Appeal by defendant from judgment entered 21 November 2002 by
Judge James U. Downs in Graham County Superior Court. Heard in the
Court of Appeals 14 February 2005.
Attorney General Roy Cooper, by Assistant Attorney General
Robert C. Montgomery, for the State.
Glover & Petersen, P.A., by James R. Glover, for defendant-
appellant.
MARTIN, Chief Judge.
Defendant was indicted upon charges of first-degree murder,
felonious breaking and entering, assault with a deadly weapon with
intent to kill inflicting serious injury, and three counts of
assault with a firearm on a law enforcement officer. He entered
pleas of not guilty and gave notice of his intent to rely upon the
defense of insanity.
The evidence at trial tended to show that on 25 November 2001,
at 6:37 a.m., an “all officer” page was issued from the Sheriff's
dispatcher after receiving a call from defendant. Defendant told
the dispatcher he had been in a night-long battle with his
neighbors and friends, Doug and Margaret Wilson. Defendantreported that the Wilsons had been shooting at him from under his
trailer, and that he shot back and killed them.
Deputy David Styles was the first officer to arrive at the
scene. When he asked defendant where the people were who had been
shot, defendant answered, “They're under the floor.” Deputy Styles
noticed a revolver stuck in defendant's pants and asked defendant
to put the gun away. Defendant replied, “I'm in my own house, you
just back up.” After Deputy Steve Lovelace arrived, he and Deputy
Styles searched around and under the trailer but found no bodies
under the trailer or any blood trails.
Graham County Sheriff Steve Odom arrived at the scene at 6:46
a.m. When Sheriff Odom called defendant from his cell phone to try
to talk him out of the trailer, defendant repeated the story of the
shootout, telling Odom he knew he had killed the Wilsons. Margaret
Wilson was contacted at home by phone and she assured the officers
that there had not been a shootout and that she and her husband
were fine. Sheriff Odom told everyone to leave except Deputy
Lovelace who was positioned about 100 yards away from the trailer
to continue surveillance.
Sheriff Odom was aware of an earlier incident, occurring on 17
November 2001, when defendant had reported that his brother, Homer,
had been shot. When Graham County Deputy Sheriff Danny Millsaps
arrived, defendant stepped out from behind the bushes with a
shotgun, saying, “Homer's been shot, somebody shot my brother.”
After defendant put down the shotgun, he and Deputy Millsaps found
Homer inside his house slumped over in a chair, intoxicated. Sheriff Odom testified that on his same day, defendant shot out two
windows at his home. Shortly thereafter, Homer Millsaps stopped by
Sheriff Odom's office to find out about getting his brother
committed. Homer and his mother were concerned about defendant and
wanted to get him help. Knowing this history, Sheriff Odom left
the scene the morning of 25 November to obtain a commitment order
from the magistrate. He then contacted the prosecutor and a State
Bureau of Investigation agent to determine the best course of
action to get defendant out of his trailer.
At approximately 8:50 a.m., Deputy Billy Orr relieved Deputy
Lovelace from his duty. Deputy Orr contacted Sheriff Odom at 9:11
a.m., telling him that defendant, wearing a camouflage jacket and
carrying a shotgun, had left his trailer and was walking in the
direction of the residence of Kenneth and Mildred Garrison. After
Deputy Orr saw defendant go into the woods between his residence
and that of the Garrisons, Sheriff Odom directed him to follow at
a safe distance but to try to keep defendant in his sight.
The Garrisons, who lived in a double-wide mobile home about
150 yards from defendant's residence, were at their home that
morning with their two sons, Jason, age 14, and Joseph, age 10.
Defendant entered the residence; Kenneth was in his chair in the
den, Mildred was in the master bedroom and the boys were in Jason's
bedroom. Mildred heard a series of loud bangs. She opened the
bedroom door and saw Kenneth staggering in the hall “with the whole
side of his face shot off” and someone following behind him in a
camouflage coat. She fled to the bathroom and locked the door justas a projectile came through and struck her in the arm. She
screamed loudly and then became quiet so the shooter would think
she was dead.
After she heard the intruder leave the house, Jason called to
her. Jason and Joseph came into the bathroom with her to hide
until they could get help. Kenneth Garrison had three close-range
shotgun wounds and three single-shot wounds. He died as a result
of these wounds. Mildred Garrison had a single gunshot injury to
her arm.
Deputy Orr, who had lost sight of defendant, pulled into the
Garrison's driveway, having heard gunshots coming from that
direction. Sheriff Odom and another officer pulled in just seconds
later. Defendant, who was outside the Garrison home, fired at the
officers with a shotgun and pistol. Sheriff Odom returned fire,
and defendant was felled after being wounded twice in the abdomen
and once in the arm.
Defendant presented evidence that he suffered from psychotic
symptoms. In the ambulance, defendant volunteered he was
“Nicodemus, a disciple of Jesus Christ.” Lisa Edwards, a nurse at
the Mission-St. Joseph Health Care Center, testified that she
assessed defendant upon his arrival. He stated to her that “he has
been dead for days,” and that he had been trying all week to kill
a person who had poisoned his water.
Dr. James E. Bellard, a forensic psychiatrist, testified that
defendant “was so mentally ill that he could not distinguish right
from wrong.” He diagnosed defendant as having depression withpsychotic features. Dr. James Baird Payton, child/adult
psychiatrist, also opined that defendant did not know right from
wrong and that he was psychotic at the time of his evaluation of
defendant on 26 November 2001. A psychologist from Winston-Salem,
Dr. John Frank Warren, III, first evaluated defendant on 28
November 2001. He also diagnosed defendant as suffering from
depression with psychotic features and believed defendant was not
capable of distinguishing between right and wrong. Additional
testimony from defendant's family and friends revealed psychotic
statements by defendant that someone was trying to harm him and his
belief that he could not be killed because he was wearing the armor
of God.
The State presented rebuttal evidence by Dr. Jennifer
Schnitzer, a forensic psychology fellow at Dorothea Dix Hospital,
and Dr. Peter Barboriak, a forensic psychiatrist at Dix. Both
witnesses testified to their opinions that defendant suffered from
a psychotic disorder but that he knew the nature and quality of his
actions and was aware of the wrongfulness of his actions.
A jury convicted defendant of first-degree murder, felonious
breaking and entering, assault with a deadly weapon with intent to
kill inflicting serious injury, and three counts of assault with a
firearm on a law enforcement officer. He appeals.
_____________________________________________
I.
Defendant's appeal raises the issue of the propriety of the
prosecution's closing argument. During his closing argument, theprosecutor reminded the jury that the defense did not contest the
commission of the acts charged, but relied on the defense of
insanity. The prosecutor informed the jurors that for them to find
defendant not guilty by reason of insanity, the defendant had to
show that he was suffering from a defect of his mind and that “the
disease must have so impaired his mental capacity that either he
did not know the nature and quality of the act as he was committing
it or if he did he did not know that that act was wrong.” He
continued:
[PROSECUTOR]: I submit that in a way that they
tempt you to take an easy way out. Mr.
Melrose in his opening and indicated again in
his closing, going back to his opening, he
said this, “the family knows he will be in
prison or a mental facility for as long as he
lives,” leading you to believe that regardless
of what your verdict is that the result and an
alternative is essentially the same. So, they
bring up _ I didn't bring it up, they bring up
this business about commitment procedures that
he talked to you about this afternoon.
I want to point out one thing to you. You
folks learned a lot about another type of
commitment procedure, and that's this
commitment where a person goes to the
magistrate and says, you know, due to
intoxication or mental defect that a person
needs to be committed. And you heard my
friend read out of the book, and we know
exactly what the book says about how it's
supposed to work but it plays out quite
differently in the real world.
I submit to you that when you look out and
think about this commitment procedure, that
there are only three things that are for
certain if you say not guilty by reason of
insanity, and Judge Downs issues this
commitment, there's only three things that can
be counted on.
The first thing is that there will be a
hearing in fifty days, and that hearing will
be or can be contested. It can be a dog
fight, maybe worse than a dog fight you've
heard here the last week or two; that there
can and probably will be attorneys involved,
experts involved, arguments, the whole nine
yards. That's one thing you can count on. In
fifty days there will be a hearing.
Number 2, the second thing you can count on,
is _ and the only thing that we know we can
rely on is that a North Carolina Superior
Court Judge will hear the matter. That means
somebody that lives between Franklin and
Manteo, that's the only thing that we know.
The third thing that you know for certain is
this; that once you come back tomorrow or the
next day or next week or whenever it is and
render your verdict that as of that moment
this case, this situation, leaves your hands
and is out of the hands of the citizens of
Graham County forever; that is, the decision
process what ultimately is done with this man.
No say so. This trial is the last say so that
you'll ever have.
I'm telling you this stuff not _ members of
the jury, I'm not saying find him guilty or
not guilty or whatever because of this.
You're not supposed to do that and I'm not
supposed to ask you about it. I'm simply
saying that I want you to have your eyes wide
open, and I do not want you to be deceived.
I'll contend this; we don't think or contend
necessarily that he's going to be back in our
town or back out there life as usual at
Tallulah in fifty or ninety days, but he could
be. It's possible.
I submit this to you, it's almost 100 percent
certain that because of what you know about
the hearing that the defendant will have
attorneys and more of these hired experts, and
sure, they may have neutralized two potential
experts, especially Bellard, by getting
Bellard to say, I'd never recommend it. What
about the other five or ten thousand experts
across the country that are willing to do any
kind of work for $300.00 an hour. There'll beexperts, etc., that can say he's no longer a
threat and he's under control and look at his
age, look at how he acted like a choir boy
during the trial, send him to mental health.
Sure, as long as he's under medication he's
okay, but he doesn't have to be down in Dix
Hospital or over there around Central Prison
to be fed medication. You heard one of the
doctors say that he could be farmed out to
local mental health and as long as they
monitor him and make sure he takes his
medication a Judge could say he's no longer a
danger to himself or others.
We submit
it's 99 percent certain that Judge
someday can and will say that, oh that
conviction was six or eight or ten years ago,
that's irrelevant, release him. (Emphasis
added).
MR. MELROSE: Your Honor, I object to that
argument.
THE COURT: Overruled.
[PROSECUTOR]: All this, members of the jury, _
we think this is a clear cut case, but all
this is by way of meeting his goal, get out of
here and get set free. Before you do that,
before you do anything blindly, we simply want
you to understand that. We simply want you to
understand that. We don't want you to have
any surprises down the road. Are there people
who won't sleep if that happens? Possibly. I
don't know.
But we submit there's certainly the
possibility he may get out, mark my word, the
20
th of November, 2002. Write it down there,
somebody. There's that possibility and they
can't guarantee that that won't happen.
So, I say all that to emphasize that you
shouldn't be suckered in by what looks like an
easy way out that will achieve the same
result. Baloney, don't be lulled into a false
sense of security. Don't think there's going
to be equal protection either way by taking
the easy way out or have your eyes wide open.
Simply vote for responsibility on this
evidence rather than excuses is what we would
ask you to do. Vote for responsibility andnot for excuses and don't get suckered into
the easy way out.
MR. MELROSE: I object to the term suckered,
Your Honor, the inference that it implies.
THE COURT: Overruled.
[PROSECUTOR]: Don't _ ultimately, don't put
this good mother right here in the situation
of having to go to those boys and say they let
him off _
MR. MELROSE: Objection, Your Honor, it's
improper.
THE COURT: Overruled
[PROSECUTOR]: They let him off and the only
thing we know is he'll be locked up somewhere
for fifty days. That's the only thing we
know, boys. He killed your dad right there in
front of you, but that's all we can rely on.
Don't put her in that situation.
MR. MELROSE: Objection.
THE COURT: Overruled.
The prosecutor proceeded, addressing the evidence presented at
trial. When he discussed motive, the exchange continued as
follows:
[PROSECUTOR]: They want you to disregard all
that evidence of strong motive and say, well
he just had this crazy delusion about
following God's orders. Yeah, that's like
people that fly airplanes into buildings for
their ends and claim to be doing God's work.
(Emphasis added).
MR. MELROSE: I object to this reference.
THE COURT: Overruled.
MR. MELROSE: It's prejudicial to the jury.
THE COURT: Overruled.
[PROSECUTOR]: Isn't it curious a person
carries out their own ill will, their own
desire for vengeance, their own reaction on
what they call is provocation to serve, and
they try to blame it on the good Lord, say the
Lord made me do it. My goodness.
Defendant contends the prosecutor's arguments were improper,
misleading, inflammatory, and prejudiced his right to a fair trial,
and that the trial court abused its discretion in overruling his
objections. We agree.
When, in a closing argument, an objection was made and
overruled, the standard of review on appeal is whether the trial
court abused its discretion by failing to sustain the objection.
State v. Jones, 355 N.C. 117, 131, 558 S.E.2d 97, 106 (2002). Upon
review of a trial court's rulings with respect to objections to the
State's closing argument, the appellate court must first determine
if the remarks were improper, and if so, if they were of “such a
magnitude that their inclusion prejudiced defendant.” Id. Remarks
in closing arguments must “(1) be devoid of counsel's personal
opinion; (2) avoid name-calling and/or references to matters beyond
the record; (3) be premised on logical deductions, not on appeals
to passion or prejudice; and (4) be constructed from fair
inferences drawn only from evidence properly admitted at trial.”
Id. at 135, 558 S.E.2d at 108; see N.C. Gen. Stat. § 15A-1230(a)
(2003). Once the reviewing court concludes the remarks were
improper and were prejudicial to defendant, the defendant must next
show that a reasonable possibility exists that “a different result
would have been reached had the error not occurred.” State v.
Allen, 353 N.C. 504, 509, 546 S.E.2d 372, 375 (2001); N.C. Gen.Stat. § 15A-1443(a) (2003).
First, we address the trial court's ruling on defendant's
objections to the prosecutor's remarks that “it's 99 percent
certain a Judge can and will say that, oh that conviction was six
or eight or ten years ago, that's irrelevant, release him,” and
that “the only thing we know is he'll be locked up somewhere for
fifty days.” The State refers to N.C. Gen. Stat. § 122C-268.1
which provides that a person committed after being found not guilty
by reason of insanity “shall be provided a hearing, unless waived,
before the expiration of fifty days from the date of his
commitment.” N.C. Gen. Stat. § 122C-268.1(a) (2003). If the
respondent provides to the court that he no longer has a mental
illness or is no longer dangerous to others, “then the court shall
order the respondent discharged and released.” N.C. Gen. Stat. §
122C-268.1(i) (2003).
Here, the prosecution argued, outside the evidence presented,
that it was “99 percent certain a Judge someday can and will say ..
. release him.” Two defense experts testified that defendant's
illness could be treated but not cured and that defendant would
probably need hospitalization for the rest of his life. Dr. John
Warren, a psychologist, testified on cross-examination by the State
that although it was a possibility that in nine or ten years a
Judge could say prima facie evidence of a homicide committed by
defendant was no longer relevant, in his opinion it was a remote
possibility. Furthermore, Dr. Warren stated that he'd never seen
a case where there was prima facie evidence of a homicide where ajudge found the patient was no longer dangerous. Although
defendant, if found not guilty by reason of insanity, would be
provided a hearing fifty days after his commitment, no evidence
supported the State's argument that it was 99 percent certain a
judge would find the homicide irrelevant, therefore releasing
defendant from commitment.
The remark was also impermissibly prejudicial as it indicated
to the jury that defendant, if found not guilty by reason of
insanity, would likely be released after a very short period of
time. The failure of the trial court to sustain defense counsel's
objection was an abuse of discretion.
The prosecutor also suggested a comparison of defendant's acts
to the acts committed by the terrorists in their vicious and deadly
attacks on New York and Washington on 11 September 2001. In Jones,
the prosecutor made comparative references to the Columbine
shooting and the bombing of the federal building in Oklahoma City.
The Supreme Court found these remarks were improper because they
(1) “referred to events and circumstances outside the record;” (2)
“urged jurors to compare defendant's acts with the infamous acts of
others;” and (3) “attempted to lead jurors away from the evidence
by appealing instead to their sense of passion and prejudice.”
Jones, 355 N.C. at 132, 558 S.E.2d at 107. Even with instructions
to disregard the remarks, the Court found the impact of the
statements was “too grave to be easily removed from the jury's
consciousness.” Id.
Similarly, in the present case, the comparison of defendant'sacts to those of the September 11 terrorists, which had occurred
only a little over a year earlier, appealed to the jury's “sense of
passion and prejudice” by comparing defendant's acts to infamous
events outside the record. Id. We hold the prosecutor's remarks
in this case were also improper and prejudicial and defendant's
objections should have been sustained.
In the present case, defendant's commission of the shootings
and his mental defect at the time of the shootings were both
uncontested; the contested issue at trial was whether defendant
knew right from wrong at the time he committed the acts. We cannot
say beyond a reasonable doubt that the improper and prejudicial
argument by the prosecutor, which was neither checked nor cured by
the trial court, did not contribute to defendant's conviction. A
different result might have been reached had the trial court
properly exercised its discretion to control the prosecutor's
misleading characterizations and improper inferences. Therefore,
we have no choice but to award defendant a new trial.
In light of our decision, we will not address defendant's
second and third arguments since they are not likely to occur in a
new trial. Defendant's remaining assignments of error were not
brought forward in his brief and are therefore deemed abandoned.
N.C.R. App. P. 28(a).
New trial.
Judges McCULLOUGH and ELMORE concur.
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