State v. Page

• Decision Date: 24 July 1997
• Docket Number: No. 239A96,239A96
• Citation: 488 S.E.2d 225,346 N.C. 689
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina, v. George Franklin PAGE.

Page 225

488 S.E.2d 225

346 N.C. 689

STATE of North Carolina, v. George Franklin PAGE.

No. 239A96.

Supreme Court of North Carolina.

July 24, 1997.

Michael F. Easley, Attorney General by Valerie B. Spalding, Assistant Attorney General, for the State.

Larry L. Eubanks, David B. Freedman, and Dudley A. Witt, Winston-Salem, for defendant-appellant.

WHICHARD, Justice.

On 31 July 1995 defendant was indicted for first-degree murder, eight counts of assault with a deadly weapon with intent to kill, and one count each of discharging a firearm into an occupied vehicle and discharging a firearm into an occupied dwelling. On 11 March 1996 superseding indictments were issued on seven of the eight charges of assault with a deadly weapon with intent to kill, changing the charges to assault with a deadly weapon on a government officer. Defendant was tried capitally at the 8 April 1996 Criminal Session of Superior Court, Forsyth County. The jury found him guilty of all charges. As to the murder conviction, the jury found defendant guilty on the basis of premeditation and deliberation and under the felony murder rule, specifically finding the seven assault with a deadly weapon on a government officer offenses as the underlying felonies, and recommended that he be sentenced to death. The trial court sentenced defendant accordingly. It also sentenced defendant to imprisonment for thirty-one to forty-seven months on the assault with a deadly weapon with intent to kill conviction, twenty-five to thirty-nine months on the discharging a firearm into an occupied vehicle conviction, and twenty-five to thirty-nine months on the discharging a firearm into an occupied dwelling conviction, the sentences to run consecutive to one another. The court arrested judgment on the assault with a deadly weapon on a government officer convictions. We hold that defendant received a fair trial, free of prejudicial error, and that the sentence of death is not disproportionate.

The State's evidence tended to show that at around 8:00 a.m. on 27 February 1995, Sandra McGill was sitting in her apartment when she heard a loud explosion coming from the bar counter. Because she was blind, McGill called maintenance personnel, who discovered that a bullet had gone through her fish tank. The shot was fired by defendant George Franklin Page, who was pointing a high-powered rifle out the window of his apartment directly opposite McGill's building. He fired another shot when the maintenance person, Ellis Hollowell, went outside to take a closer look at a hole in the vertical blinds; this shot hit the wall just above Hollowell's head. Shortly after 9:00 a.m. defendant fired a third shot into a moving vehicle, a cable van.

Police Officers E.A. Newsome, A.N. Swaim, M.R. Bollinger, and J.W. McKenzie of the Winston-Salem Police Department arrived after 9:00 a.m. to inspect McGill's apartment. While Swaim and Newsome were proceeding to defendant's building to question the residents, defendant fired two more shots. While the officers radioed for help, he again fired his rifle, and the officers all took cover. Several testified that they saw defendant moving from window to window.

Officers John Pratt and Stephen Amos arrived at the scene and drove directly to defendant's building. Amos was at the hood of the car when defendant fired another shot that went through the patrol car's back window, then hit Amos in the chest. Pratt, along with officer Steven Sigmon and others, arrived and took Amos to the ambulance. Sigmon testified that he saw the muzzle flash and heard a shot that passed ten feet above his head.

Around 9:30 a.m. defendant called his ex-girlfriend, Tamara Mitchell, and stated that his apartment was surrounded by police officers and that he thought he had shot someone. At 10:00 a.m. Sergeant Marble, a crisis negotiator, called defendant. After discussion, defendant said he wanted to speak with his clinical psychologist, Dan Pollock, and his psychiatrist, Jason Crandell. Pollock spoke with defendant and implored him to surrender. Defendant told Marble the only people he wanted to approach his apartment were his ex-girlfriend and his "psych." Negotiations continued until 11:45 a.m. when defendant agreed to go, without weapons, with Crandell and Marble to Pollock's office. Defendant was taken into custody shortly thereafter. Marble testified that at the time of the arrest, defendant had no difficulty understanding what he was being told and was not delusional. Defendant told Marble he had been injured in Vietnam and wore a leg brace as a result.

Defendant introduced testimony from both Crandell and Pollock about his mental health. Pollock had treated defendant for several years and diagnosed him with a Cluster B personality disorder, extensive pain syndrome, and post-traumatic stress disorder with flashback symptoms resulting from experiences in Vietnam. Pollock also testified that defendant abused alcohol. Pollock opined that defendant was suffering from post-traumatic stress disorder at the time of the shooting and that because he was experiencing a flashback, defendant was unaware of his surroundings and the actual event.

Defendant also introduced testimony from Crandell. Pollock had referred him to Crandell in February 1994 for medication management of his post-traumatic stress disorder. Crandell also diagnosed defendant with chronic depression and chronic pain disorder as well as episodic alcohol abuse. Crandell testified that at the time of the arrest, defendant was suffering from an Axis II character disorder. This nonpsychotic disorder afflicted defendant on a daily basis; however, Crandell did not think it affected defendant's ability to formulate and carry out plans.

The State presented evidence from Nicole Wolfe, a forensic psychiatrist who evaluated defendant at Dorothea Dix Hospital after the shooting. She diagnosed defendant with a personality disorder characterized by narcissistic and passive/aggressive traits. She also discovered that defendant had served in Vietnam for only one year and had not seen combat. Given these facts, she did not believe defendant suffered from post-traumatic stress disorder. She similarly testified that defendant had a history of alcohol abuse. Wolfe believed that defendant had the capacity to understand his actions during the shooting and that none of the diagnoses affected his mental abilities.

During the capital sentencing proceeding, the jury found as aggravating circumstances that defendant had committed the murder as part of a course of conduct that included defendant's commission of other violent crimes, that he murdered a law enforcement officer engaged in the performance of official duties, and that the murder was committed to hinder the enforcement of the laws. Four statutory mitigating circumstances were submitted, and the jury found two: that the murder was committed while defendant was under the influence of a mental or emotional disturbance and that defendant's capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law was impaired. Finally, the jury found one of the six nonstatutory mitigating circumstances submitted: that defendant was under the voluntary care of both a psychiatrist and a psychologist on the day of the shooting. The jury found the mitigating circumstances insufficient to outweigh the aggravating circumstances and that the aggravating circumstances found, when considered with the mitigating circumstances found, were sufficiently substantial to call for the imposition of the death penalty.

In his first assignment of error, defendant makes two arguments. First, he argues that the trial court erred in denying his motion for a court-appointed psychiatrist. Second, he contends that denial of the motion in limine to suppress evidence of his psychologist's license revocation denied him his due-process guarantee to a competent mental health expert. We conclude that each argument is without merit.

Defendant presented testimony from Pollock, a clinical psychologist who had treated him for several years, and Crandell, a psychiatrist who had treated him for one year. Both characterized defendant as having a personality disorder and abusing alcohol, with Pollock making an additional diagnosis of post-traumatic stress disorder. The State's forensic psychiatric expert, Nicole Wolfe, disagreed with the finding of post-traumatic stress disorder and agreed with the personality disorder diagnosis. On 7 March 1996 defendant moved for appointment of a third expert, a forensic psychiatrist, arguing that this type of expert was better equipped than a clinical psychologist to prepare a legal defense.

Defendant first contends that the trial court erred in providing the State with access to a forensic psychiatrist while denying his request for the same type of expert. Ake v. Oklahoma established a defendant's right of access to a competent psychiatrist upon showing that "his sanity at the time of the offense is to be a significant factor at trial." 470 U.S. 68, 76, 105 S.Ct. 1087, 84 L.Ed.2d 53, 66 (1985). Following Ake this Court held that a defendant must be provided a " 'competent psychiatrist for the purpose of not only examining defendant but also assisting defendant in evaluating, preparing, and presenting his defense in both the guilt and sentencing phases.' " State v. Parks, 331 N.C. 649, 659, 417 S.E.2d 467, 473 (1992) (quoting State v. Gambrell, 318 N.C. 249, 259, 347 S.E.2d 390, 395 (1986)). While we have stated that both psychiatrists and psychologists are trained to recognize and treat mental illness, State v. Bates, 333 N.C. 523, 527, 428 S.E.2d 693, 695, cert. denied, 510 U.S. 984, 114 S.Ct. 487, 126 L.Ed.2d 438 (1993), we have not specified that a particular type of mental-health expert must be appointed to assist a defendant in a criminal case to satisfy the requirements of Ake.

In accordance with Ake, this Court has...