State v. Barton

• Decision Date: 04 March 1994
• Docket Number: No. 173A93,173A93
• Citation: 335 N.C. 741,441 S.E.2d 306
• Parties: STATE of North Carolina v. Heath BARTON.
• Court: North Carolina Supreme Court

Page 306

441 S.E.2d 306

335 N.C. 741

STATE of North Carolina v. Heath BARTON.

No. 173A93.

Supreme Court of North Carolina.

March 4, 1994.

Appeal as of right pursuant to N.C.G.S. § 7A-27(a) from a judgment entered by Read, J., on 16 November 1992, in the Superior Court, Robeson County, sentencing the defendant to life imprisonment for first-degree murder. The defendant's motion to bypass the Court of Appeals as to an additional judgment for larceny of a firearm allowed by the Supreme Court on 19 May 1993. Heard in the Supreme Court on 7 December 1993.

Michael F. Easley, Atty. Gen. by Michael S. Fox, Associate Atty. Gen., Raleigh, for State.

Malcolm Ray Hunter, Jr., Appellate Defender, and Constance H. Everhart, Asst. Appellate Defender, Durham, for defendant-appellant.

MITCHELL, Justice.

On 20 May 1991, a Robeson County Grand Jury indicted the defendant, Heath Barton, for first-degree murder, robbery with a dangerous weapon, larceny of a firearm and felonious larceny of an automobile. The defendant, who was sixteen years of age at the time of these crimes, was tried noncapitally at the 9 November 1992 Criminal Session of Superior Court, Robeson County. At the conclusion of the State's evidence, the trial court dismissed the charge of larceny of an automobile. The jury returned verdicts finding the defendant guilty of first-degree murder under the theory of felony murder, robbery with a dangerous weapon and larceny of a firearm. The trial court sentenced the defendant to life imprisonment for the first-degree murder conviction and arrested judgment on the underlying conviction for robbery with a dangerous weapon. The trial court also sentenced the defendant to seven years imprisonment for the larceny of a firearm conviction, to be served consecutive to the life sentence. The defendant appealed to this Court as a matter of right from the judgment sentencing him to life imprisonment for first-degree murder. See N.C.G.S. § 7A-27(a) (1989). We allowed his motion to bypass the Court of Appeals on his appeal from the additional judgment for larceny of a firearm.

The evidence presented at the defendant's trial tended to show the following. Around 6:00 p.m. on 8 February 1991, the defendant's brother, Herbert Barton, Jr., shot Harold Craven in the back of the head with a shotgun. The defendant later explained that the killing was done "for the fun of it" and to procure money for drugs. It was Mr. Craven's custom in the evenings to drive to an area of Maxton, North Carolina, where several garbage dumpsters and a couch were located in order to smoke and "get out of [his wife's] hair." The defendant, Herbert and a third accomplice, Michael Emanuel, had seen Mr. Craven at the dumpsters two nights prior to the murder and had attempted to kill him then, but the shotgun Herbert was using failed to fire. On the morning of 8 February 1991, the defendant and Michael Emanuel went to the home of "a man named Orson" to procure another shotgun. Emanuel entered Orson's home through a window and emerged with a 20-gauge shotgun. They rejoined Herbert and returned to the dumpsters with the new shotgun later that evening, where they were waiting for Mr. Craven when he arrived. Herbert shot Mr. Craven as soon as the latter got out of his car. When Mr. Craven fell to the ground, Emanuel and the defendant moved forward and took his wallet. The defendant then picked up the victim's coat while Emanuel and Herbert dragged the victim's body into a wooded area behind the dumpsters. The three of them covered the body with leaves and brush and then left in the victim's car, with Herbert driving.

While in the car, Emanuel removed a .25-caliber pistol from the glove compartment and gave it to Herbert. Emanuel also took around $700 in cash from the stolen wallet. Herbert subsequently parked the car in a patch of woods three to four miles from the mobile home where he and the defendant lived with their parents. The defendant threw the car keys farther into the woods, while Herbert and Emanuel swept the ground near the car. The three of them walked to the mobile home and then went to buy beer, marijuana, cocaine and knives with the money stolen from the victim's wallet. After making their purchases, they tossed the murder weapon into a ditch behind the mobile home and hid their shoes underneath the mobile home.

Local sheriff's deputies arrested Herbert, Emanuel and the defendant two days later. After twice receiving the Miranda warnings and executing a written waiver of constitutional rights, the defendant confessed to the facts set out above. He also told the deputies that if he had to do it all over again, he would do the same thing again.

The defendant testified at trial, however, that he had told Herbert and Michael Emanuel that he "wasn't going to have nothing to do" with shooting Mr. Craven, but that Herbert and Emanuel had forced him to participate in the crimes. He further testified that he did not arrive at the murder scene until after Herbert had shot the victim, that he got into the victim's car only because Herbert slapped him and that he threw the car keys away on instructions from Herbert. He also testified that he had made his statement to law enforcement officers only after a detective had threatened him with "the electric chair." He further claimed that the officers had fabricated the entire confession. He subsequently admitted, however, that portions of the confession described by the officers were true.

Other pertinent facts will be introduced in the discussion of the assignment of error to which they are relevant.

By his first assignment of error, the defendant maintains that the trial court erred in denying his motions to dismiss or arrest judgment on the charge of larceny of a firearm. The defendant contends that larceny is a lesser included offense of robbery with a dangerous weapon. See State v. White, 322 N.C. 506, 514, 369 S.E.2d 813, 817 (1988). He further argues that since the robbery with a dangerous weapon and larceny of a firearm in the present case were part of a single continuous criminal transaction, the trial court violated his federal and state constitutional rights to be free of double jeopardy for the same offense by sentencing him for both larceny of a firearm and felony murder with the underlying felony being robbery with a dangerous weapon. We disagree.

In White, we explained that although larceny is a lesser included offense of robbery with a dangerous weapon, convictions of a defendant for both armed robbery and larceny may be upheld so long as the larceny and the armed robbery "involved two separate takings." Id. at 517, 369 S.E.2d at 818. Here, the defendant and his accomplices shot the victim, took his wallet from his body and fled the murder scene in the victim's automobile. They later removed a firearm belonging to the victim from the glove compartment of the automobile taken during the murder and armed robbery. Applying the analysis of White, we conclude that the separate convictions for robbery with a dangerous weapon and larceny of a firearm in the present case survive the defendant's challenge on double jeopardy grounds because the armed robbery and the larceny involved separate takings.

The defendant, however, directs our attention to State v. Adams, 331 N.C. 317, 416 S.E.2d 380 (1992), in which this Court held that it was improper to sentence the defendant for both larceny of a firearm and felonious larceny pursuant to a breaking or entering, where the defendant and his accomplices had stolen satellite equipment, coins and a firearm during the course of a single breaking and entering. Id. at 332-33, 416 S.E.2d at 388-89. We therefore vacated the defendant's sentence for felonious larceny pursuant to a breaking or entering. Id. at 333, 416 S.E.2d at 389.

Adams does not alter our conclusion. We held in Adams that the defendant "was improperly convicted and sentenced for both larceny of a firearm and felonious larceny of that same firearm pursuant to a breaking or entering." Id. (emphasis added). The two convictions at issue in Adams thus did not involve separate takings, but rather involved the same taking of the same firearm. Adams is easily distinguishable from the present case, where the armed robbery of the victim--resulting in the taking of his wallet and automobile--and the subsequent larceny of the victim's firearm from his automobile constituted separate takings for double jeopardy purposes. Accordingly, we conclude that this assignment of error is without merit.

The defendant argues by his second assignment of error that the trial court committed reversible error in its instructions on acting in concert. As the defendant recognizes, however, he did not object to the instructions given by the trial court or request additional instructions. Therefore, this assignment of error is barred by Rule 10(b)(2) of the North Carolina Rules of Appellate Procedure, and the defendant is not entitled to relief unless any error in this regard constituted plain error. State v. Odom, 307 N.C. 655, 659-60, 300 S.E.2d 375, 378 (1983). Accordingly, our review is limited to a review for plain error. To amount to error so serious as to be "plain error," an error in the trial court's instructions must be clearly "so fundamental that it denied the defendant a fair trial and quite probably tilted the scales against him." State v. Collins, 334 N.C. 54, 62, 431 S.E.2d 188, 193 (1993). In other words, the error must be one "so fundamental as to amount to a miscarriage of justice or which probably resulted in the jury reaching a different verdict than it otherwise would have reached." State v. Bagley, 321 N.C. 201, 213, 362 S.E.2d 244, 251 (1987), cert. denied, 485 U.S. 1036, 108 S.Ct. 1598, 99 L.Ed.2d 912 (1988). We find no such error here.

In the present case, the jury found the defendant guilty of first-degree murder solely on the felony murder theory. The jury also found the defendant...