State v. Leroux, 93A88

• Decision Date: 05 April 1990
• Docket Number: No. 93A88,93A88
• Citation: 326 N.C. 368,390 S.E.2d 314
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Lawrence Graham LEROUX.

Page 314

390 S.E.2d 314

326 N.C. 368

STATE of North Carolina v. Lawrence Graham LEROUX.

No. 93A88.

Supreme Court of North Carolina.

April 5, 1990.

Lacy H. Thornburg, Atty. Gen. by David F. Hoke, Associate Atty. Gen., Raleigh, for State.

Malcolm Ray Hunter, Jr., Appellate Defender by Gordon Widenhouse, Asst. Appellate Defender, Raleigh, for defendant-appellant.

MEYER, Justice.

Defendant assigns error to five aspects of the guilt-innocence phase of his trial and to one aspect of the sentencing proceeding. We have performed a careful and thorough review of the record, the briefs, and oral arguments of counsel, and we conclude that defendant received a fair trial free of prejudicial error.

The State's evidence tended to show that defendant engaged in a shooting spree in the early morning hours of 15 January 1987 in his Charlotte neighborhood. With his .22 rifle, he shot into the windows of several residences over a time period from approximately 12:00 midnight on 14 January to 2:00 a.m. on 15 January. Several residents testified that they heard rapid gunfire, as much as thirty or forty gunshots, on as many as five or six occasions that night. One of the residents called the Charlotte Police Department around 1:15 a.m., and Officers R.J. Hammett and R.L. Smith arrived on the scene a few minutes later. The resident related the circumstances of the shooting to them, and the officers then proceeded to walk across the fairway of the adjacent golf course in search of the perpetrator. There was a full moon that night, but a meteorologist testified as an expert witness for the defense that during the time period in question, clouds created a "total opague [sic] sky cover." This condition meant that the "cloud cover was so totally covering the sky and was of such thickness that there would be no discernable light from the moon."

Officer Hammett testified that he and Officer Smith proceeded to walk across the fairway, which was approximately two hundred feet wide, with Smith leading the way. Smith used his flashlight; Hammett did not. When they reached the tree line on the far side of the fairway, they turned to the right to walk down the fairway toward the green. The officers had walked about forty or fifty feet when Smith exclaimed, "What's that? Look at that. Hit the deck." Shots then rang out from the darkness ahead of them. Hammett dropped to the ground and called for Smith, but received no response. After he sent a radio message to the police station for assistance, he spotted a man who was dressed in dark clothes in front of him. The man got up from a crouched position and began running along the tree line of the fairway into the woods. Hammett shot at the man and took cover behind a tree. He could hear the man running on the dead leaves through the woods. It sounded as if the man was running in a semicircle around toward him. Hammett moved around the tree in an attempt to protect himself. Officers S.P. Maxfield and Jerry Williams arrived a few minutes later. As they approached his side of the fairway, Hammett heard several shots and heard the suspect yell. He called for him to drop the gun, but the suspect continued to run. The suspect yelled again, and another volley of shots was fired. The chase continued for several minutes. Hammett then heard a shotgun blast and heard Williams yell, "he's down." Hammett walked to where Williams was standing and observed a man on the ground with a rifle beside him. He identified that man as the defendant.

Officer Williams testified that when he arrived, he armed himself with a shotgun and proceeded toward Officer Smith's body. After ascertaining that Smith was dead, he assisted his fellow officers in attempting to apprehend the suspect. He testified that after some time, he saw the suspect come out from behind a condominium. Williams aimed his shotgun at the suspect and ordered him to drop his gun. When the suspect instead raised his weapon, Williams shot him in the upper arm. Williams then approached the suspect, who said, "Well, you guys win." Williams testified that the suspect seemed to be very much in control of his mental and physical faculties and that he never saw any sign of faulty steps or staggering. The suspect was taken to the hospital for medical attention. The officer who rode in the ambulance with the suspect testified that he did not detect any odor of alcohol on the suspect and that he spoke normally. The operating physician testified, however, that he smelled alcohol on the suspect, tested him, and discovered that he had a blood alcohol content of .166.

Sergeant Rick Sanders of the homicide investigation unit of the Charlotte Police Department interviewed the suspect in the emergency room. The interview was tape recorded. The suspect stated that he had been drinking in several nightclubs that night. He did not remember arriving home. He recalled hearing a "lot of yelling and screaming, and whatever, on the golf course.... And I saw some flashlights and I heard some noises. The last thing I remember is a big bang--that's all I can remember." He then stated that everything got "real still and real quiet. So I went downstairs and I got the rifle and I went outside anyway and snuck around.... And I guess I really shouldn't have gone down there, but I did.... I can't deny that I wasn't sneaking around, and I was. I was going between trees and going between shrubs and stuff, and sneaking around[,] ... weaving in and out, staying low to the ground." He recalled that he had the rifle with him and "[i]t was loaded and cocked too. And ... I got up to the next apartment complex down there, ... and I started going up over the hill, and the next thing I know it was just a big crash and my hands were burning, and I just fell down." The suspect did not recall shooting his gun that night and did not recall seeing a police officer until he himself had been shot.

Officer T.L. Athey of the Charlotte Police Department testified that he rode with defendant in the ambulance en route to the hospital. Defendant inquired, "Did I shoot anybody[?]" Athey answered affirmatively. At the hospital, defendant asked if any policemen were shot. Athey informed him that one had been shot, and defendant asked how he was.

During the taped interview with Officer Sanders, defendant remembered talking to Athey earlier and asking him how the policeman was who had been shot. Sanders stated that when defendant had inquired earlier as to the condition of the policeman who was shot, nobody had informed him that anybody had in fact been shot.

An owner of a nearby pawn shop testified that defendant pawned the rifle in question, a .22 semiautomatic, on 10 January 1987 and reclaimed it on 14 January, the day before the shootings. After the incident, police detectives combed the area for residual shells and bullets. A ballistics expert testified that, in his opinion, the two projectiles found in Officer Smith's body--one in his neck and one in his right thigh--were fired from defendant's rifle. Two additional bullets were imbedded in Officer Smith's protective vest. The other bullets found in and around the condominiums fired into that night were consistent with the projectiles fired from defendant's rifle.

Defendant testified in his own behalf. He relied on an intoxication defense, basing his case on the theory that he was incapable of forming the intent to shoot Officer Smith that night and therefore was not guilty of first-degree murder. He testified that his drinking had caused problems during his service in the Navy and that as a result he had received in-patient treatment for twenty-eight days for his alcohol problem. He testified that he had experienced alcoholic blackouts on numerous occasions and that he had once been charged with breaking and entering the mobile home next to the one in which he lived because, in his intoxicated state, he thought that the mobile home was his own. That charge was dismissed because of defendant's alcohol problem, and his attorney recommended that he seek treatment.

Dr. John Ewing, a psychiatrist specializing in alcoholism, testified that defendant suffered from "chronic alcoholism" and that, in his opinion, it was likely that he had a blood alcohol content of at least .20 at the time of the shootings. He explained that when a person has a blood alcohol content above .12 or .14, it begins to interfere with his protein synthesis, and his memory cannot be transferred from short-term to long-term. He explained, however, that such a blackout does not preclude a person from taking routine actions and that defendant could have fired his rifle despite being in the midst of an alcoholic blackout. He opined that defendant would not have been able, however, to formulate a goal and then act on it and thus could not have been able either to exercise judgment or to form the intent to harm anyone.

Defendant first assigns error to the trial court's charge to the jury. The court submitted a charge of first-degree murder solely under the theory of lying in wait. The jury was instructed that it was to find defendant either guilty of first-degree murder or not guilty. Defendant initially asserts that the State's evidence was insufficient to prove beyond a reasonable doubt defendant's guilt as to each element of the offense. He alternatively contends that the evidence supporting this theory was inconclusive and therefore supported an instruction on second-degree murder.

Defendant asserts that the trial court erred in denying his motion to dismiss the charge of first-degree murder because the State's evidence was insufficient to convince a rational trier of fact beyond a reasonable doubt that defendant killed Officer Smith "by placing himself in a position along the golf course fairway in order to make a secret ambush" on him. Defendant argues that this case lacks the common thread found among the lying-in-wait cases in the past: that the defendant stationed...