State v. Handsome , 300 N.C. 313 ( 1980 )

266 S.E.2d 670 (1980)

STATE of North Carolina
v.
Darrill Lewis HANDSOME.

No. 116.

Supreme Court of North Carolina.

June 3, 1980.

David B. Brantley, Goldsboro, for defendant.

Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. Jane Rankin Thompson, Raleigh, for the State.

COPELAND, Justice.

By his tenth assignment of error, defendant contends that the trial judge erred in giving him separate and consecutive sentences for the armed robbery and kidnapping of George Bryant.

Defendant concedes in his brief that this Court's decision in State v. Williams, 295 N.C. 655, 249 S.E.2d 709 (1978), is dispositive of this issue. It is not necessary to prove the completed offense of armed robbery as a part of proving the offense of kidnapping. Under G.S. 14-39 it is necessary to prove that the confinement, restraint, or removal is for the purpose of, among other alternatives, "facilitating the commission of any felony." Id.; State v. Dammons, 293 N.C. 263, 237 S.E.2d 834 (1977); see, State v. Fulcher, 294 N.C. 503, 243 S.E.2d 338 (1978); see also, Banghart v. United States, 148 F.2d 521 (4th Cir. 1945) (per curiam), cert. denied, 325 U.S. 887, 65 S.Ct. 1568, 89 L.Ed. 2001 (1945). Thus, there is no violation of the Double Jeopardy Clause of the Fifth Amendment in defendant's having been convicted of and sentenced for both offenses. The situation is analogous to the crime of burglary. An element of burglary is that the defendant intended to commit a felony at the time of the breaking and entering. The defendant may also be convicted of that felony if he in fact commits it after accomplishing the breaking and entering with that intent.

Defendant also maintains that the consecutive sentences imposed in this case which make him eligible for parole only after thirty-two years constitute cruel and unusual punishment.

All of the sentences imposed were within statutory limits. We have held that sentences that are within the statutory limits and impose consecutive sentences do not constitute cruel and unusual punishment. State v. Mitchell, 283 N.C. 462, 196 S.E.2d 736 (1973), and cases cited therein; State v. Bruce, 268 N.C. 174, 150 S.E.2d 216 (1966). This assignment of error is overruled.

By his eleventh assignment of error, defendant contends that since he asserted the defense of duress he was at most guilty of aiding and abetting and it was error for the trial judge to charge on acting in concert with respect to all of the crimes charged. There is evidence that the defendant was present at the scene of the crimes and, pursuant to a common plan or purpose to commit those crimes, acted together with another who performed the acts necessary to constitute the crimes charged. Thus, the trial judge properly instructed on acting in concert. State v. Williams, 299 N.C. 652, 263 S.E.2d 774 (1980); State v. Joyner, 297 N.C. 349, 255 S.E.2d 390 (1979). This assignment of error is overruled.

By his sixth, seventh and ninth assignments of error, defendant contends that his motions for nonsuit, judgment notwithstanding the verdict, arrest of judgment, and for a new trial should have been granted because the evidence is insufficient to show that the crime of armed robbery was in fact committed and that if it was, the defendant did not participate in it.

As held above, the trial judge properly instructed on acting in concert with respect to the crime of armed robbery. State v. Williams, supra; State v. Joyner, supra. Defendant further argues that no armed robbery was committed because no threats or requests for money were made to the victim before the money was taken. The victim was shot first and then his money was stolen. This contention is devoid of merit.

George Bryant's personal property was taken from his person without his consent by violent means with the intent to steal. This is the definition of robbery. State v. Bailey, 278 N.C. 80, 178 S.E.2d 809 (1971), cert. denied, 409 U.S. 948, 93 S.Ct. 293, 34 L.Ed.2d 218 (1972). In addition, a firearm was used thus making the crime armed robbery. The elements of violence and taking were so joined in time and circumstances in one continuous transaction amounting to armed robbery as to be inseparable. State v. Lilly, 32 N.C.App. 467, 232 S.E.2d 495, cert. denied, 292 N.C. 643, 235 S.E.2d 64 (1977). These assignments of error are overruled.

By his second and fourth assignments of error, defendant contends that it was error to allow a victim's clothing to be introduced into evidence since a sufficient chain of custody was not established and that it was error to admit a certain hearsay statement.

In order to be admitted into evidence, real evidence, such as the clothing in this case, must be authenticated as the same objects involved in the incident and it must be shown that the objects have undergone no material change in condition since the incident. State v. Harbison, 293 N.C. 474, 238 S.E.2d 449 (1977). Trial judges must exercise sound discretion in making these determinations. Id.

The clothing was properly admitted into evidence. Victim identified the clothing in court as the clothing that he was wearing on the evening of 20 May 1979. He stated that the clothing was "now bloody and dirty." This was consistent with his testimony that he had been shot and thrown out of a car into a ditch. It was error to allow a police officer to testify that he received the articles of clothing from an emergency room nurse who told him that she had received the clothing from the victim. This was a hearsay statement offered to prove the truth of the matter asserted in the statement. Nevertheless, its admission was not prejudicial error because the victim had already identified the articles of clothing as those that he was wearing that night and the exhibits had already been properly admitted into evidence. These assignments of error are overruled.

By his third assignment of error, defendant contends that the trial judge erred in admitting photographs of the crime scene into evidence. The photographs were properly authenticated. The jury should be instructed to consider photographs for illustrative purposes only; however, where the defendant does not request that the limiting instruction be given, as he did not in this case, it is not error when the instruction is not given. State v. Brower, 289 N.C. 644, 224 S.E.2d 551 (1976). This assignment of error is overruled.

By his first assignment of error, defendant maintains that the trial judge erred in allowing George Bryant to testify that he thought he was "going to die the whole time." Bryant had earlier testified that while he was tied up in his apartment he thought he was going to be killed and that after he was shot he was in a great deal of pain and had difficulty breathing. Since this substantially similar testimony was admitted without objection, this assignment of error is without merit, 1 Stansbury's N.C. Evidence § 30 (Brandis Rev.1973) and cases cited therein, and is overruled.

By his fifth assignment of error, defendant argues that it was error to restrict his cross-examination of Jimmy Uzzell. Defendant's theory is that Uzzell did not state to police officers on the night the crimes were committed that the defendant had a gun. He realized after a conference with the district attorney that it would strengthen the case against the defendant if Uzzell testified that the defendant had a gun on that night. Therefore, he so testified.

This theory was fully explored during the course of the trial. Uzzell testified that he thought the defendant hit him over the head with a gun and that he told a police officer on the night it happened that the defendant had a gun. Officer Whaley testified that Uzzell said he had been hit over the head several times and that he had seen the defendant with a gun on previous occasions but Uzzell did not tell him that night that defendant had a gun on 20 May 1979. Officer Uzzell testified that he interviewed George Bryant and Jimmy Uzzell on 20 May 1979 and he did not recall either of them saying that the defendant had a gun. Concerning the meeting in the district attorney's office, Officer Whaley testified that George Bryant stated that the defendant had a gun but that Jimmy Uzzell stated that the defendant did not have a gun. Since the jury was made fully aware of all the relevant facts concerning defendant's theory on this point, this assignment of error is overruled.

By his eighth assignment of error, defendant contends that testimony regarding his good character as evidence that he did not commit the crimes charged was improperly restricted.

A defendant is permitted to introduce evidence of his own good character as substantive evidence of his innocence. 1 Stansbury's N.C. Evidence § 104 (Brandis Rev.1973) and cases cited therein. When such evidence of good character is offered as evidence of a person's conduct on a particular occasion, it may be proved by reputation evidence but not by specific acts. Specific acts may be asked about on cross-examination to test the witness' knowledge of the reputation of the person in question. Stansbury's, supra, §§ 110-111 and cases cited therein.

Defendant testified in general terms regarding his volunteer work for the Congress of Black Awareness in Wayne County. It was not error to refuse to allow him to testify as to a specific act he performed concerning that work (his participation in Black Family Day in August 1978) as evidence of his good character in order to show that he did not commit the crimes charged. State v. Vaughn, 296 N.C. 167, 250 S.E.2d 210 (1978). This assignment of error is overruled.

Defendant received a fair trial free from prejudicial error. The convictions and sentences are affirmed because in the trial we find

NO ERROR.

BROCK, J., did not participate in the consideration or decision of this case.