David Allen Sokolowski was
convicted of first-degree murder in 1994 for killing his friend, Rubel
“Little Man” Gray Hill. After receiving information about a homicide,
the Orange County Sheriff’s Office found Sokolowski at his home on
Mincey Road burning Hill’s body in his yard.
In a separate trial, Sokolowski was convicted of
killing his live-in girlfriend, Pamela Owens Ellwood. Investigators
found body parts of Ellwood and Owens, including ears that Sokolowski
had saved. There were suspicions that Sokolowski may have eaten parts of
his victims’ bodies.
More Body Parts Found In Kitchen Of Farmhouse
March 14, 1992
More body parts - including some that appear to be
those of a woman - were found in the kitchen of a rural farmhouse where
investigators earlier discovered a man's torso and skull. Deputies found
four intact human ears, including one in a centerpiece of plastic fruit
on a kitchen table, Orange County Sheriff Lindy Pendergrass said.
David Allen Sokolowski, 35, who lived in the house,
is charged with first-degree murder in the death of Rubel Hill, 35.
Curtis Bauer, 31, is charged with being an accessory. Police said the
female parts could be those of Pamela Owens Elwood, 42, who lived at the
house with Sokolowski.
In the Supreme Court
of North Carolina
State of North Carolina
David Allen Sokolowski
Filed December 3, 1999
Appeal as of
right pursuant to N.C.G.S. § 7A-27(a) from judgment imposing a sentence
of life imprisonment entered by Grant (Cy A.), J., on 26 October 1994 in
Superior Court, Orange County, upon a jury verdict of guilty of first-degree
murder. Heard in the Supreme Court 13 September 1999.
Michael F. Easley,
Attorney General, by Thomas F. Moffitt, Special Deputy Attorney General,
for the State.
Ann B. Petersen
On 16 March 1992, defendant
David Allen Sokolowski was indicted for the first-degree murder of
Pamela Owens Ellwood. Pamela Ellwood's body was never recovered.
Defendant was tried noncapitally before a jury, and on 26 October 1994,
the jury found him guilty. Thereafter, the trial court sentenced
defendant to a term of life imprisonment to be served consecutively with
a life sentence imposed in March 1994 for the first-degree murder of
The State claimed defendant
killed Ellwood, dismembered her body, and burned her body parts in their
backyard. The State's evidence tended to show that in early 1992,
defendant and Ellwood lived in a farmhouse in a rural part of Orange
County near Hillsborough. The couple had lived together under the name
of Pamela and David Ellwood for a number of years prior to 1992. Sometime
in mid-February 1992, Pamela Ellwood (Ellwood) mysteriously disappeared.
The State presented evidence
from several witnesses indicating that the last time anyone ever saw
Ellwood alive was 9 February 1992, and is summarized as follows: On 7 February
1992, Stanley Hutchins saw Ellwood for the last time when he met
defendant and Ellwood at a grocery store to pay them for some
construction work they had done. Ellwood was also seen by Robert Rice
(Rice) when she bought a Citation car from him on 7 February 1992. On 9 February
1992, Ellwood telephoned Rice to tell him the car would not start. Rice
went to defendant and Ellwood's house. This was the last time Rice ever
saw or heard from Ellwood again. Defendant and Ellwood also went to
Winston-Salem to visit her parents on 9 February, which was the last
time Ellwood's parents ever saw or heard from her. On 10 February 1992,
Rice took a starter to defendant and Ellwood's home to fix Ellwood's car,
and defendant helped Rice install the starter. Rice did not see Ellwood
that day. When he asked defendant about Ellwood, defendant said she was
at work. Rice testified the Citation remained in the front yard for the
next two weeks. Thereafter, Rice noticed the front tires of the
automobile had been removed.
Ellwood and defendant's
landlord, Robert Strayhorn (Strayhorn), initially testified that the
last time he saw Ellwood was 1 March 1992, when she paid the monthly
rent. However, Strayhorn corrected his testimony when he remembered the
last time he saw Ellwood was when she got out of her Citation automobile
sometime in February 1992. As previously mentioned, Ellwood bought this
car from Rice on 7 February 1992. Two days later on 9 February, the
Citation was not running.
Further testimony by
Strayhorn showed that in mid-February 1992, he saw defendant unloading
from a delivery truck a large number of wooden pallets and stacking them
in piles in his yard. Sometime later in February, after the last time
Strayhorn had seen Ellwood, Strayhorn was tending to his farm animals
and saw defendant in the backyard using some of the pallets to fuel a
large bonfire. Upset about the bonfire because the yard had been in such
good shape, Strayhorn drove from the pasture to the yard to ask
defendant about it. When Strayhorn got out of his truck, defendant left
the fire and met Strayhorn at the truck. Strayhorn asked defendant why
he got the pallets if he was just going to burn them. Defendant replied
that some boys wanted to repair and sell them, but defendant got tired
of looking at them. However, defendant was not burning all of the
pallets at that time.
The State's evidence
revealed that for the remainder of February 1992 and the early part of
March 1992, defendant gave contradictory stories to various people
concerning Ellwood's whereabouts. On 15 February 1992, Keith Wilkerson
visited defendant's home and asked where Ellwood was. Defendant
responded that she was in Winston-Salem. However, Wilkerson noticed the
pickup truck and Ellwood's car were both still in the front yard. On 21 February
1992, Charlene Thornton (Thornton) visited defendant's house and asked
if Ellwood was home. Defendant told Thornton that Ellwood was in Winston-Salem
and that she would be returning in a week.
On 8 March 1992, Ellwood's
parents came to check on their daughter because they had not heard from
her since they saw her on 9 February 1992. Ellwood's mother testified
that Ellwood usually spoke to them about twice a month by telephone.
When Ellwood's parents arrived at their daughter's house, Ellwood's
father blew on the car horn to announce their arrival. Ellwood's parents
walked to the front door and started to go inside, but Ellwood's father
felt resistance on the door causing them to stop. Thereafter, Ellwood's
mother walked to the right side of the house while Ellwood's father
walked to the left side of the house. Ellwood's father heard his wife
talking to someone at the back of the house. On joining his wife, he
found her talking to defendant, who had a pistol and shotgun with him.
Defendant told them Ellwood had gone shopping in Durham with a friend
named Leann Hill, and they would not be home until after dark. Ellwood's
parents returned to their own home in Winston-Salem without seeing their
daughter. Later that same day, Curtis Bauer (Bauer) saw defendant pour
gasoline onto a pile of wooden pallets, igniting a large bonfire.
The State presented evidence
contradicting defendant's 8 March assertions to Ellwood's parents that
Virginia “Leann” Hill (Leann) had gone shopping with Ellwood. Leann
testified the last time she saw Ellwood was at the beginning of February
1992 when Ellwood gave Leann a haircut. Leann stated she usually came to
Ellwood and defendant's house twice a month to get her hair cut. When
Leann returned to their house sometime in late February or early March
to get a haircut, defendant told her that Ellwood had left him and had
gone to her parents' house in Winston-Salem. Leann testified that she
saw boxes of Ellwood's items in the living room.
The State also provided
evidence that defendant made incriminating statements to different
people indicating he killed Ellwood. On 5 March 1992, defendant's friend
Kevin Folmar (Folmar) was at defendant's house, along with Bauer,
watching television. While Bauer was asleep in a chair, defendant looked
at Folmar and said, “[Ellwood's] out there and [Hill's] in yonder. Or
vice versa.” Folmar testified that defendant motioned with his finger
outside the house, and then he pointed towards the bedroom area with his
other hand. When Darryl Underwood (Underwood) was questioned by the
police on 11 March 1992, he testified that he had been at defendant's
house and had asked about Ellwood. Defendant responded that he “had [Ellwood]
tooken [sic] care of.”
On 9 March 1992, police
officers went to Ellwood and defendant's home, and saw a large bonfire.
In addition, officers noticed an area under the left side of the house
that had been dug out as if construction work was in progress. When
officers looked into the fire, they saw a badly burned human head, a
separate portion of the torso of a human body, and some bone fragments.
Defendant told officers the remains in the fire were his neighbor Rubel
Hill (Hill). A later forensics examination of the remains in the fire
confirmed it was Hill.
Officers continued to search
the backyard. They sifted through the contents of a hole near the shed
in the backyard, approximately three hundred feet from the residence,
and found charred bone and skull fragments. When officers searched
around the house, they found two human ears on the deck behind the house
under some rugs. These ears were later identified as Hill's. A medical
examiner concluded the ears had been severed from Hill's head with a
Inside defendant's house,
officers found a plastic bag that contained female clothing, including a
blood-soaked bra, a blood-soaked sweatshirt, and socks. Defendant told
officers the clothing in the plastic bag belonged to “his old lady,”
meaning Ellwood. When questioned about the clothing, defendant claimed
he had been in a fight with Ellwood several weeks before and she had
left him. The clothing found in the plastic bag was determined to be
covered in human blood. However, the clothing was too putrid to test for
blood type. A subsequent review of the contents of the plastic bag
revealed the shirt had been cut from the hem in the back straight up to
the neck, the bra straps had been cut from the back, and the shirt
contained a hole in the back that was “consistent with an injury
resulting from a gunshot wound.”
On 11 March 1992, officers
returned to defendant's house for a further search. Officers found a
third ear in an ice tray in the freezer, testicles in the refrigerator,
and a fourthear inside a hollowed-out gourd on the kitchen table. An
examination of these two ears revealed they had also been severed with a
sharp object. The left ear had a pierced lobe, and the right ear had a
gold pierced earring with a green stone in place. Ellwood's mother
testified the earring belonged to her daughter. Subsequent forensic
tests showed both ears were Ellwood's.
Defendant's first issue on
appeal is whether the trial court erred when it denied defendant's
motion to dismiss the charge of first-degree murder. Defendant contends
the evidence was insufficient to permit a reasonable juror to find
beyond a reasonable doubt that defendant was guilty of the premeditated
and deliberate murder of Ellwood.
When the trial court
considers a motion to dismiss, it is “concerned only with the legal
sufficiency of the evidence to support a verdict, not its weight, which
is a matter for the jury.” State v. Blake, 319 N.C. 599, 604, 356 S.E.2d
352, 355 (1987). The State gets the benefit of all reasonable inferences
drawn from the evidence. State v. Scott, 296 N.C. 519, 522, 251 S.E.2d
414, 416 (1979). The test for sufficiency of the evidence is the same
whether it is circumstantial, direct, or both. State v. Jones, 303 N.C.
500, 504, 279 S.E.2d 835, 838 (1981). If the evidence is sufficient to
raise only a suspicion as to either the commission of the offense or the
identity of defendant as the perpetrator, the motion to dismiss should
be allowed. State v. Cutler, 271 N.C. 379, 383, 156 S.E.2d 679, 682
(1967). If the evidence at trial gives a reasonable inference of guilt,
the jurymust decide whether the facts show defendant's guilt beyond a
reasonable doubt. Id.
Although defendant concedes
there is sufficient circumstantial evidence to determine that Ellwood is
dead, defendant claims the State offered no direct evidence that
Ellwood's death was caused by a criminal act. Defendant claims the only
evidence of possible criminal harm was the bag of blood- stained female
clothes. However, defendant contends the State could only speculate that
Ellwood was wearing these clothes at the time of her death. Further,
defendant claims that even if the State provided evidence that Ellwood
died as the result of a criminal act, the State has failed to prove
defendant killed Ellwood.
Contrary to defendant's
assertions, there was sufficient evidence in addition to Ellwood's
bloody clothes for the jury to consider and convict defendant of the
first-degree murder of Ellwood. “The corpus delecti may be established
by direct or circumstantial evidence.” State v. Bishop, 272 N.C. 283,
299, 158 S.E.2d 511, 522 (1968). As to the issue of defendant's
responsibility for Ellwood's death, the jury could properly consider the
evidence relating to the manner in which defendant tried to dispose of
Hill's body because “[t]he other crime may be offered on the issue of
defendant's identity as the perpetrator when the modus operandi of that
crime and the crime for which defendant is being tried are similar
enough to make it likely that the same person committed both crimes.”
State v. Carter, 338 N.C. 569, 588, 451 S.E.2d 157, 167 (1994), cert.
denied, 515 U.S. 1107, 132 L. Ed. 2d 263 (1995). In the instant case,
there was a rational connection between defendant's unseemly conduct
towards Ellwood's corpse and the concealment of her dead body, leading
to a logical inference that defendant killed Ellwood and disposed of her
body in the same manner as Hill's corpse. The State presented evidence
that after obtaining a large number of wooden pallets, defendant built a
bonfire with some of the pallets sometime in mid-February 1992, around
the time witnesses testified Ellwood disappeared. On 9 March 1992,
police discovered defendant had, with more of the pallets, built a
second bonfire and Hill's remains were found burning in the fire. One of
the items in the fire was Hill's severed head with his two ears missing.
The police found Hill's two severed ears, as well as the severed ears of
Ellwood, at defendant's house.
An officer testified that
defendant said he attempted to bury Hill, but it was too much trouble so
he decided to burn the body. Thereafter, the police looked in holes in
the yard for additional evidence. The officers found charred human bone
and skull fragments in an area where defendant previously pointed out to
Folmar that Ellwood was located. Further, defendant told Underwood that
he “had [Ellwood] tooken [sic] care of.” This circumstantial evidence
provided proof of defendant's criminal agency and an explanation for the
reason the police were unable to find the rest of Ellwood's body.
deliberation generally must be established by circumstantial evidence,
because both are processes of the mind not ordinarily susceptible to
proof by direct evidence.” State v. Rose, 335 N.C. 301, 318, 439 S.E.2d
518, 527, cert. denied, 512 U.S. 1246, 129 L. Ed. 2d 883 (1994). One of
“the circumstances to be considered in determining whether a killing was
done with premeditation and deliberation is 'the conduct and statements
of the defendant before and after the killing.'” Id. (quoting State v.
Small, 328 N.C. 175, 181-182, 400 S.E.2d 413, 416 (1991)). The State
presented evidence that sometime in February 1992, Ellwood disappeared,
and afterwards, defendant gave conflicting responses for her absence. As
previously stated, defendant indicated to some people that Ellwood was
in Winston-Salem, to others that Ellwood was out shopping, and to still
others that she had left him and moved back in with her parents. However,
the State's evidence reveals Ellwood did not go to Winston-Salem, she
was not out shopping, and she did not go back to her parents' house to
live. In fact, Ellwood's parents had not seen her since she visited them
in Winston-Salem on 9 February 1992.
In addition to his
contradictory statements, defendant more importantly made incriminating
statements to friends concerning the whereabouts of Ellwood, including a
statement to Underwood that he “had [Ellwood] tooken [sic] care of.”
Folmar testified that defendant said he had “'[Ellwood] out here and
[Hill] in yonder.' Or vice versa.” The State contends when Folmar asked
defendant about Ellwood, defendant said Ellwood is “out there,” pointing
to the backyard. The State claims it can be reasonably inferred that
defendant was talking about the area approximately three hundred feet
behind the house, where the additional skull and bone fragments were
found. Defendant's contradictory statements, concerning the whereabouts
of Ellwood, and incriminating statements, indicating to acquaintances
that he killed Ellwood, point to defendant as having killed Ellwood with
premeditation and deliberation.
Another factor for this
Court to consider on the question of premeditation and deliberation is
that “any unseemly conduct towards the corpse of the person slain, or
any indignity offered it by the slayer, as well as concealment of the
body, are evidence of express malice, and of premeditation and
deliberation in the slaying.” Rose, 335 N.C. at 318, 439 S.E.2d at 527.
Officers searched the location behind the residence and found evidence
of bone fragments, including pieces of a charred human skull, in a hole
that was approximately three hundred feet behind defendant's residence,
and searched the bonfire site at the residence where Hill's skull and
partial torso were found. The State contends these charred bone and
skull fragments were Ellwood's, as they were found in the area where
defendant was pointing out the window when he told Folmar that Ellwood
was “out there.”
In subsequent investigations,
officers found Ellwood's ears, one in a gourd on the kitchen table with
her earring still in it and the other in the freezer. The ears were
tested andcompared with the blood from her parents to verify they were
Ellwood's. A medical examiner testified that these ears had been severed
with a sharp object, in a similar manner as the ears severed from Hill's
In addition, officers found
a plastic bag of Ellwood's clothing, including a bloody bra, a bloody
shirt, and a pair of socks. The back of the shirt had been cut straight
up from hem to neck, and it had a hole in the back “consistent with an
injury resulting from a gunshot wound.” SBI agents testified the bra and
shirt had a lot of blood on them. Defendant's explanation to the
officers that he had been in a fight with his “old lady” did not explain
why there was so much blood. Even if defendant had been in a fight with
Ellwood, the State contends, this still did not explain why Ellwood's
shirt had a straight, neat cut all the way up the back from the bottom
to the top, or why her bra straps had been cut (nor does it explain the
hole in the back of the shirt “consistent with an injury resulting from
a gunshot wound”). The State concluded the shirt was cut up the back to
remove it from Ellwood's body before she was dismembered and her body
Moreover, the State's
evidence revealed that in early February 1992, Strayhorn observed a
large stack of wooden pallets in Ellwood and defendant's yard being
delivered. Defendant had a large stack of pallets in one location and
was burning a smaller group of pallets that had been moved to another
location only ten to twelve feet from the rest of the pallets. Strayhorn
chastised defendant because defendant had a fireburning in the yard.
Defendant indicated the reason he was burning the pallets was because he
was tired of looking at them. However, he was only burning some of the
pallets, not all of them.
Testimony was presented that
defendant used the pallets in a similar manner on the Sunday prior to
the officers going there in March. Both times, defendant ignited the
pallets with gasoline. In the second fire, officers discovered the
remains of Hill. They also discovered through forensic tests on Hill's
ears that they had been removed by a sharp object.
The State also presented
evidence that defendant pawned Ellwood's belongings, including her
guitar and two tires from her recently purchased car. Rice, who sold the
car to Ellwood, testified that he asked defendant why he sold the two
tires from the car before the car was paid off. Even though the car
belonged to Ellwood, defendant told Rice he could take the car back if
he wanted. This statement indicates that, contrary to defendant's
assertions to various people, he did not expect Ellwood to return.
Further, evidence showed
that Ellwood's important belongings, including her jewelry chest, a
Bible she had received as a wedding present, a wallet with pictures in
it, a family photo album she had for twenty-seven years, combs and
brushes, her clothes, and her recently purchased car remained at the
farmhouse. The fact that these important items were left behind
contradict defendant's statements that Ellwood had left him and moved to
Winston-Salem to live with her parents. Had she leftdefendant, as he
claimed, she would have taken these items with her.
Viewed in the light most
favorable to the State, there was sufficient circumstantial evidence of
all the essential elements of the crime of first-degree murder. As this
Court has previously held,
may be of two kinds, consisting either of a number of consecutive links,
each depending upon the other, or a number of independent circumstances
all pointing in the same direction. In the former case it is said that
each link must be complete in itself, and that the resulting chain
cannot be stronger than its weakest link. In the latter case the
individual circumstances are compared to the 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. But
it necessarily follows that in either case every 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 jury beyond a reasonable doubt.
State v. Austin, 129 N.C. 534,
535, 40 S.E. 4, 5 (1901). In the instant case, the total of all the
evidence is similar to strands in a rope. The strands of circumstantial
evidence presented by the State included: (1) Ellwood's mysterious
disappearance after 9 February 1992; (2) defendant's contradictory
statements as to Ellwood's whereabouts; (3) his incriminating comments,
including he “had [Ellwood] tooken [sic] care of”; (4)defendant's
unseemly conduct toward Ellwood's corpse, including concealing it by the
hideous indignities of dismemberment and burning; (5) the fact Ellwood's
shirt had a hole in the back “consistent with an injuryresulting from a
gunshot wound;” (6) the fact defendant possessed Ellwood's bloody shirt
and bloody bra; (7) the fact Ellwood's clothes were cut up the back as
if to remove them from her torso; (8) the fact he saved Ellwood's ears;
(9) the fact he had pallets delivered to the house that were used to
fuel bonfires; (10) the fact charred bone and skull fragments were found
in a hole three hundred feet from the house in a location where he
indicated to Folmar that Ellwood was located; and (11) the fact
Ellwood's important belongings were found at the farmhouse. Each of
these strands is relevant and tends to prove defendant's guilt. All of
the strands together are strong enough to provide ample evidence of
premeditation and deliberation. Thus, the trial court properly denied
the motion to dismiss.
In his second assignment of
error, defendant claims the trial court erred when it refused to excuse
five of the prospective jurors for cause because, based on news media
accounts, they had some knowledge about defendant's earlier conviction
for the murder of Hill. “Due process requires that the accused receive a
trial by an impartial jury free from outside influences.” State v.
Boykin, 291 N.C. 264, 269, 229 S.E.2d 914, 917 (1976). Counsel may
challenge for cause an individual juror if the juror is unable to render
a fair and impartial verdict. N.C.G.S. § 15A-1212(9) (Supp. 1998).
However, the trial court's decision to dismiss a juror for cause is
discretionary and will not be disturbed absent an abuse of discretion.
State v. Jaynes, 342 N.C. 249, 270, 464 S.E.2d 448, 461 (1995), cert.
denied, 518 U.S. 1024, 135 L. Ed. 2d 1080(1996). The test for
determining if a prospective juror is able to render an impartial
verdict is “whether the trial court can reasonably conclude from the
voir dire examination that a prospective juror can disregard prior
knowledge and impression, follow the trial court's instructions on the
law, and render an impartial, independent decision based on the evidence.”
In the instant case,
defendant concedes that each of the five jurors challenged for cause
said they could set aside their knowledge of defendant's prior first-degree
murder conviction for the death of Hill and could decide guilt or
innocence based solely on evidence presented at trial. However,
defendant contends none of these prospective jurors knew during voir
dire that the State would offer evidence at trial that the Hill murder
was connected to the alleged murder of Ellwood because of a common plan
or scheme. Defendant claims the fact that these five prospective jurors
knew prior to defendant's trial that he was convicted of the first-degree
murder of Hill requires a presumption of partiality and disqualification,
despite the statements that they could judge defendant based solely on
the evidence presented at trial.
As this Court has previously
stated, “[w]e presume that jurors will tell the truth; our court system
simply could not function without the ability to rely on such
presumptions.” State v. Barnes, 345 N.C. 184, 207, 481 S.E.2d 44, 56,
cert. denied, U.S. , 139 L. Ed. 2d 134 (1997), and cert. denied, ___ U.S.
___, 140 L. Ed. 2d 473 (1998). Since a prospective juror's bias may not
always be provable with unmistakable clarity, this Court must defer to
the trial court's judgment concerning the prospective juror's ability to
follow the law. State v. Davis, 325 N.C. 607, 624, 386 S.E.2d 418, 426
(1989), cert. denied, 496 U.S. 905, 110 L. Ed. 2d 268 (1990). In the
instant case, the record does not provide a basis to conclude that any
juror based his or her decision upon pretrial information, rather than
the evidence presented at trial. Since defendant did not prove the trial
court abused its discretion in concluding these five prospective jurors
could render an impartial decision, this assignment of error is
Third, defendant claims the
trial court erred when it instructed the jury that it could consider
defendant's unseemly conduct toward the victim's corpse and concealment
of her dead body to infer premeditation and deliberation. As already
noted, this Court has held that unseemly conduct towards a victim's
corpse and efforts to conceal the body are relevant as circumstantial
evidence of premeditation and deliberation. Rose, 335 N.C. at 318, 439
S.E.2d at 527. There was a rational connection between defendant's
unseemly conduct towards Ellwood's corpse and concealment of her body,
leading to a logical inference that defendant killed her with
premeditation and deliberation. Thus, this assignment of error is
Finally, defendant contends
the trial court erred when it allowed evidence to be introduced pursuant
to Rule 404(b) concerning Hill and defendant's attempt to burn Hill's
body. Rule 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) (Supp.
1998). Rule 404(b) is “a general rule of inclusion of relevant evidence
of other crimes, wrongs or acts by a defendant, subject to but one
exception requiring its exclusion if its only probative value is to show
that the defendant has the propensity or disposition to commit an
offense of the nature of the crime charged.” State v. Coffey, 326 N.C.
268, 278-79, 389 S.E.2d 48, 54 (1990).
As previously mentioned, the
other crime may be offered to show defendant's identity as the
perpetrator when the modus operandi is similar enough to make it likely
that the same person committed both crimes. Carter, 338 N.C. at 588, 451
S.E.2d at 167. A prior act or crime is sufficiently similar to warrant
admissibility under Rule 404(b) if there are “'some unusual facts
present in both crimes or particularly similar acts which would indicate
that the same person committed both crimes.'” State v. Riddick, 316 N.C.
127, 133, 340 S.E.2d 422, 426 (1986) (quoting State v. Moore, 309 N.C.
102, 106, 305 S.E.2d 542, 545 (1983)). It is not necessary that the
similarities between the two situations “rise to the level of the unique
and bizarre.” State v. Green, 321 N.C. 594, 604, 365 S.E.2d 587, 593,
cert. denied, 488 U.S. 900, 102 L. Ed. 2d 235 (1988). However, the
similarities must tend to support a reasonable inference that the same
person committed both the earlier and later acts. State v. Stager, 329
N.C. 278, 304, 406 S.E.2d 876, 891 (1991).
In the instant case, the
unusual, unique, and bizarre circumstances of the two deaths, including
the dismemberment of the bodies; the severing of the ears; the saving of
those ears; and the building of two bonfires, one about the time Ellwood
mysteriously disappeared and the other at the time Hill's charred head
and body parts were found, reveal a contrived, common plan showing the
same person committed both crimes. These similarities support a
reasonable inference that the same person committed both the earlier and
later acts. Accordingly, defendant's fourth assignment of error is
For the foregoing reasons,
we conclude defendant received a fair trial.
North Carolina Supreme Court
STATE OF NORTH CAROLINA
DAVID ALLEN SOKOLOWSKI
September 6, 1996
Appeal as of right pursuant to N.C.G.S. § 7A-27(a)
from a judgment imposing a sentence of life imprisonment entered by
Battle, J., at the 14 March 1994 Criminal Session of Superior Court,
Orange County, upon a jury verdict of guilty of first-degree murder.
Michael F. Easley, Attorney General, by Thomas F.
Moffitt, Special Deputy Attorney General, for the State.
William M. Sheffield for defendant-appellant.
The opinion of the court was delivered by: Webb
The defendant was tried for first-degree murder in a
case in which the State did not seek the death penalty. The State's
evidence showed that the defendant shot and killed Rubel Hill. He then
cut the body into several parts and put them in a fire in his backyard.
The crime was discovered when a house guest of the defendant's called
Major Don Truelove of the Orange County Sheriff's Department and
reported he had seen several body parts in the defendant's home and had
seen the defendant put body parts in the fire.
Major Truelove and seven other deputy sheriffs went
to the defendant's home and removed a partially burned skull and human
torso from the fire. The defendant told Major Truelove that the body was
that of Rubel Hill. He said that Mr. Hill had tried to shoot him and
that he had shot Mr. Hill.
The defendant was convicted of first-degree murder
and sentenced to life in prison.
The defendant appealed.
The defendant's first assignment of error deals with
his motion that he be furnished funds to retain experts and that the
case be continued to allow him time to confer with the experts. The
defendant made a motion pursuant to N.C.G.S. § 7A-450(b) that he be
furnished funds to hire a psychiatrist or a psychologist, a forensic
pathologist, a firearms and ballistics expert, and a behavioral
pharmacologist. The court conducted an ex parte hearing on the motion.
The defendant testified at the hearing that he did
not want to plead insanity. He said he did not trust Dr. Rollins, the
State's psychiatrist. His attorney argued that there was a substantial
basis for pleading insanity and that he needed the assistance of an
expert who was not employed by the State to develop this defense. The
court noted that the defendant had not pleaded insanity as a defense and
had not made a showing that sanity at the time of the offense was likely
to be a significant factor in the trial.
The defendant argued that he needed a forensic
pathologist and a ballistics expert because the State had recently filed
an amended answer to a request for a bill of particulars, in which it
said the State would contend the deceased had been shot in the chest
with a shotgun and in the head with a pistol. The State had previously
said it would rely only on evidence that the deceased was shot in the
chest with a shotgun. The defendant says the claim by the State that the
deceased had been shot in the head as well as the chest could affect the
proof of premeditation and deliberation, and he needed experts to meet
this proof. The superior court held "that the defendant has failed to
demonstrate that he will be deprived of a fair trial without the
expert[s'] assistance or that there is a reasonable likelihood that they
will materially assist the defendant in the preparation of his case."
The defendant argued that he needed a behavioral
pharmacologist to develop a self-defense plea. He says that there was
evidence that the deceased used crack cocaine and that a behavioral
pharmacologist could testify that consistent ingestion of cocaine leads
to more violent mood swings. The court held the defendant had not made a
showing "that there is a reasonable likelihood that such an expert would
materially assist him [the defendant] in the preparation of his case."
The superior court denied the defendant's motion for
the retention of experts. We hold that the superior court was not in
error by denying the motion to provide funds for the hiring of experts.
As to the retention of a psychiatrist or psychologist
to develop an insanity defense, the defendant testified he did not want
to plead insanity. Self-defense, upon which defendant relied, was
inconsistent with an insanity plea. Insanity was not a "significant
factor" in his defense. State v. Moore, 321 N.C. 327, 344, 364 S.E.2d
648, 657 (1988).
As to the retention of a forensic pathologist and a
ballistics expert, the defendant contends he needed them to rebut the
State's evidence that the deceased was shot in the head as well as the
chest. The pathologist who testified for the State said the cause of
death was the shotgun wound to the neck and chest, and she could not
tell when the bullet wound to the head was inflicted. The SBI ballistics
expert who testified for the State said the bullet which was removed
from the victim's head was too deformed to determine if it came from the
This testimony is substantially the same testimony
which the defendant argues that his own experts would have presented. We
also note that there was no significant controversy as to whether the
defendant shot the victim. He admitted that he did. He only contended
that he did it in self-defense. The defendant fails to show how these
experts could have aided him in this theory. He also fails to show how
he could have refuted, challenged, or contradicted the testimony
presented at trial or why he would have wanted to do so. Any additional
experts would have been repetitious. The defendant was not prejudiced by
the denial of his request for funds for either of these experts.
The State argues, and we agree, that expert testimony
on the victim's cocaine use and violent nature would have been
cumulative. The defendant was able to prove the victim's violent nature
through the testimony of the victim's wife and the victim's extensive
criminal record, which included convictions for breaking and entering,
felonious assault and battery, assault with a deadly weapon with intent
to kill inflicting serious injury, and felonious drug charges. The
defendant also introduced the victim's prison records showing numerous
infractions, including possession of weapons and assaults. This evidence
clearly demonstrated the victim's own violent tendencies. Testimony that
cocaine use could make a person violent was not necessary.
The defendant did not show the retention of the
experts would materially assist in the preparation of his case, and it
was not error to deny his motion to furnish funds to hire the experts.
State v. Parks, 331 N.C. 649, 658, 417 S.E.2d 467, 472 (1992). When the
court denied the defendant's motion to retain the experts, the defendant
did not need time to confer with them. Thus, it was not error to
overrule his motion for a continuance.
This assignment of error is overruled.
The defendant next assigns error to the overruling of
his motion to suppress evidence seized in a warrantless search of his
home. He also moved to suppress evidence seized during a search pursuant
to warrants which were procured based on the evidence obtained as a
result of the warrantless search. He also moved for the suppression of
any statements he made when confronted with the evidence seized as a
result of the warrantless search. The defendant contends he was coerced
into giving his consent.
The court had a hearing on the defendant's motion.
The evidence at the hearing showed that when Major Truelove received the
call telling him about the burning of the body, the caller also told him
the defendant was armed and had said he would shoot any law enforcement
officer who came on his property. Major Truelove had seven deputy
sheriffs accompany him to the defendant's home.
When the officers arrived at the defendant's home, he
was standing in the driveway with a pistol in his belt. The defendant
reached for his pistol, but after being told not to do so by the
officers, who had drawn their weapons, the defendant did not touch his
pistol. The officers disarmed the defendant.
The officers requested permission to search the house,
and the defendant said, "I don't care." The defendant accompanied the
officers when they searched his house. While some of the officers were
searching the house, two officers reported to Major Truelove that they
had found a fire in the backyard with a human head and torso in it. At
that time, the defendant was handcuffed and warned of his rights
pursuant to Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct.
At this time, Major Truelove instructed two deputies
to get a statement from the defendant. The two deputies took the
defendant to a patrol car where he signed a consent to search form and a
waiver of his Miranda rights. The defendant then asked for an attorney,
and the interrogation ceased.
The court found facts consistent with the evidence
and denied the defendant's motions. The defendant concedes that there
was no purposeful coercion of the defendant but argues that the eight
officers who arrived at the defendant's home acted in a manner which had
a coercive effect. He says several of the officers shouted at the
defendant and pointed guns at him.
We hold that the warrantless search was based upon
consent and, therefore, was valid. The taking of eight deputies to a
rural area where someone is burning body parts as a result of a possible
homicide is not imprudent or excessive, especially in light of the
information that the defendant had stated that he would shoot any law
enforcement officers who came to his house. Further, the officers drew
their weapons and yelled only when the defendant reached for his gun.
Once the defendant was disarmed, the officers holstered their weapons.
The actions of the officers could not have coerced the defendant into
consenting to the search. The defendant twice consented to the search.
First, he consented orally, then in writing by signing the consent to
search form. The defendant's argument that the written consent was "meaningless"
because it was not "explained to him that he could [not] possibly negate
the discoveries in the fire unless he then consented" has been rejected
by the United States Supreme Court in Schneckloth v. Bustamonte, 412 U.S.
218, 36 L. Ed. 2d 854, 93 S. Ct. 2041 (1973). In that case, the Court
held that "neither this Court's prior cases nor the traditional
definition of 'voluntariness' requires proof of knowledge of a right to
refuse as the sine qua non of an effective consent to a search." Id. at
234, 36 L. Ed. 2d at 867.
The facts found by the court support the Conclusion
that the consent to search was voluntarily given. Hence, the search was
valid, and the trial court properly refused to suppress the evidence.
This assignment of error is overruled.
SEX: M RACE: W TYPE: S MOTIVE:
MO: Dismembered female lover
and male friend at his home.
DISPOSITION: Life term with
20-year minimum, 1994.