State v. Wiggins
| Decision Date | 02 July 1993 |
| Docket Number | No. 342A91,342A91 |
| Citation | 334 N.C. 18,431 S.E.2d 755 |
| Parties | STATE of North Carolina v. Phillip Novell WIGGINS. |
| Court | North Carolina Supreme Court |
Appeal as of right pursuant to N.C.G.S. § 7A-27(a) from judgment imposing sentence of life imprisonment entered by Barefoot, J., at the 13 May 1991 Criminal Session of Superior Court, Lenoir County, upon a jury verdict of guilty of first-degree murder. Defendant's motion to bypass the Court of Appeals as to an additional judgment imposed for robbery with a dangerous weapon was allowed 12 February 1992. Heard in the Supreme Court 7 October 1992.
Lacy H. Thornburg, Atty. Gen. by Mary Jill Ledford, Asst. Atty. Gen., Raleigh, for the State.
William D. Spence, Kinston, and T. Dewey Mooring, Jr., LaGrange, for defendant.
Defendant, Phillip Novell Wiggins, was indicted for first-degree murder, robbery with a dangerous weapon, and as a habitual felon. Defendant was tried capitally to a jury, which returned a verdict of guilty of first-degree murder based on malice, premeditation and deliberation. Defendant was also found guilty of robbery with a dangerous weapon. The jury found defendant not guilty of first-degree murder under the felony murder rule. After finding that there were no statutory aggravating circumstances to be submitted to the jury, the trial court imposed the mandatory sentence of life imprisonment for the first-degree murder conviction. Defendant admitted habitual felon status and was sentenced as a habitual felon to life imprisonment for robbery with a dangerous weapon.
Defendant gave written notice of appeal to this Court on 24 May 1991. After filing his record on appeal and brief with this Court, defendant filed a motion for appropriate relief with this Court claiming newly discovered evidence that would entitle him to a new trial. By Order dated 18 December 1992, this Court remanded the cause to the Superior Court, Lenoir County, for an evidentiary hearing on defendant's motion. By Order filed 22 January 1993, after an evidentiary hearing, Judge James D. Llewellyn denied defendant's motion. Both defendant and the State filed supplemental briefs with this Court addressing whether the trial court correctly denied defendant's motion for appropriate relief. After reviewing the transcript of the hearing and considering their supplemental briefs, we conclude that the trial court properly denied defendant's motion for appropriate relief. On his direct appeal, we conclude that defendant received a fair trial, free from prejudicial error.
I.
Richard Ivey Sutton was murdered in the early morning hours on 10 April 1990 at his home on Orion Street in Kinston. Sutton operated a "liquor house" from his home which defendant and friends had visited on the evening of 9 April 1990 and the morning of 10 April 1990.
Jeffrey Moore, who was in custody as a result of charges against him relating to the murder of Sutton, was the main witness for the State and testified to the following facts at trial. Moore lived with Stephon Marshburn in a mobile home in April of 1990. William Mewborn, Renee Croom and defendant Phillip Novell Wiggins also lived there. The mobile home was located close to the victim's home.
On the evening of 9 April 1990 Moore, Marshburn, Mewborn and defendant spent time at the victim's home drinking beer. They left around 11:00 p.m. and returned to Marshburn's home to watch television. Soon thereafter an argument between Mewborn and his girlfriend Gloria developed into an altercation. During the altercation, Gloria cut Mewborn on the arm. She then left Marshburn's home with defendant accompanying her.
Defendant later returned to Marshburn's home and warned the others that Gloria was going to "get her ex-boyfriend" who was "coming back to the trailer." Marshburn left his home to visit his neighbor "Champ" who was in possession of various firearms. Marshburn and Champ returned to Marshburn's home with six .22 caliber rifles and one sawed-off shotgun. Each gun was loaded and held only one bullet. The men waited outside for the anticipated attackers, but no one ever arrived. The group eventually abandoned their guard and retreated inside the mobile home.
At about 3:30 a.m. the men visited the victim's home again for a short time and then returned to Marshburn's home. Around 4:00 a.m., defendant went to the store at Moore's request to buy cigarettes for Moore. Defendant took his gun with him. After defendant had been away for about an hour, Moore and Mewborn decided to go out to look for him. They also took their guns with them.
They went to the victim's home and knocked on the door. After a delay, the victim answered. They walked in and proceeded to the kitchen. Defendant was there and his gun was nearby on the kitchen counter. Moore asked the victim to get a beer for him and Mewborn. The victim did not respond. However, defendant picked up a bag from the counter and told Moore and Mewborn that "he already had it." Mewborn then asked "where the money was." Defendant reached in his pocket and pulled out loose money and said he "already had it." Mewborn demanded that defendant give him the money. Defendant did not respond, so Mewborn grabbed him by the collar and again demanded that defendant give him the money. In the meantime, the victim told the men to "take the beer and the money and leave." Mewborn told the victim to shut up and pointed the gun at his face. Mewborn then shot the victim between the eyes.
Mewborn then told Moore and defendant that "he couldn't leave [the victim] like this; that the victim was going to tell on" them. Mewborn asked defendant to give him more bullets. Defendant had none, so defendant obtained some from Moore who was on his way out the door. Moore testified that defendant "pointed his gun in my face and told me to give him some more bullets." Moore gave him about fifteen bullets and then ran out of the victim's home. He heard two more shots, "a couple of seconds apart," on his way out.
Moore went to Marshburn's home and told Marshburn what had happened. Mewborn and defendant arrived about five minutes later. Mewborn was yelling at defendant about the money. Defendant finally gave Mewborn the money. At various points both Mewborn and defendant threatened to kill Moore because he might "say something."
Moore left Marshburn's home but returned around 6:00 a.m., at which time Mewborn was asleep. Marshburn said he wanted to see the victim, so Moore accompanied Marshburn to the victim's home. While they were there, a man who identified himself as the victim's cousin arrived and asked to see the victim. Moore and Marshburn informed him that Sutton was dead. After a few minutes, the three men drove to the police station to alert the authorities. A policeman arrived on the scene shortly thereafter. Moore informed the police that he and Marshburn visited the victim's home in order to buy beer and that they found the victim dead upon their arrival. On 11 April 1990, police visited Marshburn's home and told Moore, Marshburn, Mewborn, Croom and defendant that they needed to talk to them. On that day, Moore told the police everything that had happened. He was arrested shortly thereafter.
William L. Slaughter, Special Agent with the State Bureau of Investigation (S.B.I.), testified that, on the evening of 10 April 1990, he located defendant at Marshburn's residence and transported him to the Kinston Police Department. Defendant gave a statement in which he claimed that, following Mewborn's argument with his girlfriend, he had remained at Marshburn's home for the rest of the morning.
Stephon Marshburn testified that early on 10 April 1990, while Mewborn and defendant were arguing, Moore told him that Moore, Mewborn and defendant had been at the victim's home and that Mewborn had shot the victim. Marshburn "laughed it off" because he did not believe Moore. Later, Marshburn followed Mewborn and defendant into the bedroom where he saw one- and five-dollar bills all over the bed. Defendant repeatedly asked Mewborn to give him the money but Mewborn refused. Defendant told Marshburn that Mewborn asked the victim for money, the victim refused and the gun accidentally went off in the victim's face. Defendant said he told Mewborn, "Man, you got to kill him because the guy is suffering." Defendant told Marshburn that he then left. Marshburn testified that he and defendant then decided to take the guns apart and throw them out.
Defendant testified that late on 9 April 1990 until early on 10 April 1990 he was at the victim's home. Thereafter he returned to Marshburn's home. He stated that while watching television he fell asleep between 4:30 and 5:00 a.m. on 10 April 1990 and did not awake until 8:00 or 9:00 a.m. He said that he knew nothing about the killing other than what he had heard since he had been in police custody.
Additional evidence will be discussed as it becomes relevant to a fuller understanding of the specific issue raised on appeal.
Defendant first contends that the trial court erred by refusing to require the State to conduct a probable cause hearing. Defendant was arrested pursuant to a warrant on 11 April 1990. Defendant's initial appearance was held on 12 April 1990 and counsel was appointed at that time to represent him. A probable cause hearing was set for 26 April 1990, in accordance with N.C.G.S. § 15A-606. However, the scheduled probable cause hearing was not held. On 10 August 1990, defendant filed two motions requesting a probable cause hearing, both of which were subsequently denied. On 17 August 1990, the grand jury returned true bills of indictment upon which defendant was tried.
We have held that there is no constitutional right to a probable cause hearing. See State v. Oliver, 302 N.C. 28, 38, 274 S.E.2d 183, 190 (1981); State v. Lester, 294 N.C. 220, 224, 240 S.E.2d 391, 396 (1978). However, N.C.G.S. § 15A-606 requires a judge to schedule a probable cause hearing not later than...
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