State v. Cummings, 65A87

Docket NºNo. 65A87
Citation372 S.E.2d 541, 323 N.C. 181
Case DateOctober 06, 1988
CourtUnited States State Supreme Court of North Carolina

Page 541

372 S.E.2d 541
323 N.C. 181
STATE of North Carolina
No. 65A87.
Supreme Court of North Carolina.
Oct. 6, 1988.

Page 544

[323 N.C. 183] Lacy H. Thornburg, Atty. Gen., Joan H. Byers, Sp. Deputy Atty. Gen., James J. Coman, Sr. Deputy Atty. Gen., and William N. Farrell, Jr., Sp. Deputy Atty. Gen., Raleigh, for the State.

Robert D. Jacobson, E.C. Bodenheimer, Jr., and Hubert N. Rogers III, Lumberton, for defendant.

MARTIN, Justice.

Defendant assigns error to both the guilt phase and the sentencing phase of his capital trial. Having carefully reviewed the entire record and each of defendant's arguments, we find no error in either phase and decline to disturb defendant's conviction and sentence.

The state's evidence tended to show the following: On 16 August 1986 the body of Jesse Ward, aged seventy-seven, was discovered in the kitchen of his Robeson County home. The victim had spent the previous day helping his brother-in-law, Henry Powell, fix a lawn mower and had planned to return to Powell's home on the morning of the sixteenth to finish the job. When the victim did not arrive as scheduled, Powell called him on the telephone repeatedly but always received a busy signal. Later that day Powell and his grandson Richard went by the victim's house. Richard and a neighbor entered the house through the back door and discovered the victim's body on the kitchen floor. They observed two holes in the victim's abdomen and blood on his trousers. The victim held the telephone receiver in his left hand, pressed against his ear.

Investigators recovered a cartridge casing from the grass near the back door and a spent .22-caliber bullet from the kitchen sink. There were two round holes in the back screen door. An [323 N.C. 184] autopsy performed by Dr. Marvin Thompson revealed two penetrating gunshot entrance wounds on the victim's abdomen and a single exit wound on his back. A .22-caliber bullet was lodged in the victim's spinal column and his abdominal cavity contained two liters of blood. Dr. Thompson determined the cause of death to be "hemorrhage secondary to gunshot wounds."

The shooting occurred just north of Maxton near the intersection of Highway 71 and Rural Paved Road 1312. The victim's home sits approximately 135 feet east of a small grocery store located at the corner of the intersection. Haven Betsy's house is some 527 feet south of the store. On 17 August Detective A.W. Oxendine took statements from Grady Jacobs and Patty Faye Locklear, residents of the Betsy home. Shortly thereafter Oxendine obtained a warrant for defendant's arrest.

The state based its case primarily upon Patty Faye Locklear's eyewitness account of the crime. Ms. Locklear testified that on 15 August 1986 she was living at Haven Betsy's house with her boyfriend Grady Jacobs. Defendant, who is Jacobs' first cousin, had also been living there but had moved out at the end of July after threatening to kill Betsy during a drunken confrontation. Nonetheless, he continued to visit the Betsy home every evening after work. Defendant often displayed a silver .22-caliber pistol: "We would be sitting in the house--you know--drinking and he never would pull it out until he got real high."

Jacobs and Ms. Locklear had become acquainted with their elderly neighbor, the victim Jesse Ward, several weeks before the crime. Mr. Ward gave them rides to Lumberton and on one occasion they spent the night at his home. On 5 August 1986, Jacobs bought a dog from Mr. Ward, making a down payment of seven or eight dollars. However, the dog soon escaped from its new owner and returned to the Ward home. Jacobs retrieved the dog but it got loose once more, never to be seen again.

Page 545

On the evening of 15 August defendant came by Haven Betsy's house. Ms. Locklear, Jacobs, and defendant drank for about thirty minutes, then walked to a friend's house about three-quarters of a mile away. Jacobs, who had broken his foot two days before, used crutches and walked very slowly. Defendant drank about half a fifth of liquor during the visit. On the way back to Betsy's, the group stopped by the Ward home because [323 N.C. 185] Jacobs wanted to inquire about the missing dog. They went around to the back door and Jacobs asked Mr. Ward if he had the dog. Mr. Ward responded that he did not. Jacobs said he wanted the money or the dog. Mr. Ward indicated that he had neither and slammed the door.

As they walked away Jacobs angrily noted that Mr. Ward "was going to pull that shit on the wrong person and they was going to kill him." A few minutes later defendant asked if Jacobs wanted him to kill Mr. Ward. Jacobs responded "Yeah, kill the old son-of-a-bitch." Jacobs suggested that defendant lure Mr. Ward away from home by asking him to help carry a washing machine. He told defendant not to shoot Mr. Ward at home because "all them houses will hear it." Defendant asked Jacobs to accompany him on the fatal errand but Jacobs declined, noting that his broken foot would prevent him from fleeing the scene if necessary. When defendant protested that Mr. Ward would probably not open the door for him, Jacobs ordered Ms. Locklear to go along. Ms. Locklear reluctantly complied because she was afraid of the two men. She tried to turn back at one point but defendant grabbed her arm.

When they got to the Ward home defendant instructed Ms. Locklear to knock at the back door and identify herself. Mr. Ward came to the door and defendant started talking about the washing machine. Mr. Ward told him it was late and the machine probably would not fit in his trunk anyway. At that point defendant drew his gun and said "I'm going to kill you you old white son-of-a-bitch." He shot twice. Mr. Ward slammed the door. Ms. Locklear heard him exclaim "Oh" and then heard something fall. She and defendant ran back to Haven Betsy's house where defendant removed the remaining bullets from the gun. He offered a spent cartridge casing to Ms. Locklear but she refused to take it. Defendant said he would "hold the evidence." He looked at Ms. Locklear and declared "That's what I do to a person that tells on me."

Jacobs and Ms. Locklear first talked to police on 17 August. Their original statements made no mention of Jacobs' role in planning the killing. Statements taken 18 December were more complete and were essentially consistent with Ms. Locklear's trial testimony. Both Jacobs and Ms. Locklear were subsequently charged with conspiracy to commit murder.

[323 N.C. 186] Robeson County officers arrested defendant on 17 August at Haven Betsy's house. A search incident to the arrest yielded a .22-caliber semi-automatic pistol which had been hidden in defendant's left sock. Although the bullet retrieved from the victim's body was too deformed to determine if it had been fired from defendant's gun, the bullet retrieved from the kitchen sink had rifling characteristics similar to those in the gun's barrel, and the cartridge casing retrieved from the victim's yard matched casings fired from the gun. A further search of defendant at the sheriff's department yielded fifteen hollow-point .22-caliber long-rifle cartridges.

After defendant was taken into custody, he made three brief but somewhat contradictory statements. When asked if he shot Mr. Ward, he responded "I did it." He later said "if I shot the man, I don't remember it." As he was taken to be fingerprinted, he stated "If I go down I'm not going down alone." After the fingerprinting he made a statement blaming the shooting on Grady Jacobs and Patty Faye Locklear.

At trial defendant testified on his own behalf and denied shooting Mr. Ward. His evidence tended to show the following: On 15 August he drank three cans of beer and three vodka drinks after work. He then filled up a pint bottle with vodka, put his

Page 546

gun in his pocket, and went to Haven Betsy's house. When he arrived Grady Jacobs approached him and asked to borrow the gun. Defendant gave it to him and they had a drink. They then walked to a friend's house and finished off the pint. At one point they drove to defendant's house for more liquor and defendant got "pretty well loaded." On the way back to Betsy's house at about 12:30 or 1:00 a.m., they stopped at the corner grocery store to get soft drinks out of the machine. Defendant was "pretty high" but was not staggering. Jacobs and Ms. Locklear went to the Ward home while defendant remained at the store. Shortly thereafter defendant heard two or three shots. Jacobs and Ms. Locklear returned to the store arguing, then hurriedly retreated to Betsy's house. Jacobs returned defendant's gun.

On cross-examination, defendant admitted convictions for larceny in 1962; murder in the first degree, escape from prison, and auto larceny in 1966; escape from prison in 1969; escape from prison and auto larceny in 1971; and driving under the influence [323 N.C. 187] in 1983. The jury convicted defendant of murder in the first degree based on a theory of premeditation and deliberation.

During the sentencing phase the state presented evidence with regard to defendant's prior murder conviction. Ula Lowry testified that on 22 May 1966 she went riding with defendant and his uncle, Otis Bryant. Defendant sat in the backseat and Bryant drove while both men drank white liquor. After riding around for a few hours they came to a particular crossroads. Defendant ordered Bryant to turn left towards home, but Bryant proceeded straight across the intersection instead. Defendant then shot Bryant in the back four times with a .22-caliber pistol. When Bryant fell over onto Ms. Lowry's lap and the car came to a stop, defendant got out and ran into the woods. There had been no argument and defendant did not appear drunk.

Defendant again testified on his own behalf, expressing remorse for the death of Jesse Ward. His evidence tended to show that he has a third-grade education and cannot read or write. Otis Bryant's murder occurred after he and...

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  • State v. Price, 585A87
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • February 7, 1990
    ...A third analogous case in which a prior conviction for murder was before the jury as an aggravating circumstance was State v. Cummings, 323 N.C. 181, 372 S.E.2d 541 (1988). This is the only case in the proportionality pool in which the second killing was designated as "another capital felon......
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