State v. Robinson, 586A87

Decision Date03 October 1991
Docket NumberNo. 586A87,586A87
PartiesSTATE of North Carolina v. Dwight Lamont ROBINSON.
CourtNorth Carolina Supreme Court

[330 N.C. 6] Appeal as of right pursuant to N.C.G.S. § 7A-27(a) from a judgment imposing a death sentence entered by Ross, J., at the 17 August 1987 Criminal Session of Superior Court, Guilford County. Defendant's motion to bypass the Court of Appeals as to additional judgments was allowed by the Supreme Court on 27 November 1989. Heard in the Supreme Court 11 February 1991.

Lacy H. Thornburg, Atty. Gen. by Ellen B. Scouten, Asst. Atty. Gen., Raleigh, for State.

Sam J. Ervin, IV, Morganton, for defendant.

FRYE, Justice.

On 17 March 1986, defendant was indicted for the first-degree murder of Robert

Page and robbery with a dangerous weapon. On 6 April 1987, defendant was also indicted for two counts of assault with a deadly weapon with intent to kill inflicting serious injury upon Gene Hill and Tammy Cotner. The offenses were joined for trial. On 17 September 1987, the jury returned verdicts of guilty of first-degree murder on the basis of malice, premeditation and deliberation, and under the felony murder rule. The jury also found defendant guilty of robbery with a dangerous weapon, and guilty on both counts of assault with a deadly weapon with intent to kill inflicting serious injury. Following a sentencing proceeding pursuant to N.C.G.S. § 15A-2000, the jury recommended and the court, on 22 September 1987, imposed the sentence of death in the first-degree murder case. Defendant was also sentenced to forty years for the robbery with a dangerous weapon conviction, and [330 N.C. 7] twenty years each for the two convictions of assault with a deadly weapon with intent to kill inflicting serious injury

In a voluminous two-volume, 357-page brief, defendant contends that the trial court committed numerous errors entitling him to a new trial or in the alternative a new sentencing proceeding. We find no prejudicial error in defendant's trial, but conclude that defendant is entitled to a new sentencing proceeding in the murder case under McKoy v. North Carolina, 494 U.S. 433, 110 S.Ct. 1227, 108 L.Ed.2d 369 (1990).

The State's evidence presented at trial tended to show that Tammy Cotner and Gene Hill were employees of the Western Steer Steak House in High Point, North Carolina, where Robert Page was manager. On 2 March 1986, Cotner, Hill, and Page worked until the restaurant closed around 11:00 p.m. They were the last persons to leave the restaurant. After leaving the restaurant, Hill went to his car and started the engine, then went to talk to Cotner, who was standing next to her car which was parked at the back door of the restaurant. Page was locking the back door of the restaurant when two men approached him. One of the men walked over to Cotner and stuck a pistol to her side. Cotner identified this man in court as defendant.

Defendant escorted Cotner, Hill, and Page to the front door of the restaurant. Page was instructed to open the front door, and when everyone was inside the restaurant, they went to the fuse box where Page turned on the office lights. After the lights were turned on, everyone went to the back office where the safe was located. Defendant instructed Cotner to lie on the floor face up, and Hill was instructed to lie beside her on his stomach.

Defendant told Page to open the safe. Page attempted to open the safe, but was having difficulty, so defendant fired his pistol at Page twice, hitting him in the leg. When Page managed to get the safe open, defendant removed the money, then picked Page up by his shirt and dragged him to the back storage area. Defendant also forced Cotner and Hill to go to the back storage area and to lie on the floor.

The other man with defendant was armed with a shotgun, and told defendant, "Let's tie 'em up and put them in the freezer." Defendant responded, "Nah, man. We don't have time." Defendant then straddled Page, who was lying on his stomach, aimed his [330 N.C. 8] gun at Page and shot him in the head. Next, defendant turned to Hill, aimed his gun at Hill's head, and shot him in the head. Finally, defendant straddled Cotner, shot her in the stomach and again in the back of her head. Both Hill and Cotner identified defendant in court as the man who shot them.

Defendant and his accomplice left the restaurant, got into Hill's car, and fled. They caught up with Thomas Wood, the man who had driven them to the Western Steer. Wood was attempting to drive away, but when defendant and his accomplice caught up with Wood they abandoned Hill's car and got into Wood's car. The three men drove to Maryland the following day. Five days later, Wood told his former employer, Guarad Crawford, about what had happened at the restaurant, and Crawford got in touch with the police. Officers in Maryland executed a search warrant for defendant's residence on 9 March 1986. Defendant was not found until 18 March

1986, and a SWAT team had to be used to remove defendant from his apartment where he had barricaded himself in a bedroom. Wood later testified in court that he had driven defendant and the accomplice to the Western Steer, but had not gone inside during the robbery

Page died of a close-range gunshot wound to the head which went through his skull and destroyed his brain. Hill survived his injuries which consisted of a close-range bullet hole in the right side of the face and swelling of the tongue which blocked his air passages. Hill's face has marks of the powder burns, a bullet entry wound, and the bullet remained lodged in his head at the time of trial. Cotner suffered a bullet wound to her abdomen and another bullet passed below the base of her skull which penetrated her skin two inches in depth.

Defendant testified and denied ever going to the High Point Western Steer. Defendant also denied even knowing that someone had committed an armed robbery at the restaurant. According to defendant, on the night the robbery occurred, he was at a club in Thomasville, North Carolina, selling drugs. Defendant offered as an alibi witness the testimony of one of the club's patrons who testified that he had seen and purchased drugs from defendant at the club around the time that the crime was committed. Defendant also offered the testimony of the club's "bouncer" who testified that he saw defendant at the club between 8:30 p.m. and 9:00 p.m. on the night the crime was committed.

[330 N.C. 9] Defendant offered the testimony of Dr. Anthony Sciara, a psychologist who practices in Asheville, North Carolina. Dr. Sciara testified that he examined defendant and determined that defendant had a verbal I.Q. of 65, a performance I.Q. of 77, and a full scale I.Q. of 69. According to Dr. Sciara, defendant was functioning in a mentally retarded range of intellect with a full scale I.Q. that puts him "in the lowest two percent of the population." Dr. Sciara testified that defendant's "mental functioning is significantly below average. It would be my best estimate that he's functioning probably at around a fourth grade level. So, the level of his intellectual functioning is really significantly lower than what we would expect for an adult that was twenty-nine years old."

Defendant also offered the testimony of Dr. Spurgeon Cole, a psychologist at Clemson University, who presented expert testimony in the field of eyewitness identification. Dr. Cole testified that there are numerous factors which can influence the accuracy of eyewitness identification. For instance, Dr. Cole testified that "in situations where there is a weapon, for example, people tend to observe the weapon much more closely than they observe anything else." Dr. Cole also testified that "[c]ross racial identifications are more difficult to make and tend to decrease the accuracy in an eyewitness identification." The defendant is black; Cotner and Hill are white.

During the sentencing hearing, the State, in addition to relying upon the evidence admitted during the first stage of the trial, presented evidence that on 11 March 1983, defendant was convicted of robbery with a dangerous weapon in Maryland. The Maryland Court sentenced defendant to ten years in prison, with credit given for 291 days in pretrial confinement and the balance of the active sentence suspended subject to certain conditions.

Defendant offered evidence during the sentencing proceeding which tended to show that as a child his father had beaten him severely with extension cords, belts, and switches. Defendant's sister testified that their father would beat defendant for no reason when their father had been drinking. Defendant's sister also testified that at various times during defendant's adolescence, their parents would be unable to pay for the rent on the family's residence, and on such occasions, their parents would take their daughters with them, and they would leave defendant and his brother to [330 N.C. 10] find their own place to stay. Dr. Sciara testified that defendant's school records indicated that he only completed the seventh grade.

Defendant offered additional evidence during his sentencing proceeding which

tended to show that he is married and has two children. Defendant's sister testified that defendant was a good father and never exercised any violence toward his children. There was evidence that defendant's brother died a violent death which caused defendant to isolate himself from others. There was also evidence that defendant's father is a double amputee and has become mentally incompetent. Defendant's wife testified that defendant has a drug problem, and his drug addiction costs approximately $1,500 per week

Additional evidence relevant to defendant's specific arguments will be discussed in this opinion as necessary for an understanding of the twenty-seven issues raised by defendant. We will address the issues raised in four categories: I. pretrial motions; II. jury selection; III....

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