Harold McElmurry

Case details

Harold McElmurry was a convicted killer who was executed by lethal injection in Oklahoma on July 29, 2003.

Timeline

• Aug. 2, 1999 — The murders of Rosa Vivien Pendley, 75, and Robert Pendley, 80, occurred.
• Aug. 5, 1999 — The McElmurrys were arrested when they crossed the border back into the United States.
• June 12, 2000 — Harold McElmurry was recaptured in time for his double murder trial.
• June 16, 2000 — The trial court imposed judgment and sentence; sentences were set in accordance with the jury verdicts.
• Dec. 2, 2002 — His direct appeal was denied.
• Feb. 28, 2003 — Rehearing was denied.
• July 29, 2003 — Harold McElmurry was executed by lethal injection; lethal injection chemicals began at 6:04 p.m. and he was pronounced dead at 6:06 p.m.
• June 2, 2003 — Attorney General Drew Edmondson requested an execution date for McElmurry.
• May 29 (year not stated) — A deadline referenced for filing a petition at the U.S. Supreme Court.
• June 16, 2002 — McElmurry wrote a letter to the attorney general’s office.

Background

Harold McElmurry became the 14th convicted killer put to death in Oklahoma in 2003 and the 50th condemned killer put to death in the United States in 2003.

Robert Pendley was a paraplegic confined to a wheelchair. Rosa Vivien Pendley lived with him in Eufaula; the killings occurred at their rural home near Lenna in eastern Oklahoma, west of Eufaula.

The Pendleys had previously hired McElmurry to do yard work and odd jobs. Several weeks before the murders, the Pendleys hired a man to clear some land so they could see the sunset better, and that man brought Harold and Vickie McElmurry to help. After the work was done, the McElmurrys returned.

McElmurry had prior convictions for grand larceny and concealing stolen property.

The offence

The McElmurrys murdered Rosa Vivien Pendley, 75, and Robert Pendley, 80, at their rural home near Lenna in eastern Oklahoma.

Victim age and condition

Robert Pendley was 80 and was a wheelchair-bound paraplegic. Rosa Vivien Pendley was 75.

Methods and injuries

The Pendleys were stabbed with scissors and their heads were smashed in with a pipe. The murders also involved a hoe and garden implements.

In his written statement to investigators, McElmurry said:

"Vivian and Vickie were away [from] the house, and I decided to go ahead and kill Robert. Robert and I were in the garage. I had picked up some scissors in the house that I intended to use to kill Robert. All of a sudden I pulled out the scissors and stabbed Robert 6 or 7 times in the chest while he was sitting in his chair. He fell out of the chair and I hit him in the head with a hoe two or three times."

He stated that he later used a three-foot pipe to smash Robert’s head after discovering Robert was still alive, and he beat Vivian with an iron pipe until her skull was also shattered.

Other descriptions in the case stated that Robert Pendley was knocked from his wheelchair and stabbed repeatedly with scissors, then bludgeoned with garden tools and an iron pipe. Vivian Pendley tried to escape; investigators said McElmurry had his wife catch and hold Vivian while he beat her to death.

Rows of puncture wounds were found later on Robert Pendley’s back consistent with multiple blows from metal tines of a garden rake found in the garage.

Robbery and theft

The couple stole $70, costume jewelry, the Pendleys’ car, and a pistol. They also took two pistols, including a German Lugar pistol.

Investigators said robbery was the motive for the crime.

Investigation

McElmurry confessed to the murders.

After McElmurry was taken into custody, he gave statements to Texas Ranger Doyle Holdridge.

The medical examiner, Dr. Donald Distefano, testified that both Vivian Pendley and Robert Pendley died as a result of multiple blunt and sharp force injuries.

Arrest and flight

The McElmurrys fled to Texas and then to Mexico, staying two or three days in Mexico.

On Aug. 5, 1999, they crossed the border from Mexico back into the United States near Laredo, Texas, and were arrested.

Peter Brewster, a United States Immigration officer, testified that McElmurry was driving the Pendleys’ car when it crossed the bridge into the United States and that Vickie McElmurry was a passenger.

Trial

McElmurry was tried by jury before the Honorable Steven W. Taylor, District Judge, in McIntosh County District Court.

He was convicted of:

• two counts of First Degree Murder with Malice Aforethought,
• one count of Robbery with a Dangerous Weapon,
• one count of Larceny of a Motor Vehicle.

The cases were severed for purposes of trial; McElmurry was tried first.

Jury findings and aggravating circumstances

The jury found four aggravating circumstances as to each murder count and fixed punishment at death on each count.

The jury fixed punishment for the robbery at one hundred (100) years imprisonment and for the motor vehicle larceny at twenty (20) years imprisonment.

The four statutory aggravating circumstances found by the jury as to each murder count were:

1. The defendant knowingly created a great risk of death to more than one person;
2. The murder was especially heinous, atrocious, or cruel;
3. The murder was committed for the purpose of avoiding or preventing a lawful arrest or prosecution;
4. At the present time there exists a probability that the defendant will commit criminal acts of violence that would constitute a continuing threat to society.

Trial date setting and preliminary hearing dispute

A district judge set the date for the McElmurrys’ trial for April, and he overruled a motion filed by defense attorney Wes Gibson to have the case remanded for a further preliminary hearing.

Gibson said he filed the motion because at a Jan. 5 hearing, Associate District Judge Gene Mowery denied his request to have Harold McElmurry testify on behalf of his wife.

After the hearing, Gibson said Harold McElmurry had told his wife from the outset that he was going to exonerate her and that he wanted to get on the stand to say he did it all. Gibson said:

"I'm not sure what Im going to do with that at this point,"
and also: "I may file a writ on that issue."

Methamphetamine and statements at hearings

At a preliminary hearing, McElmurry testified that he and his wife “shot up” with methamphetamine while trying to decide whether to rob and kill the Pendleys or to simply rob them.

At the same preliminary hearing, he claimed that he and his wife each injected “a little bit of crank,” or methamphetamine, 30 or 40 minutes before returning to the Pendleys’ house.

The case record indicated that McElmurry did not mention drugs in his statements to police when he was arrested.

Confession and account of the killings

The court’s presentation of facts stated that McElmurry and his wife began a two-day journey on foot to the Pendley residence and were invited into the home when they knocked on the door.

The defendants moved outside because they were smoking cigarettes; after a while, they left and walked in a wooded area across the road for one or two hours trying to decide whether to rob, or to rob and murder.

McElmurry was quoted as stating in the court documents:

"I wanted to kill them but I didn't feel right about it. I didn't care for Vivian much, but I liked Robert. Robert was always real nice to me."

He also stated:

"There is no question as to my guilt and I feel competent to make this decision."

Sentencing

The trial court imposed judgment and sentence on June 16, 2000 and set punishment on each charge in accordance with the jury verdicts.

The trial court ordered the Twenty (20) Year Sentence in Case No. CF-1999-153A (Larceny of a Motor Vehicle) to run concurrently with the One Hundred (100) Year Sentence in Case No. CF-1999-154A (Count 3, Robbery with a Dangerous Weapon).

Appeals

McElmurry’s direct appeal was denied on Dec. 2, 2002, and rehearing was denied on Feb. 28, 2003.

He failed to file a petition for writ of certiorari at the U.S. Supreme Court before the May 29 deadline.

A statue-based execution date request was made by Oklahoma Attorney General Drew Edmondson; he requested the date be set 30 days from May 29.

Recapture during pretrial period

McElmurry escaped from jail and was recaptured in time for trial.

Officials said Harold McElmurry III, 30, was taken into custody about 6 a.m. when he was spotted in front of the Eufaula City Hall by Eufaula Police Chief Randy Johnson. Potential jurors began arriving for selection for his trial shortly later, and the trial was to proceed as scheduled.

The escape occurred when he slid through the barred window of his second-floor cell and jumped 12 feet to the ground about 10:15 p.m. on Saturday. He was a jail escapee awaiting trial for the August 1999 slayings of an elderly Lenna couple whom he and his wife, Vickie, had been hired to do lawn work for.

Vickie McElmurry was in jail awaiting trial; prosecutors were seeking the death penalty for both, and the defendants were being tried separately because of their opposing defenses.

The account given for alleged conduct included that Harold stabbed Robert Pendley, a wheelchair-bound paraplegic, several times with a pair of scissors and bludgeoned him with a steel pipe, and that Vickie choked Vivian Pendley until Harold stabbed Vivian and dragged her body into the garage.

Execution and last statement

Harold McElmurry was executed at the state prison in McAlester, Oklahoma.

The lethal injection of chemicals began at 6:04 p.m. and McElmurry was pronounced dead at 6:06 p.m.

Just before he was put to death, McElmurry asked for forgiveness. He said:

"I'd like to say I'm sorry to the Pendleys,"
"I hope they can forgive me."

For his last meal, McElmurry requested a medium pizza with Canadian bacon, a pint of chicken livers, cottage cheese, and a white onion.

McElmurry was 33 at the time of execution.

Witnesses included:

• Diana Pendley,
• her husband Bob,
• son Robert and Robert’s wife Sheila,
• the murder victims’ grandson, also named Robert.

The murder victims’ grandson said he believed McElmurry’s apology was sincere:

"I think he was sincere,"

He also said:

"I forgave Harold about three weeks ago,"
and: "It was kind of a hard thing to do, just knowing the brutality of the crime he had committed. "
and: "I felt like with Harold making the decision he had made tonight (waiving all remaining appeals), I felt like I needed to do that."

Other details

Vickie McElmurry

Vickie McElmurry was sentenced to life in prison for her part in the slayings.

In other statements in the record, she was serving two life sentences for her part in the crime, including life without parole. She was serving two life sentences for the deaths of the 80-year-old paraplegic Robert Pendley and the 75-year-old Vivian Pendley.

Chief Deputy Meme Martinez of Webb County, Texas, testified that Vickie confessed to him that she hit Pendley on the head with a pipe and had choked Mrs. Pendley until Harold could stab her.

Investigators said Vickie McElmurry lured Vivian Pendley away while Harold attacked Robert in the garage. Investigators also said Harold had his wife catch and hold Vivian while he beat her to death.

Items stolen and vehicle

The stolen items included the Pendleys’ car, $70 cash, costume jewelry, and two pistols, including a German Lugar pistol.

The Pendleys had a 12-year-old Oldsmobile.

Prior criminal conduct and belief of arrest

McElmurry believed he was about to be arrested for a probation violation and would be sent back to prison. He had lost his job, had little money, could not get a tag for a car he had bought, and assumed the Pendleys had money and a car.

Date inconsistencies within the record

The record described the murders as occurring Aug. 2, 1999, and also as occurring Aug. 1, 1999, and as occurring in 1999. It also described the execution-related reporting as using both “Aug. 2, 1999” and “Aug. 1, 1999” in connection with the murders.