State v. Warren

Decision Date07 November 1997
Docket NumberNo. 562A96,562A96
CourtNorth Carolina Supreme Court
PartiesSTATE of North Carolina v. Lesley Eugene WARREN.

Michael F. Easley, Attorney General by William P. Hart, Special Deputy Attorney General, for the State.

Anthony Lynch, Marion, for defendant-appellant.

WHICHARD, Justice.

In February 1995 defendant, Lesley Eugene Warren, pled guilty to the first-degree murder of Jayme Denise Hurley. After a capital sentencing proceeding, the jury recommended a sentence of death. Defendant now appeals from this sentence. We find no prejudicial error and hold that defendant received a fair capital sentencing proceeding and that the sentence of death is not disproportionate.

The State's evidence tended to show that on 24 May 1990, defendant visited the home of Jayme Hurley, defendant's former juvenile counselor. Defendant told Hurley he needed help, and Hurley agreed to let defendant sleep on her couch for the night. Late in the evening, defendant strangled Hurley to death.

Defendant took Hurley's dead, naked body to a rocky and remote area of the Pisgah National Forest, 210 feet from a paved road, and buried the body in a shallow grave covered with rocks and an engine part. He placed Hurley's clothes under a log a short distance away. Police did not find the body until 18 July 1990.

Upon questioning, defendant admitted that he had killed Hurley. Defendant pled guilty to first-degree murder. During his capital sentencing proceeding, defendant stipulated that he had been convicted of the first-degree murder of another woman, Velma Faye Gray, in South Carolina, for which he was sentenced to life in prison.

Defendant first contends the trial court erred by allowing into evidence, over defendant's objection, postmortem photographs of the woman he murdered in South Carolina and a videotape of the disinterment of the victim in this case. He asserts that these images unduly prejudiced the jury against him and lacked relevance to any issue in sentencing. We disagree.

During a sentencing proceeding, the trial court may admit any evidence it " 'deems relevant to sentenc[ing].' " State v. Heatwole, 344 N.C. 1, 25, 473 S.E.2d 310, 322 (1996) (quoting State v. Daughtry, 340 N.C. 488, 517, 459 S.E.2d 747, 762 (1995), cert. denied, 516 U.S. 1079, 116 S.Ct. 789, 133 L.Ed.2d 739 (1996)), cert. denied, --- U.S. ----, 117 S.Ct. 1259, 137 L.Ed.2d 339 (1997). "[T]he State must be permitted to present any competent evidence supporting the imposition of the death penalty," id., including photographs of the victim. The State may introduce photographs and videotapes to illustrate the testimony of a witness regarding the manner of a killing. State v. Kandies, 342 N.C. 419, 444, 467 S.E.2d 67, 80, cert. denied, --- U.S. ----, 117 S.Ct. 237, 136 L.Ed.2d 167 (1996). Further, the State may present evidence of the circumstances surrounding a defendant's prior felony, notwithstanding the defendant's stipulation to the record of conviction, to support the existence of aggravating circumstances. Heatwole, 344 N.C. at 19, 473 S.E.2d at 319. If the felony of which defendant has previously been convicted was a particularly shocking or heinous crime, the jury should be so informed. Id.

Here, the postmortem photographs of Gray, defendant's victim in South Carolina, illustrated the testimony of Sergeant Michael Ennis and supported the existence of the (e)(3) aggravating circumstance, that defendant had been previously convicted of a felony involving the use of violence to a person. See N.C.G.S. § 15A-2000(e)(3) (Supp.1996). The videotape of the disinterment of Hurley, defendant's victim in this case, properly illustrated the testimony of Captain Ross Robinson regarding defendant's treatment and concealment of the body. This evidence was competent and relevant circumstantial evidence regarding defendant's intent to kill, malice, premeditation, and deliberation. See Kandies, 342 N.C. at 444, 467 S.E.2d at 81.

Whether photographic evidence is more probative than prejudicial is within the Defendant next argues that the trial court improperly permitted the State to cross-examine defendant's expert witness, Dr. Bruce Welch, about bad acts defendant committed prior to the murder in this case. Defendant contends that this cross-examination violated his plea agreement and the Rules of Evidence. This contention lacks merit for several reasons.

trial court's discretion. Heatwole, 344 N.C. at 25, 473 S.E.2d at 322; State v. Hennis, 323 N.C. 279, 285, 372 S.E.2d 523, 527 (1988). Here, defendant has failed to show that the trial court abused its discretion by admitting photographs of defendant's prior murder victim or by admitting a videotape of the disinterment of the victim in this case. This assignment of error is overruled.

First, defendant opened the door by eliciting testimony about these acts on direct examination. Welch testified that defendant was referred to the Blue Ridge Community Mental Health Center in 1982 because defendant "wrote letters that were strange enough, bizarre and frightening enough to people that he was referred for treatment and evaluation." Welch also testified that defendant had "broken all kinds of rules ... vandalized things ... stolen things."

After defendant elicited this testimony, the State notified the trial court that it intended on cross-examination to inquire into details of defendant's threatening letters and acts of vandalism and theft. The trial court heard arguments and considered voir dire testimony before allowing limited inquiry into the matters brought out on direct examination. During this cross-examination before the jury, the State questioned Welch about defendant's threatening letters, theft, and vandalism, and highlighted inconsistencies between Welch's testimony and the report from Blue Ridge Community Mental Health Center. This was proper. The law "wisely permits evidence not otherwise admissible to be offered to explain or rebut evidence elicited by the defendant himself." State v. Albert, 303 N.C. 173, 177, 277 S.E.2d 439, 441 (1981).

The cross-examination was also proper to explore the basis for the expert's opinion and diagnoses. Defendant's expert had testified on direct examination that prior bad acts, including defendant's acts of theft, vandalism, and distributing threatening letters, formed the basis for the various diagnoses of defendant over the years. As such, they were relevant to the jury's full understanding and consideration of those diagnoses. See N.C.G.S. § 8C-1, Rule 705 (1992); State v. Coffey, 336 N.C. 412, 420, 444 S.E.2d 431, 436 (1994).

The trial court has broad discretion over the scope of cross-examination. State v. Woods, 345 N.C. 294, 307, 480 S.E.2d 647, 653, cert. denied, --- U.S. ----, 118 S.Ct. 194, --- L.Ed.2d ---- (1997). In a sentencing proceeding, the Rules of Evidence do not limit this discretion because they do not apply. N.C.G.S. § 8C-1, Rule 1101(b)(3) (1992); see also N.C.G.S. § 15A-2000(a)(3) (evidence "may be presented as to any matter that the court deems relevant to sentence"). Because defendant first elicited the testimony about his prior bad acts and because those acts formed part of the basis of his expert's diagnoses, the trial court did not abuse its discretion in permitting the State to cross-examine the expert regarding them.

Further, defendant waived his right to appellate review by not fully objecting and not properly preserving the objections he made. Although defendant filed motions in limine requesting that the trial court preclude the State from presenting evidence of his prior bad acts, "[a] motion in limine is insufficient to preserve for appeal the question of the admissibility of evidence if the defendant fails to further object to that evidence at the time it is offered at trial." State v. Conaway, 339 N.C. 487, 521, 453 S.E.2d 824, 845, cert. denied, --- U.S. ----, 116 S.Ct. 223, 133 L.Ed.2d 153 (1995). Defendant objected to some evidence of prior bad acts, but he waived any right to review of that evidence by presenting similar evidence on direct examination of his own expert and by not objecting to similar evidence offered by the State. See State v. Alford, 339 N.C. 562, 569-70, 453 S.E.2d 512, 516 (1995).

Finally, the State's cross-examination of defendant's expert regarding defendant's prior bad acts did not violate defendant's By his third assignment of error, defendant contends the trial court erred and violated his constitutional rights when it refused to allow him to inform the jury that he had received a life sentence for first-degree murder in South Carolina under which he is parole-eligible after serving twenty years. Defendant concedes that this Court has decided this issue contrary to his position. In State v. Payne, 337 N.C. 505, 516, 448 S.E.2d 93, 99 (1994), cert. denied, 514 U.S. 1038, 115 S.Ct. 1405, 131 L.Ed.2d 292 (1995), this Court held that "evidence about parole eligibility is not relevant in a capital sentencing proceeding because it does not reveal anything about defendant's character or record or about any circumstances of the offense." The Court also held that Simmons v. South Carolina, 512 U.S. 154, 114 S.Ct. 2187, 129 L.Ed.2d 133 (1994), does not affect this position where a defendant is parole-eligible if given a life sentence. Payne, 337 N.C. at 516, 448 S.E.2d at 99. In Simmons the United States Supreme Court held that it was error to refuse to give a proposed jury instruction that a defendant was ineligible for parole under state law. That case is inapposite because defendant here will be eligible for parole after serving twenty years of his life sentence in South Carolina and would have been eligible for parole after serving twenty years had he received a life sentence in this case. See State v. Skipper, 337 N.C. 1, 44, 446 S.E.2d 252, 276 (1994), cert. denied, 513 U.S. 1134, 115 S.Ct. 953, 130 L.Ed.2d 895 (1995). This assignment of error is overruled.

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