State v. Thompson

• Decision Date: 04 September 1992
• Docket Number: No. 424A91,424A91
• Citation: 420 S.E.2d 395,332 N.C. 204
• Parties: STATE of North Carolina v. Tammie Lee THOMPSON.
• Court: North Carolina Supreme Court

Page 395

420 S.E.2d 395

332 N.C. 204

STATE of North Carolina v. Tammie Lee THOMPSON.

No. 424A91.

Supreme Court of North Carolina.

Sept. 4, 1992.

Appeal by defendant as of right pursuant to N.C.G.S. § 7A-27(a) from a judgment imposing a sentence of life imprisonment entered by Ellis, J., at the 28 January 1991 Special Session of Superior Court, Jones County, upon a verdict finding defendant guilty of first-degree murder. Heard in the Supreme Court 15 April 1992.

Lacy H. Thornburg, Atty. Gen. by Valerie Spalding, Asst. Atty. Gen., Raleigh, for the State.

William J. Morgan, Jacksonville, for defendant-appellant.

FRYE, Justice.

Defendant, Tammie Lee Thompson, was indicted on one count of first-degree murder by a Duplin County grand jury. By consent of the parties and with court approval venue was changed from Duplin County to Wake County. Defendant was tried twice in Wake County; in each trial, the jury deadlocked and a mistrial was ordered. Again by consent of the parties and with court approval, venue was changed from Wake County to Jones County. Defendant was tried noncapitally to a jury, which returned a verdict of guilty of murder in the first degree. The trial judge imposed the mandatory sentence of life imprisonment. Defendant gave notice of appeal to this Court on 7 February 1991.

Defendant brings forward several assignments of error. After a thorough review of the record, we conclude that defendant received a fair trial, free of prejudicial error.

I.

The State presented evidence tending to show the following facts and circumstances:

On Monday, 23 May 1988, the body of Raymond McKay (the victim) was found lying between a truck and a car in the parking lot of an abandoned store in the southwest corner of the intersection of North Carolina Highway 111 and Rural Paved Road 1803 known as "Lyman's Crossroads" in Duplin County.

Cecil Davis, a self-employed carpenter, testified that the victim worked for him as a framer. In May, 1988, Davis was framing small houses in the Wilmington area, about sixty miles from Lyman. He and the victim would meet at Lyman's Crossroads in the mornings in order to travel to work together. On 23 May, Davis and the victim met around 6:10 a.m. While waiting for the rest of the construction crew to arrive, Davis left the victim waiting in the victim's car while Davis went to help his father with a van that would not start. Davis was gone for about thirty minutes. When he returned, he saw the victim lying on the ground, with a wound to his head. Davis noticed that McKay's car had been moved approximately fifty feet towards the main road, and that the victim's body was now lying where his car had originally been parked. Davis identified various photographs of Lyman's Crossroads, and used them to illustrate his testimony to the jury.

Several witnesses, including Jimmy Register, Mary Ann Futrell and Dianne Miller, testified that at approximately 6:15 a.m. on 23 May, while on their way to work, they saw the victim talking to a person seated in the driver's side of a car which appeared to be a yellow Monte Carlo or Grand Prix. Register, with the aid of a previously identified and admitted exhibit depicting Lyman's Crossroads, testified to the position of the cars located at the scene of the crime. Futrell, with the aid of a sketch that she had drawn previously, testified to the position of the victim in relation to the yellow car. Miller testified that she heard two gunshots and saw a man who had been standing by the yellow car fall. Another witness, Bernice Bryant, who lived near Lyman's Crossroads, testified that she heard three gunshots in rapid succession.

Dr. Walter Gable testified as an expert in forensic pathology. He performed an autopsy on the victim and determined that the cause of death was a gunshot wound to the head. In Dr. Gable's opinion, the wound to the head was caused by a large caliber pistol and was consistent with either a .38 caliber or .357 Magnum. No bullets, shell casings, or lead fragments were found in the body or at the scene.

Earl Thomas testified that he was at a service station in Beulaville on Sunday, 22 May, at approximately 7:30 a.m. and talked with a man who came into the store asking for directions to Lyman's Crossroads. The man showed Thomas a road map and a handwritten map. Thomas had difficulty understanding the man because he did not speak English well. The man was dark skinned, drove a yellow two-door Oldsmobile, and was alone.

Dale Tucker, who was employed by the North Carolina Department of Transportation, testified that he found a pistol in a ditch on Highway 24 about one and a half miles west of Beulaville during the morning of 25 May while he and a co-worker were removing a tree that had been blown down the previous night during a severe storm. The pistol was a .38 caliber revolver and had three live cartridges and three spent cartridges in it. Tucker gave the pistol to the Duplin County Sheriff's Department later that evening.

State Bureau of Investigation (S.B.I.) Agent Bruce Kennedy testified that he had conducted an investigation of the victim's murder. His investigation revealed that a slender, dark-skinned male driving a yellow car had been seen in the general vicinity of Lyman's Crossroads, but no license plate number from the car had been obtained. The investigation also revealed that the victim had been romantically linked with Joy Thompson, defendant Tammie Thompson's wife, while the victim was in Florida working for defendant, and that Joy Thompson and the victim had both left Florida for North Carolina some weeks before the murder.

Agent Kennedy's investigation revealed that defendant had been working in Florida on the morning of 23 May. Of the six men who worked with defendant in his roofing business, one of them, Eduardo Pellot, owned a yellow Oldsmobile Cutlass, and only one of them, Jose Sanchez, ¹ also known as Pepe, was not working that day. Later testimony revealed that Sanchez had borrowed Pellot's car after telling him that he was going to Disney World. A check of various motels indicated that someone using the name "Jose Sanchez" registered at Days Inn in Jacksonville, North Carolina at 11:18 p.m. on Saturday, 21 May, and checked out of the motel early Monday morning, 23 May, the morning of the murder. The registering person's driver's license identified him as Jose Sanchez, and the vehicle was later found to be registered to Eduardo Pellot.

Eunice Polloway, an employee of Southern Bell Telephone, identified some customer service records for the telephone number assigned to defendant's Florida address. Polloway testified that a collect call was made from a Jacksonville, North Carolina Days Inn on 22 May 1988 to defendant's number in Florida. She also testified that six short calls were made from defendant's number to the victim's number.

On Wednesday, 25 May, Agent Kennedy and Detective Jimmy Smith interviewed defendant in the Duplin County Sheriff's Department. The interview, conducted with defendant's attorney William Morgan present, lasted approximately two and one-half hours. At the end of the interview defendant, who had voluntarily driven to North Carolina from Florida, was not placed under arrest. Defendant gave the officers his home and work telephone numbers, and said he could be reached at a local number prior to his departure from North Carolina.

Joy Thompson, defendant's wife, testified that she and defendant had significant marital problems and were fighting over custody of the children after they had separated. She testified that she and the victim had been having an affair. She testified that on 10 May, the victim received a phone call from someone identifying himself as defendant and an argument ensued between the two. On 22 May, the evening before the murder, Joy Thompson called her husband, who told her that "something terrible was fixing to happen" and that when it did she would know it. Joy Thompson then called the victim to warn him. The victim responded that he was "a big boy" and could take care of himself. The next day Joy Thompson received a call from her cousin saying the victim had been killed. Joy Thompson called the sheriff's department and told them that defendant had either killed the victim himself or had someone do it for him.

On 26 May, Agent Bernie Mortonson of the Florida Department of Law Enforcement located Eduardo Pellot and his vehicle in Juno Beach, Florida. A consent search was done of the vehicle, and fingerprints were lifted. In the passenger side of the vehicle was a road atlas, which automatically opened up to a page containing the North Carolina map, upon which was a pencil mark on Interstate 95 indicating a turn at Fayetteville into the Duplin County area. A fingerprint from the road atlas was identified as that of Jose Sanchez. Sanchez was later arrested at his apartment. He was transported to the local police department where he gave a statement implicating defendant in the murder. Sanchez indicated a willingness to cooperate, and even to testify against defendant. Assistant District Attorney Dewey Hudson of Duplin County directed Agent Bruce Kennedy to ask Sanchez if he would be willing to make a controlled telephone call to Thompson. Sanchez agreed and gave written permission to record the telephone conversation. Believing that the first call was not sufficiently inculpatory of defendant, Hudson had Sanchez make a second call. Thereafter, an arrest warrant was obtained and defendant was arrested at 1:30 a.m. on 27 May. At the time of his arrest, defendant's mother produced a letter dated 24 May which stated that defendant was not to be questioned without William Morgan being present.

Chris Dutton testified that he had been incarcerated with defendant at the Hoke County prison unit where they became friends. Dutton testified that he and defendant had several conversations about their charges. He testified that defendant told him that his...