Neill v. State

• Decision Date: 13 October 1994
• Docket Number: No. F-92-975,F-92-975
• Citation: 896 P.2d 537,1994 OK CR 69
• Parties: Jay Wesley NEILL, Appellant v. STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 537

896 P.2d 537

Jay Wesley NEILL, Appellant v. STATE of Oklahoma, Appellee.

No. F-92-975.

Court of Criminal Appeals of Oklahoma.

Oct. 13, 1994.

Rehearing Denied June 27, 1995.

An Appeal from the District Court of Comanche County; Jack Brock, District Judge.

Jay Wesley Neill, Appellant, was tried by jury and convicted of four counts of Murder in the First Degree (21 O.S.1981, § 701.7.), three counts of Shooting with Intent to Kill (21 O.S.1981, § 652) and one count of Attempted Shooting with Intent to Kill (21 O.S.1981, § 652), Case No. CRF-84-597, in the District Court of Comanche County. The jury found the existence of three aggravating circumstances and recommended punishment of death for each count of Murder, and twenty (20) years imprisonment on each

count of Shooting with Intent to Kill and Attempted Shooting with Intent to Kill. The trial court sentenced accordingly. It is from these judgments and sentences that Appellant appeals. AFFIRMED

Jim Pearson, Oklahoma City, for appellant at trial.

Don J. Gutteridge, Jr., Oklahoma City, for appellant at trial and on appeal.

Robert Schulte, Dist. Atty., Eddie Valdez, Asst. Dist. Atty., Lawton, for the State at trial.

Susan Brimer Loving, Atty. Gen., A. Diane Blalock, Asst. Atty. Gen., Oklahoma City, for the State on the appeal.

OPINION

LUMPKIN, Presiding Judge:

Appellant Jay Wesley Neill was tried by jury and convicted of four counts of Murder in the First Degree (21 O.S.1981, § 701.7.), three counts of Shooting with Intent to Kill (21 O.S.1981, § 652), and one count of Attempted Shooting with Intent to Kill (21 O.S.1981, § 652), Case No. CRF-84-597, in the District Court of Comanche County. The jury found the existence of three aggravating circumstances and recommended the punishment of death for each count of Murder, and twenty (20) years imprisonment on each count of Shooting with Intent to Kill and Attempted Shooting with Intent to Kill. The trial court sentenced accordingly. From these judgments and sentences Appellant has perfected this appeal. ¹

Appellant was found guilty of committing the murders of Kay Bruno, Jerri Bowles, and Joyce Mullenix during the robbery of the First Bank of Chattanooga in Geronimo, Oklahoma, (hereinafter referred to as the Geronimo Bank), on December 14, 1984. All three (3) victims were bank employees. Appellant was also found guilty of killing bank customer Ralph Zeller. During the robbery three other customers, Bellen and Reuben Robles, and Marilyn Roach were shot and severely wounded. For these offenses, Appellant was found guilty of three (3) counts of shooting with intent to kill. Appellant was also convicted of the attempted shooting of the Robles' fourteen month old daughter, Marie. At trial, Appellant did not contest guilt but focused his defense on the punishment stage of trial. Testifying in his own behalf, Appellant set forth the events comprising the robbery and murders, expressed his remorse for the families of the victims and asked the jury to impose punishment as life in prison without the possibility of parole instead of the death penalty.

During the fall of 1984, Appellant and Robert Johnson shared an apartment in Lawton, Oklahoma. Appellant attempted to support the both of them but had difficulty keeping a steady job. The men soon began to experience financial difficulties. In an attempt to cut expenses, they shared the apartment with Rhonda Neff and her husband. An agreement was reached whereby Ms. Neff would purchase the groceries and Appellant and Johnson would pay the rent. Appellant was unable to comply with his part of the agreement, and they fell behind in their rent. Appellant also fell behind in payments on a rental television and the utilities. Telephone service was discontinued to the apartment. Appellant purchased a car in September 1984, taking out a loan with General Motors Acceptance Corporation. That loan soon became delinquent. Appellant was also delinquent on a loan from Geronimo Bank.

Appellant and Johnson had a joint checking account at the Geronimo bank. It was not in good standing; numerous checks written on the account had been returned due to insufficient funds. Appellant and Johnson were at the bank frequently attempting to work out their money problems.

The Geronimo Bank was a small facility, housed in a prefabricated building. It usually had only two tellers and no surveillance cameras or security guards. Appellant commented on more than one occasion on the absence of the security measures and how easy he thought it would be to rob the bank.

On December 12, 1984, Appellant visited a local pawnshop and inquired about the purchase of a gun. He indicated to the clerk that he needed the gun for protection as he had been receiving threatening phone calls. Different types of guns were described to him and he was told that he must have a gun permit from the police department in order to purchase a gun. It was explained that in order to obtain a gun permit, an individual must be at least twenty-one (21) years old. Appellant was nineteen (19) years old.

The next day, December 13, 1984, Appellant and Johnson purchased two hunting type knives at a local discount store. They initially looked at purchasing a gun, but when informed the guns in that store were not real, they purchased the knives. That morning, Appellant talked with a travel agent at the Lawton Municipal Airport. He originally wanted a flight to Nassau leaving after 6:00 p.m. Friday December 14th. When told there was not a flight available, he requested one to San Francisco leaving after 5:00 p.m. that Friday. Appellant also inquired into hotel accommodations, specifically executive suites, and limousine service. When asked for payment, Appellant said he would pay in cash on Friday.

At approximately 11:30 a.m. on December 13th, twenty-one (21) year old Robert Johnson applied for a gun permit from the Lawton Police Department. At approximately 1:15 p.m. Appellant and Johnson walked into the Geronimo Bank. They stayed only a few minutes, not conducting any business but just looking around.

On Friday, December 14, 1984, at approximately 10:00 a.m., Appellant and Johnson, returned to the pawn shop and asked for a revolver seen on a previous visit. They were shown how to load and fire the gun and told the type of ammunition used and where it could be purchased. Appellant held the gun up and clicked it several times. They told the clerk they were to get the gun permit by 2:30 p.m. that afternoon and would be back then to purchase the gun.

They picked up the gun permit early, at approximately 11:30 a.m., and returned to the pawn shop at approximately 12:25 p.m. to purchase the gun. They were in a hurry to fill out the appropriate forms and pick up the revolver. Ammunition was then purchased at a local discount store. However, when placed in the gun it did not fit. The gun had been mistakenly marked as a .38 when it was actually a .32 caliber. So, the .38 caliber shells purchased were exchanged for .32 caliber shells. Between 12:30 and 1:00 p.m. Appellant hurriedly purchased lunch from a local drive-in restaurant. At approximately 12:45 p.m., Johnson went to a neighbors apartment to use the telephone. He rescheduled their travel plans for an earlier flight, leaving at approximately 2:30 p.m. that afternoon.

Shortly after 1:00 p.m., Appellant entered the Geronimo Bank. ² Bank employees Kay Bruno, Jerri Bowles and Joyce Mullenix were herded to a back room, forced to lie face down on the floor and stabbed to death. At the front of the bank, Bellen Robles had entered in order to deposit a check. Finding the teller windows empty, she looked down the hallway to the back room. There she saw the back of a man as he bent over something. She went outside to tell her waiting husband, Reuben, that she thought the bank was being robbed. He doubted this and went inside the bank with his wife and their fourteen (14) month old daughter. Entering the bank just behind them was local farmer, Ralph Zeller. Barely inside the front door, they were greeted with a gun pointed at them and told to go to the back room if they wanted to live. Once in the back room they were directed to lie down on the floor.

The Robles and Mr. Zellner were left in the back room while Appellant went up to the front of the bank to sack up the money. While he was doing so, another customer, Marilyn Roach entered the bank. Appellant pointed the gun at her and forced her to the back room. She was barely able to lie down inside the small, now crowded, room. Moments later the gunshots rang out. Mrs. Roach was shot twice in the head. Bellen and Ruben Robles were each shot once in the head. Turning his head to keep the blood out of his eyes, Ruben Robles saw the gun pointed at his baby daughter and heard it click. But no shots were fired; the gun was empty.

At approximately 1:25 p.m., Pam Matthews arrived at the Geronimo Bank to find it empty. Money wrappers were on the floor. The only sound she heard was that of a baby crying. She followed the sound to the back room and saw the victims. Calling out to see if anyone was alive, she ran to the cafe across the street and said the bank had been robbed. A patron in the restaurant, Calvin Bowles, had just been in the bank shortly before 1:00 p.m. to cash a check and visit with his nineteen (19) year old daughter Jerri. After talking with his daughter for a few minutes he left for the cafe. Shortly thereafter he heard Ms. Matthews' cries of robbery and was one of the first to arrive at the bank. In addition to the discovery of the victims in the bank, Appellant's bank file was found open on Kay Bruno's desk.

Appellant and Johnson arrived at the Lawton Airport at approximately 2:30 p.m. They paid one thousand two hundred dollars ($1,200.00) in cash for their tickets and boarded the plane; carrying only a tote bag. Appellant had left a note back at the apartment for Rhonda Neff. In it he said he and Johnson had gone...