State v. Garner

Decision Date25 June 1992
Docket NumberNo. 263A91,263A91
Citation417 S.E.2d 502,331 N.C. 491
CourtNorth Carolina Supreme Court
PartiesSTATE of North Carolina v. Daniel Thomas GARNER.

Lacy H. Thornburg, Atty. Gen. by G. Lawrence Reeves, Jr., Asst. Atty. Gen., Raleigh, for State.

Malcolm Ray Hunter, Jr., Appellate Defender by Constance H. Everhart, Asst. Appellate Defender, Raleigh, for defendant-appellant.

LAKE, Justice.

The defendant was indicted on 23 January 1989 by a Cumberland County Grand Jury on the offenses of robbery with a dangerous weapon and the first-degree murder of Eva Gail Harrelson. Defendant pled not guilty. He was tried capitally to a jury at the 15 October 1990 Criminal Session of Superior Court, Cumberland County. The jury found the defendant guilty as charged of armed robbery and of first-degree murder on theories of both premeditation and deliberation and felony murder. Following a separate sentencing hearing, the jury recommended a sentence of life imprisonment for the murder conviction. In judgments entered 14 November 1990, Judge Brewer sentenced defendant to consecutive terms of life imprisonment for the murder and twenty-five years imprisonment for the armed robbery. Defendant appealed his murder conviction to this Court as a matter of right, and on 9 October 1991 this Court allowed his motion to bypass the North Carolina Court of Appeals with regard to his appeal of the armed robbery conviction.

At trial, the State presented evidence tending to show that Eva Gail Harrelson died on the evening of 27 October 1988 as a result of two gunshot wounds to the head which she sustained while working as a cashier at the BTO Food Store No. 1, located on Ramsey Street in Fayetteville. Ms. Harrelson had been employed by BTO Food Stores for about five months and knew the defendant as a regular customer of the store.

Sometime after midnight on 28 October 1988 two high school students stopped by the store and observed, through the open door of a storage room behind the checkout counter, Ms. Harrelson's body lying face down in a pool of blood. The students called the police, and officers arrived within five to six minutes. Crime scene technicians conducted a search which produced several pieces of evidence, including two spent Federal .25 caliber shell casings near Eva Harrelson's body. Various items had been knocked off the counter and scattered about behind the cash register, which was jammed and reading "error." All the money was gone from the cash register except some change. The store manager testified that she had been acquainted with defendant for over a year and that he was a regular customer of the BTO store.

The State's evidence further showed that the defendant and one Brad Dickens met on 15 October 1988 and became friends who would go out and drink together. Dickens testified that during the period from 15 October until 28 October when the murder occurred, he had learned the defendant lived about two blocks behind the BTO store and that he had seen the defendant on a few occasions in possession of a small caliber automatic handgun, which Dickens identified at trial, the same being State's Exhibit 15.

Dickens also testified at trial that he met the defendant after work around 10:00 p.m. on 10 November 1988, and went with him to defendant's apartment and drank a few beers. Dickens testified that after they left the apartment, defendant told him that he had gone into the BTO store with a gun and told the clerk to give him the money. She had responded, "Danny, stop playing around. Put the gun away." Whereupon defendant said, "Listen bitch, I'm not playing." Defendant then took the money and shot her. Defendant also told Dickens that "they wouldn't suspect him because he lived right there and he came in all the time and they knew him."

On cross-examination, Dickens testified that, on the same night, 10 November 1988, after he and defendant had been riding around and drinking beer, they broke into a house on Lakecrest Drive. Dickens was charged with first-degree burglary in connection with that break-in. His testimony against defendant in the present case was pursuant to a proposed plea-bargain.

The State further offered the testimony of a driver for AAA Checker Cab Company, William Jackson, who testified that on 18 November 1988, some three weeks after the Harrelson murder, he was called to pick up a fare at the Express Stop on Ramsey Street. There he saw defendant get out of a white car driven by a young woman later identified as Sherri Faulkner. Jackson took defendant as he requested through Linden in rural Cumberland County and turned onto a dirt road where defendant asked to be let out of the cab. Jackson then observed the white car approaching, driven by the same woman he had seen earlier. The defendant got out of the cab, seemed to be searching for his wallet, and then suddenly shot Jackson twice in the side and once in the back of the head.

Jackson slumped over and pretended to be dying. When he heard defendant talking to the woman, he sat up and began driving away. Faulkner and the defendant chased him in Faulkner's car until the cab driver slammed on the brakes, causing Faulkner to hit him and swerve into an embankment. Jackson then escaped and sought help.

On that same evening of 18 November 1988, following discovery of the abandoned car rented at that time to defendant and earlier driven by Faulkner, and armed with information that defendant was there, law enforcement officers went to the residence of Dana Adams and Angela Weems on Glen Reilly Road and were given permission to enter and search. They found defendant therein with Sherri Faulkner and arrested both. Among the items of evidence obtained at this location were a bank bag like the one missing from the BTO; a box of .25 caliber ammunition; the defendant's jacket, in the pockets of which were the keys to the rental car; and a .25 caliber Beretta handgun which the State's evidence established to be the weapon used in the BTO killing.

On 18 November 1988, subsequent to the arrest of defendant and recovery of the .25 caliber Beretta pistol, law enforcement officers obtained a warrant to search the defendant's residence. This search warrant was issued by a magistrate upon a finding of probable cause pursuant to: (1) an application therefor identifying the crime as the homicide of Eva Gail Harrelson on October 28, 1988 by Daniel Thomas Garner, the premises to be searched as 129 Treetop Dr., Apt. A, occupied by Daniel T. Garner; and (2) a probable cause affidavit by the investigating officers listing articles which they believed would be found therein, including .25 automatic ammunition, and giving a description of evidence to be seized which included ".25 caliber ammunition to analyze against spent shell casings and projectiles recovered from homicide." The inventory of property seized as a result of the search of said residence included among eleven items the following: "P. Beretta Box showing model 950BS, serial number BR88945V from Jim's Pawn Shop; receipt from Jim's Pawn Shop showing a purchase of a Beretta PPGGG Model 950BS, SN#BR88945V on 20 Dec. 86; five F.C., .25 auto bullets."

As a result of this seizure law enforcement officers went to Jim's Pawnshop in Fayetteville on 18 November 1988 and there obtained another copy of the Beretta pistol purchase receipt and a second document purporting to be defendant's Alcohol, Tobacco and Firearms application to purchase this pistol. Also on this date the State's firearms identification expert, S.B.I. Lab Technician, R.N. Marrs, concluded and communicated to Cumberland law enforcement officers that the spent casings found at the scene of the Jackson shooting and at the scene of the Harrelson homicide were fired from the same gun. However, contrary to a statement in the probable cause affidavit, the pistol taken from defendant's coat, when he was earlier arrested on 18 November at another location, was not delivered to the S.B.I. in Raleigh until 21 November, three days later. Thus, Agent Marrs had no firearm available for ballistics comparison on 18 November and was unable to say on 18 November, the date of the search warrant, that the pistol seized at defendant's arrest, or any specific .25 caliber pistol, was the gun used in both crimes. The probable cause affidavit supporting the search warrant was thus incorrect to this extent.

Prior to trial, the defendant moved to suppress all evidence obtained "as a direct or indirect result" of the search of his residence on the basis of the Fourth and Fourteenth Amendments to the United States Constitution and Article I, Sections 19, 20 and 23 of the North Carolina Constitution. This motion thus included both the primary evidence (the gun box and the Jim's Pawnshop purchase receipt obtained at defendant's residence) as well as the derivative evidence (a copy or duplicate of said receipt and the Bureau of Alcohol, Tobacco and Firearms records of the purchase by the defendant) obtained by the officers from Jim's Pawnshop, the gun merchant.

In its pretrial hearing of defendant's suppression motion relating to the items seized from his residence, the trial court heard evidence, made a statement of principles of law affecting the "inevitable discovery" exception under Federal Constitutional cases, citing principally Nix v. Williams, 467 U.S. 431, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984) made findings of fact and conclusions of law, and entered orders allowing the motion and excluding from evidence all items obtained directly from defendant's residence. The trial court, however, excepted from the orders the duplicate purchase receipt and the Bureau of Alcohol, Tobacco and Firearms (hereinafter ATF) records later obtained by the officers from the pawnshop itself, on the basis of the "inevitable discovery" doctrine.

The trial court allowed the motion as to the direct or primary evidence taken from defendant's residence, on the premise that the search...

To continue reading

Request your trial
46 cases
  • State v. Abraham
    • United States
    • North Carolina Supreme Court
    • December 9, 1994
    ...act and the current offenses were not sufficiently similar. We disagree. This Court recently addressed a like issue in State v. Garner, 331 N.C. 491, 417 S.E.2d 502 (1992). In that case the defendant was tried for armed robbery and first-degree murder of Eva Harrelson. The State sought to a......
  • State v. Diaz
    • United States
    • Connecticut Supreme Court
    • July 20, 1993
    ...211, 784 P.2d 30 (1989) (engaging in deferential review despite retaining the more restrictive Aguilar-Spinelli test); State v. Garner, 331 N.C. 491, 417 S.E.2d 502 (1992); State v. Ennen, 496 N.W.2d 46 (N.D.1993); State v. George, 45 Ohio St.3d 325, 544 N.E.2d 640 (1989); Langham v. State,......
  • State v. Jackson
    • United States
    • Wisconsin Supreme Court
    • July 1, 2016
    ...other legal, independent means, and it fails to do so, the doctrine is not applied and the evidence is suppressed.” State v. Garner, 331 N.C. 491, 417 S.E.2d 502, 511 (1992). ¶ 72 In declining to impose a good faith requirement in connection with inevitable discovery, we emphasize that the ......
  • State v. Flippo
    • United States
    • West Virginia Supreme Court
    • November 6, 2002
    ...195, 459 A.2d 1143, 1146 (1983); People v. Turriago, 90 N.Y.2d 77, 659 N.Y.S.2d 183, 188, 681 N.E.2d 350 (1997); State v. Garner, 331 N.C. 491, 417 S.E.2d 502, 508 (1992); State v. Johnson, 531 N.W.2d 275, 280 (N.D.1995); State v. Perkins, 18 Ohio St.3d 193, 480 N.E.2d 763, 766-767 (1985); ......
  • Request a trial to view additional results
3 books & journal articles
  • Bark with no bite: how the inevitable discovery rule is undermining the Supreme Court's decision in Arizona v. Gant.
    • United States
    • Journal of Criminal Law and Criminology Vol. 101 No. 1, January 2011
    • January 1, 2011
    ...2000) (seemingly applying clear and convincing evidence standard, although also discussing preponderance standard); State v. Garner, 417 S.E.2d 502, 512 (N.C. 1992) (Frye, J., concurring) (criticizing majority's rule that inevitable discovery must be proved by preponderance of evidence, and......
    • United States
    • Carolina Academic Press Understanding Criminal Procedure, Volume One: Investigation (CAP) (2017) Title Chapter 20 Fourth Amendment
    • Invalid date
    ...the state constitution, Smith v. State, 948 P.2d 473 (Alaska 1997) (requiring proof by "clear and convincing" standard); State v. Garner, 417 S.E.2d 502 (N.C. 1992) (id.); Commonwealth v. O'Connor, 546 N.E.2d 336 (Mass. 1989) (applying a "certain as a practical matter" standard); State v. W......
  • § 20.07 "Fruit of the Poisonous Tree" Doctrine
    • United States
    • Carolina Academic Press Understanding Criminal Procedure, Volume One: Investigation (CAP) (2021) Title Chapter 20 Fourth Amendment
    • Invalid date
    ...the state constitution, Smith v. State, 948 P.2d 473 (Alaska 1997) (requiring proof by "clear and convincing" standard); State v. Garner, 417 S.E.2d 502 (N.C. 1992) (id.); Commonwealth v. O'Connor, 546 N.E.2d 336 (Mass. 1989) (applying a "certain as a practical matter" standard); State v. W......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT