State v. Tucker

• Decision Date: 05 March 1992
• Docket Number: No. 332A89,332A89
• Citation: 414 S.E.2d 548,331 N.C. 12
• Parties: STATE of North Carolina v. Kenneth Lee TUCKER and Hoyle Eugene WRAY.
• Court: North Carolina Supreme Court

Page 548

414 S.E.2d 548

331 N.C. 12

STATE of North Carolina v. Kenneth Lee TUCKER and Hoyle Eugene WRAY.

No. 332A89.

Supreme Court of North Carolina.

March 5, 1992.

Lacy H. Thornburg, Atty. Gen., by David F. Hoke, Asst. Atty. Gen., Raleigh, for the State.

Malcolm Ray Hunter, Jr., Appellate Defender, by Constance H. Everhart, Asst. Appellate Defender, Raleigh, for defendant appellant Tucker.

Charles T. Browne, Asheboro, and C. Richard Tate, Jr., High Point, for defendant appellant Wray.

WHICHARD, Justice.

Defendants were convicted of the first-degree murder of Brenda Cecil. Their cases were consolidated for trial over the objections of both defendants. The joinder raised perceived Bruton problems because defendant Tucker had made several inconsistent, pretrial statements. After lengthy debate, the State acknowledged that it could not properly "sanitize" certain statements by defendant Tucker and announced that it would not offer them. The State also chose not to offer other statements of defendant Tucker that undermined its theory of the case. Defendant Wray was not able to cross-examine defendant Tucker about the latter statements because defendant Tucker invoked his Fifth Amendment right not to incriminate himself. As a result, defendant Wray contends that the joinder of the cases prevented him from introducing certain of defendant Tucker's statements that either exonerated defendant Wray or were inconsistent with the State's theory of the case. We hold only that defendant Wray was entitled to introduce defendant Tucker's statements. We therefore order a new trial for defendant Wray. We also grant defendant Tucker a new trial because the trial court erroneously admitted a statement obtained from him in violation of his Fifth and Sixth Amendment rights.

Donna Tucker, defendant Tucker's wife and defendant Wray's sister, was a principal State witness against both defendants. She testified pursuant to an agreement with the State that allowed her to plead guilty to the second-degree murder of Cecil in exchange for her testimony against defendants. She testified that she and defendant Tucker killed Cecil at the behest of defendant Wray, who wanted to eliminate Cecil as a witness against him in a drug case.

About a month prior to Cecil's death, the Guilford County Sheriff's Department was investigating her for suspected drug activity. On 29 August 1986, on the basis of a tip, a deputy sheriff observed Cecil enter defendant Wray's place of business, Mid-State Welding Company. The officer saw Donna Tucker enter Mid-State about the same time. When Cecil left the premises, other officers stopped her, searched her car, and seized several Dilaudid tablets, Fiorinal tablets, a needle and syringe, and defendant Wray's business card. The officers then obtained a warrant to search Mid-State and there discovered twenty-one Dilaudid tablets, five Valium tablets, some marijuana, and two revolvers. Both Cecil and defendant Wray were charged with various drug offenses and scheduled for court appearances on 16 (Cecil) and 17 (Wray) September 1986.

Cecil did not make her court appearance. At trial, her mother, Patricia Stout, testified that she had last seen Cecil on 11 September 1986. That evening a white female, whom Stout identified at trial as Donna Tucker but who introduced herself as Debbie Peterson, approached Stout at her home in Greensboro, which she shared with Cecil and Cecil's brother Barry. Donna asked for Cecil, who was not at home. Donna then left. She returned a second time and found Cecil still absent. When Cecil returned at about 10:00 p.m., her mother told her about the visitor, whom Cecil said she did not know. When Donna came back a third time, however, Cecil went outside with her and followed Donna's black car with her own car. Stout testified that her daughter returned at about 10:50 p.m., riding in the black car with Donna and a white male. Cecil retrieved her work shoes and left again in the black car, saying she was going to work. Stout never saw her again.

At first Stout thought her daughter might have gone on vacation with a friend, but on 23 September 1986 she reported her daughter missing. The missing person investigation turned into a murder investigation upon the discovery of Cecil's body on 24 September 1986. Her body was found in an advanced state of decomposition in a rural wooded area in Surry County, with a short piece of television antenna wire looped around the neck. An autopsy revealed that she was four months pregnant and that she died from ligature strangulation.

On 15 October 1986, S.B.I. Agent J.W. Bryant and Detective Schmidt of the Greensboro Police Department interviewed Donna. She told them she had a drug relationship with Cecil and that she and defendant Tucker had gone to Greensboro on 11 September in response to a phone call from Cecil for drugs. Donna, defendant Tucker, and Cecil spent the evening driving around taking drugs. Donna told the officers she last saw Cecil riding away with someone in a red Pontiac.

Subsequently, in April 1988, Donna and defendant Tucker were arrested on charges of armed robbery and first-degree burglary in Randolph County. While in custody, on 6 April, Donna made a tape-recorded statement that her brother, defendant Wray, had hired her and defendant Tucker to kill Cecil, which they did on 11 September. Following her release on bond, however, Donna told several people that her 6 April statement was not true. She also wrote a letter to her mother on 11 July 1988 denying any involvement in the murder on defendant Wray's part. On 11 April 1988, Donna told law enforcement officers defendant Wray had nothing to do with the murder of Cecil. When faced with these inconsistent statements at trial, Donna recanted them and the letter, claiming that they were motivated by fear that her family would turn against her. Donna testified that she wrote the letter at the request of her mother and upon the insistence of defendant Wray.

At trial, Donna testified that at the time of the murder her husband, defendant Tucker, was a heavy and dependent user of Dilaudid and that she purchased it for him from her brother, defendant Wray. On 10 September 1986, defendant Wray told Donna he wanted to get rid of someone. On 11 September, the Tuckers met with defendant Wray, who explained that he wanted to get rid of a girl who was going to testify against him in a drug case. The Tuckers agreed to kill Cecil for $2,000.

Donna further testified that she and defendant Tucker left immediately for Greensboro. They made several phone calls to Cecil's home from a shopping center. Eventually Cecil met them at the shopping center, where the Tuckers lured her into their car with a story that they had hidden the drugs elsewhere. They drove around for a while, and both defendant Tucker and Cecil were "shooting up" some Dilaudid. At one point they returned to Cecil's house, where Cecil retrieved her work shoes. Finally, they went to a wooded area and began to search for the pills. During this activity, defendant Tucker hit Cecil with a tire tool and began to choke her. Donna watched and took Cecil's pulse while defendant Tucker choked her. Afterwards, defendant Tucker slipped antenna wire around Cecil's neck. The Tuckers then drove to Surry County and dumped the body.

The next day, defendant Wray paid them $1,000 in cash and $1,000 in pills, remarking that defendant Tucker would end up using the money for pills anyway. Donna told her brother she did not want the car anymore because a dead body had been in it. She asked him to have someone burn it, and he agreed. Defendant Wray instructed the Tuckers to go to the movies the following Tuesday and to leave a $100 bill in the glove compartment and the keys in the car. The following Tuesday, the car disappeared. An Archdale policeman discovered it burning on 16 September.

Both defendants closely cross-examined Donna about her various inconsistent statements. The State attempted to rehabilitate her with corroborating testimony from her attorney and from law enforcement officers. The State also introduced records of eighteen long-distance phone calls from the Stout residence to the home of defendant Wray's girlfriend (later wife), Kathy Wray, between 18 June 1986 and 11 September 1986, and twenty-five calls from the Stout residence to defendant Wray's place of business between 4 June 1986 and 29 August 1986. As further evidence, the State presented testimony of David Johnson, Cecil's boyfriend, that both he and Cecil had bought drugs from defendant Wray and defendant Wray had expressed concern that Cecil might talk.

While defendant Tucker did not testify, he presented witnesses on his behalf. One, Thomas Lee Vestal, Kathy Wray's brother, testified that in April 1988 Donna told him she had killed Cecil because Cecil had been sleeping with defendant Tucker and Tucker had gotten Cecil pregnant. Defendant Tucker thought he was the murderer, however, because he was so heavily drugged at the time. The confession was prompted by a scene on television portraying a betrayed wife drawing a gun on her husband and his lover. When Vestal commented that an adulterous spouse was not worth losing one's life over, Donna responded, "When you got the feds wrapped around you, you don't get in any trouble."

Defendant Tucker also presented the expert testimony of Dr. Billy Ray Hunter, a psychiatrist, on the effect of Dilaudid. According to Hunter, a person under the influence of this potent pain killer is generally passive and withdrawn. While an addict will experience withdrawal symptoms of nausea, vomiting, cramps, restlessness, and irritability, an addict will remain withdrawn, passive, and seemingly functional as long as the drug is available. Due to the mental cloudiness or confusion, sleepiness, and periods of short-term memory loss the drug causes, use of Dilaudid would impair the user's ability to operate machinery safely. After...