State v. McKay

• Decision Date: 15 October 1984
• Citation: 680 S.W.2d 447
• Parties: STATE of Tennessee, Appellee, v. Larry McKAY and Michael Eugene Sample, Appellants.
• Court: Tennessee Supreme Court

Page 447

680 S.W.2d 447

STATE of Tennessee, Appellee, v. Larry McKAY and Michael Eugene Sample, Appellants.

Supreme Court of Tennessee,

at Jackson.

Oct. 15, 1984.

On Petition to Rehear Nov. 19, 1984.

A.C. Wharton, Jr., Shelby County Public Defender, Edward G. Thompson, Robert W. Jones, W. Mark Ward, Asst. Public Defenders, Stanley Fink, Memphis, for appellants.

William M. Leech, Jr., Atty. Gen., Gordon W. Smith, Asst. Atty. Gen., Nashville, for appellee.

OPINION

FONES, Justice.

Defendants, Larry McKay and Michael Eugene Sample, have appealed their convictions of murder in the perpetration of armed robbery and sentences of death. The jury found Sample guilty of three aggravating circumstances and McKay guilty of four aggravating circumstances and no mitigating circumstances as to either defendant. We affirm the convictions of murder in the first degree and the death sentences.

I.

On August 29, 1981, at approximately 11:00 p.m. Melvin Wallace, Jr., went into the L & G Sundry Store at 1069 North Watkins in Memphis to purchase two barbecue sandwiches. When he entered, there were four men in the Sundry Store, including two clerks, Benjamin Cooke and Steve Jones, who were known to Wallace as he was a regular customer. The other two black men were the defendants, Larry McKay and Michael Eugene Sample. Wallace did not know them but positively identified them in a line-up at 2:43 p.m. on August 31, 1981, as the murderers of Cooke and Jones and Sample as the person who shot him in the thigh and back and attempted to shoot him in the head.

Wallace testified that he went to the back of the store where Cooke had gone to prepare the sandwiches. McKay was also standing in the back with a quart of 45 Beer mumbling to himself. Not wanting to get involved with a drunk, Wallace turned and directed his attention to the front of the store where Jones and defendant Sample were standing. When he thought the sandwiches would be ready, he looked around at Cooke and saw that McKay had gone behind the counter and was holding a gun at Cooke's head. When Wallace realized "it was a robbery" and "broke and ran for the front door," Sample hollered for him to halt and shot him in the thigh. Wallace tried to play dead but Sample came over and said, "This nigger ain't dead," and shot him in the back. Wallace had heard Sample demanding that Jones give him all the money and heard Jones say, "Man, I gave you everything I had." After hearing Sample say several times, "I ought to kill all you son-of-a-bitches," Wallace heard him say, "Kill every son-of-a-bitch in here," and the defendants started shooting. Wallace testified he saw McKay shoot Cooke in the head. Sample came back to where Wallace was lying on the floor and put a pistol to his head. It clicked several times and did not go off. Wallace testified that he "came up off the floor" and started wrestling with Sample. The gun went off past Wallace's head and he lapsed into unconsciousness. When Wallace woke up, he heard Sample say, "Let's get the hell out of here."

Cooke and Jones died from the bullet wounds to their heads; but when the police arrived shortly after the killers left, Wallace was able to give them information about the episode and gave a description of the killers while he was receiving medical care at the scene and at the hospital. One of the investigating officers remembered that a grocery store across the street from the L & G Sundry Store had been robbed about ten days earlier, and that the witnesses had said the robbers were two black males wearing blue-green surgical caps. Among the items taken in that robbery was a .45 caliber automatic pistol that had a tendency to misfire. Shell casings from a .45 caliber automatic were found in the Sundry Store; and putting together leads from the two robberies, the police apprehended Sample and McKay the next day. They were in a car with a third man, and the .45 automatic with the serial number of the pistol stolen from the grocery across the street was found on McKay. A .32 caliber revolver was found inside the car. Bullets recovered from Jones' cheek, Cooke's head and chest and Wallace's leg had been fired from the .32 caliber revolver found in the car. Two blue hospital surgical caps were found in the car. More than two hundred and perhaps as much as seven hundred dollars in cash was stolen from the Sundry Store; and McKay, who was unemployed, had $166.30 on his person when arrested. Sample had $195 in cash at that time. The third man in the vehicle testified to incriminating circumstances linking defendants to recent criminal activity.

Charles Rice, age sixteen, went to the L & G Sundry Store to buy cigarettes and as he arrived at the door he saw the robbery in progress, specifically the gun pointed at the head of one of the clerks. He turned and ran home and told his mother what he had seen and later reported the information to the police. He made a positive identification of both defendants.

II.

Both defendants raise the issue that the evidence is insufficient to justify a rational trier of fact in finding guilt beyond a reasonable doubt. The proof that these defendants robbed the Sundry Store and gunned down the two clerks and attempted to murder Wallace, briefly summarized in Section I of this opinion, was overwhelming. We find the evidence was sufficient to convince any rational trier of fact of the guilt of McKay and Sample of the murder of Cooke and Jones in the perpetration of armed robbery beyond a reasonable doubt, fully satisfying the standard prescribed in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), and T.R.A.P. 13(e).

McKay asserts that "the evidence indicated that [he] did not inflict any wounds on the victims" and that all of the victims were shot with a .32 caliber weapon, "which was allegedly carried by appellant Sample." It is true that there is uncertainty as to who carried or fired the .45 caliber pistol and who carried or fired the .32 caliber pistol at any particular time. Wallace identified Sample as the one who shot him in the hip and back and had a pistol to his head that misfired several times. The bullets removed from his hip and back were .32 caliber but the gun with a tendancy to misfire was the .45 caliber, according to the circumstantial evidence in the case. Cooke's death resulted from a .32 caliber bullet that was removed from his head. The cause of death of Jones was also a bullet to the head but that bullet left an entry wound and an exit wound and its caliber was not positively ascertained although a .45 caliber hull was found lying beside Jones' head. Thus, there was evidence to support findings that Jones was killed with the .45 caliber pistol and Cooke with the .32 caliber pistol. But, if in fact McKay did not fire a fatal bullet he was obviously a principal, actively participating, aiding and abetting Sample. Both defendants were jointly indicted for the felony and common-law murder of Cooke and jointly indicted for the felony and common-law murder of Jones with the felony and common-law counts separate. The jury found both defendants guilty of the felony murder of Cooke and of Jones. The evidence would have sustained a verdict on the common-law counts, beyond a reasonable doubt.

The recent United States Supreme Court case of Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982), provides no solice to McKay. In Enmund the Court held that the death penalty could not be imposed upon one who aids and abets in a felony but who does not kill, attempt to kill or intend that lethal force be employed. The defendant Enmund waited in a car while two others committed the felony and murder in the perpetration thereof. Assuming McKay did not fire either of the fatal bullets, there was evidence beyond a reasonable doubt that he attempted to kill and employed lethal force and, of course, strong circumstantial evidence that he intended to kill. Both caliber pistols were fired numerous times in the store. There is no merit to McKay's contention.

We have heretofore considered and rejected all of the arguments advanced by defendants asserting that Tennessee's Death Penalty Statute is unconstitutional except one. See State v. Austin, 618 S.W.2d 738 (Tenn.1981). The new contention was sparked by the case of Grigsby v. Mabry, 569 F.Supp. 1273 (E.D.Ark.1983). Therein, social scientists convinced a federal district judge that excluding persons adamantly opposed to the death penalty from serving on the jury during the consideration of the issue of guilt or innocence violates a defendant's constitutional right to a fair and impartial trial. The short answer to that issue is that the United States Supreme Court has so far rejected similar contentions and that is the only federal court we are bound to follow. See, e.g., Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968).

A number of issues were raised involving the voir dire, failure to grant individual voir dire, Witherspoon questions, exposure to prejudicial publicity and other complaints about the trial judge's conduct of the voir dire. We have carefully considered all of the contentions of both defendants with respect to the voir dire and found them to be without merit.

Defendants sought dismissal of the indictment on the grounds that Shelby County has discriminated against women in the selection of grand jury forepersons. The reasons we gave in State v. Coe, 655 S.W.2d 903, 909-10 (Tenn.1983), for finding that Coe had no standing to raise a sex discrimination issue with respect to the composition of the grand jury are applicable in equal force to the contention of each defendant in this case.

Defendants contend that they were arrested illegally and that the evidence acquired at that time should have been suppressed. It was abundantly clear that the information known to the officers about the suspects in the Sundry Store murders coupled with their observation of the...