State v. Lee

• Decision Date: 28 January 1994
• Docket Number: No. 247A90,247A90
• Citation: 335 N.C. 244,439 S.E.2d 547
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Daniel Brian LEE.

Page 547

439 S.E.2d 547

335 N.C. 244

STATE of North Carolina v. Daniel Brian LEE.

No. 247A90.

Supreme Court of North Carolina.

Jan. 28, 1994.

Appeal as of right pursuant to N.C.G.S. § 7A-27(a) from a judgment imposing a sentence of death entered by Lamm, J., at the 26 April 1990 Criminal Session of Superior Court, Avery County, upon a sentence recommendation by the jury after the defendant pled guilty to first degree murder. Heard in the Supreme Court 13 November 1991.

The defendant pled guilty to first degree murder and a sentencing hearing was held. The State's evidence tended to show that on 24 September 1989, the defendant kidnapped, sexually assaulted, and murdered the victim, Jennifer Gray. The defendant left the victim's body on a logging road in a remote area of Watauga County. On 29 September 1989, the defendant kidnapped, raped, sodomized and robbed Leigh Cooper. Ms. Cooper managed to escape and to supply law enforcement authorities with the information which led to the defendant's arrest. On 10 October 1989, the Watauga County Grand Jury returned true bills of indictment charging the defendant with the first degree murder of Ms. Gray, first degree kidnapping of Ms. Gray, and first degree sexual offense against Ms. Gray. The grand jury also returned a multi-count true bill of indictment charging the defendant with committing numerous felonies against Ms. Cooper.

Upon the motion of the defendant, venue was changed to Avery County due to extensive pretrial publicity. On 16 April 1990, prior to the commencement of jury selection in this case, the defendant entered pleas of guilty to first degree murder and first degree kidnapping. A capital sentencing proceeding was commenced in the murder case on 16 April 1990. The State presented evidence of, and the jury found, the aggravating circumstances that the murder was especially heinous, atrocious, or cruel, was committed while defendant was engaged in a kidnapping, and was part of a course of conduct in which defendant engaged and which included crimes of violence by the defendant against another person. N.C.G.S. § 15A-2000(e)(5), (9), (11) (1988).

The defendant's penalty phase evidence tended to show that at the time of the murder he was twenty-three years old. In May of 1988, the defendant was struck on the head with a tree limb while on an outing in the country with his girlfriend. That night, the defendant began to suffer from head pain and loss of physical function. He was taken to a hospital emergency room where the attending physician found the defendant to be suffering from severe frontal headaches, confusion, loss of consciousness, loss of bowel function and vomiting. Further examination by physicians at North Carolina Baptist Hospital in Winston-Salem revealed that the defendant was suffering from a life threatening aneurysm deep inside his brain.

Following surgery to repair the aneurysm, the defendant remained hospitalized for several weeks before returning home for further recuperation. Numerous witnesses, including the defendant's father and former girlfriend, testified that the defendant's behavior underwent extreme changes following the surgery. The defendant was described as having changed from being a polite, non-violent, considerate, and clean young man to one who was unclean, lethargic, and unreliable. The defendant's girlfriend testified that the defendant's sexual behavior changed from being gentle and considerate to perverse and demanding.

Two expert witnesses testified that the defendant's brain aneurysm and ensuing surgery had resulted in permanent brain damage which caused the defendant to suffer from behavioral and emotional abnormalities. Dr. Sciara, a neuropsychologist, testified that the defendant's decreased hygiene, decreased ambition, changed and unusual sexual behavior, and lack of consideration for others, was consistent with the defendant's type of brain damage.

Based on this evidence, the jury found five mitigating circumstances related to the defendant's mental and emotional disturbance and his non-violent and law abiding history. Nevertheless, the jury found that the mitigating circumstances did not outweigh the aggravating circumstances and that the aggravating circumstances were sufficiently substantial to warrant imposition of the death penalty. Based on these findings, the jury returned a recommendation of death. The trial court sentenced the defendant to death in accordance with this recommendation. The defendant appeals.

Lacy H. Thornburg, Atty. Gen. by Joan Herre Byers, Sp. Deputy Atty. Gen., Raleigh, for the State.

Malcolm Ray Hunter, Jr., Appellate Defender by Mark D. Montgomery, Asst. Appellate Defender, Raleigh and Jeffery M. Hedrick, Boone, for defendant-appellant.

WEBB, Justice.

Prior to trial, the defendant made an ex parte application for the appointment of a psychiatric expert. The trial court granted the defendant's motion and ordered that certain funds be made available to the defendant for the employment of a mental health expert. The defendant contends that the trial court erroneously ordered, as a pre-condition to employing an expert, that the expert provide the State with a report of his evaluation of the defendant. We disagree.

The record reveals that the court's provision of funds to hire an expert was unconditional. After stating that he would order that funds be made available to the defendant, the judge said:

I would also propose to provide in this Order, I'll hear any objections either of you may have, that after you receive whatever reports you receive, if you intend to use any of these experts as a witness, that you at that time give the State notice, and comply with the rules of discovery with regard to that[.]

N.C.G.S. § 15A-905, which governs the State's right of pretrial discovery in criminal cases, provides that the State is entitled to:

results or reports of physical or mental examinations or of tests, measurements or experiments made in connection with the case ... which the defendant intends to introduce in evidence at the trial or which were prepared by a witness whom the defendant intends to call at the trial, when the results or reports relate to his testimony.

N.C.G.S. § 15A-905(b) (1988).

Thus, the record clearly shows that the court simply informed the defendant of the State's discovery rights which would arise if the defendant intended to call the expert as a witness at trial. Because the record clearly shows that the trial court imposed no conditions on the defendant's employment of an expert, this assignment of error is overruled.

Jury Selection

By his next assignment of error, the defendant contends that the trial court violated his state and federal constitutional rights by excusing prospective jurors, and conducting private unrecorded bench conferences, outside of his presence. N.C. Const. art. I, § 23. When a trial court conducts private unrecorded conferences with prospective jurors, the trial court commits reversible error unless the State can show that the error was harmless beyond a reasonable doubt. State v. Smith, 326 N.C. 792, 392 S.E.2d 362 (1990); State v. Payne, 328 N.C. 377, 402 S.E.2d 582 (1991); State v. Hudson, 331 N.C. 122, 415 S.E.2d 732 (1992), cert. denied, 506 U.S. 1055, 113 S.Ct. 983, 122 L.Ed.2d 136 (1993). The State may show that the error was harmless beyond a reasonable doubt where the transcript reveals the substance of the trial court's conversation with the juror, or where the trial judge reconstructs the substance of the conversation on the record. Id.

In the instant case, the defendant contends that prospective jurors Gragg, Holtzclaw and Dugger were excused outside his presence and that he was not present during a private conversation between the trial court and juror Hughes. The record shows that at the commencement of jury selection, the following transpired when the judge instructed the clerk to place twelve jurors in the jury box.

CLERK: Leonard Fisher, please take the back row seat in the corner, in the orange seat. Sherrill Johnson; Ronda Tatum; Roma Gragg, Your Honor I think that's one you excused--

THE COURT: Yes, sir, I have excused her for medical reasons.

Later during jury selection, the trial court instructed the clerk to call three more prospective jurors to the jury box. At that point the following transpired.

CLERK: Karen Holtzclaw take seat number one.

CLERK TAYLOR: Your Honor, she's the one that called this morning and said she had the flu.

THE COURT: Okay, lay her aside.

These recorded exchanges show that jurors Gragg and Holtzclaw sought, by private communication with the trial court, excusal from jury service. These exchanges reveal the substance of the communication between the court and the jurors. The trial court stated that juror Gragg was being excused for medical reasons and that juror Holtzclaw had informed the court, through Clerk Taylor, that she had the flu and that the court, therefore, excused her from service.

The record on appeal, by stipulation of the parties, includes the affidavits of Clerk Taylor and juror Gragg which purport to describe the substance of the communications which led to the excusals of jurors Gragg and Holtzclaw. Although these affidavits are unnecessary to show the substance of the communications, they do confirm that juror Gragg was excused due to her mother's illness and impending surgery and that juror Holtzclaw was excused due to her own illness. These are proper grounds for the excusal of jurors. Thus, we hold that the defendant's absence from the trial court's communications with these jurors was harmless beyond a reasonable doubt.

The defendant next contends that his constitutional rights were violated by the excusal of juror Dugger following an unrecorded bench conference. The record shows that during the State's voir dire examination of Mr. Dugger, he stated that he had been charged with a criminal offense in 1972 and that his son had been...