Executed December 6, 2002 by Lethal Injection in North Carolina
W / M / 39 - 50 W / M / ?
63rd murderer executed in U.S. in 2002
812th murderer executed in U.S. since 1976
1st murderer executed in North Carolina in 2002
22nd murderer executed in North Carolina since 1976
(Race/Sex/Age at Murder-Execution)
(Race/Sex/Age at Murder)
Ernest West Basden
Billy Carlyle White
Basden shot Billy White twice in a murder-for-hire scheme devised by co-conspirators James Lynwood Taylor, his nephew, and Sylvia Ipock White, the victim's wife. Taylor pretended to be a wealthy businessman wanting to buy insurance and lured White to a wooded rural area. Taylor and Basden drove to the designated spot and waited. When White arrived, Taylor got out of his car and introduced himself, then Basden got out of the car and picked up a twelve-gauge shotgun he had placed on the ground. Basden pointed the gun at Billy and pulled the trigger. The shotgun did not fire because Basden had not cocked the hammer back. Basden then cocked the hammer and fired. Billy was knocked to the ground. Basden removed the spent shell casing and loaded another shell into the shotgun. Basden then approached Billy, who was lying face up on the ground, and while standing over him, shot him again. As agreed, Taylor gave his cash-strapped uncle $300 for the killing. Both Taylor and Basden later confessed to their roles in the killing. Mrs. White is currently serving two consecutive life sentences. Taylor is serving a life sentence.
W / M / 39 - 50
W / M / ?
Basden did not request anything special for his last meal Thursday night, choosing instead to eat what all others at Central Prison ate. The menu included breaded veal, brown gravy, mashed potatoes, three-bean salad, mixed vegetables, slices of loaf bread, an orange and fruit punch.
"I killed Billy White. I'm sorry for it. And I pray that his family will come to forgive me and let time heal their wounds. And that's all we can do."
North Carolina Department of Correction (Ernest W. Basden)
Ernest Basden - Chronology of Events
11/5/02 - Correction Secretary Theodis Beck sets Basden's execution date for December 6, 2002.
10/21/2002 - Supreme Court of the United States denies Basden's petition for a writ of certiorari to review the decision of the U.S. Fourth Circuit Court of Appeals which affirmed Basden's conviction and sentence of death.
12/30/1994 - North Carolina Supreme Court affirms Basden's death sentence.
4/9/1993 - Ernest Basden sentenced to death in Duplin Superior Court for the murder of Billy Carlyle White.
Ernest Basden has been on death row since 1993 for the shooting death of a Kinston insurance agent. Basden, 49, was sentenced to death April 9, 1993, in Duplin County Superior Court for the murder of Billy Carlyle White during a robbery. Basden claims he was duped into the murder plot by the victim's wife, Sylvia, and nephew Linwood Taylor. His price was $300. Billy was killed by a shotgun blast after Basden arranged a meeting with him. Basden later confessed to the murder, saying he needed the money. Sylvia White received a life sentence and was also convicted of murdering her four-year-old stepson.
Evidence presented at trial showed that Sylvia White had 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, Basden's nephew. Taylor then approached Basden and told him he needed a hit man and asked if he wanted the job. Basden initially thought the idea was crazy and refused. Later, when Basden got into financial difficulty, he asked Taylor if the offer still stood and agreed to kill Billy. Taylor developed a scheme to lure Billy, 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 Billy 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 Basden drove to the designated spot and waited for Billy. When Billy arrived, Taylor got out of his car and introduced himself to Billy as Tim Conners. Then Taylor said he needed to use the bathroom and stepped to the other side of the road. Basden 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. Basden pointed the gun at Billy and pulled the trigger. The shotgun did not fire because Basden had not cocked the hammer back. Basden then cocked the hammer and fired. Billy was knocked to the ground. Basden removed the spent shell casing and loaded another shell into the shotgun. Basden then approached Billy, who was lying face up on the ground, and while standing over him, shot him again. At trial the pathologist testified that Billy 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, Billy did not die instantly but would have remained conscious for some period of time and would have felt pain.
Basden 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 Billy'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 Basden three hundred dollars. Prior to Basden'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 Basden's repair shop in Kinston and retrieved a man's gold-tone ring with three diamond settings from Basden, who had it in his pocket.
Taylor and Sylvia White were arrested for murder on February 12, 1992. Basden went to the Jones County Sheriff's Department where Taylor told Basden that he had confessed. Taylor advised Basden to turn himself in and talk to SBI Agent Eric Smith. Basden was interviewed by Agent Smith and Detective Simms of the Lenoir County Sheriff's Department. After giving some preliminary background information, Basden told the officers that he shot White.
National Coalition to Abolish the Death Penalty
Ernest Basden (NC) - Dec. 6, 2002 - 2:00 AM EST
The state of the North Carolina is scheduled to execute Ernest Basden, a white man, Dec. 6 for the 1992 murder of Billy White. However, now, the very same jurors that sentenced him to death are speaking out against the execution, claiming that they misunderstood the realities of the capital punishment system in light of parole laws, the ramifications of Basden’s offer to testify in another trial, and the state’s application of the death penalty.
Apparently, one juror in the Basden trial convinced the group that a death sentence, because of the technicalities involved with sentencing procedures, did not mean Basden would actually be executed. Following that erroneous lead, the members of the jury imposed the death penalty, believing that their decision secured no more than a lengthy prison term for Basden. Now, as the state prepares to carry out the execution, six of the jurors who determined the sentence oppose it.
The flaws in this case deal with the court’s improper assumption that juries understand the intricacies of capital sentences. Countless juries have misunderstood the realities of their penalty phase decisions, and the court’s simple opinion that jurors should not consider parole has led to unknowledgeable jurors determining sentences based on mistaken presumptions. To avoid steering juries toward the death penalty, the court needs to better inform jurors by explaining the real options and dispelling the myths that lead to preventable death sentences.
The state intends to execute Basden for shooting Billy White as part of a plot by the victim’s wife, Sylvia, to claim life insurance benefits. Basden, dragged into the scenario by his nephew and drug supplier, Lynwood Taylor, allegedly shot Billy White for $300. He confessed to the murder, and although both Taylor and Sylvia White received prison sentences, Basden received the death penalty.
The U.S. Fourth Circuit Court of Appeals found Basden to be “an intoxicated, manipulated rube” and viewed the case as a whole as “troubling.” Aside from his personal history, which was indeed troubling – scarred with drug abuse, alcoholism, and personality disorders – Badsen experienced a grave injustice in his legal representation. His lawyers proved completely ineffective, most notably in failing to ask for a postponement of his sentencing hearing so that evidence in Sylvia White’s trial could come into play. The district attorney later said Lynwood avoided the death penalty because of his testimony in Sylvia White’s trial. In light of the U.S. Supreme Court’s announcement Monday, Nov. 18 to accept Kevin Wiggins’ case out of Maryland (an ineffective counsel claim), this case should not move one step closer to execution until the courts resolve this issue.
This pending execution not only displays the arbitrary nature of the capital punishment process; it also shows that the death penalty system thrives on those with the fewest resources and most tragic backgrounds. Please write the state of North Carolina and request clemency for Ernest Basden.
"Condemned Killer Executed After Governor Denies Clemency," by Estes Thompson. (December 6, 2002)
RALEIGH, N.C. - A man hired to kill an insurance agent, and who later found religion and led services on death row, was executed by injection early Friday. Ernest Basden, who was recruited to shoot Billy White of Kinston a decade ago, was pronounced dead at 2:19 a.m. at Central Prison.
Basden was put to death about seven hours after Gov. Mike Easley denied his request for clemency, despite pleas earlier this week from relatives and defense lawyers for mercy.
The victim's son said the execution would help his family close a sad chapter in their lives. Basden as recruited to kill White, shooting him twice with a single-shot shotgun, by White's wife, Sylvia. "It's been a hard, long time in the White family," said son Stephen White of Columbia, S.C. Basden's sister, who watched him die along with her brother and three members of the White family, said simply that her brother "went with courage and dignity."
Investigators were aided by Basden after he confessed to the Jan. 20, 1992, slaying. He told them where to find the gun, which had been cut into pieces, buried in concrete and thrown into the Trent River. Basden has been a good prisoner with no disciplinary infractions since coming to death row. His family said the slaying occurred because Basden was depressed and using drugs and alcohol, a period one called a "darker side of life."
In his last statement, Basden reiterated his guilt and asked forgiveness. "I killed Billy White. I'm sorry for it. And I pray that his family will come to forgive me and let time heal their wounds. And that's all we can do," he said.
Just before he was injected, Basden kept his eyes closed as he was rolled out on a gurney in front of his family and other witnesses. His brother blew him a kiss while White's relatives sat quietly in the death chamber holding hands. "What created the void in his life was losing his mother at age nine or 10," said his brother Gerry Basden, a retired Kinston fire marshal who watched the execution.
Authorities said White's wife paid to have her husband murdered. Basden and Linwood Taylor lured White to a deserted Jones County logging road, telling him that someone else wanted to buy a large insurance policy. Taylor and Sylvia White also were convicted in the case and are serving life sentences. Prosecutors said the case was handled properly and Basden's conviction came largely because he confessed.
Defense lawyers said he was under the influence of his nephew, who gave Basden drugs and alcohol. They said Basden was depressed and that his sentence was harsher than those of his accomplices. Six jurors signed statements that they 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.
Basden was the 22nd criminal executed in North Carolina since the death penalty was reinstated in 1977. His execution was the first this year in the state; another is scheduled Tuesday at 2 a.m. for Desmond Carter, who killed an elderly neighbor who refused to give him money to buy drugs.
Carter's brother, Tyrone Wallace of Holyoke, Mass., held a candle and stood with about a dozen death protesters outside Central Prison. He said he was there because he opposed capital punishment and he wanted to let the Basden family "know they're not alone."
CNN Law Center
"North Carolina Man Executed for Murder of Insurance Agent." (AP December 6, 2002)
RALEIGH, North Carolina (AP) -- A man who killed a North Carolina insurance agent a decade ago as part of a murder-for-hire scheme was executed by injection early Friday.
Ernest Basden, 49, was put to death hours after Gov. Mike Easley denied his request for clemency, despite pleas from relatives and defense lawyers to spare his life. Basden was convicted of shooting Billy White to death in 1992.
In an interview Tuesday, Basden said he was sorry for what he had done. He said he had become a Christian after being locked up, was a leader in prison services and believed he could help other prisoners if his life was spared.
"I'm very sorry for their loss," Basden said of White's family. "If there was any way at all I could undo it I surely would."
Authorities said White's wife paid to have her husband murdered. The insurance agent was killed when his wife, Basden and Basden's nephew lured him to a deserted Jones County logging road, authorities say. Basden shot White twice with a shotgun.
Basden was the 22nd criminal executed in North Carolina since the death penalty was reinstated in 1977.
New Bern Sun Journal
"Death Penalty Opponents Decry Basden's Fate," by Barry Smith. (November 20, 2002)
RALEIGH -- Death penalty opponents on Tuesday cried out for a moratorium on executions in the state as they pointed to the scheduled execution of Ernest Basden of Jones County and another man. "There are three people involved in the death of that victim," said former N.C. Supreme Court Justice Harry C. Martin, who is one of Basden's attorneys. "Ernest is the only one who got the death penalty." Martin and others, saying that the death penalty in North Carolina is currently being carried out in an unfair way, renewed calls for a moratorium in the state.
Basden is scheduled to die by lethal injection Dec. 6 for the 1992 murder of Billy White.
The death penalty opponents said that it is unfair to put Basden to death while two co-defendants and masterminds of the murder plot -- Lynwood Taylor, Basden's nephew, and Sylvia Ipock White, Billy White's wife -- received life sentences. Bill Andrews, the Jones County district attorney who prosecuted the case, and Dewey Hudson, the current DA, disagree with that assessment. "Only one person pulled the trigger; that was Mr. Basden," Hudson said, adding that juries are reluctant to impose a death sentence unless they do the actual act. Andrews agreed.
"He was approached about killing Mr. White, thought about it for a while and then did it," Andrews said. He said that Basden shot Mr. White, reloaded his gun and shot him again. "That's pretty cold-blooded," he said. "I think it takes a more evil person to actually do a killing than it does talking about doing a killing." Andrews said the evidence against Mrs. White, who pleaded guilty to second-degree murder, was not as strong as the evidence against Basden.
Martin said that he and other attorneys for Basden hope to convince Gov. Mike Easley to grant clemency to him and spare their client's life. Cari Boyce, Easley's communications director, said that the clemency meetings would be held the first week in December.
Martin said attorneys would appeal to Easley to consider the disparity in the sentences meted out. He said that attorneys would try to show that Basden had inadequate counsel and that his lawyers should have tried to delay the sentencing phase of the trial until after Basden had an opportunity to testify in the trial of co-defendants.
Richard Taylor, CEO of the N.C. Academy of Trial Lawyers, noted that standards for defense lawyers in capital cases are now higher than they were in the past. He argued that the higher standards should apply to those on death row and said the state should delay further executions until such standards are met. Inadequate counsel has been an issue in nine of the 11 cases that have gone to Easley for clemency decisions, Taylor said.
Basden was convicted in 1993 in a murder-for-hire plot that involved collecting insurance benefits on Mr. White. Taylor pleaded guilty to first-degree murder and was given a life sentence. Mrs. White pleaded guilty to second-degree murder and was also sentenced to life. She was also found guilty of murder in the death of her stepson in 1973. Mrs. White is currently serving two consecutive life sentences. Taylor is serving a life sentence.
Kinston Free Press
"Murderer Executed This Morning," by Sandy Wall. (December 6, 2002)
RALEIGH - Convicted killer Ernest West Basden was executed by lethal injection early this morning for the January 1992 shotgun slaying of Kinston insurance salesman Billy Carlyle White Sr.
The 50-year-old Jones County man made no eye contact with witnesses as the lethal chemicals were admininstered to him intravenously. Before he died, Basden made the following statement: "I killed Billy White. I'm sorry for it and I pray that his family will come to forgive me and let time heal their wounds and that's all we can do. "There's got to be forgiveness for the healing to start and the only way to do that is through Jesus Christ." Basden appeared to die peacefully. He was pronounced dead at 2:19 a.m.
Basden shot White twice in a murder-for-hire scheme devised by co-conspirators James Lynwood Taylor, his nephew, and Sylvia Ipock White, the victim's wife. Basden and Taylor lured the victim to a remote logging road off N.C. 58 in Jones County where Basden, drunk on alcohol and high on drugs supplied by Taylor, shot the victim twice with a shotgun. Taylor gave his cash-strapped uncle $300 for the killing. Basden was convicted in Duplin County in 1993 of first-degree murder and of conspiracy to commit murder. He was sentenced to die.
Rose Clark of Kinston, Basden's sister and most vocal supporter, witnessed her brother's execution. Afterwards she told media members that her brother had died bravely. "I just want you to know, my brother went with courage and dignity," she said.
Later, Stephen White of Columbia, S.C., one of the victim's sons, thanked the state for carrying out the jury's 1993 verdict. "We now can hopefully have some closure in our lives," he said. Stephen White wore a white knit shirt with his father's photograph on it that read: "World's Best."
Basden, who was moved to Central Prison's steel-celled "death watch" area around 4 p.m. Wednesday, spent his last hours Thursday visiting with relatives and his attorneys in the prison's visiting area, Department of Corrections officials said. Outside, about a dozen protesters braved the cold weather for a vigil outside Central Prison. They stood near a banner that read: "The death penalty makes us all murderers." Basden was secured to a hospital gurney in a preparation room outside the death chamber shortly before 2 a.m. There, intravenous lines of saline were started in each of his arms, and he was covered with a light blue sheet. He wore undershorts and socks, but no shirt.
He was wheeled into the death chamber by prison guards around 1:50 a.m., where 10 witnesses, two prison officials and four media representatives, including The Free Press, witnessed his execution. While not making eye contact with witnesses, Basden turned his head to the right briefly, and appeared to say something to someone behind a curtain shortly before his death. Basden did not request anything special for his last meal Thursday night, choosing instead to eat what all others at Central Prison ate. The menu included breaded veal, brown gravy, mashed potatoes, three-bean salad, mixed vegetables, slices of loaf bread, an orange and fruit punch.
In an interview Tuesday, Basden, now a self-professed Christian, said he expected to go to heaven if he died today. He also said he was not sure what he would say to God when he got there. "I expect I'll be in awe for a few days," Basden told The Free Press earlier this week.
Durham Herald Sun
"Lawyers, Family Members Appeal in Basden Case," by Estes Thompson. (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.
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.
* * * *
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.
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.