State v. Buckner
| Decision Date | 08 December 1995 |
| Docket Number | No. 444A93,444A93 |
| Citation | 464 S.E.2d 414,342 N.C. 198 |
| Court | North Carolina Supreme Court |
| Parties | STATE of North Carolina v. George Cale BUCKNER. |
Richard A. Rosen and Winston B. Crisp, Chapel Hill, for defendant-appellant.
Indicted for the first-degree murder of Eddie Marvin Dow ("victim") in violation of N.C.G.S. § 14-17, defendant was tried capitally. The jury found defendant guilty of first-degree murder on the theories of premeditation and deliberation, felony murder, and lying in wait. The jury also found defendant guilty of robbery with a dangerous weapon, conspiracy to commit robbery with a dangerous weapon, felonious larceny, and possession of stolen goods. Following a sentencing proceeding pursuant to N.C.G.S. § 15A-2000, the jury recommended that defendant be sentenced to death for the murder conviction. The trial court sentenced defendant accordingly. The trial court also sentenced defendant to ten years' imprisonment for the conspiracy to commit robbery with a dangerous weapon, forty years' imprisonment for robbery with a dangerous weapon, and ten years' imprisonment for felonious larceny, each sentence to run consecutively. The trial court arrested judgment on the conviction for possession of stolen goods. We arrest judgment on the felonious larceny conviction and otherwise conclude that the jury selection, guilt-innocence phase, and sentencing at defendant's trial were free from prejudicial error; and the death sentence is not disproportionate.
The State's evidence tended to show that on the night of 19 February 1992, defendant met with Anthony Cathcart, Dennis Eason, and Jamie Bivens, at Cathcart's home. Earlier that day the men had discussed robbing the victim, a local bondsman for whom Bivens, Eason, and defendant had worked in the past. The victim was known to carry large sums of money in a briefcase. The State presented evidence that defendant had been talking about robbing the victim for some time and that it was his idea to rob the victim on this night.
When defendant and Bivens arrived at Cathcart's home around 8:00 p.m., Bivens went into the house and changed into camouflage clothing. Bivens also had ski masks for himself and defendant and socks which he wore on his hands. Defendant was wearing a long leather jacket and Isotoner gloves and was carrying his brother's SKS rifle; he did not change his clothes. All four men got into Bivens' Jeep and drove towards the victim's home. Eason and Cathcart dropped Bivens and defendant off at the top of the victim's driveway and then went to meet their dates for the evening.
After exiting the vehicle, defendant and Bivens walked towards the victim's home. They stopped and hid behind a utility building located near the victim's house and waited for the victim to get home. After the victim pulled into his carport and got out of his car, defendant shot the victim three times: once in the back, once in the shoulder, and once in the head. The head wound was fatal, but either of the other two wounds also could have been fatal.
Defendant and Bivens then grabbed the briefcase in which the victim carried his money, broke into the victim's car, and drove the vehicle from the scene of the crime. Defendant and Bivens abandoned the victim's car in a parking lot and fled on foot into the woods with the briefcase. As the two men ran, they discarded car keys, ski masks, the socks Bivens had on his hands, and the rifle. While in the woods, defendant and Bivens opened the briefcase, removed over $25,000, and discarded the briefcase. Defendant also hid the murder weapon in the woods.
Defendant and Bivens eventually made it out of the woods and walked to a Mini-Mart, where Bivens attempted to call Eason and Cathcart. Eason and Cathcart were not at home, so defendant called his friend Paul Bridges to come pick up him and Bivens. Bridges picked them up and then drove them to Gaston Memorial Hospital, where a car belonging to another of defendant's friends was parked with the keys in it. Defendant and Bivens borrowed the car to drive to defendant's home to get a change of clothes. On the way back to the parking lot, Bivens discarded his boots and some of the clothes he had been wearing. Eason and Cathcart then picked up defendant and Bivens in the hospital parking lot.
When Bivens and defendant got into the car, defendant told Eason and Cathcart that he shot the victim and that "his [victim's] brains were all over the carport." The four men then went to Bivens' and Eason's apartment and split up the money. While they were at the apartment, Eason's mother called to tell the men that the victim had been killed. The four men left the house to take Eason and Cathcart to Cathcart's house for the night. After defendant and Bivens dropped off the other two men, they went to the victim's office and met with his family. Bivens and defendant spent the night with the victim's family, traveling between the office, the scene of the crime, and the victim's brother's home. The two men also attended the victim's wake and funeral.
On 23 February 1992, based on information they received from Cathcart and two girls, the police asked defendant and Bivens to come to the police station. At the police station Bivens confessed to his involvement in the crime but claimed that it was defendant who actually killed the victim. Bivens also claimed that the robbery was defendant's idea and that he had only gone along with defendant's plan because defendant threatened to harm his wife and unborn child. On the same day he confessed, Bivens helped the authorities recover some of the physical evidence hidden in the woods.
While Bivens was confessing, defendant was left in a room alone where he fell asleep. The police officers eventually came back, woke him up, and confronted him with Bivens' claim that defendant killed the victim. Defendant responded by saying that he had not shot anybody and that he was willing to make a statement but that he wanted his attorney present before he would make any statement. The officers stopped questioning defendant but did not contact an attorney for him.
Defendant presented evidence that he was a police informant and that he had been asked by the Gastonia City Police and a multijurisdictional task force to obtain incriminating information on the victim. Defendant testified that it was Bivens' idea to rob the victim and that defendant had gone along with the idea in the hopes of gathering some evidence against the victim. Defendant admitted that he went with Bivens to the victim's home and that he was carrying his brother's SKS rifle. Defendant testified that once he and Bivens arrived at the utility building, he put the rifle down. Defendant testified that he did not think that Bivens was actually going to rob or kill the victim.
Defendant testified that the reason he fled the scene and participated in dividing the money and discarding the physical evidence was that he was in shock and fear after the murder. Defendant did not tell the victim's family what had happened because the victim's brother threatened to kill the person responsible for the victim's death, and defendant knew that the last person to work as an informant against the victim had been killed. Defendant also claimed that he told Eason and Cathcart that Bivens had shot the victim.
At sentencing the State presented evidence of defendant's prior conviction for common-law robbery and the testimony of Ronald Greene, the victim of the common-law robbery. Greene testified that defendant and another man had lured him away from a gay bar in Charlotte, taken him out into the country, held a gun on him, and robbed him. Greene claimed defendant was the man who held the gun on him during the robbery. Other evidence was presented indicating that at an earlier date, Greene had said that it was the second man, not defendant, who was holding a gun on Greene.
At sentencing defendant presented evidence that: (i) his father was an alcoholic; (ii) his younger brother, Robert, was killed in a fire that destroyed their family trailer when defendant was six years old; (iii) defendant completed high school and made average grades, even though his intelligence was somewhat below normal; (iv) he participated on both the wrestling and track teams in high school; (v) he was active in his church and in the local Boys Club and had passed every level of Boy Scouts, except Eagle; (vi) he finished Marine boot camp but was later dismissed without an honorable discharge because he left the Marines for a year without permission to be with his dying father; and (vii) he had been married and maintained a good relationship with his former wife's family.
Defendant's evidence also established that he acted as an informant while in Central Prison awaiting trial in this case and that he had testified at the trials of two men who were in prison. Defendant had also helped the police stop another inmate's plot to kill a witness who was intending to testify against the inmate.
The State's rebuttal evidence showed that while employed as a security guard at Eastgate Mall in 1989, defendant had been involved in numerous breaking or enterings and larcenies. The State's evidence further showed that defendant had convinced an assistant manager of a convenience store to get him the keys to the store so that he could rob it. Defendant also had been convicted of trafficking in narcotics. This conviction was the result of defendant stealing drugs from his employer when he was working at Eckerd Drugs. Defendant became a police informant so that he would not have to serve time in prison for the trafficking in narcotics conviction. All of these crimes occurred between 29 September 1989 and 16 January 1990. Defendant pled guilty to these crimes on 14 October 1991. His sentences were suspended, and he received five years' supervised probation and was required to make restitution payments each month.
The jury found the...
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