State v. McDowell
| Citation | 329 N.C. 363,407 S.E.2d 200 |
| Decision Date | 14 August 1991 |
| Docket Number | No. 417A88,417A88 |
| Court | United States State Supreme Court of North Carolina |
| Parties | . Supreme Court of North Carolina |
Lacy H. Thornburg, Atty. Gen. by Joan Herre Byers, Special Deputy Atty. Gen., Raleigh, for State.
Malcolm Ray Hunter, Jr., Appellate Defender, and Mark D. Montgomery, Asst. Appellate Defender, Raleigh, for defendant-appellant.
Defendant was indicted for the murder of Mrs. Doris Gillie and was tried capitally at the 8 August 1988 Criminal Session of Superior Court, Durham County. The jury found defendant guilty of first-degree murder on the theories of premeditation and deliberation and of felony murder, guilty of discharging a firearm into occupied property, and guilty of attempted robbery with a dangerous weapon. Following a sentencing proceeding pursuant to N.C.G.S. § 15A-2000, the jury recommended a sentence of death for the murder conviction. On 25 August 1988, the trial court sentenced defendant to death in accordance with the jury's recommendation for the murder. Defendant was also sentenced to consecutive terms of ten years for discharging a firearm into occupied property Defendant brings forward numerous assignments of error relating to both phases of his trial. After a careful consideration of these assignments, as well as the transcript, record, briefs, and oral argument, we find no error in the guilt determination phase of defendant's capital trial; however, we find that the trial court erred in denying defendant's motion to dismiss the charge of attempted robbery with a dangerous weapon, and we therefore vacate the judgment as to this conviction. As this is the basis for the only aggravating circumstance found by the jury in the capital sentencing phase, we must also vacate the sentence of death and impose a life sentence.
and forty years for attempted robbery with a dangerous weapon.
The evidence presented by the State tended to show that in the late afternoon of Wednesday, 19 August 1987, two teenagers, Eric Jeffrey and Lee Percell, met with defendant, who had just moved into the neighborhood with his pregnant girlfriend, Karen Curtis. Percell, Jeffrey, and defendant talked for a while and then decided to go to the store to buy some beer or wine. Defendant first went to his house to get some change, and then the men started to walk to the store. After making their purchases, the three men stopped at several houses on the way back, including the Parker residence. There, Jeffrey testified, two people were fighting with each other on the porch. Defendant went onto the porch to see what was going on and recognized one of the occupants, Patricia Parker, from school. He started "coming on strong" to her. Defendant then showed her and her brother a large pistol which he was carrying in a gym bag. He put the gun away and left with Percell and Jeffrey.
The men then continued on to the "Greenhouse," a group home, to talk to some of the residents. Defendant pulled up his shirt and revealed a pistol in his waistband. After questioning, defendant told one of the residents, Erica Joyner, that the gun was real. Ms. Joyner took the gun and handed it to Percell. Ms. Joyner testified that Percell said the pistol was his and that Percell put the pistol in his pants before they left. After the weapon had been shown to the young women, they went back inside the house. Jeffrey and Percell walked off, and defendant caught up with them. While walking, according to Jeffrey, defendant asked Jeffrey and Percell if they were "down to make money." 1 When Jeffrey replied no, defendant called him a "pussy" and a "chicken." Jeffrey said he could be that. Percell started laughing; as defendant waved the pistol in Jeffrey's face, defendant demanded to know why Percell was laughing. Defendant then left the two and walked toward the Durham Gospel Center. Jeffrey testified that, about five minutes after defendant left them, they heard the sound of shots.
After the Wednesday night prayer service at the Gospel Center, Mrs. Doris Gillie had sent her two children home with some friends. Mrs. Gillie stayed later to talk to some friends and went to the parking lot at about 8:45 p.m. on 19 August 1987. Another attendee, Eddie Sarvis, went to the parking lot at the same time. As he left the parking lot, Mr. Sarvis saw Mrs. Gillie's headlights behind him. He heard a shot just as he pulled out of the lot. He thought Mrs. Gillie's car had misfired and continued to leave. As he turned the corner, he heard three more quick shots, and then he backed up. He saw two persons running down the street. Mr. Sarvis went back toward the church and saw Mrs. Gillie's car still in the lot. He drove into the lot and then saw that Mrs. Gillie's window was shattered. He sent his sister, who was with him, for help.
Mr. Sarvis attempted to assist Mrs. Gillie, who was wounded but still in the car with her seat belt on. The car was in park with the doors locked. Mr. Sarvis reached through the shattered window, opened the door, and attempted to remove Mrs. Gillie Meanwhile, Jeffrey and Percell had gone back to Percell's home and were sitting on the front porch when defendant came up. Defendant told them he had shot someone and "had to kill them." Later that evening, defendant ran into them again and told them not to tell anyone what he had done.
[329 N.C. 370] who was trying to talk, from the vehicle. Before being removed from the vehicle, Mrs. Gillie lapsed into unconsciousness. Mr. Sarvis attempted CPR until the ambulance arrived. Without regaining consciousness, Mrs. Gillie died shortly after arriving at the hospital as the result of two gunshot wounds. The forensic pathologist recovered a .38-caliber slug from her body during the autopsy. He noticed no powder burns on her clothes.
Crime scene investigators found several bullet holes in the interior of the vehicle consistent with the shots being fired into the vehicle through the driver's window and in a downward angle. Skid marks and broken glass suggested that Mrs. Gillie had moved the vehicle in an attempt to escape. Her pocketbook was found unopened on the front passenger seat. Her body was between the purse and the shattered driver's window.
Later, the police, with the consent of Karen Curtis, searched the home she shared with defendant. The police found a shell casing in a closet. Additionally, the police obtained a .38-caliber pistol in a "mock takedown." 2 The ballistics expert opined that the slug recovered from Mrs. Gillie's body, as well as the shell casing, had been shot from the recovered .38-caliber pistol. However, the expert could not say the cartridge casing was from the Gillie murder.
On 20 August 1987, defendant was arrested and gave a statement denying involvement in the killing. After learning from the police that Erica Joyner had told them about his waving the pistol around, he admitted that he had shot the gun at the urging of Percell and Jeffrey but claimed that he did not mean to shoot Mrs. Gillie. The State was allowed to offer, over objection, a statement that defendant made thereafter:
While incarcerated in Durham County jail, a fellow detainee, Richard Bradshaw, overheard defendant and another inmate talking. The inmate asked defendant if he had shot the woman he was charged with killing. Defendant replied that "he had burned her and that ... if it hadn't been for some bitch seeing him earlier that day, he wouldn't be in jail, seen him with the gun." Defendant also stated that the police would not be able to locate the gun.
Defendant presented evidence through Lee Percell and his attorney to show that while defendant, in fact, announced his intent to "burn" someone, he did not mention robbery. Percell's attorney testified that Percell had consistently said that defendant had stated that he was going to "burn somebody" but that defendant had said nothing about robbery. No psychological or psychiatric evidence was presented at the guilt phase of the trial.
At the sentencing phase, the State relied on its guilt phase evidence to prove the aggravating factor of attempted robbery with a dangerous weapon. Defendant's evidence focused on his mental condition. Defendant presented mitigating evidence through his father; Brad Fisher, a clinical psychologist; and William Hussey, a former counselor at a rehabilitation program that defendant had attended.
Defendant contends that the trial court erred in allowing the capital case against him to proceed without the appointment of On 22 March 1988, defendant appeared in court, represented by Mr. Oates, as the case was calendared for trial in Superior Court, Durham County. During this proceeding, the district attorney raised the issue of defendant's representation, and the following exchange occurred:
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