State v. Barber

• Decision Date: 05 November 1993
• Docket Number: No. 24A93,24A93
• Citation: 436 S.E.2d 106,335 N.C. 120
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. April Leigh BARBER.

Page 106

436 S.E.2d 106

335 N.C. 120

STATE of North Carolina v. April Leigh BARBER.

No. 24A93.

Supreme Court of North Carolina.

Nov. 5, 1993.

Michael F. Easley, Atty. Gen. by Robert J. Blum, Sp. Deputy Atty. Gen., Raleigh, for the State.

Malcolm Ray Hunter, Jr., Appellate Defender by Janine M. Crawley, Asst. Appellate Defender, Raleigh, for defendant-appellant.

FRYE, Justice.

Following Judge Julius A. Rousseau, Jr.'s denial of her motion to suppress all statements made by her, defendant entered a conditional plea of guilty to two counts of murder in the first degree, preserving her right to appeal the denial of her suppression motion pursuant to N.C.G.S. § 15A-979. Judge James A. Beaty, Jr., accepted the plea and sentenced defendant to two consecutive terms of life imprisonment. The remaining charges against her, one count each of first-degree arson and conspiracy to commit murder, were dismissed by the State.

Defendant appealed to this Court, contending that Judge Rousseau (the hearing judge) erred by denying her motion to suppress a statement made by her to a special agent of the State Bureau of Investigation. She contends that she invoked her right to counsel after being advised of her Miranda rights by asking the officer whether she needed a lawyer. We conclude that defendant did not invoke her right to counsel and the hearing judge did not err in denying her motion to suppress.

A fire on the night of 4 September 1991 in a home located on Fireplanes Road in Wilkes County resulted in the deaths of Lillie and Aaron Barber. The house was a one-story wood frame brick veneer residence with a full basement. Defendant, who was fifteen years old at the time, was the adopted daughter of the Barbers although she referred to them as her grandparents. Lillie Barber was seventy-seven years old and Aaron was eighty-three. Aaron Barber died of smoke inhalation on the night of the fire and Lillie Barber died one week after the fire as a result of fire-related injuries.

Special Agent T.A. Rasmussen, an arson investigator with the S.B.I., conducted an investigation of the home shortly after the fire. He found burn patterns throughout the house, indicating that a flammable or combustible liquid had been poured on various places within the house. Special Agent Rasmussen testified that certain burned areas revealed the odor of gasoline. Samples were also taken from various points in the house which were examined and showed the presence of gasoline.

Officer Robert Benfield, from the Wilkes County Sheriff's Department, testified that at 11:50 p.m. on 4 September 1991 he was called to investigate the fire. Benfield located defendant at the home of Emily Taylor, Aaron Barber's sister, where defendant had gone after being released from Wilkes Regional Medical Center following the fire. Defendant's natural mother, Sheila Barber, was also present. Defendant gave investigators two statements, the first to Officer Benfield while at the home of Emily Taylor.

In the statement to Officer Benfield, defendant said that on the evening of the fire she was at home watching television and her grandparents were in the bathroom where her grandmother was assisting her grandfather in taking a bath. Defendant saw a spark or flicker near the television and ran out the door to the carport, carrying the cordless telephone with her. Defendant explained that she always carried the telephone with her. Defendant stated that she did not tell her grandparents that the house was on fire. In the carport defendant tried to use the telephone to call 911, but the fire had damaged the phone lines and she was unable to get through. A short time later a truck pulled into a neighbor's driveway. The occupants of the truck, a man and a woman, approached defendant and asked if there was anyone else in the house. Defendant told them that her grandparents were inside. The man directed defendant to go to a neighbor's home and call for help, which she did. When defendant returned to her home, she saw a crowd of people gathered around her grandmother, Lillie, who had escaped from the house. Defendant approached her grandmother and informed Lillie that she (defendant) was all right. Lillie responded that she did not think that defendant's grandfather Aaron had made it. Defendant returned to the neighbor's house, called her boyfriend and told him about the fire. He told her that he would come over immediately. Defendant could not recall anything else that happened. Benfield testified that defendant's boyfriend was named Clinton Johnson and that he was thirty years old.

Defendant's second statement was given to Special Agent Steve Cabe of the S.B.I. at the Wilkes County Sheriff's Department. In this statement, defendant confessed that she had kicked over a jug of gasoline in the house and the snap-on lid had come off spilling some of the gasoline. Her boyfriend had brought the gasoline to the house on or about 1 September, which was about four days before the fire. After the gasoline had spilled, defendant carried the jug to the hallway and poured gasoline out onto the floor. She lit the gasoline on the carpet by first lighting a newspaper with a cigarette lighter which she then dropped on the carpet. Defendant's grandparents were in the bathroom where Lillie was assisting Aaron in taking a bath at the time. Defendant did not know why she lit the gasoline. She stated that she and her grandparents had argued on the night of the fire but the argument had not been serious. She stated that she wanted her grandparents to be less strict and to give her more space. Defendant stated repeatedly that she did not expect the fire to kill her grandparents, she did not intend for either of them to die, nor did she want them dead; in fact she thought that dealing with the fire might bring her family closer together. Defendant stated that she was sorry that her grandfather had died, but that he was "better off" dead and she thought that her grandmother would be better off if she died also, because she would be lonely without Aaron. Defendant and her boyfriend had talked about the fact that her grandparents would be better off dead, and on several occasions talked about how to get rid of them. They had never decided how to do it, although they had talked about burning the house down. They also talked about shooting them or poisoning them.

Juvenile petitions charging defendant with one count of arson, two counts of first-degree murder, two counts of felonious assault, and two counts of conspiracy were filed in Wilkes County District Court, Juvenile Division, on 5, 9, and 12 September 1991. On 1 October 1991, District Court Judge Edgar B. Gregory allowed the State's motion to transfer the cases to Superior Court. On 11 November 1991, defendant was indicted in Superior Court on two counts of first-degree murder, one count of first-degree arson, and one count of conspiracy to commit murder. A motion by defendant to suppress any and all statements made by her was heard at the 1 June 1992 Criminal Session of Superior Court, Wilkes County, before Judge Julius A. Rousseau, Jr. Defendant's motion was denied by oral order on 5 June 1992 and a written order denying the motion was entered on 12 June 1992.

At the 3 August 1992 Criminal Session of Superior Court, Wilkes County, Judge James A. Beaty, Jr., presiding, defendant pled guilty to two counts of first-degree murder, reserving her right to appeal the denial of her suppression motion. N.C.G.S. § 15A-979(b) (1988). Defendant was sentenced to two consecutive terms of life imprisonment, N.C.G.S. § 14-17 (1992), and the remaining charges against her were dismissed.

On appeal to this Court, defendant makes one argument: Judge Rousseau erred by denying her motion to suppress her statement made to S.B.I. Agent Cabe at the Wilkes County Sheriff's Department. More specifically, defendant contends that law enforcement officers continued to interrogate her after she had invoked her right to counsel, in violation of her constitutional rights under the Fifth and Fourteenth Amendments of the United States Constitution and Article I, Sections 19 and 23 of the North Carolina Constitution. Therefore, the confession made by her in response to the interrogation must be deemed involuntary and inadmissible. She further contends that her confession was involuntary in that it was induced by threats and promises in violation of her state and federal due process rights.

Defendant's plea of guilty was conditioned on the admissibility of her confession. Thus, if defendant is correct in her contentions, her plea of guilty must be stricken and the case remanded to superior court for further proceedings. If, on the other hand, her contentions are without merit, her guilty plea, and the sentences entered thereon, must stand. We proceed therefore to a consideration of defendant's contentions supporting her argument that the hearing judge erred by denying her motion to suppress her statement made to Special Agent Cabe.

Prior to ruling on the motion to suppress, Judge Rousseau held an extensive voir dire hearing. Following the hearing, Judge Rousseau found facts as follows:

That on September the 4th, 1991, at about 11:50 p.m., Detective Benfield of the Wilkes County Sheriff's Department was assigned to investigate a fire in which two people were killed as a result of the fire. Officer Benfield was informed that the defendant was the granddaughter of the two deceased persons, lived in the home with her grandparents and was probably in the house when the fire started; that he first went to Wilkes Regional Hospital and was told that the defendant had already left. Officer Benfield then located the defendant at a residence about two and a half miles from the county courthouse at about 3:30 a.m. on Thursday, September 5, 1991; At that time, Officer Benfield was in street clothes and driving an unmarked car and was accompanied by Deputy Terry Wright, who was in...