State v. Rose

• Decision Date: 28 January 1994
• Docket Number: No. 182A92,182A92
• Citation: 439 S.E.2d 518,335 N.C. 301
• Parties: STATE of North Carolina v. John Hardy ROSE.
• Court: North Carolina Supreme Court

Page 518

439 S.E.2d 518

335 N.C. 301

STATE of North Carolina v. John Hardy ROSE.

No. 182A92.

Supreme Court of North Carolina.

Jan. 28, 1994.

[335 N.C. 311] Appeal as of right pursuant to N.C.G.S. § 7A-27(a) from a judgment imposing a sentence of death entered by Allen (C. Walter), J., at the 4 May 1992 Criminal Session of Superior Court, Haywood County. Heard in the Supreme Court 15 September 1993.

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

Michael W. Patrick, Chapel Hill, for defendant-appellant.

FRYE, Justice.

On 4 February 1991 a Graham County grand jury indicted defendant for the murder of Patricia Stewart. Prior to trial, venue was changed to Haywood County. In a capital trial, the jury returned a verdict of guilty of first-degree murder. After a sentencing proceeding held pursuant to N.C.G.S. § 15A-2000, the jury recommended and the trial court imposed a sentence of death. Defendant gave oral notice of appeal on 12 May 1992. An order staying execution was entered by this Court on 15 May 1992.

Defendant brings forward numerous assignments of error. After a careful review of the record, transcript, briefs and oral arguments of counsel, we conclude that the guilt and sentencing phases of defendant's trial were free from prejudicial error, and that the sentence of death is not disproportionate.

The State presented evidence tending to show the following facts and circumstances. On 6 January 1991, the Graham County Sheriff's Department received a missing person's report regarding the victim, Patricia Deputy Sheriff Jerry Crisp conducted a visual inspection of Stewart's apartment on 6 January 1991 and found everything neat and clean except that the bed linen was missing from the bed. He then conducted interviews with other tenants in the apartment building, including defendant who lived with his sister and her boyfriend in the apartment above the victim. Defendant told Crisp that he knew the victim, but only in passing. Defendant also said that he had been at home all night on 2 January 1991, and had heard no disturbance in the apartment below. Crisp then prepared a missing person's report.

Stewart. Stewart had last been seen just after 2:00 a.m. on 3 January 1991 by a friend who had been with Stewart at her apartment. A co-worker with whom the victim rode to and from work had dropped the victim off at her apartment after work at approximately 11:30 p.m. on 2 January 1991. The victim failed to appear when she was to be picked up on the afternoon of 3 January 1991.

On 10 January 1991, SBI agents searched Stewart's apartment and observed small drops of blood on the venetian blinds behind the bed in the bedroom, on the headboard, on the bed itself, on the carpet and on some of the walls in the bedroom area. Blood was also found on a brass hatrack in the doorway leading from the living room to the dining room and on the door frame. Samples and scrapings were taken of the blood. SBI agents also discovered a broken fingernail on the apartment porch and a small piece of fingernail by the bedroom door.

SBI Agent Kevin West testified that he interviewed defendant on 10 January 1991 and defendant stated that he did not know Patricia Stewart at all, but then changed his statement and said that he had met her at a party. Defendant stated he only knew Stewart in passing and did not know anything about her disappearance, other than rumors he had heard in the community.

On 12 January 1991 defendant agreed to be interviewed at the Sheriff's Department. Defendant told Deputy Crisp he had been seeing Stewart discreetly and having sexual relations with her and had been in her apartment a few times. He stated he first became involved with Stewart about a month earlier and had last seen her on Tuesday, 1 January 1991. At that time they were in Stewart's apartment together for two hours, where they had sex and drank some wine. Defendant stated that he stayed in his apartment on 2 and 3 January, and that his sister and her boyfriend did not know about defendant's involvement with Stewart. Crisp testified that he interviewed over fifty people and no one was aware of any relationship between defendant and Stewart.

SBI Agent Tom Frye testified to several subsequent interviews with defendant. On 13 January, defendant stated that he had moved to the area approximately two months prior to the interview, and had moved in with his sister and her boyfriend. Defendant stated he met Stewart at a party and she later asked him to come by sometime and see her. He had sex with Stewart three or four times. Defendant stated that the last time he saw Stewart was on the 2nd of January and that Stewart's girlfriend had come to visit her. After the girlfriend left, defendant went into the apartment and had sex with Stewart. He then returned home and did not go anywhere else that night.

On 13 January, SBI Agent Charles Moody conducted a consent search of the apartment where defendant lived. Four knives were seized from defendant's apartment. Agent Mark Nelson performed a consent search of an automobile owned by defendant, a blue Pontiac, and one owned by his sister, a yellow Ford, both of which contained items which tested positive for blood. Nelson discovered a pair of numchucks in defendant's car which tested positive for blood. A tire tool, jumper cables and a thermos from the trunk of defendant's sister's car tested positive as well. Bloodstains were also found in the trunk of that car and a black sleeveless jacket in the back seat revealed the presence of blood. Bloodstains from the thermos and from the Ford trunk were consistent with the victim's blood type and inconsistent with the blood type of defendant.

On 14 January, SBI Agent Frye discussed with defendant the results of the searches of defendant's apartment and the two automobiles. Defendant stated that he did not want On 15 January 1991, officers searched defendant's grandmother's farm and found what appeared to be a grave near the bottom of a hill. After removing a stone, Agent Moody observed what appeared to be human skin underneath the stone. A photograph was taken and the human remains were exhumed. Tests performed on soil samples taken from the grave site revealed that the soil contained residual gasoline. Officers returned to the farm on 16 January to continue their search. A hoe was found beside the residence steps and a pair of women's panties and several items of bed linen were found in a creek on the property. Investigators also located a small pink bag, commonly called a "fanny pack," filled with various items, including a lipstick tube, a pair of black gloves, an address book and a calendar. The fanny pack also contained a savings account book bearing the name of Patricia L. Stewart, a small brown compact, a make-up brush, a small jewel case, some chewing gum, a set of keys, a folding blade knife and a billfold. Agent Moody testified that the officers found a piece of fabric about two feet away from the grave site and two plastic wire ties which were beneath the fanny pack.

to talk about Stewart's disappearance because the situation surrounding it was too bad to talk about, and he was concerned about what his family would think of him. Defendant did tell officers that "the disposition of Patricia Stewart was so bad" that they would not be able to find any of the remains. Defendant also later stated that he went to Stewart's apartment late on 2 January after drinking liquor. He stated he used his sister and her boyfriend's automobile without their knowledge.

On 15 January, agents also spoke again with defendant, this time in the presence of his mother. His mother told defendant that if he was involved with Stewart's disappearance or had any knowledge about it, he needed to tell about it. Defendant informed the agents that Stewart's body was located at his grandmother's farm. Agent Frye radioed this information to officers searching for the victim's body, but was informed that the body had been found.

At this point defendant was arrested and given Miranda warnings for the first time. Defendant waived his rights and gave an additional statement in which he said he had a relationship with Stewart which Stewart kept secret. He stated that he was in Stewart's apartment after midnight on Wednesday, 2 January. He was there before Stewart's girlfriend arrived and Stewart asked him to leave and come back later which he did. Defendant stated that he had drunk a quart of whiskey and smoked a lot of pot before going to Stewart's apartment. He stated that he went to the apartment to tell Stewart that he was going back to his girlfriend in Alabama and Stewart told him he could not go. Stewart told him he was her secret lover and that she would have him arrested for rape if he tried to leave. Defendant said he had a knife, that he just went crazy and beat her and choked her. Defendant then wrapped the victim's body in the bed linen and put it in the trunk of his Pontiac, but the car would not start. Defendant stated that after he put Stewart's body in the trunk of his car, he went back inside and tried to clean up. He stated that he took the knife he killed Stewart with back to his apartment, cleaned it and placed it in a box in his bedroom. He left the body in his car through the next day and in the evening borrowed his sister's Ford automobile. He took a gas can and had it filled. He then transferred the body to the trunk of the Ford. He drove the Ford to his grandmother's farm, took the body behind the house, used his grandmother's hoe to dig a shallow grave, poured gasoline on the body, set it afire and walked away. When the fire went out, defendant returned and covered the body with rocks, leaves and tree branches.

Dr. Deborah Radisch, medical examiner, testified that the victim's body showed signs of decomposition and of charring where it had been burned, in some areas down to the muscle. Most of the hair...