State v. Levan, 234A88

• Citation: 326 N.C. 155,388 S.E.2d 429
• Decision Date: 07 February 1990
• Docket Number: No. 234A88,234A88
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. James Ira LEVAN.

Page 429

388 S.E.2d 429

326 N.C. 155

STATE of North Carolina v. James Ira LEVAN.

No. 234A88.

Supreme Court of North Carolina.

Feb. 7, 1990.

Appeal of right by defendant pursuant to N.C.G.S. § 7A-27(a) from judgment imposing sentence of life imprisonment entered by Owens, J., at the 22 February 1988 Criminal Session of Superior Court, Burke County, upon a jury verdict of guilty of murder in the first degree. Heard in the Supreme Court 11 December 1989.

Lacy H. Thornburg, Atty. Gen. by John H. Watters, Asst. Atty. Gen., Raleigh, for the State.

Malcolm Ray Hunter, Jr., Appellate Defender by Daniel R. Pollitt, Asst. Appellate Defender, Raleigh, for defendant-appellant.

MARTIN, Justice.

Defendant was convicted of murder in the first degree of Charles Jennings Feimster and sentenced to life in prison. Our examination of the five issues raised by defendant on his appeal reveals no prejudicial error.

Briefly, the facts show that in the spring of 1986, defendant James Ira Levan was in the business of selling cocaine in and around Statesville, North Carolina, where he also resided. At approximately 11:30 p.m. on Friday evening, 25 April 1986, defendant arrived at the home of Terry Kurley for the purpose of selling Kurley a gram of cocaine. Kurley went into his house to test the cocaine while defendant waited outside in his car. Kurley returned to the car and announced that he was dissatisfied with the quality of the cocaine. Defendant and Kurley argued and defendant angrily left Kurley's residence. After the defendant had left the premises, Kurley told his wife, Patricia Kurley Poore, that defendant had accused Kurley of "cutting" the cocaine while out of defendant's sight and that defendant had stated that Kurley was going to "pay for it."

During April of 1986, the victim, Charles Jennings Feimster, worked as a bouncer at a local gambling club in the Statesville area and was also known in the community as an enforcer who collected drug debts for defendant. Sometime between 11:30 p.m. and midnight on the evening of 25 April 1986, the victim called his wife, Susan Feimster Dugan, at work and told her he was going to help a friend before coming home and not to wait up for him. On the following day, his wife checked their answering machine and found a message from defendant stating, "Chuck, this is Jim, I have been burnt in a coke deal and I need your help." Testimony at trial indicated that defendant had contacted Feimster, the victim, and told him that he could keep any money he could collect from Kurley as a result of a failed drug deal.

Shortly after defendant had angrily left Terry Kurley's house, the victim Feimster appeared in Kurley's driveway. Taking a knife and a Doberman puppy with him, Kurley went outside to speak with Feimster, but came back to the front door to tell his wife to call the police. As Kurley's wife was calling the police, she heard a shot and ran to the door. From there, she saw her husband lying face down on the ground beside the porch and saw Charles Feimster running for his car. Terry Kurley died from a gunshot wound to the head.

Sometime between 12:45 a.m. and 1:00 a.m., Feimster returned to his home and told his wife that defendant had sent him to talk to an individual. He told her the individual had been armed with a sword and had a Doberman and that Feimster had reflexively shot the man because he thought the man had made a movement to go for a gun. Feimster told his wife he was going to call a friend, witness Willie John Campbell, to help him make arrangements to leave town. Before leaving, Feimster telephoned defendant and asked him to remove the license plates from his car and then to have it burned.

Witness Campbell later testified that Feimster called him sometime between 1:00 a.m. and 1:30 a.m. on 26 April 1986. Campbell testified that he then went to Feimster's house, drove Feimster to Charlotte and registered Feimster at a local motel there. When requested by Feimster to provide an alibi for him for the entire evening, Campbell refused.

While at the motel in Charlotte, Feimster arranged for another friend, witness Robert Smith, to pick up some personal items from Feimster's wife and deliver them to him in Charlotte. Before leaving Statesville, Smith stopped at defendant's house and received approximately $400.00 from the defendant to deliver to Feimster. Defendant also instructed Smith to take the victim, Feimster, as far south as he could. Ultimately, Smith and Feimster went to Greenville, South Carolina, where Feimster checked into another motel. Smith then returned to Statesville. While at the motel in South Carolina, Feimster contacted his brother, witness Calvin Feimster, and told him initially that he had not killed Kurley. Later, Feimster told his brother that he had shot Kurley while collecting money for a drug debt but that the shooting was in self-defense.

In April of 1986, Steve Wooten was employed by defendant in a number of capacities, including enforcer, arsonist, bodyguard, driver, and drug dealer. At trial, Wooten testified that early in the morning of 26 April 1986 he was contacted by the defendant and asked to burn Feimster's car. On Sunday, 27 April 1986, defendant came to Wooten's home and told him that the two of them would need to go to South Carolina to pick up Feimster. Armed with a .380 automatic pistol and a .22 caliber revolver, the two men drove in Wooten's van to Greenville, South Carolina, where they met the victim in his motel room. Defendant told the victim that it would not be long before the police caught up with him in Greenville for the murder of Kurley and suggested that Feimster come with defendant and Wooten to defendant's cabin in the North Carolina mountains. After Feimster elected to go back to North Carolina with defendant, defendant told him not to call anyone.

Defendant, Wooten, and the victim left South Carolina and went back north on I-85, later switching to back roads to avoid detection. Outside of Morganton, North Carolina, on Highway 18, Wooten noticed the van was running out of gas. Fearing detection, Feimster did not want to go into town to get gas because the police were looking for him and he was afraid he would be identified. Consequently, defendant and the victim got out of the van to wait by the roadside until Wooten returned with the gas.

When Wooten returned, he blew his horn and defendant emerged from the woods alone. Coming around to the driver's side, defendant stated, "that is a heavy S.O.B. to move. Go down and move him further into the woods." Wooten went down to the bottom of the hill where Feimster's body was lying on the ground. Failing to find a pulse, Wooten ran back to the van and, with defendant driving, the two men began to drive back to Statesville. On the return trip, defendant gave Wooten his .380 automatic and told him to wipe defendant's prints off the gun and then throw the gun in a river which was adjacent to Highway 18. The two men stopped once to try to throw Feimster's clothes and personal belongings into a dumpster, but were unsuccessful because a police officer drove by. Once back on I-40 heading for Statesville, however, Wooten pulled over and defendant threw the victim's clothing and personal belongings over a guard rail.

On the trip home, defendant told Wooten that he had killed Feimster because he was afraid Feimster would turn state's evidence against defendant regarding his cocaine dealings in exchange for a lighter sentence if the police arrested Feimster for the murder of Terry Kurley. Wooten testified at trial that defendant told him a few days later that he had walked up behind Feimster, put the .380 automatic to the back of his head, and pulled the trigger. At trial, however, defendant testified that he and Feimster had gotten into an argument while Wooten was getting gas for the van and that defendant had shot Feimster in self-defense.

Feimster's body was discovered at the bottom of a hill by the side of Highway 18 by a construction worker on 28 April 1986. An autopsy revealed that Feimster, an unusually large and powerful man, had been shot once in the back of the head with a bullet of a size consistent with a 9 mm., .38 caliber or .380 caliber gun.

On the morning of Tuesday, 29 April 1986, defendant voluntarily went to the County Sheriff's Department to see if there was a warrant issued for his arrest. Within forty-eight hours of the shooting, he had spoken with a total of five law enforcement officers to determine if a warrant had been issued in his name. At the Sheriff's Department defendant explained to the deputy on duty that he would like to be called if a warrant appeared because his father had heart trouble and he would prefer to come to the sheriff's office voluntarily than to have a warrant delivered at his home.

On 14 April 1987, nearly a year after the shooting of Charles Feimster, an SBI agent provided Steve Wooten with a small tape recorder. Using the recorder, Wooten initiated a conversation with defendant in which defendant was implicated for Feimster's murder. An arrest warrant was issued on 27 April 1987 for defendant, and he was indicted for murder in the first degree of Charles Jennings Feimster on 11 May 1987. At trial and over defendant's repeated objections, the trial court admitted Wooten's testimony about his 14 April 1987 conversation with defendant, admitted the tape recording itself, and a transcript of the tape recording. On 3 March 1988, the jury returned a verdict of guilty and on 4 March 1988 recommended that defendant be sentenced to life imprisonment.

On appeal, defendant raises five assignments of error. Defendant first contends that it was error for the trial court to admit a number of hearsay statements made by the victim, Charles Feimster, by Terry Kurley, and by the defendant to five witnesses who testified at trial. The five witnesses who entered hearsay statements were: (1) Robert Smith, the friend who drove...