State v. Cole

• Decision Date: 13 June 1996
• Docket Number: No. 324A94,324A94
• Citation: 471 S.E.2d 362,343 N.C. 399
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Wade Larry COLE.

Page 362

471 S.E.2d 362

343 N.C. 399

STATE of North Carolina v. Wade Larry COLE.

No. 324A94.

Supreme Court of North Carolina.

June 13, 1996.

Michael F. Easley, Attorney General by Ellen B. Scouten, Special Deputy Attorney General, for the State.

Malcolm Ray Hunter, Jr., Appellate Defender by Benjamin Sendor, Assistant Appellate Defender, Durham, for defendant-appellant.

FRYE, Justice.

Defendant, Wade Larry Cole, was indicted on 27 June 1988 for two counts of murder. He was tried capitally in July 1989, found guilty of one count of first-degree murder and another count of involuntary manslaughter, and sentenced to death and ten years' imprisonment. On appeal, we awarded defendant a new trial. State v. Cole, 331 N.C. 272, 415 S.E.2d 716 (1992). During defendant's second capital trial, the jury returned verdicts of guilty on one count of first-degree murder and guilty on one count of involuntary manslaughter. During a capital sentencing proceeding conducted pursuant to N.C.G.S. § 15A-2000, the jury recommended a sentence of death for the first-degree murder conviction. The jury found as aggravating circumstances that the murder was especially heinous, atrocious, or cruel and that the murder was part of a course of conduct involving other crimes of violence against another person. The jury also found nine of the ten statutory and nonstatutory mitigating circumstances submitted to it. The trial judge imposed a sentence of two years' imprisonment for the involuntary manslaughter conviction and, in accordance with the jury recommendation, imposed a sentence of death for the first-degree murder conviction.

Defendant makes sixteen arguments on appeal to this Court. We reject each of these arguments and conclude that defendant's trial and capital sentencing proceeding were free of prejudicial error and that the death sentence is not disproportionate. Accordingly, we uphold defendant's convictions of first-degree murder and involuntary manslaughter as well as defendant's sentences of two years' imprisonment and death.

The State's evidence presented at trial tended to show the following facts and circumstances: Theresa Graham, thirty-two years old, lived in a house in Camden County with Hattie Graham (Ms. Graham), her fifty-seven-year-old mother; defendant; and defendant's and Theresa's two children, Rod and Assunta Graham, ages eleven and two, respectively. On 22 June 1988, William Bowser, Theresa's twelve-year-old cousin, was spending the night at the Graham residence. Defendant came home from work at around 5:30 p.m. on that evening. Upon entering the house, he asked where dinner was and then hit Theresa with his fist. Defendant then went outside, and Theresa followed him asking why he had hit her. Once outside, defendant began hitting Theresa again. Her mother followed and attempted to stop defendant from striking her daughter. Defendant then struck Ms. Graham, who fell and hit her head against the door of defendant's automobile. Rod and Bowser helped Ms. Graham into the house, and she called the police.

When Deputies Lilly and Vick of the Camden County Sheriff's Department arrived at the Graham residence, defendant and Theresa were arguing. Theresa had a black eye and a bruised face. Theresa remained with the children while the deputies transported defendant and Ms. Graham in separate vehicles to the magistrate's office. At the magistrate's office, a warrant was issued for defendant's arrest for the assault of Ms. Graham. Defendant posted bond and was released At approximately 1:36 a.m. on 23 June 1988, a police dispatcher in Elizabeth City received a call from Ms. Graham, who sounded excited and out of breath. Ms. Graham stated that her daughter was on the front porch dead and that defendant had shot her. Ms. Graham also told the dispatcher that she had tried to stop the attack but that defendant had knocked her down. The dispatcher contacted Deputy Vick, who then contacted Ms. Graham. After talking to Ms. Graham, Deputy Vick returned to the Graham residence. On his way, the deputy radioed a description of defendant and his vehicle to other law enforcement officers.

with instructions that he not return to the Graham residence except to retrieve his automobile. Police officers accompanied defendant back to the residence to retrieve his automobile and stayed until defendant left shortly before midnight.

When Deputy Vick arrived at the Graham residence, he found Theresa lying face-down on the floor of the screened porch and a knife lying on top of her neck; Theresa had no pulse. The three children then ran from the house. Deputy Vick entered the house and found Ms. Graham slumped over on the couch.

After other officers arrived, Deputy Vick took the children to the Sheriff's Department and interviewed them. Bowser stated that he was asleep on the couch when he heard a loud crash and saw defendant break through the back door. According to Bowser, defendant, armed with a .22-caliber rifle, snatched the telephone cord out of the wall, went to Theresa's bedroom, pulled Theresa from the bed, and shot her. Defendant kept beating Theresa as he dragged her into the dining room. Defendant then went into the kitchen, grabbed a knife, returned to the dining room, and began stabbing Theresa. At some point, Ms. Graham tried to intervene, and defendant stabbed her. Defendant then took Theresa onto the porch and resumed stabbing her. He eventually stopped; yelled, "I told you I was going to kill you"; then left the Graham residence. After defendant left, Bowser reconnected the phone, and Ms. Graham called the Sheriff. After talking to Deputy Vick on the telephone, Ms. Graham stopped breathing. Bowser and Rod went to Rod's room and hid under the bed until they heard Deputy Vick arrive at the residence.

At 3:23 a.m., an officer saw defendant's automobile, stopped defendant, and placed him under arrest. When approached by the officer, defendant asked, "Is she dead, man?" The officer smelled alcohol on defendant's breath, and it was apparent to him that defendant had been drinking.

The medical examiner determined that Theresa had received over one hundred stab wounds to her body, some of which were defensive wounds. Twenty-eight of the stab wounds had penetrated her internal body cavity, and many of them could have been fatal. There was one incised knife wound to the heart, as well as knife wounds to her spleen, liver, lungs, kidneys, and small intestines. Theresa also suffered two gunshot wounds: one to the right front part of her cheek and one to her left leg. The wound to her cheek was not fatal, but the gun had been placed in close proximity to her face when it was fired.

Ms. Graham had a single stab wound that penetrated her right breast as well as a stab wound to her left arm. She also had scrapes and bruises on her chest and lips. The medical examiner determined that Ms. Graham had severe coronary atherosclerosis, or hardening of the arteries of the heart, indicating heart disease. The cause of death was cardiac arrhythmia, or abnormal heart rhythm precipitated by stress; severe coronary disease was a major factor of her death. The stress on her heart was caused by the receiving of blunt-force injuries caused by blows to her lips, chest, head, right breast, and left arm.

Defendant testified at trial. He stated that when he got off work on the evening of the killings, he consumed some wine and smoked a marijuana cigarette before returning home. He and Theresa fought because she told him to "kiss her a--" when he asked about dinner. After he was released for assaulting Ms. Graham, defendant purchased more wine. After drinking the alcohol, he called Theresa, and she sounded out of breath. Defendant testified that he heard According to defendant, when he got to the house, he found Theresa in bed with Bowser, and he lost control. Defendant admitted shooting and stabbing Theresa but denied stabbing Ms. Graham. He testified that when he realized what he was doing, he stopped, threw down the knife, and drove to Elizabeth City where he slept for an hour. Defendant also denied that he said, "I told you I was going to kill you," after he stabbed Theresa.

the couch squeaking, and thinking she was having sex with a neighbor, he became angry. Defendant further testified that he then drove to the house, and when he walked up, he thought he heard Theresa breathing heavily, the couch or bed squeaking, and a male voice. Defendant went back to his truck, got his rifle, and returned to the house.

Defendant's motion to dismiss both counts of murder, made at the close of all the evidence and renewed after the jury verdicts were announced, was denied by the trial court. The jury returned verdicts finding defendant guilty of the first-degree murder of Theresa Graham and of the involuntary manslaughter of Ms. Graham.

As his first argument, defendant contends that the trial judge erred by not allowing his trial counsel to withdraw from the case. Defense counsel filed a pretrial motion to withdraw on 23 May 1994, one week before the trial was to begin. The motion was denied. Defendant argues that the record shows that the criteria for withdrawal were amply satisfied and that his Sixth Amendment right to effective assistance of counsel, as guaranteed under the United States Constitution, was violated. We disagree that defendant's right to effective assistance of counsel was violated.

Attorneys Lennie Hughes and O.C. Abbott represented defendant in the first trial. They were appointed for his retrial. In the withdrawal motion, filed 23 May 1994, counsel described disputes that they had with defendant during their 19 and 20 May 1994 visits with him. According to his attorneys, defendant accused them of conspiring with prosecutors, alleged that they wanted to see him executed, and alleged that exhibits had been altered. During the last conference with defendant, he became violent, tore some pages from Hughes' tablet, ordered the...