State v. Elliott
| Decision Date | 05 May 2006 |
| Docket Number | No. 184A04.,184A04. |
| Citation | 628 S.E.2d 735 |
| Parties | STATE of North Carolina v. Terrence Rodricus ELLIOTT. |
| Court | North Carolina Supreme Court |
Roy Cooper, Attorney General, by G. Patrick Murphy and Mary D. Winstead, Special Deputy Attorneys General, for the State.
M. Gordon Widenhouse, Jr., Chapel Hill, for defendant-appellant.
On or about 28 January 2001, defendant Terrence Rodricus Elliott murdered Alice Mae McLeod McCrimmon. On 15 December 2003 a jury returned verdicts of guilty against defendant for first-degree felony murder, first-degree rape, and first-degree burglary. On 18 December 2003, the jury returned a binding recommendation of a sentence of death for defendant's first-degree felony murder conviction. Accordingly, the trial court sentenced defendant to death for the first-degree murder conviction, arrested judgment on the first-degree rape conviction, and sentenced defendant in the presumptive range to a consecutive term of 103 to 133 months for the first-degree burglary conviction. We find defendant received a fair trial and capital sentencing proceeding free of prejudicial error and that defendant's capital sentence is proportionate.
At approximately 10:00 p.m. on 28 January 2001, defendant left the residence of Clifford McLaughlin in Vass, North Carolina, where he had been visiting with McLaughlin and John Bandy. At that time, neither McLaughlin nor Bandy observed defendant carrying any specific items of personal property with him. Defendant then traveled to the home of the victim, Alice Mae McLeod McCrimmon. Ms. McCrimmon was a seventy-seven year old widow living in a mobile home without reliable heating. She was a woman of modest means, carefully saving coins for "wash money" in a purple Crown Royal bag.
Defendant broke a window to Ms. McCrimmon's home, entered her dwelling, and proceeded to rape, beat, and strangle her until she died. During the struggle, she lost control of her bowels, leaving feces on the electric blanket later found on her bed. Defendant's beating of Ms. McCrimmon left numerous blood spatters on the headboard and the walls of her bedroom. Additionally, defendant's beating knocked at least one of Ms. McCrimmon's teeth out of her mouth, and this tooth was later found imbedded in her back. Defendant left two used condoms on the floor and smoked a cigarette, leaving the unfinished butt at the crime scene.
After the murder, defendant returned to McLaughlin's residence, sometime before 12:00 a.m. At this time, as testified to by McLaughlin and Bandy, defendant possessed a purple bag which contained various pieces of jewelry and some change. McLaughlin and Bandy further testified defendant offered to split the money inside the bag with them, with defendant taking all the "silver" money from the bag and giving the pennies to McLaughlin and Bandy.
On 9 February 2001, Ms. McCrimmon's grandson became concerned because no one had heard from Ms. McCrimmon for days. He traveled to her mobile home to find a window broken, the inside of the mobile home in disarray, and the back door open. He entered through the back door, using his flashlight to look around. When he approached Ms. McCrimmon's bedroom, he found her lying on the floor beside her bed. Ms. McCrimmon's body was completely nude and her left leg was bent underneath the rest of her body. He immediately called law enforcement.
Additionally, Ms. McCrimmon's 1989 Ford pick-up truck was missing from her residence. Michelle McGarrah testified she observed a man moving the truck near a Housing Authority building in Southern Pines on or about 9 February 2001. While McGarrah initially testified that she identified defendant from a police photographic lineup on 9 February 2001, she later testified she could not make an in-court identification of defendant as the man she observed in the truck.
Defendant was eventually arrested, and on 12 March 2001 a Moore County grand jury returned true bills of indictment against him for murder, first-degree rape, first-degree burglary, two counts of felonious possession of stolen goods, and felonious larceny.
Chief Medical Examiner John D. Butts, M.D., testified for the State concerning his findings and the results of an autopsy performed on Ms. McCrimmon. He detailed injuries to Ms. McCrimmon, including blunt force trauma to her face, legs, and genital area. In Dr. Butts's opinion, the autopsy findings were consistent with the perpetrator beating, raping, and strangling Ms. McCrimmon until she died. Dr. Butts also testified he was unable to determine an exact time of death.
Special Agent Christopher Parker of the North Carolina State Bureau of Investigation conducted deoxyribonucleic acid (DNA) testing, comparing samples from swabs from the condoms, bloodstains, and cigarette butt discovered at the crime scene with known DNA samples from Ms. McCrimmon and defendant. The DNA profile found in one of the condoms was consistent with only the victim's DNA profile, while the other condom contained profiles consistent with both defendant and the victim. On the cigarette butt, Special Agent Parker found the DNA profile to be consistent with defendant's DNA profile, with the profile being 463 thousand trillion times to 25.9 million trillion times more likely to be observed from defendant than another unrelated African-American, Lumbee Indian, Caucasian, or Hispanic member of the North Carolina population.
Based upon the evidence presented at trial, the trial court allowed defendant's motion to dismiss portions of one felonious possession of stolen goods indictment which alleged possession of a microwave oven, a television, and an AM-FM cassette compact disc player. After the trial court instructed the jury on the appropriate law of the case, the jury deliberated and returned verdicts of guilty of first-degree felony murder based upon a theory of rape, first-degree rape, and first-degree burglary. Defendant was acquitted of all other charges.
During the penalty proceeding, the State presented victim impact testimony from the victim's niece and sister. A mitigation specialist testified that defendant functioned at a low level of intelligence, that his father abandoned him at birth leaving him with no male role model, and that defendant has had problems with drug and alcohol abuse.
After instruction by the trial court, the jury deliberated and found unanimously and beyond a reasonable doubt the existence of two aggravating circumstances: (1) the murder was committed while the defendant was engaged in the commission of first-degree burglary; and (2) the murder was especially heinous, atrocious, or cruel. The jury found five non-statutory mitigating circumstances, including a catchall mitigating circumstance. The jury then unanimously found beyond a reasonable doubt the mitigating circumstances were insufficient to outweigh the aggravating circumstances and that the aggravating circumstances were sufficiently substantial to call for imposition of the death penalty. Accordingly, the jury made a binding recommendation of a sentence of death.
The trial court entered judgment of a sentence of death for the first-degree murder conviction, arrested judgment on the first-degree rape conviction, and sentenced defendant in the presumptive range to a consecutive term of 103 to 133 months for the first-degree burglary conviction.
Defendant argues the trial court erred in failing to excuse a prospective juror who was over the age of sixty-five. Thelma Tennin, a prospective juror in the case, asked during jury selection if she could pose a question to the prosecutor. The prosecutor replied that she could and she asked: The trial court responded by reading the applicable law to Ms. Tennin and telling her that the trial court's view of the statutes was that she must show a compelling personal hardship in order to be excused from jury service. After Ms. Tennin responded that she did not have a compelling personal hardship, "other than old age," the trial court determined that it would not excuse her from service. Eventually, defendant used a peremptory challenge to remove Ms. Tennin from the jury pool.
We note defendant did not properly preserve this error for review because defendant did not object at trial. See N.C. R.App. P. 10(b)(1); State v. Haselden, 357 N.C. 1, 10 577 S.E.2d 594, 600, cert. denied, 540 U.S. 988, 124 S.Ct. 475, 157 L.Ed.2d 382 (2003). However, as a decision clarifying the law in this regard is in the public interest, we will review defendant's argument despite its procedural bar. See N.C. R.App. P. 2.
Defendant's argument relies upon the assumption that a trial court may excuse a juror merely because that juror is over the age of sixty-five. This premise is unfounded under North Carolina law. This Court put it well in State v. Rogers:
By statute, citizens over the age of sixty-five are qualified to serve on juries. N.C.G.S. § 9-3 (2001). However, a prospective juror over that age may, when summoned, request an exemption. N.C.G.S. § 9-6.1 (2001). The judge has the option of allowing or denying the request. Id. Once the venire is in the courtroom, any juror, though qualified, nevertheless may ask to be excused. The General Assembly has
declare[d] the public policy of this State to be that jury service is the solemn...
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