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State v. McNeill

May 29, 1998


Appeal as of right pursuant to N.C.G.S. § 7A-27(a) from judgments imposing sentences of death entered by Stephens (Donald W.), J., on 9 April 1996 in Superior Court, Wake County, upon jury verdicts finding defendant guilty of two counts of first-degree murder. Defendant's motion to bypass the Court of Appeals as to additional judgments was allowed 29 October 1996. Heard in the Supreme Court 29 May 1998.

The opinion of the court was delivered by: Frye, Justice.

In a capital trial, defendant was convicted by a jury of first-degree murder of Robert Michael Truelove and John David Ray on the basis of premeditation and deliberation and under the felony murder rule. The jury also found defendant guilty of conspiracy to commit armed robbery and robbery with a firearm. In a capital sentencing proceeding conducted pursuant to N.C.G.S. § 15A-2000, the jury recommended and the trial court imposed a sentence of death as to each murder. Defendant was also sentenced to imprisonment for forty years for the robbery with a dangerous weapon conviction, and ten years for conspiracy to commit armed robbery.

Defendant makes thirteen arguments on appeal to this Court. For the reasons discussed herein, we conclude that defendant's trial and capital sentencing proceeding were free of prejudicial error and that the death sentences are not disproportionate. Accordingly, we uphold defendant's convictions and sentences.

The State's evidence presented at trial tended to show the following facts and circumstances. Late in the evening of 18 September 1993, the wife of victim John Ray arrived at the Food Lion store located at the corner of Strickland Road and Six Forks Road in Raleigh to pick up her husband. After driving over the parcel pickup bell, she waited for her husband. When he did not emerge, she knocked on the front door. When no one came to the front door, she drove around to the back and pressed the night buzzer for truck deliveries. Again no one responded. Mrs. Ray then called 911.

Raleigh police officer Mike Liptak responded to Mrs. Ray's call, arriving at the Food Lion store close to midnight. Officer Liptak called the assistant manager of the Food Lion store, Mr. Lindberg. Through a front window, Officer Liptak observed tills lying on the floor and an open safe. He then proceeded to the back of the store, where he saw an open door but did not enter. Other officers arrived, and the scene was secured. When Lindberg arrived, he and three officers entered the building and found the bodies of two men. One victim, John Ray, was in the meat locker, and the other, Mike Truelove, was in the back of the store. Both men had been shot.

Ms. Flournoy, the store manager, estimated that there was approximately $2,300 in a safe bag missing from the store. Robert McNeill, one of defendant's brothers, was an employee of Food Lion and was immediately a suspect. On 23 September, defendant was questioned because he was part of his brother's alibi.

Chris Thornhill, a friend of defendant, testified that defendant wanted him to come to North Carolina to find work. During a phone conversation, defendant and Thornhill discussed the move, and defendant inquired whether Thornhill still had a .357 revolver. On the night of 17 September, defendant went to South Carolina to get Thornhill. The next day, defendant and Thornhill drove to Raleigh. Thornhill had purchased from Zane Bryant a .357 Magnum revolver, which he showed to defendant on the way to Raleigh. Defendant and Thornhill checked into the Innkeeper Motel between seven and eight o'clock Sunday night, 18 September. Defendant then took Thornhill's revolver and left the motel. When defendant returned to the motel around midnight, he appeared dazed. Defendant told Thornhill that he had sold the gun for three hundred dollars to a man who approached him at a gas station and that the man had then hit him on the ear. Defendant was having trouble hearing. When defendant and Thornhill arrived in Raleigh, defendant had about one hundred dollars. According to Thornhill's testimony, the next day, defendant had a vinyl bag containing about eight hundred dollars in cash and a thick roll of one-dollar bills.

On 23 September 1993, Sergeant Williams of the Raleigh Police Department obtained from Zane Bryant an empty Ruger Blackhawk .357 Magnum revolver box and a partial box of shells. Bryant testified that in early September he had sold Thornhill the revolver which came in the box and that at the time of the sale the revolver would have been loaded from the opened box of shells.

Special Agent Gavin with the FBI, formerly with the SBI, testified as an expert in forensic firearms. In his opinion, the bullet jackets recovered from the bodies of the victims were all fired from the same firearm, either a Ruger or a Rohm. Bullets recovered from the crime scene were of the same type as contained in the box of ammunition obtained from Bryant. Small gun parts also recovered from the scene were identified as parts of a Ruger single-action revolver.

A latent-fingerprint examiner was able to identify one half of a left palm print belonging to defendant on an exterior rear door of the Food Lion store. Ms. Muse, a Food Lion employee, remembered defendant had been to the store to meet his brother on 12 September 1993. There was conflicting evidence as to how often the doors were cleaned.

Experts in acoustics and audiology conducted sound tests by firing a new Ruger Blackhawk in the Food Lion meat cooler and testified that shots fired from that revolver in the cooler would have caused the shooter to experience significant temporary hearing loss.

Michael McNeill, the older brother of Robert and defendant, testified that, in February 1994, defendant admitted to him that he had killed both men. Michael also testified that he believed defendant was covering up for Robert, who, unlike defendant, was apt to see what he could get away with. Michael also believed defendant was covering up for Thornhill. Michael further testified that he did not want to believe defendant committed the murders, but "he hasn't told me any different."

Defendant testified in his own behalf. He stated that he moved to North Carolina at Robert's invitation and planned to go to college. He did not get along with Robert's wife, so he talked Thornhill into moving to Raleigh and sharing an apartment with him. Robert had told defendant he needed a gun because someone was harassing his wife. Defendant testified that, after picking up Thornhill in South Carolina and driving back to Raleigh, he called Robert to arrange picking up his clothes and savings. He then went to the Food Lion store, arriving about 10:00 p.m., and waited for Robert. Robert and defendant then drove to Taco Bell in separate cars. There, defendant showed Robert the revolver, and Robert purchased it from him for three hundred dollars. Defendant then drove to Robert's house to wait for Robert, so he could get his clothes and money. When Robert arrived, he was carrying his shirt. Robert wanted defendant to tell Thornhill that he and defendant had been together the entire evening and not to tell Thornhill that he had sold him the gun. Defendant agreed, retrieved his belongings, and left. Defendant testified that he maintained his story to protect Robert, even after hearing about the Food Lion murders. He denied involvement in the murders and denied confessing to his brother Michael.

Craig Stover, formerly a co-employee of Robert McNeill at the Food Lion store at Tower Shopping Center, testified about his involvement with Robert in a robbery of that store in May 1993. He testified that Robert discussed a second robbery and that Robert had talked about killing his manager. Several Food Lion employees at both stores testified that Robert was unable to get along with his co-workers at either store. He had been suspended for two weeks and eventually transferred.

Mr. Bissette, a retired member of the task force which investigated the murders, testified that defendant had cooperated with police and gave permission for a search of his vehicle. He testified that four days after the murders, defendant had no problems with his hearing. Detective Harrell of the Raleigh Police Department testified that Thornhill had given police two different stories.

An expert in otolaryngology testified that there is no way to distinguish trauma-induced hearing loss, such as that from being struck, from acoustically induced hearing loss. He further testified that alcohol can produce significant temporary hearing loss as well.

Robert McNeill testified, for the most part invoking his Fifth Amendment rights. However, he contended that defendant was innocent.

The trial court denied defendant's motions to dismiss made at the close of the State's evidence and again at the close of all the evidence. The jury returned verdicts of guilty of two counts of first-degree murder, conspiracy to commit armed robbery, and robbery with a firearm.

At defendant's capital sentencing proceeding, the State presented no additional evidence. Defendant presented evidence tending to show his good character.

On appeal to this Court, defendant makes thirteen arguments based on nineteen assignments of error. He contends that the trial court committed numerous errors entitling him to dismissal of the charges against him or, in the alternative, a new trial or new capital sentencing proceeding. We find no prejudicial error entitling defendant to a dismissal, new trial, or new capital sentencing proceeding.

In his first argument, based on three assignments of error, defendant contends that the trial court erred "in allowing the case to be tried before a jury that had not been sworn in open court with due solemnity before defendant and his counsel and that had been sworn before the beginning of court." We disagree.

This Court considered similar challenges based on a defendant's constitutional right to be present at all stages of his trial in State v. Workman, 344 N.C. 482, 476 S.E.2d 301 (1996). In that case, the defendant argued that his right to be present was violated because prospective jurors were preliminarily sworn, oriented, and generally qualified for service by a deputy clerk in the jury assembly room outside of the defendant's presence. This Court concluded that Workman had no right to be present because his capital trial had not yet commenced. Id. at 498, 476 S.E.2d at 310. This Court has also noted that a defendant's right to presence does not include the right to be present during preliminary handling of the jury venire before the defendant's own case has been called. State v. Rannels, 333 N.C. 644, 430 S.E.2d 254 (1993).

In the instant case, the record reflects that prospective jurors were sworn in the jury pool room by a deputy clerk of superior court after a juror orientation by that clerk, but prior to the time the jurors were assigned to any particular courtroom for jury service. These jurors were subject to assignment in any one of six superior courts in session as well as any number of district courts. We conclude that our decisions in Workman and Rannels control here. Defendant has no right to be present where prospective jurors are preliminarily sworn in, oriented, and generally qualified for service by a deputy clerk in the jury assembly room.

Defendant further contends under this argument that this procedure violated his statutory rights under N.C.G.S. § 9-14 to have the jury sworn "at the beginning of court." We disagree.

"N.C.G.S. § 9-14 provides in pertinent part: The clerk shall, at the beginning of court, swear all jurors who have not been selected as grand jurors. Each juror shall swear or affirm that he will truthfully and without prejudice or partiality try all issues in criminal or civil actions that come before him and render true verdicts according to the evidence." N.C.G.S. § 9-14 (1997).

The State contends, and we agree, that the phrase "at the beginning of court," as it applies to the swearing of prospective jurors, refers to the beginning of the term of court as opposed to the beginning of an individual trial, which may be civil or criminal. This interpretation comports with the oath given prospective jurors to "try all issues in criminal and civil actions" that come before a particular juror who is selected to serve. Accordingly, we reject defendant's first argument.

In his second argument, defendant seeks a new trial on the grounds that the trial court erred when it allowed his case to be tried before a jury that had been selected during a voir dire process that did not require prospective jurors to take an oath that they would "tell the truth." Defendant argues that the failure of the State to administer such an oath taints the jury selection process and violates defendant's Sixth Amendment right to a fair and impartial jury.

As we indicated earlier, N.C.G.S. § 9-14 requires that jurors "swear or affirm that [they] will truthfully and without prejudice or partiality try all issues in criminal or civil actions that come before [them] and render true verdicts according to the evidence." The record reflects that the jurors took the prescribed oath prior to trial in this case. That oath required that they "truthfully" try all issues and "render true verdicts according to the evidence." There is no indication that the trial court failed to perform any duty required of it in the swearing of the venire. Furthermore, defendant has failed to show that any juror ultimately selected in his case was in any way unqualified to sit or that he was in any way prejudiced because jurors were not required, during voir dire, to take an additional oath to "tell the truth." Accordingly, we reject defendant's second argument.

Defendant's third argument asserts that the trial court erred in denying defendant's motion to suppress statements he made to police on 23 September 1993. Defendant contends that this denial violated his Fifth Amendment rights under the United States Constitution. Defendant argues that he was in custody when he gave his first and second statement, and that he had not been advised of ...

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