State v. Fisher, 62A93

• Decision Date: 29 July 1994
• Docket Number: No. 62A93,62A93
• Citation: 445 S.E.2d 866,336 N.C. 684
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Willie Ervin FISHER.

Page 866

445 S.E.2d 866

336 N.C. 684

STATE of North Carolina v. Willie Ervin FISHER.

No. 62A93.

Supreme Court of North Carolina.

July 29, 1994.

Michael F. Easley, Atty. Gen., by Isaac T. Avery, III, Sp. Deputy Atty. Gen., and Robert T. Hargett, Associate Atty. Gen., for the State.

David F. Tamer, Winston-Salem, for defendant-appellant.

FRYE, Justice.

On 26 May 1992 a Forsyth County Grand Jury indicted defendant for the 2 April 1992 murder of his girlfriend, Angela Johnson. Defendant was also indicted for first-degree burglary and assault with a deadly weapon with intent to kill inflicting serious injury. In a capital trial, the jury returned a verdict finding defendant guilty of first-degree murder on the basis of malice, premeditation and deliberation and under the felony murder rule with first-degree burglary as the underlying felony. The jury also found defendant guilty of first-degree burglary and assault with a deadly weapon inflicting serious injury. After a capital sentencing proceeding held pursuant to N.C.G.S. § 15A-2000, the jury recommended and the trial court imposed a sentence of death for the first-degree murder conviction. The trial court imposed sentences for the other convictions as follows: fifteen years imprisonment for the first-degree burglary conviction and three years imprisonment for the assault with a deadly weapon inflicting serious injury conviction. Defendant gave oral notice of appeal on 4 February 1993. An order staying execution was entered by this Court on 12 February 1993.

Defendant brings forward numerous assignments of error. After a careful review of the record, transcript, briefs, and oral arguments of counsel, we conclude that the guilt and sentencing phases of defendant's trial were free from prejudicial error, and that the sentence of death is not disproportionate.

The State presented evidence tending to show the following facts and circumstances. The victim, Angela Johnson, was living at her grandmother's (Josephine Johnson) residence, 2839 Old Greensboro Road in Winston-Salem, at the time of the murder.

Angela's mother, Shirley Johnson; Angela's thirteen-year-old daughter, Shemika; and her four-year-old son, Willie Ervin, Jr. (who is also defendant's child), were living there as well.

On 1 April 1992, defendant came to the Johnson residence at about 9:00 p.m. Angela was not at home. He stayed for about three hours, holding Willie Jr. and watching television. Shirley Johnson worked at night and left to go to work at approximately 10:00 p.m. When Angela returned to the house after her mother had gone to work, she and defendant began arguing. Angela ran into her grandmother's room and said that defendant had hit her in the eye. Defendant pushed Angela onto the bed on top of her grandmother and then hit her grandmother while trying to hit Angela. Angela's grandmother called the police.

Soon thereafter, a taxi which had been called earlier by either the victim or defendant arrived at the residence. Angela ran out of the house, while trying to put on her shoes, wearing a T-shirt and jogging pants. Defendant tried to catch her but she got into the taxi and it "pulled off." Angela was crying and her hair was tousled. She had bruises all over her body and her shirt had been torn. Angela went to the Winston-Salem Journal/Sentinel where her mother was working.

Officer T.C. Smoot of the Winston-Salem Police Department received a call at 12:35 a.m. to go to the residence. When he arrived, he began talking to Josephine Johnson about an alleged assault. Angela and her mother arrived later. Officer Smoot noticed that Angela's shirt was torn and her eyes were swollen.

Angela and her mother went to the clerk's office where Angela obtained a warrant charging defendant with assault. A criminal summons was issued for assault on a female and the police began searching for defendant. Angela and her mother went home but did not go to bed until after 3:00 a.m. There were two twin beds in the bedroom. Angela and Willie Jr. were in one bed and Angela's mother and Shemika were in the other. Angela's grandmother was in a separate room. After they went to sleep, the telephone rang and Angela answered it. She gave the telephone to her mother who recognized the caller as defendant. Angela's mother asked defendant what had happened at the house. He told her that he had not hit Angela or her grandmother.

About ten minutes after the telephone conversation ended, Shirley Johnson heard someone kicking the front door. She jumped up and saw defendant stepping over broken glass from the door and coming into the house. He was wearing a Redskins jacket and had a knife in his hand. He came in the bedroom and told Angela to get up. Angela got up and started running towards, and then out the back door with defendant following her. Angela ran to the front of the house and through the front door with defendant still behind her. Defendant cornered Angela in the living room and began stabbing her in the chest and stomach. Shemika tried to pull him off Angela and she was stabbed on the arm and in the back. Angela's mother began fighting with defendant and he struck her. Defendant dragged Angela out the front door, down the steps, and into the driveway--pulling off her nightgown. He continued to stab, beat, and kick Angela after he dragged her into the street. A next door neighbor, Lucius Simmons, heard the commotion and came to the door. He yelled to defendant to stop. Simmons yelled again, defendant stopped beating Angela and told Simmons to shut up. Simmons shot his gun into the air and defendant ran down the street.

The police arrived at the residence and found Angela lying in Simmons' driveway covered with blood. She had a pulse and appeared to be alive. Officer Smoot saw Shemika and noticed blood down her back and on her pants. She had a three-inch cut on her arm and had been stabbed in the back. The wound in her back was about an inch wide and an inch long. It was gaping open and bleeding. Angela and Shemika were taken by paramedics to the emergency room. Shemika's wounds were cleaned and her lacerations repaired. Angela was unresponsive to emergency medical treatment and was pronounced dead at 7:30 a.m. An autopsy on Angela was performed by Dr. Patrick Lantz, a forensic pathologist. The autopsy indicated roughly thirty-two stab wounds that varied in depth from superficial to over five inches. According to Dr. Lantz, Angela died of multiple sharp force injuries, including incised wounds and blunt force injuries.

After officers arrived, a bloodhound was brought to the scene to track defendant. The bloodhound tracked defendant's scent for about thirty-five to forty minutes before the dog lost the scent. In the afternoon of 2 April 1992, a telephone call was received at the Winston-Salem Police Department from defendant who told officers where he could be found. Officers were dispatched to the 2500 block of Old Greensboro Road where defendant was standing near a telephone booth. Defendant was arrested and taken to Forsyth Memorial Hospital where he was treated for wounds to his hand as well as other injuries. While waiting in the emergency room, defendant made a voluntary statement to officers. Defendant was admitted to the hospital and when released, he was taken to jail. On 6 April 1992, defendant was questioned by police officers at the police station after being read Miranda rights which he waived.

At trial, defendant testified in his own defense that he had been involved with Angela for seven years and the couple had been living together on a periodic basis. They had one son, Willie Jr. Defendant stated that he had used alcohol, marijuana, and crack cocaine on a regular basis. According to defendant, he and Angela spent the night prior to her death at his father's house. After getting off work at about 3:30 p.m. on 1 April 1992, defendant went home. Defendant's nephew arrived and took him to the store so he could cash his check. At that time, defendant bought beer and malt liquor.

Defendant further testified that upon returning to his residence from the store, he drank no less than four quarts of malt liquor, as well as a quantity of beer. Defendant thereafter went to the store with his sister's boyfriend to buy wine and more beer. During this period of time, he attempted to reach Angela by telephone, but was unsuccessful. Between the hours of 9:00 and 10:00 p.m., defendant's nephew took him to Angela's house where defendant waited for her to return. When Angela returned to the house between 11:00 p.m. and midnight, she and defendant began arguing about the way in which she was caring for their son. Defendant stated that Angela struck him and then they began to fight. After Angela left the house in a taxi, defendant walked to the home of a friend, Cliff Foster. Upon arriving at Foster's residence, defendant began drinking alcohol and smoking crack cocaine. Defendant called Angela's residence, but her mother would not allow her to come to the telephone. Defendant testified that he continued to smoke crack cocaine after this telephone call.

According to defendant, he left Foster's residence at approximately 4:00 a.m., and walked to Angela's house, carrying a knife that Foster had given him for protection. Upon arriving at her house, he broke the glass in the door, entered the house and began talking to Angela. Defendant remembered Angela coming towards him and trying to take the knife out of his hand but he did not remember stabbing Angela or Shemika. Defendant also stated that he did not remember assaulting Angela with a stick or kicking her. According to defendant, he did not recall anything except Simmons firing a gun, at which time he ran from the scene. After remaining in nearby woods during the day, defendant telephoned the Winston-Salem Police Department for the purpose of turning himself in to the authorities.

Clifton Foster testified that he and defendant smoked four rocks...