State v. Quesinberry

• Decision Date: 26 July 1989
• Docket Number: No. 95A88,95A88
• Citation: 325 N.C. 125,381 S.E.2d 681
• Parties: STATE of North Carolina v. Michael Ray QUESINBERRY.
• Court: North Carolina Supreme Court

Page 681

381 S.E.2d 681

325 N.C. 125

STATE of North Carolina v. Michael Ray QUESINBERRY.

No. 95A88.

Supreme Court of North Carolina.

July 26, 1989.

Appeal of right pursuant to N.C.G.S. § 7A-27(a) from a judgment imposing a death sentence entered by Freeman, J., at the 25 January 1988 Criminal Session of Superior Court, Randolph County. Heard in the Supreme Court 14 March 1989.

Lacy H. Thornburg, Atty. Gen. by Ellen B. Scouten, Asst. Atty. Gen., Raleigh, for the State.

Malcolm Ray Hunter, Jr., Appellate Defender by Gordon Widenhouse, Asst. Appellate Defender, Raleigh, for defendant-appellant.

WHICHARD, Justice.

Defendant was first tried at the 12 June 1985 Criminal Session of Superior Court, Randolph County. The jury found defendant guilty of first degree murder based on premeditation and deliberation and on the felony murder theory, and of robbery with a dangerous weapon. In the sentencing On 20 July 1984, Van Buren Luther, seventy-one years old, was working at a country store owned by his son Gary. Defendant lived near the store. Mr. Luther had allowed defendant to buy groceries and gas there several times on credit. Defendant owed $33.50. On the morning of 20 July, before the murder, defendant bought a drink on credit at the store. Around 1:37 p.m., Lisa Cox stopped at the store and went inside to speak to Mr. Luther. No one else was around. The front door was swinging open. She found Mr. Luther lying unconscious on the floor behind the counter. She went to a neighbor's house and called the rescue squad.

hearing for the murder conviction, the jury recommended the death sentence. On appeal, this Court found no error in the guilt phase of the trial but vacated the death sentence and remanded for a new sentencing hearing. State v. Quesinberry, 319 N.C. 228, 354 S.E.2d 446 (1987). The evidence presented in the second sentencing hearing tended to show the following:

Herman Hogan, a volunteer fireman, received a call around 1:40 p.m. to go to the Luthers' store. He arrived at the store less than a minute later. As he drove up he saw Mr. Luther standing in the doorway, holding onto the door casing with one hand, waving for help. Mr. Luther was covered with blood from the top of his head to his waist. Blood was caked thickly on his chest and was spattered on the rest of his clothes. When Mr. Hogan asked who had done that to him, Mr. Luther replied, "It was Michael Quesinberry." While Mr. Hogan was treating him, Mr. Luther passed out again, vomited, then regained consciousness. He said that his head hurt so badly he could hardly stand it.

The ambulance arrived at 2:09 p.m. Gary Luther drove up around 2:20 p.m. Mr. Luther told Gary that defendant pulled up to the store in his truck, came in and asked for a pack of Marlboros, and when he turned to get the cigarettes for defendant, defendant started beating him with a hammer. Mr. Luther told Gary that he had a terrible headache. During the trip to High Point Hospital, Mr. Luther vomited four times. He remained conscious. The ambulance arrived at the hospital around 3:20 p.m. Dr. Samuel Rakestraw treated Mr. Luther in the emergency room. Mr. Luther told Dr. Rakestraw that a Mr. Quesinberry assaulted him in the store.

While he was in the hospital, Mr. Luther told his wife that defendant had driven his truck up to the store, come in, picked up a Pepsi, set it on the counter, then walked around to where he was. Defendant said he wanted two packs of Marlboros. When Mr. Luther turned to get them, defendant struck him on the head. He did not know how many times defendant hit him. Mr. Luther told his wife that his head and hand were hurting.

Around 5:15 p.m., Mr. Luther's blood pressure and heart rate dropped, and his heartbeat became irregular. Attempts to stabilize his heartbeat and blood pressure failed. At 5:53 p.m. he was pronounced dead.

Dr. Robert Thompson, a forensic pathologist, conducted an autopsy. He found a contusion on the back of Mr. Luther's left hand and more than ten lacerations on his head. There was a skull fracture in the right rear of his head and subarachnoid hemorrhaging. Dr. Thompson testified that the injuries would have been painful. He testified that the cause of death was "blunt-force injuries to the head," which were consistent with blows by a hammer.

An officer in the Randolph County Sheriff's Department arrived at the Luthers' store around 4:20 p.m. to photograph the crime scene. There was a big pool of blood on the floor behind the counter, as well as blood on the walls, the counter, the door, and the door facings. An open Pepsi bottle was on the counter, and two packs of Marlboro cigarettes were on the floor behind the counter.

Around 4:00 p.m., a North Carolina Highway Patrol officer stopped defendant in his truck about two miles from the store, told defendant to drive to the store, and followed him there. At the store, law enforcement officers advised defendant of his constitutional rights. Defendant denied that he had done anything. Around 6:00 or Defendant gave a statement to an SBI agent around 7:00 p.m. Defendant said that he smoked a marijuana cigarette during his lunch break at work that day, then at 1:00 p.m. he told a co-worker that he was going to leave for about an hour. He went to his truck, smoked another marijuana cigarette, and drove towards his home. He went to the Luthers' store to get a drink and saw that no one was around. He thought about how broke he was and about how his baby needed diapers and other things. He saw a hammer on the floor of his truck, put it in his back pocket, then went inside the store. He got a Pepsi and asked for cigarettes. When Mr. Luther turned to get the cigarettes, he hit him on the back of his head with the hammer. Mr. Luther fell on the floor, and he hit him on the head again. He took a purse with money in it, ran to his truck, and drove off. He threw the hammer and purse out the window, stopped and hid the money under a rock, then returned to work.

7:00 p.m., defendant was told that Mr. Luther had died. Defendant responded, "What can I say?"

After making this statement, defendant went with the officers to look for the discarded items. They were able to locate the money, $545 in cash, but did not find the bag or the hammer. Defendant said the hammer was a "ball-and-ping-type hammer" with a metal head.

Three days after the murder, defendant told the SBI Agent that after he hit Mr. Luther the first time, Mr. Luther fell and looked at him; then he hit him again. Defendant said he had planned to get his family and go to West Virginia after he robbed Mr. Luther.

On the day of the murder, defendant was employed at a furniture company. He told Jason Coggins, a co-worker, that he had something he wanted to do and asked Mr. Coggins to cover for him. Defendant left around 1:00 to 1:30 p.m. Mr. Coggins testified that defendant came back around 2:00 or 2:30 p.m., appearing no different from when he had left, and resumed his work. Defendant left work at 3:25 p.m.

Another co-worker, Jeff Williams, testified that one day in June 1984 he and defendant were sitting in front of the Luthers' store. Defendant said it was a wonder someone had not robbed Mr. Luther because he would be an "easy old man to rob."

Defendant testified that on the day of the murder he smoked five marijuana cigarettes and drank two beers. He felt nauseated and left work to go home. He saw the store and decided to stop for some groceries. He saw the hammer in the truck and started thinking about being broke and about taking his wife to the doctor. He put the hammer in his back pocket, went inside, asked for cigarettes, then hit Mr. Luther twice on the back of his head with the hammer. Defendant denied getting a Pepsi. He testified that he considered calling for help for Mr. Luther. He got the bag of money, stepped over Mr. Luther to get the cigarettes, and ran. After leaving the store and disposing of the bag, money, and hammer, defendant returned to work. He told Jason Coggins that he had taken a nap and felt better. He thought he had killed Mr. Luther and did not think Mr. Luther had recognized him.

Defendant grew up in a coal-mining town in West Virginia. He started using drugs when he was fourteen. When his grandfather died he moved in with his grandmother to help her. He dropped out of school when he was sixteen and joined the Army at seventeen. He continued to use drugs. The Army sent him to a drug and alcohol rehabilitation center. He used drugs while in the program, so the Army discharged him. He returned home and got married. He spent one third to one half of his income on drugs. He was "smoking pot, doing acid, speed, and smoking hash, and cocaine every now and then." He borrowed money which he did not repay and filed for bankruptcy, then he and his wife and baby moved to Asheboro. They lived in a house rent-free in exchange for repairs to the house. On the weekend before the murder, defendant asked some of his relatives for $110.

Defendant presented testimony that when he was growing up in West Virginia he worked hard and had a good reputation in his community. There was also evidence that he had no prior criminal convictions.

Dr. Brad Fisher, a clinical forensic psychologist, testified that he diagnosed defendant as being clinically depressed. He believed that defendant would not be violent to others if incarcerated, but that he might attempt to hurt himself. Dr. Fisher testified that defendant had no record of violent behavior prior to the murder and that the murder was "totally out of character." He testified that defendant had no serious mental illness or memory problem. He believed that long-term treatment could help keep defendant from using drugs again.

In the second sentencing hearing, the jury found the only aggravating circumstance submitted: the murder was committed for pecuniary gain. The jury found seven mitigating circumstances: defendant has no significant history of prior...