State v. White

• Decision Date: 02 June 1995
• Docket Number: No. 487A93,487A93
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Sylvia Ipock WHITE.

Page 841

457 S.E.2d 841

340 N.C. 264

STATE of North Carolina v. Sylvia Ipock WHITE.

No. 487A93.

Supreme Court of North Carolina.

June 2, 1995.

Michael F. Easley, Atty. Gen. by Thomas F. Moffitt, Sp. Deputy Atty. Gen., for State.

Malcolm Ray Hunter, Jr., Appellate Defender by Daniel R. Pollitt, Asst. Appellate Defender, for defendant-appellant.

PARKER, Justice.

Defendant was tried noncapitally on an indictment charging her with the first-degree murder of her stepson, Billy C. White, II ("victim"). The jury returned a verdict finding defendant guilty of first-degree murder, and defendant was sentenced to life imprisonment. For the reasons discussed herein, we conclude that defendant's trial was free of prejudicial error and uphold her conviction and sentence.

The State's evidence tended to show that in June 1973, defendant, Sylvia Ipock White, lived in Kinston, North Carolina, with her husband, Billy White, Sr. The Whites lived in an affluent part of Kinston with three of defendant's children from a previous marriage and four of her husband's children from a previous marriage. The victim was defendant's four-year-old stepson.

On 21 June 1973, the victim was at home with defendant while his brothers and sisters were at school. At approximately 3:00 p.m., defendant rushed the victim to the emergency room at Lenoir Memorial Hospital. The child's skin was extremely white, and he was pronounced dead upon arrival at the hospital. Peggy Chrisco and Susan Manning, two nurses on duty when the victim was brought into the emergency room, were informed that the child had swallowed a piece of plastic. They looked into the child's mouth using a tongue depressor or a laryngoscope but saw no foreign objects. Anita McGirt, the hospital's operating room manager, was passing through the emergency room at the time the child was brought into the hospital. McGirt went to look at the victim because she was a friend of the victim's father and knew the child. After the other nurses told McGirt that the child had swallowed a piece of plastic, she asked Dr. Sabiston, the medical examiner, to remove it from the child's throat.

Using a laryngoscope and a Kelly clamp, Dr. Sabiston extracted a large piece of a plastic laundry bag from the child's throat. McGirt testified that when the plastic was removed from the victim's throat, it was tightly wadded up and came out in one piece, but it unfolded "like a flower" into a "big handful." Chrisco testified that the piece of plastic was large enough to cover her hand and three-fourths of her arm. There were no torn edges, teeth imprints, or bite or chew marks on the plastic. Dr. Sabiston placed the plastic in Manning's hands, and she threw it in the sink. The piece of plastic was later thrown away as trash.

On the victim's original death certificate, Dr. Sabiston stated that the death was accidental. The emergency room report filed in connection with the victim's death did not contain any information about the piece of plastic removed from the child's throat. Manning testified at trial that the piece of plastic was too large to have been swallowed by a human being, much less a four-year-old child. Chrisco testified that the piece of plastic could not have been swallowed accidentally. McGirt testified that it would have been impossible for her to swallow a piece of plastic as large as the one removed from the victim's throat. Manning and Chrisco claimed that they thought the victim's death was suspicious at the time; but despite their misgivings, neither pursued any further investigation into the death.

The State's evidence further tended to show that defendant gave differing versions of the events the day the victim died. The night after the child's death, defendant told the victim's grandparents that she left him playing in the breakfast room and went to the garage to get some string beans. When she returned, the boy was making noise and choking on plastic. Years later, defendant claimed that the child liked to pull plastic from the garment bags and pretend it was chewing gum. She claimed that on the morning of his death, she took plastic out of his mouth and then went to another room to get dressed. When she returned, the child had his head on the table. She said that she tried to remove the piece of plastic stuck in his throat but was unable to do so.

The State's evidence further tended to show that beginning in the spring of 1991, defendant conspired with Lynwood Taylor and Ernest Basden to kill her husband, Billy White, Sr. She had at least six meetings with Taylor to discuss her husband's murder. During one of these meetings between Taylor and defendant, Taylor expressed hesitation about taking someone's life, and defendant encouraged Taylor to murder her husband. Taylor testified that defendant told him, "[I]t's not that hard to do. I had a step-child. I put a bag over it until it stopped breathing. It was better off."

After defendant's arrest for her involvement in her husband's murder, the body of the victim in this case was exhumed. An autopsy on the body was performed by Dr. John D. Butts, Chief Medical Examiner of the State of North Carolina and an expert in forensic pathology. This autopsy revealed that the child had suffered a large fracture to the back of his skull several weeks before his death, which could have resulted from a serious fall onto a hard surface from a considerable distance or by the child being struck in the back of the head with a blunt object with considerable force. After Dr. Butts reviewed the victim's records and conducted this physical examination of the victim's remains, he filed a supplemental death certificate in which he stated that the child's death had been a homicide caused by a bag being forced down his throat. Dr. Butts testified at trial that a four-year-old child could not have voluntarily swallowed a piece of plastic from a laundry bag as large as the one removed from the victim's throat because "it's going to tend to initiate the gag reflex and it's going to be very difficult if not, in my opinion, essentially impossible to voluntarily swallow."

Dr. Richard Page Hudson, Jr. testified that he had formerly been the Chief Medical Examiner of the State of North Carolina and that in his opinion a piece of plastic the size of the one found in the victim's throat could not have been swallowed by a child. In his judgment the plastic had been forced down the child's throat, and the death was a homicide.

The State's evidence also tended to show that a few weeks before his death, the victim had suffered several burns on his leg and ankle. According to Barbara Paderick, a neighbor of defendant's in 1973, defendant told her that one afternoon when she was at home alone with the victim, the child slipped out of the house and ignited a can of gasoline, resulting in severe burns on his leg and ankle. Paderick testified that the child's burns were covered in bandages and plastic wrap from his hip to his ankles. She further testified that defendant told her that the child kept pulling the plastic off his bandages and that if the child swallowed the plastic, it could hurt him.

Dr. Frederick Payne Dale testified that he treated the victim for these burns on 15 and 19 June 1973 and recommended covering them with a light bandage. He did not recommend covering the bandages with plastic wrap, which he testified would have been contrary to accepted medical treatment and would have increased the risk of infection.

Finally, the State's evidence tended to show that just prior to the victim's death, defendant had been named as a co-beneficiary of a $15,000 life insurance policy taken out on the life of the victim. Billy White, Sr.'s first wife had previously been named as the co-beneficiary; but on 20 June 1973, the policy was amended to name defendant as the co-beneficiary. This change was effective retroactively as of 15 June 1973, six days prior to the murder.

Defendant put on no evidence at trial.

Defendant first contends that the trial court abused its discretion by erroneously denying her motion to continue this trial until after her capital trial in Jones County, North Carolina, for the murder of her husband. Defendant claims the denial of her motion for a continuance forced her to choose between (i) testifying in her own behalf in the instant case and waiving her constitutional privilege against self-incrimination in her capital trial or (ii) waiving her constitutional right to testify in this trial to preserve her right against self-incrimination in her capital trial.

Defendant argues that this "Hobson's choice" caused her to concede this case and enabled the State to later use this conviction as an aggravating circumstance in her capital trial. She argues that a continuance until after her capital prosecution would have resolved this dilemma and that a short delay would not have prejudiced the State in its prosecution of this twenty-year-old murder case. For the following reasons, we reject defendant's arguments.

Ordinarily a motion for continuance is addressed to the sound discretion of the trial judge and will not be disturbed on appeal absent a showing of abuse of that discretion. State v. Stager, 329 N.C. 278, 318, 406 S.E.2d 876, 899 (1991). "If the motion raises a constitutional issue, the trial court's action involves a question of law which is fully reviewable upon appeal." Id. (citing State v. Branch, 306 N.C. 101, 104, 291 S.E.2d 653, 656 (1982)). "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." Branch, 306 N.C. at 104, 291 S.E.2d at 656.

A defendant cannot be required to surrender one constitutional right in order to assert another. Simmons v. United States, 390 U.S. 377, 394, 88 S.Ct. 967, 976, 19 L.Ed.2d 1247, 1259 (1968). A...