State v. Roper, No. 301A88

• Decision Date: 03 April 1991
• Docket Number: No. 301A88
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. James Edward ROPER.

Page 600

402 S.E.2d 600

328 N.C. 337

STATE of North Carolina v. James Edward ROPER.

No. 301A88.

Supreme Court of North Carolina.

April 3, 1991.

Appeal as of right pursuant to N.C.G.S. § 7A-27(a) from a judgment imposing a sentence of death entered by Lamm, J., at the 17 June 1988 Criminal Session of Superior Court, Burke County. Defendant's motion to bypass the Court of Appeals as to his convictions of first-degree rape and first-degree kidnapping as a habitual felon was allowed by this Court on 21 October 1988. Heard in the Supreme Court 9 October 1990.

Lacy H. Thornburg, Atty. Gen. by Debra C. Graves, Associate Atty. Gen., Raleigh, for State.

James R. Glover, Chapel Hill, for defendant-appellant.

MEYER, Justice.

In the early morning hours of 24 June 1987, after a heated confrontation with Ned Rader at Rader's mobile home near Morganton, defendant followed Rader after he left the mobile home. Rader stopped his truck, and defendant pulled his car alongside Rader. Words were exchanged between the occupants of the two parked vehicles; then defendant killed Rader with a single gunshot to the head from a nine-millimeter pistol. After killing Rader, defendant forcibly abducted the female passenger in Rader's truck. She was taken to a wooded area near defendant's home and raped. A jury found defendant guilty of first-degree murder, first-degree rape, and On 23 June 1987, Judy Townsend moved away from the mobile home she had shared with her estranged husband. With Ned Rader's help, she moved her belongings into Rader's mobile home. At dusk, defendant, an acquaintance of Townsend, telephoned Townsend at Rader's and was given directions to Rader's home.

first-degree kidnapping as a habitual felon. After a sentencing proceeding, the jury recommended a sentence of death for the murder conviction. The trial court sentenced in accordance with the recommendation and, additionally, sentenced defendant to consecutive terms of life imprisonment for first-degree rape and for first-degree kidnapping as a habitual felon. We find no error.

Defendant and Lester Wyatt arrived an hour later with beer and white liquor. After the four drank for a few hours, Townsend told the men she was tired and was going to bed. Defendant followed her into her bedroom, and Rader and Wyatt followed shortly thereafter. Townsend insisted that they all leave so she could go to bed. As defendant and Wyatt walked outside, Townsend heard defendant tell Wyatt, "I am going to kill Ned before the night's over with [;] ... I want you to take this rifle and watch him and don't let him get out of the trailer. Don't you let him get by."

In response to defendant's threat, Townsend told Rader to stay in the bedroom. She again asked defendant to leave, and he refused. Defendant reentered the mobile home. He sat on a stool in the living room, with a gun in his lap, and said, "I'm not going to go ... because before the night's over with, ... I'm going to rape you and pistol-whip you with this gun if I have to go through Ned Rader to do it."

At approximately 2:00 a.m., Townsend managed to call her divorce attorney, who notified the Sheriff's Department. Upset at Townsend for "call[ing] the law" on him, defendant detached the telephone receiver when the phone subsequently rang. Townsend reattached the receiver and managed to place another phone call, this time to Karen Snyder, who also notified the Sheriff.

By this time, Ned Rader had armed himself with a shotgun and told defendant to leave. As defendant and Wyatt drove away, Rader shot twice above the top of their car.

When members of the Sheriff's Department arrived with Karen Snyder, they advised Rader to take out a warrant against defendant and left.

Shortly thereafter, Rader and Townsend began the drive to the Sheriff's Department in Rader's truck. Rader drove with the shotgun across his lap with the barrel pointing out the driver's side window. As they neared the highway, defendant's car appeared from behind and began gaining on them. Townsend lowered her head, and Rader stopped the vehicle. When defendant's car stopped beside Rader's truck, words were exchanged, and defendant killed Rader with a single gunshot to the head from a nine-millimeter pistol belonging to Wyatt.

Defendant then appeared at the passenger side door of Rader's truck and ordered Townsend to get out. Upon her refusal, he broke the window with the stock of the pistol, unlocked the door, pulled her out of the truck, and struck her on the right side of the head with the gun. Defendant threatened to kill Townsend by morning because she "knew too much."

Roy Ray Willis, who lived nearby, testified that at approximately 4:30 a.m. he was awakened by a noise that sounded like a car accident. He telephoned the Sheriff's Department. Upon returning to his wife, she related that she had heard a woman say, "Are you going to shoot me, too?" Willis then telephoned the authorities again and relayed this additional information.

Defendant, Wyatt, and Townsend drove to defendant's mobile home, where Wyatt was instructed to remain. Defendant took Townsend into the woods, where he continued to threaten her life, ordered her to disrobe at gunpoint, and then raped her.

Based largely on pretrial statements given by Lester Wyatt, defendant contended The jury returned verdicts finding the defendant guilty of first-degree murder, first-degree rape, and first-degree kidnapping as a habitual felon. Following a sentencing proceeding, the jury found two aggravating circumstances: (1) that defendant had been previously convicted of a felony involving the use or threat of violence to the person, N.C.G.S. § 15A-2000(e)(3) (1988); and (2) that the murder was part of a course of conduct in which defendant engaged and which included the commission by defendant of other crimes of violence against another person, N.C.G.S. § 15A-2000(e)(11) (1988). The jury unanimously found all of the submitted mitigating circumstances to exist. On finding that the mitigating circumstances were not sufficient to outweigh the aggravating circumstances and that the aggravating circumstances were sufficiently substantial to call for the death penalty, the jury recommended a sentence of death for the murder.

that he acted in self-defense in killing Ned Rader. When Lester Wyatt failed to appear to testify in response to a subpoena and an extensive search, Wyatt's testimony was admitted in the form of the reading of his pretrial statements made separately in tape-recorded interviews with a detective of the county Sheriff's Department and defendant's counsel.

Defendant was also charged with being a habitual felon. At the hearing on this charge, the State offered into evidence defendant's Burke County criminal court record. Defendant had previous convictions in 1971 for voluntary manslaughter, in 1982 for felonious breaking or entering, and in 1985 for attempted second-degree rape. Defendant presented no evidence. The jury found defendant to be a habitual felon.

On 17 June 1988, defendant was sentenced to die for the murder of Ned Rader, in accordance with the jury's verdict. Defendant was also sentenced to life imprisonment for first-degree rape, that sentence to be served consecutive to the sentence imposed for the murder, and to life imprisonment for first-degree kidnapping as a habitual felon, that sentence to be served consecutive to the sentence imposed for rape.

GUILT PHASE ISSUES

Since there is no dispute as to who fired the shot that killed Ned Rader, defendant notes that the central issue in this case is whether the fatal shot was fired in self-defense. Besides defendant and the deceased, only two people were present and eyewitnesses to the shooting. One eyewitness to the circumstances of Rader's death was Judy Townsend, who testified for the State. The other eyewitness was Lester Wyatt. Wyatt did not testify in person; consequently, the jury heard reading of the two unsworn statements that he had made prior to the trial.

I.

Defendant contends that the trial court's denial of his motions for a recess or continuance and for a mistrial after Lester Wyatt could not be located denied him his sixth amendment right to compulsory process and due process under the United States Constitution and his comparable state constitutional rights. We conclude that these arguments have no merit.

A. The Sixth Amendment and Procedural Due Process Rights of the United States Constitution

Generally, the granting of a continuance is within the sound discretion of the trial court. Ungar v. Sarafite, 376 U.S. 575, 84 S.Ct. 841, 11 L.Ed.2d 921, reh'g denied, 377 U.S. 925, 84 S.Ct. 1218, 12 L.Ed.2d 217 (1964); Avery v. Alabama, 308 U.S. 444, 60 S.Ct. 321, 84 L.Ed. 377 (1940). A significant limitation on that discretion occurs where denial of a continuance results in the violation of a defendant's right to due process or his sixth amendment right to compulsory process. The sixth amendment of the United States Constitution provides in pertinent part as follows:

In all criminal prosecutions the accused shall enjoy the right ... to have compulsory process for obtaining witnesses in his favor....

U.S. Const.amend. VI. In Washington v. Texas, 388 U.S. 14, 19, 87 S.Ct. 1920, 1923, 18 L.Ed.2d 1019, 1023 (1967), the United States Supreme Court noted that "[t]he right to offer the testimony of witnesses, and to compel their attendance, if necessary, is in plain terms the right to present a defense."

Courts have discussed numerous factors which are weighed to determine whether the failure to grant a continuance rises to constitutional dimensions. Of particular importance are the reasons for the requested continuance presented to the trial judge at the time the request is denied. Ungar v. Sarafite, 376 U.S. at 589, 84 S.Ct. at 849-50, 11 L.Ed.2d at 931.

A continuance in a criminal trial essentially involves a question of procedural due process. Implicitly, the courts balance the private interest...