State v. Prevatte

Citation356 N.C. 178,570 S.E.2d 440
Decision Date04 October 2002
Docket NumberNo. 492A99.,492A99.
PartiesSTATE of North Carolina v. Ted Anthony PREVATTE.
CourtUnited States State Supreme Court of North Carolina

Roy Cooper, Attorney General by William B. Crumpler and Robert C. Montgomery, Assistant Attorneys General, for the State.

Center for Death Penalty Litigation by Kenneth Rose, for defendant-appellant.


In 1995, Ted Anthony Prevatte (defendant) was sentenced to death after being found guilty of first-degree murder and two counts of second-degree kidnapping. State v. Prevatte, 346 N.C. 162, 484 S.E.2d 377 (1997). Following defendant's appeal from these convictions, this Court granted defendant a new trial. Id.

On 17 February 1999, at his second trial, the jury found defendant guilty of first-degree murder and two counts of kidnapping. The first-degree murder conviction was based on the theories of malice, premeditation and deliberation, and the felony murder rule. The jury recommended and the trial judge imposed a sentence of death for the murder conviction and consecutive terms of imprisonment of thirty years each for the kidnapping convictions.

The record reveals the following pertinent facts. The thirty-two-year-old victim (Cindy McIntyre) was married with two children (Michael and Matthew). She and her husband, Mike, were estranged but trying to reconcile. The victim and defendant attended the same church, sang together in the choir, and had been dating for about a year. Defendant lived with his mother across the street from the victim.

On 1 June 1993, when the victim and her husband saw each other, the victim's husband gave her a rose, kissed her, and told her he loved her. Later that same day, the victim and her son Matthew were at home when defendant came in with a present for Matthew. As Matthew was opening the present, his mother said, "Oh my God." Matthew turned around and saw defendant pointing a gun at his mother. Defendant had borrowed a gun from his cousin that afternoon.

When Matthew saw defendant with the gun, Matthew jumped up, and defendant pointed the gun at him. Defendant took the victim and Matthew to the bedroom and made them get down on their knees. Defendant then hit and kicked the victim. Defendant pointed the gun at Matthew's head and said if the victim did not shut up, defendant would shoot Matthew.

Defendant grabbed Matthew and locked him in a bathroom down the hall from the bedroom. Defendant briefly left the house but shortly returned and brought the victim out of the house, with her hands bound behind her back. Defendant had his hands on the victim's neck and shoulder area. Defendant forced the victim into a car, pulled the victim back out of the car, and then struck the victim three to four times and slammed the victim's head into the car. The victim's hands remained bound behind her back. Defendant next reached into the car and pulled out a handgun. When the victim tried to run away, defendant held the gun with both hands, aimed, and fired more than once. Defendant left immediately after the last shot.

An autopsy of the victim's body revealed she suffered three gunshot wounds. Each bullet passed through the victim's body. One bullet went through the middle of the victim's back and completely destroyed her aorta and heart. Massive bleeding occurred in the chest cavity. These wounds caused the victim's death.

Inside the master bedroom of the victim's house, investigators found a nylon rope tied to a bed frame and a roll of duct tape on the floor. The roll of duct tape was consistent with the duct tape used to bind the victim's hands.

Prior to the murder, the victim told a witness she was afraid of defendant because he knew she was reuniting with her husband. The victim said she was afraid defendant would hurt her, her children, or her husband. Witnesses also heard defendant say he would kill the victim if he could get away with it and he "[felt] like killing her."

Before analyzing defendant's arguments, we first note that defendant's two trial attorneys in this case are the same attorneys who represented defendant in his 1995 capital trial for this murder.

We also note defendant presented an insanity defense at trial. Two defense experts expressed opinions that defendant had a paranoid personality disorder and was insane at the time of the shooting. The State offered rebuttal evidence that on the day of the murders, defendant was observed acting in a calm, friendly manner. The State's expert testified that on the day of the murders, defendant was able to understand the nature and quality of his actions as well as the difference between right and wrong.


We first address defendant's assignment of error that his vicinage rights were violated in that venue should not have been changed from Anson County to Stanly County because the court lacked statutory authority to change venue, the court lacked inherent authority to change venue without giving an adequate reason, and defendant did not waive his right to venue. Defendant's argument is misplaced.

"The vicinage concept requires that the jurors be selected from a geographical district that includes the locality of the commission of the crime." 4 Wayne R. LaFave and Jerold H. Israel, Criminal Procedure § 16.1(b), at 462 (2d ed.1999). "Technically, `vicinage' means neighborhood, and `vicinage of the jury' meant jury of the neighborhood or, in medieval England, jury of the county." Williams v. Florida, 399 U.S. 78, 93 n. 35, 90 S.Ct. 1893, 1902, 26 L.Ed.2d 446, 456, n. 35 (1970).

First, defendant contends he has a right to be tried in the county in which he was charged, namely, Anson County. The general rule in regard to venue is the prosecution must be in the county where the offense is committed. N.C.G.S. § 15A-131(c) (2001). However, defendant's contention ignores the facts of this case.

On 13 July 1998, defendant filed his motion for change of venue alleging that "there exists in the County of Anson ... so great a prejudice against the defendant that he cannot obtain a fair and impartial trial." In support of his motion, defendant further alleged:

1. At the time of the incident alleged and continuing regularly thereafter, there was substantial pretrial publicity that created so great a prejudice against the defendant that he cannot obtain a fair and impartial trial in Anson County.
2. There is a reasonable likelihood that a fair re-trial will be prevented.
3. The transcript of the prior trial showing over 1800 pages of jury voir dire purports that the defendant cannot receive a fair and impartial re-trial in Anson County.

As a result of the foregoing, defendant "respectfully move[d] the Court to grant his motion for change of venue."

On that same date, the trial court was hearing other motions in this case while defendant and both of his attorneys were present in court. The trial court gave defendant the opportunity to hear his motion for change of venue that day. Defendant was informed that his case was coming up for trial on 27 July 1998, which was two weeks away. Defendant, through his attorneys, asked that the motion for change of venue not be heard at that time.

On 25 July 1998, defendant filed a handwritten, notarized motion to dismiss counsel which provided:

[O]n Monday, July 13, 1998 defendant was caused to appear in Superior Court in Anson County for pretrial motions on the part of the defense which defendant had not been given any prior knowledge of said pretrial motions hearing, of which one motion—motion for change of venue—was favored by the prosecution in regard to the change of location—Standly [sic] County— which defense counsel told defendant was in his favor (in) 1994 before defendant's first trial at a special session of Superior Court, defense counsel, McSheehan and Painter disagreed with defendant on a change of venue saying that if a change of venue was granted by the court, that the D.A. would get to pick the county for the trial to be held in and that the D.A. Honeycutt would pick [Stanly County] and Stanly County was "more bloodthirsty than Anson County." And also at the July 13, 1998, pretrial hearing defense counsel Mr. McSheehan and Mr. Painter both lied to defendant in trying to have defendant believe that he was going to trial in two weeks on July 27, 1998, to try and trick defendant into agreeing to their pretrial motion for a change of venue while well knowing, from having talk[ed] to the D.A., that the July 27, 1998, trial date had already been scheduled for another murder case of State of North Carolina v. Chris Holden.

It should be noted that defendant had a history of writing letters to dismiss his counsel. On 13 October 1997, the trial court had held a hearing on defendant's motion to reconsider appointment of one of his attorneys. At that hearing, defendant asked the court to allow him to withdraw his motion requesting that Mr. Painter be removed as one of his appointed attorneys. The trial court allowed defendant's motion to withdraw.

On 24 August 1998, the trial court held a hearing on defendant's motion to dismiss counsel. The following lengthy colloquy took place:

THE COURT: This is your motion, Mr. Prevatte; is that correct?
MR. PREVATTE: Yes, sir.
THE COURT: All right. Do you want to offer any evidence, Mr. Prevatte?
MR. PREVATTE: ... I just don't feel comfortable with these two gentlemen anymore. They tell me one thing, and then on down the road, they tell me something totally contradicts what they told me the first time. There's evidence out there to prove that State's main witness Jeffrey Burr lied. And they won't get it.
They won't petition the court for the things I need, like a private investigator to check it out, and go get it. And they just keep me confused. Theytheythey said they were ready to go to court in July when I went down to Anson County. And they tried to trick me into taking a change of venue in Stanly County, which is even bad or even worse than having it tried

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    ...state his personal opinion. Also, there was no objection to the prosecutor's argument.This case is similar to State v. Prevatte, 356 N.C. 178, 570 S.E.2d 440 (2002). In affirming the prosecutor's argument, the North Carolina Supreme Court stated:"[D]efendant attributes error to the State's ......
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