McNeill v. Branker
| Decision Date | 17 February 2009 |
| Docket Number | No. 5:04-HC-467-BO.,5:04-HC-467-BO. |
| Citation | 601 F.Supp.2d 694 |
| Court | U.S. District Court — Eastern District of North Carolina |
| Parties | Elmer Ray McNEILL, Jr., Petitioner, v. Gerald BRANKER, Warden Central Prison, Raleigh, North Carolina, Respondent. |
Kenneth J. Rose, Sarah Holladay, Durham, NC, for Petitioner.
Sandra Wallace-Smith, N.C. Department of Justice, Raleigh, NC, for Respondent.
This matter is before the court on the petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254, on behalf of Elmer Ray McNeill, Jr. ("Ray," "McNeill" or "Petitioner").1 Respondent answered and filed a motion for summary judgment, and Petitioner filed a response. An evidentiary hearing was held on September 29-30, 2008, and October 9, 2008, on petitioner's claim that he received ineffective assistance of counsel in the investigation and presentation of mitigating evidence at sentencing. The parties submitted post-hearing briefs, and the matter is now ripe for ruling.
McNeill was tried and convicted of two counts of first-degree murder, conspiracy to commit armed robbery, and armed robbery at the March 4, 1996, criminal session of the Superior Court of Wake County. The following facts are summarized from the opinion of the Supreme Court of North Carolina. See State v. McNeill, 349 N.C. 634, 509 S.E.2d 415 (1998).
The victims, Robert Michael Truelove and John David Ray, were employees at the Food Lion store on the corner of Strickland Road and Six Forks Road in Raleigh, North Carolina. On the night of September 19, 1993, John Ray's wife went to the store to pick him up from work. When he did not come outside and when no one answered the door she called 911, Officer Mike Liptak responded to the call and arrived at the store around midnight. Officer Liptak could see money tills and an open safe through a front window. Additional officers arrived at the scene. When they entered the store, the body of John Ray was discovered inside the meat locker and the body of Mike Truelove was found in the back of the store. Both men had been shot and according to the store manager, $2,300 was missing from the store.
The Petitioner's brother, Robert McNeill, worked at the Food Lion and was immediately considered a suspect by the police. After the police spoke with Robert they questioned Petitioner because he was part of Robert's alibi. Petitioner and Robert were later charged as co-perpetrators.
At trial, Chris Thornhill testified that he and Petitioner were friends and were together in Raleigh on September 19, 1993. Thornhill said that he had shown Petitioner a .357 Magnum revolver he had purchased from a man named Zane Bryant. After Thornhill and Petitioner checked into the Innkeeper Motel between 7 and 8 p.m., Petitioner took the gun and left the motel. Thornhill said that when Petitioner returned around midnight he appeared dazed and was having trouble hearing. Petitioner told Thornhill he sold the gun to a man who approached him at a gas station and the man hit him on the ear. Thornhill said that on September 19th Petitioner had about one hundred dollars, but the next day he had a vinyl bag with about eight hundred dollars and a thick roll of one-dollar bills.
On September 23, 1993, the police collected an empty Ruger Blackhawk .357 Magnum box and a partial box of shells from Zane Bryant. Zane Bryant testified at trial that in early September he sold Chris Thornhill the revolver which came in the box. He said that when he sold the gun it was already loaded from the partial box of shells the police had collected. A forensic expert testified that in his opinion the bullet jackets recovered from both victims were fired from the same gun, either a Ruger or a Rohm. He testified that the bullets at the crime scene were the same type as the bullets in the box taken from Zane Bryant.2 The expert also testified that the small gun parts found at the crime scene were from a Ruger single-action revolver.
An expert in acoustics and audiology testified that if shots were fired from a Ruger Blackhawk inside the meat cooler at the Food Lion it would have cause the shooter to experience significant temporary hearing loss such as Petitioner experienced in the days after the crimes.
A fingerprint expert testified for the State that one half of Petitioner's palm print was on the exterior rear door of the Food Lion store. A Food Lion employee, Ms. Muse, testified that Petitioner had been at the store to meet his brother on September 12, 1993. There was conflicting evidence presented at trial as to how often the doors were cleaned.
Michael McNeill, the older brother of Petitioner and co-perpetrator Robert, testified at trial. Given the paucity of evidence, his testimony was key to the State's case. He said that during a phone call with Petitioner in February 1994, Petitioner told him he was the triggerman in both murders. Michael testified that he believed Petitioner was covering up for Robert and also covering for Chris Thornhill. On cross-examination the defense elicited information suggesting Michael McNeill had become very close with Robert McNeill's wife, Tamara.
Craig Stover, a former co-worker of Robert's at the Food Lion store at the Tower Shopping Center, testified that he and Robert had robbed the Tower Food Lion in May 1993. He said that Robert had talked about doing a second robbery and about killing his manager.
Petitioner testified at trial. He said that he had moved to North Carolina with Robert's encouragement. He initially stayed with Robert, but he did not get along with Roberts's wife so he was going to get an apartment with Chris Thornhill. He claimed that Robert told him he needed a gun because someone was harassing his wife. On September 19, 1993, he called Robert to arrange to pick up his clothes and some money Robert was holding for him. He went to the Food Lion at about 10 p.m. and waited for Robert. When Robert finished work they drove to a Taco Bell in separate cars. Petitioner showed Robert the gun and Robert bought it from him for three hundred dollars. Petitioner then drove to Robert's house to wait for Robert so he could get his clothes and money. When Robert arrived he was carrying his shirt. Robert told Petitioner not to tell Thornhill that Robert bought the gun and told Petitioner to say that he had been with Robert all night. When Petitioner did not seem to take the instructions seriously, Robert hit Petitioner hard on his right ear. Petitioner agreed to do as Robert asked and got his things and left. Petitioner denied confessing to Michael and denied that he had anything to do with the murders.
Mr. Bissette, a retired member of the task force investigating the murders testified at trial. He said that Petitioner had cooperated with police and allowed them to search his vehicle. He also said that four days after the murder Petitioner did not have any problems with his hearing. Detective Harrell of the Raleigh police department testified that Thornhill had given police two different stories. An expert testified that there is no way to distinguish between trauma induced hearing loss, such as from being hit, and acoustically induced hearing loss.
Petitioner's brother Robert testified. He invoked his Fifth Amendment rights in response to most questions, but did testify that Petitioner was innocent and did not conspire with him.
At the sentencing phase of trial, the defense presented evidence tending to show Petitioner's good character.
On April 3, 1996, after a trial by jury, Petitioner was found guilty of two counts of first-degree murder, one count of armed robbery and one count of conspiracy to commit armed robbery. After the sentencing phase, the jury found three aggravating factors for each count of first-degree murder: 1) the murder was committed for the purpose of avoiding a lawful arrest; 2) the murder was committed for pecuniary gain; and 3) the murder was part of a course of conduct which included the commission of crimes of violence against other persons. The jury also found six mitigating circumstances: 1) the defendant had no significant history of prior criminal activity; 2) the defendant voluntarily served in the military and was discharged under honorable conditions; 3) the defendant committed the murders while under the instigation, direction, and influence of his older brother Robert McNeill; 4) the defendant had a good employment history, was gainfully employed at the time of the murders and has the capacity to provide useful service to society while imprisoned; 5) the defendant has been a good, helpful, kind, and trusted son, brother, nephew, and cousin, who showed loving concern for his family and was loved in return; and 6) any other circumstance or circumstance arising from the evidence which one or more of the jurors deemed to have mitigating value. On April 9, 1996, the jury recommended the death penalty on each count of first-degree murder and the judge sentenced Petitioner accordingly. The judge also sentenced Petitioner to forty years imprisonment for the armed robbery conviction and ten years imprisonment for conspiracy to commit armed robbery, the sentences to run consecutively.
On direct appeal, the North Carolina Supreme Court affirmed Petitioner's convictions and sentences. McNeill, 349 N.C. at 642, 509 S.E.2d at 420. The United States Supreme Court denied certiorari. McNeill v. North Carolina, 528 U.S. 838, 120 S.Ct. 102, 145 L.Ed.2d 87 (1999). Petitioner filed a motion for appropriate relief ("MAR") on September 22, 2000. On April 2, 2001, Petitioner filed an Amended MAR and on April 18, 2001, Petitioner filed an Amendment to MAR Affidavit of Judge Evelyn Hill. In an order entered on October 22, 2003, the MAR court summarily denied Petitioner's Amended MAR as to Claims I, II, III, V, VI,...
To continue reading
Request your trial
-
Koehler v. Wetzel
...will address only Mr. Koehler's claim with respect to the arguments, which are not evidence or testimony. Compare McNeill v. Branker, 601 F. Supp. 2d 694, 707 (E.D. N.C. 2000) (performing full review of transcripts of the petitioner's and co-defendant's trials, including evidence and testim......
-
Fulks v. United States
...the triggerman was immaterial because the intent element of the offense did not require the defendant to pull the trigger.601 F.Supp.2d 694, 706–707 (E.D.N.C.2009) (internal citation omitted). Petitioner has failed to demonstrate that the government adopted an inconsistent position rising t......
-
Cyrus v. Ballard
...the province of a federal habeas corpus court to reexamine state court determinations on state-law questions."); McNeill v. Branker, 601 F.Supp.2d 694 (E.D.N.C. Feb. 17, 2009)(Any claim by petitioner that the state court erred in denying his motion for a new trial based upon newly discovere......
-
Robinson v. Vaughan
...state-court determinations on state-law questions." Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); see also McNeill v. Branker, 601 F. Supp. 2d 694, 703-04 (E.D.N.C. 2009) ("Claims based on state court rulings on state-law questions are only cognizable on federal habeas review if they viola......
-
Protecting the innocent: part of the solution for inadequate funding for defenders, not a panacea for targeting justice.
...(4th Cir. 2010), reversed a non-capital murder case on grounds of ineffective assistance of counsel, the second, McNeill v. Branker, 601 F. Supp. 2d 694, 728 (E.D. N.C. 2009), reversed a death penalty sentence on the basis of ineffective assistance of counsel grounds, and the third, Cheek v......