State v. Penland, 139A94

• Citation: 472 S.E.2d 734,343 N.C. 634
• Decision Date: 31 July 1996
• Docket Number: No. 139A94,139A94
• Parties: STATE of North Carolina v. Rex Dean PENLAND.
• Court: United States State Supreme Court of North Carolina

Page 734

472 S.E.2d 734

343 N.C. 634

STATE of North Carolina v. Rex Dean PENLAND.

No. 139A94.

Supreme Court of North Carolina.

July 31, 1996.

Michael F. Easley, Attorney General by Barry S. McNeill, Special Deputy Attorney General, for the State.

James R. Glover, Chapel Hill, for defendant-appellant.

WHICHARD, Justice.

Defendant was tried capitally for the first-degree murder, first-degree rape, first-degree sexual offense, and first-degree kidnapping of Vernice Alford. He was also charged with conspiracy to commit rape and conspiracy to commit kidnapping. The jury found defendant guilty on all but the conspiracy charges and recommended a sentence of death for the first-degree murder. The trial court sentenced defendant accordingly on the murder charge and sentenced defendant to two consecutive terms of life imprisonment for the rape and sexual offense and to a forty-year term for the kidnapping. Defendant appeals from his convictions and sentences. We hold that defendant received a fair trial, free of prejudicial error, and that the sentence of death is not disproportionate.

The State's evidence tended to show that on 30 November 1992, defendant and his two nineteen-year-old twin nephews, Gary Sapp and Larry Sapp, Jr., left defendant's trailer to go deer hunting. They stopped at a convenience store, at a pool hall, at a Waffle House, and at the Darrell and Sherry Fultz residence. Defendant then drove to Winston-Salem and picked up the victim, Vernice Alford, a waitress and prostitute. He drove to a logging road in Stokes County where he engaged in sexual acts with her. After ordering the Sapp brothers to tie the victim to a tree, defendant assaulted her with a knife and left her there.

The victim died of internal and external bleeding caused by multiple stab wounds. Although vaginal swabs and smears showed the presence of sperm cells, State Bureau of Investigation crime laboratory serologist P.D. Deaver testified that there was not a sufficient quantity of sperm to perform DNA testing.

In the area surrounding the site where the body was found, investigators recovered a Magna brand cigarette butt and a no-name cigarette with a gold ring around the filter, a length of yellow and black cord wrapped loosely around a clump of small trees, an empty forty-ounce King Cobra beer bottle, an empty package of Monarch 100 cigarettes, and footprints from two different pairs of shoes. One print was made by a tennis shoe bearing the brand "Pony" on the sole, like the shoes the victim had worn. The other print was made either by a woman's shoe with a heel or by a cowboy boot. Chips of green paint and tire tracks were also found.

Based on statements made by the Sapp brothers, investigators arrested defendant and searched his residence area. They recovered a green pickup truck whose paint and tires were consistent with the paint chips and tire tracks found in the area of the logging road. They also recovered a pair of handcuffs hanging on a gun rack in the rear of the truck's cab. Fibers found on the handcuffs were consistent with fibers taken from the victim's blue jean jacket. Officers also seized a pair of cowboy boots that defendant put on as he was escorted from the residence.

Like defendant, the Sapp brothers were charged with first-degree kidnapping, first-degree murder, first-degree rape, first-degree sexual assault, conspiracy to commit rape, and conspiracy to commit kidnapping. Larry Sapp, Jr., testified that on the night of the murder, defendant was wearing cowboy boots, Larry was wearing black shoes, and Gary was wearing tennis shoes. Larry and Gary both smoked Magna cigarettes, whereas defendant smoked Monarch 100s, which have a gold band.

Gary Sapp testified that on 30 November 1992, he and defendant traded their aluminum cans for money at the recycling center in Kernersville. On the way back to the Sapps' trailer, defendant's wife bought five forty-ounce bottles of Magnum beer. Defendant and Gary each drank two bottles, and Larry drank the remaining bottle at the Sapps' trailer. That evening, defendant and the Sapp brothers decided to spotlight for deer in some cornfields. Finding no deer, they drove to Rural Hall, where they stopped at a Pantry store and purchased four or five more forty-ounce bottles of Magnum beer. They drove on to King and stopped at the Rack Room. Upon leaving there, they drove to the Waffle House, where defendant went inside and tried to convince Anita Brown to "party" with them. Defendant returned to the truck alone, telling the Sapps that Brown had refused to come. Larry testified that defendant was "really mad" and stated "that bitch ain't nothing but a whore anyway." Defendant then drove to the Fultzes' residence, where defendant and the Sapps drank beer, and according to Larry, defendant told Sherry she should handcuff Darrell and beat him.

After leaving the Fultzes' residence and buying three forty-ounce bottles of King Cobra beer, defendant drove to Winston-Salem, saying he wanted to pick up a prostitute. Arriving in Winston-Salem at approximately 9:00 p.m., defendant stopped on Patterson Avenue when a black female flagged him down. She opened the passenger side door and sat in the front seat. As the woman repeatedly asked for money, defendant sped off. Tossing her the handcuffs he had removed from the gun rack, defendant then said, "[S]hut the f___ up and put the handcuffs on, bitch." When the victim looked at defendant and hesitated, defendant hit her in the face, saying, "[P]ut the f______ handcuffs on, bitch, like I told you." The victim said, "Okay, Mister. Okay, Mister," and cuffed her hands in front of her body.

Defendant sped and ran through several stoplights and stop signs on the way to rural Stokes County. Larry testified that the victim was scared and stated, "Please, Mister, don't," and that defendant replied, "Well, all them black girls that got killed out there, I'm the one that did it." Defendant drove down a logging road, rode over a felled tree, and stopped the vehicle. He and the victim exited the truck. Defendant walked to the passenger side and forced the victim's head toward his penis. After the victim performed fellatio upon defendant, he took her to the rear of the truck, where he engaged in sexual intercourse with her as she leaned over and held the bumper. Larry walked to the rear of the truck, and the victim performed fellatio upon him while she was engaged in intercourse with defendant. When defendant stated, "You f______ bitch," Larry stopped the victim from performing oral sex. Defendant and the victim then walked to the driver's side of the truck; defendant pushed the victim onto some logs and again had intercourse with her. Gary testified that defendant stated several times, "I am going to ice this bitch." Larry testified that the victim engaged in all of the sexual acts willingly and voluntarily.

Defendant then led the victim to a tree. Although Gary said to defendant, "Let's go, let's get out of here," defendant insisted, "I'm going to ice this bitch." Defendant asked the Sapp brothers to tie the victim to a tree with a length of yellow and black rope. According to Gary, defendant said he was not going to pay the victim for having sex and was going to leave her there. Gary and Larry wrapped the rope around the victim and the tree four or five times but left the rope loose so the victim could later extricate herself. Larry testified that while he and Gary were wrapping the rope, the victim asked them several times not to hurt her and stated that she had a child. Larry responded that they would not hurt her. As the Sapp brothers walked back to the truck, defendant angrily yelled, "Why didn't you tie the G______ rope like I told you to?" While Gary and Larry sat in the truck drinking beer, Larry observed defendant standing in front of the victim and saw defendant's arms moving. Defendant returned to the truck within a few minutes, and as he turned on the engine and the headlights, Gary observed the victim walking "kind of bent over."

After leaving the logging road, defendant discovered that the truck had a flat tire. While the Sapps changed it, defendant contacted his wife on the citizens band radio to tell her about the flat tire. Defendant then drove to his residence. Before going inside, defendant and the Sapps walked to the rear of defendant's residence, where defendant tried to burn a length of black and yellow rope. Gary testified that defendant, while burning the rope, said that he "iced that bitch." Defendant also told the Sapps he had stabbed himself in the leg while stabbing the victim. He showed them the knife he usually carried in a sheath on his belt, and it was covered with blood. Three days after the incident, defendant called the Sapp brothers, laughing, and told them the black female had been found. He instructed them not to tell anyone about the incident. Both Sapp brothers testified that on the night of the incident, defendant was "feeling good" but was not drunk.

Defendant testified that he did not remember any of the events after he and the Sapps left the Rack Room because he passed out as a result of consuming more than a case of beer over the course of the day. He claimed that he knew nothing about the killing of the victim, asserting that the Sapp brothers had awakened him to tell him the pickup had a flat tire. He had no memory of stopping at the Waffle House or at the Fultzes'. Defendant denied ever possessing any black and yellow rope and denied burning any such rope after returning to his residence. Although when arrested he had a small wound on his leg, defendant and his fifteen-year-old nephew, Donnie Penland, testified that defendant had injured his leg when he caught his pants on a barbed wire fence they were crossing while deer hunting several days after the murder. Defendant acknowledged that he previously had been to Patterson Avenue with Larry Sapp, Jr., and Donnie Penland and that he had...