State v. Rogers, 373A00.

• Decision Date: 10 May 2002
• Docket Number: No. 373A00.,373A00.
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina, v. Lionel Lewis ROGERS.

562 S.E.2d 859

355 N.C. 420

STATE of North Carolina, v. Lionel Lewis ROGERS.

No. 373A00.

Supreme Court of North Carolina.

May 10, 2002.

Roy Cooper, Attorney General, by Valérie B. Spalding, Special Deputy Attorney General, for the State.

Staples Hughes, Appellate Defender, and Janet Moore, Assistant Appellate Defender, Durham, for defendant-appellant.

EDMUNDS, Justice.

On 25 August 1997, defendant Lionel Lewis Rogers was indicted for first-degree murder, first-degree burglary, and first-degree sexual offense. He was tried capitally before a jury at the 20 March 2000 session of Superior Court, Halifax County. On 10 April 2000, the jury found defendant guilty of all charges. The first-degree murder conviction was based on theories both of premeditation and deliberation and of felony murder. At defendant's capital sentencing proceeding, the jury found the existence of five aggravating circumstances, two statutory mitigating circumstances, and fourteen nonstatutory mitigating circumstances, and recommended the death penalty. On 14 April 2000, the trial court sentenced defendant to death for the first-degree murder conviction. The trial court also imposed consecutive sentences of 146 to 185 months' imprisonment for the first-degree burglary conviction and 480 to 585 months' imprisonment for the first-degree sexual offense conviction. Defendant appeals his conviction for first-degree murder and his sentence of death to this Court as a matter of right. On 21 June 2001, we allowed defendant's motion to bypass the Court of Appeals as to his burglary and sexual offense convictions. For the reasons that follow, we conclude that defendant's trial was free from prejudicial error; however, we hold that defendant is entitled to a new capital sentencing proceeding. At trial, the State presented evidence that Hazel Sechler, the eighty-eight-year-old victim in this case, lived alone in Weldon, North Carolina. At approximately 9:25 p.m. on 11 May 1997, her neighbor Irma Johnson telephoned the victim. During their conversation, the line went dead. When Johnson's attempts to call the victim back were unsuccessful, she took a flashlight onto her porch and looked toward the victim's house, which was about forty feet away. The lights in the victim's home provided adequate illumination, and Johnson saw a man on the victim's porch. She noticed the man's appearance, complexion, hair style, and clothing. When she saw the man enter the victim's home, she called the police.

As Johnson continued to watch, she saw the man emerge from the victim's house carrying in his left hand an implement that appeared to be a knife. She called the police again, and shortly thereafter, Lieutenant Eugene Harris of the Weldon Police Department responded. He met Johnson, then observed that the telephone wires leading to the victim's house appeared to have been cut. Upon entering the victim's home, he noticed that a door leading upstairs had been forced open, then saw a cane and a shoe in the hall and what appeared to be a spot of blood on the wall.

Lieutenant Harris found the victim lying on her bed, bleeding from injuries to her throat and hands. Her neck had been sliced so deeply that she was breathing through the wound in her trachea. Her nightgown had been ripped away from her chest and abdomen. Her panties were around her ankles, and the responding paramedics observed blood around her vaginal area. The victim was conscious but unable to speak because her larynx had been cut.

The victim was transported to a local hospital, then immediately airlifted to Duke University Medical Center. While receiving treatment the next day, the victim suffered a fatal heart attack. John Butts, chief medical examiner for the State of North Carolina, was accepted by the court as an expert in the field of forensic pathology. He conducted the autopsy of the victim and described the injuries to her neck. He stated that she had a "large gaping wound" in her throat and "two deeper cutting injuries" in the same area, "indicating that it [took] more than one stroke or movement to produce the cut." He also found defensive wounds on both of the victim's hands and evidence of injury to the victim's genitalia. Dr. Butts' opinion was that the victim's death was caused by the injuries to her neck.

After the victim was taken to the hospital on 11 May 1997, police interviewed Johnson. She described the individual she saw as a black male with dreadlocks who was wearing a blue-green T-shirt. On 12 May 1997, police found a T-shirt matching Johnson's description 131 feet from defendant's home. Individuals who saw defendant at different times on 11 May 1997 identified the T-shirt as being the one he had been wearing that day. Also on 12 May 1997, police observed defendant walk slowly past the victim's home, then later twice drive past it.

Defendant voluntarily went to the police station on 13 May 1997, where he provided blood, hair, and clothing samples. He also was photographed, and that same day, police showed Johnson a photographic lineup. She promptly identified defendant as the individual she had seen enter the victim's home and also identified the T-shirt found by the police as matching the shirt worn by the intruder.

Subsequent testing of the DNA in two hairs found on the T-shirt excluded defendant as the source of the hairs, but the victim was in 8.5% of the Caucasian population that could have contributed the strands. DNA testing of the blood found on the shirt revealed that there was only one chance in many millions that the blood did not come from the victim. Additional DNA testing of fabric around the T-shirt's collar indicated that while there had been more than one wearer, the profile of the major contributor nevertheless could be determined. That profile matched the DNA obtained from defendant's blood sample. The odds against an unrelated individual also matching the major contributor's genetic profile were one in 4,800 for the African-American population, one in 230,000 for the Caucasian population, one in 130,000 for the southeastern Hispanic population, and one in 68,000 for the southwestern Hispanic population.

One of defendant's neighbors testified that after the assault on the victim, she visited defendant at his home and saw him carrying a bag containing a knife that appeared to be bloody. As she watched, defendant cleaned the knife. Defendant told her he had dropped it in some blood on the way home and to keep the knife a secret.

On 6 August 1997, defendant was arrested. He was transported to the police station and given Miranda warnings. Defendant appeared unconcerned and told investigators that they had nothing on him. However, when investigators showed defendant a photograph of the victim and advised him that she could not have identified him because she had been legally blind, defendant grew quiet and remarked, "She didn't have to die." The next day, police searched a mini-storage bin rented by defendant and recovered several knives of a style similar to those found in defendant's home.

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

PRETRIAL ISSUES

First, defendant contends that the trial court erred in denying his motion to change venue. In this motion, originally filed on 15 September 1997, defendant cited several newspaper articles about the murder. When this motion was heard on 19 April 1999, defendant submitted to the court seven articles from the local newspaper. The court reviewed these articles and observed that some of them described the events of the crime and the nature of the victim without naming defendant. Defendant responded by pointing out that other articles focused on defendant and argued that even where he was not mentioned, the articles had a natural tendency to inflame the readers. After considering defendant's arguments, the trial court noted that the most recent article was more than a year and a half old and that additional time would pass before the case would be called for trial. Because of this extended interval, the court concluded

that there's no reasonable likelihood that members of the public would be able to recall in any specific detail the reports of the media concerning this event or of the defendant, nor is it likely that they would have preconceived impressions that they would continue to have about this matter based upon such pretrial publicity.

... The defendant has failed to show that there's a reasonable likelihood that prejudicial pretrial publicity will prevent a fair trial in this case.

Accordingly, the court denied defendant's motion without prejudice to defendant to raise the issue again at the time of trial.

When the case was called for trial on 20 March 2000, defendant renewed his motion, citing a recently broadcast television report. The court viewed the segment, considered arguments of counsel, and denied defendant's motion; however, the court allowed defendant to address pretrial publicity during jury voir dire. Of the sixty-nine prospective jurors considered for service, forty-one had some knowledge of the case, and of the fifteen jurors actually selected, nine had such knowledge.

A motion to change venue is controlled by N.C.G.S.§ 15A-957, and a trial court's denial of such a motion will not be reversed absent an abuse of discretion. State v. Golphin, 352 N.C. 364, 391-92, 533 S.E.2d 168, 190 (2000),cert. denied, 532 U.S. 931, 121 S.Ct. 1379, 149 L.Ed.2d 305 (2001). Similarly, a motion for individualized jury selection is also addressed to the trial court's discretion. State v. Anderson, 355 N.C. 136, 147, 558 S.E.2d 87, 95 (2002). Our review of the record and the particular incidents cited by defendant satisfy us that the trial court did not abuse its discretion here. To obtain a change of venue, a defendant must show a specific and identifiable prejudice against him as a result of pretrial publicity. State v. Barnes, 345 N.C. 184, 204, 481 S.E.2d 44, 54,...