State v. Johnson

• Decision Date: 04 September 1979
• Docket Number: No. 63,63
• Citation: 298 N.C. 47,257 S.E.2d 597
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Norman Dale JOHNSON.

Page 597

257 S.E.2d 597

298 N.C. 47

STATE of North Carolina v. Norman Dale JOHNSON.

No. 63.

Supreme Court of North Carolina.

Sept. 4, 1979.

H. Houston Groome, Jr., Lenoir, for defendant-appellant.

EXUM, Justice.

This appeal presents a number of questions arising under our death penalty statute, G.S. 15A-2000, et seq. Of principal importance is the meaning and application here of the impaired capacity mitigating circumstance. ¹ For error in the trial court's instructions concerning it, defendant is entitled to a new sentencing hearing. Other questions raised and decided relate to (1) procedural requirements for submitting to the jury mitigating circumstances under G.S. 15A-2000(f); (2) the power of the state and defendant to enter into sentence negotiations in a capital case; (3) adequacy of the evidence and the instructions on whether this capital felony was "especially heinous, atrocious, or cruel"; ² and (4) whether the trial court should have appointed an associate counsel.

I

On 20 October 1977 Mabel Bowman Sherrill, the 65-year old wife of Bruce Sherrill, left their home to go to a familiar fishing area on a lake in Caldwell County approximately one mile away. Sometime in the early afternoon of that day she was found near the lake apparently murdered. An investigation ensued involving both the Caldwell County Sheriff's Department and the State Bureau of Investigation.

By 31 October 1977 defendant had become a suspect in the investigation. ³ On that date at approximately 9:00 p. m. defendant was located by Captain Robert Webster and Detective Roger Hutchings, both of the Caldwell County Sheriff's Department, at "The Snack Bar" in Hickory. At their request he agreed to accompany them to Lenoir in Caldwell County. Captain Webster testified that defendant at this point was not under arrest "but he was being detained for questioning regarding the homicide of Mabel Bowman Sherrill." ⁴

During the ride from Hickory to Lenoir defendant was questioned by Captain Webster regarding various firearms which defendant owned. Defendant admitted owning four firearms, one of which was a .38 caliber Smith & Wesson revolver which defendant said he had recently acquired. Defendant told Captain Webster that he had sold this pistol to his brother, Robert Johnson, who lived in Icard. After Captain Webster and defendant arrived in Lenoir defendant agreed to take Captain Webster and Detective Hutchings to his brother's home. The three went there and retrieved the .38 caliber pistol. This pistol was later identified as being in the possession of the deceased when she left home on 20 October 1977.

After the pistol was retrieved, defendant was returned to the Caldwell County Sheriff's Department where, after questioning, he confessed in the early morning hours of 1 November 1977 to the murder of Mabel Bowman Sherrill. He was immediately charged formally with the murder and ultimately indicted by the Caldwell County Grand Jury during the November, 1977, Session of Caldwell Superior Court. On 2 November 1977 Mr. Houston Groome was appointed counsel for defendant.

In November, 1977, defendant moved in writing for the appointment of an associate counsel, change of venue, and the appointment of an expert medical witness. He also moved to be found lacking in the capacity to proceed and gave notice that his defense would be insanity. In response to these motions Judge Ervin ordered a change of venue to Cleveland County. Judge Ervin also ordered that defendant be medically examined at Dorothea Dix Hospital for the purpose of determining his capacity to proceed and his mental capacity at the time of the alleged offense. In February, 1978, Judge Ervin appointed Dr. Richard J. Proctor, Chairman of the Department of Psychiatry at Bowman Gray School of Medicine, Winston-Salem, for the purpose of examining the defendant "to determine his mental capacity and competence to understand . . . the nature and consequences of his actions and the allegations . . . which gave rise to the charges pending against him and to understand, know and appreciate any pretrial constitutional rights which he may have . . . and to determine his ability to assist his counsel in the defense of this case."

Defendant came to trial before Judge Collier. Defendant moved for a finding that he was incapable of proceeding by reason of insanity and lack of mental capacity to proceed. At that point, Judge Collier conducted a hearing, as required by G.S. 15A-1002(b)(3), to determine defendant's capacity to proceed. The only witness at this hearing was Dr. James Groce, a physician at Dorothea Dix Hospital who was qualified as an expert in forensic psychiatry. Dr. Groce had examined defendant to determine his mental capacity to stand trial. In his opinion defendant suffered from "latent schizophrenia" and had "trouble controlling his thoughts and emotions"; however, he considered defendant competent to understand the nature and consequences of the proceedings against him, to assist his counsel and, therefore, to stand trial. Judge Collier so found and the case proceeded.

Defendant was then arraigned and entered a plea of guilty to first degree murder ⁵ which was accepted by the trial court. ⁶ A jury of twelve and two alternates was selected and empaneled for the purpose of determining, pursuant to G.S. 15A-2000, whether defendant should be sentenced to death or life imprisonment.

The state's evidence on the sentencing phase tended to show that Mabel Bowman Sherrill was found dead in the early afternoon of 20 October 1977 near a lake in Caldwell County where she had been fishing. An autopsy revealed two stab wounds in her chest which, in the opinion of the forensic pathologist performing the autopsy, caused death. "Ligature marks . . . typically produced by a constricting band or ligature cord, applied with pressure around an area of skin, so as to compress the skin" were found around her neck. Cuts were found on her labia. There was, however, no evidence of internal trauma to her vagina; and upon examination of vaginal smears for spermatozoa, none were discovered.

A .38 caliber pistol was offered in evidence as State's Exhibit No. 2. It was identified by Mr. Bruce Sherrill as being a pistol which his wife had taken with her when she left to go fishing on the day of her death. This pistol was also identified by investigating officers as being that which they recovered from the possession of defendant's brother to whom defendant admitted he sold it. Other witnesses for the state also testified that they had observed a pistol similar to State's Exhibit No. 2 in defendant's possession.

The state relied primarily at the sentencing hearing upon defendant's confession made in the early morning hours of 1 November 1977 after he had been detained for questioning. According to investigators defendant stated to them that he had gone to the "Gunpowder Boat Access Area" sometime around 11:00 a. m. on 20 October 1977 to fish after having fished at three other locations in the area. He recognized Mrs. Sherrill whom he had seen there before. She was leaving the area, and he helped her put her boat motor in the back of her car. As she began to tie up her boat he came at her from behind, wrapped a fish stringer around her neck and began to strangle her. She apparently lost consciousness; and he pulled her up on the bank, tore open her blouse and fondled her breasts. Being unable to loosen her underclothing, he took out a knife with which he "cut the tip portion of the corset open and pulled back the panty hose and panties and cut those open. Then he raped her. He stated that he did not get an erection, but he did manage to penetrate slightly. He also stated that he did not have an orgasm . . . ." Realizing that she was not dead and being afraid that she would scream, he stabbed her in the heart with the knife.

Evidence for defendant at the sentencing hearing tended to show as follows: He was, according to investigators, "fully cooperative" with them. He had written a letter while in jail to Mrs. Ed Foster, the operator of Bethlehem Marina on Lake Hickory, where defendant had purchased the fish stringer which he apparently used to strangle Mrs. Sherrill. The letter apologized "for any inconvenience or embarrassment which (Mrs. Foster) might have suffered" arising from his involvement in Mrs. Sherrill's death. Defendant had been active at Grace Baptist Church and, after the murder, expressed "sorrow, remorse and grief" to the pastor of that church. Defendant had a reputation for good character in his community. He was a dependable employee, thought of by his employer as honest, punctual, and hard working. His fellow workers considered him to be "a good fellow and a good worker" who "got along well with all of the others." They had never known him to harm, embarrass, be offensive or abusive to anyone. He was considered by a number of witnesses to be "an easy going, friendly normal individual." His jailer testified that, as a prisoner, he was "quiet . . . and never caused any trouble" and that he "was a model prisoner." He told the jail chaplain that he had attempted to write a letter to Mr. Sherrill apologizing for the death of Mrs. Sherrill "but could not put his words on paper."

Dr. Richard Proctor, who on order of the court had examined defendant, testified that he suffered from schizophrenia, "a disorder where there is an extremely strong genetic component, and it is the opinion of most experts that the disorder is the result of certain chemical changes that take place in the central nervous system or in the brain." Defendant's childhood showed a history of suicide attempts at ages 12, 14 "and again in the 11th Grade." As a child defendant had few friends, tended to "bottle up" his feelings, particularly his feelings of "hostility, anger, frustration." His siblings and his schoolmates made fun of him. In Dr. Proctor's opinion defendant was in the throes of a "mental or...