State v. McKeithan

• Decision Date: 07 November 2000
• Docket Number: No. COA99-872.,COA99-872.
• Citation: 140 NC App. 422,537 S.E.2d 526
• Parties: STATE of North Carolina v. Henry Michael McKEITHAN.
• Court: North Carolina Court of Appeals

537 S.E.2d 526

140 NC App. 422

STATE of North Carolina v. Henry Michael McKEITHAN.

No. COA99-872.

Court of Appeals of North Carolina.

November 7, 2000.

Attorney General Michael F. Easley, by Assistant Attorney General Joan M. Cunningham, for the State.

Bain & McRae, by Alton D. Bain, Lillington, for the defendant.

EAGLES, Chief Judge.

This appeal arises out of the joint trial and conviction of defendant and one of his two accomplices for two brutal murders. The second accomplice was tried and convicted separately.

The State's evidence showed that seventeen year-old defendant Henry Michael McKeithan participated with Vera Lee (Lee) and Robby Brewington (Robby) in the murders of Frances and Brian Brewington. Eighty-two year old Frances was Robby's grandmother and Brian's great-grandmother. Eight-year-old Brian was Robby's nephew and the son of Robby's brother Patrick. Robby, Brian and Frances lived together in Dunn.

The genesis of these murders was an intimate relationship between Robby and Lee. The couple planned to marry and purchase a trailer. However, their lack of funds and poor credit prevented them from fulfilling their dream. In order to obtain the necessary money, Robby and Lee conceived a plan to kill Brian and Patrick and collect life insurance benefits on their lives. Accordingly, Robby fraudulently acquired life insurance policies on Brian and Patrick by falsifying Patrick's signature. The face value of the policy on Patrick was $75,000.00 while the policy on Brian was for $58,552.00.

Shortly after Robby obtained the insurance policies, Lee began to solicit individuals to kill Brian and Patrick. Her friend Chris Wilson testified that Lee talked constantly of killing Brian and harbored great resentment for Frances. At one point, Lee offered Wilson $10,000 to kill Brian. Lee also attempted to recruit Wilson's roommate Danielle to participate in the killings.

In mid-May of 1997, Lee approached the defendant. According to the defendant's statement, Lee offered him $1300.00 to murder Patrick. The two searched for Patrick on three separate occasions to commit the crime. Apparently, Lee then became disenchanted with the idea of killing Patrick and focused her attention on Brian. Defendant told the SBI that he was hesitant about this idea and had suggested to her that they kidnap Brian for ransom instead. However, Lee rebuffed defendant's suggestion.

On 1 June 1997, Robby and Lee began to plan the murders. Robby told Lee to make it look like a robbery, to stab "Grandma" and Brian and set the house on fire. On 11 June 1997, Robby talked to Lee on the phone and they finalized plans for that night. Around midnight, defendant and Lee went to Wilson's apartment. Lee again began to talk about killing either Brian or Patrick. Lee and Wilson argued and Lee angrily left the house with the defendant.

After leaving Wilson's apartment, Lee and the defendant drove past Robby's house honking the horn to wake him up. According to Robby's statement, he heard the horn at approximately 3:00 a.m. Upon hearing the car horn, Robby got up and began dressing for work. He "got (his) Sunday shoes and (his) Sunday best for Brian and grandma's funeral." He took these belongings along with the insurance policies and drove to Hardee World to meet with Lee and the defendant. While Robby was preparing, the defendant and Lee were buying two gallon jugs at Winn-Dixie and filling them with gasoline. In the Hardee World parking lot, Robby placed some of his belongings in the back of Lee's car.

Lee and the defendant then started back to the Brewington home. On their way, the two decided that "it would be nice if we made it look like a burglary, like they had got up and we freaked out and we stabbed them." Defendant and Lee parked behind the Brewington house. Each put on rubber gloves and took a gallon jug of gasoline. The pair entered the house through the back screen door and went to the bedroom where Brian and Frances both slept.

Once in the bedroom, Lee handed the knife to the defendant and told him to kill Brian. However, defendant hesitated and told Lee that he could not do it. Instead he grabbed a jug of gasoline and began pouring it around the bedroom. When he finished, Lee handed the defendant another knife and told him to kill "the old lady" and that she would handle Brian. Lee placed the knife to Brian's throat waking him up. Brian began to scream awaking Frances. Frances shrieked, "[w]ho are you" and then began yelling "[o]h, Lord. Oh Lord." Defendant then began to stab Frances repeatedly.

When defendant stopped stabbing Frances, he began to look for his lighter. Realizing that he had left his lighter outside, defendant ran to the car. While defendant was outside, Lee ignited a dishrag in the heater and when the defendant returned, she threw the lighted rag onto the gasoline. As defendant ran out of the burning bedroom, he heard Frances scream, "[o]h, help me. Help me. Oh." Defendant and Lee raced to the defendant's house where they burned their clothes and gloves and buried the knife.

On the morning of the murders, Harnett County Sheriff's Deputy Jerry Edwards was reporting to work at approximately 6:15 a.m. Edwards saw smoke coming from Frances' residence and called his dispatch officer to contact the Harnett County Fire Department. After the firefighters extinguished the fire, officers conducted a preliminary investigation. The officers concluded that the fire was deliberately set. The officers based this conclusion on the following factors: (1) the color of the smoke and flames; (2) the elimination of the appliances and electrical wiring as possible causes; (3) the "pour pattern" of the gasoline; (4) the odor of gasoline and (5) the presence of the half full gallon jug of gasoline.

Detective Billy Wade of the Harnett County Sheriff's Department, along with SBI Special Agents Gail Beasley and John Hawthorne, began a criminal investigation that included an interview with Robby. During the interview, Robby confessed his involvement and implicated both Lee and the defendant.

On 13 June 1997, Wade and Hawthorne obtained arrest warrants for defendant and arrested him at his house. Wade read defendant his Miranda and juvenile rights at that time. Once at the Dunn Law Enforcement Center, Wade readvised defendant of his rights and completed the juvenile rights form. Defendant waived his rights and made a statement admitting his involvement in the murders. A jury convicted the defendant of two counts of first degree murder, one count of first degree arson, one count of first degree burglary, and one count of conspiracy to commit murder. Defendant received consecutive life sentences for the two murders, and incarceration for 64-86 months for first degree arson, 64-86 months for first degree burglary, and 157-198 months for conspiracy to commit murder. Defendant appeals.

I. Juvenile Rights Form

Defendant first assigns error to the trial court's denial of his motion to suppress his confession. Defendant claims that he did not knowingly, willingly and voluntarily waive his rights under G.S. § 7A-595 (1995) (repealed by N.C. Sess. Laws 1998-202 s. 5 eff. July 1 1999), Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) and State v. Miller, 344 N.C. 658, 477 S.E.2d 915 (1996). The trial court found as a fact that Special Agent Billy Wade advised defendant both orally and in writing of his rights under Miranda and G.S. § 7A-595. We note that G.S. § 7A-595 has been repealed and replaced with G.S. § 7B-2101 (1999) which offers juvenile defendants similar guarantees effective 1 July 1999. See S.L.1998-202 s. 6. Defendant stated that he understood his rights, was willing to waive his rights and executed a written waiver. The record establishes that Agent Wade read defendant the following warning:

You have the right to remain silent ... Anything you say can be used against you in court. You have the right to talk to a lawyer for advice before we ask you any questions and to have him with you during questioning. If you cannot afford a lawyer one will be appointed for you before questioning if you wish. You have the right to have your parent, guardian, or custodian with you during questioning. If you decide to answer questions now without a lawyer, parent, guardian or custodian present, you will still have the right to stop answering questions at any time until you talk to a lawyer, parent, guardian, or custodian.

Defendant argues that there is no requirement of indigency or financial need in order for an attorney to be appointed under the juvenile statute. Defendant contends that the warning here is contrary to G.S. § 7A-595's mandate that a juvenile is always entitled to an attorney regardless of financial stature. Accordingly, defendant contends that because defendant did not know his rights, defendant could not have knowingly, voluntarily and willingly waived his rights.

Obedient to State v. Flowers, 128 N.C.App. 697, 497 S.E.2d 94 (1998), we hold that the trial court committed no error and that the warning given fully satisfied the requirements of G.S. § 7A-595. In Flowers, this Court considered the following warning given to a juvenile.

You have the right to remain silent. Do you understand this right? Anything you say can be and may be used against you. Do you understand this right? You have the right to have a parent, guardian, or custodian present during questioning. Do you understand? You have the right to talk with a lawyer for advice before questioning and to have that lawyer with you during any questioning. If you cannot afford to hire a lawyer, one will be appointed to represent you at no cost before any questioning, if you wish.

Flowers, 128 N.C.App. at 700, 497 S.E.2d at 96. This warning is nearly identical to the warning given here. While not directly addressing the arguments advanced here, the Flowers Court pronounced that "this warning fully satisfied the requirements of N .C. Gen....