State v. Long

• Decision Date: 18 December 2001
• Docket Number: No. 19A01.,19A01.
• Parties: STATE of North Carolina v. Gary Wayne LONG.
• Court: North Carolina Supreme Court

557 S.E.2d 89

354 N.C. 534

STATE of North Carolina v. Gary Wayne LONG.

No. 19A01.

Supreme Court of North Carolina.

December 18, 2001.

Roy A. Cooper, Attorney General, by Ellen B. Scouten, Special Deputy Attorney General, for the State.

Paul M. Green, Durham, for defendant-appellant.

PARKER, Justice.

Defendant Gary Wayne Long was indicted on 9 February 1998 for the first-degree murder of his mother, Wilma Yates Lowder. Defendant was tried capitally and found guilty of first-degree murder on the basis of premeditation and deliberation. Following a capital sentencing proceeding, the jury recommended a sentence of death; and the trial court entered judgment accordingly.

The State's evidence tended to show that defendant was the son of the seventy-two-year-old victim and that he lived with her in Kannapolis, North Carolina, at the time of the crime.

The relationship between the victim and defendant was checkered with prior acts of violence. The victim had previously told others that defendant was abusive to her and had told her he wished she would die. The victim had mentioned that defendant had held a knife to her throat but said she was afraid that defendant would harm her if she took any action against him. A friend of the victim's testified that the victim had told him three to four months before the murder that defendant repeatedly said to her, "Die Bitch," and, "[G]o to hell where your mama and daddy is at."

On 5 October 1997, the victim called police officers to her residence, stating that defendant had pushed her and held her down. Defendant was subsequently arrested and charged with assault on a female. The bail bondsman whom the victim called to post bond for defendant feared for the victim's safety and, therefore, refused to post defendant's bond. Defendant was awaiting trial on this charge at the time of the murder.

On the evening of 9 January 1998, Elma Yates Vanhoy, the victim's sister, called the victim several times but received no answer. Worried about her sister, Ms. Vanhoy phoned the police department and asked that an officer check on the victim. Officer Goble was dispatched to the residence and received no response after knocking. The officer then left the residence at 11:00 p.m. and informed the victim's sister that all the lights were off and that the house was locked.

In light of the officer's information, Ms. Vanhoy woke her son-in-law, Frank Turnmire, at 11:30 p.m. and asked him to go check on the victim. The police were dispatched to help Mr. Turnmire gain access to the house by forced entry. When they entered the residence, they found defendant lying on the floor in his bedroom, intoxicated to the point of being nearly passed out. The hallway and the walls were blood splattered, and a path of blood was leading from the hallway to the bathroom where officers found the victim's body lying on the bathroom floor.

The victim's shirt had been pulled up to her neck; she had numerous wounds on her stomach and a slit across her neck. The body appeared to have been in that position several hours. Beneath the victim's body officers found a curved knife blade with no handle.

Officers found a small bloodstained steak-knife handle in a trash can in defendant's bedroom. They also discovered blue jeans that appeared to be bloodstained in the sink in defendant's bathroom and a shirt in defendant's bedroom that looked as though it had bloodstains on it.

Experts from the State Bureau of Investigation (SBI) lab compared the tread on defendant's tennis shoes with the imprints on the linoleum flooring from the victim's home and concluded that defendant's tennis shoes made the bloody impressions found on the linoleum flooring. The SBI serologist concluded that the blood on defendant's tennis shoes matched the DNA of the victim and did not match the DNA of defendant. Through DNA testing an officer found both defendant's and the victim's blood on defendant's wrist watch.

An expert from the SBI lab concluded that the knife handle found in the trash can in defendant's bedroom had at one time been joined to the knife blade found under the body of the victim. The pathologist who performed the autopsy on the victim opined that trauma to the head and chest and the knife injuries to the neck caused the victim's death. The pathologist also noted defensive wounds on the victim's hands and arms. Additional facts will be presented as necessary to discuss specific issues.

GUILT-INNOCENCE PHASE

Defendant contends that the trial court erred by denying his request to instruct the jury on voluntary intoxication. Defendant argues that the evidence of his intoxication at the time of the murder was sufficient to show that he lacked the necessary specific intent for first-degree murder. We disagree.

To satisfy his burden in establishing voluntary intoxication as a defense to negate premeditation and deliberation, defendant must show substantial evidence that his "`mind and reason were so completely intoxicated and overthrown as to render him utterly incapable of forming a deliberate and premeditated purpose to kill.'" State v. Strickland, 321 N.C. 31, 41, 361 S.E.2d 882, 888 (1987) (quoting State v. Medley, 295 N.C. 75, 79, 243 S.E.2d 374, 377 (1978)). More importantly, the evidence must show that "`at the time of the killing,'" defendant was so intoxicated that he could not form specific intent. Id. (quoting Medley, 295 N.C. at 79, 243 S.E.2d at 377). "Evidence tending to show only that defendant drank some unknown quantity of alcohol over an indefinite period of time before the murder does not satisfy the defendant's burden of production." State v. Geddie, 345 N.C. 73, 95, 478 S.E.2d 146, 157 (1996), cert. denied, 522 U.S. 825, 118 S.Ct. 86, 139 L.Ed.2d 43 (1997); see also State v. Laws, 325 N.C. 81, 98, 381 S.E.2d 609, 619 (1989), sentence vacated on other grounds, 494 U.S. 1022, 110 S.Ct. 1465, 108 L.Ed.2d 603 (1990).

Although defendant was substantially impaired when officers found him shortly after midnight, defendant presented no evidence of his condition before or at the time of the murder. Further, the victim's body was found cold, indicating the victim had been dead for several hours. The exact time of the victim's death is unknown; however, the victim's sister began calling the victim's residence at around 9:00 p.m. and never received an answer. Given the time differential between the time officers discovered defendant and noted his intoxicated state and the probable time of the murder, defendant had a sufficient amount of time to become intoxicated after committing the murder. Further, no evidence suggests the degree of defendant's intoxication, if any, at the time of the murder.

Additionally, evidence showed that defendant removed his tennis shoes, placed them under a cabinet, and put on his bedroom shoes. He placed a pair of blue jeans in the sink in his bathroom and removed his shirt. He threw a knife handle that matched the blade found under the victim's body in a trash can in his bedroom. These actions, designed to hide defendant's participation or to clean up from the murder, demonstrate that defendant could plan and think rationally and was, thus, not so intoxicated at the time of the murder as to negate defendant's ability to form specific intent.

Based on the foregoing, we conclude defendant has failed to satisfy the high threshold "utterly incapable" standard required for an instruction on voluntary intoxication as a defense to premeditated and deliberate murder. While a defendant may rely on the State's evidence if it is sufficient to establish the defense, in this case the State's evidence did not satisfy defendant's burden of production. The State's evidence merely showed that sometime after the murder occurred, defendant was substantially impaired. Moreover, defendant's toxicology expert, Dr. Andrew Mason, testified as to his opinion of defendant's intoxication at 10:00 p.m., based on assumed facts, not in evidence, furnished to him by defendant's counsel. This evidence did not constitute substantial evidence of defendant's intoxication at the time of the murder. Without this temporal component defendant's defense of voluntary intoxication must fail. We do note, however, that the trial court submitted the lesser-included offense of second-degree murder. Having heard defendant's expert testimony, if the jurors had a reasonable doubt as to whether defendant's intoxication precluded him from forming the specific intent necessary for premeditated and deliberate murder, the jurors had the option of convicting defendant of the lesser offense.

We hold that the record evidence regarding defendant's intoxication at the time of the murder was insufficient to warrant instruction on the defense of voluntary intoxication. Accordingly, the trial court did not err in declining defendant's request for such instruction.

Next, defendant contends that the record suggests a claim of ineffective assistance of counsel (IAC) in trial counsels' preparation and preservation of the intoxication issue. More specifically, defendant raises concerns that the Fourth Circuit Court of Appeals in McCarver v. Lee, 221 F.3d 583, 589 (4th Cir.2000), cert. denied, 531 U.S. 1089, 121 S.Ct. 809, 148 L.Ed.2d 694 (2001), interprets North Carolina law to require him to raise any IAC claim on direct appeal.

This Court has recently addressed the timing of an IAC claim pursuant to N.C.G.S. § 15A-1419(a)(3), taking into consideration the McCarver decision. State v. Fair, 354 N.C. 131, ___, 557 S.E.2d 500, 524 (2001). The Court held in State v. Fair that a defendant's "IAC claims brought on direct review will be decided on the merits when the cold record reveals that no further investigation is required, i.e., claims that may be developed and argued without such ancillary procedures as the appointment of investigators or an evidentiary hearing." Id. The Court further noted that "should the reviewing court determine that IAC...