State v. Ward

Decision Date03 November 1994
Docket NumberNo. 158A92,158A92
Citation449 S.E.2d 709,338 N.C. 64
PartiesSTATE of North Carolina, v. David Junior WARD.
CourtNorth Carolina Supreme Court

Michael F. Easley, Atty. Gen., by Charles M. Hensey, Sp. Deputy Atty. Gen., for the State.

DeLyle M. Evans, Ayden, and W. Gregory Duke, Greenville, for defendant-appellant.

WHICHARD, Justice.

Defendant was tried capitally on an indictment charging him with the first-degree murder of Dorothy Mae Smith. The jury returned a verdict finding defendant guilty of first-degree murder upon the theories of premeditation and deliberation, lying in wait, and felony murder. Following a sentencing proceeding pursuant to N.C.G.S. § 15A-2000, the jury recommended that defendant be sentenced to death.

The jury also found defendant guilty of conspiracy to commit murder, robbery with a dangerous weapon, and conspiracy to commit armed robbery. The trial court sentenced defendant to thirty years for the conspiracy For the reasons discussed herein, we conclude that the jury selection, guilt-innocence, and sentencing phases of defendant's trial were free from prejudicial error, and that the sentence of death is not disproportionate.

to commit murder and forty years for the robbery, the sentences to run consecutively. It arrested judgment on the conspiracy to commit armed robbery conviction.

The State's evidence tended to show that the victim, Dorothy Mae Smith, and her husband, Seymour Smith, owned a convenience store. On 3 April 1991 the victim and her brother, William Earl Brown, closed the store around 10:30 p.m. Seymour Smith usually worked at the store, but he was in jail at the time on drug-related charges. Dorothy Mae Smith filled a money box with $4,000 in cash and an undetermined number of checks. She collected her personal belongings--including fruit, crackers, a comb, and a magazine--which she placed in a white plastic bag. She also picked up her husband's .38 caliber pistol. She got in her pickup truck and headed toward her house a short distance down the road from the store; her brother followed her home. At the house Smith turned into the driveway and went to the back of her house; her brother stopped in the road and watched until he saw her brake lights turn on.

At about 10:30 p.m. Lonnie Daniels, who lived next to the Smith house, was watching television. He heard sounds that at first he thought were exploding firecrackers, but he immediately realized they were gunshots--five shots fired in rapid succession. He went outside to investigate and saw only Smith's pickup parked at the back door of her house. He saw no one, and becoming concerned, he brought his friend Roy Roach to the Smith house, where they discovered Smith's body lying on the ground near the back door. There was blood coming from the back of her head, and she did not respond when they called her name. Roach telephoned 911 for assistance.

Pitt County Deputy Sheriff Kelvin Wilson arrived at 10:41 p.m. He found no vital signs in Smith. At 11:00 p.m., Deputy Sheriff Billy Tripp arrived. The deputies observed Smith's body, fully clothed, lying two feet and eight inches from the back door of the house, with her feet nearest the house, her head away from the house, and a set of keys and prescription glasses on the ground near her hand. The pickup truck was parked on the drive near her head. They found an apple, some fruit, crackers, a comb, a deed, and four spent shell casings strewn in the driveway. Later, they found a .32 caliber bullet and a .22 caliber bullet at the base of an air conditioning unit, also near the house.

On 4 April 1991 Dr. M.G.F. Gilliland, the regional medical examiner, performed an autopsy on Smith. She testified Smith had been shot five times with small caliber firearms. She found gunshot wounds on the left side of the back of the head and neck area, on the left arm near the shoulder, on the left side of the chest, on the left side of her body near the back and just below the waist, and on the left arm. All the gunshots had been fired from a distance exceeding three to four feet from Smith. The wound to Smith's head would have been immediately incapacitating and the wounds to the chest and shoulder fatal if left untreated. The hematoma (bruise) on the right side of Smith's forehead, as well as the bruise to her right elbow, led Dr. Gilliland to conclude that Smith was immediately incapacitated by the gunshot wound to the head and died very quickly. Further, the angle of the other wounds, in conjunction with the hematoma, led her to conclude that the head wound occurred after the others.

Defendant was soon arrested on unrelated charges and gave the following oral statement, later reduced to writing by Detective Ivan Harris:

David stated that yesterday he came to Greenville and got up with Wesley Harris. David said Wesley said he had a job to do that night. David said Wesley said they were going to rob Seymour Smith's wife when she closed the store. He stated that they went by the store and she was there so they rode around until it got dark. David said about 10:00 p.m. that they parked Wesley's blue Saab car on the road that runs off between the store and the Smith house. We ran across the road and got in the bushes next to the driveway. I Defendant also signed a waiver of rights form and made the following written statement:

had a rifle and Wesley had a pistol. The rifle was a .22 caliber and the pistol was a .32 caliber. When Mrs. Smith pulled in the driveway and pulled around back and got out of the truck, we started shooting. Wesley ran and got the money box after she fell and we ran across the road and got in the car and [338 N.C. 78] left. We put the money in the ditch near Empire Brushes. We got a money box and a white plastic bag. I called a cab and went to my girlfriend's house near Belvoir. Before I could get up with Wesley the next day, the cops got me. David said Wesley kept both guns that were used.

I David J. Ward come to Greenville yesterday and got in touch with Wesley Harris and he told me that he had a job to do he said that he was going to rob Seymour Smith's wife that night and he said that he might have to take her out. So we went by the store and she was there. We went riding until it got dark and when she close the store that night we went across the road we sat in the bushes and she pulled around the back and got out and that is when we started shooting. He went got the money box and ran across the road drove off and put the money up until the next day.

Based on information provided by defendant, and with defendant in the backseat of the sheriff's automobile, Deputy Sheriff Phillip Moore and three detectives drove to a rural area near Empire Brushes, Inc., to search for the money and checks stolen from Smith. Defendant physically assisted the officers in looking for the cash and checks.

Defendant also told officers that Harris might have placed the guns used in the murder at his residence. Defendant, while in the sheriff's car, pointed out Harris' blue Saab automobile. The officers immediately stopped the Saab and arrested Harris. Approximately $1004 in cash was located in Harris' automobile, as well as some marijuana. A moneybag and a box of .32 caliber automatic rounds were found on the side of a rural Pitt County road; some $2,429 in cash was found strewn nearby. A deputy retrieved from a crawlspace under Harris' residence a green duffel bag containing a .32 caliber semi-automatic pistol, two ammunition clips, one .22 caliber Ruger semi-automatic rifle, one .22 Westpoint bolt-action rifle, an unmounted Redfield power scope, three ammunition clips, and some .22 caliber long-rifle rounds.

S.B.I. Agent Ronald N. Marrs, who was assigned to the Firearm and Tool Mark Section of the Crime Laboratory, examined the shell casings and bullet fragments found in Smith's body, as well as the three firearms. He determined that the four .22 caliber casings found in the driveway were fired from the .22 caliber Ruger semi-automatic rifle, and the .32 caliber projectile was fired from the .32 caliber handgun found in the duffel bag. He could not, however, determine whether the .22 caliber projectile found near the air conditioning unit or the .22 caliber bullet fragments from Smith's body were fired from the Ruger; he stated that he could determine that they were not fired from the .22 caliber bolt action single-shot Westpoint rifle.

At the capital sentencing proceeding, defendant's younger brother, James Ward, testified that their father was a farm worker and defendant had picked cucumbers and worked in tobacco to support the impoverished family. Defendant began this farm work when he was eight years old. Defendant was profoundly affected by the death of their father when defendant was fifteen. Defendant assisted his family--for example, traveling great distances on foot to care for James when he was hospitalized with asthma.

Defendant's mother, Doris Ward, testified that defendant supported her financially. Defendant provided care for his blind grandmother and for his disabled uncle who was in a wheelchair--bathing the uncle, shaving him, and cutting his hair.

Defendant has one daughter for whom he has provided financial and emotional support.

Defendant's sister, Brenda Williams, testified that two days before the shooting defendant had been smoking crack in her mother's house, and that on the day of the shooting Dr. Patricio Lara, a forensic psychiatrist at Dorothea Dix Hospital, examined defendant and testified that defendant was of average intelligence; that defendant was not psychotic, although he did demonstrate an episode of agitation where he was suspicious and fearful of being harmed by others upon discharge from Dorothea Dix Hospital; and that defendant suffered no organic hallucinations related to organic impairment of the brain. Dr. Lara testified that defendant's irritability and tenseness suggested underlying personality difficulties that...

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