State v. Ligon

• Citation: 332 N.C. 224,420 S.E.2d 136
• Decision Date: 04 September 1992
• Docket Number: No. 451A91,451A91
• Parties: STATE of North Carolina v. Henry LIGON, Jr.
• Court: United States State Supreme Court of North Carolina

Page 136

420 S.E.2d 136

332 N.C. 224

STATE of North Carolina v. Henry LIGON, Jr.

No. 451A91.

Supreme Court of North Carolina.

Sept. 4, 1992.

Appeal as of right pursuant to N.C.G.S. § 7A-27(a) from a judgment imposing a sentence of life imprisonment entered by Downs, J., upon a jury verdict of guilty of first-degree murder, at the 13 and 20 May 1991 Criminal Sessions of Superior Court, Buncombe County. Heard in the Supreme Court on 11 March 1992.

Lacy H. Thornburg, Atty. Gen., by Dennis P. Myers, Asst. Atty. Gen., Raleigh, for the State.

Elmore & Elmore by David W. Cartner, Asheville, for defendant.

FRYE, Justice.

Defendant, Henry Ligon, Jr., was indicted by a Buncombe County grand jury on 4 February 1991 on charges of first-degree murder and discharging a firearm into occupied property. Defendant was tried noncapitally to a jury and found guilty on both counts on 22 May 1991. On appeal, defendant asks this Court to grant him a new trial, arguing that seven alleged errors by the trial judge, individually or cumulatively, deprived him of a fair trial. After a thorough review of the trial transcript, record on appeal, written briefs and oral arguments, we conclude that defendant received a fair trial, free of prejudicial error.

I.

The State's evidence showed that the victim, twenty-five-year-old Oscar Ray Walker, Jr., was shot to death on 27 November 1990 while attempting to steal cocaine from what can best be described as an outdoor drug supermarket in west Asheville. The State's first witness, George Alvin (Al) Davis, told jurors that on the evening of 27 November 1990, he was selling drugs for defendant at the intersection of Burton and Buffalo Streets in Asheville. More specifically, Davis testified that defendant supplied him with several small packets of cocaine to sell. Around 9 p.m., a yellow Volkswagen Rabbit driven by a "white fellow [with] stringy hair" pulled up to the intersection. Davis approached the car on the driver's side, asked the driver what he wanted and handed him a packet of cocaine. Davis then walked around to the passenger's side of the car, opened the door and began to get inside to collect his money. Before Davis could sit down, however, the driver "hollered" at him to get out. Davis testified that he did as he was told, and the driver "throwed the car in gear and [took] off down the road." It was at this point, according to Davis, that the shots rang out. Davis said he turned around and saw "Mr. Ligon with the gun." Although Davis did not see defendant fire the gun, he testified that he saw defendant "on the sidewalk with the gun pointed down the street." Davis told jurors that the back windshield of the Volkswagen Rabbit was blown out, and the driver momentarily lost control of the car. The driver then regained control and "went on down Burton Street."

Ricky Morris was the State's next witness. He testified that he was currently in prison for selling drugs, and on the night in question he was selling drugs on Burton Street. Morris testified that he saw Davis approach a car and "then I seen him walk away from the car. I heard some shots, but I don't know where it came from." Morris said he did not see anyone with a gun. The State then impeached Morris with two prior inconsistent statements in which Morris said he saw defendant shoot at a yellow car.

Another witness for the State, Regina Hadden, testified that she was shooting pool at the community center on Burton Street the night Walker was shot. After hearing three gunshots, Hadden testified, she saw defendant put a gun in his pocket and heard him say, "That will teach people not to rip Burton Street off."

Asheville Police Detective Jon Kirkpatrick testified that on the evening of 27 November 1990, he was dispatched to a grassy area located at the off-ramp of I-240 at Brevard Road in Asheville. Upon his arrival, emergency medical personnel were removing the driver of a yellow Volkswagen from his car. The driver was subsequently identified as Oscar Ray Walker, Jr. Kirkpatrick testified that the distance from the I-240/Brevard Road off-ramp where Walker's car was found to the intersection where the shooting occurred is 2.65 miles.

Dr. Richard Landau, a pathologist at Memorial Mission Hospital, performed the autopsy on Walker. Landau testified that he found two bullet wounds on the body. Both bullets entered the victim's back. The cause of death, according to Dr. Landau, was a "gunshot wound with organ destruction and second hemorrhage." In layman's terms, "there was massive destruction of the liver and he bled to death in combination with destruction of the lung."

Although the murder weapon was never recovered, the State presented a series of witnesses in an effort to place the murder weapon in the hands of defendant at the time of the shooting. First, Bobby Lynn Davidson, an Asheville bail bondsman, testified that on 6 October 1990, his 10-millimeter Delta Elite pistol was stolen by one of his clients, Greg Anderson. Anderson, whom Davidson had just bailed out of jail, stole the pistol from Davidson's pickup truck, Davidson testified. Davidson provided police with thirty-nine spent cartridge cases from his stolen pistol.

Greg Anderson followed Davidson to the witness stand and told jurors that he had, indeed, stolen Davidson's pistol on 6 October. Anderson testified that he immediately went to West Asheville and sold the weapon to defendant for $170.

Four days after the gun was stolen, on 10 October 1990, a man displaying defendant's driver's license purchased thirty rounds of Winchester and Remington 10-millimeter automatic ammunition from Finkelstein's store, according to the testimony of Finkelstein's employee Charles Bassett. Bassett testified that federal law requires that records be kept of pistol ammunition sales. Finkelstein's therefore requires identification from anyone purchasing pistol ammunition, and a copy of the sales ticket is retained for its records. On 10 October, Bassett testified, he sold ammunition to someone with Henry Ligon's driver's license. Bassett copied the name, date of birth, address and license number from the driver's license onto the sales ticket. The store's copy of this ticket was later introduced into evidence; another witness, Detective Kirkpatrick, testified that the information on Finkelstein's ticket matched the information on a certified copy of defendant's driver's license obtained from the North Carolina Division of Motor Vehicles. On cross-examination, however, Bassett conceded that he could not identify the person to whom he had sold the ammunition.

Detective Kirkpatrick told jurors that two days after the shooting he and another police officer found a spent 10-millimeter cartridge case in a dirt area at the intersection of Burton and Buffalo Streets--the same intersection where the shooting occurred.

Finally, in an attempt to tie together all these pieces of evidence, the State called to the witness stand firearms expert Gerald F. Wilkes of the Federal Bureau of Investigation in Washington, D.C. Wilkes testified that, at the request of Asheville police, he compared the thirty-nine spent cartridge cases from bail bondsman Anderson's stolen pistol with the spent cartridge case found at the scene of the crime. The cartridge case found at the scene, Wilkes testified, was made by Winchester. Wilkes said that, in his opinion, the Winchester cartridge case from the crime scene and the cartridge cases from Anderson's pistol "were all fired in one weapon."

Defendant did not testify but presented evidence that the victim was intoxicated on the night of the shooting, had gone to Burton Street to steal cocaine, and that it was possible the victim had fired the first shots.

Thomas Cleveland Trull was a friend of the victim, Oscar Walker. On the night of the shooting, Walker, who lived with his parents, had gone to Trull's house to watch movies and "drink a little bit." After a few drinks, Walker told Trull that he was going to Burton Street to "rip off some niggers." In a statement to police after the shooting, Trull had said that Walker was intoxicated when he left Trull's house, and that Trull had tried to talk him into spending the night.

Dr. Landau, the pathologist, testified on cross-examination that he performed two tests to determine Walker's alcohol level at the time of his death. The blood ethanol test registered .15; the urine ethanol test registered .29--both above the .10 legal limit in North Carolina.

Anthony DeWayne Summey, Walker's best friend, testified that Walker was not a violent person and he had never seen Walker with a gun. "He was very gentle. Oscar, he'd never been in a fight in his life." However, in a statement to police after the shooting, Summey said that Walker would get "brave" after he had been drinking.

Finally, F.B.I. Agent and forensic chemist Charles Frank McClelland, Jr., testified that he conducted tests on Walker's hands to determine whether Walker had fired a gun on the night in question. McClelland, at the request of defendant's attorney, read to the jury his conclusion, contained in a written report, that, "these [test] results do not eliminate the possibility that [Walker] could have fired a gun." Pressed on cross-examination, however, McClelland acknowledged that, "[b]asically what [the report] says is I don't have an opinion as to whether or not he shot a gun."

Defendant was convicted of discharging a firearm into occupied property, a motor vehicle, and first-degree murder based on the felony murder rule. The jury specifically did not find defendant guilty of first-degree murder based on malice, premeditation and deliberation. Judge Downs sentenced defendant to life imprisonment for the first-degree murder conviction. No sentence was imposed for discharging a firearm into occupied property, that felony having merged into the first-degree felony murder conviction. Defendant appeals to this Court as of right. N.C.G.S. §...