State v. McCollum, 2A92
| Court | United States State Supreme Court of North Carolina |
| Citation | 433 S.E.2d 144,334 N.C. 208 |
| Decision Date | 30 July 1993 |
| Docket Number | No. 2A92,2A92 |
| Parties | STATE of North Carolina v. Henry Lee McCOLLUM. |
Michael F. Easley, Atty. Gen. by David Roy Blackwell, Sp. Deputy Atty. Gen., Raleigh, for the State.
Robert H. Tiller, Raleigh, for defendant-appellant.
The defendant was indicted by the Robeson County Grand Jury for the first-degree murder and the first-degree rape of Sabrina Buie and was tried during the 8 October 1984 Criminal Session of Superior Court, Robeson County. The jury returned verdicts finding him guilty of first-degree murder on both the theory of premeditation and deliberation and the theory of felony murder and of first-degree rape. At the conclusion of a separate capital sentencing proceeding, the jury recommended a sentence of death, and the trial court entered a sentence in accord with the recommendation. The trial court also entered judgment sentencing the defendant to imprisonment for life for first-degree rape. In an opinion filed on 3 February 1988, this Court granted the defendant a new trial for errors committed in the trial court and remanded this case to the Superior Court, Robeson County. State v. McCollum, 321 N.C. 557, 364 S.E.2d 112 (1988).
After our remand, the defendant was indicted by the Robeson County Grand Jury in a superseding indictment for the first-degree murder of Sabrina Buie. Following an order changing venue to Cumberland County, the defendant was tried capitally at the 4 November 1991 Criminal Session of Superior Court, Cumberland County. The jury convicted the defendant of first-degree rape and of first-degree murder on the felony murder theory. At a separate capital sentencing proceeding, pursuant to N.C.G.S. § 15A-2000, the jury recommended and the trial court entered a sentence of death upon the verdict finding the defendant guilty of first-degree murder. The trial court arrested judgment on the conviction of first-degree rape. The defendant appealed to this Court as a matter of right from the judgment sentencing him to death for first-degree murder.
The State's evidence introduced at trial tended to show, inter alia, the following. On Sunday, 25 September 1983 at approximately 12:20 a.m., Ronnie Lee Buie noticed that his eleven-year-old daughter, Sabrina Buie, was missing from their home in Robeson County when he returned home from working the midnight shift at a nearby business. On 26 September 1983, James Shaw, a friend of Ronnie Lee Buie, found Sabrina Buie's nude body in a soybean field.
An autopsy was performed upon the body of Sabrina Buie. Linear abrasions on her back and buttocks revealed a pattern indicating that the body had been dragged over a rough surface. There was a tear or laceration deep within the victim's vagina and a tear or laceration in her anal canal. Petechial hemorrhaging, characterized as the bursting of small blood vessels caused by pressure, was observed in the victim's eyes. Similar hemorrhaging caused by a pressure mechanism was also observed in the heart and lungs. The brain appeared slightly swollen due to a lack of oxygen.
A stick and pair of panties were wedged in the victim's throat, completely obstructing the airway. Dr. Deborah Radisch, Chief Assistant Medical Examiner for the State of North Carolina, testified that the victim died of asphyxiation.
The defendant, Henry Lee McCollum, gave a statement to law enforcement officers on 28 September 1983. In this statement, the defendant McCollum said that he saw Sabrina Buie and Darrell Suber come out of Suber's house at approximately 9:30 p.m. on 24 September 1983. McCollum, Chris Brown, Louis Moore and Leon Brown joined Sabrina Buie and Darrell Suber, and the group then went to a "little red house near the ballpark." The five males tried to convince Sabrina to have sexual intercourse with them, but she refused. Two of the males went to a store and purchased some beer. When they returned, the males discussed having sexual intercourse with Sabrina. Louis Moore refused to participate and left.
The four remaining males and Sabrina then walked across a soybean field and sat in some bushes where they drank beer. Suber stated that he was going to have sexual intercourse with Sabrina. At this point, the defendant McCollum grabbed Sabrina's right arm and Leon Brown grabbed her left arm. Eleven-year-old Sabrina then began to yell, "Mommy, Mommy" and Suber then raped Sabrina while the defendant and Brown held her arms. Subsequently, each man raped Sabrina while the others held her. Leon Brown then sodomized the child while Chris Brown held her.
After the men had raped and sodomized Sabrina, Suber said The defendant McCollum grabbed Sabrina's right arm while Leon Brown grabbed her left arm. Chris Brown knelt over Sabrina's head and pushed her panties down her throat with a stick while Leon Brown and the defendant held her down. After determining that the child was dead, the defendant and Chris Brown dragged her body away to a bean field to hide it from view.
Other evidence introduced at trial is discussed at other points in this opinion where pertinent to the issues raised by the defendant.
By his first assignment of error, the defendant contends that the trial court erred in the capital sentencing proceeding by submitting to the jury the aggravating circumstance that the murder was committed for the purpose of avoiding or preventing a lawful arrest. The defendant argues that since the jury declined to convict him under a theory of premeditation and deliberation, the jury could not subsequently find that the murder was committed for the purpose of avoiding or preventing a lawful arrest. The defendant also argues that since the only person expressing the intent to avoid arrest as a basis for the murder was Darrell Suber, not the defendant, there is no evidence that the defendant acted in an attempt to avoid a lawful arrest.
N.C.G.S. § 15A-2000(e)(4) provides that the jury may consider as an aggravating circumstance justifying the imposition of the death penalty the fact that the "capital felony was committed for the purpose of avoiding or preventing a lawful arrest...." N.C.G.S. § 15A-2000(e)(4) (1988). However, before the trial court may instruct the jury on this aggravating circumstance, there must be substantial competent evidence from which the jury can infer that at least one of the defendant's purposes for the killing was the defendant's desire to avoid subsequent detection and apprehension for his crime. State v. Goodman, 298 N.C. 1, 257 S.E.2d 569 (1979).
In the present case, evidence tended to show that after the defendant and the other males had raped Sabrina Buie, Darrell Suber said, "we got to kill her to keep her from telling the cops on us." In response to Suber's statement, the defendant and Leon Brown held the child's arms while Chris Brown forced her panties down her throat with a stick until she was dead. The defendant's actions following Suber's statement were evidence of his adoption of Suber's stated motive for killing Sabrina Buie. Therefore, evidence of the defendant's actions following Suber's statement was substantial competent evidence from which the jury could find that the defendant participated in the killing to avoid detection and apprehension for the felony of rape.
The defendant also argues in support of this assignment of error that the jury "declined to convict him of murder with malice, premeditation and deliberation" and, in so doing, rejected the theory that he participated in the killing of the victim after premeditation and deliberation. The defendant contends that: "In so doing, the jury rejected the argument that Mr. McCollum 'intentionally killed the victim or that he intended that she be killed ... and that he acted with malice after premeditation and deliberation.' " The defendant argues that, as a result, the jury's verdict The defendant reasons that, having failed to find that the defendant "acted intentionally and with premeditation in the guilt phase, the jury could not then reasonably find that he acted intentionally and with premeditation in the sentencing phase." Therefore, the defendant argues that the trial court erred by permitting the jury to consider finding the aggravating circumstance that the defendant participated in the killing to avoid arrest. We do not agree.
The pertinent portions of the verdict form submitted to the jury in connection with the first-degree murder charge and the answers the jury recorded thereon were as follows:
We, the jury return the unanimous verdict as follows:
A. On the basis of malice, premeditation and deliberation?
ANSWER: ______
B. Under the first-degree felony murder rule?
ANSWER: yes
Contrary to the trial court's instructions and the requirements of the verdict sheet itself, the jury failed to give either a "yes" or "no" answer with regard to whether it found the defendant guilty of first-degree murder on the basis of premeditation and deliberation. Instead, the jury stated that it had found the defendant guilty of first-degree murder under the felony murder rule without giving any indication as to whether it had reached or decided the question of whether the defendant participated in the killing with malice and after premeditation and deliberation.
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