State v. McDowell

• Court: North Carolina Supreme Court
• Writing for the Court: EXUM; At the close of the hearing; FRYE
• Citation: State v. McDowell, 310 N.C. 61, 310 S.E.2d 301 (N.C. 1984)
• Decision Date: 10 January 1984
• Docket Number: No. 195A82,195A82
• Parties: STATE of North Carolina v. Robert Henry McDOWELL.

Page 301

310 S.E.2d 301

310 N.C. 61

STATE of North Carolina v. Robert Henry McDOWELL.

No. 195A82.

Supreme Court of North Carolina.

Jan. 10, 1984.

Rufus L. Edmisten, Atty. Gen. by Donald W. Stephens, Asst. Atty. Gen., Raleigh, for state appellant.

Richard A. Rosen and Patricia W. Lemley, Chapel Hill, James E. Ferguson, Charlotte, John Charles Boger, admitted pro hac vice, and Deborah Fins, New York City, for defendant-appellee.

EXUM, Justice.

The question dispositive of this case is whether Judge Collier entered the order allowing defendant's motion for appropriate relief without applying the appropriate constitutional standard. Believing that he did, as the state contends, we vacate his order and remand the case to the superior court for a hearing de novo.

I.

The movant, Robert Henry McDowell, was convicted of first degree murder and felonious assault at the 3 December 1979 Criminal Session of Johnston Superior Court, Judge Smith presiding. After a sentencing hearing, the jury recommended that a sentence of death be imposed; the court entered judgment accordingly. Defendant was sentenced to twenty years' imprisonment on his felonious assault conviction. This Court found no error in either the guilt or sentencing phases of the trial proceedings. State v. McDowell, 301 N.C. 279, 271 S.E.2d 286 (1980), cert. denied, 450 U.S. 1025, 101 S.Ct. 1731, 68 L.Ed.2d 220, reh'g denied, 451 U.S. 1012, 101 S.Ct. 2350, 68 L.Ed.2d 865 (1981).

On 19 May 1981 defendant filed a motion for appropriate relief, including a motion for stay of execution, ¹ pursuant to Article 89, Chapter 15A of the General Statutes. On 1 June 1981 Judge Farmer, presiding in Johnston Superior Court, allowed McDowell's motion to stay his execution pending further order of the court. On 6 August 1981 Judge Bowen, on the state's motion, transferred all matters then pending to Lee County where the case had arisen. ²

Judge Collier heard defendant's motion for appropriate relief during the 24 August 1981 Criminal Special Session of Lee Superior Court. On 8 December 1981, Judge Collier awarded defendant a new trial. Judge Collier based his order for a new trial on his conclusion that the prosecution's failure to disclose certain information to defendant before or during his trial "raise[d] sufficient constitutional and due process questions" to make it likely a federal court will require "a new trial at some distant future date." After careful consideration of the order and the factual background upon which it rests, we conclude the order must be set aside and a new hearing had on defendant's motion for appropriate relief as amended. The order must be vacated because Judge Collier did not apply appropriate constitutional standards to his factual findings, an application which the trial court in the first instance should make.

Defendant filed his original motion for appropriate relief pursuant to N.C.Gen.Stat. § 15A-1415 (1978) as amended in § 15A-1415 (1981 Cum.Supp.). In it he relied entirely on the following portions of that statute:

(3) The conviction was obtained in violation of the Constitution of the United States or the Constitution of North Carolina.

(4) The defendant was convicted or sentenced under a statute that was in violation of the Constitution of the United States or the Constitution of North Carolina.

....

(6) Evidence is available which was unknown or unavailable to the defendant at the time of the trial, which could not with due diligence have been discovered or made available at that time, and which has a direct and material bearing upon the guilt or innocence of the defendant.

His original motion alleges: (1) constitutional errors in the jury selection process; (2) his death sentence was so arbitrarily imposed as to be in violation of the Eighth and Fourteenth Amendments to the United States Constitution; (3) failure to record the jury selection process violates the Sixth, Eighth and Fourteenth Amendments of the United States Constitution; (4) N.C.Gen.Stat. § 15A-2000 is unconstitutional; and (5) he was deprived of his right to effective assistance of counsel for the reason that his trial counsel did not adequately raise or explore the possibility of an insanity defense.

On 7 July 1981 defendant moved to amend his motion so as to allege his entitlement to a new trial under subsection (b)(6) of the statute, i.e., newly discovered evidence. Defendant alleged that the newly discovered evidence consisted in part of the following: The state's only eyewitness to the crimes, Patsy Mason, had been well acquainted with defendant before the crime, although she told the jury she had seen him previously only one time and did not know him. Patsy Mason initially reported that her assailant was a white man, although defendant is black.

Upon these additional factual allegations, defendant contended he was entitled to a new trial on these grounds: (1) denial of effective assistance of trial counsel because of counsel's failure to discover the new evidence before trial; (2) denial of due process because of the state's failure to disclose this evidence; (3) deprivation of his Sixth Amendment right to confrontation and to a fair trial because of certain errors in evidentiary rulings by the trial court; and (4) violation of due process by the introduction of "irrelevant and gory photographs" at trial.

Defendant presented evidence before Judge Collier, however, solely to show: (1) newly discovered evidence; (2) denial of due process by the state's failure to disclose exculpatory evidence; and (3) excuse of one juror for cause at the guilt phase of trial because of her opposition to the death penalty.

At the close of the hearing, Judge Collier allowed the state and defense counsel time to submit written briefs. On 8 December 1981 Judge Collier entered a judgment awarding defendant a new trial. His order stated in pertinent part:

....

3. Uncontradicted evidence at the hearing disclosed that information was contained in a police file that the only surviving eyewitness made a statement at the hospital in the emergency room shortly after her injury in response to a question about the race of her assailant that he was 'white.' This information was not specifically asked for nor voluntarily disclosed to the defendant's attorneys prior to or during the trial. The defendant is black. The witness was severely injured and apparently near the point of death from gashes to her face and head and about her body and unable to respond to other questions thereafter put to her at that time. Due to the serious question of her capacity at the time of the response as indicated by the evidence, its effect, if any, on the jury, is impossible to predict.

4. The witness was permitted to convey an impression to the jury that she had seen the defendant on only one previous occasion and then for a very brief period of time when the prosecution had information that she had been in the presence of the defendant on at least several previous occasions, knew him to some extent, and had talked with and danced with him.

5. Information about two recent prior alleged invasions of the victim's house by intruders of a different race than defendant which were reported to but unsubstantiated by police investigation was not disclosed to defendant's attorneys.

6. Information about a young person seeing a person on a white bicycle enter the front door of the house around 11:30 p.m. on the night of the attack was not disclosed to defendant's attorneys.

7. Information that eyewitness had given conflicting descriptions to the SBI while in the hospital was never disclosed to defendant's attorneys.

8. While the individual items of undisclosed information standing alone might be insufficient to be exculpatory under all the circumstances attendant in the case and the separate incidents in themselves might not be sufficient to require a new trial, the cumulative effect of them all raise sufficient constitutional and due process questions especially in view of the fact that this is a capital case where the death sentence has been imposed and the conviction affirmed by the highest court of our state and the substantial likelihood of a federal court requiring a new trial at some distant future date after the existing evidence has grown even colder and memories dimmer and after the expenditure of what would otherwise be many thousands of dollars. Consequently, the ends of justice require awarding the defendant a new trial at the earliest reasonable time.

9. The question of guilt or innocence was not before this court and therefore not a proper consideration at this hearing. Every person charged with any crime, no matter how heinous or atrocious, is entitled to a fair trial that comports with the constitution and laws of our state and nation. The principles of law that occasionally shield those who have committed dastardly acts are the same principles of law that protect the innocent and us all from oppression and tyranny. To disregard these principles under any circumstances would be a violation of much that we stand for and that for which many have given their lives to preserve.

10. This decision was not entered into lightly nor without many hours of research and study of the evidence at the hearing, the briefs, the law, the trial transcript and the oral arguments. The decision is not intended to be critical of anyone connected with this case or its appeal. The matters and things on which this decision is based largely came to light only after the conviction of the defendant and after the conviction was affirmed by the Supreme Court. The undisclosed information was not deliberately withheld from the defendant's counsel but was either unknown to the prosecution or considered in good faith to be unexculpatory and therefore not required to be disclosed. [Emphases supplied.]

Judge Collier did not address defendant's evidence relating to the excuse for cause of a trial juror nor...