Criminal Practice — Murder – Evidence – Other Victim – Discovery of Body

Where victim Tucker’s body was discovered while police were investigating the disappearance of victim Rippy, evidence of Rippy’s disappearance was relevant in defendant’s trial for the murder of Tucker.

We find no error in defendant’s conviction for first-degree murder.

Relevance

It was not possible to provide a natural and complete development of the facts without testimony concerning Rippy’s disappearance and the police investigation that followed, leading to the discovery of Tucker’s body. The disappearances and investigations are inextricably intertwined, and evidence of Rippy’s disappearance was necessary to complete the story of the charged crime for the jury.

Without such evidence, witnesses’ credibility could have been called into question, and the probity of the state’s physical evidence could have been diminished.

Both victims (1) were residents of the Wilmington area; (2) were of the same sex; (3) disappeared within nine months of each other at most, prompting missing persons reports from their mothers; (4) had legal, financial, and substance abuse problems, facts particularly pertinent given witness Sitosky’s testimony that defendant supplied her with money under like circumstances; (5) relied on defendant for transportation; (6) had “sustained relationships” with defendant; and (7) were subjects of his sexual attention. The similarities noted by the trial court were sufficient to warrant admission of evidence about Rippy under N.C. R. Evid. 404(b).

Closing Argument

In the state’s summation, the prosecutor repeatedly argued that victim Tucker’s blood was present in defendant’s car, and defendant objected to these statements numerous times. The trial court overruled these objections.

The state introduced expert testimony and lab results showing the conclusive presence of human blood on sections of carpeting and padding of the driver’s seat flooring in defendant’s car, though no DNA samples were recoverable from those sections. Other evidence produced opposite results, as Tucker’s DNA was found on a section of the floor padding that returned inconclusive (but not negative) results for human blood. The state’s experts testified that these discrepancies may well have been the result of chemical cleaners, and other evidence showed defendant had (1) cleaned his car several times after Tucker disappeared and (2) had bleach in his workshop and carpet cleaners in his home.

Finally, the section of flooring containing Tucker’s DNA does not appear prone to incidental contact with other sources of DNA, as it was located beneath both a rubber floormat and a layer of carpeting below the driver’s seat.

All of this evidence leads to a reasonable inference that the DNA—found alongside sections testing positive for human blood—was sourced from Tucker’s blood. The trial court did not err in overruling defendant’s objections to this portion of closing argument.

Defendant also argues that the trial court erred in allowing the prosecutor, over defendant’s objections, to argue that Rippy was dead.

Despite defendant’s argument to the contrary, the trial court’s evidentiary rulings did not preclude the state from arguing in closing that Rippy was deceased. From our review of the record, it appears the trial court only limited evidence of defendant’s conviction for Rippy’s murder and did not intend to bar evidence suggesting—or arguments asserting—that she was dead.

Defendant also asserts that the trial court erred in denying his motion for a mistrial after it sustained defendant’s objections to comments from the prosecutor that suggested defendant (1) bore the burden of proving his own innocence and (2) was responsible for the inclusion of second-degree murder as a lesser-included offense on the verdict sheet. Defendant’s counsel immediately objected to the comments, the trial court sustained the objections after hearing arguments outside the presence of the jury, and the trial court gave curative instructions to the jury once closing statements resumed. Under our precedent, the trial court did not err in denying defendant’s motions for mistrial under these circumstances.

The prosecutor’s closing argument referred to “evil” several times. Presuming, arguendo, the prosecutor’s statements were referring to defendant—rather than the murder itself—as evil, such derogatory comments do not rise to the level of gross impropriety requiring the trial court’s intervention ex mero motu.

The jury was already well aware of the races of defendant, who is Black, and Tucker, Sitosky, and Rippy—all of whom are white—without the use of the state’s visual aid, which included photos of defendant, Tucker, Sitosky and Rippy. Defendant was present in the courtroom for trial, Sitosky testified before the jury, and the state introduced photographs of Tucker and Rippy into evidence and published them to the jury. Finally, the prosecutor never drew attention to or referenced the races of defendant or the three women in closing. While we are cognizant of racial bias, we do not see any gross impropriety in the prosecutor’s conduct given that (1) defendant did not object to the prosecutor’s comments about evil or the use of the posterboard; (2) neither the prosecutor nor the posterboard commented on race; (3) the posterboard did not implicate race beyond the inclusion of photographs of persons the jury had already observed over the several days of trial; and (4) defendant points to no caselaw where gross impropriety has been found on this theory. We decline to hold that the trial court erred in failing to intervene ex mero motu.

Premeditation & Deliberation

The state introduced substantial evidence of (1) undignified treatment and concealment of Tucker’s body and (2) efforts to destroy evidence of the murder. Police located Tucker’s body in a shallow grave beneath a tree stump in the back corner of a rural field. The body had been stripped naked, arranged in a fetal position, and was bound with duct tape. Tucker’s corpse was wrapped in three black trash bags before being transported to the grave and buried.

The state introduced additional evidence suggesting defendant sought to conceal his handling of the body by using chemical cleaners to wash the interior of his vehicle following Tucker’s disappearance. The above conduct, coupled with the brutal nature of the killing, suffices to support a reasonable inference of premeditation and deliberation.

No error.

State v. Bradley (Lawyers Weekly No. 011-182-21, 43 pp.) (Lucy Inman, J.) Appealed from New Hanover County Superior Court (Douglas Sasser, J.) Joseph Hyde for the state; Heidi Reiner for defendant. 2021-NCCOA-495