State v. Warren, 191A84
| Decision Date | 02 April 1985 |
| Docket Number | No. 191A84,191A84 |
| Citation | 328 S.E.2d 256,313 N.C. 254 |
| Court | North Carolina Supreme Court |
| Parties | STATE of North Carolina v. Alton Earl WARREN. |
Rufus L. Edmisten, Atty. Gen. by Marilyn R. Rich, Asst. Atty. Gen., Raleigh, for the State.
Edward G. Bailey and Glenn O'Keith Fisher, Jacksonville, for defendant-appellant.
The defendant appeals from judgments and sentences of imprisonment entered against him after verdicts of guilty were returned by the jury on charges of first degree burglary and felonious larceny. On appeal he contends that the trial court erred in denying his motion to dismiss the charges because of the State's failure to join them for trial with a related murder charge and for a violation of the prohibition against double jeopardy. The defendant also contends the trial court erred by ordering that the imprisonment for the burglary conviction be consecutive to the sentence he was already serving. Having reviewed the assignments of error and contentions of the defendant, we affirm the holding of the Court of Appeals finding no error.
The first degree burglary and felonious larceny charges for which the defendant was convicted arose out of events occurring at the mobile home of Dorothy Kilpatrick Petersen on the evening of January 28, 1982. The defendant was indicted on March 1, 1982 for the first degree murder of Petersen and was tried at the July 12, 1982 Criminal Session of Superior Court, Duplin County. The defendant's motion to dismiss was allowed as to the charge of first degree murder and the case was submitted to the jury on second degree murder and lesser included offenses. The defendant was found guilty of voluntary manslaughter and was sentenced to the presumptive term of six years.
On January 17, 1983, the defendant was indicted for the first degree burglary of the mobile home and the larceny of Petersen's pocketbook and automobile. The defendant moved to dismiss the charges for failure to join offenses in violation of N.C.G.S. 15A-926(c)(2) and for a violation of the prohibition against double jeopardy.
Following a pretrial hearing in the present case, the trial court dismissed the charge of larceny of the automobile. No issue is before us concerning that charge. The trial court, however, found that at the time of the murder trial the prosecutor did not possess sufficient evidence to warrant trying the defendant for burglary or for larceny of the purse and denied the motion to dismiss as to those charges.
The evidence at trial in the present case tended to show that the defendant and Petersen had been dating for approximately two years. The defendant left his mother's home at approximately 7:00 p.m. on January 28, 1982 to purchase some cigarettes. He returned sometime after midnight. His stepfather testified that the defendant was intoxicated when he returned. As a result of a conversation with the defendant, the stepfather checked his bedroom closet and discovered that his .357 caliber pistol was missing. He then went outside and looked in a Ford Pinto parked in the driveway which he recognized as belonging to Petersen. He found the pistol lying on the floor of the car. The stepfather then notified the police.
At approximately 1:00 a.m. January 29, Lieutenant Melvin Vernon of the Topsail Beach Police Department arrived at the home of the defendant's mother. At that time the stepfather turned the gun over to him. The defendant was very emotional and seemed to be intoxicated. Vernon contacted the Duplin County Sheriff's Department, and Jimmy Smith, a deputy with the Duplin County Sheriff's Department, was dispatched to Petersen's home. He observed a Buick automobile stuck in a ditch across the road from the mobile home. The car was later identified as belonging to the defendant. Smith looked through a window of the mobile home and saw a body covered with a blanket lying on the living room floor. He entered through the unlocked front door and examined the body which was later identified as that of Dorothy Kilpatrick Petersen. She had been killed by a gunshot wound to the head. The rear door was standing open approximately one foot, and the screen had a hole in it near the handle. A glass slat was missing from the rear door.
Later that morning other law enforcement officers discovered the glass slat which was missing from the rear door about eight feet from the mobile home. They also found a bullet lodged in a curtain over the couch in the living room. Expert testimony indicated that the bullet was fired from the .357 pistol which had been turned over to the authorities by the defendant's stepfather.
Thomas Rackley, a neighbor of the deceased, testified that between 7:00 p.m. and 8:00 p.m. on January 28, the defendant came to his house, knocked on the door and called out his name. Rackley did not answer the door but later looked out a window and saw the defendant in Petersen's mobile home. Subsequently, he heard the sound of tires spinning. He went to investigate and discovered the defendant's car in a ditch.
Robert Sipper discovered a purse on July 27, 1982 three and a half blocks from the home of the defendant's mother. Petersen's name was on identification cards found in the purse. Chief Detective Alfred Basden of the Duplin County Sheriff's Department testified that prior to the murder trial he overheard the defendant tell members of his family that he had taken the purse and disposed of it somewhere near his mother's house.
The defendant testified that he had met Petersen in July, 1980 and that they began to date. He had been drinking on the night of January 28, 1982 and for several days prior to that date. He took his stepfather's pistol to protect himself on a trip that he was preparing to take. On the evening of January 28 he decided to visit Dorothy Petersen. When he entered the Petersen home, she noticed the gun in his coat. She told him to put it away, and he placed it on a table. After visiting with Petersen he picked up the gun and prepared to leave. As he was placing the gun in his coat, it discharged hitting Petersen. He ran to a neighbor's house to get help but was unable to find anyone. When he tried to drive his car for help, it became stuck in the ditch. He tried to reenter the mobile home but found the front door locked. He then removed a glass panel from the back door and went inside.
The next thing the defendant remembered was driving Petersen's car. He drove around contemplating suicide before returning to Topsail Beach. He then realized that he had taken Petersen's purse. He placed the purse on the shoulder of the road a few blocks from his mother's house. He then drove to his mother's and told his stepfather that there had been an accident and Petersen was dead.
Ralph Freeman, an investigator with the law firm which represented the defendant on the murder charge, testified that the defendant had told him that he had placed the purse in a vacant lot near his mother's house. Freeman unsuccessfully attempted to locate the purse.
At the close of all of the evidence, the defendant made a motion as for nonsuit which was denied. The jury returned a verdict of guilty of first degree burglary and felonious larceny. He was sentenced to a prison term of fourteen years for the burglary conviction which was to be consecutive to the six year sentence imposed for the manslaughter conviction in the previous trial. He was sentenced to three years for the felonious larceny, which was to run concurrently with the term imposed for the burglary conviction.
The defendant first contends that the trial court erred by failing to dismiss the first degree burglary and felonious larceny charges due to the State's failure to join them for trial with the prior murder charge. N.C.G.S. 15A-926(c)(2) provides:
A defendant who has been tried for one offense may thereafter move to dismiss a charge of a joinable offense. The motion to dismiss must be made prior to the second trial, and must be granted unless
a. A motion for joinder of these offenses was previously denied, or
b. The court finds that the right of joinder has been waived, or
c. The court finds that because the prosecutor did not have sufficient evidence to warrant trying this offense at the time of the first trial, or because of some other reason, the ends of justice would be defeated if the motion were granted.
Joinable offenses are those which arise out of the same act or transaction or out of a series of acts or transactions connected together or constituting parts of a single scheme or plan. N.C.G.S. 15A-926(a). Clearly, the burglary and larceny charges could have been joined for trial with the murder charge if they had been pending at the time of that trial. The evidence at the pretrial hearing concerning the State's failure to do so, however, did not require that the trial court dismiss these charges.
Our analysis of the defendant's argument is guided by a review of State v. Furr, 292 N.C. 711, 235 S.E.2d 193, cert. denied, 434 U.S. 924, 98 S.Ct. 402, 54 L.Ed.2d 281 (1977). In that case the defendant was indicted and tried for first degree murder. The trial ended in a mistrial. Indictments were subsequently returned charging the defendant with twelve counts of solicitation to commit the same murder. The solicitation charges were joined with the murder charge on retrial, and the defendant was convicted on all counts. The defendant claimed that the trial court erred in failing to dismiss the solicitation charges because they were not joined with the murder prosecution at the first trial.
We held in Furr that N.C.G.S. 15A-926 did not apply because the defendant had not been indicted for the solicitation charges at the time of the first trial and they could not have been joined with the murder charge at that time. We also noted that there was no evidence to indicate that the prosecution had held the solicitation charges in reserve pending the outcome of the murder trial. The...
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