State v. Oliver, 78

• Decision Date: 27 January 1981
• Docket Number: No. 78,78
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. John Wesley OLIVER and George Moore, Jr.

Page 183

274 S.E.2d 183

302 N.C. 28

STATE of North Carolina v. John Wesley OLIVER and George Moore, Jr.

No. 78.

Supreme Court of North Carolina.

Jan. 27, 1981.

Rufus L. Edmisten, Atty. Gen. by Tiare Bowe Smiley, Asst. Atty. Gen., Raleigh, for the state.

Murchison, Fox & Newton by Frank B. Gibson, Jr., Wilmington, for defendant-appellant Oliver.

Robert D. Jacobson, Lumberton, for defendant-appellant Moore.

EXUM, Justice.

Defendants assign a multitude of errors to the guilt and sentence determination phases of the trial. Many are frivolous; because, however, this is a capital case, we touch upon them all. ² We find no error in the guilt phase warranting a new trial. For error in the sentencing phase we vacate the death sentences and remand those cases in which the death penalty was imposed for new sentencing hearings and determinations.

The state's evidence tends to show as follows:

On the morning of 12 December 1978 Bobby Hodge, a 7-year old boy at the time of trial, rode with his grandfather, Dayton Hodge, to Watts' Convenient Mart in Fairmont. The store was operated by Allen Watts. While Dayton Hodge was putting gas in his truck Bobby saw a man, whom he identified as defendant Oliver, run from Watts' store with a pistol in his hand. This man shot his grandfather at close range with the pistol and then "ran to the woods." Shortly thereafter, at approximately 9:35 a. m., Mitchell Ivey was driving by Watts' store. He observed a "tall guy running away" wearing a long brown coat with a "silver shiny object in his hand." He then saw another person wearing "something red." "The first guy was running. The big, tall guy was running and the little guy turned around and started running maybe ten feet away ...." Bobby Hodge flagged Ivey, and Ivey stopped. Ivey observed Dayton Hodge lying beside his truck with blood on his head and on the pavement. He went inside the store and found Allen Watts lying on his back with "blood all on his side." Ivey telephoned police. Ivey identified defendants Moore and Oliver as the persons he saw running down the shoulder of the road.

Emergency medical technicians with the Robeson County Ambulance Service arrived and transported both Dayton Hodge and Allen Watts to Southeastern General Hospital in Lumberton. When they arrived at the scene neither Dayton Hodge nor Allen Watts displayed any vital signs. Hodge died from a bullet which entered the back of his neck and lacerated his spinal cord. Watts died from a bullet which entered the right side of his forehead and pierced his brain. Both entry wounds were about three-eights inches in diameter.

Robeson County deputy sheriffs arrived at the scene at approximately 9:50 a. m. They searched a wooded area around the Square Deal Warehouse, near which was parked a white over brown Chevrolet truck approximately two to three tenths of a mile north of Watts' store on Highway 41. They apprehended defendants Oliver and Moore in the wooded area. Oliver jumped up from some thick underbrush with his hands up and was handcuffed. They discovered Moore some 81 feet away lying in a ditch. They found a paper sack containing $225.00 cash in ones, fives, and tens, and fifty-three $1.00 foodstamps in the ditch near where Moore was lying. Moore wore a red sweatshirt with a hood. Thirty minutes after deputies apprehended defendants they returned to the area and found a long, brown coat partially submerged in water in the ditch.

Johnny Lee Lewis, while an inmate in the Robeson County jail on 18 January 1979, overheard defendant Moore talking with other inmates. Moore said he was "in Mr. Watts' store two or three times that week, and on the night before the shooting." Moore said before he left home on 12 December 1978 "he started to take his 12-gauge shotgun and changed his mind at the last minute." He went to Watts' store and got candy and a drink. When Watts opened the cash register, Moore said, "he pulled out a gun and Mr. Watts said 'Please don't shoot me. Go ahead and take the money.' " Then Moore "just shot Mr. Watts and then laid the gun on the counter." ³

Other circumstantial evidence strongly implicated both defendants Moore and Oliver as principal perpetrators of the two murders and the robbery. William Lands sold Oliver a .38 caliber pistol and a black holster in August 1978. On 30 April 1979 deputies returned to the wooded area where they had earlier apprehended defendants. They found the pistol sold to Oliver, partially buried, in the area some 600 feet from where defendants were apprehended. Marion Eady sold Oliver a 1972 Chevrolet, white over brown pickup truck on 22 September 1978. This truck was parked near the Square Deal Warehouse on the day of the crimes.

On the evening of 11 December 1978, shortly after 7:00 p. m., defendants came into Watts' store and "just walked around and looked and turned and went down the middle aisle and then came back up the first aisle." Oliver bought vienna sausages. Then the men "moved around in the store continuously." They walked "up and down the aisles for seven to eight minutes." Defendants were seen together at 8:00 a. m. on 12 December 1978 in a "brown pickup truck." Another witness observed two men walking toward Watts' store at approximately 9:00 a. m. on 12 December. One had on "something red. Looked like maybe a red hood. And the other one had on a coat about knee-length." Yet another witness identified both Moore and Oliver in Watts' store on 12 December at approximately 9:15 a. m.

Witnesses who observed defendants at or near the time of the crimes consistently said Oliver was wearing a long, knee-length coat similar to that found in the woods near where he was arrested. They said Moore was wearing a red sweatshirt with a hood on it like that which he was wearing at the time of his arrest. Another witness said Moore was wearing a dark toboggan.

Oliver's fingerprints were found on the Chevrolet truck parked at the Square Deal Warehouse. Found in the truck was the black holster sold to Oliver by William Lands; a blue coat similar to that which some witnesses said Moore had worn over his red sweatshirt; and a black toboggan. In the right pocket of the blue coat were several pieces of multi-colored Christmas candy wrapping paper which matched the paper on candies found on the counter of Watts' store on the day of the crimes.

Defendants offered evidence as follows:

Oliver's father testified that although Oliver lived with him, he had never seen the long, brown coat allegedly worn by his son, nor had he ever seen his son with a pistol.

According to the testimony of state's witness Johnny Lee Lewis, Robert Earl Brown was one of those inmates to whom Moore made incriminating statements. Brown, testifying for Moore, denied that the conversation ever occurred. He related several exculpatory statements made by Moore.

Defendants filed separate briefs. Assignments of error in the guilt phase made by both defendants will be discussed in Part I of the opinion. Assignments of error in the guilt phase raised only by defendant Oliver will be discussed in Part II; assignments of error in the guilt phase raised only by defendant Moore, in Part III; and errors assigned in the sentencing phase of the trial, in Part IV.

I

Defendants first assign error in the denial of their motion for a change of venue. ⁴ Defendants allege that adverse pre-trial publicity precluded their receiving a fair trial in Robeson County. In support of the motion defendants offered newspaper clippings, transcripts of radio and television news broadcasts and the testimony of five media representatives. Evidence offered or stipulated tended to show: The Robesonian, a local newspaper with a circulation of about 14,000, printed five articles discussing the murders and the apprehension of defendants. The Fairmont Town Messenger, a newspaper with a circulation of approximately 1,750, printed six such articles. The Whiteville News Reporter, a newspaper with a circulation of approximately forty in Robeson County, published one such article. Broadcasts concerning the pending trial from WTSB radio, reaching an indeterminable number of persons throughout Robeson County, were made on 9 different days. In addition, an undetermined number of broadcasts were made by WAGR radio reaching an indeterminable number of persons in Robeson County. The trial court took judicial notice of the fact that Robeson County has a population of approximately 90,000 persons.

A motion for change of venue is addressed to the sound discretion of the trial judge and his ruling will not be overturned on appeal in the absence of an abuse of discretion. State v. Barfield, 298 N.C. 306, 320, 259 S.E.2d 510, 524 (1979), cert denied, --- U.S. ----, 100 S.Ct. 3050, 65 L.Ed.2d 1137 (1980). In State v. Alford, 289 N.C. 372, 222 S.E.2d 222, death sentence vacated, 429 U.S. 809 (1976), defendant offered exhibits similar to those relied on here in support of his motion for change of venue. In Alford we concluded that with the exception of the coverage of defendant's arrest, the articles were of a general nature likely to be found in any jurisdiction to which the trial might be moved. Here, as in Alford, the coverage of the arrests only indicated that defendants had been charged with a crime. The articles were factual, non-inflammatory, and contained for the most part information that could have been offered in evidence at defendants' trial.

Judge Gavin, who ruled on the motions for change of venue, fully considered defendants' arguments. When the jury was impaneled at trial, defendants were allowed adequate opportunity for voir dire examination of potential jurors. No juror objected to by defendants because of pre-trial publicity was seated on the jury.

The burden of showing "so great a prejudice" by reason of pre-trial publicity that a defendant cannot receive a fair trial is on defendant. State v. Faircloth, 297 N.C. 100, 105, 253 S.E.2d 890, 893 (1979). Defendants...