State v. McNeill

• Decision Date: 06 June 1997
• Docket Number: No. 484A95,484A95
• Citation: 485 S.E.2d 284,346 N.C. 233
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. John Davis McNEILL.

Page 284

485 S.E.2d 284

346 N.C. 233

STATE of North Carolina v. John Davis McNEILL.

No. 484A95.

Supreme Court of North Carolina.

June 6, 1997.

Michael F. Easley, Attorney General by John H. Watters, Special Deputy Attorney General, for the State.

James R. Parish, Fayetteville, for defendant-appellant.

WHICHARD, Justice.

Defendant was indicted on 15 February 1993 for first-degree burglary and for the first-degree murder of Donna Marie Lipscomb. Defendant was tried capitally, and the jury returned a verdict finding him guilty of first-degree murder on the theories of premeditation and deliberation and felony murder. Defendant was also convicted of first-degree burglary. Following a capital sentencing proceeding pursuant to N.C.G.S. § 15A-2000, the jury recommended that defendant be sentenced to death for the first-degree murder. The trial court sentenced defendant accordingly on the murder charge and sentenced him to life imprisonment for the burglary, to run consecutive to the murder sentence. For the reasons set forth herein, we conclude that defendant received a fair trial, free from prejudicial error, and that the sentence of death is not disproportionate.

Evidence presented at trial tended to show that on the night of 17 November 1992, defendant knocked on the door of Melissa Jones' apartment. When Jones opened the door, defendant asked her for the key to the victim's apartment. Jones knew defendant and the victim were dating, and she had frequently seen defendant at the apartment. She therefore gave him the key. She then noticed that defendant had a knife in his hand. After defendant left her apartment, Jones attempted to call the police, but her telephone line had been cut.

After obtaining the key from Jones, defendant walked to the victim's apartment, unlocked the door, and pushed the door open despite the victim's efforts to hold it closed. The victim's two sons, Nat, thirteen, and John, eleven, also lived in the apartment and were present when defendant charged through the door, knife in hand. Nat tried to call the police, but the phone was not working. Defendant stabbed the victim in the chest, back, arms, abdomen, and breast before Nat was able to grab defendant and restrain him from wounding the victim further.

Detective Alex Thompson received a call indicating that there had been a stabbing at the victim's apartment. When he arrived at the apartment, defendant ran to the patrol car. Defendant was covered in blood and appeared intoxicated. He told Thompson that he was the one who had called the police and who had stabbed the victim. Defendant led Thompson to the body and repeatedly asked to be put in handcuffs. He told Thompson that he "didn't mean to do it" but that he stabbed the victim because she was "dissing" him.

At trial, defendant testified that he went to the victim's apartment to attempt to work out their failing relationship. He took a knife because he believed a man was in the apartment, and he was hoping to scare off the man so he could talk to the victim alone. Defendant admitted that he went to the junction box and pulled out all of the telephone wires so he and the victim could talk uninterrupted. When defendant got inside the apartment, he and the victim began arguing and shoving one another. Defendant then stabbed her. Defendant testified that he did not intend to kill the victim.

Defendant first contends that his federal constitutional right to effective assistance of counsel was violated by his attorney's admission to the jury during closing argument that defendant was guilty of second-degree murder. Prior to trial, defendant introduced to the trial court a written stipulation wherein he admitted that he "did inflict multiple stab wounds" on the victim and that "[t]hese wounds caused her death." Subsequently, during closing remarks, defense counsel argued that "[t]his is not a case of first degree murder; it's a case of second degree murder," and that counsel "[has] the permission of [defendant] to tell you that he's guilty of second degree murder." Defendant now contends that he did not so consent and that the stipulation was not intended to be a concession to second-degree murder. He argues that pursuant to State v. Harbison, 315 N.C. 175, 337 S.E.2d 504 (1985), cert. denied, 476 U.S. 1123, 106 S.Ct. 1992, 90 L.Ed.2d 672 (1986), ineffective assistance of counsel is established per se because defense counsel admitted defendant's guilt to the jury without defendant's consent.

In Harbison, the defendant shot at the victims, seriously injuring one and fatally wounding the other. Throughout his trial Harbison is distinguishable. Significantly, there the defendant claimed self-defense. By contrast, defendant here stipulated in writing to having stabbed the victim and proximately caused her death. Second-degree murder is the unlawful killing of another human being with malice but without premeditation and deliberation. State v. Watson, 338 N.C. 168, 176, 449 S.E.2d 694, 699 (1994), cert. denied, 514 U.S. 1071, 115 S.Ct. 1708, 131 L.Ed.2d 569 (1995). The intent necessary to support a conviction for second-degree murder is the intent to inflict the wound which produces the homicide. State v. Wilkerson, 295 N.C. 559, 579, 247 S.E.2d 905, 916 (1978). Indeed, malice is presumed where the defendant intentionally assaults another with a deadly weapon, thereby causing the other's death. State v. Robbins, 309 N.C. 771, 775, 309 S.E.2d 188, 190 (1983). The stipulation defendant entered concedes each of these elements and therefore supports a verdict of second-degree murder. In arguing in accord with defendant's stipulation, defense counsel cannot be said to have rendered ineffective legal assistance.

                the defendant steadfastly maintained that he acted in self-defense.  The defendant's court-appointed attorney adhered to this defense throughout the presentation of evidence.  However, during closing remarks, defense counsel argued:  "I don't feel that [the defendant] should be found innocent.  I think he should do some time to think about what he has done.  I think you should find him guilty of manslaughter and not first degree."  Id. at 178, 337 S.E.2d at 506.   This Court held that the decision to plead guilty lies solely in the hands of the defendant;  when counsel admits his client's guilt without first obtaining the client's consent, the client's constitutional rights to a fair trial and to hold the State to the burden of proof beyond a reasonable doubt are surrendered, and a new trial is required.  Id. at 180, 337 S.E.2d at 507
                

In State v. House, 340 N.C. 187, 197, 456 S.E.2d 292, 297 (1995), we cautioned the trial bench to establish a clear record of a defendant's consent when a Harbison issue arises at trial. The trial court here adhered to that advice by asking whether defendant signed the stipulation, understood its effect, and realized that the information contained therein could be presented to the jury. Defendant responded "yes" to each of these inquiries. Thereafter, the trial court found that defendant knowingly, voluntarily, and understandingly consented to the stipulation, and nothing in the record indicates otherwise. Where, as here, a defendant stipulates to the elements of an offense, defense counsel may infer consent to admit defendant's guilt of that offense. Accordingly, this assignment of error is overruled.

Defendant next contends that the trial court erred in refusing his written request for specific jury instructions. During the charge conference, defense counsel submitted a written request for an instruction informing the jurors that if they found defendant not guilty of first-degree burglary or guilty of nonfelonious breaking and entering, they could not consider the charge of first-degree murder under the felony murder rule. Defendant asked that the instruction be given subsequent to the first-degree burglary instruction and preceding the instruction on nonfelonious breaking and entering. The trial court denied defendant's request. Defendant argues that the requested instruction was a proper statement of law, was supported by the evidence, and therefore should have been given to the jury. We find no error in the trial court's ruling or in the instructions given.

Rather than grant defendant's request, the trial court instructed as follows:

So, I charge that if you find from the evidence beyond a reasonable doubt that on or about the alleged date, the defendant broke and entered an occupied dwelling house without the tenant's consent during the night-time and at that time intended to commit murder, and that while committing burglary, the defendant killed the victim and that the defendant's act was a proximate cause of the victim's death, it would be your duty to return a verdict of guilty of first degree murder under the felony murder rule.

However, if you do not so find or have a reasonable doubt as to one or more of these things, you will not return a verdict The trial court gave this instruction as part of the jury charge on first-degree murder under the felony murder rule.

of guilty of first degree murder under the felony murder rule.

"[T]his Court has consistently held that a trial court is not required to repeat verbatim a requested, specific instruction that is correct and supported by the evidence, but that it is sufficient if the court gives the instruction in substantial conformity with the request." State v. Brown, 335 N.C. 477, 490, 439 S.E.2d 589, 597 (1994). Here, the instruction given clearly sets forth that first-degree burglary is a necessary element of felony murder in this case. To find defendant guilty of felony murder, the State had to prove each element of first-degree burglary beyond a reasonable doubt. If the jury had a reasonable doubt as to any of the elements, it was to find defendant not guilty of felony murder. This is, in substance, the concept defendant wished to convey to the jury. The trial court...