DOC Number: 0023098

Joseph E. Bates

North Carolina Department of Correction (Press Release)

Execution date set for Joseph Bates

RALEIGH - Correction Secretary Theodis Beck has set September 26, 2003 as the execution date for death row inmate Joseph Earl Bates. The execution is scheduled for 2 a.m. at Central Prison in Raleigh.

Bates, 35, was first sentenced to death on March 2, 1991 in Yadkin County Superior Court for the August 1990 murder of Charles Edwin Jenkins. On appeal, the North Carolina Supreme Court awarded Bates a new trial. After a second trial, Bates received the death sentence on November 9, 1994. He also received a 40-year sentence for one count of kidnapping.

A media tour is scheduled at Central Prison on Monday, Sept. 22. Interested media representatives should arrive at Central Prison's visitor center promptly at 10 a.m. on the tour date. Warden Marvin Polk will explain the execution procedures. The session will last approximately one hour. This will be the only opportunity to photograph the execution chamber and death watch area before the execution.

Journalists who plan to attend the tour should contact the Department of Correction Public Information Office at 919-716-3700.

ProDeathPenalty.Com

Joseph Bates, 35, was first sentenced to death on March 2, 1991 in Yadkin County Superior Court for the August 1990 murder of Charles Edwin Jenkins. On appeal, the North Carolina Supreme Court awarded Bates a new trial. After a second trial, Bates received the death sentence on November 9, 1994. He also received a 40-year sentence for one count of kidnapping.

On August 25, 1990, two fishermen discovered Charles Jenkins’ body floating in the Yadkin River, in Yadkin County, North Carolina. Charles’s ankles and wrists were bound by rope, his legs and arms were hog-tied, and a rope was tied around his neck. While investigating the murder, two police officers went to Bates’ house to speak with him. At that time, the officers obtained a piece of paper and some molding from Bates’ home having what appeared to be bloodstains on it. The following day, Bates gave a thirteen-page confession, in which he admitted to beating, hog-tying, kidnapping, and then shooting the victim in the neck. Bates was indicted for kidnapping and murder.

The facts surrounding the crime are undisputed. Sometime in late July or early August 1990, someone broke into and fired gunshots into Bates’ home, causing Bates to set up a temporary campsite on his employer Hal Eddleman’s property. Around this same time Bates told his friend, Gary Shaver, that he could kill someone. On August 10, Bates called Eddleman and told Eddleman to meet him at the bridge later that evening because something was "going down." Eddleman went to the bridge as instructed, but Bates never came to meet him. The next evening Bates and Shaver went to a night club. At approximately 1:45 a.m., Bates instructed a waitress to ask Billy Grimes, another friend, to telephone Eddleman. Bates told her that Grimes and Eddleman would know what was going on.

At approximately 2:00 a.m., Jenkins asked Bates and Shaver for a ride home. During the ride, Bates asked Jenkins if he knew Bates’ ex-wife and her new boyfriend, and Jenkins replied that he did. Bates stopped twice during the ride. During the second stop, Bates struck Jenkins three times on the back of the head with a shovel, appearing to knock him unconscious. When Jenkins began to moan, Bates struck him again, hog-tied him, and then placed him in the vehicle. On the way back to his campsite, Bates stopped at Eddleman’s house and told Eddleman that he "got one of the MF’s." He then told Grimes, "I’ve got one of the guys that’s been messing with me. Do you want to watch or help?" Grimes declined to help, as did Shaver and Eddleman.

Bates drove Jenkins back to his campsite around 4:00 a.m. At the campsite, Bates loosened the ropes on Jenkins and began asking Jenkins who had shot into his home. Jenkins mentioned two people who were involved, but did not say anything else. Unsatisfied with Jenkins’ response, Bates then tied Jenkins to a tree and went to his tent to retrieve a gun that he had borrowed from Eddleman. Bates put the gun up to Jenkins throat, but Jenkins repeated that he did not know for sure who had shot into Bates’ home. Bates then untied Jenkins, took him to the back of the truck, and shot him in the neck. Jenkins was lying face-up near the back of the truck when Bates shot him.

In his confession, Bates said he "shot him . . . because he acted like he knew who had shot into my house, he spit on me and told me to go to hell, and this made me mad and I shot him." After rummaging through Jenkins’ pockets, Bates retied Jenkins’ hands and feet and loaded him into the jeep. Bates drove back to Eddleman’s house, returned Eddleman’s gun, and asked, "what do you think I should do with the body." Bates then left and threw the body into the Yadkin River.

Later that day Bates discussed the murder with both Eddleman and Grimes. Bates told Eddleman, "Well, it don’t bother me all that bad." Bates told Grimes that he killed the victim because he would get no more time for murder than for kidnapping. Bates was indicted for kidnapping and murder. The State sought the death penalty. A jury found Bates guilty of one count of first degree murder and one count of first degree kidnapping. He was sentenced to death for the first degree murder conviction. On appeal, the North Carolina Supreme Court awarded Bates a new trial based on an improper denial of Bates’ motion for an ex parte hearing regarding his request for funds to employ a forensic psychologist. Bates was retried, and a second jury found Bates guilty of one count of first degree kidnapping and one count of first degree murder on the basis of both the felony murder rule and premeditation and deliberation. The jury recommended the death sentence on the basis of the kidnapping and the especially heinous, atrocious, or cruel nature of the crime. On November 9, 1994, Judge Julius Rousseau sentenced Bates to death for the first degree murder conviction and to an additional forty years in prison for the kidnapping conviction.

Raleigh News & Observer

"N.C. Man Executed for 1990 Slaying," by Estes Thompson. (AP September 26, 2003)

RALEIGH, N.C. (AP) - A Yadkin County man executed early Friday for a 1990 slaying he blamed on brain damage referred to a Bible verse just before he was put to death.

Joseph Earl Bates, 35, was executed by injection at Central Prison in Raleigh. He was pronounced dead at 2:14 a.m., said Department of Correction spokeswoman Pam Walker. "I haven't really give it any thought," Bates said when asked by prison warden Marvin Polk for last words before being wheeled into the steel-walled execution chamber. "Let's see. Hebrews, Chapter 13, Verse 6, they can read it." The verse says: "So that we may boldly say, the Lord is my helper, and I will not fear what man shall do unto me."

None of Bates' relatives witnessed the execution. Bates stared straight ahead as four law enforcement officers and two relatives of the victim watched as he died. "It's just an ending of the case," said Yadkin County Sheriff Michael Cain. "Certain crimes are going to be met with certain penalties." Bates confessed to killing Charles Edward Jenkins of Yadkin County after agreeing to give him a ride home from a bar.

Bates was convicted of first-degree murder and kidnapping in 1991 but his conviction and death sentence were overturned because he didn't receive funds for a mental health expert. The expert in his second trial in 1994 didn't know about his brain injury. He was convicted and resentenced to death for the 1990 slaying.

Defense lawyers appealed to the U.S. Supreme Court while Bates visited relatives hours before the execution was scheduled. They also sought clemency from North Carolina Gov. Mike Easley. Both requests were denied on Thursday. "I find no compelling reason to invalidate the sentence recommended by two juries and affirmed by the courts," Easley said in a statement issued by his office.

The federal appeal said Bates was poorly represented by appeals lawyers after he was convicted. The petition said one lawyer spent very little time on the case, billing only 12 minutes in 1998, and the other was ineffective because he was depressed. Justices of the North Carolina Supreme Court denied an appeal on Wednesday.

Bates' family and friends said he was coerced into the killing by two other men, one of whom received a suspended sentence for aiding in the kidnapping. Prosecutors and Jenkins' family said the killing was premeditated and brutal. Jenkins' body was thrown into a river.

Two other inmates have been executed in North Carolina in the past five weeks. Another execution is scheduled next week for convicted killer Edward Hartman. Hartman, 38, was convicted of the 1993 murder of Herman Smith Jr. in Northampton County.

News 14 Carolina

"Bates Executed for 1990 Slaying in Yadkin County." (AP 9/26/2003)

(RALEIGH) -- A Yadkin County man was executed Friday morning at Raleigh's Central Prison. Joseph Earl Bates was put to death by lethal injection for a 1990 murder. A Correction Department official says Bates died at 2:14 a.m. He was 35 years old. Bates confessed to shooting Charles Edward Jenkins. His body was dumped in a river.

Governor Easley and the U.S. Supreme Court declined on Thursday night to stop his execution. Bates' death row attorneys had said he deserved a life sentence. They say jurors never heard about the brain damage he suffered from a car wreck three years before the murder. They also say he was poorly represented by his former appeals lawyers after he was convicted. Attorneys for the state and Jenkins' family argued the slaying was a premeditated, brutal killing.

Bates is the third death row prisoner executed in North Carolina in the past five weeks. Another execution is set for next week.

NBC Channel 17 News

"State Executes Joseph Earl Bates For 1990 Slaying."

September 26, 2003 RALEIGH, N.C. -- A Yadkin County man was executed early Friday for a 1990 slaying he blamed on brain damage he suffered from a car wreck three years earlier. Joseph Earl Bates, 35, was put to death by lethal injection at Central Prison in Raleigh. He was pronounced dead at 2:14 a.m., said Department of Correction spokeswoman Pam Walker.

Bates confessed to killing Charles Edward Jenkins of Yadkin County after agreeing to give him a ride home from a bar. Bates was convicted of first-degree murder and kidnapping in 1991 but his conviction and death sentence were overturned because he didn't receive funds for a mental health expert. The expert in his second trial in 1994 didn't know about his brain injury. He was convicted and resentenced to death for the 1990 slaying.

Defense lawyers had appealed to the U.S. Supreme Court while Bates visited relatives hours before the execution was scheduled. They also sought clemency from North Carolina Gov. Mike Easley. Both requests were denied on Thursday. "I find no compelling reason to invalidate the sentence recommended by two juries and affirmed by the courts," Easley said in a news release, refusing to commute Bates' sentence to life in prison.

The federal appeal said Bates was poorly represented by appeals lawyers after he was convicted. The petition said one lawyer spent very little time on the case, billing only 12 minutes in 1998, and the other was ineffective because he was depressed. "This petitioner, locked on death row, experienced the illusion of two counsels acting on his behalf," the petition said. Justices of the North Carolina Supreme Court denied an appeal on Wednesday. State prosecutors have said Bates had no claims that warrant a stay of execution and a review by appeals courts.

Bates' family and friends said he was coerced into the killing by two other men, one of whom received a suspended sentence for aiding in the kidnapping. Attorneys for the state and Jenkins' family said the killing was premeditated and brutal. Jenkins' body was thrown into a river.

Two other inmates have been executed in North Carolina in the past five weeks. Another execution is scheduled next week for convicted killer Edward Hartman. Hartman, 38, was convicted of the 1993 murder of Herman Smith Jr. in Northampton County.

NBC Channel 17 News

"Easley Holds Clemency Hearing For Bates, Convicted Of Kidnapping, Murder." (09/23/03)

RALEIGH, N.C. -- Gov. Mike Easley heard Tuesday from prosecutors and defense attorneys arguing whether a Yadkin County man should be executed later this week. Joseph Earl Bates is set to die early Friday at Raleigh's Central Prison. He was convicted of kidnapping and killing a man he met at a bar in 1990.

Bates confessed to fatally shooting Charles Jenkins, but his attorneys say jurors didn't hear evidence about how Bates' suffered brain damage after a serious car accident three years before the murder. They also told reporters after the clemency hearing that at least one of his appellate lawyers didn't give enough time to the case.

Yadkin County District Attorney Tom Horner spoke with Easley Tuesday morning at the governor's office in Raleigh. Easley can commute the sentence to life in prison.

Bates' attorneys say they plan late Tuesday or Wednesday to ask the state Supreme Court for a stay of the execution.

NBC Channel 17 News

"N.C. Supreme Court Denies Stay Of Execution For Bates."

September 24, 2003 RALEIGH, N.C. -- The state Supreme Court on Wednesday denied a request for a stay from a death row inmate who said brain damage suffered in a car wreck changed him from a kind man into a killer. The court denied the request from Joseph Earl Bates, who is scheduled to be executed at 2 a.m. Friday.

Bates, 35, confessed to killing Charles Edward Jenkins after agreeing to give him a ride home from a bar in 1990, three years after his car accident. A Yadkin County judge Monday denied a request for a stay of the execution. His attorneys filed an appeal late Tuesday to the state Supreme Court, saying brain injury evidence and allegations of ineffective counsel need to be considered.

In a response filed Wednesday, state prosecutors said "Bates has presented nothing warranting a stay of execution and certiorari review." Bates was convicted of first-degree murder and kidnapping in 1991 but his conviction and death sentence were overturned because he didn't receive funds for a mental health expert. The expert in his second trial in 1994 didn't know about his brain injury. He was convicted and resentenced to death.

Bates' family and friends say he was coerced into the killing by two other men, one of whom received a suspended sentence for the aiding in the kidnapping. At a clemency hearing Tuesday, Bates' attorneys asked Gov. Mike Easley to commute his sentence to life behind bars. Bates had several friends and family members pleading his case outside Easley's office, recalling a Joe Bates who worked hard in school and on the football field before his accident made him paranoid and irrational. "He doesn't deserve the death penalty," said his sister, Tricia Bullins of Sandy Ridge, while carrying an old Bible, embossed with her brother's name. "This is totally out of character."

Attorneys for the state and Jenkins family' told Easley earlier Tuesday the execution should go forward, saying it was a premeditated, brutal killing. Jenkins' body was thrown into a river. "Life is a valuable thing and my brother's life was taken," said David Jenkins, the victim's brother. "Life is so valuable that it requires a life be paid."

Bates' attorneys also have presented sworn statements from two former lawyers who handled Bates' post-conviction appeals. One said he suffered from clinical depression while handling a Bates motion, seriously harming If his appeals fail, Bates would be the third death row prisoner to be executed in North Carolina in five weeks.

On Wednesday, the state Correction Department named witnesses for Bates' execution. Official witnesses are: David Jenkins and Karl Jenkins, both victims' family members; Ron Perry and Frank Brown, both of the State Bureau of Investigation; Yadkin County Sheriff Michael Cain; and Yadkin County sheriff's Maj. Raymond Wells Swain. Media witnesses are: Andy Matthew of the Yadkin Ripple; Scott Sexton of the Winston-Salem Journal; and Estes Thompson of The Associated Press.

Charlotte Observer

"A questionable case; Here's one more example of N.C.'s flawed system."

Here's the theory: A person accused of first-degree murder in North Carolina is entitled to a vigorous, competent defense and a comprehensive review of the sentence before being put to death.

Here's the reality: Those accused of murder often have incompetent lawyers who don't thoroughly investigate the facts, bring those facts to the jury's attention and aggressively pursue appeals after conviction. Defendants go to their death in the sure knowledge that the state allows some killers to get off with life in prison while others convicted of similar crimes get the Big Needle.

If usual practice continues this week, convicted murderer Joseph Earl Bates will be put to death early Friday at Central Prison in Raleigh without a single juror ever considering some critical facts in his case. The sorry truth is that Mr. Bates' lawyers never told his trial jurors that the defendant had suffered brain damage in an auto accident that rendered him paranoid, anxious and depressed -- factors the federal courts have said should be considered in murder cases. Four jurors later said they might have voted differently had they known of his background.

There is no doubt that Joseph Earl Bates killed Charles Jenkins, a stranger, after offering him a ride home from a bar in 1990. There is also no question that Mr. Bates, who had been borderline mentally retarded prior to suffering the brain damage in 1987, underwent significant personality changes after the accident. Experts now say he was suffering from severe mental disturbances, but his trial lawyers never brought that up at trial.

One of his appellate lawyers also suffered from mental problems, quit working on the case and left town, Mr. Bates' lawyers say. That lawyer, David Williams, later said his condition had an adverse impact on his ability to represent Mr. Bates.

These kinds of circumstances often cloud the death sentences handed out in North Carolina. Gov. Mike Easley, who has the constitutional duty to make the final person on whether justice was done in death penalty cases, appears to view his role narrowly -- as an appellate judge making sure there was no overriding legal error in the process.

We believe the governor should take a broader view and answer the questions that trouble many North Carolinians -- even those who support the death penalty. Is it fair that some murderers are sentenced to life in prison while others found guilty of similar crimes are put to death? Is it fair that prosecutors in some parts of the state seek the death penalty for crimes that prosecutors elsewhere would not treat as capital cases? Is it fair that, with few exceptions, murderers sentenced to death had lousy or inexperienced lawyers?

We believe the answers to these questions are no, no and no. Gov. Easley should impose a moratorium on further executions until the state demonstrates that it can prosecute capital cases and apply the death penalty in an equitable fashion. This won't spare Joseph Earl Bates' life. But it would spare the people of North Carolina the awful knowledge that our system of criminal justice is so fatally flawed.

People of Faith Against the Death Penalty

Joseph Bates, scheduled for execution on September 26, 2003 at 2 am

Joseph Bates admitted killing Charles Jenkins, whom he’d never met until the night of the murder, because he thought Jenkins was plotting with Joe’s ex-wife and her lover to get him. Important facts about Joe’s mental health were not presented at trial and have never been fully explored in the courts; in particular, Joe suffered repeated traumatic head injuries in the years before the murder that changed his personality. Mental health experts have concluded that Joe is paranoid and delusional; he has tried to commit suicide twice since his conviction. In fact, four jurors now say they might have decided against death had they known of his mental problems.

National Coalition to Abolish the Death Penalty

Joseph Bates, North Carolina - Sept. 26, 2003

The state of North Carolina is scheduled to execute Joseph Bates, a white man, Sept. 26 for the 1990 murder of Charles Jenkins. Bates has serious mental health issues that were not presented at trial or pursued in court. He suffers from the effects of serious and repeated traumatic head injuries that were suffered in the years before his crime and subsequently altered his personality. He has been diagnosed as paranoid and delusional and has attempted suicide twice while in prison.

Four jurors have stated that they would have handed down a different verdict had they known of Bates’s mental problems.

The National Mental Health Association, the nation's oldest and largest organization that conducts research on mental illness, estimates that as many as 370 people with severe mental illnesses currently sit on death row—more than 1 of every 10 prisoners awaiting execution. The justice system "inadequately addresses the complexity of cases involving criminal defendants with mental illness," the group has concluded, calling for a complete suspension of the death penalty until the courts devise "more just, accurate and systematic ways of determining and considering a defendant's mental status."

In fact, there are currently few provisions in place that require judges and juries to spare the lives of those with severe mental illnesses. Even defendants who suffer from extreme delusions are deemed mentally "competent" to stand trial for their life if they simply understand that they are being executed and why they are being executed. "You may believe that your thoughts are controlled by aliens who are beaming rays into your brain," says Stephen Bright, an attorney who heads the Southern Center for Human Rights in Atlanta, "but that won't necessarily have any bearing when it comes to assessing your competence to be executed."

"Mentally ill or not, most people facing capital charges are poor," notes Collie Brown, senior director for criminal justice programs at the National Mental Health Association. "They don't have the resources to retain expert witnesses," and they often get court-appointed attorneys who don't even raise their condition at trial."

The state sanctioned termination of the mentally ill can not be allowed to continue. Please contact Gov. Mike Easley and urge him to commute the death sentence of Joseph Bates.

Bates v. North Carolina, 473 S.E.2d 269 (1996). (Direct Appeal After Remand)

Defendant's initial conviction of murder and sentence of death was reversed for new trial by the Supreme Court, 333 N.C. 523, 428 S.E.2d 693. Following jury trial before the Superior Court, Yadkin County, Rousseau, J., defendant was again convicted of first-degree murder and first-degree kidnapping and sentenced to death. Defendant appealed. The Supreme Court, Frye, J., held that: (1) defendant was properly denied instruction on second- degree murder; (2) refusal to submit separately four nonstatutory mitigating circumstances either not supported by evidence or subsumed in other mitigating circumstances was not error; (3) trial court correctly refused to peremptorily instruct jury regarding mitigating circumstances on which evidence was controverted; (4) aggravating circumstances that murder was especially heinous, atrocious or cruel and that murder was committed in course of commission of felony were supported by separate evidence and thus both circumstances were properly submitted; (5) prosecutor's comments on defendant's demeanor were not improper comments on defendant's failure to testify; (6) defendant was not prejudiced by refusal to allow him to inquire whether jurors would hold his election not to testify against him; (7) defendant was not in custody when he made statements prior to being Mirandized; (8) trial court did not unduly restrict defendant's voir dire of prospective jurors; (9) prosecutor's exercise of eight of 12 peremptory challenges against women did not show prima facie case of gender discrimination; and (10) death sentence was not excessive or disproportionate to penalty imposed in similar cases. No error.

FRYE, Justice.
Defendant, Joseph Earl Bates, was indicted on 29 October 1990 for the murder and the first-degree kidnapping of Charles Edwin Jenkins. He was tried capitally in February 1991, found guilty of one count of first-degree murder and one count of first-degree kidnapping, and sentenced to death for the first- degree murder conviction. On appeal, we awarded defendant a new trial. State v. Bates, 333 N.C. 523, 428 S.E.2d 693, cert. denied, 510 U.S. 984, 114 S.Ct. 487, 126 L.Ed.2d 438 (1993) During defendant's second capital trial, the jury returned verdicts of guilty of one count of first-degree kidnapping and guilty of one count of first-degree murder on the basis of premeditation and deliberation and under the felony murder rule. During a capital sentencing proceeding conducted pursuant to N.C.G.S. § 15A-2000 the jury recommended a sentence of death for the first-degree murder conviction. The jury found as aggravating circumstances that the murder was committed while defendant was engaged in the commission of a kidnapping, N.C.G.S. § 15A- 2000(e)(5) (1988) ; and that the murder was especially heinous, atrocious, or cruel, N.C.G.S. § 15A-2000(e)(9) (1988) . The jury also found seven of the seventeen statutory and nonstatutory mitigating circumstances submitted to it. On 9 November 1994, Judge Rousseau sentenced defendant to forty years in prison for his first-degree kidnapping conviction, and upon the jury's recommendation, he imposed a sentence of death for defendant's first-degree murder conviction.

Defendant appeals to this Court as of right from the first-degree murder conviction; he does not appeal the kidnapping conviction. Defendant makes twenty-four arguments on appeal, supported by thirty-one assignments of error. We reject each of these arguments and conclude that defendant's trial and capital sentencing proceeding were free of prejudicial error and that the death sentence is not disproportionate. Accordingly, we uphold defendant's conviction of first-degree murder and his sentence of death.

The State's evidence presented at trial tended to show the following facts and circumstances: At approximately 9:30 p.m. on 10 August 1990, defendant spoke with Hal Eddleman, his employer, inside defendant's tent, which was located on Eddleman's land. Eddleman allowed defendant to set up a campsite on his property after someone had broken into and fired gunshots into defendant's house. Defendant told Eddleman, "There's something going down at [the] Donnaha [bridge]. This guy got in touch with me, and told me to meet him over at Donnaha, we'd get it over with." As a result of this conversation, at approximately 11:30 p.m. on 10 August 1990, Eddleman and his wife went to the Donnaha bridge, which extends across the Yadkin River. They remained there for approximately two to two and one-half hours. After seeing no one, they returned home and went to bed.

At around 9:00 or 9:30 p.m. on 11 August 1990, defendant and Gary Shaver went to LaDan's Night Club. Janette Turner, a part-time waitress at LaDan's, and Billy Grimes, Turner's boyfriend and defendant's friend, were also at LaDan's that night. Grimes left LaDan's at around 12:30 or 1:00 a.m. on 12 August 1990. Grimes and Turner planned to meet at Bran's Game Room at the end of Turner's shift. At about 1:45 a.m., defendant asked Turner to ask Grimes to telephone Eddleman and said that Grimes and Eddleman would know what was going on. When Turner left LaDan's at around 2:00 or 2:30 a.m., she went to Bran's to meet Grimes. When she arrived at Bran's, Turner relayed defendant's message to Grimes.

Grimes testified at trial that when Turner relayed defendant's message to telephone Eddleman and tell him that something was "going down" and that they knew what it was all about, he did not know what it was all about. Nonetheless, Grimes and Turner left Bran's and went to the Pineview Restaurant, where Grimes telephoned Eddleman from an outside pay telephone. Grimes apologized for waking Eddleman and relayed defendant's message to him. Grimes said, "[Defendant] wanted me to call you and tell you there's something going down and he wants to know if you want anything to do with it." Eddleman said, "Well, I went to the river last night and spent about two and a half, maybe three hours. Nothing didn't happen then. Hell, no, I don't want nothing to do with it." Eddleman then went back to sleep. Grimes and Turner returned to Bran's and departed in their separate vehicles.

Meanwhile, at approximately 2:00 a.m., the victim, Charles Edwin Jenkins, asked defendant for a ride home. The victim left LaDan's with defendant and Shaver. During the ride, defendant asked the victim whether he knew defendant's ex-wife, Lisa Bates, or her boyfriend, Jeff Goins. The victim responded, "Yeah, isn't Lisa the one that has big breasts" and "long blond hair." According to Shaver's testimony at trial, although defendant's ex-wife had long blond hair at that time, she did not have "big breasts."

During the ride, defendant stopped twice. The first time, he stopped for fifteen or twenty minutes along the side of the road in Iredell County so that defendant and Shaver could "use the bathroom." The victim did not exit the vehicle at this time. After driving for about fifteen or twenty minutes more, defendant stopped the vehicle a second time. This time, the victim and Shaver got out of defendant's vehicle to "use the bathroom." Shaver was standing on the passenger side of the vehicle, and the victim was standing at the rear of the vehicle. Defendant exited the vehicle, went around to the rear of the vehicle, and struck the victim at least three times on the back of the head with a shovel handle that had been in the vehicle. The victim fell to the ground. Defendant then gave the handle to Shaver, took some rope from the vehicle, and tied the victim's hands. The victim appeared to be unconscious at this point. However, the victim started moaning, and defendant told Shaver to hit the victim with the shovel handle. Shaver refused so defendant took the handle from Shaver and struck the victim on the back of the head again. The victim stopped moaning and again appeared to be unconscious. Defendant then bound the victim's arms and legs behind his back, or hog-tied him.

Defendant asked Shaver to help him place the victim into defendant's vehicle, and Shaver did so. Defendant then told Shaver that he believed that the victim was one of the persons who had been "messing around his house and stuff." Defendant said that he was "going to find out some answers." Defendant believed that the persons who had shot into his house were friends of his ex-wife and her boyfriend, and he thought the victim was setting him up and leading him into a trap. Defendant and Shaver got into the truck and headed towards defendant's campsite. Defendant was driving, Shaver was in the passenger seat, and the victim was hog-tied and lying on the floor of the rear of the vehicle. At some point, the victim propped his head up, and defendant asked him for directions. The victim responded that he could not see because his glasses had been lost. The victim then asked defendant what he had done and what was going on. Defendant told the victim to shut up. About fifteen or twenty minutes later, defendant noticed a sign indicating that they were entering Yadkin County. Defendant proceeded towards his campsite.

On the way back to his campsite, defendant stopped at Eddleman's house. Defendant and Shaver exited the vehicle. Defendant knocked on the front door and entered Eddleman's house; Shaver waited outside in front of defendant's vehicle. Defendant remained inside the house for fifteen or twenty minutes. While inside Eddleman's house, defendant told Eddleman, "We got one of the MF's." Eddleman asked, "Who is he?" Defendant said, "His name is Chuck." Eddleman asked, "How do you know he's one of them?" Defendant said, "He's told us." Eddleman asked, "Where's he at?" Defendant responded, "He's hogtied in the jeep. You want to see him?" Eddleman said, "No, the best thing you can do is take him back where you got him, apologize to him and do anything he wants you to do, and hope that he don't prosecute you for kidnapping him." Defendant and Eddleman then stepped out onto the porch.

While defendant and Eddleman were outside on the porch talking, Billy Grimes drove up in his white Mitsubishi pickup truck and parked behind defendant's vehicle. Defendant walked up to Grimes' pickup truck and spoke with Grimes. According to Grimes, defendant said, "I've got one of the guys that's been messing with me. Do you want to watch or help?" Grimes declined, left, and went home.

Meanwhile, Eddleman had stepped off the porch to talk with Shaver. Eddleman said to Shaver, "Gary, you don't want nothing to do with this either." Eddleman also told Shaver, "Gary, you better talk to [defendant]." Eddleman then said to defendant, "Joe, you better listen." Defendant then walked over to Shaver and told him that he could get out of the situation if he wished. Shaver stated that he wanted out because he had sole custody of his daughter and did not want to jeopardize his custody. Defendant told Shaver that he would take Shaver back to his vehicle, which was parked at defendant's campsite. Defendant and Shaver then got back into defendant's vehicle and left. When they arrived at defendant's campsite, Shaver got into his vehicle and left. The victim was alive at this time. Shaver went home, set his alarm clock, and went to bed. It was approximately 4:00 a.m. at this time.

Defendant returned to Eddleman's house later that morning and again awoke Eddleman. It was still dark outside. Defendant returned Eddleman's gun, which he had borrowed at some time earlier. Eddleman took the gun and placed it in one of his bedrooms in his house. Defendant asked Eddleman, "What do you think I should do with the body?" Eddleman said, "What?" Defendant repeated the question. Eddleman said, "Man, if you've got a body, you've only got about three choices. You either take him to the sheriff's office, bury him or throw him in the river." After some further conversation, defendant asked, "Do you reckon I should tie cement blocks to him?" Eddleman answered, "If you do, or not, he will come up in from nine to eleven days." Defendant then said, "I guess I can load him by myself," and he left.

Eddleman went back to bed and awoke at 9:30 or 9:45 a.m. that morning. Eddleman went to look at the gun to determine whether there was blood on it. He discovered what appeared to be flesh and blood on the gun. He then cleaned the gun. Later that day, Eddleman spoke with defendant. During the conversation, defendant said, "I was just thinking about what happened last night." Eddleman said, "Man, you better quit thinking. You're going to have a hard enough day as it is." Defendant said, "Well, it don't bother me all that bad." Eddleman responded, "It will." When defendant left Eddleman's house, he packed up his tent and left the campsite.

Grimes saw defendant at about noon that day. Defendant was at defendant's home unloading his vehicle. Defendant was placing his tent and the other items from his campsite into his residence. Grimes noticed that there was blood all over the contents of defendant's vehicle. Defendant took some items inside his house and washed the blood off in the sink. Grimes remained at defendant's house for about thirty minutes.

Grimes again saw defendant later that day at Bran's Game Room. Defendant told Grimes that he shot the victim through the neck and threw his body into the river. Grimes asked defendant why he killed the victim, and defendant said that he could not let him live after what defendant had done to the victim and that he would get just as much time for murder as he would for kidnapping.

A couple of days later, Shaver saw defendant at Eddleman's house. Shaver asked defendant what happened, and defendant said that it was best if Shaver did not know. A few days before, defendant had told Shaver that he thought he could kill someone.

On 25 August 1990, two fishermen discovered the victim's body floating in the Yadkin River and contacted the police. The victim's ankles and wrists were bound by rope, his legs and arms were pulled backwards behind his back and tied together, and a rope was tied around his neck. The victim's body was in an early stage of decomposition. His belt buckle was undone, and his pants were unzipped.

On 26 August 1990, an autopsy was performed on the victim's body. The medical examiner noted that the victim's wrists and ankles had been bound together with rope and that his arms and legs had been fastened behind his back in a "hogtie" configuration. There was also a loop of rope around the victim's neck and a separate rope around his knee area. The medical examiner further noted that there was considerable decomposition of the body. He discovered a gunshot wound to the back of the victim's neck. The medical examiner was unable to testify with any degree of medical certainty whether the victim experienced any pain as a result of the gunshot wound but testified that the victim could have died instantaneously.

Prior to the autopsy, police officers took fingerprints from the victim to establish his identity. Because the State Bureau of Investigation (SBI) was unable to determine his identity from these prints, the victim's hands were surgically removed and turned over to an agent of the SBI so that they could be processed and better fingerprints obtained. The SBI processed the fingerprints they obtained from the hands and determined that the victim was Charles Edwin Jenkins.

On 30 August 1990, while investigating the victim's murder, two law enforcement officers went to defendant's house and spoke with him. Before leaving the residence, they asked defendant's permission to search his vehicle. Defendant gave them permission and assisted them into the vehicle. One of the officers found a newspaper on the floor of defendant's vehicle. The newspaper had a front-page story about the officer's uncle, so he asked defendant if he could have the newspaper. Defendant agreed to let him have it. Inside the newspaper, the officer found a receipt that had what appeared to be bloodstains on it. The officers also asked defendant's permission to have a small piece of rope that was in a bucket on defendant's front porch.

Defendant allowed the officers to take the rope. Also, a piece of molding containing what appeared to be blood was taken from defendant's vehicle. The receipt and the molding were examined by the SBI, and the substance on them was determined to be blood. However, no useable fingerprints were taken from the molding, and no determination could be made as to whether the blood matched the victim's blood since the victim's body contained no blood when it was found.

On 31 August 1990, defendant gave a thirteen-page confession to the police in which he admitted beating the victim, binding him with ropes, kidnapping him, tying him to a tree, and questioning him at gunpoint. Defendant also admitted shooting the victim in the neck after the victim would not tell him who had shot into his house and after the victim had spat on him. Defendant further admitted tying a cement block around the victim's neck, removing the cement block when he discovered it made the body too heavy to throw off the bridge, and throwing the victim's hog-tied body into the Yadkin River.

Defendant did not testify at trial. However, defendant presented the testimony of two witnesses, Eddleman's wife and Eddleman's daughter-in-law, which tended to show that Shaver's vehicle was parked at defendant's campsite until 6:00 or 7:00 a.m. on the morning of the victim's death.

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State v. Bates, 428 S.E.2d 693 (N.C. 1993) (Direct Appeal - Reversed).

Defendant was convicted and sentenced to death in the Superior Court, Yadkin County, Rousseau, J., for crimes of first-degree murder and first-degree kidnapping. Defendant appealed. Following grant of defendant's motion to bypass, the Supreme Court, Whichard, J., held that denial of defendant's pretrial motion to have his preliminary showing of need for funds to hire forensic psychologist heard ex parte jeopardized defendant's constitutional rights and could not be deemed harmless. New trial ordered.

Bates v. Lee (Habeas Appeal to 4th Circuit)

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

JOSEPH EARL BATES, Petitioner-Appellant v. R. C. LEE, Warden, Central Prison, Respondent-Appellee.

Appeal from the United States District Court for the Middle District of North Carolina, at Durham. James A. Beaty, Jr., District Judge.(CA-99-742-1) Argued: September 26, 2002 Decided: October 23, 2002 Before WILKINSON, Chief Judge, WIDENER, Circuit Judge, and HAMILTON, Senior Circuit Judge.

Affirmed by published opinion. Chief Judge Wilkinson wrote the opinion, in which Judge Widener and Senior Judge Hamilton joined.

Appellant Joseph Earl Bates was sentenced to death for the murder of Charles Edwin Jenkins. Bates does not contest the fact that he com- mitted the murder. After exhausting state challenges to the sentence imposed by the state courts, Bates petitioned the United States Dis- trict Court for the Middle District of North Carolina for a writ of habeas corpus under 28 U.S.C. § 2254. The district court found no merit in his claims and dismissed the petition. We now affirm.

I.

On August 25, 1990, two fishermen discovered Charles Jenkins' body floating in the Yadkin River, in Yadkin County, North Carolina. The victim's ankles and wrists were bound by rope, his legs and arms were hog-tied, and a rope was tied around his neck. While investigat- ing the murder, two police officers went to Bates' house to speak with him. At that time, the officers obtained a piece of paper and some molding from Bates' home having what appeared to be bloodstains on it. The following day, Bates gave a thirteen-page confession, in which he admitted to beating, hog-tying, kidnapping, and then shooting the victim in the neck. Bates was indicted for kidnapping and murder.

The facts surrounding the crime are undisputed. Some time in late July or early August 1990, someone broke into and fired gunshots into Bates' home, causing Bates to set up a temporary campsite on his employer Hal Eddleman's property. Around this same time Bates told his friend, Gary Shaver, that he could kill someone.

On August 10, Bates called Eddleman and told Eddleman to meet him at the bridge later that evening because something was "going down." Eddleman went to the bridge as instructed, but Bates never came to meet him. The next evening Bates and Shaver went to a night club. At approximately 1:45 a.m., Bates instructed a waitress to ask Billy Grimes, another friend, to telephone Eddleman. Bates told her that Grimes and Eddleman would know what was going on.

At approximately 2:00 a.m., Jenkins asked Bates and Shaver for a ride home. During the ride, Bates asked Jenkins if he knew Bates' ex- wife and her new boyfriend, and Jenkins replied that he did. Bates stopped twice during the ride. During the second stop, Bates struck Jenkins three times on the back of the head with a shovel, appearing to knock him unconscious. When Jenkins began to moan, Bates struck him again, hog-tied him, and then placed him in the vehicle.

On the way back to his campsite, Bates stopped at Eddleman's house and told Eddleman that he "got one of the MF's." He then told Grimes, "I've got one of the guys that's been messing with me. Do you want to watch or help?" Grimes declined to help, as did Shaver and Eddleman. Bates drove Jenkins back to his campsite around 4:00 a.m.

At the campsite, Bates loosened the ropes on Jenkins and began asking Jenkins who had shot into his home. Jenkins mentioned two people who were involved, but did not say anything else. Unsatisfied with Jenkins' response, Bates then tied Jenkins to a tree and went to his tent to retrieve a gun that he had borrowed from Eddleman. Bates put the gun up to Jenkins throat, but Jenkins repeated that he did not know for sure who had shot into Bates' home. Bates then untied Jen- kins, took him to the back of the truck, and shot him in the neck. Jen- kins was lying face-up near the back of the truck when Bates shot him. In his confession, Bates said he "shot him . . . because he acted like he knew who had shot into my house, he spit on me and told me to go to hell, and this made me mad and I shot him."

After rummaging through Jenkins' pockets, Bates retied Jenkins' hands and feet and loaded him into the jeep. Bates drove back to Eddleman's house, returned Eddleman's gun, and asked, "[w]hat do you think I should do with the body." Bates then left and threw the body into the Yadkin River.

Later that day Bates discussed the murder with both Eddleman and Grimes. Bates told Eddleman, "[w]ell, it don't bother me all that bad." Bates told Grimes that he killed the victim because he would get no more time for murder than for kidnapping.

Bates was indicted for kidnapping and murder. The State sought the death penalty. A jury found Bates guilty of one count of first degree murder and one count of first degree kidnapping. He was sen- tenced to death for the first degree murder conviction. On appeal, the North Carolina Supreme Court awarded Bates a new trial based on an improper denial of Bates' motion for an ex parte hearing regarding his request for funds to employ a forensic psychologist. State v. Bates, 428 S.E.2d 693 (N.C. 1993). Bates was retried, and a second jury found Bates guilty of one count of first degree kidnapping and one count of first degree murder on the basis of both the felony murder rule and premeditation and deliberation.

During the closing argument of the penalty phase of the second trial, the prosecutor pointed out that Jenkins' mother, Bates' mother, and Bates' sister each cried while on the stand. The prosecutor then asked whether the jurors saw Bates cry during the trial, or whether Bates had presented any evidence of remorse. The prosecutor also commented that Bates had been given the benefit of a lengthy trial and two good lawyers who would stand up and ask the jurors not to return the death penalty, because it was a lawyer's job to do so.

The jury recommended the death sentence on the basis of the kid- napping and the especially heinous, atrocious, or cruel nature of the crime. On November 9, 1994, Judge Julius Rousseau sentenced Bates to death for the first degree murder conviction and to an additional forty years in prison for the kidnapping conviction. The Supreme Court of North Carolina affirmed the conviction and sentence, State v. Bates, 473 S.E.2d 269 (N.C. 1996), and the United States Supreme Court denied certiorari, Bates v. North Carolina, 519 U.S. 1131 (1997).

Bates then filed a motion for appropriate relief. The North Carolina Superior Court entered an order denying Bates' claims, and the Supreme Court of North Carolina affirmed. State v. Bates, 539 S.E.2d 297 (N.C. 1999).

Next, Bates filed a petition for habeas corpus in the United States District Court for the Middle District of North Carolina. On February 14, 2002, the district court adopted the magistrate's recommendation to dismiss Bates' petition. Bates v. Lee, No. 1:99CV00742 (M.D.N.C. Feb. 14, 2002). Finding no substantial issue presented, the district court also declined to issue a certificate of appealability. Id. Bates now appeals.

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For the foregoing reasons, the judgment of the district court is AFFIRMED.