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On Stand, Woman Denies Poisoning Lover Or
Husbands
November 9, 1990
WINSTON-SALEM, N.C. — On trial for her life,
Blanche Taylor Moore, a retired grocery clerk from Burlington, N.C.,
forcefully denied yesterday that she had ever poisoned her lover or
either of her husbands.
"I know arsenic was found in these people, but it's
not because I put it there, because I didn't do it," Moore told a
standing-room-only crowd of about 260 in Forsyth Superior Court.
Wearing tortoise-shell glasses, a blue suit, white
blouse and pearls and clutching a tissue, Moore said that she had
"never physically harmed an individual."
During her second and final day of testimony in the
month-long trial, Moore, alternately testy and tearful, described
herself as "a very giving person" who tried "to be here for others and
to help whenever I could."
Moore, 57, is being tried for first-degree murder
in connection with the October 1986 death of Raymond C. Reid, her
longtime lover and boss at a Kroger supermarket. If convicted, she
could receive the death penalty.
OTHER CASES
She also is charged with the arsenic-poisoning
death of her first husband, James N. Taylor, who died in 1973, and
with poisoning her current husband, the Rev. Dwight W. Moore, in 1988
and 1989. No trial dates on those charges have been set.
Mr. Moore, who survived a normally fatal amount of
arsenic but still has little feeling in his hands and feet, listened
to the testimony with a mixture of grimness and bemusement.
"There's some truth and a lot of falsehood," he
said in an interview. ''She has a very good memory - of the things she
likes to remember."
Moore denied yesterday, for example, that she ever
possessed arsenic, bought it or instructed others to buy it for her,
contradicting testimony by several other witnesses, including her
husband.
She also denied that she tried to block an autopsy
of Reid and that she fed him home-prepared food at North Carolina
Baptist Hospital, where the prosecution contends he received the last
lethal amounts of poison.
SUGGESTING A MOTIVE
Seeking to establish a motive for murder,
prosecutor Janet Branch tried during cross-examination to suggest that
the various men in Moore's life might have reminded her of her father,
Parker D. Kiser, who was unfaithful to his wife and eventually
abandoned his family.
Kiser died in 1966 of a heart attack, and
investigators found high - although not fatal - levels of arsenic in
his body after it was exhumed.
Moore said that Dwight Moore did not remind her of
Kiser, despite her husband's admitted adultery during a previous
marriage.
She also said she did not recall criticizing Reid
to her psychiatrist, Jesse McNiel, despite his notes suggesting that
she had. If Reid had lived, she said, she eventually would have
married him.
She also denied being sexually intimate with Mr.
Moore, whom she married last year, until 1988, long after Reid's
death. Mr. Moore had testified that their affair began late in 1985
and that the two relationships overlapped.
Branch questioned Moore closely about her financial
situation in the months before Reid's death, pointing out that she was
unemployed and that her bank balance had steadily diminished.
Steve Reid, 27, one of Raymond Reid's two sons,
said that after his father's death Moore received $45,000 in life
insurance and an additional $18,000 to $20,000 from Reid's estate.
Contrary to assertions by Moore's attorney,
Mitchell M. McEntire, she never repaid any of the money, Steve Reid
said in a courtroom interview.
Mr. Moore said during an interview that, if he had
died, his wife might have inherited as much as $75,000. But he said
that he did not believe her reason for allegedly poisoning him was
financial.
"I think her motive was her inability to actually
express her dissatisfaction with folks," he said, "and it was easier
for her to do this than to say no."
After Blanche Moore's testimony, her daughters,
Vanessa Woods and Cindy Chatman, said they believed their mother had
done well on the stand, her occasional bursts of irritation
notwithstanding.
"I thought it was very good and very truthful,"
Woods said, "and I was very proud of her."
Neither the prosecution nor defense paid much
attention yesterday to a letter supposedly written to Moore in prison
by James Garvin Thomas, a Burlington man who died before she received
it.
In the letter, addressed to "My Dearest Darling,"
Thomas takes responsibility for poisoning both of Moore's husbands, as
well as Reid, out of jealousy and love for her.
A prosecution handwriting expert said earlier in
the trial that the letter was a jailhouse forgery by Moore, while the
defense's expert said that she could not have written it and that
Thomas could have.
Deadly Dose Of Arsenic: Trial To Start In N.C.
Blanche Moore, 57, Is Accused Of Killing Her
Boyfriend. The Defense Calls Her A Pious Woman Known For Kindnesses
By Julia M. Klein - Philly.com
October 14, 1990
REIDSVILLE, N.C. — It was not until the Rev. Dwight
W. Moore first kissed Blanche Taylor, on their second date in the
spring of 1985, that he felt a chemistry between them.
"I guess that's when the bells started to ring a
little bit," said Mr. Moore, 56. Four years later, after Mr. Moore
recovered from a mysterious illness, wedding bells finally rang for
the divorced minister and the attractive widow.
Now, in another example of chemistry at work, Mr.
Moore bears a dubious distinction: Doctors say he may have received
the highest dosage of arsenic ever recorded in anyone who was not a
corpse.
Mr. Moore, who still lacks feeling in his hands and
feet, is expected to be a key witness against his wife in a
sensational murder trial that begins tomorrow in Winston-Salem.
Blanche Taylor Moore, 57, who has spent the last 14
months in the Alamance County Jail protesting her innocence, will
stand trial in Forsyth County Superior Court on a charge of poisoning
her longtime boyfriend, Raymond C. Reid, 50, who died in 1986. If
convicted, she faces either life imprisonment or the death penalty.
In separate cases, the retired grocery clerk from
Burlington, N.C., also is charged with the 1973 arsenic murder of her
first husband, James N. Taylor, 45, and with two counts of assault
with intent to kill Mr. Moore.
Mitchell M. McEntire, Blanche Moore's attorney,
said in an interview that the defense would drive home the
unlikelihood that this pious, churchgoing woman known for her kindness
could have committed such heinous deeds.
But, quoting from the song "Secret Agent Man,"
Forsyth County District Attorney W. Warren Sparrow said he would point
out to jurors that "a pretty face can hide an evil mind."
"I know she looks nice, and she looks like
everybody's grandmother, but I accept that that's the challenge of the
prosecution - to overcome that,"
Sparrow said. "This isn't ordinary. This is
extraordinary. The mathematics of it are powerful, and I believe in
them."
In recent months, the forthcoming trial has been
complicated by the eleventh-hour appearance of a purported deathbed
confession letter by a Burlington man, James Garvin Thomas, taking
responsibility for the poisonings.
In the letter to Blanche Moore, which prosecutors
say was forged by Moore, Thomas claims that he poisoned all three men
out of love, jealousy and obsession.
"I never meant harm to you, I love you too much but
the plan failed me," says the letter, which concludes with a sexually
explicit fantasy about Moore - whom Thomas, 58, apparently never met.
The alleged confession makes no mention of Moore's
father, Parker D. Kiser, a hellfire-and-brimstone minister who died in
1966 of a heart attack at age 62 and whose exhumed body also contained
abnormally high levels of arsenic.
*
The motive in this case has always been its biggest
mystery. Blanche Moore's defenders say that there is none - and that
Moore is just what she appears to be
"As God is my witness, I do not see a dark side to
my sister, nor have I ever seen a dark side," said her brother, Sam
Kiser, a hearing instrument specialist, who said he believed Thomas
committed the poisonings.
"She was more willing to give to people than to
receive from people. She didn't believe in making her good deeds
known. She was just a caring person," Kiser said.
But the prosecution is sure to paint a different
picture of Moore - one that highlights her alleged hostility toward
her father, a philandering husband who eventually abandoned his wife
and seven children.
In court documents, prosecutors say that the men in
Moore's life who were poisoned by arsenic shared important
similarities, including that each was said by Moore to be "just like
her father."
In each instance, prosecutors claim, Moore also
said that she hated her alleged victims or "that they were cruel or
evil" and "expressed (the) desire not to be married to or to no longer
see victim."
In Mr. Moore's case, at least, another common
thread is adultery. Mr. Moore admits that his first marriage ended
because of an affair he had with a church secretary - an affair
McEntire suggests might have continued during his relationship with
Blanche Moore.
Court records hint that the poisonings may have
been a twisted alternative to simply breaking up for another man.
Prosecutors say that Blanche Moore was seeing Reid when Taylor died,
and Dwight Moore when Reid died.
But what of Mr. Moore, whose poisoning first
aroused the suspicion of investigators?
Mr. Moore said in an interview that, since last
year, he had learned that his wife, during their relationship, made
telephone calls to a recently widowed and wealthy Mebane, N.C., man.
Mr. Moore also said that, in their time together,
Blanche Moore demonstrated a pattern of deceit.
The minister's daughter and the minister first met
at a breakfast following an Easter sunrise service at his church.
After a few dates, he began seeing her as a potential mate.
"She was fairly attractive physically. . . . She
was a very good conversationalist, very interested in people. She had
all the appearance of being kind," said Mr. Moore, who is recuperating
in Reidsville. In short, he said, she "had many of the qualities which
would make for a good wife for a pastor."
The development of their relationship was slowed by
two factors, Mr. Moore said. The first was her decision to pursue a
sexual-harassment case against a manager at a Kroger's supermarket,
where she worked - a case she later settled for a reported $275,000.
Because Moore's suit claimed that the manager's
advances had rendered her incapable of pursuing relationships with
men, she tried to keep her relationship with the minister a secret, he
said.
But a second, more telling instance of deceit,
according to Mr. Moore, was her romance with another Kroger's manager,
Reid, a relationship that she told Mr. Moore was just a friendship.
During that time, she asked the pastor to buy ant
poison containing arsenic for her, according to prosecutor Sparrow.
Blanche Taylor and Mr. Moore decided to tie the
knot in the fall of 1988. But the wedding was postponed when he was
overcome by nausea and vomiting and was diagnosed as having a bowel
obstruction. After surgery, he got sick again and, concerned about
propriety, insisted on recuperating at the home of his sister, Nola
Halbrook.
Before taking a trip to visit his brother in New
Jersey in April 1989, Mr. Moore and Blanche finally married in a
simple ceremony. A few days later, after mowing the lawn and eating a
fast-food chicken sandwich supplied by his wife, Mr. Moore once again
got deathly ill.
After arsenic poisoning was discovered,
investigators asked Mr. Moore if any men in Blanche Moore's life had
died under suspicious circumstances. He named Reid, and the
exhumations began.
Until Garvin Thomas' letter surfaced in May, a few
days after his death, the defense had no plausible explanation for the
peculiar fate that befell Moore's men, said her attorney, McEntire.
But, said McEntire, the alleged confession, however
strange, does supply a possible alternative scenario. He said the
defense's handwriting expert would testify that Moore could not have
written the letter, which is addressed to ''My dearest darling."
In fact, McEntire said, the letter "smacks of a
certain authenticity" and almost certainly was written by Thomas, whom
McEntire described as an occasional drug abuser who served jail time
for breaking and entering.
Both McEntire and Thomas' stepmother, Lois Thomas,
said that Garvin Thomas and Blanche Moore never knew each other. But
McEntire said evidence existed that Thomas tried to visit Moore in
jail and that he talked about the case to others.
"It's not our intention in the trial to walk into
court with the letter in hand and say, 'Here's the answer,' " said
McEntire. But he said he would suggest that "given all the
circumstances of her life and his life, it's not as bizarre for him to
have done it as for her to have done it."
Lois Thomas said that the letter was not in her
stepson's handwriting and that Thomas did not seem capable of murder.
"He wasn't a person like that," she said.
Pastor's Wife: Arsenic and Old Lace?
By Doug Struck - The Baltimore Sun
August 22, 1989
BURLINGTON, N.C. — She seemed a perfect bride for
the minister: pretty, friendly, outgoing and at age 56, she had a
sweet voice for hymns.
So it came as a shock when police said that she had
poisoned the pastor with arsenic as soon as they got back from their
honeymoon. The pastor, the Rev. Dwight W. Moore, survived.
Then authorities started digging around in
graveyards and soon declared that Blanche Taylor Moore had poisoned to
death a boyfriend three years ago and a husband 16 years ago.
And her father, who died 23 years ago, had abnormal
levels of arsenic in his body, authorities said, though it was heart
disease that did him in.
Now Mrs. Moore, a woman described by those who know
her as "a sweet, Christian lady," sits in the Alamance County jail
facing two charges of murder and one charge of assault by poison.
Her two devoted daughters come to see her for the
15-minute visits permitted on Sundays. They kiss through the glass
partition, and sometimes one of her three grandchildren comes. They
all wonder about this bizarre turn of events, the daughters say.
"Nobody wants the truth more than we do," says
Cynthia Taylor Chatman, 30.
"One thing is certain," adds her sister, Vanessa
Woods, 36. "Behind the headlines is a person who is not capable of
doing this."
Also perplexed is Moore, who struggles in a
hospital to regain the use of hands and feet that were deadened by
what doctors told his family is the highest dose of arsenic anyone has
survived. Growing slowly on his fingernails are white streaks that
doctors say are a telltale sign of the poison.
And wondering, finally, are the police, who are
mulling over a half-dozen other deaths of people who knew Mrs. Moore.
They will probably ask to exhume some of those bodies, the chief
investigator says.
"I would say it is the most talked-about crime this
county has seen," said Lt. Steve Lynch.
Indeed, it is what one resident called "a
delectable topic" of conversation in this languid Piedmont stretch of
tobacco fields, textile mills and outlet stores that siphon tourists
off Interstate 85.
Some are amused. Bad jokes abound, and a Blanche
Taylor Moore Cookbook T-shirt with ant poison recipes made a brief
appearance. Others are annoyed. "We're tired of you all coming
around," a woman barked at a reporter. "This ain't been nothing but
aggravation for us."
Blanche Moore spent most of her life in Alamance
County. For 32 years, she worked in a supermarket. She was friendly.
Customers would pick her checkout line just to chat with Blanche.
"She was always pleasant and outgoing to
customers," said Brenda Green, a former co-worker. And attractive--the
photograph of a drawn, old woman taken at Blanche Moore's arrest is
atypical. "The sadness doesn't let her picture do her justice," said a
friend.
Her father, Parker Kiser, was a mill worker,
insurance salesman and womanizer who left home "to find himself a
younger woman," according to divorce papers filed in 1960 by Flonnie
Kiser.
Blanche, one of seven children, was gone by then.
At 19, she married James Napoleon Taylor, a furniture restorer just
back from the Korean War. Taylor was a burly man, quick to become
annoyed. He spent his Sundays editing tape recordings of the sermon
from the Glen Hope Baptist Church, so tapes could be sent for overseas
missionary work.
In 1966, Blanche's father died. He had remarried,
and become a preacher. At age 62, he was declared to have died fom
heart disease.
Seven years later, James Taylor died, at age 45.
Blanche told a co-worker she awoke hearing an alarm clock ringing
incessantly beside her husband's bed, and she knew he was dead. It was
declared a heart attack.
A widow at age 40, Blanche Taylor did not lack from
attention. She was pretty, bright and always dressed sharply. She
began dating Raymond C. Reid, a divorced manager of the Kroger store
in Burlington where Blanche was the head cashier.
"Mom never expected to spend the rest of her life
by herself. She had too much to offer," said daughter Cynthia Chatman.
Reid "was a very good man. He was good to us," said her sister,
Vanessa Woods.
But her long employment with Kroger was troubled.
Despite her popularity with customers, she was not universally liked
by those who worked with her.
Kroger gave her top ratings in her job, called her
a "good leader" and used her to train checkers. But "if you got on her
bad side, she could be vindictive," said one co-worker, who asked not
to be identified.
"Everyone thought she was two-faced," said another
colleague. "She could be underhanded."
More troublesome was a top company official, area
manager Robert J. Hutton. Blanche Taylor alleged he had long made
advances and fondled female clerks.
He had reached up her dress, exposed himself, and
finally in October, 1985, grabbed her from behind in a conference
room, Mrs. Taylor contended. She said that he was nude from the waist
down and said, "Are you ready for this?"
She grabbed his pants and underwear and fled from
the store. Hutton had to leave in a meat cutter's smock.
Blanche Taylor never returned to work. Three months
later she filed a sexual harassment suit, but the experience was
debilitating, she said then.
She began seeing psychiatrists. In an affidavit for
her lawsuit, Dr. Jesse N. McNeil said that the long sexual harassment
contributed to depression, anxiety and "a serious suicidal condition."
She said that she felt "completely alienated and
antagonistic toward men and has not been able to maintain any
meaningful social contacts with members of the opposite sex,"
according to the suit.
Her lawyer now, Mitchell M. McEntire, implies that
was so much hyperbole for the lawsuit.
'Not a Man-Hater'
"She is not a man-hater," he said last week. "Her
response was very normal . . . and in no way suggestive of some
psychological change that could explain a person turning into a
murderer."
Easter Sunrise Service
Before she left Kroger, a relative took her to an
Easter sunrise service at the Carolina United Church of Christ, which
served a neat, quiet community overlooking the textile mills on the
Haw River outside Burlington. The minister, Moore, was her age,
divorced, with two grown children.
He began to call on her, telephoning and leaving
notes on her door when she was not home, according to her daughters.
She agreed to meet him for an ice cream cone and soon began to
accompany him to church gatherings.
Her daughters believe her relationship with Reid
had "cooled" by then. But the minister's sister, Nola Halbrook, said
that Blanche Taylor apparently was seeing both men, and Moore did not
know it.
In 1986, Raymond Reid became ill and was
hospitalized with nausea and numbness in his limbs. He died five
months later. Doctors thought that he had Guillain-Barre syndrome.
Blanche Taylor visited him often in the hospital
and seemed distraught by his death, said her daughters.
The year after Reid's death, the long-simmering
sexual harassment suit against Hutton and Kroger was settled just as a
jury was picked to hear the case.
The parties will not disclose the terms, but one
lawyer said that Mrs. Taylor received a "good sum of money" in the
settlement.
Repeatedly Hospitalized
By 1988, she and the minister Moore were talking of
marriage. They planned a nice wedding in his church after
Thanksgiving. But just before the affair, Moore became ill, vomiting,
and weak.
He was repeatedly hospitalized, and twice in the
next two months doctors operated on his intestines. Slowly, he
recovered, but it was not until this April 19 that he and Blanche got
married--this time a simple affair witnessed by two church members.
"She had on a real pretty dress. Seemed like it was
white and had some figures on it," recalled Doris Pender, a witness at
the ceremony and friend of both. "They were beaming. It seemed like
there was electricity there. It seemed like they were very much in
love."
After the wedding, the newlyweds left for a long
weekend in New Jersey to see Moore's new grandchild. They returned on
a Monday, and that week the minister worked around the modest,
white-frame parsonage where he had brought Blanche to live.
On Wednesday he sprayed for dandelions and ate a
chicken sandwich that Blanche brought him from a fast-food store,
Halbrook said. Within hours, he was deathly ill.
A series of trips to the hospital eventually led
him to the intensive-care ward of N.C. Memorial Hospital in Chapel
Hill. There, doctors gathered the family and told them that Moore had
ingested arsenic.
"We thought it was an accident," Halbrook said.
Police Suspicious
But the police did not. Their suspicions quickly
centered on Blanche, and they began backtracking through her life.
They exhumed Reid's body from the Pine Hill Cemetery in June, and the
medical examiner said that he died of arsenic poisoning. They dug up
James Taylor's body in July from the same cemetery and found the same
results.
The headlines of this clannish town chronicled the
saga for six weeks while Mrs. Moore held her head high. She continued
to visit her husband until he finally told her the marriage was over.
Mrs. Moore left the hospital in tears.
"Dwight defended her and wouldn't believe it until
the authorities gave him the evidence on Reid," said Halbrook of her
brother. "It was emotionally devastating to him."
Blanche Taylor Moore was arrested at her daughter's
home July 18. Her attorney, McEntire, points out what has puzzled
townsfolk about the case. "There was no apparent motive for her to
have done any of this," he said.
Warren Sparrow, the district attorney of Forsyth
County, where Reid died, dismisses that question.
"We don't have to get into why," he said. "When you
start looking for a rational motive, you generally start overthinking.
I just know that this guy died and the state medical examiner said he
had a fatal level of arsenic in him."
Possible Death Penalty
Sparrow said that he will consider bringing
death-penalty charges for Reid's death if she is convicted in the
other cases. Steven A. Balog, the district attorney of Alamance
County, said it will be a year before she is tried in the cases
involving Moore and James Taylor.
Attorney McEntire said that his client believes it
is some horrible mistake.
"This is incredible to her," he said. "She said it
was a nightmare that seemed to be stalking her. How do they know to go
first to her husband, then a friend, and then her former husband?
There seems to be some figure that seems to be pointing out where to
go."
Lynch, the chief investigator, denies that. The
case was one of "just applying common sense. No one said Blanche put
arsenic in Pop's food."
McEntire declined to allow an interview with his
client. But "she said she is not guilty. She wants the public to know
that," he reported.
North
Carolina v. Moore
Appeal as of right
pursuant to N.C.G.S. § 7A-27(a) from a judgment imposing a sentence of
death entered by Freeman, J., at the 15 October 1990 Criminal Session
of Superior Court, Forsyth County, upon a jury verdict of guilty of
first-degree murder.
Parker
[335
NC Page 576]
PARKER, Justice.
Defendant, Blanche Kiser Taylor Moore, was indicted for the 7 October
1986 first-degree murder of Raymond C. Reid, Sr. (herein "Reid"). She
was tried capitally at the 15 October 1990 Criminal Session of
Superior Court, Forsyth County, and was found guilty as charged.
Following a sentencing proceeding pursuant to N.C.G.S. § 15A-2000, the
jury recommended defendant be sentenced to death. Judgment of death
was entered on 16 November 1990. An order staying execution of the
death sentence was entered on 26 November 1990 pending the Conclusion
of this appeal.
In May of 1989, defendant's then
husband, the Reverend Dwight D. Moore (herein "Moore"), while being
treated at North Carolina Memorial Hospital in Chapel Hill, North
Carolina, was diagnosed with arsenic poisoning. An investigation was
begun which led to the eventual exhumation of the bodies of P.D.
Kiser, Sr., defendant's father; James N. Taylor, defendant's first
husband; and Reid, a previous boyfriend. All of the bodies tested
positively for the presence of arsenic. Defendant was indicted in
Alamance County for the murders of Kiser and Taylor and the felonious
assault on Moore; she was indicted in Forsyth County for the murder of
Reid. The Alamance County cases were subsequently transferred
[335 NC Page 577]
to Forsyth County. This opinion
reviews defendant's capital trial for the murder by arsenic poisoning
of Reid.
The State's evidence at trial tended to
show that defendant met Reid while working at Kroger supermarket in
Burlington, North Carolina, in 1962. They did not start going out
together, however, until 1979. According to the testimony of a Kroger
risk management investigator, Reid had said he and defendant "probably
would have been married, except she wanted to be there next to her
family." Reid was transferred several times in 1979 and 1980 until he
became manager of a store in Winston-Salem, North Carolina. Defendant
worked the entire time in Burlington except for a brief period in 1979
when she was at a store in Durham. Defendant last worked at Kroger 17
October 1985, when she left her employment on account of sexual
harassment.
Reid initially became ill on 1 January
1986. After having spent New Year's Eve with defendant and having
eaten some of her homemade potato soup, Reid began experiencing severe
symptoms of nausea, vomiting, and diarrhea. Reid, who had never been
known to miss work, was absent from work more than four weeks over the
next few months. His last day at work was 29 May 1986. Reid's
condition became progressively worse; and he was admitted to Wesley
Long Hospital in Greensboro, North Carolina, on 30 May 1986 by his
physician, Dr. Norman H. Garrett, Jr. On admission, Reid reported to
Dr. Garrett that while eating supper seven days earlier, he had
experienced nausea, vomiting, and dehydration, that he had become
violently ill, and that he had been unable to keep down any solid
foods since that time. Dr. Garrett's admission diagnosis was acute
gastroenteritis based on "his profound dehydration, nausea and
vomiting."
While hospitalized, Reid's condition
continued to deteriorate; and Dr. Garrett revised his diagnosis to
multiple systems failure based on Reid's symptoms including excessive
nausea and vomiting, loose stools, skin rash, edema, dehydration, bone
marrow damage, blood cell abnormalities, electrolyte abnormality,
tachypnea (progressive shortness of breath), respiratory failure,
tachycardia (fast heartbeat), low blood pressure, kidney malfunction
and shutdown, and numbness and tingling in his hands and feet. Each of
these symptoms is characteristic of arsenic poisoning.
By the morning of 5 June 1986, Reid's condition had stabilized. Dr.
Garrett informed Reid, in defendant's presence, that he need
[335 NC Page 578]
only remain in the hospital for
three to five more days following his circumcision (the procedure was
the result of an infection and was not related to Reid's other
symptoms). However, Reid's condition worsened so much over the next
week that it became "life threatening," and Dr. Garrett transferred
him to North Carolina Baptist Hospital in Winston-Salem on 13 June
1986. Dr. Garrett was never able to make a satisfactory diagnosis of
the cause of Reid's multi-system failures.
Dr.
Robert Hamilton, a specialist in internal medicine and nephrology who
treated Reid at Baptist Hospital, testified that Reid was admitted
with a number of symptoms, including a raspy voice, severe swelling in
his lower extremities, anemia, low white blood cell count, a rash over
his lower extremities, white patches in his mouth, very poor bowel
sounds, difficulty breathing, and signs of kidney failure. Reid's
condition continued to deteriorate, resulting in a "Code Blue" on 21
June 1986. Emergency measures were taken and Reid was intubated so
that he could be mechanically ventilated. Over the next few days, Reid
became nearly paralyzed.
Dr. Hamilton began with a
preliminary diagnosis of Guillain-Barre syndrome. Reid showed some
slight improvement following a procedure called "plasmapheresis." In
this procedure, the patient's blood is removed from the body, the red
blood cells are separated from the plasma, and the red blood cells are
returned to the body. The lab report from a urine sample obtained from
Reid between 27 June 1986 and 28 June 1986 showed "quite elevated"
levels of arsenic in the urine. Dr. Hamilton, however, never saw the
results of this test. Reid further improved during July of 1986 but
continued to have difficulty breathing and needed to be on a
respirator. Reid gradually recovered use of his extremities and was
able to breathe on his own. During this time, defendant asked Dr.
Hamilton if she could bring food from home for Reid and was given
permission to do so. At the end of September, Reid suffered another
serious setback.
Lisa Hutchens, the head nurse in
the Intensive Care Unit (ICU), testified that the last time she saw
Reid looking well was on 1 October 1986 when she visited him in the
intermediate care unit. Defendant was with Reid and was feeding him
banana pudding. Hutchens again visited Reid on 3 October 1986 in his
room in the intermediate ward. Reid was in "acute respiratory
distress" and was very frightened. He pleaded with her to "please help
[335 NC Page 579]
me or I'm going to die." Reid was
returned to the ICU on 4 October 1986. Nurse Hutchens recalled
defendant often bringing Reid food items from home such as iced tea,
frozen yogurt, milk shakes, and soups during this time.
Steven Reid, one of Reid's sons, testified that he visited his father
on 4 October 1986 and found he had eaten a breakfast prepared by
defendant. He stayed until late that afternoon and visited again on
the fifth before returning to East Carolina University in Greenville,
North Carolina. When Steve called on Monday, 6 October 1986, defendant
informed him he should return to the hospital as soon as possible.
When he arrived on the evening of the sixth, he hardly recognized his
father. He looked as if he had gained almost one hundred pounds and
"his eyeballs were even starting to swell and his skin was splitting."
Dr. Kyle Jackson testified that Reid became "progressively weaker and
unable to continue his breathing on his own well enough to sustain
life." By 7 October 1986, Reid was on inotropic drugs and mechanical
ventilation. He was able to communicate only with his eyes. In the
early afternoon, Reid "coded" and the responding medical personnel
began to administer CPR and to perfuse his heart in order to give him
emergency drugs. Dr. Jackson pronounced Reid dead from complications
which he thought were attributable to Guillain-Barre syndrome. Several
witnesses recalled that moments after Reid passed away defendant
stated: "We cannot have an autopsy. He has been through too much. He
wouldn't want to be cut on like this. We just -- we cannot have one."
Several hospital employees, family members, and visitors testified
that they recalled defendant bringing Reid milk shakes from McDonald's
while he was hospitalized at Wesley Long Hospital. Gloria Head, a
fellow Kroger employee, recalled visiting Reid and observing a red
container of Jello in defendant's purse. Dr. Garrett had previously
testified that Reid had informed him on 30 May 1986 that he began
vomiting after eating Jello the previous night.
Wanda B. Moss, a registered nurse in the ICU at North Carolina Baptist
Hospital, described the treatment Reid underwent in the hospital. On
some occasions Reid was fed with a Dobhoff feeding tube inserted into
him. The tube is very narrow and becomes easily clogged. Nurse Moss
stated that Coca-Cola is inserted by syringe into the tube and is
effective in unclogging it. Defendant was frequently in the room when
Nurse Moss used the syringe and the
[335 NC Page
580]
Coke to clear Reid's Dobhoff tube. The Coke was
often left unattended in the patient's room, and the syringes were
kept in an unlocked closet in Reid's room. Nurse Moss further recalled
defendant bringing peanut butter milk shakes, banana pudding, tomato
pudding, corn bread, and milk from home for Reid and feeding him
herself. The ICU nursing notes reflect repeated instances where Reid
complained later in the day of being nauseated after having been fed
by defendant. Nurse Moss never saw anyone other than defendant bring
food to Reid or feed him.
Pursuant to a court order,
Reid's body was exhumed on 13 June 1989 in Alamance County. The body
was taken to the medical examiner's officer in Chapel Hill, North
Carolina, and an autopsy was performed. The autopsy revealed "clearly
recognizable" Mees lines across the fingernails of both hands and the
toxicology report indicated a concentration of arsenic in Reid's liver
tissue "30 times higher than one might see in an average individual
who is not having a significant exposure to arsenic." The arsenic in
Reid's brain tissue was approximately sixty-seven times higher than
that expected in a normal individual. As a result of these findings,
Dr. John D. Butts, Chief Medical Examiner for the State of North
Carolina, concluded that "Reid died as a result of the complications
of arsenic poisoning." Furthermore, based on an analysis of hair
samples from the exhumed body of Reid, Dr. Vincent Guinn, a professor
of chemistry at the University of California-Irvine and an expert in
the field of nuclear chemistry, concluded that the arsenic levels
found in Reid's hair correspond "to a long period of ingestion of
arsenic, multiple ingestions." Dr. Guinn noted that on 24 June 1986,
the arsenic level peaked at 70 parts per million, which is "roughly 70
times the normal level."
The State presented
testimony from several witnesses to link defendant with the product
Anti-Ant. Brenda Green, a Kroger co-worker, recalled hearing defendant
recommend Anti-Ant to a customer as a good ant-killer. Moore testified
that, during the summer of 1985, defendant showed him a bottle of
Anti-Ant and asked him to purchase some for her from Byrd's Food
Center in the Glen Raven section of Burlington. Moore further
testified that he purchased the Anti-Ant at Byrd's, gave the bottle of
Anti-Ant to defendant, and told defendant that he had purchased it at
Byrd's. Leonard Wolfe, a former co-worker, who owned a small,
community convenience store called Ken's Quickie Mart recalled
defendant
[335 NC Page 581]
coming
into the store in early April 1989 and asking if he "had any Anti-Ant
in stock."
Peggy Vaughn, owner and operator of Atla
Chemical Company in McLeansville [North Carolina], testified that her
company had manufactured Anti-Ant for over ten years, including the
years 1985-1988. The main active ingredient in the product Anti-Ant is
arsenic. She further stated that State's Exhibit #30 was identical in
appearance to other bottles of Anti-Ant manufactured by her company.
Other testimony showed the availability of Anti-Ant to customers in
the Burlington area.
Special Agent Thomas J. Currin
of the North Carolina State Bureau of Investigation testified
concerning the investigation into a letter received by defendant in
the Alamance County jail purportedly written by a man named Garvin
Thomas. In the letter, Thomas allegedly confessed to the murder of
Reid and the attempted murder of Moore. Based on his examinations and
comparisons of defendant's handwriting samples and those of Garvin
Thomas, Agent Currin, a questioned document examiner, concluded that,
in his opinion, defendant was the person who wrote the confession
letter attributed to Garvin Thomas.
The State
presented extensive evidence concerning the deaths of defendant's
father and her first husband and Moore's illness. Recitation of this
evidence as necessary will be included in the Court's Discussion of
defendant's assignment of error related to the admission of this
evidence.
Once the State rested, W.A. Shulenberger,
testifying as an expert witness for the defendant, opined that
defendant could not have written the confession letter. Shulenberger's
examination revealed no evidence of an attempt to disguise or alter
the handwriting. He stopped short, however, of stating that Garvin
Thomas actually wrote the confession letter.
Carolyn
Hinshaw, a jailer with the Alamance County Sheriff's Department,
testified that a man, carrying a teddy bear and signing his name as
"Garvin Thomas," attempted to visit defendant in jail saying "he had
done so much wrong in his life and hurt so many people that he wanted
to start doing some good to right the wrongs." Deputy Hinshaw
testified this incident occurred two to four months before 19 May
1990--the date on the alleged confession letter. Carol DiLelo, a
secretary for defense counsel, Mitchell
[335 NC Page
582]
M. McEntire, testified that, when her employer
learned of the "teddy bear" incident, she was told to arrange a
meeting with Garvin Thomas. At that meeting, Mr. Thomas stated that
"he knew he was going to die and that he knew Blanche Moore had not
done the things she was accused of doing and he knew that he had hurt
her and he had hurt her family and he was sorry about all that."
Defendant also called as a witness her lawyer in her sexual harassment
suit who testified that at defendant's request, he referred her to Mr.
Robert Hinshaw, an attorney in Winston-Salem, about preparing a will
for Reid. Hinshaw then testified that defendant gave him some notes
which defendant said had been prepared by a nurse and asked if he
could draft a proposed will. Hinshaw drafted a proposed will and power
of attorney and then visited Reid in the hospital. At the time Reid
could not speak, but Reid could communicate by nodding his head and
squeezing a person's hand. The nurses present assisted Hinshaw in
interpreting Reid's communications and Hinshaw was satisfied that Reid
understood what was being read and what he was doing. The next day
Hinshaw returned to the hospital and in the presence of a notary
public and two nurses again went over the will with Reid. Since Reid
could not sign his name, Hinshaw signed for him in the presence of
Reid, the notary, and the two nurses who witnessed the will. Hinshaw
testified that he inquired whether Reid understood that by leaving his
property to defendant, his sons would be left out and whether Reid
wanted defendant to share in the insurance proceeds. Reid responded
affirmatively to both these questions. The same procedure was followed
in executing the power of attorney.
Defendant took
the stand on her own behalf and testified that while Reid was in the
ICU at Baptist Hospital, she recalled him being fed only with a tube.
She denied seeing Reid "have any food at all during that time" or
having ever taken food to Reid while he was in the hospital. She
specifically denied taking banana pudding or peanut butter milk shakes
to Reid in the hospital. Defendant did not recall conversing with
anyone about Reid's autopsy and told the jury she would not have been
opposed to an autopsy to determine the cause of his death.
As to Reid's will, defendant denied having anything whatsoever to do
with his will, even though Reid gave her his power of attorney. While
acknowledging she had heard of Anti-Ant, defendant
[335 NC Page 583]
denied ever having purchased,
attempted to purchase, or directed anyone else to purchase the
product. Defendant denied administering arsenic to James N. Taylor,
Reid, or Moore.
Additional facts, when necessary,
will be set forth with respect to the various issues.
The jury found defendant guilty of the first-degree murder of Reid.
During the capital sentencing phase, the jury found as aggravating
circumstances that (i) the murder was committed for pecuniary gain and
(ii) the murder was especially heinous, atrocious, or cruel. As
mitigating circumstances, the jury found that defendant (i) "provided
well for the needs of her children while they were growing up"; (ii)
"upon being informed of the warrant for her arrest, peacefully
submitted herself in accordance with her duty"; and (iii)
"demonstrated concern and kindness for others in her community." Based
upon findings that the mitigating circumstances were insufficient to
outweigh the aggravating circumstances and that the aggravating
circumstances were sufficiently substantial to call for the imposition
of the death penalty when considered with the mitigating
circumstances, the jury recommended that defendant be sentenced to
death.
PRETRIAL ISSUES
In
her first assignment of error, defendant argues the trial court erred
in denying her motions for change of venue. Defendant contends she
could not obtain a fair and impartial trial in Forsyth County on
account of the extensive pretrial publicity resulting in great
prejudice against her in violation of her state and federal
constitutional rights. For the reasons discussed herein, we find this
assignment of error to be without merit.
To support
her initial motion, defendant introduced evidence to show that the
local media provided regular coverage of her case, including detailed
newspaper articles regarding the deaths of Kiser and Taylor and the
illness of Moore; that WKRR-FM, an Asheboro, North Carolina, radio
station with a market in Forsyth County, repeatedly played a song
which implied defendant was guilty and called her a "black widow
spider"; and that the results of a random survey compiled by
defendant's investigator showed the community held preconceptions
prejudicial to her case. Random survey results showed that forty-nine
of the fifty respondents had heard of and/or followed defendant's case
with interest. Of those
[335 NC Page 584]
forty-nine, thirty-six indicated they had reached an opinion as to
defendant's guilt or innocence. Thirty-one of those individuals
believed defendant to be guilty while five believed her to be
innocent. At least two people polled said "that they felt she was
guilty and that they should fry the woman." However, in her brief,
defendant concedes that the media coverage was largely factually
based.
In denying defendant's motion for change of
venue, the trial court made the following findings of fact: (i)
Forsyth County is a large, urban county with approximately 260,000 in
population; (ii) defendant was not a resident of Forsyth County and,
in fact, lived in Alamance County; (iii) the majority of individuals
involved in the case also resided in Alamance County; and (iv) there
had been extensive publicity in Forsyth County and the surrounding
areas but the publicity was not inflammatory and, in fact, some was
exculpatory. The trial court concluded as a matter of law "that
defendant has failed to establish a reasonable likelihood that she
would not get a fair trial in Forsyth County and the Court in its
discretion" denied defendant's motion for change of venue.
Defendant later renewed her motion but presented no additional
supporting evidence at the motion hearing. The trial court deferred
ruling on this motion pending the filing of any additional affidavits,
articles, or recordings for consideration. Prior to trial, the court
denied the renewed motion for change of venue as well.
The statute pertaining to change of venue motions provides:
If, upon motion of the defendant, the court determines that there
exists in the county in which the prosecution is pending so great a
prejudice against the defendant that he cannot obtain a fair and
impartial trial, the court must either:
(1) Transfer
the proceeding to another county in the prosecutorial district as
defined in G.S. 7A-60 or to another county in an adjoining
prosecutorial district as defined in G.S. 7A-60, or
(2) Order a special venire under the terms of G.S. 15A-958.
The procedure for change of venue is in accordance with the provisions
of Article 3 of this Chapter, Venue.
N.C.G.S. §
15A-957 (1988). In the recent case of State v. Yelverton, 334 N.C.
532, 434 S.E.2d 183 (1993), this Court stated:
[335
NC Page 585]
The test for determining whether venue
should be changed is whether "it is reasonably likely that prospective
jurors would base their decision in the case upon pre-trial
information rather than the evidence presented at trial and would be
unable to remove from their minds any preconceived impressions they
might have formed." [ State v. Jerrett, 309 N.C. 239, 255, 307 S.E.2d
339, 347 (1983).] The burden of proving the existence of a reasonable
likelihood that he cannot receive a fair trial because of prejudice
against him in the county in which he is to be tried rests upon the
defendant. State v. Madric, 328 N.C. 223, 226, 400 S.E.2d 31, 33
(1991). "In deciding whether a defendant has met his burden of showing
prejudice, it is relevant to consider that the chosen jurors stated
that they could ignore their prior knowledge or earlier formed
opinions and decide the case solely on the evidence presented at
trial." Jerrett, 309 N.C. at 255, 307 S.E.2d at 348. The determination
of whether a defendant has carried his burden of showing that
pre-trial publicity precluded him from receiving a fair trial rests
within the trial court's sound discretion. State v. Madric, 328 N.C.
at 226, 400 S.E.2d at 33. The trial court has discretion, however,
only in exercising its sound judgment as to the weight and credibility
of the information before it, including evidence of such publicity and
jurors' averments that they were ignorant of it or could be objective
in spite of it. When the trial court concludes, based upon its sound
assessment of the information before it, that the defendant has made a
sufficient showing of prejudice, it must grant defendant's motion as a
matter of law. See State v. Abbott, 320 N.C. 475, 478, 358 S.E.2d 365,
368 (1987).
Id. at 539-40, 434 S.E.2d at 187.
From our review of the materials submitted by both defendant and the
State, we are satisfied the trial court did not err in concluding that
defendant failed to meet her burden of proving that pretrial publicity
tainted her chances of receiving a fair and impartial trial. Of the
thirty-three articles submitted, at least three contain potentially
exculpatory information. Only one of the thirty-three is potentially
inflammatory--an article entitled, "The Men In Her Life Keep Dropping
Like Flies," published in True Police Cases, and as to this one
defendant made no showing concerning the extent of its circulation.
The remaining twenty-nine articles which defendant contends caused
undue pretrial publicity are primarily
[335 NC Page
586]
factually based. The articles submitted begin
in September of 1989 and continue through August of 1990 and address
the sequence of events including the initial investigation, the
indictments, all pretrial motions, the psychiatric testing of
defendant, the behavior of defendant while in prison awaiting trial,
and the later investigation focusing on the alleged confession letter
and handwriting analyses related thereto. "This Court has consistently
held that factual news accounts regarding the commission of a crime
and the pretrial proceedings do not of themselves warrant a change of
venue." State v. Gardner, 311 N.C. 489, 498, 319 S.E.2d 591, 598
(1984), cert. denied, 469 U.S. 1230, 84 L. Ed. 2d 369, 105 S. Ct. 1232
(1985).
This Court has also noted that the potential
jurors' responses to questions on voir dire conducted to select the
jury are the best evidence of whether pretrial publicity was
prejudicial or inflammatory. State v. Richardson, 308 N.C. 470, 480,
302 S.E.2d 799, 805 (1983). "Where, as here, a jury has been selected
to try the defendant and the defendant has been tried, the defendant
must prove the existence of an opinion in the mind of a juror who
heard his case that will raise a presumption of partiality." State v.
Madric, 328 N.C. 223, 228, 400 S.E.2d 31, 35 (1991). If each juror
states unequivocally that he can set aside what he has heard
previously about a defendant's guilt and arrive at a determination
based solely on the evidence presented at trial, the trial court does
not err in refusing to grant a change of venue. State v. Soyars, 332
N.C. 47, 54, 418 S.E.2d 480, 484-85 (1992).
In the
present case, to assure a fair and impartial venire, the trial court
conducted an initial screening to eliminate potential jurors who had
already formed biases about defendant. Of the 110 potential jurors
initially screened on an individual basis by the court concerning
pretrial publicity, forty-six were excused for cause on account of
preconceived opinions of defendant's guilt or innocence determined
from media coverage. The remaining sixty-four potential jurors stated
that, notwithstanding the publicity, they could be fair and impartial
and decide the case solely on the evidence presented in court. These
sixty-four prospective jurors, having passed the initial screening
process, were subsequently questioned by the State and defendant in a
standard voir dire. Each of the twelve jurors who ultimately served on
the jury during defendant's trial stated unequivocally during the
initial screening process and again during voir dire that they had
formed no opinions about the case, that they could be fair and
impartial, and that
[335 NC Page 587]
they would base their decisions solely on the evidence presented at
trial.
Considering the entire record before us, we
conclude that defendant has not established a reasonable likelihood
that pretrial publicity prevented her from receiving a fair and
impartial trial in Forsyth County. We hold, therefore, that the trial
court did not err in denying defendant's motions for a change of
venue.
In her next assignment of error, defendant
contends the trial court erred in denying her motions for a bill of
particulars with regard to the circumstances surrounding the death of
Reid. The record discloses that on 9 October 1989, defendant filed a
motion for a bill of particulars requesting the State provide various
information, including the alleged motive for Reid's murder, the date
or dates of Reid's poisoning and the means thereof, the State's
version of the facts concerning any poisonings and any and all other
information within the possession of the District Attorney, his agents
and investigators. Subsequently, on 31 October 1989, defendant filed a
supplemental motion for a bill of particulars seeking information as
to (i) the exact cause of death, (ii) the exact date or dates as well
as the time on said dates when Reid was poisoned, (iii) the exact
geographic locations where the poison was introduced into Reid's body,
(iv) the type poison introduced into Reid's body, (v) the identity of
any persons present during the poisonings, (vi) the identity of any
persons who supplied the poison used, (vii) the specifics as to dates,
times, locations of each instance where defendant acquired any poison,
including substances containing arsenic, (viii) the identity of any
persons present when defendant acquired the poison, and (ix) a list of
aggravating circumstances on which the State would rely in seeking the
death penalty.
At the hearing on defendant's motions
the State noted that it had turned over to defendant all Reid's
medical records including the autopsy report and was in no better
position to state the cause of death other than "complications from
arsenic poisoning." The State further responded that "the victim,
Raymond Carlton Reid, received numerous doses of arsenic poisoning
during the period of time from December 31, 1985 through October 7,
1986." The State further asserted that the specific time of the
poisoning was not essential since the case involved "chronic
poisoning" and not "one particular act against Raymond Reid on a
particular day at a certain time." The trial court denied the motion
except as to
[335 NC Page 588]
items four and nine, namely, the type poison and the aggravating
circumstances to be submitted.
The purpose of a bill
of particulars pursuant to N.C.G.S. § 15A-925 "is to inform defendant
of specific occurrences intended to be investigated at trial and to
limit the course of the evidence to a particular scope of inquiry."
State v. Young, 312 N.C. 669, 676, 325 S.E.2d 181, 186 (1985).
Whether to allow or deny a motion for a bill of particulars
is generally within the discretion of the trial court and is not
subject to review "except for palpable and gross abuse thereof." State
v. McLaughlin, 286 N.C. 597, 603, 213 S.E.2d 238, 242 (1975), death
sentence vacated, 428 U.S. 903 (1976). The court must order the State
to respond to a request for a bill of particulars only when the
defendant shows that the information requested is necessary to enable
him to prepare an adequate defense. G.S. 15A-925(c). Stated otherwise,
a denial of a defendant's motion for a bill of particulars will be
held error only when it clearly appears to the appellate court that
the lack of timely access to the requested information significantly
impaired defendant's preparation and conduct of his case.
State v. Easterling, 300 N.C. 594, 601, 268 S.E.2d 800, 805 (1980).
During discovery, the State provided defense counsel with copies of
Reid's entire medical record along with the autopsy report and reports
detailing the results of the hair analyses. This information enabled
defendant to determine the time frame when Reid's body contained
elevated levels of arsenic and to analyze the victim's medical
condition at these times. At trial, the State did not attempt to
adduce any evidence indicating the timing of the poisonings with any
greater particularity than reflected in the documentation furnished to
defendant covering the period from "December 31, 1985 through October
7, 1986." The State confirmed that arsenic was the poison used, and
defendant had obtained through discovery statements allegedly made by
defendant linking her to the purchase of Anti-Ant, an arsenic-based
ant killer.
Defendant does not suggest surprise or
specify in what manner the denial of her motions for a bill of
particulars affected her trial strategy. The State introduced nothing
at trial which could have come as a surprise to the defendant
pertaining to the dates of the poisonings. She had full knowledge of
the specific occurrences
[335 NC Page 589]
to be investigated at trial, State v. Detter, 298 N.C. 604, 612, 260
S.E.2d 567, 575 (1979). On the record before this Court, defendant has
failed to show that lack of access to information "significantly
impaired [her] preparation and conduct of the case." Easterling, 300
N.C. at 601, 268 S.E.2d at 805. We hold, therefore, that the trial
court did not err in denying defendant's motions for a bill of
particulars.
Defendant next contends the trial court
erred in failing to compel the Forsyth County District Attorney to
comply with a prior agreement between defense counsel and the Alamance
County District Attorney establishing an open file policy. While the
trial for the murder of Reid was pending in Forsyth County, charges
were also pending against defendant in Alamance County for the murder
of James N. Taylor and for the assault with a deadly weapon with
intent to kill inflicting serious injury on Moore. For judicial
economy and to avoid possible prejudice created by extensive pretrial
publicity in Alamance County, Judge J.B. Allen, Jr. entered an order
transferring venue in the Alamance County cases to Forsyth County.
Prior to the order, the Alamance County District Attorney's office
agreed to an open file policy to afford "the defense the benefit of
every document and every matter and thing in the file." However, when
defendant's motion for a change of venue was granted, the District
Attorney in Forsyth County refused to comply with the previous
arrangement. Defendant argues in her brief that access to the Alamance
County District Attorney's files was
of material
importance to the Defendant, particularly in light of the expressed
intention on the part of the Forsyth County District Attorney to rely
. . . upon evidence pertaining to the facts and circumstances
surrounding the deaths of the Defendant's father and first husband, as
well as the illnesses suffered by Rev. Moore.
The
statute governing disclosure of evidence by the State provides:
(a) Except as provided in G.S. 15A-903(a), (b), (c) and (e), this
Article does not require the production of reports, memoranda, or
other internal documents made by the prosecutor, law-enforcement
officers, or other persons acting on behalf of the State in connection
with the investigation or prosecution of
[335 NC
Page 590]
the case, or of statements made by
witnesses or prospective witnesses of the State to anyone acting on
behalf of the State.
(b) Nothing in this section
prohibits a prosecutor from making voluntary disclosures in the
interest of Justice.
N.C.G.S. § 15A-904 (1988).
Defendant has made no allegations that the State failed to provide
appropriate discovery pursuant to N.C.G.S. § 15A-903. Defendant also
has failed to provide any authority for her Conclusion that the
prosecutor of one district should be bound by the open file discovery
policy of a prosecutor in another district.
The
general rule is that "the work product or investigative files of the
district attorney, law enforcement agencies, and others assisting in
preparation of the case are not open to discovery." State v. Brewer,
325 N.C. 550, 574, 386 S.E.2d 569, 582 (1989), cert. denied, 495 U.S.
951, 109 L. Ed. 2d 541, 110 S. Ct. 2215 (1990). While the prosecutor
may, in his or her discretion, proceed under an open file policy, he
or she may not be forced to do so. Similarly, the District Attorney in
one district may not be compelled to comply with an agreement
pertaining to discovery entered into by the District Attorney in
another district once venue has been changed in the case. Furthermore,
defendant has not shown any prejudice resulting from the Forsyth
District Attorney's refusal to follow an open file policy. We
conclude, therefore, that the trial court did not err in denying
defendant's motion to compel the State to abide by the prior agreement
between defendant and the Alamance County District Attorney. This
assignment of error is without merit.
Defendant next
contends the trial court erred in denying her motion for individual
sequestered voir dire of prospective jurors. In denying the motion for
individual voir dire throughout the entire selection process, the
trial court ruled it would
allow the motion to
conduct an individual voir dire on the preliminary matters of pretrial
publicity and whether or not a juror has formed an opinion about the
case. . . . We'll screen a pool of jurors for publicity; and then once
we get an acceptable number, we'll bring them in twelve at a time and
go through the regular voir dire process.
Following
the initial screening process, twelve prospective jurors were seated
in the jury box while the remaining members of the venire were
sequestered outside the courtroom until they were called to replace an
excused venireperson.
[335 NC Page 591]
A motion for individual voir dire is addressed to the sound discretion
of the trial court whose ruling will not be disturbed except for an
abuse of discretion. State v. Oliver, 302 N.C. 28, 274 S.E.2d 183
(1981), appeal after remand, 309 N.C. 326, 307 S.E.2d 304 (1983);
State v. Barfield, 298 N.C. 306, 259 S.E.2d 510 (1979), cert. denied,
448 U.S. 907, 65 L. Ed. 2d 1137, 100 S. Ct. 3050, reh'g denied, 448
U.S. 918, 65 L. Ed. 2d 1181, 101 S. Ct. 41 (1980). Defendant argues
that collective voir dire on the issues other than pretrial publicity
inhibited the candor of the jurors and permitted the prospective
jurors to become educated concerning responses which would enable them
to be excused from the panel. Thus, a "domino effect" is produced as
each juror expresses his or her aversion to the death penalty in order
to be relieved of jury duty.
As we have previously
held in Oliver and Barfield, this argument is speculative and without
merit. The record does not support defendant's contentions. The
assignment of error is overruled.
Defendant next
argues that the trial court erred in denying her pretrial motion that
prospective jurors be examined on their opinions concerning
defendant's eligibility for parole upon conviction. This issue has
previously been decided against defendant. State v. Syriani, 333 N.C.
350, 428 S.E.2d 118 (1993), cert. denied, U.S. 126 L. Ed. 2d 341, 114
S. Ct. 392 (1993), reh'g denied, U.S. , 126 L. Ed. 2d 707, 114 S. Ct.
745 (1994); State v. Roper, 328 N.C. 337, 402 S.E.2d 600, cert.
denied, U.S. , 116 L. Ed. 2d 232 (1991); State v. McNeil, 324 N.C. 33,
375 S.E.2d 909 (1989), sentence vacated on other grounds in light of
McKoy, 494 U.S. 1050, 108 L. Ed. 2d 756 (1990); State v. Robbins, 319
N.C. 465, 356 S.E.2d 279, cert. denied, 484 U.S. 918, 98 L. Ed. 2d
226, 108 S. Ct. 269 (1987).
In her next assignment
of error, defendant argues the trial court erred in conducting the
voir dire during the initial screening process, thus denying counsel
the opportunity to make a full and complete inquiry into the fitness
of the prospective jurors for service. The trial court initially
allowed the State and the defendant to screen the first thirteen
prospective jurors concerning pretrial publicity but then took over
and conducted the remainder of the screening process after several
admonitions to counsel to speed up the questioning.
In an effort to expedite this initial screening process, the trial
court directed the following questions to each prospective juror:
[335 NC Page 592]
THE COURT: Could you as best you
can put out of your mind what you might have read or heard and base
your decision solely on the evidence that you hear in the courtroom?
THE COURT: Could you be fair and impartial to this defendant and not
let anything you might have read or heard affect your decision in this
case?
THE COURT: The law requires that a juror
presume a defendant to be innocent until proven guilty beyond a
reasonable doubt. Could you do that regardless of what you've already
read or heard?
THE COURT: And as a result of what
you've read or heard, you haven't already made up your mind or formed
or expressed an opinion about the guilt or innocence of this
defendant, have you?
Based on the responses to these
questions, the prospective juror was either excused for cause upon
motion by defendant or asked to return the following day for the
continuation of the standard voir dire. A review of the entire voir
dire reveals that, even after the trial court took over the screening
process, defense counsel was permitted on several occasions to follow
up on the questions previously asked by the court. During the standard
voir dire, defense counsel was allowed to question prospective jurors
further concerning any preconceived opinions attributable to the
pretrial publicity surrounding this case. Two prospective jurors who
had passed the initial screening process were excused for cause when
additional questioning disclosed they each had formed an opinion
concerning defendant's guilt.
N.C.G.S. § 15A-1214
provides, in pertinent part:
(c) The prosecutor and
the defense counsel, or the defendant if not represented by counsel,
may personally question prospective jurors individually concerning
their fitness and competency to serve as jurors in the case to
determine whether there is a basis for a challenge for cause or
whether to exercise a peremptory challenge. The prosecution or defense
is not
[335 NC Page 593]
foreclosed from asking a question merely because the court has
previously asked the same or similar question.
Defendant has failed to show a violation of N.C.G.S. § 15A-1214(c).
The record discloses that the trial court acted merely to expedite the
initial screening process by asking questions designed to eliminate
prospective jurors with obvious opinions regarding defendant's guilt.
Once the standard voir dire was commenced, defense counsel was given
latitude to examine the prospective jurors for any latent ideas or
beliefs formed as a result of the pretrial publicity pertaining to
defendant's case. While both the State and the defendant indisputably
have the right to question prospective jurors to determine their
fitness and competency to serve, "the extent and manner of counsel's
inquiry rests within the trial court's discretion." State v. Soyars,
332 N.C. at 56, 418 S.E.2d at 486. This assignment of error is without
merit.
GUILT-INNOCENCE PHASE
Defendant next contends the trial court erred in denying defendant's
motion in limine to restrict introduction by the State of evidence
concerning Kiser and Taylor's deaths and Moore's illness. Defendant
also contends admission of this evidence was error and that the
prosecutor's closing argument based thereon should have been
disallowed and the State's requested jury instruction on similar acts
or crimes denied. On 14 September 1990, the District Attorney filed a
motion for an order allowing the admission into evidence of other
similar crimes and offenses, charged and uncharged, against the
defendant which tend to prove one or more of the purposes set forth in
Rule 404(b) of the North Carolina Rules of Evidence. Following an
extensive pretrial hearing on 5 October 1990, the trial court ruled
that the State would be allowed to present evidence of similar crimes.
The court noted it would rule at a later time on what preliminary
showing the State would be required to make for the evidence to be
admitted.
Prior to the impanelment of the jury, the
trial court heard arguments on defendant's related motion in limine to
restrict the State from commenting during its opening statement upon
the evidence of similar crimes committed by defendant against Kiser,
Taylor, and Moore. The trial court allowed defendant's motion as to
arguments concerning the arsenic poisoning of Kiser but denied the
motion, and over defendant's continuing objection, allowed opening
statements and evidence concerning the arsenic poisoning death
[335 NC Page 594]
of Taylor and the near death of
Moore. The court did not allow evidence of the levels of arsenic found
in Kiser's body.
N.C.G.S. § 8C-1, Rule 404(b)
provides:
(b) Other crimes, wrongs, or acts.
--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.
Relying on State v. Johnson, 317 N.C. 417, 347 S.E.2d 7 (1986) and
State v. Breeden, 306 N.C. 533, 293 S.E.2d 788 (1982), defendant
contends that evidence of the prior death of Taylor and the
arsenic-related illness of Moore was not admissible under Rule 404(b)
because the State did not present direct evidence linking defendant as
a participant in the prior crimes. This Court, however, rejected the
requirement of a "direct evidence link" for purposes of Rule 404(b) in
State v. Jeter, 326 N.C. 457, 389 S.E.2d 805 (1990). Distinguishing
Breeden the Court noted:
Breeden, however, preceded
the codification of N.C.R. Evid. 404(b). That rule includes no
requisite that the evidence tending to prove defendant's identity as
the perpetrator of another crime be direct evidence, exclusively.
Neither the rule nor its application indicates that examples of other
provisions--such as admissibility of evidence of other offenses to
prove motive, opportunity, intent, preparation, or plan--rest solely
upon direct evidence. E.g., State v. Price, 326 N.C. 56, 388 S.E.2d 84
(1990) (circumstantial evidence of defendant's perpetration of
"virtually identical" strangulation, proximate in time, showing
preparation, plan, knowledge or identity). Under the statutory scheme
of Rules 403 and 404, the concern that anything other than direct
evidence of a defendant's identity in a similar offense might "mislead
[the jury] and raise a legally spurious presumption of guilt" is met
instead by the balancing test required by Rule 403: the critical
inquiry regarding evidence of other offenses introduced for purposes
of showing defendant's identity as the perpetrator of the offense for
which he is being tried is not whether it is direct or circumstantial,
but whether its tendency to prove identity in the charged
[335 NC Page 595]
offense substantially outweighs
any tendency unfairly to prejudice the defendant.
Id. at 459, 389 S.E.2d at 807.
Rule 404(b) is a rule
of inclusion of relevant evidence with but one exception, that is, the
evidence must be excluded if its only probative value is to show that
defendant has the propensity or Disposition to commit an offense of
the nature of the crime charged. State v. Stager, 329 N.C. 278, 302,
406 S.E.2d 876, 890 (1991). In Stager, this Court held that the proper
test under Rule 404(b) is whether there was "substantial evidence
tending to support a reasonable finding by the jury that the defendant
committed a similar act or crime and its probative value is not
limited solely to tending to establish the defendant's propensity to
commit a crime such as the crime charged." 329 N.C. at 303-304, 406
S.E.2d at 890 (adopting the rationale of Huddleston v. United States,
485 U.S. 681, 99 L. Ed. 2d 771, 108 S. Ct. 1496 (1988) (construing
Fed. R. Evid. 404(b))). "Evidence of other offenses is admissible so
long as it is relevant to any fact or issue other than the character
of the accused." State v. Weaver, 318 N.C. 400, 403, 348 S.E.2d 791,
793 (1986).
Murder by poisoning is inherently a
surreptitious crime. Rarely are there eyewitnesses, thus,
circumstantial evidence is often the only evidence to prove the
State's case against an accused. In the present case, the State
presented extensive circumstantial evidence marking the similarities
between Reid's death and the arsenic poisoning death of Taylor and the
arsenic poisoning of Moore. Three different men either married to or
intimately involved with defendant died, or barely escaped death, from
arsenic poisoning, an unusual cause of death. In each case defendant
had motive (financial), opportunity (close relationship), and means
(knowledge of and access to Anti-Ant). In each case medical evidence
suggests that multiple doses of arsenic were administered to the
victim over a long period of time, as opposed to one large fatal dose.
In each case defendant was frequently alone with the victim in the
hospital, and medical testimony suggests that certain of defendant's
visits in which she fed the victim corresponded with an onset of
symptoms characteristic of arsenic poisoning. In each case defendant
was heard to say that she hated the victim or that the victim was
cruel or evil. In the cases of Reid and Taylor, defendant was already
seeing her next victim at the time of the arsenic assaults.
[335 NC Page 596]
Under Rule 404(b) a prior crime is
similar to the one charged if some unusual facts or particularly
similar acts are present in both which would indicate that both crimes
were committed by the same person. Stager, 329 N.C. at 304, 406 S.E.2d
at 890-91. While these similarities need not be unique or bizarre,
they must "tend to support a reasonable inference that the same person
committed both the earlier and later acts." Id. at 304, 406 S.E.2d at
891. Given the similarities between the crime charged and the other
crimes presented by the State, we conclude that the evidence of the
other offenses was relevant under Rule 404(b) as evidence tending to
prove modus operandi, motive, opportunity, intent and identity of
defendant as the perpetrator. Accordingly, the trial court did not err
in admitting the evidence and in denying defendant's motion. This
assignment of error is, also, overruled.
Defendant
next contends the trial court erred in allowing the State to introduce
testimony for the sole purpose of generating sympathy for Reid's
family. The trial court overruled defendant's objections to the
testimony of Wanda B. Moss, a registered nurse in the ICU at North
Carolina Baptist Hospital, who had cared for Reid during his final
illness. Defendant argues that Nurse Moss' testimony concerning
medical techniques and medical equipment used to treat Reid served
merely to inflame the passions of the jury and elicit feelings of
sympathy for the Reid family. Defendant also argues the testimony of
Reid's son concerning his father's appearance and mental state
reinforced the inflammatory affect of Nurse Moss' testimony. These
contentions are meritless.
Relevant evidence is
"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 (1992). "All relevant evidence is admissible" unless it is
excluded by some other constitutional or statutory exclusionary rule.
N.C.G.S. § 8C-1, Rule 402 (1992). Relevant evidence may, however, be
excluded "if its probative value is substantially outweighed by the
danger of unfair prejudice, confusion of the issues, or misleading the
jury, or by considerations of undue delay, waste of time or needless
presentation of cumulative evidence." N.C.G.S. § 8C-1, Rule 403
(1992).
The testimony of Nurse Moss was probative to
show (i) that defendant had access to Reid in the hospital, (ii) that
a correlation existed between defendant's feeding Reid and the onset
of Reid's
[335 NC Page 597]
symptoms, (iii) that Reid manifested symptoms associated with multiple
system failure incident to arsenic poisoning, namely, swelling,
rashes, skin splitting and acute paralysis, (iv) that Reid could
swallow food notwithstanding the tubes, (v) that arsenic could have
been introduced into Reid's body via the feeding tubes and (vi)
finally, that Reid suffered inordinate pain over an extended period of
time. The probative value of Nurse Moss' testimony outweighed any
unfair prejudice to defendant. "Relevant evidence will not be excluded
simply because it may tend to prejudice the opponent or excite
sympathy for the cause of the party who offers it as evidence." State
v. Eason, 328 N.C. 409, 421, 402 S.E.2d 809, 814 (1991). Furthermore,
the record discloses that similar evidence from other witnesses was
admitted without objection. "Where evidence is admitted over
objection, but the same evidence has theretofore or thereafter been
admitted without objection, the benefit of the objection is ordinarily
lost." State v. Murray, 310 N.C. 541, 551, 313 S.E.2d 523, 530 (1984).
This assignment of error is without merit.
Defendant
next argues that the trial court erred in denying her motion for
mistrial following an emotional display by Assistant District Attorney
Janet Branch during questioning of Moore as a State's witness.
Defendant asserts that Branch, after the first several questions,
"burst into tears and after some 30 seconds fled the courtroom" and
that such an emotional outburst by one of the prosecuting attorneys
made it virtually impossible for defendant to receive a fair and
impartial trial.
N.C.G.S. § 15A-1061 provides, in
relevant part:
Upon motion of a defendant or with
his concurrence the Judge may declare a mistrial at any time during
the trial. The Judge must declare a mistrial upon the defendant's
motion if there occurs during the trial an error or legal defect in
the proceedings, or conduct inside or outside the courtroom, resulting
in substantial and irreparable prejudice to the defendant's case.
The resolution of this issue lies within the sound discretion of the
trial court. State v. Blackstock, 314 N.C. 232, 333 S.E.2d 245 (1985);
State v. Calloway, 305 N.C. 747, 291 S.E.2d 622 (1982); State v.
Swift, 290 N.C. 383, 226 S.E.2d 652 (1976).
When
such an incident involving an unexpected emotional outburst occurs,
the Judge must act promptly and decisively
[335 NC
Page 598]
to restore order and to erase any bias or
prejudice which may have been aroused. Whether it is possible to
accomplish this in a particular case is a question necessarily first
addressed to the sound discretion of the trial Judge. "Not every
disruptive event occurring during the course of trial requires the
court automatically to declare a mistrial," and if in the sound
discretion of the trial Judge it is possible despite the untoward
event, to preserve defendant's basic right to receive a fair trial
before an unbiased jury, then the motion for mistrial should be
denied. On appeal, the decision of the trial Judge in this regard is
entitled to the greatest respect. He is present while the events
unfold and is in a position to know far better than the printed record
can ever reflect just how far the jury may have been influenced by the
events occurring during the trial and whether it has been possible to
erase the prejudicial effect of some emotional outburst. Therefore,
unless his ruling is clearly erroneous so as to amount to a manifest
abuse of discretion, it will not be disturbed on appeal.
Blackstock, 314 N.C. at 244, 333 S.E.2d at 253 (quoting State v.
McGuire, 297 N.C. 69, 75, 254 S.E.2d 165, 169-70, cert. denied, 444
U.S. 943, 62 L. Ed. 2d 310, 100 S. Ct. 300 (1979) (quoting State v.
Sorrells, 33 N.C. App. 374, 376-77, 235 S.E.2d 70, 72, cert. denied,
293 N.C. 257, 237 S.E.2d 539 (1977))).
Although the
transcript is silent as to what actually transpired, it appears from
arguments of counsel that once Ms. Branch became unable to continue
questioning the witness and before her tears became apparent to the
court, she immediately excused herself from the courtroom. The trial
court, upon request by the State, promptly called for a short recess
and removed the jury from the courtroom. No further proceedings took
place until the next morning when defense counsel moved for mistrial.
Following arguments from both parties, the trial court denied
defendant's motion for mistrial pursuant to N.C.G.S. § 15A-1061. In so
ruling, the trial Judge noted that
while Ms. Branch
was questioning the juror -- excuse me -- the witness that she did
apparently become somewhat emotional and unable to ask further
questions. There was no audible outburst. It was not clearly apparent
to me whether she was crying or sick or what the problem was, but she
did become unable to continue her questioning and did get up and leave
[335 NC Page 599]
the courtroom. A recess was
immediately called and the jury sent out.
When the
jurors returned to the courtroom, the trial Judge inquired whether Ms.
Branch's inability to continue her questions for a brief period of
time would in any way affect their decision in the case or their
ability to be fair and impartial. No juror responded to these
questions. Then by a show of hands, the jurors each affirmatively
acknowledged that they could still base their "decision solely on the
evidence that [they heard] from the witness stand and that nothing
that happened or transpired would in any way prevent [them] from
giving this defendant a completely fair and impartial verdict based
solely on the evidence."
From our review of the
transcript, the findings by the trial court and the responses of the
jury members, we are satisfied the Assistant District Attorney's brief
emotional display was not prejudicial to defendant. Ms. Branch removed
herself from the courtroom quickly and quietly. The jury was
immediately removed from the courtroom. In response to questions by
the court, not one juror answered that the incident would prevent him
or her from being able to give defendant a completely fair and
impartial verdict based solely on the evidence. We conclude,
therefore, that the trial court did not err in denying defendant's
motion for mistrial. This assignment of error is overruled.
Defendant next contends the trial court erred in failing to conduct a
"voir dire" examination of the District Attorney's files to determine
whether the State had provided defendant with required discovery
pursuant to N.C.G.S. § 15A-903. During cross-examination of
defendant's witness, Jean Leath, a jailer with the Alamance County
Sheriff's Department, the prosecutor questioned her recollection of an
interview between a former inmate, Terri Michelle Edwards, and
Detective Benny Bradley, an investigator with the Burlington police
department who was assigned to the case. In an effort to refresh her
recollection, the prosecutor handed Ms. Leath a written report of the
interview compiled by Detective Bradley. Defendant objected, arguing
she had not been supplied a copy of the "statement" pursuant to
N.C.G.S. § 15A-903(f)(5)(b) and Brady v. Maryland, 373 U.S. 83, 10 L.
Ed. 2d 215, 83 S. Ct. 1194 (1963). Defendant argued the report was
Brady material because it tended to show that the State's witness,
Terri Michelle Edwards, had committed perjury during her testimony the
previous week. The court,
[335 NC Page 600]
believing the document to be a "statement," ruled that the prosecutor
should provide defendant with a copy of the report. Court was recessed
until the following day.
When court convened the
next morning, the prosecutor, relying on State v. Vandiver, 321 N.C.
570, 364 S.E.2d 373 (1988), declined to produce the report because it
was not a "statement" of Terri Michelle Edwards. The term "statement"
found in N.C.G.S. § 15A-903 includes "statements signed or otherwise
adopted by the witness and 'substantially verbatim' recitals or oral
statements which are contemporaneously recorded." Vandiver, 321 N.C.
at 573, 364 S.E.2d at 375. The State argued that this document
contains merely "a narrative [written by Detective Bradley at a later
time] of what the witness had said. . . . It is not a transcription.
It is not -- has never been adopted, has never been subscribed to."
Defendant then moved for the court to examine the document in camera
to make the "determination of whether [the document] is a
transcription or a field report" pursuant to Vandiver. The trial court
sustained defendant's objection to the State's line of questioning
about Detective Bradley's notes. At this point, the prosecutor agreed
to produce the document but the trial court stated: "Well, I think
it's probably too late now. We're ready for the jury and we're ready
to get on with this trial." Defendant then renewed her earlier motion
to strike Terri Edwards' testimony and instruct the jury to disregard
it. The court denied the motion to strike.
Contrary
to defendant's assertion on appeal, defendant did not request the
court to conduct an in camera examination of the prosecutor's file to
determine if the District Attorney had provided discovery as required.
Rather defendant asked for an in camera inspection of Detective
Bradley's report to determine if it was a statement or field report.
The discovery statutes do not alter the general rule that the work
product or investigative files of the District Attorney, law
enforcement agencies, and others assisting in the preparation of the
case are not subject to discovery. State v. Brewer, 325 N.C. 550, 574,
386 S.E.2d 569, 582 (1989), cert. denied, 495 U.S. 951, 109 L. Ed. 2d
541, 110 S. Ct. 2215 (1990). The trial court is under no obligation to
ex mero motu examine the prosecutor's investigative files for
discovery compliance. This assignment of error is without merit.
In her next assignment of error, defendant argues that the trial court
erred in allowing the State to introduce items of physical
[335 NC Page 601]
evidence which had no conceivable
bearing upon the question of defendant's guilt and served merely to
inflame the passions of the jury. The objectionable items were a
bottle of Anti-Ant introduced during the testimony of Peggy Vaughn and
several medical appliances introduced during Nurse Wanda Moss'
testimony.
The State called Ms. Peggy Vaughn to
testify that she owned and operated the Atla Chemical Company in
McLeansville which had manufactured the product Anti-Ant for over ten
years. The active ingredient in Anti-Ant is arsenic. When the State
asked her to identify State's Exhibit 30 as a bottle of Anti-Ant
produced by her company, defense counsel objected and argued the lack
of relevance of the bottle of Anti-Ant to this case. The trial court
overruled the objection.
Evidence is relevant if it
has any logical tendency, however slight, to prove a fact in issue.
State v. Prevette, 317 N.C. 148, 345 S.E.2d 159 (1986). The evidence
may be excluded if the trial court determines that an unfair
prejudicial effect of the evidence substantially outweighs its
probative value. N.C.G.S. § 8C-1, Rule 403 (1992). The identification
of the bottle of Anti-Ant was not irrelevant in this case. The State's
evidence tended to prove that defendant was familiar with the product
as early as the 1970s; that the product was available in the
Burlington area at all relevant times; and that defendant actually had
a bottle of Anti-Ant in her possession during the summer of 1985,
which she showed to Moore with the request that he purchase another
bottle. The fact that the bottle of Anti-Ant was not the exact bottle
used by defendant to poison Reid is immaterial. See State v. Hunt, 297
N.C. 258, 261-62, 254 S.E.2d 591, 594-95 (1979) (holding that trial
court properly admitted bottles of rat poison purchased by the Sheriff
of Anson County from the same drugstore where nine months before
defendant had purchased the same product to show availability of the
poison at all times relevant to the murder investigation). The trial
court did not err in admitting the bottle of Anti-Ant into evidence.
During her testimony, Nurse Wanda Moss*fn1 identified the following
medical devices:
[335 NC Page 602]
Exhibit 58 -- Nasogastric tube
Exhibit 59 --
Endotracheal tube
Exhibit 60 -- Dobhoff tube
Exhibit 63 -- Swan-Ganz catheter
Exhibit 64 -- IV
fluid bag
Exhibit 65 -- Syringe
Exhibit 67 -- Suction catheter
The court allowed
each of the exhibits to be introduced into evidence for illustrative
purposes only. Defendant now argues that the admission of these
medical devices, together with detailed explanations concerning their
use and purpose, served merely to inflame the passions of the jury and
had no reasonable bearing on proving any issue in controversy. Relying
on State v. Hennis, 323 N.C. 279, 372 S.E.2d 523 (1988), defendant
argues that the inflammatory nature of the devices prejudiced the jury
and eclipsed any probative value the items may have had.
Defendant's reliance on Hennis is misplaced. In Hennis after defendant
stipulated the cause of the victim's death, the forensic pathologist
projected on the wall directly above defendant's head twenty-six
slides of the bodies taken during the autopsies and nine taken at the
scene of the crime. Thereafter, eight- by ten-inch color photographs
of the crime scene and the autopsy were presented one by one to the
members of the jury. In ruling that the "thirty-five duplicative
photographs published to the jury . . . were excessive in both their
redundancy and in the slow, silent manner of their presentation,"
Hennis, 323 N.C. at 286, 372 S.E.2d at 528, the Court found the
photographic evidence more prejudicial than probative and granted the
defendant a new trial. However, we have not extended the rationale of
Hennis to include other forms of physical evidence.*fn2
[335 NC Page 603]
In the present case the medical
devices were identified and introduced solely to illustrate the
testimony of a registered nurse involved in Reid's primary care and
treatment. The pieces of equipment were not excessively displayed and
were not presented separately to the jury for a closer inspection.
Defendant has failed to show how the single presentation of medical
devices used in the daily attempts to save Reid's life rises to the
level of excessive and repetitious use of the highly disturbing
photographs found in Hennis. The medical equipment was introduced
merely to illustrate the types of treatment received and the physical
condition of Reid while at North Carolina Baptist Hospital. As
discussed earlier, the probative value of this evidence substantially
outweighs the possibility of any unfair prejudice to defendant.
N.C.G.S. § 8C-1, Rule 403 (1992). This assignment of error is without
merit.
Defendant next contends the trial court erred
in denying her motion to dismiss all the charges on the ground that
the evidence was insufficient to warrant submission of the case to the
jury. Defendant argues that since no poison was ever positively placed
in her hands, it is mere speculation and conjecture that she was
responsible for Reid's death; and a rational trier of fact could not
justifiably find defendant guilty beyond a reasonable doubt. We
disagree.
We have previously stated the standard for
determining a motion to dismiss thusly:
When a
defendant moves for dismissal, the trial court is to 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. Earnhardt, 307 N.C. 62, 65-66, 296 S.E.2d 649, 651
(1982). Whether evidence presented constitutes substantial evidence is
a question of law for the court. Id. at 66, 296 S.E.2d at 652.
Substantial evidence is "such relevant evidence as a reasonable mind
might accept as adequate to support a Conclusion." State v. {PA}
Page 604} Smith, 300 N.C. 71, 78-79, 265 S.E.2d 164, 169 (1980). The
term "substantial evidence" simply means "that the evidence must be
existing and real, not just seeming or imaginary." State v. Powell,
299 N.C. 95, 99, 261 S.E.2d 114, 117 (1980).
State
v. Vause, 328 N.C. 231, 236, 400 S.E.2d 57, 61 (1991). In passing upon
a defendant's motion to dismiss, the court must consider the evidence
in the light most favorable to the State, giving the State the benefit
of every reasonable inference. Id. at 237, 400 S.E.2d at 61. "The test
of the sufficiency of the evidence to withstand the defendant's motion
to dismiss is the same whether the evidence is direct, circumstantial,
or both." Id. When the sufficiency of circumstantial evidence is
questioned by a motion to dismiss, the issue for the trial court is
"whether a reasonable inference of the defendant's guilt may be drawn
from the circumstances." Id.
When a murder is
committed by means of poison, premeditation and deliberation are not
elements of the crime of first-degree murder and premeditation and
deliberation are hence irrelevant. Similarly, a specific intent to
kill is not relevant to the crime of first-degree murder perpetrated
by means of poison. State v. Johnson, 317 N.C. 193, 203, 344 S.E.2d
775, 781 (1986).
A murder which is perpetrated by
means of poison is deemed to be murder in the first degree. G.S.
14-17. And when the State undertakes to prosecute for such a murder,
it has the burden of producing sufficient evidence to prove beyond a
reasonable doubt (1) that the deceased died by virtue of a criminal
act, and (2) that such criminal act was committed by the accused. S.
v. Palmer, 230 N.C. 205, 52 S.E.2d 908, and cases cited. In other
words, the State, in such case, and in this case, has the burden of
producing sufficient evidence to prove beyond a reasonable doubt that
the deceased died from poison, administered with criminal intent by
the person charged.
State v. Hendrick, 232 N.C. 447,
453, 61 S.E.2d 349, 354 (1950).
Applying these
principles to the evidence before us, we find that there is
sufficient, competent evidence to show, and from which a reasonable
juror could find beyond a reasonable doubt, that Reid died from
arsenic poisoning administered by defendant through a series of
repeated doses. The evidence showed that defendant had on at least
three occasions possessed, attempted to
[335 NC Page
605]
purchase or asked someone else to purchase an
arsenic-based ant killer. All three of the men who were either married
to or romantically involved with defendant died or nearly died as a
result of arsenic poisoning. Defendant expressed negative feelings
about Reid to her psychiatrist and in November 1985 stated that her
feelings toward him "had turned to hate." Defendant denied taking food
to Reid in the hospital, but the State presented evidence that she
did. Further the medical evidence demonstrated a correlation between
defendant's visits and the renewed onset of Reid's symptoms. Given
this evidence and the infrequency of death by arsenic poisoning, we
are satisfied "any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt." Jackson v.
Virginia, 443 U.S. 307, 319, 61 L. Ed. 2d 560, 573, 99 S. Ct. 2781
(1979), quoted in State v. Earnhardt, 307 N.C. 62, 66-67 n.1, 296
S.E.2d 649, 652 n.1 (1982). This assignment of error is overruled.
Defendant next assigns error to the trial court's refusal to give
particular jury instructions which she contends were supported by the
evidence and in conformity with the law. We find no error in the
court's failure to give the requested instructions on reasonable
doubt, identity of the perpetrator, dying declarations, and
uncontroverted evidence.
Reasonable doubt. Defendant
requested the following instruction on reasonable doubt:
When it is said that the jury must be satisfied of the Defendant's
guilt beyond a reasonable doubt, it is meant that they must be fully
satisfied, or entirely convinced, or satisfied to a moral certainty.
If, after considering, comparing and weighing all the evidence, the
minds of the jurors are left in such condition that they cannot say
they have an abiding faith, to a moral certainty, in the Defendant's
guilt, then they have a reasonable doubt.
The trial
court declined to give the requested instruction, but advised it would
use the reasonable doubt instruction in the Pattern Jury Instruction,
which in substance covered everything defendant requested. The Judge
gave the following instruction from the Pattern Jury Instruction:
Now, a reasonable doubt is a doubt based on reason and common sense
arising out of some or all of the evidence that has been presented or
the lack or insufficiency of the evidence,
[335 NC
Page 606]
as the case may be. Proof beyond a
reasonable doubt is proof that fully satisfies or entirely convinces
you of the defendant's guilt.
As defendant correctly
notes, trial courts are not required to use the exact language of a
requested instruction; but if the request is a correct statement of
the law, and supported by the evidence, the court must give the
instruction in substance. State v. Monk, 291 N.C. 37, 54, 229 S.E.2d
163, 174 (1976). The court is not required to define reasonable doubt
absent a request, but if the court does so, the instruction must be a
correct statement of the law. State v. Wells, 290 N.C. 485, 226 S.E.2d
325 (1976).
In light of this Court's recent decision
in State v. Bryant, 334 N.C. 333, 432 S.E.2d 291 (1993), finding error
under Cage v. Louisiana, 498 U.S. 39, 112 L. Ed. 2d 339, 111 S. Ct.
328 (1991), defendant's requested instruction arguably was not an
accurate statement of the law. In Bryant we said, "When a jury is
instructed that it may convict if it finds the defendant guilty to a
moral certainty it increases the possibility that a jury may convict a
person because the jury believes he is morally guilty without regard
to the sufficiency of the evidence presented at trial to prove his
guilt." 334 N.C. at 343, 432 S.E.2d at 297. The instruction in Bryant
also contained the term, "honest substantial misgiving," which was not
contained in defendant's requested instruction. However, recognizing
that this Court recently declined to find error under Cage in State v.
Patterson, N.C. , S.E.2d (No. 29A93, filed 28 January 1994), where the
trial court instructed in part that "proof beyond a reasonable doubt
means that you must be fully satisfied, entirely convinced or
satisfied to a moral certainty of the Defendant's guilt," id. at ,
S.E.2d at , slip op. at 7, we cannot say that the trial court erred in
the present case.
The pattern instruction given by
the trial court contained none of the offending Cage phrases, namely,
"grave uncertainty," "actual substantial doubt," and "moral
certainty," Cage, 498 U.S. at 40, 112 L. Ed. 2d at 341-42, or terms of
similar import. Furthermore, this instruction correctly informed the
jury that the standard for conviction beyond a reasonable doubt was
certainty based upon the sufficiency of the evidence. Accordingly, the
trial court did not err in refusing to give defendant's requested
instruction on reasonable doubt.
{PA}
Page 607} Identity of Perpetrator. Arguing that the State's evidence
raised only a suspicion of defendant's guilt which was insufficient to
convict, defendant requested the following instruction:
Where all of the evidence in a case only engenders or raises the
question, if Defendant did not commit the killing, then who did?, it
is not sufficient evidence to sustain a conviction. Evidence which
merely shows that Defendant had the opportunity to commit a criminal
offense and which raises a suspicion that she did so is not sufficient
evidence on which the jury may convict.
The court
denied the motion, noting that it would give an instruction on
circumstantial evidence which would be in substance what defendant
requested. The trial court then instructed on direct and
circumstantial evidence as follows:
Now, there are
two types of evidence from which you may find the truth as to the
facts of a case, direct and circumstantial evidence. Direct evidence
is the testimony of one who asserts actual knowledge of a fact, such
as an eyewitness. Circumstantial evidence is proof of a chain or group
of facts and circumstances indicating the guilt or the innocence of a
defendant. The law makes no distinction between the weight to be given
to either direct or circumstantial evidence. Nor is a greater degree
of certainty required of circumstantial evidence than of direct
evidence. You should weigh all the evidence in the case. After
weighing all the evidence, if you are not convinced of the guilt of
the defendant beyond a reasonable doubt, you must find her not guilty.
Defendant contends on appeal that her requested instruction taken in
conjunction with her requested instruction on reasonable doubt would
have focused the issue to be answered by the jury, namely, the
identity of the individual responsible for Reid's death.
"If a party requests an instruction which is a correct statement of
the law and is supported by the evidence, the court must give the
instruction at least in substance." State v. Warren, 327 N.C. 364,
371, 395 S.E.2d 116, 121 (1990). In this case the instruction as
given, when read in conjunction with the entire charge to the jury,
adequately links the State's burden to prove defendant's identity as
the perpetrator of the crime with the quantum of proof
[335 NC Page 608]
beyond a reasonable doubt. The
trial court did not err in refusing to instruct the jury as requested
by defendant.
Dying Declarations. Defendant also
requested the trial court to instruct the jury that "the law
recognizes that persons who believe themselves to be in danger of
imminent death are highly unlikely to lie." During the charge
conference, defense counsel argued this instruction was appropriate
since there was conflicting evidence that Garvin Thomas had written a
letter shortly before he died in which he confessed to the poisonings
of Reid and Moore. The State responded there was no evidence showing
that the letter was even written by Garvin Thomas. Defendant's own
expert refused to opine that Thomas authored the letter while the
State's expert, SBI Agent Currin, a questioned documents examiner and
forensic chemist, ruled out Thomas as the author to a ninety-nine
percent degree of certainty. Furthermore, the letter was offered into
evidence by the State not as the dying declaration of Garvin Thomas
but as evidence of defendant's "deceptive plan to throw suspicion away
from herself."
Following this exchange, the trial
court denied the request to instruct the jury on the inherent
reliability of dying declarations but noted it would "certainly let
both sides argue those positions." The court then instructed the
jurors that they were the "sole Judges of the weight to be given any
evidence. By this I mean if you decide that certain evidence is
believable, you must then determine the importance of that evidence in
light of all the other believable evidence in the case." Therefore, we
find that the jury was properly instructed on the issue of credibility
of the evidence and it was not error for the trial court to refuse to
instruct on dying declarations.
Uncontroverted
Evidence. Lastly, defendant contends the trial court erred in failing
to give the following instruction pertaining to uncontradicted
evidence:
You are not required to accept testimony,
even when uncontradicted, and even if the witness is not impeached.
You may decide, because of the witness' bearing and demeanor, or
because of the inherent improbability of the testimony, or for other
reasons sufficient to you, that such testimony is not worthy of
belief.
[335 NC Page 609]
Although
the court denied defendant's request, our review of the jury charge
reveals that the court gave the requested charge essentially verbatim.
This assignment of error is without merit.
In her
next assignment of error, defendant contends the trial court erred in
refusing to submit the lesser included offense of second-degree murder
to the jury. Defendant argues that in not submitting second-degree
murder, the court, in effect, allowed the jury to presume
premeditation and deliberation. As a result, the trial court relieved
the State of its burden of proof beyond a reasonable doubt. We
disagree.
"An intent to kill is not necessary to
constitute the crime of first-degree murder when the murder was
allegedly committed by means of poison. Any murder committed by means
of poison is automatically first-degree murder." State v. Johnson, 317
N.C. 193, 204, 344 S.E.2d 775, 782 (1986). As noted earlier
premeditation and deliberation are not elements of the crime and are,
hence, irrelevant. Id. The evidence in this case supported each and
every element of first-degree murder by poisoning. As in Johnson, the
only evidence to the contrary was defendant's denial that she had
committed the offense.
If the State's evidence is
sufficient to fully satisfy its burden of proving each element of the
greater offense and there is no evidence to negate these elements
other than the defendant's denial that he [or she] committed the
offense, the defendant is not entitled to an instruction on a lesser
offense.
317 N.C. at 205, 344 S.E.2d at 782. This
assignment of error is overruled.
SENTENCING
PROCEEDING
In her next assignment of error,
defendant contends the trial court erred in denying her motion to
strike the death penalty from consideration by the jury and to impose
a life sentence. At the hearing on the motion, defense counsel argued
that the death penalty in our state is unconstitutional for a number
of reasons--none of which included the reasonable doubt instruction
requested by defendant during the guilt-innocence phase. The trial
court denied the motion.
Now, for the first time,
defendant focuses her argument on the court's failure to give her
requested instruction on reasonable
[335 NC Page
610]
doubt during the guilt-innocence phase of the
trial as the basis of her contention that the court should strike the
death penalty from the jury's consideration. Without citing any
authority, defendant asserts the trial court's failure to give her
requested reasonable doubt instruction contributed substantially to
the action of the jury in returning a death recommendation and exposed
defendant to an arbitrary and capricious sentencing proceeding. Even
had defendant properly preserved this issue for appellate review, this
assignment of error is without merit. As we have discussed above, the
trial court did not err in failing to give defendant's requested
instruction on reasonable doubt.
Defendant further
contends under this same assignment of error that the trial court
erred in failing to explain to the jury that the standard of beyond a
reasonable doubt applies to mitigating circumstances as well as to
aggravating circumstances. This contention is an incorrect statement
of law. "The burden of proof on the existence of any mitigating
circumstance is on the defendant, and the standard of proof is by a
preponderance of the evidence." State v. Holden, 321 N.C. 125, 158,
362 S.E.2d 513, 534 (1987), cert. denied, 486 U.S. 1061, 100 L. Ed. 2d
935, 108 S. Ct. 2835 (1988). For the foregoing reasons, we overrule
this assignment of error.
Defendant next contends
the trial court erred in submitting to the jury the aggravating
circumstance that Reid's murder was committed for pecuniary gain. In
support of her motion to dismiss pecuniary gain as an aggravating
circumstance, defendant argued this circumstance should be submitted
only when the primary motivation of defendant is financial gain. This
assertion is not supported by the law. Our research reveals no
authority and the cases cited by defendant fail to support such an
argument.
Rather, "the gravamen of the pecuniary
gain aggravating circumstance is that 'the killing was for the purpose
of getting money or something of value.'" State v. Jennings, 333 N.C.
579, 621, 430 S.E.2d 188, 210 (1993) (quoting State v. Gardner, 311
N.C. 489, 513, 319 S.E.2d 591, 606 (1984), cert. denied, 469 U.S.
1230, 84 L. Ed. 2d 369, 105 S. Ct. 1232 (1985)). This aggravating
circumstance considers defendant's motive and is appropriate where the
impetus for the murder was the expectation of pecuniary gain. State v.
Taylor, 304 N.C. 249, 288-89, 283 S.E.2d 761, 785 (1981), cert.
denied, 463 U.S. 1213, 77 L. Ed. 2d 1398, 103 S. Ct. 3552, reh'g
denied, 463 U.S. 1249, 77 L. Ed. 2d 1456 (1983). For purposes of
determining the sufficiency
[335 NC Page 611]
of the evidence, the evidence must be considered in the light most
favorable to the State, and the State is entitled to every reasonable
inference to be drawn therefrom. State v. Bonney, 329 N.C. 61, 80, 405
S.E.2d 145, 156 (1991).
The evidence presented at
trial tending to show that defendant killed for financial gain
includes, but is not limited to, the following: (i) in April of 1986,
Reid visited his oldest son, Ray, and stated he had given defendant
$10,000 because she was unemployed; (ii) Reid also informed Ray he
wanted defendant to receive one-third of his estate should he die;
(iii) defendant began telling others she was Reid's fiancee and
displayed a family heirloom as an engagement ring; (iv) defendant,
during a brief period of improvement in Reid's condition, commented to
a nurse that she wanted to take care of Reid's interests and felt his
will should be changed naming her as the executrix; (v) defendant
contacted an attorney about coming to the hospital to have Reid
execute a will; (vi) defendant asked a nurse to recopy a scrap of
paper containing notes for the will; (vii) on 2 September 1986, an
attorney came to the hospital, reviewed the new will, and executed the
will for Reid since, due to his continuing state of paralysis, he was
unable to sign his name; (viii) the new will named defendant as the
executrix, gave her power of attorney and left her a one-third share
of the estate; (ix) after Reid's death, defendant took Reid's sons to
the bank to close out his account and told bank personnel that Reid
was "doing fine"; (x) defendant told Reid's sons that since she was
the executrix of their father's estate, she was entitled to one-third
of the insurance proceeds; (xi) each of Reid's sons paid her a portion
of their proceeds from the life insurance, representing her alleged
one-third share, even though Reid had never changed the beneficiary
designation to include her; (xii) Reid's sons later contacted the
attorney for the estate and learned they were not obligated to share
the insurance proceeds with defendant; (xiii) defendant refused to
return the money the boys had shared with her; and (xiv) defendant
received $45,384 from the insurance policy plus her distribution from
the estate, all as a direct result of Reid's death. In our view, this
evidence would permit a rational juror to find beyond a reasonable
doubt that Reid's murder was committed for the purpose of pecuniary
gain. Cf., e.g., State v. Barfield, 298 N.C. 306, 311-12, 259 S.E.2d
510, 519-20 (1979) (holding that evidence that defendant feared her
boyfriend would learn she had forged his name on checks and turn her
in to the law was sufficient
[335 NC Page 612]
to support the jury's finding that defendant poisoned her boyfriend
for pecuniary gain), cert. denied, 448 U.S. 907, 65 L. Ed. 2d 1137,
100 S. Ct. 3050, reh'g denied, 448 U.S. 918, 65 L. Ed. 2d 1181, 101 S.
Ct. 41 (1980). This assignment of error is without merit.
Defendant next contends the trial court erred in submitting to the
jury the aggravating circumstance that the murder of Reid was
"especially heinous, atrocious or cruel." Defendant asserts that the
rationale underlying this Court's decision in State v. Cherry, 298
N.C. 86, 257 S.E.2d 551 (1979), cert. denied, 446 U.S. 941, 64 L. Ed.
2d 796, 100 S. Ct. 2165 (1980), should be applied. In Cherry we held
that in felony-murder cases, the underlying felony could not be
submitted as an aggravating circumstance to aggravate a defendant's
sentence for first-degree murder. The reasoning of the decision is
that the underlying felony becomes an element of the capital murder;
and since a defendant convicted of felony murder would always have an
aggravating circumstance pending under N.C.G.S. § 15A-2000(e)(5), the
possibility exists that a defendant convicted of felony murder would
be more likely to be sentenced to death than a defendant convicted on
the basis of premeditation and deliberation.
In the
present case defendant argues that since arsenic has an inherent
propensity to inflict a prolonged and painful period of suffering
prior to death, the jury should not be allowed to consider the
especially heinous, atrocious, or cruel aggravating circumstance when
poison was the method used to murder. At trial defendant did not argue
this basis for not submitting the especially heinous, atrocious, or
cruel aggravating circumstance and has, therefore, failed to preserve
this issue for appeal. See State v. Robbins, 319 N.C. 465, 495-96, 356
S.E.2d 279, 297-98 (holding that where the theory had not been
presented to the trial court and was being raised for the first time
on appeal, it was not properly before the appellate court), cert.
denied, 484 U.S. 918, 98 L. Ed. 2d 226, 108 S. Ct. 269 (1987).
Nevertheless, in light of our inherent authority to suspend the rules
in order "to prevent manifest inJustice to a party," N.C. R. App. P.
2, we have elected to review defendant's argument.
The holding in Cherry is specifically confined to felony-murder cases
and the rationale of the case is not applicable to poisoning deaths.
Poisoning is the element of the offense of first-degree murder
perpetrated by means of poisoning. N.C.G.S. § 14-17 (1993). The act of
poisoning itself makes the killing first-degree murder. Id.
[335 NC Page 613]
The fact that the poison is
administered in small doses over an extended period of time thereby
causing excruciating and prolonged pain and suffering is not essential
to prove the offense. Nor is the type poison chosen, be it a slow
acting or fast acting agent, an element of the offense. Accordingly,
we decline to extend the holding in Cherry to murder by poisoning.
Having so held, we conclude that this aggravating circumstance was
properly submitted.
"While we recognize that every
murder is, at least arguably, heinous, atrocious, and cruel, we do not
believe that this subsection is intended to apply to every homicide.
By using the word 'especially' the legislature indicated that there
must be evidence that the brutality involved in the murder in question
must exceed that normally present in any killing before the jury would
be instructed upon this subsection."
State v.
Oliver, 302 N.C. 28, 59, 274 S.E.2d 183, 203 (1981) (quoting State v.
Goodman, 298 N.C. 1, 24-26, 257 S.E.2d 569, 585 (1979)). The evidence
heretofore summarized depicts a pitiless murder perpetrated over a
period of ten months during which the deceased suffered prolonged
physical agony including swelling, paralysis, skin splitting, loss of
speech, and multiple systems failure necessitating intrusion into his
body with tubes and paraphernalia. As defendant stated in her brief,
"Reid was subjected to a debilitating, lingering and painful illness
before he finally died in North Carolina Baptist Hospital." Based on
the evidence in the record before this Court, we are satisfied this
aggravating circumstance was properly submitted to the jury. This
assignment of error is overruled.
Next, defendant
contends the trial court erred by imposing a sentence of death not
supported by the evidence. Defendant's argument is based on a
contention that one or both of the aggravating circumstances were
improperly submitted to the jury. However, as we have noted, the trial
court properly submitted the aggravating circumstances that the murder
was committed for pecuniary gain and was especially heinous,
atrocious, or cruel. This assignment of error is overruled.
PROPORTIONALITY
Having found no error in
defendant's trial and capital sentencing proceeding, we are next
required by statute to review the entire record and determine (i)
whether the record supports the
[335 NC Page 614]
jury's finding the aggravating circumstances on which the court based
its sentence of death; (ii) whether the sentence was imposed under the
influence of passion, prejudice, or any other arbitrary factor; and
(iii) whether the death sentence is excessive or disproportionate to
the penalty imposed in similar cases, considering both the crime and
defendant. N.C.G.S. § 15A-2000(d)(2) (1988); State v. McCollum, 334
N.C. 208, 239, 433 S.E.2d 144, 161 (1993); State v. Robbins, 319 N.C.
465, 526, 356 S.E.2d 279, 315, cert. denied, 484 U.S. 918, 98 L. Ed.
2d 226, 108 S. Ct. 269 (1987).
The jury found in
aggravation (i) that the murder was committed for pecuniary gain,
N.C.G.S. § 15A-2000(e)(6), and (ii) that the murder was especially
heinous, atrocious, or cruel, N.C.G.S. § 15A-2000(e)(9). We have held
the evidence supports the jury's finding both of these aggravating
circumstances. Having thoroughly reviewed the record, transcripts, and
briefs submitted by the parties, we also find nothing to suggest that
the sentence of death was imposed under the influence of passion,
prejudice, or any other arbitrary factor.
Finally we
must determine "whether the death sentence in this case is excessive
or disproportionate to the penalty imposed in similar cases,
considering the crime and the defendant." State v. Williams, 308 N.C.
47, 79, 301 S.E.2d 335, 355, cert. denied, 464 U.S. 865, 78 L. Ed. 2d
177, 104 S. Ct. 202, reh'g denied, 464 U.S. 1004, 78 L. Ed. 2d 704,
104 S. Ct. 518 (1983). In conducting this proportionality review, we
compare similar cases in a pool consisting of
all
cases arising since the effective date of our capital punishment
statute, 1 June 1977, which have been tried as capital cases and
reviewed on direct appeal by this Court and in which the jury
recommended death or life imprisonment or in which the trial court
imposed life imprisonment after the jury's failure to agree upon a
sentencing recommendation within a reasonable period of time.
Id. Only cases found to be free of error in both the guilt-innocence
and penalty phases are included in the pool, but the Court is not
bound to give a citation to every case in the pool of similar cases.
State v. Syriani, 333 N.C. 350, 400, 428 S.E.2d 118, 146 (1993), cert.
denied, U.S. , 126 L. Ed. 2d 341, 114 S. Ct. 392 (1993), reh'g denied,
U.S. , 126 L. Ed. 2d 707, 114 S. Ct. 745 (1994).
[335 NC Page 615]
In essence, our task on
proportionality review is to compare the case at bar with other cases
in the pool which are roughly similar with regard to the crime and the
defendant, such as, for example, the manner in which the crime was
committed and the defendant's character, background, and physical and
mental condition.
State v. McCollum, 334 N.C. 208,
239, 433 S.E.2d 144, 161 (1993) (quoting State v. Lawson, 310 N.C.
632, 648, 314 S.E.2d 493, 503 (1984), cert. denied, 471 U.S. 1120, 86
L. Ed. 2d 267, 105 S. Ct. 2368 (1985)).
When our
review reveals that juries have consistently returned death sentences
in those similar cases, a strong basis exists for concluding that the
death sentence under consideration is not excessive or
disproportionate. However, when juries have consistently returned life
sentences in the similar cases, a strong basis exists for concluding
that the sentence under consideration is excessive or
disproportionate. State v. Syriani, 333 N.C. 350, 401, 428 S.E.2d 118,
146.
Significant characteristics of defendant's case
include (i) the murder of her fiance which the jury found to be for
pecuniary gain; (ii) skillful execution of a systematic plan,
requiring advance preparation, to poison the victim repeatedly; (iii)
substantial evidence that defendant used the same means and method to
murder her first husband and to attempt to murder her second husband;
(iv) the conscienceless and pitiless vigil of Reid's indescribable
physical agony for the ten months leading to his death which the jury
found to be especially heinous, atrocious, or cruel; and (v) knowledge
that she, and she alone, could prevent her victim's death.
No statutory mitigating circumstances were submitted to the jury. In
mitigation, the jury considered fifteen nonstatutory mitigating
circumstances but deemed only three to exist and have mitigating
value. These three included (i) upon being informed of the warrant for
her arrest, defendant peacefully submitted herself in conformance with
her duty; (ii) defendant demonstrated concern and kindness for others
in her community; and (iii) defendant provided well for the needs of
her children while they were growing up. The value of these mitigating
circumstances in assessing defendant's culpability for the crime is
minimal.
[335 NC Page 616]
This
Court has found the death penalty to be disproportionate on seven
occasions.*fn3 Only two of these seven cases involved the "especially
heinous, atrocious, or cruel" aggravating circumstance. State v.
Stokes, 319 N.C. 1, 352 S.E.2d 653 (1987); State v. Bondurant, 309
N.C. 674, 309 S.E.2d 170 (1983). These two cases are not similar to
the instant case. Of the remaining five cases, in only one, State v.
Young, 312 N.C. 669, 325 S.E.2d 181 (1985), did the jury find multiple
aggravating circumstances. In finding the death sentence in Young to
be disproportionate, this Court focused on the jury's failure to find
either that the murder was committed as part of a course of conduct
which included the commission of violence against another person or
persons or that the crime was especially heinous, atrocious, or cruel.
McCollum, 334 N.C. at 241, 433 S.E.2d at 162.
Significant dissimilarities between this case and Stokes include that
(i) defendant Stokes was convicted on a felony-murder theory;
defendant Moore was convicted of murder by poisoning; (ii) defendant
Stokes was seventeen years old; defendant Moore was fifty-three years
old; and (iii) in Stokes there was substantial mitigating evidence
that defendant suffered from impaired capacity to appreciate the
criminality of his conduct and that he was under the influence of a
mental or emotional disturbance at the time of the murder; in the
present case the jury found no statutory mitigating circumstances and
only three nonstatutory mitigating circumstances.
Significant dissimilarities between this case and Bondurant include
that (i) the jury in Bondurant found in aggravation of the murder only
that the crime was especially heinous, atrocious, or cruel; in this
case the jury also found that the murder was committed for pecuniary
gain; and (ii) defendant Bondurant immediately exhibited remorse and
concern for the victim's life by helping him get medical treatment;
whereas, defendant Moore showed no sign of remorse or regret as she
watched and anticipated the effects of the deadly poison she had
administered to the man whom she was engaged to marry. Moreover, the
facts in Bondurant
[335 NC Page 617]
"demonstrate that defendant did not coldly calculate the commission of
this crime for a long period of time as did the defendant in State v.
Barfield, 298 N.C. 306, 259 S.E.2d 510 (1979), cert. denied, 448 U.S.
907, 65 L. Ed. 2d 1137, 100 S. Ct. 3050, reh'g denied, 448 U.S. 918,
65 L. Ed. 2d 1181, 101 S. Ct. 41 (1980)." State v. Bondurant, 309 N.C.
at 693, 309 S.E.2d at 182.
The most analogous case
for comparison to this case in terms of the crime committed is State
v. Barfield, 298 N.C. 306, 259 S.E.2d 510 (1979), cert. denied, 448
U.S. 907, 65 L. Ed. 2d 1137, 100 S. Ct. 3050, reh'g denied, 448 U.S.
918, 65 L. Ed. 2d 1181, 101 S. Ct. 41 (1980).*fn4 In Barfield, the
defendant, a middle-aged woman, poisoned her boyfriend, Stewart
Taylor, by placing arsenic in his tea and beer out of fear he would
"turn her in" to law enforcement officials for forging checks to
herself on his checking account. Evidence was introduced showing that
Barfield also poisoned others to death. In aggravation, the jury found
that (i) the murder of Stewart Taylor was committed for pecuniary
gain; (ii) the murder of Stewart Taylor was committed to hinder the
enforcement of the law; and (iii) the murder was especially heinous,
atrocious, or cruel. During defendant Moore's sentencing hearing, the
jury found two of these same aggravating circumstances to exist. In
Barfield, the jury rejected the two statutory mitigating circumstances
that (i) the murder was committed while Barfield was under the
influence of mental or emotional disturbance; and (ii) Barfield's
capacity to appreciate the criminality of her conduct or to conform
her conduct to the requirements of the law was impaired. In defendant
Moore's sentencing hearing, no statutory mitigating circumstances were
even submitted to the jury. The jury found only three nonstatutory
mitigating circumstances with minimal mitigating effect.
In reviewing Barfield, this Court stated:
The manner
in which death was inflicted and the way in which defendant conducted
herself after she administered the poison to Taylor leads us to
conclude that the sentence of death is not excessive or
disproportionate considering both the crime and the defendant.
{PA}
Page 618} State v. Barfield, 298 N.C. at 355,
259 S.E.2d at 544. From our comparison of this holding with the
instant case, we, likewise, cannot say that the death sentence given
defendant Moore was excessive or disproportionate, considering both
the crimes and the defendant.
V. CONCLUSION
We hold that defendant received a fair trial and sentencing
proceeding, free from prejudicial error. The death sentence was not
imposed under the influence of passion, prejudice, or any other
arbitrary factor. The death sentence imposed is not disproportionate
to the penalty imposed in similar cases.