State v. Hembree

IN THE SUPREME COURT OF NORTH CAROLINA
No. 86A12
FILED 10 April 2015
STATE OF NORTH CAROLINA
v.
DANNY ROBBIE HEMBREE, JR.
Appeal as of right pursuant to N.C.G.S. § 7A-27(a) from a judgment imposing
a sentence of death entered by Judge Beverly T. Beal on 18 November 2011 in
Superior Court, Gaston County, upon a jury verdict finding defendant guilty of first-
degree murder. On 25 April 2013, while defendant’s direct appeal was still pending,
defendant filed a motion for appropriate relief with this Court pursuant to N.C.G.S.
§ 15A-1418. Heard in the Supreme Court on 14 October 2013.
Roy Cooper, Attorney General, by Robert C. Montgomery, Special Deputy
Attorney General, and Derrick C. Mertz, Assistant Attorney General, for the
State.
Marilyn G. Ozer and William F.W. Massengale for defendant-appellant.
HUDSON, Justice.
Defendant Danny Robbie Hembree, Jr. was indicted on 14 December 2009 for
the first-degree murders of Heather Marie Catterton, Randi Dean Saldana, and
Deborah Denise Ratchford. The trial court denied the State’s motion to join the
Catterton and Saldana trials and defendant was first tried capitally for the Catterton
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Opinion of the Court
murder, which is the matter at issue in this appeal. On 8 November 2011, the jury
found defendant guilty of first-degree murder. After a capital sentencing proceeding,
the same jury found two aggravating circumstances, both statutory. The first was
that defendant had previously been convicted of violent felonies; the second was that
Catterton’s death occurred during a “course of conduct” involving violence to others.
Despite finding fourteen mitigating circumstances, the jury recommended, and the
trial court entered, a sentence of death. Defendant now appeals his conviction and
sentence to this Court as a matter of right.
Defendant contends that the cumulative effect of several errors in the
proceedings below denied him a fair trial. We agree. “Although none of the trial
court’s errors, when considered in isolation, were necessarily sufficiently prejudicial
to require a new trial, the cumulative effect of the errors created sufficient prejudice
to deny defendant a fair trial.” State v. Canady, 355 N.C. 242, 246, 559 S.E.2d 762,
764 (2002). Accordingly, we vacate the conviction and sentence and remand for a new
trial.
FACTUAL BACKGROUND
Defendant spent the latter half of 17 October 2009 drinking alcohol and buying
and smoking crack cocaine with Heather Catterton, Catterton’s friend Sommer
Heffner, and Heffner’s boyfriend Michael Moore. At the time of her death, Heather
Catterton was seventeen years old. Defendant was dating Heather’s older sister,
Nicole. Both Heather and Nicole had sex with men in order to obtain drugs.
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In the late afternoon, defendant picked up Heffner and Moore outside a shop
on Route 321 in Gastonia, North Carolina. After stopping at defendant’s mother’s
house for approximately half an hour, the three continued to the house where
Catterton lived with her father.
Eventually, the four left Catterton’s house and drove in defendant’s car to a
store on Route 321. For the first of several times that evening, a dealer walked up to
defendant’s car and sold defendant crack cocaine through the opened car window.
After the initial purchase was made, the group went to the trailer home of one of
defendant’s friends, where they all smoked defendant’s cocaine. Over the next several
hours, the four went from place to place purchasing and using more crack cocaine,
drinking alcohol, having sex, and searching for money for more drugs and alcohol.
Eventually, with defendant driving, the others left Moore, who was still heavily
intoxicated, at a convenience store. The remaining three in the car—defendant,
Catterton, and Heffner—then drove to a local neighborhood where defendant
purchased yet more crack cocaine. Defendant dropped Heffner off at Moore’s mother’s
house at approximately 1:00 a.m. on 18 October. Catterton stayed with defendant
and was not seen alive again.
Catterton’s body was found in a culvert in York County, South Carolina several
days later on 29 October 2009, dressed in a sweatshirt and socks, but otherwise nude.
The remainder of her clothing and a crack pipe were recovered nearby two days later.
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Approximately two weeks later, on 15 November 2009, a second body was
discovered on a dirt road in York County. Two women were riding horses near King’s
Mountain National Military Park when one of them saw a “burn spot” on the side of
the road. As they investigated, one woman saw what she first believed was a
mannequin, but soon found was a body. Her friend called the police, who later
confirmed via DNA testing that this was the burned body of Randi Dean Saldana.
DEFENDANT’S CONFESSIONS
Late on 4 December 2009, defendant was arrested in Gaston County for a
series of armed robberies. Over the next several hours on 5 December, defendant was
interviewed by officers from both North and South Carolina. At least twice,
defendant was given Miranda warnings and then stated that he was willing to
answer questions from police. He confirmed repeatedly that he was not under the
influence of drugs or alcohol. While at the police station, defendant was given food,
soda, and coffee, and was allowed to rest. These interviews were recorded
electronically, transcribed, and later presented to the jury in redacted form.
Defendant also signed a written confession, reviewed that confession with police, and
directed police where to make changes in the text. During these interviews,
defendant confessed to several crimes, including the murders of Heather Catterton,
Randi Saldana, and Deborah Ratchford.
Among other accounts, defendant told police that he killed Heather Catterton
in his mother’s laundry room at approximately 4:30 in the morning on 18 October
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2009. According to these statements, after Heffner was gone, defendant told
Catterton that “her lighter was out,” but that he had more lighters in a cabinet in the
basement, and if “she’d come down there . . . we’d smoke some dope.” He then followed
her, used “some kind of cord” to strangle her from behind, and pulled her to the floor.
Next he covered her mouth and nose with his hands “for like 10 or 15 minutes,” then
put a plastic Walmart bag over her face, and finally stood on her throat with his bare
feet. Defendant told police that when these actions still failed to kill her, he punched
her in the chest and her heart stopped beating.
Defendant stated that he then stored Catterton’s body in a closet for several
hours, until he disposed of it at approximately 6:00 p.m. that day. At that point, he
wrapped the body in a blanket, drove it across the border to South Carolina, and
dumped it near a creek along Robinson Yelton Road. Defendant said he later disposed
of the blanket by throwing it in a dumpster and discarded the clothing by throwing it
away near a creek. Defendant gave conflicting statements regarding his motive for
the killing. At one point, he told police that he killed Heather Catterton for virtually
no reason, but because he “[j]ust wanted to.” At other times, he told them he killed
her to help her escape a hard life that involved prostitution, beatings, and drugs.
During these same interviews, defendant also confessed to four other murders,
two of which he said occurred in Florida. As for the other two homicides, defendant
told police that he killed Randi Saldana several weeks after killing Catterton. In
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addition, defendant confessed to the August 1992 murder of Deborah Ratchford.
Evidence about the Ratchford murder was not admitted at the Catterton trial.
Regarding the two women defendant claimed he killed in Florida, defendant
refused throughout the interviews to provide details, but eventually did provide some
information. Defendant told police that both women were white prostitutes, that he
did not recall their names, and that their bodies were buried on Merritt Island in
Brevard County. However, his statements about these murders conflicted regarding
other important details. At one point, he told police that he committed the murders
in 1992; at another, he said he killed them in 2009.
Four days later, on 9 December 2009, defendant recanted his confessions to the
Ratchford murder and the two Florida murders. At trial, defendant also denied
intentionally killing Catterton and Saldana.
PROCEDURAL HISTORY
Pretrial Proceedings
Defendant was indicted on 14 December 2009 for the murders of Heather
Catterton, Randi Saldana, and Deborah Ratchford; he entered pleas of not guilty.
The State moved to join the Catterton and Saldana murders for trial, but the trial
court denied this motion. Thus unable to try the two cases together, the State elected
to try the Catterton murder first and sought to present evidence of the Saldana and
Ratchford murders under Rule of Evidence 404(b).
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The trial court conducted two hearings, one that started on 6 July 2011, and a
second that started on 8 August 2011, to determine what evidence the State could
present under this Rule. The July hearing focused on the forecast Saldana evidence.
The trial court found several similarities between the Saldana and Catterton
murders, including that both decedents were white females who engaged in
prostitution, that both had died in defendant’s mother’s house within a “matter of
weeks,” that the physical evidence in both cases was consistent to show that both
bodies were temporarily stored in defendant’s mother’s basement closet, and that
defendant had disposed of both bodies in York County, South Carolina. Based on
these factual similarities, the trial court concluded that much of the Saldana evidence
could be presented under Rule 404(b) to show that defendant acted with a common
plan, scheme, or design.1 The trial court also rejected defendant’s objection based on
Rule of Evidence 403, and concluded that the probative value of the Saldana evidence
would not be outweighed by the risks of unfair prejudice, delay, or confusion.
The August hearing focused on the evidence the State sought to present
regarding the Ratchford murder. The trial court considered the State’s forecast and
found several important differences between the two cases, including the remoteness
in time between the occurrences, the differences in the causes of death, the dissimilar
1 The trial court specifically allowed the State to introduce several photographs
showing Saldana’s burnt body at the site where defendant had dumped it in South Carolina.
The trial court did, however, exclude others on the basis that they were merely duplicative
of those the State would be allowed to present.
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alleged motives, and the role of a third party in Ratchford’s death but not Catterton’s.
Based on these differences, the trial court concluded that evidence of the Ratchford
murder was inadmissible under both Rule 404(b) and Rule 403.
Trial
Opening arguments at the trial for Heather Catterton’s murder were delivered
on 18 October 2011, and on the same day, the State began to present its case-in-chief.
The State’s first witnesses testified about the discovery of Catterton’s body and the
events leading up to her death, and the State focused throughout the trial on the
substance of defendant’s confessions. By the second day of trial, however, over
defendant’s continuing objection, the State began also to focus heavily on evidence
regarding the death of Randi Saldana. For example, on the second day of trial, a
witness described finding the burnt body of Randi Saldana and testifying that it “felt
like human flesh.” The day after that, the State called Saldana’s sister to testify
about Saldana’s good character and their close relationship. In all, the State
presented twelve witnesses who testified about the Saldana death; this presentation
spanned seven of the eight days on which the State presented evidence.
The State concedes that “[i]t is true that there was more evidence presented
concerning the Saldana murder than there was for the murder of Heather
Catterton—at least in part because there simply existed more evidence about the
Saldana murder.” The State argues that no authority prohibits it from “presenting
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Rule 404(b) evidence just because that evidence is worse for defendant than the
evidence of the offense for which he is being tried.”
Throughout the trial, the State presented at least sixteen photos of Randi
Saldana, including more than a dozen photographs of Saldana’s charred corpse. The
trial court did, however, give repeated instructions to consider the Saldana evidence
only insofar as it showed a common plan, scheme, or design involving both deaths.
The State also presented the testimony of medical experts. Anna Schandl,
M.D., testified that she had conducted Catterton’s autopsy, and that Catterton tested
positive for an amount of cocaine which could potentially have been lethal. She also
testified that there was no bruising or external trauma around Catterton’s neck, but
stated that this finding did not necessarily rule out defendant’s account that he had
strangled Catterton with a cord, pulled her to the floor, stood on her neck for several
minutes, and suffocated her with a plastic bag. Ultimately, in her final autopsy
report, Dr. Schandl indicated that the cause of Catterton’s death was “undetermined.”
In contrast with that of the Catterton experts, the testimony regarding the
cause of Randi Saldana’s death was more certain. The State’s sole rebuttal witness
was Nicholas Batalis, M.D., who conducted the autopsy on Randi Saldana and
described the condition of Saldana’s body in some detail, including multiple bruises
on her neck and a fracture of her thyroid cartilage. In line with defendant’s
confession, Dr. Batalis concluded that Saldana had been killed by strangulation.
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The defense evidence focused on discrediting the confessions defendant made
on 5 December 2009 and then recanted. Defendant took the stand in his own defense
to provide a different account of the night Catterton died. According to defendant,
once Sommer Heffner left that evening, he and Catterton continued to smoke crack
cocaine and have sex at his mother’s house. Defendant claimed that they then went
to bed, and Catterton was dead when he woke in the morning. Regarding Randi
Saldana, he testified that he was performing oral sex on Saldana while squeezing her
throat with one hand to intensify her orgasm. He claimed that her death accidentally
resulted from his attempt at erotic asphyxiation.
Defendant also attempted to explain why he would falsely confess to multiple
offenses, including several murders. Defendant testified that he had been arrested
for a series of armed robberies, and that with his previous record, he could face a
sentence of almost one hundred years. Defendant claimed that he believed confessing
to the other offenses would grant him leverage with prosecutors on the robbery
charges, but that he would not be convicted based on his (allegedly false) confessions
once the police actually investigated his claims. In short, defendant testified that he
falsely confessed in an attempt to “play[ ] the system.”
The defense also presented evidence to contradict defendant’s earlier claim
that he had killed two women in Florida in either 1992 or 2009 and buried their bodies
on Merritt Island. Detective Hensley testified that he relayed that information to
authorities in Florida, who came to Gastonia to speak with defendant. A Florida
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detective testified, however, that no bodies were ever found at that location, that no
unsolved murders matched the crimes defendant described, and that police were
unable to verify many other details of defendant’s statement.
Defense evidence also included the testimony of two medical experts regarding
Catterton’s cause of death. Forensic toxicologist Andrew Mason, Ph.D., testified that
he had reviewed Catterton’s toxicology reports and autopsy findings, and that the
concentrations of cocaine and cocaine metabolites in her blood might have been, but
were not necessarily, the cause of her death. In contrast, defense expert Donald
Jason, M.D., a licensed medical doctor and associate professor, was the only expert at
trial who offered a conclusion regarding the most likely cause of Heather Catterton’s
death. He reviewed the autopsy materials prepared by the State’s expert, Dr.
Schandl, and similarly concluded that Catterton’s body had no significant bruises or
wounds. He noted that Catterton “did not have any trauma that would be consistent
with being cause of death” and concluded “that the most probable cause of death is
cocaine toxicity.”
Both the State and the defense offered closing arguments on 7 November 2011.
The defense emphasized the lack of certainty regarding the cause of Heather
Catterton’s death and the inconsistencies between the physical evidence and
defendant’s 5 December 2009 statements to police. The State emphasized the
substance of defendant’s confessions, the fact that forensic evidence did not preclude
defendant’s claim that he had suffocated Catterton with a plastic shopping bag,
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defendant’s history of manipulating others, and that two women, Catterton and
Saldana, had been killed.
The next day, 8 November 2011, the jury found defendant guilty of first-degree
murder. On 18 November, after a capital sentencing proceeding, the jury found two
aggravating circumstances and fourteen mitigating circumstances, and
recommended a sentence of death, which the court imposed. Defendant appealed to
this Court.
ANALYSIS
Defendant argues that the trial court committed several errors, the cumulative
effect of which deprived him of a fair trial. We agree. We hold that the trial court
committed three errors: first, by allowing admission of an excessive amount of the
Saldana murder evidence under Evidence Rule 404(b), including more than a dozen
photographs of her burnt body; second, by allowing Saldana’s sister, Shellie Nations,
to testify about Saldana’s good character; and third, by allowing the prosecution to
argue without basis to the jury that defense counsel had in effect suborned perjury.
In light of the cumulative effect of these three errors, “we are unable to conclude that
defendant was not unfairly prejudiced.” State v. Rogers, 355 N.C. 420, 465, 562
S.E.2d 859, 886 (2002) (citation omitted). Accordingly, we vacate the conviction and
sentence, and remand to the trial court for a new trial.
The Saldana Evidence
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Defendant argues that the trial court erred by admitting too much evidence of
the Saldana murder, including evidence that showed only differences between the
offenses, in violation of Rules of Evidence 404(b) and 403. Our standard of review for
this issue contemplates a two-part inquiry:
[W]hen analyzing rulings applying Rules 404(b) and 403,
we conduct distinct inquiries with different standards of
review. When the trial court has made findings of fact and
conclusions of law to support its 404(b) ruling, as it did
here, we look to whether the evidence supports the findings
and whether the findings support the conclusions. We
review de novo the legal conclusion that the evidence is, or
is not, within the coverage of Rule 404(b). We then review
the trial court’s Rule 403 determination for abuse of
discretion.
State v. Beckelheimer, 366 N.C. 127, 130, 726 S.E.2d 156, 159 (2012).
Rule 404(b) provides in relevant part that
[e]vidence of other crimes, wrongs, or acts is not admissible
to prove the character of a person in order to show that he
acted in conformity therewith. It may, however, be
admissible for other purposes, such as proof of motive,
opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake, entrapment or accident.
N.C.G.S. § 8C-1, Rule 404(b) (2014). Because this Rule disallows the introduction of
evidence only when the evidence would be used for a specific forbidden purpose, we
have long described Rule 404(b) as a “ ‘general rule of inclusion.’ ” State v. Al-
Bayyinah, 356 N.C. 150, 154, 567 S.E.2d 120, 122 (2002) (quoting State v. Coffey, 326
N.C. 268, 278, 389 S.E.2d 48, 54 (1990) (emphasis omitted)). In general, Rule 404(b)
allows the admission of any evidence, “ ‘as long as it is relevant to any fact or issue
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other than the defendant’s propensity to commit the crime.’ ” Beckelheimer, 366 N.C.
at 130, 726 S.E.2d at 159 (quoting State v. White, 340 N.C. 264, 284, 457 S.E.2d 841,
852-53, cert. denied, 516 U.S. 994, 116 S. Ct. 530, 133 L. Ed. 2d 436 (1995)). However,
this Rule is “constrained by the requirements of similarity and temporal proximity;”
accordingly, while similarities between the charged crime and the 404(b) crime need
not “rise to the level of the unique and bizarre,” there must be “some unusual facts
present in both crimes that would indicate that the same person committed them.”
Id. at 131, 726 S.E.2d at 159 (citations and internal quotation marks omitted).
Here, the trial court determined, and repeatedly instructed the jury, that the
evidence of the Saldana murder could be considered only for the limited purpose of
determining whether “there existed in the mind of the defendant a plan, scheme,
system, or design involving the crime charged in this case,” the Catterton murder.
Therefore, under our standard of review, we must examine whether the findings of
fact supported the legal conclusion to admit the evidence for this purpose, and
whether those findings of fact were themselves supported by competent evidence.
At a two-day hearing conducted in July 2011, the trial court received evidence
and heard arguments regarding the admissibility of the Saldana evidence at trial. In
addition to police reports, the trial court had before it the autopsy reports for
Catterton and Saldana, as well as defendant’s statements to the police. At the end of
the hearing, the trial court made the following findings of fact orally:
The defendant is charged in this case with the murder of
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Heather Catterton. This offense is alleged to have occurred
on or about October 17th or 18th, 2009. The defendant made
a statement to law enforcement officers on December 5,
2009 and made statements about this matter at various
times and places from that date for several days thereafter.
. . . The defendant’s statements include multiple
statements about the killing of Randi Saldana. The death
of Randi Saldana is placed as having occurred on or about
November 11, 2009, a matter of weeks after the homicide
which is the subject of this case. In his . . . written
statement, the defendant said, “I also killed Randi
Saldana. I killed her because it was business. I was killing
two birds with one stone.”
The physical evidence accumulated before and after
the statement of the defendant is substantial. The killings
occurred in the residence of the defendant. The physical
evidence is consistent to show that the bodies of each of
these women was temporarily placed in a cabinet or closet
in the house in the basement area of [defendant’s mother’s
house]. . . .
Both bodies were subsequently removed by the
defendant and taken to South Carolina and disposed of in
remote locations and clothing of the two individuals was
disposed of by being deposited in other remote locations.
Both bodies were found at the same place at which the
evidence tends to show the defendant placed or disposed of
the bodies. The Catterton remains were found on October
29, 2009 in York County. The Saldana remains were found
November 15, 2009 in York County. . . .
Autopsies were conducted by the Medical University
of South Carolina in each case. In regard to the Catterton
autopsy, the cause of death was undetermined by the
examining physicians and the manner of death was
undetermined as reflected in that report. . . .
In regard to the Saldana [case], that autopsy which
was performed 11-17-09, results in a finding of [cause of]
death of strangulation, manner of death homicide.
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Internal and external examination results are part of that
report. Final diagnosis is strangulation. Fracture of the
thyroid cartilage is indicated and soft tissue injury to the
neck. The Saldana body was burned before it was
discovered.
The defendant described his actions in regard to the
Catterton killing and her actions in the house. As to both
he describes the drug use and the communal use of drugs
by the defendant and each of the victims and others before
the killings.
....
As to the victims, they are both white females. They
both apparently were prostitutes. Each of them was an
acquaintance of the defendant, not a stranger. Both of
them were acquaintances with whom he had shared sexual
relationships and drug use along with others. In regard to
what is involved, the what is the . . . homicide in both cases.
...
The proximity in time of these cases is close. It is
not a temporal extended time, a matter of weeks. Why, in
regard to motive, there does seem to be a similarity in
regard to what the defendant says his reasons were and
that was because of his contention they were having sex
with black men. . . . .
The evidence apart from the autopsies is sufficient
to show a method employed by the defendant. . . . Both
would be manual violence as opposed to a blade or a
firearm or a drowning. Both of them involve a manual
killing. The similarities in the pattern of events on each
occasion shows a plan or design.
Based on these findings, the trial court concluded that the evidence was admissible
under Rule 404(b). The trial court emphasized: “I want to be clear about this. The
same similarities and the method of disposing of the bodies and garments all show
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the plan, design and scheme aspect of this rule.”
We hold that the trial court properly admitted evidence of the Saldana murder
under Rule 404(b). Competent evidence—particularly the autopsy reports and
defendant’s 5 December 2009 statement to the police—supported the trial court’s oral
findings of fact, and these findings of fact supported the trial court’s conclusion that
the Saldana evidence could be used to show a common plan or design. Because this
evidence was probative of more than defendant’s propensity to commit murder,
namely that the Catterton murder was part of a common plan, design, or course of
conduct, we conclude that Rule 404(b) did not preclude the admission of evidence
concerning the Saldana murder.
This conclusion, however, is not the end of our inquiry. Though Rule 404(b) is
a “general rule of inclusion,” Al-Bayyinah, 356 N.C. at 154, 567 S.E.2d at 122, Rule
403 supplies an independent limitation on the ability of trial courts to admit evidence
under that Rule. Rule 403 provides in full:
Although relevant, evidence may 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 (2014). Once a trial court has weighed the likely probative
and prejudicial value of evidence a party has sought to admit over an objection, we
review only for abuse of discretion. Beckelheimer, 366 N.C. at 130, 726 S.E.2d at 159.
This standard is deferential, and we will disturb the trial court’s decision only when
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it crosses the line from potentially reasoned to necessarily arbitrary. See, e.g., State
v. Hyatt, 355 N.C. 642, 662, 566 S.E.2d 61, 74-75 (2002), cert. denied, 537 U.S. 1133,
123 S. Ct. 916, 154 L. Ed. 2d 823 (2003).
In conducting this analysis, we note the particular dangers presented by Rule
404(b) evidence. The United States Supreme Court long ago described how such
evidence can be misused, especially by allowing the jury to convict the accused for a
crime not actually before it. See Michelson v. United States, 335 U.S. 469, 475-76, 69
S. Ct. 213, 218, 93 L. Ed. 168, 174 (1948) (“The inquiry [into character] is not rejected
because character is irrelevant; on the contrary, it is said to weigh too much with the
jury and to so overpersuade them as to prejudge one with a bad general record and
deny him a fair opportunity to defend against a particular charge.” (footnote
omitted)). Our own, more recent decisions have recognized the same risks. See, e.g.,
State v. Carpenter, 361 N.C. 382, 387-88, 646 S.E.2d 105, 109 (2007) (“When evidence
of a prior crime is introduced, the natural and inevitable tendency for a judge or jury
is to give excessive weight to the vicious record of crime thus exhibited and either to
allow it to bear too strongly on the present charge or to take the proof of it as justifying
a condemnation, irrespective of the accused’s guilt of the present charge.” (citations
and internal quotation marks omitted)). Accordingly, because of this “ ‘dangerous
tendency . . . to mislead and raise a legally spurious presumption of guilt’ ” we have
required that such evidence “ ‘be subjected to strict scrutiny by the courts.’ ” Al-
Bayyinah, 356 N.C. at 154, 567 S.E.2d at 122 (quoting State v. Johnson, 317 N.C. 417,
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430, 347 S.E.2d 7, 15 (1986)). Here, those dangers were particularly acute, and so
our scrutiny in this capital case must be particularly careful.
Defendant does not argue that he was not present when Heather Catterton
died, nor does he contest that he hid, then later disposed of, her body and that of
Randi Saldana. The principal contested issue of fact at trial was the cause of Heather
Catterton’s death. None of the expert witnesses was able definitively to determine
the cause of her death. None identified any internal or external trauma to Catterton’s
chest or neck; in contrast, three testified that her death may have resulted from
cocaine toxicity. Indeed, one defense expert specifically concluded that Catterton “did
not have any trauma that would be consistent with being [the] cause of death” and
that “the most probable cause of death is cocaine toxicity.” Given this forensic
uncertainty, the Saldana evidence likely weighed heavily in the jury’s deliberations.
We also note the nature and extent of the evidence presented concerning the
Saldana murder. The State began to present this evidence on only the second day of
the guilt-innocence phase of the trial and continued to present it on seven of the eight
days it offered evidence, up to the day before closing arguments. In addition, because
Saldana’s body had been burned while Catterton’s had not, much of this evidence
concerned a key difference between the two deaths, rather than a similarity as
anticipated under Rule 404(b). One of the State’s first witnesses testified what it felt
like to touch Saldana’s body, and the jury viewed over a dozen photographs depicting
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Saldana’s scorched remains. Our own review of the photographs confirms their stark
and unsettling nature.
Our review has uncovered no North Carolina case in which it is clear that the
State relied so extensively, both in its case-in-chief and in rebuttal, on Rule 404(b)
evidence about a victim for whose murder the accused was not currently being tried.
To the contrary, we have granted relief when the circumstances reveal a distinct risk
that the jury may have been led to convict based on evidence of an offense not then
before it. In State v. Al-Bayyinah, for example, we awarded a new trial in a capital
case when Rule 404(b) evidence focused on earlier robberies “that were factually
dissimilar to the robbery and murder charged” in that case. 356 N.C. at 155, 567
S.E.2d at 123 (citing State v. Lynch, 334 N.C. 402, 412, 432 S.E.2d 349, 354 (1993)).
But see generally State v. Peterson, 361 N.C. 587, 652 S.E.2d 216 (2007) (allowing a
large amount of 404(b) evidence), cert. denied, 552 U.S. 1271, 128 S. Ct. 1682, 170 L.
Ed. 2d 377 (2008); State v. Stager, 329 N.C. 278, 406 S.E.2d 876 (1991) (same). We
have also identified cases addressing similar scenarios in other states, and we find
them instructive.
Most similar is the 2000 decision in Flowers v. State, a capital case from
Mississippi. See generally 773 So. 2d 309 (Miss. 2000). There, the defendant was on
trial for one murder, although he had also been charged with three other homicides
likely committed at the same time. See id. at 313. As here, a motion to consolidate
the cases for trial was denied. Id. And, as here, the State sought to use Rule 404(b)
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Opinion of the Court
to introduce copious evidence of the other three murders, including graphic
photographic evidence, effectively proceeding as if the motion to try the offenses
together had been allowed. See id. at 318-21. Based on this error, and its cumulative
effect when considered with other errors, the Mississippi Supreme Court reversed the
trial court’s judgment and remanded for a new trial. Id. at 317, 334. In doing so, the
appellate court remarked with palpable derision on the State’s tactic of using
evidence of an incendiary separate offense to arouse the passions of the jury:
It is the “necessity” by the State to use the other
evidence of three killings in order to tell a coherent story
that is the key to its admissibility. The case at bar is not
one of those cases so interconnected that mention of the
other three murders is necessary to tell the whole story.
Certainly it is not to the extent employed by the
prosecution in the case at bar. Here, however, a pattern of
trial tactic commenced at the beginning of trial and was
continued by the prosecutor throughout the guilt phase of
the proceedings including closing argument. If the
evidence relating to the other three murders was relevant
to any one of the acceptable purposes listed in Miss. R.
Evid. 404(b), a description of the crime scene may have
been helpful. However, the numerous additional
descriptions of the other victims and photographs could do
nothing but inflame the jury.
Id. at 324. If anything, the differences between Catterton’s death and Saldana’s
death, and the lack of an obvious connection between the offenses, render the
evidence of Saldana’s death even less “necessary” than the 404(b) evidence in Flowers.
Accordingly, the concerns in Flowers about inflaming the jury pertain here as well.
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Opinion of the Court
In this context—in which Heather Catterton’s cause of death was uncertain,
and the Rule 404(b) evidence was so emotionally charged—we conclude that the
decision to allow the State to present so much evidence about the Saldana murder
stretched beyond the trial court’s broad discretion. While the State possesses
considerable leeway in presenting even “gory, gruesome, horrible or revolting”
photographs of homicide victims, State v. Chapman, 359 N.C. 328, 350, 611 S.E.2d
794, 812 (2005) (citations and quotation marks omitted), that leeway ends where the
additional photographs “add nothing in the way of probative value but tend solely to
inflame the jurors,” State v. Roache, 358 N.C. 243, 285, 595 S.E.2d 381, 409 (2004)
(citations and quotation marks omitted). Accordingly, we hold that the trial court
erred in allowing the admission of an excessive amount of evidence about Saldana,
particularly photographic evidence, when the probative value of the sum total of that
evidence was substantially outweighed by the risks that it would confuse the issues
before the jury, or lead the jury to convict defendant based on evidence of a crime not
actually before it.
Shellie Nations’s Testimony
The second relevant error concerns the testimony of Randi Saldana’s sister,
Shellie Nations. More specifically, defendant argues that the trial court erred by
allowing Nations to testify, over defendant’s objection, about Randi Saldana’s good
character. Defendant contends that this testimony was inadmissible because it was
irrelevant to the crime charged—the murder of Heather Catterton—and because any
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Opinion of the Court
probative value the testimony might have had was substantially outweighed by the
danger of unfair prejudice. We agree.
It is axiomatic that only relevant evidence is admissible at trial, while
irrelevant evidence is inadmissible. See, e.g., State v. Berry, 356 N.C. 490, 504, 573
S.E.2d 132, 143 (2002). Rule 401 defines relevant evidence as “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 (2014). Evidence of a victim’s character, or of the effect of
the victim’s death on others, is only rarely relevant when making a determination of
guilt. See State v. Maske, 358 N.C. 40, 50, 591 S.E.2d 521, 528 (2004) (“[U]nless
admissible under Rule 404(a)(2). . . . character evidence of a victim is usually
irrelevant during the guilt-innocence portion of a capital trial, as is victim-impact
evidence.” (citing N.C. R. Civ. P. 404(a)(2), State v. Abraham, 338 N.C. 315, 352-53,
451 S.E.2d 131, 151 (1994), and State v. Oliver, 309 N.C. 326, 360, 307 S.E.2d 304,
326 (1983))). It follows a fortiori that evidence concerning the character of a victim
of a separate crime will be relevant in even fewer circumstances. Furthermore, even
when evidence is admissible because it satisfies the low bar of logical relevance, that
evidence must still be excluded when its probative value is substantially outweighed
by the danger of unfair prejudice. N.C.G.S. § 8C-1, Rule 403. Here, the trial
court admitted, over defendant’s objection, Shelly Nations’s testimony about
Saldana’s good character. Nations testified during direct examination as follows:
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Opinion of the Court
[by the State] Q. Do you know someone or did you
know someone by the name of Randi Saldana?
A. Yes, ma’am.
Q. And what was the relationship that you had with
Miss Saldana?
A. That was my sister.
Q. Was she a younger sister or was an older sister?
A. She was a year younger.
Q. A year younger? Describe what Randi was like.
A. She was very free spirit, charismatic. She had a
heart of gold.
[Defense counsel]: I’m going to object, your Honor.
[The trial court then overruled the objection but offered a
limiting instruction.]
....
[by the State] Q. Okay. You indicated that she was
charismatic and had a heart of gold.
A. Yeah. Randi, she was the type of person if you
asked her for something and you needed it, the way we
were raised is you gave it, you know, and you gave it with
good intentions. She never really wanted to hurt anyone
with the intentions of hurting them, you know. She was
the type of person if she knew that—if she had known that
she had hurt your feelings, she would come back and she
would freely apologize and admit to her wrong in that, you
know, for the most part. Randi and I were raised together
our whole lives and I can’t even count on one hand the
arguments my sister and I had. She was just the type of
person, she would express her feelings, and, you know, she
just—she was a good person.
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Opinion of the Court
We hold that the trial court erred by allowing this testimony. It is difficult to
discern any probative value that testimony about Randi Saldana’s good character
could have had to the issue of whether defendant caused the death of Heather
Catterton. See Abraham, 338 N.C. at 352-53, 451 S.E.2d at 151 (“ ‘Character evidence
is of slight probative value and may be very prejudicial. It tends to distract the trier
of fact from the main question of what actually happened on the particular occasion.
It subtly permits the trier of fact to reward the good man and to punish the bad man
because of their respective characters despite what the evidence in the case shows
actually happened.’ ” (quoting N.C. R. Evid. 404 official commentary)). The State
appears to concede this point and argues instead that any error was harmless because
“[t]he bottom line is that there is little likelihood that Nations’ testimony concerning
Saldana’s character made any difference in this case whatsoever.” In light of this
complete lack of relevance, we hold that the trial court should not have allowed this
evidence over defendant’s objection based on Rule 403.
Improper Statements Made During the State’s Closing Argument
The third relevant error concerns statements made by the State during closing
arguments at the guilt-innocence phase of the trial. More specifically, defendant
argues that the State made multiple improper statements, including several that
impermissibly accused defense counsel of suborning perjury. We agree.
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Opinion of the Court
During closing arguments, prosecutors are barred by statute from “becom[ing]
abusive, inject[ing their] personal experiences, [and] express[ing their] personal
belief as to the truth or falsity of the evidence or as to the guilt or innocence of the
defendant.” N.C.G.S. § 15A-1230 (2014). Within those confines, however, we have
long recognized that “ ‘generally, prosecutors are given wide latitude in the scope of
their argument and may argue to the jury the law, the facts in evidence, and all
reasonable inferences drawn therefrom.’ ” State v. Phillips, 365 N.C. 103, 135, 711
S.E.2d 122, 145 (2011) (brackets omitted) (quoting State v. Goss, 361 N.C. 610, 626,
651 S.E.2d 867, 877 (2007), cert. denied, 555 U.S. 835, 129 S. Ct. 59, 172 L. Ed. 2d 58(2008)) (internal quotation marks omitted), cert. denied, __ U.S. __, 132 S. Ct. 1541,
182 L. Ed. 2d 176 (2012). This latitude is reflected in our deferential standards of
review. When opposing counsel objects during a closing argument, we review for
abuse of discretion. State v. Walters, 357 N.C. 68, 101, 588 S.E.2d 344, 364, cert.
denied, 540 U.S. 971, 124 S. Ct. 442, 157 L. Ed. 2d 320 (2003). When there is no
objection, we review for gross impropriety. Phillips, 365 N.C. at 143, 711 S.E.2d at
150. In all cases, we view the remarks “in context and in light of the overall factual
circumstances to which they refer.” Id. at 135, 711 S.E.2d at 145 (citations and
quotation marks omitted).
Judicial deference, however, is not unlimited. In particular, “we have found
grossly improper the practice of flatly calling a witness or opposing counsel a liar
when there has been no evidence to support the allegation.” Rogers, 355 N.C. at 462,
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Opinion of the Court
562 S.E.2d at 885 (citations omitted); see also State v. Locklear, 294 N.C. 210, 217,
241 S.E.2d 65, 70 (1978) (“It is improper for a lawyer to assert his opinion that a
witness is lying. He can argue to the jury that they should not believe a witness, but
he should not call him a liar.” (citations and internal quotation marks omitted)).
Despite this prohibition, several statements made during the course of the State’s
closing argument had just this effect.
Shortly after beginning its closing argument, the State suggested that
defendant had manipulated his attorneys into misleading the jury. The prosecutor
argued:
He [defendant] has manipulated his attorneys. Don’t let
him manipulate you. Don’t let him work the system again.
. . . [Y]ou heard video confessions of how he killed Heather
Catterton and Randi Saldana. And then the defense
started, they started putting up these smoke screens,
started to try to confuse you.
While this particular statement was borderline, and may have referred to defendant
himself rather than defense counsel, the intimations became more direct as the
argument progressed. Just a few minutes later, the State argued:
[A]t no point, no point in the last 18 months since this has
been pending trial, has he ever recanted killing Heather or
Randi. Never. Not until two years later when he could look
at everything, when he can study the evidence, when he
can get legal advi[c]e from his attorneys, does he come up
with this elaborate tale as to what took place.
Almost immediately, the State emphasized this point a second time:
Two years later, after he gives all these confessions
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STATE V. HEMBREE
Opinion of the Court
to the police and says exactly how he killed Heather and
Randi Saldana . . . the defense starts. The defendant, along
with his two attorneys, come together to try and create
some sort of story.
In response to this third statement, defense counsel objected and the trial court
sustained the objection; however, the trial judge offered no corrective instruction, but
instead told the jury only that he would “sustain the objection as to the argument and
odd comment.” Despite this ruling and judicial admonition, the prosecutor continued
in a similar vein. In conclusion, the prosecutor argued:
Think back to December 5th of 2009 when he knew
nothing, when he had no legal advice; consistently,
voluntarily told the police everything, and it was consistent
with what the evidence showed. . . . For hours you watched
this man confess to killing Heather and Randi Saldana,
and now, after 18 months to two years, the defense begins
and they put up smoke screens and they tried to confuse
you? . . . We’ve got two women dead, and he killed them. I
ask that you find the defendant guilty, first-degree murder,
of killing Heather Catterton. Thank you.
In context, the import of these arguments is clear: The State argued to the
jury, not only that defendant had confessed truly and recanted falsely, but that he
had lied on the stand in cooperation with defense counsel. Whether or not defendant
committed perjury, there was no evidence showing that he had done so at the behest
of his attorneys. Accordingly, we hold that the prosecutor’s statements to this effect
were grossly improper, and the trial court erred by failing to intervene ex mero motu.
CONCLUSION
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Opinion of the Court
Defendant has identified three errors that occurred during his capital trial for
the murder of Heather Catterton. Regardless of whether any single error would have
been prejudicial in isolation, we conclude that the cumulative effect of these three
errors deprived defendant of a fair trial. Accordingly, we vacate defendant’s
conviction and sentence, and remand for a new trial. Because of our disposition of
this case, we conclude it is unnecessary to address defendant’s motion for appropriate
relief; we therefore dismiss defendant’s MAR as moot.
NEW TRIAL.
Justice ERVIN did not participate in the consideration or decision of this
case.
Justice NEWBY dissenting.
At trial the State presented not one, but two, videotaped confessions by
defendant, a third video of defendant at the crime scene explaining the details of the
murder to police, and an abundance of corroborating physical evidence to support the
confessions. In court defendant recanted his prior statements and testified that he
fabricated the murder confessions to avoid longer prison sentences on several robbery
charges. After hearing evidence and weighing the credibility of the witnesses, in less
than four hours of deliberation, the jury found defendant guilty of first-degree
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Newby, J., dissenting
murder. Despite overwhelming evidence of his guilt, the majority unconvincingly
asserts that defendant’s claims of error were prejudicial requiring a new trial even
under the deferential standard of review applicable to each submitted claim.
Accordingly, I respectfully dissent.
The majority points to three alleged errors at trial: (1) the admission of victim
character testimony from Randi Saldana’s sister, Shelly Nations; (2) the admission of
too much evidence of defendant’s murder of Saldana under North Carolina Rule of
Evidence 404(b), particularly the number of photographs of Saldana’s burned body;
and (3) several comments made by the prosecutor during closing argument. I agree
with the majority that the trial court impermissibly admitted Nations’s testimony;
however, the conflicting evidence of Saldana’s lifestyle of drug use and prostitution
rendered any effect of that testimony negligible. The remaining allegations do not
establish error, much less prejudicial error.
In this case the pivotal question decided by the jury was the credibility of
defendant’s numerous and detailed incriminatory statements to police against his
conflicting testimony at trial. The State’s evidence included two separate videotaped
interviews with detectives in which defendant confessed to choking to death both
Heather Catterton and Randi Saldana. The State also presented a video of defendant
showing detectives where he disposed of Catterton’s clothing and belongings
following her murder and a video of defendant giving detectives a detailed walk-
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Newby, J., dissenting
through of his mother’s home, where the two murders occurred. The scientific
evidence was inconclusive. Seeking to undermine his pretrial assertions, defendant
testified at trial that he initially confessed to the two murders in the hope of receiving
leniency on several pending robbery charges. Defendant further testified that
Catterton died in his mother’s home from a drug overdose and that Saldana died in
the same home from voluntary, sex-related asphyxiation, both within a month of each
other. His initial confessions and his later conflicting trial testimony regarding the
deaths of Catterton and Saldana could not have both been true.
The majority correctly holds that the trial court properly admitted evidence of
Saldana’s murder under North Carolina Rules of Evidence 404(b) to show defendant
acted with a common scheme, plan, or design. Defendant repeatedly confessed that
he strangled Saldana and suffocated Catterton. Saldana’s autopsy report confirmed
that she was strangled to death, while Catterton’s cause of death remained
inconclusive. In response, the State presented Rule 404(b) evidence of Saldana’s
murder by strangulation to prove that defendant, as he confessed, also intentionally
suffocated Catterton. Saldana’s murder undoubtedly satisfies the Rule 404(b)
criteria: Defendant confessed to both murders during the same interviews with
police; both victims were young, white female prostitutes who exchanged sex with
defendant for drugs; their circles of acquaintances overlapped significantly; both had
sex with defendant in the same trailer; both died in his mother’s house; both of the
victims’ bodies were temporarily stored in the basement of the home where they died
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and later dumped in rural areas of York County, South Carolina; defendant admitted
that he killed both by either strangulation or suffocation; and lastly, both victims died
within a month of each other. See State v. Howell, 343 N.C. 229, 236, 470 S.E.2d 38,
42 (1996) (upholding the admission of 404(b) evidence to prove the defendant’s
identity, common plan, and lack of mistake when both victims were black prostitutes
and both were picked up by the defendant in the same area, taken to the defendant’s
bus at night, and bound, one with wire and the other with duct tape).
Notwithstanding the conclusion that the evidence was admissible under
404(b), the majority holds that the trial court abused its discretion under North
Carolina Rule of Evidence 403 in admitting “an excessive amount” of the 404(b)
evidence. To justify reversal, a trial court’s ruling on a Rule 403 determination must
be “manifestly unsupported by reason or . . . so arbitrary that it could not have been
the result of a reasoned decision.” State v. Hennis, 323 N.C. 279, 285, 372 S.E.2d 523,
527 (1988) (citation omitted). The majority classifies the trial court’s decision as
necessarily arbitrary, but gives no guidance to the trial court upon retrial on where
to draw the line, how much evidence is too much, or what particular evidence is
prohibited.
“Although relevant, evidence may 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
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STATE V. HEMBREE
Newby, J., dissenting
presentation of cumulative evidence.” N.C. R. Evid. 403. In the context of the Rule
403 balancing test, the prosecution is entitled to put on its case and should not be
penalized because the acts a defendant is accused of committing are particularly
gruesome. The United States Supreme Court has noted:
When a juror’s duty does seem hard, the evidentiary
account of what a defendant has thought and done can
accomplish what no set of abstract statements ever could,
not just to prove a fact but to establish its human
significance, and so to implicate the law’s moral
underpinnings and a juror’s obligation to sit in judgment.
Thus, the prosecution may fairly seek to place its evidence
before the jurors, as much to tell a story of guiltiness as to
support an inference of guilt, to convince the jurors that a
guilty verdict would be morally reasonable as much as to
point to the discrete elements of a defendant’s legal fault.
Old Chief v. United States, 519 U.S. 172, 187-88, 117 S. Ct. 644, 653-54, 136 L. Ed.
2d 574, 592 (1997). This “persuasive power of the concrete and particular” is
especially important in capital cases in which grisly details arise quite frequently.
Id. at 187, 117 S. Ct. at 653, 136 L. Ed. 2d at 592. The more relevant the State’s
evidence is, the more likely it is to persuade the jury of a defendant’s guilt of the
particular crime charged. Rule 403 does not prohibit probative evidence simply
because it strongly influences the jury’s verdict or the State relies on it heavily at
trial.
The majority ignores the highly probative nature of the Saldana 404(b)
evidence and then fails to identify any unfair prejudice that substantially outweighs
its probative value. Against defendant’s assertions that he contrived the portion of
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Newby, J., dissenting
his videotaped confessions describing how he killed Catterton and Saldana, the
Saldana 404(b) evidence serves to establish that Saldana was in fact strangled. The
physical evidence of Saldana’s murder corroborates defendant’s confession that he
killed her and, considering the striking similarities in the two murders, discredits
defendant’s recantation of his confession to the Catterton murder. Defendant
entwined details of the two murders throughout his taped confessions, making the
Saldana 404(b) evidence an unavoidable and significant part of the State’s case-in-
chief. Further, many of the State’s witnesses were familiar with both murders and
testified as to their knowledge. Nonetheless, ignoring the interrelationship of the two
murder investigations, the majority believes the highly probative 404(b) evidence is
unfairly prejudicial in part simply because the State referenced it on seven of the
eight days it presented evidence at trial. Without any support from our case law, the
majority creates a vague, unworkable rule that limits admissible evidence under Rule
403 and discourages the State from relying on probative evidence. In so concluding,
the majority fails to adhere to the deferential standard of review for abuse of
discretion.
Whether photographic evidence “is more probative than prejudicial and what
constitutes an excessive number of photographs in the light of the illustrative value
of each . . . lies within the discretion of the trial court.” Hennis, 323 N.C. at 285, 372
S.E.2d at 527 (citation omitted). “Photographs of a homicide victim may be
introduced even if they are gory, gruesome, horrible or revolting, so long as they are
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STATE V. HEMBREE
Newby, J., dissenting
used for illustrative purposes and so long as their excessive or repetitious use is not
aimed solely at arousing the passions of the jury.” Id. at 284, 372 S.E.2d at 526(citations omitted). “When a photograph add[s] nothing to the State’s case, then its
probative value is nil, and nothing remains but its tendency to prejudice.” Id. at 286,
372 S.E.2d at 527 (internal citations and quotation marks omitted). “This Court has
rarely held the use of photographic evidence to be unfairly prejudicial . . . .” State v.
Robinson, 327 N.C. 346, 357, 395 S.E.2d 402, 409 (1990).
The majority states in conclusory fashion that the trial court erred in admitting
some of the photographs of Saldana’s body because those photographs add nothing of
probative value under Rule 403. A careful analysis of the photographs refutes this
conclusion. Of the fifteen photographs at issue, the first three photographs (Exhibits
45, 46, and 47) depicted Saldana’s burned body lying substantially covered in debris
in a wooded area. Two of those photographs were taken from a distance and from
different angles. The third photograph was a close-up of the body. The witness who
first found the body used these three photographs to show the rural nature of the
area and the body’s appearance upon its discovery. This testimony corroborated
defendant’s videotaped confession regarding his disposal of Saldana’s body.
The State submitted the next six photographs to illustrate the testimony of a
sheriff’s deputy who responded to the call that a body had been found. Four of those
photographs were of Saldana’s body: Exhibit 50 shows a close-up of the wire found
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STATE V. HEMBREE
Newby, J., dissenting
wrapped around Saldana’s legs, which defendant confessed to using; Exhibits 51 and
52 further show the wire wrapped around Saldana’s legs, and Exhibit 53 shows
Saldana’s burned right arm and hand. Though unpleasant to view, these
photographs were highly probative in connecting the physical evidence of Saldana’s
body’s condition to defendant’s detailed confession, particularly that he wrapped a
lamp cord around Saldana’s legs.
The remaining ten photographs in question, used to clarify testimony from the
coroner and Saldana’s sister, showed Saldana’s body after it had been cleaned of
debris and prepared for autopsy on the coroner’s examining table. Before the coroner
testified, the trial court considered, and excluded upon defendant’s objection, two of
these photographs—Exhibits 60 and 61—as unnecessarily cumulative. Exhibits 57,
58, 59, 62, and 63 aided the coroner’s testimony to show the victim’s neck injuries and
corroborated defendant’s videotaped confession that he choked Saldana to death.
Exhibits 58, 59, 62, and 63, though graphic, showed the victim’s head and torso
injuries from different viewpoints. The last photograph focused on the injury to the
victim’s forehead as described by defendant in his videotaped confession and trial
testimony. Three photographs, Exhibits 54, 55, and 56, served to identify the victim
by focusing on unique tattoos located on relatively undamaged parts of her body.
These depictions were not gruesome and did not present a high risk of prejudice.
Saldana’s sister described the tattoos, referring to these three photographs during
her testimony. These highly probative, standard autopsy photographs, though
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STATE V. HEMBREE
Newby, J., dissenting
unsettling, confirm the victim’s identity and the condition of her body, allowing the
triers of fact to assess the veracity of defendant’s confessions and the similarities in
the victims’ conditions.
These fifteen photographs of the body helped identify the victim and
corroborated defendant’s pretrial confessions that he strangled, burned, and bound
Saldana, and disposed of the body in a rural, wooded area. This Court defers to a
trial court’s exercise of discretion in allowing such photographs. In State v. Robinson
we upheld the trial court’s admission of twenty-three photographs, eleven of which
showed a victim’s burned body, his autopsy, or the burned car containing the victim.
327 N.C. at 355, 395 S.E.2d at 407. We concluded that the photographs were not
needlessly repetitive, that competent testimony accompanied each photograph, and
that each portrayed “ ‘somewhat different scenes.’ ” Id. at 358, 395 S.E.2d at 409(quoting State v. Dollar, 292 N.C. 344, 355, 233 S.E.2d 521, 527 (1977)). Compare
State v. Waring, 364 N.C. 443, 497, 701 S.E.2d 615, 649 (2010) (finding no abuse of
discretion when the trial court admitted eighteen autopsy photographs because the
photographs “were not unnecessarily repetitive, were not unduly gruesome or
inflammatory, and illustrated [witness and defendant testimony]”), cert. denied, ___
U.S. ___, 132 S. Ct. 132, 181 L. Ed. 2d 53 (2001), with Hennis, 323 N.C. at 282, 372
S.E.2d at 525 (finding prejudicial error when, inter alia, thirty-five images measuring
three feet, ten inches by five feet, six inches showing three murder victims’
decomposing bodies and repetitive photographs of the same neck injury on all three
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STATE V. HEMBREE
Newby, J., dissenting
bodies were projected on the wall directly above the defendant’s head). Under a
straightforward application of our precedent, the trial court did not abuse its
discretion in admitting the fifteen photographs here, each serving a different
illustrative purpose.
In its last finding of error, the majority insists the State made inappropriate
statements to the jury in its closing argument. “It is well settled that the arguments
of counsel are left largely to the control and discretion of the trial judge and that
counsel will be granted wide latitude in the argument of hotly contested cases.” State
v. Williams, 317 N.C. 474, 481, 346 S.E.2d 405, 410 (1986) (citations omitted).
“Counsel is permitted to argue the facts which have been presented, as well as
reasonable inferences which can be drawn therefrom.” Id. (citations omitted). We
review for abuse of discretion objections made to a party’s closing argument, State v.
Walters, 357 N.C. 68, 101, 588 S.E.2d 344, 364, cert. denied, 540 U.S. 971, 124 S. Ct.
442, 157 L. Ed. 320 (2003), but “the impropriety of the argument must be gross
indeed” for us to hold that the trial court abused its discretion by not “correcting ex
mero motu an argument which defense counsel apparently did not believe was
prejudicial when he heard it,” State v. Rogers, 355 N.C. 420, 462, 562 S.E.2d 859, 885
(2002) (citation and quotation marks omitted).
The majority contends that it was grossly improper for the trial court not to
intervene unilaterally when the State, in the majority’s view, accused defense counsel
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STATE V. HEMBREE
Newby, J., dissenting
of suborning perjury and defendant of being a liar. The majority’s
mischaracterization ignores our deferential standard of review and disregards
defendant’s and defense counsel’s own declarations. While I agree with the majority
that the State strayed too far in its closing argument by saying that “defendant, along
with his two attorneys, c[a]me together to try and create some sort of story,” the trial
court properly sustained defendant’s objection to those remarks. Nowhere does the
State argue that defendant’s attorneys told him to lie in his testimony.
Defendant’s major premise here was that his trial testimony was true and that
his videotaped confessions were false. In its closing argument, the State submitted
that defendant came up with “this elaborate tale as to what took place” after “get[ting]
legal advi[c]e from his attorneys.” There is nothing grossly improper in the State
suggesting that defense counsel provided legal advice to defendant or that defendant
contemplated recanting his confessions after his attorneys informed him of the legal
consequences of confessing to the murders. Furthermore, defendant himself testified
to being manipulative and untruthful. On cross-examination, defendant freely
admitted to manipulating the justice system during the over twenty-five years he had
been in and out of prison:
Q [from the State]. You manipulated the system?
A. Well, I mean, I choose to call it working the system.
Manipulation is, you know, in the eye of the beholder. I don’t
know. I just work the system. I do whatever is best for me. If you
want to call it manipulation, then that’s fine, I guess.
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STATE V. HEMBREE
Newby, J., dissenting
Defense counsel reinforced defendant’s admission during closing argument:
“[Defendant is] manipulative, he lies, he tells things to get things. . . . His family says
he lies. . . . He lies to bolster himself.” Perhaps the one fact both sides agreed on
throughout the trial was that defendant was not always truthful. The majority
concludes, contrary to precedent, that the trial court erred in allowing the State to
agree with the assertions repeatedly made by defendant and his counsel to this effect.
Williams, 317 N.C. at 481, 346 S.E.2d at 410 (“Counsel is permitted to argue the facts
which have been presented . . . .”).
The majority has identified three potential errors over the course of a five-week
trial and summarily concludes that these alleged errors when considered together
prejudiced defendant’s trial. The identification of alleged errors, however, is not
reversible per se; defendant must demonstrate that “there is a reasonable possibility
that, had the error[s] in question not been committed, a different result would have
been reached at the trial.” N.C.G.S. § 15A-1443(a) (2013). See State v. Badgett, 361
N.C. 234, 248, 644 S.E.2d 206, 215, cert. denied, 552 U.S. 997, 128 S. Ct. 502, 169 L.
Ed. 2d 351 (2007) (concluding admission of the defendant’s prior conviction was
harmless when the “defendant has failed to demonstrate any reasonable possibility
that the jury would have reached a different result had the evidence been excluded”);
State v. DeLeonardo, 315 N.C. 762, 772, 340 S.E.2d 350, 357 (1986) (“Even assuming
error arguendo, defendant has failed to meet his burden of showing that a reasonable
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STATE V. HEMBREE
Newby, J., dissenting
possibility exists, that had the evidence . . . not been admitted, a different result
would have been reached at his trial.”).
As stated earlier, I agree the trial court erred by admitting Nations’s victim
character testimony but the conflicting evidence of Saldana’s lifestyle of drug use and
prostitution negated any effect of that testimony. Thus, defendant must show the
two additional alleged errors, the admission of “an excessive amount” of 404(b)
evidence and several comments by the prosecutor during closing argument, created a
“reasonable possibility” of changing the jury’s verdict. Regarding the 404(b) evidence,
the trial court continually instructed the jury, often multiple times a day, that the
evidence
is offered, and you may consider it, for the purpose of
showing that there existed in the mind of the defendant a
plan, scheme, system, or design involving the crime
charged in this case, and you may not consider it for any
other purpose in regard to the trial of this case.
The trial court repeatedly and consistently urged the jury to use the evidence only as
instructed throughout the trial:
[L]et me put it this way: Evidence has been received
tending to show that Randi Saldana died under
circumstances that have some similarity to the charge
against the defendant in the case that we are trying, and
the case we’re trying is the one which he is charged with
the murder of Heather Catterton. Now, this evidence was
received, and will be received and considered by you, solely
for the purpose of showing that the defendant had existing
in his mind a plan, scheme, system, or design involving the
crime charged in this case.
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STATE V. HEMBREE
Newby, J., dissenting
....
I want you to understand that if you believe this evidence,
you may consider it but only for the limited purpose for
which it has been received or may be received
subsequently. You may not consider such evidence about
the Saldana matter for any other purpose.
.....
Now, members of the jury, at this point I’m going to give
you an instruction that’s just simply the same instruction
I gave you before. That information previously received
through the evidence, testimony in regard to Randi
Saldana, has a limited purpose . . . .
....
This evidence has been received solely for the purpose of
showing any of the following: That the defendant had a
motive for the commission of the crime charged in this case;
that the defendant had the intent which is a necessary
element of the crime charged in this case; that there existed
in the mind of the defendant a plan, scheme, system, or
design involving the crime charged in this case; that the
defendant had the opportunity to commit the crime in this
case; or the absence of accident in this case.
The state contends, and the defendant denies, that the
evidence on this matter shows these things in regard to the
offense charged, that is, the murder of Heather Catterton.
It is for you to decide what, in fact, the evidence does show.
If you believe this evidence, you may consider it, but only
for the limited purposes for which it has been received.
Similarly, during closing argument, when defendant objected to the prosecutor’s
statement, the trial court “sustain[ed] the objection as to the argument and the odd
comment.”
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STATE V. HEMBREE
Newby, J., dissenting
Most importantly, here there is overwhelming evidence of defendant’s guilt,
including the multiple detailed confessions to the murder he provided shortly after
his arrest. An abundance of corroborating physical evidence supported defendant’s
confessions. Defendant’s only defense was that he had fabricated his confessions.
The jury took little time, less than four hours, to reject defendant’s recantation and
find him guilty. Defendant has failed to carry his burden of showing any reasonable
possibility that the jury would have reached a different result absent the alleged
errors.
The trial court determines the competency of evidence, including witness
testimony, while the jury weighs the credibility of the evidence presented. State v.
Witherspoon, 210 N.C. 647, 649, 188 S.E. 111, 112 (1936) (citation omitted). Here the
jury found credible defendant’s taped confessions, not his trial testimony. Defendant
has failed to show that absent the alleged errors the trial’s outcome would have been
different. This Court should uphold the jury’s determination of defendant’s guilt.
Accordingly, I respectfully dissent.
Chief Justice MARTIN joins in this dissenting opinion.
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