State v. McNeil
| Decision Date | 21 April 2009 |
| Docket Number | No. COA08-1169.,COA08-1169. |
| Parties | STATE of North Carolina v. Anthony Leon McNEIL. |
| Court | North Carolina Court of Appeals |
Sue Genrich Berry, Wilmington, for Defendant.
On 22 May 2008, a jury found Anthony Leon McNeil ("Defendant") guilty of first degree murder and possession of a firearm by a felon. The trial court sentenced Defendant to life imprisonment without parole for the first degree murder conviction and a consecutive sentence of fifteen to eighteen months imprisonment for the possession of a firearm by a felon conviction.
The State's evidence presented at trial tended to show the following: On 15 March 2007, William Frederick Barnes ("Barnes") rode his bicycle up to the passenger side window of Vashawn Tomlin's ("Tomlin") car at approximately 10:00 a.m. Tomlin testified that Barnes wanted to wash Tomlin's car. Approximately five minutes later, Tomlin saw Defendant walk out of Defendant's house by Tomlin's car and then walk into another house. Defendant walked out of the second house and spoke to Tomlin and Barnes. Barnes asked Defendant, "What's up[?]" to which Defendant replied, "You got a nerve speaking to me, I ain't forgot what you did, I was going with her then." Barnes asked Tomlin what Defendant was talking about. Defendant tried to argue with Barnes, and "kept saying ... `I'll burn your ass[.]'" Defendant also told Barnes he would "put a hot one in him."
Tomlin testified that Defendant walked back into the first house and returned carrying a shotgun. Defendant walked from his porch toward Barnes, who was still sitting on a bicycle and leaning against the door of Tomlin's car, and Defendant shot Barnes with the shotgun. Tomlin testified Defendant walked back toward his house, then turned and walked into the street, stood over Barnes, aimed the shotgun at Barnes and fired. After shooting Barnes the second time, Defendant walked back to his house and stood in the doorway "looking crazy." Defendant then got into his vehicle and left the scene. Tomlin tried to comfort Barnes, and testified that he never saw any weapons on Barnes.
Dr. M.G.F. Gilliland ("Dr. Gilliland"), professor of pathology at the Brody School of Medicine at East Carolina University, testified for the State that Barnes had shotgun wounds to his pelvis and abdomen. Dr. Gilliland testified that the first wound to Barnes' pelvis appeared to have been inflicted by a shotgun fired approximately fifteen to twenty feet away, or possibly further. The second wound to Barnes' abdomen indicated the shotgun had been fired approximately five to fifteen feet away. The gun shots caused injuries to Barnes' internal organs, including the bowel, pancreas, and heart. The cause of Barnes' death was determined to be shotgun wounds of the torso.
Officer Arnold Samuel of the Wilson Police Department was the first officer to arrive at the scene, and he testified that he did not see any firearm in the vicinity of where Barnes was lying in the street. Adam Rech, an evidence and identification specialist with the Wilson Police Department, testified that he recovered a camouflage-patterned Mossberg shotgun from a house located a few houses away from Defendant's house. Michael Summers ("Summers"), an evidence identification specialist with the Wilson Police Department, testified that Adam Rech recovered a shotgun shell from the chamber of the 12-gauge Mossberg shotgun. Summers also identified two spent 12-gauge cartridge casings that were collected from the scene in the roadway.
At the conclusion of the State's evidence, Defendant presented evidence which tended to show the following: Mildred Woodard ("Woodard"), Barnes' cousin, testified that on a prior occasion she had seen Barnes hit Defendant on the head for no reason. Woodard testified that Defendant did not retaliate and walked away. Woodard also testified that Barnes had a reputation in the community for being a bully. On cross-examination, Woodard testified that she had given a statement to a law enforcement officer on 17 March 2007 that she was going to say she had seen Barnes with a weapon, but that she did not because it was not true. Woodard also admitted that the officer stopped the statement after catching her in several lies. Woodard told the officer that Defendant's mother had instructed Woodard to tell the police that Woodard had seen Tomlin take a gun from Barnes' body. Woodard did not do as Defendant's mother instructed, and Woodard told the officer that she knew nothing about the details of Barnes' shooting.
Sergeant Kelly Lamm ("Lamm") with the Wilson Police Department testified that he interviewed Defendant on 15 March 2007. Lamm read Defendant's statement to the court:
I've known [Barnes] since around the year 2000. I really just knew him from the streets. Then I started going to Shamone Farmer who is now my wife, Shamone McNeil. After we started dating I found out that [Barnes] used to date Shamone's mother. I learned that [Barnes] had tried to rape Shamone when she was pregnant with my child. [Barnes] and I have had problems for years. [Barnes] is always bothering me and picking on me. [Barnes] worked at the club and I would go to the club and [Barnes] would always mess or pick on me. He would call me names and tell me he was going to get me.... Today I was at my house getting ready to cook some chicken outside. I saw [Barnes] ride by on a bike. He rode by and just had a smile on his face. He rode back by the house and asked me about my car. I told him the car was not for sale. Then I asked him why he was talking to me. I told him, ["]you don't like me and I don't like you so why don't you just leave.["] [Barnes] told me, ["]you don't want it["] and started—and was staring at me. [Barnes] said, ["]I will smoke your ass.["] [Barnes] then reached towards his back as if he had a gun. I started walking toward the house. I told him I didn't want any trouble. [Barnes] kept saying, ["]you don't want none, I will smoke your ass.["] I went inside and got the shotgun. It was a pump shotgun. We keep it loaded in the house. The shotgun is loaded with five or six shells. I took the shotgun and went back outside. I came down from the porch and into the street. [Barnes] was still sitting on his bike in the street. I told him to go the hell on and leave me alone. [Barnes] kept his hand by his back as if he had a gun. [Barnes] kept saying, ["]I will smoke your ass.["] That's when I shot him. [Barnes] fell off his bike. As soon as I shot him I pumped another shell in the gun. I walked closer to [Barnes] and shot him again while he was on the ground. I turned around and went back inside my house. I told my wife to call the police. I took the shotgun and put it in my car. I drove to my grandmother's house. I put the gun in her house. I told [my] grandmother what happened. My grandmother called my Uncle Edward McNeil and Chris McNeil. They came over to her house. My uncles walked back to [sic] down to my house with me and that's when I turned myself into [sic] the police. I regret everything that has happened today[.]
Defendant testified at trial that Barnes had a reputation for violence in the community and that he was afraid of Barnes on the day he shot him. Defendant testified that on 15 March 2007, he believed Barnes had a weapon, and that Defendant saw Barnes reach behind his back like he was reaching for a weapon. Defendant had seen Barnes make that gesture on a prior occasion when Barnes put a gun in the back of his pants while at a car wash. Defendant testified that he shot Barnes upon seeing Barnes reach behind his back because Defendant was afraid. After he shot Barnes, Defendant heard something fall under Tomlin's car and he saw Barnes reaching under the car. Defendant shot Barnes a second time because he feared Barnes was reaching under the car for a weapon. Defendant never saw Barnes with a weapon, however.
Grover Crumel, Jr. ("Crumel") testified at trial that he lived in the home of a drug dealer around the corner from Defendant's house. Crumel heard a loud "pow" and a "boom" from inside the house, and ran outside to see what had caused the noise. Crumel saw Barnes lying in the street, and then saw Tomlin remove a pistol from Barnes' body before Tomlin ran inside his house.
Dr. Ezekiel Alston ("Alston"), a preacher near Defendant's house, testified that on 15 March 2007, he was ministering at another house in the neighborhood. While he was there, Barnes came into the house and made several comments that he was going to "mess [Defendant] up." Alston saw Barnes with a black gun. Alston testified that Barnes left the house and fired his gun as he rode down the street on a bicycle.
At the close of all the evidence, Defendant asked for a special jury instruction on the defense of justification for the charge of possession of a firearm by a felon. The trial court refused Defendant's request. The trial court charged the jury with the pattern instruction on self-defense, N.C.P.I. Crim. 206.10, as applied to first degree and second degree murder Although the trial court instructed the jury on the law relating to self-defense, it did not include "not guilty by reason of self-defense" as a possible verdict in its final mandate. Defendant did not object to the trial court's instructions on self-defense. In response to a jury request for re-instruction, the trial court repeated its final mandate. Defendant did not object.
The jury found Defendant guilty of first degree murder and possession of a firearm by a felon. From the trial court's judgments, Defendant appeals.
Defendant argues the trial court committed plain error by failing to provide...
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