State v. Powell

• Decision Date: 28 July 1995
• Docket Number: No. 190A93,190A93
• Citation: 340 N.C. 674,459 S.E.2d 219
• Parties: STATE of North Carolina v. William Dillard POWELL.
• Court: North Carolina Supreme Court

Page 219

459 S.E.2d 219

340 N.C. 674

STATE of North Carolina v. William Dillard POWELL.

No. 190A93.

Supreme Court of North Carolina.

July 28, 1995.

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

William F.W. Massengale and Marilyn G. Ozer, Chapel Hill, for defendant-appellant.

WHICHARD, Justice.

Defendant was convicted of the first-degree murder of Mary Gladden, an employee of The Pantry on Charles Road in Shelby, and sentenced to death. He appeals from his conviction and sentence. We conclude that defendant received a fair trial, free of prejudicial error, and that the sentence of death is not disproportionate.

The State's evidence tended to show that the victim was killed on 31 October 1991 while on duty at The Pantry. Scott Truelove testified that he bought five dollars' worth of gasoline there between 3:15 and 3:30 a.m. on 31 October. At the counter he stood near a rough-looking man with unkempt, shoulder-length hair, facial hair, and a tattoo on his left forearm. The next morning Truelove read about the murder and gave a description of the man to Captain Ledbetter of the Shelby Police Department. On 16 November 1991 Truelove identified defendant as the man by picking him out of a photographic lineup.

On 31 October 1991 Clarissa Epps stopped at The Pantry to buy gasoline at approximately 4:15 a.m. She went in to pay for her purchase. After waiting in vain for a clerk to appear, Epps called out but received no answer. Epps then turned and saw the victim lying in blood behind the counter. Epps drove home and called the police.

Officer Mark Lee of the Shelby Police Department arrived at The Pantry at 4:26 a.m. on 31 October in response to a radio dispatch. Lee first ensured that all customers had left the store and then found the victim behind the counter. She was lying on her back in a pool of blood with her head toward the cash register and her hands at her sides. Lee noticed injuries to the victim's left eye and ear as well as other injuries to her head. He also saw a one-dollar bill on the floor near her left foot and another on the counter.

Dr. Stephen Tracey, who performed the autopsy, testified that the victim had numerous lacerations on her head and that her skull was fractured in several places. Additionally, her nose was broken and her left eye had been displaced by a fracture to the bone behind it. The victim's brain had hemorrhaged, was bruised and lacerated in several places, and contained skull fragments. Tracey determined that blunt trauma to the head caused the victim's death and that she died from the trauma before she lost a fatal amount of blood. He also concluded that human hands had not inflicted the wounds; he surmised from their size and shape that the perpetrator used a lug-nut wrench, a tire wrench, or possibly a pipe.

Mark Stewart, an employee of The Pantry, testified that he worked on 27 October and 1 November 1991. On 27 October Stewart saw a tire tool behind the counter to the side of the cash register. The tool had lain there for approximately one year. It was curved on one end with a round hole for a lug nut and was split on the other end for hubcap removal. Stewart noticed that the tool was missing when he worked on 1 November, the day after the murder.

Thomas Tucker, a district manager of The Pantry, testified that he arrived at The Pantry sometime after 6:00 a.m. on 31 October. He examined the cash register tape for that morning; it showed, among other transactions, a gasoline sale of five dollars at 3:29 a.m. and a no-sale at 3:35 a.m. The cash register enters a no-sale when it is opened On 16 November 1991 Lieutenant Mark Cherka and Officer David Lail drove to Anthony's Trailer Park to find defendant and bring him to the police station for questioning. Defendant came out of a trailer and allowed Cherka to take four photographs of him. Defendant agreed to accompany Cherka and Lail to the police station for questioning as a possible suspect in the murder. Defendant was not under arrest at that time; the officers told him he did not have to leave with them.

but no purchase is made. According to the tape, no transaction occurred between the five-dollar purchase and the no-sale. Tucker opened the register at 6:22 a.m. at the direction of Captain Ledbetter to determine whether any money had been taken during the homicide. He concluded that approximately forty-eight dollars were missing.

They arrived at the police station at approximately 4:00 p.m., and Cherka began to question defendant. Defendant refused to allow Cherka to tape record the interview, so Cherka made notes of what transpired shortly after the interview ended. Defendant stated that he had gone to sleep at around 4:00 a.m. on 31 October after drinking with Don Weathers and defendant's girlfriend, Lori Yelton. Later that morning Yelton and defendant took Weathers to the hospital because he had cut himself at some point during the previous night. Cherka left the interview room and related defendant's statement to Ledbetter. While Cherka had been questioning defendant, Truelove had identified defendant from a lineup containing thirty-two photographs as the man he saw in The Pantry on 31 October. Ledbetter informed Cherka of the identification and then accompanied Cherka back into the interview room.

Defendant again indicated he did not want to be tape recorded, and Ledbetter complied. Ledbetter told defendant about Truelove's identification and asked defendant if he wanted an attorney. Defendant stated that he had not killed anyone and did not want an attorney. Ledbetter advised defendant of his Miranda rights, and defendant signed a waiver of those rights. Defendant continued to deny involvement in the murder.

Ledbetter then told him he knew he had killed the woman and asked, "Why did you kill her?" Defendant hung his head and answered, "[S]he slapped me and I went off on her." Defendant then asked to speak to Ledbetter alone; Cherka left the room. Ledbetter again asked defendant why he had killed the victim. Defendant stated that she had slapped him, he had panicked, he had not intended to harm her, and he merely wanted the money from the cash register.

Defendant then indicated that he wanted to speak to Ledbetter off the record and asked Ledbetter to tear up the Miranda waiver form, which Ledbetter did. Defendant related additional details about the crime, including information about the weapon he had used, after Ledbetter ripped the form into four pieces. At about 6:00 p.m. defendant asked for a lawyer, and one was contacted for him. Defendant was arrested and taken into custody after he conferred with his lawyer.

Defendant testified that he did not read the Miranda waiver form, but signed it because he felt "agreeable" from cocaine he had ingested. He further testified that Ledbetter suggested they talk off the record. On cross-examination he admitted he had given Miranda warnings during his tenure in law enforcement; he recited the warnings on the witness stand. He also admitted he had not mentioned in his pretrial affidavit that Ledbetter proposed that they talk off the record.

Billy Joe Sparks testified that sometime after the murder he had a conversation with Paul Barnard, who called himself Rambo. During the conversation Rambo sniffed glue and both men drank beer. Rambo told Sparks he had killed a woman at a supermarket by beating her to death. Rambo died before defendant's trial; Sparks did not tell the police about Rambo's statement until after Rambo's death.

Johnny Smith, the operator of a local entertainment center, testified that he had spoken to Truelove about the murder. Smith stated that Truelove told him he had seen a man with red hair in The Pantry on the day of the murder.

In rebuttal the State recalled Truelove. He testified that he knew Rambo and that the lineup from which he identified defendant contained a photograph of Rambo. Truelove never picked Rambo as the person he saw at The Pantry on 31 October. Truelove also testified that he remembered having a conversation with Smith about becoming an uncle, not about the murder. Truelove and his sister both have red hair, and his sister had recently given birth to a baby with red hair.

The State also called Officer James Glover of the Shelby Police Department in rebuttal. Glover testified that Rambo claimed to be a Vietnam veteran and to have a black belt in karate; neither claim was true. Before his death Rambo had telephoned Glover and told him he had lied to Sparks about committing the murder. Rambo told Sparks he had killed a woman only to maintain his street image.

At sentencing the State relied on the evidence it presented at the guilt/innocence phase. Defendant's evidence showed that defendant was raised in a loving family, had worked as a jailer and with the fire department, and was well-liked and not violent. Dr. Terrence Onischenko, an expert in psychology and neuropsychology, testified that he performed comprehensive testing of defendant on 22 November 1992. The results showed that defendant's memory, problem-solving skills, and motor functions are impaired. Defendant scored in the average range on other tests. Dr. Onischenko also testified that defendant has an increased chance of developing Alzheimer's disease as well as other organic diseases. Defendant's abuse of cocaine and alcohol probably caused his brain dysfunctions. Defendant has an average IQ and normal concentration skills, language functions, sensory ability, and visual ability.

Defendant also presented evidence showing that he took good care of his son, who is profoundly mentally retarded and autistic. Defendant implemented the programs devised for his son's development and served on the advisory council of the parent-teacher organization at his son's school. Two jailers at the Cleveland County jail testified that defendant had adjusted well to life as an inmate and had caused no problems.

The jury found ...