State v. McNeil

• Decision Date: 09 February 1989
• Docket Number: No. 37A87,37A87
• Citation: 375 S.E.2d 909,324 N.C. 33
• Parties: STATE of North Carolina v. Leroy McNEIL.
• Court: North Carolina Supreme Court

Page 909

375 S.E.2d 909

324 N.C. 33

STATE of North Carolina v. Leroy McNEIL.

No. 37A87.

Supreme Court of North Carolina.

Feb. 9, 1989.

Lacy H. Thornburg, Atty. Gen. by Ellen B. Scouten, Asst. Atty. Gen., Raleigh, for state (original brief and argument).

Lacy H. Thornburg, Atty. Gen., James J. Coman, Sr. Deputy Atty. Gen., William N. Farrell, Jr., Sp. Deputy Atty. Gen., Joan H. Byers, Sp. Deputy Atty. Gen., Barry S. McNeill, Asst. Atty. Gen., and Ellen B. Scouten, Asst. Atty. Gen., Raleigh, for state (supplemental brief and argument).

Malcolm Ray Hunter, Jr., Appellate Defender by Gordon Widenhouse, Asst. Appellate Defender, Raleigh, for defendant-appellant (original brief and argument).

Malcolm Ray Hunter, Jr., Appellate Defender, Louis D. Bilionis, Asst. Appellate Defender, and Gordon Widenhouse, Asst. Appellate Defender, 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 two counts of first degree murder on the basis of premeditation and deliberation and under the felony murder rule. The court submitted and the jury found three aggravating circumstances in the murder of Elizabeth Stallings: defendant previously had been convicted of a felony involving the use of violence to the person, the murder took place during the commission of robbery with a firearm, and the murder was especially heinous, atrocious or cruel. The court submitted and the jury found two aggravating circumstances in the murder of Deborah Fore: defendant previously had been convicted of a felony involving the use of violence to the person, and the murder took place during the commission of robbery with a firearm. In both cases, the court submitted the following possible mitigating circumstances: defendant has no significant history of prior criminal activity; defendant's capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law was impaired; defendant confessed to the crime shortly after the crimes were committed; defendant has an I.Q. of seventy-eight and is borderline mentally retarded; defendant had been a good and useful employee of Rea Construction Company prior to the events of April 1983; and any other circumstance or circumstances arising from the evidence which the jury deems to have mitigating value. The jury found one or more of those mitigating circumstances, without specifying which ones. Upon the jury's recommendation, the trial court sentenced defendant to death in both cases. We find no error.

The evidence presented by the State tended to show that on 8 April 1983 defendant and Penny Faye McNeil ¹ had been drinking alcoholic beverages and discussing their need for money to pay rent. They went out driving around Raleigh. While driving, defendant saw Elizabeth Stallings, whom neither he nor Ms. McNeil knew, walking down the street. Defendant asked her if she wanted a ride. She got in the car and told defendant that she was going to the post office to get food stamps. Defendant drove her there and told her he would wait for her. After Ms. Stallings got out of the car, defendant told Ms. McNeil that he was going to rob Ms. Stallings. When Ms. Stallings came back out, defendant convinced her to go with them to have a beer and get some cocaine.

Defendant drove to a vacant house next door to his home. Defendant, Ms. McNeil, and Ms. Stallings went in the vacant house. Defendant grabbed Ms. Stallings around Dr. Gordon LeGrand, the pathologist who performed the autopsy on Ms. Stallings' body, testified that, in his opinion, she died as a result of the bullet wound to her head. He testified that she also had a stab wound in her chest, penetrating her diaphragm, liver and stomach, and an abdominal wound caused, in his opinion, by blunt trauma such as the impact of a fist or foot. There were bruises and abrasions on her left arm, left hand, left shoulder, right shoulder, right buttock, and left eyebrow. There was a wound below the left eye. A broken window frame with nails sticking out was found at the crime scene; Dr. LeGrand testified that the wound under the eye could have been caused by a blow with the window frame. Dr. LeGrand testified that, in his opinion, the stab wound, the abdominal wound, and the wounds around the left eye were premortem wounds. There was fecal matter around the anal orifice and inside the vagina. Dr. LeGrand testified that feces are "often present in the agonal phase, just prior to death, if there's any kind of struggle, or stress, or whatever, loss of continent [sic] of the bowel." In his opinion it would have taken a probing force to insert feces into the vagina.

the neck, flipped out a knife, and forced her into the bedroom to the closet. He asked her for the food stamps. She gave them to defendant, then he gave them to Ms. McNeil. He choked Ms. Stallings until she was unconscious. Defendant asked Ms. McNeil to go next door and get his rifle, which she did; then he told her to leave the room. After she left the room, she heard a shot. Defendant took off some of Ms. Stallings' clothes so it would look like someone had raped and robbed her. Defendant later sold the food stamps for around $109.00. He also sold a ring he took from her finger.

After the murder of Ms. Stallings, defendant and Ms. McNeil went to several places and drank alcoholic beverages. On 9 April 1983, the next day, they drank most of the day. On 10 April 1983 they continued to drink. Defendant told Ms. McNeil that they would need money to pay the rent because they had "rode around and drinked up the money." Defendant said that they might get money from Deborah Fore. Defendant called Ms. Fore and talked her into going out with them.

Defendant and Ms. McNeil went to Ms. Fore's home. She went with them to a store. Defendant then drove out into the country. He stopped the car, got his pistol from under the seat, put it in his belt, and got out of the car. He told the women that they had a flat tire. Ms. Fore got out of the car. Defendant shot her in the head. He took her keys and a dollar bill, then left her body by the side of the road. Defendant and Ms. McNeil went to Ms. Fore's apartment, used her key to get inside, and stole her television, her pocketbook, and a set of rings. Defendant drove to a teller machine and tried unsuccessfully to get money with Ms. Fore's teller card. He later dropped her pocketbook into an abandoned well in his back yard and sold for $90.00 the pistol he had used to kill Ms. Fore and the rifle he had used to kill Ms. Stallings.

Defendant presented no evidence during the guilt-innocence phase of the trial. During the sentencing phase, he called two witnesses. Dr. Selwyn Rose, a psychiatrist, testified that defendant is an alcoholic, and that, prior to the time of the murders, defendant and Ms. McNeil spent most of their money drinking heavily on the weekends. Al Peace testified that defendant was a good employee who worked well with others, but that he was often late to work or absent from work, particularly on Fridays.

GUILT PHASE

Defendant first contends that the trial court erred in allowing the two murder charges to be joined for trial. He argues that the murders were not transactionally related. We disagree.

The State made a pretrial motion to consolidate for trial three first degree murder charges against defendant. The three crimes with which defendant was charged occurred within a period of eight days. The court allowed the State's motion to join The statute allowing joinder of offenses provides:

the Stallings and Fore cases, but denied the State's motion to join the third case.

(a) Joinder of Offenses.--Two or more offenses may be joined in one pleading or for trial when the offenses, whether felonies or misdemeanors or both, are based on the same act or transaction or on a series of acts or transactions connected together or constituting parts of a single scheme or plan.

N.C.G.S. § 15A-926(a) (1988). The decision to consolidate for trial cases having a transactional connection is within the discretion of the trial court and, absent a showing of abuse of discretion, will not be disturbed on appeal. State v. Kornegay, 313 N.C. 1, 23-24, 326 S.E.2d 881, 898 (1985).

Defendant argues that consolidation of the two cases for trial was improper because the cases had no "transactional connection" necessary for proper joinder under N.C.G.S. § 15A-926(a). Our review of the evidence, however, shows ample support for the trial court's decision to join the two cases. The evidence showed that defendant, on the weekend of the murders, needed money to pay his rent and other bills. He apparently went out to find someone to rob on 8 April 1983. He got Ms. Stallings to ride in the car with him and Ms. McNeil, then he drove to an empty house, where he robbed and murdered her. On 10 April 1983, defendant told Ms. McNeil that they still needed money because they had spent what they had on alcohol. He apparently planned to rob Ms. Fore. He got her to ride in the car with him and Ms. McNeil. He drove out in the country, killed her, then stole several items from her apartment. These two robberies and murders were acts constituting parts of defendant's plan to obtain money for rent and other bills. He carried out his plan by getting each woman into his car, then driving to another location and killing her.

In Kornegay, the trial court consolidated for trial a charge of obtaining property by false pretenses, a charge of embezzlement, and a charge of malfeasance of a corporate agent. Kornegay, 313 N.C. at 23, 326 S.E.2d at 898. The evidence there showed that the defendant's act of obtaining funds by false pretenses from a client was part of his scheme to embezzle funds from his law firm....