State v. Wilkerson

• Decision Date: 28 August 2009
• Docket Number: No. 170A07.,170A07.
• Citation: 363 N.C. 382,683 S.E.2d 174
• Parties: STATE of North Carolina v. George Thomas WILKERSON.
• Court: North Carolina Supreme Court

683 S.E.2d 174

363 N.C. 382

STATE of North Carolina v. George Thomas WILKERSON.

No. 170A07.

Supreme Court of North Carolina.

August 28, 2009.

Appeal as of right pursuant to N.C.G.S. § 7A-27(a) from judgments imposing a sentence of death entered by Judge V. Bradford Long on 20 December 2006 in Superior Court, Randolph County, upon jury verdicts finding defendant guilty of two counts of first-degree murder. Heard in the Supreme Court 15 December 2008.

Roy Cooper, Attorney General, by John H. Watters, Special Deputy Attorney General, for the State.

Staples S. Hughes, Appellate Defender, by Barbara S. Blackman, Assistant Appellate Defender; and Thomas K. Maher for defendant-appellant.

EDMUNDS, Justice.

Defendant George Thomas Wilkerson was indicted for the first-degree murder of Casey Dinoff and for the first-degree murder of Christopher VonCannon. Defendant was also indicted for one count of first-degree burglary. He was tried by jury and on 15 December 2006, was convicted of both counts of first-degree murder on the basis of malice, premeditation, and deliberation and also under the felony murder rule. In addition, defendant was convicted of first-degree burglary, but because the burglary was the felony underlying the felony murder convictions, it merged with the felony murders for sentencing purposes. Following a capital sentencing proceeding, the jury recommended a sentence of death.

Defendant appealed his capital convictions to this Court. We conclude that defendant's trial and capital sentencing proceeding were free from prejudicial error and that defendant's sentence of death is not disproportionate.

Defendant, who sold drugs illegally, lived with his girlfriend Kimberly Kingrey in her apartment in Asheboro, North Carolina. Defendant's source of illicit prescription drugs was William Davis (hereinafter, Mr. Davis), while his source of marijuana and cocaine was Josh Allred. In addition, defendant purchased firearms from Mr. Davis. Defendant's friend Logan Malanowski sold drugs for defendant and delivered them to defendant's buyers. Defendant's friend Joe Ferguson also sold drugs, and Malanowski and Ferguson often stayed with defendant and Kingrey in her apartment.

Victim Casey Dinoff and his brother Corey Wyatt lived with their parents in a mobile home at 6975 Adams Farm Road in Randleman, North Carolina. Adams Farm Road is a two-lane road that runs parallel to North Carolina Highway 220, a four-lane divided highway. A gravel driveway that could be barred by a cattle gate ran from Adams Farm Road to the mobile home. Nighttime illumination was provided by a porch light near the home's front door and a street lamp in the yard facing the driveway.

The parents of Dinoff and Wyatt were long-distance truck drivers who were away from home on 10 January 2005. That morning, Dinoff called Malanowski to purchase Oxycontin. Malanowski drove Kingrey's silver Ford Taurus to the mobile home to make the delivery, arriving between 2:00 and 3:00 p.m. Malanowski was high and had forgotten to bring the Oxycontin, so he unsuccessfully attempted to sell Dinoff and Wyatt a silver nine millimeter handgun with a laser sight instead. Between 4:00 and 5:00 p.m., Dinoff left with Malanowski to retrieve the Oxycontin from Kingrey's apartment. Malanowski returned about forty-five minutes later, dropping Dinoff off with the Oxycontin. Dinoff and Wyatt began ingesting the Oxycontin and smoking marijuana.

That same afternoon, defendant, who was carrying a black Heckler & Koch pistol whose serial number had been filed off, purchased an AK-type rifle and at least one SKS rifle from Mr. Davis. Mr. Davis had modified the AK-type rifle by adding an automatic trigger mechanism. However, the modification was unsuccessful and the weapon never fired more than eight rounds before jamming. Mr. Davis had also added a folding stock to the SKS. During the transaction, defendant and Malanowski posed with the firearms and defendant, who appeared inebriated, high on drugs, or both, said in a joking manner that he was going to kill some people who had stolen from him. Malanowski agreed that he and defendant planned to kill somebody because "people can't be stealing from us."

During the evening of 10 January 2005, defendant, Malanowski, Ferguson, and Allred consumed drugs at a party in Kingrey's apartment. Defendant was using cocaine and smoking marijuana; Ferguson ingested a large quantity of prescription drugs; and Kingrey used cocaine, smoked marijuana, and took Xanax and Clonopin. At about 8:00 or 9:00 p.m., defendant became frustrated and anxious because he could not find his cocaine. After he and Malanowski searched the apartment for the missing drugs, defendant began to make threatening telephone calls to Dinoff, accusing him of stealing the cocaine, which was worth thirty dollars. Defendant claimed that the cocaine had been laid out in Kingrey's apartment to "test" Dinoff, and he threatened to shoot Dinoff unless he received thirty dollars. Defendant continued to call and threaten Dinoff during the course of the evening.

At least three rifles and two handguns were in Kingrey's apartment at the time of the party. Kingrey described one handgun as black and having no serial number, while the other was silver with a laser sight. Kingrey saw defendant "playing" with the firearms during the party, and after Kingrey went to bed, she heard someone shooting a firearm from the porch. She came out of her bedroom and, believing that defendant had fired the shot, told him to leave and take the guns with him.

Before defendant departed, Kingrey overheard him speaking on the phone, threatening loudly that he was "coming to get" the person to whom he was speaking. Defendant, wearing a black leather jacket, black T-shirt, and black corduroy pants, drove away in Kingrey's silver Ford Taurus. After defendant left, Kingrey noticed that one of the rifles and both handguns were no longer in the apartment. Defendant's favorite grey striped stocking cap was also missing from the apartment after that night. A surveillance video camera at a Quik-Chek in Asheboro, North Carolina, recorded defendant wearing such a hat at 12:12 a.m.

In response to defendant's repeated threats to shoot Dinoff, between 8:00 and 10:00 p.m. Dinoff and Wyatt began calling their friends, including Jason Sharpe and Christopher VonCannon, asking that someone drive to their home and pick them up. Wyatt also called 911. However, when one of Dinoff's friends arrived with his wife, Dinoff sent them away after deciding that he and Wyatt could remain at home.

Randolph County Sheriff's Deputy Todd Blakely responded to Wyatt's 911 call and arrived at the residence around 11:00 p.m. Dinoff and Wyatt met Deputy Blakely at the driveway's cattle gate and explained that defendant had repeatedly threatened to shoot Dinoff over a dispute involving thirty dollars. Deputy Blakely advised Dinoff and Wyatt to swear out a warrant at the magistrate's office, then drove approximately one and one-half miles back down Adams Farm Road to the nearest exit and parked where any vehicle approaching Dinoff and Wyatt's residence would have to pass him. After waiting for twenty to twenty-five uneventful minutes, Deputy Blakely cleared the call and went about his other duties.

Sharpe drove with VonCannon out to the Adams Farm residence around midnight and parked at the cattle gate, where Wyatt met them. Wyatt explained that he and Dinoff had recently received another phone call in which Malanowski said that the missing drugs had been found and that they were coming to share a quarter bag of marijuana with Dinoff and Wyatt as a "peace offering." Wyatt, Sharpe, and VonCannon began to walk back up the gravel driveway. The porch light was on and a street lamp in the yard lit the driveway.

As they approached the mobile home, they saw two men standing on the porch. The first man, who was wearing a black leather coat and a cap, held a handgun. The second man was wearing a grey sweatshirt with the hood up and carrying a rifle. Wyatt yelled out Logan Malanowski's name. The first man looked up, then kicked open the front door and went inside. Sharpe observed this individual silhouetted against the light in the home and saw that he was carrying a rifle at his side. Wyatt also saw this man enter the home, then immediately afterward heard gunfire and saw flashes of light through the home's windows. Sharpe also heard gunfire. Both Sharpe and Wyatt testified that they saw one man enter the house and heard two types of gunshots.

The second man stepped off the porch and walked toward Wyatt, VonCannon, and Sharpe. Sharpe observed this man standing in the yard in the light of the street lamp, looking at Wyatt, VonCannon, and him. Although Wyatt briefly saw the face of the second man from a distance, he was unable to identify him. However, VonCannon called out either "Logan" or "Joe" and approached the second man, while Wyatt stood in the driveway as Sharpe ran to unlock his car. Sharpe then returned for Wyatt, and the two ran to Sharpe's car. The last time either Wyatt or Sharpe saw VonCannon alive, he was standing in the front yard talking to the second man. Wyatt last saw Dinoff alive in Dinoff's bedroom in the mobile home.

Sharpe drove to the nearest pay telephone, where Wyatt called 911. When reporting the shooting, Wyatt identified defendant, Malanowski, and Ferguson as the perpetrators. Although Sharpe had not seen the face of either man at the scene, he encouraged Wyatt to identify defendant because of defendant's repeated threats in the preceding hours to kill Dinoff.

At about 1:00 a.m., a telephone call from defendant awoke Kingrey. Defendant, who was screaming and difficult to understand, instructed Kingrey to report her car stolen. At that time, Kingrey saw that Ferguson was asleep on her couch. Kingrey placed a 911 call to report that her car was not where she parked it, but added that she did not want to press...