Published 12:00 am Wednesday, December 2, 2009

By Mark Wineka
Salisbury Post
Marion Preston Gillespie, a Rowan County man serving a life sentence without parole for the 2003 murder of his girlfriend, will get a new trial.
In late January, the N.C. Supreme Court affirmed that the trial court erred in not allowing the defense’s expert witnesses to testify before the jury.
Doctors for Gillespie contended that his taking of the drug Pegasys, a peg-interferon meant to treat hepatitis C, had severe side effects and prevented Gillespie from knowing right from wrong.
Without the doctors’ testimony, defense attorney James Davis could not use Gillespie’s mental health as a defense and argue that Gillespie did not know the nature and quality of his acts, meaning he did not premeditate the killing of Linda Faye Patterson Smith.
At his trial in late 2004, Superior Court Judge W. Erwin Spainhour ruled that Gillespie was mentally competent, and he also granted District Attorney Bill Kenerly’s motion to keep Dr. Nathan Strahl, a Chapel Hill psychiatrist, and Dr. Jerry Noble, a clinical psychologist, from testifying.
According to Kenerly’s motion in November 2004 and acted on before the trial began, the defense’s mental health witnesses had failed to provide their reports and supporting information to Dorothea Dix Hospital, as well as to the state.
Spainhour precluded Strahl and Noble from testifying as a sanction for their violations of the discovery statute and order.
Davis filed a notice of appeal after the jury verdict.
A three-judge panel of the N.C. Court of Appeals heard the case April 19, 2006, and issued its decision Dec. 19, 2006, that Gillespie should be granted a new trial.
Special Deputy Attorney General Norma S. Harrell represented the state. James R. Glover, a Chapel Hill attorney, represented Gillespie.
The N.C. Supreme Court heard the case Oct. 16, 2007, and issued its decision Jan. 25, affirming that Gillespie should have a new trial.
The Supreme Court’s opinion said the trial court exceeded its authority under N.C. General Statute 15A-910 when it sanctioned the defendant by excluding the testimony of two of Gillespie’s mental health experts.
Nothing in the language of the statute, the Supreme Court said, indicates that the court’s authority extends as far as punishing either the state or criminal defendant ó in this case, Gillespie ó for the actions of “nonparties”( the doctors).
“The trial court based its decision to sanction Gillespie in this instance solely on the conduct of defendant’s expert witnesses, “thus acting under a misapprehension of law,” the N.C. Court of Appeals said, affirmed by the N.C. Supreme Court.
It is not known whether a new trial date has been set for Gillespie. Kenerly was not available Monday.
Testimony at Gillespie’s trial said he stabbed Smith eight times and slashed her 23 times. A long-bladed butcher knife was introduced as the murder weapon.
Gillespie showed up at the Rowan County Justice Center June 15, 2003, wearing a blood-stained T-shirt. He told the first sheriff’s deputy he saw, Bradley Bebber, that he and his girlfriend had had an argument and that she might be hurt.
She was found dead in a bathtub at the couple home’s at 640 Knox School Road in western Rowan County. Smith was 50 years old.
The state did not seek the death penalty. After four days of testimony, the jury found Gillespie guilty of first-degree murder. Spainhour immediately sentenced him to life in prison without parole.
Smith’s family had said that Gillespie mentally and physically abused her since the couple had met in 1994.
In testimony outside of the jury’s presence, Strahl said peg-interferon induces depression, agitation, irritability, anxiety, psychosis and violent behavior directed toward one’s self and others.
He said that after Gillespie started to take the drug he suffered from crying spells, had poor concentration and low energy and became increasingly depressed, lethargic, volatile, anxious and irritable.
Strahl concluded that Gillespie was depressed at the time of the assault, was not in control because of the drug and could not apply the rules of right and wrong.
Noble testified outside the jury’s presence that peg-interferon was a factor in causing Gillespie’s depression and violent behavior and that he was involuntarily intoxicated during the assault.
The state had argued successfully that without any reports from Gillespie’s mental health witnesses, staff at Dorothea Dix Hospital in Raleigh, where Gillespie was evaluated, could not know Gillespie’s state of mind during the time of the killing.
Strahl told the court that he could not send the information requested because of federal HIPPA regulations protecting a patient’s privacy and records. Also, he continued getting evidence from the prosecution through Nov. 25, 2004, which held up his report because he didn’t think he could be prepared for cross-examination without all the pertinent information.
According to the doctor, Gillespie’s health problems included cardiovascular trouble, diabetes, ailments from a lengthy period of alcohol abuse and hepatitis C with clinical depression.
Contact Mark Wineka at 704-797-4263 or mwineka@salisburypost.com.

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