State v. Trull

• Decision Date: 31 December 1998
• Docket Number: No. 205A97.,205A97.
• Citation: 509 S.E.2d 178,349 N.C. 428
• Parties: STATE of North Carolina v. Gary Allen TRULL.
• Court: North Carolina Supreme Court

509 S.E.2d 178

349 N.C. 428

STATE of North Carolina v. Gary Allen TRULL.

No. 205A97.

Supreme Court of North Carolina.

December 31, 1998.

Michael F. Easley, Attorney General by William B. Crumpler, Assistant Attorney General, for the State.

Stanley F. Hammer and John Bryson, High Point, for defendant-appellant.

PARKER, Justice.

Defendant Gary Allen Trull was indicted on 17 June 1994 for first-degree murder, first-degree kidnapping, and first-degree rape. He was tried capitally and found guilty of first-degree murder on the bases of premeditation and deliberation and felony murder. He was also found guilty of firstdegree kidnapping and first-degree rape. Following a capital-sentencing proceeding, the jury recommended a sentence of death for the murder; and the trial court entered judgment accordingly. The trial court sentenced defendant to a consecutive sentence of forty years' imprisonment for the first-degree kidnapping conviction and to a consecutive sentence of life imprisonment for the first-degree rape conviction.

The State's evidence tended to show that defendant kidnapped, raped, and murdered Vanessa Dawn Dixon ("victim"). The victim was last seen at approximately 3:00 a.m. on the morning of 17 November 1993. Upon learning that the victim did not report to work at Randolph Hospital, the victim's mother and a friend went to her apartment. They noticed that some items were out of place in her apartment. The front door had been swung open hard enough to break off pieces of wood from the molding around the closet door. The bed was unmade; and clothes, including pantyhose, were lying on the bed. A table had been moved, and some items in the entertainment center had been knocked over.

While they were looking around the apartment, defendant, who lived in the same apartment complex, appeared. Defendant said he had heard some noise and wanted to know what was happening. Defendant then called the apartment owner. The owner commented about not touching things, but defendant replied that it was too late. The police were subsequently called, and a search for the victim was initiated.

On 23 November 1993 the victim's body was found in the woods, about five hundred feet from Hardin-Ellison Road. Her body was clothed in a shirt and pants but no undergarments, which was uncharacteristic of the victim. Her body was lying at the base of a tree, and a piece of a blue nylon strap lay partially under her left shoulder. This strap matched a blue nylon tie-down strap taken from defendant's truck. Fibers from the strap were also found on the victim's right hand. Other evidence suggested that the body was deposited in the woods sometime after 5:00 a.m. on 17 November 1993. A DNA analysis of semen and spermatozoa samples taken from the victim's body matched the DNA profile for defendant. No semen was found on the victim's pants.

An autopsy revealed that the victim's death was the result of three neck wounds which severed the left carotid artery. The wounds were consistent with someone slicing the victim's neck from behind with a knife held in the left hand. Defendant was lefthanded. Moreover, defendant collected knives; and his then-wife noticed three days after the victim's disappearance that one particular knife was missing. This knife had sentimental value to defendant. Defendant told his then-wife that he broke the knife and threw it away; however, she did not see it in the trash.

Additional facts will be presented as needed to discuss specific issues.

PRETRIAL ISSUES

By his first assignment of error, defendant contends that the trial court erred by denying his motion to continue a hearing on defendant's motion for change of venue. Defendant argues that the district attorney's calendaring of the change-of-venue motion and the trial court's denial of the motion to continue violated his constitutional rights.

At the hearing on the motion to continue, one of defendant's attorneys, Mr. Richard Roose, stated, "[U]ntil about fifteen minutes ago I was involved in the trial of another matter with this Court, and my preparation efforts have been directed entirely towards that matter this week." He also informed the trial court that his private investigator was not available to testify. The district attorney responded that the State was willing to stipulate to the surveys of defendant's private investigator. Mr. Roose again argued for a continuance, at which point the trial court denied the continuance motion.

Normally, our review of a denial of a motion for continuance is restricted to whether the trial court abused its discretion; and the denial will not be disturbed absent a showing of abuse of that discretion. State v. Barnard, 346 N.C. 95, 104, 484 S.E.2d 382, 387 (1997). However, when the motion is based on a constitutional issue, the issue is a reviewable question of law. Id. "The denial of a motion to continue, even when the motion raises a constitutional issue, is grounds for a new trial only upon a showing by the defendant that the denial was erroneous and also that his case was prejudiced as a result of the error." State v. Branch, 306 N.C. 101, 104, 291 S.E.2d 653, 656 (1982).

We find no merit in defendant's unfairness and due-process arguments regarding the district attorney's scheduling of the hearing on this motion. Defendant does not argue that he was not given adequate notice of the district attorney's intention to call the change-of-venue motion. In fact, Mr. Roose conceded at the hearing that the district attorney gave defendant such notice. Further, in support of his motion for continuance, Mr. Roose argued only that his preparation efforts had been focused on another case. He did not contend that the trial court's ruling on defendant's motion for a change of venue would deprive defendant of his constitutional right to effective assistance of counsel or deprive him of a fair opportunity to prepare and present his defense. Defendant was represented by two attorneys at the hearing, and no evidence suggests that Mr. Pierre Oldham's preparation efforts were directed toward other matters. Moreover, Mr. Roose stated that the only evidence or testimony unavailable at the hearing was that of the private investigator; but the district attorney agreed to stipulate to the investigator's surveys. Thus, defendant made no showing to the trial court of prejudice to his case if the continuance was not granted. Accordingly, we find no error in the denial of the motion for a continuance.

Defendant next contends that the trial court violated his constitutional rights by holding an unrecorded bench conference outside his presence. At the conclusion of the hearing on defendant's motion for change of venue, the trial court remanded defendant to the sheriff's custody. The trial court then called the district attorney and defense counsel to the bench, and at some point defendant was escorted out of the courtroom by the sheriff. Defendant argues that his absence from the courtroom during this bench conference violated his state and federal constitutional rights to be present at every stage of the proceedings. Although defendant argues that his rights under the United States Constitution have been violated, defendant's assignments of error do not include this contention as required by the Rules of Appellate Procedure. See N.C.R.App. P. 10(a) ("Except as otherwise provided herein, the scope of review on appeal is confined to consideration of those assignments of error set out in the record on appeal in accordance with this Rule 10."). Accordingly, defendant has failed to preserve this issue for appellate review.

As to the state constitutional issue, in State v. Rannels, 333 N.C. 644, 653, 430 S.E.2d 254, 259 (1993), this Court held that "[d]efendant's constitutional right to be present at all stages of the trial is by definition a right pertaining to the trial itself. It does not arise before the trial begins." In this case the challenged bench conference occurred prior to the commencement of defendant's trial. See State v. Bonnett, 348 N.C. 417, 431, 502 S.E.2d 563, 573 (1998) (finding no error when a bench conference in which defendant was not present took place prior to the start of trial). Further, at the time of the complained-of conference, the trial court had made its ruling; and defendant's hearing was completed. Therefore, this assignment of error is overruled.

Next, defendant contends that the trial court erred by denying his motion to change venue. He argues that pretrial publicity and the response of prospective jurors demonstrate that it was impossible for him to receive a fair trial by a Randolph County jury.

N.C.G.S. § 15A-957 provides that if "the court determines that there exists in the county in which the prosecution is pending so great a prejudice against the defendant that he cannot obtain a fair and impartial trial, the court must either" transfer the proceeding to another county or order a special venire. N.C.G.S. § 15A-957 (1997). Defendant bears the burden of establishing that "it is reasonably likely that prospective jurors would base their decision in the case upon pretrial information rather than the evidence presented at trial and would be unable to remove from their minds any preconceived impressions they might have formed." State v. Jerrett, 309 N.C. 239, 255, 307 S.E.2d 339, 347 (1983). A defendant must "establish specific and identifiable prejudice against him as a result of pretrial publicity ... [by demonstrating] inter alia that jurors with prior knowledge decided the case, that he exhausted his peremptory challenges, and that a juror objectionable to him sat on the jury." State v. Billings, 348 N.C. 169, 177, 500 S.E.2d 423, 428 (emphasis omitted). The determination of whether defendant has carried his burden rests within the sound discretion of the trial court. State v. Barnes, 345 N.C. 184, 204, 481 S.E.2d 44, 54, cert. denied, ___ U.S. ___, 118 S.Ct. 196, 139 L.Ed.2d 134 (1997),...