State v. Keel

• Decision Date: 09 September 1994
• Docket Number: No. 134A93,134A93
• Citation: 447 S.E.2d 748,337 N.C. 469
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Joseph Timothy KEEL.

Page 748

447 S.E.2d 748

337 N.C. 469

STATE of North Carolina v. Joseph Timothy KEEL.

No. 134A93.

Supreme Court of North Carolina.

Sept. 9, 1994.

Michael F. Easley, Atty. Gen. by Valerie B. Spalding, Asst. Atty. Gen., for the State.

Thomas R. Sallenger, Wilson, for defendant-appellant.

MITCHELL, Justice.

This is the second time this case has been before this Court on appeal. The defendant was initially tried at the 12 August 1991 Criminal Session of Superior Court, Edgecombe County, at which time he was convicted of murder in the first degree and sentenced to death. Concluding that the trial court had committed prejudicial error, this Court held that the defendant must receive a new trial. State v. Keel, 333 N.C. 52, 423 S.E.2d 458 (1992).

The defendant was again tried capitally during the 5 March 1993 Criminal Session of Superior Court, Edgecombe County, for murder in the first degree. The jury returned a verdict finding the defendant guilty of that crime. At the conclusion of a separate capital sentencing proceeding conducted pursuant to N.C.G.S. § 15A-2000, the jury recommended that the defendant be sentenced to death. On 30 March 1993, the trial court entered judgment sentencing the defendant to death. Thereafter, the defendant gave notice of this appeal of right, which we now undertake to review.

Some of the State's evidence introduced during the guilt-innocence determination phase of the defendant's second capital trial in this case tended to show the following. At approximately 10:00 p.m. on 10 July 1990, the defendant Joseph Timothy Keel knocked on the door of Aubrey Thurman's mobile home. When Thurman answered the door, the defendant told him that John Simmons, the defendant's father-in-law, had been shot. Aubrey Thurman testified that the defendant's shirt was covered with blood. Simmons was outside the Thurman mobile home seated in the center of the seat of a small truck and positioned so that he faced the steering wheel. Aubrey Thurman never detected any movement on the part of Simmons. Aubrey Thurman's wife Shelby called the 911 emergency services telephone number immediately. Shelby Thurman testified that the defendant told her that Simmons had been shot in a drive-by shooting on Gay Road by a person in a station wagon.

Edgecombe County Deputy Sheriff Bob Davis testified that he was called to Baker's Park, where the Thurmans' mobile home was located, on the night of 10 July 1990. When he arrived, the defendant met him at the front door of the Thurmans' mobile home. The defendant told Davis that he had received a phone call earlier in the evening asking him to go to Shell Bank Farm, the hog farm where the defendant was employed. The defendant said that Simmons had driven him to the farm. On the way back from the farm, while Simmons was driving, someone in a station wagon had shot Simmons near the intersection of Leggett Road and Gay Road. Deputy Davis examined the truck the defendant and Simmons had been using and found that the windows were rolled down and intact. There was a bullet hole on the driver's side of the truck in the cab section and what appeared to be an exit hole made by a bullet on the interior of the truck. A pool of blood was located near the center of the seat of the truck toward the passenger side.

Sergeant Donnie Lynn of the Edgecombe County Sheriff's Department also interviewed the defendant on the night of the shooting. The defendant stated that he and his wife lived with his wife's father, Johnny Simmons. The defendant told Sergeant Lynn that on the night of the shooting, Simmons had driven the defendant to Shell Bank Farm after the defendant's boss had called to tell him to check on the hogs. The defendant stated that he had taken the company truck from the driveway of the farm manager's house and had driven that truck to the farm while Simmons followed in the small pick-up truck. After attending to business at the hog farm, the defendant left the company truck there and rode with Simmons. When they were on Gay Road near some trash dumpsters, a car passed them and the defendant heard two pops. Simmons slumped over, and the defendant then managed to stop the truck. The defendant moved Simmons over to the passenger's side of the truck and drove away.

On the night of the shooting, the defendant showed Sergeant Lynn the locations where the events he had described allegedly occurred. Sergeant Lynn testified that he found nothing in the vicinity of the Gay Road dumpsters to indicate that a drive-by shooting had occurred. Lynn testified that he returned to the farm the following day and noticed what appeared to be blood outside the farm office. He found a fired .22 caliber shell casing nearby. Inside the building, Sergeant Lynn saw blood spattered on the walls and floors and found a jumpsuit which bore blood stains. He also found a bloody mop and two boxes of .22 caliber shells, as well as some loose shells in a drawer in the office.

Dr. Louis Levy, Medical Examiner for Edgecombe County, testified that Simmons had suffered two gunshot wounds to the head. One wound was in the right malar region and the other was behind the left ear. Both were entrance wounds. Dr. Levy testified that the cause of John Simmons' death was shock resulting from these gunshot wounds.

Dr. Levy testified that, in addition to the gunshot wounds, the victim had suffered bruises and abrasions of the lips, nose and forehead. He had also suffered a blunt force injury beginning at the right eyebrow and extending upward. The victim also had suffered abrasions on his left side and hemorrhaging to his buttocks and both legs. His body also bore a figure-eight shaped lesion over the left knee.

Dr. Levy testified that the victim could not have received both gunshot wounds from the same side, since the paths of the wounds entered on opposite sides of the head. Dr. Levy opined that this configuration of wounds was inconsistent with a drive-by shooting. On cross-examination, he testified that the wounds were consistent with a .22 caliber bullet, and that the victim was alive at the time both of the wounds were inflicted.

Gary Stanbough, the manager of Shell Bank Farm, testified that he spoke by telephone with the defendant at approximately 8:00 p.m. on 10 July 1990. The defendant asked for permission to go fishing in a pond at the farm. The defendant stated that he wanted to know if he could come by to get the farm truck to drive to the pond. Stanbough allowed the defendant to borrow the truck. Stanbough testified that a single-shot .22 caliber rifle was kept behind the seat of the farm truck, but that he never saw the rifle again after the defendant borrowed the truck that night.

James Stevey, an employee of the farm, testified that he went to work on the day after the shooting. The key that was usually over the front door of the office building at the farm was missing. Stevey was able to enter the building only after the defendant entered by a side door and opened the front door from inside. Stevey had noticed a puddle of blood in front of the building and saw the defendant kick dirt over the puddle. Once they were inside the building, the defendant went ahead of Stevey into the area of the building in which workers change their clothes. By the time Stevey entered, the defendant was already running the washing machine. Stevey had never seen the defendant run the machine before. The defendant then began wiping blood off the floor with a rag. The defendant said that his father-in-law had been shot but did not admit to Stevey that he had shot the victim.

Lieutenant Jerry Wiggs of the Edgecombe County Sheriff's Department testified that he interviewed the defendant on 13 July 1990--three days after the shooting--at the office of the sheriff's department. After being advised of and waiving his constitutional rights, the defendant made a statement which Wiggs wrote down and which was signed by the defendant. In his statement, the defendant admitted that he had shot the victim at the hog farm on 10 July 1990. He stated that he had asked Simmons for a ride to the farm. When they arrived at the farm, the defendant picked up the farm truck. He then proceeded to the farm building, driving ahead of Simmons. The defendant went into the farm building upon his arrival. When Simmons drove up outside the building, the defendant was inside the building and fired a shot into the cab of Simmons' truck. Simmons got out of the truck, saying that he was hit. The defendant told him to sit down in the kitchen area of the farm building. The defendant stated that he then shot Simmons again, because Simmons had a knife and was coming after him. The defendant said that Simmons fell, but got up again, and the defendant then helped him into the truck. The defendant then drove to the Thurmans' mobile home for help. The defendant stated that he had thrown the rifle he used to shoot the victim into a hog pen. He stated that he did not know why he had shot Simmons the first time.

Cecila Edmondson, the defendant's next door neighbor, testified that on 9 July 1990--the day before the victim was shot--the defendant was standing outside her house. She overheard the defendant state that he was going to kill "the bull-headed mother f___ing son of a bitch." Edmondson testified that the victim and the defendant had been arguing before she heard the defendant make that statement.

The defendant introduced evidence tending to show the following. On the evening of 10 July 1990, John Simmons told the defendant that he had received a telephone call telling the defendant to go to work. Simmons drove the defendant to Gary Stanbough's house to get the farm truck. The defendant then drove the farm truck from Stanbough's house to the area in which the farm office was located. Upon arrival, the defendant went into the office and came back out. The defendant and Simmons began to discuss prior arguing that had occurred between the defendant and ...