State v. Cummings

Citation346 N.C. 291,488 S.E.2d 550
Decision Date24 July 1997
Docket NumberNo. 4A95,4A95
CourtUnited States State Supreme Court of North Carolina
PartiesSTATE of North Carolina v. Daniel CUMMINGS, Jr.

Michael F. Easley, Attorney General by Thomas S. Hicks, Special Deputy Attorney General, for the State.

William F.W. Massengale and Marilyn G. Ozer, Chapel Hill, for defendant-appellant.

ORR, Justice.

This case arises out of the murder of Burns Babson. At the time of his death, Mr. Babson was operating a store which was located within fifty feet of his home in Ash, North Carolina, where he resided with his wife of over fifty-two years. On 23 May 1994, defendant was indicted for first-degree murder, robbery with a dangerous weapon, and assault with a deadly weapon with intent to kill arising out of the slaying of Mr. Babson. Defendant was tried before a jury, and on 14 December 1994, the jury found defendant guilty of all charges. Following a capital sentencing proceeding, the jury recommended a sentence of death for the murder conviction. In accordance with the jury's recommendation, the trial court entered a sentence of death for the first-degree murder conviction based on the theory of premeditation and deliberation and the felony murder rule. The trial court also sentenced defendant to consecutive sentences of forty years' imprisonment for the robbery conviction and ten years' imprisonment for the assault conviction.

After consideration of the assignments of error brought forward on appeal by defendant and a thorough review of the transcript of the proceedings, the record on appeal, the briefs, and oral arguments, we conclude that defendant received a fair trial, free from prejudicial error.

At trial, the State's evidence tended to show the following: On 22 April 1994, while in her home, Mrs. Babson heard three or four gunshots fired in rapid succession. She ran into the yard and saw a man standing in the doorway of her husband's store. The man went around to the front of the store building, fired a gun at Mrs. Babson, and Ronnie Babson, Mr. Babson's son, operated a garage next door to his father's store. Shortly after his father's murder, Ronnie entered the store and went over to where Mr. Babson's body was lying. He moved Mr. Babson's head from the chair and placed his body on the floor. He noticed that the .38-caliber revolver which his father ordinarily kept behind the counter was missing.

then got into a white van parked near the store. Mrs. Babson ran to a neighbor's house and called 911. She then entered the store, where she found her husband lying on the edge of a recliner behind the counter with a bullet wound in his head.

Brunswick County Sheriff's Detective Tom Hunter arrived at the store at 7:56 p.m. Detective Hunter found Mr. Babson's body on the floor behind the counter and noted that there were gunshot wounds on the right side of the victim's head and in his back just above his waistline. Detective Hunter also observed two bullet holes in a box of receipts adjacent to the north wall of the store behind the counter.

Donald Ray Long testified at trial that he owned and operated Brunswick Farm Supply, which is located about one mile east of Mr. Babson's store. On 22 April 1994, at approximately 5:00 p.m., defendant drove a white Ford van into the driveway of Long's business. Mr. Long further testified that defendant got out of the van and asked him for directions to the beach. Defendant then drove off in the direction of Mr. Babson's business. Shortly thereafter, Mr. Long left his business and saw a van like the one driven by defendant at a gas station halfway between his business and Mr. Babson's store.

Martha Dean Fowler testified that she was operating Martha's Corner Store on the day of Mr. Babson's murder. The store is located about six miles from Mr. Babson's store. She stated that defendant entered her store twice on that evening. Around 7:45 p.m., defendant drove up to her store in a white van. He then entered the store and purchased a soft drink and a pack of cigarettes. Ms. Fowler further testified that defendant returned to her store sometime between 8:30 and 9:00 p.m. He was dressed in a plaid shirt and blue jeans and appeared quite nervous. Ms. Fowler testified that she gave him directions to Wilmington, and he then left the store.

On 23 April 1994, Sampson County Deputy Sheriff Everette Jones received a call to be on the lookout for "a white and green Ford Astro van" with North Carolina license plate number "Robert X-ray 8586" traveling north on U.S. 421. The call indicated that the driver would be "a dark[-]skinned white male with a greenish t-shirt and blue jeans and two or three days' facial hair growth." Deputy Jones testified that after receiving the call, he returned to a place on U.S. 421 where he had previously seen a white Ford van. He found the van parked on the side of the road, approximately six miles north of Clinton. Deputy Jones then verified that the license plate of the van matched that of the vehicle mentioned in the report. As Deputy Jones got out of his marked patrol car, defendant began to walk away from the van.

Deputy Jones testified that he approached defendant, handcuffed him, and told him that he was being detained. He placed defendant in the patrol car, called the dispatch center, and requested that they run the vehicle identification number through their computer. The information which Deputy Jones received indicated that the van was stolen. Based on that information, Deputy Jones placed defendant under arrest.

On 24 April 1994, Detective Hunter arrived at the Sampson County jail to interview defendant. Detective Hunter had been informed that a suspect matching the description he put out had been detained in Sampson County. Prior to interviewing defendant, Detective Hunter advised him of his rights, and defendant signed a written waiver of those rights. Defendant then described the sequence of events leading up to Mr. Babson's murder. He told Detective Hunter that he was picked up by a black male named Joe driving a white van. Defendant said that the two of them drove around for several days, buying and smoking crack cocaine. Defendant stated that he and Joe had stopped at Mr. Babson's store for a drink of water on the day of the murder. They left the store only to return twenty or thirty The next day, defendant was again interviewed by Detective Hunter and SBI Agents Janet Storms and Wayne Johnson. The interview took place at the New Hanover County Sheriff's Department, where defendant had been transported for the administration of a polygraph examination. Defendant was once again advised of his rights prior to the interview and voluntarily signed a waiver of those rights. Defendant then made a statement, which was reduced to writing, concerning the events surrounding Mr. Babson's murder. Defendant stated that "[o]n Wednesday[,] April 20th, 1994, [he] stole a white van from Shannon, North Carolina." He further stated that he rode around and "smoked crack cocaine for the next day or two." He then began to check out stores to rob in the Ash, North Carolina, area. He saw an old man running one of the stores by himself and decided it "looked easy to rob." Defendant left and returned about thirty minutes later. Defendant then described the events which followed:

minutes later intending to rob Mr. Babson. Defendant parked the van and then walked around the store. He heard four shots fired, went into the store, and saw Mr. Babson lying behind the counter. Defendant saw a woman near the store, fired one shot at her, and returned to the van where he found Joe waiting.

I parked the van outside and left the door open. I went inside and asked the old man about the pool tables. He told me to go on in and cut the lights on. I told the old man to, 'Give me your money'. The old man went towards the cash register and I thought he was going to get the money. The old man came back with a gun and shot at me. I crawled around the counter and we struggled over the gun. I believe I heard or counted about four shots that went off inside the store. I took the old man's wallet.... I did not see where the old man got shot. I got the money out of the cash register and left the old man laying face down in the chair.

Defendant stated that as he was leaving, he saw a lady through the screen door and fired the gun to scare her. Defendant then got into the van and left, eventually stopping at a store to ask directions. Defendant remained in custody after this statement was given.

On 28 April 1994, Detective Hunter once again spoke with defendant concerning the events surrounding Mr. Babson's death. Defendant was again informed of his rights and once again voluntarily signed a waiver of those rights. At that time, defendant had been arrested for the murder of Burns Babson. Defendant proceeded to make another statement very similar to the one set out above.

Dr. John Leonard Almeida, an expert in the field of forensic pathology, performed an autopsy on the body of Burns Babson. Dr. Almeida noted two bullet holes in the body of Mr. Babson, both of which were entrance wounds. One was in the right eye and the other in the lower back. Dr. Almeida was of the opinion that both of the gunshot wounds would have been fatal and that they were the cause of Mr. Babson's death.

SBI Agent Thomas Trochum, an expert in the field of forensic firearms identification and gunshot residue, examined the bullet that was removed from Mr. Babson's back and the bullet fragments that were removed from his head. Agent Trochum identified both as .44-caliber bullet jackets. The gun which Mr. Babson kept behind the counter in his store had been identified as a .38. In Agent Trochum's opinion, it is physically impossible to fire the .44-caliber bullet jackets that were found at the crime scene from a .38- or .357-type firearm.

Defendant presented no evidence during the guilt-innocence phase.

During the capital sentencing proceeding, the State...

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