Before Stevens, Judge, at the 1 December 1980 Criminal Session of Superior Court, New Hanover County.
Evidence for the State tended to show that the body of Walter J. Powers, the night guard, was found in the shop area of Almont Shipping Company in Wilmington several minutes before 7:00 a.m. on 5 January 1976. His body was lying facedown on the floor in a pool of blood. He had been shot several times in the head and back with a small caliber weapon. An inspection of the area revealed that a large window in the rear of the shop had been broken, apparently from the outside. A large bay door on the south side of the building had been pried open from the inside. Powers' body was located not far from the bay door. Several tool boxes were broken open, and some of the drawers were empty. The missing tools were owned by employees of Almont, and the value of the tools stolen from two of Almont's employees exceeded $1,000. None of the tools or pieces of equipment owned by Almont were missing.
Powers, the deceased, always carried a .38 revolver with what appeared to be pearl grips with him while on duty at Almont,
and he usually carried a wallet. Neither the revolver nor a wallet were found on his body. Although the time of his death could not be pinpointed, the time clock tape showed that the deceased had completed his first round between midnight and 1:00 a.m. on 5 January 1976. The cause of death was determined to be multiple small caliber bullet wounds to the left temple.
Linda Sue Albertson testified that she was living with defendant at the time of the Almont break-in. She heard defendant discuss with James H. Brown, Sr., and James H. Brown, Jr., around 6:00 or 7:00 p.m. in December or January of 1975 or 1976 "how to get tools out of big tool boxes" at Almont Shipping Company. This conversation took place before the guard was killed at Almont. The Browns did some of the talking. Brown, Jr., described where Almont was and how they could get in, and, having previously worked as a guard at Almont, he described how the guard made his rounds.
According to Ms. Albertson, defendant was at home with her on 4 January 1975 until early in the evening. He left by himself and did not say where he was going. He returned to their trailer at approximately 5:00 or 6:00 a.m. on 5 January 1976. With him he had two guns: a small brown pistol, which Ms. Albertson guessed was a .22 caliber, and a larger caliber silver- or chrome-plated pistol with tan or white handles. At that time, defendant had been carrying a pistol in his car for about two months. Defendant told Ms. Albertson "that it was better for her not to know" where he had obtained the silver gun. Defendant stayed at the trailer until the early afternoon.
That evening, on the news, Ms. Albertson heard about the incident at the Almont Shipping Company. She told defendant's brother that she had overheard the break-in being planned. When defendant returned home, Ms. Albertson asked him why he had left the guard in a puddle of blood. Defendant replied, "What did you expect me to do, clean the damn mess up?" Later that evening defendant told her that he had been in a little stall which was the storage compartment in the Almont maintenance shop with his back to the door when he heard footsteps. He turned, and the guard was behind him. The guard had his gun drawn on defendant and defendant had his gun drawn on the guard. At that moment, the younger Brown walked up behind the guard and
stuck his gun in the guard's back. Defendant made the guard lie down on the floor, and he shot him twice in the head and four times in the body.
Four days later, on 9 January 1976, Ms. Albertson and defendant went to Richmond, Virginia, where she purchased a plane ticket to Montreal, Canada, in his name. Ms. Albertson saw defendant go through the boarding gate. She testified that he was leaving North Carolina so he wouldn't get caught. He told her that if the police came looking for him, she should say that he had been at home when the guard was killed.
James H. Brown, Sr., a co-defendant in the case, testified under a grant of immunity from the State. According to this witness, he, defendant, and James H. Brown, Jr., his son, went to Almont Shipping Company on 5 January 1976. He parked the car close by. Defendant and his son went into the Almont building while he waited in the car. His son returned about twenty to thirty minutes later with a bag of tools. Shortly thereafter, defendant returned to the car carrying his own pistol, a .22, and a .38 caliber nickel-plated pistol with pearl or ivory handles. Defendant stated to him, "I had to shoot him, to shoot the guard. He could identify me." Later, defendant and the elder Brown disposed of the tools by throwing them into the ocean.
Defendant took the stand in his own behalf and denied any participation in the crimes or any knowledge of the location of Almont Shipping Company. The defendant also presented the testimony of two alibi witnesses who stated that defendant was with them during the early morning hours of 5 January 1976.
The trial court submitted the case to the jury on the charges of felony murder, felonious breaking or entering, felonious larceny and armed robbery. The jury was instructed that in order to find defendant guilty of first degree murder, it must first find him guilty of felonious breaking or entering and felonious larceny. The jury returned verdicts of guilty as charged. The trial judge arrested judgment for breaking or entering and larceny and sentenced defendant to life imprisonment for murder and thirty years for armed robbery. The armed robbery sentence was to run consecutively with the life sentence. From those sentences defendant appeals.