State v. Franklin

• Decision Date: 26 July 1990
• Docket Number: No. 417A89,417A89
• Citation: 327 N.C. 162,393 S.E.2d 781
• Parties: STATE of North Carolina v. Roger Wayne FRANKLIN.
• Court: North Carolina Supreme Court

Page 781

393 S.E.2d 781

327 N.C. 162

STATE of North Carolina v. Roger Wayne FRANKLIN.

No. 417A89.

Supreme Court of North Carolina.

July 26, 1990.

Roger W. Smith and Melissa Hill, Raleigh, for defendant-appellant.

MEYER, Justice.

Defendant brings forward seven assignments of error with regard to the guilt-innocence phase of his trial. We have performed an exhaustive review of the record, briefs, and oral arguments of the parties, and we conclude that the trial court committed prejudicial error in permitting a witness for the State to testify about threats made by the defendant against an unidentified woman approximately three weeks before the victim's disappearance that were not demonstrated to be directed against the victim. We hold that this error entitles defendant to a new trial.

On 14 March 1988, defendant was indicted for the first-degree murder of Jean Marie Sherman. Defendant's first trial ended in a mistrial after the jury expressed its inability to reach a unanimous verdict. The case came on for a second trial on 24 April 1989 before Judge Robert H. Hobgood and was tried noncapitally. At the close of the State's case, defendant moved to dismiss the charge of first-degree murder and all lesser included offenses. Judge Hobgood denied the motion. Defendant then offered evidence and renewed his motion to dismiss at the close of all of the evidence. Again, his motion was denied. Presented with the options of guilty of first-degree murder, guilty of second-degree murder, and not guilty, the jury returned a verdict finding defendant guilty of the first-degree murder of Jean Sherman.

The assignments of error brought forward by defendant require this Court to engage in an extensive review of the evidence introduced at trial. For that reason, we endeavor to set out that evidence in some detail.

The State's evidence tended to show the following: In the spring of 1986, the victim, Jean Sherman, lived in a mobile home located near the county line between Wake and Franklin Counties with her fiance, Travis Kelly, and several members of his family. Around March of that year, Jean became pregnant with Travis' child. Travis' sister-in-law, Janet Kelly, testified that Jean and Travis were very excited about having a baby and that Jean never acted like she did not want to keep the child. In fact, Janet testified that Jean "wanted that child worse than anything." Yet, on 29 May, Jean underwent an abortion. She told the social worker that her reasons for obtaining an abortion were financial.

Meanwhile, defendant was completing a seven-year sentence for controlled substance violations and was in the custody of the North Carolina Department of Correction. Defendant was released on parole on 14 March 1986 and was given a job at a construction site by a family acquaintance, McLester Turner. On 24 April 1986, defendant was arrested and charged with felonious possession of cocaine. He was released on bond on that same day and returned to Wake County district court on 20 May 1986, where he waived a probable cause hearing.

During the month of May, defendant performed some work for McLester Turner and was paid for those services on 22 May 1986. After this initial work, defendant worked a part of one additional day in May for Turner. Turner testified that defendant arrived for work that morning "highly agitated, angry, mad." Turner talked to defendant in Turner's truck, and defendant told Turner that he was "messed up" and that he wanted Turner to take him for a ride so that he would not be seen in that condition should his parole officer arrive. Turner testified that defendant "was ranting and raving about a b---- that ripped his dope and money off." He stated that he "was going to kill the b---- that ripped him off, he was going to rip her, blow her d--- brains out, cut her." Turner further testified that defendant stated that the woman either stole $300.00 in drugs and $800.00 in cash, or vice versa.

Later that day, a woman arrived at the job site to pick up defendant. She was driving a rust-colored Monte Carlo automobile. Turner asked defendant if this was the woman who had ripped him off. Defendant laughed and said, "no, this was not his fine b----, this was just a slut he was riding around with." Defendant got into the car with the woman and rode away with her. This was the last time defendant worked for Turner.

Turner was unable to recall the exact date upon which the threats were made, but by referring to defendant's last paycheck, he was able to narrow the date of the threat down to a five-day period in May--between the dates of 24 May and 29 May 1986. Turner testified that he paid defendant for this last day of work by check on 7 June 1986, and he presented the check stub which evidenced that fact. He further testified that defendant's last day of work, the day of the threat, could have been as long as two weeks before 7 June and was at least a week and a half before 7 June.

The evidence presented does not clearly establish the date upon which defendant and the victim met. Janet Kelly testified that she did not know for sure when Jean and defendant started seeing each other, but to the best of her knowledge, Jean did not start seeing defendant until after her pregnancy was terminated on 29 May. Barbara Rose, Travis' mother, testified during defendant's first trial that the defendant "came by [the mobile home] every two or three weeks to get [Jean]" and that he "had picked Jean up a time or two before the 17th [of June]." This former testimony was utilized by the defense to impeach Mrs. Rose's testimony at the second trial that she did not recall ever having seen defendant before 17 June.

On 16 June 1986, defendant was again arrested for the felony of possessing fourteen grams of cocaine. He was released on bond that same day, and a probable cause hearing was scheduled for 1 July 1986. He did not appear for that hearing.

In the early morning hours of 17 June 1986, Janet Kelly heard a "real noisy car" and a knock on the door. She let Jean into the mobile home. Jean appeared to be intoxicated and was stumbling around and talking with a slur. The two women sat at the kitchen table and talked for about half an hour. Jean told Janet that "she had stolen a large amount of cocaine from a guy named Wayne" that night. Jean stated that she had given the cocaine to a girl named Kim Carnes and that Kim was going to sell it for her. She told Janet that in its uncut state, the cocaine was worth about $1,000. Jean then went to bed, lying down beside Travis on a mattress on the living room floor.

At around 9:30 a.m. on 17 June, Jean woke up and went to the store. When she returned, she told Janet that Wayne was coming over and that she was going to return the cocaine to him. After about an hour, a "candy apple red" car arrived and Jean jumped up, exclaiming, "there's Wayne." Jean went outside to talk to Wayne. She was wearing a black wraparound skirt and a black Harley Davidson tank top. Janet thought the car was a 1969 or early seventies model Chevrolet Nova or Chevelle. Janet later saw Jean and Wayne get into the car and drive away. Barbara Rose also testified that she saw Jean leave the mobile home with defendant on the morning of 17 June. She, too, described his car as a red Chevelle or Nova and recalled, as did Janet, that Jean was wearing a black skirt and black Harley Davidson tank top. Jean left her belongings, including her purse, at the mobile home. That was the last time she was seen alive.

On 22 June 1986, defendant was arrested for a third time and charged with the felony of possessing twenty-eight grams of cocaine. He was released on bond, and a probable cause hearing was scheduled for 9 July 1986. As was the case with the second arrest, defendant did not appear for the hearing. An order for defendant's arrest for failing to appear on these charges was issued on 11 July 1986.

Jean's mother had an agreement with her daughter that they would keep in touch with each other at least every ten days. Jean visited her mother on 13 June. When Mrs. Sherman did not hear from Jean by 23 June, she went to the mobile home where Jean was living with Travis and his family. She pulled into the driveway, saw someone in the doorway, and honked the horn. Travis came to the car. When Mrs. Sherman asked to speak to Jean, Travis said that she was not there and that he did not know where she was. On 26 June, Mrs. Sherman again returned to the mobile home. Travis then told her that his mother and Janet last saw Jean when she left the house with defendant in his red car.

On 30 June 1986, defendant drove into McLamb's Exxon in Fayetteville complaining that the car had engine trouble. The station attendant diagnosed the problem as being a spun bearing. Defendant stated that he could not afford the repair bill and offered to sell the car to the attendant. McLamb agreed to buy the car, and the two executed a title transfer on the spot.

On 7 July 1986, Mrs. Sherman went to the Franklin County Sheriff's Department and filed a missing person's report on her daughter. Later that summer, Mrs. Sherman visited defendant's mother, and shortly thereafter, she received a telephone call from defendant. She was asleep when he called and asked him to hold on for a moment. Defendant told Mrs. Sherman that "he wasn't going to hold because he thought [she] had the phone bugged or tapped or something" and hung up. Sometime later, he called back. Mrs. Sherman asked defendant if he knew her daughter, and he replied that he did. She asked him to have Jean call her, and defendant explained that Jean was not with him because he had brought her back to the mobile home and left her there. Mrs. Sherman again asked defendant to have Jean call her, at which time defendant told her "to get the police off his back."

On 19 August 1986, a police officer in Daytona Beach, Florida, saw defendant and recognized him from a description he had received of a...