State v. Singletary

• Decision Date: 31 July 1996
• Docket Number: No. 555A95,555A95
• Citation: 344 N.C. 95,472 S.E.2d 895
• Parties: STATE of North Carolina, v. Larry SINGLETARY.
• Court: North Carolina Supreme Court

Page 895

472 S.E.2d 895

344 N.C. 95

STATE of North Carolina, v. Larry SINGLETARY.

No. 555A95.

Supreme Court of North Carolina.

July 31, 1996.

Michael F. Easley, Attorney General by Debra C. Graves, Assistant Attorney General, for the State.

Malcolm Ray Hunter, Jr., Appellate Defender by Charlesena Elliott Walker, Assistant Appellate Defender, Durham, for defendant-appellant.

PARKER, Justice.

Defendant was tried noncapitally and found guilty of first-degree murder based on premeditation and deliberation and the felony murder rule. Defendant was also found guilty of first-degree burglary. The trial judge consolidated the two convictions for sentencing and sentenced defendant to life imprisonment.

The evidence at trial tended to show that on Saturday, 27 August 1994, defendant's wife, Garnett Jean Singletary, went out with her two sisters-in-law, Rachel and Schmora. The women met one of Garnett's co-workers, Samuel Learon Bailey IV, at a local nightclub. On the following Monday, 29 August, Garnett fought with her husband; he agreed to move out of the apartment they had been sharing in Greensboro, North Carolina. Defendant returned the apartment key to Garnett, took his clothing and VCR, and moved in with his mother in Winston-Salem.

On 31 August Garnett left her sons at her apartment with Rachel because one of the children had contracted chicken pox. When Garnett returned home Rachel and the children were not there. Garnett called Schmora to ask about the children's whereabouts. Schmora said she assumed that Rachel had taken the boys to the defendant's mother's house in Winston-Salem. Garnett did not expect her children to return that night. Schmora brought Garnett some money that afternoon, and Garnett told Schmora that she was going to have company that night.

At 10:30 p.m. on 31 August, Bailey visited Garnett at her apartment, and they had sexual intercourse. Sometime between 2:00 a.m. and 3:00 a.m. on 1 September, Garnett heard the doorbell ring. Garnett asked who was there, and one of her sons answered. Garnett asked her son who he was with, and he answered, "My Aunt Rachel." Garnett then asked her son whose finger was covering the peephole, and he answered that his father's was. Garnett told defendant to leave the children in the hallway. Defendant told Garnett that if she did not open the door, he would shoot it open. Defendant also stated, "Open the door because I know you got that n_____ in there."

Defendant used a screwdriver to dismantle the doorknob. Garnett stood behind the door as defendant stepped inside, reached behind his back, and pulled out a gun. Garnett ran past defendant, out the door, and down the apartment steps to get help. Bailey also ran out the door, falling on the steps before getting up to run again. A neighbor testified that she saw two black men running across the parking lot; she heard one man yell, "You want to f___ with me, motherf_____, take this." The man raised his arm and shot the other man in the back; he then "turned and walked away, as if he had done what he wanted to do." Bailey died as the result of a gunshot wound to the back.

Defendant turned himself over to the police and gave a statement. Defendant told the police that he had taken his children to their mother's house and that he arrived at the apartment about 1:00 a.m.; parked the car; and got his gun out of the trunk because "if somebody was in the apartment, [he] wasn't going to get hurt." Defendant stated that the lights were off in the apartment and that he rang the doorbell for fifteen to twenty minutes. Defendant stated he then went back to his car to get a screwdriver. At this point defendant noticed that the bedroom light was on in the apartment. Defendant went back up the apartment steps; his wife was now at the door, but the door was still closed. Defendant's wife would not let him in the apartment, so defendant "fumble[d] with the lock." Defendant stated that he thought his wife eventually unlocked the door. When defendant got inside the apartment, he saw a black man in the hallway. Defendant stated that he was upset because he assumed the man had "been in [his] bed." Defendant stated that the man pushed him and ran, so defendant pulled his gun and fired. Defendant stated that he was halfway or all the way down the apartment steps the first time he fired. Defendant thought he fired again as the man was running. The man then "ran into the dark," and defendant "never saw him fall." Defendant went to his car and headed back to Winston-Salem, where he turned himself in.

In defendant's first assignment of error, he contends the trial court committed reversible error in denying his motion to dismiss the burglary charge against him because "the uncontradicted evidence showed that the dwelling which defendant entered was his own residence." Defendant argues the State thus failed to prove a necessary element of the offense.

The elements of first-degree burglary are: (i) the breaking (ii) and entering (iii) in the nighttime (iv) into the dwelling house or sleeping apartment (v) of another (vi) which is actually occupied at the time of the offense (vii) with the intent to commit a felony therein. N.C.G.S. § 14-51 (1993); State v. Gibbs, 335 N.C. 1, 436 S.E.2d 321 (1993), cert. denied, --- U.S. ----, 114 S.Ct. 2767, 129 L.Ed.2d 881 (1994); State v. Harold, 312 N.C. 787, 325 S.E.2d 219 (1985). Defendant contends that the State failed to establish that he wrongfully entered the dwelling house "of another." As a basis for this contention, defendant maintains that he, his wife, and their children lived in the apartment as a family until approximately two days before the murder. Although defendant and Garnett argued and defendant left the residence, defendant maintains that his departure was merely for a "cooling off" period. Defendant points out that the parties had separated several times in the past and that neither party had taken steps toward obtaining a divorce. Defendant contends that he did not relinquish any rights or property interests stemming from his marital status and that he still had the right to enter the family residence.

The law of burglary was designed "to protect the habitation of men, where they repose and sleep, from meditated harm." State v. Surles, 230 N.C. 272, 275, 52 S.E.2d 880, 882 (1949). In State v. Cox, 73 N.C.App. 432, 326 S.E.2d 100, disc. rev. denied, 313 N.C. 605, 330 S.E.2d 612 (1985), the Court of Appeals held that the marital relationship, in and of itself, does not constitute a complete defense to the offense of burglary in the first degree. We agree. The Florida Supreme Court in Cladd v. State, 398 So.2d 442 (Fla.1981), held that "where premises are in the sole possession of the wife, the husband can be guilty of burglary if he makes a nonconsensual entry into her premises with intent to commit an offense." Id. at 444. We adopt this position. Therefore, the controlling question in burglary cases is one of possession or occupation rather than ownership or property interests.

In the instant case the evidence shows that at the time of the breaking and entering, the apartment was in the sole possession of Garnett. In April 1994 Garnett left Winston-Salem, where she had previously lived with defendant, and obtained the Greensboro apartment on her own. Garnett was the sole lessee of the apartment, and she owned all the furnishings in the home except for the television and VCR. Defendant moved in with Garnett in the Greensboro apartment approximately one month later. However, on 29 August defendant moved out of the apartment, took all or most of his belongings, and returned Garnett's key to her. As of 29 August Garnett had exclusive possession of the dwelling. Under these facts we reject defendant's argument. The trial court did not err in submitting the first-degree burglary charge to the jury. This assignment of error is overruled.

In two related arguments defendant challenges the trial court's instructions to the jury. First, defendant argues that the trial court erred by failing to specifically instruct the jury that he could not be guilty of burglary if the dwelling involved was his own home. This contention has no merit. The trial court's instructions substantially conformed with the pattern jury instruction on burglary, N.C.P.I.--Crim. 214.10 (1989), which was approved by this Court in State v. Harold, 312 N.C. 787, 325 S.E.2d 219. In addition, defendant failed to request a special instruction, and as discussed above, the evidence does not support defendant's contention that Garnett's apartment was his home at the time of the breaking and entering. This assignment of error is overruled.

Second, defendant contends the trial court erred by instructing the jury that it could consider that the murder was committed during the perpetration of the felony of burglary. Specifically, defendant argues that since he did not enter a dwelling house "of another," there was no burglary; thus, the offense of burglary could not provide the underlying felony for felony murder. For the reasons previously stated, this assignment of error is overruled.

In his next assignment of error, defendant contends the trial court erred in refusing to submit misdemeanor breaking or entering as a lesser-included offense of first-degree burglary. As stated above, first-degree burglary is the breaking and entering of an occupied dwelling of another in the nighttime with the intent to commit a felony therein. N.C.G.S. § 14-51; State v. Gibbs, 335 N.C. 1, 436 S.E.2d 321; State v. Harold, 312 N.C. 787, 325 S.E.2d 219. Misdemeanor breaking or entering does not require intent to commit a felony within the dwelling. N.C.G.S. § 14-54(b) (1993) (effective until 1 January 1995; effective date of change subsequently amended to 1 October 1994); State v. Peacock, 313 N.C. 554, 330 S.E.2d 190 (1985). Defendant argues that there was substantial evidence that he did not possess a felonious intent when ...