State v. Tirado
| Decision Date | 13 August 2004 |
| Citation | 599 S.E.2d 515 |
| Court | North Carolina Supreme Court |
| Parties | STATE of North Carolina v. Francisco Edgar TIRADO. State of North Carolina v. Eric Devon Queen. |
Roy Cooper, Attorney General, by G. Patrick Murphy, Special Deputy Attorney General, and Mary D. Winstead, Assistant Attorney General, for the State.
Glover & Petersen, P.A., by Ann B. Petersen, Chapell Hill, for defendant-appellant Tirado.
Rudolf Maher Widenhouse & Fialko, by M. Gordon Widenhouse, Jr., Chapel Hill, for defendant-appellant Queen.
Defendants Francisco Edgar Tirado and Eric Devon Queen were indicted on 4 January 1999. In 98 CRS 34831, Tirado was charged with two counts of first-degree murder, two counts of first-degree kidnapping, two counts of robbery with a dangerous weapon, one count of conspiracy to commit first-degree murder, one count of conspiracy to commit first-degree kidnapping, and one count of conspiracy to commit robbery with a dangerous weapon, all involving alleged offenses against victims Susan Moore and Tracy Lambert on 17 August 1998. In 98 CRS 34836, Queen was similarly charged with the same offenses against the same victims. Additional indictments were returned on 25 January 1999. In 98 CRS 35037, Tirado was charged with attempted first-degree murder, conspiracy to commit first-degree murder, assault with a deadly weapon with intent to kill inflicting serious injury, first-degree kidnapping, and robbery with a dangerous weapon for crimes committed against Debra Cheeseborough on 17 August 1998. In 98 CRS 35028, Queen was charged with the same offenses against the same victim.
On 17 December 1999, the trial court granted the State's motions both to join offenses as to each defendant and to join defendants' cases for trial. Defendants were tried capitally before a jury at the 7 February 2000 Criminal Session of Superior Court, Cumberland County. On 3 April 2000, the jury found defendants guilty on all fourteen of the submitted charges. The verdicts of first-degree murder as to each victim were based both on premeditation and deliberation and on felony murder.
The trial court ordered separate sentencing proceedings for defendants. At the conclusion of Tirado's capital sentencing proceeding, the trial court ordered the verdict sealed until Queen's capital sentencing proceeding was complete. The jury recommended that Tirado and Queen be sentenced to death for the murders of Susan Moore and Tracy Lambert, and the trial court entered judgments accordingly. The trial court also sentenced defendants to consecutive terms for the other twelve felony convictions.
Evidence presented at trial established that defendants were two of nine members of the Crips gang who undertook a number of "missions," or criminal acts, during the night of 16-17 August 1998, in Fayetteville, North Carolina. In addition to defendants Tirado and Queen, the gang members included gang leader or "queen" Christina Walters, Ione Black, Tameika Douglas, Carlos Frink, John Juarbe, Carlos Nevills, and Darryl Tucker. These individuals belonged to different "sets," or subgroups, of the Crips gang.
On 16 August 1998, the gang members gathered at Walters' residence, a trailer located at 1386 Davis Street. Ione Black, who had been a member of another gang, was initiated into the Crips by means of a ceremony involving being beaten by the others. Thereafter, the gang members undertook preparations for the evening's missions. Walters, Douglas, and an unidentified male drove to the local Wal-Mart to steal toiletries and clothing and to purchase cartridges. The unidentified male returned alone to the trailer with a box of cartridges. Using fingernail polish from Walters' bedroom, Tirado painted the tips of the bullets blue, the color identified with the Crips gang. Meanwhile, Queen directed Black and Nevills to return to Wal-Mart and retrieve Walters and Douglas.
After the group returned from Wal-Mart, Walters assigned a mission to Douglas, Black, and Nevills, directing them to find a victim to rob, steal the victim's car, put the victim in the trunk of the car, then return to Walters' residence within an hour and a half. After providing Nevills with a gun, Walters and the unidentified male drove away. Douglas, Black, and Nevills walked around looking for a car to steal, and at about 12:30 a.m., they spotted Debra Cheeseborough closing and locking the door to the Bojangles restaurant where she worked as manager. They abducted Cheeseborough at gunpoint and forced her into the back seat of her car.
On the way back to Walters' residence, the gang members robbed Cheeseborough of her jewelry and money, and then remembering their instructions, stopped and forced her into the trunk. When they reached Walters' trailer, everyone gathered around the car, arguing over who would shoot Cheeseborough. Although Tirado stated, "I'll shoot the bitch," defendant Queen, Walters, Douglas, and Frink drove away in Cheeseborough's car. The rest of the gang remained at Walters' trailer, where Tirado mumbled several times, "Damn, they should have let me go."
Queen drove Cheeseborough's car to Smith Lake, a location on the Fort Bragg military base. Cheeseborough was removed from the trunk, and Douglas took from Cheeseborough a cross that she was wearing. Walters then pointed a handgun at her and pulled the trigger. When the pistol jammed, Walters recocked it and fired a bullet into Cheeseborough's right side, knocking her to the ground on her stomach. As she lay there, she heard a male say, "Hit her in the head." Walters fired another shot that passed through Cheeseborough's glasses, grazed her eyelid, and hit her in the thumb. Walters fired additional shots into Cheeseborough's back, side, right leg, and chest. Cheeseborough feigned death and the four gang members drove away. The next morning, a passerby found Cheeseborough. She was taken to a hospital and treated for multiple gunshot wounds.
After the group left Cheeseborough for dead, they returned to Walters' trailer, where the rest of the gang remained congregated. Upon realizing that they needed a second car to accommodate everyone, Queen, accompanied by Walters, Frink, Black, Douglas, and Tucker, drove Cheeseborough's car to find another vehicle. They eventually targeted a 1989 Pontiac Grand Prix driven by Susan Moore and in which Tracy Lambert was a passenger. After following the Grand Prix for some distance, Queen was able to trap it at the end of a dead-end road. Walters handed a gun to Tucker and someone in the car told him to "go ahead." Queen, Walters, and Frink then drove away in Cheeseborough's car after Queen directed Black, Douglas, and Tucker to be back at Walters' trailer in forty-five minutes. Douglas and Tucker forced Moore and Lambert into Moore's trunk at gunpoint, and then Black, Douglas, and Tucker drove Moore's car to Walters' trailer. At one point during the drive, Tucker stopped the car so that Black and Douglas could open the trunk and rob Moore and Lambert of their jewelry.
Upon this group's arrival at Walters' trailer, the entire gang surrounded the car. While the gang divided Moore's and Lambert's money and jewelry and burned their purses and identification, they discussed who would kill the women. On instructions from Walters, the gang members then drove Cheeseborough's and Moore's cars to a location in Linden. Moore and Lambert were forced out of the trunk of the Grand Prix. Both were pleading for mercy. Queen told Lambert to shut up, then shot her in the head. As Lambert fell, Queen walked back to the car and stood next to Tirado. When Tirado held a large knife to Moore's throat, Moore begged him not to cut her and to shoot her instead. In response, Tirado shot Moore in the back of the head. Both Lambert and Moore died of their wounds.
The gang members returned to Walters' trailer in Cheeseborough's and Moore's cars, and then split up. Seven members of the gang, including Tirado and Queen, fled to Myrtle Beach. On Tuesday, 18 August 1998, Myrtle Beach police officers apprehended Juarbe and Tucker in Moore's car. The next day, Myrtle Beach police officers arrested defendants Tirado and Queen, along with Walters, Frink, and Douglas, in a motel room rented by Walters.
Additional evidence will be discussed below as necessary to address specific issues. Because both Tirado and Queen present several similar assignments of error, we will first address those arguments together. We will then consider each defendant's individual assignments of error.
Defendants Tirado and Queen both contend that the trial court erred when it allowed their cases to be joined for trial. Defendants claim that the joinder deprived them of their state and federal constitutional rights to due process of law.
Each defendant was charged in two multi-count indictments. On 29 September 1999, the State filed pretrial motions both to join the offenses against each defendant and to join for trial the cases of defendants so that all charges against both defendants would be resolved in a single trial. At a hearing on the motions, the State argued that both defendants were accountable for each of the offenses enumerated in the indictments and that these offenses were part of a common scheme or plan, that individual activities of defendants were part of the same act or transaction, and that the offenses were closely connected in time, place, and occasion. The prosecutor also acknowledged that:
Defendants objected to joinder and argued that the State should present evidence from...
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... ... One way for the appellate court to determine whether a constitutional error is harmless beyond a reasonable doubt is to ascertain whether there is other overwhelming evidence of the defendant's guilt; if there is such overwhelming evidence, the error is not prejudicial. See State v. Tirado, 358 N.C. 551, 581, 599 S.E.2d 515, 536 (2004), cert. denied, ___ U.S. ___, 125 S.Ct. 1600, 161 L.Ed.2d 285 (2005) ... In the case sub judice, the outcome of the jury trial would have been the same had Carlson's statement to Utley identifying defendant's picture not been ... ...
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