State v. Jordan

• Decision Date: 12 March 1993
• Docket Number: No. 555A91,555A91
• Citation: 333 N.C. 431,426 S.E.2d 692
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Terry Lynn JORDAN.

Page 692

426 S.E.2d 692

333 N.C. 431

STATE of North Carolina v. Terry Lynn JORDAN.

No. 555A91.

Supreme Court of North Carolina.

March 12, 1993.

Appeal as of right by defendant pursuant to N.C.G.S. § 7A-27(a) from a judgment imposing a life sentence entered by Martin (Lester P., Jr.), J., at the 21 August 1991 Criminal Session of Superior Court, Guilford County, upon a jury verdict finding defendant guilty of first-degree murder. Heard in the Supreme Court 14 January 1993.

Michael F. Easley, Atty. Gen. by Mary Jill Ledford, Assistant Atty. Gen., Raleigh, for the State.

Nora Henry Hargrove, Wilmington, for defendant-appellant.

MEYER, Justice.

Defendant was indicted by a Guilford County grand jury on 14 January 1991 for the murder of Kimella Denise Hewett. Defendant was tried capitally in Superior Court, Guilford County, in August 1991, and the jury returned a verdict finding defendant guilty of first-degree murder. Following a sentencing proceeding conducted pursuant to N.C.G.S. § 15A-2000, the jury recommended a sentence of life imprisonment. In accordance with the jury's recommendation, Judge Martin sentenced defendant to life imprisonment. Defendant appeals to this Court as of right.

Evidence presented by the State at defendant's trial tended to show the following facts and circumstances. In the early morning hours of 10 January 1991, Patrick Little spotted Kimella Denise Hewett lying on the sidewalk near the corner of Windley and Hoover Streets in front of a house owned by Robert Fair. Fair testified that he heard three gunshots coming from the Hoover Street side of his house sometime before 2:00 a.m. Little called the police, and Officer Bob Morris with the High Point Police Department arrived at the scene at 2:10 a.m. Morris found Hewett lying face down on the sidewalk. Officer Morris saw on the ground two spent .25-caliber cartridges and one .25-caliber cartridge that had not yet been fired.

Hewett, who was still alive, was taken to the High Point Memorial Hospital. The victim died at 9:45 a.m. on 10 January 1991, almost eight hours after she was found. An autopsy of the victim's body revealed that the victim had five gunshot entrance wounds, all to the back of the body. Three gunshot wounds were to the victim's back, and two were to the back of the victim's head. The pathologist who performed the autopsy testified that, in her opinion, the cause of death was multiple gunshot wounds.

At the time the victim died, Willie Brooks was the victim's boyfriend and had been dating her for about three months. Prior to that, the victim had been dating the defendant. In November of 1990, Brooks accompanied the victim to court in High Point regarding assault charges filed by the victim against defendant. The case was continued to 14 January 1991. After the November 1990 court appearance, defendant called the victim. Brooks answered the phone, and when defendant asked to speak to the victim, Brooks asked defendant why he would not leave the victim alone. Defendant responded to Brooks, saying, "Let me tell you something. If I can't have Kim, you can't have her. Before I let you have her I'll kill her." Brooks then hung up the phone.

About two or three months prior to the killing, defendant called a co-worker, John Flowers, and asked to borrow his gun. Flowers told defendant he could not use it. Approximately a month before the killing, defendant told Flowers that he and the victim were "having a little difficulty, problems and stuff." Defendant told Flowers that the victim had a new boyfriend and that he was "kind of upset." Defendant told Flowers that if he (defendant) could not have the victim, "nobody else [would]." Defendant said that "he would kill her or something like that."

A few weeks before the killing, defendant showed Michael Lorenzo Brown a pistol and asked Brown where he could get some bullets. Brown told defendant that he could get bullets at Rose's or K Mart. Two weeks prior to the killing, defendant showed Christopher Keith Archie, a co-worker and a relative by marriage, a gun that defendant said he found at a nightclub. Defendant asked Archie how to kill someone, and Archie responded that he did not know. Defendant told Archie that he was going to go to court and did not want to go to jail. Defendant told Archie that he was going to kill someone, but Archie did not think defendant was talking about the victim.

On 27 December 1990, defendant purchased CCI .25-caliber handgun ammunition from the K Mart on North Main Street in High Point. Tina Mixon, the clerk in the sporting and automotives department who sold defendant the ammunition, took special notice of defendant because she did not often sell handgun ammunition.

On the evening of 9 January 1991, Brooks and the victim had dinner together and went to the home of Brooks' stepmother, who lived approximately three blocks from the victim. At approximately 1:15 a.m. on the morning of 10 January 1991, the victim left to return home, arriving a short time later. Defendant was waiting outside of her house. He pulled out his gun, and the victim said, "Oh, God, what are you going to do?" Defendant responded that he wanted to talk to her. She said "Okay," and they began talking. Defendant asked her where she had been and asked her if she had been with another man. The victim responded in the affirmative, and they began arguing. Defendant attempted to get the victim to go to his car, but the victim said, "If you're going to kill me, you're going to have to do it here." The victim turned around and walked away. Defendant fired the gun, hitting the victim in the back. The victim fell to the ground, and defendant aimed the gun at her head and shot the victim four more times.

Defendant arrived at work later that morning at approximately 3:00 a.m. Defendant was four hours late and appeared nervous. Defendant asked Alvin Jessie Thompson, Jr., a co-worker, numerous questions. Defendant asked Thompson, "How do you get rid of powder burns?" Defendant inquired of Thompson, "If you shot somebody from about five to ten feet, could they--if they didn't die, could they testify against you?" Defendant asked Thompson, "If you shot somebody twice in the head and twice in the back, would they live?" Defendant continued questioning Thompson, saying, "If I was standing here, and somebody was standing there, and you take and shoot somebody like [making a motion as if pointing a gun].... If you shoot somebody and you're standing-- ... pow, pow, pow, would they live or could they testify against you?"

Defendant presented no evidence at the guilt phase of the trial.

Additional facts will be discussed as necessary for the proper disposition of the issues raised by defendant.

By his first assignment of error, defendant contends that the trial court erred by limiting defendant's cross-examination of State's witness Hairston about prior bad acts to questions about prior convictions under N.C.G.S. § 8C-1, Rule 609. Brian William Hairston, III, testified for the State regarding conversations he had with defendant while he and defendant were in jail. Hairston testified that defendant told him that he and his girlfriend (the victim) were "having a lot of problems before he had did the incident." Defendant told Hairston that the victim had filed some assault charges against him, that he (defendant) had been following her around the city, and that she "was messing around with another guy or something." Hairston testified that defendant was "getting upset about it, and he tried to talk to her about it and she had refused to listen to him so he knocked her off.... He knocked her off, killed her.... Shot her in the head."

On cross-examination, defense counsel sought to discredit Hairston's testimony by questioning him about prior specific instances of conduct, which defendant argues was probative of truthfulness.

Q. Let's go back to December. In December you forged a check from the account of Robbie Ingram, didn't you?

A. Yes, I did.

....

Q. And when you were doing that you knew what you were doing, didn't you?

A. Yes, I did.

Q. You knew it was wrong, didn't you?

A. Yes.

Q. You didn't care about Mr. Ingram, did you?

A. I didn't know Mr. Ingram.

At this point, the prosecutor objected, and the trial court sustained the objection. A bench conference was held, and defense counsel argued that the questioning was permissible pursuant to Rule 608(b) of the North Carolina Rules of Evidence. The prosecutor argued that the cross-examination should be limited to prior criminal convictions pursuant to Rule 609 of the North Carolina Rules of Evidence. The trial court agreed and ruled that defense counsel would be limited to questioning Hairston about prior convictions under Rule 609.

A voir dire examination of Hairston was conducted by the prosecution, wherein Hairston stated that he had been convicted of felony larceny, credit card theft, thirteen counts of forgery and uttering, and driving without a license. Following this voir dire examination, defense counsel made an offer of proof. When questioned, Hairston stated that his purpose for coming forward about what defendant had told him was "justice." Hairston admitted that when he committed forgery, credit card theft, and larceny, justice was not his goal.

The jury returned, and defense counsel resumed its cross-examination of Hairston.

Defendant contends that the trial court erred by limiting the cross-examination of Hairston about his prior acts to cross-examination concerning prior convictions under Rule 609 and thereby prevented defense counsel from questioning Hairston about his "recent pursuit of justice and his facility with deception" under Rule 608(b). We disagree. Rule 608(b) reads, in pertinent part:

(b) Specific instances of conduct.--Specific instances of the conduct of a witness, for the purpose of attacking or supporting his credibility, other than conviction of crime as provided in Rule 609, may not be...