State v. Rowsey
| Decision Date | 31 July 1996 |
| Docket Number | No. 490A93,490A93 |
| Citation | 343 N.C. 603,472 S.E.2d 903 |
| Court | North Carolina Supreme Court |
| Parties | STATE of North Carolina v. Raymond Dayle ROWSEY. |
Michael F. Easley, Attorney General by David Roy Blackwell, Special Deputy Attorney General, for State.
Malcolm Ray Hunter, Jr., Appellate Defender by Staples Hughes, Assistant Appellate Defender, Durham, for defendant-appellant.
Defendant was tried capitally on an indictment charging him with the first-degree murder of Howard Rue Sikorski ("victim"). The jury returned a verdict finding defendant guilty as charged on the bases of both premeditation and deliberation and felony murder. The jury also found defendant guilty of robbery with a firearm. Following a capital sentencing proceeding, the jury recommended that defendant be sentenced to death for the murder; and the trial court entered judgment accordingly. The trial court sentenced defendant to a consecutive term of forty years in prison for robbery with a dangerous weapon. For the reasons discussed herein, we conclude that the jury selection, guilt-innocence phase, and capital sentencing proceeding of defendant's trial were free from prejudicial error and that the death sentence is not disproportionate.
The State's evidence tended to show that on the evening of 23 March 1992, defendant and his half brother, Raymond Lee Steele, wrestled, played cards, and listened to the radio at Steele's house. The two men got bored, and they decided to walk to the Circle K convenience store on the corner of Chapel Hill Road and Mebane Street in Burlington, North Carolina, where the victim worked as a clerk.
Defendant and Steele left Steele's house at 12:30 a.m. on 24 March and arrived at the Circle K approximately thirty to forty minutes later. At the store defendant and Steele obtained change and played several dollars worth of video games. Defendant and Steele then went to the back of the store to examine the store's rental movie display.
Defendant asked Steele to give him some money so that he could buy a snack, and Steele gave defendant two dollars. Defendant selected one bag of M & M's and went to the checkout counter. Upon learning the price, defendant returned to the candy aisle and obtained a second bag of M & M's. Defendant then went back to the checkout counter and paid for the candy.
At this point defendant pulled a gun out of his coat pocket and pointed it at the victim. The gun clicked, but it did not fire. When the gun clicked defendant turned towards Steele and smiled. Defendant told Steele that he had scared the victim with a water gun.
Defendant then turned back towards the victim, jerked the gun up, and shot the victim in the face. As the victim fell to the floor and turned his back to defendant, defendant leaned over the counter and shot the victim again. Defendant then ran around the counter and fired at least two more shots. As the victim lay face down on the floor, defendant stood over him and kicked him three or four times in the back of the head.
After seeing defendant kick the victim in the back of the head, Steele ran out one of the store's two doors, around the building, and into the parking lot. Moments later, defendant ran out the other door with something underneath his arm and the gun in his hand. Together, defendant and Steele ran and walked back to Steele's house. As they walked home, Steele asked defendant why he shot the victim. Defendant told Steele that he was just playing around, that he saw the victim reaching underneath the counter as if reaching for a gun, and that he thought the victim was going to shoot him so he shot the victim instead.
At Steele's house defendant counted $54.00 in cash and told Steele that he had taken the money from the Circle K cash register. Upon Steele's inquiry, defendant told Steele that he took the money in order to make it look like a robbery and in order to make it worth the while. Steele also saw four or five adult entertainment magazines, including Penthouse, Playboy, and Oui, in defendant's possession. Defendant offered Steele half the money, but Steele declined. Defendant then offered and Steele accepted a two-dollar bill which had been taken from the Circle K cash register.
Steele asked defendant if the victim was alive, and defendant told Steele that he did not know whether the victim remained alive or not. Defendant told Steele that he kicked the victim in an effort to ensure the victim's death and that the victim was alive and gasping for breath when he left the scene.
Defendant examined the murder weapon, a .25-caliber automatic handgun which defendant had taken from a locked trunk in the home of his girlfriend's mother, and indicated that it was dirty. Defendant told Steele that he did not want to return the gun in this condition, and Steele cleaned the gun for defendant. Defendant explained that the gun was loaded when he took the gun, so Steele provided defendant with .25-caliber bullets so that defendant could return the gun loaded.
The victim's body was discovered, lying behind the checkout counter, at approximately 2:00 a.m. on 24 March. There was a large quantity of blood on the floor running from the victim's head to his right foot. Dr. Karen Elizabeth Chancellor performed the autopsy on the victim's body; and her examination revealed six gunshot wounds: one to the face, one to the back of the neck, one to the right side of the head, and three to the back. Additionally, the victim suffered a number of blunt-force injuries to the head and neck area. One of the gunshot wounds pierced the victim's left lung and resulted in massive bleeding; this wound alone would have caused the victim's death.
Mildred Holder, who helped manage the Chapel Hill Road and Mebane Street Circle K, arrived at the store early that morning and identified the victim's body. Ms. Holder subsequently closed out the cash register and determined that $57.54 was missing. The Circle K's manager, Brenda Bowes, noticed that several magazines were missing from the adult entertainment magazine rack. Ms. Holder informed the police that the Circle K store had a two-dollar bill "bait money" policy pursuant to which the store kept a two-dollar bill in the cash register and a record of the bill's serial number. Ms. Holder told the police that the two-dollar bill was missing and provided the police with the bill's serial number.
At approximately 2:30 p.m. on 24 March, Steele and his girlfriend made a purchase at a Burlington store with the missing two-dollar bill. Steele was arrested shortly thereafter. Steele initially made several false statements in which he denied any involvement in the Circle K murder, but he subsequently admitted that he had been present at the Circle K when defendant shot and killed the victim. Defendant was arrested later that evening.
Steele was permitted to plead guilty to second-degree murder and robbery with a dangerous weapon in exchange for his truthful testimony at trial. At trial Steele acknowledged that he was testifying pursuant to a plea bargain and that he was in fact guilty of the crimes to which he pled based upon a theory of acting in concert. Steele also indicated that he did not plan or participate in the robbery or the murder and that he was shocked when the shooting began.
During defendant's cross-examination of Steele, defendant questioned Steele with respect to a four-page letter which Steele wrote to defendant while they were in prison and which concluded with the phrase, "even though you didn't do it." Steele acknowledged writing the letter, but denied writing "even though you didn't do it."
Two of defendant's witnesses claimed that they overheard Steele admit that he killed the victim. Robert Eastwood, an inmate at the Alamance County jail, testified that he overheard a conversation between Steele and defendant and that during that conversation Steele acknowledged that he killed the victim. Another inmate, Gerald Wayne Flynn, II, testified that he overheard a jailhouse conversation between Steele and defendant in which Steele stated that he would take the blame for the victim's murder because he did not want defendant to take the blame for something defendant did not do.
At sentencing the State initially declined to present evidence. Defendant presented evidence that he came from a broken home, that he was neglected by his mother, that he was exposed to the promiscuous sexual activity of his mother and sister, that he was illegitimate and had little contact with his biological father, and that his mother had a drug- and alcohol-abuse problem.
The State's rebuttal evidence at sentencing showed that defendant was responsible for breaking into a church and stealing a number of items valued at approximately $900.00 just weeks prior to the Circle K murder. The State's evidence further showed that defendant had been convicted of fifteen counts of injury to personal property in 1990, one count of possession of a malt beverage by a minor in 1990, and two counts of misdemeanor larceny in 1991.
Defendant contends that the trial court erred in granting the State's motion to excuse for cause prospective juror Gene Kizziah. We disagree.
In the instant case the record shows that prospective juror Kizziah was excused after extensive questioning by the State, defendant, and the trial court. In response to the State's questions, Mr. Kizziah stated that he opposed the death penalty in most cases and that his views would "impair" his ability to impose a death sentence in a real case. After Mr. Kizziah indicated that his views would impair him "a great deal," the State moved to excuse him for cause.
The trial court then permitted defendant to question Mr. Kizziah in order to clarify his answers, and Mr. Kizziah gave equivocal and conflicting responses. Mr. Kizziah stated that he did not know if he could follow the trial court's instructions in evaluating the evidence, that he did not know if...
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