State v. Fernandez

• Decision Date: 09 May 1997
• Docket Number: No. 198A95,198A95
• Citation: 346 N.C. 1,484 S.E.2d 350
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Gary FERNANDEZ.

Page 350

484 S.E.2d 350

346 N.C. 1

STATE of North Carolina v. Gary FERNANDEZ.

No. 198A95.

Supreme Court of North Carolina.

May 9, 1997.

Michael F. Easley, Attorney General by Jill Ledford Cheek, Assistant Attorney General, for the State.

Nora Henry Hargrove, Wilmington, for defendant-appellant.

LAKE, Justice.

On 7 January 1992, defendant was indicted for two counts of first-degree murder and two counts of first-degree kidnapping. On 19 July 1994, an additional. indictment was issued for second-degree burglary, felonious larceny, and felonious possession of stolen goods. Also on 19 July 1994, defendant was indicted for felonious breaking and entering, felonious larceny, felonious possession of stolen goods and safecracking. Defendant was tried capitally to a jury at the 17 October 1994 Criminal Session of Superior Court, Onslow County, Judge James R. Strickland presiding. On 15 November 1994, the State changed the charge of first-degree burglary to breaking and entering and dismissed all possession of stolen goods charges.

The jury found defendant guilty of both murders on the basis of malice, premeditation, and deliberation and under the felony murder rule; it additionally found defendant guilty of two counts of felonious breaking and entering, two counts of felonious larceny, two counts of first-degree kidnapping and one count of safecracking. Following a capital sentencing proceeding pursuant to N.C.G.S. § 15A-2000, the jury was unable to reach a unanimous decision as to sentencing in either murder case. Accordingly, Judge Strickland sentenced defendant to a mandatory life sentence for each of the first-degree murder convictions. Judge Strickland also sentenced defendant to consecutive terms of imprisonment totaling 130 years for the remaining convictions. For the reasons stated herein, we conclude that the defendant received a fair trial, free of prejudicial error.

The State's evidence tended to show that in July of 1990, the two victims, Scott Gasperson and Phyllis Aragona, were living together and were engaged to be married. Gasperson was the manager of Woodson Music and Pawn Store, located in the Piney Green Shopping Center, in Jacksonville, North Carolina, one of seven Woodson stores owned by Gasperson, Inc. Aragona managed one of the other Woodson stores.

On the morning of 12 July 1990, Kimberly Paulson was scheduled to work at the Piney Green store and was to open the store with Gasperson at 9:00 a.m. She was running late, however, and on her way to the store she saw Gasperson's car, a red Chevrolet Baretta, with two people inside heading in a direction away from the store about a mile from the Piney Green location. She arrived at the store at approximately 9:10 a.m. and knocked on the locked front door. There was no answer. The metal gate to the front door was open, and upon looking inside through the glass door, Paulson saw a jewelry box on the floor and a light on in the back of the store. She left the store and went to the home of Donald Whalen, the assistant manager of the Piney Green store, to tell him what she had observed.

Whalen went to the store and found it had been ransacked. Upon entering the store, he noticed that the alarm had been deactivated, that the safe was open, and that items were spread all over the store. An accounting of merchandise revealed that approximately $69,606.39 in cash and jewelry were missing from the store. As well as the scattered inventory, Whalen noticed pieces of duct tape on the floor. Whalen called the police, who conducted an analysis of the scene. In addition to the above-described scene, the police also found a bloodstained pillowcase in the store.

Shortly thereafter, a Sheriff's Department employee went to the residence of Gasperson and Aragona in an attempt to locate them. The back door of the residence was ajar. After knocking and calling for Gasperson and Aragona and after receiving no reply, a room-to-room search was conducted of the residence. A plastic wrapper from a package of duct tape was found in the toilet, and a piece of duct tape was located on the bed in the master bedroom. Further examination revealed that the front door and lock had been damaged from being pried open. Also, numerous personal items were missing from the residence, including Aragona's jewelry and Gasperson's shotgun, camcorder and comic book collection.

A search for Gasperson's car on 12 July 1990 revealed the car and Gasperson's body in a wooded area approximately seven to nine miles from the store. His body was found lying in a fetal position on the ground between the open car door and the car body, with a large wound to the left side of his head. There was duct tape in his hair, and a homemade "hood" was over his head. There were two types of duct tape wrapped around Gasperson's head, one with cloth-backing reinforcement, the other a cheaper brand without the reinforcement. An autopsy revealed that Gasperson had been killed by a shotgun blast to the head at point-blank range.

Aragona's body was not located until almost nine months later. On 7 April 1991, the skeletal remains of Phyllis Aragona were recovered from a wooded area near the intersection of Highways 421 and 53 in Pender County and identified by dental records. Authorities noted the presence of scattered skeletal remains, pieces of duct tape connected to hair, a .380 automatic shell casing and numerous items of clothing nearby. An autopsy revealed that Aragona died from a single gunshot wound to the head. The pathologist who performed the autopsy found metallic bullet fragments in the skull and turned them over to authorities for analysis.

Jeannette Ocasio, the daughter of Maria Monserrate, defendant's girlfriend, testified at trial. She stated that the defendant, the defendant's son Orlando, and Maria Monserrate were living in a trailer at Lot 41, Pelletier Mobile Home Park with other family members in July 1990. On the afternoon of 12 July 1990, defendant, Monserrate and Orlando picked up Ocasio from work in their blue Ford Thunderbird. On the way home, they stopped at a gas station, where defendant and Monserrate both gave Ocasio several hundred dollars in cash from a "wad of money" they were carrying. Monserrate told Ocasio that the three of them were leaving for Florida because they had committed a robbery and they thought someone had seen them. From the gas station, they went to a storage unit, where clothes, a bag full of gold jewelry and a gun were removed. Ocasio was dropped off at a local motel, and the three others left. Ocasio received a phone call from Monserrate on 18 July 1990 inquiring about the situation back in North Carolina. Later that day, the authorities questioned Ocasio, and Ocasio told them everything she had seen and heard.

Pursuant to a search warrant, authorities conducted a search on 18 July 1990 of the trailer at Lot 41, Pelletier Mobile Home Park in Jacksonville, the residence of the defendant and Maria Monserrate. Captain Keith Bryan of the Onslow County Sheriff's Department testified that upon entering the trailer, he saw a poster with a piece of duct tape wrapped around it, and he found another piece of duct tape under the couch. Proceeding down the hallway, Bryan saw a pillowcase with a floral pattern that "matched completely" the curtains and sheets in Gasperson's and Aragona's bedroom. Located on a chest in the bedroom was a duct tape label identical in manufacturer and price tag to the label recovered from the toilet of the victims' residence. Inside the chest of drawers, Bryan seized two .380 automatic pistol bullets and one shotgun shell. Also in the dresser was a partial roll of the cheaper duct tape identical to the cheaper duct tape found on Gasperson's head and on the victims' bed. Bryan also found three homemade "hoods" similar to the hood on Gasperson's head, as well as a pillow on which a stain matched the pattern, color and location of the stain found on the pillowcase in Woodson Music and Pawn. Bryan saw a screwdriver on a shelf in the closet; the unusual shape of the end matched the markings he had observed on the door of the victims' residence. Bloodstained towels were found in a basket of dirty clothes. The blood was later identified as type AB, the most rare blood type, and the same blood type as Gasperson, but different from all of the trailer's residents. Bryan found several more pieces of the same duct tape and a partially burned business card from Woodson Music and Pawn in a garbage bag outside the trailer.

The same day, 18 July 1990, Bryan conducted a search pursuant to a warrant of unit C-23 at Autry's Mini Storage south of Jacksonville. Bryan recovered a tennis-type bag that was similar to one known to be missing from one of the victims' cars. Inside the bag was a claim ticket for film with Gasperson's name on it. Other items in the bin matched descriptions of items known to be missing from the victims' cars and residence.

The evidence established that the defendant, Monserrate and Orlando drove to Miami and then fled by boat to the Dominican Republic. Defendant's blue Ford Thunderbird was recovered in Florida. Defendant and Monserrate were arrested in December 1991.

While in jail, defendant gave a statement to Onslow County authorities about the crimes and helped them locate a Mossburg shotgun used in the crimes. Also while in jail, defendant talked to a fellow inmate, Arthur Bollinger, and disclosed that he had been involved in the killings. Specifically, he told Bollinger that he had shot "the girl" and that his son Orlando had shot "the boy." He also told Bollinger that the girl had been "beaten up" and sexually assaulted, and that he and his son had sex with her several times before she was shot. Defendant told Bollinger that he had taken officers to the location of the shotgun used to shoot Gasperson as well.

Defendant presented no evidence.

In his first assignment of error, defendant argues that the trial court...