State v. Howell, 562A94

• Citation: 343 N.C. 229,470 S.E.2d 38
• Decision Date: 10 May 1996
• Docket Number: No. 562A94,562A94
• Parties: STATE of North Carolina v. Eddie Loyd HOWELL.
• Court: North Carolina Supreme Court

Page 38

470 S.E.2d 38

343 N.C. 229

STATE of North Carolina v. Eddie Loyd HOWELL.

No. 562A94.

Supreme Court of North Carolina.

May 10, 1996.

Michael F. Easley, Attorney General by Barry S. McNeill, Special Deputy Attorney General, and Valerie B. Spalding, Assistant Attorney General, for the State.

Malcolm Ray Hunter, Jr., Appellate Defender by Benjamin Sendor, Assistant Appellate Defender, for defendant-appellant.

WHICHARD, Justice.

Defendant was tried capitally for the first-degree murder of Mary Belle Adams. The jury found him guilty of first-degree murder on the theories of premeditation and deliberation and torture with malice. Following a capital sentencing proceeding pursuant to N.C.G.S. § 15A-2000, the jury recommended that defendant be sentenced to death, and the trial court sentenced him accordingly.

The victim was a twenty-nine-year-old black prostitute from Hickory whose body was found burning in a Dumpster in eastern Burke County at approximately 4:00 a.m. on 6 June 1992. The body was burned and charred, and fire had destroyed a considerable portion of it. There was duct tape around the victim's neck and part of her face, including the mouth and nose area. A sock had been stuffed deeply down her throat and a cord tied around her neck. A shirt had been stuffed into the victim's vagina, and there was a one-inch-deep laceration at the back of the vagina caused by a sharp object such as a knife. Hemorrhaging along this wound indicated that the victim's heart was still beating when the wound was inflicted. Dr. John Butts, Chief Medical Examiner for the State, testified that the cause of death was asphyxiation due to ligature strangulation from the cord around the victim's neck.

Defendant, a thirty-four-year-old white male, resided in a converted school bus on the premises of a junkyard in Icard, North Carolina. The junkyard was located approximately nine miles from the Dumpster where the victim was found. The owner, Ralph Maynard, employed defendant as a night watchman in lieu of having defendant pay rent. In June 1992, law enforcement officers began questioning defendant about Adams' murder. Defendant left North Carolina several weeks later. He was subsequently arrested in Needles, California, on 20 July 1992.

The State's evidence connecting defendant to the murder tended to show the following:

Janet Farabee, a black prostitute in Hickory and a longtime friend of the victim's, testified that several months before the murder she had an encounter with a white male whom she believed was defendant. The man picked her up late one evening, and they agreed that he would pay her sixty dollars to have sex with him. The man drove Farabee to a junkyard in Icard. Inside, they proceeded to a bus, entered it, and sat at a table. The lighting was sufficient for her to see the man, and she identified him as defendant. The man requested that she engage in anal sex with him and shave her pubic area, but she refused. They had oral sex and intercourse, and the man then left for several minutes. When he returned, he tied Farabee's hands with wire and forced her to have anal sex with him. Afterwards, he untied her and told her to get dressed. Farabee asked if the man was going to pay her. The man folded a twenty-dollar bill and forced it into Farabee's vagina, pushing it far inside her. He then returned her to Hickory and threatened to kill her if she said anything about their encounter.

In September 1993, Farabee guided a prosecutor and two law enforcement officers to the junkyard and the bus where she had been assaulted. It was defendant's bus. The officers did not give Farabee any directions or coach her.

Donna Prewitt, a clerk at Enola Grocery in Burke County, testified that on 6 June 1992, a man entered the store and appeared very nervous. He was a white male, approximately thirty-five years old, with a slight beard. The man bought a soda and then left it on the counter. Prewitt called out to him, and he returned for the soda. He then asked if she had heard about a body being found in a Dumpster. The man's hands shook the entire time he was talking. He left the store shortly thereafter. In July, Prewitt was shown a photographic lineup in which she identified a photograph of defendant as depicting the man who had been in the store. She also so identified defendant in court.

David Reeves, an inmate with defendant in the Burke County jail, testified that he asked defendant why he had killed Adams. In response, defendant explained that Adams had tried to rob him. He had smoked crack and fallen asleep, and when he awoke, Adams was going through his pockets. He started beating her, and the next thing he knew she was dead.

Ralph Maynard testified that defendant became nervous after law enforcement officers began questioning him about the murder. Defendant told Maynard he "could not put up with it" and was leaving for Oklahoma to visit his parents. Defendant told David Moore, who worked for Maynard, that if he did not return to North Carolina, Moore could have the bus and its contents. Maynard further testified that shortly after defendant left, Moore received a telephone call from defendant requesting that Moore wire him two hundred dollars in California.

Testimony from several FBI forensics experts tended to show that cord discovered in defendant's bus was similar to the cord used to bind the victim. Blood and hair samples found on defendant's sofa matched those of the victim, as did blood found on defendant's beanbag chair and sofa cushions. A roll of duct tape also was discovered in the bus, although it was not the roll used on the victim.

By his first assignment of error, defendant contends that Farabee's testimony was not credible, that the danger of unfair prejudice substantially outweighed the probative value, and that the trial court erred in admitting it. Defendant's attack on Farabee's credibility is based in part on her in-court identification of defendant. At trial, during an in-court photographic lineup, Donna Prewitt identified photograph number three as defendant's photograph. Farabee was in the courtroom during this identification. Thereafter, Farabee also identified the man in photograph number three as defendant. However, as the photographic lineup Farabee was shown did not include a picture of defendant, her selection was incorrect. Defendant argues that Farabee's mistaken identification was a result of her effort to "copycat" Prewitt. Because this identification seriously undermined Farabee's credibility, defendant contends her testimony should have been excluded as unreliable and unduly prejudicial under Rule 403 of the North Carolina Rules of Evidence. We disagree.

The trial court conducted a hearing in the absence of the jury on the admissibility of Farabee's testimony. With regard to her identification testimony, it ruled that there were no pretrial identification procedures which were unnecessarily suggestive or conducive to irreparable mistaken identification so as to violate due process and that her in-court identification of defendant was therefore admissible. Defendant does not contest this specific ruling, and we are satisfied from the record that the trial court did not err in allowing Farabee's in-court identification. Once such evidence is deemed admissible, the credibility of a witness' identification is a matter for the jury's determination. State v. Paige, 316 N.C. 630, 653, 343 S.E.2d 848, 862 (1986). Defense counsel fully explored the credibility of Farabee's testimony during cross-examination of the witness and in closing arguments. The jury heard the identification testimony, considered the arguments on misidentification, and made its own credibility determination. We conclude that allowing the testimony was not an abuse of the trial court's discretion under Rule 403. See State v. Mason, 315 N.C. 724, 731, 340 S.E.2d 430, 434-35 (1986).

Defendant further contends that Farabee's testimony concerning her encounter with defendant was inadmissible under Rules 403 and 404(b) because the State's purpose in introducing the testimony was to show defendant's criminal propensity and because there were insufficient similarities between her experience and the evidence regarding Adams' murder. Again, we disagree.

Rule 404(b) provides:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake, entrapment or accident.

N.C.G.S. § 8C-1, Rule 404(b) (1992). Hence, evidence is admissible under this rule so long as it is relevant for some purpose other than to show that defendant has the propensity for the type of conduct for which he is being tried. State v. Bagley, 321 N.C. 201, 206, 362 S.E.2d 244, 247 (1987), cert. denied, 485 U.S. 1036, 108 S.Ct. 1598, 99 L.Ed.2d 912 (1988). The test for determining whether evidence of crimes, wrongs, or acts other than those specifically at issue is admissible is whether the incidents are sufficiently similar and not so remote in time that they are more probative than prejudicial under the Rule 403 balancing test. State v. Boyd, 321 N.C. 574, 577, 364 S.E.2d 118, 119 (1988). The similarities between the incidents need not rise to the level of the unique and bizarre but simply must tend to support a reasonable inference that the same person committed both the earlier and the later acts. State v. Stager, 329 N.C. 278, 304, 406 S.E.2d 876, 891 (1991).

The evidence tended to show that both Farabee and the victim here were black prostitutes in Hickory. The victim was last seen near the site where defendant had picked up Farabee. Both women were taken to defendant's bus at night. Defendant bound both, one with wire, the other with duct tape. Defendant inserted a twenty-dollar bill into...