State v. Thompson , 278 N.C. 277 ( 1971 )

179 S.E.2d 315 (1971) 278 N.C. 277

STATE of North Carolina
v.
James Hanover Grissom THOMPSON.

No. 56.

Supreme Court of North Carolina.

March 10, 1971.

Robert Morgan, Atty. Gen., Thomas B. Wood, Asst. Atty. Gen., for the State.

William F. Hamel, Charlotte, for defendant-appellant.

HIGGINS, Justice.

The appellant assigns as error the court's failure to exclude: (1) The in-court identification of Thompson by the victim, Caldwell; (2) The articles recovered from the defendant's room on the alleged grounds they were obtained by an illegal search. The defendant also assigned as error: (1) The refusal of the court to direct a verdict of not guilty at the close of the evidence; (2) The failure to order a mistrial because of the solicitor's argument in which he expressed his personal opinion that the defendant and his witnesses were lying.

Mr. Caldwell had good opportunity to view his assailant during the robbery. He next saw the defendant about four hours later at his boardinghouse. The evidence (direct and circumstantial) tended to remove all reasonable probability of a mistaken identity. State v. McPherson, 276 N.C. 482, 172 S.E.2d 50. Likewise untainted was the identification by Price, the cab driver, who picked up the defendant and Blackman and carried them to David Cox Road where he left them about midnight on April 8. These identifications strongly complement and support each other. Russell v. United States, 133 U.S. App.D.C. 77, 408 F.2d 1280; State v. Wright, 274 N.C. 84, 161 S.E.2d 581. The arresting officers had knowledge of these facts at the time of the arrest.

The saddle, radios, guns, TV set, type-writer, adding machine, diamond ring, and other articles recovered from the defendant's room at the boardinghouse in less than four hours from the time they were forcibly removed at gun point from the Caldwell home were properly admitted in evidence, unless, of course, the officers recovered possession as a result of unlawful search or incident to unlawful arrest. The articles stolen were unusual in character and in combination, and when found so soon after the taking, the inference of the possessor's guilt is overwhelming unless explained. A saddle in a bedroom is out of the ordinary. The officer testified that Bruce Blackman admitted he helped set up the robbery and that he and Thompson went to the Caldwell home in a cab. Bruce Blackman testified that he told Officer Smith that he went to the Caldwell home in a cab. He told Officer Andrews that James Thompson, the defendant, might be able to give some information concerning Jackie Stewart and his friend whom he had seen at Thompson's boardinghouse.

Mrs. Miller, owner of the boardinghouse, invited the officers into the living room. While she was talking to them, Officer Robinson looked through an open door into the defendant's bedroom. There he saw a western type saddle, radios and a TV set. Thereupon the officers entered through the open door and found the defendant in bed armed with a pistol and his bed surrounded by the purloined articles. The possession of these unusual articles, within less than five hours after they were taken, furnished the officers ample evidence to warrant the defendant's arrest. "In determining probably cause, all the information in the officer's possession, fair inferences therefrom, and observations made by him, are generally pertinent; and facts may be taken into consideration that would not be admissible on the issue of guilt." 5 Am.Jur.2d, Arrest, § 48. See State v. Roberts, 276 N.C. 98, 171 S.E.2d 440.

"When the constitutional validity of an arrest is challenged, it is the function of a court to determine whether the facts available to the officers at the moment of the arrest would ``warrant a man of reasonable caution in the belief' that an offense has been committed." Beck v. Ohio, 379 U.S. 89, 85 S. Ct. 223, 13 L. Ed. 2d 142.

In this case the trial judge believed the testimony of the officers and disbelieved the testimony of the defendant's unreasonable explanation that the articles were unloaded in his room while he was asleep. The articles introduced in evidence were recovered by a lawful search and incident to a lawful arrest. The trial court findings were supported by the evidence. The evidence made out a strong case, and amply supported the guilty verdict. The motions to suppress were properly overruled.

The case on appeal contains the following: "THE COURT: Let the record show that during the Solicitor's argument to the jury, he stated that he was of the opinion that the defendant and the defendant's witnesses were lying. The defendant objected. Objection overruled. Exception No. 13."

The solicitor's argument was improper. He had not been a witness. He had the right to argue the evidence, and the legitimate inferences which the jury might draw from that evidence. But his private opinion, that the defendant and his witnesses were lying, was a step out of bounds. In expressing his private opinion, the solicitor was not well advised. Perhaps, too, the judge would have been better advised if he had sustained the objection and cautioned the jury not to permit the solicitor's personal opinions to have weight against the defendant. However, in view of the overwhelming evidence of guilt, the solicitor's indiscretion was of small moment. While it would appear from the record before us that the objection to the argument should have been sustained; however, this court did not hear the argument of defense counsel. The presiding judge did hear it. The solicitor's inadvertence does not appear of sufficient moment to warrant a new trial. "The manner of conducting the argument of counsel, the language employed, the temper and tone allowed, must be left largely to the discretion of the presiding judge. He sees what is done, and hears what is said. He is cognizant of all the surrounding circumstances, and is a better judge of the latitude that ought to be allowed to counsel in the argument of any particular case. It is only in extreme cases of the abuse of the privilege of counsel, and when this is not checked by the court, and the jury is not properly cautioned, this Court can intervene and grant a new trial." State v. Barefoot, 241 N.C. 650, 86 S.E.2d 424; State v. Bryan, 89 N.C. 531; State v. Underwood, 77 N.C. 502.

Just cause to upset the verdict and judgment does not appear in this record.

No error.