Protesters march

By J. Brian Ewing - Reidsville Review

Friday, December 2, 2005

A light rain fell Thursday night outside of Raleigh's Central Prison as protesters began their vigil for death row inmate Kenneth Lee Boyd. Boyd, 57, was scheduled to be the 1,000th inmate executed in the United States since capital punishment was reinstated in 1976. Boyd spent the day with his son Kenneth Smith, 32, his daughter-in-law Cheryl Boyd and his three grandchildren as well as two family friends.

Boyd was convicted in a 1994 retrial for murdering his wife Julie Curry Boyd and her father Thomas Curry at their Stoneville home. Boyd shot Curry twice and Julie Boyd eight times. He committed the murders in front of two of his children including Chris Boyd, whose wife Cheryl visited with Kenneth Boyd all day Thursday.

Cheryl Boyd said her father-in-law seemed happy and content. "He talked about his sons and hopes that they find it in their hearts to forgive him," Cheryl Boyd said. Cheryl Boyd said her husband had not spoken to her about the execution. Kenneth Boyd did receive a tearful phone call from his son Daniel Boyd.

A last minute appeal to the U.S. Supreme Court was denied early Thursday afternoon. Gov. Mike Easley announced his denial for clemency just before 11 p.m.

As the final hour drew near, Kenneth Smith returned from speaking with his father. Smith said he and his father reminisced about their times together when he was a boy. Smith is a son from a previous marriage. He said if he regretted one thing it was that he didn't get to spend more time with his father.

Smith said he has long been an opponent of the death penalty. Desmond Carter, a convicted murderer and a childhood friend of Smith's from Rockingham County, was also executed at Central Prison. "I don't think it's fair. There are so many different standards," he said. "There's so much killing going on in the government. One thousand people, that's a lot of people that's been killed." Smith said he brought his two children to see their grandfather one last time because, "I wanted them to know my dad's a good person."

Boyd's case gained international notoriety when Virginia Gov. Mark Warner, an outspoken opponent to the death penalty, pardoned killer Robin Lovitt earlier this week. Lovitt, whose execution was originally scheduled for Tuesday, would have been the 1,000th. Boyd has said told his family that he does not want to be remembered as a number.

More than 100 protestors outside Central Prison were telling reporters that 1,000 executions were 1,000 too many. "It's a sad statement of us as a society that violence begets violence," Pastor Mark Reamer of Saint Francis of Assisi said. Reamer led a candlelight vigil march to the prison Thursday night. He said the Catholic Church has long opposed capital punishment and he said he prayed for an end to it.

Also among the protestors was a small group from Wakefield High School. They were there representing civil rights group Amnesty International. David Zoppo, 17, coordinated the group and said he finds it ironic that the punishment for killing is killing. "You can't use killing as a punishment. You're doing what he has done." Zoppo said. He said most students his age aren't aware about social concerns like the death penalty but he wanted to inform more.

As the rain let up just before 11 p.m., officials in the prison began preparing for the execution. Earlier that day Kenneth Lee Boyd had a New York strip steak, medium well, and a baked potato for supper. Officials said he was pleased with his last meal.

ProDeathPenalty.com

A man sentenced to die for killing his wife and father-in-law is scheduled to be executed Dec. 2. Kenneth Lee Boyd, now 57, was was sentenced to death July 14, 1994, in Rockingham County Superior Court for the March 1988 shooting deaths of his estranged wife Julie Curry Boyd and her father Thomas Dillard Curry.

The shootings were committed in the presence of his own children, then ages 13, 12 and 10, as well as other witnesses, all of whom testified against Boyd at trial. According to family members, Julie had endured an extremely stormy marriage for 13 years before finally leaving Boyd and moving herself and her children in with her father. Boyd repeated stalked Julie, once handing one of their sons a bullet and a note to give his mother that said the bullet was intended for her.

On March 4, 1988 Boyd drove around with his boys, telling them he was going to go and kill everyone at his father-in-law's home. When they arrived, he entered the home and shot and killed both his wife and her father with a .357 Magnum pistol. One of Julie's sons was pinned under his mother's body as Boyd continued to fired at her. The child scrambled out from beneath his mom's body and wriggled under a nearby bed to escape the hail of bullets.

When Boyd tried to reload the pistol, another son tried to grab it. Boyd went to the car, reloaded his gun, came back into the house and called 911, telling the emergency operator, "I've shot my wife and her father - come on and get me." Then more gunshots can be heard on the 911 recording.

Law enforcement officers arrived and as they approached Boyd came out of the nearby woods with his hands up and surrendered to the officers. Later, after being advised of his rights, Boyd gave a lengthy confession in which he described the fatal shootings: "I walked to the back door and opened it. It was unlocked. As I walked in, I saw a silhouette that I believe was Dillard. It was just like I was in Vietnam. I pulled the gun out and started shooting. I think I shot Dillard one time and he fell. Then I walked past him and into the kitchen and living room area. The whole time I was pointing and shooting. Then I saw another silhouette that I believe was Julie come out of the bedroom. I shot again, probably several times. Then I reloaded my gun. I dropped the empty shell casings onto the floor. As I reloaded, I heard someone groan, Julie I guess. I turned and aimed, shooting again. My only thoughts were to shoot my way out of the house. I kept pointing and shooting at anything that moved. I went back out the same door that I came in, and I saw a big guy pointing a gun at me. I think this was Craig Curry, Julie's brother. I shot at him three or four times as I was running towards the woods."

National Coalition to Abolish the Death Penalty

Do Not Execute Kenneth Lee Boyd!

NORTH CAROLINA - Kenneth Lee Boyd - December 2, 2005

Kenneth Lee Boyd, a white man, faces execution in North Carolina for the shooting deaths of his wife, Julie Curry Boyd, and her father, Thomas Dillard Curry, on March 4, 1988 in Rockingham County.

Boyd dropped out of school in the ninth grade. He later volunteered to serve in the army and went to Vietnam. He suffers from a history of alcohol abuse. His first marriage ended in divorce and his marriage to Julie Boyd involved a history of arguments, separations, and reconciliations. At the time of the murders the two were separated. Boyd also suffered from an intestinal illness that had resulted in the removal of both his stomach and his gall bladder on two separate occasions.

At Boyd’s trial, expert witnesses testified as to Boyd’s psychiatric state of mind. Dr. Patricio Lara testified that Boyd suffered from adjustment disorder with psychotic emotional features, alcohol abuse, and personality disorder with predominate compulsive dependant features.

Dr. John Warren testified that Boyd suffered from chronic depression, alcohol abuse disorder, dependant personality disorder, and a reading disability. Dr. Warren also stated that Boyd did not act with a “cool state of mind” at the time of the murders. After an explanation by the court of the legal meaning of a “cool state of mind,” Warren conceded that the medical and legal uses of the terms differed. However Warren stated that Boyd did not act with a “cool state of mind” in the medical sense. Although the witness clarified his testimony, that part of his testimony was ruled inadmissible.

Additionally, Boyd’s trial judge allowed a conversation on mitigating circumstances between the attorneys and the judge to take place outside of Boyd’s presence. According to the law the defendant has a right which can not be waived to be present at all parts of his capital trial. In this instance the appellate court ruled that Boyd’s absence was “harmless” because his lawyer was present.

Unfortunately there is also question as to whether Boyd received effective assistance of counsel. During closing arguments, trial counsel responded to the prosecutor’s closing argument that the jury should look at the ten minutes of the crime and return a death sentence. The defendant’s counsel responded by arguing that the jury “take the ten minutes to find the aggravating circumstance.”

He continued by telling the jury to rule on all of the information in the case, not just that ten minutes. Unfortunately such a statement by the trial counsel both concedes that such an aggravating circumstance exists and concedes the guilt of the defendant. The statement concedes guilt because the aggravating circumstance in this case was whether each murder was committed during the commission of another murder.

The appellate court ruled that this did not warrant a mistrial because the defendant did not voice his problem with his trial counsel’s statements before the appeal. Of course, a defendant is not likely to object before appeal to the statement of his own counsel.

Boyd has a number of mental and emotional problems. He suffers from an addiction to alcohol and was intoxicated at the time of the crimes. He has been cooperative with authorities and has no prior criminal record.

Please write Gov. Michael Easely requesting that Boyd’s sentence be commuted to life in prison.

People of Faith against the Death Penalty

Nov. 30, 2005

Kenneth Boyd May Be 1,000th U.S. Execution Since 1977.

Barring a court-ordered stay or clemency from NC Gov. Mike Easley, Kenneth Lee Boyd will be the 1,000th person executed in the United States since the resumption of executions in the United States in 1977.

Abolitionists and concerned Americans from around the country are flying and busing to North Carolina to protest Friday morning's scheduled execution of Boyd. Protests are planned in more than 12 cities around the state and in cities around the country.

Please join us in prayer and reflection on this sad milestone. Please remember to call Gov. Easley's office and consider attending a prayer service at one of many locations in the state. The governor's telephone numbers are 1-800-662-7952 (in North Carolina only) and (919) 733-5811. Sign up for our e-mail alerts and listservs for more developments on this story.

"How embarassing for North Carolina and how tragic if this execution is carried out," said Stephen Dear, executive director of People of Faith Against the Death Penalty. "The world is watching us. As our legislature is about to begin a study of the widely documented flaws in our death penalty system and as polls here continue to show broad public support for suspending executions, to carry out this execution will mark a sad, even pathetic, day in North Carolina history.

"Let us take the hundreds of millions of tax dollars North Carolina spends on the death penalty and invest it in crime prevention and in real, restorative programs aimed at meeting victims' needs," Dear said. Gov. Easley has granted clemency twice, but has allowed more exections than any North Carolina governor since 1949. "Gov. Easley has been on the wrong side of history," Dear said. "We pray he will have a transformation in his heart and his conscience."

Governments and faith and humanitarian groups in more than 300 cities around the world will be organizing events calling for the abolition of the death penalty on Nov. 30. The "Cities for Life - Cities Against the Death Penalty" day celebrates the anniversary of the first abolition of capital punishment by law in a European state, the Great Duchy of Tuscany in 1786.

One juror from the Boyd trial has since said that she was under the mistaken impression that the death penalty was automatic once the jurors found that the crime was premeditated. She never believed that Boyd deserved to die. In addition to her misunderstanding of the law, she felt pressured by some of the other jurors into going along with a death sentence, a decision she deeply regrets.

Additional information can be found at www.1000execution.org.

The world will be watching if North Carolina kills Kenneth Boyd early Friday morning. Let us pray, and let us act, so that it will not happen here.

State v. Boyd, 332 N.C. 101, 418 S.E.2d 471 (N.C. 1992) (Direct Appeal).

Defendant was convicted of murder in Superior Court, Rockingham County, Sam Currin, J., and he appealed. The Supreme Court, Exum, C.J., held that: (1) court's private conversation with juror warranted new trial, and (2) defendant was entitled to state-paid mental health expert if defendant did not have sufficient funds to pay for one. Remanded for new trial.

EXUM, Chief Justice.

Defendant was indicted in separate bills dated 16 May 1988 for the murders of his estranged wife and her father on 4 March 1988. In a capital trial the jury returned verdicts of guilty as charged. After a sentencing proceeding, the jury recommended, and the trial court accordingly entered, a sentence of death for each murder.

There are two assignments of error which merit discussion. The first relates to the trial court's excusing a juror from service at defendant's trial during the jury **472 selection process and deferring her for service at a later session after a private, unrecorded bench conference with the juror. For this error, defendant is entitled to a new trial. The second assignment brings forward the trial court's denial of defendant's pretrial motion for a state-paid mental health expert to assist defendant in the preparation of his defense. Since the denial of this motion on the grounds given by the trial court was error, we discuss this assignment for the guidance of the trial court on retrial.

The evidence offered at trial may be briefly summarized inasmuch as it has little bearing on the assignments of error which we address. Essentially, the State's evidence tended to show: On 4 March 1988 defendant entered the home of his estranged wife's father, where his wife and their children were then living, and shot and killed both his wife, Julie Boyd, and her father, Dillard Curry, with a .357 Magnum pistol.

The shooting was committed in the presence of the children--Chris, aged thirteen; Jamie, aged twelve; and Daniel, aged thirteen--and other witnesses, all of whom testified for the State. Law enforcement officers were called to the scene. As they approached, defendant came out of the woods with his hands up and surrendered to the officers.

Defendant showed *103 the officers where he had thrown the murder weapon into some adjacent woods. Later, after being advised of his rights, defendant made a lengthy inculpatory statement in which he described the fatal shootings, saying, "It was just like I was in Vietnam."

Defendant's evidence at trial tended to show: Defendant voluntarily served in the United States Army and volunteered for duty in Vietnam, where he was assigned to a combat engineering unit. He habitually drank alcoholic beverages to excess while in the military and since his discharge. His first marriage ended in divorce.

His second marriage in 1973 to Julie Boyd was marked by frequent arguments, some violence, several separations and reconciliations. Defendant suffered intestinal illnesses which resulted in the removal of much of his stomach on one occasion and his gallbladder on another. He had sought mental health counseling.

He continued to drink alcoholic beverages to excess and had drunk a number of beers on the day of the fatal shooting. His recollection of the time before and during the shootings was incomplete, but he remembered being at the Curry home, his gun going off, and seeing blood. He denied going there with the intent to kill either Julie Boyd or Dillard Curry.

Dr. Patrico Lara, a psychiatrist employed at Dorothea Dix Hospital, examined defendant periodically over a two-week period beginning 11 March 1988. Dr. Lara, testifying for defendant, thought defendant did not suffer from brain damage nor was his understanding of his situation "confused or incoherent." Dr. Lara diagnosed defendant as suffering from an "adjustment" and "personality" disorder with various features which he described for the jury.

Following jury verdicts of guilty of two counts of first-degree murder, a capital sentencing proceeding was convened. The State offered no additional evidence but relied on evidence offered during the guilt proceeding. Defendant offered several family members and others as witnesses who gave favorable accounts of his early childhood, his military career, his relationship with his children, and his employment as a truck driver.

The trial court submitted and the jury found one aggravating circumstance in each murder case: The murder was part of a course of conduct that included the commission by defendant of other crimes of violence against other persons. See N.C.G.S. § 15A-2000(e)(11) (1988). The jury unanimously found four of ten mitigating circumstances submitted but failed to find unanimously *104 six mitigating circumstances, including the mitigating circumstances that (1) defendant was under the influence of a mental or emotional disturbance and (2) his capacity to conform his conduct to the requirements of law was impaired when he committed the murders. See N.C.G.S. § 15A-2000(f)(2), (6) (1988).

The State concedes that the testimony of Dr. Lara was sufficient to support both the mental or emotional disturbance and the impaired capacity mitigating circumstances. The State further concedes that the jury instructions on mitigating circumstances violated the Federal Constitution as interpreted in McKoy v. North Carolina, 494 U.S. 433, 110 S.Ct. 1227, 108 L.Ed.2d 369 (1990); see also State v. McKoy, 327 N.C. 31, 394 S.E.2d 426 (1990). The State agrees that because of this error defendant is entitled to a new sentencing hearing.

We conclude that defendant is entitled to a new trial because the trial court excused a juror during the jury selection process in defendant's trial after a private, unrecorded conference with the juror at the bench. The transcript of the trial reveals that during the second day of jury selection additional jurors were called by the clerk to come forward for questioning. The transcript reveals only the following regarding the incident in question: CLERK: William Harris, Charlotte Jackson. (Ms. Jackson brought a letter up and handed it to the Bailiff, who then handed it to the judge. The judge then talked to the lady at the Bench.)

COURT: Ma'am Clerk, at this time I am going to defer that particular juror's service until one of the terms during the summer months. And if you will call another juror. There is nothing in the trial transcript nor in the record on appeal which reveals the substance of the conversation between the trial court and prospective juror Jackson.

Our cases have long made it clear that it is error for trial judges to conduct private conversations with jurors. We said in State v. Tate, 294 N.C. 189, 198, 239 S.E.2d 821, 827 (1978): [T]he trial court's private conversations with jurors were ill-advised. The practice is disapproved. At least, the questions and the court's response should be made in the presence of counsel. Tate being a noncapital prosecution, [FN1] we concluded that defendant, by not objecting to the judge's action, waived his right to complain of it on appeal. In capital prosecutions, however, we have long recognized that a defendant may not waive his right to be present at every stage of his trial. State v. Moore, 275 N.C. 198, 166 S.E.2d 652 (1969); State v. Jenkins, 84 N.C. 813 (1881).

Thus we have held that private conversations between the presiding judge and jurors during a capital trial, even in the absence of objection by defendant, violated defendant's right of confrontation guaranteed under Article I, Section 23, of the North Carolina Constitution and constituted reversible error unless the State could demonstrate its harmlessness beyond a reasonable doubt. State v. Payne, 320 N.C. 138, 357 S.E.2d 612 (1987). Since there was no record of what transpired during the conversations in Payne, we concluded the State could not demonstrate the harmlessness of the error.

FN1. The crime was committed on 25 December 1976, before the enactment of our present death penalty statute in 1977 and after the immediately preceding death penalty statute had been declared unconstitutional in Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976).

In State v. Smith, 326 N.C. 792, 392 S.E.2d 362 (1990), a capital prosecution, the trial court spoke privately with prospective jurors during the jury selection process, after which the jurors were excused from having to serve. Neither the record on appeal nor the trial transcript reflected the substance of the bench conferences, except to note the trial court's conclusion that it was within its discretion to excuse each juror.

This Court, cognizant of the principles announced in Tate and Payne, concluded that the process of selecting and impaneling a jury is a stage of the trial to which the defendant's right of confrontation applies and the trial court's excusal of jurors after the private conversations violated that right. We also concluded the private conversations violated the trial court's statutory duty in a capital case to make an accurate record of the jury selection process. N.C.G.S. § 15A-1241(a) (1988).

Recognizing the error was subject to harmless error analysis with the burden being on the State to demonstrate its harmlessness **474 beyond a reasonable doubt, we concluded the State could not meet that burden because "[n]o record of the trial court's private discussions with the prospective jurors exists to reveal the substance of those discussions." Smith, 326 N.C. at 794, 392 S.E.2d at 363-64.

Smith 's rationale and holding have been followed in State v. Johnston and Johnson, 331 N.C. 680, 417 S.E.2d 228 (1992); State v. Cole, 331 N.C. 272, 415 S.E.2d 716 (1992); and State v. McCarver, 329 N.C. 259, 404 S.E.2d 821 (1991). Where, however, the transcript reveals the substance of the conversations, State v. Payne, 328 N.C. 377, 402 S.E.2d 582 (1991), or the substance is adequately reconstructed by the trial judge at trial, State v. Hudson, 331 N.C. 122, 415 S.E.2d 732 (1992); State v. Ali, 329 N.C. 394, 407 S.E.2d 183 (1991), we have been able to conclude that the error was harmless beyond a reasonable doubt. [3]

Here, the substance of the conversation between the trial judge and the excused juror is not revealed by the transcript nor did the trial judge reconstruct it at trial. The State, therefore, cannot demonstrate the harmlessness of the error beyond a reasonable doubt; and defendant must be given a new trial. That the juror was deferred for service at a future date rather than excused altogether does not call for a different result. State v. Cole, 331 N.C. 272, 415 S.E.2d 716 (1992). Whether deferred or excused altogether, the juror was rendered unavailable for defendant's trial.

The State on 2 May 1991, four days before oral argument, moved the Court to allow an amendment to the record on appeal. The desired amendment consisted of affidavits of the deputy clerk of court in Rockingham County and the presiding trial judge, signed, respectively, in April and May 1991, and certain juror records maintained by the clerk. These materials would tend to show that prospective juror Jackson was a substitute teacher then teaching at a public school.

The trial judge excused her from juror duty for defendant's trial and deferred her until a later time because the trial judge concluded her service at that time would create a hardship on the school. This conclusion was based on a letter from Ms. Jackson's principal. Defendant responded to this motion on 14 May 1991 and contends the motion should be denied inasmuch as it "seeks to reconstruct a record of events leading to Ms. Jackson's deferral long after the occurrence of the underlying event."

The State's motion to amend the record is denied. In State v. McCarver, 329 N.C. 259, 404 S.E.2d 821 (1991), we allowed a new trial for defendant because the trial judge excused jurors *107 following unrecorded bench conferences. In that case the State moved to amend the record to add an affidavit of the trial judge, accompanied by his handwritten trial notes, which explained his reasons for excusing the jurors.

We denied the motion, saying, "The court reporter did not record the bench conferences, as required by N.C.G.S. § 15A-1241. We will not substitute for this statutory requirement an affidavit made approximately three years after the event. The affidavit was not a part of the record made at trial." Id. at 261, 404 S.E.2d at 822. McCarver controls and requires that the State's motion to amend the record here be likewise denied.

This brings us to the second assignment of error which we discuss only for the guidance of the trial court on retrial. Defendant before trial moved pursuant to N.C.G.S. § 7A-450(a) for state funding for a mental health expert. Judge Beaty, who heard the motion before trial, acknowledged defendant's affidavit indicating that he had no funds. He nonetheless noted that defendant had released court-appointed counsel and had retained different, privately employed counsel.

When he questioned defendant about this, defendant stated that someone else was paying for his counsel and that he had no assets except a 1987 tax refund. Judge Beaty offered defendant the option of accepting different, court-appointed counsel as a condition of receiving funds for an expert witness. When defendant rejected this option, Judge Beaty denied his motion, concluding "the **475 defendant, though indigent, has retained private counsel and is therefore not entitled to State funds for the presentation of his case or his defense."

At trial defendant renewed his motion for a state-paid mental health expert and tendered to the trial judge various mental health records of defendant. The trial judge reaffirmed Judge Beaty's earlier conclusion that because defendant was not represented by court-appointed counsel he was not indigent and not entitled to state assistance pursuant to N.C.G.S. § 7A-450(a). The trial judge denied the motion on this ground.

We address here only the question whether defendant's motion for a state-paid mental health expert should have been denied, as it was, because defendant, although financially unable to employ the expert, was not represented by court-appointed counsel. We conclude, for reasons given below, that the motion should not have been denied on this ground. We express no opinion on whether *108 defendant's motion should have been denied on the ground that he made an insufficient evidentiary showing. [FN2]

Neither do we express an opinion on whether Dr. Lara's availability and participation in the trial on defendant's behalf justified denying defendant's motion or rendered the denial harmless. The evidentiary showing at defendant's new trial and in support of this motion will ultimately govern these questions.

FN2. For cases discussing the sufficiency of the factual showing which a defendant must make, see, e.g., Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985); State v. Parks, 331 N.C. 649, 417 S.E.2d 467 (1992); State v. Moore, 321 N.C. 327, 364 S.E.2d 648 (1988); State v. Gambrell, 318 N.C. 249, 347 S.E.2d 390 (1986). See also State v. Phipps, 331 N.C. 427, 418 S.E.2d 178 (1992), on the issue of defendant's entitlement to an ex parte hearing.

Under some circumstances an indigent defendant in a criminal case has a right to be furnished the assistance of a mental health expert. This right is guaranteed by the Fourteenth Amendment to the United States Constitution, Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985); State v. Gambrell, 318 N.C. 249, 347 S.E.2d 390 (1986), and by statute, State v. Moore, 321 N.C. 327, 364 S.E.2d 648 (1988). An indigent person is defined as one "who is financially unable to secure legal representation and to provide all other necessary expenses of representation." N.C.G.S. § 7A-450(a) (1989). "Whenever a person ... is determined to be an indigent person entitled to counsel, it is the responsibility of the State to provide him with counsel and the other necessary expenses of representation." N.C.G.S. § 7A-450(b) (1989). "The question of indigency may be determined or redetermined by the court at any stage of the action or proceeding at which an indigent is entitled to representation." N.C.G.S. § 7A-450(c) (1989). See also N.C.G.S. § 7A-450(d) (1989).

A defendant determined to be partially indigent must pay as he can the expenses of his defense, and the state is required to pay only the remaining balance. N.C.G.S. § 7A-455(a) (1989). In State v. Hoffman, 281 N.C. 727, 738, 190 S.E.2d 842, 850 (1972), this Court read these statutes as manifesting a legislative intent "that every defendant in a criminal case, to the extent of his ability to do so, shall pay the cost of his defense."

In Hoffman, the defendant was determined not to have been indigent at the time of his arrest and thus not entitled to court-appointed counsel at that time. The Court said, however, that the defendant's "ability to pay the costs of subsequent proceedings ... was a matter to be determined when that question arose." Id. at 738, 190 S.E.2d at 850.

We stress, as we did in Hoffman, that the purpose of these statutes is to require defendants to contribute whatever they can to the cost of their representation. But whenever a defendant's personal resources are depleted and he can demonstrate indigency, he is eligible for state funding of the remaining necessary expenses of representation.

That defendant had sufficient resources to hire counsel does not in itself foreclose defendant's access to state funds for other necessary expenses of representation--including expert witnesses--if, in fact, defendant does not have sufficient funds to defray these expenses when the need for them arises. We vacate the verdicts and judgments entered against defendant and remand this case to the Superior Court, Rockingham County, for a NEW TRIAL.

State v. Boyd, 343 N.C. 699, 473 S.E.2d 327 (N.C. 1996) (Retrial Direct Appeal).

Defendant was convicted before the Superior Court, Rockingham County, Greeson, J., of the first-degree murders of his wife and her father, and was sentenced to death. Defendant appealed as of right. The Supreme Court, Mitchell, C.J., held that: (1) trial court did not err in prohibiting expert in forensic psychology from testifying that defendant was not acting with a "cool state of mind" during commission of murders; (2) statement of witness that he believed that defendant was "going to kill everybody" fell within realm of permissible lay testimony, as an instantaneous conclusion as to defendant's condition and state of mind at time of murders; (3) court did not err in refusing to instruct jury on voluntary intoxication; (4) court correctly refused to instruct on defense of unconsciousness; (5) court correctly denied defendant's request for a peremptory instruction as to mitigating circumstance that defendant was under the influence of mental or emotional disturbance; (6) error in conducting conference in chambers to discuss defendant's proposed mitigating circumstances, without defendant present, was harmless beyond a reasonable doubt; and (7) death sentences were not excessive or disproportionate to penalty imposed in similar cases, considering both crime and defendant. No error.

MITCHELL, Chief Justice.

On 16 May 1988, defendant was indicted for the 4 March 1988 murders of his estranged wife, Julie Boyd, and her father, Dillard Curry. He was tried capitally. The jury found him guilty and recommended a sentence of death for each murder. On appeal, this Court held that the trial court erred by excusing a juror after a private, unrecorded bench conference with the juror and awarded defendant a new trial. State v. Boyd, 332 N.C. 101, 418 S.E.2d 471 (1992).

In June 1994, defendant was again tried capitally and convicted of the first-degree murders of Julie Boyd and Dillard Curry. The jury recommended that defendant be sentenced to death for each murder and the **331 trial court sentenced accordingly. We conclude that defendant received a fair trial free of prejudicial error and that the sentences of death are not disproportionate.

The State's evidence tended to show inter alia that on 4 March 1988 defendant entered the home of his estranged wife's father, where *708 his wife and children were then living, and shot and killed both his wife and her father with a .357 Magnum pistol. The shootings were committed in the presence of defendant's children--Chris, age thirteen; Jamie, age twelve; and Daniel, age ten--and other witnesses, all of whom testified for the State. Immediately after the shootings, law enforcement officers were called to the scene. As they approached, defendant came out of some nearby woods with his hands up and surrendered to the officers.

Later, after being advised of his rights, defendant gave a lengthy inculpatory statement in which he described the fatal shootings: I walked to the back door [of Dillard Curry's house] and opened it. It was unlocked. As I walked in, I saw a silhouette that I believe was Dillard. It was just like I was in Vietnam. I pulled the gun out and started shooting. I think I shot Dillard one time and he fell. Then I walked past him and into the kitchen and living room area. The whole time I was pointing and shooting. Then I saw another silhouette that I believe was Julie come out of the bedroom. I shot again, probably several times. Then I reloaded my gun. I dropped the empty shell casings onto the floor. As I reloaded, I heard someone groan, Julie I guess. I turned and aimed, shooting again. My only thoughts were to shoot my way out of the house. I kept pointing and shooting at anything that moved. I went back out the same door that I came in, and I saw a big guy pointing a gun at me. I think this was Craig Curry, Julie's brother. I shot at him three or four times as I was running towards the woods.

Dr. Patricio Lara and Dr. John Warren both testified for defendant as experts in forensic psychology. Dr. Lara testified that at the time of the offenses, defendant suffered from an adjustment disorder with psychotic emotional features, alcohol abuse, and a personality disorder with predominate compulsive dependent features. Further, Dr. Lara opined that defendant's emotional condition was impaired and that defendant suffered from some level of alcohol intoxication at the time of the offenses. Likewise, Dr. Warren opined that at the time of the offenses defendant suffered from chronic depression, alcohol abuse disorder, dependent personality disorder, and a reading disability.

In his first assignment of error, defendant argues that the trial court erred in prohibiting Dr. Warren, who testified as an expert in forensic psychology, from testifying that defendant was not acting with a "cool state of mind" during the commission of the murders. During a voir dire on the admissibility of Dr. Warren's testimony, the following exchange occurred: Q: Dr. Warren, based on your experience and your review of the records that you described concerning [defendant], do you have an opinion as to whether at the time of the events that Mr. Boyd is charged with, he was acting in a cool state of mind?

A: Yes, sir.

Q: What is that opinion?

A: Because of his emotional problems and in the context of the situation, the context of the situation and his alcohol consumption, I believe that all of his bottled up feelings, that related to his dependent relationship with his wife, exploded at the time of the shooting. That his manner and statements that I have seen indicate an impulsive and explosive act. And if it is possible to use the specific question, that this is not in a calm and cool and rational state of mind, but rather was an impulsive outburst of emotion.

The trial court then questioned Dr. Warren about his understanding of the legal definition of "cool state of mind" and explained the pattern jury instruction that defines the legal concept. After this exchange, Dr. Warren conceded that he "thought he had a better understanding of the legal concept," but from the court's instructions, his understanding was "not as precise" as he thought. **332 Dr. Warren then admitted that the legal import of "cool state of mind" was clearly not the same as the medical meaning, to which he was referring.

In light of this admission and after considering arguments from counsel, the trial court ruled that Dr. Warren's testimony that defendant did not act with a "cool state of mind" was inadmissible under Rule 403 of the Rules of Evidence in that such testimony would confuse the jury as to the legal import of the phrase. See N.C.G.S. § 8C-1, Rule 403 (1992) (allowing court to exclude otherwise relevant testimony when the probative value of the testimony is substantially outweighed by a danger of confusing the issues).

Defendant argues that Dr. Warren's expert opinion that defendant did not act with a cool state of mind is admissible under the rules of evidence and precedent established by this Court. We disagree and conclude that the trial court did not err by preventing Dr. Warren from using the phrase "cool state of mind" to convey his opinion to the jury that defendant lacked the specific intent necessary to commit premeditated and deliberate murder at the time of the shootings.

* * *

The (e)(11) aggravating circumstance itself does not violate due process by reason of unconstitutional vagueness. State v. Williams, 305 N.C. 656, 685, 292 S.E.2d 243, 261, cert. denied, 459 U.S. 1056, 103 S.Ct. 474, 74 L.Ed.2d 622 (1982). Further, we conclude that the evidence in the present case was sufficient to support its submission to the jury.

The State presented substantial evidence tending to show that after defendant fatally shot Dillard Curry, he fired his weapon at Julie *720 Boyd, intending to kill her. The jury, by returning guilty verdicts of first-degree murder for each killing, found beyond a reasonable doubt that defendant had committed the two murders. We have previously held under similar circumstances that the submission of one killing as an aggravating circumstance for another murder under the (e)(11) aggravating circumstance is correct and does not violate due process of law or double jeopardy. State v. Pinch, 306 N.C. 1, 30-31, 292 S.E.2d 203, 225, cert. denied, 459 U.S. 1056, 103 S.Ct. 474, 74 L.Ed.2d 622 (1982), overruled on other grounds by State v. Robinson, 336 N.C. 78, 443 S.E.2d 306 (1994), cert. denied, 513 U.S. 1089, 115 S.Ct. 750, 130 L.Ed.2d 650 (1995), and by State v. Benson, 323 N.C. 318, 372 S.E.2d 517 (1988).

Thus, the trial court correctly allowed the jury to consider the murder of Dillard Curry as the crime of violence to support the (e)(11) aggravating circumstance in sentencing defendant for the murder of Julie Boyd. Likewise, the trial court was correct to allow the jury to consider the murder of Julie Boyd as the crime of violence that supported the (e)(11) aggravator in sentencing defendant for the murder of Dillard Curry.

In summary, therefore, the trial court properly submitted the aggravating circumstance that each of the murders for which defendant stood convicted was part of a course of conduct in which he engaged and which included the commission of other crimes of violence against another person. Id.; see also State v. Chapman, 342 N.C. 330, 345, 464 S.E.2d 661, 669-70 (1995); State v. Cummings, 332 N.C. 487, 507-12, 422 S.E.2d 692, 703-06 (1992); State v. Brown, 306 N.C. 151, 183, 293 S.E.2d 569, 589, cert. denied, 459 U.S. 1080, 103 S.Ct. 503, 74 L.Ed.2d 642 (1982). [20]

Defendant argues, however, that the trial court did not rely solely on the separate killings for which defendant was found guilty as the other crime of violence. He contends that the trial court improperly instructed the jury that it also could consider an alleged and uncharged assault on Craig Curry as that other crime. Defendant argues that relying on this alleged assault was error in that a prerequisite to the submission of the course of conduct circumstance is that defendant be charged with the other crime of violence. We disagree.

N.C.G.S. § 15A-2000(e)(11) does not require that defendant be charged or convicted of the "other crimes of violence" before that aggravating circumstance may be submitted. Unlike other aggravating circumstances that require a conviction, the course of conduct aggravating circumstance is supported not by convictions, but crimes. Compare N.C.G.S. § 15A-2000(e)(11) with N.C.G.S. § 15A-2000(e)(2) (1995) ("defendant had been previously convicted of *721 another capital felony") and N.C.G.S. § 15A-2000(e)(3) ("defendant had been previously convicted of a felony involving the use or threat of violence").

Further, in several decisions, this Court has found that the course of conduct aggravating circumstance was properly submitted when the "other crimes of violence" consisted of evidence of uncharged crimes. State v. Price, 326 N.C. 56, 80-83, 388 S.E.2d 84, 98-99 (course of conduct supported by uncharged arson), sentence vacated on other grounds, 498 U.S. 802, 111 S.Ct. 29, 112 L.Ed.2d 7 (1990); State v. Vereen, 312 N.C. 499, 324 S.E.2d 250 (course of conduct supported by uncharged assault with a deadly weapon inflicting serious bodily injury), cert. denied, 471 U.S. 1094, 105 S.Ct. 2170, 85 L.Ed.2d 526 (1985).

As our decisions have instructed, the import of the (e)(11) aggravating circumstance is not that defendant has been charged or convicted of such crimes, but that such crimes connect with the capital murder, whether temporally, by modus operandi or motivation, or by some common scheme or pattern. Cummings, 332 N.C. at 510, 422 S.E.2d at 705.

In the case sub judice, the State presented compelling evidence that immediately after fatally shooting both Dillard Curry and Julie Boyd, defendant turned his weapon and attention toward Craig Curry. Curry testified that while defendant reloaded his weapon, defendant yelled to him, "Come on up here, Craig. I am going to kill you too." Further, defendant testified at trial that

I remember that he [Craig Curry] was standing--I can't swear that it was him. The silhouette was facing toward me with his arm out. I don't know if he had a gun or was just pointing, so I came up with the pistol and started shooting at the silhouette holding it and it took off running across the street. This was substantial evidence that defendant assaulted Craig Curry with a deadly weapon with the intent to kill him.

Thus, the trial court did not err by instructing the jury that it could find as an aggravating circumstance that defendant committed the crime of assault with a deadly weapon with the intent to kill as part of the same course of conduct with the killing of the victims. Defendant's assignment of error is without merit and is overruled.

* * *

Having concluded that defendant's trial and separate capital sentencing proceeding were free from prejudicial error, we turn to the duties reserved by N.C.G.S. § 15A-2000(d)(2) exclusively for this Court in capital cases. It is our duty in this regard to ascertain (1) whether the record supports the jury's finding of the aggravating circumstance on which the sentence of death was based; (2) whether the death sentence was entered under the influence of passion, prejudice, or other arbitrary consideration; and (3) whether the death sentence is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and defendant. N.C.G.S. § 15A-2000(d)(2).

After thoroughly examining the record, transcripts, *724 and briefs in the present case, we conclude that the record fully supports the aggravating circumstance found by the jury. Further, we find no indication that the sentence of death in this case was imposed under the influence of passion, prejudice, or any other arbitrary consideration. We must turn then to our final statutory duty of proportionality review.

In the present case, defendant was convicted of two counts of first-degree murder under the theory of malice, premeditation, and deliberation. The jury found as the sole aggravating circumstance that each murder was part of a course of conduct in which defendant engaged and which included the commission by defendant of other crimes of violence against another person or persons, N.C.G.S. § 15A-2000(e)(11).

One or more jurors found two statutory mitigating circumstances for each murder, that the murder was committed while defendant was under the influence of mental or emotional disturbance, N.C.G.S. § 15A-2000(f)(2), and that the capacity of defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law was impaired, N.C.G.S. § 15A-2000(f)(6). In addition, one or more jurors found eighteen nonstatutory mitigating circumstances.

In our proportionality review, it is proper to compare the present case with other cases in which this Court has concluded that the death penalty was disproportionate. State v. McCollum, 334 N.C. 208, 240, 433 S.E.2d 144, 162 (1993), cert. denied, 512 U.S. 1254, 114 S.Ct. 2784, 129 L.Ed.2d 895 (1994). We do not find this case substantially similar to any case in which this Court has found the death penalty disproportionate and entered a sentence of life imprisonment. Each of those cases is distinguishable from the present case. None of the seven cases in which this Court has found the death penalty disproportionate involved a defendant convicted of murdering multiple victims. See **341 State v. Benson, 323 N.C. 318, 372 S.E.2d 517 (1988); State v. Stokes, 319 N.C. 1, 352 S.E.2d 653 (1987); State v. Rogers, 316 N.C. 203, 341 S.E.2d 713 (1986), overruled on other grounds by State v. Vandiver, 321 N.C. 570, 364 S.E.2d 373 (1988); State v. Young, 312 N.C. 669, 325 S.E.2d 181 (1985); State v. Hill, 311 N.C. 465, 319 S.E.2d 163 (1984); State v. Bondurant, 309 N.C. 674, 309 S.E.2d 170 (1983); State v. Jackson, 309 N.C. 26, 305 S.E.2d 703 (1983).

Further, we have said that the fact that defendant is a multiple killer is "[a] heavy factor to be weighed against the defendant." State v. Laws, 325 N.C. 81, 123, 381 S.E.2d 609, 634 (1989), sentence *725 vacated on other grounds, 494 U.S. 1022, 110 S.Ct. 1465, 108 L.Ed.2d 603 (1990); see also State v. McLaughlin, 341 N.C. 426, 462 S.E.2d 1 (1995), cert. denied, 516 U.S. 1133, 116 S.Ct. 956, 133 L.Ed.2d 879 (1996); State v. Garner, 340 N.C. 573, 459 S.E.2d 718 (1995), cert. denied, 516 U.S. 1129, 116 S.Ct. 948, 133 L.Ed.2d 872 (1996); State v. Robbins, 319 N.C. 465, 356 S.E.2d 279, cert. denied, 484 U.S. 918, 108 S.Ct. 269, 98 L.Ed.2d 226 (1987).

Because the jury in the present case found defendant guilty of two counts of first-degree murder, this case is easily distinguishable from the seven cases in which the death penalty has been found disproportionate by this Court.

It is also proper for this Court to "compare this case with the cases in which we have found the death penalty to be proportionate." McCollum, 334 N.C. at 244, 433 S.E.2d at 164. We have reviewed all of the cases in the pool of similar cases used to fulfill this statutory duty and conclude the present case is more similar to certain cases in which we have found the sentence of death proportionate than to those in which we have found the sentence disproportionate or those in which juries have consistently returned recommendations of life imprisonment.

Accordingly, we conclude that the sentences of death recommended by the jury and ordered by the trial court in the present case are not disproportionate. For the foregoing reasons, we hold that defendant received a fair trial, free of prejudicial error, and that the sentences of death entered in the present case must be and are left undisturbed. NO ERROR.

Boyd v. Lee, Not Reported in F.Supp.2d, 2003 WL 22757932 (2004) (Habeas)

SHARP, Magistrate J.
Petitioner Kenneth Lee Boyd, a North Carolina death row inmate, filed this habeas corpus action pursuant to 28 U.S.C. § 2254, challenging his 1994 state court convictions for two counts of first-degree murder. Boyd was convicted of murdering his estranged wife, Julie Curry Boyd, and her father, Thomas Dillard Curry. The jury recommended a sentence of death on each conviction and the judge imposed two death sentences.

Petitioner seeks a writ of habeas corpus discharging him from his confinement and restraint, setting aside his convictions, and relieving him of his sentences of death. Petitioner Boyd is represented by attorneys Robert N. Hunter, Jr. and Richard M. Greene. Respondent R.C. Lee of Central Prison ("the State") is represented by the North Carolina Attorney General, with special deputy A. Danielle Marquis appearing.

THE STATE COURT PROCEEDINGS

Petitioner Boyd was convicted of two counts of first-degree murder at the October 17, 1988 Criminal Session of the Superior Court of Rockingham County, North Carolina. On Petitioner's direct appeal, the Supreme Court of North Carolina set aside the convictions and ordered a new trial due to legal error of the trial judge in conducting unrecorded, private bench conferences with prospective jurors during jury selection.

Petitioner was tried a second time at the June 13, 1994 Rockingham Criminal Session. On July 7, 1994, Petitioner was convicted of two first-degree murders and sentenced to death for each murder. Petitioner's convictions and sentences were affirmed by the Supreme Court of North Carolina on August 20, 1996. See State v. Boyd, 343 N.C. 699 (1996). The Supreme Court of the United States denied Petitioner's request for certiorari review on January 21, 1997. See Boyd v. North Carolina, 519 U.S. 1096 (1997).

On November 23, 1997, Petitioner filed a Motion for Appropriate Relief ("MAR") in Rockingham County Superior Court and, thereafter, an amendment to the Motion for Appropriate Relief ("AMAR"). Petitioner's amended motion was denied on August 6, 1999, without an evidentiary hearing. On June 15, 2000, the Supreme Court of North Carolina denied Petitioner's Petition for Writ of Certiorari. On August 10, 2000, Petitioner filed an Application for a State Writ of Habeas Corpus in Guilford County Superior Court. On August 10, 2000, the court denied the application. The North Carolina Supreme Court denied certiorari review on March 1, 2001.

On August 9, 2000, Petitioner filed his Petition for Writ of Habeas Corpus with this Court. On January 8, 2001, Respondent filed an Answer and a Motion to Dismiss for Procedural Default. The parties have briefed their positions and the Petition is now ready for a ruling. See Rule 8(a), Rules Governing § 2254 Cases.

THE CLAIMS OF THE HABEAS CORPUS PETITION

Petitioner Boyd presents the following seventeen claims in his habeas petition:

I. Petitioner's indictments were constitutionally defective in that they: A. failed to allege sufficient facts or failed to allege the elements of the crime of which he was tried and convicted in violation of Petitioner's Fifth, Sixth, Eighth and Fourteenth Amendment Rights to due process and adequate notice. B. were vague, ambiguous and unclear as to what crimes the grand jury had charged Petitioner with committing. C. gave insufficient notice of the crime of assault with a deadly weapon with intent to kill, and because Petitioner was not indicted for that crime independently the trial court lacked jurisdiction to submit this crime as an aggravating circumstance.

II. Trial counsel were ineffective when they: A. advised Petitioner to waive his federal constitutional right to challenge the grand jury, grand jury foreman and petit jury on the basis of racial discrimination in return for individual voir dire. B. failed to object to the prosecutor's systematic exclusion of members of a cognizable group in violation of the state constitution and the equal protection clause, and failed to make an adequate record of the prosecutor's actions.

III. The State's failure to comply fully with its Ake obligations violated Petitioner's due process rights.

IV. Trial counsel's failure to immediately assert, secure and protect Petitioner's Ake rights to an independent mental health expert prejudiced Petitioner's right to a fundamentally fair trial and constituted ineffective assistance of counsel.

V. Petitioner's Sixth Amendment right to effective assistance of counsel and Petitioner's Fifth and Fourteenth Amendment rights against self-incrimination were violated as a result of the excessive scope of the psychiatric evaluation conducted at Dorothea Dix Hospital.

VI. The state court committed constitutional error by denying Petitioner the right to rehabilitate potential jurors challenged by the State during voir dire for their opinion concerning the death penalty, in violation of Petitioner's rights guaranteed by the Sixth, Eighth and Fourteenth Amendments.

VII. The ineffective assistance of trial counsel severely prejudiced Petitioner and violated his Sixth and Fourteenth Amendment rights in the following respects: A. trial counsel failed to present, in a competent manner, readily available evidence of voluntary intoxication during both the guilt/innocence and sentencing phases of the trial. B. at both the guilt/innocence and sentencing phases, trial counsel failed to investigate adequately and present evidence concerning Petitioner's "post traumatic stress disorder." C. trial counsel failed to seek relief for the violation of Petitioner's right to a speedy trial under the Fifth, Sixth and Fourteenth Amendments of the U.S. Constitution. D. trial counsel, without consent of Petitioner, admitted that Petitioner's conduct was sufficient for the jury to find an aggravating factor.

VIII. The trial court committed error by allowing the prosecutor to make arguments which were calculated to inflame the jury with passion and/or prejudice, including references to the Bible, in violation of Petitioner's rights guaranteed by the Sixth and Fourteenth Amendments.

IX. North Carolina's sentencing statute as applied to Petitioner violated his due process rights by allowing the jury to consider as aggravating circumstances the same crimes for which Petitioner had just been convicted and an uncharged crime committed during the murders.

X. The trial court erroneously instructed that the jury had a "duty" to recommend the death sentence upon certain findings.

XI. The trial court's instructions erroneously placed the burden of proof of mitigating circumstances upon Petitioner.

XII. The trial court committed constitutional error by refusing to instruct the jury on lack of parole eligibility in violation of Petitioner's rights guaranteed by the Sixth and Fourteenth Amendments.

XIII. Trial counsel were ineffective at the sentencing phase of the trial because they failed to present any evidence of the statutory mitigating factor of Petitioner's lack of significant criminal record.

XIV. Petitioner was denied effective assistance of appellate counsel because appellate counsel failed to pursue certain legal issues on appeal.

XV. The North Carolina Supreme Court's method of proportionality review violated Petitioner's due process rights. A. The North Carolina Supreme Court violated Petitioner's federal constitutional rights in making its proportionality decision because it considered evidence outside the record and denied Petitioner the opportunity to rebut, deny, or explain. B. The North Carolina Supreme Court violated Petitioner's federal constitutional rights in making its proportionality decision because the court went outside the record, thus violating the Eighth Amendment right to meaningful appellate review.

XVI. Petitioner was denied due process of law in the disposition of his motion for appropriate relief in that the procedures used were arbitrary and capricious, the judge engaged in ex parte communication with the assistant attorney general handling the case, and Petitioner was not allowed adequate discovery, a pre-hearing conference, or an evidentiary hearing, all of which denied him a full and fair opportunity to present his Motion for Appropriate Relief.

XVII. The findings of fact and conclusions of law contained in the order denying the Motion for Appropriate Relief are not supported by the record, or are inadequately supported by the record, thereby denying Petitioner due process of law.

THE EVIDENCE PRESENTED AT TRIAL

The Supreme Court of North Carolina summarized the evidence presented at Petitioner's trial in 1994 as follows: [O]n March 4, 1988 defendant entered the home of his estranged wife's father, where his wife and children were then living, and shot and killed both his wife and her father with a .357 Magnum pistol. The shootings were committed in the presence of defendant's children--Chris, age thirteen; Jamie, age twelve; and Daniel, age ten--and other witnesses, all of whom testified for the State. Immediately after the shootings, law enforcement officers were called to the scene. As they approached, defendant came out of some nearby woods with his hands up and surrendered to the officers.

Later, after being advised of his rights, defendant gave a lengthy inculpatory statement in which he described the fatal shootings: I walked to the back of the door [of Dillard Curry's house] and opened it. It was unlocked. As I walked in, I saw a silhouette that I believe was Dillard. It was just like I was in Vietnam. I pulled the gun out and started shooting. I think I shot Dillard one time and he fell. Then I walked past him and into the kitchen and living room area. The whole time I was pointing and shooting. Then I saw another silhouette that I believe was Julie come out of the bedroom. I shot again, probably several times. Then I reloaded my gun. I dropped the empty shell casings onto the floor. As I reloaded, I heard someone groan, Julie I guess. I turned and aimed, shooting again. My only thoughts were to shoot my way out of the house. I kept pointing and shooting at anything that moved. I went back out the same door that I came in, and I saw a big guy pointing a gun at me. I think this was Craig Curry, Julie's brother. I shot at him three or four times as I was running towards the woods.

Dr. Patricio Lara and Dr. John Warren both testified for defendant as experts in forensic psychology. Dr. Lara testified that at the time of the offenses, defendant suffered from an adjustment disorder with psychotic emotional features, alcohol abuse, and a personality disorder with predominate compulsive dependent features.

Further, Dr. Lara opined that defendant's emotional condition was impaired and that defendant suffered from some level of alcohol intoxication at the time of the offenses. Likewise, Dr. Warren opined that at the time of the offenses defendant suffered from chronic depression, alcohol abuse disorder, dependent personality disorder, and a reading disability.

* * *

CONCLUSION

For reasons set forth above, IT IS RECOMMENDED that the habeas corpus petition of Kenneth Lee Boyd be denied and dismissed. Further, IT IS ORDERED that Petitioner's Application for Leave to Conduct Discovery (Pleading No. 31) is DENIED, this Court finding no showing of good cause for discovery. And IT IS FURTHER ORDERED that Petitioner's motion to "defer ruling" (Pleading No. 34) is DENIED in view of the North Carolina Supreme Court's decision in State v. Hunt, ___ N.C. ____, No. 5A86-8, 2003 WL 21657380 (N.C. July 16, 2003). M.D.N.C.,2003.

Kenneth Lee Boyd