State v. McKoy, No. 585A85

Docket NºNo. 585A85
Citation372 S.E.2d 12, 323 N.C. 1
Case DateSeptember 07, 1988
CourtUnited States State Supreme Court of North Carolina

Page 12

372 S.E.2d 12
323 N.C. 1, 57 USLW 2195
STATE of North Carolina
Dock McKOY, Jr. a/k/a Dock McCoy a/k/a Dock McKay a/k/a Paul McCoy.
No. 585A85.
Supreme Court of North Carolina.
Sept. 7, 1988.

[323 N.C. 6] Lacy H. Thornburg, Atty. Gen. by Steven F. Bryant, Asst. Atty. Gen., for the State (original brief and argument); Lacy H. Thornburg, Atty. Gen., James J. Coman, Senior Deputy Atty. Gen., William N. Farrell, Jr., Joan H. Byers, Sp. Deputy Attorneys. Gen., Steven F. Bryant, and Barry S. McNeill, Asst. Attys. Gen., Raleigh, for the State (supplemental brief and argument).

Malcolm Ray Hunter, Jr., Appellate Defender by David W. Dorey, Asst. Appellate Defender, for defendant-appellant (original brief and argument); Malcolm Ray Hunter, Jr., Appellate Defender, and Louis D. Bilionis, Raleigh, for defendant-appellant (supplemental brief and argument).

E. Ann Christian and Robert E. Zaytoun, Raleigh, for North Carolina Academy of Trial Lawyers, amicus curiae.

John A. Dusenbury, Jr., Asheville, for North Carolina Ass'n of Black Lawyers, amicus curiae.

WHICHARD, Justice.

Defendant was convicted of the first degree murder of Deputy William Kress Horne of the Anson County Sheriff's Department. The jury found as aggravating circumstances that defendant previously had been convicted of a felony involving violence and that the murder was committed against a deputy sheriff while engaged in the performance of official duties. It found as mitigating circumstances that defendant's capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law was impaired and that defendant has borderline intellectual functioning.

The jury recommended the death penalty, and the trial court sentenced accordingly. We find no error.

Haywood Haskell lived beside defendant outside of Wadesboro. On 22 December 1984, Haskell was working on his wife's car. He observed defendant fire two shots into the air. Haskell suggested that defendant's shooting could endanger the neighborhood children, but defendant responded that "everybody else is shooting" and "well, it's Christmas."

[323 N.C. 7] Haskell telephoned the Anson County Sheriff's Department, and Deputy Calvin Lambert responded. After discussing the situation with Haskell, Lambert walked onto defendant's porch and attempted to talk with him. Lambert asked defendant to step out onto the porch, but defendant remained inside. Lambert told defendant not to shoot his gun because he was drunk and might hurt someone. He then returned to his car and observed defendant's home for several minutes before leaving the area.

Page 15

Later, Haskell saw defendant lying in front of his outhouse. Because defendant could not stand unaided, a neighbor helped him to his house. Defendant had locked himself out, and the neighbor helped him gain entry by prying open a window. A few minutes later defendant hailed Duke Cox, a neighborhood teenager, and asked Cox to help him fix the window. Cox attempted to help, but he soon left because defendant refused to provide a hammer. When Cox walked away, defendant accused him of stealing some money and fired three shots in his direction.

Prompted by this incident, Haskell again called the sheriff's department. Deputies Robert Usery and Kress Horne responded. They asked defendant to come outside; defendant responded by threatening to kill them if they did not leave. More officers arrived, and Usery decided to investigate in back of defendant's house while Horne stood behind the patrol car and continued to talk to defendant. While Usery circled behind defendant's house, Horne drew his revolver and braced himself across the patrol car. Defendant pushed open his screen door and fired one shot that hit Horne in the face. Horne later died from the resultant injuries.

The other officers surrounded the house, and Usery advised defendant that he would use tear gas if defendant did not come out. Hearing no response, Usery threw a tear gas canister into the house. After defendant fired two shots, the officers returned a short burst of fire. Defendant then walked out, and the officers took him into custody. Because defendant was bleeding from two wounds, the officers transported him to the Anson County Hospital.

There, Dr. Merceda Perry examined defendant. Perry found two bullet wounds, and he noticed a strong odor of alcohol. He treated a puncture wound on defendant's buttocks and a deep laceration on his forehead, which he closed with sutures. Initially, [323 N.C. 8] Perry found that defendant responded incoherently to his questions. At approximately 6:30 p.m., Perry ordered a blood alcohol test which indicated that defendant's blood alcohol level was equivalent to a .26 reading on the breathalyzer scale. Although defendant remained intoxicated, he had become more coherent by 7:20 p.m., the last time Perry saw him. In Perry's opinion, defendant would have become more coherent still by 8:30 p.m. At 8:15 p.m., Perry released defendant into the custody of S.B.I. Agent Carl Jackson for delivery to Central Prison in Raleigh.

Jackson and two deputy sheriffs placed defendant in a van and drove him to the sheriff's department, where warrants were served on him. They then drove toward Raleigh. When defendant complained that he was thirsty, the officers purchased two soft drinks, which defendant consumed. Jackson read defendant his rights, and defendant orally agreed to waive them. Defendant refused to sign a written waiver because his head injury prevented him from seeing the waiver form. Defendant made several statements during the trip admitting that he killed Deputy Horne because Horne "pressured" him.


Defendant contends that the jury's verdict of guilt, and its conclusion that death is the appropriate punishment, are "fatally undermined" by the fact that both the trial court and the prosecutor informed the jury that the trial was subject to appellate review. The factual basis of the argument is as follows:

First, at the outset of the trial the court identified the court reporter to the jurors and explained:

The lady right down here in front of me in the blue dress is Melody Courtney. She's a court reporter. She will be taking down everything that's said or done during the trial so that everything is a matter of public record and then she can type up a transcript of a trial and they mail it down to the Supreme Court and the Supreme Court can review what we're doing up here in Stanly County.

Defendant did not object to this statement, and the court continued its general explanation of the duties of various court personnel.

Page 16

[323 N.C. 9] Second, in his closing guilt-phase argument, the prosecutor stated the following:

And you may say, well, what is our role? Now, the Judge will tell you what your role as a trial juror happens to be. As we understand your role, you are the finders of fact, simply that. You don't decide what the law is. You don't interpret the law. The law is given to you by the Judge and he tells you what the meaning of that law is, and he will tell you how you--he will tell you how to apply that law which he gives to you to the facts that you have found from the sworn testimony.

The jury is simply a fact--a body that finds facts. That's all you're here for. There is no appeal in your finding of facts. There is a right of appeal to any interpretation of laws and application of laws which are present in this case. The defendant, if convicted, as we say he certainly should be from the evidence and under the law, he can appeal on points of law,--


MR. LOWDER: --questions of law,--


MR. LOWDER: --but he cannot appeal from your findings of fact.

The legal basis of defendant's argument is grounded, essentially, in this Court's decisions in State v. White, 286 N.C. 395, 211 S.E.2d 445 (1975) and State v. Jones, 296 N.C. 495, 251 S.E.2d 425 (1979), and in the United States Supreme Court's decision in Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985). The pertinent aspects of these cases are as follows:

In White, the prosecutor argued:

"[Y]ou will answer the question whether this defendant is guilty of first degree murder. If found guilty, he gets an automatic appeal to the Supreme Court of North Carolina--it is necessary. If any error is made in this court, that Court will say."

[323 N.C. 10] White, 286 N.C. at 402, 211 S.E.2d at 449. The trial court sustained defendant's objection and instructed the jury: "[D]on't consider what he said about the Supreme Court." Later, as it began its charge, the court gave the following instruction:

"I want to go back to the argument that was objected to in the argument of counsel that the Supreme Court has a right to send this case back on mistakes. The reason I sustained that objection, I want you all to understand is that the Supreme Court will review this case. That they would only send the case back if I make a mistake on a legal question. They will not review the decisions of the facts by the jury. The jury is the sole trier of the facts of this lawsuit."

Id. at 402-03, 211 S.E.2d at 449. We explained that an argument suggesting that the jury can "depend upon either judicial or executive review to correct any errors in their verdict, and to share their responsibility for it, is an abuse of privilege and prejudicial to the defendant." Id. at 403, 211 S.E.2d at 450. The prosecutor's argument, we said, "was clearly intended to overcome the jurors' natural reluctance to render a verdict of guilty of murder in the first degree by diluting their responsibility for its consequences." Id. at 404, 211 S.E.2d at 450. While the court accurately stated that this Court will only review questions of law, the instructions were nonetheless held inadequate to cure the impropriety because they "did not fully enlighten the jury as to the nature of the Supreme Court's review of a case on...

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