533 S.E.2d 168 (N.C. 2000), 441A98, State v. Golphin

Docket Nº:441A98.
Citation:533 S.E.2d 168, 352 N.C. 364
Party Name:STATE of North Carolina v. Kevin Salvador GOLPHIN. State of North Carolina v. Tilmon Charles Golphin, Jr.
Case Date:August 25, 2000
Court:Supreme Court of North Carolina

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533 S.E.2d 168 (N.C. 2000)

352 N.C. 364

STATE of North Carolina


Kevin Salvador GOLPHIN.

State of North Carolina


Tilmon Charles Golphin, Jr.

No. 441A98.

Supreme Court of North Carolina

August 25, 2000

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[352 N.C. 378] Appeal as of right pursuant to N.C.G.S. § 7A-27(a) from judgments imposing two sentences of death for each defendant entered by Brewer, J., on 13 May 1998 in Superior Court, Cumberland County, upon jury verdicts finding each defendant guilty of two counts of first-degree murder. The Supreme Court allowed defendants' motions to bypass the Court of Appeals as to their appeal of [352 N.C. 379] additional judgments on 19 July

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1999. Heard in the Supreme Court 14 February 2000.

Michael F. Easley, Attorney General, by William B. Crumpler and Robert C. Montgomery, Assistant Attorneys General, for the State.

Malcolm Ray Hunter, Jr., Appellate Defender, by Janine C. Fodor and Anne M. Gomez, Assistant Appellate Defenders, for defendant-appellant Kevin Golphin.

M. Gordon Widenhouse, Jr., Chapel Hill, for defendant-appellant Tilmon Golphin.


On 1 December 1997, indictments were handed down charging defendants Kevin Salvador Golphin (Kevin) and Tilmon Charles Golphin, Jr. (Tilmon), each with two counts of first-degree murder, two counts of robbery with a dangerous weapon, one count of assault with a deadly weapon with intent to kill, one count of discharging a firearm into occupied property, and one count of possession of a stolen vehicle. Defendants, who are brothers, were tried jointly in a capital proceeding at the 23 February 1998 Criminal Session of Superior Court, Cumberland County. Defendants were tried before a jury drawn from a special venire selected in Johnston County. The jury found defendants guilty on all charges. After a capital sentencing proceeding, the jury recommended a sentence of death in each murder for both defendants. On 13 May 1998, the trial court entered judgments against defendants in accordance with the jury's recommendations. In addition, the trial court sentenced each defendant to the following consecutive terms of imprisonment: (1) for possession of a stolen vehicle, a minimum of six months and a maximum of eight months; (2) for assault with a deadly weapon with intent to kill, a minimum of thirty-one months and a maximum of forty-seven months; (3) for discharging a firearm into occupied property, a minimum of thirty-one months and a maximum of forty-seven months; and (4) for each count of robbery with a dangerous weapon, a minimum of eighty months and a maximum of one hundred five months. Defendants appeal to this Court as of right from the judgments imposing sentences of death. On 19 July 1999, this Court allowed defendants' motions to bypass the Court of Appeals on the other convictions.

[352 N.C. 380] The State presented evidence which tended to show that on 23 September 1997, Kevin, who was seventeen, and Tilmon, who was nineteen, were living with their grandparents in Greeleyville, South Carolina. That morning, defendants' cousin, Demetric Mack, drove them to Kingstree, South Carolina, leaving them in a parking lot in the downtown area. During the ride into town, Mack noticed that Kevin was carrying a rifle that he had covered with a white towel and that Tilmon was carrying a book bag.

At about 10:00 a.m., defendants entered Financial Lenders, a finance company in downtown Kingstree. Two employees, Ava Rogers and Sandra Gaymon, were working that morning, and a customer, Earletha Mouzon, was also in the building. Gaymon and Mouzon were discussing business in a small office near the front of the building and saw defendants enter and walk toward the office where Rogers was working. Mouzon saw that one defendant was carrying a rifle. She immediately left the building and called the police. The taller defendant, later identified as Kevin, pointed the rifle at Rogers and demanded the keys to her car. She gave the keys to him. Defendants then ordered Rogers and Gaymon to go to the back of the building. Defendants then told the two women to go into the bathroom. The taller defendant told the women to stand with their backs toward defendants. While their backs were turned, both women heard clicking sounds made by the rifle. Defendants then left the bathroom, and the two women heard them moving things around and placing objects in front of the door. The women stayed in the bathroom for approximately five minutes. While they were in the bathroom, they heard a vehicle start and leave the parking lot behind the building. The women then left the bathroom and called 911. Rogers found that her purse had been opened and that her wallet had been stolen. She also found that her car, a dark green 1996 Toyota Camry with South Carolina license plate number CEL-269, had been stolen.

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Lieutenant Michael Kirby of the Kingstree Police Department investigated the robbery at Financial Lenders. He arrived at the business shortly after the robbery and obtained a description of the suspects and the stolen vehicle. He then issued a "BOLO" advisory ("Be On the Look Out" for certain suspects or vehicles) to all law enforcement agencies in the area which contained the description of the suspects and the stolen vehicle. Lt. Kirby also entered the description of the stolen vehicle into the National Crime Information Center (NCIC) computer network. Later that morning, Lt. Kirby learned that the [352 N.C. 381] suspects were Kevin and Tilmon Golphin. He then went to their grandparents' home but was unable to locate the suspects.

On that same day, Bobby Owens was on duty as a shift supervisor at the State Highway Patrol Communications Center in Elizabethtown, North Carolina. The Elizabethtown center provided communications support to state troopers in a region comprised of Cumberland, Harnett, Robeson, Onslow, Duplin, Pender, New Hanover, Brunswick, Bladen, and Columbus Counties. At approximately 12:25 p.m., Owens was communicating with troopers in Cumberland County. Trooper Lloyd E. Lowry of the North Carolina State Highway Patrol was on duty in Cumberland County. He was patrolling the northbound lanes on Interstate 95 (I-95). At 12:25 p.m., Owens received a radio call from Trooper Lowry asking for a check on South Carolina registration CEL-269. Owens performed the check on the NCIC computer, and the check indicated that the vehicle with that registration had been stolen in South Carolina. At 12:26 p.m., Owens asked Trooper Lowry whether he had the vehicle stopped, and Trooper Lowry responded that he did. Owens then advised Trooper Lowry, using code "signal three," to turn off the speaker inside his vehicle so that anyone in the vehicle could not hear the communications and told Trooper Lowry that the vehicle was stolen. Trooper Lowry asked Owens to send him a backup unit. Owens requested Trooper Lowry's location, and Trooper Lowry answered that he was near the intersection of I-95 and N.C. Highway 24. At 12:27 p.m., Owens informed Trooper Lowry that there were no highway patrol units available to respond and that he would contact the Cumberland County Sheriff's Department to request assistance. Owens called the sheriff's department, and the dispatcher acknowledged the request and told Owens that a car would be dispatched to the scene. At 12:29:12 p.m., Owens called Trooper Lowry and informed him that a sheriff's department unit was en route to assist. Trooper Lowry informed Owens that a subject was in his vehicle and that he was awaiting the backup unit. After this transmission, Owens called the highway patrol office in Fayetteville and informed Sergeant Bill Martin of Trooper Lowry's situation. Sgt. Martin advised Owens that he would be en route to assist Trooper Lowry and asked Owens to attempt to contact Trooper Lowry again. At 12:32 p.m., Owens called Trooper Lowry to inform him that Sgt. Martin was en route to his location and to ask him to verify the description of the vehicle given by the NCIC computer as a dark green Toyota. At 12:32:22 p.m., Trooper Lowry confirmed the description of the vehicle. Owens did not receive any further communication from Trooper Lowry.

[352 N.C. 382] On that same day, Susan Gillis was working as a dispatcher with the Cumberland County Sheriff's Department. At 12:28 p.m., she received a telephone call from Owens requesting assistance for Trooper Lowry. Gillis passed the request for assistance to Linda Zema, another dispatcher, who asked for available sheriff's department units in the area of I-95 and N.C. Highway 24. Deputy David Hathcock responded to the call, and the dispatchers determined that he was the closest unit to the area where Trooper Lowry had requested assistance. Deputy Hathcock was sent to the scene at 12:30 p.m. At 12:33 p.m., Deputy Hathcock reported that he would be reaching the scene in approximately one minute. No further transmissions were received from Deputy Hathcock despite repeated attempts by the dispatchers to contact him.

At 12:38 p.m., Deputy Kelly Curtis of the Cumberland County Sheriff's Department

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advised the dispatchers that he had arrived at the scene. Seconds later, Deputy Curtis informed dispatchers, "Officers down. Officers down." He requested immediate...

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