State v. Greene
| Decision Date | 09 February 1989 |
| Docket Number | No. 456A87,456A87 |
| Citation | 376 S.E.2d 430,324 N.C. 1 |
| Court | North Carolina Supreme Court |
| Parties | STATE of North Carolina v. Gary Dean GREENE. |
Lacy H. Thornburg, Atty. Gen. by Thomas J. Ziko, Asst. Atty. Gen., and Edwin M. Speas, Jr., Sp. Deputy Atty. Gen., Raleigh, for the State.
David S. Lackey, Nancy Einstein, and David A. Swanson, Lenoir, for defendant-appellant.
Defendant was convicted of first degree murder and robbery with a dangerous weapon. The jury recommended the death sentence for the murder, and the trial court sentenced accordingly. The trial court also sentenced defendant to forty years imprisonment for the armed robbery. We find no prejudicial error.
The State's evidence, in pertinent summary, showed the following:
The victim, defendant's father, was a vigorous seventy-four-year-old male. Defendant's mother worked the second shift at a factory. She arrived home after work at 9:15 p.m. on 1 May 1986 and found her husband's dead body at the bottom of the basement steps.
Detective Barlow from the Caldwell County Sheriff's Department investigated the scene. He noted that the basement floor was wet. Two freezers were sprayed with blood. There was a broken piece of gun stock in a paper bag in the middle of the basement. The gun stock was not wet or bloody.
The pathologist who performed an autopsy on the victim's body testified that there were a variety of lacerations and bruises about the face, chest, mid-back and shoulders. The victim's arms were bruised and abraded in several places and his little finger was broken. His breast bone and jaw were also broken. Internal examination of organs revealed diffuse hemorrhaging around the brain. In the pathologist's opinion, the trauma to the brain was the actual cause of death. The pathologist thought at the time that the victim had been beaten to death, but the police thought it possible that he had died after falling in the well in the basement and climbing back out, then falling on the stairs. The doctor listed the cause of death as multiple traumatic injuries of undetermined cause because he felt he could not conclusively determine that the injuries were sustained by a beating rather than a fall.
The case remained under investigation for approximately a month while Detective Barlow interviewed family, friends, and neighbors of the victim. Both defendant and his girlfriend denied any knowledge of the death. The detective then closed the case because he could not prove that the death was not accidental.
In August 1986 the State Bureau of Investigation reopened the investigation and assigned Agent Knowles to the case. On When Agent Knowles returned home that evening, he received a message asking him to call Ms. Newton. Ms. Newton told Agent Knowles over the telephone that Ms. Hopson had told her that defendant had killed his father.
27 October 1986 Agent Knowles interviewed Ms. Newton, a friend of defendant's girlfriend, Ms. Hopson. As Agent Knowles was interviewing Ms. Newton, defendant and Ms. Hopson drove into Ms. Newton's driveway, then turned around and drove off. Agent Knowles left Ms. Newton's trailer and pursued them. Defendant ducked down in the car so that he was not visible from the outside. Agent Knowles stopped Ms. Hopson and asked her to come to the police station to answer some questions. She complied, but when questioned she reiterated that she knew nothing about the victim's death. Agent Knowles had seen defendant in Ms. Hopson's car as he and Ms. Hopson got out of their cars at the station. He asked Ms. Hopson to ask defendant to come inside for questioning. Ms. Hopson went outside but returned and reported that defendant had left.
Two days later Ms. Hopson gave officers a statement implicating defendant in the death of his father. Based on that statement the officers secured an arrest warrant and a warrant to search defendant's residence and conduct luminol examinations to reveal traces of blood.
Ms. Hopson testified at trial that she had lived with defendant from the summer of 1984 until July of 1986. She was living with defendant in a trailer behind his parents' house on 1 May 1986. Ms. Hopson testified that defendant was drinking beer on 1 May 1986. He complained that he did not have any money and told her he was going to kill his father because, if his mother died before his father, his father would give everything to defendant's brothers and defendant would not inherit anything. Defendant said he would make it look like an accident. He took an old shotgun from his trailer and walked off toward his father's house shortly after 7:00 p.m.
Ms. Hopson testified that she could not believe defendant would kill his father. She went inside the trailer and watched television. Defendant returned an hour later covered with blood and holding the shotgun. Defendant told Ms. Hopson he had beaten his father to death and to get him a complete change of clothes. After bathing and changing clothes, defendant placed his bloody clothes and the shotgun in a grocery bag. Ms. Hopson saw that defendant had a "good-sized wad of money in his hand."
The two went in defendant's car to Ms. Hopson's mother's house to return her dogs. Ms. Hopson told her mother that defendant had killed his father. Along the way defendant threw the bag containing his clothes and the gun into a river. A gun was later recovered from the river in the area where Ms. Hopson said defendant had thrown the clothes and gun.
Ms. Hopson lived with defendant until July 1986, when defendant's mother asked her to move out of defendant's trailer. She moved out but was still seeing defendant about twice a week at the time of his arrest. Ms. Hopson moved in with Ms. Newton. Both Ms. Hopson and Ms. Newton testified that Ms. Hopson told Ms. Newton one night when she was drinking that defendant had killed his father.
The State presented several witnesses who corroborated Ms. Hopson's version of the events, including Ms. Hopson's mother, Ms. Newton, and Ms. Newton's boyfriend. Defendant did not offer evidence. Defense counsel moved for a directed verdict at the close of the State's evidence, arguing that only Ms. Hopson's testimony tied defendant to the death of his father and attacking her credibility. The trial court denied the motion.
The jury found defendant guilty of first degree murder based on both premeditation and deliberation and the felony-murder rule. It also found him guilty of armed robbery.
Following a capital sentencing hearing, the jury found as the sole aggravating circumstance that defendant was engaged in the commission of a robbery with a The jury found the following four mitigating circumstances: that defendant's intelligence quotient of eighty-one placed him in the lowest ten percent of the population; that defendant was a model prisoner in jail while awaiting trial; that defendant was a person of good behavior except when he was drinking alcohol; and the catch-all provision of "[a]ny other circumstance arising from the evidence which the jury deems to have mitigating value." N.C.G.S. § 15A-2000(f)(9) (1988). It did not specify what additional circumstance(s) it found to have mitigating value.
dangerous weapon when he committed the murder. The State submitted as an aggravating circumstance that the murder was especially heinous, atrocious or cruel, but the jury rejected this circumstance.
Upon finding that the mitigating circumstances were insufficient to outweigh the aggravating circumstance, and that the aggravating circumstance was sufficiently substantial to call for the death penalty, the jury recommended a sentence of death.
Defendant first contends that the affidavits used to obtain the warrants authorizing a search of defendant's trailer and car and the performance of luminol tests were insufficient in that they showed no probable cause and provided no information as to the veracity of the "confidential informant" supplying the information. Defendant argues that the trial court thus erred in denying defendant's motion to suppress evidence seized from his home pursuant to the search warrant.
Defendant objects only to the admission of evidence resulting from the luminol examination for traces of blood. The affidavit in question stated:
On or about May 1, 1986, [the victim] was found dead in the basement of his residence. Death appeared to have been from a severe beating. A large amount of blood was found around the body and on the opposite side of the basement in a spray pattern on the walls and appliances.
The autopsy report listed the cause of death as multiple traumatic injuries, including several fractures, lacerations, contusions, and abrasions. A separate report from the Chief Medical Examiner's Office in Chapel Hill stated that the injuries were consistant [sic] with a severe beating. A severe beating could result in a spray pattern of blood such as those observed at the scene.
On October 29, 1986 this applicant received information from a confidential informant that on May 1, 1986 the confidential informant observed [defendant] enter his residence wearing clothing covered with what appeared to be blood and carrying what appeared to be the barrel of a long gun. [Defendant] left his residence after only a short period of time wearing different clothing. The confidential informant observed a bag and the long gun barrel be placed in a Pontiac Firebird parked at the residence of [defendant]. The informant knows the car as belonging to [defendant]. That [defendant] and a white female then left the residence in the Firebird.
The stock of a long gun was found in the basement of the victim's residence on the night of the incident. The stock was splintered and appeared to have been broken by force.
Defendant contends this affidavit does not contain sufficient facts for a magistrate to find probable cause for a search. We disagree.
Whether an applicant has submitted sufficient evidence to establish probable...
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