2. Constitutional Law--double jeopardy--first-degree burglary--first
-degree murder
under felony murder rule--no violation
Defendant's double jeopardy rights were not violated by his convictions of first-degree
murder under the felony murder rule and first-degree burglary based on defendant's claim of an
alleged inconsistency in the finding of specific intent to murder as one of the elements of burglary,
without a finding of premeditation and deliberation required for first-degree murder, because: (1)
defendant has not been prosecuted a second time for the same offense after acquittal since first-
degree murder based on either deliberation and premeditation or the felony murder rule is not the
same offense as first-degree burglary; (2) defendant has not been prosecuted a second time for an
offense after conviction; and (3) defendant has not been punished more than once for the same
offense since his sentence on the underlying felony of burglary was arrested.
Attorney General Michael F. Easley, by Assistant Attorney
General Marilyn R. Mudge, for the State.
Bruce T. Cunningham, Jr., for defendant.
McGEE, Judge.
Defendant was indicted on 10 February 1997 for first degree
murder and first degree burglary. The victim was defendant's
grandmother, who was "sickly and weak" and "didn't put up a fight"
according to defendant's girlfriend, Rebecca Ann DeLouise(DeLouise), who was present during the crimes. Defendant was
convicted of both offenses and was sentenced on 20 May 1998 to life
imprisonment without parole for first degree murder under the
felony murder rule and judgment was arrested for first degree
burglary.
DeLouise testified to the following at defendant's trial:
DeLouise met Gary Leonard Blyther (defendant) when they were in-
patients in the psychiatric ward at Moore Regional Hospital. Upon
leaving the hospital, they resided together in DeLouise's trailer.
DeLouise "was having problems with the landlord because of [her]
pets" on or about 1 May 1996, so they moved into the home of
defendant's grandmother, Hattie J. Blyther (Ms. Blyther) at 107
Blyther Street in Aberdeen, North Carolina. Defendant and DeLouise
obtained a key to Ms. Blyther's home on 1 May 1996.
DeLouise and defendant cashed their disability checks and paid
Ms. Blyther $300 "for living expenses" or "rent" on 3 July 1996;
they had purchased food for the household prior to that time. Of
the $300, DeLouise paid $200 and defendant paid $100. Also that
day, defendant and DeLouise purchased crack cocaine in Southern
Pines and used it in Southern Pines, Aberdeen and Cameron. They
spent the evening of 3 July in Aberdeen at the residence of Carol
Campbell (Campbell), a friend of DeLouise's.
At Campbell's home, defendant and DeLouise met Gary Strickland
(Strickland) for the first time. Defendant and DeLouise droveStrickland to cash a check and then drove him to Raeford.
Strickland purchased liquid cocaine, which was "shot up" by "all of
[them]" at Campbell's trailer. Later that night, defendant and
DeLouise "came home later than [Ms. Blyther] wanted [them] to, and
she didn't want [them] to stay there because of it." Ms. Blyther
did not let them in her house and she asked them not to stay there
anymore. Defendant and DeLouise were not able to enter the house
at that time, and they spent the night instead at Campbell's
trailer. The next day, 4 July 1996, DeLouise and defendant again
stayed at Campbell's trailer where "there was consumption of more
drugs." On the evening of 5 July 1996, Strickland, his son, defendant,
DeLouise and Campbell were together at Campbell's house. Defendant
and DeLouise had no money, but defendant procured more drugs and
owed Strickland and Campbell approximately $200 or $250 for the
drugs. Defendant and DeLouise planned to go to Ms. Blyther's house
"to take her money," and defendant planned "to kill her." They
left Campbell's house in DeLouise's car at around midnight.
DeLouise and defendant first drove to an abandoned house to smoke
crack as they had done on prior occasions. They decided to leave
the car at that location "because it was secluded, and the car
wouldn't be seen."
They walked to Ms. Blyther's house. The screen door was
locked, and defendant unlocked it with his finger through a hole in
the screen. He then opened the inside door with his key. Both
defendant and DeLouise entered the house, and DeLouise walked to
Ms. Blyther's bedroom door. DeLouise testified that defendant took
a pillow from a couch and walked into Ms. Blyther's room, where she
was sleeping on her back. DeLouise saw defendant put a pillow over
Ms. Blyther's face and heard Ms. Blyther mumble, "Lord Jesus."
Defendant held Ms. Blyther with his left hand and with his right
hand took money out from under her brassiere, where she normally
kept money. A few minutes later defendant walked or "run-walk[ed]"
out the back door. DeLouise left the house through the back door,
closing it behind her. Defendant presented evidence at trial but
did not testify himself. Defendant was convicted of first degree
murder and first degree burglary. Defendant appeals. Defendant first contends that the tr
ial court erred in denying
his motion to dismiss the burglary charge and denying his request
to submit to the jury the issue of whether the defendant had a
claim of right to enter Ms. Blyther's residence. He argues that a
person cannot be guilty of burglarizing his own house, and that
defendant was living in the home he broke into and entered the
morning of 6 July 1996. Defendant presented evidence that he had
been staying overnight with his girlfriend in one room of the house
for approximately two months before the murder, all of his
belongings were in the house, he and DeLouise had paid $300 for
household expenses or rent, and Ms. Blyther had given him a key to
the house.
Within his first argument, defendant also argues the trial
court erred in denying his written request for a jury instruction
on burglary. Defendant requested the following instruction:
Now with respect to the element of whether the
house at 107 Blyther Street was the dwelling
house of another, I instruct you that the
State has the burden of proving beyond a
reasonable doubt that the Defendant was not a
resident of 107 Blyther St. at the time of the
entry. If Mr. Blyther was entitled to have
access to 107 Blyther street at the time of
the alleged offense then he would be not
guilty of the offense of burglary. The
element of breaking and entering the dwelling
house of another means that the dwelling must
be exclusively the dwelling of Hattie Blyther
and not the dwelling of Hattie Blyther and the
defendant. In considering this element you
may take into account, among other things,
whether the Defendant's clothes and personal
belongings were located there.
The trial court declined to instruct the jury as requested by
defendant and instead used a pattern jury instruction. The trialcourt also omitted the word "tenant," denoted as an alternative
to
"owner," in the pattern instruction as the individual who may give
consent. N.C.P.I., Crim. 214.10. Defendant argues this omission
prejudiced him in that "a tenant has similar rights to an owner in
burglary cases." Moreover, defendant insists the trial court's
instruction referring to "her" consent "eliminat[ed] any
possibility the jury could conclude the defendant resided in the
house as a tenant."
First and second degree burglary are codified in N.C. Gen.
Stat. § 14-51 (1999):
There shall be two degrees in the crime
of burglary as defined at the common law. If
the crime be committed in a dwelling house . .
. and any person is in the actual occupation
of any part of said dwelling house . . . at
the time of the commission of such crime, it
shall be burglary in the first degree.
Ms. Blyther was "in the actual occupation" of the house when
she was murdered, and thus if defendant committed burglary, it was
burglary in the first degree. At common law,
[t]he elements of the crime of burglary
in the first degree are: (1) the breaking (2)
and entering (3) in the nighttime (4) into a
dwelling house or a room used as a sleeping
apartment (5) of another (6) which is actually
occupied at the time of the offense (7) with
the intent to commit a felony therein.
State v. Ledford, 315 N.C. 599, 606, 340 S.E.2d 309, 314 (1986)
(citation omitted); State v. Harold, 312 N.C. 787, 791, 325 S.E.2d
219, 222 (1985) (citations omitted); see State v. Accor and State
v. Moore, 277 N.C. 65, 72-73, 175 S.E.2d 583, 588 (1970), aff'd,281 N.C. 287, 188 S.E.2d 332 (1972).
Our Supreme Court has recognized a two-fold purpose for
establishing the element of ownership:
There are only two reasons for requiring
ownership of the house to be stated in the
indictment for burglary: (1) for the purpose
of showing on the record that the house
alleged to have been broken into was not the
dwelling house of the accused, inasmuch as one
cannot commit the offense of burglary by
breaking into one's own house, and (2) for the
purpose of so identifying the offense as to
protect the accused from a second prosecution
for the same offense.
State v. Beaver, 291 N.C. 137, 141, 229 S.E.2d 179, 181-82 (1976)
(citations omitted).
The Court in Beaver discussed the meaning of "owner" for
purposes of burglary.
[I]n a burglary indictment, "the occupant of
the building at the time of the burglary is
the owner," and it is unnecessary to allege
ownership of the title to the building. The
decisions of this Court require only that the
breaking and entering in the nighttime with
intent to commit a felony be into a dwelling
or a room used as a sleeping apartment which
is actually occupied at the time of the
offense.
Id. at 141, 229 S.E.2d at 182 (citations omitted). Thus, in
burglary cases, occupation or possession of a dwelling or sleeping
apartment is tantamount to ownership. Id.; Harold, 312 N.C. at
791-92, 325 S.E.2d at 222 (citation omitted) ("[I]n burglary cases
occupation or possession of a dwelling is equivalent to ownership,
and actual ownership of the premises need not be proved."); State
v. Singletary, 344 N.C. 95, 102, 472 S.E.2d 895, 899 (1996) ("[T]hecontrolling question in burglary cases is one of possession or
occupation rather than ownership or property interests."). Indeed,
a burglary frequently has been said to require "only that the
breaking and entering in the nighttime with intent to commit a
felony be into a dwelling or a room used as a sleeping apartment
which is actually occupied at the time of the offense," which
eliminates the "of another" language. Beaver, 291 N.C. at 141, 229
S.E.2d at 182; see also State v. Freeman, 307 N.C. 445, 448, 298
S.E.2d 376, 378 (1983) (defining first degree burglary without the
"of another" element). Accord State v. Meadows, 306 N.C. 683, 689,
295 S.E.2d 394, 398 (1982), overruled on other grounds by State v.
Grier, 307 N.C. 628, 645, 300 S.E.2d 351, 361 (1983); State v.
Simpson, 303 N.C. 439, 449, 279 S.E.2d 542, 548 (1981); State v.
Person, 298 N.C. 765, 768, 259 S.E.2d 867, 868 (1979); State v.
Davis, 282 N.C. 107, 116, 191 S.E.2d 664, 670 (1972).
However, our Supreme Court has specified that "[t]he
requirement that the dwelling house or sleeping apartment broken
into be that of someone other than the defendant was an element of
burglary at common law and is implicitly incorporated in N.C.G.S.
14-51." Harold, 312 N.C. at 791, 325 S.E.2d at 222 (citations
omitted). "[I]t is incumbent upon the State to produce substantial
evidence tending to show that the premises broken into is the
dwelling house of another." Id. at 792, 325 S.E.2d at 222. Indeed,
at least three North Carolina cases have focused on the requirementthat a breaking and entering must occur on property "of another&quo
t; to
constitute a burglary.
In Harold, the defendant and his former girlfriend had
purchased a house and lived in it together until the week before he
murdered her. Harold, 312 N.C. at 789-90, 325 S.E.2d at 221. The
defendant was convicted of first degree burglary, and also first
degree murder based on premeditation and deliberation. He argued
that the jury instructions should not have read "without her
consent" and that they should have required a finding that he had
no ownership interest in the house to permit a burglary conviction.
Id. at 791, 325 S.E.2d at 222. Our Supreme Court stated that the
defendant's emphasis on ownership was "misplaced," explaining that
"the reason for prohibiting the offense of first degree burglary
'is to protect the habitation of men, where they repose and sleep,
from meditated harm.'" Id. (quoting State v. Surles, 230 N.C. 272,
275, 52 S.E.2d 880, 882 (1949)). The Harold Court held that the
evidence was sufficient to find the residence to be a "dwelling
house of another," where the victim had lived in the house for five
months preceding her death and had occupied the house when she was
murdered. Harold, 312 N.C. at 792, 325 S.E.2d at 222.
In Singletary, the defendant and his wife left their home in
Winston-Salem and the wife leased an apartment alone in Greensboro,
as the sole lessee. Singletary, 344 N.C. at 102, 472 S.E.2d at
899. The defendant moved into his wife's apartment one month
later, but then moved out following an argument. He returned hiskey to his wife and took most or all of his belongings with him.
Two days later he broke and entered into the apartment. In his
motion to dismiss the burglary charge, the defendant argued that he
did not break and enter into the dwelling house "of another" in
that the apartment was his residence and he had left it only for a
"cooling off" period, as they had argued many times previously but
had not permanently separated. Id. at 101, 472 S.E.2d at 899. He
also challenged the jury instructions on this issue. Our Supreme
Court held that the evidence did not support a finding that the
apartment was the defendant's dwelling where his wife had
maintained exclusive possession for the two days prior to
defendant's breaking and entering. Id. at 102, 472 S.E.2d at 899.
In so holding, the Court adopted the reasoning of a decision from
the Florida Supreme Court that a husband can be guilty of burglary
if he makes a nonconsensual entry onto the premises which are under
the sole possession of his wife with the intent to commit an
offense. Id.
Similarly, in State v. Cox, 73 N.C. App. 432, 326 S.E.2d 100,
disc. review denied, 313 N.C. 605, 330 S.E.2d 612 (1985), the
defendant, his wife and their daughter had lived together in a
rented house until the defendant moved out, which to his wife
signified a permanent separation. The defendant continued to visit
his daughter and contribute to the support of his family. A year
after the defendant had lived apart from his wife and daughter, he
telephoned his wife one night at around midnight asking permissionto come to the house. When she refused, he asked to speak to their
daughter, but his wife said she was spending the night elsewhere.
This led to an argument, after which the wife hung up the
telephone. Shortly thereafter she heard the defendant exit his
truck outside the house, and defendant knocked on the door calling
her name. Once the defendant had kicked down the door, he stabbed
a man who was in the house. Id. at 435, 326 S.E.2d at 102. The
defendant argued that his motion to dismiss the charge of first
degree burglary should have been granted because he and his wife
were still married and he kept clothing and tools in the house, but
our Court rejected the argument. We held the defendant entered the
dwelling "of another" where the evidence showed that the defendant
had lived elsewhere for more than a year while his wife occupied
the house, paid rent and utilities, and forbade him to enter the
home that night. Id. at 436-37, 326 S.E.2d at 102-03.
We follow the reasoning in Harold, Singletary and Cox to hold
that defendant committed burglary in this case. As in each of
those cases, the victim in this case had exclusive possession of
her residence at the time defendant broke and entered into it.
Furthermore, Ms. Blyther had expressly refused to allow defendant
entry into her house, and the screen door had been locked to keep
others, including defendant and DeLouise, outside. See Cox, 73
N.C. App. at 435, 326 S.E.2d at 102 (wife expressly refused
defendant's request to come to the house). The facts that
defendant had a key, paid rent, kept personal belongings in thehouse, and had recently lived there, do not change this result.
See id. (defendant burglarized house in which he had personal
belongings and had helped to financially support its residents);
Harold, 312 N.C. at 792, 325 S.E.2d at 222 (defendant burglarized
house that he helped his girlfriend purchase); Singletary, 344 N.C.
at 99-100, 472 S.E.2d at 898 (defendant moved out only two days
before the burglary). For the same reasons, we also reject
defendant's argument challenging the jury instructions. See
Harold, 312 N.C. at 791, 325 S.E.2d at 222 (rejecting identical
arguments); Singletary, 344 N.C. at 102, 472 S.E.2d at 899
(rejecting defendant's argument that jury instructions were
improper).
In his second argument, defendant claims the trial court erred
in denying his motion to dismiss the first degree burglary
conviction notwithstanding the verdict. He insists the jury's
verdicts were inconsistent and should be set aside pursuant to the
double jeopardy clause of the United States and North Carolina
Constitutions. Defendant finds inconsistency in the finding of
specific intent to murder as one of the elements of burglary,
without a finding of premeditation and deliberation required for
first degree murder. He contends that if the jury did not find
premeditation and deliberation, the jury could not have logically
found the specific intent required for burglary, and that he was
prejudiced by essentially being tried twice on this issue.
The Double Jeopardy Clause of the Fifth Amendment to theUnited States Constitution provides that no person shall &q
uot;be
subject for the same offense to be twice put in jeopardy of life or
limb[.]" U.S. Const. amend. V. "The North Carolina Constitution
does not have a Double Jeopardy Clause, but the protection against
double jeopardy has been considered an integral part of the Law of
the Land Clause." State v. Rambert, 341 N.C. 173, 175 n.1, 459
S.E.2d 510, 512 (1995) (citing State v. Ballard, 280 N.C. 479, 186
S.E.2d 372 (1972)). "Also, the United States Supreme Court has
held that the Double Jeopardy Clause of the United States
Constitution is applicable to the states through the Fourteenth
Amendment." Rambert, 341 N.C. at 175 n.1, 459 S.E.2d at 512
(citing Benton v. Maryland, 395 U.S. 784, 23 L. Ed. 2d 707 (1969).
It "protects against (1) a second prosecution for the same offense
after acquittal, (2) a second prosecution for the same offense
after conviction, and (3) multiple punishments for the same
offense." State v. Gilley, 135 N.C. App. 519, 521, 522 S.E.2d 111,
113 (1999); State v. Gardner, 315 N.C. 444, 451, 340 S.E.2d 701,
707 (1986) (citations omitted); North Carolina v. Pearce, 395 U.S.
711, 717, 23 L. Ed. 2d 656, 664-65 (1969), overruled in part on
other grounds, Alabama v. Smith, 490 U.S. 794, 802, 104 L. Ed. 2d
865, 874-75 (1989).
First, defendant has not been prosecuted a second time for the
same offense after acquittal. First degree murder, based upon
either deliberation and premeditation or the felony-murder rule, isnot the same offense as first degree burglary, because each offense
contains an element not included in the other. State v. Parks, 324
N.C. 94, 97, 376 S.E.2d 4, 7 (1989) ("Clearly, the offenses of
first degree burglary and first degree murder both require proof of
an additional fact which the other does not."). Therefore, a jury
may properly convict defendant of first degree burglary while not
finding the existence of an element required for first degree
murder. State v. Parks, the case cited by defendant, defeats his
own position. Parks held that a defendant could not sustain a
double jeopardy claim where he was convicted of premeditated first
degree murder and first degree burglary, for the reason that the
crimes were not the same. Id. at 97-98, 376 S.E.2d at 7.
Defendant argues double jeopardy because here, unlike Parks, there
was no conviction of premeditated murder. This distinction does
not invoke double jeopardy because first degree felony-murder, for
which defendant was convicted, also is an offense different from
first degree burglary. Thus, defendant was not prosecuted a second
time for the same offense following an acquittal. Id. at 98, 376
S.E.2d at 7 ("Since it is clear that here at least one essential
element of each crime is not an element of the other, we find no
merit in defendant's contentions that he was subjected to double
jeopardy.").
Second, defendant has not been prosecuted a second time for an
offense after conviction. Finally, defendant has not been punished
more than once for the same offense. He has not been punished morethan once for his first degree murder conviction pursuant to the
felony-murder rule, and his sentence on the underlying felony of
burglary was arrested by the trial court. See State v. Wilson, 345
N.C. 119, 125, 478 S.E.2d 507, 512 (1996).
For the reasons above, we hold that the trial court did not
err.
No error.
Judges EAGLES and HORTON concur.
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