Joseph T. Keel

DOC Number: 0222263
DOB: 07/06/1964
RACE: WHITE
SEX: MALE
DATE OF CONVICTION: 03/30/93
COUNTY OF CONVICTION: EDGECOMBE

North Carolina Department of Correction (Chronology / Press Release)

11/7/2003 - Keel executed at 2 a.m.

9/25/2003 - Correction Secretary Theodis Beck sets an execution date of Nov. 7, 2003 for Joseph Timothy Keel.

9/29/1999 - The North Carolina Supreme Court issues a stay halting the execution of Joseph Timothy Keel scheduled for Oct. 29, 1999.

8/3/1999 - The North Carolina Supreme Court issued a stay halting the execution of Joseph Timothy Keel scheduled for Aug. 6.

7/30/1999 - Witnesses selected for Keel Execution

7/28/1999 - Execution date set for August 6, 1999

3/30/1993 - Joseph Timothy Keel, a Pitt County native, is convicted in Edgecombe County Superior Court in the shooting death of his father-in-law John Simmons July 10, 1990.

July 30, 1999 - WITNESSES SELECTED FOR AUGUST 6 EXECUTION

Raleigh - Central Prison Warden R.C. Lee named six official witnesses and five media witnesses for the Aug. 6 execution of Joseph Timothy Keel.

The official witnesses selected by the District Attorney’s office in the Seventh Prosecutorial District are: Mack Daniel Simmons, Jr., Linda Jean S. Moore, Jennifer Simmons Becknell, and Bobby Dale Smith. The two media witnesses from the Edgecombe County Sheriff’s Department are Lt. Jerry Wiggs and Sgt. Donald Lynn.

Media witnesses are Connie Rhem of The Wilson Daily Times in Wilson, Thomas McDonald of The Daily Southerner in Tarboro, Mark Roberts from WRAL-TV in Raleigh, Steve Adams from WEEB Radio in Southern Pines and Estes Thompson from the Associated Press.

Keel is scheduled to be executed at Central Prison at 2 a.m., Fri., Aug.6 by lethal injection. Edgecombe Superior Court sentenced Keel to death on March 30, 1993 for the murder of his father-in-law, John Simmons, on July 10, 1990.

Under Department of Correction policy, the district attorney and sheriff in the county of conviction nominate the six official witnesses. These witnesses may include members of the victim's family. A 1997 amendment to the state statute ensures the crime victim's family the right to witness the execution.

The Radio Television News Directors Association of the Carolinas selected the broadcast reporters and the N.C. Press Association selected the two print reporters. The Associated Press selects its own wire service representative. Following the execution, the media witnesses are required to relate their experience to other reporters immediately in Central Prison's visitor center.

ProDeathPenalty.Com

On July 7, 1990, John Simmons was murdered by his son-in-law, Joseph Keel. Keel arranged to pick up John on the pretense of going to "check out" the offices at a hog farm where he worked. He said he fired a shot at Simmons while the victim was in his truck on the hog farm. After Simmons got out of the truck holding a knife, Keel shot him again. He then helped the wounded Simmons back inside his truck and later fired another shot into the truck, hitting Simmons in the head. The exact reason for the murder is not clear. Before killing Simmons, Keel told lawmen that he and Simmons had had a fistfight. Keel claimed that he set him up to kill because he was a "wife-beater". Keel received the death penalty because of a previous conviction in the beating death of his young son. In 1987, Keel was convicted by a jury of involuntary manslaughter after his son’s death.

Raleigh News & Observer

"Convicted Killer is Executed," by Matthew Eisley. (November 7, 2003)

Convicted murderer Joseph Timothy Keel was executed by lethal injection at Raleigh's Central Prison early today for killing his father-in-law in Edgecombe County after an argument.

Keel, 39, who confessed to the 1990 killing but claimed he was mentally retarded and mentally ill, was twice sentenced to death. Gov. Mike Easley declined Thursday night to convert Keel's death sentence to life in prison after the U.S. Supreme Court turned down Keel's last appeal. "Having carefully reviewed the clemency petition, I find no compelling reasons to invalidate the sentence recommended by two juries and affirmed by the courts," Easley said in a statement.

In a clemency hearing Tuesday before Easley, Keel's lead lawyer, Jay Ferguson, argued that Keel should be spared because "he has got the educational and functional ability of a fifth-grader." Keel suffered head injuries that affected his brain, in addition to other brain damage since birth, which meant he deserved a life sentence instead, Ferguson said. At the time of the murder, Keel was retarded and mentally ill in addition to the brain damage, Ferguson said. Therefore Keel did not have the mental capacity to control his behaviors or understand the consequences, defense experts argued. Keel had a history of hallucinations, paranoia and psychosis, the defense said.

Keel's lawyers also argued in appeals this week that an alternate juror illegally helped decide Keel's earlier conviction, in 1987, of involuntary manslaughter in the 1986 death of his infant son. Ferguson raised the issue last week after researchers said they discovered that an alternate juror in that case claimed to have taken part in deliberations. But the juror testified in Edgecombe County Superior Court this week that he was an alternate and never took part in regular deliberations. Prosecutors relied on the involuntary manslaughter conviction, for which Keel served prison time, as the legal reason to justify a death sentence for the slaying four years later of his father-in-law, Johnny Simmons. State lawyers said an alternate juror's participation in deliberations would have nullified the verdict, but they denied that happened in Keel's case.

Prosecutors said Keel was a vicious killer of two relatives who who deserved to be put to death. Ferguson said an expert put Keel's IQ at 70, the cutoff for retardation under state law. But prosecutors said that Keel's IQ was 87 and that he showed no mental problems in prison, where he earned a GED certificate and took religion courses.

Keel's last meal was fried chicken, a biscuit, rice, a Diet Coke and a T-bone steak without the bone and with mushrooms and onions, said Pamela Walker, spokeswoman for the state Department of Correction.

Keel's was the state's fifth execution scheduled this year, with two more planned so far: John Dennis Daniels' next week and Robbie James Lyons' next month.

Fayetteville Online

"Keel Executed for Slaying Father-in-Law," by Estes Thompson. (AP November 7, 2003)

RALEIGH -- A North Carolina man was executed Friday morning for the 1990 slaying of his father-in-law after failed legal appeals that included a claim he was mentally retarded. Joseph Timothy Keel, 39, was executed by lethal injection at Central Prison in Raleigh. He was pronounced dead at 2:18 a.m., said Department of Correction spokeswoman Pam Walker. Keel is the fifth prisoner to be executed this year in North Carolina.

Keel confessed to luring Johnny Simmons, with whom he lived, to an isolated area on an Edgecombe County hog farm where Keel worked the night of July 10, 1990. Keel shot the man with a .22 caliber rifle, firing through the window of Simmons' vehicle. He later told police a shot was fired from another car as it drove past.

Prosecutors said Keel was a vicious killer who also killed his infant son in 1986 and deserved execution. The defense didn't dispute he killed Simmons, but contended Keel was mentally retarded. State law bars the execution of mentally retarded people.

Defense lawyer Jay Ferguson said Keel had the mental ability of a fifth-grader and suffered mental illness from an early age because his uncles plied him with alcohol. The defense also said Keel suffered brain injuries at birth as well as when he was later hit by a steel beam. Ferguson said an expert pegged his IQ at 70, the level below which the law defines as retarded. But prosecutors argued that Keel's IQ was 87 and that he had shown no mental problems in prison, where he earned a high-school equivalency certificate and took religion courses.

Keel's final chance to stave off execution evaporated Thursday when Gov. Mike Easley denied a petition to change the death sentence to life in prison. "I find no compelling reasons to invalidate the sentence recommended by two juries and affirmed by the courts," Easley said in a statement. The U.S. Supreme Court and two state appeals courts had earlier blocked efforts to stop Keel's execution.

On Thursday night, Keel ordered a last meal of fried chicken breast and wing, a biscuit, seasoned rice and a diet Coke along with a t-bone steak without the bone, mushrooms and onions, Walker said.

Wilmington Star

"N.C. Man Executed for 1993 Slaying," by William L. Holmes. (AP October 03, 2003)

A man convicted in a 1993 shooting death in Northampton County said just one word in the final minutes of his life, turning to greet one of his lawyers and then turning back to stare at the ceiling of the death chamber. Edward Hartman, 38, was executed by injection at Central Prison in Raleigh. He was pronounced dead at 2:14 a.m., Department of Correction spokeswoman Pam Walker said.

Hartman was sentenced to die for the slaying of 77-year-old Herman Smith Jr. in the Pinetops community. Smith was a former boyfriend of Hartman's mother and Hartman was living at his house.

Hartman issued no final statement. He appeared to say "hi" or "hey" to attorney Heather Wells through a window shortly after he was brought into the death chamber and then smiled before turning away. He didn't acknowledge any of the other 11 people who watched his execution, choosing to alternately close his eyes and stare at the ceiling until prison medical workers began to administer the lethal drugs at 2 a.m.

Wells cried as Hartman's stomach heaved. Edwin West III, another of Hartman's lawyers, put his arm around her shoulder to comfort her. They hugged just before Hartman was declared dead. None of Hartman's family witnessed the execution. Larry Smith, Herman Smith's son, watched stoically. He and the other witnesses declined to comment after Hartman's death.

Wells argued that Hartman was sentenced to death because of anti-gay bias by prosecutors during his trial. The U.S. Supreme Court turned down an appeal Thursday alleging discrimination based on Hartman's homosexuality. Gov. Mike Easley denied clemency for Hartman on Thursday, declining to reduce Hartman's sentence to life in prison. A prosecutor repeatedly referred to Hartman's sexual preference during his original trial, even though it had nothing to do with Smith's death, Wells said. "From jury selection through the cross-examination of several penalty phase witnesses, the prosecution repeatedly made references to Eddie's homosexuality," Wells said. "Eddie's homosexuality has no relevance to the crime or the circumstances surrounding the crime and no relevance to whether he should live or die." Gay rights groups protested the sentence and the Inter-American Commission on Human Rights asked the U.S. government to intervene so the commission could investigate.

"This is a case where the victim was 77 years old and killed in his home," Northampton County prosecutor Valerie Mitchell Asbell said. "This killing was premeditated. It was a horrible killing."

Hartman told authorities he drank 16 cans of beer before he shot Smith in the head from close range while the man sat in a recliner watching television. Hartman told a friend Smith carried thousands of dollars in his pocket, court records show. He took the man's car and left the body in the chair. He eventually buried the body in a horse stable and led authorities there after learning he was a suspect.

About 100 people opposed to the death penalty gathered outside the prison late Thursday, many holding candles and singing. Eight or nine protesters sat in a driveway blocking traffic into the prison. No arrests were reported. North Carolina has executed four people this year and 27 since the death penalty was reinstated in 1977.

The Daily Southerner

"Family Stands by Keel," by Calvin Adkins. (November 6, 2003)

A portrait of convicted murderer Joseph Timothy Keel and his family hangs on the wall of the Edgecombe County home of his youngest brother, Chris Keel. On Wednesday, Bobby Keel, the middle child and Timothy's younger brother, points out their mother, Linda, and father, Joseph P. Keel. They died in 1995, seven months apart. And if Gov. Mike Easley doesn't grant Timothy Keel clemency, another person in the portrait will die in less than 24 hours.

Joseph Timothy Keel, 39, is scheduled to be executed by lethal injection at 2 a.m. Friday at Central Prison in Raleigh for the slaying of his father-in-law, John Simmons, on July 10, 1990. The family of John Simmons declined to be interviewed for this story. Keel's family agrees that the death row inmate should be punished for the murder he committed, but they believe the death sentence is too harsh. "Killing Timmy is not the right thing to do," said cousin David R. Keel. "In our society parents tell their children two wrongs don't make one right. What type of message is our government sending?"

Friday's execution date is the third time Timothy Keel has been scheduled to die. The state Supreme Court issued a stay Aug. 3, 1999 for the scheduled Aug. 6, 1999 execution. He was granted another stay by the court Sept. 9, 1999 for the scheduled Oct. 29, 1999 execution. Both reprieves were based on concerns about Keel's mental capability. This time, family members said they are preparing for the worst. "We still have hope, but I think it is going to happen this time," said Bobby "Danny" Keel, Timothy Keel's brother. "My daddy died in his sleep on April 24 (1995) and my mother died of cancer Nov. 17 (1995). Now we are about to lose Timmy. Then there won't be anybody left but me and Chris. That's sad."

Keel's family said they will spend time with the death row inmate from 10 a.m. until 11 p.m. today at Central Prison. After their visit, they plan to go home and receive the news of their brother's death by watching television or by telephone. They said Timothy asked them not to witness his execution. "What they are getting ready to do is not going to bring John back," said Chris Keel's wife, Bridget Keel. "People look at the paper and think that Timmy is a bad person. What he did was wrong but Timmy is not bad. John's family and our family both are suffering through this. I wish they would just give him life in prison."

Bobby Keel was 21 years old when his brother killed John Simmons on a hog farm in Edgecombe County. Before the murder he said he had a usual brotherly relationship. Then July 10, 1990 changed his family's life forever. Bobby Keel recalled his family's reaction when they got the news of the murder. "We were all sad because we knew John -- he was a good person who would do anything for anybody," Bobby Keel said. "After Timmy confessed to the murder, my mother apologized to my father for having a kid who would do something like that. I never seen my daddy cry before, but when my mother told me that, he cried."

Raised in a Baptist background, Bobby Keel said their mother and father provided them proper morals. He admitted that his brother somehow went astray. The Keel family still has dim hopes that Easley will grant their brother clemency. On Sunday, they visited Timothy for the first time in two years. Before they left, prison officials handed them their brother's personal belongings inside a bag. The bag included two Bibles. On the back pages of the Bible, Timothy Keel wrote letters, dated Aug. 2, 1999 and July 6, 1999, to his son. The letters in part said that he was sorry about what he had done and told his son how much he loved him. "When they gave us his belongings, a sick feeling came over me," Bobby Keel said. "They didn't do it the last time, but for some reason I knew this could be it."

Timothy Keel's former wife, Amy Sawyer, was pregnant with the couple's child when the murder occurred. Family members and Keel's lawyers say his son has been the main focus of Keel's mind during the past few weeks. "I know he loved his son," said David R. Keel. "I can't imagine what he is going through. He saw him grow up in pictures and through a glass in prison."

Prison officials moved Timothy Keel to the death watch area at 3:17 p.m. Wednesday. His lawyers continue to fight for last minute clemency. If clemency does not prevail, his family members have made arrangements for a private funeral. Keel has requested to be cremated. Bridget said Timothy appeared to be happy during their last visit on Sunday. As far as the family is concerned, they are taking it one hour at a time. "This is something that you can't get used to," Bridget Keel said. "We love Timmy. How can you prepare for someone that you love to die?"

The Daily Southerner

"Justice Served"

Whether or not humanity was diminished early this morning with the execution of convicted murderer Joseph Timothy Keel is a matter for higher authorities than here to debate. But one thing is certain. Justice was served.

Legally sentenced to death for the killing of his father-in-law, John Simmons -- a sentence aggravated by his 1987 conviction for killing his 11-month-old son -- Keel's execution at 2 a.m. today came only after justice had been administered on both sides of the law. For the Simmons family, rectitude was found by a verdict of guilty. For Keel, a fair sentence was administered after two stays of execution and numerous examinations of his mental capability at the time of the 1990 murder.

North Carolina law justly allows the death penalty for killers such as Keel, and while two wrongs may not make a right, the fulfillment of the law in this case may yet serve the purpose for which it was created -- to deter future killings. Murder will always remain a senseless crime in that no sense can be made of the random or greed-driven taking of another life. But we can make sense of an execution -- the justly measured taking of a life -- when that sense works to the betterment of society.

Some believe Keel was a man too dangerous, too filled with rage to live. Others saw a brother or a conversion waiting to happen. Yet now what all would-be killers will see is this: Retribution in this state for murder is sure, and it is final.

ABOLISH Archives (Amnesty International)

USA (North Carolina) Joseph Timothy Keel, white, aged 35 - 29 July 1999

Joseph Timothy (Timmy) Keel is scheduled to be executed by lethal injection in North Carolina on 6 August 1999. He was sentenced to death at a retrial in 1993 for the murder of his father-in-law, John Simmons, who was shot on his hog farm in 1990.

Timmy Keel suffers from mental impairment. His IQ has been measured at 78 which places him in the borderline mental retardation range (a person of average intelligence would score 100). He reportedly suffers from organic brain damage, possibly as a result of a pre-natal injury. He is also said to have sustained several brain injuries, including one from being hit on the head by a 1,600 pound steel beam in a workplace accident. At the time of the murder, Keel was under the influence of cocaine and alcohol.

At a US capital trial, the proceedings are split into two separate stages, verdict and sentencing. At the verdict phase of Keel's 1993 trial, at which he was convicted of first-degree murder, his lawyer presented no evidence of Keel's history of drug abuse and mental problems, or of his intoxication at the time of the crime, in support of a possible claim of diminished responsibility and a lesser verdict of second-degree murder.

Keel has not been able to pursue, in the state courts, the claim that this amounted to ineffective defence representation, or any other appeal against his conviction or death sentence. Misunderstanding an instruction from the North Carolina Supreme Court in 1995, Keel's post-conviction lawyer missed the 60-day deadline to file for state post-conviction review of the case. Due to this error, any further appeals in the state courts were ruled to be procedurally barred. The post-conviction process is the stage during which claims of error by trial counsel can be fully investigated and presented to the state appeal courts.

Furthermore, since 1996, all post-conviction capital defendants in North Carolina have been entitled to full disclosure of the state's investigative files to determine whether any evidence exists which may be favorable to them.

The importance of this right was demonstrated in May 1999, when the murder conviction of North Carolina death row inmate Charles Munsey was overturned as a result of evidence uncovered during his state post-conviction appeals process.

In his ruling, the judge cited evidence that the state's key witness had lied, that prosecutors had withheld exculpatory evidence, and that another man's confession to the crime was probably true. Timmy Keel has been denied his entitlement to full disclosure of the state's records on his case because of his attorney's mistake in 1995.

Keel's federal appeals, necessarily based on a lesser record of evidence since there had not been a thorough state post-conviction process, have been unsuccessful. The full extent of Timmy Keel's alleged exposure to alcohol from an early age, and his subsequent mental and emotional problems, have not been heard in court.

>From the age of nine he reportedly became involved in his grandfather's moonshine (illicit liquor) business in rural eastern North Carolina. He allegedly began to drink at the age of 11 with the encouragement of his grandfather and uncles. His grandfather later died of cirrhosis of the liver.

Timmy Keel dropped out of school at 16, the age at which he began using drugs, including amphetamines, in addition to drinking large quantities of vodka. It is reported that his mother had him committed to a mental health treatment program after he began having blackouts, during which he would become violent to himself and others. Timmy Keel has a nine-year-old son who visits him monthly.

BACKGROUND INFORMATION

Amnesty International opposes the death penalty in all cases. Any death sentence is an affront to human dignity; any execution serves only to create more victims and deepen a culture of violence. More than 400 prisoners have been executed in the USA since 1992, including 59 in 1999.

RECOMMENDED ACTION: Please send telegrams/faxes/express/airmail letters in English or your own language: - expressing concern that Joseph Timothy Keel is scheduled for execution; - expressing concern that due to attorney error he has been denied post-conviction review in the state courts, and the right to full disclosure of state files on his case (you may cite the Charles Munsey case); - expressing concern that claims of the full extent of his mental health, drug and alcohol problems have not been heard in court; - noting that Joseph Timothy Keel?s IQ, measured at 78, puts him in the borderline mental retardation range, and pointing out that it is now 10 years since governments agreed that the death penalty should not be used against prisoners who suffer from mental retardation; - urging the Governor to grant clemency to Joseph Timothy Keel.

DeathHouse.Com

"Hog Farm Killer Executed in North Carolina." (November 7, 2003)

RALEIGH, N.C. - A man who shot his father-in-law to death on a hog farm was executed by lethal injection early Friday morning, the fifth condemned killer put to death in the state in 2003. Joseph Keel, 39, went to the death house after Gov. Mike Easley rejected clemency and the courts denied appeals that Keel was mentally retarded and was illegally convicted. Keel was pronounced dead at 2:18 a.m.

Murder On Hog Farm

On July 10, 1990, Keel murdered of his father-in-law, John Simmons, on a hog farm where Keel worked. Keel later confessed to the slaying. Keel said he fired a shot at Simmons while the victim was in his truck on the hog farm. After Simmons got out of the truck holding a knife, Keel shot him again. He then helped the wounded Simmons back inside his truck and later fired another shot into the truck, hitting Simmons in the head. The exact reason for the murder is not clear. Before killing Simmons, Keel told lawmen that he and Simmons had had a fistfight

No Clemency

Keel received two trials, both resulting in death sentences. Keel's doom was sealed when Easley announced Thursday that he would not stop the execution. "I find no compelling reasons to invalidate the sentence recommended by two juries and affirmed by the courts," Easley said.

Killed Son

Before the murder of his father-in-law, Keel had been convicted and sent to prison on manslaughter charges for the slayings of his infant son. It was that conviction that led to a death row appeal. The manslaughter conviction was used as a mitigating factor to convince a jury that Keel deserved a death sentence for the murder of his father in law. But, defense lawyers claimed that Keel was illegally convicted of manslaughter in the killing of his child. They said an alternate juror signed an affidavit saying he took part in deliberations.

Retardation Claim

It is illegal for an alternate juror to participate in the regular jury's decision-making process. The courts rejected the arguments and prosecutors countered there was doubt whether the alternate juror participated in deliberations or even went into the jury room. Defense lawyers had also claimed that Keel was mentally impaired, having an IQ below 80 and suffering from organic brain damage. He was once hit on the head with a 1,600 pound steel beam while working. North Carolina has now executed five condemned killers so far in 2003. Two more are scheduled to die this year.

Rocky Mount Telegram

"Appeals Continue for Keel," by J. Eric Eckard. (October 31, 2003)

With convicted killer Timmy Keel's execution date a week away, defense attorneys are questioning the legality of a previous conviction that was used to seek the death penalty against Keel. Keel, 39, who was convicted of murdering his father-in-law in Edgecombe County, is scheduled to be put to death at 2 a.m. Friday at Central Prison in Raleigh.

Defense attorney Jay Ferguson said Keel's conviction of manslaughter in the death of his 11-month-old son should be voided because one of the alternate jurors in the case participated in the deliberations. "The trial was constitutionally flawed," Ferguson said. Prosecutors used the manslaughter conviction as an aggravating factor in the Keel's trial for killing 42-year-old John Simmons, his father-in-law.

Defense lawyers Thursday asked the N.C. Court of Appeals to stop the execution and hold a hearing to determine if an alternate juror illegally took part in the 1987 deliberations in the manslaughter case. The appeals court dismissed the request Friday, but Ferguson said the court allowed him to refile the petition in N.C. Superior Court in Edgecombe County. "They dismissed the petition without prejudice, which basically means they remanded it to Edgecombe County, saying they should be the first to hear it," Ferguson said. "Dismissing it without prejudice means they were not ruling on its merits." Ferguson confirmed that he would file the petition in Edgecombe County Monday morning. Assistant District Attorney Steve Graham said Friday that he anticipated that the defense would file the petition in Tarboro, and "we'll be prepared to respond."

The defense's latest attempt revolves around a sworn statement, which indicated that one of the two alternate jurors in the manslaughter case said that both alternates were in the jury room and offered their views on the case. “Although he never voted, he discussed the case with other jurors,” Ferguson said. “In North Carolina, once that occurs the trial is absolutely void.” Graham denied the defense's contention. "We got four affidavits from jurors, and all four were emphatic that this did not happen," he added. Court transcripts show that the judge told the alternates they could remain in the courtroom. An affidavit from District Attorney Howard Boney said he couldn’t “recall either of the alternate jurors participating in jury deliberations.” Ferguson said the alternate’s statement was obtained Sunday when a law student and a lawyer from the Center for Death Penalty Litigation interviewed jurors in the manslaughter case.

The state said Keel has had repeated reviews by state and federal courts and that the juror claim was “completely without credible factual basis.” Keel was convicted twice for Simmons' shooting death. Keel, 26 at the time, lured Simmons to a hog parlor in July 1990 in Edgecombe County, where he beat Simmons severely and shot him twice in the head. The two had argued over Simmons' request that Keel and his wife, Amy, move out of a house in Edgecombe County owned by Simmons. Keel first told investigators that Simmons was killed in a drive-by shooting but later recanted and confessed to the murder. A 1991 conviction and death sentence were overturned, but prosecutors convinced another jury in 1993 that Keel was guilty of first-degree murder and deserved capital punishment.

The court has delayed Keel’s execution at least twice for review of legal points; the state Supreme Court denied his latest petitions as recently as August. In addition to the state court appeal, Keel’s lawyers have filed petitions in the 4th U.S. Circuit Court of Appeals in Richmond, Va., and the U.S. Supreme Court. In the U.S. Supreme Court, Keel contended that he didn’t get a proper appeal of his manslaughter conviction, but the state pointed out in its answer that Keel withdrew the appeal and wouldn’t be raising the point if it weren’t for the death sentence. The state also said, in part: “Keel is a killer who simply snuffs out the lives of those family members who annoy him and/or get in his way.”

Keel also asked the court to declare his sentence unconstitutional because North Carolina uses a short-form indictment that doesn’t include aggravating factors. The state high court has ruled the form constitutional. In the 4th Circuit, Keel’s lawyers are asking for a review of his mental retardation hearing in state court. Mentally retarded inmates can’t be executed under state law, but a court found Keel wasn’t retarded. State attorneys said in filings to the 4th Circuit that Keel has “dull normal intelligence,” including an IQ of at least 87, and that a court has found he isn’t retarded.

Defense and prosecuting attorneys also are scheduled to attend clemency meetings Tuesday with Gov. Mike Easley. Ferguson said he will tell the governor that Keel has the mental ability of a fifth-grader and should be sentenced to life in prison. (The Associated Press contributed to this story.)

Keel v. French (U.S. Court of Appeals, 4th Circuit)

JOSEPH TIMOTHY KEEL, Petitioner-Appellant,

v.

JAMES B. FRENCH, Warden, Central Prison, Raleigh, North Carolina, Respondent-Appellee.

December 7, 1998

Before MURNAGHAN, WILLIAMS, and MOTZ, Circuit Judges.

MURNAGHAN, Circuit Judge:

Joseph Timothy Keel ("Keel") appeals from the dismissal of his petition for habeas corpus relief. He has presented several claims, some of which were deemed to be procedurally barred by the district court. Other claims, such as his ineffective assistance of counsel claims relating to trial counsel's failure to raise a Batson challenge and failure to introduce certain evidence during the guilt/innocence phase of the trial, were dismissed without a hearing. Although we find that Keel's arguments are not procedurally barred, we affirm never- theless.

Keel murdered his father-in-law, John Simmons ("Simmons") on the evening of July 10, 1990. Three days after the shooting, Lieuten- ant Jerry Wiggs of the Edgecombe County, North Carolina Sheriff's Department interviewed Keel. Keel made a statement which Wiggs wrote down and Keel signed. Keel admitted that he had shot Simmons on the hog farm on July 10, 1990. Keel stated that he had asked Sim- mons for a ride to the farm, and upon their arrival had picked up the farm truck. He drove ahead of Simmons to the farm building and went inside. When Simmons arrived, Keel fired a shot into the cab of Simmons' truck. Simmons got out of the truck and said he had been hit. Keel told Simmons to sit down inside. Keel stated that he then shot Simmons again because Simmons had a knife and was coming after him. Keel said that Simmons fell, but got up again, and Keel then helped him to the truck. He stated that he did not know why he had shot Simmons in the first place.

At trial, Keel introduced evidence that, at the hog farm, he and Simmons had argued about a prior dispute between them. The two men had a fist fight, during which Simmons sustained some injuries. Simmons allegedly picked up a knife and pushed Keel to the floor. Keel then fired the pistol once, hitting Simmons and knocking him down. He then went to assist Simmons, put him in the truck, and drove it up to the office. He then went inside the farm truck and pulled out the rifle. Keel went inside the office and fired a shot through the window and into Simmons' head as the latter was sitting in his truck. Keel also introduced evidence tending to show that he had been drinking and using cocaine on the evening of the killing.

On August 20, 1990, the Edgecombe County Grand Jury returned a true bill of indictment charging Keel with one count of first degree murder. Keel entered a plea of not guilty and was capitally tried at the August 12, 1991 Criminal Session of the Superior Court, Edgecombe County, for murder in the first degree and sentenced to death. Con- cluding that the trial court had committed prejudicial error on the basis of an erroneous jury instruction, the North Carolina Supreme Court held that Keel must receive a new trial. State v. Keel 333 N.C. 52, 423 S.E.2d 458 (1992).

Keel was again tried capitally during the March 5, 1993 Criminal Session for murder in the first degree. The jury returned a guilty ver- dict. At the conclusion of the separate capital sentencing proceeding conducted pursuant to North Carolina General Statutes § 15A-2000 (Supp. 1994), the jury recommended that Keel be sentenced to death. The jury found that Keel had previously been convicted of a felony involving the use of violence to the person, a statutory aggravating factor. The jury also found eight mitigating circumstances, but none- theless recommended death. On March 30, 1993, the trial court entered judgment sentencing the defendant to death.

After his conviction and sentence, Keel again appealed to the North Carolina Supreme Court. The Supreme Court unanimously voted to uphold the verdict. State v. Keel, 337 N.C. 469, 447 S.E.2d 748 (1994). Keel filed a petition for writ of certiorari to the United States Supreme Court. This petition was denied on February 27, 1995. Keel v. North Carolina, 513 U.S. 1198, 115 S. Ct. 1270, 131 L.Ed.2d 147 (1995).

* * * *

CONCLUSION

To review, we find that Keel's arguments are not procedurally barred, but affirm because those arguments lack merit. We also affirm the district court's rulings as to the merits of all of Keel's other claims. AFFIRMED

State v. Keel, 423 S.E.2d 458 (N.C. 1992). (Direct Appeal - Reversed)

Defendant was convicted in the Superior Court, Edgecombe County, Frank R. Brown, J., of first-degree murder. Defendant appealed. The Supreme Court, Mitchell, J., held that jury instruction that "intentionally killed" referred not to presence of specific intent to kill and that sense of the expression was that act that resulted in death is intentionally committed violated due process and was prejudicial error. Reversed. Meyer, J., dissented and filed opinion in which Lake, J., joined.

MITCHELL, Justice.
The defendant presented no evidence at the guilt-innocence determination phase of his capital trial. The State's evidence tended to show the following. On 10 July 1990, at about 10 p.m., the defendant, Joseph Timothy "Timmy" Keel, knocked on the door of Albry Thurman's mobile home. When Thurman answered the door, the defendant told him that John Simmons, the defendant's father-in-law, had been shot. The defendant told Thurman that it had been a drive-by shooting. Thurman testified that the defendant's shirt was covered with blood and that Simmons was outside in a yellow pickup truck, situated in the passenger side so that he faced the steering wheel. Simmons had a bullet wound in the right side of his head, and the truck's windows were rolled down. Albry Thurman's wife, Shelby Thurman, called 911. Shelby Thurman testified that the defendant told her that Simmons had been shot by a person riding in a red station wagon near the dumpsters on Gay Road.

Edgecombe County Sheriff's Deputy Robert Davis testified that he was called to Baker's Park, the trailer park where the Thurmans' mobile home was located, on the night of 10 July 1990. When he arrived, the rescue squad was already there. The defendant came out of the trailer and met Davis in the yard. The defendant told Davis that he had received a phone call earlier in the evening asking him to go to Shell Bank Farm, the hog farm where the defendant worked. The defendant said that Simmons had driven him to the farm. On the way back, while Simmons was driving, someone in a red station wagon or a large Chevrolet had shot Simmons twice when they were at the intersection of Leggett Road and Gay Road. The defendant appeared to be upset, and his shirt was covered with blood. Deputy Davis examined the pickup truck and found that the windows were rolled down. There was a bullet hole just behind the driver's side window, and there was a small pool of blood in the passenger seat near the window.

Sergeant Donnie Lynn of the Edgecombe County Sheriff's Department also interviewed the defendant on the night of the shooting. The defendant told Sergeant Lynn that he and his wife lived with the victim, Johnny Simmons, and that, on the night of the shooting, Simmons had driven the defendant to Shell Bank Farm after the defendant's boss had called to tell him to check on the hogs at the farm. The defendant stated that he had taken the company truck from the driveway of the farm manager's house and had driven that truck down to the farm while Simmons followed in the yellow pickup truck. The defendant said that after he checked out the farm and found nothing wrong, he took the company truck back to the manager's house and left the farm with Simmons in the yellow truck. Simmons was driving. When they were on Gay Road near some trash dumpsters, a car passed them, and the defendant heard two pops. Simmons slumped over, and the defendant managed to stop the truck. The defendant moved Simmons over to the passenger side of the truck and drove the truck away.

On the night of the shooting, the defendant showed Sergeant Lynn where these events allegedly occurred. Sergeant Lynn testified that he found nothing in the vicinity of the Gay Road dumpsters to indicate that a drive-by shooting had occurred. He testified that he returned to the farm the following day, when he noticed what appeared to be blood outside the farm office and found a .22 caliber shell casing nearby. Inside the building, Sergeant Lynn saw blood spatters on the walls and floors and found a jumpsuit with blood on it. He also found a blood-soaked mop at the back of the building, some .22 caliber bullets in a drawer in the office, and a hole in the window screen of the farm office.

Dr. Louis Levy, the medical examiner for Nash and Edgecombe Counties, testified that the victim had suffered two gunshot wounds, that the shots had been fired from a distance, and that they had been fired from opposite sides of the victim's head. He testified that the victim had died of shock as a result of the gunshot wounds. Dr. Levy's opinion was that neither gunshot wound was consistent with a drive-by shooting.

James Stevey, a co-worker of the defendant, testified that he was the first to arrive at work on the day after the shooting. The key that was usually over the front door of the farm's office building was missing, so Stevey went into the building only after the defendant entered by a side door and opened the front door from the inside. This was not the normal practice, and Stevey had never seen the defendant enter the building in this way. Stevey testified that he had noticed a puddle of blood in front of the building and that the defendant had kicked dirt over the puddle. Once they were inside the building, the defendant went ahead of Stevey into the area of the building in which workers changed their clothes. By the time Stevey went in, the defendant was already running the clothes washer. This was unusual, because another employee usually did the washing. The defendant then began wiping blood off the floor with a rag. When Stevey asked what had happened, the defendant told Stevey that the defendant's father-in-law had been shot. Stevey also testified that he saw a bloody mop outside the building and that generally there was no animal blood in the office building, because hogs were not killed at that location.

Lieutenant Jerry Wiggs of the Edgecombe County Sheriff's Department testified that he interviewed the defendant on 13 July 1990 at the office of the Sheriff's Department. After waiving his rights, the defendant made a statement, recorded in writing by Lieutenant Wiggs and signed by the defendant, in which he admitted that he had shot his father-in-law at the hog farm on 10 July 1990. He stated that he had called the victim and asked for a ride to the farm. When they arrived at the farm, the defendant picked up the farm truck. He then proceeded to the farm building, driving ahead of the victim. The defendant went into the farm building, and from there, he fired a shot into the victim's truck cab. The victim got out of his truck, saying he was hit, and the defendant made him sit down in the kitchen area of the farm building. The defendant stated that he shot the victim again, because the victim had a knife and was coming after him. The victim fell, but got up again, and the defendant helped him get into the truck. The defendant then drove to Baker's Park to get some help. The defendant stated that he had thrown the rifle into one of the fields in the hog pen and that he did not know why he had shot the victim.

Ceclia Edmondson, the defendant's next-door neighbor, testified that on 9 July 1990, the defendant was standing outside Edmondson's house when the victim accused the defendant of being a woman-beater and asked the defendant what kind of drugs he was taking. The defendant stated, "I'm going to kill that bald-headed, mother-f---ing son-of-a-bitch if he doesn't leave me alone." Edmondson testified that the defendant had been drinking and smelled of alcohol when he made this statement.

* * * *

Because the defendant's mental state at the time of the crime was at issue in the present case, the State has failed to show that the trial court's error in defining the intent required for first- degree murder was harmless beyond a reasonable doubt. We conclude that the trial court committed prejudicial error by improperly instructing the jury as to the intent *60 element of first-degree murder. Therefore, the defendant must receive a new trial.

State v. Keel, 447 S.E.2d 748 (N.C. 1994). (Direct Appeal - Affirmed)

After defendant's initial conviction of first-degree murder and sentence of death was reversed by the Supreme Court, 333 N.C. 52, 423 S.E.2d 458, and defendant was again found guilty of first-degree murder and sentenced to death following jury trial before the Superior Court, Edgecombe County, Brown, J. Defendant appealed. The Supreme Court, Mitchell, J., held that: (1) trial court properly allowed state's challenges for cause to prospective jurors on basis of their opposition to capital punishment without first giving defendant opportunity to attempt to rehabilitate them; (2) any error in omission of instruction on "sixth element" of first-degree murder, absence of self-defense, in reinstructing jury during deliberations was not plain error; (3) evidence, including reasonable inferences and findings regarding premeditation and deliberation, was for jury and thus motion to dismiss was properly denied; (4) conviction for involuntary manslaughter was properly submitted as potential aggravating circumstance of prior felony conviction "involving the use of violence to the person"; (5) court did not commit instructional error with respect to instructions on mitigating factors or with respect to issues and recommendation sheet; and (6) imposition of death penalty was not disproportionate to other cases. No error.

MITCHELL, Justice.
This is the second time this case has been before this Court on appeal. The defendant was initially tried at the 12 August 1991 Criminal Session of Superior Court, Edgecombe County, at which time he was convicted of murder in the first degree and sentenced to death. Concluding that the trial court had committed prejudicial error, this Court held that the defendant must receive a new trial. State v. Keel, 333 N.C. 52, 423 S.E.2d 458 (1992)

The defendant was again tried capitally during the 5 March 1993 Criminal Session of Superior Court, Edgecombe County, for murder in the first degree. The jury returned a verdict finding the defendant guilty of that crime. At the conclusion of a separate capital sentencing proceeding conducted pursuant to N.C.G.S. § 15A-2000 the jury recommended that the defendant be sentenced to death. On 30 March 1993, the trial court entered judgment sentencing the defendant to death. Thereafter, the defendant gave notice of this appeal of right, which we now undertake to review.

Some of the State's evidence introduced during the guilt-innocence determination phase of the defendant's second capital trial in this case tended to show the following. At approximately 10:00 p.m. on 10 July 1990, the defendant Joseph Timothy Keel knocked on the door of Aubrey Thurman's mobile home. When Thurman answered the door, the defendant told him that John Simmons, the defendant's father-in-law, had been shot. Aubrey Thurman testified that the defendant's shirt was covered with blood. Simmons was outside the Thurman mobile home seated in the center of the seat of a small truck and positioned so that he faced the steering wheel. Aubrey Thurman never detected any movement on the part of Simmons. Aubrey Thurman's wife Shelby called the 911 emergency services telephone number immediately. Shelby Thurman testified that the defendant told her that Simmons had been shot in a drive-by shooting on Gay Road by a person in a station wagon.

Edgecombe County Deputy Sheriff Bob Davis testified that he was called to Baker's Park, where the Thurmans' mobile home was located, on the night of 10 July 1990. When he arrived, the defendant met him at the front door of the Thurmans' mobile home. The defendant told Davis that he had received a phone call earlier in the evening asking him to go to Shell Bank Farm, the hog farm where the defendant was employed. The defendant said that Simmons had driven him to the farm. On the way back from the farm, while Simmons was driving, someone in a station wagon had shot Simmons near the intersection of Leggett Road and Gay Road. Deputy Davis examined the truck the defendant and Simmons had been using and found that the windows were rolled down and intact. There was a bullet hole on the driver's side of the truck in the cab section and what appeared to be an exit hole made by a bullet on the interior of the truck. A pool of blood was located near the center of the seat of the truck toward the passenger side.

Sergeant Donnie Lynn of the Edgecombe County Sheriff's Department also interviewed the defendant on the night of the shooting. The defendant stated that he and his wife lived with his wife's father, Johnny Simmons. The defendant told Sergeant Lynn that on the night of the shooting, Simmons had driven the defendant to Shell Bank Farm after the defendant's boss had called to tell him to check on the hogs. The defendant stated that he had taken the company truck from the driveway of the farm manager's house and had driven that truck to the farm while Simmons followed in the small pick-up truck. After attending to business at the hog farm, the defendant left the company truck there and rode with Simmons. When they were on Gay Road near some trash dumpsters, a car passed them and the defendant heard two pops. Simmons slumped over, and the defendant then managed to stop the truck. The defendant moved Simmons over to the passenger's side of the truck and drove away. On the night of the shooting, the defendant showed Sergeant Lynn the locations where the events he had described allegedly occurred. Sergeant Lynn testified that he found nothing in the vicinity of the Gay Road dumpsters to indicate that a drive-by shooting had occurred. Lynn testified that he returned to the farm the following day and noticed what appeared to be blood outside the farm office. He found a fired .22 caliber shell casing nearby. Inside the building, Sergeant Lynn saw blood spattered on the walls and floors and found a jumpsuit which bore blood stains. He also found a bloody mop and two boxes of .22 caliber shells, as well as some loose shells in a drawer in the office.

Dr. Louis Levy, Medical Examiner for Edgecombe County, testified that Simmons had suffered two gunshot wounds to the head. One wound was in the right malar region and the other was behind the left ear. Both were entrance wounds. Dr. Levy testified that the cause of John Simmons' death was shock resulting from these gunshot wounds. Dr. Levy testified that, in addition to the gunshot wounds, the victim had suffered bruises and abrasions of the lips, nose and forehead. He had also suffered a blunt force injury beginning at the right eyebrow and extending upward. The victim also had suffered abrasions on his left side and hemorrhaging to his buttocks and both legs. His body also bore a figure-eight shaped lesion over the left knee.

Dr. Levy testified that the victim could not have received both gunshot wounds from the same side, since the paths of the wounds entered on opposite sides of the head. Dr. Levy opined that this configuration of wounds was inconsistent with a drive-by shooting. On cross-examination, he testified that the wounds were consistent with a .22 caliber bullet, and that the victim was alive at the time both of the wounds were inflicted.

Gary Stanbough, the manager of Shell Bank Farm, testified that he spoke by telephone with the defendant at approximately 8:00 p.m. on 10 July 1990. The defendant asked for permission to go fishing in a pond at the farm. The defendant stated that he wanted to know if he could come by to get the farm truck to drive to the pond. Stanbough allowed the defendant to borrow the truck. Stanbough testified that a single-shot .22 caliber rifle was kept behind the seat of the farm truck, but that he never saw the rifle again after the defendant borrowed the truck that night.

James Stevey, an employee of the farm, testified that he went to work on the day after the shooting. The key that was usually over the front door of the office building at the farm was missing. Stevey was able to enter the building only after the defendant entered by a side door and opened the front door from inside. Stevey had noticed a puddle of blood in front of the building and saw the defendant kick dirt over the puddle. Once they were inside the building, the defendant went ahead of Stevey into the area of the building in which workers change their clothes. By the time Stevey entered, the defendant was already running the washing machine. Stevey had never seen the defendant run the machine before. The defendant then began wiping blood off the floor with a rag. The defendant said that his father-in-law had been shot but did not admit to Stevey that he had shot the victim.

Lieutenant Jerry Wiggs of the Edgecombe County Sheriff's Department testified that he interviewed the defendant on 13 July 1990--three days after the shooting--at the office of the sheriff's department. After being advised of and waiving his constitutional rights, the defendant made a statement which Wiggs wrote down and which was signed by the defendant. In his statement, the defendant admitted that he had shot the victim at the hog farm on 10 July 1990. He stated that he had asked Simmons for a ride to the farm. When they arrived at the farm, the defendant picked up the farm truck. He then proceeded to the farm building, driving ahead of Simmons. The defendant went into the farm building upon his arrival. When Simmons drove up outside the building, the defendant was inside the building and fired a shot into the cab of Simmons' truck. Simmons got out of the truck, saying that he was hit. The defendant told him to sit down in the kitchen area of the farm building. The defendant stated that he then shot Simmons again, because Simmons had a knife and was coming after him. The defendant said that Simmons fell, but got up again, and the defendant then helped him into the truck. The defendant then drove to the Thurmans' mobile home for help. The defendant stated that he had thrown the rifle he used to shoot the victim into a hog pen. He stated that he did not know why he had shot Simmons the first time.

Cecila Edmondson, the defendant's next door neighbor, testified that on 9 July 1990--the day before the victim was shot--the defendant was standing outside her house. She overheard the defendant state that he was going to kill "the bull-headed mother f___ing son of a bitch." Edmondson testified that the victim and the defendant had been arguing before she heard the defendant make that statement.

The defendant introduced evidence tending to show the following. On the evening of 10 July 1990, John Simmons told the defendant that he had received a telephone call telling the defendant to go to work. Simmons drove the defendant to Gary Stanbough's house to get the farm truck. The defendant then drove the farm truck from Stanbough's house to the area in which the farm office was located. Upon arrival, the defendant went into the office and came back out. The defendant and Simmons began to discuss prior arguing that had occurred between the defendant and John Simmons' wife and his daughter, Amy. Simmons told the defendant that the defendant and Amy needed to find another place to live. Simmons and the defendant then engaged in a fist fight. Simmons ran into the office, where the two men began pushing each other. The defendant told Simmons that he wished that Simmons would stop accusing him of "messing" with Simmons' wife, Jennifer. The two men began fighting again, and the defendant kicked Simmons on his knee and in his chest. Simmons fell and hit a counter in the kitchen area of the office. When he got up he had blood on his hand.

Simmons picked up a knife from the counter and pushed the defendant. The defendant fell over some chairs and against a refrigerator. The defendant then pulled out a .25 caliber pistol and told Simmons to stop. The defendant fired the pistol one time, hitting Simmons and knocking him down. The defendant then went to assist Simmons. He drove Simmons' truck to the front of the office and put Simmons inside. The defendant then pulled the truck up to a window of the office. He went back to the farm truck and took out the rifle. He went into the office and fired a shot through the window into Simmons' head as Simmons was sitting in the truck slumped over. The defendant took mops from the office and cleaned the blood off the floor. Then he drove Simmons to the Thurmans' mobile home where he tried to assist emergency personnel upon their arrival.

The defendant also introduced evidence tending to show that he had been drinking and using cocaine on the evening of the killing. His brother and sister-in-law testified that he smelled of alcohol and was crying shortly after the shooting. The defendant testified that he did not intend to kill or hurt Simmons.

After arguments of counsel and instructions by the trial court, the jury returned a verdict finding the defendant guilty of murder in the first degree. Thereafter, the trial court conducted a separate capital sentencing proceeding pursuant to N.C.G.S. § 15A-2000.

During the sentencing proceeding, the State expressly relied on the evidence previously introduced and also presented additional evidence. The State introduced a certified record of a conviction of the defendant on 20 March 1987 for the offense of involuntary manslaughter. Dr. George C. Hemingway, a pediatrician and Medical Examiner for Edgecombe County, testified that at approximately 5:00 a.m. on 26 June 1986, he examined an eleven-month-old infant named Victor Matthew Keel at the emergency room at Heritage Hospital. Dr. Hemingway observed bruises about the child's head, face, legs and arms. The bruises were relatively recent bruises, six to eight hours old.

Dr. Louis Levy testified that he performed an autopsy on the body of the child Victor Keel on 26 June 1986 and found a three-inch fracture of the skull located on the right side of the head. In Dr. Levy's opinion, that injury caused the child's death. The defendant also presented evidence during the sentencing proceeding. The defendant testified that when he had been in prison, he had been president of the prison Jaycee Club and had helped organize functions to raise money for the prison and to help people in the community. He testified that he participated in a wood drive during which inmates would get together to go out of the prison and cut and split wood to provide for those who did not have firewood. He also testified that he had started a choir in Granville County, completed his high school education, obtained an associate degree from Heritage Bible College and had enrolled in and completed drug and alcohol abuse classes.

The defendant testified that he did not intentionally kill his eleven- month-old son. He testified, in fact, that his son had injured himself by falling down the front steps of the defendant's mobile home. The defendant testified that his son had also received a bruise on his forehead when he hit a door at his grandmother's house on the date of his death. The defendant said that when he had learned that his son had breathing trouble, he attempted to get help. When his son again stopped breathing, the defendant attempted to revive the child. The defendant acknowledged that he was an alcoholic and had blacked out in the past. The defendant also offered evidence through his parents and brother to the effect that the defendant's son had struck his head on a door on the day of his death. The defendant's mother testified that he had lost interest in school when he had been taken off the wrestling team. She also testified that he had sought treatment for alcohol abuse. The defendant's brother testified that once when he was twelve years old, he and the defendant were walking in a field and saw some wild dogs coming their way. The defendant grabbed him by the arm and got him up a tree until the dogs left.

Dr. Jonathan Weiner, an expert in forensic psychiatry, testified that he had diagnosed the defendant as being dependent on alcohol and marijuana. Dr. Weiner felt that he was probably dependent on cocaine as well. Dr. Weiner testified that from the time the defendant was young, he had problems dealing with feelings and impulses. When he was young, the defendant dealt with problems with people by fighting. Dr. Weiner further diagnosed the defendant as having a borderline personality disorder in that he never was able to come to a sense of who he was. Dr. Weiner testified that the defendant had a history of alcoholism in his family. In an earlier part of his life, the defendant had thought about hurting himself. During one episode when he was in a drug treatment program and withdrawing from drugs, the defendant cut himself with a razor blade. Dr. Weiner testified that the defendant seemed to function better in a prison environment than outside of prison because he did not have access to alcohol and drugs in prison.

Lane B. Simpson, a pastor, testified that he met the defendant when the defendant's child died. Simpson testified that the defendant had accepted the Lord while in jail and wanted to be a fine Christian young man. John College testified that he was the defendant's direct supervisor at Shell Bank Farm for approximately six months. The defendant was a good worker.

Dr. Robert L. Conder, Jr., an expert in the field of neuro-psychology, testified that he examined the defendant, took a history from the defendant and administered a battery of tests to him. Dr. Conder testified that the defendant was in the borderline area between low-average IQ and mild mental retardation. The defendant's IQ is 78 and his intellectual functioning in the lower seven percent of the population. Dr. Conder diagnosed the defendant as having an organic personality syndrome. At the conclusion of all evidence at the capital sentencing proceeding, and after arguments of counsel and instructions by the trial court, the jury recommended that the defendant be sentenced to death. The trial court entered judgment sentencing the defendant to death, and the defendant gave notice of appeal to this Court.

* * * *

For the foregoing reasons, we conclude that the sentence of death entered in the present case is not disproportionate. Having considered and rejected all of the defendant's assigned errors, we hold that the defendant's trial and capital sentencing proceeding were free of prejudicial error and that the resulting sentence of death was not disproportionate punishment. Therefore, the sentence of death entered against the defendant must be and is left undisturbed. No error.