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Gregory Flint Taylor - Indigent Defense Services

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Gregory Flint Taylor - Indigent Defense ServicesFlint,flint

No. 482A93 TENTH DISTRICT

    SUPREME COURT OF NORTH CAROLINA

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STATE OF NORTH CAROLINA )

     )

     v. ) From Wake

     )

    GREGORY FLINT TAYLOR )

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    DEFENDANT-APPELLANT'S BRIEF

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    QUESTIONS PRESENTED

     I. WHETHER DEFENDANT'S MURDER CONVICTION MUST BE

    VACATED BECAUSE THERE IS INSUFFICIENT EVIDENCE THAT HE

    KILLED THOMAS?

     II. WHETHER DEFENDANT'S FIRST-DEGREE MURDER CONVICTION

    MUST BE VACATED BECAUSE THERE IS INSUFFICIENT

    EVIDENCE OF PREMEDITATION AND DELIBERATION?

     III. WHETHER DEFENDANT IS ENTITLED TO A NEW TRIAL BECAUSE

    THE TRIAL COURT ERRONEOUSLY INSTRUCTED THE JURY ON A

    THEORY OF CRIMINAL LIABILITY - - ACTING IN CONCERT - -

    THAT WAS NOT SUPPORTED BY THE EVIDENCE?

     IV. WHETHER DEFENDANT IS ENTITLED TO A NEW TRIAL BECAUSE

    THE TRIAL COURT ERRONEOUSLY ADMITTED CURRIN'S

    TESTIMONY ABOUT BLOODHOUND SADIE'S ACTIONS ON

    SEPTEMBER 26 INTO EVIDENCE?

     V. WHETHER DEFENDANT IS ENTITLED TO A NEW TRIAL BECAUSE

    THE PROSECUTOR IMPROPERLY COMMENTED ON HIS DECISION

    NOT TO TESTIFY IN CLOSING ARGUMENT?

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     VI. WHETHER DEFENDANT'S MURDER CONVICTION MUST BE

    VACATED BECAUSE ITS EXISTENCE IN LIGHT OF

    CO-DEFENDANT BECK'S DISMISSAL VIOLATES THE LAW OF THE

    LAND AND DUE PROCESS OF LAW?

    STATEMENT OF THE CASE

    On October 14, 1991, the Wake County Grand Jury indicted defendant-appellant Gregory Flint Taylor for the murder of Jacquetta Thomas. (Rp. 4) On July 6, 1992, the same Grand Jury indicted defendant for accessory after the fact of a felony. (Rp. 5) The 1992 indictment alleged that co-defendant Johnny Beck "did in fact" murder the victim and that defendant assisted Beck in escaping arrest and punishment for the murder knowing that Beck had committed the murder. (Rp. 5) These 2 cases came on to be tried together and the murder case tried non-capitally on defendant's not guilty pleas at the April 12, 1993 Mixed Session of Wake County Superior Court before Superior Court Judge J. B. Allen, Jr. (Rp. 1) Co-defendant Beck's case was not joined with defendant's case and defendant was tried alone. (Rp. 1) On April 19, 1993, the jury found defendant guilty of first-degree murder and not guilty of accessory after the fact. (Rpp. 23-24) On the same day, Judge Allen entered Judgment and Commitment in the murder case and sentenced defendant to life imprisonment. (Rpp. 25-26)

    1 Defendant appealed to this Court. (Rpp. 29-30)

    On September 26, 1991, co-defendant Johnny Beck was arrested for the murder of Jacquetta Thomas. On October 14, 1991, the Wake County Grand Jury indicted co-defendant Beck for the murder of Thomas. On

    1 The record shows that defendant retained prominent Raleigh attorney James F. Blackburn to represent him at trial in these cases as soon as he was charged. (Rp. 6) Attorney Blackburn continued to represent defendant until February 1993 when he withdrew. (Rp. 6) Then, only 8 weeks before these cases were called for trial, Raleigh attorney Michael Dodd entered an appearance and represented defendant through the conclusion of the trial. (Rp. 6) Attorney Blackburn's associate, R. L. Adams, represented defendant from September 1991 through the conclusion of the trial. (Rp. 6) Since attorney Blackburn's problems came to light in January 1993, he has been disbarred and convicted of a dozen felonies, including embezzlement and obstruction of justice. This is another case touched by attorney Blackburn's malpractice.

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    August 18, 1993, Assistant District Attorney R. Thomas Ford, the same prosecutor who prosecuted defendant's

    2 cases, voluntarily dismissed the murder charge against co-defendant Beck.

    STATEMENT OF THE FACTS

    The State's evidence showed that the 1500 block of South Blount Street in southeast Raleigh is an isolated industrial warehouse district. (Tpp. 27, 31, 155) The 1500 block ends in an paved curbed cul-de-sac that is used as a turn-around by big trucks. (Tpp. 28-29, 71) Beyond the cul-de-sac to the south, the land slopes up to a crest with weeds and grass and then glides down in a ravine to a creek and woods beyond. (Tpp. 28, 36-38, 42, 62, 156) There is a dirt and gravel service road going south from the cul-de-sac to a large billboard visible from the interstate highway. (Tpp. 36, 42, 59, 71) The cul-de-sac is not lighted by street lights, is littered with trash, and is located many yards south of the closest businesses. (Tpp. 58-61, 154-155, 292)

    The State's evidence also showed that, on the morning of September 26, 1991, police found victim Jacquetta Thomas' half-naked bloody dead body lying on the pavement in the cul-de-sac. (Tpp. 29-34, 72-73) There was semen in Thomas' panties and 2 or 3 ziplock bags and lots of blood on the pavement near Thomas' body. (Tpp. 33, 43, 152) Thomas had a very high potentially lethal concentration of cocaine in her system and died from blunt force injuries to the head and neck. (Tpp. 97, 100-101)

    A. Defendant Makes Exculpatory Statements And Is

    Arrested.

    Raleigh policeman Brad Kenan testified that he discovered Thomas' body while he was on routine patrol at about 7:35 a.m. on September 26 and that Thomas was lying in the cul-de-sac with her shirt and bra above her breasts, her boots on, and her pants and panties about her ankles. (Tpp. 26, 29-34, 42) Nobody else was at the scene. (Tp. 37) Defendant's two door, 4 wheel drive Nissan Pathfinder vehicle with water skis in the cargo area

    2 Co-defendant Beck's arrest warrant, indictment, and dismissal are the subject of defendant's Motion to Take Judicial Notice filed contemporaneously with this brief.

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    was stuck in a muddy gully in the ravine south of the cul-de-sac about 100 yards from the body. (Tpp. 36-37, 56) Later in the morning, defendant approached the cul-de-sac from the north and said that his vehicle was stuck in the ravine. (Tpp. 53-55)

    Raleigh policeman Johnny Howard testified that defendant and his wife approached the scene at about 8:30 or 9:00 a.m. on September 26, that he asked defendant to go to the police station for questioning, that defendant agreed, that he and another officer interrogated defendant for at least one hour at the police station that morning, and that he tape recorded the interrogation. (Tpp. 282-286, 301-302) The prosecutor then introduced the cassette tape of the interrogation into evidence as State Exhibit 38, introduced a transcript of the tape recording into evidence as State Exhibit 39, distributed the transcript, and played the tape recording to the jury.

    3(Tpp. 286-289) The transcript shows that defendant is a 29-year-old white male married to Rebecca Taylor, has 1 daughter, lived in Cary, and worked for Business Telecom of Raleigh. (T. 1) The transcript further shows that defendant said that he left his house in his Pathfinder at about 6:00 p.m. on September 25; that he went to a friend's house and stayed until about 9:30 p.m.; that he then went to another friend's house, drank beer, got "pretty intoxicated," and stayed until about 11:30 p.m.; that he then went to co-defendant Johnny Beck's house, smoked cocaine and drank beer, and left with Beck at about 1:00 a.m. on September 26; that he and Beck then went to Beck's brother's house and stayed until about 2:30 a.m.; that he and Beck then left to buy more cocaine, drove into southeast Raleigh, bought some cocaine, drove some more, pulled into the cul-de-sac, and smoked the cocaine; that he did not see Thomas' body and did not think that Thomas' body was in the cul-de-sac when they arrived; that they saw the service road and decided to go four-wheeling in the Pathfinder; that they then circled around, drove down the service road, got stuck into the ravine, and smoked more cocaine; that they then walked up to the cul-de-sac and starting walking north on South Blount Street; that Beck said that he saw a body in the cul-de-sac; that he turned around and saw something that looked like a body or a roll of carpet; that they then walked further up the street; that Beck turned around and said that he saw a person standing in the cul-de-sac; that he then looked

    3 The transcript of the tape recorded interrogation is part of the record on appeal (Rp. 6) and has been lodged in this Court's Clerk's office. Mistranscriptions in the transcript are corrected in the stipulation at page 6 in the record. References in this brief to the transcript are "T.".

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    and saw the person; that they then walked to a busier street, hitchhiked, and were picked up by a woman who drove them to a "rock" house; that they smoked dope at the house until about 6:00 a.m.; that the woman then drove Beck home and dropped him off at a gas station; and that his wife picked him up at the gas station and took him home at about 7:00 a.m. (T. 2-6, 15, 18-28, Tpp. 283-285) The transcript shows that defendant repeatedly said that he did not know Thomas, that he had never seen Thomas before, that he never had anything to do with Thomas, and that he did not kill Thomas. (T. 8-13, 16, 31) Defendant said that Thomas had never been in his vehicle and that Thomas' fingerprints, hair, and blood were not in his vehicle. (T. 8, 11, 31) On at least 12 occasions, defendant said that he was telling the truth about his activities on the night of September 25-26. (T. 9, 11-12, 15-16, 31) Defendant offered to be polygraphed, to let police search his house, and to show police where Beck lived. (T. 3, 17, 29, 31) Defendant reminded the officers that he voluntarily came to the police station for questioning and said "I know I'm doing the right thing by coming down here and talking to you guys. I'm telling you everything I know. What more can I do? Anything you want me to do to help I will." (T. 1, 17)

    Officer Howard testified that defendant voluntarily took him in his house after the interrogation, allowed him to search the house, and then showed him where he had been the night before. (Tpp. 291, 293, 305, 325) Howard testified that he interrogated co-defendant Beck that afternoon, that he interrogated defendant for a second time after he interrogated Beck, and that defendant steadfastly continued to deny any involvement in Thomas' murder during the second interrogation. (Tpp. 293, 304-306, 308, 335, 338-339) Howard testified that he arrested defendant and co-defendant Beck that evening and charged them both with first-degree murder of Thomas. (Tpp. 341-342) Howard further testified that a guard in a warehouse near the cul-de-sac reported that he saw 2 black males in the street on the night of September 25-26 and that police never accepted defendant's offer to be polygraphed. (Tpp. 317-318, 329)

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    B. The State's Physical Evidence.

    Law enforcement officer Donald Pagani testified that he collected trace evidence from Thomas' body and clothes with specially designed evidence tape at the scene on the morning of September 26, and that none of the hairs or fibers found matched any hair or fibers on defendant, in defendant's car, or anything associated with defendant. (Tpp. 76, 159, 163, 173-176) Pagani testified that the medical examiner found some fairly long human hairs on Thomas during the autopsy, and that none of those hairs matched defendant. (Tpp. 160, 173-175, 182-183) Pagani testified that the medical examiner also obtained a victim sexual assault kit at the autopsy and he obtained a suspect evidence kit from defendant on September 26, that none of the hair or fibers in those kits matched each other, and that the S.B.I. was unable to determine the blood-type of the semen in Thomas' panties. (Tpp. 144, 151-153, 171-176) Pagani testified that defendant's vehicle was towed from the scene to a police station garage on September 26, that he thoroughly examined the interior and exterior of the vehicle and items inside the vehicle for fingerprints that day, that he found several fingerprints of value, and that none of the fingerprints matched Thomas. (Tpp. 123-132, 168) Pagani testified that he collected trace evidence from the interior of defendant's vehicle with evidence tape, ultraviolent light, and a lazer on September 26, and that none of the hair and fibers found matched Thomas or anything associated with Thomas. (Tpp. 132-133, 168-169, 173-176) Pagani testified that he tested the interior area and the tires of defendant's vehicle for the presence of human blood, and that there was no blood in or on those areas. (Tpp. 134-135, 138) Pagani testified that he tested the front right-wheel fender well liner, the undercarriage of the A-frame, and the exterior edge of the front right-wheel fender of defendant's vehicle with phenolphthalein for the presence of blood, that the test results were positive showing that there could possibly be human blood, that he then made stained thread samples of these areas and sent them to the SBI, and that the SBI reported that the sample from the A-frame "failed to reveal the presence of blood" and that the samples from the fender well liner and the fender edge gave "chemical indications for the presence of blood." (Tpp. 134-136, 141-143, 145) Pagani testified that there were blood stains on the pavement about the cul-de-sac that occurred at regular intervals and led from a position near Thomas' body to the service road. (Tpp. 78, 80, 112, 114-116, 123) Pagani testified that police collected 6 bags of miscellaneous

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    debris from the 1400 and 1500 blocks of South Blount Street, that he examined the debris and obtained several fingerprints, and that defendant's fingerprints were not on any debris. (Tpp. 157-159) Pagani testified that police officers conducted a routine canvas of the area to determine whether anybody knew anything, and that the canvas did not yield any results. (Tpp. 176-177)

    Law enforcement officer William Hensley testified that there was a "dew-like rain" on the morning of September 26, that there were 15 linear blood stains on the pavement of the cul-de-sac that made a circle pattern, and that phenolphthalein blood tests of defendant's vehicle's right front-wheel fender and fender well lining were positive. (Tpp. 259-262, 265-267, 270)

    Associate Chief Medical Examiner Deborah Radisch testified that she performed the autopsy, that there were blunt and sharp force injuries to the head, neck, shoulder, and chest, that there were a few dark hairs on the right cheek that did not appear to be Thomas', and that the shoulder injuries were consistent with being dumped on asphalt. (Tpp. 83, 86-89, 104-105)

    C. The State's Dog Evidence.

    The prosecutor then called Raleigh police dog handler Andy Currin, defendant objected, and the Trial Court excused the jury for a voir dire. (Tpp. 189-190) Currin testified on voir dire that he had handled dogs for about 1 1/2 years, that he and his bloodhound Sadie had received training in tracking at dog schools in North Carolina and Connecticut, and that Sadie had been trained to track and follow scents, to work in a circle if she lost a trail, and to come back and sit next to him when she completely lost a trail. (Tpp. 191-195, 199-200, 206) Currin testified that Sadie was not trained to connect, rather than track, scents from dead bodies to vehicles parked some distance away and that Sadie had connected scents from distant objects only once before in her life. (Tpp. 202, 203, 239) Currin testified that Thomas' scent was in the wind and air about the cul-de-sac and to the north of defendant's vehicle. (Tpp. 204-205) Currin testified that he took Sadie to the cul-de-sac on September 26 and keyed her on Thomas' scent, that Sadie headed away from the cul-de-sac in the general direction of defendant's

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    vehicle, roamed 20 to 30 feet on both sides of a path, went right past the vehicle, went 30 feet past the vehicle into the ravine, started working in a circle, and stopped, that he took Sadie out of the ravine, placed her 30 feet in front of defendant's vehicle, and re-keyed her, and that Sadie then went to the vehicle, jumped on both front doors, and came back and sat beside him. (Tpp. 191-192, 196-200, 205) Currin testified that Sadie did not track a trail on September 26, that Sadie's actions were not evidence that Thomas had walked between the vehicle and the cul-de-sac, and that Sadie's actions "tended to lead him to the conclusion" that Thomas had come into contact with the vehicle "at some point, somewhere, somehow." (Tpp. 200, 203-204, 207-208) At the end of the voir dire, the Trial Court made findings of fact and conclusions of law, denied defendant's objection, and ruled that Currin's evidence was admissible. (Tpp. 214-219)

    Currin testified before the jury as he did on voir dire and added that Sadie was successful in tracking human scents and finding people over 70 percent of the time, that he had "some concerns" on September 26 about asking Sadie to do something that she admittedly was not trained to do, that Sadie passed within 5 to 10 feet of the vehicle as she went past it, that Thomas' scent was in the air and in the ravine, and that Sadie's actions indicated that Thomas' scent "had been somewhere in that vehicle, around that vehicle, or on that vehicle." (Tpp. 225, 226, 230, 231, 235-236)

    D. The State's Evidence From Convicted Felons.

    Eva Kelly testified that she was a prostitute who lived in a rooming house at 419 East Street in southeast Raleigh in September 1991. (Tp. 364) Kelly further testified that, sometime after September 1991, she had been convicted of possession of cocaine and another felony and sentenced to 5 years imprisonment in each case to be run consecutively. (Tpp. 379-380) Kelly admitted that she had been arrested for probation violation in March 1993 shortly before defendant's trial, that she was then incarcerated in the Wake County jail, and that she was still incarcerated at the time she testified. (Tpp. 379, 385) Kelly testified that she and prosecutor Ford had recently

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    reached an agreement that, in exchange for her testimony in this case, her two 5-year sentences would be run concurrently rather than consecutively in the sentencing for her probation violation. (Tpp. 379-380, 386)

    Kelly testified that she saw defendant driving a Pathfinder vehicle with a black male passenger in her neighborhood during the day and night of September 25, that the vehicle stopped in front of her house, that she went up to the passenger door, that the black male showed money and cocaine and asked if she wanted to get high and party, that she declined, and that the vehicle drove away. (Tpp. 367-370, 372, 381-382) Kelly testified that a white male, a black male, a black prostitute she knew only by the name Jackie, and another prostitute were smoking cocaine inside her rooming house later that night, and that she "really didn't pay attention" to or recognize the men. (Tpp. 371-374, 377-381) Kelly testified that, about 45 minutes later, she saw that Jackie, a black male, and defendant walking down her driveway and the sidewalk. (Tpp. 375-376, 381-382) Shortly thereafter, she saw defendant's vehicle driving toward Bloodworth Street. (Tpp. 376-377) Kelly testified that she never recorded the license plate of the vehicle, that there was many prostitutes in the neighborhood, and that a number of people went through her house and neighborhood on any given night. (Tpp. 382, 384)

    Kelly testified that, shortly after September 26, a police officer showed her a photograph of victim Jacquetta Thomas and asked her if she knew the person in the photograph. (Tp. 392) Kelly replied that, although she knew victim Thomas, she did not know the person in the photograph and that the photograph "doesn't look like anybody that I know." (Tp. 392) Kelly continued: "And I still from the girl Jackie that I saw with these 2 men . . . that dead body still doesn't look like the same person." (Tp. 393) Kelly also testified that an officer showed her a photograph of a white male and that she did not identify the person in the photograph as being the white male who was in the Pathfinder vehicle or walking down her driveway and sidewalk on September 25-26. (Tpp. 393-394) Kelly testified that it was not until after prosecutor Ford approached her about making a deal that

    she identified defendant as being the white male who was in her neighborhood. (Tp. 394)

    Ernest Andrews testified that he had been convicted of forgery and uttering in 1966, of armed robbery and accessory to kidnapping in 1968, of obtaining property by false pretense in 1976, of 3 counts of obtaining

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    property by false pretense in 1988, of 7 counts of obtaining property by false pretense in 1990, and of embezzlement in 1991. (Tpp. 402, 423-424) Andrews testified that he had spent 11 years of his life in the Department of Corrections and that he was on parole on the embezzlement conviction at the time he testified. (Tpp. 412, 421, 424) Andrews testified that he and defendant were in the Wake County jail together in late September 1991 and that defendant said that he and another guy picked up a black prostitute "to get high and party," that they were "fondling around" inside a vehicle and things got screwed up, that "he" hit her, that the girl got upset, jumped from the vehicle, and ran, that the other guy jumped from the vehicle, ran after the girl, came back to defendant at the vehicle sometime later, and said "I don't think she'll do anymore partying," and that the girl was cut from ear to ear and died with a smile on her face. (Tpp. 401-408, 426) Andrews insisted that defendant never said that he himself jumped from the vehicle, ran after the girl, or killed the girl. (Tpp. 403, 405, 407) In explaining the "he" in defendant's statement "he hit her," Andrews said "the statement was he hit her." (Tp. 404) Andrews acknowledged that information about Thomas' murder "hit the news and the newspaper" as defendant entered the jail, that he quickly contacted authorities and told them about what defendant allegedly said, that he never told police that defendant said the girl was black, and that his "only intent" in informing to police was because "it would look good for parole purposes." (Tpp. 410-411, 429, 431-432)

    E. The Trial Court Denies Defendant's Motion to

    Dismiss.

    At the close of the State's evidence, defendant moved to dismiss both charges on the ground of insufficient evidence. (Tp. 440) However, the Trial Court denied this motion and ruled that the cases could go to the jury. (Tpp. 508-516) Defendant did not present any evidence. (Tp. 517)

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