Archie Ludenia by 5HGlR37b

VIEWS: 0 PAGES: 48

									NO. COA 09-434                TWENTY-SEVEN B DISTRICT

                 NORTH CAROLINA COURT OF APPEALS

       ****************************************************

STATE OF NORTH CAROLINA       )
                              )
                              )
          v.                  )    From Cleveland County
                              )
                              )
LUDENIA DANIELLE ARCHIE       )

       ****************************************************

                   DEFENDANT-APPELLANT’S BRIEF

       ****************************************************
                                                  INDEX

TABLE OF CASES AND AUTHORITIES ......................................................iv


QUESTIONS PRESENTED..............................................................................1


STATEMENT OF THE CASE .........................................................................2


STATEMENT OF GROUNDS FOR APPELLATE REVIEW ........................2


STATEMENT OF THE FACTS .......................................................................3


         A.       Mr. Littlejohn Had A Long History Of Violent Behavior ............3
         B.       Defendant Motioned The Court To Allow Mr.
                  Littlejohn’s Mental Health History To Be Presented To
                  The Jury .........................................................................................6
         C.       Mr. Littlejohn Was Shot After He Had Reached Inside
                  Ms. Archie’s Car, Had Been Pushed Away And Was
                  Coming Back .................................................................................8


ARGUMENT .....................................................................................................10


I.       DANIELLE ARCHIE’S CONVICTION MUST BE
         VACATED         BECAUSE                    THE             TRIAL               JUDGE
         COMMITTED STATUTORY ERROR BY EXPRESSING
         HIS OPINION ON EVIDENCE CRITICAL TO THE
         DEFENSE ...............................................................................................13
         A.       The Judge Incorrectly Defined Psychopath And Failed
                  To Limit His Instruction To The Jurors ........................................15
         B.       Copious Evidence Supported The Argument That Ms.
                  Archie Had Cause To Think Mr. Littlejohn Was A
                  Psychopath And Feared Him Because Of This Belief ..................17
                                                           ii


                 1.       Ms. Archie And Other Witnesses Testified To Mr.
                          Littlejohn’s Violent Unstable Personality ..........................17
                 2.       Ms. Archie Knew Mr. Littlejohn Had Been
                          Hospitalized For Mental Illness And Knew He
                          Was Non-Compliant With Medication ...............................21
                 3.       An Expert On The Use Of Force In Self-Defense
                          Testified That Knowledge An Aggressor Was
                          Mentally Ill Factors Into A Person’s Reaction ...................22
        C.       A Judge May Not Express His Opinion On The Evidence
                 In Any Fashion To The Jurors ......................................................23
        D.       Instructing The Jury To Give No Consideration To The
                 Defense Attorney Was Reversible Error .......................................25
        E.       By Instructing The Jury There Was No Evidence Mr.
                 Littlejohn Was A Psychopath, The Court Was Expressing
                 His Opinion On The Most Critical Question Before The
                 Jury ................................................................................................26


II.     DANIELLE ARCHIE’S CONVICTION MUST BE
        VACATED BECAUSE THE COURT PRECLUDED HER
        FROM PRESENTING EVIDENCE WHICH SUPPORTED
        THE REASONABLENESS OF HER FEAR OF MR.
        LITTLEJOHN’S BEHAVIOR WHEN HE WAS IN A
        PSYCHOTIC STATE ...........................................................................30
        A.       The Trial Court’s Exclusion Of Mr. Littlejohn’s Medical
                 Records Disregarded The Purpose Of Evidence
                 Concerning The Victim’s Character For Violence .......................33
        B.       Drugs Proscribed For Mr. Littlejohn And The Impact Of
                 Using Cocaine Instead Was Highly Relevant ...............................36


CONCLUSION ..................................................................................................38

CERTIFICATE OF SERVICE AND FILING ..................................................39

CERTIFICATE OF COMPLIANCE .................................................................39
                                  iii


APPENDIX

    A.     Transcript Of Bench Conference During Defendant’s
           Closing Argument, (Tpp. 1087-1088)
    B.     Statement Clarifying Verbatim Transcript (Record on
           Appeal, p. 11)
    C.     Broughton Hospital Admission/Discharge Summary,
           June 29, 1994, (Record on Appeal p. 278)
                                                         iv




                                TABLE OF AUTHORITIES



Cases
Nash v. Morton, 48 N.C. 3 (1855) ................................................................ 25
State v. Aldridge, 139 N.C. App. 706, 534 S.E.2d 629 (2000)..................... 31
State v. Alston, 38 N.C. App. 219, 247 S.E.2d 726 (1978) .......................... 24
State v. Baldwin, 141 N.C. App. 596, 540 S.E.2d 815 (2000) ..................... 25
State v. Bearthes, 329 N.C. 149, 405 S.E.2d 170 (1991) ............................. 24
State v. Blackstock, 314 N.C. 232, 333 S.E.2d 245 (1985) .......................... 25
State v. Bogle, 324 N.C. 190, 376 S.E.2d 745 (1989) ............................ 31, 32
State v. Brady, 299 N.C. 547, 264 S.E.2d 66 (1980) .................................... 24
State v. Collins, 335 N.C. 729, 440 S.E.2d 559 (1994) ................................ 31
State v. Duke, 360 N.C. 110, 623 S.E.2d 11 (2005) ..................................... 15
State v. Everett, 178 N.C.App. 44, 630 S.E.2d 703 (2006), aff’d 361 N.C.
       217, 639 S.E.2d 442 (2007) ................................................................ 35
State v. Fleming, 350 N.C. 109, 512 S.E.2d 720 (1999) .............................. 24
State v. Freeman, 280 N.C. 622, 187 S.E.2d 59 (1972) ............................... 25
State v. Gardner, 322 N.C. 591, 369 S.E.2d 593 (1988) .............................. 31
State v. Hankerson, 288 N.C. 632, 220 S.E.2d 575 (1975), rev’d on other
       grounds, 432 U.S. 233 (1977) ............................................................ 37
State v. McNeill, 360 N.C. 231, 624 S.E.2d 329 (2006)............................... 27
State v. Norris, 303 N.C. 526, 279 S.E.2d 570 (1981) ................................. 30
State v. Poland, 148 N.C.App. 588, 560 S.E.2d 186 (2002) ........................ 25
State v. Sidbury, 64 N.C. App. 177, 306 S.E.2d 844 (1983) ............ 24, 26, 28
State v. Winfrey, 298 N.C. 260, 258 S.E.2d 346 (1979) ......................... 32, 37
Watkins v. N.C. State Bd. of Dental Examiners, 258 N.C. 190, 593 S.E.2d
     764 (2004)........................................................................................... 15
                                                              v




Statutes
N.C. Gen. Stat. § 7A-27(b) ............................................................................. 2
N.C. Gen. Stat. § 8C-1, Rule 402 ................................................................. 31
N.C. Gen. Stat. § 8C-1, Rule 404 ........................................................... 31, 32
N.C. Gen. Stat. § 8C-1, Rule 405 ..................................................... 31, 32, 34
N.C. Gen. Stat. § 15A-1222 .................................................................... 15, 24
N.C. Gen. Stat. § 15A-1230(a) ..................................................................... 27
N.C. Gen. Stat. § 15A-1232 .......................................................................... 15
N.C. Gen. Stat. § 15A-1443(a) ..................................................................... 38
N.C. Gen. Stat. § 15A-1444(a) ....................................................................... 2

Rules
Rule 26 .......................................................................................................... 39
Rule 4(a) N.C.R.App.P. .................................................................................. 2


Treatises
Kenneth S. Broun, BRANDIS & BROUN ON NORTH CAROLINA EVIDENCE,
     (6th Ed. 2004) ...................................................................................... 30

Other Authorities
DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS, DSM-IV-TR
         (4th Ed. 2000) ...................................................................................... 16

Constitutional Provisions
N.C. Constitution Article I, Sec. 19 .............................................................. 31
N.C. Constitution Article I, Sec. 23 .............................................................. 31
U.S. Const. Amend. V ............................................................................ 26, 31
U.S. Const. Amend. VI ........................................................................... 26, 31
U.S. Const. Amend. XIV ........................................................................ 26, 30
No. COA 09-434                     TWENTY-SEVEN B DISTRICT

                NORTH CAROLINA COURT OF APPEALS

    ****************************************************

STATE OF NORTH CAROLINA        )
                               )
           v.                  )    From Cleveland County
                               )
LUDENIA DANIELLE ARCHIE        )

    ****************************************************

                  DEFENDANT-APPELLANT’S BRIEF

    ****************************************************

                     QUESTIONS PRESENTED

     I.    WHETHER THE TRIAL COURT COMMITTED
           REVERSIBLE ERROR BY EXPRESSING HIS
           OPINION ON EVIDENCE CRITICAL TO THE
           DEFENSE AND INSTRUCTING THE JURY TO
           GIVE NO CONSIDERATION TO THE DEFENSE
           ARGUMENT?
     II.   WHETHER     THE    COURT    COMMITTED
           REVERSIBLE ERROR BY PREVENTING THE
           DEFENDANT FROM PRESENTING EVIDENCE
           SUPPORTING HER TESTIMONY SHE FEARED
           MR. LITTLEJOHN’S PSYCHOTIC STATE?
                                           2


                       STATEMENT OF THE CASE

      On 11 November 2006 Ludenia Danielle Archie was indicted on one

count of first degree murder. On the first day of trial, 21 July 2008, the State

announced it would only proceed on second degree murder. The case came

on for trial at the 21 July 2008 Session of the Cleveland County Superior

Court, the Honorable Forest D. Bridges, presiding. On 1 August 2008 the

jury returned a verdict finding Ms. Archie guilty of second degree murder.

On 4 August 2008, the Court found mitigating factors, no aggravating

factors and the mitigating factors outweighed the aggravating factors. The

Court sentenced Ms. Archie in the mitigated range to a minimum of 96

months and a maximum of 125 months. Notice of appeal was filed on 5

August 2008.

      The settled Record on Appeal was filed in this Court on 1 April 2009

and docketed on 7 April 2009.

   STATEMENT OF THE GROUNDS FOR APPELLATE REVIEW

      This is an appeal of right pursuant to the provisions of N.C. Gen. Stat.

§§ 7A-27(b) and 15A-1444(a) and Rule 4(a) N.C.R.App.P. from final

judgments of conviction by a defendant who pled not guilty and was found

guilty of a non-capital crime.
                                          3


                      STATEMENT OF THE FACTS

        Danielle Archie1 filed domestic violence reports on Kenneth

Littlejohn, the father of her four-year-old daughter. Mr. Littlejohn did not

live with Ms. Archie, but occasionally stayed at her house. On November 6,

2006, Ms. Archie discovered a gun, which had belonged to her deceased

brother, was missing. She assumed Mr. Littlejohn had stolen the gun.

Shortly after 10:30 p.m. Ms. Archie and her teenage son were sitting in her

car on the street where she believed the probable fence lived. Mr. Littlejohn

came out from behind a building. Ms. Archie confronted him about the

missing gun. Littlejohn, who was schizophrenic, non-compliant with

medication and high on cocaine, approached her in an aggressive manner.

He reached in and stuck his head in the car window. Ms. Archie pushed him

back with her hand. When Mr. Littlejohn came back at her, Ms. Archie fired

a pistol she kept for protection. Mr. Littlejohn died from a gunshot wound to

the chest. He was also wounded in the leg and on a side.

   A.       Mr. Littlejohn Had A Long History Of Violent Behavior
        Kenneth Littlejohn had a history of violent behavior, including

assaults and threats on Danielle Archie. The Shelby police had records of


        1
         Ms. Archie is referred to by her middle name Danielle by witnesses
in the transcript and in this Brief.
                                          4


Mr. Littlejohn’s assaultive behavior. (Rpp. 55-163) Ms. Archie testified one

day Mr. Littlejohn was upset because he could not reach her on the phone.

He came to her house with a yellow gas can and threatened to burn the house

when she and her children were inside. (Tp. 622; Rp. 78) On another

morning, she came out of her bathroom to find Mr. Littlejohn standing in her

hallway. He threw a bottle of rubbing alcohol on her, lit a piece of rolled-up

newspaper and tried to set her on fire. (Tp. 622) He threatened to kill Ms.

Archie, to bury her and to bury her baby on top of her. Mr. Littlejohn said he

was going to make sure all her family wore black. (Tpp. 628, 631) In August

2005 she came home in the early morning hours and found Littlejohn inside

her house. He picked up two bricks, pushed her and punched her in the eye.

(Tpp. 626, 631; Rp. 74) Danyeal Emory, an officer with the Shelby police,

responded to a call at Ms. Archie’s residence on August 15, 2005. The

officer noted Ms. Archie had a black eye, was very scared and extremely

upset. (Tpp. 772, 775) Officer Emory noted a gas can outside. Mr. Littlejohn

had threatened to burn Ms. Archie, burn her house down and finish her off.

(Tp. 775) Officer Emory testified before she attempted to serve arrest

warrants on Mr. Littlejohn she checked out his criminal history and learned

he had numerous assaults on females. Mr. Littlejohn had a violent criminal

history. (Tp. 779) Officer Shannon Porter testified she had come into contact
                                         5


with Mr. Littlejohn in her capacity as a law enforcement officer. Her opinion

at the time she arrested Mr. Littlejohn was he had a violent tendency toward

her. (Tp. 902)

      Jason Lail, a Shelby police officer, testified he came in contact with

Kenneth Littlejohn on several occasions. His opinion was Mr. Littlejohn was

very violent and intimidating. (Tp. 797) On January 2, 1996 he investigated

an incident in which Mr. Littlejohn was accused of the kidnap and assault of

Lori Borders, the mother of five of his seven children. When Mr. Littlejohn

arrived at Ms. Borders home she was bloody, battered and crying. On voir

dire, Mr. Littlejohn explained Ms. Borders had been beaten in the head with

a cinderblock and almost killed. Mr. Littlejohn had kidnapped Ms. Borders

at knifepoint, dragged her down to a creek behind a shopping mall, and told

her she was going to die that night. He beat Ms. Borders until she passed

out. When she came to, she made her way back up to her house where the

police found her. (Tpp. 804-805, 807-808, 811; Rpp. 193-196) Officer Lail

called an ambulance. (Tp. 812)

      Barbara Murray, a math teacher at Burns High School for 32 years,

testified Kenneth Littlejohn was dangerous and violent. (Tp. 817) Mr.

Littlejohn had approached Ms. Murray as she left a jewelry store. Mr.

Littlejohn told her to get into her car. She backed away from him and trying
                                            6


to fend him off with her umbrella. Mr. Littlejohn grabbed the umbrella. Ms.

Murray was able to run to the police department. Mr. Littlejohn was

convicted. (Rpp. 185-1920)

        Mr. Littlejohn told Ms. Archie about his history of assaults and

explained he was not sent to prison because he was crazy. After Ms. Archie

brought domestic violence complaints against him, Mr. Littlejohn told her he

would not do any time because he would be sent to Broughton. (Tpp. 625,

632) He also told her he did not take medicine for his schizophrenia because

it made him feel like a zombie. (Tp. 632)

   B.      Defendant Motioned The Court To Allow Mr. Littlejohn’s
           Mental Health History To Be Presented To The Jury
        The Defendant filed a notice of intent to introduce mental health and

medical records of the decedent on July 21, 2008. (Rpp. 264-308) A hearing

was held on defendant’s motion. Defendant argued Mr. Littlejohn had two

separate stays at Broughton Hospital and the admissions were related to his

assaultive behavior. Before his admission in 1994 he had cut his girlfriend,

resulting in wounds requiring 13 sutures. She threatened to leave him if he

did not submit to hospital treatment. On admission he denied suicidal or

homicidal intentions, but admitted to multiple impulses to hurt other people.

The doctor noted Mr. Littlejohn claimed to earn money by beating other
                                           7


people up. (Tp. 949; Rp. 298) In February 1995, Mr. Littlejohn was re-

admitted to Broughton hospital. On this admission he admitted he wanted to

kill himself and had thought of killing his girlfriend. He tried to control his

surroundings by terrorizing others. He admitted to cutting eleven people

over the course of his life. (Tpp. 950-951, Rpp. 305, 307, 309) Medical

records from Gaston/Lincoln/Cleveland Area Mental Health Center

(hereinafter Pathways) showed Mr. Littlejohn had been diagnosed with

paranoid schizophrenia. Pathways terminated him based on non-compliance.

(Tp. 952; Rp. 320) Dr. John Warren testified on voir dire Mr. Littlejohn was

diagnosed with paranoid schizophrenia or psychotic depression. He suffered

from substance abuse disorders including marijuana, cocaine and other non-

specified drugs. (Tpp. 1017-1019) Doctors prescribed anti-psychotic

medications. (Tpp. 1019-1020)

      The court ruled no medical records could be admitted. Dr. Warren

would be permitted to explain paranoid schizophrenia and whether Mr.

Littlejohn suffered from paranoid schizophrenia based on his review of the

medical records. (Tpp. 1011-1012; 1046)

      Dr. Warren testified before the jury he had reviewed Mr. Littlejohn’s

medical records. Mr. Littlejohn had been hospitalized at Broughton Hospital

twice: June 29, 1994 through July 6, 1994 and February 12, 1995 to March
                                         8


2, 1995. (Tp. 1054) Subsequently, he was followed by Pathways. (Tp. 1055)

Dr. Warren explained the essential feature of paranoid schizophrenia is the

presence of auditory or visual hallucinations. The persecutory themes may

predispose the individual to violence. (Tp. 1059) On voir dire Dr. Warren

explained cocaine acts as a simple nervous system stimulant. An individual

suffering from a psychotic disorder needs to dampen the nervous system.

Drugs such as cocaine and other amphetamine like medications aggravate

the psychotic features of schizophrenia. (Tp. 1025) A toxicology report done

in connection with Mr. Littlejohn’s death showed cocaine, breakdown

products of cocaine, caffeine and nicotine in Mr. Littlejohn’s system. The

presence of cocaine indicated cocaine had been very recently consumed. The

presence of the metabolites indicated cocaine was also taken a day or two

earlier. (Tpp. 749-750)

   C.      Mr. Littlejohn Was Shot After He Had Reached Inside Ms.
           Archie’s Car, Had Been Pushed Away And Was Coming
           Back
        On November 6, 2006, Danielle Archie returned home from classes at

Cleveland Community College and noticed a gun, which had belonged to

her dead brother, had been removed from her bedroom. Kenneth Littlejohn

had slept on her couch the prior Friday night. Ms. Archie assumed he had

stolen her brother’s gun. (Tpp. 600-601) She called Mr. Littlejohn, but he
                                         9


hung up the phone. She called the police. (Tp. 605) That evening Ms. Archie

went to pick up her son. She then drove to Smith Street to see if she could

find Kenneth Washington (aka Ken, Jr.) because she knew a lot of people

went to him to pawn things. (VTp. 9; Tpp. 609, 6142) She did not know

which house Ken, Jr. lived in on Smith Street, so she stopped in front of

houses she thought might be his and blew the horn. (Tp. 613) As she was

about to get out to knock on a door, she spotted Mr. Littlejohn coming

toward her from behind a house. (Tp. 614) He confronted her. He was angry

because she had called his mother about the stolen gun. Ms. Archie told him

she wanted her brother’s gun back and she would pay him for the gun. (Tpp.

612-614) Mr. Littlejohn was yelling and cussing as he came over to her car

and reached inside. She told him to go, because her son was beside her in the

car. (VTp. 31) Ms. Archie pushed Mr. Littlejohn’s face out of her window

with her hand. He stepped back and then came toward the car with a wild

and crazy look on his face. (VTpp. 36, 37, 45-46; Tp. 617) She thought this

was the day Mr. Littlejohn was going to kill her and her son. She was afraid

for her life. (Tpp. 617-618; 641) Ms. Archie leaned over to distance herself


      2
         Ms. Archie gave a written statement. Her statement was videotaped
and played for the jury. (Tp. 262) A transcript of the videotape was delivered
to this court with the other volumes of trial transcript. In this Brief, trial
transcript is designated (Tp. _) and Videotape Transcript (VTp. _)
                                          10


from the window, as Mr. Littlejohn reached in again. She yelled at him to

stop, but he just kept coming at her. (VTpp. 10, 31, 34) She thought he

might have either a knife or a gun and might be trying to get in the car. She

believed she had to stop him. (VTp. 21; Tpp. 618-619; 642-643) Ms. Archie

grabbed her gun from the console, closed her eyes and shot the gun. She

thought she fired two or three times. (VTpp. 11, 21, 46; Tp. 618) Ms. Archie

drove off because she saw Mr. Littlejohn running. She was afraid to go

home, because she thought he was going to come and get her at her house.

(VTpp. 11, 37; Tp. 642)

      Margaret Shell and Linda Allen were in Ms. Shell’s house on Smith

Street at the time of the incident. Mr. Littlejohn stayed in his mother’s

house, which was on LeGrand Street behind Ms. Shell’s house. (Tp. 212)

Ms. Shell was friendly with Mr. Littlejohn most of her adult life. (Tp. 210)

Kenneth Littlejohn and others had been in and out of her house earlier on

November 6. (Tp. 224) That night, when she heard arguing in the street, she

went out on her front porch. She told Mr. Littlejohn and Ms. Archie she

didn’t want arguing in front of her house. Ms. Archie said she would leave.

(Tpp. 201, 204, 215, 542) Within five to six minutes after she went back

inside her house, Ms. Shell heard shooting. Mr. Littlejohn was bent over

near a tree. He tried to walk. (Tpp. 205, 542) Ms. Shell refused to sign a
                                         11


statement for the police, because she didn’t see anything, she just heard

arguing. (Tp. 229) Linda Allen testified she had known Mr. Littlejohn for

about four to five years. (Tp. 238) Ms. Allen had been back and forth to Ms.

Shell’s house all day. She couldn’t remember how much they had had to

drink. (Tpp. 238-239; 248-249) Ms. Allen remembered hearing sounds, as if

somebody was coming up on the porch, so she and Ms. Shell went outside.

(Tpp. 240, 250) Ms. Allen went back inside the house before the shooting.

(Tp. 244)

      Ms. Shell ran to the home of Mr. Littlejohn’s mother, Annie

Littlejohn, to tell Ms. Littlejohn her son had been shot. (Tp. 542) Annie

Littlejohn followed Ms. Shell. She saw her son lying on the ground near

some bushes. (Tp. 512) An officer drove her to the hospital. Emergency

room personnel told her Mr. Littlejohn was in critical condition. The doctor

came out to tell her that a bullet had gone through his heart and he had died.

(Tp. 513)

      The Shelby police received a phone call at 10:46 on November 6,

2005 reporting a shooting on Smith Street. (Tp. 134) An ambulance arrived

at 10:50. (Tp. 190) Mr. Littlejohn was unconscious and had three visible

bullet wounds. (Tp. 192). Officer Ledford, a crime scene investigator, found

a knife in Mr. Littlejohn’s pocket. He found an empty vodka bottle and a
                                          12


blunt on Ms. Shell’s porch. Three shell casings were located between the

roadway and sidewalk. (Tp. 319) The pathologist testified Mr. Littlejohn

was shot three times. A gunshot to the chest, which perforated the heart,

caused death. (Tp. 489) The bullet wound to the leg went through the calf

muscle and the bullet which hit his side, lodged in the muscle tissue. (Tpp.

502-503)

      Dave Cloutier was called by the Defendant to explain use of force in

self-defense. He served as an expert for the military and for law enforcement

departments on the use of force in lethal encounters. At the North Carolina

Justice Academy he taught a defensive tactics program to law enforcement

officers. (Tp. 907) Mr. Cloutier was accepted as an expert. (Tp. 913) He

explained to the jury that individuals can sense that another individual is

about to attack. Specifically in the case of Danielle Archie and Mr.

Littlejohn there were several pre-attack warning signs: Mr. Littlejohn had a

glaring facial expression and looked demonic; Mr. Littlejohn had threatened

Ms. Archie that he was going to give the police a reason for coming; and

after Ms. Archie had pushed Mr. Littlejohn away he had come back toward

her in a very rapid aggravated motion. (Tpp. 925-926) When an individual

knows the aggressor is mentally ill that could also factor into the threat

assessment. (Tp. 946) Other variables which would have caused Ms. Archie
                                         13


to protect herself with force included: her knowledge of his previous assaults

against her and against others; the fact it was nighttime and dark; and the

fact she couldn’t see what was in his hands. (Tp. 926) Mr. Cloutier testified

the pistol Ms. Archie fired could have shot the three bullets in a second. (Tp.

927)


                                   ARGUMENT

   I.      DANIELLE ARCHIE’S CONVICTION MUST BE
           VACATED    BECAUSE   THE  TRIAL   JUDGE
           COMMITTED STATUTORY ERROR BY EXPRESSING
           HIS OPINION ON EVIDENCE CRITICAL TO THE
           DEFENSE
                    Assignment of Errors Nos. 42 & 43, Rp. 332
        The most critical question before the jury was whether Danielle

Archie shot Kenneth Littlejohn in self-defense—whether she had a

reasonable belief she needed to save herself and her child from death or

great bodily harm. Essential to this question was whether a reasonable

person would have been especially fearful of Mr. Littlejohn’s aggression

because of the link between his violent episodes and his mental instability.

Copious evidence had come before the jurors concerning Mr. Littlejohn’s

long history of irrationally aggressive violent behavior and the resulting

injuries suffered by his victims. Danielle Archie testified she knew Mr.

Littlejohn had been hospitalized at Broughton and carried a diagnosis of
                                          14


paranoid schizophrenia. The jurors heard Dr. Warren describe a

predisposition to violence as a possible symptom of this disorder. Dave

Cloutier explained knowledge an aggressor is mentally ill can trigger fear in

a potential victim. Based on this evidence, during his closing argument

defense counsel argued to the jury that the reason Ms. Archie did not just

drive away from Mr. Littlejohn was because a person needs to keep their

eyes on a psychopath. A psychopath may have a weapon. (Rp. 11)3 The

judge stopped the argument and had the jury leave the courtroom. He

ordered defense counsel not to use the word psychopath and not to replace

psychopath with paranoid schizophrenic. When the jury returned, the court

instructed the jury there was no evidence Mr. Littlejohn was a psychopath

and not to give any consideration whatsoever to Mr. Teddy. (Tp. 1088;

Attached hereto as Appendix B) Whether a reasonable person who knew

Littlejohn personally, had been violently attacked by him and had been

threatened with death, reasonably believed Littlejohn was a psychopath and

feared a lethal attack based on this belief was a jury question. Instructing the


      3
         The opening and closing arguments were not recorded. Counsel have
stipulated in the record that the court stopped the argument when Mr. Teddy
was arguing to the jury the reason Ms. Archie did not just drive away from
the victim was because a person needs to keep their eyes on a psychopath
because a psychopath may have a weapon. Rp. 11, Attached hereto as
Appendix A.
                                           15


jury there was no evidence Littlejohn was a psychopath was an

impermissible expression of the judge’s opinion in violation of the

constitution and North Carolina’s statutes. The judge’s concluding

instruction, that the jury should give no consideration to the defense

attorney’s argument, added immeasurably to the prejudice. On the facts of

this case the error was grossly prejudicial. Ms. Archie must be granted a new

trial.

         The standard of review for questions of law is de novo. Such errors

are fully reviewable by this Court. Watkins v. N.C. State Bd. of Dental

Examiners, 258 N.C. 190, 593 S.E.2d 764 (2004). Whenever a defendant

alleges a trial court made an improper statement by expressing an opinion on

the evidence in violation of N.C.G.S. §§ 15A-1222 and 15A-1232, the error

is preserved for review without objection due to the mandatory nature of

these statutory prohibitions. State v. Duke, 360 N.C. 110, 123, 623 S.E.2d

11, 20 (2005).

    A.      The Judge Incorrectly Defined Psychopath And Failed To
            Limit His Instruction To The Jurors
         The bench conference transcript shows the judge incorrectly thought

psychopath was a medical diagnosis strictly limited to individuals without a

conscience:
                                         16


   The Court:      Psychopath?
   Mr. Teddy:      Psychotic.
   Mr. Young:      No evidence.
   The Court:   Big difference between a paranoid schizophrenia and
        a psychopath.
   Mr. Teddy:      I’ll remove that from my argument.
   The Court:    Isn’t the definition of psychopath, somebody who
        doesn’t have a conscience?
   Mr. Teddy:      I’ll change the slide to psychotic.
   Mr. Young: I would ask that it be changed to the only diagnosis
        that has been received into evidence that he was a paranoid
        schizophrenic.
   The Court:      Well, just leave that blank.
(Tpp. 1087-1088) Psychopath is not a medical term or a diagnosis used by

medical professionals. See, DIAGNOSTIC AND STATISTICAL MANUAL OF

MENTAL DISORDERS, DSM-IV-TR     (4th Ed. 2000). Psychopath is a lay term.

Webster’s defines psychopathic personality as: “A person whose behavior is

largely amoral and asocial and who is characterized by irresponsibility, lack

of remorse or shame, perverse or impulsive (often criminal) behavior, and

other serious personality defects, generally without psychotic attacks or

symptoms.” WEBSTER’S NEW WORLD DICTIONARY, (3rd College Ed. 1988).

The judge’s definition that a psychopath is limited to someone without a

conscience is incorrect.
                                          17


        If the judge had explained to the jurors that he meant to only preclude

labeling Mr. Littlejohn as someone without a conscience, the error would

have been less prejudicial. Instead, the judge gave a blanket instruction:

   The Court:    Members of the jury, do not consider—members
        of the jury, do not consider the reference you’ve just heard
        Mr. Teddy to Mr. Littlejohn as a psychopath. There is no
        evidence that Mr. Littlejohn, in this case, Mr. Littlejohn was
        a psychopath. That was an inappropriate reference. Do not
        give any consideration whatsoever to Mr. Teddy.
(Tp. 1088). The judge’s decision not to let the defense counsel replace the

word psychopath with the words psychotic or paranoid schizophrenic

underlined the error and increased the prejudice. An attorney has a statutory

right to argue facts in evidence. There is no question that Mr. Littlejohn’s

serious mental illness was in evidence. He should have been allowed to

argue this heightened Ms. Archie’s fear and need for self-defense.

   B.         Copious Evidence Supported The Argument That Ms. Archie
              Had Cause To Think Mr. Littlejohn Was A Psychopath And
              Feared Him Because Of This Belief
         1.      Ms. Archie And Other Witnesses Testified To Mr.
                 Littlejohn’s Violent Unstable Personality
        Testimony from several witnesses supported Defendant’s argument

that Ms. Archie believed Mr. Littlejohn was a psychopath and because of

this was so frightened of Mr. Littlejohn she needed to keep her eyes on him.

Ms. Archie had personally experienced Mr. Littlejohn’s behavior fitting the
                                          18


definition of an individual who evidences criminally amoral, asocial, and

impulsive behavior:

    Ms. Archie: I was getting the [baby] carrier out of the backseat of
         the car. [Mr. Littlejohn] approached my car. He had a Sundrop
         bottle and in the bottle was—he had some—he told me that—
         he was going to dash the—it was kerosene and gasoline mix
         and he was going to dash it on me. . . .
    Q.     So your mother came out?
    A.     My mother came out.
    Q.     All right, and what happened next?
    A.     He threatened to split my mother with an ax.
    Q.     And then what did he do?
    A.     He took the baby and left. [Mr. Littlejohn’s sister later
           returned the baby.]
(Tp. 621) Ms. Archie next related an incident in which Mr. Littlejohn came

to her house with a yellow gas can in his hand and threatened to burn the

house with Ms. Archie and her children in it. (Tp. 622) On another occasion

he actually lit a fire:

    Q.     Had he ever tried to do anything else to you with plans [sic]?
    A.     One morning I got out of bed and I went to the bathroom. I
           come out of the bathroom and he was standing in the hallway
           and he threw a bottle of rubbing alcohol on me. He lit a piece
           of newspaper that he had rolled up and he was trying to put the
           fire on me saying that blue flames—he kept saying that blue
           flames done burn. And I was backing away from him and I
           was telling him to stop and I was swatting at the fire with my
           hand.
                                             19


(Tp. 622) Mr. Littlejohn burnt Ms. Archie with cigarettes and punched her in

the face:

    Q.       Did he ever do anything else to you?
    A.       Yeah, he—I still have a place right here on my chest where he
             burnt me with a cigarette . . . . I went on to bed. I was awaken
             by him. He was on top of me. He had one of his knees on my
             arm and he had a trash bag over my face and he was telling me
             that—he was whispering in my ear that it only takes two
             minutes and two seconds for a person to stop breathing.
(Tp. 623) When she stopped answering his phone calls, Mr. Littlejohn

threatened to kill her: “And he started threatening to kill me. He was going

to kill me and bury me and bury my baby on top of me. That he was going to

make sure that all my family would be wearing black.” (Tp. 628)

         Mr. Littlejohn told Ms. Archie he felt little remorse or responsibility

for his violent actions. He bragged to her he would not be put in prison, but

just sent to a mental hospital: “He said that he was going to throw a bottle of

gas through my window and that he won’t do no time for it cause he’s crazy

and he’ll take some pills and he’ll be out to get me.” (Tpp. 631-632) Ms.

Archie knew Mr. Littlejohn felt this way about other criminal behavior:

    Q.       Is that the first time he had told you that he could get out of
             stuff?
    A.       No, it wasn’t. He told me about an incident that he had cut
             Lori in the—she was in the grocery store and he walked by
             and cut her and about the incident about he—when he
             kidnapped her and left her for dead, he went to Raleigh and
                                         20


            stayed with his sister and that Brenda McLean called him and
            told him that all the charges against him were dismissed
            because—he told me it was because he had—he went to
            Broughton.
(Tp. 632)

      Ms. Archie had ample reason to fear Mr. Littlejohn based on repeated

irresponsible, violent criminal behavior encompassed by the definition of

psychopath. Police officers corroborated Ms. Archie’s testimony. Danyeal

Emory testified she was the officer who responded to Ms. Archie’s call.

Officer Emory noted that Ms. Archie had a black eye and was extremely

upset. (Tp. 775) Officer Emory testified: “[Ms. Archie] was very scared.

Normally it’s not normal procedure that we will follow somewhere, but she

was really scared and nervous and I just felt like I needed to give here some

reassurance that we were trying to help her and so that’s why went on—I

went on to the Magistrate’s office with her.” (Tp. 775) Officer Emory

recalled that Mr. Littlejohn had threatened, “that he was going to burn her,

burn her house down and finish her off.” The officer saw a gas can on the

carport and for that reason she was “a little bit more concerned about her and

the safety of her children.” (Tp. 776)

      Other witnesses gave evidence supporting why Ms. Archie could

justifiably have regarded Mr. Littlejohn as a psychopath. Officer Jason Lail
                                         21


remembered coming into contact with Mr. Littlejohn on “several occasions.”

In his opinion Mr. Littlejohn was “very violent, intimidating.” (Tp. 797) (Tp.

797) Officer Lail told the jurors Mr. Littlejohn assaulted and kidnapped Lori

Borders, who was the mother of five of Mr. Littlejohn’s children. When

Officer Lail arrived at Ms. Border’s home she “was bloody and battered and

crying.” Officer Lail called an ambulance for her. After she was taken to the

hospital, the officers began searching for Mr. Littlejohn. (Tpp. 811-812)

Barbara Murray told the jurors she had been a math teacher at Burns High

School for 32 years and knew Kenneth Littlejohn from when he was a

student. In her opinion Mr. Littlejohn was “dangerous and violent.” (Tp.

817) Mr. Littlejohn was convicted of assaulting Ms. Murray. (Tp. 819)

Officer Shannon Porter testified that Mr. Littlejohn had a violent tendency

towards her. (Tp. 902)

       2.     Ms. Archie Knew Mr. Littlejohn Had Been Hospitalized
              For Mental Illness And Knew He Was Non-Compliant
              With Medication
      Ms. Archie knew Mr. Littlejohn had been sent to mental hospitals as a

result of his criminal behavior: “He told me about an incident where he

kidnapped a white woman from Arnold’s Jewelry. And he said that he didn’t

get in trouble for it because, you know, he was crazy.” (Tp. 625) Mr.

Littlejohn told Ms. Archie after he had kidnapped Lori Borden and “left her
                                          22


for dead” all the charges against him were dismissed because he was sent to

Broughton. (Tp. 632) He also used his illness in his threats: “He said that he

was going to throw a bottle of gas through my window and that he won’t do

not time for it cause he’s crazy and he’ll take some pills and he’ll be out to

get me.” (Tpp. 631-632) Ms. Archie was aware that Mr. Littlejohn had been

diagnosed as a schizophrenic, was noncompliant with medication and

instead was using cocaine: “[H]e said that he didn’t take the medication

because it made him fell like a zombie.” (Tp. 632) On the afternoon of the

shooting, Mr. Littlejohn’s mother told Ms. Archie she thought Mr. Littlejohn

was back on cocaine. (Tp. 608)

      Dr. John Warren corroborated Ms. Archie’s allegation Mr. Littlejohn

had been hospitalized at Broughton. Dr. Warren identified records showing

Mr. Littlejohn had been hospitalized at Broughton Hospital twice and had

been followed at Pathways. (Tpp. 1054-1055) After reviewing these records,

Dr. Warren found Mr. Littlejohn’s medical history supported a diagnosis of

paranoid schizophrenia. (Tpp. 1060-1061) Mr. Littlejohn had been

prescribed several anti-psychotic medications. (Tp. 102-1063).

        3.    An Expert On The Use Of Force In Self-Defense
              Testified That Knowledge An Aggressor Was Mentally
              Ill Factors Into A Person’s Reaction
                                           23


         Dave Cloutier, an expert on use of force, including response to

aggression, explained to the jurors Ms. Archie was likely to believe Mr.

Littlejohn would harm her when he was in an aggressive state, in part

because of her belief he was mentally unstable.

    Q.      Mr. Cloutier, going back to the pre-attack queues that you
            have previous identified as being a part of the science of the
            use of force . . . can you tell me whether there were any pre-
            attack queues that you’re able to identify based upon your
            review of this case file?
    A.      Yes.
    Q.      What are they?
    A.      I mentioned previously about glaring or some type of facial
            expression and in interview with Ms. Archie she actually, as I
            recall, described his look as being demonic or . . … She
            actually described his facial expression as being demonic or
            looking like a demon.
    (Tp. 925)


    Q.      What were some of the use of force variables that you were
            able to identify?
    A.      Certainly her description to me of her previous knowledge of
            his propensity for violence, previous assaults that had occurred
            to her by him as well as other individuals that she was aware
            of.
(Tp. 926) Ms. Archie’s belief that Mr. Littlejohn was psychopathic was

integral to her reaction to Mr. Littlejohn’s aggression on the night of the

shooting. Ms. Archie testified she felt she couldn’t drive away because Mr.

Littlejohn’s behavior was unpredictable: “I couldn’t take my eye off him. I
                                          24


just could not take my eyes off of him because I never knew—I never knew

what he was going to do.” (Tp. 642)

    C.      A Judge May Not Express His Opinion On The Evidence In
            Any Fashion To The Jurors
         N. C. Gen. Stat. § 15A-1222 provides “the judge may not express

during any stage of the trial, any opinion in the presence of the jury on any

question of fact to be decided by the jury.” N.C. Gen. Stat. § 15A-1222.

Trial judges have a duty of absolute impartiality. State v. Fleming, 350 N.C.

109, 125-26, 512 S.E.2d 720, 732 (1999). Trial judges must avoid even the

“slightest intimation of an opinion,” as “every defendant in a criminal case is

entitled to a trial before an impartial judge and an unbiased jury.” State v.

Sidbury, 64 N.C. App. 177, 178-79, 306 S.E.2d 844, 345 (1983) (citation

omitted). The trial court must at all times be absolutely impartial, State v.

Brady, 299 N.C. 547, 560, 264 S.E.2d 66, 74 (1980), and the trial court is

prohibited from expressing any opinion in the presence of the jury on any

question of fact, State v. Bearthes, 329 N.C. 149, 160, 405 S.E.2d 170, 176

(1991). “It is immaterial how such opinion is expressed or implied, whether

in the charge of the court, in the examination of a witness, in the rulings

upon objections to evidence, or in any other manner.” State v. Alston, 38

N.C. App. 219, 220, 247 S.E.2d 726, 727 (1978) (citing to State v. Freeman,
                                           25


280 N.C. 622, 187 S.E.2d 59 (1972)). The significance of this rule is derived

from the relationship between judge and jury:

         We all know how earnestly, in general, juries seek to ascertain
         the opinion of the Judge who is trying a cause upon the
         controverted facts, and how willing they are to shift their
         responsibility from themselves to the Court. The governing
         object of the act was to guard against such results and to throw
         upon the jurors themselves the responsibility of responding to
         the facts of the case.
Nash v. Morton, 48 N.C. 3, 6 (1855).

         In a criminal case, reversible error results when the jury may

rationally infer from the trial judge’s action an expression of opinion as to

the defendant’s guilt or the credibility of a witness. State v. Blackstock, 314

N.C. 232, 236, 333 S.E.2d 245, 248 (1985); State v. Baldwin, 141 N.C. App.

596, 602, 540 S.E.2d 815, 820 (2000). In evaluating whether a judge’s

comments cross into the realm of impermissible opinion, a totality of the

circumstances test is utilized. State v. Poland, 148 N.C.App. 588, 594, 560

S.E.2d 186, 190 (2002)

    D.      Instructing The Jury To Give No Consideration To The
            Defense Attorney Was Reversible Error
         After instructing the jury there was no evidence Mr. Littlejohn was a

psychopath, the trial court concluded: “Do not give any consideration

whatsoever to Mr. Teddy.” (Tp. 1088) There can be no question that a

blanket admonition from the trial court to ignore the defendant’s contentions
                                            26


violates a defendant’s constitutional rights under the state and federal

constitutions to due process, a fair trial and effective assistance of counsel.

Even if this Court should find that the trial court did not intend to deliver a

blanket instruction that the defense counsel should be ignored, a blanket

instruction is what was said and a blanket instruction to disregard the

defendant’s counsel is what the jury heard. In light of the gravity of such an

instruction by the trial judge, whether or not the instruction was inadvertent,

the violation of the defendant’s constitutional rights was grossly prejudicial

and requires a new trial. See, State v. Sidbury, 64 N.C. App. 177,179, 306

S.E.2d 844, 845 (1983)

    E.       By Instructing The Jury There Was No Evidence Mr.
             Littlejohn Was A Psychopath, The Court Was Expressing His
             Opinion On The Most Critical Question Before The Jury

         If the court had attempted to explain to the jury its objection was just

to the choice of the word psychopath, the error would have been somewhat

less egregious. During the bench conference the court explained its thought

process: “Big difference between a paranoid schizophrenia and a

psychopath.” (Tp. 1087) While an individual diagnosed with paranoid

schizophrenia can also manifest symptoms of personality disorders which a

lay person could term psychopathic behavior, this clarification would at least

have allowed the jury to understand that the judge was not making a blanket
                                          27


declaration that Mr. Littlejohn was not mentally ill. Instead the judge gave

an unmodified, unexplained instruction to the jurors that: “There is no

evidence that Mr. Littlejohn, in this case, Mr. Littlejohn was a psychopath.”

(Tp. 1088) The jurors had no way of understanding the judge meant to

distinguish types of mental illness. Without modification, the jurors must

have believed the judge was instructing there was no evidence Mr. Littlejohn

was mentally ill. This danger was magnified by the judge’s concluding

admonition: “Do not give any consideration whatsoever to Mr. Teddy.” (Tp.

1088)

        An attorney may “on the basis of his analysis of the evidence, argue

any position or conclusion with respect to a matter in issue.” N.C. Gen. Stat.

§ 15A-1230(a). Counsel are free to argue facts in evidence and all

reasonable inferences drawn from them. State v. McNeill, 360 N.C. 231,

244, 624 S.E.2d 329, 338 - 339 (2006). Defense counsel had a right to argue

to the jury that since Ms. Archie regarded Mr. Littlejohn as a psychopath she

would have been afraid to take her eyes off of him. She had testified: “I

couldn’t take my eye off him. I just could not take my eyes off of him

because I never knew—I never knew what he was going to do.” (Tp. 642)

The trial court’s instruction to the jurors that there was no evidence that Mr.

Littlejohn was a psychopath was a direct comment on the credibility of Ms.
                                          28


Archie’s testimony and the testimony of other witnesses. Combined with the

admonition to give no consideration to Mr. Teddy, the instruction violated

the court’s duty to abstain from commenting on the evidence, took away

from the jury it’s right to determine questions of fact and violated

defendant’s right to have counsel argue facts in evidence and all reasonable

inferences drawn from them. (Tp. 1088)

      “While not every improper remark will require a new trial, a new trial

may be awarded if the remarks go to the heart of the case.” Sidbury at 179,

306 S.E.2d at 845. In Sidbury, the defendant presented evidence that he

could not have been the shooter because of a crippling injury to his right

hand. Defendant’s wife testified her husband always wore a glove on his

crippled hand. The court inquired if the defendant dealt cards with his glove

on. At the end of the day, the court admonished the jurors they should not

play cards with gloves on. This Court found: “The seed was thus implanted

in the jurors’ minds to question defendant’s inability to handle a gun as

opposed to his ability to deal cards with his glove on.” Even though this

Court acknowledged the trial court might merely have been attempting

humor, it concluded: “[I]f one juror interpreted the court’s remarks as

questioning the credibility of defendant’s evidence, that was one juror too

many.” Id. This Court vacated Sidbury’s sentence finding the trial court’s
                                           29


comments constituted prejudicial error. Id. at 180, 306 S.E.2d at 846. As in

Sidbury, the judge’s unmodified instruction to Ms. Archie’s jury that there

was no evidence that Mr. Littlejohn was a psychopath and they should pay

no attention to defense counsel went to the heart of the case. Danielle Archie

had presented compelling evidence that she shot Mr. Littlejohn in self-

defense. There could be no question in the juror’s minds that Mr. Littlejohn

had attacked Ms. Archie and other women previously. The defense needed

to convince the jurors that on the night of the shooting Ms. Archie reacted

reasonably in response to Mr. Littlejohn. An aggressor driven by psychosis

is likely to be irrational, creating a reasonable belief in his potential victim

that she must react quickly and forcefully. This was the key to Ms. Archie’s

defense. While her belief she was in imminent danger of lethal injury might

not have been reasonable if she had been dealing with a rational aggressor,

she was not. Instead she was dealing with a potentially armed, mentally

unbalanced individual, off his medications and high on cocaine. The jury’s

decision on whether the State had met its burden of disproving self-defense

beyond a reasonable doubt may well have hinged on whether Mr.

Littlejohn’s aggression that night was driven by his mental illness. The

judge’s admonition that there was no evidence that he was a psychopath, and

that the jurors should give no consideration to defense counsel, was grossly
                                          30


prejudicial and harmful beyond a reasonable doubt. As the judge’s

instruction violated statutes and the defendant’s constitutional rights to

effective assistance of counsel, due process and a fair trial, Danielle Archie

must be granted a new trial.

    II.   DANIELLE ARCHIE’S CONVICTION MUST BE
          VACATED BECAUSE THE COURT PRECLUDED HER
          FROM     PRESENTING    EVIDENCE    WHICH
          SUPPORTED THE REASONABLENESS OF HER FEAR
          OF MR. LITTLEJOHN’S BEHAVIOR WHEN HE WAS
          IN A PSYCHOTIC STATE
             Assignment of Errors Nos. 26, 27, 28, 29              Rp. 320
             Assignment of Errors Nos. 30, 31, 34                  Rp. 330
             Assignment of Errors No. 35                           Rp. 331
      The trial court cherry-picked what the defendant’s mental health

expert would be allowed to say concerning Mr. Littlejohn’s mental illness.

The result was the exclusion of relevant evidence critical to Ms. Archie’s

defense she had shot Mr. Littlejohn in the reasonable belief that she needed

to save herself and her child from death or great bodily harm. State v. Norris,

303 N.C. 526, 530, 279 S.E.2d 570, 572-573 (1981) Under statutes and case

law a defendant’s reputation for violence and specific acts of a violent nature

may be proved, if known to the defendant at the time of the occurrence. The

purpose of such evidence is not to prove conduct by the victim, but to prove

the defendant’s state of mind. See, Kenneth S. Broun, BRANDIS & BROUN ON

NORTH CAROLINA EVIDENCE,       § 90, pp. 262-263 (6th Ed. 2004) Ms. Archie’s
                                          31


extreme fear of Mr. Littlejohn’s when he was in an aggressive state was

based on her knowledge that his out-of-control aggression was rooted in

psychosis exacerbated by cocaine. The court’s refusal to allow relevant

evidence before the jury, key to self-defense, violated N.C. Rules of

Evidence and due process under the Fifth and Fourteenth Amendments to

the United States Constitution and N.C. Constitution Article I, Sec. 19.

      A court’s determination to admit evidence is reviewed for an abuse of

discretion. State v. Aldridge, 139 N.C. App. 706, 714, 534 S.E.2d 629, 635

(2000). When an error is based on a constitutional right, the trial courts

ruling is a question of law and is reviewed de novo. State v. Gardner, 322

N.C. 591, 594, 369 S.E.2d 593, 597 (1988).

      “All relevant evidence is admissible.” N.C. Gen. Stat. § 8C-1, Rule

402. In a criminal case, “every circumstance calculated to throw any light

upon the supposed crime is admissible and permissible.” State v. Collins,

335 N.C. 729, 735, 440 S.E.2d 559, 562 (1994). Rules 404 and 405 of the

Rules of Evidence address the admission of character evidence at trial.

“While Rule 404 provides for the circumstances in which character evidence

is admissible, Rule 405 provides for the form in which it may be presented.”

State v. Bogle, 324 N.C. 190, 200-01, 376 S.E.2d 745, 751 (1989).
                                           32


“Evidence of a pertinent trait of character of the victim of the crime offered

by an accused, or by the prosecution to rebut the same, or evidence of a

character trait of peacefulness of the victim offered by the prosecution in a

homicide case to rebut evidence that the victim was the first aggressor” is

admissible. N.C. Gen. Stat. § 8C-1, Rule 404(a)(2). “In criminal cases, in

order to be admissible as a ‘pertinent’ trait of character, the trait must bear a

special relationship to or be involved in the crime charged.” Bogle, 324 N.C.

at 201, 376 S.E.2d at 751 (emphasis in original). Rule 405(a) specifies a

defendant may prove a pertinent character trait through either opinion or

reputation. N.C. Gen. Stat. § 8C-1, Rule 405. Evidence of a victim’s violent

charter is relevant and admissible to show to the jury that the defendant’s

fear of death and bodily harm was reasonable: “Clearly, the reason for this

exception is that, a jury should, as far as is possible, be placed in defendant’s

situation and possess the same knowledge of danger and the necessity for

action, in order to decide if defendant acted under reasonable apprehension

of danger to his person or his life.” State v. Winfrey, 298 N.C. 260, 262, 258

S.E.2d 346, 347 (1979).

      Ms. Archie needed to be able to show the jurors her terror of Mr.

Littlejohn stemmed both from his actions and the psychosis which at times

controlled his behavior. While the court allowed Dr. Warren to tell the jurors
                                         33


Mr. Littlejohn had been diagnosed as a paranoid schizophrenic, it

erroneously sustained the State’s objections to highly relevant testimony and

evidence concerning Mr. Littlejohn’s mental condition including: 1) the

introduction of any of Mr. Littlejohn’s medical records; 2) Dr. Warren’s

explanation of the significance of discontinuing psychotropic medications

and instead taking cocaine.

   A.      The Trial Court’s Exclusion of Mr. Littlejohn’s Medical
           Records Disregarded The Purpose Of Evidence Concerning
           The Victim’s Character For Violence
        A hearing began on the introduction of Mr. Littlejohn’s medical

records pertaining to his mental illness on the afternoon of Tuesday, July

29th. The Court sustained the State’s objection to the introduction of the

records on Tuesday afternoon. (Tp. 962) On Wednesday morning, the issue

was revisited and the order modified. (Tp. 1011). After the modification, Dr.

Warren was allowed to explain paranoid schizophrenia and the fact that Mr.

Littlejohn had been diagnosed with paranoid schizophrenia. The Court

retained its prohibition against Dr. Warren testifying to the impact of the

illness on Mr. Littlejohn’s behavior. (Tp. 1011) Dr. Warren was then

questioned on voir dire, after which the court ruled Dr. Warren could not

testify to the interaction between cocaine and the symptoms of paranoid

schizophrenia. (Tp. 1028) Court was adjourned for the day after this ruling.
                                         34


The next morning the Court put on the record its reasons for not admitting

any of Mr. Littlejohn’s medical records4: 1) the evidence would be

cumulative as to the prior bad acts; 2) a number of additional bad acts are

encompassed by the medical records; 3) some of the records are remote in

time; 4) the records are voluminous. (Tpp. 1046-1047)

      The court’s reasoning disregards that the purpose for allowing

character evidence of the victim in self-defense cases under Rule 405(a)

which is to corroborate the defendant’s reason for fearing the victim. For

example defense counsel argued to be allowed to at a minimum introduce

Mr. Littlejohn’s first admission to Broughton after he knifed Lori Borders.

(Tp. 1032) The record stated:

      MENTAL STATUS: This patient says that he and his
      girlfriend, with whom he as lived for ten years and with whom
      he has five of his seven children, have noted increasing episodic
      violence in him in the last three years. He has hit her, cut her,
      and threatened to shoot her with a gun. He knifed her on June
      20th and she required 13 sutures. She threatened to leave him if
      he did not submit to hospital treatment.
(Rp. 278; Attached hereto as Appendix C) This corroborated Ms. Archie’s

testimony that Mr. Littlejohn had bragged to her he could get away with



      4
        The medical records are attached to Defendant’s Notice Of Intent To
Introduce Mental Health And Medical Records which is reprinted in the
Record on Appeal, pp. 264-308.
                                          35


violent acts by going to Broughton: “He told me about an incident that he

had cut Lori in the—she was in the grocery store and he walked by and cut

her and about the incident about the incident he—when he kidnapped her

and left her for dead . . .all the charges against him were dismissed

because—he told me it was because he had—he went to Broughton.” (Tp.

632)

       The court’s finding that this record was cumulative disregarded that

while a medical record is neutral, the jury could have found Ms. Archie’s

testimony self-serving. See, State v. Everett, 178 N.C.App. 44, 54, 630

S.E.2d 703, 709 (2006), aff’d 361 N.C. 217, 639 S.E.2d 442 (2007)

(prejudicial error for failure to allow in neutral testimony in support of the

defendant’s testimony concerning the victim’s prior violent acts.) The

import of a neutral record is also shown by the State’s cross-examination of

Dr. Warren which began with lengthy questioning about how much his

practice, which included eight doctors, was paid by the Administrative

Office of the Courts. (Tpp. 1065-1069) The State was attempting to discredit

Dr. Warren’s opinion that Mr. Littlejohn had been diagnosed with paranoid

schizophrenia. If the jury had been allowed to see excerpts from the medical

records, or if Dr. Warren had been allowed to read from the records, the

credibility of his testimony could not have been impeached. Admitting the
                                          36


Broughton admissions sheet would not have added additional bad acts.

Remoteness in time is irrelevant, as the purpose of admitting the evidence

was to corroborate the defendant’s testimony as to what she knew about Mr.

Littlejohn. While the entire medical record of Mr. Littlejohn would have

been voluminous, this is not a justification for precluding parts of the record.

Defense counsel’s motion to be allowed to at least introduce the Broughton

summary was denied. (Tp. 1035)

    B.      Drugs Proscribed For Mr. Littlejohn And The Impact Of
            Cocaine Instead Was Highly Relevant
         The trial court would not allow Dr. Warren to testify to how cocaine

effects the behavior of someone needing psychotic medications. (Tpp. 1027,

1064) During voir dire, Dr. Warren explained Mr. Littlejohn had been

prescribed Loxitine, Risperdal, Ativan, Buspar and Trazodone, all of which

are anti-psychotic medications. (Tp. 1020) The purpose of anti-psychotic

medication is to dampen the central nervous system, alleviating the

symptoms of psychosis. Cocaine has the opposite effect: “[D]rugs like

cocaine and other amphetamine alike medications are going to aggravate the

course of disorders that have a psychotic feature to them.” (Tp. 1025) The

pathologist testified Mr. Littlejohn had cocaine and cocaine metabolites in

his system, but no prescription drugs were found. (Tpp. 750, 752) If Dr.
                                         37


Warren had been allowed to explain to the jurors that Mr. Littlejohn had

been prescribed medications to alleviate psychotic symptoms and that

cocaine would have instead exacerbated psychosis, this evidence would have

corroborated Ms. Archie’s testimony that she feared Mr. Littlejohn that night

and was afraid to take her eyes off of him because he looked wild and crazy.

(Tpp. 617, 642) Information concerning Mr. Littlejohn’s mental history

should have been admitted to place the jury in the defendant’s situation by

showing them Ms. Archie’s fear of death and bodily harm by a psychotic

individual was reasonable. State v. Winfrey, supra at 262, 258 S.E.2d at 347.

      Precluding Danielle Archie from offering neutral evidence

corroborating the reasons she gave during her testimony for fearing Mr.

Littlejohn must be found to be reversible error. The State’s objections to Dr.

Warren’s testimony and the court’s rulings which severely curtailed his

testimony violated Ms. Archie’s fundamental due process right to require the

State prove her guilt beyond a reasonable doubt. In self-defense cases the

State must prove to the jury beyond a reasonable doubt that the defendant

was not entitled to use defensive force. State v. Hankerson, 288 N.C. 632,

641-52, 220 S.E.2d 575, 583-89 (1975), rev’d on other grounds, 432 U.S.

233 (1977). Given the strength of Ms. Archie’s self-defense claim and the

critical nature of the precluded testimony, under N.C. Gen. Stat. § 15A-
                                         38


1443(b) this error cannot be found harmless beyond a reasonable doubt.

Even under the standard of a non-constitutional error, there was a reasonable

possibility that, had Ms. Archie been able to introduce neutral medical

records to corroborate her testimony and had Dr. Warren been able to fully

explain the effects of Mr. Littlejohn’s illness and use of cocaine on his

behavior, a different result would have been reached. Accordingly, Ms.

Archie is entitled to a new trial.

                                CONCLUSION

      For the reasons set forth above, Defendant respectfully contends that

this Court should vacate his guilty plea and sentence and order a new trial.

      Respectfully submitted this the 16th day of April 2009.

                                       Electronic Filing
                                       /s/ Marilyn G. Ozer
                                       Attorney for Appellant
                                       211 North Columbia Street
                                       Chapel Hill, NC 27514
                                       (919) 967-8555
                                       redwood@nc.rr.com
                                            39


              CERTIFICATE OF FILING AND SERVICE

      I hereby certify that the original Defendant-Appellant’s Brief has been

filed electronically pursuant to Rule 26.

      I further hereby certify that a copy of the above and foregoing

Defendant-Appellant’s Brief has been duly served upon served a copy upon

the Office of the Attorney General, Appellate Section, by first class mail

      This the 16th day of April 2009.

                                         Electronic Filing
                                         Marilyn G. Ozer
                                         Attorney at Law



                   CERTIFICATE OF COMPLIANCE

      I hereby certify that this Brief was prepared using Microsoft Word,

Times New Roman, 14-point type. The word count, including footnotes and

citations, is 8,746 words.

      This the 16th day of April 2009.

                                         Electronic Filing
                                         Marilyn G. Ozer
                                         Attorney at Law
           APPENDIX A

  Transcript Of Bench Conference

During Defendant’s Closing Argument

         (Tpp. 1087-1088)
                      2




             APPENDIX B

Statement Clarifying Verbatim Transcript

       (Record on Appeal, p. 11)
                          3




                  APPENDIX C

Broughton Hospital Admission/Discharge Summary,

    June 29, 1994, (Record on Appeal p. 278))

								
To top