{
  "id": 4734282,
  "name": "STATE OF NORTH CAROLINA v. LLOYD PHILLIP GAMBRELL",
  "name_abbreviation": "State v. Gambrell",
  "decision_date": "1986-08-29",
  "docket_number": "No. 363A84",
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  "provenance": {
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    "parties": [
      "STATE OF NORTH CAROLINA v. LLOYD PHILLIP GAMBRELL"
    ],
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      {
        "text": "EXUM, Justice.\nDefendant\u2019s appeal presents a number of assignments of error. We find his assignment directed to the trial court\u2019s denial of his motion to be furnished a psychiatrist to assist in his defense is dispositive of the appeal. We hold the court erred in denying this motion and the error entitles defendant to a new trial.\nOn 8 November 1983 defendant was arrested and placed in custody for the 4 November 1983 murder of Thomas Edward Burke. He was indicted on 9 January 1984. According to evidence later introduced at defendant\u2019s trial Burke was defendant\u2019s supervisor at Leinbach Machinery Company in Winston-Salem. On 3 November 1983 Burke questioned defendant about defendant\u2019s absenteeism. Burke asked defendant if he disliked working at Leinbach, whereupon defendant stormed out of the room angrily and slammed the door. At 8:30 a.m. on 4 November 1983 defendant entered Burke\u2019s office, stated \u201cI have the answer to your question,\u201d and, with a sawed-off shotgun, shot Burke in the head, fatally wounding him.\nAt the guilt-innocence phase of the trial defendant presented no evidence, and the jury found him guilty of first degree murder.\nAt the sentencing phase of the trial the state offered evidence that defendant had entered a plea of guilty to federal bank robbery in 1977. Defendant offered evidence, including his own testimony, which tended to show that he had led a deprived and harsh childhood. Upon reaching adulthood the defendant married. However, during the marriage he suffered severe emotional problems. He would often become depressed and despondent. This depression led to bouts of alcohol and drug abuse. Eventually the defendant lost his job and separated from his wife. Shortly thereafter he robbed a federal bank. He turned himself in to the authorities and subsequently pled guilty to the offense.\nWhile in prison the defendant completed his high school education and took several automotive training courses. He also joined the United States Jaycees. Defendant was once disciplined by being placed in solitary confinement. In prison defendant received medicinal, psychiatric therapy.\nUpon his release from prison the defendant secured employment with Leinbach Machinery Company through his probation officer. The defendant continued to suffer from depression after his release from prison. His mental and emotional problems were further exacerbated by problems with his mentally ill sister and difficulties at work.\nBased upon the evidence introduced during the sentencing phase of the trial, the trial court submitted one aggravating circumstance: that \u201cdefendant had been previously convicted of a felony involving the use or threat of violence to the person.\u201d N.C.G.S. \u00a7 15A-2000(e)(3). The trial court also submitted eight mitigating circumstances. The jury found the existence of the aggravating circumstance and the existence of one or more of the mitigating circumstances. The jury went on to find that the mitigating circumstances were insufficient to outweigh the aggravating circumstance and that the aggravating circumstance was sufficiently substantial to call for the imposition of the death penalty, when considered with the mitigating circumstances found. The jury returned a recommendation that the defendant be sentenced to death, and the trial court entered judgment accordingly.\nI.\nDefendant assigns as error the trial court\u2019s denial of his pretrial motion for the appointment of a psychiatrist to assist in his defense. We find merit in this assignment.\nFollowing defendant\u2019s indictment for murder on 9 January 1984, his counsel orally moved the court on 16 January that the defendant be committed to a state mental facility for observation and treatment to ascertain whether he had the capacity to proceed with the trial. The trial court found that defendant had been examined that morning by physicians at Forsyth County Memorial Hospital and found to be in need of psychiatric care, treatment, and examination. Defendant had appeared comatose and had been unable to speak cogently with his attorney. In open court defendant seemed incapable of responding to questions posed to him. The trial court then concluded and ordered that the defendant should be sent to Dorothea Dix Hospital for observation and treatment to determine his capacity to proceed with trial.\nDefendant was admitted to Dorothea Dix Hospital on 16 January 1984 where he remained until his discharge on 27 February 1984.\nOn 9 March 1984, the defendant moved in writing that the trial court appoint Dr. Selwyn Rose, M.D., a psychiatrist, and Dr. Steven Rradbard, Ph.D., a psychologist, to \u201cindependently evaluate and assess the defendant\u2019s mental and emotional capabilities at the time of\u2019 the alleged murder. Defendant\u2019s motion asserted that defendant has \u201cin the past suffered from serious mental and emotional illnesses.\u201d The motion also asserted that defendant\u2019s \u201cmental and emotional status at the time of the alleged capital offense is of paramount importance for use in the defendant\u2019s defense and for possible use in establishing a mitigating factor in the event a jury is called upon to recommend a sentence.\u201d Finally the motion asserted that without the appointment of a forensic psychiatrist and an assisting psychologist to evaluate defendant\u2019s mental and emotional status, defendant because of his indigency \u201cwill be unable to properly defend himself against the said capital charges.\u201d\nIn support of this motion for psychiatric assistance, defendant presented the discharge summary and psychiatric evaluation of defendant prepared by Dr. J. D. McRee at Dorothea Dix Hospital and dated 27 February 1984. According to this document defendant\u2019s chief complaint upon admission was \u201cI\u2019ve been hearing and seeing things.\u201d \u201cIn appearance he was considered a catatonic black male.\u201d His speech was slow \u201cwith some degree of blocking,\u201d and his mood \u201cwas considered flat.\u201d His thinking was \u201cconsidered as poor.\u201d Defendant suffered from auditory and visual hallucinations and delusions under which he stated \u201cthere were beeping objects in the sky that were controlling his mind.\u201d His concentration, memory, intellectual functions, judgment and insight were described as poor. His orientation was only to name, and he could not remember his birthday. Dr. McRee\u2019s impression on admission was that defendant suffered from \u201can acute psychosis, probably schizophrenic in type.\u201d Psychological testing indicated defendant was experiencing unusually high levels of stress, depression, anxiety, \u201csomatic concerns,\u201d and feelings of distrustfulness. Testing did not \u201csuggest a psychotic disorder.\u201d\nThe evaluation also included a brief recitation of the defendant\u2019s personal history, including references to a history of depression and mental illness in the defendant\u2019s family, defendant\u2019s employment problems, and his incarceration. The evaluation gave defendant\u2019s description of the incident for which he was charged as follows:\nPatient states that his memory is hazy to the charges for which he was arrested. He states that he went to boss and asked for his money. He felt that at this time things went out of whack and he told his boss that the boss had made a mistake. The boss told him to return to work. He apparently went out to his van and got his shotgun and came back in and tried to talk with his boss. At first when he came in he stated that he had not been drinking but later he did say that he had been drinking fairly much and that he was drinking at the time. He understood that he told the man that he had found an answer to his problem and that would be to shoot the man.\nThe evaluation showed defendant had been treated at the hospital with the drugs Haldol and Cogentin. Dr. McRee noted the following at the time of defendant\u2019s discharge:\nAt the present time he seems to be completely recovered from his psychotic episode that was described on admission.\nAnalysis and Opinions:\nIn my opinion Mr. Gambrell is capable of proceeding to trial since he understands the nature of his legal situation and is able to cooperate with his attorney. As to responsibility for his actions at the time of the alleged crime I have found no mental defect or mental disorder which would have prevented him from distinguishing right from wrong with respect to the current charge. Patient expresses that he was drinking alcohol at the time that the crime occurred and that his memory is somewhat hazy about what happened. The alcohol was taken on a voluntary basis and therefore does not reduce his responsibility for his actions. It is my impression that the patient probably had an epidose while in jail of alcohol withdrawal syndrome and that this explains his behavior, which included visual and auditory hallucinations and some delusions. These have cleared completely and are no longer present.\nDiagnoses:\nAxis I: Alcohol withdrawal, delirium, now recovered\u2014 291.00\nAxis II: Mixed personality disorder with antisocial passive-aggressive paranoid tendencies \u2014 301.89\nAxis III: Obesity\nDr. McRee prescribed the drugs Haldol and Cogentin for defendant and recommended that defendant be discharged to the sheriff and \u201cfollowed by the mental health center or the jail physician until such time that disposition is decided.\u201d\nOn 12 March 1984, the trial court denied defendant\u2019s motion for the appointment of psychiatric experts. The court\u2019s order recited as grounds for the denial that, according to the Dorothea Dix Hospital Discharge Summary:\n[Defendant was evaluated and . . . had delusions and hallucinations due to alcohol withdrawals. The summary further states that patient no longer shows the delusions and hallucinations which he was experiencing while in jail and at the time of admission. These have cleared completely and are no longer present and there was no evidence presented that would tend to show different findings would or may result from a second evaluation.\nOn 30 March 1984, defendant, pursuant to N.C.G.S. \u00a7 ISA-959, filed notice of an intent to raise an insanity defense, but no evidence in support of this defense was offered at trial.\nWe think Ake v. Oklahoma, 470 U.S. 68, 84 L.Ed. 2d 53 (1985), decided after defendant\u2019s trial but before his case was argued before us, controls the question presented in favor of defendant\u2019s contentions. In Ake the holding of the Court was expressed as follows:\nWe hold that when a defendant has made a preliminary showing that his sanity at the time of the offense is likely to be a significant factor at trial, the Constitution requires that a State provide access to a psychiatrist\u2019s assistance on this issue, if the defendant cannot otherwise afford one.\n470 U.S. at 74, 84 L.Ed. 2d at 60. The Court in Ake reversed the Oklahoma Court of Appeals, which had rejected an indigent defendant\u2019s argument that he should have been provided the services of a court appointed psychiatrist, and remanded the case for a new trial, Ake having been convicted and sentenced to death without the assistance of a psychiatric expert.\nBoth the state and defendant recognize that the principle announced in Ake controls the question. The issue resolves itself into whether defendant made \u201ca preliminary showing that his sanity at the time of the offense [was] likely to be a significant factor at trial.\u201d Ake v. Oklahoma, 470 U.S. at 74, 84 L.Ed. 2d at 60. We think defendant made the necessary preliminary showing.\nThe state argues defendant did not make the necessary preliminary showing. It relies on that portion of the Dorothea Dix Discharge Summary which recites Dr. McRee\u2019s opinion that defendant was capable of proceeding to trial and had no mental defect or disorder which would meet the test of legal insanity. The state relies further on Dr. McRee\u2019s \u201cimpression\u201d that defendant\u2019s behavior, including his visual and auditory hallucinations and his delusions, which had cleared, could be explained by an alcohol withdrawal syndrome.\nIn determining whether defendant has made the threshold showing required by Ake, the trial court should consider all the facts and circumstances known to it at the time the motion for psychiatric assistance is made. It should not base its ruling on the opinion of one psychiatrist if there are other facts and circumstances casting doubt on that opinion. The question under Ake is not whether defendant has made a prima facie showing of legal insanity. The question is whether, under all the facts and circumstances known to the court at the time the motion for psychiatric assistance is made, defendant has demonstrated that his sanity when the offense was committed will likely be at trial a significant factor.\nHad those portions of the Dorothea Dix report relied on by the state been all that was before the superior court when it denied defendant\u2019s motion, the state\u2019s position would be stronger. There were, however, a number of other important facts before the trial court at the time it ruled on defendant\u2019s motion. These were: (1) Physicians at Forsyth County Memorial Hospital on 16 January 1984, after defendant had been placed in custody for approximately ten weeks, determined that defendant was then in need of psychiatric care, treatment and examination. (2) Defendant appeared at that time to be comatose. (3) Defendant had been unable to speak cogently with his counsel. (4) Defendant was incapable of responding to questions posed to him in open court. (5) On admission at Dorothea Dix initial professional impressions were that he suffered from \u201can acute psychosis, probably schizophrenic in type.\u201d (6) Defendant was treated therapeutically with psychotropic drugs which were prescribed for him upon his discharge. (7) Dr. McRee recommended that defendant be followed either at the mental health center or by the jail physician after his discharge. (8) Defendant\u2019s own version of the crime as recited in the hospital summary. (9) Defendant\u2019s family history of depression and mental illness. All these facts were enough to show, even in the presence of some evidence to the contrary, that defendant\u2019s sanity at the time of the crime was \u201clikely to be a significant factor at trial.\u201d\nIndeed, the facts in the instant case are strikingly similar to those in Ake. In Afee: (1) Defendant\u2019s behavior at arraignment four months after the offense was so bizarre as to prompt the trial court, sua sponte, to have him examined for competency. (2) A state psychiatrist then found Ake to be \u201cdelusional . . . [and] a probable paranoid schizophrenic . . .\u201d and recommended a psychiatric evaluation to determine Ake\u2019s competency. (3) On admission to a state hospital Ake was found not to be competent to stand trial, and a psychiatrist testified at a subsequent competency hearing that Ake was psychotic. (4) Six weeks later after having received the antipsychotic drug, Thorazine, three times daily, Ake was determined to be competent to stand trial, and the state resumed proceedings against him. (5) Oklahoma recognizes the defense of insanity, under which the defendant has the initial burden of producing evidence.\nIn the instant case: (1) Two months after the shooting, physicians concluded that defendant was in need of psychiatric examination and treatment. (2) Defendant\u2019s behavior in open court was bizarre, and he was ordered to undergo psychiatric evaluation. (3) On admission defendant was experiencing hallucinations and delusions, was suffering from depression and anxiety, and was thought to have an acute psychosis. (4) After being administered the psychotropic drug Haldol in the highest recommended daily dosage, see Physicians\u2019 Desk Reference, 39th ed., 1201-1205 (1985), defendant\u2019s symptoms were ameliorated, and he was thought to be competent to stand trial and not to be legally insane. (5) North Carolina also recognizes the defense of insanity with the burden on defendant to establish his legal insanity to the jury\u2019s satisfaction. State v. Mize, 315 N.C. 285, 337 S.E. 2d 562 (1985).\nThese similarities between the instant case and Ake bolster our conclusion that here defendant made the necessary threshold showing in support of his motion for psychiatric assistance.\nIn summarizing its decision the Court in Ake said:\nWe therefore hold that when a defendant demonstrates to the trial judge that his sanity at the time of the offense is to be a significant factor at trial, the State must, at a minimum, assure the defendant access to a competent psychiatrist who will conduct an appropriate examination and assist in evaluation, preparation, and presentation of the defense. This is not to say, of course, that the indigent defendant has a constitutional right to choose a psychiatrist of his personal liking or to receive funds to hire his own. Our concern is that the indigent defendant have access to a competent psychiatrist for the purpose we have discussed, and as in the case of the provision of counsel we leave to the States the decision on how to implement this right.\n470 U.S. at 83, 84 L.Ed. 2d at 66.\nIt is clear, therefore, that the constitution does not give an indigent defendant the right to choose his own psychiatrist or even to receive funds to hire a private psychiatric expert. We reject defendant\u2019s contention that he is entitled to such an independent, privately employed psychiatrist. The appointment of state employed psychiatrists may fulfill the state\u2019s constitutional obligation. Their employment by the state, we are satisfied, creates no conflict of interest which would disable them from fulfilling the constitutional requirements.\nWhat is required, as Ake makes clear, is that defendant be furnished with 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. Dr. McRee, the psychiatrist who examined defendant at Dorothea Dix Hospital, was not appointed for this purpose and did not serve in this capacity. Dr. McRee\u2019s involvement with defendant, consequently, did not fulfill the state\u2019s constitutional obligation as Ake expounded it.\nDefendant, therefore, must be given a new trial at which the court will appoint some competent psychiatrist for the purpose of examining defendant and assisting defendant in evaluating, preparing, and presenting his defense in both the guilt and sentencing phases.\nThe verdict and judgment entered against defendant are, therefore, vacated and the case remanded to the Superior Court of Forsyth County for a\nNew trial.\n. These were:\n\u201c(1) This murder was committed while Lloyd Phillip Gambrell was under the influence of mental or emotional disturbance.\n\u201c(2) The capacity of Lloyd Phillip Gambrell to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law was impaired.\n\u201c(3) Lloyd Phillip Gambrell was a loving and caring father to his natural daughter and to his stepchildren.\n\"(4) That during the period 1977 through 1981 the defendant completed certain courses of study.\n\u201c(5) Until about two or three weeks before November 4, 1983, Lloyd Phillip Gambrell had been considered a good worker by his supervisor, the deceased.\n\u201c(6) During the bank robbery in 1977, no individuals were in any way harmed by Lloyd Phillip Gambrell.\n\u201c(7) During the bank robbery in 1977, no shots were fired by Lloyd Phillip Gambrell or anyone else involved in the said situation.\n\u201c(8) Any other circumstances arising from the evidence which the jury deems to have mitigating value.\u201d\n. Ake held also that an indigent defendant is entitled to state furnished psychiatric assistance on issues relating to his mental state which may arise at a capital sentencing hearing. Defendant does not argue this point, apparently because Dr. McRee did testify for defendant at the sentencing hearing. In doing so, Dr. McRee testified that he \u201cwas not really pleased\u201d with his earlier alcohol withdrawal syndrome diagnosis because defendant \u201chad been in jail for some time, and it was so long for an alcohol psychosis to be occurring.\u201d Dr. McRee testified that when defendant entered Dorothea Dix \u201che was psychotic. He was incompetent at that time.\u201d",
        "type": "majority",
        "author": "EXUM, Justice."
      }
    ],
    "attorneys": [
      "Lacy H. Thornburg, Attorney General, by David Roy Blackwell and Joan H. Byers, Assistant Attorneys General, for the state.",
      "David B. Hough, for defendant appellant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. LLOYD PHILLIP GAMBRELL\nNo. 363A84\n(Filed 29 August 1986)\nConstitutional Law \u00a7 31\u2014 sanity at time of offense \u2014 significant factor at trial \u2014 defendant entitled to assistance of psychiatrist\nWhen a defendant has made a preliminary showing that his sanity at the time of the offense is likely to be a significant factor at trial, the State is required to provide access to a psychiatrist\u2019s assistance on this issue. Defendant made such a showing, though there was some evidence to the contrary, where he offered evidence that physicians at a hospital, 10 weeks after defendant was placed in custody, determined that he was then in need of psychiatric care, treatment and examination; he appeared at that time to be comatose; defendant had been unable to speak cogently with his counsel; he was incapable of responding to questions posed to him in open court; on admission at Dorothea Dix initial professional impressions were that he suffered from \u201can acute psychosis, probably schizophrenic in type\u201d; defendant was treated therapeutically with psychotropic drugs which were prescribed for him upon his discharge; one of the doctors at Dix recommended that defendant be followed either at the mental health center or by the jail physician after his discharge; defendant\u2019s version of the crime as recited in the hospital summary was totally different from actual events; and defendant had a family history of depression and mental illness.\nBEFORE Seay, J., presiding at the 11 June 1984 Criminal Session of Superior Court, FORSYTH County, defendant was convicted of first degree murder. Following a sentencing hearing held pursuant to N.C.G.S. \u00a7 15A-2000, the jury recommended that defendant be sentenced to death. From judgment imposing a sentence of death, defendant appeals as a matter of right. N.C.G.S. \u00a7 7A-27(a) (1981 and Cum. Supp. 1985).\nLacy H. Thornburg, Attorney General, by David Roy Blackwell and Joan H. Byers, Assistant Attorneys General, for the state.\nDavid B. Hough, for defendant appellant."
  },
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  "last_page_order": 283
}