State v. Gallion
| Decision Date | 15 March 2022 |
| Docket Number | COA21-375 |
| Citation | 870 S.E.2d 681 |
| Parties | STATE of North Carolina, v. Timothy Robert GALLION. |
| Court | North Carolina Court of Appeals |
Attorney General Joshua H. Stein, by Special Deputy Attorney General Robert C. Montgomery and Special Deputy Attorney General Daniel P. O'Brien, for the State.
William D. Spence, Kinston, for Defendant-Appellant.
¶ 1 Defendant appeals from judgment after a jury convicted him of first degree murder, possession of a firearm by a felon, and driving while impaired. After careful review of the record, we find no error.
¶ 2 The State's evidence presented at trial tends to show the following: Defendant's wife, Ms. Gallion, testified that on 22 March 2017, Defendant made the following statement to her: "I'm going to kill your mother, I'm going to kill your sister, and I'm going to kill everybody that knows you, and then I'll kill you." Ms. Gallion further testified that on the same day Defendant communicated the threats, she took out a warrant for his arrest.
¶ 3 At around 3:46 p.m. that day, officers of the Buncombe County Sheriff's Department were dispatched to Defendant's home to arrest him. The officers attempted to contact Defendant or Ms. Gallion but could locate neither of them on the property. They observed through the window of a workshop on Defendant's property "a handful of bullets on a shelf."
¶ 4 Sergeant Nathan Ball ("Sergeant Ball") of the Buncombe County Sheriff's Office oversaw the department's Community Enforcement Team, which handles community complaints including warrant services. He testified his team responded to the call to Defendant's home. Upon Sergeant Ball learning from his team Defendant was not at the residence, he went to the nearby intersection of Whittemore Branch Road and Barnardsville Highway, where Defendant might cross if he were to return home. As he was talking with his colleague Captain Elkins regarding the matter, they heard a dispatch for the fire department regarding a structure fire on Dillingham Road.
¶ 5 Sergeant Ball headed to the area of the fire, as he knew Defendant "had a previous address on Dillingham Road." On his way there, Sergeant Ball saw someone getting into a green Dodge pickup truck, matching the description of Defendant's vehicle, parked beside Sheena's Restaurant. Sergeant Ball dispatched other members of his team to the location. The officers left Defendant's home, heading in the direction of the restaurant. Sergeant Ball knew Defendant was a convicted felon.
¶ 6 At around the same time that afternoon, Defendant went to the property of Tommy Carson ("Carson"), the uncle of Defendant's former wife, at 397 Dillingham Road where Carson's house is located and where Carson used to operate a grocery store. Carson testified Defendant approached and first asked him for beer or wine, but when Carson did not have these items, Defendant asked to borrow ten dollars. After Carson responded he did not have any money either, Defendant showed him his "bulletproof" jacket with a Buncombe County Sheriff's Office SWAT team patch affixed to an arm and a "9 millimeter Uzi" firearm.
¶ 7 Carson advised he was heading out but could pick up money for Defendant at the bank if Defendant wanted to follow him there. Defendant declined the offer telling Carson, "he had to go up the road to take care of some business." Carson witnessed Defendant get in his truck and go up the road. Carson drove away with Brooke Blagg ("Blagg") who lived on his property. Defendant ultimately left Carson's property shortly after Carson at 4:24 p.m. At 4:31 p.m. a call came into the fire department regarding a fire in Carson's building. Defendant stated in an interview with investigators on 23 March 2017 that he headed over to Sheena's Restaurant after leaving Carson's house. According to Defendant, he asked the owner of the restaurant for twenty dollars, then went home. He also admitted to drinking six beers and "maybe four" Johny Bootlegger spirited beverages on 22 March 2017.
¶ 8 Blagg saw Defendant on Carson's property on 22 March 2017 and testified she and Carson "left the store and [Defendant] went up to the church and turned around and came back down" to Carson's property. She confirmed she saw Defendant leave the store and drive towards the house of Bobby Pegg ("Pegg’ "), the victim. She added, "because right past the church [on Dillingham Road] is where [Defendant] had lived at with [Pegg]." "The church ... it's going in the direction" of Pegg's house.
¶ 9 Officers located Defendant traveling on Barnardsville Highway and followed him after he turned on Whittemore Branch Road. Defendant did not stop his vehicle when two police cars pursued him with blue lights and sirens activated.
¶ 10 Officers eventually stopped Defendant via a roadblock. They approached his vehicle with guns drawn and removed Defendant from the vehicle after he refused to show his hands. In Defendant's vehicle, officers found two firearms in plain view. The officers also observed "blood on the steering wheel, on a door, [and on] the driver's seat." Officers arrested Defendant at approximately 4:43 p.m. and took inventory of his truck. They recovered firearms including a Ruger 9-millimeter "shotgun" and a Cobray 9-millimeter pistol as well as three 9-millimeter magazines, one 9-millimeter flash suppressor, and 9-millimeter ammunition. The 9-millimeter ammunition included "silver-colored casings with the headstamp of FC LUGER 9 MM." Officers performed a pat down of Defendant and located a GPS monitoring device on his left ankle. They also "noticed a strong odor of alcohol" coming from Defendant's person. Defendant was transported to a detention center where he refused to perform an alcohol breath test; his blood was drawn for analysis pursuant to a search warrant.
¶ 11 Deputy Leslie Meade ("Deputy Meade") of the Buncombe County Sheriff's Department performed standardized field sobriety tests on Defendant. Deputy Meade testified Defendant showed six of six clues on the horizontal gaze nystagmus
("HGN") test, and seven of eight clues on the walk and turn test. Defendant refused to complete the one-legged stand test.
¶ 12 At approximately 2:00 p.m. the following day—23 March 2017—Pegg's niece, Summer Riddle ("Riddle") and his mother, Jeanette Pegg, arrived at Pegg's house on 665 Dillingham Road to check on him after they had not heard from him since 21 March 2017. Defendant's brother owned the house where Pegg lived, and Defendant had performed carpentry work and repairs on the house.
¶ 13 Pegg was last seen alive on 22 March 2017 at about 1:00 p.m. by his neighbor who witnessed Pegg standing in his driveway. Riddle and Jeanette Pegg found Pegg's deceased body sitting on the couch in the living room. Riddle testified the kitchen door was unlocked when she arrived at the house, and it was normal for Pegg to leave the house unlocked when he was home. Riddle and Jeanette Pegg called 911 within minutes of arriving on the scene. Law enforcement responded to the 911 call and initiated a homicide investigation. Officers found silver-colored shell casings with the headstamp "FC LUGER 9 MM," matching the description of the bullets found in Defendant's vehicle, around Pegg's body.
¶ 14 An autopsy revealed Pegg died from gunshot wounds to his head, although an exact date or time of death could not be determined from the examination. The autopsy report shows Pegg had three gunshot wounds to his head. Two of the wounds had "soot and stippling" around them, indicating the muzzle of the gun was close to Pegg when fired. The third wound did not have soot or stippling, indicating the gun was fired at an "indeterminate range" from the deceased.
¶ 15 On 29 January 2020, Defendant filed a pretrial motion to suppress any evidence seized during the search of his home address on the basis the search warrant affidavit "fails to implicate the premises," as required by N.C. Gen. Stat. § 15A-244, the North Carolina Constitution, and the United States Constitution. Defendant also moved to suppress evidence of GPS data on the grounds his statutory rights were violated when privileged information, namely GPS data of his movements, was orally provided by the North Carolina Department of Public Safety ("DPS") to law enforcement before a court order was issued. On 3 February 2020, the trial court heard Defendant's motion to suppress and orally announced its findings of facts and conclusions of law in open court. The trial court concluded there had been no substantial violation of Chapter 15A that warranted suppression and denied Defendant's motion.
¶ 16 A jury trial began on 3 February 2020 before the Honorable Carla Archie in Buncombe County Superior Court. Defendant admitted to having been previously convicted of three charges of driving while impaired, resulting in a conviction of habitual driving while impaired.
¶ 17 At trial, Alyssa Tinnin ("Tinnin") was tendered by the State as an expert in the field of forensic toxicology. Tinnin testified she conducted a chemical analysis on the blood
sample identified as that taken from Defendant. Tinnin opined Defendant's blood sample contained 0.17 grams of alcohol per 100 milliliters.
¶ 18 Elizabeth Wilson ("Wilson"), is a firearms examiner who, at the time of the hearing, was employed by the North Carolina State Crime Laboratory. Wilson was tendered as an expert in the area of firearms identification and examination. Wilson testified that she performs all tests on firearms based on reliable facts and data. She examined the Cobray 9-millimeter and Ruger 9-millimeter firearms seized from Defendant's vehicle. Wilson also did comparison examinations of the shell casings, bullets, and projectiles that were collected from the homicide crime scene. Based on the results of her examination, Wilson concluded that seven shell casings found around Pegg's’ body, the "caliber .38 class fired copper
jacket" fragment that was imbedded in wood at Pegg's home, the ...
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