State v. Avery

• Decision Date: 10 December 1985
• Docket Number: No. 561A83,561A83
• Citation: 337 S.E.2d 786,315 N.C. 1
• Parties: STATE of North Carolina v. Leonard D. AVERY.
• Court: North Carolina Supreme Court

Page 786

337 S.E.2d 786

315 N.C. 1

STATE of North Carolina v. Leonard D. AVERY.

No. 561A83.

Supreme Court of North Carolina.

Dec. 10, 1985.

Lacy H. Thornburg, Atty. Gen. by Christopher P. Brewer, Asst. Atty. Gen., for the State.

Ann F. Loflin and Thomas F. Loflin, III, for defendant-appellant.

FRYE, Justice.

The essential facts are that defendant, Leonard D. Avery, was employed at IBM in the Research Triangle Park during July and early August 1982. He worked under the supervision of an IBM Manager, Shirley Johnson. Doctors at IBM had been advised that defendant was suffering from a mental condition diagnosed by doctors at the Veterans Administration Hospital in Durham, North Carolina, as Post Traumatic Stress Disorder (PTSD). Defendant had been given permission to be absent from work to attend PTSD treatment sessions at the VA Hospital. During July and August, defendant was absent from work for the purpose of attending PTSD sessions on the advice of his doctor at the VA Hospital. He did not, however, attend these therapy sessions during his absence. Mrs. Johnson contacted the defendant and scheduled an appointment for him with Dr. Patrick Connor of the IBM Medical Department on 18 August 1982. During the appointment, defendant became upset, angry, and defensive when Dr. Connor confronted him with the fact that he knew defendant had not attended a therapy session in several weeks. The interview was terminated shortly thereafter.

Dr. Connors believed defendant to be dangerous and he so advised his superiors in the medical department and other officials at IBM. As defendant was leaving the interview, he told Mrs. Johnson that he would be back to blow the place up starting with the medical department. Mrs. Johnson notified her manager and appropriate officials in the medical, security, and personnel departments concerning what had occurred. The decision was then made to terminate the defendant's employment with IBM. Mrs. Johnson called defendant on 19 August 1982 and informed him of this decision.

On 23 August 1982, defendant went to the Dixie Loan Company in Raleigh and purchased a .45 caliber semi-automatic rifle, two boxes of ammunition containing fifty bullets each and two 30-round ammunition clips. On 26 August 1982, defendant returned to the Dixie Loan Company and complained that the gun he had bought was jamming and exchanged that weapon for another .45 caliber automatic rifle.

Defendant was scheduled to be admitted to the VA Hospital on 17 August 1982 under the treatment of Dr. Owen Buck, a psychiatrist who was treating defendant for PTSD. He did not, however, appear for admission. Defendant called Dr. Buck on 23 August 1982 and requested a letter excusing his absences from work in August of 1982. When Dr. Buck declined to write such a letter, defendant told him that was all right that he would read about it in the newspaper. Dr. Buck notified the medical department at IBM of these matters prior to 30 August 1982.

On 30 August 1982 at approximately 1:00 p.m., defendant drove up to the loading dock of Building 205 which housed the medical department of the IBM Complex. He was wearing army fatigues and a hat with medals on it. He had several weapons, ammunition and homemade fire bombs of gasoline or some other flammable substance in his possession or in his car. Defendant was observed entering Building 205 through an open loading dock, and the IBM security section was notified. The manager of security called the Durham County Sheriff's Department, the North Carolina Highway Patrol and the IBM Medical Department.

As defendant proceeded toward the medical department in Building 205, he encountered Daniel Gooch, an employee of IBM, in the hallway. Defendant told Gooch to back up against the wall if he wanted to live. Defendant then entered the medical department and began firing as employees scattered to safety. He then ignited a fire bomb in the medical department.

Defendant then exited the medical department through the hallway or ramp toward Building 201 of the IBM Complex. At the end of the hallway, defendant ignited another fire bomb. A contract construction worker passed defendant to extinguish the fire, but defendant told him to let the fire burn. A nurse supervisor from the IBM Medical Department then approached defendant in the hallway and asked him if she could help him or if anything was wrong. Defendant then struck her on the head with the butt of the rifle, knocking her to the floor. The nurse supervisor sustained a laceration and hematoma above the right ear and was treated and released at Rex Hospital. Defendant continued through the hallway to Building 201, firing shots from the rifle on the way.

In Building 201, defendant encountered Ralph Glenn, an employee of IBM. Mr. Glenn asked defendant what he was doing and if he could help him. Defendant told Glenn to get out of his way and subsequently shot Glenn in the chest. Ralph Glenn died as a result of the gunshot wound to his chest. Defendant then ignited a fire bomb in Building 201.

After leaving Building 201, defendant entered Building 303 where he shot Richard Martin in the chest. Martin later underwent surgery and was in serious condition for approximately ten days before he slowly recovered and was able to return to work in October 1982. After leaving Building 303, defendant shot Charles Davis in the left elbow. The bullet was surgically removed from Davis' arm, and he fully recovered in approximately seven weeks. Defendant also shot and wounded Charles Thompson. Thompson received medical attention at the hospital for minor injuries.

Defendant then entered Building 203 where he ignited a fourth and final fire bomb. While defendant was in Building 203, a Durham County Sheriff's Department Deputy arrived. When the deputy encountered defendant in the building, defendant fired at him. The deputy waited for assistance, during which time defendant returned to his car. While leaving the IBM Complex, defendant fired shots at another sheriff's deputy who fired three shots from his shotgun into the back of defendant's car as it drove away.

The deputies, as well as a number of highway patrol troopers, followed defendant's car from the IBM Parking Lot down Interstate 40 into Raleigh where a roadblock was set up by the Raleigh Police Department. Defendant stopped his car before reaching the roadblock. Defendant then shot himself in the head with a .22 caliber derringer pistol. Defendant was then transported to Durham County General Hospital where he underwent brain surgery to remove the bullet. The surgery necessitated the removal of the entire left frontal lobe of defendant's brain and a small portion of the right frontal lobe.

Later processing of the crime scene at IBM on 30 August 1982 revealed that a total of twenty-eight shots were fired while defendant was inside the various IBM buildings. Burned or charred areas were observed in four locations in the IBM Complex: (1) in the medical department of Building 205; (2) in the passageway running between Building 205 and Building 201; (3) near a cabinet in Building 201; and (4) in Building 203.

After defendant was sufficiently recovered, he was released from Durham County General Hospital and transferred to the Central Prison Hospital in Raleigh. He was later transferred to Dorothea Dix Hospital where he was examined by Dr. Bob Rollins, head of the Forensic Psychiatry Unit at Dorothea Dix Hospital, who made the determination that defendant was competent to stand trial even though defendant was unable to remember the events at the IBM Complex on 30 August 1982.

After a jury trial, defendant was convicted of first degree murder predicated on the felony murder rule, two counts of assault with a firearm upon a law enforcement officer, four counts of felonious entry of a building, a misdemeanor assault with a deadly weapon, attempting to burn a building used for trade, and setting fire to or burning a building used for trade.

Defendant sets forth twenty-two assignments of error in his appeal, each of which will be addressed in this opinion.

I.

Defendant first assigns as error the trial court's ruling that defendant had the mental capacity to stand trial and to assist in the preparation of his defense, notwithstanding defendant's apparent memory impairment or possible amnesia.

The trial court conducted a pre-trial hearing to determine Defendant Avery's capacity to proceed to trial or to plead to the fourteen indictments in question. At this hearing, forensic psychiatrists, Dr. Bob Rollins and Dr. Selwyn Rose, testified for the State and the defense respectively. Based on their separate interviews and examinations of defendant, Dr. Rollins and Dr. Rose agreed in their testimony that defendant was suffering from an impaired memory concerning the events at issue in the various indictments. Both psychiatrists also agreed that defendant was suffering from Chronic Post Traumatic Stress Disorder as a result of his service in the Vietnam War. At the time each forensic psychiatrist saw defendant, a portion of defendant's brain had already been removed in surgery as a result of his self-inflicted gunshot wound.

Dr. Rollins expressed the opinion that the portion of the brain removed controls affect and mood but has no significant effect on memory. It was Dr. Rollins' opinion that defendant had chosen not to remember the events of the allegations, that there was no evidence of organic brain damage or psychosis and that defendant had good memory of events before the week of the offenses and immediately after the offenses. In the opinion of Dr. Rollins, defendant was able to understand the nature and the object of the proceedings against him, was capable of assisting counsel in his defense, and was competent and capable to stand trial.

Dr. Rose expressed the opinion that defendant's memory impairment resulted from either organic brain damage or psychological repression. In the opinion of Dr....