McNeal v. State
| Citation | 551 So.2d 151 |
| Decision Date | 06 July 1989 |
| Docket Number | No. 58333,58333 |
| Parties | Donald Eugene McNEAL v. STATE of Mississippi. |
| Court | Mississippi Supreme Court |
F. Holt Montgomery, Gulfport, for appellant.
Mike Moore, Atty. Gen. by John R. Henry, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
Before DAN M. LEE, P.J., and SULLIVAN and ANDERSON, JJ.
Today's appeal is from an adverse ruling of the Circuit Court of Jackson County, Mississippi. On June 6, 1986, Donald Eugene McNeal was convicted of the crime of murder and sentenced to serve a term of life imprisonment in the Mississippi Department of Corrections.
Aggrieved by the lower court's final order, Donald McNeal appeals and assigns as error:
I. The Lower Court Erred in Refusing to Grant Defendant's Jury Instruction on Circumstantial Evidence.
II. The Lower Court Erred in that the Evidence, Being Circumstantial, was Insufficient to Support a Guilty Verdict. Alternatively, the Jury's Verdict was Contrary to the Great Weight of the Evidence.
III. The Appellant was Denied the Effective Assistance of Counsel.
IV. The Lower Court Erred in Allowing Photographs of the Deceased's Body into Evidence.
V. The Lower Court Erred in Admitting into Evidence the Tape Recording of Appellant's Telephone Conversations.
VI. The Lower Court Erred in Allowing an Unqualified Witness to Testify as to the Probable Disposition of Life Insurance Proceeds in the Event of a Conviction.
Finding error in assignment IV, we reverse and remand this case for a new trial.
Donald Eugene McNeal (hereinafter "McNeal") met his future wife, Darlene Collier McNeal (hereinafter "Darlene"), while both were on active duty in 1981 as medical technicians in the Air Force. The couple began to date in late 1981 and in early January of 1982. They continued to see each other after they were both transferred to Keesler Air Force Base in Biloxi, Mississippi. On June 4, 1982, Donald and Darlene were married in Darlene's hometown, Bay St. Louis, Mississippi.
The McNeals continued to live on the Mississippi Gulf Coast after they were married and discharged from the Air Force. McNeal took a position as an officer with the Biloxi Police Department. Soon thereafter, the couple was blessed with a daughter, April Dawn. At this time, they bought a home in a subdivision of neighboring Ocean Springs, Mississippi. The McNeals made a sizeable down payment on the house and kept their monthly payments to a minimum of $159.
According to McNeal, he and his wife had an unusual marriage relationship. Darlene had her own set of friends who never visited in the McNeal home. She enjoyed the Biloxi night life, going out to various local bars and lounges on an average of three or four times a week. McNeal, on the other hand, would not accompany her and her friends on these occasions, preferring to stay at home with their daughter, April Dawn. However, McNeal, a native of West Virginia, did have one or two close male friends with whom he would occasionally go out for a drink. One of these friends was a man by the name of Shawn Darsey.
The McNeals received a set-back when McNeal was discharged from the Biloxi Police Department. According to McNeal, his discharge surrounded his giving numerous traffic citations in the Sunkist Country Club area. McNeal stated, "I was brought into the inspector's office and told in no uncertain terms not to use any direct control techniques in that area." McNeal retained counsel, and his Civil Service appeal was set to be heard soon after the incident in question. Due to his arrest, after Darlene's death, the hearing concerning his discharge never took place.
In spite of McNeal's termination from the police force, the family was able to survive this hard time through Darlene's two jobs. Darlene worked both as a secretary for the Ross-King-Walker Insurance Agency and, in the evening, as a cocktail waitress for the Golden Turtle Lounge in Biloxi. She also had her income from active status in the Air Force Reserve. McNeal, while waiting for reinstatement to the police force, cared for April Dawn, then three years old. McNeal and Darlene were confident that his position would be restored after the Civil Service hearing.
While McNeal was still on the police force, he and Darlene began to receive various crank calls, some from traffic offenders whom he had arrested. Consequently, he had his telephone number unlisted. When these calls continued, McNeal installed a recently-developed device by which only persons possessing special "access codes" could call his house. Additionally, unbeknownst to Darlene, McNeal also installed a tape recorder which automatically recorded all telephones conversations made to the McNeal home.
On September 2, 1985, hurricane Elena ravaged the Gulf Coast. The McNeals evacuated to Jackson, where McNeal, Darlene and April Dawn spent a few nights in a hotel. Before leaving their home, the McNeals secured Donald McNeal's eight-week-old puppy in the kitchen area. They realized they could not take him to a hotel.
After the hurricane, the McNeals returned to their home. They found that their house had suffered storm damage. Several trees and large limbs were down, including some on the roof, causing leakage and water damage to the ceiling of their home. The ceiling insulation was saturated. According to McNeal, at Darlene's request, he left the living room windows open to equalize the expected hurricane pressure. Consequently, part of the living room carpet was drenched. Additionally, the family dog had escaped from the kitchen and urinated all over the rest of the carpets in the house. The family's ability to clean up the mess was limited by the fact that they were without electric power for three weeks after they returned. To cope with this situation, McNeal purchased a generator and also a large 12-volt maintenance-free car battery, to which he hooked up hand-held lights to maintain some visibility after dark.
The McNeals were obviously anxious to get their home back into shape. Darlene was admittedly more enthusiastic about Don cleaning up and painting the house than Don himself was, a fact which caused some friction between them. However, McNeal promised Darlene that the house would be completely redone on the last weekend of the month, which would have been the dates of September 27, 28 and 29, 1985.
Prior to this time, McNeal had already spent one day helping to clean up the hurricane damage and debris at the home of his good friend, Shawn Darsey. In return, Darsey and another friend named Marvin Foster had agreed to help McNeal repair the damage to his home, including replacing the water-soaked insulation and painting the damaged walls. The day for the clean-up was set to take place on Sunday, September 29, when all three men would be free. According to McNeal, this plan was made one to one-and-one-half weeks prior to the specified date. McNeal bought the paint for the job on Friday, September 27, 1985, at the local K-Mart. That same day, Friday, September 27, Darlene worked all day at Ross-King-Walker Insurance Agency. Usually Darlene only worked three days a week at the insurance agency; however, due to the claims coming in from hurricane damage, Darlene and her boss worked overtime. That evening, Darlene was scheduled to also work at the Golden Turtle Lounge; however, she did not go in to work. According to McNeal, she went out that evening with one of her friends.
On Saturday morning, September 28, 1985, Darlene and McNeal worked together, cleaning up the house and yard. That afternoon, Darlene received a call from her good friend, Lisa Marie Brandenburg, a medical technician in the Air Force. Darlene met Lisa while in the Air Force. Lisa called Darlene to see if she wanted to go to the Seafood Festival in Biloxi. Darlene said that she really preferred to go to the Oktoberfest. Around 4:00 or 4:30 Saturday afternoon, Lisa picked up Darlene at the McNeal home; Lisa did not enter the home.
Accompanying the two women was Dan Christophel, Lisa's "roommate." The threesome went to Gulfport to the Oktoberfest. Finding little activity when they arrived, they returned to Biloxi to a seafood festival. While there, Darlene bought two feathers to wear in her hair.
At about 9:00 or 9:30 that evening, Dan, Lisa and Darlene returned to Lisa's and Dan's house. At that time, Lisa was waiting on a friend from Birmingham, Connie Smith, to arrive. Lisa asked Darlene to stay and meet this friend; however, Darlene said that she better get home. Then, Dan took Darlene home so that Lisa could wait on her friend to arrive. Dan was gone about 30 or 45 minutes. The trip from Lisa's house to Darlene's house was about a 20-minute drive. Dan dropped Darlene off at about 10:00 o'clock. This was the last time anyone other than McNeal saw Darlene alive.
At about 10:30, the same night, Saturday, September 28, Lisa called Darlene. Lisa's conversation on the telephone was in relation to a radar detector for her friend Connie Smith. Lisa, knowing that McNeal was a policeman, believed that he would have known where to get a radar detector. According to Lisa, Darlene chatted easily and showed no signs of emotional upset.
McNeal confirmed the fact that his wife arrived at their home at 10:00 on Saturday night. McNeal was already in bed and the baby was already asleep. The conversation between Lisa and Darlene was also confirmed by McNeal. According to McNeal, after Darlene got off the phone, she came into the bedroom and said "Don, I'm going to my parents for the rest of the weekend." McNeal testified that Darlene changed clothes. She had been wearing a dark blue sweater and a pair of blue jeans. McNeal also related the fact that Darlene said that she was not taking one of the family cars. 1 Darlene said that she was riding with a friend to her parents' house. Supposedly, at this time, Darlene left for the weekend.
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