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North Carolina v. Shook

Filed: July 26, 1990.

STATE OF NORTH CAROLINA
v.
ANTHONY GEORGE SHOOK



Appeal of right pursuant to N.C.G.S. ยง 7A-27 from judgment entered by DeRamus, J., in the Superior Court, Forsyth County, on 25 February 1988, sentencing the defendant to life imprisonment for murder in the first degree.

Mitchell, Justice. Justice Webb concurring.

Mitchell

The defendant was tried in a noncapital trial upon a true bill of indictment charging him with the murder of Peggy Lou Epley. The trial court submitted and instructed the jury on possible verdicts finding the defendant guilty of first-degree murder or not guilty. The jury found the defendant guilty of first-degree murder on the theory that the killing was premeditated and deliberate. The District Attorney having announced that there was no evidence of aggravating circumstances, the trial court sentenced the defendant to life in prison.

The State's evidence at trial tended to show that Peggy Epley was placed in the intensive care unit of the North Carolina Baptist Hospital in Winston-Salem due to renal failure. She was moved in and out of the intensive care unit five times prior to her death. During October 1986, Peggy Epley's life was maintained by a ventilator, dialysis, and intravenous infusions of blood pressure medication.

On 8 October 1986, the defendant, a registered nurse, specifically asked to care for Peggy Epley during his shift. Having been advised of the patient's condition by Nurse Scott, the defendant stated, "[w]ell, you know, one of these days her blood pressure is going to drop and she's not coming back." During the early morning of 9 October 1986, the patient's blood pressure began to drop. The defendant managed to raise her blood pressure by increasing the rate of infusion of norepinephrine, a blood pressure medication. She remained stable until 6:00 a.m. At this time, the defendant

prepared and administered a new bottle of norepinephrine. The defendant also prepared a backup solution of epinephrine, to be used if the patient failed to respond to the norepinephrine. Mean-while, the patient's blood pressure remained stable.

The defendant was relieved around 7:00 a.m. by Nurse Bryant. The defendant informed Nurse Bryant about Epley's condition. He also informed Nurse Bryant that he had prepared a new infusion of norepinephrine which was being administered to the patient at that time. Further, he pointed out that he had mixed a backup solution of epinephrine which was ready for use if there was a problem. Having been relieved, the defendant then left the hospital.

Around 8:15 a.m. on 9 October 1986, Epley's blood pressure dropped. Her blood pressure continued to drop despite increased rates of infusion of the norepinephrine solution which the defendant had mixed. Since Epley did not respond to the norepinephrine solution, she was switched to the backup solution containing epinephrine. As with the norepinephrine, the patient did not respond to the infusion of epinephrine which the defendant had mixed. Eventually, the patient died due to a loss of blood pressure.

Suspecting that something was wrong with the norepinephrine and epinephrine solutions prepared by the defendant, state authorities sent samples of the solutions and the tubings used to administer them to the Federal Bureau of Investigation for analysis. Analysis revealed that the norepinephrine solution prepared by the defendant contained no trace of the medication. Analysis also revealed a discrepancy concerning the epinephrine solution prepared by the defendant. Although the defendant had written on the label that the epinephrine solution contained the prescribed amount of the drug, the FBI analysis revealed that the solution only contained one-tenth of the amount of the drug indicated on the label. The Chief Medical Examiner testified that the immediate cause of Peggy Epley's death was the removal of such pharmacological support and the resulting drop in her blood pressure.

On 26 August 1987, State Bureau of Investigation agents David Barnes and J. T. Readling contacted the defendant in Charlotte, North Carolina at the Emergency Medical Services Substation. During the interview, the defendant discussed his care for Peggy Epley on the morning that she died. In response to the defendant's statements, agent Barnes stated that he believed that the defendant intentionally withheld Epley's blood pressure medication by

mixing the solutions without the prescribed drugs. At one point during the interview, the defendant agreed with the agent's theory and stated that his decision to use the improperly mixed medication had been "spontaneous." He further stated that he had wanted Epley to finish dying. Thereafter, the defendant ended the interview.

At trial, the defendant testified on his own behalf. He testified that he had done everything within his power to care for Epley, despite the fact that her grim condition had discouraged him. He denied ever mixing Epley's blood pressure medications improperly. Even though the labels on the solution bottles bore his signature, he testified that some unknown person had mixed the solutions.

Dr. Kenneth Brassfield, a doctor of pharmacology, testified that norepinephrine and epinephrine break down rather quickly after being mixed in a solution. He further testified that subsequent tests run on the solutions would indicate a lower amount of the medication than originally mixed and that there is a lack of scientific data concerning the reliability of the tests. Therefore, Dr. Brassfield did not trust the FBI's analysis of the blood pressure solutions used on Epley.

Additional evidence and other matters relevant to the defendant's specific assignments of error are discussed at other points in this opinion.

By an assignment of error, the defendant contends that the trial court committed reversible error by admitting evidence of incriminating statements he made to two SBI agents. At trial, SBI agent David Barnes testified as follows:

At that time Mr. Shook said that he drew blood gases throughout the morning to determine what Mrs. Epley's oxygen content was; and that while he was gone to the lab to get these results, he had asked either the charge nurse or some other nurse to watch Mrs. Epley while he went.

And [he] stated that he had asked someone to mix the new drips but could not recall who he had asked. And further stated that he was busy getting the crash cart ready and that when the unknown person or person he couldn't recall had mixed the drips and handed them to him already mixed

that he then put labels on the bottles and hung those bottles that he signed.

At this point in the interview I stopped him and told him that the evidence that I had in my possession and the interviews that I had conducted along with the other investigators showed me that what he was telling me was not true. And I then stated to him the theory . . . that Mr. Shook did, in fact, mix these drips and -- but without the prescribed medications in them; and the reason that this was done, in the opinion of the investigators based on the investigation, was to allow Mrs. Epley to pass away or to die.

Mr. Shook at that time dropped his head much like this, looked in a downward fashion. He was sitting on a counter in the kitchen at the time and stated, "what's going to happen to me if I say yes?"

I told him that I would make the people who had a need to know this information aware of it. And . . . Mr. Shook stated that he helped her out. Mr. Shook stated that he knew how hard it is to let go of a loved one and that Mr. Epley did not want to let Mrs. Epley go. Mr. Shook further stated that he has always in the past been able to foresee a patient's needs and had never done anything like this before. Mr. Shook stated that he did not put any epinephrine in the drip, but thought he had asked someone to mix the [norepinephrine] and thought the [norepinephrine] was in the drip.

I stopped him again and stated that he had just told me that he helped Mrs. Epley pass away and that it would make no sense then to maintain that he placed life-sustaining fluid in that [norepinephrine] drip. And he -- agreed with that. Mr. Shook stated it had become difficult for him to go into Mrs. Epley's room each day and that he felt that Mrs. Epley would expire or pass away within the next several days. And he said that he, quote, I -- he said, I quote, "I just wanted her to finish dying." Mr. Shook stated that it was a spontaneous decision to hang the improperly mixed drips. He said that he was aware of what would happen if the epinephrine drip contained no epinephrine, that Mrs. Epley would die or pass away. Then he stated that he wanted to see how she would do without

the epinephrine and that he had her down to almost no epinephrine . . . that morning.

I asked Mr. Shook if he knew of any crime that had been committed. He stated he wasn't sure any crime had been committed.

The defendant argues that the trial court improperly admitted evidence of his confession because there was no independent evidence that a criminal act had been committed. We disagree.

[1, 2] In noncapital cases, such as this, where the State relies upon a confession to obtain a conviction, it is not necessary "that there be independent proof tending to establish the corpus delicti of the crime charged if the accused's confession is supported by substantial independent evidence tending to establish its trustworthiness, including facts that tend to show the defendant had the opportunity to commit the crime." State v. Parker, 315 N.C. 222, 236, 337 S.E.2d 487, 495 (1985). In this case, the State introduced substantial independent evidence tending to establish the trustworthiness of the defendant's confession. Although the victim was extremely ill, the evidence tended to show that she remained in a relatively stable condition with her blood pressure at a reasonable level if she received intravenous infusions of the prescribed doses of norepinephrine or epinephrine. At the time of the victim's death, the solution she was receiving intravenously contained no norepinephrine. When the victim did not respond to the solution labeled as containing norepinephrine, she was switched to a different solution labeled as containing epinephrine. However, that solution was not effective since it only contained one-tenth of the prescribed amount of epinephrine indicated on the label. Each solution had been prepared and labeled by the defendant. This evidence closely parallels the defendant's confession and tends to establish its trustworthiness.

Further, the uncontroverted cause of the victim's death was the removal of pharmacological support and resulting drop in her blood pressure. This too tends to corroborate those parts of the defendant's confession in which he stated that he improperly mixed the victim's medication and negates the possibility that the defendant confessed to a crime which had not been committed. We conclude that the defendant's confession was supported by sufficient independent evidence of its trustworthiness to be admissible. This assignment of error is without merit.

{PA}

Page 81} [3] By another assignment of error, the defendant contends that the trial court committed reversible error in failing to instruct the jury on the lesser included offense of involuntary manslaughter. The trial court submitted two possible verdicts for the jury to consider: guilty of first-degree murder and not guilty. The defendant argues that the evidence also required an instruction on and submission of a possible verdict finding him guilty of involuntary manslaughter. We disagree.

While involuntary manslaughter is a lesser included offense of first-degree murder, the trial court was not required to submit a verdict on that lesser included offense unless it was supported by evidence. See State v. Strickland, 307 N.C. 274, 298 S.E.2d 645 (1983). If, however, there was any evidence introduced tending to support the lesser included offense of involuntary manslaughter, then it was the trial court's duty to submit a possible verdict for that offense after appropriate instructions. Id. Upon a review of the record, we conclude that the evidence presented at trial would not have supported a verdict finding the defendant guilty of involuntary manslaughter. Therefore, the trial court did not err by failing to submit a possible verdict on that offense to the jury.

The evidence tended to show that the victim died as a result of having her life-sustaining medications withheld. The defendant argues that the evidence at trial would have supported a reasonable finding by the jury that he negligently mixed the victim's medication solutions improperly. At trial, however, the defendant simply testified to the effect that he had not prepared the victim's medication or done anything else wrong, either intentionally or unintentionally. In his pre-trial statement to the SBI agents, on the other hand, he indicated that he knowingly withheld the victim's medication with the intent to cause her death, but that he did so "spontaneously." We find no evidence in the record or transcript sufficient to support a reasonable finding by the jury that the defendant negligently and unintentionally withheld the medication from the victim. Therefore, the evidence would not have supported a verdict finding the defendant guilty of involuntary manslaughter, and the trial court did not err in failing to submit such a possible verdict to the jury. This assignment of error is without merit.

[4] By another assignment of error, the defendant argues that the trial court improperly overruled his objection to highly prejudicial opinion testimony. During the State's direct examination of

Gerald Epley, the victim's husband, the following exchange took place:

Q. Did there come a time when she was moved back to intensive care that you had occasion to become acquainted with the defendant?

A. Yes.

Q. And will you point out the defendant to us, please?

A. Right there in the middle.

Q. Mr. ...


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