State v. Brown
| Decision Date | 22 August 2003 |
| Docket Number | No. 145A02.,145A02. |
| Citation | 584 S.E.2d 278,357 N.C. 382 |
| Court | North Carolina Supreme Court |
| Parties | STATE of North Carolina, v. Paul Anthony BROWN. |
Roy Cooper, Attorney General, by Barry S. McNeill, Special Deputy Attorney General, for the State.
James R. Glover, Chapel Hill, for defendant-appellant.
On 14 April 1997, a Wayne County grand jury indicted Paul Anthony Brown (defendant) for the first-degree murder of Latashonette Cox and the first-degree murder of an infant, David Dishon Franklin. Defendant was tried capitally before a jury at the 30 March 1998 session of Superior Court, Wayne County. On 7 April 1998, the jury found defendant guilty of the premeditated, first-degree murder of Latashonette Cox. On the same date, the jury found defendant guilty of the first-degree murder of David Franklin under the felony murder rule.
At the time of defendant's trial, defendant was challenging his 1986 conviction in Virginia for malicious wounding. The State planned to use this prior conviction as an aggravating circumstance in the capital sentencing proceeding in the present case. Because of defendant's pending challenge to his Virginia conviction, the trial court in the present case postponed the sentencing portion of defendant's trial until the completion of the proceedings in Virginia. Defendant's challenge to his 1986 Virginia conviction was ultimately unsuccessful.
The trial court subsequently entered an order arresting judgment on the murder conviction for Latashonette Cox because it merged into the felony murder conviction of David Franklin. Accordingly, the sentencing proceeding of the case considered only the murder conviction for David Franklin. On 11 August 2000, following a capital sentencing proceeding, the jury in the present case recommended that defendant receive a sentence of death. The trial court entered judgment in accordance with that recommendation.
Evidence presented at the guilt-innocence phase of the trial showed that defendant and victim Cox were in a romantic relationship. Victim Franklin was the eighteen-month-old child of one of victim Cox's friends, Jessica Franklin.
On 21 December 1996, shortly before midnight, defendant and victim Cox got into an argument. Cox kicked defendant out of the apartment and told him to "get her presents from under the tree." Defendant left the apartment but was clearly upset. Around 11:45 p.m., defendant went to the residence of Mary Cox, victim Cox's mother, and complained that victim Cox had "kicked him out." Defendant appeared upset and Mary Cox could tell defendant had been drinking.
Defendant returned to victim Cox's apartment about twenty-five to thirty minutes after Cox had asked him to leave. Jessica Franklin allowed defendant into the apartment and spoke with him briefly. Franklin dozed off in a chair, but was startled by gunshots. Franklin watched as defendant shot and killed victim Cox and victim Franklin while they lay in bed. Victim Cox was leaning back in the bed in a defensive position and victim Franklin was on his back.
Jessica Franklin ran from the apartment and frantically knocked on the door of Cymantha Tate's apartment. Franklin was hysterical and said, (Jessica Franklin commonly referred to victim Cox as her "sister," even though the two were unrelated.) Tate told Franklin to call the police and left the residence to help Franklin. As Franklin and Tate were returning to Tate's apartment, they saw defendant's vehicle driving away from the apartment complex. The police arrived within a few minutes. Franklin told police that defendant kept a nine-millimeter gun inside the residence and that defendant had committed the shootings.
Police Officer C.H. Newsome responded to the scene of the murders. He checked both victims and concluded they were dead. When Officer Newsome swept the apartment for the gunman, he found two children sleeping in another room.
At approximately 12:45 a.m. on 22 December 1996, Emergency Medical Technician Jerry Barnes and his partner responded to the call at the murder scene. They checked both victims and verified that they were dead.
In the early morning of 22 December 1996, Goldsboro Police Officer Ron Melvin searched the crime scene and found eight shell casings and seven bullet fragments. State Bureau of Investigation Special Agent Al Langly was admitted at trial as an expert in forensic firearms examination. Special Agent Langly analyzed the evidence submitted to him by the Goldsboro Police Department. He determined that eight bullets had been fired. He further concluded that all eight bullets had been fired from the same gun. Special Agent Langly also determined that the weapon used in the murders was a nine-millimeter, semiautomatic handgun that would have held eight or nine bullets in the clip. The gun would have had a safety device that had to be manually switched off.
On 22 December 1996, Dr. John Butts, chief medical examiner for the State of North Carolina, participated in autopsies on the bodies of both victims. Dr. Butts was admitted at trial as an expert in forensic pathology.
The autopsy of victim Franklin, the infant, revealed that Franklin had three gunshot wounds—one to his right chin, one to his right chest, and one to his right abdomen. Franklin had two exit wounds in his back. One bullet struck Franklin in the jawbone and came to rest against the base of his skull. A second bullet struck Franklin in the chest and damaged his heart and left lung before exiting his back. A third bullet struck Franklin in the abdomen and damaged his liver and right lung before exiting his back. All of Franklin's wounds were secondary wounds, meaning that the bullets passed through the body of victim Cox before striking Franklin. The cause of Franklin's death was multiple gunshot wounds.
The autopsy of victim Cox revealed that Cox's death was also caused by multiple gunshot wounds. Indeed, victim Cox suffered at least ten gunshot wounds. Among Cox's injuries was a gunshot wound from a bullet that struck the inner corner of her right eye, struck her jaw, and exited her body through the neck. This wound indicated the gun was in close proximity to Cox when it was fired. Another bullet struck the base of Cox's left ear, passed through the spinal canal, damaged the sixth and seventh vertebra in her neck, and lodged in her shoulder. This wound would have caused instant paralysis in the lower extremities. At least three bullets that passed through Cox's hand were described as defensive wounds, incurred while attempting to ward off an attack. Extensive internal bleeding continued for a time following the shooting; this showed that Cox's heart continued to beat during this time.
In his first assignment of error, defendant argues that his state and federal constitutional rights to due process and effective assistance of counsel were violated when the trial court denied his ex parte motion for an expert on "substance induced mood disorder."
The trial court approved defendant's initial ex parte application for the assistance of a mental health expert, and defense counsel chose Dr. Gary Bachara, a psychologist, to review defendant's mental status. Based on his testing and examination of defendant, Dr. Bachara concluded that defendant was suffering from "substance induced mood disorder, which ... brings on a psychosis." However, because Dr. Bachara contended that he was only "generally familiar" with this disorder, he recommended that defendant's counsel retain "a specialist in order to explain the diagnosis and the physiology of this diagnosis" to the jury. Defendant's counsel subsequently contacted Dr. Brian McMillen, with the Department of Pharmacology and Toxicology at the East Carolina University School of Medicine, who informed them of the fee for his services. Defendant's counsel accordingly made an ex parte motion for the appointment of Dr. McMillen as an expert in substance induced psychosis. The trial court denied this motion.
cert. denied, 486 U.S. 1061, 108 S.Ct. 2835, 100 L.Ed.2d 935 (1988)), cert. denied, 522 U.S. 1056, 118 S.Ct....
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