Lawyers, Family Members Appeal in Basden Case

By Estes Thompson - Durham Herald Sun

AP December 4, 2002

RALEIGH, N.C. -- A condemned man waited on North Carolina's death row as the governor considered arguments made for and against changing his sentence to life without parole.

Lawyers for Ernest Basden, 49, made their case for clemency Tuesday to Gov. Mike Easley, as did prosecutors and relatives of the victim, Kinston insurance agent Billy White. Basden attorney John Loftin said clemency was his client's only hope to avoid death by injection at 2 a.m. Friday.

In an interview in the Central Prison visiting area, Basden talked from behind bars and thick glass about his feelings as the execution draws nearer. "Nobody wants to die," he said, adding that he had become a Christian in prison and was prepared to die if Easley denies his clemency request. Basden also said he was sorry for the crime.

He pulled the trigger on the shotgun that killed White, whose wife wanted him killed and recruited Basden's nephew to find a gunman. "I'm very sorry for their loss," he said when asked what he would say to White's family. "If there was any way at all I could undo it I surely would. I've never denied that I should be here (in prison)."

Basden and two accomplices lured White to a deserted Jones County logging road and Basden fired at him twice with a single-shot shotgun about dusk on Jan. 20, 1992. White had been contacted by Taylor, who posed as a man who wanted to buy a life insurance policy. The accomplices were White's wife, Sylvia, and Taylor.

During the clemency meetings, prosecutors told Easley the case was properly tried and Basden was convicted primarily because he confessed to the crime. Defense lawyers said Basden was under the influence of Taylor, who gave him drugs and alcohol, was depressed and that his sentence was harsher than those of his accomplices.

"That's like a broken record," said District Attorney Dewey Hudson, whose office handled the original prosecution. "Jurors are very reluctant to give the death penalty except for the one who does the act." White's daughter, Teresa White Murray of Dover, said her father was killed in cold blood. "I know he needs to be executed," Murray said after talking to Easley. "He shot him twice with a shotgun; he shot him once and he fell on the ground and he came over and shot him again."

She said Basden testified during his trial that White had the look of "a startled deer" when the gun didn't fire the first time. Then Basden fired, reloaded and fired again, she said. Basden's sister, Rose Clark of Kinston, said her brother may not have known what he was doing because Taylor plied him with alcohol and drugs and because of his depression. "Taylor said Ernest was so drugged up he didn't know where he was," Clark said. "There was a period of time where he was able to be drawn into a darker side of life. I pleaded with the governor for mercy."

"I begged him for mercy," Leonard Basden said. "The judicial system in this just hasn't been fair. The man without money is the one on death row." Basden's supporters have said his court-appointed defense lawyer didn't have time to prepare after his first defense lawyer died. But prosecutors said the lawyer who handled Basden's defense had 42 years of experience and had handled more than a dozen capital trials.

Defense lawyers gave the governor petitions and a videotape in which six jurors said they voted for a death sentence, but would have opted for life without parole if that sentence had been available. Such a sentence has since been approved by the Legislature in first-degree murder cases.

Press Release from Basden Attorneys

Counsel for Ernest Basden

Ernest Basden Faces Execution Despite Numerous Concerns

Raleigh, NC - November 12, 2002 - As the state prepares for its first execution in more than a year, questions about the case of Ernest Basden are once again spotlighting significant problems with the application of the death penalty in North Carolina. "By executing Ernest Basden, the State will place its seal of approval on this grossly disproportionate treatment of co-conspirators," says former state Supreme Court Justice Harry Martin, one of Basden's appellate attorneys. "While capital punishment demands the utmost fairness, Ernest Basden has not received it. Court after court has ëstrained at the gnat, and swallowed a camelí in passing on whether Ernest has received fundamental fairness."

Basden's role in the 1992 murder of Billy White is not in dispute. However, the facts that emerged during and after his trial revealed that his two co-defendants, Billy Whiteís wife Sylvia and Basdenís nephew Lynwood Taylor, masterminded the killing and plotted the details for more than a year.

Eventually Taylor, a drug dealer and police informant, pressured his sick, broke and drug-dependent uncle to join the conspiracy, even plying him with narcotics to help him overcome his resistance. The conservative Fourth Circuit Court of Appeals later stated that Basden was "an intoxicated, manipulated rube." Nevertheless, Basden was the first to trial and the only one given the death sentence; the others were offered plea bargains.

Moreover, Sylvia White was later convicted of murdering her four-year-old stepson; the Jones County prosecutor did not seek the death penalty in that case. Taylor was also given leniency in his sentence for Billy Whiteís murder because he helped the state win conviction against Sylvia in the stepson case.

Basden, whose testimony against Sylvia was equally if not more critical, received no such favorable treatment. While Ernest Basden faces execution, White and Taylor will be eligible for parole in just a few years. "To execute Ernest and release the more culpable defendants, who happened to have better lawyers and better connections with law enforcement, would be a grave injustice," says Ken Rose, Director of the Center for Death Penalty Litigation.

Indeed, as is so often true of those who receive the death penalty, Basden's lawyers offered questionable representation at trial. His first attorney, Tim Merritt, was dying of leukemia as he prepared his defense; he withdrew only six weeks before the trial and died a few months later, having spent a mere 40 hours on the case over the course of a year. His replacement had little time to prepare, and the judge refused a defense request for a postponement. Later, the Fourth Circuit found one of the defense oversights "particularly troubling."

None of this changes the fact that the jury imposed a death sentence. But the jurors themselves asked at trial for the option of a life sentence without parole, and they maintain today that this was in fact their preference. A death sentence, they were convinced, meant "he would never actually be executed but would simply serve a longer prison sentence than if he was given life," according to one juror.

Given Basden's relative culpability, his remorse, his lack of a violent past and other mitigating factors, basic fairness demands that his sentence be commuted to life. Otherwise, the state of North Carolina risks further erosion of public confidence in its ability to apply the death penalty with any semblance of consistency.

For more information contact attorneys John D. Loftin (919-732-9748) or Cynthia Adcock (919-613-7203). Ernest Basden is also represented by former North Carolina Supreme Court Justice Harry C. Martin and his son, J. Matthew Martin.

State of North Carolina v. Ernest West Basden (1994)

Appeal as of right pursuant to N.C.G.S. [Section] 7A-27(a) from a judgment imposing a sentence of death entered by Stevens, J., at the 15 March 1993 Criminal Session of Superior Court, Duplin County, upon a jury verdict of guilty of first-degree murder. Defendant's motion to bypass the Court of Appeals as to an additional judgment imposed for conspiracy to commit murder was granted 7 April 1994. Heard in the Supreme Court 10 October 1994.

Michael F. Easley, Attorney General, by Clarence J. DelForge III, Assistant Attorney General, for the State. J. Kirk Osborn for defendant-appellant.

PARKER, Justice.

Defendant was tried capitally on an indictment charging him with the first-degree murder of Billy Carlyle White. The jury returned a verdict finding defendant guilty of first-degree murder on the theory of premeditation and deliberation. Following a sentencing proceeding pursuant to N.C.G.S.

[Section] 15A-2000, the jury recommended that defendant be sentenced to death. The jury also found defendant guilty of conspiracy to commit murder and the trial court sentenced defendant to ten years, such sentence to be served after the death sentence. For the reasons discussed herein, we conclude the jury selection, guilt-innocence phase, and sentencing proceeding were free from prejudicial error and the death sentence is not disproportionate.

The State's evidence tended to show Sylvia White wanted to kill her husband, Billy White, for at least a year. She unsuccessfully tried to poison him with wild berries and poisonous plants. She also enlisted the help of Linwood Taylor, defendant's nephew. Taylor then approached defendant and told him he needed a hit man and asked defendant if he wanted the job. Defendant initially thought the idea was crazy and refused. Later, when defendant got into financial difficulty he asked Taylor if the offer still stood and agreed to kill White.

Taylor developed a scheme to lure White, who was an insurance salesman, to a location where he could be killed. Taylor pretended to be a wealthy businessman from out of town who had bought property in Jones County and wanted to buy insurance. Taylor arranged for White to meet him in a wooded rural area at 8:30 p.m. Sunday, 20 January 1992. On the day of the murder, Taylor and defendant drove to the designated spot and waited for White.

When White arrived, Taylor got out of his car and introduced himself to White as Tim Conners. Then Taylor said he needed to use the bathroom and stepped to the other side of the road. Defendant got out of the car and picked up a twelve-gauge shotgun he had placed on the ground beside the driver's side of the car. Defendant pointed the gun at White and pulled the trigger. The shotgun did not fire because defendant had not cocked the hammer back.

Defendant then cocked the hammer and fired. White was knocked to the ground. Defendant removed the spent shell casing and loaded another shell into the shotgun. Defendant then approached White, who was lying faceup on the ground, and while standing over White, shot him again. At trial the pathologist testified that White bled to death from massive shotgun wounds to the right upper chest and left lower abdomen. Although his aorta was nearly severed from his heart, White did not die instantly but would have remained conscious for some period of time and would have felt pain.

Defendant and Taylor drove back to Taylor's house after the shooting. Taylor said he thought he left a map at the crime scene so they returned and went through White's pockets taking a blank check, wallet, and gold ring. They then returned to Taylor's house and burned all their clothing in the backyard. They also sawed the shotgun into three or four pieces with a hacksaw, put the pieces into a bucket of cement, and threw it over a bridge into the Neuse River. Taylor gave defendant three hundred dollars.

Prior to defendant's arrest, police officers retrieved two metal base portions of spent shotgun shells which were found in ashes from the fire in Taylor's backyard. Forensic examination indicated they were consistent with twelve-gauge shotgun shells and could have been fired from the same weapon. Officers also went to defendant's repair shop in Kinston and retrieved a man's gold-tone ring with three diamond settings from defendant, who had it in his pocket.

Taylor and Sylvia White were arrested for murder on 12 February 1992. Defendant went to the Jones County Sheriff's Department where Taylor told defendant that he had confessed. Taylor advised defendant to turn himself in and talk to SBI Agent Eric Smith. Defendant was interviewed by Agent Smith and Detective Simms of the Lenoir County Sheriff's Department. After giving some preliminary background information, defendant told the officers that he shot White. The officers immediately read defendant his Miranda rights and defendant signed a written waiver of his rights. Defendant then gave a detailed confession and stated that he killed White because he needed the money.

Defendant presented evidence that he suffered from depression, arthritis, kidney problems, pancreatitis, and drug and alcohol abuse. He is the youngest of ten children. He was extremely close to his mother, who was killed in a car accident when he was fourteen years old, and he never really recovered from her death. Defendant had been married once for about five years and was a good father to his stepchildren. Defendant was considered by friends and family to be a loner.

Dr. J. Don Everhart, a clinical psychologist, testified that defendant has a dependent personality disorder; he is lacking in self-confidence and clings to stronger people, performing unpleasant tasks for them to retain their support. Dr. Everhart further testified that defendant has an avoidance personality disorder; he is shy and uncomfortable in social settings and is easily isolated. Finally, defendant has a schitzotypal personality disorder, with feelings of being disembodied and disassociated from life events.

* * * *

PROPORTIONALITY

Having found defendant's trial and capital sentencing proceeding free of prejudicial error, we are required by statute to review the record and determine (i) whether the record supports the jury's finding of the aggravating circumstances upon which the court based its sentence of death; (ii) whether the sentence was imposed under the influence of passion, prejudice, or any other arbitrary factor; and (iii) 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. [Section] 15A-2000(d)(2) (1988); State v. Sexton, 336 N.C. 321, 376, 444 S.E.2d 879, 910-11, cert. denied, U.S. , L. Ed. 2d , 1994 WL 571603 (1994).

In this case, the jury found the sole aggravating circumstance that the murder was committed for pecuniary gain. N.C.G.S. [Section] 15A-2000(e)(6). We conclude the evidence supports the jury's finding of this aggravating circumstance. After thoroughly reviewing the record, transcripts, and briefs submitted by the parties, we further conclude there is nothing to suggest the sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary factor.

We turn now to our final statutory duty of proportionality review and "determine whether the death sentence in this case is excessive or disproportionate to the penalty imposed in similar cases, considering the crime and the defendant." State v. Brown, 315 N.C. 40, 70, 337 S.E.2d 808, 829 (1985), cert. denied, 476 U.S. 1165, 90 L. Ed. 2d 733 (1986), overruled on other grounds by State v. Vandiver, 321 N.C. 570, 364 S.E.2d 373 (1988). We compare similar cases from a pool of

all cases arising since the effective date of our capital punishment statute, 1 June 1977, which have been tried as capital cases and reviewed on direct appeal by this Court and in which the jury recommended death or life imprisonment or in which the trial court imposed life imprisonment after the jury's failure to agree upon a sentencing recommendation within a reasonable period of time.

State v. Williams, 308 N.C. 47, 79, 301 S.E.2d 335, 355, cert. denied, 464 U.S. 865, 78 L. Ed. 2d 177, reh'g denied, 464 U.S. 1004, 78 L. Ed. 2d 704 (1983). The pool, however, includes only those cases which have been affirmed by this Court. State v. Stokes, 319 N.C. 1, 19-20, 352 S.E.2d 653, 663 (1987). We have also recently clarified the composition of the pool so that it accounts for post-conviction relief awarded to death-sentenced defendants. See State v. Bacon, 337 N.C. 66, 446 S.E.2d 542 (1994).

Because the "proportionality pool" is limited to cases involving first-degree murder convictions, a post-conviction proceeding which holds that the State may not prosecute the defendant for first-degree murder or results in a retrial at which the defendant is acquitted or found guilty of a lesser included offense results in the removal of that case from the "pool." When a post-conviction proceeding results in a new capital trial or sentencing proceeding, which, in turn, results in a life sentence for a "death-eligible" defendant, the case is treated as a "life" case for purposes of proportionality review. The case of a defendant sentenced to life imprisonment at a resentencing proceeding ordered in a post-conviction proceeding is similarly treated. Finally, the case of a defendant who is either convicted of first-degree murder and sentenced to death at a new trial or sentenced to death in a resentencing proceeding ordered in a post-conviction proceeding, which sentence is subsequently affirmed by this Court, is treated as a "death-affirmed" case.

Id. at 107, 446 S.E.2d at 564. "[A] conviction and death sentence affirmed on direct appeal is presumed to be without error, and . . . a post-conviction decision granting relief to a convicted first-degree murderer is not final until the State has exhausted all available appellate remedies." Id. at 107 n.6, 446 S.E.2d at 564 n.6.

This Court has held the death penalty to be disproportionate in only seven cases. 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). Of these seven cases, three involved the pecuniary gain aggravating circumstance in a robbery murder: State v. Benson, State v. Young, and State v. Jackson. However, none of these cases is similar to the present case.

In Benson, the victim died of a cardiac arrest after being robbed and shot in the legs by defendant. The jury found the aggravating circumstance that the crime was committed for pecuniary gain. This Court found the death penalty disproportionate because defendant was convicted solely on the theory of felony murder and the evidence that he fired at the victim's legs tended to show that he intended only to rob the victim.

Further, defendant pleaded guilty during the trial and acknowledged his wrongdoing before the jury. In the present case, defendant was convicted on the theory of premeditation and deliberation. Defendant planned the murder well in advance to collect a share of the victim's life insurance proceeds.

In Young, the defendant, who had been drinking heavily all day, suggested to two accomplices that they rob and kill the victim so they could buy more liquor. The jury found as aggravating circumstances that the murder was committed for pecuniary gain and during the course of a robbery or burglary. We find it significant that the defendant in Young was only nineteen years old at the time of the crime, whereas defendant here was forty. In addition, as noted above, defendant planned this murder well in advance of the crime and the motive was not to rob but to obtain money as the consequence of the death.

In Jackson, the defendant waived down the victim as the victim passed in his truck. The victim was later discovered in his truck. He had been shot twice in the head and his wallet was gone. The aggravating circumstance found was that the murder was committed for pecuniary gain. In finding the death sentence disproportionate, we emphasized the fact that there was "no evidence of what occurred after defendant left with [the victim]" in his automobile. 309 N.C. at 46, 305 S.E.2d at 717. Here, by contrast, the evidence tended to show that defendant carefully planned and executed the killing to collect life insurance proceeds.

For all the foregoing reasons, we conclude that this case is not similar to any of the above cases, where the death penalty was found to be disproportionate.

Defendant relies on a case in which a contract killer received a life sentence. State v. Lowery, 318 N.C. 54, 347 S.E.2d 729 (1986). In Lowery, the defendant was hired by James Small to kill Small's wife. Defendant strangled and stabbed the victim to death. The jury found the aggravating circumstances that the murder was committed for pecuniary gain and that the murder was especially heinous, atrocious, or cruel. In mitigation, the jury found defendant's capacity to appreciate the criminality of his conduct was impaired under N.C.G.S. [Section] 15A-2000(f)(6). In the present case, however, the jury specifically rejected the (f)(6) mitigating factor thereby finding defendant could and did appreciate the criminality of his conduct.

In the present case the jury found two statutory and five nonstatutory mitigating circumstances, namely, (i) the murder was committed while defendant was under the influence of mental or emotional disturbance, N.C.G.S. [Section] 15A-2000(f)(2); (ii) defendant acted under the domination of another person, N.C.G.S. [Section] 15A-2000(f)(5); (iii) defendant has expressed remorse and concern for the death of the victim and is repentant; (iv) defendant willingly assumed responsibility for his conduct; (v) defendant exhibited religious beliefs and practices since incarceration; (vi) defendant was under stress at the time he committed the offense; (vii) defendant confessed to law enforcement officers at an early stage of the investigation; (viii) defendant cooperated with law enforcement officers at an early stage of the investigation; and (ix) defendant's character and prior conduct were inconsistent with the crime. The jury rejected two statutory mitigating circumstances and six nonstatutory mitigating circumstances.

In comparing this case to similar cases in the pool, however, we emphasize that the proportionality analysis is not merely a mathematical comparison of the number of aggravating and mitigating circumstances in each case. State v. Payne, 337 N.C. 505, 540, 448 S.E.2d 93, 114. Furthermore, "the fact that one, two, or several juries have returned recommendations of life imprisonment in cases similar to the one under review does not automatically establish that juries have 'consistently' returned life sentences in factually similar cases." State v. Green, 336 N.C. 142, 198, 443 S.E.2d 14, 46-7. Instead, this Court compares each case with "roughly similar" cases focusing on "the manner in which the crime was committed and defendant's character, background, and physical and mental condition." State v. Lawson, 310 N.C. 632, 648, 314 S.E.2d 493, 503 (1984), cert. denied, 471 U.S. 1120, 86 L. Ed. 2d 267 (1985).

The proportionality pool currently includes two cases in which this Court has upheld death sentences for contract killings committed under remarkably similar circumstances. State v. Bacon, 337 N.C. 66, 446 S.E.2d 542; State v. Hunt, 323 N.C. 407, 373 S.E.2d 400 (1988), sentence vacated and case remanded in light of McKoy, 494 U.S. 1022, 108 L. Ed. 2d 602 (1990), on remand, 330 N.C. 501, 411 S.E.2d 806 (death sentence reinstated, McKoy error deemed harmless), cert. denied, ___ U.S. ___, 120 L. Ed. 2d 913 (1992).

In Bacon, the defendant and Bonnie Sue Clark planned to murder Clark's husband for the purpose of collecting his life insurance proceeds. Clark enticed the victim into a car where defendant stabbed him sixteen times with a knife. The jury found the only aggravating circumstance submitted, that the murder was committed for pecuniary gain. The jury also found nine mitigating circumstances but refused to find that defendant's capacity to appreciate the criminality of his conduct or to conform his conduct to the law was impaired. This Court found the death sentence proportionate and emphasized that the case "involve[d] a cold, calculated, unprovoked killing, committed for the purpose of collecting life insurance proceeds." 337 N.C. at 108, 446 S.E.2d at 565.

Similarly, in this case the jury found only one aggravating circumstance, that the murder was committed for pecuniary gain, and nine mitigating circumstances. The jury here also rejected the (f)(6) mitigating circumstance, finding defendant's capacity to appreciate the criminality of his conduct or conform his conduct to the requirements of the law was not impaired. Furthermore, as in Bacon, the defendant here planned and committed a cold, calculated, unprovoked killing, in the hope of receiving a portion of the victim's life insurance proceeds.

In Hunt, the defendant had also been hired by a woman to kill her husband. Defendant killed the husband by shooting him with a pistol. Hunt also murdered a second person within a week of the first murder. At sentencing, the jury found as aggravating circumstances that the defendant had previously been convicted of a felony involving the threat of violence to the person and that the murder was committed for pecuniary gain. This Court upheld the death sentence and emphasized that the murder was a contract killing. 323 N.C. at 436, 373 S.E.2d at 418. Therefore, both Bacon and Hunt recognize the death penalty as a proportionate punishment for a contract killing. We hold defendant received a fair trial and capital sentencing proceeding free of prejudicial error and that the death penalty is not disproportionate.

NO ERROR.

State of North Carolina v. Ernest West Basden (1999)

MITCHELL, Chief Justice.

In State v. Green, ___ N.C. ___, ___ S.E.2d ___ (June 9, 1999) (No. 385A84-5), we determined that the discovery provided by N.C.G.S. [section] 15A- 1415(f) applies retroactively to post-conviction motions for appropriate relief in capital cases, but only when such motions were filed before 21 June 1996 and had been allowed or were still pending on that date. As we conclude that defendant in this case filed his motion for appropriate relief prior to 21 June 1996 and it was still pending on that date, he is entitled to discovery under the statute. Accordingly, we reverse the trial court's order denying defendant's motion for discovery.

In 1993, defendant Ernest West Basden was sentenced to death and to a consecutive ten- year term of imprisonment for the murder of Billy Carlyle White and for conspiracy to commit murder. Upon review, we found no error. State v. Basden, 339 N.C. 288, 451 S.E.2d 238 (1994), cert. denied, 515 U.S. 1152, 132 L. Ed. 2d 845 (1995).

Defendant subsequently filed a motion for appropriate relief with the trial court on 30 January 1996 and a motion for discovery pursuant to then- existing law on 7 March 1996. The State responded with a motion for summary denial of defendant's motion for appropriate relief. Judge Lanier entered an order summarily denying and dismissing defendant's motion for appropriate relief on 21 May 1996.

On 29 May 1996, defendant filed a motion seeking to have the trial court vacate its 21 May 1996 order denying and dismissing his motion for appropriate relief. The State then filed a motion asking the trial court to summarily deny defendant's motion to vacate. By letter dated 13 June 1996, Judge Lanier informed defense counsel that he would not make a ruling until after he received defendant's written response to the State's motion. The trial court allowed defendant until 30 June 1996 to respond to the State's motion. Meanwhile, on 21 June 1996, N.C.G.S. [section] 15A- 1415(f) became effective. When defendant filed his response to the State's motion on 30 June 1996, he also included a request for discovery under N.C.G.S. [section] 15A- 1415(f). After considering all the motions filed by defendant and the State, Judge Lanier signed an order on 2 July 1996 summarily denying defendant's motion to vacate.

Shortly thereafter, an execution date was set for defendant by the warden of Central Prison. Defendant then filed a motion with the trial court to vacate his execution date. On 14 August 1996, following a hearing, Judge Lanier signed an order vacating defendant's execution date.

Subsequently, defendant filed a petition for writ of certiorari in this Court seeking our review of the trial court's 2 July 1996 order. We denied the petition. Defendant then filed a motion to reconsider the denial of his petition for writ of certiorari with this Court. On 3 April 1998, this Court filed its decision in State v. Bates, 348 N.C. 29, 497 S.E.2d 276 (1998).

In Bates, we concluded that N.C.G.S. [section] 15A- 1415(f) requires the State to disclose to post- conviction defense counsel in capital cases the complete files used by all law enforcement and prosecutorial agencies in the investigation and prosecution of a defendant. Because we were unable to determine from defendant's petition and the State's response whether defendant had received all of the discovery to which he was entitled, we allowed defendant's motion for the limited purpose of remanding the case to the Superior Court, Duplin County, for reconsideration in light of Bates. State v. Basden, 348 N.C. 284, 501 S.E.2d 920 (1998).

On 31 July 1998, Judge Lanier entered an order in which he made findings of fact and concluded inter alia that defendant's motion for appropriate relief in this case had been denied and was no longer pending on 21 June 1996, the effective date of N.C.G.S. [section] 15A- 1415(f), and that the discovery provision of the statute is not retroactive in such situations. Thus, the trial court denied defendant's motion for discovery.

Defendant petitioned this Court for a writ of certiorari to review the trial court's order denying his discovery motion and for a writ of mandamus. We allowed defendant's petition for writ of certiorari to consider the retroactivity issue but denied his petition for writ of mandamus.

Defendant contends that the trial court erred in denying his discovery motion. He argues before this Court that because he had a motion for appropriate relief still pending in the Superior Court, Duplin County, at the time N.C.G.S. [section] 15A- 1415(f) became effective, he is entitled to the discovery provided for by that statute. We agree.

As noted above, we have previously addressed the issue of whether N.C.G.S. [section] 15A- 1415(f) should be applied retroactively in capital cases where a defendant has had a motion for appropriate relief denied prior to 21 June 1996, the effective date of the statute. In Green, the capital defendant's motion for appropriate relief was denied by the trial court prior to 21 June 1996.

Nevertheless, the defendant wanted the discovery provisions applied retroactively to his case and to all other capital defendants who had motions for appropriate relief denied prior to 21 June 1996. We concluded that N.C.G.S. [section] 15A- 1415(f) applies retroactively in capital cases to defendants whose post- conviction motions for appropriate relief were filed before 21 June 1996 if those motions had been allowed or were still pending on that date. Green, ___ N.C. at ___, ___ S.E.2d at ___, slip op. at 8. We stated:

For purposes of applying the discovery provisions of new subsection (f) [of N.C.G.S. [section] 15A- 1415], we conclude that those provisions apply retroactively to post-conviction motions for appropriate relief in capital cases, but only when such motions were filed before 21 June 1996 and had been allowed or were still pending on that date. In this context, the term "pending" means that on 21 June 1996 a motion for appropriate relief had been filed but had not been denied by the trial court, or the motion for appropriate relief had been denied by the trial court but the defendant had filed a petition for writ of certiorari which had been allowed by, or was still before, this Court. Id.

Here, the trial court summarily denied defendant's motion for appropriate relief on 21 May 1996. Defendant filed a motion to vacate this order, to which the State responded with a motion for summary denial. Although the trial court ultimately denied defendant's motion to vacate, it allowed defendant until 30 June 1996 to respond to the State's motion opposing his motion to vacate. On 21 June 1996, and during the time allotted for defendant to respond, N.C.G.S. [section] 15A- 1415(f) became effective. When defendant filed his response to the State's motion, he also made a discovery request pursuant to N.C.G.S. [section] 15A- 1415(f).

On these facts, we conclude that defendant's motion to vacate the order denying his motion for appropriate relief was essentially a motion to reconsider the denial of his motion for appropriate relief. By allowing defendant time to respond to the State's motion for summary denial of defendant's motion to vacate, the trial court resurrected defendant's motion for appropriate relief.

The trial court's actions amounted to a reconsideration of its order dismissing defendant's motion for appropriate relief, thereby causing that motion for appropriate relief to be pending before the trial court until it was again denied. As a result, final judgment on defendant's motion for appropriate relief was entered on 2 July 1996, after the effective date of N.C.G.S. [section] 15A- 1415(f). Thus, defendant's motion for appropriate relief was pending before the trial court when N.C.G.S. [section] 15A- 1415(f) became effective, and he was entitled to receive discovery under the statute.

For the foregoing reasons, the 31 July 1998 order of the Superior Court, Duplin County, denying defendant discovery pursuant to N.C.G.S. [section] 15A- 1415(f) is reversed. The case is remanded to that court for further proceedings not inconsistent with this opinion.

REVERSED AND REMANDED.