State v. Zuniga

• Decision Date: 07 July 1987
• Docket Number: No. 156A85,156A85
• Citation: 320 N.C. 233,357 S.E.2d 898
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Bernardino ZUNIGA.

Page 898

357 S.E.2d 898

320 N.C. 233

STATE of North Carolina v. Bernardino ZUNIGA.

No. 156A85.

Supreme Court of North Carolina.

July 7, 1987.

Lacy H. Thornburg, Atty. Gen., by Joan H. Byers and William N. Farrell, Jr., Sp. Deputy Attys. Gen., Raleigh, for the State.

Malcolm Ray Hunter, Jr., Appellate Defender, by Robin E. Hudson, Asst. Appellate Defender, Durham, for defendant-appellant.

MEYER, Justice.

Seven-year-old April Lee Sweet was killed sometime during the day of 13 July 1982. It appears that the last person other than her assailant to see April alive was her grandfather, Calvin Johnson. At a little before 10:00 a.m., Johnson and his wife left April alone in their house and went to work in his tobacco fields. He drove his pickup truck toward the field, following a tractor driven by his son Victor, and upon which his daughter Linda was seated. Johnson saw a taxicab heading along the road toward his house. He testified at trial that there was a Mexican male in the passenger's seat of the taxicab--a man whom he recognized as Richard Lopez, a former employee. He also testified at trial that defendant was the same man known to him as Richard Lopez. Johnson testified that defendant had visited in his house on at least two occasions and that on at least one occasion, April had tried to talk to defendant. Johnson also testified that his wife may have given defendant a photograph of April. Linda Johnson also testified that she had seen defendant in the taxicab that morning.

When Johnson returned home at about 12:15 p.m., he did not find his granddaughter. After searching for some time for April, Johnson called the Alexander County Sheriff's Department. Johnson was interviewed by Sheriff Thomas E. Bebber. Johnson told the sheriff about the sighting that morning of the man he knew as Richard Lopez. At that point, the sheriff notified his department to be on the lookout for a Mexican male named Richard Lopez.

At about 2:00 p.m., the Alexander County dispatcher called Captain Larry Elder with information that a Mexican male was standing at the cab stand in Hiddenite. Captain Elder approached the defendant, told him that he was investigating a missing person report, and asked defendant to accompany him to Taylorsville to be viewed by the taxi driver, Bill Call. Defendant agreed and got into the back seat of Elder's car. At that time, he was carrying a bag of what appeared to Elder to be clothing.

Defendant was viewed by both Bill Call and Ralph Bishop, Call's employer. Both told Elder that defendant was not the man whom Bill Call took to the Johnson home that morning. At trial, Call testified that he had not been able to identify defendant because all Mexicans looked alike to him. After defendant was released, he was taken to Statesville, where he left on a bus headed for Arkansas.

April's body was found by a search party sometime after 5:00 p.m. She was lying on her back, nude from the waist down. Her shorts and panties had been removed and were lying nearby. Dr. John Butts, from the Medical Examiner's Office in Chapel Hill, testified without objection that April had been stabbed through her neck and that in his opinion she had been penetrated by a penis, resulting in tearing of the "birth canal." Samples were taken from April's body. Debris, including newspaper, was collected from the immediate area for examination.

At about 8:00 p.m., Johnny Mitchell, another cab driver in Taylorsville, told Agent Lester of the SBI that he had taken a Mexican male to Statesville that afternoon to catch a bus for Arkansas. At about 10:12 p.m., Lester sought authorization from his superior to detain defendant at Knoxville, Tennessee, an intermediate stop. At about 10:20 p.m., SBI Agent Melton and Captain Elder found a pair of tan pants stuffed under the mat on the floor of the back seat of Captain Elder's car. The pants were bloodstained. Captain Elder testified at trial that nobody but defendant had been in the back seat of his car that afternoon or evening. At 10:42 p.m., Agent Lester sent this message to the Knoxville Police Department:

July 13, 1982, Knoxville, P.D. Investigating rape and murder of seven year old white female. The suspect is a Mexican male. Subject possibly is going by the name of Richard. Murder occurred this date. Last name is possibly Lopez. Subject caught bus in Statesville, North Carolina today and bought ticket for Pine Bluff, Arkansas with a stop in your city at 10:45 p.m., this date. Need assistance in holding for investigation purposes and to interview suspect. Will leave immediately upon contact. Contact if suspect is on bus. Victim was stabbed with a knife, and suspect is approximately 5 foot, 9, [ ] 155 pounds, wearing blue jeans, a blue or gray shirt, and possibl[y] a baseball hat. If you need any further contact, we will furnish. Alexander County Sheriff's Department, Taylorsville, North Carolina.

The bus carrying defendant arrived at Knoxville just before 11:00 p.m. Detective Moyer of the Knoxville Police Department met the bus and detained defendant, the sole Mexican male on board. After defendant was taken into custody, Detective Moyer notified Agent Lester. Agent Lester set out for Knoxville by car, along with two other officers and Calvin Johnson.

At the police station in Knoxville, officers took hair and fingernail scrapings from the defendant. As defendant took down his trousers for a pubic hair sample, Detective Moyer noticed that defendant pulled both trousers and underpants down simultaneously. Later, having become suspicious, Detective Moyer asked to see defendant's undershorts. The shorts had blood on the front. This blood was later found to be consistent with that of the victim. Among the personal effects seized from defendant was a small photograph of April Sweet.

When the party from North Carolina arrived, Calvin Johnson identified defendant as the person he had seen in the taxicab near his house. Defendant, with the assistance of an interpreter, waived his objection to extradition, but invoked his fifth amendment right to silence. He was transported to North Carolina, where he was formally charged with first-degree murder and rape.

Defendant makes numerous assignments of error in all stages of the prosecution against him. For the sake of clarity, these errors will be discussed in four groupings: errors at the pretrial stage of the prosecution, errors in jury selection, errors during the guilt/innocence phase of the trial, and errors during the sentencing hearing.

I. PRETRIAL

On 19 July 1982, the State sought a nontestimonial identification order to obtain samples of blood, hair, saliva, and handwriting from the defendant, as well as to examine the defendant's genitalia. The State moved under N.C.G.S. § 15A-274 for a waiver of the 72-hour prior service rule on the grounds that the victim's hair could be changed or any wounds on the defendant's genitalia could heal before the examination could be carried out. The 72-hour rule was waived, and the defendant was served with the nontestimonial identification order approximately thirty minutes before the examination was conducted. There was no return of service of the order as required under N.C.G.S. § 15A-280. The State never sought a search warrant.

Defendant made a timely motion to suppress the evidence collected from the nontestimonial identification order. His contention at the suppression hearing was that the evidence was the result of an unlawful search and seizure and that it was collected in violation of N.C.G.S. § 15A-280 (return required within ninety days). The trial judge found that the sole basis of the defendant's motion to suppress was that the requirements of Chapter 15A were not complied with. He then denied the defendant's motion to suppress, holding that the requirements of the nontestimonial identification order do not apply to persons already in custody. Defendant argues that this was error.

It appears from the record that while the defendant alleged in his motion to suppress that the taking of the samples violated not only N.C.G.S. § 15A-280 but also the federal constitution, the judge made the following finding:

(4) That the basis for the defendant's motion to suppress was the failure to fully comply with the requirements of Chapter 15A of the General Statutes of the State of North Carolina.

As no exception to this finding appears in the record, the defendant has failed to properly preserve his constitutional argument, and this argument is not properly before us. ¹

Defendant argues in his brief that the taking of the samples was in substantial violation of Article 10 of Chapter 15A, the article governing the execution of warrants. Because the defendant did not raise this argument at the suppression hearing, or assign as error the failure of the State to procure a warrant for the examination of the defendant, this issue is not properly before us.

Defendant's sole argument at trial was that the taking of the samples violated Article 14 of Chapter 15A of our General Statutes, the article governing the execution of nontestimonial identification orders. Defendant has made no argument to this Court, however, indicating in what way the taking of the samples in this case constituted a substantial violation of any of the provisions of Article 14. This assignment of error is deemed abandoned. N.C.R.App.P. 28.

Defendant next argues that on the night of the murder, the Alexander County Sheriff's Department instituted a Police Information Network message to Knoxville, Tennessee, requesting that defendant be detained. Several items were seized from the defendant at that time, including the photograph of April Sweet and defendant's bloodstained undershorts. On 17 August 1983, the trial court allowed defendant's motion to suppress this evidence on the ground that the warrantless search was unreasonable. The State appealed this decision and this Court reversed the trial court, State v. Zuniga, ...