State v. Pickens

• Citation: 440 S.E.2d 552,335 N.C. 717
• Decision Date: 04 March 1994
• Docket Number: No. 121A92,121A92
• Court: United States State Supreme Court of North Carolina
• Parties: STATE of North Carolina v. Charles L. PICKENS, Jr., and James Edward Arrington.

Page 552

440 S.E.2d 552

335 N.C. 717

STATE of North Carolina v. Charles L. PICKENS, Jr., and James Edward Arrington.

No. 121A92.

Supreme Court of North Carolina.

March 4, 1994.

Michael F. Easley, Atty. Gen. by Valerie B. Spalding, Asst. Atty. Gen., Raleigh, for State.

Robert W. Clark and Curtiss A. Graham, Asst. Public Defenders, Asheville, for defendant-appellant Pickens.

David G. Belser, Asheville, for defendant-appellant Arrington.

FRYE, Justice.

Defendants were indicted on 7 May 1990 for first-degree murder and discharging a firearm into occupied property. The State's motion for joinder was allowed on 13 April 1991. Defendants were tried capitally and found guilty of all charges. On the first-degree murder charge, the jury rejected a theory of premeditation and deliberation and found both defendants guilty based on a theory of felony murder. The trial court determined that there was insufficient evidence of any aggravating circumstances and therefore no capital sentencing proceeding was held. Each defendant was sentenced to life imprisonment for first-degree murder, and judgment on the underlying felony was arrested as to each defendant.

Both defendants bring forth numerous assignments of error on appeal. We find merit in defendants' assignments of error regarding their joinder for trial. We therefore remand this case to the trial court for new and separate trials for each defendant.

The State's evidence at trial tended to show the following facts and circumstances: On 24 March 1990, Tereca Stewart, the nine-year-old daughter of Karen Robinson, was killed by a large caliber bullet while she was inside apartment 18-B of the Erskine Street Apartments in Asheville. Karen Robinson had been the long-time girlfriend of defendant Arrington, who lived with her and her three children, including Tereca, in apartment 4-A of the same housing complex. Karen married Darryl Cannady two weeks after the shooting. Defendant Arrington is the half-brother of defendant Pickens whose father, Charles Pickens, Sr., lived in apartment 6-A of the Erskine Street Apartments.

On 24 March defendant Arrington and Karen Robinson were having an argument which continued over the course of several hours. Meisha Cannady, Darryl Cannady's niece, testified that she went with Karen and a group of friends and relatives to the magistrate's office where Karen and Meisha's grandmother, Gloria Cannady, secured assault and trespass warrants against Arrington. The group returned to apartment 4-A and began moving Arrington's property out of the apartment. Arrington arrived and told everyone but Karen to leave. A fight ensued between defendant Arrington and Darryl Cannady, and the others left apartment 4-A and went to apartment 18-B where Meisha's grandmother lived. As Meisha left, she ran into defendant Pickens who was entering apartment 4-A with a gun in his hands. As Meisha was running up the hill toward apartment 18-B, she heard two gunshots. Meisha entered apartment 18-B, followed by Darryl and Karen. The other members of the group were already in 18-B, along with Karen's children and Karen's sister's children. Shortly thereafter, Meisha heard two shots come through the window of apartment 18-B and saw Tereca fall after being shot in the head. Meisha testified that she saw defendant Arrington outside one of the windows of apartment 18-B.

Darryl Cannady testified that defendant Arrington came to apartment 18-B, where Darryl lived with his mother, Gloria Cannady, at about 6:30 p.m. on 24 March. Arrington was arguing with Karen and twice slammed her to the ground. The police were called and Arrington ran down the hill, stating that he would be back. Darryl testified that the police advised Karen and Gloria Cannady to secure assault and trespass warrants, which they did. Later that day, Darryl went with several others to apartment 4-A to help move Arrington's belongings out of the apartment. When the group arrived at 4-A, Darryl borrowed a rifle from Anita Chambers and checked the apartment to make sure Arrington was not there. Darryl returned the rifle to Anita who stood outside the apartment watching for defendant Arrington. Arrington came to the apartment and ordered everyone out; he had a gun, a knife and some nunchakus. Arrington began assaulting Karen and swung the nunchakus at Darryl; Darryl and Arrington began fighting. Defendant Pickens entered the apartment with a .22 caliber rifle and broke up the fight when he pointed the rifle at Darryl and told him to get off Pickens' brother. Darryl ran out of the apartment. Darryl testified that Pickens fired at him twice as he (Darryl) ran up the hill toward apartment 18-B. As Darryl was fleeing, he heard Arrington ask for Pickens' gun; Pickens tell Arrington to "get the .9 millimeter"; and Arrington say, "I got it." Darryl saw Arrington and Pickens outside apartment 18-B and then two shots came through the window, one hitting Tereca.

Ramona Gilliam, Karen's sister, and her three children were in the group that went with Karen to the magistrate's office, to apartment 4-A, and then into 18-B to flee the fighting. Gilliam testified that once inside apartment 18-B, she saw both defendants approach the apartment and saw an automatic weapon in Arrington's hands but could not see Pickens' hands. About two to three minutes later, she heard shots and Tereca was hit.

Stanley Aiken testified that on the evening of 24 March, he and defendant Arrington were sitting in the park near the apartments talking. Arrington asked Aiken to see if Karen was in 18-B, which Aiken did. About forty-five minutes later, as Aiken was looking out the window of apartment 18-A, where he lived, he heard some shots and saw defendant Pickens running up the hill with a gun. Aiken also stated that he saw Monica Pickens, defendant Pickens' sister, behind Pickens as Pickens was firing into 18-B.

Rosetta Boseman testified that she lived in apartment 20-B and that on the evening of 24 March, she heard Monica Pickens yelling from the bottom of the hill at Gloria Cannady who was trying to dissuade Calvin Cannady from going down to protect his brother Darryl. Half an hour later, Boseman saw defendant Pickens coming across the street with a gun; he walked by her window and fired toward Building 18.

Karen Robinson Cannady testified that on 24 March she had an argument with defendant Arrington over her allegedly "seeing" Darryl Cannady. Arrington followed her from apartment 4-A to 18-B and, once inside, was using profanity and was asked to go outside by Gloria Cannady. Arrington and Karen went outside where Arrington slammed Karen to the ground three times. Karen reentered the apartment and someone called the police. The police advised her to secure a warrant for assault which she did that afternoon. Karen then returned to her apartment and began removing Arrington's personal property. Arrington returned to apartment 4-A and assaulted Karen but she was able to get away when Darryl Cannady intervened. She ran to apartment 18-B and shortly thereafter saw Arrington outside the front window. Karen heard him say, "I'm coming in, I'm coming in." She then heard gunshots and saw her daughter wounded.

Detective Walt Robertson testified that he arrived at apartment 4-A and observed defendant Arrington leaning against an automobile; Arrington had blood on his face and shirt and his right eye was swollen. Detective Robertson was about to enter apartment 4-A when people arrived screaming that a child had been shot at 18-B. He proceeded to apartment 18-B, followed by Sergeant Tom Aardema. After a warning from Aardema to get down, Robertson looked back and saw defendant Pickens running behind him and then disappearing. Shortly thereafter, Robertson saw a black and gray Oldsmobile exit the apartment complex and called for assistance to stop the automobile. Although unable to stop the automobile at that time, Robertson later identified the driver as defendant Pickens.

Sergeant Ross Robinson participated in the investigation of this case. He testified that in apartment 18-B he observed two bullet holes in the front window, a bullet lodged in the kitchen window frame and a bullet hole beside the window. He found a .22 caliber rifle in a closet. Fingerprints on the rifle were identified as belonging to Anita Chambers. Tests performed on the .22 rifle indicated that the bullet recovered from 18-B could not have been fired by the .22 rifle found in that apartment. Gunshot residue tests performed on both defendants were inconclusive.

An autopsy performed on Tereca Stewart revealed the cause of death to be extensive brain damage caused by a bullet larger than a .22 caliber--one that would have been consistent with a .9 millimeter projectile.

Nineteen witnesses testified for defendant Arrington. Fireman Charles Biddix testified to arriving at the scene at 9:10 p.m. and finding defendant Arrington walking out of apartment 4-A. Arrington was bleeding from a cut above his eye and appeared to have been drinking. Other firemen also testified to treating Arrington. Fireman Jeff Anders testified that he thought he heard a gunshot after arriving on the scene.

Sergeant Tom Aardema testified that he ran up the hill from apartment 4-A to 18-B to assist Detective Robertson. He heard people in the crowd yell, "That's him, that's him, that's the shooter!" Aardema yelled for Robertson to get down and aimed his weapon at a person Robertson later identified as defendant Pickens. Pickens disappeared, but shortly thereafter Aardema saw a gray Oldsmobile go by and heard people screaming, "That was him!"

Anna Galloway, who lived at apartment 14-A, testified that she arrived home by car between 8:45 and 9:15 p.m. on 24 March and saw Arrington outside Building 4 holding his head. She drove on to her apartment and heard some cursing as she got out of the car. She then saw defendant Pickens run up the hill and heard him say, "That m_____ f_____ ain't going to f___...