NO. COA03-1089
Appeal by defendant from judgments dated 21 February 2003 by
Judge Cy A. Grant in Northampton County Superior Court. Heard in
the Court of Appeals 12 May 2004.
Attorney General Roy Cooper, by Assistant Attorney General
Diane A. Reeves, for the State.
Appellate Defender Staples Hughes, by Assistant Appellate
Defender Katherine Jane Allen, for defendant-appellant.
BRYANT, Judge.
Toby Montago Gary (defendant) appeals judgments dated 21
February 2003 entered consistent with a jury verdict finding him
guilty of first-degree murder, attempted robbery with a firearm,
and conspiracy to commit robbery with a firearm.
At trial, the State presented evidence tending to show that in
May 2001, defendant, a resident of Orlando, Florida came to visit
family and friends in the Murfreesboro, North Carolina area.
During this visit, defendant stayed with his friend Lawrence Hill
and his friend's son Cody Hill (Hill). On the evening of 23 May
2001, defendant approached Hill and solicited his help in robbing
a bank. The following morning defendant, Hill, and defendant'sfriend Willie Jackson, drove to Conway, North Carolina. With the
help of Lamont Williams, they obtained a gun from Terrence Powell.
Later that day, defendant drove Hill and Jackson to the First
Citizen's Bank in Conway. Defendant gave Hill a stocking cap and
told him to “go help Willie.” Defendant told Hill and Jackson that
he would wait for them at the flea market and drove away in that
direction.
Outside of the bank, Hill and Jackson encountered and had a
brief conversation with Mae Woodard, a middle school teacher who
knew both of them well. Hill and Jackson then entered the bank and
attempted to commit an armed robbery. Jackson waived a gun in the
air and shouted: “Don't anybody press the f_ing button.” Jackson
approached the teller window where Carolyn Watson was working, and
thereafter witnesses heard a gunshot and saw Carolyn Watson fall to
the floor. Hill and Jackson then ran out of the building without
taking any money. Once outside, Hill and Jackson ran down an alley
and around some buildings to a nearby flea market, where defendant
was parked. When Hill and Jackson got into the car, defendant
asked, “Where's the f_ing money, where's the f_ing money at?” Hill
urged defendant, “Toby let's go, let's go” and they “ran down the
road” in the car.
Defendant, Hill, and Jackson drove to Hill's house and met
Lamont Williams, who drove them all to Roanoke Rapids. Defendant
indicated to Hill and Jackson that he wanted them to rob another
bank; however, because it was after 5:00 p.m., the banks were
closed. Thereafter, near the Virginia State line, Williams' carran out of gas. The four men went to Williams' house, where Hill
and Jackson remained until the police arrived.
Chief Ted Sumner of the Gaston Police Department testified
that he picked up defendant on the night of 24 May 2001. Defendant
then directed Chief Sumner to a house, which was approximately
three-and-a-half miles away, where Chief Sumner located Hill and
Jackson. Defendant was not arrested and therefore was not
searched, patted down, or handcuffed before he got into Chief
Sumner's police vehicle. Jackson, who was placed under arrest, was
patted down and restrained with handcuffs behind his back before
being placed in the police vehicle. A gun was later found in the
police vehicle beneath the seat where defendant had been sitting.
In the subsequent SBI lab test, the gun was found to be consistent
with having fired the bullet removed from Carolyn Watson's body.
The bank's security camera recorded the events inside the bank
on 24 May 2001. Mae Woodard testified that she had spoken to Hill
and Jackson moments before the attempted robbery, and she
identified them as the perpetrators on the bank's videotape
recording. The autopsy on Carolyn Watson revealed she bled to
death as a result of a gunshot wound to the left side of her neck.
_____________________
The issues are whether: (I) double jeopardy required the trial
court to arrest judgment on defendant's conviction of attempted
robbery with a firearm; and (II) the trial court erred in
instructing the jury.
I
Defendant first argues that his constitutional right to be
free from double jeopardy was violated when the trial court refused
to arrest judgment on his conviction for attempted robbery with a
dangerous weapon because the attempted robbery conviction was the
underlying felony used to establish first-degree murder under the
felony murder rule. The State argues that a defendant can be
convicted of both first-degree murder and an underlying felony. As
conceded by the State, however, two punishments for the same crime
violates the principles of double jeopardy.
See, e.g., State v.
Wilson, 345 N.C. 119, 122, 478 S.E.2d 507, 510 (1996) (“when the
sole theory of [defendant's conviction of] first-degree murder is
the felony murder rule, a defendant cannot be sentenced on the
underlying felony in addition to the sentence for first-degree
murder”);
State v. Ocasio, 344 N.C. 568, 581, 476 S.E.2d 281, 288
(1996) (“the trial court erred in failing to arrest judgments on
the first-degree kidnapping convictions when these convictions were
the underlying felonies for the felony murder convictions”).
Accordingly, the judgment must be vacated with respect to
defendant's conviction of attempted robbery with a dangerous
weapon.
II
Defendant next contends the trial court erred in instructing
the jury that “flight may be considered . . . with all other facts
and circumstances . . . in determining . . . an admission or a show
of consciousness of guilt.” As defendant failed to object to this
instruction at trial, he seeks plain error review of this issue onappeal.
“[T]o reach the level of 'plain error' . . . , the error in
the trial court's jury instructions must be 'so fundamental as to
amount to a miscarriage of justice or which probably resulted in
the jury reaching a different verdict than it otherwise would have
reached.'”
State v. Collins, 334 N.C. 54, 62, 431 S.E.2d 188, 193
(1993) (citation omitted). “A trial court may not instruct a jury
on [the] defendant's flight unless there is some evidence in the
record reasonably supporting the theory that defendant fled after
commission of the crime charged.”
State v. King, 343 N.C. 29, 38,
468 S.E.2d 232, 238 (1996). The test for finding a flight
instruction applicable is twofold: (1) whether the defendant left
the scene of a crime; and (2) whether the defendant took steps to
avoid apprehension.
Id.
After a review of the record before us, we conclude that the
evidence tended to show that defendant left the scene with the
intention of avoiding apprehension. First, defendant made
arrangements with Hill and Jackson to meet at a designated spot
following the planned bank robbery. This meeting place - the flea
market - was located far enough from the bank as to avoid detection
by witnesses. Further, in their escape, Hill and Jackson ran
around the bank and through an alley to get to the flea market.
The flea market was a convenient departure point for getting away
from the scene of the crime, which defendant, as the driver,
promptly did.
We are not persuaded by defendant's assertion that “[t]here is no evidence that [he] avoided the police, that he tried to hide,
that he made any efforts to change his appearance, to 'cover his
tracks,' or avoid capture.” According to defendant, “[h]e was
simply, . . . driving around attempting to perpetrate other
crimes.” If anything, evidence indicating that defendant attempted
to perpetrate other crimes supports the trial court's finding that
defendant fled, since a person, who is in the process of attempting
to commit other crimes, would be making an effort to evade
authorities. Additionally, once defendant learned that Hill and
Jackson had been identified as the perpetrators of the attempted
robbery, he left them at Williams' house and was picked up more
than three miles away. This, too, is evidence of defendant's
intention to dissociate himself with the known perpetrators of the
crime and to avoid apprehension. Finally, there was evidence that
defendant attempted to conceal his weapon underneath the seat in
the police vehicle.
In conclusion, we find the evidence was sufficient to warrant
the jury instruction on flight; however, assuming
arguendo that the
trial court did err in instructing the jury as to flight, on the
evidence of record, defendant has not shown the level of prejudice
required for plain error.
In light of the foregoing, the judgment on the attempted
robbery with a dangerous weapon conviction is vacated. As to the
two remaining judgments, we hold that defendant received a fair
trial, free from prejudicial error.
Vacated in part and no error in part. Chief Judge MARTIN and Judge McGEE concur.
Report per Rule 30(e).
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