State v. McCollum, 666A84

• Decision Date: 03 February 1988
• Docket Number: No. 666A84,666A84
• Citation: 321 N.C. 557,364 S.E.2d 112
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Henry Lee McCOLLUM, Leon Brown.

Page 112

364 S.E.2d 112

321 N.C. 557

STATE of North Carolina v. Henry Lee McCOLLUM, Leon Brown.

No. 666A84.

Supreme Court of North Carolina.

Feb. 3, 1988.

Lacy H. Thornburg, Atty. Gen. by David Roy Blackwell and William N. Farrell, Jr., Sp. Deputy Attys. Gen., Raleigh, for State.

Adam Stein, Chapel Hill, for defendant-appellant Leon Brown.

Malcolm Ray Hunter, Jr., Appellate Defender by Louis D. Bilionis, Asst. Appellate Defender, Raleigh, for defendant-appellant Henry Lee McCollum.

MITCHELL, Justice.

The defendants, Henry Lee McCollum and Leon Brown, were tried upon separate bills of indictment charging each of them with the first degree murder and first degree rape of Sabrina Buie. They were tried jointly during the 8 October 1984 Criminal Session of Superior Court for Robeson County. The jury returned verdicts finding each defendant guilty of both crimes as charged. The jury found each defendant guilty of first degree murder on both the theory of premeditation and deliberation and the felony murder theory. After a sentencing hearing, the jury recommended a sentence of death for each defendant for first degree murder. The trial court entered judgments on 25 October 1984 sentencing each defendant to death for first degree murder and to imprisonment for life for first degree rape. The defendants appealed to this Court as a matter of right.

A complete recitation of the evidence introduced at trial is unnecessary in resolving the issue which we find dispositive of this case on appeal. The State's evidence tended to show, inter alia, that Sabrina Buie, an eleven-year-old child, was missing from her home at approximately 12:20 a.m. on Sunday, 25 September 1983, when her father returned home from working the midnight shift at a nearby business. The child's nude body was found in a bean field in Robeson County on the afternoon of 26 September 1983.

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 was wedged in the victim's airway opening, completely obstructing the airway. Dr. Debra 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. He said that he saw the victim Sabrina Buie and a male named Darrell Suber come out of Sabrina's house at about 9:30 p.m. on 24 September 1983. McCollum and four other males joined them, 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 nearby store and bought malt liquor. When they returned, the males discussed having sexual intercourse with Sabrina. One of the males, Louis Moore, refused to participate and left.

McCollum, Sabrina and the others then walked across a bean field behind the store. They sat there in some bushes and drank the malt liquor. Suber then said that he was going to have sexual intercourse with Sabrina. The defendant Henry Lee McCollum grabbed Sabrina's right arm, and another member of the group grabbed her left arm. Suber then raped her while McCollum and the other male held her. Each man raped Sabrina while others held her. Evidence presented tended to show that two of the men also sodomized her.

Suber then said, "we got to do something because she'll go uptown and tell the cops we raped her." The defendant Henry Lee McCollum grabbed Sabrina's right arm and held her while another male grabbed her left arm. Chris knelt over Sabrina's head and with a stick pushed her panties down her throat. After they knew she was dead, McCollum and Chris dragged her body away to hide it from view.

The defendant Leon Brown gave a statement to law enforcement officers on 29 September 1983 which implicated him in the murder and rape of Sabrina Buie.

The defendants assign as error, inter alia, instructions given the jury during the guilt determination phase of their joint trial. Each defendant contends that the instructions, taken as a whole, failed to separate the cases against them and failed to insure consideration by the jury of the individual guilt or innocence of each defendant. We conclude that these assignments are meritorious and hold that each defendant must receive a new trial on the charges against him.

This Court has often found reversible error where two or more defendants are tried together for the same offense upon jury instructions susceptible to the construction that the jury should convict all of the defendants if they find beyond a reasonable doubt that any of the defendants committed the offense charged. E.g., State v. Parrish, 275 N.C. 69, 165 S.E.2d 230 (1969). In the present case, the trial court did specifically instruct the jury when stating the elements of premeditated and deliberate first degree murder: "Of course, you will be required to determine the guilt or innocence of each defendant on the basis of the evidence as presented against him." At several other points in the instructions, the trial court also used terms such as "the defendant", "each defendant", or "he" which could be construed as indicating that the trial court intended the jury to deal with the defendants' cases individually. Nevertheless, we are unable to say here, as we have said in other cases, that we are "convinced that the jurors were not misled by the portion of the charge to which defendants except." State v. Tomblin, 276 N.C. 273, 277, 171 S.E.2d 901, 904 (1970).

The trial court's instructions to the jury during the guilt determination phase of this case, taken as a whole, were readily susceptible to being interpreted as instructions to convict each defendant if the jury found that the other defendant had committed the crimes charged. Further, such instructions were not clearly limited to the jury's consideration of the theory of felony murder or the theory that the defendants had acted in concert, although the trial court did instruct the jury on those theories.

We find the following quotations from the trial court's instructions during the guilt determination phase to be fairly representative of the instructions taken as a whole. In defining the elements the State must prove...