State v. Anderson, 60A97.

• Court: United States State Supreme Court of North Carolina
• Citation: 513 S.E.2d 296,350 N.C. 153
• Decision Date: 09 April 1999
• Docket Number: No. 60A97.,60A97.
• Parties: STATE of North Carolina v. Melanie Sammons ANDERSON.

513 S.E.2d 296

350 N.C. 153

STATE of North Carolina v. Melanie Sammons ANDERSON.

No. 60A97.

Supreme Court of North Carolina.

April 9, 1999.

Michael F. Easley, Attorney General, by Gail E. Weis, Assistant Attorney General, for the State.

Malcolm Ray Hunter, Jr., Appellate Defender, by Mark D. Montgomery, Assistant Appellate Defender, Durham, for defendant-appellant.

ORR, Justice.

Defendant was indicted 30 January 1995 for first-degree murder and felonious child abuse. In September 1996, defendant was tried capitally and found guilty of first-degree murder on the basis of malice, premeditation and deliberation; on the basis of torture; and under the felony murder rule. She was also found guilty of felonious child abuse. Following a capital sentencing proceeding, the jury recommended a sentence of death for the first-degree murder conviction, and the trial court entered judgment accordingly. The trial court also sentenced defendant to three years' imprisonment for felonious child abuse.

After consideration of the assignments of error brought forward on appeal by defendant and a thorough review of the transcript of the proceedings, the record on appeal, the briefs, and oral arguments, we find no error meriting reversal of defendant's convictions or sentences.

The victim, Tabitha Pierce, was two and one-half years old at the time of her death. Tabitha's uncle, Ronald Pierce, lived with defendant, who was his girlfriend. In July 1994, defendant and Pierce visited Tabitha's parents in Pennsylvania. Tabitha's mother agreed to let Tabitha come to North Carolina and stay with defendant and Pierce for several weeks. On 24 August 1994, defendant and Pierce took Tabitha to Wilkes Regional Medical Center. Tabitha was unconscious, and her body was covered with bruises, grab marks, pinch marks, scratches, bite marks, and other injuries. Tabitha was airlifted to the pediatric intensive care unit at Baptist Hospital in Winston-Salem because of the severity of her injuries. On 25 August 1994, Tabitha died after life support was withdrawn.

Defendant told the nursing supervisor at Wilkes Regional Medical Center that earlier in the evening, she had found Tabitha outside, with a dog standing over her. However, she told the registration clerk at the hospital that she heard a gasp in the bedroom and found Tabitha in her room making a "gurgling" sound. Defendant said that she grabbed and shook her and that Tabitha collapsed on the bed. She also claimed that Tabitha had slid on wet carpet, causing the bruises on her face. Defendant and Pierce together later recounted the evening's events to Karolen Bowman, M.D., an expert in pediatric medicine at Wilkes Regional Medical Center. They told her that Pierce ran outside when he heard dogs barking and found Tabitha limp and making gurgling noises, whereupon they then brought her to the hospital. Pierce and defendant also stated that Tabitha bruised easily.

When David Pendry, a detective with the Wilkes County Sheriff's Department, questioned Pierce and defendant at the hospital, defendant agreed with Pierce's explanation that a dog jumped on Tabitha and knocked her down. Pierce stated that when he went outside, he found Tabitha lying on the ground, unconscious and not breathing. They then brought her to the hospital. Defendant later told another law enforcement officer that both Tabitha's old and new injuries were caused when a dog jumped on her and knocked her down.

Defendant's former mother-in-law, Lucille Macemore, testified that some time after 11:00 p.m. on 24 August 1994, defendant called her from Wilkes Regional Medical Center and stated, "Lucille, I've killed Tabitha."

The State's evidence tended to show that Tabitha had numerous injuries extending all over her body, including bruises on her face, cheeks and jaw, chin, forehead, sides of her neck, collarbones, over the front of her chest, on her back, over her right flank, her buttocks, upper and lower legs, her eyelid, and on her shins. Patches of her hair had been pulled out traumatically. Tabitha had also suffered injuries caused by a blunt trauma to the mouth. There was evidence of forceful pinching and grabbing and human adult bite marks on Tabitha's body. She had suffered a blunt trauma to her pubic area. Dr. Patrick E. Lantz, the forensic pathologist, found bruises in the forms of grab marks, belt marks, shoe marks, and marks from a radio antenna and a metal tray. Tabitha's brain was swollen with a hemorrhage both over the surface of the brain in the lining as well as a subdural hematoma between the skull bone and the brain. There were retinal hemorrhages in the back of her eyes indicating that she had been shaken violently. Dr. Lantz opined that these injuries had been inflicted at various times, would have been painful, and would have required considerable force.

William Fisher, M.D., the resident family doctor at Wilkes Regional Emergency Department, testified that he did not believe Tabitha's injuries were caused by a dog, but instead by "some sort of a beating." Dr. Bowman testified that, based on her observations and on the history given to her by Pierce and defendant, she believed that Tabitha had "been severely abused over a matter of days to weeks." Sybille Sabastian, a registered nurse in the Wilkes Regional emergency room, opined, based on her experience and her observations of Tabitha's injuries, that Tabitha "had been beaten." Sarah Sinal, M.D., an expert in pediatric medicine who saw Tabitha in the pediatric intensive care unit at Baptist Hospital, testified that, in her opinion, Tabitha was "a victim of severe child abuse." She concluded that Tabitha was a victim of the shaken-baby syndrome and the battered-child syndrome. Dr. Lantz testified that, in his opinion, Tabitha's injuries were not caused by a dog, that the injuries were inflicted at various times, and that Tabitha was a victim of battered-child syndrome.

PRETRIAL ISSUES

I.

In her first assignment of error, defendant contends that the trial court erred in denying her motion for expert psychiatric assistance. Defendant argues that an expert was needed to present evidence that defendant was acting under the domination of Ronald Pierce and that she was under duress at the time of Tabitha's death. Upon consideration of a medical report from Dorothea Dix Hospital during an ex parte hearing, the trial court denied the motion on the grounds that defendant's sanity was not likely to be an issue in the case. Defendant argues in her brief that she is entitled to a new trial because the trial court's denial of expert psychiatric assistance deprived her of her constitutional rights to the assistance of counsel and a fundamentally fair trial. We disagree.

Turning first to a defendant's entitlement to expert psychiatric assistance, in State v. Page, 346 N.C. 689, 488 S.E.2d 225 (1997), cert. denied, ___ U.S. ___, 118 S.Ct. 710, 139 L.Ed.2d 651 (1998), we stated:

In accordance with Ake [v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985)], this Court has held that upon a threshold showing of specific need for expert assistance, funds for such must be made available. Further, the statutory right to "counsel and the other necessary expenses of representation," N.C.G.S. § 7A-450(b) (1989), includes the assistance of experts upon a showing of a particularized need therefor. The trial court has authority to approve a fee for the service of an expert witness who testifies for an indigent person.

To establish a particularized need for expert assistance, a defendant must show that: (1) he will be deprived of a fair trial without the expert assistance, or (2) there is a reasonable likelihood that the expert will materially assist him in the preparation of his case. Although particularized need is a flexible concept and must be determined on a case-by-case basis, [State v.] Parks, 331 N.C. [649,] 656-57, 417 S.E.2d [467], 471 [ (1992) ], "[m]ere hope or suspicion that favorable evidence is available is not enough to require that such help be provided," State v. Holden, 321 N.C. 125, 136, 362 S.E.2d 513, 522 (1987),cert. denied, 486 U.S. 1061, 108 S.Ct. 2835, 100 L.Ed.2d 935 (1988). The trial court has discretion to determine whether a defendant has made an adequate showing of particularized need. In making its determination the trial court should consider all the facts and circumstances known to it at the time the motion for psychiatric assistance is made.

Page, 346 at 696-97, 488 S.E.2d at 230 (citations omitted).

During the ex parte hearing prior to trial, defendant offered into evidence a report from Dr. Robert Rollins, a forensic psychiatrist, and a report from Dorothy Humphrey, the staff psychologist, both of whom worked at Dorothea Dix Hospital. In his report, Dr. Rollins determined that defendant has "limited intellectual ability"; that she is "capable of proceeding to trial"; and that she "[d]oes not have a disorder that would relieve her of responsibility for her actions." Ms. Humphrey reported that defendant "has an IQ of 75 to 76" and that "her expressed concern and affection for her children appear genuine." During the ex parte hearing, the following exchange occurred:

MR. CAMERON [defense counsel]: ... Well, my main point was, I suppose, Your Honor, to stress the things in the report itself, such as the borderline intellectual ability, and the fact that ... and, I'm not sure I understand all this, in which they say "the principal and primary diagnoses" and then it goes on to say "mixed personality disorder with inadequate (sic) dependent (sic) and emotionally unstable features."

You know, of course, this trial, as it now stands, would be a two part trial. We, perhaps, may need the psychiatric report for the second phase more so than even the first phase. But, we are concerned to some degree with the first aspect of the trial in anticipating the State's theory, they may have to put this, since ... she's not the mother of the

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