State v. Belton, 693A84

CourtUnited States State Supreme Court of North Carolina
Citation347 S.E.2d 755,318 N.C. 141
Decision Date29 August 1986
Docket NumberNo. 693A84,693A84
PartiesSTATE of North Carolina v. Kenneth Earl BELTON and Eugene Weldon Sadler, Jr.

Lacy H. Thornburg, Atty. Gen. by David E. Broome, Jr., Asst. Atty. Gen., Raleigh, for state.

Adam Stein, Appellate Defender by Gordon Widenhouse, Asst. Appellate Defender, Raleigh, for defendant-appellant Belton.

James R. Parish, Fayetteville, for defendant-appellant Sadler.

EXUM, Justice.

This appeal raises questions involving (1) the propriety of joining defendants for trial; (2) the sufficiency of the evidence to show aiding and abetting; (3) the admissibility of evidence of and instructions on flight; (4) whether the state's peremptory challenges of certain black jurors unconstitutionally deprived defendants of a representative jury; (5) whether defendants' rights under the constitutional prohibition against double jeopardy were violated; (6) whether a jury instruction in the disjunctive violated defendants' rights to a unanimous verdict; and (7) whether there was sufficient evidence of kidnapping. We find a violation of defendants' rights under the constitutional prohibition against double jeopardy and remand for a new sentencing hearing. Otherwise we find no error in the trial.

I.

Each defendant was tried upon a multi-count bill of indictment 1 charging him with two counts of kidnapping, two counts of first degree rape, two counts of armed robbery, and one count of first degree sex offense.

The state's evidence adduced at trial tended to show: On the evening of 21 May 1983, Doris Nunnery and Rebecca White, both white females in their twenties, left Raeford, North Carolina, in Nunnery's 1979 brown Toyota Celica and went to the Dragon Club, a nightclub located on the military reservation at Fort Bragg, North Carolina. At the Dragon Club a black male armed with a pistol ordered both women into the Toyota. A second man armed with a sawed-off shotgun appeared. One of the men ordered White to get in the back seat behind the driver's seat, and she complied. The assailant with the pistol, later identified as Belton, told Nunnery to get in the front passenger's seat, and he himself got in the driver's seat. As they left the Dragon Club's parking lot, the driver handed his pistol to his accomplice in the rear seat, later identified as Sadler, who held both guns on White the entire time the four were in the car. While en route, the women asked their assailants what they wanted. When one man replied that they wanted money, the women told them to take the car, their money, or anything else, and pleaded with the men to release them.

After traveling through rural areas several miles from Fort Bragg for twenty to thirty minutes, the four stopped on a deserted dirt road in the vicinity of Eureka Springs. Belton ordered the women to remove their clothing. Sadler in the rear seat then returned the driver's pistol to him. The women again asked to be released unharmed, and the men replied they would be released, but not before they had sexual relations with the men.

Belton told Sadler to get out of the car and told White to follow him. Sadler took White into a wooded area approximately twenty feet from the car. While aiming his shotgun at her, he made her lie down on the ground where he engaged, without her consent, in sexual intercourse. Still holding his shotgun on White, he made her perform fellatio on him, and then engaged in sexual intercourse a second time. During White's ordeal, Belton confined Nunnery in the automobile. While holding his pistol on her, he engaged in sexual intercourse with her against her will.

The two men left in Nunnery's car, which contained some of the women's clothing and their pocketbooks containing wallets, cash, credit cards, photographs, identification, and makeup. A baby carriage was stored in the trunk.

White succeeded in flagging down a motorist, who took the two women to a nearby phone booth where they telephoned for and ultimately received help.

On 1 June 1983, Detective Alfred F. Payne of the Spring Lake Police Department went to a duplex located at 410 Lake Avenue near where a brown Toyota Celica automobile bearing a Virginia license plate was parked. Detective Payne noticed clothes in a dry cleaner's bag hanging on a hook inside the car with a ticket bearing the name "E. Sadler." He went to the rear of the duplex where he radioed for assistance and saw defendants Belton and Sadler, whom he knew, crossing a trailer park on the other side of a chain link fence from where he was standing. When defendants saw Payne they ran in the other direction. After a brief chase, other Spring Lake Police officers apprehended defendants. The Toyota automobile belonged to Nunnery. It contained a sawed-off shotgun, a shotgun shell, and clothing belonging to Sadler. The Virginia license plate affixed to it was stolen. The car's odometer showed approximately 5,000 miles more than when Nunnery had last driven it.

Later that day, Nunnery viewed a live lineup in which she identified defendant Belton as her assailant. The next morning, White independently identified defendant Sadler in another lineup as her assailant. Neither victim was able to identify the other victim's assailant in the lineups.

Defendant Belton presented no evidence.

Defendant Sadler testified that he was playing cards with friends in Spring Lake on the evening of 21 May 1983 until 11:30 p.m. or midnight, when he and Belton left. Other witnesses corroborated this testimony. Sadler said he and Belton hitchhiked to the trailer park where they were to meet a man named Jackson and borrow a car from him so Belton could drive his girlfriend to Miami. They borrowed a brown Toyota Celica with a Virginia license plate, paying Jackson $100 to use the car. Belton and Sadler then picked up Belton's girlfriend at about 4 a.m. in Spring Lake and drove to Miami, where they stayed for three days. Upon their return to North Carolina, they paid Jackson another $50, kept the car and remained in Cumberland County until their arrest. Sadler denied stealing the car or knowing that the car was stolen, and denied ever possessing or owning the sawed-off shotgun. Other defense witnesses testified that defendants did not attempt to conceal the Toyota.

The state presented testimony in rebuttal that Alvin Renna Jackson, the person Sadler indicated loaned defendants the Toyota automobile, was 5 feet 4 inches tall, considerably shorter than the victims' descriptions of either perpetrator. Jackson was unavailable to testify at trial.

The jury found each defendant guilty as charged. It found Sadler guilty of first degree kidnapping, first degree rape, and armed robbery of both victims White and Nunnery. It also found him guilty of a first degree sex offense against White. The jury found defendant Belton guilty of first degree kidnapping, first degree rape, and armed robbery of both victims White and Nunnery. It also found him guilty of a first degree sex offense against White. Theories of aiding and abetting were used to convict Belton in the rape and sex offense Sadler personally committed against White and to convict Sadler of the rape Belton personally committed against Nunnery.

Judge Johnson consolidated for judgment both of Belton's kidnapping convictions with his rape conviction against White and sentenced him to life imprisonment. He also consolidated for judgment Belton's rape conviction against Nunnery and his first degree sex offense conviction against White and sentenced him to a second life term, to begin at the expiration of the first. Finally he consolidated for judgment both of Belton's armed robbery convictions and sentenced him to twenty years' imprisonment to begin at the expiration of his second life sentence. Judge Johnson consolidated for judgment both of Sadler's kidnapping convictions with his rape conviction of White and sentenced him to life imprisonment. He then consolidated for judgment both of Sadler's armed robbery convictions with his conviction for the rape of Nunnery and the sex offense against White and sentenced him to a life term to begin at the expiration of the first life sentence.

We first consider assignments of error advanced only by defendant Belton. Next we consider those assignments advanced by both defendants, defendant Sadler not having made any arguments not also made by defendant Belton.

II.
A.

Defendant Belton first challenges the joinder of his and Sadler's trials. He moved before trial and made repeated motions during trial for severance, all of which were denied, and moved for mistrial because the severance motions were not granted. Belton argues these rulings deprived him of a fair trial. He claims the joint trial deprived him of the presumption of innocence and his right to rely on the weaknesses of the state's case and forced him "tacitly to accept the [defense] theory of defendant Sadler regardless of [Belton's] faith in either its veracity, merit, or potential for success." We conclude there was no error in joining these defendants for trial nor in denying Belton's motion for severance or mistrial.

The rules for permissible joinder of cases for trial are set out in N.C.G.S. § 15A-926. Subsection (b)(2) of this statute provides:

Upon written motion of the prosecutor, charges against two or more defendants may be joined for trial:

a. When each of the defendants is charged with accountability for each offense.

Here since each defendant is charged with accountability for each offense, the statutory prerequisites for joinder are present. 2 Defendant Belton does not contend to the contrary.

Belton's argument is, rather, that his motions for severance should have been granted pursuant to N.C.G.S. § 15A-927(c)(2) as "necessary to promote a fair determination of [his] guilt or innocence." Id.

Where two or more defendants are sought to be held accountable for the same crime or crimes, not only is joinder permissible...

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