IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA15-272
Filed: 20 October 2015
Cumberland County, No. 11 CRS 59302
STATE OF NORTH CAROLINA
v.
VICTOR JAY CRISCO, JR.
Appeal by defendant from judgment entered 15 August 2014 by Judge James
Floyd Ammons, Jr. in Cumberland County Superior Court. Heard in the Court of
Appeals 8 September 2015.
Attorney General Roy Cooper, by Special Deputy Attorney General Sandra
Wallace-Smith, for the State.
Gilda C. Rodriguez for defendant-appellant.
TYSON, Judge.
Victor Jay Crisco, Jr. (“Defendant”) appeals from his conviction of first-degree
murder. We find no prejudicial error.
I. Background
Defendant was tried and convicted by a jury of murdering Carrie Welch
(“Welch”). On 2 July 2010, a lineman employed with the power company was
relocating power lines in Fayetteville when he discovered Welch’s body. The body
was found on Neptune Drive, a dirt road off of Bragg Boulevard, and behind the
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former Stereo World building. The lineman immediately called his supervisor, who
called the police.
Fayetteville Police Officer John Newland arrived on the scene where the body
was discovered. Although Officer Newland was very familiar with Welch, it took him
ten or fifteen minutes to identify the body, due to the presence of blood and
disfigurement of the face.
Dr. Jonathan Privette, a staff pathologist in the Medical Examiner’s office,
performed the autopsy on Welch’s body. He was admitted and testified as an expert
witness in forensic pathology, and opined that Welch died as a result of blunt force
injuries to her head. He also testified that Welch was struck at least seven times on
the head. Dr. Privette was unable to determine with certainty the type of instrument
which caused the injuries, but testified they could have been caused by a baseball bat.
The State’s evidence tended to show Welch and her husband, Patrick Welch
(“Patrick”), rented a residence owned by Defendant located on Rhew Street in
Fayetteville. Patrick’s mother paid Welch and Patrick’s rent. Patrick’s mother died
approximately one month before Welch was murdered. Defendant lived about two
blocks from the house he rented to Welch and Patrick.
Marisha Garland (“Garland”) supplied drugs to Welch, Patrick, and
Defendant. Garland had known Welch for about ten years. On 24 June 2010,
Defendant called Garland’s cellphone from the Cumberland County jail. Defendant
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was trying to reach Welch, who was present with Garland at the time. Garland
handed the phone to Welch, who spoke with Defendant. According to Garland,
Defendant wanted money retrieved from his house to use for his bail. Garland heard
Welch say to Defendant that “she would have to get Patrick to do it because she
couldn’t go do it.” According to Garland, Defendant agreed Patrick was to go into
Defendant’s house and get money to bail him out of jail.
Patrick and an acquaintance went to Defendant’s house. Shortly thereafter,
Officer Rodney Miller responded to a complaint of someone loitering behind
Defendant’s house. When he arrived, he saw Patrick enter the back door of
Defendant’s house. Officer Miller called for backup and the officers entered the
house. Patrick stated he had permission from Defendant to be in the house to get
money for Defendant’s bail. Defendant, who was still in jail, was contacted and told
the police that no one was allowed to be in his house. Patrick and his acquaintance
were arrested for breaking and entering. They were released the same day with
unsecured bonds.
Patrick failed to appear in court on the breaking and entering charge. A week
later, on 1 July 2010, Defendant telephoned Officer Trevor Durham. Officer Durham
testified that Defendant was out of jail and “irate” because Welch and Patrick broke
into his house while he was in jail. Defendant wanted them immediately arrested
and told Officer Durham where Patrick was located. The same evening, Officer
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Durham arrested Patrick for failing to appear in court on the breaking and entering
charge.
The same day, 1 July 2010, Welch called her sister-in-law, Wanda Wingard
(“Wingard”) around 10:00 p.m. from Defendant’s cellphone. Welch asked Wingard for
$300.00 to bail Patrick out of jail. Ms. Wingard asked her to call back the following
morning so that she could verify the information given by Welch.
A. Garland’s Testimony
According to Garland, Welch engaged in prostitution to raise the money needed
to bail Patrick out of jail. Garland picked Welch up from a gas station after her last
“date.” They saw Defendant at the gas station. Garland drove Welch to Defendant’s
house around 3:00 a.m. Defendant arrived home approximately five minutes later.
Garland went inside Defendant’s house and stayed for approximately twenty
minutes. She sold drugs to Welch and gave drugs to Defendant to “watch over” Welch
because Welch was “scared.”
Garland testified Welch was supposed to call her around 8:00 a.m. for them to
meet at 9:00 a.m. to go post Patrick’s bail. At approximately 5:00 a.m., Garland
received a call from Defendant’s cellphone. Garland did not answer the call and a
voicemail message was left. When Garland listened to the voicemail message, she
heard loud “Elvis” music playing in the background and Welch screaming hysterically
“wait, wait, wait.” Garland testified Defendant often listened to “Elvis” music.
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Garland went to Defendant’s house around 10:00 a.m. and spoke with
Defendant, who was standing outside. She testified that Defendant appeared
“normal” and was smoking a cigarette. Garland did not go inside the house, nor did
she later describe the subject matter of that conversation with Defendant.
Garland thereafter learned that Welch’s body had been found behind the
former Stereo World building. She returned to Defendant’s house around 2:00 p.m.
and entered Defendant’s residence through the back door. She observed Defendant
cleaning and wiping the kitchen floor. The house smelled of “a lot of Clorox, or
bleach.” She stated, “[t]he box said bleach.”
The day after Welch’s murder, Defendant went to Wingard’s house to collect
Welch and Patrick’s rent. Wingard told Defendant that the “money trail” stopped
with the death of her mother-in-law. They would not be paying Welch and Patrick’s
rent. Defendant then asked Wingard if she had heard about Welch’s death and stated
there was a rumor going around the neighborhood that he had killed Welch.
B. Matthew Black’s Testimony
Matthew Black (“Black”) was an acquaintance of Defendant’s since grade
school. Black would occasionally perform handyman repair services for Defendant.
One day in early 2011, Defendant called Black and stated he wanted Black to board
up some windows in his house. Black picked Defendant up and the two men drove to
Defendant’s house. Upon arrival, they sat in Black’s truck for a while. Black testified
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Defendant stated he had “an eerie feeling” about going inside the house. While they
were inside the house, Defendant stated to Black that he was a “prime suspect” in
the Carrie Welch murder case. Defendant also asked Black about applying
polyurethane to the kitchen cabinets.
Defendant and Black later purchased a bottle of tequila and went to Black’s
mother’s house. They began drinking shots of the tequila. According to Black,
Defendant told him that he had killed Welch with a baseball bat in his kitchen.
Defendant explained to Black that Patrick Welch was in jail, and that Defendant had
pending charges and would be going to jail. Defendant claimed Welch was
blackmailing him. Defendant stated Welch told him “if he didn’t take care of her . . .
he was going to become [Patrick’s] bitch.”
Defendant went to the bathroom. Black called his wife, Michelle, and told her
to stay on the phone and just listen. Defendant returned and Black and Defendant
continued to discuss Welch’s murder. Defendant told Black again that he had killed
Welch. He stated he burned the baseball bat in the fire pit outside his house and took
the body to a remote area off Bragg Boulevard near the former Stereo World building.
Defendant spent that night at Black’s mother’s house. The next morning Defendant
told Black to forget what he had told him the previous night.
Michelle Black testified her husband called her and told her to listen, but not
talk. She heard her husband ask a man, whose voice she recognized as Defendant’s,
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to repeat what he had just said. Defendant stated he and Welch were in the kitchen,
he beat her with a baseball bat, and took her body to Bragg Boulevard.
In February 2011, Matthew Black placed two calls to Crime Stoppers to report
what Defendant had told him. Crime Stoppers offers rewards for tips that lead to
criminal convictions. Michelle Black testified her husband called Crime Stoppers the
day after Defendant confessed to the murder.
Detective Jason Sondergaard received the tips from Crime Stoppers on 14
February 2011. He contacted Black on 28 February 2011 and set up an interview.
Detective Sondergaard interviewed Black and his wife on 1 March 2011.
Sometime later, Defendant contacted Black and asked him if he had contacted
the police. Black lied and told Defendant he had not. Defendant stated to Black that
he had told a preacher from Sanford about the murder. Defendant told Black he
regretted telling the preacher, because the preacher was now acting differently.
Defendant also told Black he did not believe the preacher would keep the information
to himself.
C. Search of Defendant’s Residence
On 1 March 2011, Fayetteville police officers and SBI agents executed a search
warrant on Defendant’s residence. Officer Dianne Bettis, a K-9 handler certified in
cadaver recovery, searched the house with a cadaver dog. The dog alerted on a set of
drawers located in the kitchen.
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Chadrick Barefoot (“Agent Barefoot”), an SBI crime scene agent, searched the
house for evidence of blood. He observed dark red stains in a linear pattern on the
kitchen ceiling. Agent Barefoot also discovered blood stains on the wooden floor in a
room adjacent to the kitchen and underneath the floorboards. He applied Luminol to
areas throughout the home and observed a pale blue glow, indicating a positive result
for the presence of blood. These areas included the kitchen floor; an area near the
bathroom and bedroom; on the couch in the living room; and in the area between the
living room and kitchen.
Jessica Posto, a former SBI expert witness in body fluid identification,
examined items located in Defendant’s house for the presence of blood. The
swabbings from the kitchen ceiling and a deadbolt lock in the kitchen returned a
positive chemical reaction to indicate the presence of blood.
Sharon Hinton (“Hinton”), a forensic analyst at the North Carolina State
Crime Laboratory, tested the blood samples collected from Defendant’s house to
determine whether the DNA profile contained in the samples matched Welch’s DNA
profile. Hinton testified three blood samples obtained from the house completely
matched Welch’s DNA profile. Those three samples were obtained from the kitchen
ceiling, the kitchen wall near a door, and underneath a wooden floor board in an
additional room in the house.
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Charles Lee Newcomb (“Newcomb”), an SBI fire and arson investigator,
examined three pieces of burned wood recovered from Defendant’s backyard fire pit.
Newcomb testified that the pieces of wood had a “very tight grain pattern” and a
slight curvature. He testified that each piece of charred wood could have been
portions of a baseball bat.
Defendant was indicted for Welch’s murder on 19 March 2012. On 11 August
2014, Defendant filed a motion to suppress from the jury any confession Defendant
made to Ronnie Roy (“Pastor Roy”), pastor at Messiah Baptist Ministries, pursuant
to N.C. Gen. Stat. § 8-53.2. Defendant also filed a motion in limine to exclude
Matthew Black’s testimony that Defendant told him he had confessed to a preacher.
This motion requested the court to order the State to “refrain from directly or
indirectly eluding to a confession made by the defendant to his pastor” pursuant to
N.C. Gen. Stat. § 8-53.2 and Rules 402 and 403 of the Rules of Evidence. This motion
asserted Black had been interviewed several times by the State and defense counsel,
and had only mentioned Defendant’s confession to a pastor within the ten days
preceding the filing of the motion.
The court heard the motions immediately prior to the commencement of trial.
The court heard voir dire testimony from Black and Pastor Roy. Black testified to
the statements Defendant made to him at his mother’s house about Welch’s murder.
Black also testified about Defendant’s phone call to him in which he asked Black if
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he had talked to the police and stated he had told a preacher in Sanford about the
murder.
Pastor Roy testified at the motion hearing that he was ordained by Bethel Bible
College in Sanford. He had previously served as the pastor of Messiah Baptist
Church in Harnett County. Pastor Roy met Defendant, while both were students at
Fayetteville Technical Community College, and they became acquaintances. The two
men later lost touch and Pastor Roy became ordained as a pastor.
Pastor Roy stated he had not spoken with Defendant for a “long time.” He re-
connected with Defendant after he saw Defendant’s name in a “crime magazine”
pertaining to an unrelated charge. Pastor Roy contacted Defendant and informed
him that he had become a pastor, saw that Defendant was in trouble, and offered to
help Defendant. Pastor Roy thereafter contacted Defendant once or twice per week
and they talked. Defendant accepted Pastor Roy’s offer to participate in counseling
sessions with him. Defendant stated he wanted to stop using drugs and to change
his life.
During one of the counseling sessions, Defendant and Pastor Roy discussed
truthfulness as part of Pastor Roy’s program: “12 Steps to Freedom in Christ.”
Defendant told Pastor Roy he murdered Welch by beating her to death with a baseball
bat, disposed of her body, and attempted to clean up the murder scene. Defendant
also told Pastor Roy that Welch was trying to raise money to get her husband out of
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Opinion of the Court
jail, but Defendant was afraid of her husband and did not want him to be out of jail.
Defendant also told Pastor Roy that Welch came to his house one night and believed
Defendant was going to give her money. While Welch was on the phone, Defendant
picked up a baseball bat and beat her to death.
Pastor Roy stated Defendant participated in several more counseling sessions
with him over the next few weeks. On these occasions, Defendant would ask him
whether their conversation was being recorded or if he had called the police. Pastor
Roy stated he became fearful of Defendant and called the police. Pastor Roy testified
at the motion hearing only, out of the presence of the jury.
The trial court ruled the clergy-communicant privilege did not exist because
Pastor Roy had initially sought Defendant and offered to help him. The trial court
determined Defendant was not seeking counsel and advice from his minister. If the
privilege did exist, the court determined it was waived when Defendant confessed to
Black and told Black he had told a preacher about the murder. Pastor Roy was
present at trial, but was not called to testify.
The jury found Defendant guilty of first-degree murder. The trial court
sentenced him to life in prison without the possibility of parole. Defendant appeals.
II. Issue
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Defendant argues the trial court erred in concluding the clergy-communicant
privilege did not apply and by denying Defendant’s motion to suppress and motion in
limine concerning his statements.
III. Clergy-Communicant Privilege
A. Standard of Review
This Court’s review of the trial court’s order denying a motion to suppress “is
strictly limited to determining whether the trial judge’s underlying findings of fact
are supported by competent evidence, in which event they are conclusively binding
on appeal, and whether those factual findings in turn support the judge’s ultimate
conclusions of law.” State v. Stanley, 175 N.C. App. 171, 174, 622 S.E.2d 680, 682
(2005) (citations omitted). The trial court’s conclusions of law are reviewed de novo.
State v. Campbell, 188 N.C. App. 701, 704, 656 S.E.2d 721, 724 (2008) (citation
omitted).
B. Application of Privilege
N.C. Gen. Stat. § 8-53.2, entitled “Communications between clergymen and
communicants,” provides:
No priest, rabbi, accredited Christian Science practitioner,
or a clergyman or ordained minister of an established
church shall be competent to testify in any action, suit or
proceeding concerning any information which was
communicated to him and entrusted to him in his
professional capacity, and necessary to enable him to
discharge the functions of his office according to the usual
course of his practice or discipline, wherein such person so
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communicating such information about himself or another
is seeking spiritual counsel and advice relative to and
growing out of the information so imparted, provided,
however, that this section shall not apply where
communicant in open court waives the privilege conferred.
N.C. Gen. Stat. § 8-53.2 (2013).
Our Supreme Court has held that § 8-53.2 has two requirements for the clergy-
communicant privilege to apply: (1) the defendant must be seeking the counsel and
advice of his minister; and (2) the information must be entrusted to the minister as a
confidential communication. State v. West, 317 N.C. 219, 223, 345 S.E.2d 186, 189
(1986). This statute expressly allows the communicant to waive the privilege in open
court. N.C. Gen. Stat. § 8-53.2.
The State did not call Pastor Roy to testify before the jury. However, the trial
court’s denial of Defendant’s motion to suppress and motion in limine allowed
evidence that Defendant had communicated with Pastor Roy to be admitted into
evidence through the testimony of other witnesses. Black testified as follows:
Q: During any conversation he – Mr. Crisco said what to
you about – you started to say a preacher?
A: Yeah, he said that he had met a preacher in Sanford and
that he had told the preacher about it and he was
uncomfortable that he had told the preacher about it, and
that — that the preacher wasn’t acting right about him
telling him, you know, like he would keep it to himself or
something. I don’t –
Q: Now, you said “it” a lot, like what you’re talking about;
he told the preacher about what?
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A: The murder.
The trial court ex mero moto also asked Black about Defendant’s conversation
with Pastor Roy in front of the jury:
THE COURT: Can you tell me exactly what Mr. Crisco said
about any conversation with a preacher?
THE WITNESS: Yes, sir. He told me that he – the preacher
was helping him in Sanford get on his feet, and then he told
me that he had told the preacher about this murder, and
that he wished he wouldn’t had [sic] told him that, that the
preacher kind of – in other words, wasn’t going to — he
didn’t think he was going to keep it to himself, something
of that nature, that he was telling.
The State brought up the subject of the preacher again during its direct
examination of the lead detective, Detective Sondergaard, its last witness:
Q: Were you present in the courtroom when Matthew Black
during his testimony mentioned a phone call that he
received from Mr. Crisco and discussed talking to a
preacher, that Mr. Crisco spoke to a preacher; do you recall
that testimony?
A: Yes.
Q: Right now just answer with a yes or no: Throughout the
course of your investigation, were you contacted by a
preacher?
A: Yes.
Q: What was –
[DEFENSE COUNSEL]: Objection.
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THE COURT: Overruled as to that.
BY [THE PROSECUTOR]:
Q: What was his name?
A: Ronnie Roy.
Q: Is he present in the courtroom?
A: Yes, he is.
By its plain and ordinary meaning, N.C. Gen. Stat. § 8-53.2, applies to the
competency of clergyperson’s testimony, and only applies to communications between
Defendant and Pastor Roy. Although Pastor Roy was not called and did not testify
before the jury at trial, Defendant argues the State circumvented Defendant’s
privileged communication to Pastor Roy by eliciting testimony from Black and
Detective Sondergaard about the privileged communication. Even without calling
the preacher to testify, Defendant argues the State was able to show the jury
Defendant had confessed to a preacher, and the preacher was real and present before
them, all in violation of the privilege.
A party who communicates and makes disclosures to his preacher does not
have “any reason to expect confidentiality” when the disclosures are made in the
presence of a third party. West, 317 N.C. at 223, 345 S.E.2d at 189 (holding the
defendant’s admissions to his preacher were not “entrusted” to the preacher in
pursuit of counsel and advice when the preacher’s wife was present). In the context
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of the clergy-communicant privilege, our appellate courts have not considered
whether a disclosure made to clergy can be waived by an out of court, voluntary
disclosure of the substance of the communication to a third party.
However, “[i]t is well established in this state that even absolutely privileged
matter may be inquired into where the privilege has been waived by disclosure.”
Industrotech Constructors, Inc. v. Duke University, 67 N.C. App. 741, 743-44, 314
S.E.2d 272, 274 (1983) (holding any privilege of confidentiality in arbitration
transcripts had been waived by the university’s disclosure of the materials to a non-
party). The plain language of the statute itself allows waiver in open court.
N.C. Gen. Stat. § 8-53.2 applies only to “confidential” communication between
clergy and communicant. The statute does not restrict the applicability of the
privilege based upon which party initiates the communication. Presuming Defendant
was seeking the counsel and advice of Pastor Roy when he confessed to Welch’s
murder, Defendant’s statements were “entrusted” to Pastor Roy under the privilege.
N.C. Gen. Stat. § 8-53.2.
Defendant told Black, a third party and not a pastor, that he had confessed to
“a preacher in Sanford” about the murder. West, 317 N.C. at 223, 345 S.E.2d at 189.
No recognized privilege exists between Defendant and Black. The statement by
Defendant to Black that Defendant had confessed to a preacher is not privileged. The
State was permitted to present evidence of statements Defendant made to Black
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because N.C. Gen. Stat. 8-53.2, by its express terms, does not apply to or exclude
those statements.
D. Prejudice
Even if we accept Defendant’s argument that the trial court erred in admitting
Black’s testimony that Defendant stated he had told “a preacher from Sanford” about
the murder or Detective Sondergaard’s testimony, Defendant has failed to show
prejudice to warrant a new trial. Erroneous admission of evidence requires a new
trial only when the error is prejudicial. State v. Locklear, 349 N.C. 118, 149, 505
S.E.2d 277, 295 (1998), cert. denied, 526 U.S. 1075, 143 L. Ed. 2d 559 (1999). “A
defendant is prejudiced by errors relating to rights arising other than under the
Constitution of the United States when there is a reasonable possibility that, had the
error in question not been committed, a different result would have been reached at
the trial out of which the appeal arises.” N.C. Gen. Stat. § 15A-1443(a) (2013). The
burden rests upon Defendant to show prejudice. Id.
The State presented other relevant and substantial evidence from which a jury
could find beyond a reasonable doubt that Defendant killed Carrie Welch and
committed first-degree murder: (1) Garland left Welch with Defendant at his home
in the early morning hours of 1 July 2010; (2) around 5:00 a.m., Welch called Garland
from Defendant’s cellphone; (3) in the voicemail message left on Garland’s phone,
“Elvis” music was playing and Welch was hysterically screaming “wait, wait, wait”;
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Defendant regularly played “Elvis” music; (4) around 2:00 p.m. the same day, Garland
returned to Defendant’s home and saw Defendant wiping his kitchen floor; (5) the
residence smelled of bleach and Garland saw a box of bleach; (6) Defendant told Black
he killed Welch in his kitchen with a baseball bat; (7) Michelle Black heard Defendant
state he beat Welch to death with a baseball bat and took her body to Bragg
Boulevard; (8) blood was found on Defendant’s kitchen ceiling, the kitchen wall, and
the floor in an additional room, which matched Welch’s DNA profile; (9) charred
pieces of wood with a “very tight grain pattern” and slight curvature were found in
Defendant’s backyard; (10) an SBI fire and arson expert testified each piece of charred
wood could have been portions of a baseball bat.
Defendant has failed to show a reasonable possibility exists that a different
result would have been reached by the jury if Black or Detective Sondergaard had not
been permitted to testify Defendant stated to him that he told “a preacher in Sanford”
about the murder. The admission of Black’s testimony was not prejudicial error to
warrant a new trial.
IV. Conclusion
The clergy-communicant privilege set forth in N.C. Gen. Stat. § 8-53.2 does not
depend upon which party initiates the communication. The privilege does not apply
to Defendant’s statements to Black, a third party and non-pastor, about his confession
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to “a preacher in Sanford” regarding the murder. No privilege exists between
Defendant and Black to exclude Black’s testimony.
Even if the admission of Black’s or Detective Sondergaard’s testimony was
error, Defendant has failed to show prejudice. Defendant received a fair trial, free
from prejudicial errors he preserved and argued.
NO PREJUDICIAL ERROR.
Judges BRYANT and GEER concur.
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