State v. Bonner, s. 83A91

• Decision Date: 10 January 1992
• Docket Number: 85A91,Nos. 83A91,s. 83A91
• Citation: 411 S.E.2d 598,330 N.C. 536
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Calvin Antonio BONNER and Ronald Wayne Witherspoon.

Page 598

411 S.E.2d 598

330 N.C. 536

STATE of North Carolina v. Calvin Antonio BONNER and Ronald Wayne Witherspoon.

Nos. 83A91, 85A91.

Supreme Court of North Carolina.

Jan. 10, 1992.

Lacy H. Thornburg, Atty. Gen. by David F. Hoke, Asst. Atty. Gen., Raleigh, for the State.

Danny R. Ferguson, Winston-Salem, for defendant-appellant Bonner.

Richard D. Ramsey and Thomas G. Taylor, Winston-Salem, for defendant-appellant Witherspoon.

WHICHARD, Justice.

On 29 May 1990, defendants undertook, along with Gregory Gainey and El'Ricko Stewart, to rob the Steamboat Restaurant in Winston-Salem, North Carolina. In an attempt to thwart the robbery, Dallas Pruitt, an off-duty police officer acting as a security guard for the restaurant, shot and killed Gainey and Stewart. Following indictment, defendants pled guilty to, among other charges, two counts of first-degree murder for the deaths of their coconspirators.

The issue is not whether these defendants may escape altogether criminal liability for their participation in the events of 29 May 1990; instead, the narrow issue is whether the common law theory of felony murder, as preserved in N.C.G.S. § 14-17 will be extended to cover situations such as this, so that cofelons may be charged with first-degree murder as a result of the deaths of their accomplices at the hands of an adversary to the crimes. Based on longstanding precedent from this Court, and in accordance with the overwhelming majority of jurisdictions that have addressed this issue, we hold that there is no felony murder liability on the facts of this case.

Defendants were indicted on two counts of first-degree murder for the deaths of two cofelons arising out of the armed robbery of the Steamboat Restaurant in Winston-Salem. Each defendant filed a motion to dismiss the murder charges, alleging that the felony murder rule is inapplicable to the facts underlying the deaths. Following denial of these motions, defendants each pled guilty to two counts of first-degree murder and the underlying felony of armed robbery, one count of conspiracy to commit armed robbery, one count of assault with a deadly weapon with intent to kill inflicting serious injury, and several additional counts of armed robbery unrelated to the felony murder charges.

As to both defendants, the trial court consolidated for judgment the two counts of first-degree murder, each defendant receiving a sentence of life imprisonment. The trial court arrested judgment on the underlying armed robbery charges, but sentenced each defendant to a forty-year term of imprisonment, to commence at the end of the life sentence for murder, for the remaining counts of armed robbery and conspiracy to commit armed robbery. In addition, the trial court ordered twenty-year sentences for each defendant, to commence at the end of the forty-year sentences, for the assault charges.

On 10 December 1990, each defendant filed a motion to withdraw his pleas of guilty to the two counts of first-degree murder. The trial court denied these motions, and each defendant appealed.

The facts underlying the pleas of guilty to first-degree felony murder are not in dispute. Around 9:00 p.m. on the evening of 29 May 1990, El'Ricko Stewart and Gregory Gainey, armed and dressed in black "Ninja" outfits, came in the front entrance on the east side of the Steamboat Restaurant. Sergeant Dallas Pruitt, an off-duty officer with the Winston-Salem Police Department who was working as the restaurant's security guard, was seated in the area near the main cash register. When Stewart entered the restaurant he saw Sergeant Pruitt and shot him in the chest. The force of the gunshot knocked Pruitt to the ground. Pruitt then tried to draw his revolver and Stewart fired a second shot, striking Pruitt in the right arm. Though seriously injured, Pruitt was able to fire a deadly shot into Stewart, his assailant.

Gregory Gainey, dressed and armed similarly to Stewart, then approached Sergeant Pruitt. Pruitt fired one shot which struck Gainey, but Gainey continued his approach. Pruitt then fired a second shot, and Gainey fell to the floor near his feet.

While Sergeant Pruitt defended the main entrance of the restaurant, in the process fatally wounding his assailants, defendants went to the west or "take-out" entrance on the other side of the restaurant. Though Pruitt never saw defendants, they were armed and dressed in similar fashion to their cofelons, Gainey and Stewart. Defendants forced their way to the "take-out" register, took $334.38, and fled.

Each defendant gave the police a written statement admitting his participation in the planned armed robbery and confirming the planned participation of Stewart and Gainey. Autopsy reports revealed that Stewart and Gainey died as a result of the gunshots fired by Sergeant Pruitt.

Defendants assign as error the trial court's denial of their motions to withdraw their pleas on the grounds that there was no factual basis to support the convictions for first-degree felony murder. We hold that this assignment of error has merit.

The resolution of this issue is controlled by the principles enunciated in State v. Oxendine, 187 N.C. 658, 122 S.E. 568 (1924). In Oxendine, three men--Walter Oxendine, Clarence Oxendine, and Dock Wilkins--feloniously instigated a violent altercation with Proctor Locklear. The altercation escalated to gun play, and Robert Wilkins, an armed bystander, was killed as a result of a shot fired by Proctor Locklear. The trial court gave an instruction that permitted the jury to convict Walter Oxendine of manslaughter regardless of whether the fatal shot was fired by Oxendine or his accomplices, or by Proctor Locklear. In reversing the conviction of manslaughter, this Court said:

It is unquestionably the law that where two or more persons conspire or confederate together or among themselves to commit a felony, each is criminally responsible for every crime committed by his coconspirators in furtherance of the original conspiracy, and which naturally or reasonably might have been anticipated as a result therefrom. And in the instant case, if the deceased had been killed by a shot from Walter Oxendine's pistol, each and every one of his confederates would have been equally responsible with him for the homicide. But Walter Oxendine and Proctor Locklear were not acting in concert; they were adversaries; and it is the general rule of law that a person may not be held criminally responsible for a killing unless the homicide were either actually or constructively committed by him; and in order to be his act, it must be committed by his own hand, or by some one acting in concert with him, or in furtherance of a common design or purpose.

Id. at 661, 122 S.E. at 570. Thus, the Court stated the general principle of accomplice liability and noted that had defendant Walter Oxendine, his accomplice, or his agent fired the fatal shot, there would be no question that all the participants would be responsible for the homicide. However, the general rule did not apply on the facts of Oxendine because Proctor Locklear, Oxendine's adversary, fired the deadly round. Therefore, the Court noted that a different general rule applied, i.e., that criminal responsibility for a homicide is dependent on proof that the defendant or his agent did the killing. Because, as the Court said, "Walter Oxendine and Proctor Locklear were not acting in concert; they were adversaries," the instruction allowing defendant Walter Oxendine's conviction was fatally flawed and he was entitled to a new trial. Id.

As an example of the general rule applicable under the facts of Oxendine, the Court quoted the following from Butler et al. v. The People, 125 Ill. 641, 645, 18 N.E. 338, 339 (1888): " 'Where the criminal liability arises from the act of another, it must appear that the act was done in furtherance of the common design or in prosecution of the common purpose for which the parties were assembled or conspired together.' " Id. In Butler, the court reversed a conviction for manslaughter where the defendant, along with several others, resisted arrest for disturbing the peace and in the process the village marshal drew his revolver and accidentally shot a bystander. The court in Butler also said:

It would be a strange rule of law, indeed, to hold a man liable for a crime which he did not commit, which he did not advise, and which was committed without his knowledge or assent, express or implied; and yet, if the conviction in this case is to be sustained, it can only be done by the sanction of such a doctrine.

Butler et al. v. The People, 125 Ill. at 646, 18 N.E. at 340.

In further illustrating its rationale for reversing Walter Oxendine's manslaughter conviction, the Court in Oxendine described the following hypothetical:

Suppose, instead of killing an innocent bystander, Proctor Locklear had killed Dock Wilkins, one of his assailants, would the law, under these circumstances, hold the surviving assailants or confederates ... criminally responsible for the homicide? We think not. Each took his own chance of being injured or killed by Proctor Locklear when the three made a common assault upon him. They would be responsible for what they did themselves, and such consequences as might naturally flow from their acts and conduct; but they never advised, encouraged or assented to the acts of Proctor Locklear, nor did they combine with him to do any unlawful act, nor did they, in any manner, assent to anything he did and hence they could not be responsible for his conduct towards the deceased.

State v. Oxendine, 187 N.C. at 662, 122 S.E. at 570. The Court's hypothetical is directly on point with the facts in the case at bar. As in the Oxendine hypothetical, the defendants here were aggressors who created a dangerous situation leading to a deadly response by Sergeant Pruitt. Though the hypothetical in Oxendine is technically dicta and does not bind the Court in this case,...