State v. Porter

• Decision Date: 02 June 1995
• Docket Number: No. 22A94,22A94
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Willie Eric PORTER.

Page 716

457 S.E.2d 716

340 N.C. 320

STATE of North Carolina v. Willie Eric PORTER.

No. 22A94.

Supreme Court of North Carolina.

June 2, 1995.

Michael F. Easley, Atty. Gen. by David F. Hoke, Asst. Atty. Gen., for the State.

Malcolm Ray Hunter, Jr., Appellate Defender, by Staples Hughes, Asst. Appellate Defender, for defendant-appellant.

MITCHELL, Chief Justice.

Defendant, Willie Eric Porter, was tried capitally upon proper indictments for first-degree arson and for three counts of first-degree murder at the 21 June 1993 Criminal Session of Superior Court, Hertford County. The jury returned verdicts finding defendant guilty of first-degree arson and guilty of three counts of first-degree murder on the basis of premeditation and deliberation and under the felony-murder rule.

At the end of the capital sentencing proceeding, the jury recommended a sentence of life imprisonment for each of the three first-degree murder convictions. The trial court imposed sentences of life imprisonment for the three murders and a fourth sentence of life imprisonment for first-degree arson. All of the sentences are to be served consecutively. Defendant appeals to this Court as a matter of right pursuant to N.C.G.S. § 7A-27(a) from the judgments in the murder cases. His motion to bypass the Court of Appeals on his appeal from the judgment in the first-degree arson case was allowed by this Court on 12 October 1994.

The evidence presented at defendant's trial tended to show the following: Mr. Clifton Lassiter lived in Wise's Mobile Home Park in Murfreesboro and dated Ms. Dorothy Porter, defendant's mother. Mr. Lassiter was blind and was aided by Ms. Porter. On 6 February 1992 Minnie Fleetwood, a neighbor, took Mr. Lassiter and Ms. Porter to the grocery store in Mr. Lassiter's car. Ms. Fleetwood then took them back to Mr. Lassiter's mobile home, where they put away the groceries. Defendant and Ms. Daphine Boone arrived, and defendant asked Ms. Porter for money. When his mother told him she did not have any money, defendant began cursing and insulting her. He then took off one of Ms. Porter's shoes and used it to beat her on the head. Ms. Porter pled with her son to stop. He stopped and threw the shoe out the door of the mobile home. When his mother asked him to return the shoe, defendant went outside, brought the shoe in, and threw it at her. At this point Ms. Fleetwood left the trailer because of "the way [defendant] was beating on ... his mother and the way he cursed God." It was approximately 8:30 p.m.

Although the testimony was unclear at trial as to the precise sequence of events, witnesses testified that defendant continued to quarrel with Ms. Porter and Ms. Boone. At one point defendant kicked open the front door. This action prompted Mr. Lassiter to pick up a knife and chase defendant out of the mobile home. Mr. Lassiter, being blind, was assisted in his efforts by Ms. Boone. After being chased out of the mobile home by the knife-wielding Mr. Lassiter, defendant apologized. However, when hostilities again arose, defendant left, saying, "[T]hat's all right, I'll be back.... I'll get your ass."

Later that evening Mr. Eugene Ely and Mr. Dale Hicks were driving home after a night of bowling with Mr. Hicks' sister and a friend. Mr. Ely saw defendant's car parked beside the road with the hood open as Mr. Hicks turned his car into the mobile home park. The defendant's car door was open, and he was standing by it with a white five-gallon plastic pail beside him. The pail was filled with a liquid, some of which had spilled on the ground.

Mr. Hicks drove through the mobile home park to take his sister to her mobile home. After they stopped, Mr. Ely saw defendant running out the door of Mr. Lassiter's mobile home. Defendant's back was on fire, and black smoke was coming from the mobile home. Defendant ran toward his car, but stopped, dropped, and rolled to extinguish the fire on his back. As defendant was rolling on the ground, Mr. Lassiter's mobile home burst into flames. The windows blew in as the fire consumed the front of the mobile home. The fire was reported to police at 11:30 p.m.

After extinguishing the fire on his back, defendant jumped up and got in his car. Mr. Ely attempted to stop defendant by grabbing the handle of his car door, but defendant pulled away at a high rate of speed. Defendant drove further into the mobile home park and then turned his car around and drove past the fire for a second time. This time Mr. Hicks attempted to thwart defendant's escape by hurling a brick at his car; other witnesses shouted for defendant to stop. Undeterred, defendant drove out of the mobile home park.

After the fire was extinguished, Mr. Ely and Mr. Hicks showed Officer Rodney Pennington, a sergeant of the Hertford County Sheriff's Department, where the plastic bucket had been placed and the location of the spill. All three agreed that the spilled liquid smelled like gasoline.

Dennis Honeycutt, special agent with the State Bureau of Investigation, entered the burned mobile home. Most of the fire damage had occurred in the center of the structure. The bodies of Ms. Dorothy Porter, Mr. Clifton Lassiter, and Ms. Daphine Boone were located in the living room of the mobile home. All three victims had died from fire inhalation, and their bodies were badly burned. Although kerosene heaters were used to heat the home, the tanks which held the fuel were intact and had not ruptured. None of the heaters were in the area of the point of origin of the fire.

At approximately 5:00 a.m. on 7 February 1992, Officer Pennington was dispatched from the scene of the fire to investigate a report that defendant's car had been seen in a ditch along the side of a dirt road not far from the mobile home park. When Officer Pennington found the car, defendant was sitting in the front seat. The car's front right tire was flat, and a bumper jack had been applied to the car. The officer did not testify as to the time when he found defendant.

Subsequent laboratory tests of carpet and debris samples taken from the living area of the mobile home revealed the presence of gasoline. The tests showed that the defendant's sweatshirt and shoes also bore trace amounts of gasoline.

Defendant presented no evidence during the guilt-innocence phase of the trial.

In an assignment of error, defendant argues that the trial court committed reversible error by overruling his objection to the prosecutor's reference to his decision not to testify. During closing arguments, the prosecutor argued:

Using your own reason and your own common sense, ladies and gentlemen of the jury, I submit to you, when you go back to the jury room that you will find the defendant guilty of first degree murder on the basis of malice.... No accident, ladies and gentlemen of the jury, that he came up and did what he did in the way that he did, cold, calculated murder.

And then when he comes, ladies and gentlemen of the jury, when he comes and tries to hide, that's no accident. And you haven't heard anything about any accident.

Ladies and gentlemen of the jury, the evidence in this case is there are only three folks that can tell what happened, you know what, those three folks are dead and the person who did it.

You know what happened before and you know what he did afterwards, and ladies and gentlemen of the jury, that's what the evidence is in this case.

(Emphasis added.) At this point, defendant objected and moved to strike. The trial court overruled the objection. The prosecutor then resumed his argument that "the evidence is uncontradicted."

On appeal the defendant contends that the prosecutor's argument deprived him of rights guaranteed by the Constitution of North Carolina. Article I, Section 23 of the Constitution of North Carolina states that a defendant in a criminal case cannot "be compelled to give self-incriminating evidence." N.C. Const. art. I, § 23. This proscription is mirrored in N.C.G.S. § 8-54, which provides that a defendant in a criminal trial cannot be compelled to testify or "answer any question tending to incriminate himself." N.C.G.S. § 8-54 (1986). Even before the Supreme Court of the United States held in Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106, reh'g denied,381 U.S. 957, 85 S.Ct. 1797, 14 L.Ed.2d 730 (1965), that a reference to a defendant's failure to testify violates the accused's constitutional right to remain silent, this Court held that N.C.G.S. § 8-54 prohibited comment on a defendant's failure to testify. See, e.g., State v. Humphrey, 186 N.C. 533, 120 S.E. 85 (1923).

We have stated that "the purpose behind the rule prohibiting comment on the failure to testify is that extended reference by the court or counsel concerning this would nullify the policy that the failure to testify should not create a presumption against the defendant." State v. Randolph, 312 N.C. 198, 206, 321 S.E.2d 864, 869 (1984) (emphasis added). In Randolph, we emphasized the fact that "[a]ny reference to the failure to testify was so brief and indirect as to make improbable any contention that the jury inferred guilt from the failure of defendants to testify." Id. at 206, 321 S.E.2d at 869-70. We have emphasized that "[a] prosecutor violates [this rule] if 'the language used [was] manifestly intended to be, or was of such character that the jury would naturally and necessarily take it to be[,] a comment on the failure of the accused to testify.' " State v. Rouse, 339 N.C. 59, 95-96, 451 S.E.2d 543, 563 (1994) (quoting United States v. Anderson, 481 F.2d 685, 701 (4th Cir.1973), aff'd, 417 U.S. 211, 94 S.Ct. 2253, 41 L.Ed.2d 20 (1974)).

In the present case, the prosecutor's argument did not exhibit a manifest intent to comment on defendant's failure to testify. The prosecutor's meaning when using the words "tries to hide" is not absolutely clear, but it seems to have been a reference to defendant's ill-planned and ill-fated escape from the scene...