State v. McCarver

• Decision Date: 08 September 1995
• Docket Number: No. 384A92,384A92
• Citation: 341 N.C. 364,462 S.E.2d 25
• Parties: STATE of North Carolina v. Ernest Paul McCARVER.
• Court: North Carolina Supreme Court

Page 25

462 S.E.2d 25

341 N.C. 364

STATE of North Carolina v. Ernest Paul McCARVER.

No. 384A92.

Supreme Court of North Carolina.

Sept. 8, 1995.

Michael F. Easley, Attorney General by Charles M. Hensey, Special Deputy Attorney General, for State.

Malcolm Ray Hunter, Jr., Appellate Defender by Gordon Widenhouse, Assistant Appellate Defender, Raleigh, for defendant-appellant.

MITCHELL, Chief Justice.

Defendant was indicted for the 2 January 1987 murder and robbery with a dangerous weapon of Woodrow F. Hartley. He was tried capitally at the 18 April 1988 Criminal Session of Superior Court, Cabarrus County, and was found guilty of both crimes. The jury recommended a sentence of death for the murder, and the trial court sentenced defendant accordingly. The trial court sentenced defendant to forty years in prison for the robbery with a dangerous weapon conviction. On appeal, this Court ordered a new trial on both charges, concluding that prejudicial error occurred when jurors were excused during the capital trial as a result of unrecorded bench conferences between the trial court and jurors in the absence of defendant and his counsel. State v. McCarver, 329 N.C. 259, 404 S.E.2d 821 (1991).

Defendant's second trial occurred at the 8 September 1992 Special Criminal Session of Superior Court, Cabarrus County, before a jury selected from a special venire from Rowan County. Defendant was again convicted of murder in the first degree and robbery with a dangerous weapon. In a capital sentencing proceeding, the jury recommended and the trial court ordered a sentence of death for the murder conviction. The trial court also imposed a sentence of forty years' imprisonment for robbery with a dangerous weapon. Defendant now appeals to this Court.

Evidence presented by the State and defendant at the guilt-innocence and sentencing phases of defendant's trial tended to show the following facts and circumstances: Woodrow F. Hartley was killed on 2 January 1987. An autopsy revealed that Hartley suffered from a bruised neck, a scrape on his chin, a skin tear on his wrist, and three knife wounds to the chest. Dr. Robert L. Thompson, a forensic pathologist, testified that Hartley was alive at the time his neck was injured and that his death was caused by a stab wound which made a one-half inch incision in his aorta. Additionally, Dr. Thompson testified that Hartley had several fractured ribs on his left side which appeared to be caused by something consistent with a person's knees pressed against the ribs.

While working at K & W Cafeteria in Concord, North Carolina, defendant and his brother, Lee McCarver, met and were befriended by Woodrow Hartley. Defendant was sporadically employed at the cafeteria from September 1977 through June 1984. Defendant's usual job was to wash dishes.

On 1 March 1984, defendant was placed on probation for his conviction of eight counts of felonious larceny and one count of forgery. Shortly thereafter, defendant was sent to prison for violating his probation. Defendant believed that Woodrow Hartley, James O'Neal, or defendant's father was responsible for his probation being revoked.

In September 1986, defendant was employed by Shearin Roofing Company in Monroe. While employed with the roofing company, defendant often sought ways to get money. Defendant told co-workers about an old man who worked at K & W Cafeteria who would be an easy target to rob because he always arrived early in the morning to open the cafeteria. Additionally, defendant said the old man had a lot of money on him, especially near payday.

On the evening of 1 January 1987, defendant borrowed a knife from a fellow employee. Early the following morning, defendant and Jimmy Rape drove to Concord in defendant's brown Pontiac. At some time between 4:15 and 4:20 a.m. on Friday, 2 January 1987, defendant was observed by a police officer traveling toward the Carolina Mall in Concord.

From his past employment, defendant was aware that the victim came to work early in the morning. On 2 January 1987, defendant and Rape entered through the rear entrance of the K & W Cafeteria shortly after Hartley arrived at 5:00 a.m. Defendant walked up to Hartley and talked to him for a few minutes. Rape grabbed Hartley from behind in a Gene Blovsky, an employee of the cafeteria, observed defendant's automobile parked near the back door of the cafeteria. He saw defendant emerge from behind a wall; defendant was carrying a knife, which he attempted to hide in his right hand. Next, Blovsky saw Hartley lying on the floor in the hallway with a spot of blood on his wrist. Blovsky saw another man near Hartley, realized what had happened, became frightened, and ran out the door. Blovsky then observed defendant and Rape as they left the cafeteria and drove off slowly in defendant's automobile.

headlock and attempted to strangle him. Rape released Hartley, who was then grabbed by defendant in a headlock. When defendant let him go, Hartley fell to the ground. Defendant took a knife from his pants pocket and stuck it into Hartley's chest several times. Hartley died within minutes.

Defendant and Rape went to David Shearin's residence at 7:00 a.m. on 2 January 1987 to receive their work assignments. Before going to their assigned job site, defendant and Rape pawned a 1902 silver dollar, which had been taken from the victim, for seven dollars at a Monroe pawn shop. Defendant and Rape were arrested by Monroe police at their assigned job site.

After the arrest, defendant and Rape were transported to the Concord Police Department in separate vehicles. Detective Dennis Andrade read defendant his rights. When asked whether he would answer questions without an attorney, defendant responded that he would and signed a waiver. Detective John Hatley was present with Detective Andrade when defendant gave his statement.

Initially, defendant did not give information pertaining to the murder of Hartley at the K & W Cafeteria. Detective Andrade then informed defendant that the police knew everything and that defendant's brother, Lee, had told the police that he had passed defendant while driving his automobile to the K & W Cafeteria. After speaking with his brother, defendant confessed to murdering Hartley.

Several days after defendant confessed to the crime, defendant's brother, Lee, was interviewed by Detective Andrade. Lee stated that after defendant had killed Hartley, defendant told Lee that he was going to the Kannapolis K & W Cafeteria to kill James O'Neal. Defendant said he felt that O'Neal was responsible for his probation being revoked.

Dr. Faye Sultan, a clinical forensic psychologist, testified as an expert regarding her examination and evaluation of defendant. Dr. Sultan's testimony was that defendant was diagnosed as suffering from borderline intellectual functioning with the intellectual and emotional capability of a ten- or twelve-year-old. Defendant had a history of acute depression throughout his life, leading to a diagnosis of dysthymia. Defendant had a substance and alcohol abuse disorder stemming from his childhood experiences. Additionally, defendant was diagnosed as having a personality disorder that was a direct consequence of sexual abuse as a child and a total lack of nurturing. Dr. Sultan also testified that defendant suffered from a mental and emotional disorder that affected his conduct and impaired his capacity to appreciate the criminality of his conduct and that he had a history of passive orientation and nonviolence. Dr. Sultan felt that defendant functioned well in a structured environment as demonstrated by his record while in custody. Additionally, Dr. Sultan testified that defendant suffered greatly from having been emotionally neglected.

On the murder charge, the jury was instructed that it could find defendant guilty of first-degree murder, guilty of second-degree murder, or not guilty. On the robbery charge, the jury was instructed that it could return a verdict of guilty of robbery with a dangerous weapon or not guilty. The jury returned verdicts of guilty of first-degree murder (under theories of premeditation and deliberation and of felony murder) and guilty of robbery with a dangerous weapon.

In seven assignments of error, defendant contends that errors made by the trial court during the jury selection and guilt determination phases entitle him to a new trial. As to each of these assignments of error, defendant contends that both his federal and state constitutional rights were violated. While defendant couches all of his assignments of In defendant's first assignment of error, he contends that the trial court committed reversible error in sustaining objections to his questions of a prospective juror regarding the juror's views about defendant's mental impairments and psychiatric testimony. Defendant argues that his questions were proper under the law and were designed to enable him to select an impartial jury and make intelligent use of his peremptory challenges. Defendant contends that the restrictions on his inquiries violated his federal and state constitutional rights to due process of law and freedom from cruel and unusual punishment. We conclude that the trial court did not unduly restrict defendant's inquiries regarding the juror's views; therefore, defendant's federal and state constitutional rights were not violated.

error in constitutional terms, many of them involve only a question of whether a particular statute or rule of law was followed by the trial court in its rulings. As to each of these assignments of error, a determination that the particular statutes or rules of law have [341 N.C. 377] not been violated resolves any possible question of a constitutional violation.

It is well established that both the State and defendant are entitled to a fair and unbiased jury. "[T]he primary purpose of the voir dire of prospective jurors is to select an impartial jury." State v. Lee, 292 N.C. 617, 621, 234 S.E.2d...