State v. Case, No. 313A86

• Decision Date: 07 November 1991
• Docket Number: No. 313A86
• Citation: 410 S.E.2d 57,330 N.C. 161
• Parties: STATE of North Carolina v. Jerry Douglas CASE.
• Court: North Carolina Supreme Court

Page 57

410 S.E.2d 57

330 N.C. 161

STATE of North Carolina v. Jerry Douglas CASE.

No. 313A86.

Supreme Court of North Carolina.

Nov. 7, 1991.

Lacy H. Thornburg, Atty. Gen. by Joan H. Byers, Sp. Deputy Atty. Gen., Raleigh, for the State.

Louis D. Bilionis, Chapel Hill, for defendant appellant.

WEBB, Justice.

The defendant has made twenty-seven assignments of error. We shall discuss one of them.

The defendant argues under his first assignment of error that his guilty plea should be set aside and that he should be tried de novo on the guilt phase as well as the penalty phase of his trial. He says this is so because there was error in reaching the plea bargain by which he pled guilty. In this case, the prosecuting attorney agreed as part of a plea bargain in which the defendant agreed to plead guilty to first degree murder, that the State would present evidence of only one aggravating circumstance, that the murder was especially heinous, atrocious, or cruel. There was also evidence of the aggravating circumstances that the defendant committed the murder while engaged in the commission of a kidnapping and that the defendant committed the murder for pecuniary gain. N.C.G.S. § 15A-2000(e)(5) and (6) (1988).

It was error for the State to agree not to submit aggravating circumstances which could be supported by the evidence. State v. Silhan, 302 N.C. 223, 275 S.E.2d 450 (1981); State v. Jones, 299 N.C. 298, 261 S.E.2d 860 (1980); State v. Johnson, 298 N.C. 47, 257 S.E.2d 597 (1979). The decision as to whether a case of murder in the first degree should be tried as a capital case is not within the district attorney's discretion. State v. Britt, 320 N.C. 705, 360 S.E.2d 660 (1987). This is so in order to prevent capital sentencing from being irregular, inconsistent and arbitrary. If our law permitted the district attorney to exercise discretion as to when an aggravating circumstance supported by the evidence would or would not be submitted, our death penalty scheme would be arbitrary and, therefore, unconstitutional. Where there is no evidence of an aggravating circumstance, the prosecutor may so announce, but this announcement must be based upon a genuine lack of evidence of any aggravating circumstance. See State v. Lloyd, 321 N.C. 301, 364 S.E.2d 316, vacated and remanded on other grounds, 488 U.S. 807, 109 S.Ct. 38, 102 L.Ed.2d 18 (1988).

In order to protect the constitutionality of our capital sentencing system, we must order a new trial. At such a trial neither the State nor the defendant will be bound by the plea bargain previously made. Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971).

We do not discuss other assignments of error because the questions raised under them may not recur at a new trial.

NEW TRIAL.

MEYER, Justice, concurring.

I concur in all respects with the majority opinion. I write separately solely to express my personal view that it is only the violation of a significant public policy of this state that justifies the granting of a new trial and nothing else.

The brutality and psychological torment accompanying the murder of Franklin Gourlay was unusually cruel. Telina Harris Clontz and the defendant, reputedly her pimp, lured Mr. Gourlay, a cab driver they knew, to a motel in Knoxville, kidnapped him, and forced him at knife point to drive them in his taxi six hours to Gastonia. Once in Gastonia, he was held prisoner, hogtied, gagged, beaten, and subsequently stabbed to death execution-style. His body was found face down on the floor of a motel room, still hogtied. His hands were tied behind his back with drapery cord. His legs were pulled up behind him and tied to his hands with strips of bed sheet. A strip of sheet was tied around his neck and led back down to his hands. There was a piece of sheet folded inside his mouth and another piece tied around his head holding it in place. The victim's shirt was soaked with blood and wadded up around his shoulders. There was blood on the floor and vomit near his head.

In addition to bruises and abrasions on the victim's face, there were five stab wounds to the victim's back, one to the left chest, and one to the base of the neck. Two of the stab wounds punctured the left lung. These were the fatal wounds. The two stab wounds to the lung caused the lung to collapse and the other lung to fill with blood. The victim aspirated a great deal of blood. The actual cause of death was a combination of bleeding to death and suffocating on the blood he had breathed.

In Dr. Tracy's opinion, based on the direction of the wounds and the bloodstains, Mr. Gourlay was in a kneeling position when he was stabbed, and the assailant was behind the victim. The victim would have taken about five minutes to die after the fatal wounds were inflicted and would not have lost consciousness until the last half minute to full minute. Also, in the doctor's opinion, some of the wounds could have been intended to inflict pain. The evidence shows that the victim was left to bleed to death or drown in his own blood. In the doctor's opinion, neither death nor unconsciousness was immediate. The evidence also shows that after the victim died, or as he lay dying, defendant went to the liquor store and bought vodka, which he took back to the room and drank.

During jury selection, defendant changed his plea from "not guilty" to "guilty" in exchange for the State's limiting the theory by which he could be adjudicated guilty of first-degree murder to "felony murder," the State's dismissing the armed robbery charge against defendant, and the State's permitting Telina Harris Clontz to plead guilty to second-degree murder. The State further agreed to rely solely on N.C.G.S. § 15A-2000(e)(9) to aggravate this crime. Thereafter, a sentencing hearing was held, and on 29 March 1986, the jury returned a recommendation that the court sentence defendant to death.

The majority opinion concludes that the State's agreement not to submit aggravating circumstances supported by the evidence requires that we vacate the death sentence imposed and order a new trial. I agree.

The prosecution in a capital case has no power to withhold from the jury's consideration any...