State v. Keel, 457A91

• Decision Date: 18 December 1992
• Docket Number: No. 457A91,457A91
• Parties: STATE of North Carolina v. Joseph Timothy KEEL.
• Court: North Carolina Supreme Court

Page 458

423 S.E.2d 458

333 N.C. 52

STATE of North Carolina v. Joseph Timothy KEEL.

No. 457A91.

Supreme Court of North Carolina.

Dec. 18, 1992.

Appeal as of right pursuant to N.C.G.S. § 7A-27(a) from a judgment imposing a death sentence entered by Brown, J., at the 12 August 1991 Criminal Session of Superior Court, Edgecombe County, upon a jury verdict of guilty of first-degree murder. Heard in the Supreme Court on 5 October 1992.

Lacy H. Thornburg, Atty. Gen. by Valerie B. Spalding, Asst. Atty. Gen., Raleigh, for the State.

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

MITCHELL, Justice.

The defendant presented no evidence at the guilt-innocence determination phase of his capital trial. The State's evidence tended to show the following. On 10 July 1990, at about 10 p.m., the defendant, Joseph Timothy "Timmy" Keel, knocked on the door of Albry 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. The defendant told Thurman that it had been a drive-by shooting. Thurman testified that the defendant's shirt was covered with blood and that Simmons was outside in a yellow pickup truck, situated in the passenger side so that he faced the steering wheel. Simmons had a bullet wound in the right side of his head, and the truck's windows were rolled down. Albry Thurman's wife, Shelby Thurman, called 911. Shelby Thurman testified that the defendant told her that Simmons had been shot by a person riding in a red station wagon near the dumpsters on Gay Road.

Edgecombe County Sheriff's Deputy Robert Davis testified that he was called to Baker's Park, the trailer park where the Thurmans' mobile home was located, on the night of 10 July 1990. When he arrived, the rescue squad was already there. The defendant came out of the trailer and met Davis in the yard. 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 worked. The defendant said that Simmons had driven him to the farm. On the way back, while Simmons was driving, someone in a red station wagon or a large Chevrolet had shot Simmons twice when they were at the intersection of Leggett Road and Gay Road. The defendant appeared to be upset, and his shirt was covered with blood. Deputy Davis examined the pickup truck and found that the windows were rolled down. There was a bullet hole just behind the driver's side window, and there was a small pool of blood in the passenger seat near the window.

Sergeant Donnie Lynn of the Edgecombe County Sheriff's Department also interviewed the defendant on the night of the shooting. The defendant told Sergeant Lynn that he and his wife lived with the victim, Johnny Simmons, and 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 at the farm. The defendant stated that he had taken the company truck from the driveway of the farm manager's house and had driven that truck down to the farm while Simmons followed in the yellow pickup truck. The defendant said that after he checked out the farm and found nothing wrong, he took the company truck back to the manager's house and left the farm with Simmons in the yellow truck. Simmons was driving. 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 managed to stop the truck. The defendant moved Simmons over to the passenger side of the truck and drove the truck away.

On the night of the shooting, the defendant showed Sergeant Lynn where these events 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. He testified that he returned to the farm the following day, when he noticed what appeared to be blood outside the farm office and found a .22 caliber shell casing nearby. Inside the building, Sergeant Lynn saw blood spatters on the walls and floors and found a jumpsuit with blood on it. He also found a blood-soaked mop at the back of the building, some .22 caliber bullets in a drawer in the office, and a hole in the window screen of the farm office.

Dr. Louis Levy, the medical examiner for Nash and Edgecombe Counties, testified that the victim had suffered two gunshot wounds, that the shots had been fired from a distance, and that they had been fired from opposite sides of the victim's head. He testified that the victim had died of shock as a result of the gunshot wounds. Dr. Levy's opinion was that neither gunshot wound was consistent with a drive-by shooting.

James Stevey, a co-worker of the defendant, testified that he was the first to arrive at work on the day after the shooting. The key that was usually over the front door of the farm's office building was missing, so Stevey went into the building only after the defendant entered by a side door and opened the front door from the inside. This was not the normal practice, and Stevey had never seen the defendant enter the building in this way. Stevey testified that he had noticed a puddle of blood in front of the building and that the defendant had kicked 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 changed their clothes. By the time Stevey went in, the defendant was already running the clothes washer. This was unusual, because another employee usually did the washing. The defendant then began wiping blood off the floor with a rag. When Stevey asked what had happened, the defendant told Stevey that the defendant's father-in-law had been shot. Stevey also testified that he saw a bloody mop outside the building and that generally there was no animal blood in the office building, because hogs were not killed at that location.

Lieutenant Jerry Wiggs of the Edgecombe County Sheriff's Department testified that he interviewed the defendant on 13 July 1990 at the office of the Sheriff's Department. After waiving his rights, the defendant made a statement, recorded in writing by Lieutenant Wiggs and signed by the defendant, in which he admitted that he had shot his father-in-law at the hog farm on 10 July 1990. He stated that he had called the victim and asked 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 the victim. The defendant went into the farm building, and from there, he fired a shot into the victim's truck cab. The victim got out of his truck, saying he was hit, and the defendant made him sit down in the kitchen area of the farm building. The defendant stated that he shot the victim again, because the victim had a knife and was coming after him. The victim fell, but got up again, and the defendant helped him get into the truck. The defendant then drove to Baker's Park to get some help. The defendant stated that he had thrown the rifle into one of the fields in the hog pen and that he did not know why he had shot the victim.

Ceclia Edmondson, the defendant's next-door neighbor, testified that on 9 July 1990, the defendant was standing outside Edmondson's house when the victim accused the defendant of being a woman-beater and asked the defendant what kind of drugs he was taking. The defendant stated, "I'm going to kill that bald-headed, mother-f---ing son-of-a-bitch if he doesn't leave me alone." Edmondson testified that the defendant had been drinking and smelled of alcohol when he made this statement.

The defendant assigns as error the trial court's instruction to the jury on the specific intent element of first-degree murder. We conclude that the trial court erred in its instruction on the intent element of first-degree murder, that this error was prejudicial, and that the defendant therefore is entitled to a new trial.

The State specifically requested during a charge conference that the trial court give N.C.P.I.--Crim. 206.13, and the trial court agreed to give the portion of this pattern instruction relating to first-degree murder. When asked by the trial court if he had any objections to the use of this instruction, defendant's counsel replied that he had no objection. Because the State requested this instruction, and the trial court agreed to give it, the defendant's counsel had no reason to make his own request for this instruction. The State's request, approved by the defendant and agreed to by the trial court, satisfied the requirements of Rule 10(b)(2) of the North Carolina Rules of Appellate Procedure and preserved this question for review on appeal. See State v. Montgomery, 331 N.C. 559, 570, 417 S.E.2d 742, 748 (1992); State v. Ross, 322 N.C. 261, 265, 367 S.E.2d 889, 891 (1988); State v. Pakulski, 319 N.C. 562, 575, 356 S.E.2d 319, 327 (1987).

Although the trial court had agreed to give N.C.P.I.--Crim. 206.13, it actually gave the following instruction on the intent element of first-degree murder:

First degree murder is the unlawful killing of a human being with malice and with premeditation, and deliberation.

For you to find the defendant guilty of first degree murder, the State must prove five things beyond a reasonable doubt.

First, that the defendant, intentionally and with malice, killed Johnny Ray Simmons with a deadly weapon.

The phrase intentionally killed refers not to the presence of a specific intent to kill; the sense of the expression is that the act that resulted in death is intentionally committed.

....

The third, that the defendant intended to kill Johnny Ray Simmons.

Intent is a mental attitude seldom provable by direct evidence.

It must ordinarily be proved by circumstances from which it may be inferred.

An intent to kill may be inferred from the nature of the assault; the manner in which...