State v. Nicholson

Decision Date01 February 2002
Docket NumberNo. 564A99.,564A99.
Citation558 S.E.2d 109
CourtNorth Carolina Supreme Court
PartiesSTATE of North Carolina v. Abner Ray NICHOLSON.

Roy Cooper, Attorney General, by Ralf F. Haskell, Special Deputy Attorney General, for the State.

Thomas R. Sallenger, Wilson, for defendant-appellant.

MARTIN, Justice.

On 11 September 1997 Abner Ray Nicholson (defendant) was indicted for the first-degree murders of his wife, Gloria Brown Nicholson (Mrs. Nicholson), and the Sharpsburg Police Department Chief of Police, Willard Wayne Hathaway (Chief Hathaway). Defendant was also indicted for the attempted first-degree murder of Mrs. Nicholson's stepfather, Marvin Roscoe Badger (Badger). Defendant was tried capitally at the 25 October 1999 Criminal Session of Superior Court, Wilson County. The jury found defendant guilty of each count of first-degree murder and not guilty of attempted first-degree murder. Following a capital sentencing proceeding, the jury recommended a sentence of death for each first-degree murder conviction, and the trial court entered judgment in accordance with those recommendations. The state presented evidence at defendant's trial which is summarized as follows. Defendant and Mrs. Nicholson lived in a trailer on Weaver Circle in Sharpsburg, North Carolina, along with Mrs. Nicholson's two daughters, ages three and eight. One of the Nicholsons' neighbors, Emily McKenzie (McKenzie), first became aware the Nicholsons were having marital problems on 15 July 1997. On that day, Mrs. Nicholson went to McKenzie's house with her children and asked to use McKenzie's telephone. Mrs. Nicholson looked upset and explained that she and defendant had argued, and that she and the children were going to her mother's house. McKenzie talked to the children and noticed they seemed very distant, as if they had been through a difficult experience.

On 16 July 1997, defendant visited the Hardly Able Pawn and Gun Shop in Sharpsburg. There, he retrieved a Bauer .25-caliber automatic pistol with a pearl handle that he had pawned in early June of that year. Later that day, defendant and Mrs. Nicholson went to the Badgers' house to speak to Mrs. Nicholson's mother and stepfather about the state of their relationship. Mrs. Nicholson told her parents she did not want to be married anymore. Defendant said that he wanted to work things out but that his wife did not. Mrs. Nicholson asked her husband to tell her parents what he had done. When defendant said he had not done anything, Mrs. Nicholson got up and demonstrated how he had attempted to choke her in April of that year. Mrs. Badger told defendant she did not want her daughter to be with him any more.

On the evening of 16 July 1997, the Nicholsons and the Badgers took Mrs. Nicholson's youngest daughter to the emergency room because she had a fever. The Nicholsons rode together in the backseat of Mr. Badger's van. During the trip to the hospital, defendant could be heard whispering to Mrs. Nicholson. At one point, Mrs. Nicholson said, "No. No. No. I ain't gonna (sic) do it. I don't want that." After more whispering, Mrs. Nicholson told her stepfather that defendant had threatened to kill her and had told her he was carrying a gun. Defendant then said, "No, I didn't. I was lying. I ain't got no gun." When they arrived at the hospital, defendant did not go inside with the rest of the family and could not be located when they were ready to go home.

After leaving the hospital, Mrs. Nicholson and the Badgers drove to the Nicholsons' trailer so Mrs. Nicholson could get some clothes. Mr. Badger walked inside with her to use the bathroom. They found defendant inside, lying on the couch. Mr. Badger then went into the bathroom. Mrs. Badger, who was sitting in the van, heard Mrs. Nicholson call her from the front doorway. As Mrs. Badger walked towards the trailer, defendant came out and punched Mrs. Nicholson in the face with his fist. Her nose started to bleed. Mr. Badger heard his stepdaughter "holler," and when he came out of the bathroom, she told him defendant had hit her. Defendant claimed Mrs. Nicholson had been hit by the door.

Mrs. Nicholson called the police, and defendant began walking down the road away from the trailer. Deputy Moss (Moss) of the Sharpsburg Police Department responded to the trailer after receiving a dispatch for a "domestic in progress," "Signal One, armed and dangerous." When Moss arrived, defendant ran into a nearby cornfield, and Moss called for backup. It was now shortly after midnight. Mrs. Nicholson was very upset and told Moss that defendant had punched her, causing the bleeding, and had threatened to kill her if she ever left him. She also said that defendant was armed and that he had pawned his weapon but must have retrieved it. Moss advised her to take her mother and stepfather with her as witnesses to the magistrate's office and swear out a warrant for defendant's arrest, which she did. Before they left, Mr. Badger blocked the back door of the trailer with a couch from the living room so defendant could not get in by that route. Moss stayed at the trailer until about 4:30 a.m. to see if defendant would return to get his car, but he did not. Mrs. Nicholson spent the night at her parents' house.

On the morning of 17 July 1997, Moss informed Chief Hathaway of the incident and told him that a warrant had been sworn out for defendant's arrest. Mrs. Nicholson returned to her trailer around 10:30 a.m. to get some clothes. Her stepfather and her fifteen-year-old brother, Jarrin Brown (Brown), went with her. Her stepfather was unarmed. While there, Mrs. Nicholson called defendant's sister in an attempt to get in touch with defendant. Defendant called her back shortly thereafter, and Mrs. Nicholson asked him to come over and get his clothes. Defendant agreed but said he did not want anyone else to be at the trailer when he arrived.

Mrs. Nicholson then called the police and asked if an officer could leave his car at the station and walk to her trailer. The Assistant Town Clerk answered and told Mrs. Nicholson that her request was against department policy. Chief Hathaway, the only officer on duty, called Mrs. Nicholson back and talked with her further. He explained that he could not leave his car but that he could come over and serve the warrant on defendant. He told Mrs. Nicholson to call him back before she let defendant into the trailer, and he would come over then. Defendant called Mrs. Nicholson a few minutes later and asked if anyone else was at the trailer. Mrs. Nicholson told him "no." She then told her stepfather and brother to wait in the back bedroom until the police arrived.

Defendant arrived at the trailer shortly thereafter and knocked on the door. Mrs. Nicholson stalled by saying she was getting dressed, and called the police. She then let defendant inside the trailer. Mrs. Nicholson was in the kitchen when defendant entered the trailer, and Mr. Badger and Brown heard her telling defendant she wanted him to get his clothes and leave. When defendant said he did not have anything to put his clothes in, Mrs. Nicholson told him to get a trash bag.

At that point, Chief Hathaway arrived at the trailer in uniform with a piece of paper in his hand. Mrs. Nicholson let him in when he knocked. She then told Mr. Badger and Brown they could come out from the back bedroom. As they walked down the hallway, Chief Hathaway approached defendant. Defendant turned, pushed Chief Hathaway away, dropped the trash bag, and shot the Chief in the face. The Chief fell against defendant, and defendant shoved him back. Chief Hathaway's gun was in his holster when he was shot.

Mr. Badger attempted to open the rear sliding storm door, but before he could open it, defendant chased Mrs. Nicholson past him. As Mr. Badger opened the door and got outside, he heard more shooting. At the same time, Brown turned and started towards the back bedroom. As he did so, he saw his sister lying on the floor near the front door. He watched defendant walk over to her, lean down, and shoot her. Brown ran to the back bedroom and waited there until he heard defendant leave the trailer. He then ran out of the trailer and saw defendant walking towards the cornfield.

Brown went back inside the trailer, saw that his sister was not moving, and saw that Chief Hathaway was still breathing. He grabbed the Chief's radio and attempted to call for help. Brown took the Chief's gun out of its holster in case defendant returned, and he called 911. When police arrived, Brown put Chief Hathaway's gun on a recliner and went outside to meet them. Police later found the Chief's gun, with the safety still on. There was no evidence it had been fired.

Defendant was apprehended around 11:45 p.m. that same day. Defendant told a state trooper who assisted in his apprehension that he had dropped the gun in the woods. The gun that defendant had retrieved from the pawnshop was found the next day in a nearby cornfield. It was later determined that all of the bullets collected for evidentiary purposes in this case had been fired from that gun.

Dr. Thomas Clark, a forensic pathologist in the Office of the Chief Medical Examiner, performed an autopsy on the body of Chief Hathaway. The autopsy revealed that Chief Hathaway died from a gunshot wound to the head. Dr. Clark concluded that the bullet had entered Chief Hathaway's head below the right eye, passed through his brain, and lodged on the surface of his brain. The bullet was removed during the autopsy. The wound appeared to have been made from a distance of two feet or greater and would have quickly resulted in unconsciousness and death.

Dr. Page Hudson, professor of pathology at East Carolina University, performed an autopsy on the body of Mrs. Nicholson. Dr. Hudson determined the cause of Mrs. Nicholson's death to be gunshot wounds to the head. Mrs. Nicholson had two gunshot wounds to the right side of her scalp, one below the fourth finger on her left hand, and...

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