Statement of Grounds for Appellate Review

STATEMENT OF THE CASE

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This case came on for trial before the Honorable Gary E. Trawick, Judge Presiding, at the October 30, 2006 Criminal Session of Robeson County Superior Court, where defendant was to be capitally tried for two counts of First Degree Murder and one count of Robbery with a Dangerous Weapon. A jury was duly impaneled and, on December 8, 2006, after the presentation of evidence, found Defendant guilty of all charges. This same jury then heard the presentation of sentencing evidence and, on December 13, 2006, sentenced defendant to two terms of life imprisonment. The trial judge arrested judgment on the Robbery with a Dangerous Weapon conviction. Defendant gave notice of appeal in open court on December 13, 2006 and the trial judge appointed the Appellate Defender to perfect Defendant’s appeal. On December 18, 2006, undersigned counsel was appointed to perfect Defendant’s appeal. The court reporters delivered the final transcript in this case to undersigned counsel on May 16, 2007. Undersigned counsel sought and received one thirty (30) day extension of time from the trial court, in which to prepare and serve the proposed record on appeal, and two extensions of time from this Court for same. The record on appeal was filed on October 29, 2001 and docketed on October 31, 2007. The original printed record was mailed on November 5, 2007, and the corrected copy on December 3, 2007. Undersigned counsel sought and received one extension of time in which to file the brief, giving her until January 3, 2008, to do so.

STATEMENT OF GROUNDS FOR APPELLATE REVIEW

Mr. Jones hereby appeals his criminal convictions pursuant to N.C.G.S. secs. 7A-27(b)and 15A-1444(a),and the North Carolina Rulesof Appellate Procedure.

STATEMENT OF THE FACTS

This case involves the murder of two victims on the same day, July 1,2002. The firstmurder, of Frank Farmer, took place at a dumpsite in an area of Robeson County called Shannon. The second murder, of Merlin Oxendine, took place in a wooded area off Crawford Road near the intersection of Highway 74 in Robeson County. The State presented no physical evidence that linked Mr. Jones to either of these murders.

During the presentation of the State’s evidence, a juror named Ms. Kirby indicated that her aunt was in the intensive care unit of the hospital. (Tr. pp. 2992-96). The court replaced her with an alternate who was having transportation problems. The court directed that the court bailiff bring the replacement juror to and from court each day. (Tr. Tp. 2996; 3113) Right after this incident, defense counsel alerted the court that a woman in the audience was holding up a photograph of Ronnie Jacobs a murder victim in a Hoke County case. Mr. Jones had sought, via a motion in limine to exclude from evidence in this case any mention of Ronnie Jacobs’ death, insofar as Mr. Jones had previously been a suspect in that case. (Tr. Tp. 2998) Evidence was later introduced at this trial, via the testimony of Susie Strong and Agent Denning in violation of orders of the court, as discussedinfra that Mr. Jones had been a suspect in Ronnie Jacob’s death.

The State’s Case:

The State presented the following evidence: Sheriff’s Deputy Justin Sisco testified that he was called to the dumpsite on Shannon Road, arriving at 1:22 p.m. on July 1, 2002 and there discovered the body of Frank Farmer. (Tr. Tpp. 2984-88). Deputy Sisco’s report, found in the Record on pages 168-69, indicates that Curt Hardin, a supervisor at the Robeson County landfill, advised him that a driver named Raymond Manning had emptied the dumpsters earlier that day, leaving at 1:05 p.m. (Tr. Tp. 2990; Rp. 169).

On cross-examination, Deputy Sisco testified that when he arrived at the scene there was a crowd of 4-5 vehicles already there. (Tp. 3008). He did not take their names. He testified that when he arrived, “[m]ost of them backed up and then they just ran and got in their cars and left.” (Tp. 3011) Deputy Sisco did not know how many people were there or how many people might have touched the body of Frank Farmer before he arrived on the scene. (Tr. Tp. 3012)

Lieutenant Bruce Meares was called to the scene at the Shannon dumpsite at 1:50 p.m. He observed that Mr. Farmer had a single gunshot wound to the back of his head. (Tr. Tp. 3027)Lieutenant Meares collected a gunshot residue kit, a straw hat, eyeglasses and cotton swabs with blood from the red Ford pick-up truck, later identified as belonging to Mr. Farmer. (Tr. Tp. 3030) Later, Lieutenant Meares collected, from Major Randall Patterson[i] clothing belonging to Mr. Farmer, as well as a black-handled knife, $1.48 in change and a set of keys. (Tr. Tp. 3032)

On cross-examination, Lieutenant Meares admitted the following: (1) that no bullets or shell casings were found at the dumpsite; that no fingerprints or DNA evidence were sampled or taken from the scene; (3) that 16 people went into the crime scene at the dumpsite; (4) that neither he nor anyone else investigating the scene shot a video of the scene, took any foot impressions or tested the blood that was found on Mr. Farmer’s truck; (5) that a lead fragment, found at the dumpsite and turned over to the SBI for processing, did not match anything it was tested with and that the SBI could not determine what kind of gun it was fired from; (6) that a .45 caliber black powder pistol was also found at the scene and was returned to its owner, Lannie Dell Locklear. Finally, Lieutenant Meares admitted that neither he nor anyone else investigating this case found any physical evidence, including fingerprints, DNA, hair samples, clothing fibers and the like, that linked Mr. Jones to the scene of the crime. (Tr. Tp. 3062-72)

After leaving the scene at the dumpsite, Lieutenant Meares received a call about another body found on Crawford Road off Highway 74. (Tr. Tp. 3052) The body, later identified as that of Merlin Oxendine, was found in a wooded area, and both it and the surrounding area had been charred by fire. The coals were still smoldering. As an assistant to arson specialist and SBI Agent Adrian Williams,Lieutenant Meares processed the scene and collected shell casings, lead bullets, a watch, burnt fiber, a tube of blood, burnt clothes and shoes, and two pocketknives. (Tr. Tp. 3056-59) No weapon was ever recovered from either scene.

On cross-examination, Lieutenant Meares admitted that Detective Donnie Britt performed a gunshot residue test on a suspect in this murder named Clinton Bacote. (Tr. Tp. 3063) Lieutenant Meares also admitted that he found absolutely no physical evidence linking Mr. Jones to the crime scene on Crawford Road either. (Tr. Tp. 3072)

Frank Farmer’s wife, Nancy Farmer, testified that onthe Friday just prior to July 1, 2002, she hadcashed a check for $500 and given the money to Frank. On Saturday morning, Frank bought a part for his truck, spending about $80. (Tr. Tp. 3078-79) According to Nancy, Frank always carried a hundred dollar bill, a black tri-fold wallet, phone numbers, insurance cards, driver’s license, pictures, money and a knife or two. He always carried a little knife with the shape of a tree on it in his front pocket. (Tr. Tp. 3080)

On July 1, 2002, Frank told her he was going to take the trash to the dump, and left to do so. (Tr. Tp. 3082) Later, a friend from Rennert named Robert McCrae came to the house and asked Nancy if Frank was around, and if not, what he was driving. When Nancy told him Frank had gone to take out the trash in his red truck, Mr. McCrae said, “I knew it. I don’t know, but I think Mr. Farmer is dead.” (Tr. Tp. 3084) Nancy insisted that Mr. McCrae take her there. When they arrived at the dumpsite, everything was roped off. Nancy went inside and identified her husband’s body. (Tr. Tp. pp. 3086)

Merlin Oxendine’s father, Merlin Ray Oxendine, Sr., testified as follows: Merlin Jr. was 26, did carpentry work and had a drug problem. If Merlin came home high, he sometimes slept in a building on the property. On June 30, 2002, Merlin came home high and had slept on top of a freezer in the building. Mr. Oxendine saw him lying there when he left for work on July 1, 2002, at around 5:30 a.m. (Tr. Tp. 3094-96) When Mr. Oxendine returned home from work that day, his home had been burglarized. He thought Merlin Jr. had done it. Mr. Oxendine did not call the police at the time. (Tr. Tp. 3097) On July 2, 2002, at around 11:00 a.m., law enforcement officers came to Mr. Oxendine’s home asking for a photograph of Merlin. (Tr. Tp. 3099)

Emory Oxendine, Merlin’s brother, testified as follows: that he was five years older than Merlin; that Merline had a bad drug problem in that he smoked crack; that on July 1, 2002, he last saw Merlin asleep in the car shelter around 5:30 a.m., when he was on his way to work; that when he came home on the evening of July 1, 2002, he saw that the windows were broken out of his parents’ bedrooms and the living room. Emory used the cell phone of SBI Agent Mark Oxendine to call 911 to report the break-in because law enforcementwas all around the neighborhood. (Tr. Tp. 3110)

Emory further testified that on June 30, 2002 he saw Merlin riding around in a Jeep Cherokee with two guys. One was about 28-30 years old with long sandy hair, and the other was around 30-40 years old, with short sandy hair. They, along with Merlin, drove out to Emory and Merlin’s parents’ house and one of them waved a gun at Emory. (Tr. Tp. p. 3111) Emory testified, “[y]eah, I told them to get out of my yard, bunch of crackheads and mess.” Emory referred to them as a “bunch of crackhead with a revolver.” (Tr. Tp. 3112) Emory testified that one of them was named Craig Locklear, and that Craig “got killed a couple of months ago. Somebody shot him.” (Tr. Tp. p. 3111)

Terry Locklear testified that she was a cousin of Merlin Oxendine, Jr., and that on the afternoon of July 1, 2002, she went to pay an insurance bill at 12:40 p.m., and then went home. On the way home, she stopped at the County Line store. There she was a woman named Susie Strong, who is a crackhead. She also saw Mr. Jones pumping gas into a big silver car. Inside the car, she saw a bony, dark-haired man with a little beard inside the car. (Tr. Tpp. 3120-26) She went home. The next day she saw Mr. Jones walking on the road and stopped and talked to him. She testified that he flashed a $100 bill at her. (Tr. Tp. 3130) On cross-examination, Ms. Locklear admitted that since 2003, she had had four criminal charges against her dismissed by the District Attorney. (Tr. Tp. 3143)

Steve Crawford Locklear testified that he is called “Pasac,” that he knows Mr. Jones and that he was friends with Merlin. “Pasac” testified that he saw Mr. Jones and Merlin together on July 1, 2002 between the hours of 9 am and 12 pm, and that Merlin came into his home. Merlin told him that he had a computer and an air conditioner he wanted to sell. “Pasac” told him that he would buy the air conditioner. Merlin left and got back in to Mr. Jones’ car, which was silver or dark grey. (Tr. pp. 3150-3155) According to “Pasac,” when they left, they were headed towards Shannon. “Pasac” saw Mr. Jones the next day but could not remember where. (Tr. Tp. 3156)

Mitchell Locklear testified that he lives near the County Line store; that he was a manager and security guard at the store; that the store is in a rough neighborhood; that he knows Mr. Jones from the store and that he had known Merlin all of his life. Mr. Locklear testified that Merlin came into the store every day and that the store has a lot of video surveillance cameras that run continuously. (Tr. Tpp. 3160-3164) Mr. Locklear testified that Merlin was about 5 feet four or five inches tall, had dark skin, dark brown hair and wore a hat a lot of the time. He testified that Mr. Jones was skinny, with dark hair and light skin. (Tr. Tp. 3163)

Mr. Locklear testified that on July 1, 2002, he opened the store at 5:30 a.m.. He saw Mr. Jones and Merlin together between 10:00 and 10:30 a.m. when Merlin came into the store and asked him if he wanted to buy a Tree Brand knife, or another one. Mr. Locklear knew Merlin had a drug problem. He did not want to buy either of the knives. Merlin got into the car with Mr. Jones and they left. (Tr. Trp. 3164-3170) Later that day, Mr. Jones came into the store between 1 and 1:30 p.m. Mr. Jones bought $3 worth of gas and put it into a silver car. (Tr. Tp. 3170)

On cross-examination, Mr. Locklear admitted that Tree Brand is a popular brand of pocketknife. He also testified that on June 30, 2002, Merlin came into the store and tried to sell him something. He was not with Mr. Jones, but was with two other guys Mr. Locklear did not recognize, in a white Jeep Cherokee. Merlin tried to sell Mr. Locklear some fluorescent lights that looked as if they were stolen, because they still had sheetrock stuck to them. (Tr. Tp. 3181-3188) Mr. Locklear testified that the police did not ask him for any video surveillance tapes of Merlin and the others at the store on June 30, 2002; but that they only wanted the videos showing Merlin with Mr. Jones on July 1, 2002. (Tr. Tp. 3189)

Kathy Oxendine, Merlin’s mother, testified that on June 30, 2002, Merlin came home that morning in a white Jeep Cherokee with two guys in it. Emory was yelling at them to get out of their yard. Around 2 or 2:30, Merlin came back in an old burgundy car with a girl and guy in it, asked his father for $10 and left. Mrs. Oxendine saw Merlin again around 9 pm. His father wouldn’t let him in the house, so Mrs. Oxendine gave him a blanket and pillow so he could sleep in the car shelter. Mrs. Oxendine testified that she never saw Merlin pal around with Mr. Jones. (Tr. Tp. 3191-96)

Dr. Marvin Thompson testified that he performed the autopsy on Frank Farmer and that Mr. Farmer died of a gunshot wound to his head. (Tr. Tp. 3234)

Patricia Carter testified that on July 1, 2002, while taking a detour, she and her husband drove passed the dumpsite at Shannon. At the dumpsite, a slow-moving, older model burgundy car with its signal on attracted her attention. The driver had shoulder-length, wavy hair and looked spaced out. He kept looking but never once did he look in her direction. She waited and waited for the car to turn. Later that day, she learned that an old man had been killed at that spot on that day. Her husband called Detective Randall Patterson to report what they had seen. Mrs. Carter was visited by law enforcement at her home and her job. She was shown a photographic line-up and asked to identify the person she saw in the burgundy car that day. The line-up she was shown is State’s Exhibit 62, found in the record on page 232. She identified Mr. Jones, from photograph number 2 as the person she saw on that date[ii]. (Tr. Tpp 3260-3269)

On cross-examination, Mrs. Carter testified that the timeshe witnessed the individual in the burgundy car was between 12 and 2 pm. She testified that she had told Detective Patterson that the person she saw was a dark-skinned Indian or Mexican with a moustache[iii]. She had no doubt the car was a burgundy one. (Tr. Tp. 3271)

Susie Strong testified that she knows Mr. Jones, that she went to school with his mother and that her sister married his uncle. On July 1, 2002, she saw Mr. Jones, along with another boy, with dark hair and light skin and a cockeye. The other boy told her his name was Merlin. They all smoked crack together. They left and did not come back. Later she saw Mr. Jones at the County Line in a gray car, and he gave her a ride to “Pasac’s”. Merlin came running over from Pasac’s to the car. The two of them dropped her off at her mother’s house. (Tr. Tp. 3274-3285)

Ms. Strong testified that she saw Mr. Jones the next day when he came by her house and asked her if she wanted to smoke. She told Mr. Jones that she had found out Merlin was dead. Ms. Strong testified that Mr. Jones told her, “you didn’t tell nobody his name was Merlin, did you?” Ms. Strong further testified, in violation of the court’s ruling, that Mr. Jones told her that they [law enforcement] were looking for him about Ronnie Gene’s death[iv]. Mr. Jones told her, “don’t be telling nobody his name was Merlin, it ain’t Merlin it’s Steve.” Later that day she saw Mr. Jones again, he was swinging a broom inside her house; she was scared of him and she left. Ms. Strong identified State’s Exhibit 33 as the boy who was with Mr. Jones that day who called himself Merlin. (Tr. Tp. 3286-3301) On cross-examination, however, Ms. Strong admitted that she told Mr. Jones that Pasac had told her his name was Merlin. (Tr. Tp. 3302)

Detective Randall Patterson testified that he interviewed Patricia Carter on July 5, 2002 and that she told him she saw a Mexican or dark-skinned Indian with his right-turn signal on, at the dumpsite at Shannon. She stated that he was suspicious looking, had a mustache, dark wavy hair and that his car was burgundy. On July 9, 2002, Detective Patterson met with her again and she chose a photograph of Mr. Jones out of the lineup found in the record on page 232. (Tr. Tp. 3309-3315) On July 10, 2002, Detective Patterson apprehended Mr. Jones. (Tr. Tp. 3320)

On cross-examination, Detective Patterson admitted that he did not put together a photograph lineup based on the description of the suspect that Mrs. Carter had provided; i.e. (dark-complected, long wavy hair; mustache.) Instead, Detective Patterson testified, that he put the lineup together “[b]ased on other information we had received through the investigation.” He explained: “[w]e were looking at Eric Jones as a person of interest, and so that’s – I put him in the lineup to see if he was possibly the one she saw driving the vehicle.” (Tr. Tp. 3325) Detective Patterson readily admitted that none of the men in the lineup had long or wavy hair, and that all of them have short hair. He admitted that none of the men in the line-up appear to be Hispanic or Mexican or dark-skinned. (Tr. Tp. 3325-26) Detective Patterson further admitted that the photograph of Mr. Jones, photograph number 2, is in the top-dead center of the lineup, (Tr. Tp. 3327) and that no one else was around when he showed Mrs. Carter the photographic lineup. (Tr. Tp. 3327)