State v. McQueen

• Decision Date: 02 March 1989
• Docket Number: No. 32A86,32A86
• Citation: 377 S.E.2d 38,324 N.C. 118
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Billy D. McQUEEN, Jr.

Page 38

377 S.E.2d 38

324 N.C. 118

STATE of North Carolina v. Billy D. McQUEEN, Jr.

No. 32A86.

Supreme Court of North Carolina.

March 2, 1989.

Lacy H. Thornburg, Atty. Gen. by Isaac T. Avery, III, Sp. Deputy Atty. Gen., and Linda Anne Morris, Asst. Atty. Gen., Raleigh, for the State.

Malcolm Ray Hunter, Jr., Appellate Defender, by Mark D. Montgomery, Asst. Appellate Defender, Raleigh, for defendant-appellant.

MEYER, Justice.

Defendant was indicted on one count of first-degree murder for the shooting death of Trooper Giles Harmon of the North Carolina Highway Patrol. The case was tried capitally, on a theory of premeditated and deliberated murder.

The State's evidence tended to show the following events. In November 1984 defendant and his wife, Marsha McQueen, separated for the second time. Marsha McQueen moved from their home in Lexington, Kentucky, to Statesville, North Carolina. Defendant remained in Kentucky and began living with Charles "Ickey" Barker, a man he had known for several years, who owned a farm near Lexington.

On 7 April 1985, Marsha McQueen was with her friend Ann Sims. Defendant telephoned, asking to speak to his wife. He then informed his wife that he was going to come to North Carolina and cut her into "little, bitty pieces." On 8 April 1985, defendant telephoned Ann Sims several times and told her to put Marsha McQueen on a bus and send her home to Kentucky. He stated that he was going to kill Ann Sims and her husband and blow up their home. Defendant told Ann Sims that he had a stick of dynamite and a .22 rifle with a scope and that no one would see him. When Ann Sims expostulated, "no woman is worth this," defendant replied, "Well, I'm going to kill you all. You're not going to see me," and said that no one was going to stand in his way. Also on 8 April defendant telephoned Carl Fox, the manager at the store where Marsha McQueen worked, and told him to fire her because he would make so much trouble that it would not be worthwhile retaining her as an employee.

State's witness Charles "Ickey" Barker testified that during the course of 8 April 1985, he and defendant drank a fifth of liquor and one half of a case of beer and watched a movie on television in the evening. Barker went to bed at approximately 2:00 a.m. At approximately 4:30 a.m. on 9 April 1985, defendant, who had Barker's .22 rifle, woke Barker and demanded that Barker drive him to North Carolina. Since he needed money for the trip, defendant also demanded that Barker use his bank card to withdraw $500.00 from his account. Barker refused and after an argument during which defendant several times threatened to shoot Barker, the latter ran into the kitchen and returned with a knife. Barker testified that his intent was to get the rifle away from defendant, but he saw that defendant was going to shoot him. He turned to reenter the kitchen, and as he did so, defendant shot him in the right thigh. Defendant bandaged Barker's leg with a shirt sleeve to stop the bleeding. He then took Barker's .22 pistol, as well as the rifle, made him dress and forced him to write a note to his farm hand that he was taking defendant to Knoxville, Tennessee.

Barker testified that as the two left his house by the kitchen door, defendant shot Barker's dog in the paw. Defendant and Barker took the latter's car. Defendant had the rifle, the pistol and several boxes of ammunition under his control inside the car. Defendant drove to a local store where there was a bank teller machine and forced Barker at gunpoint to withdraw $60.00 from his account and give it to him. Defendant attempted to get more money from the machine but was unsuccessful.

With defendant driving, the men proceeded south on Interstate 75. In the afternoon of 9 April, they stopped in Newport, Tennessee. Defendant bought some food and a six-pack or two and two quarts of beer. They went to a motel, where defendant made Barker hide in the car while he registered using Barker's driver's license. Once in the motel room, defendant pushed one of the beds against the door to prevent Barker from escaping. Both men slept for some time. Barker testified that defendant wanted him to write a check for $5,000. Barker told defendant that he was going to use the bathroom. He tore the checkbook in half and hid the pieces there. Defendant had gone back to sleep, but when Barker attempted to leave the motel room, defendant woke up and threatened to shoot him.

Soon after dark, defendant and Barker left the motel, and with defendant behind the wheel, they drove east on Interstate 40. Defendant was driving Barker's car at a high rate of speed. Barker tried to persuade defendant to slow down, but defendant stated that if an officer stopped him, he would have to kill the officer. As the Interstate entered North Carolina from Tennessee, it narrowed from two lanes to one. A large cave-in had closed one of the road tunnels in the area, so that traffic was detoured. Because of the detour, two Troopers of the North Carolina Highway Patrol were assigned to the area twenty-four hours a day. One of the Troopers assigned on 9 April 1985 was the victim, Giles Harmon.

Defendant was still driving very fast. Shortly after 9:00 p.m., having traveled approximately three miles into North Carolina on Interstate 40, the men saw the blue light of a State Highway Patrol vehicle begin to flash behind Barker's car. Defendant commented that "they" were not going to take him to jail. He pulled over to the side of the road and stopped. Trooper Harmon left his vehicle and approached Barker's car. As he came to the driver's door, defendant stuck the pistol out of the window, held the barrel against Trooper Harmon's chest and pulled the trigger. Trooper Harmon turned around and began to stagger away. Defendant cocked the pistol and fired again. This bullet entered Trooper Harmon's back, severing his spine.

Defendant started Barker's car and drove off as fast as the car would go, passing several trucks on the right. Barker heard him say, "I killed a man." Defendant took the first exit off Interstate 40, turned onto a logging road and drove for approximately six miles. The men then saw a bridle trail which was barred to vehicles by three posts. Defendant used the car's front bumper to loosen the middle post. He pulled it up, drove the car onto the trail and then replaced the post. Having continued up the trail for some way, defendant tied Barker up with some sheets stolen from the Newport motel. The two spent the night in the car.

Barker testified that he and defendant awoke at approximately 6:30 a.m. the next morning, 10 April 1985. Defendant untied Barker's bonds. He told Barker that he believed he had killed a man. They listened to the car radio and heard that Trooper Harmon was dead. The men heard helicopters passing overhead, so defendant camouflaged the car. At approximately 12:30 p.m., defendant took the two guns and a box of ammunition and left on foot. Barker waited for about an hour and then drove his car out.

Barker was interviewed at the law enforcement command post and then taken to the hospital. As a result of his information, officers located the bridle trail and the site where the car had been hidden overnight. The ongoing manhunt for defendant intensified. On 11 April 1985, a motorist reported sighting defendant. Law enforcement officers apprehended defendant in a dry riverbed, approximately 250 to 300 yards below and away from the Interstate. Defendant was handcuffed and brought up the steep cliff to the road.

At trial, defendant took the stand on his own behalf. He testified that he had been in several alcohol and drug detoxification centers in the past. Defendant testified that he and Barker were both drinking heavily during the afternoon and evening of 8 April 1985, and at some point, defendant passed out. He was later awakened by Barker, an admitted homosexual, who had pulled down defendant's pants. A struggle ensued, during which defendant shot Barker in the leg. According to defendant, Barker shot the dog because it stole a sandwich off a plate. Defendant testified that Barker agreed to take him to North Carolina. He testified that he did not remember who was driving, but that he had vague memories of traveling through Tennessee and into North Carolina. He did not want Barker's money, so he tore up Barker's checkbook himself. He had a clear memory of waking in the car on the morning of 10 April. Defendant further testified that after he heard on the radio that a Trooper had been killed, after Barker suggested to him that defendant had shot the Trooper and after he saw police helicopters flying overhead, he became scared and decided to run. Before he could decide whether to turn himself in, he was found by law enforcement officers and arrested.

Defendant presented expert testimony that he was an alcoholic, that he had "very possibl[y]" been experiencing an "alcoholic blackout" during the time of the shooting and that, in any event, he did not have the ability to form the specific intent to kill at the time.

The jury found defendant guilty of first-degree murder. At the sentencing hearing, several aggravating and mitigating circumstances were submitted to the jury. The jury found in aggravation that the murder was committed for the purpose of preventing a lawful arrest and that the murder was against a State Highway Patrolman while engaged in the performance of his official duties, but did not find that the murder was committed while defendant was engaged in the commission of or attempt to commit the felony of kidnapping. In mitigation, the jury found that the murder was committed while defendant was under the influence of mental or emotional disturbance and that defendant was a battered and abused child, but did not answer whether defendant had no significant history of prior criminal activity or whether there were any other circumstances arising from the evidence which it deemed to have...