State v. Ali, No. 107A88

• Decision Date: 14 August 1991
• Docket Number: No. 107A88
• Citation: 407 S.E.2d 183,329 N.C. 394
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. El Amin Ahmad ALI.

Page 183

407 S.E.2d 183

329 N.C. 394

STATE of North Carolina v. El Amin Ahmad ALI.

No. 107A88.

Supreme Court of North Carolina.

Aug. 14, 1991.

Appeal of right pursuant to N.C.G.S. § 7A-27(a) from judgments imposing sentences of death, entered by Allen (J.B., Jr.), J., in the Superior Court, Alamance County, on 29 February 1988. Heard in the Supreme Court on 9 April 1991.

Lacy H. Thornburg, Atty. Gen. by G. Patrick Murphy, Asst. Atty. Gen., Raleigh, for the State.

Malcolm Ray Hunter, Jr., Appellate Defender by Staples Hughes, Asst. Appellate Defender, Raleigh, for defendant-appellant.

MITCHELL, Justice.

The defendant was tried on two bills of indictment at the 15 February 1988 Criminal Session of Superior Court, Alamance County, and was convicted of two counts of murder in the first degree. The jury recommended and the trial court entered sentences of death. On appeal, the defendant brings forward numerous assignments of error. We conclude that the defendant's trial and convictions were free from prejudicial error. However, due to the recent decision of the Supreme Court of the United States in the case of McKoy v. North Carolina, 494 U.S. 433, 110 S.Ct. 1227, 108 L.Ed.2d 369 (1990), we are forced to hold that errors during the sentencing proceeding in this case require that the sentences of death be vacated and that this case be remanded to the Superior Court for a new capital sentencing proceeding.

The State's evidence at trial tended to show that on 23 June 1987, the defendant was living with Pauline and Hebron Clark Dickens, Jr., his aunt and uncle, in Burlington, North Carolina. During the late afternoon or evening of 23 June, the defendant began to talk "nasty" to Pauline, prompting her to leave the room. She went to her bedroom, where she lay down to take a nap. Sensing the presence of another person in the room, Pauline turned over to discover the defendant standing in the room with his penis erect. She fled from the house, screaming at the defendant and telling him he had to leave.

After the defendant had gone, Pauline called her pastor, Reverend Jean Moore, and asked her to come to the Dickens residence. Pauline called another individual, Rejean Williams, to pick up Reverend Moore and drive her to the Dickens home. In the presence of both Reverend Moore and Williams, Pauline recounted the episode of the defendant's sexual advance earlier that evening. Reverend Moore asked if the defendant had a gun. Pauline went to the defendant's room, retrieved his briefcase and opened it in the presence of Reverend Moore and Williams. The briefcase did not contain the defendant's gun.

Pauline then left for work with Reverend Moore and Williams following her. When Reverend Moore left Pauline at Alamance Memorial Hospital to begin her third-shift job, she asked Pauline to telephone her the next morning when she got off work.

After leaving Pauline at the hospital and dropping off Reverend Moore, Williams went to look for the defendant. She located him at approximately midnight. The defendant asked Williams if she had spoken with Pauline, and Williams responded that she had. When the defendant asked if she had believed Pauline, Williams answered that she had not heard both sides. After she made this statement, the defendant said that if he had to go down, Pauline would go down with him.

At some time following his conversation with Williams, the defendant returned to the Dickens residence. He parked his car approximately two blocks away, took his .32 caliber pistol from the glove compartment, and walked to the residence. When the defendant arrived at the residence, no one else was present. He entered the home, hid himself in his cousin's vacant bedroom, and waited. Approximately thirty to forty-five minutes later, Hebron Dickens arrived home from work, came inside and went to bed. The defendant continued to conceal himself.

While still at work, the next morning, Pauline approached Carol Harris, a co-worker and nurse in the adult psychiatry section of the hospital. Pauline told her about the defendant's sexual advance the previous evening. Pauline also told Harris that the defendant had called her aunt and told her that he and Pauline had been sleeping together. Harris stated, "Pauline, you know he didn't call her and say that." Pauline responded, "[O]h, yes he did."

Harris told Pauline not to go home. Pauline replied that she felt she would be safe at home because, although the defendant had a key to the door, there was another lock on the door that the defendant would be unable to unlock. At the end of their conversation, Pauline asked Harris to telephone the police if she did not hear from Pauline by 11:00 a.m.

After Pauline returned home, she began discussing the episode of the defendant's sexual advance with Hebron. In his initial statement to the police, the defendant said that upon hearing this discussion, he walked down the hallway into the living room and shot his aunt and uncle.

Following his initial oral statement, the defendant agreed to review the events again, and to have his statement recorded on audio tape. In his taped statement, the defendant again admitted that he had made a sexual advance towards his aunt, but he also said that the two had been engaging in sexual intercourse for years. He said, however, that as they were engaged in sexual intercourse on 23 June 1987, Pauline suddenly told him to get out. The defendant called Pauline later, and she told him that she was going to reveal their relationship to her pastor and to her husband. Pauline also told the defendant that she had called an aunt in Philadelphia and told her of their relationship. The defendant then called the aunt and learned that Pauline had misrepresented the matter.

The defendant said that he then returned to the house and hid, to insure that Pauline would tell Hebron the truth. Pauline discovered the defendant when she came in to open a window in the bedroom where he was hiding. The defendant said he jumped out from behind the bed, shot his Aunt Pauline and followed her down the hall to the living room. There, the defendant shot his Uncle Hebron who yelled, "No," as he turned toward the defendant.

The defendant left the Dickens residence approximately five minutes after the shootings. Before doing so, he emptied the spent cartridge casings from his pistol, dropping one on the floor. He drove to Hillsborough, where he disposed of the gun. After thinking about the situation, he decided to go to the police station. Before going to the police station, however, the defendant stopped at Kentucky Fried Chicken and had lunch.

Meanwhile, Pauline had called the Alamance County Central Communications 911 emergency number and reported that she had been shot by her nephew. Police and emergency medical personnel were dispatched to the Dickens residence. When the police arrived, the victims were lying side by side on the living room floor. Pauline was still alive, but Hebron exhibited no sign of life. While being transported from the house to the hospital by ambulance, Pauline told Officer Patrick Daly that she had been shot by Amin Ali, who was her nephew. Shortly after arriving at the hospital, Pauline died.

An autopsy report revealed that Pauline had been shot twice. One projectile had hit her central chest area, passed through her heart and lungs and lodged in her back. There was a second wound on the right side of Pauline's body, caused by a bullet which had not damaged any vital organs.

The autopsy performed on Hebron revealed that he had been shot three times. One projectile had struck the center of his chest and passed through his heart and lungs. A second projectile had entered the right side of Hebron's body, passed through his heart and liver, and exited at a point next to the entrance wound made by the projectile which had hit him in the chest. The path and location of the second projectile were consistent with that wound having been inflicted while Hebron was lying on the floor. The third projectile had entered Hebron's left arm and passed through his chest.

The residence was photographed and processed. When Hebron's body was removed, police found a projectile underneath his body immediately below the area where his face and neck had been resting. In addition, the defendant's pistol was recovered from the location where the defendant said he had thrown it away. A ballistics expert testified that both the projectile found under Hebron's body and the one removed from his body had been fired from the defendant's pistol. Further, both projectiles removed from Pauline and the shell casing found on the living room floor had been fired from the defendant's pistol.

The defendant did not offer any evidence at the guilt-innocence determination phase of his trial. The jury found the defendant guilty of first-degree murder based on the theory of premeditation and deliberation as well as the theory of murder committed by lying in wait. A capital sentencing proceeding was then conducted, at the end of which the jury recommended a sentence of death for each murder. The trial court entered judgments sentencing the defendant to death.

Additional evidence and other matters relevant to the defendant's specific assignments of error are addressed at other points in this opinion.

In his first assignment of error, the defendant contends that he was denied the right to counsel at a critical stage of his trial when the trial court and his attorneys allowed him to make the decision not to peremptorily challenge a juror his attorneys had wanted to remove. The defendant grounds this claim solely upon a discussion between one of his lawyers and the trial court after both the defendant and the State had finished questioning prospective juror Paul Terrell. From the transcript, it appears that at the conclusion of the questioning of Terrell, an off-the-record bench conference was held. Thereafter, the following exchange took...