State v. Head, 79 N.C. App. 1

79 N.C. App. 1 | N.C. Ct. App. | 1986

WELLS, Judge.

I.

In his first assignment of error, defendant contends that the trial court erred in denying defendant’s motion to dismiss for insufficient evidence. The evidentiary principles governing motions to dismiss are set out at length in State v. Earnhardt, 307 N.C. 62, 296 S.E. 2d 649 (1982). Briefly summarized, they are that the evidence must be considered in the light most favorable to the State, with the benefit of all permissible favorable inferences. If the trial judge finds substantial evidence, regardless of weight, of each essential element of the crime, and that defendant committed it, the motion should be denied.

“Substantial evidence” may be defined as “any evidence tending to prove the fact in issue, or which reasonably conduces to its conclusion as a fairly logical and legitimate deduction, and not merely such as raises a suspicion or conjecture in regard to it . . . Id. The court is to consider all of the evidence actually admitted, whether competent or incompetent, which is favorable to the State. Id. Though all the evidence against defendant be circumstantial, that fact alone should not bar submission of the case to the jury. The test of the sufficiency of the evidence to withstand the motion to dismiss is the same whether the evidence is direct, circumstantial or both. State v. Bullard, 312 N.C. 129, 322 S.E. 2d 370 (1984). If the evidence presented is circumstantial, the question for the court is whether a reasonable inference of defendant’s guilt may be drawn from the circumstances. If so, it is for the jury to decide whether the facts, taken singly or in combination, satisfy them beyond a reasonable doubt that the defendant is actually guilty. State v. Thomas, 296 N.C. 236, 250 S.E. 2d 204 (1978).

Second degree murder is the unlawful killing of a human being with malice, but without premeditation and deliberation. State v. Hutchins, 303 N.C. 321, 279 S.E. 2d 788 (1981). In homicide cases, as in all criminal cases, the State must show that a crime was committed and that defendant committed it. State v. Earnhardt, supra. The evidence that a crime was committed is often referred to as the corpus delicti, meaning literally “the body of the transgression charged.” State v. Dawson, 278 N.C. 351, 180 S.E. 2d 140 (1971). The death, the felonious cause of death and the identification of an accused as the person who caused the death can all be shown by circumstances from which these facts might reasonably be inferred. See State v. Edwards, 224 N.C. 577, 31 S.E. 2d 762 (1944). If the evidence is only circumstantial, it should be “so strong and cogent that there can be no doubt of the death.” State v. Dawson, supra.

Dianne Gabriel’s body was never found; therefore, the corpus delicti in this case must be shown by two logical steps. First, Dianne Gabriel must be shown to be dead; second, her death must be shown to be a result of a criminal agency.

A.

Defendant contends that despite the evidence brought out at trial, the State has not met its burden of establishing corpus delicti. To support this assertion, defendant cites Lord Chief Justice Hale who in turn cites Lord Coke for a case in which a man was executed for the murder of his niece, who had disappeared. The niece had only run away and later returned to claim her property. Defendant also cites a case from 1661 in which a man was executed for killing a rent collector, who later turned up alive. In both these cases a strong reason for the “victims’ ” disappearances was suggested by the facts: The niece had run away to escape beatings by her uncle; the rent collector had absconded with the collected rents. There was no such apparent motive for Dianne Gabriel to disappear. To the contrary, there was much evidence tending to show strong motives on her part to continue enjoying the life she had been leading. Dianne Gabriel’s life was not lived in the seventeenth and eighteenth centuries:

In . . . Hale’s day, a person might disappear beyond all possibility of communication by going overseas or by embarking in a ship. It would have been most dangerous to infer death merely from his disappearance. Worldwide communication and travel today are so facile that a jury may properly take into account the unlikelihood that an absent person, in view of his health, habits, disposition, and personal relationships would voluntarily flee, “go underground,” and remain out of touch with family and friends. The unlikelihood of such a voluntary disappearance is circumstantial evidence entitled to weight equal to that of bloodstains and concealment of evidence.

Epperly v. Com., 224 Va. 214, 294 S.E. 2d 882 (1982). We concur in the force of this logic.

That Dianne Gabriel would voluntarily disappear is so unlikely as to remove any doubt of its occurrence. There was nothing missing from her home, such as clothing or a suitcase. All the clothing she had been wearing when last seen, except a sweater or blouse, was found at the McCrary Creek Access Area. The last transactions on the joint bank account with her husband were a credit card payment in excess of $800 and a deposit in excess of $1,800, both dated 18 July. No further transactions on that account were recorded by the bank. Ms. Gabriel was shown to be a happy person, in good physical and mental condition. Her work habits were described as “very conscientious.” Her employer described her as “as hard-working ... as anybody I ever had.” She had several closings expected that week, she made plans to get back in touch with the Heltons and she had made tentative plans, as written in her notebook, to host an “Open House” for both the Heltons and “McCorkle” for 24 July.

Though Donald and Dianne Gabriel had separated for six or seven months half a year before Ms. Gabriel’s disappearance, they had since reconciled. There was no evidence of continuing acrimony or ill feelings in the relationship. During the separation, it was Donald Gabriel who left the home. Dianne Gabriel had never disappeared or left home for any length of time previous to 18 July 1983. A police survey of thirteen hospitals and mental health centers failed to turn up any patients matching Ms. Gabriel’s name or description. Moreover, there was no evidence that she was alive at the time of trial, a full nineteen months after her disappearance.

The foregoing evidence was clearly sufficient to establish the death of Dianne Gabriel.

B.

The State’s evidence was sufficient to allow the reasonable inference that the cause of Ms. Gabriel’s death was a criminal agency. There was no body or other physical remains found; this negates the inference that Dianne Gabriel died from suicide or natural causes. Had she died by accident, the presence of most of her clothing in the McCrary Creek Access Area would admit of no explanation.

Further evidence of criminal agency is found by Agent Ben-dure’s testimony that the circular pieces of duct tape fit together where they had been cut once to form ankle-size loops for binding. That this exercise is logically consistent is shown by the presence on the duct tape of pieces of hosiery material and fibers from Ms. Gabriel’s canvas shoes and polyester slacks. Both the slacks and the pair of underwear were cut and then torn or cut further to lay the fabric back totally. On the length of nylon rope was found a hair microscopically consistent with the hair of Dianne Gabriel. Hairs matching hers from the slacks and one of the shoes were crushed and had tissue adhering to the roots, indicating forcible removal. Ms. Gabriel was scheduled to appraise the house of a man who had given her a false name and false telephone number. This evidence was sufficient to allow the jury reasonably to infer that a criminal agency was the cause of Dianne Gabriel’s death.

c.

Finally, in order to get to the jury, the Sthte had to show that the criminal agent who caused Ms. Gabriel’s death was the defendant.

Fingerprint evidence linked defendant to the trash bag and its contents. Hair strands linked the duct tape, rope, shoes, slacks and other items to Dianne Gabriel. Fiber evidence linked both defendant and Ms. Gabriel to the trash bag’s contents and the clothing found in the woods and showed convincingly that Ms. Gabriel had been in defendant’s home.

The foregoing evidence was manifestly credible. Fingerprint evidence is a common and reliable tool for police investigation and will not be discussed here. The similarities in the hair samples were testified to by Special Agent Worsham, an expert in forensic hair examination and identification. Examination of hair includes the comparison of the many variables of color, thickness and shapes of scales on the cuticle, the outside of the hair shaft; the colors, shapes, sizes and distribution patterns of pigments in the cortex, the inner core of the hair shaft; and cellular shapes, sizes and patterns of the medulla, or central core of the hair shaft. In referring to the microscopic consistency of two or more hairs, Agent Worsham stated that he meant that the hairs had scales the same thickness, character and size; the pigments in the hair were of the same size, color and distribution pattern; and the medullary characteristics were the same shape and size. The only hair evidence for which this did not hold true was the dog hair, which could only be identified as being from any white dog.

The fiber evidence was also analyzed with a high degree of precision and accuracy. Special Agent Bendure, an expert in fiber identification and analysis, testified that variables examined in relation to the fibers included the amount of dye absorbed, the amount, particle size and distribution of delustriant (soil-hiding chemicals), the shape of the fiber (which could be round, star-shaped, triangular, multi-lobed, etc.), color, detail (such as striations on the fiber), light-polarizing characteristics and solubility characteristics. Agent Bendure testified that when he said one fiber was “consistent with” another, that meant that there were no inconsistencies in any of the details examined. In addition, the mass of blue polyester fiber found in the crack in defendant’s bedroom door veneer was sufficiently large to determine that the dye composition was the same as that of Dianne Gabriel’s blue slacks found at the McCrary Creek Access Area. Bendure testified that “it is very difficult, if possible, to choose things at random and find a fabric that has the same dye composition as another piece of fabric.”

There was other evidence to connect defendant with Ms. Gabriel’s death. In her notes and to other people Ms. Gabriel made at least four references to “McCorkle” or “Larry McCorkle” in connection with an appraisal of a house or directions which led to defendant’s house. Defendant had previously been heard to represent himself as McCorkle, a boyhood friend who had not seen defendant in a decade. Defendant did not show up for work on 18 July. Three long-distance calls were made from defendant’s residence to Hecht Realty on that day.

Items found to match similar objects in defendant’s residence included the trash bag, the duct tape, the sexually-oriented pinup from the 1979 Playboy, the strapping tape on the pinups and the bath cloths.

An opportunity for defendant to commit the crime has thus been established. Considering the evidence of the duct tape bindings, the panties and slacks that were cut or torn open to expose the genital area and the presence of several sexually-oriented magazines in the trash bag, it is not difficult or unreasonable to infer a motive on the part of the criminal agent.

Inconsistencies in the State’s evidence were explained at trial. The sheet on which appraisal information about defendant’s residence was written was dated “7/19/83.” Bob Hecht of Hecht Realty testified that it was not unusual for one of his agents to put the next day’s date on the appraisal form when performing an evening appraisal because it was usually the next night that an agent would return to the home with an estimated value to do what he called the “listing presentation.” A second point of confusion was Mr. Hecht’s insistence that Dianne Gabriel had told him that she was to do an appraisal that evening at Penicillin Point, a spot on the north end of Lake Norman and approximately four miles north of defendant’s residence. Gary Rhyne also remembered Ms. Gabriel’s appraisal to be scheduled for somewhere at the “north end” of the lake. One of the roads near defendant’s house was called “Paradise Peninsula Road.” Another witness referred to the area near defendant’s residence as “Pinnacle Point.” Lt. Guy Griffin of the Iredell County Sheriffs Department testified that when Hecht had first given a statement, he had said that Ms. Gabriel had gone to appraise a house at “Peninsula Point.” Taken in the light most favorable to the State, this evidence shows simply a confusion of place names.

We hold that the foregoing evidence is so strong and cogent as to leave no doubt that Dianne Gabriel is dead. It was also sufficient to allow the reasonable inference that she died by criminal agency and that the criminal agent was the defendant. This case properly went to the jury.

II.

In his second assignment of error, defendant contends that testimony as to the telephone investigation of Detective Sergeant Sarah O’Connor of Iredell County was hearsay and its admission constituted prejudicial error. Detective O’Connor testified that she had called thirteen hospitals in North Carolina in reference to anyone matching the description of Dianne Gabriel. The following exchange then occurred:

Q: And what did you find out?

Mr. Walker: Objection.

COURT: Overruled.

A: The mental hospitals advised they had no unidentified females fitting her description, and they, and also the other normal health hospitals, advised they had not treated a Dianne Gabriel. There was one exception being, just one minute please. A hospital in Charlotte — it will take me a minute to find it — they advised they had a black female, and she was nineteen years old.

Mr. WALKER: Objection and move to strike that.

COURT: Overruled.

The prosecutor had previously asked the witness, “When you called these institutions, what did you ask them?” The trial court sustained an objection to this question, but the question made it apparent that Detective O’Connor’s investigation had been over the telephone. For this reason, the later question, “And what did you find out?” clearly called for hearsay testimony and a timely objection should have been sustained. N.C. Gen. Stat. § 8C-1, Rules 802 and 901(6) of the Rules of Evidence. Instead, Detective O’Connor was allowed to testify fully as to the results of the investigation. Defendant’s tardy objection does not make it clear whether it applies to the whole statement or solely to the remarks about the “black female.” Moreover, there is no reasonable possibility that the result of this trial would have been different had that answer been struck. Detective O’Connor had already testified that she had checked thirteen hospitals, by no stretch of the imagination a comprehensive list of where Ms. Gabriel might be found if, as defendant asserts, “it is still possible for Dianne Gabriel to walk into any police department or hospital in these United States.” The evidence that O’Connor had checked these places, that Dianne Gabriel was still missing after nineteen months and that the prosecution for murder against the defendant was proceeding all gave rise to the clear implication that Ms. Gabriel was not located during O’Connor’s investigation, no matter if the negative results of that investigation had been detailed or not. Further evidence of the death of Dianne Gabriel, as detailed in Part IA of this opinion, demonstrates that the outcome of the trial was not affected by this testimony. N.C. Gen. Stat. § 15A-1443 (1983). This assignment is overruled.

III.

In his third assignment of error, defendant contends that the trial court committed prejudicial error by refusing to strike the testimony of real estate agent Nancy Ward. Ms. Ward was working for a realtor in Mooresville in late March or early April of 1983 when she received a call from a “Mr. E. J. Head” who wanted his property appraised. Ms. Ward related that she had gone to defendant’s house, arriving there approximately ten minutes early for the 9:00 a.m. appointment that she had set up. A dog on the porch was the “only sign of life” she saw; the windows were closed and the drapes were pulled. She did not knock on the door, instead leaving her card on the porch railing with a note to Mr. Head that she would call him later.

In a call to defendant’s residence later that day, two male voices, both answering to the name “Mr. Head,” but the first identifying the second as the father, denied having called Ms. Ward to come appraise the house. The information was partially elaborated and clarified during cross-examination.

Defendant first contends that the whole of Ms. Ward’s testimony should have been struck as irrelevant. We disagree. The testimony was to show, by its parallels to the experience of Dianne Gabriel, identity and common plan or scheme of defendant to lure female real estate agents to his house. N.C. Gen. Stat. § 8C-1, Rule 404(b) of the Rules of Evidence; see, e.g., State v. Bartow, 77 N.C. App. 103, 334 S.E. 2d 480 (1985).

Defendant also contends that it was error to allow Ms. Ward to testify on re-direct:

Q: You indicated that you didn’t like the looks of the house on cross-examination — why not?

A: I guess it is a kind of an unknown. I felt like I was being watched.

Mr. Walker: Objection.

Court: Sustained.

Mr. Walker: Move to strike.

Court: The objection is sustained.

The prosecutor then moved for a voir dire on the testimony. After the voir dire, the trial court did not instruct the jurors to strike that testimony from their memory and defense attorney did not renew his motion to strike. Moreover, the question, which clearly called for a possibly inadmissible response, was not objected to.

Even considering the issue on its merits, we hold that no prejudice was caused by this statement. Defendant asserts that other inadmissible “feelings” of the witness had been stated, e.g., her “bad vibes” and “eerie feelings,” and that the cumulative effect of this was to prejudice defendant. When these other statements were made, however, objections were sustained and motions to strike, when presented, were granted. When the court withdraws incompetent evidence and instructs the jury not to consider it, any prejudice is ordinarily cured. State v. Craig, 308 N.C. 446, 302 S.E. 2d 740, cert. denied, 464 U.S. 908, 104 S.Ct. 263, 78 L.Ed. 2d 247 (1983). The cumulative effect of the sustained objections to Ms. Ward’s testimony would be to denigrate her “feelings” in the eyes of the jury. We hold that this statement created no prejudice and overrule this assignment of error.

IV.

In his fourth assignment of error, defendant contends that the prosecutor engaged in misconduct and improper argument that prejudiced the trial. Where appropriate, the trial court properly sustained objections to questionable behavior by the prosecutor and admonished the jury in a curative instruction, which cured any possible prejudice. State v. Sanders, 303 N.C. 608, 281 S.E. 2d 7, cert. denied, 454 U.S. 973, 102 S.Ct. 523, 70 L.Ed. 2d 392 (1981). In light of the whole record, the conduct of both the prosecutor and counsel for the defense reveal nothing more than zealous advocacy in a hotly contested case. Defendant has failed to show any prejudice resulting from the conduct of the prosecutor. This assignment is overruled.

The State presented evidence on voir dire from three female witnesses who testified that they had been victims of previous assaultive behavior by the defendant. In his fifth and final assignment of error, defendant contends that the trial court erred in failing to conduct an examination of the jurors to determine whether they could hear that voir dire testimony. Defense counsel first made this motion when he realized the proximity of the jury room to the courtroom. The trial court refused to conduct any investigation unless there were “some evidence offered in the form of motions and so forth concerning impropriety.”

Mr. WALKER: I bring this up partially because the District Attorney has said there is a problem about acoustics and that things can be heard in that room. I don’t practice here regularly. If I had, I would have been making a motion that they not be in that room yesterday, and I wasn’t aware there was a problem either; but, apparently, it is known at this Bar that there is a problem; and, when you consider the volume that went into the remarks yesterday by the witness and the two lawyers, myself included, then I think there was more than the usual opportunity for the Jury to have heard it.

COURT: Bring the Jury back.

In the absence of controlling statutory provisions or established rules, all matters relating to the orderly conduct of the trial or which involve the proper administration of justice in the courts are within the trial judge’s discretion. State v. Young, 312 N.C. 669, 325 S.E. 2d 181 (1985). The presiding judge is given large discretionary power as to the control of the trial. Id. This discretion extends to investigations of possible improprieties concerning the jury. State v. Selph, 33 N.C. App. 157, 234 S.E. 2d 453 (1977). Depending on the definite character of the allegations made, it may not be necessary for the trial court to conduct an investigation. Stone v. Baking Co., 257 N.C. 103, 125 S.E. 2d 363 (1962).

In the case below, defense counsel asserted that the district attorney had said there was a problem with the jury room and that such problem was “known at this Bar,” but counsel failed to produce any affidavits from either the district attorney or another member of the Bar attesting to the truth of this allegation; neither did counsel conduct tests of the room himself. The trial court asked for evidence and none was forthcoming. The court stated its personal knowledge that the jury deliberation room had been in use for “twelve or fifteen years.” “The circumstances must be such as not merely to put suspicion on the verdict because there was opportunity and a chance for misconduct, but that there was in fact misconduct. When there is merely a matter of suspicion, it is purely a matter in the discretion of the presiding judge.” State v. Johnson, 295 N.C. 227, 244 S.E. 2d 391 (1978). This assignment is overruled.

Defendant received a fair trial, free from prejudicial error.

No error.

Judges Arnold and Webb concur.