State v. Mickey

• Decision Date: 06 February 1998
• Docket Number: No. 303A95,303A95
• Citation: 347 N.C. 508,495 S.E.2d 669
• Parties: STATE of North Carolina v. Terry Wayne MICKEY.
• Court: North Carolina Supreme Court

Page 669

495 S.E.2d 669

347 N.C. 508

STATE of North Carolina v. Terry Wayne MICKEY.

No. 303A95.

Supreme Court of North Carolina.

Feb. 6, 1998.

Michael F. Easley, Attorney General by Debra C. Graves, Assistant Attorney General, for the State.

Malcolm Ray Hunter, Jr., Appellate Defender by J. Michael Smith, Assistant Appellate Defender, Durham, for defendant-appellant.

MITCHELL, Chief Justice.

Defendant was indicted on 5 August 1992 for first-degree murder and conspiracy to commit first-degree murder. He was tried capitally at the 7 November 1994 Criminal Session of Superior Court, Randolph County, Judge A. Leon Stanback presiding. The jury found defendant guilty of both charges. At the conclusion of a separate capital sentencing proceeding, the jury recommended a sentence of life imprisonment for the first-degree murder conviction. The trial court sentenced defendant to imprisonment for life for the murder conviction and imposed a consecutive sentence of twenty years' imprisonment on the conspiracy conviction.

The State's evidence tended to show inter alia that in the early morning hours of 29 June 1992, defendant's first cousin, Chris Cook, entered defendant's home, where he shot and killed defendant's wife, Melissa Cooper Mickey. Defendant Terry Mickey had hired and conspired with Cook to perform the killing for $10,000. Cook ultimately confessed to the murder and implicated defendant.

Defendant and Melissa had been separated in 1985 or 1986 and later reconciled. Defendant had lived with another woman during their separation. Defendant later met Cindi Rinaldi, a co-worker at the post office, and began a relationship with her. Defendant told Rinaldi that he was planning to divorce his wife but that an attorney had advised that he wait until his bills were paid.

Defendant solicited Joe Ray to murder defendant's wife about eight months before she was killed. Ray refused to participate. Defendant asked Ray if his nephew would kill defendant's wife, and Ray said no. Defendant then asked Ray to get a gun for him, which Ray did.

Defendant's cousin, Chris Cook, was in the Marine Corps stationed at Virginia Beach when defendant phoned to ask if he knew of a way to raise $50,000. At one point, Cook and defendant planned to rob a drug dealer to raise money, but they did not go through with the plan.

In 1990 or 1991, Cook learned that defendant was making purchases and cash advances using credit cards he had stolen from the mail while he was a postal employee. Defendant sometimes gave Cook cash advances drawn on the stolen credit cards. Defendant also gave Cook a video cassette recorder and, in June 1991, an engagement ring for Cook's fiancee, paying for the purchases of those items with the stolen credit cards.

Cook was discharged from the Marine Corps on 3 September 1991. He broke up with his fiancee in January or February 1992 and pawned the ring, which defendant later redeemed from the pawn shop. In June 1992, defendant offered Cook $5,000 to kill defendant's wife Melissa. Cook refused the offer. Defendant repeated his offer to Cook on 14 June 1992. Defendant reminded Cook of all the cash and gifts he had given him. Cook continued to refuse the offer and tried to avoid defendant. Defendant went to Cook's house and promised to pay $5,000 before the killing and $5,000 after defendant received $50,000 from an insurance policy defendant had taken out on Melissa several months earlier. Cook finally agreed to defendant's scheme to kill Melissa.

Defendant and Cook met at defendant's house on Sunday, 28 June 1992, to plan the murder. Defendant's children were at the beach with Melissa's parents, and he stated that he wanted the killing done that night or the next morning. Defendant met Cook at about 2:45 a.m. and took him to defendant's home. Defendant gave Cook a ski mask, surgical gloves, and a .38-caliber revolver loaded with six rounds of ammunition. Defendant told Cook to wait thirty to forty-five minutes before killing Melissa so defendant could establish an alibi.

Cook entered the house through a door left unlocked by defendant by prior arrangement and found Melissa lying in bed. He shot Melissa in the right jaw. She writhed her way to the far side of the bed. Cook went around the bed, where, firing through a pillow to muffle the sound, he shot her in the back of the head and through the back. He ran from the house, removed the mask and gloves, and hid the gun and mask under a pile of rocks. Cook then called his roommate for a ride home from a convenience store, where he was seen by witnesses. Cook told his roommate that he had been at a construction site early that morning. He claimed that because they had run out of supplies, he was jogging home when he fell and hurt himself.

When Cook arrived at his home, he washed his clothes and contacted his employer, Tim Edwards, to establish an alibi. He wanted Edwards to say that he had been working at one of Edwards' job sites early that morning. Thinking that Cook had gotten into some minor trouble, Edwards agreed to the scheme. Edwards later disavowed Cook's alibi when Edwards was questioned by investigators and realized that Cook wanted an alibi for the morning of the murder.

Melissa Mickey's friends and co-workers at L & M Floor Covering had become concerned that she had not come to work by the time defendant phoned and asked for her at 10:00 to 10:30 a.m. Annette Owens went to defendant and Melissa's home to look for Melissa. She found Melissa's car in the garage but did not find Melissa. She discussed her concerns with her co-workers and Garland Lawson, the store owner. Lawson contacted the Lenoir County Sheriff's Department to have a deputy check the house. Lawson met Deputy Greer at the house, and they went through it together. They found Melissa's body in a kneeling position on the floor at the side of the bed, with one elbow lying on the mattress. Lawson and Deputy Greer left the house, called for assistance, and waited outside.

Detective Sergeant Jeff Wilhoit arrived and helped secure the murder scene. Detective Don Andrews, the lead investigator, went into the house and observed evidence in the master bedroom. Andrews ordered the seizure of evidence from the master bedroom. Officers seized evidence, including the bloodstained mattress and box springs, bullets found on top of several pornographic magazines, addressed to someone other than defendant, and the magazines themselves. The magazines and bullets were found under the bed after the mattress and box springs were removed. Officers also seized a credit card issued to someone not a member of the household which was lying on top of a roll-top desk.

In his first assignment of error, defendant contends that when imposing a sentence under the Fair Sentencing Act in excess of the presumptive sentence for his conspiracy conviction, the trial court erroneously found the statutory aggravating factor that defendant induced others to participate in the commission of the offense and erroneously failed to find the statutory mitigating factor that defendant had no record of criminal convictions. N.C.G.S. § 15A-1340.4 (1988) (repealed effective 1 October 1994). The Fair Sentencing Act applied to crimes committed before 1 October 1994; because the conspiracy in question here took place prior to that date, defendant was sentenced under this statute. Under the Fair Sentencing Act, "the sentencing judge must find and weigh aggravating and mitigating factors before imposing a sentence greater than the presumptive sentence set by the statute." State v. Flowers, 1997 WL 594841, at * 22 (Sept. 26, 1997) (No. 553A94). We address defendant's two arguments in support of this assignment of error in turn.

First, defendant argues that the trial court erroneously found the statutory aggravator that defendant induced Cook to participate in the offense. He contends that the trial court must have used the same evidence that the jury relied upon in finding the agreement element of the crime of conspiracy when the trial court later found the aggravating factor of inducement. Defendant contends that the only evidence supporting the inducement aggravator was identical to the evidence supporting the agreement element of the conspiracy. More specifically, defendant avers that evidence of his solicitation of Cook's participation was the only evidence supporting the jury's finding of the agreement element of the conspiracy charge and the only evidence supporting the trial court's finding the inducement aggravator in sentencing. We disagree.

A sentence is aggravated to account for a defendant's culpable conduct that goes beyond what was necessary to commit the crime for which he is being sentenced. State v. Thompson, 318 N.C. 395, 397-98, 348 S.E.2d 798, 800 (1986). The evidence used to establish an element of a crime cannot then be used to prove an aggravating factor of the same crime. State v. Hayes, 323 N.C. 306, 312, 372 S.E.2d 704, 707-08 (1988). However, evidence tending to show inducement and evidence tending to show agreement are not necessarily one and the same. State v. Wilson, 338 N.C. 244, 257, 449 S.E.2d 391, 399 (1994). In this case, the State introduced evidence in addition to that tending to prove the agreement element of the conspiracy, which additional evidence tended to prove inducement. The State produced evidence that defendant tried on several occasions to persuade Cook to kill his wife. Defendant offered to pay Cook. He went to Cook's home to try to talk him into killing his wife. He also reminded Cook of past favors in an effort to make him feel guilty and obligated. This evidence supported the finding that defendant induced Cook to enter the conspiracy and to kill Melissa.

Other evidence supported the jury's finding of the agreement element of the crime of conspiracy. Independent evidence tending to show agreement included evidence that defendant agreed to drive Cook to defendant and Melissa's...