State v. Vines
| Decision Date | 02 July 1986 |
| Docket Number | No. 69A85,69A85 |
| Citation | 345 S.E.2d 169,317 N.C. 242 |
| Court | North Carolina Supreme Court |
| Parties | STATE of North Carolina v. Joseph Eugene VINES. |
Lacy H. Thornburg, Atty. Gen. by Joan H. Byers, Asst. Atty. Gen., Raleigh, for State.
Gary S. Cash and Edward C. Hay, Jr., Asheville, for defendant-appellant.
Defendant was tried upon indictments charging him with first-degree kidnapping and murder of Lonnie Gamboa. 1
Defendant contends that the trial court erred in denying his motion to dismiss the charges against him due to a grant of immunity, in denying his motion to dismiss for improper venue, in denying his motion to prohibit death qualification of the jury, in failing to submit second-degree murder and involuntary manslaughter as possible verdicts, and in denying his motions to dismiss for insufficiency of the evidence. For the reasons stated in this opinion, we find no error in the trial proceedings leading to defendant's convictions of the crimes charged.
Defendant was charged with murder in the first degree and first-degree kidnapping. Evidence for the State showed that on 5 January 1982, defendant had a meeting with federal agents R.B. Kaiser, Stan Keel and Thomas Chapman to discuss the murder and kidnapping of Lonnie Marshall Gamboa. Defendant told the agents that on 23 December 1981, at the request of Alan Ray Hattaway, he picked up Lonnie Marshall Gamboa and took him to a bar on Swannanoa River Road where they met with Hattaway. After talking briefly in the bar, the three men got into Hattaway's car and drove to another bar where they met Gary Hansford Miller. Miller got into the car and pointed a pistol at Gamboa. Gamboa was disarmed, his hands and arms taped together, and put in the trunk of the car. This all occurred in Buncombe County. The four men then drove for approximately two hours to Paul Bare's residence in Ashe County. Upon arrival at Bare's house, defendant and Miller removed Gamboa from the trunk and handcuffed him to a tree in the woods.
After approximately four hours elapsed, Bare and Miller released Gamboa from the tree and took him to Bare's garage. After discussing a debt that Gamboa owed Miller, Gamboa was blindfolded and driven to Ore Knob Mine in Ashe County. Defendant took Gamboa inside the fenced-in area surrounding the mine shaft, and after receiving instructions from Bare and Miller, pushed Gamboa into the mine shaft. Because Gamboa got hung on a tree root during the fall, defendant pulled him out and pushed him in again. Gamboa's body was recovered from the mine shaft on 25 January 1982.
On 6 January 1982, after being advised of his Miranda rights, defendant related his story concerning the Gamboa murder and kidnapping to Ashe County Sheriff Richard Waddell. Defendant's statement was subsequently reduced to writing and signed by defendant. Defendant was not arrested by Ashe County authorities at this time. He was allowed to leave North Carolina and travel to Florida where he remained for several months. While still residing in Florida, defendant traveled to Chicago, Illinois, to testify against Gary Miller concerning another murder and kidnapping in Ashe County. Defendant then returned to North Carolina to testify as the State's chief witness in the case against Paul Bare, State v. Bare, 309 N.C. 122, 305 S.E.2d 513 (1983). After Bare's trial, defendant was enrolled in the Federal Witness Protection Program for approximately one year.
On 23 March 1983, a first-degree murder charge was sent to the Ashe County Grand Jury and a finding of "no true bill" was returned. On 14 February 1984, the Buncombe County Grand Jury indicted defendant on murder and first-degree kidnapping charges.
Defendant testified in his own behalf at trial. Defendant's testimony was that he primarily makes a living traveling to different locations working as an undercover agent for various state and federal law enforcement agencies. Defendant's testimony was consistent with his written confession obtained earlier by the Ashe County Sheriff. However, defendant testified that he had committed the acts under duress and had felt badly about the matter.
The jury returned verdicts of guilty of first-degree murder under the felony murder rule and first-degree kidnapping. The trial judge held that the kidnapping conviction merged with the felony murder conviction and, therefore, defendant was not sentenced thereon.
Defendant contends that the trial court committed reversible error in failing to grant his motion to dismiss the charges against him due to a grant of immunity.
In the case against Paul Bare, defendant was the State's chief witness. Defendant also testified in a federal criminal case against Gary Miller in Chicago, Illinois, concerning another murder and kidnapping in Ashe County. While preparing for these trials, defendant worked closely with Ashe County police officers, the Ashe County district attorney, and some federal agents. Defendant claims that he was often told by these officials, though not "promised," that he would not be prosecuted in the Gamboa case. Defendant contends that under these circumstances it would be a denial of due process to permit him to be prosecuted. 2
The trial court held a two-day hearing on defendant's motion and heard testimony from defendant, federal agents Thomas Chapman and Steve Keel, District Attorney Michael Ashburn, and Assistant District Attorney Mike Helms of the Twenty-Third Judicial District, Asheville Police Officers Will Annarino and Ross Robinson, former Ashe County Sheriff Richard Waddell, and John Downey of the Winston-Salem Journal. The court also heard testimony concerning portions of transcripts of previous hearings in which defendant and others testified that no grant of immunity had been promised defendant in exchange for defendant's testimony in Bare's trial. The trial judge's findings were as follows:
....
2. On 5 January 1982, Defendant called A.T.F. Special Agent Thomas L. Chapman, and volunteered information concerning a murder in Ashe County;
3. From that time on until indicated, Defendant cooperated with and offered trial testimony for the State of North Carolina, and the United States;
4. The Defendant has not been granted formal immunity in accordance with G.S. 15A-1054(a) or applicable Federal statutes;
5. Although Defendant may have hoped that his cooperation with or testimony for State and Federal officials would result in his not being prosecuted, no officer, much less prosecutor, ever told him or indicated in any manner that he would not be prosecuted if he provided truthful testimony (emphasis in original); indeed "truthful testimony" was never mentioned in this record;
6. In fact, Defendant testified that he "hasn't [sic] been told that if I testified I wouldn't be charged" and that he probably would have testified regardless;
7. Defendant has repeatedly made sworn statements in two (2) trials consistent with paragraph six.
It is well settled that "facts found by the trial judge are conclusive on the appellate court when supported by competent evidence." State v. Pruitt II, 286 N.C. 442, 454, 212 S.E.2d 92, 100. (1975). Thus, we must determine whether the judge's findings are so supported.
In State v. Bare, 309 N.C. 122, 305 S.E.2d 513, defendant, when questioned as to whether he had been granted immunity from prosecution in the Gamboa case, testified:
Q. Have you ever been promised anything else other than the Witness Protection Program for testimony you are giving here and participation in this case?
A. No sir I have not even been promised to [sic] put on Witness Protection; the case is still in Washington and still deciding if they are going to put me under witness protection. Not been promised anything by Mr. Chapman, Ashburn or anything else.
Q. So far as you know if they wanted to charge you today they could?
A. Yes sir.
Q. But they never said they wouldn't charge you, is that correct?
A. No sir, they didn't tell me they would not.
At a probable cause hearing in the Bare case, defendant testified as follows:
Q. Have you been offered any deal whatsoever by the State of North Carolina or any of its agencies or with the Federal Government or United States in exchange for your testimony in this case?
A. No, sir.
....
Q. Have you been offered any immunity?
A. No, sir.
....
Q. You have not discussed immunity with the State?
A. I haven't discussed it.
....
Q. So that you came forward as a citizen to offer this information to Sheriff Waddell to do with as he sees fit?
A. Yes, sir.
....
Q. And if he wants to arrest you right now, he has that right.
A. Yes, sir.
At the hearing on the motion to dismiss, defendant was read the questions and answers above in which he stated that he had not been granted immunity for his testimony in the Bare trial. Defendant testified that he had made such statements and that "nobody made any deals with me."
In addition, Thomas L. Chapman, a federal agent, testified at Bare's trial as to the possible indictment of defendant as follows:
Q. Well sir, isn't it true in order to get into the program, if Mr. Ashburn is the man who did it, whoever is in charge, have to first tell the government they will not be indicted for the crime [sic] which he was involved?
A. No sir, that is incorrect, he could be put in the program if in fact at a later time he was going to be indicted.
.... Q. Is it your testimony that no promise of immunity of any type have [sic] been given to Mr. Vines?
A. That's correct.
Q. And you discussed that with Mr. Ashburn and Mr. Waddell?
A. That's correct.
Q. And if any of the parties wanted to, who had the power and authority they could indict Mr. Vines at this time?
A. It's my understanding he could be indicted.
At the hearing on defendant's motion to dismiss, Agent Chapman testified that prior to Bare's trial District Attorney Michael Ashburn told him that he had no intention of prosecuting defendant. Chapman...
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