State v. Conaway

• Citation: 339 N.C. 487,453 S.E.2d 824
• Decision Date: 10 February 1995
• Docket Number: No. 389A92,389A92
• Parties: STATE of North Carolina v. John Lee CONAWAY.
• Court: United States State Supreme Court of North Carolina

Page 824

453 S.E.2d 824

339 N.C. 487

STATE of North Carolina v. John Lee CONAWAY.

No. 389A92.

Supreme Court of North Carolina.

Feb. 10, 1995.

Michael F. Easley, Atty. Gen. by Thomas J. Ziko, Sp. Deputy Atty. Gen., for the State.

DeVore & Acton, P.A. by Fred W. DeVore, III, Charlotte, for defendant-appellant.

PARKER, Justice.

Defendant was tried capitally on indictments charging him with the first-degree murders of Paul DeWitt Callahan and Thomas Amos Weatherford. The jury returned verdicts finding defendant guilty of both counts of first-degree murder on the theory of premeditation and deliberation. Following a sentencing proceeding pursuant to N.C.G.S. § 15A-2000, the jury recommended that defendant be sentenced to death for each murder. Execution was stayed on 16 November 1992 pending defendant's appeal. The jury also found defendant guilty of the first-degree kidnapping of Paul DeWitt Callahan, the first-degree kidnapping of Thomas Amos Weatherford, robbery with a dangerous weapon, and misdemeanor larceny. The trial court sentenced defendant to forty years' imprisonment for kidnapping Paul DeWitt Callahan, forty years' imprisonment for kidnapping Thomas Amos Weatherford, forty years' imprisonment for robbery with a dangerous weapon, and two years' imprisonment for misdemeanor larceny, each sentence to run consecutively. For the reasons discussed herein, we conclude the jury selection, guilt-innocence phase, and sentencing proceeding of defendant's trial were free from prejudicial error; and the death sentence is not disproportionate.

On the evening of 22 August 1991, Thomas Amos Weatherford and Paul DeWitt Callahan were in the Pantry store located on Highway 177 South in Hamlet, North Carolina. Weatherford was working as the night-shift clerk. Callahan, his roommate, had driven Weatherford to work at 11:00 p.m. and stayed at the store with him for several hours that night.

On 22 August 1991, defendant was living with his girlfriend at the Tall Pines housing project in Hamlet, North Carolina. Defendant, who was on parole for crimes committed in Maryland, had moved to North Carolina during the summer of 1991 to help take care of his grandparents, who lived nearby in Rockingham, North Carolina. Defendant's move to North Carolina violated the conditions of his Maryland parole because he had not received permission from his parole officer for the move. Evidence showed that defendant had stolen a .25-caliber handgun from his grandmother's purse prior to 22 August 1991, which also was in violation of the terms of his Maryland parole. Defendant kept the handgun in a drawstring bag at his girlfriend's apartment.

During the afternoon of 22 August 1991, defendant went shopping in Rockingham with Kelly Harrington and Ralph Crump. That evening defendant also met Michael McKinnon and Kevin "Keith" Scott in Rockingham. The men returned to Hamlet, and defendant met McKinnon, Harrington, and Scott in the parking lot of the Quail Hollow housing project. Quail Hollow is located Around 10:00 p.m., the four men went to the West Hamlet Grocery Store on their way to Scott's house. Defendant, who was the only one in the group old enough to purchase alcohol, bought a six-pack of Bull malt liquor in sixteen-ounce cans and a liter of Wild Irish Rose fortified wine. The four men then went to Scott's house, which was located about half a mile from the store in the Taylor Place neighborhood. They sat on the front porch and drank all of the alcohol as they discussed taking a trip to Washington, D.C., New York, and New Jersey. Defendant expressed his desire to obtain a car so he could get back to Washington, D.C. At that time, defendant's only means of transportation was a bicycle he used to get around Hamlet and to visit his grandparents in Rockingham.

across the street from the Tall Pines project where defendant was living with his girlfriend.

After consuming all of the alcohol, the four men walked back to the Tall Pines housing project so that defendant could talk with his girlfriend. He went inside the apartment for several minutes while the other men waited outside. When he returned, he was carrying a blue or red drawstring bag. He told the other men that he was fighting with his girlfriend, whom he was supposed to marry the next weekend, and that the police had come to her apartment looking for him. As the four men walked away from the Tall Pines housing project, defendant asked the others if they knew where he could get a car to use to get back to Washington, D.C. When the others told him that they did not know where he could obtain a car, he indicated that he could get one without specifying how he would do so. Defendant kept saying, "I got to do something."

The evidence showed that the four men began to walk around the streets of Hamlet. Defendant started looking for a car he could steal to drive back to Washington, D.C. He went into the street twice with the intention of flagging down a car and stealing it, but was unsuccessful both times.

Sometime between 1:30 a.m. and 1:45 a.m. on 23 August 1991, the four men went to the Pantry store on Highway 177 South in Hamlet. Defendant told the other men to wait outside while he went into the store to get more beer. While inside the Pantry, defendant stole $78.00 from the cash register and kidnapped Weatherford and Callahan at gunpoint.

McKinnon, Harrington, and Scott all testified at trial that several minutes after defendant left them to go into the Pantry, he drove up in a dark-colored car. This car was later identified as belonging to Callahan. The two victims were in the front seat of the car with defendant, who was pointing a gun at them. Defendant told McKinnon, Harrington, and Scott to get into the car. The three men got into the backseat of the car, and defendant drove away from the Pantry.

Defendant drove around Hamlet and out onto Highway 74 towards Fayetteville. He asked the victims about the condition of the car and whether it would make it to Florida, threatening them that if they lied to him about the car, he would kill them. He also threatened to "burn their a--" if they tried to turn their heads to look at the three men in the backseat of the car. He handed the gun to McKinnon, who put the gun between the victims' faces to show them it was real. McKinnon then gave the gun back to defendant, who slapped at least one of the victims on the head with the gun.

After defendant passed the Coca-Cola plant on Highway 74, he stopped the car on the side of the road in an isolated area and said, "This is a good spot right here." He told the victims that he had to go to the bathroom and ordered them to get out of the car. McKinnon, Harrington, and Scott remained in the car, while defendant walked the victims into the woods. McKinnon, Harrington, and Scott were unable to see defendant once he entered the woods, but they heard two gunshots fired several seconds apart.

The State's evidence tended to show that after getting out of the car, defendant walked the victims eighty-seven feet into the woods. He ordered the victims to get on their knees, and he shot both of them one time at point-blank range in the back of the head. The evidence did not indicate which victim was shot first. When defendant returned to the At approximately 1:45 a.m. on the morning of 23 August 1991, R.L. Wheeler and Gary Allen stopped at the Pantry on Highway 177 South in Hamlet. When they were unable to find the clerk anywhere on the premises of the store, they called the police. Officer Amery Griffin and Officer Don Norton of the Hamlet Police Department answered the call and arrived at the Pantry at 2:00 a.m. When they arrived at the Pantry, they were unable to locate either of the victims, both of whom they had seen in the store earlier that night as they drove by the Pantry on patrol. The officers found the cash register closed, with a "no sales" receipt on it indicating that the cash register had been opened but no sale had been made. The manager of the Pantry subsequently determined that approximately $78.00 had been stolen out of the cash register. Nothing else was missing from the store.

                car, he told the other three men that he had made the two men get on their knees and shot them both in the back of the head.  He also told the other men that after he shot the first man, the second victim begged defendant for his life before defendant killed him.  Defendant [339 N.C. 500] stated that "them m-----f------ don't deserve to live."   He also told the other three men that they had nothing to worry about because "deadmen can't talk."
                

On 29 August 1991, Army Sergeant Daniel Poe was flying his ultralight plane near Hamlet looking for his lost dog. He was flying at a height of approximately five hundred feet over Highway 74 when he noticed something white on the ground in the woods. Poe took a closer look and saw the victims' bodies lying on the ground in the woods about eighty-seven feet from Highway 74. Sergeant Poe landed his ultralight plane and called the police.

SBI Special Agent Aprille Sweatt investigated the crime scene. She testified that she observed the bodies at the scene and that both victims had been shot in the left back side of the head. Agent Sweatt supervised the search of the area and took custody of all the physical evidence found at the crime scene.

Detective Sam Jarrell of the Hamlet Police Department examined the crime scene using a metal detector and found two .25-caliber semiautomatic shell casings and a .25-caliber lead projectile. He testified that one of these shell casings was found approximately four feet beyond the victims' heads.

After the murders defendant and the three other men drove to Washington, D.C. Harrington got into the front seat with defendant and took turns with defendant and McKinnon driving the car. The men stopped at a gas station in Fayetteville, North Carolina; at another filling station near Smithfield, North Carolina; and at a...