a dangerous weapon and first-degree kidnapping. Following a capital sentencing proceeding, the jury recommended a sentence of death for the first-degree murder conviction. On 3 July 1997, the trial court sentenced defendant to death. The trial court also sentenced defendant to a consecutive sentence of sixty-four to eighty-six months' imprisonment for the robbery conviction and to a consecutive sentence of seventy-three to ninety-seven months' imprisonment for the kidnapping conviction. Defendant appealed his conviction for first-degree murder and his sentence of death to this Court as of right. On 15 September 1998, this Court allowed defendant's motion to bypass the Court of Appeals as to his appeal of the remaining convictions.

At trial, the State's evidence tended to show that on 21 June 1996, at approximately 12:25 p.m., defendant and Tom Nelson entered the taxicab of Ms. Barbara Oxendine at the Piney Green Shopping Center in Jacksonville, North Carolina. She drove defendant and Nelson to a bar in Jacksonville. Upon arriving at the rear of the bar, Nelson pointed a gun at Ms. Oxendine and ordered her to get out of the car. Nelson struck Ms. Oxendine in the head, and defendant and Nelson bound her with flex ties. Defendant put Ms. Oxendine either in the backseat or in the trunk of the cab. Defendant and Nelson then drove the cab to Wilmington, North Carolina.

Upon arriving in Wilmington, defendant and Nelson stopped at a grocery store where Nelson purchased beer, paper towels and lighter fluid. Defendant remained in the cab outside of the store while Nelson went inside. After leaving the grocery store, Nelson told defendant they were going to shoot Ms. Oxendine and burn her in the car.

At approximately 2:00 p.m., Ms. Oxendine's cab was seen in Wilmington, in the area of the Sophie West Florist Shop on Market Street, near New Centre Drive and Sigmon Road. A waitress at Hooters restaurant in Wilmington, Rachael Frisbie, testified that she took an order from defendant and Nelson that same day. Ms. Frisbie testified that the two men asked her for directions to the hospital and asked her to call a cab for them. Their restaurant receipt, which was time-stamped at 2:23 p.m., showed that their order was "a pint of beer and a Coke." Ms. Frisbie also testified that the restaurant's clock was kept five minutes fast.

Cabdriver Billy Shirer testified that at 2:26 p.m. on 21 June 1996, he picked up two men at Hooters restaurant and drove them to New Hanover Hospital. While defendant and Nelson were riding to the hospital in Shirer's cab, firefighters were en route to a burning taxicab just off of Sigmon Road; the fire was first reported at 2:28 p.m. The burning cab was near Hooters restaurant located on the corner of Market Street and New Centre Drive diagonally across Market Street from the Sophie West Florist Shop.

Firefighters responding to the fire had difficulty extinguishing the fire. Once the fire was extinguished, a fireman discovered a body in the trunk of the cab; the body was later identified as Ms. Oxendine's. Charcoallighter cans were found in the driver's seat and on the ground beside the front passenger door, along with a beer bottle which still had condensation on it. An SBI expert in the cause and origin of fires testified that, in all probability, a flammable liquid had been poured across the front floorboard and between Ms. Oxendine's legs in the trunk.

An autopsy performed on 22 June 1996 on Ms. Oxendine revealed extensive burns to the skin of the abdomen, legs and arms as well as to the face and head. Charring obscured a gunshot wound to her head. Soot was present in the victim's nose, mouth, trachea and lungs. This indicated that notwithstanding the bullet wound to her head, Ms. Oxendine was alive when the fire started. The level of carbon monoxide in the victim's blood gases also indicated that Ms. Oxendine was alive when the fire began. The cause of Ms. Oxendine's death was determined to be carbon monoxide poisoning.

Shortly before 9:30 p.m. on Wednesday, 26 June 1996, Nelson and defendant hailed a cab and directed the driver, Tom Newton, to go to a Shoney's restaurant in Jacksonville. When the cab arrived at Shoney's, defendant remained in the cab and initiated a conversation with the driver concerning the Wilmington shooting and inquired whether the police had any suspects. Meanwhile, Nelson had entered the restaurant and robbed the cashier at gunpoint. Nelson came out of Shoney's, got back into the cab and forced the driver out at gunpoint. After the driver got out of the cab, defendant got into the driver's seat and drove away. The cabdriver and restaurant employees flagged down the police, and the police then immediately pursued the stolen cab. The cabdriver witnessed Nelson firing shots at the police. The cab was then stopped by traffic, and defendant and Nelson fled the cab. The police proceeded to chase defendant and Nelson on foot, and at this point, another shot was fired at police. After this final shot, defendant and Nelson succeeded in escaping from the police.

At trial, Shawn Kronstedt testified that he spent the night of 26 June 1996 in the same trailer as defendant. Kronstedt testified that defendant discussed the Shoney's robbery and bragged about eluding the police. Defendant also referred to Nelson as defendant's partner. On the morning of 27 June 1996, Kronstedt's employer, Patrick Pappenfuse, arrived to deliver Kronstedt's paycheck. Defendant introduced himself to Pappenfuse and began telling him about the Shoney's robbery and the shootout with police. Defendant bragged that the police were afraid of him. Defendant told Pappenfuse that he had a partner and that they were going to meet later in the day at the Yellow Rose Saloon. Pappenfuse left the trailer and called Sheriff Edward Brown of the Onslow County Sheriff's Department. The sheriff and Pappenfuse subsequently met, and Pappenfuse relayed the information to the sheriff.

On 28 June 1996, law enforcement officers went to the Yellow Rose Saloon to search for Nelson and defendant, and thereafter searched the trailer where Pappenfuse had spoken with defendant. The police found a cutout of a newspaper article about the Shoney's robbery. The officers then met behind the Yellow Rose Saloon to wait for a tracking dog to search a wooded area. While waiting, Sheriff Brown heard a shot fired and saw two men run from a trailer behind the saloon. After an exchange of gunfire, officers found the body of Nelson lying in the roadway. He had committed suicide. Defendant escaped into the wooded area but surrendered to officers twelve hours later.

In his first assignment of error, defendant contends that the trial court committed reversible error in denying defendant's motion to disclose the identity of the informant who notified the police as to where his codefendant, Tom Nelson, was hiding. Defendant also argues in this assignment of error that the trial court erred in failing to compel the State to provide a copy of the "diary" kept by Nelson. Finally, once it was apparent that the diary was lost, defendant contends that the trial court erred in refusing to sanction the State for its failure to preserve and disclose exculpatory evidence pursuant to N.C.G.S. § 15A-910.

In this case, defendant based his defense to the murder and kidnapping charges on the theory that he was an unwilling participant who accompanied Nelson as a result of his fear of Nelson. Defendant learned during discovery that a confidential informant telephoned the Onslow County police and asked whether there was a reward for information about the robbery of Shoney's restaurant. The informant then indicated that Nelson committed the robbery and that he acted alone. Defendant contends that the informant's testimony was material to defendant's trial since defendant claims that he would not have been involved in the kidnapping and murder of Ms. Oxendine if he had not been subject to duress by Nelson.

The United States Supreme Court has held that in determining whether a defendant has a right to disclosure of an informant's identity, a court must consider the particular circumstances of each case such as "the crime charged, the possible defenses, the possible significance of the informer's testimony, and other relevant factors." Roviaro v. United States, 353 U.S. 53, 62, 77 S.Ct. 623, 1 L.Ed.2d 639, 646 (1957). This Court has examined the holding in Roviaro, and has stated:

"[B]efore the courts should even begin the balancing of competing interests which Roviaro envisions, a defendant who requests that the identity of a confidential informant be revealed must make a sufficient showing that the particular circumstances of his case mandate such disclosure."

State v. Williams, 319 N.C. 73, 83-84, 352 S.E.2d 428, 435 (1987) (quoting State v. Watson, 303 N.C. 533, 537, 279 S.E.2d 580, 582 (1981)). Additionally, this Court has ruled that the disclosure of an informant's identity "is required where the informer directly participates in the alleged crime so as to make him a material witness on the issue of guilt or innocence." State v. Ketchie, 286...