State v. Peterson

• Decision Date: 29 July 1994
• Docket Number: No. 491A93,491A93
• Citation: 446 S.E.2d 43,337 N.C. 384
• Parties: STATE of North Carolina, v. Daniel PETERSON.
• Court: North Carolina Supreme Court

Page 43

446 S.E.2d 43

337 N.C. 384

STATE of North Carolina, v. Daniel PETERSON.

No. 491A93.

Supreme Court of North Carolina.

July 29, 1994.

Michael F. Easley, Atty. Gen. by William P. Hart, Sp. Deputy Atty. Gen., for State.

Margaret Creasy Ciardella, Wilmington, for defendant-appellant.

WHICHARD, Justice.

Defendant was tried noncapitally on an indictment charging him with the first-degree murder of Charletta Covington. The jury returned a verdict finding defendant guilty on the theory of premeditation and deliberation, and he was sentenced to life imprisonment. Defendant assigns error to the admission of hearsay testimony, use of photographic evidence, questioning of witnesses about past convictions, and failure to grant motions for a directed verdict and to set aside the verdict as being against the greater weight of the evidence. We conclude that defendant received a fair trial free of prejudicial error.

The State's evidence tended to show that defendant came from New York City to North Carolina with Damon Chamberlain, Jeff Page, and Jerome Kelly, to sell cocaine in the Fayetteville area. One place from which they sold cocaine was a trailer located at lot # 10, Thomas' Mobile Home Park.

Teresa Blackwell, a prostitute, testified that she went to the trailer on the night of 6 August 1991 to have sex in exchange for cocaine. Defendant, Chamberlain, and the victim, Charletta Covington, were in the trailer. While Blackwell was in the trailer, she observed defendant, who recently had been shot in the leg, using crutches. When Blackwell left the trailer just before midnight, defendant, Chamberlain, and Charletta Covington remained there. Blackwell saw the victim alive and well shortly before midnight. Blackwell also testified that defendant and his friends previously had accused Charletta Covington of stealing a package of drugs from them.

Michelle Hopper, another prostitute, stated that on the night of 6 August 1991 she saw Chamberlain chasing Charletta Covington out the front door and around the trailer. According to Hopper, Chamberlain grabbed the victim's hair and threw her to the ground. Defendant then came out of the back door of the trailer. Hopper heard him say "Charletta, you stole my f------ package. I'm going to be the one to end it." Chamberlain then jerked Covington up and threw her towards defendant. Defendant had a gun and motioned towards the back door of the trailer. As they moved towards the back door, Chamberlain was holding the victim by the hair and defendant had a gun to the back of her head. Immediately after that, Hopper heard one gunshot.

On 7 August 1991 at 1:17 p.m., Deputy John Smith of the Cumberland County Sheriff's Department was dispatched to Thomas' Mobile Home Park regarding a possible deceased person in a ditch. Deputy Smith found the body of Charletta Covington in a ditch in the woods near the trailer at lot # 10. He also found a trash bag in the ditch with the body.

Dr. Deborah Radisch, an expert in forensic pathology, testified that on 8 August 1991 she performed an autopsy on the victim. She further stated that the cause of death was a single gunshot wound to the head. Based on the scalp tearing around the wound and the existence of powder residue within the wound track, Dr. Radisch determined that the muzzle of the gun was in contact with the victim's scalp when it was fired. Dr. Radisch removed small fragments of lead and jacketing material from inside the wound track.

Deputies from the Homicide Section of the Cumberland County Sheriff's Department conducted a search of the trailer. They found garbage bags on the kitchen counter which were of the same texture and color as the one found in the ditch with the body. The deputies located cleaning materials in the kitchen and cleanser in the living room. They discovered a visible amount of blood in the living room, human tissue on the stereo, and a bullet hole with a projectile embedded in it in the window frame behind the sofa. On the kitchen table, they found .38 caliber hollow-point ammunition, which was consistent with the projectile in the window frame and with the bullet fragment removed from the victim's body. Sergeant Donald Smith testified that the deputies later recovered an Amtrak train ticket for New York City in Damon Chamberlain's name which indicated a departure time of 1:49 p.m. on 7 August 1991.

Lucy Milks, a forensic serologist and a Special Agent with the SBI, conducted chemical tests in the trailer using luminal and phenolphthalein. She obtained reactions indicating the presence of blood in the living room, kitchen, hallway, bedroom, and bathroom. Samples of blood from the trailer were consistent with the victim's blood. Milks observed swirling patterns which indicated cleaning or mopping blood. Milks also noticed several small, rounded reactions one-inch in diameter. She testified that these reactions were consistent with the tips of crutches defendant was using in August 1991. Milks testified that the luminal reactions indicated that the crutch tips had picked up blood and transferred it to the floor.

Defendant presented three witnesses. Damon Chamberlain testified that he was from New York and was serving a twenty-year sentence in North Carolina after a plea bargain in which he pled guilty to the second-degree murder of Charletta Covington. He testified that Charletta Covington was not in the trailer on the night of 6 August 1991. Chamberlain testified that on the morning of 7 August 1991, he was in the trailer with Pam Jordan, Jerome Kelly, and the victim. Chamberlain testified that he saw a .41 caliber magnum revolver near the couch; to prevent someone from stealing it, he picked it up and saw that it was cocked and had bullets in it. When he tried to put the trigger back, the gun accidently discharged and the bullet went past Kelly and hit Charletta Covington, who was sitting on the couch six to seven feet away, in the head.

Chamberlain testified that they panicked, ran out, and went to Hardee's. He stated that after leaving Hardee's they went to another trailer on Patton Street to get defendant and then to a nearby hotel. Chamberlain testified that later in the evening of 7 August 1991, he and Kelly went back to the trailer to move the body to the ditch in the woods. The next day, he and Kelly purchased cleaning materials and went to the trailer with defendant to clean it. Defendant was in the trailer but did not help them. Chamberlain testified that they then left for New York City.

Jerome Kelly testified that he was from New York and was serving a three-year sentence pursuant to a plea bargain in which he pled guilty to accessory-after-the-fact to the murder of Charletta Covington. He testified that Charletta Covington was not in the trailer on the night of 6 August 1991. He stated that around 10:00 or 10:30 a.m. on 7 August 1991, he was in the trailer with Chamberlain, Pam Jordan, and the victim. He saw Chamberlain with the gun and heard it discharge and saw the victim with her head back on the couch. Kelly testified that later on the night of 7 August 1991, around 11:00 p.m., he went with Chamberlain back to the trailer to move the body. They went back to the trailer on 8 August 1991 in the middle of the day to clean it. He did not remember whether defendant was with them. Kelly testified that after cleaning the trailer, they took the train to New York.

Defendant testified that he came to North Carolina to sell drugs. He further testified that he was not in the trailer on the night of 6 August 1991. He saw the victim in the early morning hours of 7 August 1991 while he was in the trailer on Patton Street. The victim was looking for Chamberlain. Around noon on 7 August 1991, Chamberlain and Kelly came to him and told him Chamberlain had killed Charletta Covington. Defendant testified that he was not present when Kelly and Chamberlain moved the body, but that he was there when they were cleaning. Defendant admitted, however, that when he gave a statement to New York City Police he stated that he had never been back to the trailer.

The State presented rebuttal evidence through the testimony of Sergeant Smith. Smith testified that a .41 magnum revolver cannot be loaded or unloaded with the hammer in the cocked position because the gun's chamber cannot be opened. He further testified that the Sheriff's Department had not found any .41 magnum ammunition or weapon at the trailer. Smith stated that the deputies had not found blood stains or any evidence of blood on or near the couch at the trailer.

In his first assignment of error, defendant contends the trial court erred in admitting under Rule 804(b)(5) the hearsay testimony of Michelle Hopper, which was in the form of an out-of-court statement given to an officer. Defendant argues that the circumstances surrounding this hearsay evidence do not have sufficient guarantees of trustworthiness to warrant introduction under Rule 804(b)(5), and therefore admission of the statement violated his state and federal rights to confrontation of witnesses, based on the Sixth Amendment of the United States Constitution and Article I, Section 23 of the North Carolina Constitution. We disagree.

The residual hearsay exception for instances in which the declarant is unavailable, Rule 804(b)(5), provides:

(b) Hearsay exceptions.--The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:

. . . . .

(5) Other Exceptions.--A statement not specifically covered by any of the foregoing exceptions but having equivalent circumstantial guarantees of trustworthiness, if the court determines that (A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered that any other evidence which the proponent can procure through reasonable efforts; and (C) the general purposes of these rules and the interests of justice will best be served by admission...