State v. Cummings

• Citation: 422 S.E.2d 692,332 N.C. 487
• Decision Date: 19 November 1992
• Docket Number: No. 48A88,48A88
• Parties: STATE of North Carolina v. Edward Lee CUMMINGS.
• Court: United States State Supreme Court of North Carolina

Page 692

422 S.E.2d 692

332 N.C. 487

STATE of North Carolina v. Edward Lee CUMMINGS.

No. 48A88.

Supreme Court of North Carolina.

Nov. 19, 1992.

[332 N.C. 491] Appeal as of right pursuant to N.C.G.S. § 7A-27(a) from a judgment imposing a sentence of death entered by Herring, J., at the 7 November 1987 Criminal Session of Superior Court, New Hanover County. Heard in the Supreme Court 14 November 1991.

Lacy H. Thornburg, Atty. Gen. by Charles M. Hensey, Sp. Deputy Atty. Gen., Raleigh, for State.

Malcolm Ray Hunter, Jr., Appellate Defender by Gordon Widenhouse, Asst. Appellate Defender, Raleigh, for defendant-appellant.

MEYER, Justice.

Defendant, Edward Lee Cummings, argues that each of seven alleged errors by the trial court entitles him to a new trial. In the alternative, defendant argues that alleged errors in the sentencing proceeding require this Court to vacate his death sentence. We find no error in the guilt-innocence phase of defendant's trial but vacate the death sentence and remand the case for a new capital sentencing proceeding because of McKoy error that we do not find harmless beyond a reasonable doubt.

Defendant was indicted by a Hoke County grand jury on 20 February 1986 for the murders of Teresa Annette Puryear (Teresa) and her older sister, Karen Marie Puryear (Karen). ¹ This appeal concerns only defendant's conviction for Teresa's murder. After a change of venue, granted by Judge Herring because of extensive media coverage, defendant was tried capitally before a New Hanover County jury. Defendant was convicted of first-degree murder, and the jury recommended that he be sentenced to death. Judge Herring imposed the death sentence, and defendant appeals to this Court as of right.

Evidence presented at defendant's trial shows the following. On 13 January 1986, workers baling pine straw in a wooded area of Hoke County near McCain discovered a female body in a shallow grave. Sheriff's officials were notified, and upon further investigation, a second female body was discovered buried within 125 feet of the first. The property where the bodies were found is owned by the State of North Carolina and is approximately 1.5 miles from a house owned by defendant. The bodies were removed from the site under the supervision of the Office of the Chief Medical Examiner in Chapel Hill and were later identified as Karen and Teresa Puryear.

Autopsies performed by forensic pathologists Page Hudson and Michael Sullivan revealed that both victims had been shot in the back of the head, both were naked, and both were wrapped in layers of black and clear plastic and cloth sheets.

The autopsy of Teresa also revealed that her body was in an advanced state of decomposition, she had a second gunshot wound to the face, and the tips of her fingers were missing. When Teresa's body was discovered, her right hand and arm were exposed, and Dr. Sullivan testified that this exposure could explain the absence of her fingertips on that hand. However, because Teresa's left hand and arm were wrapped in plastic, Dr. Sullivan opined that her fingertips on this hand had been removed prior to her burial. The cause of death, according to Dr. Sullivan, was the gunshot wound to the back of her head.

The autopsy of Karen also revealed that her body was somewhat decomposed, that the lower portion of her right arm was missing and that there was a three and one-half inch cut-like wound on her lower left abdomen. Dr. Hudson testified that this cut was likely inflicted after Karen's death. The cause of death, according to Dr. Hudson, was the gunshot wound to the back of her head.

Defendant was born in Hoke County in May 1941, completed the ninth grade, and worked in tobacco and construction most of his life. He also owned two nightclubs. Although he lived in Willow Springs, defendant also owned property and a house in Hoke County. In May 1974, defendant met Faye Puryear, mother of Teresa and Karen, at a Raleigh nightspot. Defendant met Karen later that year when she returned to her mother's custody from a foster home. Early in 1981, defendant and Karen became involved romantically. Defendant, who was already married with children, was about forty years old when he became involved with Karen; she was around seventeen. During their relationship, Karen bore defendant three children. One of the children, Clifford Allen, died on 29 April 1983 of sudden infant death syndrome at the age of five weeks. Although the baby's death certificate stated that he died from natural causes, three witnesses testified for the State that defendant blamed Teresa for the child's death. Defendant believed Teresa may have smothered the baby.

Less than five months after the baby's death, on 16 September 1983, Teresa disappeared. She was fifteen years old. There was speculation that Teresa had left home with Mexican migrant workers.

In late 1985, Karen took out a nonsupport warrant against defendant; a hearing was scheduled for 20 November. Also, on 22 October 1985, Karen talked with officials at legal aid in Wake County about gaining legal custody of her and defendant's two children. Celia Mansaray, a paralegal at legal aid, testified that Karen said defendant had taken their two children away from her on 15 October 1985 and refused to return them. Defendant said he would shoot Karen if she tried to come and get them. After discussing the procedure for gaining legal custody of her children, Karen indicated that she would talk with defendant and that she would get back in touch with Ms. Mansaray. Karen never returned to legal aid. She disappeared on 14 November 1985--six days before the scheduled nonsupport hearing. She was twenty-two years old.

The State's evidence linking defendant to Teresa's murder included testimony from SBI Agent Troy Hamlin that a black plastic trash bag found wrapped around Teresa's body had come from the same box of Bes-Pak Good 'N Tuff trash bags seized during a search of defendant's Hoke County house. Hamlin, a forensic chemist with the state crime laboratory, testified that he "matched the bottom portion of one of the bags from the gravesite from Teresa Puryear ... to an open end of another garbage bag found in the [defendant's] Hoke County home." Hamlin also testified that plastic trash bags found wrapped around Karen's body also came from the box of Bes-Pak trash bags found in defendant's house.

During their search of defendant's Hoke County house, which was unoccupied and unfinished, police also discovered a receipt from a Big Star supermarket which listed the purchase of one item for $1.09. Jerry Parsek, general manager of a Fayetteville Big Star in 1983, testified that the sales receipt had the notation NFSG printed on it, indicating that the item purchased was a nonfood staple good. Mr. Parsek testified that Bes-Pak Good 'N Tuff trash bags were categorized as nonfood staple goods and sold for $1.09 on 16 September 1983, the date printed on the receipt. Teresa Puryear disappeared the same day.

The State also presented the testimony of Fred Jacobs, who in May 1986 shared a Hoke County jail cell with defendant. Jacobs testified that defendant said he had killed two sisters and had broken the arm off one of them. Defendant, according to Mr. Jacobs, said he had killed the sisters because "they had ripped him off on the cocaine deal."

Defendant testified in his own behalf. He denied having anything to do with Teresa's disappearance. He also denied buying the Bes-Pak trash bags or ever seeing the trash bags in his Hoke County house.

Additional facts will be set forth as necessary with respect to the various issues.

I. JURY SELECTION

In his first two assignments of error, defendant argues that he is entitled to a new trial because: (1) the trial judge erred in excusing a prospective juror because of the juror's views concerning the death penalty, see Wainwright v. Witt, 469 U.S. 412, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985); Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968); and (2) the trial judge failed to properly instruct a prospective juror who inquired about the length of time someone sentenced to life imprisonment would actually serve. While we find no error in either of these arguments, assuming, arguendo, that defendant is correct concerning his Witherspoon/ Witt challenge, the appropriate relief would be a new sentencing proceeding, not a new trial. See State v. Robinson, 327 N.C. 346, 358-59, 395 S.E.2d 402, 409 (1990) (error under Witherspoon and Witt affects only the sentencing proceeding). At oral argument, defendant asked this Court to reconsider its holding in Robinson that error under Witherspoon and Witt affects only the sentencing phase of a capital trial. Defendant argues that the United States Supreme Court's recent decision in Powers v. Ohio, 499 U.S. 400, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991), requires a different result. In Powers, the Court held that a white defendant had standing to assert an equal protection claim on behalf of a black venireperson who was excluded by the prosecution solely because of his race. Id. The Court held that although an individual juror does not have the right to serve "on any particular petit jury, ... he or she does possess the right not to be excluded from one on account of race." Id. at ----, 111 S.Ct. at 1365, 113 L.Ed.2d at 424. Furthermore, the Court held that a criminal defendant has standing to raise the equal protection rights of the excluded juror. Id. at ----, 111 S.Ct. at 1370, 113 L.Ed.2d at 425. Defendant argues, therefore, that the excluded juror in this case also had a right to serve on defendant's jury and that he (defendant) has standing to raise the issue on appeal.

Defendant misreads Powers. The Court's decision was clearly predicated on the equal protection rights of a juror excluded solely on account of his race. Stated differently, it is this unconstitutional discrimination that triggers the juror's claim under the...