State v. Penley

• Decision Date: 29 August 1986
• Docket Number: No. 166A85,166A85
• Citation: 347 S.E.2d 783,318 N.C. 30
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Frank Morris PENLEY.

Page 783

347 S.E.2d 783

318 N.C. 30

STATE of North Carolina v. Frank Morris PENLEY.

No. 166A85.

Supreme Court of North Carolina.

Aug. 29, 1986.

Lacy H. Thornburg, Atty. Gen. by Thomas J. Ziko and Laura E. Crumpler, Asst. Attys. Gen., Raleigh, for the State.

Randy D. Duncan, Hickory, for defendant-appellant.

MITCHELL, Justice.

The defendant was convicted upon proper indictments for first degree murder, first degree kidnapping and robbery with a firearm. He was sentenced to serve consecutive sentences of life in prison for first degree murder, forty years for first degree kidnapping and forty years for robbery with a firearm.

The defendant appealed the murder conviction and the resulting life sentence to this Court as a matter of right under N.C.G.S. § 7A-27(a). The defendant's motion to bypass the Court of Appeals on his appeal of the kidnapping and robbery convictions was allowed by this Court on 8 April 1985.

By his assignments, the defendant contends that the trial court made many errors. He contends that the trial court erred by permitting the State to introduce a video tape recording of the victim's identification of him from a photographic lineup. He argues that the trial court erred by allowing the introduction of testimony concerning various statements made by the victim, as well as statements made by the defendant while in custody. He contends that the trial court erred in its jury instructions concerning the proximate cause of the victim's death and by denying the defendant's motion for the appointment of a pathologist. He argues that the trial court erred by finding that his prior convictions were an aggravating factor and that this factor outweighed the mitigating factors. Finally, he contends that the trial court erred by denying his motion to dismiss and by limiting his trial counsel's closing argument. We find no error.

The State's evidence tended to show that around 3:00 p.m. on 23 December 1983, Jones Triplett was traveling down a dirt road leading to his home. He testified that he was looking to the side of the road and saw a man, later identified as Jack Hammond, the victim, lying on the ground. Triplett got out of his car and walked over to the victim. The victim stated, "I have been shot." His coat and the right side of his body were covered with blood. Triplett went to his house, called an ambulance, and then went back and sat with the victim. The victim was lying on his back and said "that it was not his friend but someone else" who shot him and that "it was a small Volkswagen van...." He said that he had been shot at "a cafe ... Pete's Cafe."

Dan Carlsen testified that he was employed by the Hickory Police Department and was on duty on 23 December 1983. He went to Frye Hospital at approximately 6:00 p.m. where he found the victim in the emergency room being attended by a physician. The victim told Carlsen that he did not know the name of the person who shot him but that Steve, the owner of Pete's, knew the person's name. The victim said that he was shot while walking from his assailant's house to a brown Volkswagen, and that the person who shot him "sold televisions and microwaves."

Steve Lieb testified that he was the manager of Pete's in Hickory. He knew the victim as a patron. On 23 December 1983, the victim arrived at Pete's sometime in the morning and began drinking beer. The defendant was also present drinking beer. Lieb called a taxi for the victim. It arrived "around lunchtime" and he told the victim his taxi had arrived. He did not see the defendant or the victim leave that day. He did see the defendant in Pete's "an hour or so" after the victim's taxi arrived.

Allen Robbins testified that on 23 December 1983, he was employed as a taxi driver for the Yellow Cab Company in Hickory. He testified that "about the middle of the day" he drove his taxi to Pete's and parked. The victim then "came out and got in the car and then" the defendant "come out and said, 'you don't have to hire a cab, I will take you home.' " The defendant then paid Robbins the fare for his trip to Pete's.

Gary Wayne Lafone testified that on 23 December 1983, he was employed as a criminal investigator with the Hickory Police Department. On the day of the shooting he went to Frye Hospital where he interviewed the victim in the emergency room. The victim was wearing an oxygen mask and "his answers were not long, but in short sentences and was somewhat difficult to understand due to the mask and due to his injuries." The victim stated that he "[l]eft Pete's with a man in a small Volkswagen. Not a van, tan. Was to sell television and microwave. Back in drive behind house. Twenty minute drive from Pete's lunch. Steve Lieb saw man I left with."

On 24 December 1983, Lafone again interviewed the victim in the hospital. The victim again gave a description of his assailant and an account of the events occurring on 23 December 1983. The victim stated:

We left Pete's in a Volkswagen. It was old brownish color, light tan or brown. It was real old, seventy model, small station wagon. We pulled off the street to the back door. Cement block house. It was in the city. We got to the house and I pulled my rings off and put them in my pocket. He said you don't trust me, do you? I told him that I trusted him ... I asked him to take me to get my car. I walked out the door and he shot me in the back. I did not have any feelings in my legs and I felt it burning. I asked to take me to the hospital and he said that he would. He put me in the back of the station wagon and took me to some woods where he put me out. The house was a cement block house.

Lafone testified that on 24 December 1983, the defendant was in custody. The defendant was advised of his Miranda rights, and "[h]e appeared attentive and understood ... the rights that were read to him." Lafone testified that the defendant requested an attorney and was allowed to make several telephone calls. The defendant was unable to contact the attorney he desired. The defendant then said, "Who says that I did any of those things" while pointing to the warrants. Lafone advised the defendant that he could not answer his questions and would not talk to him without an attorney. The defendant then stated that he did not want an attorney and signed a waiver of rights form.

The defendant first denied any knowledge of the incident. He then admitted to being at Pete's and paying the victim's taxi fare but denied leaving with the victim. He then stated that he and "Sonny" Burwell were at Pete's where they met the victim. The victim asked them to take him to the police station to get his car. The defendant told Lafone:

[w]e all got in the car and left. I thought he was too drunk to ... get his car so I asked if he wanted to go to my house and drink a beer.... We were in the basement. I was on the telephone and the man and Sonny was talking. I heard something mentioned about quaaludes. Sonny gave the man a bag and they started out the door and I followed them. As the man stepped out the back door, Sonny shot him.... Sonny came and asked if he could borrow my car and I told him yes.... I don't know what he did with the man.

The defendant then signed a consent form authorizing the search of his residence and vehicle.

On 29 December 1983, a photographic lineup containing six photographs was prepared. A photograph of Horace "Sonny" Burwell was included. The victim was unable to identify anyone in the lineup, including Burwell.

Finally, Lafone testified that the victim gave a description of the property that his assailant had taken from him: a wallet containing one hundred and forty-four dollars, a personal check, several credit cards, a Shriner's ring valued at two thousand two hundred dollars, and another ring for which he had paid seven hundred dollars. The victim also gave another statement concerning the shooting which basically corroborated his prior statement. In addition he stated that when he was shot the defendant "came over took my wallet out of my pocket and my rings and my keys and my knife, everything that I had in my pockets, ... and I don't have any of it left."

Horace "Sonny" Burwell testified that he and the defendant are cousins and that he did not know the victim. On 23 December 1983, he was at home all day in his apartment. Bill Wetsill, a neighbor in the apartment complex, was there visiting. Burwell testified that he and Wetsill "spent the day together there." He stated that he did not go anywhere near the premises of Pete's on 23 December 1983 and that he had not been there in "at least ten years."

William Wetsill testified that on 23 December 1983, he and Burwell "were together a lot at each other's places during the day." Burwell did not leave his presence during the middle of the day on 23 December 1983.

Allen Reece testified that he was employed as a wrecker driver on 24 December 1984. At the request of the Hickory Police Department, he picked up the defendant's Volkswagen station wagon and stored it in his building on that date.

David Spittel, a forensic serologist with the State Bureau of Investigation, testified that on 3 January 1984, he assisted the Hickory Police Department in the examination of the defendant's 1970 Volkswagen. He found a "large blood stain on the aluminum rocker panel of the passenger opening" and found slight blood smears in other areas of the car. He collected samples of the blood in the car and conducted some preliminary tests.

Mark Nelson, a forensic serologist, testified that he was employed by the State Bureau of Investigation in the crime laboratory. He performed tests on the blood found in the defendant's car, on blood samples taken from the victim and from the defendant, and on the blood found on a business card in the victim's possession. He testified that "the blood from the automobile was the same as that from the victim and was dissimilar to that of the defendant." The blood sample taken from the...