State v. Overby, No. COA06-384 (N.C. App. 5/1/2007)
| Decision Date | 01 May 2007 |
| Docket Number | No. COA06-384,COA06-384 |
| Court | North Carolina Court of Appeals |
| Parties | STATE OF NORTH CAROLINA v. MARSHALL DARRELL OVERBY |
John T. Hall, for defendant.
At approximately 2:00 in the afternoon on 17 February 2005, Sergeant Jeff McCormick ("Sergeant McCormick") of the Wadesboro Police Department responded to a report expressing concern about a child inside a van parked at the Feed My Lambs ministry. Sergeant McCormick, along with two other officers from the Wadesboro Police Department, found Marshall Overby ("defendant") in the van with a two-year-old, male child, later identified as R.P. Officers noticed that R.P. was sitting in a car seat resting on the floor between the two front seats, and that the car seat was not strapped down.
At trial, Sergeant McCormick explained,
When I first noticed the child, I could tell he had a knot on his forehead, which has [sic] bruising around it. Also both of his eyes up under them was [sic] black and blue. I noticed, I think it might have been his right ear, it looked like it had on the top where it looked like to me maybe cigarette burns. The child's left ear was [sic] bruising around the outside and on the inside of it.
Sergeant McCormick addressed defendant and inquired about the cause of the child's condition. Defendant explained that in the process of moving a child's play table, the table had fallen on R.P. Sergeant McCormick became suspicious and suggested that a table falling on the child could not have caused the type and number of injuries on the child. Consequently, Sergeant McCormick contacted emergency medical services ("EMS"), and also radioed the police dispatcher and requested that the Department of Social Services ("DSS") be contacted.
Teresa Morton ("Morton") with Anson County EMS arrived at the scene to investigate the child's injuries. Defendant became upset and stated that "he didn't see that the child needed to be checked." Defendant was holding R.P. and refusing to turn him over to the police officers. Morton explained that defendant "was screaming to the top of his lungs that they were accusing him of beating his child." Defendant reluctantly turned the child over when officers informed him that they would take him into custody if he did not relinquish control of the child.
During her examination, Morton noted that
[t]he baby was very bruised, both eyes were black and blue. There was bruising all up both sides of his cheeks, his neck area. The left ear was completely purple and reddish tint inside and out, the whole back of it, with some dried blood inside of it. There was a large knot on the front of his forehead.
Morton also testified that R.P. "had several deformities throughout the top of his head that you could fee[l]." These "little knots" and "lacerations" could be seen and felt "throughout his entire head area, the top and back." Morton also discovered cigarette burn marks around the top of R.P.'s right ear, and Morton testified that the burn marks "were fresh looking, because they had dried blood around them."
After conducting the initial examination, Morton, along with her partner, Billy Gibson, and her supervisor, Scott Russell, brought R.P. into the back of the ambulance and helped R.P. change out of his clothes, which Morton described as "dirty" and "soaking wet." Morton testified that "[t]he front of the shirt that he had on looked like dried vomit, and I can say that because I have the medical training to describe that." The Feed My Lambs ministry provided clean clothes and clean diapers, which defendant initially refused. Morton explained that defendant "started cussing at the ladies in the ministry store concerning the clothes" and stating "that he wasn't going to take no . . . damned charity from anybody." Defendant eventually conceded, and while helping R.P. out of the soiled clothes, Morton found additional bruising on R.P.'s body — specifically, "on the chest area, the arms, the neck, the entire back area." Morton also discovered extensive bruising when she and her partner removed R.P.'s diaper.
When I went to remove the diaper, also which was soaked, I mean it was just completely soaked through, that's when he threw his little hands down to his straddle and started saying daddy hurts. And when I pulled the diaper back, that's when I seen all the red marks and the bruisings that was through his straddle and on his private area. Bruising all down his legs, most of them were the purplish tint to them. There was some that was older looking, which is the yellowish type. The back of his back down across his buttocks was like — I thought at first it was like marks from a hairbrush. It looked just like something that had hit him and left little, like little spike marks. And it was — it was all the way down across his buttocks, down the back of his legs, inside of his legs. We pulled his shoes off. He had blood on his socks, and there was marks on the bottom of his feet, the top of his feet, and there was some dried blood there also.
When Morton removed R.P.'s clothes, R.P. made comments such as "[R.P.] bad," "daddy hurts," and "clothes dirty." Based upon her findings, including the fact that many of the injuries appeared to have been "fresh looking," Morton determined that R.P. needed to be seen by other medical professionals at the hospital.
Joan Polk ("Polk") of DSS also arrived at the scene and entered the ambulance to meet with R.P. and the EMS workers. Polk saw that R.P. had two black eyes and "a V on his forehead that was bruised." She asked R.P. what his name was and attempted to make R.P. feel comfortable with her. Polk then conducted an examination and testified,
I felt knots all over his head that were swollen. And when I pulled his . . . bangs back on his forehead, . . . I saw the V more clearly, and it was bruised and it was swollen. I looked at his ears and he had burns on the outside of his earlobe on both ears, and his ears were just red and purple. It was blood. And there appeared to be marks, . . . bite marks by his right eye, and he had two black eyes, and there appeared to be a burn mark by his nostril. And there were more burn marks by his mouth . . . and he had bruises on his neck that were in various stages, anywhere from yellowish to green to purple. . . . His arms had bruises and scratches. His hands, his fingers, his chest. I turned him around, and the whole time I was doing this I kept talking to him, just trying to make him feel comfortable, and his back had bruises and marks, his chest, his belly, his legs. The only part of him that I did not see a mark on was his penis. Even his scrotum had . . . a red mark, appeared to be some type of bruise, hematoma.
Polk also noted that R.P.'s body was covered with fresh "oval-shaped" marks with dots. R.P. told her that "Daddy hurt," but Polk did not ask R.P. any questions at that time. Polk asked EMS to transport R.P. to the DSS office, and she asked the police to escort defendant to the DSS office. As the ambulance was driving away, R.P. stated, "Daddy gone" and "Daddy hurt."
At the DSS office, Polk gave R.P. some crackers, and based on the way he quickly devoured the crackers, she determined he was hungry and purchased some food for him. She stated that "he just took the food, he just grabbed it and shoved it in his mouth." Subsequently, Polk took the food away from R.P. and "g[a]ve it to him [in] smaller pieces so that he could eat that." Meanwhile, Polk examined the clothes that had been removed from R.P. She discovered vomit and blood on the clothes, and she noted that the clothes were wet and that "[h]is socks were dirty, his tennis shoes were dirty, his clothes were dirty, and he stunk."
At the DSS office, Mary Kendall ("Kendall") interviewed defendant. During the interview, defendant was uncooperative and mercurial, and he reeked of marijuana. Defendant denied knowledge of any of R.P.'s injuries except for the forehead injury, which defendant stated was caused when a table fell on R.P. Kendall noted that defendant "became frustrated in describing the table, cursed [Kendall], stated that he could do to his child whatever he wanted to and that [DSS] couldn't tell him how to discipline his child." Defendant's story regarding the table varied during the interview; defendant told Kendall at one point that the table had fallen on the child the night before, but he also stated that the incident happened "days ago" and even "weeks ago." Defendant also stated that R.P. had fallen off the porch, and at various points during the interview, defendant laughed and giggled. Throughout the interview, defendant repeatedly denied injuring R.P.
R.P. was taken to the emergency department at Anson County Hospital, and Carolyn Tucker ("Tucker"), a nurse at the hospital, attended to R.P. Tucker testified as to R.P.'s injuries, and she marked the injuries on thirteen photographs. She described the "distinctive" and "consistent pattern" of bruising on R.P.'s body, especially his buttocks and legs. In total, the nursing record noted thirty-five body parts where pain or injury could be found.
On 18 February 2005, R.P. was placed in foster care in the home of Audrey and Darin Allen. The first night R.P. was in the Allens' home, R.P. would not sleep by himself, so the Allens allowed him to sleep in their bed. However, R.P. frequently awoke from nightmares, screaming, crying, and pleading not to be hurt. The Allens noted that R.P. slept on his stomach with his hands covering his back side, and he also kept his hands behind his back when he played. The Allens also described how R.P. would "tense up" in...
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