State v. Pickens, 121A92-2

• Docket Nº: No. 121A92-2
• Citation: 346 N.C. 628, 488 S.E.2d 162
• Case Date: July 24, 1997
• Court: United States State Supreme Court of North Carolina

Page 162

488 S.E.2d 162 346 N.C. 628 STATE of North Carolina, Plaintiff,
v.
Charles Louis PICKENS, Jr., Defendant. No. 121A92-2. Supreme Court of North Carolina. July 24, 1997.

Michael F. Easley, Attorney General by Daniel F. McLawhorn, Special Deputy Attorney General, for the State.

Charles R. Brewer, Asheville, for defendant-appellant.

LAKE, Justice.

This appeal marks the second time this case has come before this Court.

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[346 N.C. 634] On 7 May 1990, defendant Charles Louis Pickens, Jr. was indicted for first-degree murder and discharging a firearm into occupied property. He and codefendant James Edward Arrington were tried jointly and capitally in September 1991. The jury found defendant guilty, and he was sentenced to life for the murder conviction. On appeal, this Court concluded that the joinder of the defendants for trial was prejudicial error and remanded the case for new, separate trials. State v. Pickens, 335 N.C. 717, 440 S.E.2d 552 (1994). Defendant was retried noncapitally to a jury at the 27 November 1995 Criminal Session of Superior Court, Buncombe County, Judge Timothy L. Patti presiding. The jury found defendant guilty of first-degree murder in perpetration of a felony and guilty of discharging a weapon into occupied property. Judge Patti merged the convictions for sentencing and sentenced defendant to a mandatory term of life imprisonment. Defendant appeals to this Court as of right from the first-degree murder conviction.

The State's evidence tended to show that the defendant, Charles Louis Pickens, Jr., is the half brother of James Edward Arrington. On 24 March 1990, Arrington and his longtime girlfriend, Karen Robinson, had an argument that continued for a substantial period of time. Arrington and Robinson lived together in Apartment 4-A of the Erskine Street Apartments in Asheville, North Carolina, with Robinson's three children, one of whom was the victim, nine-year-old Tereca Stewart.

The specific events surrounding the killing of Tereca Stewart on 24 March 1990 began in Apartment 18-B of the same housing complex. This was the apartment of Darryl Cannady and his mother, Gloria Cannady. When Darryl Cannady arrived home from work that day, Arrington and Robinson came to his apartment. They started to argue, and Ms. Cannady told them to leave. Outside, Arrington accused Robinson of "messing around" with Darryl Cannady and angrily slammed Robinson down on the pavement.

The Asheville police were called. Upon arrival, the police informed Robinson that one of her possible remedies was to swear out a warrant for the arrest of Arrington. Robinson and Ms. Cannady went to the magistrate's office and took out two separate warrants against Arrington. When they returned, Robinson began removing Arrington's belongings from Apartment 4-A with the help of several individuals. Just as they were finishing, Arrington arrived at the apartment carrying a gun, a knife and some nunchakus (a martial arts [346 N.C. 635] weapon consisting of two sticks connected by a chain). Arrington ordered everyone but Robinson out of Apartment 4-A.

Arrington grabbed Robinson by the neck. Darryl Cannady then attacked Arrington, and the two began to fight. At approximately the same time, defendant's sister told defendant that Arrington and Cannady were fighting. Defendant proceeded toward Apartment 4-A, where the fight was taking place. At least two residents of the housing complex heard defendant make a statement to the effect that "he was going to kill everybody in that [expletive] apartment for messing with his brother."

Defendant burst into Apartment 4-A, pointed a rifle at Cannady and ordered Cannady to get off Arrington. Cannady fled the apartment as two shots were fired at him. As he was leaving, Cannady heard defendant ask Arrington, "Where's the nine?" He was referring to a nine-millimeter pistol. Cannady ran to Apartment 18-B, where Robinson and several others had also fled, including Robinson's children. Cannady and others saw Arrington and the defendant outside the apartment with guns. Someone yelled for everyone in the apartment to get down, but nine-year-old Tereca ran toward one of the adults in the living room. Just then, two shots were fired. One bullet pierced a living room window and struck young Tereca in the head. She was killed instantly. The bullet, a nine-millimeter round, passed through Tereca's brain and lodged in the apartment wall. A witness reported to the police that he saw defendant "with a gun shooting in the lady's window;" "[h]e was shooting in the living room window."

Calls were made to 911, and several Asheville police officers arrived within minutes. The housing complex was in a state of pandemonium.

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Sergeant William Wysong arrived while shots were still being fired. A man he believed to be Cannady grabbed him and pulled him to the ground. The man shouted hysterically, "He killed her. He shot--Fella [defendant] shot her. He just [expletive] shot her." While approaching Building 18, Lieutenant Tom Aardema heard several people scream "[t]hat was him," referring to the shooter as the black male driving away in an old Oldsmobile. Sergeant Walter Robertson testified that he saw the defendant driving away from the housing complex in an old model Oldsmobile.

Later that evening, defendant showed up at the Asheville Police Department and gave a statement to the police. Defendant had a conversation with his sister immediately after the interview in which he told her that "he didn't mean to shoot that little girl. He didn't know [346 N.C. 636] she was in there." When his sister returned to her father's house, defendant called and told her to have her father go outside and get the "cigarettes" from under the lawn mower. A nine-millimeter pistol was found under the lawn mower. Two to three months later, a cousin of the defendant bought a nine-millimeter pistol from a man who was accompanied by defendant's father. Defendant's cousin ultimately turned the weapon over to an attorney. Ballistics tests established that this was the nine-millimeter pistol that fired the fatal shot.

As stated above, defendant and Arrington were both convicted of the first-degree murder of Tereca Stewart; both convictions were set aside by this Court; and the case was remanded for new, separate trials. At the time of defendant's second trial, Arrington had already been released from prison after serving a portion of his sentence under a plea arrangement with the State in which he pled guilty to second-degree murder. Defendant informed the trial court that he intended to call Arrington as a witness in his second trial. Arrington was placed on the witness stand in the absence of the jury, and his attorney informed the trial court that Arrington desired to assert his Fifth Amendment right. The trial court, during voir dire, confirmed this with Arrington and ruled that Arrington had the right to exercise his Fifth Amendment privilege based on the possibility of perjury charges or federal prosecution. Arrington's plea transcript was then offered into evidence through the testimony of a police officer. Defendant was again found guilty of first-degree murder and sentenced to life imprisonment.

In his first assignment of error, defendant contends that the trial court erred by accepting Arrington's assertion of his Fifth Amendment privilege against self-incrimination, thereby not allowing defendant to present Arrington as a witness. Defendant argues that the trial court made insufficient findings regarding Arrington's fear of future prosecution, and that Arrington's privilege against self-incrimination was waived by virtue of his pleading guilty to and completing his sentence for the murder of Tereca Stewart. In the alternative, defendant claims that under due process Arrington should have been provided immunity from prosecution so that he could testify. Defendant also asserts that the trial court erred by refusing to allow him to introduce other evidence of Arrington's words and conduct tending to exculpate the defendant. Defendant maintains that he was prejudiced by the absence of this evidence because defendant's primary theory of defense was that Arrington was the person who fired the fatal shot. The inability to question [346 N.C. 637] Arrington or to present other evidence of Arrington's words or conduct, defendant argues, prevented him from establishing an adequate defense as guaranteed by our state and federal Constitutions. We do not agree with these several arguments.

Defendant contends the trial court did not make sufficient findings regarding Arrington's fear of future prosecution as required before ruling upon the right of a witness to invoke his Fifth Amendment privilege. The Fifth Amendment right against compulsory self-incrimination was made applicable to the states through the Fourteenth Amendment. Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964). It protects an individual from being compelled to give testimony which may incriminate him or which might subject him to fines, penalties, or forfeiture. Allred v. Graves, 261

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N.C. 31, 35, 134 S.E.2d 186, 190 (1964). "When a witness invokes the Fifth Amendment privilege, the trial court is to 'determine whether the question is such that it may reasonably be inferred that the answer may be self-incriminating,' " State v. King, 343 N.C. 29, 47, 468 S.E.2d 232, 244 (1996) (quoting State v. Eason, 328 N.C. 409, 418, 402 S.E.2d 809, 813 (1991)), and the claim of privilege "should be liberally construed," Allred, 261 N.C. at 35, 134 S.E.2d at 189. The privilege applies not only to "evidence which an individual reasonably believes could be used against him in a criminal prosecution," Maness v. Meyers, 419 U.S. 449, 461, 95 S.Ct. 584, 592, 42 L.Ed.2d 574, 585 (1975), but also encompasses evidence that "would furnish a link in the chain of evidence needed to prosecute the claimant," Hoffman v. United States, ...