State v. Shank, 260A89
| Decision Date | 29 August 1990 |
| Docket Number | No. 260A89,260A89 |
| Parties | STATE of North Carolina v. John Quinton SHANK. |
| Court | North Carolina Supreme Court |
Lacy H. Thornburg, Atty. Gen. by Charles M. Hensey, Sp. Deputy Atty. Gen., Raleigh, for the State.
Malcolm Ray Hunter, Appellate Defender by Teresa A. McHugh, Asst. Appellate Defender, Raleigh, for defendant-appellant.
The defendant, John Quinton Shank, was indicted for the first-degree murder of his estranged wife, Dellarie Shank. He was convicted of first-degree murder at the 15 September 1986 Criminal Session of Superior Court, Cleveland County, and sentenced to life imprisonment. On his appeal of that conviction and sentence, this Court awarded a new trial. State v. Shank, 322 N.C. 243, 367 S.E.2d 639 (1988). After a retrial of the defendant at the 23 January 1989 Criminal Session of Superior Court, Cleveland County, the defendant was again convicted of the first-degree murder of his wife, and the trial court entered judgment sentencing him to life imprisonment. From that judgment, the defendant appealed to this Court as a matter of right.
Some of the evidence introduced upon the retrial of this case tended to show that a little after 8:30 a.m. on 6 January 1986, the defendant went to the Cleveland County Health Department, where his estranged wife worked. Shortly thereafter, he and the victim came out of the building and stood outside the main entrance talking. The defendant reached into his jacket and pulled out a pistol, and the victim began running and screaming. The victim fell as the defendant fired the pistol at her three times. The defendant then ran over to the victim and fired twice more. He then got into his truck and left the scene. The victim died of multiple gunshot wounds.
At approximately 9:15 a.m., the defendant called his brother Clifford and told him that he had done "something stupid," that he had "shot Dellarie." Clifford Shank then left his place of employment in King's Mountain and drove to Shelby, where he located the defendant along the highway and picked him up. The defendant asked Clifford Shank to take him to South Carolina, but Clifford declined and left the defendant at a shopping center in Gastonia.
Evidence was introduced tending to show that the defendant purchased a pistol and ammunition on 3 January 1986. He bought a shoulder holster from a gun shop on 4 January 1986. At approximately 1:30 p.m. on 6 January 1986, the date the defendant's wife was killed, police found the gun and holster the defendant had bought in plain view on the bed in Carolyn Lawrence's house where the defendant had slept the previous night. The gun had been fired recently.
Carolyn Lawrence testified that she met the defendant at work and at some point began seeing him regularly. After October of 1985, the defendant occasionally spent the night with her. She testified that the defendant came to her home on the night of 5 January 1986 wearing a holster and pistol. He spent the night with her and was still in bed when she left for work the next day.
Additional evidence introduced at trial is discussed, where pertinent to the defendant's arguments, at other points in this opinion.
The defendant assigns error to the trial court's failure, upon objection by the defendant, to intervene and prevent or correct certain arguments made by the prosecutor in his closing arguments to the jury. In support of these assignments, the defendant contends that the prosecutor's arguments misstated critical evidence or traveled outside the record and were unsupported by the evidence.
The defendant first contends that the prosecutor misstated or mischaracterized certain testimony to the effect that, at the time of trial, the defendant suffered from amnesia concerning the events surrounding the killing of his wife. "It is well settled that arguments of counsel are left largely to the control and discretion of the trial judge and that counsel will be granted wide latitude in the argument of hotly contested cases." State v. Williams, 317 N.C. 474, 481, 346 S.E.2d 405, 410 (1986). Counsel may argue the facts which have been presented, "as well as reasonable inferences which can be drawn therefrom." Id. However, counsel may not argue facts which are not supported by the evidence. Id.
In the present case, Dr. William Varley, a psychologist, testified as an expert in psychology for the defendant. Dr. Varley testified that he had interviewed the defendant and administered various tests to him. Dr. Varley testified, inter alia, that the defendant suffered from amnesia concerning the killing of his wife.
During his closing arguments to the jury, the prosecutor argued that:
Dr. Varley said, "I supported Dr. Ballinsky's findings of amnesia." What is amnesia, Doctor? "It is a person's claim that he doesn't remember." Is there any absolute test to show that he's telling the truth about his amnesia? "No, it's his word." Dr. Varley, when you supported in your writings on this case that you believed John Shank had amnesia, did you know that fifteen minutes after he killed her and says he doesn't remember it, that he called his brother and told him that he had killed her? He said, "No, I did not know that." Would that have any effect on the claim of amnesia? I believe he said it would tend to show that maybe it was not valid.
The defendant contends specifically that the prosecutor misstated the evidence by arguing that Dr. Varley had testified that the defendant's telephone call fifteen minutes after the killing, in which the defendant stated he had killed his wife, would tend to show that the defendant's claim of amnesia might not be valid. We do not agree.
That part of Dr. Varley's testimony which is pertinent to this argument by the defendant, was as follows:
Q. Did you know at the time of your evaluation, Dr. Varley, that within fifteen minutes after [the defendant had shot his wife], during a period of time when he claimed to have no memory, that he dialed his brother by memory and said, "I shot Dellarie, I did a stupid thing, I shot Dellarie?"
A. At the time that I tested him I was not aware of that.
Q. And you concluded in your report that that was consistent with amnesia and reported that to Dr. Ballinsky and to his attorney a long time ago, is that correct?
A. That's correct.
Q. So you had reached that conclusion before you knew that he had, in fact, called his brother and told him, "I shot Dellarie?"
A. That's true.
Q. So that in effect shows as to his shooting Dellarie he could not have amnesia, did it not?
A. Not necessarily.
Q. Then how did he know he shot her?
A. He performed an action and the memory loss can, for something along these lines, can come either suddenly or gradually, and based on what you have told me, clearly the memory loss came gradually. Or he may have, he may have done something but later forgotten that he had done it.
Q. He did it and forgot it and remembered it, all in fifteen minutes?
A. No, that's not what I'm saying.
Q. Then what--there's no other time span, is there?
A. Well, there is quite a bit of time span here in terms of when the act occurred, what he did after the act, where he ended up, and what's happened since then. And all the while the mental processes were at work coping with this experience.
Q. Dr. Varley, there is no absolute test to determine whether or not a patient's claim of amnesia is, in fact, real or not, is there?
A. That's correct.
Q. And in that regard, Dr. Varley, you would have to look at the things that happened during the claimed period by the patient of amnesia to determine whether or not that claim was valid, wouldn't you?
A. Not necessarily, because, like I say, amnesia can have gradual onset. I mean this is information. I understand what you're saying, it does conflict with the whole notion of amnesia. But when I evaluated John, his report to me was that he had no memory for the events after he heard his wife say, you know, "You're not going to see the kids." So when I...
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