No. 19A01 DISTRICT NINTETEEN-C
SUPREME COURT OF NORTH CAROLINA
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STATE OF NORTH CAROLINA)
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v.)From Rowan County
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GARY WAYNE LONG,)
Defendant.)
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BRIEF OF DEFENDANT-APPELLANT
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STATEMENT OF THE CASE
On January 10, 1998, defendant Gary Long was charged with killing Mrs. Wilma Yates Lowder, his mother, the previous day. R p 3. He was indicted for murder on February 9, 1998. R p 5. He pled not guilty. 8 Apr 98 Hrg p 2. The case was tried at the September 7, 1999 Session of Rowan County Superior Court, before the Honorable Peter M. McHugh, Superior Court Judge presiding. A jury found defendant guilty of first-degree murder, and recommended a sentence of death, which the Court duly imposed. R pp 59, 99, 100. Defendant gave notice of appeal to this Court, R p 103, and timely filed the settled record on January 11, 2001.
STATEMENT OF THE FACTS
Guilt-Innocence Phase
In its case in chief, the State presented the following evidence:
Reverend LEON SMITH testified that he was the victim’s Pastor at Rodgers Park Baptist Church in Kannapolis. T p 1a/20. From the early 1990s to 1995, they used to talk about her relationship with her son, the defendant. Sometimes the victim would call him several times a night, almost every night. The victim said that defendant was abusive, especially when he had been drinking, that defendant would sometimes come in after work and play loud music, that he would curse her and use the word “bitch,” that he had said to her, “I wish you would just die,” and that she was afraid he was going to hurt her. T p 1a/21-23. In late 1992, Reverend Smith visited the victim, and found that she had bruises about her eyes and face. She said that defendant had beaten her. T p 1a/23-24. The victim told Reverend Smith she was afraid defendant would beat her if she did anything about his behavior. T p 1a/26. Reverend Smith once drove defendant to Mental Health in Salisbury, at the victim’s request. T p 1a/28. Defendant left Kannapolis for Florida in 1993 or 1994. T p 1a/29. The victim worried about him there, sent him money, and wanted to bring him home again. T pp 1a/22, 29.
RAY BEAVER testified that he knew the victim through his work as a Deacon at Rodgers Park Baptist Church. T p 1a/34. He had a number of conversations with the victim, about once a week, regarding her conflicts with the defendant to the same general effect as previously testified to by Reverend Smith. T p 1a/36. Beaver’s last visit to the victim’s home was between a year and one-and-a-half years before her death, when he installed a deadbolt lock on her bedroom door at her request. She said she was afraid of the defendant and it was the only way she could get some peace at home. T p 1a/37-38, 40. The victim did not say that defendant had ever actually threatened her. T p 1a/37. At some point, defendant went to Florida. The victim was concerned about his well-being there and said she going to send him money to come home. After he came back, the conflicts resumed. T p 1a/39, 41-43.
STEVEN P. JULIAN testified that he was a Rowan County Magistrate assigned to Kannapolis in mid-1990s. T p 1a/44-45. The victim frequently came to his office requesting an officer to come and speak with the defendant, or to remove him from her home because she was afraid of him. Usually the victim would leave without requesting defendant’s arrest for assault on a female or communicating threats, although Julian offered to issue a warrant. T p 1a/45. On October 27, 1996, at 9:30 a.m., Julian did issue a warrant for defendant’s arrest on the charge of assault on a female upon the victim. T p 1a/46-48. In support of the warrant, the victim executed an affidavit to the effect that defendant had become very angry at her when she unplugged a microwave oven, that he had pulled a knife across her throat without cutting her, and that she was scared for the rest of the night. T p 1a/48-49.
T. D. LORD, a Kannapolis Police Officer, testified that he had been dispatched to the victim’s home many times, usually, because she was complaining about defendant playing his music too loud and using abusive language toward her. The defendant was usually intoxicated, and the victim would be sober. T pp 1a/53-54, 60-61. Most of the officers in the Kannapolis Police Department were familiar with the victim and the defendant from such calls. Most of the time, the officer would go to the defendant’s bedroom and tell him to turn down his music, and he would comply. T pp 1a/58-59.
On October 5, 1997, Officer Lord was dispatched to the victim’s home with another officer. T pp 1a/53-55. The victim told them that defendant had pushed her around the room, pushed her down on the bed, and held her shoulders to the bed. During their conversation with the victim, the defendant was very irate. He said, “go to hell, bitch,” to the victim, and was using that kind of language the whole time. The officers issued a citation and arrested defendant for assault. In the patrol car, defendant called Officer Lord “queer boy” all the way to the Magistrate’s Office in Salisbury. T pp 1a/55-57
PHILLIP BRADSHAW, a bail bondsman, testified that on October 6, 1997, the victim called and requested him to post bond for defendant, then come by her home for payment. T p 1a/64. Bradshaw did not know at the time that the victim was the complainant, and he issued a bond for defendant’s release from jail. T p 1a/72. The next evening, October 7, 1997, Bradshaw went to the victim’s home to collect his fee. T p 1a/64. A police officer arrived at the same time as Bradshaw, and they went into house together. The officer left. T p 1a/73. Bradshaw stayed for about an hour. The defendant appeared to have been drinking and smelled of alcohol. He kept going in and out of his room, called the victim “bitch” several times, and turned the stereo up. The victim seemed frightened, and would get behind Bradshaw when defendant came out of his room. The victim told Bradshaw that defendant had hit her before when he was drinking, and that defendant had threatened to kill her. She asked Bradshaw to stay until she had locked herself in her bedroom. She asked Bradshaw not to put defendant back in jail because defendant would be mad and she would be in trouble. Bradshaw was concerned for the victim’s safety, however. He returned the victim’s money to her, revoked defendant’s bond on his own initiative, and took defendant back to the Rowan County Jail. T pp 1a/65-69, 76. Several times afterward, the victim called Bradshaw for help in getting defendant out of jail. T p 1a/75. She said that the only time defendant hit her was when he was drinking. T p 1a/75.
FRANK TURNMIRE testified that about 3 or 4 months before the victim’s death, she told Turnmire that defendant had said, “die, bitch,” and “go to hell where your mama and daddy is at,” more than once. T pp 1a/80-81. On January 19, 1998, Turnmire’s late mother-in-law, Elma Yates Vanhoy (the victim’s sister), was living with Turnmire and his wife in Kannapolis. T p 1a/78. Around 9:00 p.m. that night, Vanhoy started telephoning the victim, but she got no answer. T p 1a/88. Later in the evening, they called the police to check on the victim. Between 11:30 and 11:45 p.m., Turnmire got out of bed and went to the victim’s house to authorize police officers to force entry. T p 1a/82. He arrived shortly after midnight. T p 1a/89. There were no lights on in the house and the storm door was locked. They got no response by hollering for the victim or the defendant outside their respective bedrooms. T pp 1a/82, 84-85. Turnmire entered the house first. He saw blood in the hallway, and the officers told him to wait outside. T p 1a/83.
JONATHAN GOBLE, a Kannapolis Police Officer, testified that at 10:57 p.m. on January 9, 1998, he, with Officer Jeff Harrison, was dispatched to the victim’s residence to check on her. T p 1a/92. They knocked on the door a few minutes. The storm doors were locked from the inside. Goble knew that defendant stayed in his bedroom, often with headphones on. They knocked loudly on the windows. T p 1a/93. They inspected the house and found no sign of forced entry. T p 1a/94. After ten or fifteen minutes, they left. At 11:31 p.m., they got a dispatch to return to the victim’s house and meet a family member there. T p 1a/96. Upon entry, Goble saw bloody footprints in the hallway. He asked Frank Turnmire to wait in the den. T pp 1a/98-99. Goble found a wide path of blood on the hallway floor and blood spatters on the wall. T p 1a/99. The officers found the deceased victim inside the bathroom with numerous wounds, her body partially blocking the bathroom door. Her shirt was pulled up almost to neck level. They called the Crime Investigations Division. T p 1a/100. The victim appeared to have been there for several hours. T pp 1a/101, 118.
Defendant was lying on the floor in his bedroom. T p 1a/99. He had on bedroom slippers that didn’t match the bloody footprints, but there was a pair of bloody sneakers in open view. There was no blood on his clothes. T pp 1a/102, 104. There was a strong smell of ammonia in the house and an open bottle of ammonia in the defendant’s room. T pp 1a/101, 110. Goble shined a flashlight in defendant’s face. His eyes were open, but he was unresponsive and appeared intoxicated, nearly passed out. Defendant couldn’t really function or respond to anything the officers were saying. T p 1a/99. There was a strong odor of alcohol about him, and several beer bottles in his room. T p 1a/101, 102. He appeared unconscious and unaware of his surroundings, although his eyes were moving. T p 1a/111. Every once in a while, defendant would open and flicker his eyes. T p 1a/102. Officer Goble had had many occasions to deal with intoxicated people, and he testified that:
In my opinion, his physical and mental capabilities were extremely impaired to the point where he was almost passed out. He couldn’t respond to his name upon us talking to him or even really touch, touching him on the shoulders or anything. It took a lot of effort for us to get him to open his eyes and sort of glimmer at us.
T pp 1a/117-118. The officers handcuffed defendant, lifted him off the floor and put him on the bed. T pp 1a/99, 101. He remained unresponsive, and never said a word to them while they were there. T p 1a/102. At 12:58 a.m., Officer Harrison took defendant to the Kannapolis Police Department. T p 1a/116.
JEFF HARRISON, a Kannapolis Police Officer, testified that they checked on the victim’s residence about 10:30 or 11:00 p.m. on January 9, 1998, T p 2/2, and returned around 11:15 or 11:30 p.m. T p 2/4. They found defendant laying face down, his upper torso in his bathroom (defendant’s bedroom had a separate bathroom), his lower torso out in the bedroom on top of one of his hands. T p 2/7. His eyes were closed but his eyeballs were twitching. T p 2/7. Harrison called his name but got no response. T p 2/7. Officer Harrison, a certified EMT, testified that in his opinion, defendant was intoxicated. T pp 2/7, 9. They set him up on the bed. He opened his eyes and looked around, didn’t say anything, and fell over on his side and lay there. He stank of alcohol and there were empty beer bottles on the floor. T pp 2/9, 16-17. After about an hour, Officer Harrision took defendant to the Kannapolis Police Department. T p 2/18. Defendant could walk to the patrol car with some assistance to keep his balance. T p 2/10. Harrision asked if defendant was going to be sick but he did not respond. As soon as they started driving, defendant vomited in the back seat of the patrol car. T pp 2/10, 20.
Officer Harrison had previously been called to the victim’s home in late 1989 or early 1990 in response to her complaint about defendant’s loud music – defendant had his headphones on and was singing or screaming to the music without knowing how loud he was being. T p 2/14. On another occasion, defendant had been drinking, the victim moved his beer in the refrigerator, and a domestic call ensued. T p 2/15.
JOSEPH A. BALLARD, a Kannapolis Police Crime Scene Investigator, testified that he arrived at the scene about 12:35 a.m. on January 10, 1998. T p 2/22. He photographed and videotaped the entire crime scene, and prepared a sketch. T p 2/27. There was a bloodstain drag mark, about two feet wide, across the hardwood floor of the hallway leading up to the victim’s body in the bathroom. T p 2/31. Underneath her body, he found a small curved knife blade. T p 2/45. There were blood spatters on the door and bloody fingerprints on the door casing to a bedroom that was being used for storage diagonally across from the bathroom. T p 2/32. In the victim’s bedroom, there was a deadbolt lock on the door, and the bed was turned back. T pp 2/33-35. In the defendant’s bedroom, Detective Ballard collected a pair of bloodstained sneakers, a bloodstained off-white plastic knife handle and several quart-sized beer bottles from a trash-box, a pair of bloodstained jeans from a sink in defendant’s bathroom, and a shirt and an ammonia bottle from atop a cabinet. T pp 2/36-37. The knife handle was sent to the SBI lab for blood analysis, fingerprinting, and comparison with the knife blade found underneath the victim’s body. T p 2/39. Detective Ballard also collected a section of the kitchen floor with bloody shoe prints, a clump of hair from the floor near the dining room table, a bloodstained paper towel from a wastebasket, and two rag mops from outside the back door. T pp 2/24-25, 27-28. The crime scene videotape was played for the jury while Detective Ballard identified various items of evidence depicted. T pp 2/82-85. Most of the evidence items were readily visible with no sign of attempted concealment, although the Jeans had to be unfolded and the shirt spread out in order to see the blood on them. T pp 2/94-95.
At the police station, Detective Ballard saw some scratches to defendant’s face and one of his arms, and photographed him. T pp 2/48-49. This was about 6:40 or 6:50 a.m. on January 10, 1999. Defendant was cooperative. He was not interrogated and he made no statements. The odor of alcohol about defendant was still detectable. T pp 2/91-92. Detective Ballard saw blood on defendant’s wristwatch and seized it for analysis. T pp 2/48-49. Detective Ballard attended the autopsy of the victim and collected forensic samples. He later collected blood and head hair from defendant pursuant to a search warrant. T pp 2/72-73. There were no puncture holes through the victim’s top, but there was a tear across its left front. T pp 2/75-76. There was a puncture toward the bottom. T p 2/76.
In June and August of 1999, Detective Ballard returned to the scene and found a hole that appeared to have been scratched from defendant’s bedroom wall into the bathroom above the tub, about four and a half feet above the floor. It had previously been covered over with a poster that had been there for some time. T p 2/42. Detective Ballard was able to look through the hole from defendant’s room and see an officer standing in the bathroom. T p 2/43.
DR. JOHN D. BUTTS, Chief Medical Examiner for the State of North Carolina, was qualified as an expert in forensic pathology. T p 2/56. He testified that the victim was 5 foot 1 inches tall and weighted 129 pounds. T p 2/59. She was wearing pajama bottoms, underpants and a pajama top. T p 2/60. The cause of her death was blunt force trauma to the head and brain, mainly to the head and face, with a contributing cause of stab and cutting injuries, mainly to her neck. T pp 2/59, 62. There was bruising and swelling to her face and forehead, hemorrhaging around the eyes, and a broken nose. Internally, there was bruising deep into the tissues of the scalp, and a small amount of bleeding over the surface of the brain. The injuries were consistent with multiple blunt force impacts occurring about the same time. One of those injuries would not necessarily be enough to cause death. T pp 2/60-61. The victim had also sustained a number of cuts and minor stab wounds to the face, head and neck. At least one had penetrated to the larynx causing some hemorrhaging in the deeper neck tissues. T p 2/61. There were also some cutting injuries to the hands and arms consistent with “defensive wounds,” and some superficial little cuts of the skin, not penetrating more than a fraction of an inch, scattered on the front part of the chest. None of the stab wounds were sufficient to cause death. T pp 2/61-62. The defensive wounds indicated that the victim had been conscious and able to feel pain during at least part of the attack. T pp 2/63-64. She had eaten within a few hours of her death. T p 2/71
RICKY L. NAVARRO, a Special Agent in the SBI Crime Lab in Raleigh, was qualified as an expert in footwear impression examination and comparison. T p 2/100. In his opinion, the shoe prints found in the kitchen were made by the sneakers found in defendant’s bedroom. T pp 2/105-106. Agent Navarro found no identifiable fingerprints on the paper towel, rag mops or knife handle. T p 2/111-12. He found a usable latent bloody palm print on the door casing, but the ink palm prints taken from defendant were of insufficient quality in that area of the hand to identify or eliminate him. T p 2/112.