State v. Kilpatrick

• Decision Date: 13 June 1996
• Docket Number: No. 337A95,337A95
• Citation: 471 S.E.2d 624,343 N.C. 466
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Luby Alvin KILPATRICK.

Page 624

471 S.E.2d 624

343 N.C. 466

STATE of North Carolina v. Luby Alvin KILPATRICK.

No. 337A95.

Supreme Court of North Carolina.

June 13, 1996.

Michael F. Easley, Attorney General by Marilyn R. Mudge, Assistant Attorney General, for State.

Fred W. Harrison, Kinston, for defendant-appellant.

PARKER, Justice.

Defendant was tried capitally on indictments charging him with the first-degree murders of Angela Rhem Kilpatrick and Lenwood Rhem, Jr. The jury returned verdicts finding defendant guilty of first-degree murder on the basis of premeditation and deliberation in the killing of Angela Rhem Kilpatrick and guilty of second-degree murder in the killing of Lenwood Rhem, Jr. Following a capital sentencing proceeding, the jury recommended that defendant be sentenced to life imprisonment for the murder of Angela Rhem Kilpatrick. Upon this recommendation the trial court sentenced defendant to life imprisonment for the first-degree murder conviction and to a consecutive term of fifty years' imprisonment for the second-degree murder conviction. Defendant appeals his first-degree murder conviction. (Defendant gave notice of appeal in both cases to the Supreme Court; the record does not show any motion to bypass the Court of Appeals on the second-degree murder conviction; and defendant makes no argument specifically related to the second-degree murder conviction.) For the reasons discussed herein, we conclude that defendant's trial was free from prejudicial error and uphold his conviction and sentence for first-degree murder.

On 4 July 1993 defendant shot and killed his wife, Angela Rhem Kilpatrick, and her brother, Lenwood Rhem, Jr. The State's evidence tended to show that defendant and his wife had a strained and violent relationship prior to the killings including threats to kill Ms. Kilpatrick, their baby, and himself.

Ms. Kilpatrick spent the evening before the killing at her parents' house because she was afraid of defendant. Defendant went to the house and threatened to burn it down if Ms. Kilpatrick spent the night there. Defendant also called Ms. Kilpatrick and threatened to kill her if she returned to their trailer.

On the day of the killings, Ms. Kilpatrick returned to the trailer with her brother and her daughter, Latisha Greene. Unbeknown to them, defendant was hiding under a bed in the back bedroom. Defendant remained in this hiding place for several hours while Ms. Kilpatrick, her brother, and Latisha were in the den talking and watching television. Defendant eventually left his hiding place, obtained a single-shot shotgun, and appeared in the doorway between the living room and the den.

Defendant fired an unprovoked, close-range shot which killed Mr. Rhem. Ignoring Ms. Kilpatrick's plea for mercy, defendant reloaded his shotgun and shot her as well. Defendant then kicked Mr. Rhem and started throwing various items at Ms. Kilpatrick. As she lay on the floor, Ms. Kilpatrick told her daughter to call the police. Latisha ran to a neighbor's house and asked them to call the authorities. She subsequently ran to her grandparents' house and told her grandfather that defendant had killed her uncle and that she believed defendant had also killed her mother.

After Latisha left the trailer to obtain help, defendant attacked his wife, hit her in the head with a brick, and knocked her off the front porch and into the front yard. Defendant then retrieved the shotgun, reloaded it, and shot Ms. Kilpatrick in the chest, killing her.

Defendant first argues that the trial court erred in denying his motion to compel the State to supply defendant with the criminal records of all the witnesses in the case against him. Defendant asserts that the State must supply counsel with the criminal history of all witnesses in order to meet the State's obligation to ensure that a defendant being tried for his life receives an adequate defense. Defendant contends that the State is required to provide defendant with the criminal history of witnesses by Rule 7.3 of the North Carolina Rules of Professional Conduct and the principles underlying the United States Supreme Court's decisions in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976), and United States v. Bagley, 473 U.S. 667, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985). We disagree.

The statute governing disclosure of evidence by the State, N.C.G.S. § 15A-903 (1988), "does not grant the defendant the right to discover the names and addresses, let alone the criminal records, of the [S]tate's witnesses." State v. Robinson, 310 N.C. 530, 536, 313 S.E.2d 571, 575 (1984). Similarly, not having shown that any material evidence was actually suppressed by the State, State v. Smith, 337 N.C. 658, 664, 447 S.E.2d 376, 379 (1994), defendant cannot prevail under Brady, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215.

"[T]he suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." Brady, 373 U.S. at 87, 83 S.Ct. at 1196-97, 10 L.Ed.2d at 218. "The evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A 'reasonable probability' is a probability sufficient to undermine confidence in the outcome." Bagley, 473 U.S. at 682, 105 S.Ct. at 3383, 87 L.Ed.2d at 494. The defendant has the burden of showing that undisclosed evidence was material and that the failure to disclose affected the outcome of the trial. State v. Alston, 307 N.C. 321, 337, 298 S.E.2d 631, 642 (1983).

To prevail under Brady a "defendant must first show that evidence favorable to the accused was actually suppressed and that the suppressed evidence was material either to guilt or punishment such that there is a reasonable probability that had the evidence been disclosed, the outcome of the trial would have been different." Smith, 337 N.C. at 664, 447 S.E.2d at 379. In the instant case defendant has not alleged, much less shown, that any witness had a significant criminal record or that the State suppressed impeaching information concerning any witness. The record shows that the prosecutor informed the trial court that the State had an "open-file" policy, that defendant's counsel had been given access to the file, and that defendant's counsel would continue to have access to the file throughout the course of the trial. Defendant has not met his burden of showing that the State suppressed any material evidence concerning the criminal history of witnesses. Accordingly, we conclude that the trial court's refusal to compel the State to supply defendant with the criminal records of witnesses did not violate defendant's right to due process.

Defendant also cites Rule 7.3 of the North Carolina Rules of Professional Conduct in support of this assignment of error. Rule 7.3 requires the prosecutor in a criminal case to "make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense." N.C. Rules of Professional Conduct Rule 7.3(4) (1996). Defendant has not shown that the prosecutor failed to make timely disclosure of material evidence with respect to the criminal history of any witness in this case. For this reason we cannot conclude that the prosecutor violated Rule 7.3. This assignment of error is overruled.

By another assignment of error, defendant argues that the trial court erred in failing to quash the murder indictment. Defendant contends the indictment failed to give him particular notice of each element of the charge of first-degree murder in violation of the rights guaranteed defendant by the Sixth and Fourteenth Amendments to the United States Constitution. The bill of indictment returned against defendant included the following:

The jurors for the State upon their oath present that on or about the 4th day of July, 1993 in Lenoir County, Luby Alvin Kilpatrick unlawfully, willfully and feloniously and of malice aforethought did kill and murder Angela Rhem Kilpatrick.

This indictment complies with the short-form indictment for murder authorized by N.C.G.S. § 15-144. We have held that the short-form indictment is sufficient to charge first-degree murder on the basis of premeditation and deliberation. State v. Avery, 315 N.C. 1, 12-14, 337 S.E.2d 786, 792-93 (1985). We find no compelling reason to depart from our prior holding in Avery and conclude that the trial court did not err in denying defendant's motion to quash the bill of indictment. This assignment of error is overruled.

Defendant next argues that the trial court erred when it denied defendant's motion requesting funds for the appointment of a jury selection expert. Defendant contends that requiring counsel to undertake the defense of a defendant charged with a capital crime without the assistance of a jury selection expert deprived defendant of due process under the Fourteenth Amendment to the United States Constitution and Article I, Section 19 of the North Carolina Constitution. We disagree.

An indigent defendant is entitled to the assistance of an expert in preparation of his defense when he makes a "particularized showing that (1) he will be deprived of a fair trial without the expert assistance, or (2) there is a reasonable likelihood that it would materially assist him in the preparation of his case." State v. Parks, 331 N.C. 649, 656, 417 S.E.2d 467, 471 (1992). "The particularized showing demanded by our cases is a flexible one and must be determined on a case-by-case basis." Id. at 656-57, 417 S.E.2d at 471. "The determination of whether a defendant has made an adequate showing of particularized need lies within the trial court's discretion." State v. Rose, 339 N.C. 172, 187,...