State v. Westry

189 S.E.2d 618 (1972)

STATE of North Carolina
v.
Michael Edward WESTRY.
STATE of North Carolina
v.
Algernon McCUTCHEON.
STATE of North Carolina
v.
Walter Curtis MILLER.
STATE of North Carolina
v.
Franklin Monroe ABBNEY.

No. 7218SC205.

Court of Appeals of North Carolina.

June 28, 1972. Certiorari Denied August 31, 1972.

Atty. Gen. Robert Morgan and Asst. Atty. Gen., I. Beverly Lake, Jr., for the State.

Public Defenders Wallace C. Harrelson and Dale Shepherd, for defendant appellants.

Certiorari Denied by Supreme Court August 31, 1972.

MALLARD, Chief Judge.

In the trial in superior court, the defendant Westry was represented by the Public Defenders for the Eighteenth Judicial District and each of the other defendants individually by appointed counsel. Based upon a total of more than 170 exceptions and 150 assignments of error, these defendants present eleven questions for decision on this appeal. Eight of these questions are common to all of the defendants, one pertains to both defendants Miller and Abbney, one pertains only to the defendant McCutcheon and another pertains only to the defendant Westry. This is the proper and preferred manner of perfecting a joint appeal and is commendable. We shall consider each question separately, with appropriate designation when the question applies to fewer than all of the defendants.

The first question involved in this appeal is whether the court erred "in charging the jury on the punishment that the charged crime carried." The defendants rely primarily upon the case of State v. Rhodes, 275 N.C. 584, 169 S.E.2d 846 (1969), but that case is not controlling under the present circumstances. In Rhodes, the jury returned to the courtroom after having begun their deliberations and specifically requested to know the penalty for one of the lesser included offenses of the crime charged, which implied that such information would have a bearing upon their decision of guilt or innocence. Even so, the Supreme Court held that the error committed in informing the jury of the maximum penalty involved was not prejudicial, adding that: "It does not follow, however, that instructions disclosing the punishment authorized by statute will always constitute prejudicial error."

In the case before us, the only mention of "punishment" in Judge Seay's instructions was when the applicable statute, G.S. § 14-87, was read verbatim to the jury. Although this practice is not approved in an armed robbery case, we think that in the present case any error resulting from a plain reading of the statute without further comment was neither material nor prejudicial. See State v. Hill, 9 N.C.App. 410, 176 S.E.2d 350 (1970).

The defendants, in questions "II" and "III," also contend that the court erred in its charge to the jury concerning "aiding and abetting" and as to "felonious intent." No exact forms or words are required to properly instruct a jury upon "aiding and abetting" or "felonious intent." See State v. Mundy, 265 N.C. 528, 144 S.E.2d 572 (1965); State v. Anderson, 5 N. C.App. 492, 168 S.E.2d 444 (1969). When the entire "Charge of the Court" as it appears in the record on appeal is considered as a contextual whole, we hold that it is free from prejudicial error.

The defendants' fourth contention is that the court committed error "in refusing to allow the motion to suppress the identification of the defendants made by Linda Greeson, Walter Snow and Gary Knight, and in finding that the identification made by these three witnesses was not tainted by an improper identification procedure." In this regard, we note that the trial judge conducted exhaustive pre-trial voir dire examinations, examinations covering over fifty pages in the record on appeal, to determine the propriety of admitting such identification testimony and found that the in-court identification would not be "tainted by an improper out-of-court identification; that there was no improper out-of-court identification; and that no suggestions were made by any police officers as to the identity of the participants in the alleged robbery."

As previously set out, the four defendants were stopped on Highway 29 near Reidsville by a State highway patrolman as the result of a radio transmission describing the defendants and the automobile in which they were riding. Shortly thereafter (within less than an hour), members of the Greensboro Police Department transported the three victims of the robbery to the point on Highway 29 where the defendants were being detained and the defendants were initially identified at that time. Additionally, the witness Greeson was asked at the time the defendants were being photographed in Greensboro on the same evening "what each of them that she had identified did during the robbery."

The defendants contend that two points are raised by this procedure: (1) "whether the identification procedure was too suggestive" and (2) "whether the defendants were denied rights to counsel because of the lineup," and rely primarily upon the cases of United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967) and Gilbert v. California, 388 U.S. 263, 87 S. Ct. 1951, 18 L. Ed. 2d 1178 (1967). The effect and application of these two cases, and of other constitutional considerations, have been much discussed and analyzed both by this court and by the North Carolina Supreme Court in a number of subsequent opinions involving similar pre-trial identifications. The following cases have uniformly held that the absence of counsel during such out-of-court identification procedures (contrary to the assertion in defendants' brief, there was no "lineup" in the present case) is not necessarily violative of an accused's constitutional rights and does not require the suppression or exclusion of subsequent in-court identification testimony. State v. Banner, 279 N.C. 595, 184 S.E.2d 257 (1971); State v. Thompson, 278 N.C. 277, 179 S.E.2d 315 (1971); State v. Murphy, 10 N.C.App. 11, 177 S.E.2d 917 (1970), appeal dismissed, 277 N.C. 727, 178 S.E.2d 830, cert. denied, 278 N.C. 105, 179 S.E.2d 453; State v. Gatling, 5 N.C.App. 536, 169 S.E.2d 60 (1969), aff'd, 275 N.C. 625, 170 S.E.2d 593, and State v. Bertha, 4 N.C.App. 422, 167 S.E.2d 33 (1969). See also, Russell v. United States, 133 U.S.App.D.C. 77, 408 F.2d 1280 (1969), cert. denied, 395 U.S. 928, 89 S. Ct. 1786, 23 L. Ed. 2d 245 (1969); State v. Blackwell, 276 N.C. 714, 174 S.E.2d 534 (1970), cert. denied, 400 U.S. 946, 91 S. Ct. 253, 27 L. Ed. 2d 252; State v. Williams, 274 N.C. 328, 163 S.E.2d 353 (1968); State v. Accor and State v. Moore, 13 N. C.App. 10, 185 S.E.2d 261 (1971), aff'd, N.C., 188 S.E.2d 332 (filed May 10, 1972) and State v. Stamey, 3 N.C.App. 200, 164 S.E.2d 547 (1968).

We further note that in the present case the victims of the crime had ample opportunity to observe the defendants during the course of the robbery and that they indicated during the voir dire examinations and the court found that their in-court identification was based upon this independent observation, that the defendants were apprehended within one hour after the commission of the armed robbery and were confronted with the identifying witnesses within a matter of minutes thereafter, that no active cooperation (other than their presence) was required of the defendants, that all of the physical evidence and prior descriptions corroborated the identifications and, primarily, that the trial judge conducted full and fair voir dire examinations and concluded that the witnesses' identification testimony of the defendants would not be "tainted" by improper out-of-court identification.

In State v. Banner, supra, Justice Higgins made the following observations:

"* * * Both federal and state cases hold evidence of a prior identification will not invalidate the in-court identification unless the former was fundamentally unfair. The totality of the circumstances surrounding the prior identification will determine its admissibility at the trial. To remove the likelihood of a false identification is the purpose of the exclusionary rule. If the in-court identification is of independent origin, a prior confrontation of a suspect in the custody of the officers will not warrant excluding the identifying testimony. Foster v. California, 394 U.S. 440, 89 S. Ct. 1127, 22 L. Ed. 2d 402; State v. Austin, 276 N. C. 391, 172 S.E.2d 507, and cases therein cited.

This the officers knew: The defendant was arrested near the time and place of the robbery, attired in a shirt with alternating white and gold stripes around the body, golden orange colored corduroy trousers with a tear on the right hip. Surely this description with the other evidence was sufficient to make out the case of robbery. However, to guard against charging one whom the victim might exonerate, the officers requested the witness to look at the defendant. The physical evidence was sufficient to make out the case. Hence the defendant's chance of release depended not on a failure of the witness to identify him, but on her opinion he was not the robber. The confrontation was to guard against holding the wrong man. State v. McNeil, 277 N.C. 162, 176 S.E.2d 732."

The assignments of error relating to the court's refusal to suppress the identification of the defendants made by witnesses Knight, Greeson and Snow are overruled.

The defendant's fifth contention is that the trial court erred "in failing to find that there was no probable cause for the arrest of all the defendants and in finding that the arrests were valid." This contention is also without merit. The defendants would have us make the distinction between probable cause and "mere suspicion." Without again setting forth the entire factual situation in the case before us, we think that Patrolman Durham was justified in assuming, based upon the radio "alert" that he had just received, that the four Negro men he observed traveling north from Greensboro in a 1968 blue and white Dodge Charger automobile bearing the District of Columbia license plate "GWYNN" were the same men as those just described to him as the perpetrators of an armed robbery.

G.S. § 15-41, in pertinent part, provides: "A peace officer may without warrant arrest a person: . . . (2) When the officer has reasonable ground to believe that the person to be arrested has committed a felony and will evade arrest if not immediately taken into custody." We hold that the officer in the present case had reasonable grounds to stop and take into custody the defendants; indeed we cannot conceive how law enforcement officers would be able to function in such cases were it to be held otherwise. These assignments of error are also overruled. See State v. Jackson, 280 N.C. 122, 185 S.E.2d 202 (1971); State v. Bell, 270 N.C. 25, 153 S.E.2d 741 (1967); State v. Hamilton, 264 N.C. 277, 141 S.E.2d 506 (1965), cert. denied, 384 U.S. 1020, 86 S. Ct. 1936, 16 L. Ed. 2d 1044 (1966), and 1 Strong, N.C. Index 2d, Arrest and Bail, § 3.

The defendant's sixth contention concerns the admission into evidence of a number of items obtained from the search of their persons and the Dodge automobile in which they were riding, and requires no discussion in light of our holding above that probable cause existed for the detention and arrest of the defendants. The assignments of error relating to the admission of this real evidence are overruled.

The next question presented concerns the use of allegedly leading questions by the solicitor. Leading questions are permissible under certain circumstances and, absent an abuse, are within the discretion of the trial judge, but defendants characterize the solicitor's "leading" in the present case as being so "continual (almost continuous)" and "blatant" as to constitute reversible error. We do not agree. We have reviewed with care those portions of the record on appeal referred to by the defendants and, even conceding that some leading questions were permitted, the evidence was competent and no abuse of discretion is made to appear. See 2 Strong, N.C. Index 2d, Criminal Law, § 87, and cases cited therein.

The next question, denominated "VIII" in the defendant's brief, applies only to the defendant McCutcheon, who contends that the court erred failing to grant his motion for a bill of particulars. Again, this is a matter addressed to the sound discretion of the trial court, and his decision will not be disturbed on appeal in the absence of a demonstrable abuse of discretion. State v. Vandiver, 265 N.C. 325, 144 S.E.2d 54 (1965).

The indictment returned against the defendant McCutcheon reads as follows:

"THE JURORS FOR THE STATE UPON THEIR OATH PRESENT, That Algernon McCutcheon late of the County of Guilford on the 21st day of June 1971 with force and arms, at and in the County aforesaid, unlawfully, wilfully and feloniously having in possession and with the use and threatened use of a certain firearm, to wit: a pistol, whereby the lives of Gary Knight, Walter Snow and Linda Karen Greeson were endangered and threatened, did commit an assault upon and put in bodily fear the said Gary Knight, Walter Snow and Linda Karen Greeson and by means aforesaid and by threats of violence and by violence did unlawfully, wilfully and feloniously take, steal and carry away personal property, to wit, $1,148.19 in good and lawful money of the United States from the place of business known as Coburn Finance Corporation of North Carolina where, at said time, the said Gary Knight, Walter Snow and Linda Karen Greeson were in attendance, $240.00 of said money being the property of Gary Knight; $135.00 of said money being the property of Walter Snow; and $773.19 of said money being the property of Coburn Finance Corporation of North Carolina against the form of the statute in such case made and provided and against the peace and dignity of the State."

The foregoing language is sufficient to apprise this defendant of the nature and details of the crime charged. We have examined the "interrogatories" posed in this defendant's motion, and though much of the information requested might have been pertinent to his defense, we do not think that it appears that the trial judge abused his discretion in denying the motion, and the defendant McCutcheon's assignment of error pertaining thereto is overruled. It has not been shown that any of the evidence adduced at trial by the State was a surprise to the defendant or was not within his personal knowledge; therefore, no abuse of discretion has been shown. See State v. McCabe and State v. Loften, 1 N.C.App. 461, 162 S.E.2d 66 (1968).

The ninth question raised in the defendants' brief is stated as follows: "As to defendants Miller and Abbney, did the Court err in forcing the defendants to stand trial in prison clothes?" This question incorporates a misstatement of the facts as disclosed by the record and borders upon being frivolous. These defendants, in their brief, go further and contend:

"The statute explicitly makes it unlawful for a defendant to be tried in prison clothes, G.S. § 15-176. Yet the trial judge forced these two defendants to stand trial in such clothes. The statute reads in part that `It shall be unlawful. . . and no person charged with a criminal offense shall be tried in any court while dressed in the uniform or dress of a prisoner or convict . . . .' This could not be clearer. Failure to comply with this statute submitted the defendants to an ignominious defense and their chances of conviction were greatly increased. They were prejudiced by this action of the trial judge." (Emphasis added.)

We feel it is here appropriate to set out the entire statute, G.S. § 15-176, including those portions that the defendants have omitted in their argument:

"Prisoner not to be tried in prison uniform.—It shall be unlawful for any sheriff, jailer or other officer to require any person imprisoned in jail to appear in any court for trial dressed in the uniform or dress of a prisoner or convict, or in any uniform or apparel other than ordinary civilian's dress, or with shaven or clipped head. And no person charged with a criminal offense shall be tried in any court while dressed in the uniform or dress of a prisoner or convict, or in any uniform or apparel other than ordinary civilian's dress, or with head shaven or clipped by or under the direction and requirement of any sheriff, jailer or other officer, unless the head was shaven or clipped while such person was serving a term of imprisonment for the commission of a crime.

Any sheriff, jailer or other officer who violates the provisions of this section shall be guilty of a misdemeanor." (Emphasis added.)

The record discloses that the defendants Miller, Abbney and McCutcheon, through their counsel, each objected to being placed on trial "in a gray shirt and gray trousers." (There is no evidence that a gray shirt and gray trousers are the uniform or dress of a prisoner or that they were anything other than ordinary civilian dress.) The record also shows that the State had offered to return to them the clothes they had on when they were arrested, that the defendants were offered the opportunity to obtain other clothing and that the defendants, through their respective counsel, refused to accept the return of clothing by the State or to obtain other attire. The motions in behalf of the defendants Abbney and Miller were overruled. (The record does not disclose whether the defendant McCutcheon was tried in "prison clothes," but no ruling was made as to his motion and no assignment of error appears in connection therewith.)

We fail to see how the trial judge "forced" these two defendants to stand trial in "prison clothes"; nor does G.S. § 15-176 "explicitly" make it "unlawful for a defendant to be tried in prison clothes." If these defendants were each tried in "a gray shirt and gray trousers," it was entirely the result of their own refusal to wear the other clothing offered or to obtain other attire, and if they suffered prejudice as a result, it was entirely of their own making. The assignments of error in this regard are overruled.

The question denominated "X" in the defendants' brief pertains only to the defendant Westry. This defendant contends therein that the trial judge erred in denying his counsel the right to cross-examine State's witness Gary Knight. This denial occurred during the voir dire examination of Knight. This examination was conducted solely to determine if his (and Greeson's and Snow's) testimony as to the identification of the defendants was tainted by prior out-of-court identification procedures and this was its entire scope. Knight had at no time purported to identify the defendant Westry and did not do so at the trial. Counsel for the defendant Westry was permitted to cross-examine Knight before the jury and, in fact, did so. We hold that there was no prejudicial error committed when the trial judge sustained the State's objection to the cross-examination of Knight by Westry's counsel at the voir dire examination. It is quite true that Knight testified that four men were involved in the armed robbery, but the voir dire examination was not for the purpose of taking testimony in general but for the purpose of determining whether the witnesses could identify the specific defendants. This assignment of error is overruled. See also, 2 Strong, N.C. Index 2d, Criminal Law, § 88, p. 613, citing the holding in State v. Hill, 266 N.C. 103, 145 S.E.2d 346 (1965), to the effect that no prejudicial error is committed where one defendant's counsel is not permitted to cross-examine a witness if counsel for a co-defendant is permitted full cross-examination inuring to the benefit of each of the defendants, all witnesses are fully examined and all features of the case are fully developed.

The defendants' final contention is that, as to all of them, the trial court erred in failing to allow their motions for nonsuit. This contention is without merit; the evidence of the guilt of these defendants was amply sufficient to warrant presentation of the case to the jury. In fact, the combination of eyewitness testimony, the physical evidence and the introduction into evidence of the weapons and of the fruits of the armed robbery found on the defendants' persons and in the vehicle in which they were riding was little short of overwhelming. We have carefully examined the lengthy record in this case on appeal, and we hold that these defendants received a trial that was full, fair and objective. In the trial in superior court, we find no prejudicial error.

No error.

CAMPBELL and BROCK, JJ., concur.