Supreme Court of North Carolina
State v. Parker
STATE of North Carolina v. Carlette Elizabeth
November 09, 2001
Roy A. Cooper, Attorney General by David Roy
Blackwell, Special Deputy Attorney General, for the State. Ann B.
Petersen, Chapel Hill, for defendant-appellant.
On 22 June 1999, Carlette Elizabeth Parker
(defendant) was indicted for first-degree murder and first-degree
kidnapping. Defendant was capitally tried before a jury at the 8
March 1999 Criminal Session of Superior Court, Wake County. On 30
March 1999, the jury found defendant guilty of first-degree-kidnapping
and of first-degree murder on the basis of premeditation and
deliberation and under the felony murder rule. On 1 April 1999,
after a capital sentencing proceeding, the jury recommended a sentence
of death for the first-degree murder conviction, and the trial court
entered judgment in accordance with that recommendation. The trial
court also sentenced defendant to a term of 100-129 months'
imprisonment for the kidnapping conviction.
The State's evidence at trial tended to show the
following facts: On 12 May 1998, defendant kidnapped and drowned
Alice Covington (the victim). At the time of her death, the victim
was eighty-six years old, stood five feet one and one-half inches
tall, and weighed eighty-eight pounds. Defendant was thirty-four
years old and weighed approximately 230 to 240 pounds. From December
1996 to March 1997, defendant served as the home health-care worker
for Charles Holtz, a close friend of the victim. The victim and
Holtz were both residents at Springmoor Retirement Village in Raleigh.
On the morning of 12 May 1998, defendant and the
victim saw each other at a Kroger parking lot on Creedmoor Road in
Raleigh. Between 9:00 and 10:00 a.m., three witnesses saw the victim
and a heavyset black woman struggling on Strickland Road. According to
the witnesses, when the heavyset woman attacked the victim, the victim
tried to get away by hitting the heavyset woman over the head with her
Later that afternoon, against the victim's will,
defendant drove the victim to the First Union Market Street teller
window in Smithfield and withdrew $2,500 from the victim's account.
A heavyset black woman gave the teller a withdrawal slip and the
victim's driver's license. The teller looked into the car and saw
the victim in the passenger seat, leaning against the car door. The
victim was not moving and appeared to be napping.
Defendant drove the victim back to the Kroger
parking lot; moved her to defendant's Ford Fiesta hatchback; and
drove to defendant's trailer in Angier, North Carolina, where the
victim drowned in the bathtub. Defendant undressed the victim's
body, washed the victim's clothes, redressed the body, and put the
body in the hatchback of defendant's car. Defendant then left in a
separate vehicle and drove to a family party. After leaving the
party, defendant drove around for several hours.
The next morning, defendant returned to the Kroger
parking lot and transferred the victim's body to the front seat of the
victim's car. Defendant drove the victim's car around Raleigh,
Hillsborough, and Burlington for several hours. Finally, defendant
left the victim's body in the car on a dirt road in Morrisville.
Defendant walked to Davis Drive and caught a ride to a gas station.
Defendant took a cab back to her car, went home, and drank wine
On 14 May 1998, a passerby discovered the victim's
body and notified the police. The victim's body was lying across the
front seat, with her head propped against the driver's side door, her
chest under the steering wheel, and her feet on the right front
floorboard. Investigators found substantial bruising around the
victim's face, neck, hands, upper part of both arms, upper left back
and shoulder area, and left wrist. The victim also had a laceration
on her left wrist and lower left leg. The victim was dressed in blue
slacks and a light pink nylon jacket. There was reddish
discoloration on the lower portion of the jacket. Testing conducted
prior to trial revealed that a pepper-spray container found in
defendant's car emitted spray that left a pink stain on a clean sheet.
During their investigation, police conducted a
series of interviews with defendant. During the first interview,
defendant stated she saw the victim on 12 May 1998 in a Kroger parking
lot between 1:00 and 3:00 p.m. Defendant said she and the victim drove
to a car wash and then to the victim's home. Defendant said she
remained at the victim's home for two to three minutes and then left.
After defendant made this statement, SBI Agent M.B. East told
defendant that the victim had been found dead in her car in
Morrisville. Defendant, remaining calm and emotionless, responded,
“Oh really?” At the conclusion of the interview, defendant denied
killing the victim or knowing who did. Defendant also denied having
recently been to Morrisville or any banks in Smithfield.
During the second interview, defendant's demeanor
changed. At first, defendant was conversational. Agent East told
defendant that witnesses saw her in an altercation with the victim on
Strickland Road. East also showed defendant a copy of the $2,500 check
drawn from the victim's account and told defendant that a teller
described the person who accompanied the victim when the money was
withdrawn. Defendant then became visibly nervous. Her leg shook,
and her knee bounced up and down. Agent East again asked defendant
if she knew who murdered the victim. The defendant responded,
“Possibly.” However, defendant denied assaulting or accidentally
killing the victim. While taking defendant home after the interview,
Agent East heard defendant say, “I'm going to lose my job,” and “I
won't be able to take care of old people anymore.”
On 16 May 1998, police conducted two more
interviews with defendant. Defendant told Agent East and Raleigh
Police Detective K.W. Andrews that she had a story and it would be
kind of “far-fetched” but that she wanted to come clean and say what
had transpired. As in her first interview, defendant said she saw
the victim at the Kroger parking lot, and they went to a car wash.
At this second interview, defendant claimed she ran into the victim
between 10:00 and 11:00 a.m. as opposed to between 1:00 and 3:00 p.m.
Defendant's story also became ambiguous about whether she and the
victim rode together to the victim's home or took separate cars.
Defendant said that after going to the victim's house, she and the
victim returned to the Kroger parking lot; got into defendant's car;
and drove to the First Union in Smithfield, where defendant cashed a
check for $2,500. Defendant claimed the victim gave her this money
to help defendant with her doll business. Defendant claimed she
never stopped on Strickland Road with the victim.
According to defendant, she then drove the victim
to defendant's trailer in Angier. The victim sat on the commode in a
bathroom, and defendant filled the bathtub with water. Defendant
said she left the bathroom, and when she returned, the victim's head
had fallen into the water. Defendant sat the victim up and left the
room again. When she returned, the victim's head was submerged.
Defendant said she grabbed the victim by the hair, pulled her out of
the water, and tore the victim's shirt. Defendant slapped the victim
across the face a couple of times, but the victim did not respond.
Defendant vaguely described how the victim's head then slammed into
the floor. Defendant carried the victim into the living room and
placed her on the floor. Defendant removed the victim's clothes,
washed and dried them, and redressed the victim without the torn
Defendant said the victim was unresponsive but the
victim's hand may have twitched. Defendant admitted she did not
perform CPR or call 911 despite being trained as a health-care
professional who was certified in CPR. Defendant put the body in the
hatchback of her Ford Fiesta and drove her other automobile, a truck,
to a party in Durham. Defendant left the party and drove around for
several hours before returning home. Once at home, defendant got
into her Ford Fiesta and drove to a hotel where her husband was
staying on Highway 70 East. The victim's body was still in the
hatchback. Defendant did not tell her husband what had happened that
Defendant said she returned to the Kroger parking
lot the next morning around 6:45 a.m. and moved the victim's body to
the front seat of the victim's car. Defendant said the victim's body
smelled, so she put two pillows on it. Defendant drove around
Hillsborough and Burlington, ending up on a dirt road in Morrisville
around 1:00 or 2:00 p.m. According to defendant, the car got stuck in
the road, and defendant left the victim's body in the car with the
engine running. Defendant caught a ride to a gas station, called a
cab, returned home, and drank wine coolers.
In an additional interview, defendant admitted
throwing the victim's purse out of the car window near Falls Lake.
Defendant said she was afraid her fingerprints might be lifted from
the purse and she might be implicated in the victim's death.
Further, although she had previously denied it, defendant admitted she
had a confrontation with the victim on Strickland Road. Defendant
initially said she merely stopped the car to adjust the victim's seat,
get gas, and massage a cramp from the victim's leg. At this point in
the interview, however, defendant paused to consult with her attorney.
Defendant then admitted she forcefully took the victim to the bank
and the trailer against the victim's will. Defendant also conceded
that although the victim had previously voluntarily written the
withdrawal slip defendant used in Smithfield, the victim changed her
mind about giving defendant the money before defendant forcefully took
her to Smithfield to withdraw it. Defendant stated she and the
victim did have a disagreement on Strickland Road and the victim hit
defendant with her purse. Defendant admitted she then grabbed the
victim by her shirt and threw her into the car. Defendant also said
the victim's shirt was actually torn when defendant forced the victim
back into the car.
Dr. James Ronald Edwards, who was accepted at trial
as an expert in pathology, performed the first autopsy on the victim
on 15 May 1998. The autopsy revealed no obvious cause of death.
There was no visible sign of an acute heart attack, stroke, brain
hemorrhage, blood clot, aneurysm, or external strangulation. Dr.
Edwards noticed indications of external trauma, including bruises on
the victim's right and left wrists, left shoulder, face, and left side
of the neck. Dr. Edwards also noted the lungs were congested and
edematous. He testified this fluid in the lungs could be caused by
drowning. Dr. Edwards concluded that a natural cause of death was
not documented, but that “some external trauma appears to be present”
and that “additional history may be helpful in coming to a final
Dr. Robert L. Thompson, who was accepted at trial
as an expert in forensic pathology, performed a second autopsy. This
autopsy revealed no obvious fatal injury and no evidence of
strangulation or disease in the victim. Moreover, Dr. Thompson
specifically testified the victim did not die of a heart attack. Dr.
Thompson further testified that two small, round, sightly reddened
areas on the surface of the victim's skin could have been caused by a
stun gun found in defendant's possession. In an amendment to the
death certificate, Dr. Thompson listed the immediate cause of death as
“drowning” and the manner of death as “homicide.”
Dr. Wells Edmunson, who was accepted at trial as an
expert in internal medicine, was the victim's doctor for twelve years.
Dr. Edmunson testified that the victim's overall physical and mental
health was excellent. Dr. Edmunson stated that the victim was an
especially vibrant person for her age and that her blood pressure,
respiration, and cholesterol readings were normal at her most recent
Defendant presented evidence from Dr. Page Hudson
that prior EKGs performed on the victim indicated some heart
abnormalities. Dr. Hudson opined the victim could have died from a
cardiac arrhythmia. Dr. Hudson also stated, however, that cardiac
arrhythmia could result from stress and that a stun gun would produce
such stress in a person. Dr. Hudson further testified that he had
not read defendant's statement to police and that reading this
statement would be helpful. Finally, Dr. Hudson testified,
“[T]here's an excellent chance that [the victim] drowned.”
The State also introduced evidence concerning
defendant's criminal history and prior conduct at area banks. On 7
August 1995, defendant pled guilty to sixteen felony counts of
obtaining property by false pretenses from eighty-five-year-old
Catherine Stevenson, for whom defendant provided care. J.C. Holder,
who worked in May 1995 as an investigator with NationsBank, testified
that he had investigated unusual activity in Stevenson's account.
Holder went to Stevenson's home and asked her to come talk to a
customer representative at the bank about the rapid depletion of her
account. Defendant was with Stevenson at the time and drove
Stevenson to the bank. When she arrived at the bank, Stevenson
appeared angry and upset with defendant and did not want defendant “to
have anything to do with her.” At the bank, defendant admitted
forging unauthorized withdrawals. Defendant said she made the
unauthorized withdrawals when Stevenson was in the car. The amount
missing from Stevenson's account was around $44,000.
After defendant pled guilty to those charges, the
trial court suspended defendant's sentence and put her on probation
for forty-eight months. The trial court also ordered defendant to
pay restitution in monthly payments of $920.43. By 1 April 1998,
defendant was over $4,000 behind in restitution payments. Cathy
Clayton, the chief probation and parole officer in Johnston County,
testified defendant expressed concern about how she would make her
On 30 April 1998, defendant cashed a $2,500 check
signed by Alice Covington and drawn on her Merrill Lynch cash
management account. The transaction occurred at the drive-through
window of the Crabtree First Union. Defendant was alone when she
cashed the check. Later that day, defendant brought three money orders
to the probation office. The three orders totaled $2,000 and had
been purchased at the Crabtree Post Office. This post office is
within sight of the Crabtree First Union. When asked where she got
so much money, defendant responded that she had been making a lot of
On 8 May 1998, defendant attempted to cash a
$600.00 check at the drive-through window at a First Union in Dunn,
North Carolina. The teller informed defendant that she could not
cash the check because defendant's account showed a low balance.
Defendant began yelling, honking her horn, and causing a disturbance.
The teller eventually had to walk away from the window. Defendant
came inside the bank and was again advised the check could not be
cashed. Defendant began cursing and screaming. The police were
called, but defendant left before they arrived.
As a preliminary matter, we note that North
Carolina's Rules of Appellate Procedure require that each party's
statement of the facts be “supported by references to pages in the
transcript of proceedings, the record on appeal, or exhibits, as the
case may be.” N.C. R.App. P. 28(b)(4); see also N.C. R.App. P.
28(c). In the present case, both the State and defendant failed to
meet this requirement. The parties' statements of the facts at times
go on for several pages before providing a transcript reference to
several different volumes or to numerous consecutive pages in a
volume. While we hold neither party in default in the present
appeal, we encourage future parties to provide specific and continual
Defendant first assigns error to the trial court's
denial of her motion to dismiss the charges of first-degree murder and
first degree kidnapping. Defendant argues that the State's evidence
was insufficient to permit a reasonable juror to find beyond a
reasonable doubt that defendant committed first-degree murder or
The law governing a trial court's ruling on a
motion to dismiss is well established. “[T]he trial court must
determine only whether there is substantial evidence of each essential
element of the offense charged and of the defendant being the
perpetrator of the offense.” State v. Crawford, 344 N.C. 65, 73, 472
S.E.2d 920, 925 (1996). Evidence is substantial if it is relevant
and adequate to convince a reasonable mind to accept a conclusion.
State v. Vick, 341 N.C. 569, 583-84, 461 S.E.2d 655, 663 (1995). In
considering a motion to dismiss, the trial court must analyze the
evidence in the light most favorable to the State and give the State
the benefit of every reasonable inference from the evidence. State v.
Gibson, 342 N.C. 142, 150, 463 S.E.2d 193, 199 (1995). The trial
court must also resolve any contradictions in the evidence in the
State's favor. State v. Lucas, 353 N.C. 568, 581, 548 S.E.2d 712, 721
(2001). The trial court does not weigh the evidence, consider
evidence unfavorable to the State, or determine any witness'
Defendant first contends the State's evidence was
insufficient to prove defendant intentionally killed the victim with
premeditation and deliberation. “Premeditation requires the act to
have been thought out beforehand for some period of time, no matter
how brief.” State v. Bates, 343 N.C. 564, 580, 473 S.E.2d 269, 277
(1996), cert. denied, 519 U.S. 1131, 117 S.Ct. 992, 136 L.Ed.2d 873
(1997). Deliberation requires “ ‘an intent to kill, carried out in a
cool state of blood, in furtherance of a fixed design for revenge or
to accomplish an unlawful purpose and not under the influence of a
violent passion, suddenly aroused by lawful or just cause or legal
provocation.’ ” State v. Davis, 349 N.C. 1, 33, 506 S.E.2d 455, 472
(1998) (quoting State v. Brown, 315 N.C. 40, 58, 337 S.E.2d 808,
822-23 (1985), cert. denied, 476 U.S. 1164, 106 S.Ct. 2293, 90 L.Ed.2d
733 (1986), and overruled on other grounds by State v. Vandiver, 321
N.C. 570, 364 S.E.2d 373 (1988)), cert. denied, 526 U.S. 1161, 119
S.Ct. 2053, 144 L.Ed.2d 219 (1999).
Circumstantial evidence and direct evidence are
subject to the same test for sufficiency, State v. Sokolowski, 351
N.C. 137, 143, 522 S.E.2d 65, 69 (1999), and the law does not
distinguish between the weight given to direct and circumstantial
evidence, State v. Adcock, 310 N.C. 1, 36, 310 S.E.2d 587, 607 (1984).
“ ‘Premeditation and deliberation generally must be established by
circumstantial evidence, because both are processes of the mind not
ordinarily susceptible to proof by direct evidence.’ ” Sokolowski,
351 N.C. at 144, 522 S.E.2d at 70 (quoting State v. Rose, 335 N.C.
301, 318, 439 S.E.2d 518, 527, cert. denied, 512 U.S. 1246, 114 S.Ct.
2770, 129 L.Ed.2d 883 (1994), and overruled on other grounds by State
v. Buchanan, 353 N.C. 332, 543 S.E.2d 823 (2001)).
Circumstantial evidence is often made up of
independent circumstances that point in the same direction.
Sokolowski, 351 N.C. at 147, 522 S.E.2d at 71. These independent
circumstances are like
“strands in a rope, where no one of them may be
sufficient in itself, but all together may be strong enough to prove
the guilt of the defendant beyond reasonable doubt․ [E]very individual
circumstance must in itself at least tend to prove the defendant's
guilt before it can be admitted as evidence. No possible
accumulation of irrelevant facts could ever satisfy the minds of the
[jurors] beyond a reasonable doubt.”
Id. (quoting State v. Austin, 129 N.C. 534, 535, 40
S.E. 4, 5 (1901)).
When proving premeditation and deliberation, the
strands in the rope of circumstantial evidence may include: (1) want
of provocation on the part of the victim, State v. Warren, 348 N.C.
80, 103, 499 S.E.2d 431, 443, cert. denied, 525 U.S. 915, 119 S.Ct.
263, 142 L.Ed.2d 216 (1998); (2) defendant's conduct and statements
before and after the killing, including attempts to cover up
involvement in the crime, Sokolowski, 351 N.C. at 144-45, 522 S.E.2d
at 70; Rose, 335 N.C. at 318-19, 439 S.E.2d at 527; (3) the manner
in which or means by which the killing was done, including evidence
that the killing was done in a brutal manner or with use of grossly
excessive force, State v. Truesdale, 340 N.C. 229, 235, 456 S.E.2d
299, 302 (1995); State v. Van Landingham, 283 N.C. 589, 599, 197
S.E.2d 539, 545 (1973); and (4) unseemly conduct toward the victim's
corpse, including concealment of the body, Rose, 335 N.C. at 318, 439
S.E.2d at 527.
In this case, no direct evidence shows defendant
killed the victim after premeditating and deliberating. Instead, a
plethora of individual circumstances join together to demonstrate
defendant killed the victim with premeditation and deliberation.
First, the victim did not provoke defendant. The
victim was a slight, elderly woman, while defendant was a large, young
woman. Defendant weighed twice as much as the victim; the victim
was more than twice defendant's age. Defendant knew the victim
through defendant's work as a health-care provider for the victim's
close friend. The victim and defendant ran into each other by chance
on the morning of the murder. Defendant lured the victim by acting
as though she wanted to help the victim and eventually forced the
victim to go to the bank and to defendant's trailer.
Defendant's conduct and statements after the
killing also show premeditation and deliberation. In interviews with
police investigators, defendant's accounts conflicted concerning the
events surrounding the victim's death. Initially, defendant gave
investigators false statements about her involvement in order to cover
up her actions, saying she did not know who could have harmed the
victim. Defendant later changed her story, stating she and the
victim went to the bank and to defendant's trailer. Eventually,
defendant admitted she forced the victim to go to the bank and to the
Additionally, the State's evidence showed defendant
tried to conceal her involvement in the victim's death. Defendant
threw away the victim's purse and torn shirt for fear defendant would
be linked to the crime. After the victim drowned, defendant washed
and dried the victim's clothes, redressed her, and combed her hair.
Defendant hid the victim's body in the trunk of her car. Defendant
drove the victim's body around for hours, potentially destroying
evidence of the crime as the body deteriorated. While defendant
claimed she intended to call the police, she instead left the car and
body on a dirt road, telling no one of the crime.
Further, significant evidence was presented to show
the brutality of the crime. First, at some point on the day of the
murder, defendant ripped the victim's shirt and bruised the victim's
face, neck, hands, and head. The State presented additional evidence
that defendant burned the victim's neck with a stun gun and sprayed
her with pepper spray. Moreover, the events leading up to the murder
were lengthy. The victim and defendant were together much of the
day, and defendant attacked the victim as early as 9:00 a.m. Finally,
the evidence shows defendant forced the victim to ride to the bank and
then to defendant's trailer, where defendant overpowered and drowned
the victim. Though trained as a health-care worker and in CPR,
defendant did nothing to revive the victim after the drowning.
Defendant's lengthy mistreatment and concealment of
the body are also evidence of premeditation and deliberation. After
the victim drowned in the bathtub at defendant's trailer, defendant
stripped the body and washed the victim's clothing. Defendant then
redressed the corpse and stowed it in the hatchback of her car. That
evening, defendant abandoned the body to go to a party. The next
day, she removed the body from her car, propped it up in the passenger
seat of the victim's car, and covered it with pillows because the body
was beginning to smell. Defendant then drove around for several
hours with the dead body sitting next to her.
Finally, defendant's clear motive to kidnap and
kill the victim was to obtain money. Defendant previously worked as
a caretaker for an elderly woman and withdrew money from that woman's
bank account without her knowledge. Defendant was convicted of
sixteen felony counts of false pretenses and was ordered to make
restitution payments. Defendant was in arrears thousands of dollars
for these payments. Defendant was anxious about these payments and
recently had an outburst at a bank when the bank refused to cash her
paycheck. Moreover, two weeks prior to the murder, defendant cashed a
$2,500 check drawn on the victim's account and used this cash to make
Viewed in the light most favorable to the State,
the evidence in this case was sufficient to permit a jury to find
defendant killed the victim with premeditation and deliberation.
Accordingly, defendant's argument is without merit.
In this same issue, defendant also contends the
State's evidence was insufficient to prove one of the elements of
first-degree kidnapping. Because kidnapping was the predicate felony
for defendant's felony murder conviction, defendant argues both the
kidnapping and felony murder convictions must be reversed.
Our statute defining first-degree kidnapping
provides as follows:
(a) Any person who shall unlawfully confine,
restrain, or remove from one place to another, any other person 16
years of age or over without the consent of such person, or any other
person under the age of 16 years without the consent of a parent or
legal custodian of such person, shall be guilty of kidnapping if such
confinement, restraint or removal is for the purpose of:
(1) Holding such other person for a ransom or as a
hostage or using such other person as a shield; or
(2) Facilitating the commission of any felony or
facilitating flight of any person following the commission of a
(3) Doing serious bodily harm to or terrorizing the
person so confined, restrained or removed or any other person; or
(4) Holding such other person in involuntary
servitude in violation of G.S. 14-43.2.
(b) There shall be two degrees of kidnapping as
defined by subsection (a). If the person kidnapped either was not
released by the defendant in a safe place or had been seriously
injured or sexually assaulted, the offense is kidnapping in the first
degree and is punishable as a Class C felony. If the person
kidnapped was released in a safe place by the defendant and had not
been seriously injured or sexually assaulted, the offense is
kidnapping in the second degree and is punishable as a Class E felony.
N.C.G.S. § 14-39(a), (b) (1999) (emphasis added).
Defendant argues the State provided insufficient
evidence of the “purpose” strand in section 14-39(a)(1)(4). The
State argued at trial and in its brief to this Court that defendant
kidnapped the victim for the purpose of facilitating the felony of
obtaining property by false pretenses. See N.C.G.S. § 14-39(a)(2).
Specifically, the State argued defendant forced the victim to
accompany her to the Smithfield bank so defendant could obtain money
from the victim's account. Defendant then falsely represented to the
bank that the transaction was being conducted with the victim's
voluntary consent and presence. Defendant argues, however, that she
made no false representation to the teller at the Smithfield bank that
deceived the bank about the nature of the transaction. Accordingly,
defendant contends the evidence is inadequate to show she obtained
property by false pretenses, and the purpose element of the kidnapping
charge is thus unsupported by the evidence.
Our statute defining obtaining property by false
pretenses provides in pertinent part:
(a) If any person shall knowingly and designedly by
means of any kind of false pretense whatsoever, whether the false
pretense is of a past or subsisting fact or of a future fulfillment or
event, obtain or attempt to obtain from any person within this State
any money, goods, property, services, chose in action, or other thing
of value with intent to cheat or defraud any person of such money,
goods, property, services, chose in action or other thing of value,
such person shall be guilty of a felony: Provided, ․ that it shall be
sufficient in any indictment for obtaining or attempting to obtain any
such money, goods, property, services, chose in action, or other thing
of value by false pretenses to allege that the party accused did the
act with intent to defraud, without alleging an intent to defraud any
particular person, and without alleging any ownership of the money,
goods, property, services, chose in action or other thing of value;
and upon the trial of any such indictment, it shall not be necessary
to prove either an intent to defraud any particular person or that the
person to whom the false pretense was made was the person defrauded,
but it shall be sufficient to allege and prove that the party accused
made the false pretense charged with an intent to defraud.
N.C.G.S. § 14-100(a) (1999) (emphasis added).
This Court has previously set out the elements of
obtaining property by false pretenses:
(1) a false representation of a subsisting fact or
a future fulfillment or event, (2) which is calculated and intended to
deceive, (3) which does in fact deceive, and (4) by which one person
obtains or attempts to obtain value from another.
State v. Cronin, 299 N.C. 229, 242, 262 S.E.2d 277,
286 (1980). An essential element of the offense is that the defendant
acted knowingly with the intent to cheat or defraud. See State v.
Blue, 84 N.C. 807, 809 (1881). Moreover, the false pretense need not
come through spoken words, but instead may be by act or conduct.
State v. Matthews, 121 N.C. 604, 605, 28 S.E. 469, 469 (1897); see
also State v. Houston, 4 N.C.App. 484, 486-87, 166 S.E.2d 881, 883
Particularly instructive in the instant case is
State v. Dixon, 101 N.C. 741, 7 S.E. 870 (1888). In Dixon, the
defendant was convicted of obtaining property by false pretenses after
he obtained $5.00 from another by falsely representing that a third
party sent the defendant to obtain the money. Id. at 741, 7 S.E. at
870-71. In ruling the defendant's motion to arrest judgment was
properly denied, this Court focused on the statutory language that a
false pretense could occur “ ‘by means of any forged or counterfeited
paper, in writing or in print, or by any false token, or other false
pretense, whatsoever.’ ” Id. at 742, 7 S.E. at 871 (quoting 1
N.C.Code § 1025 (1883)) (alteration in original). This Court held
the statutory prohibition on the use of any “other false pretense,
whatsoever,” gave the statute an extremely broad scope. Id. at
742-44, 7 S.E. at 871-72. Accordingly, the Court stated, “If one
falsely and with fraudulent design represents to another that
something material-something already said or done-is true, when the
same is not true, and it is calculated to mislead, and does mislead,”
this representation is a false pretense. Id. at 742-43, 7 S.E. at
Although our statutory provision defining false
pretenses has been amended since Dixon, our statute still prohibits
“any kind of false pretense whatsoever.” N.C.G.S. § 14-100(a)
(emphasis added). The statute thus retains the broad scope
illustrated in Dixon. Further, like the defendant in Dixon,
defendant's actions in the present case falsely represented material
facts to the Smithfield bank-that the victim wanted the money
withdrawn and that the victim was willingly present in the car at the
drive-through window. In fact, the victim changed her mind about the
withdrawal, and defendant forcefully put the victim in the car and
made her go to the Smithfield bank so defendant could get money from
the victim's account.
By passing the victim's driver's license to the
bank teller while the victim sat trapped in the passenger's seat,
defendant clearly misrepresented to the bank that the victim was
voluntarily present and consented to the transaction. The bank
teller's testimony indicates the materiality of defendant's
misrepresentation: She proceeded with the transaction only after
verifying that the identification provided matched the victim in the
passenger's seat. Considering the evidence in the light most
favorable to the State, it appears defendant's appropriation of money
from the victim's account was possible solely because defendant misled
the bank to believe the victim was voluntarily present and consenting
to the transaction. Clearly, if the bank had known the truth, that
defendant took the victim against her will and the victim no longer
consented to the transaction, defendant could not have obtained the
In short, when defendant presented the victim's
withdrawal slip and driver's license to the Smithfield bank while
holding the victim hostage in the passenger's seat, she made a false
representation of a subsisting fact. Defendant falsely represented
to the bank that the withdrawal was legitimate and had the continuing
support of the victim. Because defendant's misrepresentation was
clearly calculated to mislead and did in fact mislead, defendant's
actions constituted a false pretense. Accordingly, because the
“purpose” element of the kidnapping charge was satisfied, both the
kidnapping and felony murder convictions were supported by sufficient
evidence. Defendant's argument on this issue is without merit.
Defendant also briefly argues that even if the
State presented sufficient evidence of kidnapping, the State failed to
prove defendant murdered the victim in the course of the felony.
Defendant makes this argument in a single sentence in her brief and
offers no evidentiary support or legal citation for it. After
reviewing the record and briefs in this case, we find defendant's
argument is without merit. This assignment of error is overruled.
Defendant next assigns error to the trial court's
admission of evidence of defendant's conduct on 8 May 1998 and the
details of her prior crimes. Defendant argues this evidence was
relevant only as character evidence, and its admission affected the
outcome of both phases of the trial.
North Carolina Rule of Evidence 404(b) provides:
Evidence of other crimes, wrongs or acts is not
admissible to prove the character of a person in order to show that he
acted in conformity therewith. It may, however, be admissible for
other purposes, such as proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake,
entrapment or accident.
N.C.G.S. § 8C-1, Rule 404(b) (1999).
In essence, evidence of other offenses is
admissible if it is relevant apart from showing a defendant's
character. State v. Weaver, 318 N.C. 400, 403, 348 S.E.2d 791, 793
(1986). Evidence is relevant if it has “any tendency to make the
existence of any fact that is of consequence to the determination of
the action more probable or less probable than it would be without the
evidence.” N.C.G.S. § 8C-1, Rule 401 (1999). Evidence showing
other crimes, wrongs, or acts and a propensity to commit them is
admissible if it is relevant for some purpose other than to show that
defendant has the propensity for the type of conduct for which he is
being tried. State v. Bagley, 321 N.C. 201, 206, 362 S.E.2d 244, 247
(1987), cert. denied, 485 U.S. 1036, 108 S.Ct. 1598, 99 L.Ed.2d 912
(1988). The purposes set out in the statute are not exclusive.
“[E]vidence is admissible as long as it is relevant to any fact or
issue other than the defendant's propensity to commit the crime.”
State v. White, 340 N.C. 264, 284, 457 S.E.2d 841, 852-53, cert.
denied, 516 U.S. 994, 116 S.Ct. 530, 133 L.Ed.2d 436 (1995).
Defendant first argues the State improperly
introduced evidence of her unruly conduct on 8 May 1998 at a bank in
Dunn, North Carolina. A bank teller testified defendant attempted to
cash a payroll check at the teller window on that day. When the
teller refused to cash the check, defendant became visibly upset,
honked her horn, and created a disturbance. Defendant then parked
the car, entered the bank, and was again told the bank could not cash
her check. Defendant began cursing and screaming, creating such a
disturbance that the teller called the police. Defendant left before
the police arrived.
The bank incident reveals defendant's frustration
and need to find money for her restitution payments on the Friday
before the Tuesday killing. This was relevant and admissible and is
some evidence of defendant's motivation to commit the crime.
Accordingly, defendant's argument regarding the admission of her
conduct at the bank is without merit.
Second, defendant argues that admission of her
felony record was improper. In 1995, defendant was convicted of
sixteen counts of obtaining property by false pretenses for forging
checks of an elderly woman for whom she provided care. Defendant was
put on probation and was ordered to make restitution payments.
Defendant was thousands of dollars in arrears. Defendant's prior
crimes are thus relevant as proof of motive, plan, and preparation.
Moreover, defendant's modus operandi was similar in the crimes
committed three years prior to the murder. See State v. Penland, 343
N.C. 634, 653-54, 472 S.E.2d 734, 744-45 (1996), cert. denied, 519
U.S. 1098, 117 S.Ct. 781, 136 L.Ed.2d 725 (1997). The crimes shed
light on defendant's urgent need for funds to make her payments and on
her motive for the kidnapping and the ultimate murder. Accordingly,
defendant's argument regarding the admission of her prior crimes is
also without merit.
Defendant also argues the evidence of the prior
crimes and bad act was inadmissible because it was temporally removed
from the killing. However, remoteness in time between evidence of
other crimes, wrongs, or acts and the charged crime is less
significant when the prior conduct is used to show intent, motive,
knowledge, or lack of accident. Indeed, “ ‘remoteness in time
generally affects only the weight to be given such evidence, not its
admissibility.’ ” State v. White, 349 N.C. 535, 553, 508 S.E.2d 253,
265 (1998) (quoting State v. Stager, 329 N.C. 278, 307, 406 S.E.2d
876, 893 (1991)), cert. denied, 527 U.S. 1026, 119 S.Ct. 2376, 144
L.Ed.2d 779 (1999). Here, the Friday bank incident occurred four
days prior to the kidnapping and murder, providing close temporal
proximity. The 1995 crimes were also temporally related. Although
the conviction for obtaining property by false pretenses was three
years before the events at issue here, defendant's restitution
payments and probation were ongoing and explain her motive.
Accordingly, we overrule this assignment of error.
Defendant next assigns error to the trial court's
admission of the pepper spray and stun gun found in defendant's car as
well as evidence concerning how these weapons function. Defendant
contends it was mere speculation that either weapon was connected to
The law concerning the admissibility of a potential
murder weapon is well established:
“Under our rules of evidence, unless otherwise
provided, all relevant evidence is admissible. N.C.G.S. § 8C-1, Rule
402 (1988). ‘ “Relevant evidence” means evidence having any tendency
to make the existence of any fact that is of consequence to the
determination of the action more probable or less probable than it
would be without the evidence.’ N.C.G.S. § 8C-1, Rule 401 (1988).
In criminal cases, ‘ “[E]very circumstance that is calculated to throw
any light upon the supposed crime is admissible. The weight of such
evidence is for the jury.” ’ State v. Whiteside, 325 N.C. 389, 397,
383 S.E.2d 911, 915 (1989) (quoting State v. Hamilton, 264 N.C. 277,
286-87, 141 S.E.2d 506, 513 (1965), cert. denied, 384 U.S. 1020, 86
S.Ct. 1936, 16 L.Ed.2d 1044 (1966)).”
State v. DeCastro, 342 N.C. 667, 680-81, 467 S.E.2d
653, 659 (quoting State v. Felton, 330 N.C. 619, 638, 412 S.E.2d 344,
356 (1992), overruled on other grounds by State v. Jackson, 348 N.C.
644, 503 S.E.2d 101 (1998)), cert. denied, 519 U.S. 896, 117 S.Ct.
241, 136 L.Ed.2d 170 (1996) (alteration in original).
Considering admission of the pepper spray, we note
the State conducted a test to illustrate the pepper spray's use.
This test revealed the pepper spray left a pink stain when sprayed on
a clean sheet. Separate evidence showed the victim's jacket had a
reddish stain on it that tested negative for blood. Moreover,
defendant told investigators prior to trial that the victim's shirt
ripped when defendant pulled the victim from the tub. Defendant
stated she dried the victim's hair and washed the rest of her clothes
but disposed of the victim's shirt. According to defendant, she
disposed of the shirt because “the fingerprints would lift off of them
quicker or whatever to implicate me or whatever.”
Evidence is relevant if it negates a defendant's
explanation of her actions. State v. Collins, 335 N.C. 729, 735, 440
S.E.2d 559, 562 (1994). Evidence that pepper spray was found in
defendant's car and that this spray could leave a stain on garments
was thus admissible to discredit defendant's explanation of the
victim's death and defendant's subsequent disposal of the victim's
shirt. The State sought to prove that defendant did not rip the
victim's shirt while pulling her from the tub. Instead, the shirt
was stained when defendant sprayed the victim with pepper spray during
the murder. Defendant was then forced to destroy the shirt to
conceal evidence of her crime. Accordingly, admission of the pepper
spray and its potential to leave stains was proper to negate
defendant's statement to investigators that she disposed of the shirt
to eliminate her fingerprints. The fact that the State's evidence
failed to show with complete certainty that pepper spray was used in
the killing “impacted the weight of the evidence, not its
admissibility.” DeCastro, 342 N.C. at 681, 467 S.E.2d at 659.
Turning to admission of the stun gun, the State
offered evidence from Dr. Thompson that a stun gun's electrodes leave
small red marks on the skin. After examining the stun gun found in
defendant's car, Dr. Thompson testified that two sets of marks on the
victim's neck were consistent with the use of the stun gun. See id.
at 681, 467 S.E.2d at 659-60 (admission of knife held proper despite
absence of bloodstains or fingerprint testing, where medical examiner
testified some of fatal wounds were consistent with infliction by the
knife). Again, while the State was unable to provide definitive
evidence defendant used the stun gun on the victim, Dr. Thompson's
testimony concerning the stun gun's potential use was relevant
evidence admissible for the jury's consideration. See id. at 681,
467 S.E.2d at 659.
Accordingly, the trial court did not err in
admitting the pepper spray and stun gun into evidence and allowing the
prosecution to demonstrate their functioning to the jury.
Defendant's argument that the weapons cannot be directly tied to the
crime goes to the weight, rather than admissibility, of the evidence.
We overrule this assignment of error.
Defendant next assigns error to the trial court's
decision to allow the expert testimony of Dr. Thompson that the
victim's death was a homicide. Defendant argues this was prejudicial
because the expert was no more qualified than the jury to reach a
North Carolina Rule of Evidence 704 provides that
“[t]estimony in the form of an opinion or inference is not
objectionable because it embraces an ultimate issue to be decided by
the trier of fact.” N.C.G.S. § 8C-1, Rule 704 (1999). In
interpreting Rule 704, this Court draws a distinction between
testimony about legal standards or conclusions and factual premises.
HAJMM Co. v. House of Raeford Farms, Inc., 328 N.C. 578, 586, 403
S.E.2d 483, 488-89 (1991). An expert may not testify regarding
whether a legal standard or conclusion has been met “at least where
the standard is a legal term of art which carries a specific legal
meaning not readily apparent to the witness.” State v. Ledford, 315
N.C. 599, 617, 340 S.E.2d 309, 321 (1986); State v. Smith, 315 N.C.
76, 100, 337 S.E.2d 833, 849 (1985). Testimony about a legal
conclusion based on certain facts is improper, while opinion testimony
regarding underlying factual premises is allowable. HAJMM, 328 N.C.
at 586, 403 S.E.2d at 488-89.
For example, an expert may not testify regarding
specific legal terms of art including whether a defendant deliberated
before committing a crime. State v. Weeks, 322 N.C. 152, 166-67, 367
S.E.2d 895, 904 (1988). Additionally, a medical expert may not
testify as to the “ proximate cause” of a victim's death. Ledford,
315 N.C. at 617, 340 S.E.2d at 322. There was no error, however,
where an expert characterized a death with the term “homicidal
assault.” State v. Flippen, 344 N.C. 689, 699, 477 S.E.2d 158, 164
(1996). That term was “not a legal term of art, nor [did] it
correlate to a criminal offense.” Id.
Here, Dr. Thompson used the word “homicide” to
explain the factual groundwork of his function as a medical examiner.
Dr. Thompson did not use the word as a legal term of art. He
explained how he determined the death was a homicide instead of death
by natural causes, suicide, or accident. Dr. Thompson's testimony
conveyed a proper opinion for an expert in forensic pathology, and the
trial court properly allowed it. Defendant's assignment of error is
Defendant also assigns error to the trial court's
admission of hearsay statements of police officers recorded on the
tape of the officers' interrogation of defendant. According to
defendant, when tapes of defendant's interrogations were played at
trial, the jury heard comments from the interrogating officers
concerning what defendant had done and what might happen at trial.
Defendant concedes no objection was made to admission of these
statements at trial and so review by this Court is limited to plain
error. Defendant also urges this Court, in light of the death
sentence imposed, to analyze the officers' statements for any
prejudicial error. See State v. Warren, 289 N.C. 551, 553, 223
S.E.2d 317, 319 (1976).
For an error at trial to amount to plain error, an
“appellate court must be convinced that absent the error the jury
would have reached a different verdict.” State v. Reid, 322 N.C. 309,
313, 367 S.E.2d 672, 674 (1988). Under this test, defendant must
meet a significantly heavier burden than that placed on a defendant
who preserved her rights via timely objection under N.C.G.S.
§ 15A-1443. Id.
In the present case, defendant fails to meet the
standard for plain error. The officers' statements served primarily
to elicit from defendant an explanation of what occurred at the time
surrounding the victim's death. Defendant's varying explanations of
that day's events, rather than the comments of the interrogating
officers, appear to be the operative facts on which the jury based its
verdict. In short, we cannot conclude that any potential error in
admitting the officers' statements caused the jury to reach a
different verdict. Similarly, our thorough review of the record
reveals no prejudicial error. See Warren, 289 N.C. at 553, 223
S.E.2d at 319. Accordingly, defendant's assignment of error is
In another assignment of error, defendant asserts
the prosecutor argued facts outside the record in closing argument.
Because defendant failed to object at the time, the standard on appeal
is whether the argument was so grossly improper as to call for
corrective action by the trial judge ex mero moto. State v. Oliver,
309 N.C. 326, 334-35, 307 S.E.2d 304, 311 (1983). “[D]efendant must
show that the prosecutor's comments so infected the trial with
unfairness that they rendered the conviction fundamentally unfair.”
Davis, 349 N.C. at 23, 506 S.E.2d at 467.
Trial counsel may argue every fact in evidence and
any reasonable inference which arises therefrom, State v. Call, 353
N.C. 400, 417, 545 S.E.2d 190, 201 (2001), but arguments based on mere
speculation are improper, State v. Forney, 310 N.C. 126, 132, 310
S.E.2d 20, 24 (1984). In the present case, during closing argument
the prosecutor said:
So think about this. 11:00 in the morning. When I
ask you to think about this, you go back and think about the evidence,
and you draw what conclusions you want to. Use your common sense.
11:00 in the morning. Strickland Road, an altercation. What does
she do with Alice Covington at that point? She's certainly not going
to carry her back in public. She certainly can't carry this woman to
the bank in Smithfield unless by the time you get to the bank in
Smithfield she's unconscious. But what happens during that six
hours, 11:00 until 5:00 in the afternoon? What happens to her in
that time? Maybe we go straight from Strickland Road to
[defendant's] house. Maybe I drown her during that time. I've
already gotten her to the point that she ain't saying nothing because
she's given up on the struggle. Maybe I've hit her with the stun
gun. Maybe I've hit her with the mace. Maybe I have bloodied her
nose by that time, and now I'm going to drown her. But it don't all
come off of her clothes, so I'm going to wash and dry those clothes
and put her back out on the floor and comb her hair. Is there any
reason to do that, other than to make her presentable so you can drive
her right through that drive-in window when she's dead and prop her up
in that corner over there? And [the teller] said she was just
sitting over there, looked like she had nodded off. If at 11:00 in
the morning Alice Covington has been kidnapped and this is 5:00 in the
afternoon, Alice Covington is either going to be raising sand going
through that drive-in window or she's going to be dead.
Here, the prosecutor created a scenario based on
evidence already before the jury, presenting a possibility of how
events unfolded. Using the word “maybe” several times, he urged the
jury to “think about this,” “draw what conclusions you want to,” and
“[u]se your common sense.” His argument was not based on mere
speculation, but on a framework of facts in evidence. It was up to
the jury to decide whether to accept his interpretation and
inferences. After review of the record and briefs, we conclude the
trial court did not err and defendant's assignment of error fails.
Defendant next assigns error to the trial court's
submission, over defendant's objection, of the statutory mitigating
circumstance that defendant had no significant history of prior
criminal activity. See N.C.G.S. § 15A-2000(f)(1) (1999).
This Court recently addressed the standard
applicable to submission of the (f)(1) mitigating circumstance:
“In deciding whether to submit this statutory
mitigating circumstance, the trial court must determine whether a
rational jury could conclude that the defendant had no significant
history of prior criminal activity. A defendant's criminal history
is considered “significant” if it is likely to affect or have an
influence upon the determination by the jury of its recommended
State v. Greene, 351 N.C. 562, 569, 528 S.E.2d 575,
580 (quoting State v. Jones, 339 N.C. 114, 157, 451 S.E.2d 826, 849-50
(1994), cert. denied, 515 U.S. 1169, 115 S.Ct. 2634, 132 L.Ed.2d 873
(1995)), (citation omitted), cert. denied, 531 U.S. 1041, 121 S.Ct.
635, 148 L.Ed.2d 543 (2000). If the trial court determines a
rational jury could conclude defendant had no significant history of
prior criminal activity, the trial court must submit the mitigating
circumstance to the jury. State v. Wilson, 322 N.C. 117, 143, 367
S.E.2d 589, 604 (1988).
In the present case, the evidence warrants
submission of the (f)(1) mitigator. Defendant pled guilty in 1995 to
sixteen counts of obtaining property by false pretenses. These
convictions stemmed from defendant's fraudulent appropriation of money
from an elderly woman in defendant's care. These nonviolent property
crimes apparently arose during one brief period in defendant's life.
Moreover, the trial court instructed the jury that defendant did not
request submission of the (f)(1) mitigator but that submission of the
mitigator was legally required.
Submission of the (f)(1) mitigator appears
especially appropriate when defendant's criminal history is compared
to prior cases where submission of (f)(1) was required. See, e.g.,
State v. Rowsey, 343 N.C. 603, 619-20, 472 S.E.2d 903, 911-12 (1996)
(trial court properly submitted (f)(1) over defendant's objection
where defendant had convictions for two counts of larceny, fifteen
counts of injury to property, and an alcoholic beverage violation and
where evidence showed defendant had been involved in various other
crimes; trial court's reasoning included the fact that defendant's
prior convictions were primarily for property crimes), cert. denied,
519 U.S. 1151, 117 S.Ct. 1087, 137 L.Ed.2d 221 (1997); State v.
Buckner, 342 N.C. 198, 233-34, 464 S.E.2d 414, 434-35 (1995) ((f)(1)
properly submitted over defendant's objection where defendant's
criminal record included seven breaking and entering convictions, a
common-law robbery conviction, and a drug-trafficking conviction),
cert. denied, 519 U.S. 828, 117 S.Ct. 91, 136 L.Ed.2d 47 (1996);
Wilson, 322 N.C. at 142-43, 367 S.E.2d at 604 (trial court erred in
failing to submit (f)(1) where defendant was previously convicted of
second-degree kidnapping, stored illegal drugs, and was involved in a
In the present case, a rational jury could have
concluded defendant had no significant history of prior criminal
activity. Wilson, 322 N.C. at 143-44, 367 S.E.2d at 604.
Accordingly, the trial court properly submitted the (f)(1) mitigating
circumstance to the jury. Defendant's assignment of error is without
Defendant raises four additional issues that she
concedes this Court has previously decided contrary to her position:
(1) the indictment failed to allege every element of first-degree
capital murder, and this deprived defendant of her state and federal
constitutional rights; (2) the trial court erred in instructing the
jury that it had to unanimously find that the aggravating circumstance
was not sufficiently substantial when considered with the mitigating
circumstances to call for the imposition of the death penalty before
it could answer Issue Four “no” and sentence defendant to life
imprisonment without parole, and this violated defendant's state and
federal constitutional rights; (3) the trial court's instruction to
the jury in the penalty phase that it had the “duty” to impose the
death penalty if it found that the mitigating circumstances failed to
outweigh the aggravating circumstance and that the aggravating
circumstance was sufficiently substantial to call for the death
penalty when considered with the mitigating circumstances, and this
deprived defendant of her state and federal constitutional rights;
and (4) the definition of mitigating circumstances in the trial
court's charge to the jury was error, and this deprived defendant of
her state and federal constitutional rights. Defendant makes these
arguments to allow this Court to reexamine its prior holdings and to
preserve these issues for any possible further judicial review. We
have thoroughly considered defendant's arguments on these issues and
find no compelling reason to depart from our prior holdings. These
assignments of error are overruled.
Defendant next argues that this Court's standards
for proportionality review are unconstitutionally vague and arbitrary.
After thoroughly reviewing our proportionality
standards, we find they have been clearly set forth in numerous cases.
See, e.g., State v. Skipper, 337 N.C. 1, 58-64, 446 S.E.2d 252,
284-88 (1994), cert. denied, 513 U.S. 1134, 115 S.Ct. 953, 130 L.Ed.2d
895 (1995). This Court's proportionality review process permits a
capitally convicted defendant to submit any evidence that is relevant
to this Court's determination as to whether defendant has been
“sentenced to die by the actions of an aberrant jury.” Gregg v.
Georgia, 428 U.S. 153, 206, 96 S.Ct. 2909, 2940, 49 L.Ed.2d 859, 893
We recognize the proportionality review process is
not susceptible to exact definitions or precise numerical comparisons.
See Skipper, 337 N.C. at 64, 446 S.E.2d at 287. Instead, the
process must allow broad consideration of all evidence relevant to the
defendant's death sentence. Through such a process, both the State
and the defendant may fully argue their positions on proportionality,
and Court members may utilize their experienced judgment to determine
whether the death sentence imposed was proportionate. Id.
In short, this Court's standards governing
proportionality are not vague or arbitrary but instead provide broad
boundaries to ensure that death sentences may be fully evaluated.
Defendant's assignment of error is without merit.
Having concluded that defendant's trial and capital
sentencing proceeding were free from prejudicial error, we are
required to review and determine: (1) whether the evidence supports
the jury's finding of the aggravating circumstance upon which the
sentence of death was based; (2) whether the death sentence was
imposed under the influence of passion, prejudice, or any other
arbitrary factor; and (3) whether the death sentence is excessive or
disproportionate to the penalty imposed in similar cases, considering
both the crime and the defendant. N.C.G.S. § 15A-2000(d)(2).
In the present case, the jury convicted defendant
of first-degree murder based on malice, premeditation, and
deliberation, and under the felony murder rule. The jury also found
defendant guilty of first-degree kidnapping. Following a capital
sentencing proceeding, the jury found one aggravating circumstance:
the murder of Alice Covington was committed for pecuniary gain.
N.C.G.S. § 15A-2000(e)(6).
Three statutory mitigating circumstances were
submitted for the jury's consideration: (1) defendant has no
significant history of prior criminal activity, N.C.G.S.
§ 15A-2000(f)(1); (2) the murder was committed while defendant was
under the influence of mental or emotional disturbance, N.C.G.S.
§ 15A-2000(f)(2); and (3) the catchall mitigating circumstance that
there existed any other circumstance arising from the evidence that
any juror deems to have mitigating value, N.C.G.S. § 15A-2000(f)(9).
Of these statutory mitigating circumstances, the jury found only
(f)(2) to exist. Of the five nonstatutory mitigating circumstances
submitted by the trial court, the jury found two to exist: (1)
defendant's mother died when defendant was five years old, which
adversely affected her emotional development; and (2) defendant
suffered and suffers from a mental defect and/or impairment.
After thoroughly examining the record, transcript,
and briefs, and reviewing the oral arguments, we conclude the evidence
fully supports the aggravating circumstance found by the jury.
Further, we find no indication the sentence of death was imposed under
the influence of passion, prejudice, or any other arbitrary factor.
We turn then to our final statutory duty of proportionality review.
The purpose of proportionality review is to
“eliminate the possibility that a person will be sentenced to die by
the action of an aberrant jury.” State v. Holden, 321 N.C. 125,
164-65, 362 S.E.2d 513, 537 (1987), cert. denied, 486 U.S. 1061, 108
S.Ct. 2835, 100 L.Ed.2d 935 (1988). Proportionality review also acts
“[a]s a check against the capricious or random imposition of the death
penalty.” State v. Barfield, 298 N.C. 306, 354, 259 S.E.2d 510, 544
(1979), cert. denied, 448 U.S. 907, 100 S.Ct. 3050, 65 L.Ed.2d 1137
(1980). In conducting proportionality review, we compare the present
case with other cases in which this Court concluded the death penalty
was disproportionate. State v. McCollum, 334 N.C. 208, 240, 433
S.E.2d 144, 162 (1993), cert. denied, 512 U.S. 1254, 114 S.Ct. 2784,
129 L.Ed.2d 895 (1994).
We have found the death sentence disproportionate
in seven cases. State v. Benson, 323 N.C. 318, 372 S.E.2d 517
(1988); State v. Stokes, 319 N.C. 1, 352 S.E.2d 653 (1987); State v.
Rogers, 316 N.C. 203, 341 S.E.2d 713 (1986), overruled on other
grounds by State v. Gaines, 345 N.C. 647, 483 S.E.2d 396, cert.
denied, 522 U.S. 900, 118 S.Ct. 248, 139 L.Ed.2d 177 (1997), and by
State v. Vandiver, 321 N.C. 570, 364 S.E.2d 373 (1988); State v.
Young, 312 N.C. 669, 325 S.E.2d 181 (1985); State v. Hill, 311 N.C.
465, 319 S.E.2d 163 (1984); State v. Bondurant, 309 N.C. 674, 309
S.E.2d 170 (1983); State v. Jackson, 309 N.C. 26, 305 S.E.2d 703
We conclude this case is not substantially similar
to any case in which this Court has found the death penalty
disproportionate. Defendant was convicted on the basis of malice,
premeditation, and deliberation, and under the felony murder rule.
“The finding of premeditation and deliberation indicates a more
cold-blooded and calculated crime.” State v. Artis, 325 N.C. 278,
341, 384 S.E.2d 470, 506 (1989), sentence vacated on other grounds,
494 U.S. 1023, 110 S.Ct. 1466, 108 L.Ed.2d 604 (1990). Moreover,
defendant kidnapped and eventually drowned a defenseless, elderly
woman. See State v. Cummings, 353 N.C. 281, 307, 543 S.E.2d 849,
865, cert. denied, 534 U.S. 965, 122 S.Ct. 375, 151 L.Ed.2d 286, 2001
WL 1045563 (2001) (No. 01-6017). The victim was eighty-six years
old, five feet one and one-half inches tall, and weighed eighty-eight
pounds. The victim's age and size made her no match for defendant,
who was thirty-four years old and weighed approximately 230-240
pounds. See State v. Carter, 342 N.C. 312, 329, 464 S.E.2d 272, 283
(1995), cert. denied, 517 U.S. 1225, 116 S.Ct. 1859, 134 L.Ed.2d 957
After establishing a relationship with the victim
and earning the victim's confidence through defendant's authority as a
health-care provider for the elderly, defendant used the victim's
trust to kidnap and eventually kill the victim so that defendant could
steal money from the victim's bank account. Further, the victim
undoubtedly experienced immeasurable terror throughout the kidnapping
and murder. She was driven a great distance with no idea what was in
store for her, only to be sprayed with pepper spray, shocked with a
stun gun, and eventually drowned in defendant's trailer. Moreover,
after the victim drowned, defendant, a trained health-care provider,
neither administered CPR nor called 911. Instead, defendant washed
the victim's clothes, put them back on her, combed the victim's hair,
and then stuffed the victim's body in the back of her car so defendant
could attend a party. The next morning, defendant carried the body
from her car. Defendant propped the body up in the passenger seat of
the victim's car. Defendant then covered the body with pillows
because the body was beginning to smell. Defendant drove around for
several hours with the dead corpse sitting next to her. These facts
clearly distinguish this case from those in which this Court has held
a death sentence disproportionate.
Defendant contends the present case is similar to
State v. Young, 312 N.C. 669, 325 S.E.2d 181, one of the cases in
which this Court found a death sentence disproportionate. In Young,
the defendant was nineteen years old. Id. at 688, 325 S.E.2d at 193.
The defendant and two companions robbed and killed the victim. Id.
The defendant stabbed the victim twice, but one of his companions
“finished” the victim by stabbing him several more times. Id.
In the present case, defendant's crime is clearly
distinguishable from that in Young. First, while the defendant in
Young was only nineteen, defendant in the present case was thirty-four
years old at the time of the murder and held a position of trust as a
health-care provider trained in lifesaving techniques. See Carter,
342 N.C. at 330, 464 S.E.2d at 283. Moreover, while the defendant in
Young stabbed the victim twice but his accomplice actually “finished”
the victim, defendant in this case kidnapped the victim, assaulted her
with pepper spray and a stun gun, drowned her, and then drove her body
around in a car. Further, while the victim in Young apparently died
in a brief period of time without prolonged fear, it is unquestionable
in the present case that the victim felt isolated and afraid for an
extended period during the kidnapping and then endured a long, painful
death. Accordingly, the present case is clearly distinguishable from
Young and the other six cases where this Court held a death sentence
We also compare this case with the cases in which
this Court has found the death penalty to be proportionate. McCollum,
334 N.C. at 244, 433 S.E.2d at 164. Although we review all cases in
the pool of “similar cases” when engaging in our statutorily mandated
duty of proportionality review, “we will not undertake to discuss or
cite all of those cases each time we carry out that duty.” Id.;
accord State v. Gregory, 348 N.C. 203, 213, 499 S.E.2d 753, 760,
cert. denied, 525 U.S. 952, 119 S.Ct. 382, 142 L.Ed.2d 315 (1998).
After thoroughly analyzing the present case, we conclude this case is
more similar to cases in which we have found the sentence of death
proportionate than to those in which we have found it
Whether a sentence of death is “disproportionate in
a particular case ultimately rest[s] upon the ‘experienced judgments'
of the members of this Court.” State v. Green, 336 N.C. 142, 198, 443
S.E.2d 14, 47, cert. denied, 513 U.S. 1046, 115 S.Ct. 642, 130 L.Ed.2d
547 (1994). Therefore, based upon the characteristics of this
defendant and the crimes she committed, we are convinced the sentence
of death recommended by the jury and ordered by the trial court in the
instant case is not disproportionate.
Accordingly, we conclude defendant received a fair
trial, free from prejudicial error. The judgments and sentences
entered by the trial court, including the sentence of death for
first-degree murder, must therefore be left undisturbed.