State v. Smith

Decision Date07 February 1991
Docket NumberNo. 235A88,235A88
Citation328 N.C. 99,400 S.E.2d 712
CourtNorth Carolina Supreme Court
PartiesSTATE of North Carolina v. Roger Lee SMITH.

Appeal of right by defendant pursuant to N.C.G.S. § 7A-27(a) from a judgment imposing a sentence of death entered by Friday, J., at the 25 April 1988 Criminal Session of Superior Court, Northampton County, upon a jury verdict finding defendant guilty of first-degree murder. This Court allowed defendant's motion to bypass the Court of Appeals on his related assault and armed robbery convictions on 25 August 1989. Heard in the Supreme Court 10 October 1990.

Lacy H. Thornburg, Atty. Gen. by Thomas J. Ziko, Sp. Deputy Atty. Gen., Raleigh, for the State.

Malcolm Ray Hunter, Jr., Appellate Defender by Daniel R. Pollitt, Asst. Appellate Defender, Raleigh, for defendant-appellant.

WHICHARD, Justice.

Defendant was convicted of first-degree murder on the basis of premeditation and deliberation and under the felony murder rule. He was also convicted of assault with a deadly weapon with intent to kill inflicting serious injury and two counts of armed robbery. At defendant's capital trial, he was sentenced to death for the murder. The trial court sentenced him to a total of seventy-two years imprisonment on the other offenses. We find no prejudicial error in the suppression, jury selection, or other guilt phases of the trial. The State concedes, and we agree, that defendant is entitled to a new sentencing hearing under McKoy v. North Carolina, 494 U.S. 433, 110 S.Ct. 1227, 108 L.Ed.2d 369 (1990).

Mary Davenport and her husband own the B & D Foodland in Ahoskie. In July 1987, Frank Kurczek was the Foodland meat manager and Donnie Carr the store manager. On 25 July 1987, Kurczek and Carr came to work early, about 5:30 a.m., to prepare a hog for a customer. They took the hog out the back door of the store towards the outdoor hog cooker, where they encountered a black male wearing a black ski mask, blue jeans, blue shirt, and having "poppy eyes." The man stood up from behind the cooker with a .22 caliber pistol and said "put your hands up or I'll kill you." The robber patted the two men down, took a key case from Carr, and told them to go to the office where the safe was. Once in the office, the robber repeatedly demanded that they open the safe. Kurczek and Carr answered that they did not know the combination, and Carr said there was money in a cash register in another office. The robber then shot Kurczek in the chest once and went with Carr to the other office. The robber picked up three or four cash register tills and several money bags and told Carr to go to the back of the store. As the robber was leaving the store he went back by the first office, where Kurczek was, turned and squatted and shot him again, and went out the back door with Carr. Kurczek died as a result of the wounds caused by the shots. Once outside, the robber shot Carr three times (in the arm, side and back). The robber then left and Carr called the police. Carr described the robber's race, sex, and clothing to Ms. Davenport shortly after Carr's call to the police, and to policeman Steve Hoggard at the hospital.

Hertford County Deputy Sheriff Chris Williams testified that he was called at 6:00 a.m. on 25 July 1987 to assist in the armed robbery investigation. The suspect was a black male wearing blue jeans and a blue shirt. At 8:15 a.m., Williams saw a black male walking on the side of the road two miles outside Ahoskie wearing blue jeans and a blue shirt. Williams accelerated his car to catch up with that person and in so doing his car made a loud noise. The person then ran away towards a farmhouse. Other officers came to the area to help look for the unidentified pedestrian.

At 9:20 a.m. Deputy Sheriff Ronnie Stallings saw a black male, who was wearing blue jeans and a blue shirt, running in the vicinity of the farmhouse; the officers present chased, apprehended, and handcuffed the person. The person apprehended was defendant. Stallings testified that he asked defendant what his name was and defendant replied, "why are you messing with me, I haven't shot anybody." Stallings searched defendant and found victim Kurczek's wallet in defendant's pocket. The trial court concluded that Stallings had probable cause to arrest defendant and a reasonable basis for the search and seizure.

Ahoskie policeman Doug Doughtie testified that he advised defendant of his Miranda rights at 10:10 a.m. on 25 July 1987. Doughtie and SBI agents Ransome and Wooten then interrogated defendant at the Ahoskie police station from 10:10 a.m. to 1:00 p.m. Defendant was hot, sweaty, and tired after having "hung out" at "The Corner," a noted Ahoskie "hangout" for drug use and drinking. Defendant told the officers he had not slept all night. He said he had not shot or robbed anyone, that he went to the grocery store to get a job, found the wallet on the ground outside the store, and ran when the police came.

After a short break, Sheriff Winfred Hardy, Jr. interrogated defendant at the police station from 1:45 p.m. to 2:05 a.m. Hardy did not repeat the Miranda warnings, but did ask if defendant had been read and understood his rights. Hardy then told defendant that he could get the electric chair, that the Bible encouraged truth telling, that defendant's parents would want him to tell the truth, and that it would help with the judge and prosecutor. Hardy testified that defendant agreed to take the police to the local recreation center where they would find a gym bag. Defendant went with the police to the center, but no one found the bag. The police returned defendant to the county jail. Later that afternoon, officers found the gym bag containing binoculars, a rifle scope, a ski mask, a left-handed glove, a .22 caliber pistol, a baseball cap, and two money bags containing $1,112.97.

Policeman Doughtie, SBI agent Wooten, and another officer interrogated defendant a third time on 25 July 1987 at the Hertford County courthouse from 10:15 p.m. to 11:30 p.m. Defendant received the Miranda warnings and agreed to talk. Defendant said he had been drinking the night before and that some of the items found were not his. Doughtie described an incriminating scenario of the day's events to which defendant agreed.

Wooten, Ransome, and Doughtie interrogated defendant again the next day from 7:10 p.m. to 8:10 p.m. They gave him the Miranda warnings, and he gave substantially the same response as in the third interrogation.

Defendant was twenty-two-years old at the time of trial and had finished the ninth grade. Defendant testified that he awoke at 10:00 a.m. on 24 July, did not have any sleep or food during the thirty hours between awakening and the interrogation on 25 July, and had consumed large amounts of alcohol, marijuana, and crack cocaine during that thirty hours. Dorothea Dix Hospital reports indicate defendant has an "adjustment disorder," poor judgment and insight, an IQ of seventy-nine, "borderline intellectual functioning," and a history of alcohol and cocaine abuse.

SBI agent Michael Creasey testified that defendant's gunshot residue test was negative. Agent Navarro testified that defendant's fingerprints were not on the bank bags, binoculars, rifle scope, gun, or money binders found in the gym bag.


Defendant filed motions to suppress evidence derived from his allegedly unlawful and unconstitutional arrest and interrogations. Defendant's first ground for seeking suppression of his confessions and the physical evidence found in the gym bag was that his arrest was without probable cause and was therefore unconstitutional. We have stated that A warrantless arrest is based upon probable cause if the facts and circumstances known to the arresting officer warrant a prudent man in believing that a felony has been committed and the person to be arrested is the felon.... "Probable cause for an arrest has been defined to be a reasonable ground of suspicion supported by circumstances sufficiently strong in themselves to warrant a cautious man in believing the accused to be guilty."

State v. Zuniga, 312 N.C. 251, 259, 322 S.E.2d 140, 145 (1984) (citations omitted), cert. denied, 484 U.S. 959, 108 S.Ct. 359, 98 L.Ed.2d 384 (1984) (quoting State v. Shore, 285 N.C. 328, 335, 204 S.E.2d 682, 686 (1974). Defendant contends that the description of "a black male wearing blue jeans and a blue shirt" was insufficient to support a finding of probable cause when an officer saw a person matching the description two hours after the felony occurred and more than two miles from the scene of the felony.

Assuming, without deciding, that the vague description of the felon was insufficient to establish probable cause to arrest, the other circumstances of the arrest, combined with the description, made the arrest lawful. Between 8:00 and 8:30 a.m. Deputy Williams noticed a black man generally fitting the description he received at 6:00 a.m. regarding a robbery and shooting. Williams was in uniform and was driving his patrol car. The man stopped when he noticed Deputy Williams and then ran though a driveway and behind a house as Deputy Williams approached him with the patrol car. Flight may properly be considered in assessing probable cause when it is challenged. See State v. Zuniga, 312 N.C. at 263, 322 S.E.2d at 147.

Deputy Williams called for backup to help search the area where the suspect ran. The search ended when the police discovered a black man running through the woods who matched both the early morning description and Deputy Williams' description. Without success, the police called to the man to stop. After a brief chase, the authorities apprehended and patted down the suspect. When Deputy Stallings asked the suspect his name, he responded: "I haven't shot anybody." Deputy Stallings then searched the suspect and discovered a billfold containing a blank check on the account of one of the victims.

In light of all the facts and...

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