State v. Pakulski

• Citation: 356 S.E.2d 319,319 N.C. 562
• Decision Date: 02 June 1987
• Docket Number: No. 256PA85,256PA85
• Parties: STATE of North Carolina v. Mitchell John PAKULSKI and Elliott Clifford Rowe.
• Court: North Carolina Supreme Court

Page 319

356 S.E.2d 319

319 N.C. 562

STATE of North Carolina v. Mitchell John PAKULSKI and Elliott Clifford Rowe.

No. 256PA85.

Supreme Court of North Carolina.

June 2, 1987.

Lacy H. Thornburg, Atty. Gen. by David Roy Blackwell, Asst. Atty. Gen., Raleigh, for the State.

Ann B. Petersen, Chapel Hill, for defendant-appellant Pakulski.

Gordon Widenhouse, Raleigh, for defendant-appellant Rowe.

MEYER, Justice.

Following two mistrials, a Haywood County jury found each of the defendants guilty of first-degree murder under a theory of felony murder. Judgments of conviction and sentences of life imprisonment were entered on 17 November 1984. Judgments were arrested on the offenses of armed robbery and felonious breaking or entering, as these offenses formed the offenses upon which the convictions of felony murder were predicated.

On appeal, defendants bring forward assignments of error relating only to the convictions of felony murder. They argue: (1) that the trial court violated their rights against double jeopardy; (2) that there was insufficient evidence that the murder was committed in the course of an armed robbery or a felonious breaking or entering; (3) that because armed robbery and felonious breaking or entering were submitted in the disjunctive, as possible felonies supporting a felony murder conviction, the defendants were deprived of their right to a unanimous verdict; and (4) that the trial court erred in failing to submit the pattern jury instruction on impeachment of a witness.

We hold that there was insufficient evidence to submit to the jury the charge of felony murder based on felonious breaking or entering as the predicate felony. Because the felonious breaking or entering and armed robbery were submitted in the disjunctive as predicate offenses of the felony murder, it is impossible to determine from the record whether the jury based its verdict of felony murder on a predicate felony that was improperly submitted. Therefore, we order a new trial.

We find no merit in defendants' contentions that the trial court violated the defendants' rights against double jeopardy. We also hold that the trial court did not commit prejudicial error in failing to submit the pattern jury instruction on impeachment of witnesses.

On Sunday morning, 17 September 1978, Dr. Guy Abbate of Waynesville visited his office on Church Street. There he found the body of Willard Setzer, a private security guard, draped in an American flag and lying on the floor. Abbate's office had been ransacked, and a subsequent inventory revealed that several items, including a kitchen knife, surgical gloves, and syringes, were missing. Dr. Abbate notified law enforcement authorities and an investigation ensued.

On 29 January 1979, a Haywood County grand jury returned true bills of indictment against defendants Mitchell John Pakulski and Elliott Clifford Rowe, charging them with first-degree murder of Willard Setzer. Because of extradition litigation in Ohio and later in the federal court (see Pakulski v. Hickey, 731 F.2d 382 (6th Cir.1984); In re Rowe, 67 Ohio St.2d 115, 423 N.E.2d 167 (1981)), the defendants were not transported to North Carolina until 9 March 1984. On 5 April 1984, the Haywood County grand jury returned additional indictments charging defendants with robbery of Setzer with a dangerous weapon, larceny of Setzer's automobile, felonious breaking or entering of Dr. Guy Abbate's office, felonious larceny and possession of property belonging to Dr. Abbate, conspiracy to commit murder, and conspiracy to break or enter.

All charges were consolidated for trial. The case was first called to trial at the 24 April 1984 Special Session of Superior Court, Haywood County. After deliberating for approximately two hours on the evening of 24 May 1984 and for three hours on the morning of 25 May, the jury was unable to reach a verdict and a mistrial was declared. A second trial was held in July 1984, and once again a mistrial was declared because the jury was unable to reach a verdict.

The matter came on for trial a third time at the 29 October 1984 Criminal Session of Haywood County Superior Court. The State's case hinged on the eyewitness testimony of David Chambers, an accomplice of defendants who testified in return for a grant of immunity. The State also offered testimony of law enforcement personnel involved in the investigation of the murder. The State's evidence tended to show the following:

Along with Chambers, both defendants went to Dr. Abbate's office on the evening of 16 September 1978. Rowe broke a window in order to enter the office and then let Chambers and Pakulski in through the front door. Pakulski and Rowe ransacked the office and put valuable items in a plastic bag. The items taken included a syringe-like item.

About ten minutes after defendants entered Abbate's office, Willard Setzer arrived. Rowe hit Setzer on the side of the head with a paint bucket. Setzer fell to the floor and drew his pistol from its holster. Pakulski took the pistol, and Rowe tripped Setzer from behind as he was getting up. Pakulski then fired a single shot into Setzer's head behind his right ear lobe. Pakulski and Rowe then picked Setzer's pockets, removing his money, gun, and wallet.

The regional pathologist, Dr. Robert S. Boatwright, testified that he first examined Setzer's body on the afternoon of Sunday, 17 September 1978. Based on his locating and removing a .22-caliber bullet from Setzer's brain, Boatwright opined that Setzer died of a gunshot wound.

Dan Crawford, the State Bureau of Investigation resident agent for Haywood County, testified that he assisted in the investigation. He observed Mr. Setzer's body on the floor in Dr. Abbate's office and observed that Setzer's Smith and Wesson .22-caliber magnum handgun was missing.

At the time of the murder, law enforcement officials were unable to locate Setzer's 1975 blue Chevrolet Nova. After entering registration information on the national computer network, they located the vehicle in Dayton, Ohio. A catheter syringe-type device and Setzer's notebook were found inside the car. Law enforcement officials were unable to lift latent fingerprints from the car.

Defendants presented alibi evidence indicating that they were in Toledo, Ohio, on the weekend of the murder. They also presented numerous witnesses who contradicted Chambers' testimony.

At the close of the State's evidence, the trial court dismissed the charge of conspiracy to commit murder. At the close of all the evidence, the trial court ruled that the evidence was insufficient to submit the charge of first-degree murder on a theory of premeditation and deliberation. Thus, with respect to the murder charge, the jury was instructed on felony murder based on felonious breaking or entering and armed robbery.

The jury returned verdicts finding each of the defendants guilty of first-degree felony murder, felonious larceny of a motor vehicle, felonious breaking or entering, armed robbery, and conspiracy to break and enter.

After a sentencing hearing, each defendant was sentenced to life imprisonment on the murder conviction. For the larceny of a motor vehicle, each defendant was sentenced to a prison term of ten years. For the conspiracy offense, each defendant was sentenced to a concurrent term of ten years. The trial court arrested judgment on the armed robbery and felonious breaking or entering verdicts, as these were submitted as predicate felonies to the felony murder.

I.

In their first argument, defendants contend that the mistrial concluding the first trial was not properly entered. Thus, they argue, the second and third trials violated their rights against double jeopardy as secured by the fifth and fourteenth amendments to the United States Constitution and Article I, § 19, of the North Carolina Constitution. Specifically, defendants complain that the trial court erred in failing to make findings of fact to support the declaration of mistrial.

The jury began its deliberation on the afternoon of 24 May 1984. On that evening, after dinner, the foreman reported to the court that there were some differences among the jurors. The court then requested that the jury break for the evening and return in the morning. Defendant Pakulski then moved for a mistrial, and the motion was denied.

On the following morning, the jury resumed deliberations at 9:20 a.m. At 9:51 a.m., they returned to the court and the foreman stated that they were unable to reach a verdict. The court then instructed the jury in accordance with N.C.G.S. § 15A-1235 on its duty to deliberate. Defendants then moved for a mistrial, and the motion was denied.

The jurors took a lunch break between 12:20 p.m. and 1:25 p.m. When they returned, the following exchange took place between Judge Burroughs and the foreman:

COURT: Mr. Cox, do you feel like you're making any progress?

MR. COX: No, sir.

COURT: Do you think you're hopelessly deadlocked?

MR. COX: Yes, sir, I do.

COURT: All right, I'll withdraw juror No. 12 and declare a mistrial. Juror No. 12 is withdrawn.

The record contains no contemporaneous findings of fact to support the mistrial declaration. Nor does the record contain any defense counsel objection to the failure to make findings of fact in support of the mistrial declaration.

On 6 July 1984, prior to the second trial, defendant Pakulski moved to dismiss on the basis of double jeopardy and the failure of the trial court to making findings of fact with respect to the mistrial declaration, as required by N.C.G.S. § 15A-1064. The motion was denied and a nunc pro tunc order of mistrial, containing proper findings, was entered.

It is well settled that the prohibition against double jeopardy does not prevent a defendant's retrial when his previous trial ended in a hung jury. State v. Odom, 316 N.C. 306, 341 S.E.2d 332 (1986); United States v. Perez, 22 U.S. (9 Wheat) 579, 6 L.Ed. 165 (1824). Also, this Court has held that the...