State v. Edwards , 49 N.C. App. 547 ( 1980 )

272 S.E.2d 384 (1980)

STATE of North Carolina
v.
Dennis Edwin EDWARDS.
STATE of North Carolina
v.
Richard Keith NANCE.

No. 8013SC595.

Court of Appeals of North Carolina.

December 2, 1980.

Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. Charles M. Hensey, Raleigh, for the State.

Hester, Johnson & Johnson by W. Leslie Johnson, Jr., and Moore & Melvin by David Garrett Wall, Elizabethtown, for defendants-appellants.

VAUGHN, Judge.

Defendant Edwards raises many questions for review, but his basic contentions concern the admission of Jessie Singletary's identification testimony, the District Attorney's questioning about his prior criminal record and the admission of a copy of that record during sentencing. Defendant Nance questions the admissibility of lay testimony about the working condition of brakes in a car, the court's failure to summarize his evidence and contentions adequately and its denial of his motion to arrest judgment in the conviction for assault with a deadly weapon inflicting serious bodily injury. Both defendants argue that their motions to dismiss should have been allowed and that the many alleged errors require reversal or a new trial. We disagree.

Defendant Edwards contends that the court improperly overruled his objection to the following questioning of Jessie Singletary on direct examination.

Q. Did you see him [the man in her house] walk at this time?

A. Yes.

Q. What did you observe about the way he walked?

MR. JOHNSON: OBJECTION.

COURT: OVERRULED.

MR. JOHNSON: I would like to be heard.

COURT: You would like to be heard on the way he walked?

MR. JOHNSON: Yes, sir.

COURT: DENIED. Proceed.

Q. What did you notice about the way he walked?

A. There was a limp in his walk.

MR. JOHNSON: OBJECTION AND MOTION TO STRIKE.

COURT: OVERRULED AND DENIED.

Defendant argues that the court should have conducted a voir dire hearing before this testimony was admitted. The trial court ordinarily should conduct a voir dire examination, even upon a general objection, to determine the admissibility of identification testimony. State v. Stepney, 280 N.C. 306, 185 S.E.2d 844 (1972); State v. Byrd, 40 N.C.App. 172, 252 S.E.2d 279, cert. denied, 298 N.C. 301, 259 S.E.2d 915 (1979). Nevertheless, we fail to see how defendant was prejudiced by the court's initial failure to conduct a voir dire. The witness was not identifying defendant Edwards in particular but was merely describing in general the man who assaulted her in the house. Moreover, a voir dire hearing was later conducted in which defendant had a full opportunity to challenge and discredit the witness's identification. In these circumstances, any error concerning the timing of the voir dire must be deemed harmless. State v. Boykin, 298 N.C. 687, 259 S.E.2d 883 (1979); State v. Martin, 29 N.C.App. 17, 222 S.E.2d 718, review denied, 290 N.C. 96, 225 S.E.2d 325 (1976).

Defendant Edwards next contends that Mrs. Singletary's identification should have been suppressed because it was tainted by an illegal and impermissibly suggestive pretrial identification procedure. The court, however, held to the contrary and found from the evidence

that the witness, Mrs. Singletary, observed at close range and in adequate light in her home a man wearing a mask who limped, not noting his clothing but noting his size and build. That she observed the man for some minutes, was assaulted by him. That the defendant Dennis Edwin Edwards was brought by officers before the witness in her back yard and among a crowd of people some three to four hours later. That she observed the defendant walk, observed his size and build, and responding to an officer's inquiry identified defendant as the man seen earlier in her house. The confrontation was not impermissibly suggestive. The witness' identification was based on her observation.

It is axiomatic that the findings entered on voir dire are conclusive and binding on appeal if they are supported by competent evidence in the record. State v. Gray, 268 N.C. 69, 150 S.E.2d 1 (1966); State v. Baker, 34 N.C.App. 434, 238 S.E.2d 648 (1977). In addition, there is a presumption that the judge disregards incompetent evidence in making such findings. 1 Stansbury, N.C. Evidence § 4a (Brandis rev. 1973).

We believe that the witness had a sufficient opportunity to view her attacker in the house while he walked toward her, attempted to shoot her at a very close range, and then beat her about the head. She returned home from the hospital a few hours after the crime. Her yard was full of many people and police. She recognized defendant Nance as the man in the parked car. She later identified defendant Edwards as the man that had attacked her in the house after observing him in the yard for ten minutes, while he stood in a group of "law officers, neighbors and friends." She testified that Edwards had similar physical characteristics, including the distinguishing feature of a limp, as her attacker. In short, the witness made a positive pretrial and in-court identification of defendant Edwards based on her personal observations during the assault. On cross-examination of Mrs. Singletary, defendant tended to impeach the reliability of her identification. The jury could properly weigh this evidence in its deliberations, but the evidence did not require the judge to exclude Mrs. Singletary's identification testimony as a matter of law. The court's conclusion that the pretrial procedures were not impermissibly suggestive is supported by ample competent evidence; therefore, it is binding on appeal. State v. Patton, 45 N.C.App. 676, 263 S.E.2d 796 (1980).

Counsel seems to assert an additional error with regard to the pretrial identification procedure: "the defendant had a right to counsel at the time he was paraded before the prosecuting witness, alone and in custody ...." Any question about a violation of defendant's right to counsel should have been raised during trial, and we cannot find any mention of it in the record. It suffices to say, however, that a defendant has a constitutional right to presence of counsel during a pretrial identification only when adversary judicial criminal proceedings have been instituted against him prior to the confrontation. Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972); State v. Henderson, 285 N.C. 1, 203 S.E.2d 10 (1974), death penalty vacated, 428 U.S. 902, 96 S.Ct. 3202, 49 L.Ed.2d 1205 (1976); State v. Puckett, 46 N.C.App. 719, 266 S.E.2d 48, appeal dismissed, 300 N.C. 561, 270 S.E.2d 115 (1980). Edwards had not been arrested at the time of the confrontation. His right to counsel was not, therefore, violated when the prosecuting witness identified him in the yard because he had not yet been accused in a judicial sense.

Defendant Edwards also claims that the District Attorney asked prejudicial and inflammatory questions in cross-examining him about his criminal record. On direct examination, defendant testified about his convictions for breaking and entering, larceny and two simple assaults. Defendant was then cross-examined as follows:

Q. Let me ask you this: Now, you told Mr. Johnson you have only been convicted of breaking and entering, is that right?

A. And simple assault.

Q. All right, was that in the house of a lady "that you had earlier cased out"?

A. No, sir.

MR. JOHNSON: OBJECTION.

COURT: OVERRULED.

A. In 1977 I was convicted of assault with a firearm. In 1976 they locked me up but they broke it down because it was not true.

Q. Tell me whether or not you were convicted of using a firearm, trying to kill someone?

A. No, sir.

MR. JOHNSON: OBJECTION.

COURT: OVERRULED.

There is nothing in the record to show that these questions were not asked in good faith, and we must defer to the judge's discretion in permitting the questions since there is no clear showing of abuse. State v. McLean, 294 N.C. 623, 242 S.E.2d 814 (1978). Moreover, it is noteworthy that defendant testified about an additional conviction for assault with a firearm in 1977 which he had failed to mention during his direct examination. Certainly, this was relevant impeachment evidence. Thus, it was not only proper, it was also prudent for the prosecutor to attempt to elicit further details about defendant's prior convictions. 1 Stansbury, N.C. Evidence § 112 (Brandis rev. 1973).

Defendant Edwards has also failed to show prejudicial error in the admission of a copy of his U.S. Department of Justice criminal record during the sentencing hearing. Clearly, it was within the judge's discretion to permit the introduction of actual evidence of defendant's prior criminal record. State v. Hester, 37 N.C. App. 448, 246 S.E.2d 83 (1978); State v. Hegler, 15 N.C.App. 51, 189 S.E.2d 596, cert. denied, 281 N.C. 761, 191 S.E.2d 358 (1972). Defendant will not now be permitted to complain on appeal, on the basis of a general objection, when he did not specifically challenge the authenticity or accuracy of the record during the sentencing hearing and failed to present any evidence whatsoever that the copy was false or irregular.

We now turn our attention to the alleged errors asserted by defendant Nance. Nance told officers shortly after the perpetration of the crime that he was parked near the Singletary residence because of brake trouble and that he had sent Joe, a fellow riding with him, to get some brake fluid. Deputy Prevatte testified that he checked the brakes on the car later, and they worked properly. Though defendant objected to this testimony, he has not made any argument or cited any authorities in his brief pertaining to these objections. The exceptions are, therefore, deemed abandoned on appeal. App.R. 28(b)(3). Defendant does, however, present argument in his brief concerning objections to similar testimony by another deputy which he contends should have been sustained.

Deputy Little testified that he checked the brakes after Nance was in custody. He stated that the brakes worked properly and that there was sufficient brake fluid in the car. Nance contends that this testimony should not have been admitted because Little was not an expert in automobile mechanics. Defendant only interposed a general objection and did not make a special request to have the deputy qualified as an expert. This was insufficient to preserve an exception for our review. "Objection to a witness' qualifications as an expert is waived if not made in apt time on this special ground, even though general objection is taken." Paris v. Aggregates, Inc., 271 N.C. 471, 481, 157 S.E.2d 131, 138 (1967); 1 Stansbury, N.C. Evidence § 133, at 431 (Brandis rev. 1973). The deputy was also permitted to testify on this same subject on redirect examination without objection. Thus, even if a general objection had been sufficient, its benefit was lost when substantially the same evidence was thereafter admitted without renewed objection. Power Co. v. Winebarger, 300 N.C. 57, 265 S.E.2d 227 (1980); 1 Stansbury, N.C. Evidence § 30 (Brandis rev. 1973).

Defendant Nance also claims that the judge failed to summarize his evidence and contentions adequately in the charge to the jury. The trial judge is only required to summarize the evidence in a manner sufficient to explain the law arising therefrom. G.S. 15A-1232. We hold that the summary is fair and adequate. In addition, the judge is not required to state the contentions of the parties even when requested. Here, neither side's contentions were given in the instructions, and there is simply nothing to complain about. Moreover, no exceptions were preserved for review by timely objections at trial affording the judge an opportunity to correct any possible errors. State v. Virgil, 276 N.C. 217, 172 S.E.2d 28 (1970); State v. Robinson, 40 N.C.App. 514, 253 S.E.2d 311 (1979).

Defendant Nance questions the propriety of his convictions for armed robbery in violation of G.S. 14-87 and assault with a deadly weapon inflicting serious injury not resulting in death in violation of G.S. 14-32. He contends that simultaneous convictions on these charges violate the constitutional prohibition against double jeopardy for the same offense because a violation of G.S. 14-32 is a lesser included offense of G.S. 14-87. We must disagree. An assault with a deadly weapon is a lesser included offense of armed robbery. This is obviously true because it would be impossible to commit a robbery with a firearm without assaulting someone with a deadly weapon. Nevertheless, it does not follow that felonious assault with a deadly weapon inflicting serious injury is also a lesser included offense of armed robbery. Certainly, it is possible to perpetrate a robbery with a firearm without ever actually shooting someone or, as in this case, using the gun to beat someone about the head. The protection against double jeopardy does not attach unless all of the essential elements of one of the offenses are also included in the elements of another offense for which the defendant has been convicted. The issue raised by defendant Nance was specifically addressed and decided in State v. Richardson, 279 N.C. 621, 628, 185 S.E.2d 102, 107-08 (1971), where the Court stated:

If a person is convicted simultaneously of armed robbery and of the lesser included offense of assault with a deadly weapon, and both offenses arise out of the same conduct, as in State v. Parker, 262 N.C. 679, 138 S.E.2d 496 (1964), and State v. Hatcher, 277 N.C. 380, 177 S.E.2d 892 (1970), and separate judgments are pronounced, the judgment on the separate verdict of guilty of assault with a deadly weapon must be arrested. In such case, the armed robbery is accomplished by the assault with a deadly weapon and all essentials of this assault charge are essentials of the armed robbery charge. However, if a defendant is convicted simultaneously of armed robbery and of felonious assault under G.S. 14-32(a), neither the infliction of serious injury nor an intent to kill is an essential of the armed robbery charge. A conviction of armed robbery does not establish a defendant's guilt of felonious assault.

See also State v. Dammons, 293 N.C. 263, 237 S.E.2d 834 (1977). Defendant Nance could be convicted of both charges without offending the notion of double jeopardy, and it was not error for the judge to deny his motion to arrest judgment on this ground.

Both defendants contend that their motions to dismiss the armed robbery charge should have been granted. It is elementary that a motion to dismiss should only be granted when the State has failed to present sufficient evidence of the essential elements of the crime charged, considering all the evidence in the light most favorable to the State with the benefit of every reasonable inference of fact arising therefrom. State v. Easterling, 300 N.C. 594, 268 S.E.2d 800 (1980); State v. Smith, 40 N.C.App. 72, 252 S.E.2d 535 (1979). Defendants argue that a violation of G.S. 14-87 could not be proven because the State could not show that anything was taken by force from the presence of Mrs. Singletary with the use of a firearm. We disagree.

The State's evidence tended to show that Mrs. Singletary entered her house about 11:30 a. m. through a side door and immediately noticed that cabinet drawers and doors were open. She did not hear anything, but she went to the phone to call her son. As she was talking on the phone, a masked man carrying a pistol came out of the bedroom down the hall toward her. The man said he was going to kill her. She knocked the gun up as it fired, and he began to beat her with it. She managed to escape out of the house. When she returned from the hospital, she went into the bedroom with police. She discovered that a window had been broken and that several items of personal property were missing. Upon this evidence, it was reasonable to infer that Edwards had attempted to frighten Mrs. Singletary and that, as soon as she left the house, he went back into the bedroom and took property which did not belong to him.

In urging dismissal, defendant Nance relies on and cites the case of State v. Powell, 299 N.C. 95, 261 S.E.2d 114 (1980). Powell is inapposite here. In Powell, the Court upheld the defendant's convictions for first degree murder and rape, but reversed the denial of a motion to dismiss the armed robbery charge because there was no evidence, and no reasonable inference to be adduced therefrom, that the defendant took objects from the victim by force while she was alive. The evidence merely indicated "that defendant took the objects as an afterthought once the victim had died." 299 N.C. at 102, 261 S.E.2d at 119. The instructive case is State v. Clemmons, 35 N.C.App. 192, 241 S.E.2d 116, review denied, 294 N.C. 737, 244 S.E.2d 155 (1978). In Clemmons, the co-owner of a store went into an adjoining room after being threatened with force and was shot by the unidentified robber. The other co-owner then gave the money to the defendant. This Court held that the evidence supported a conviction for robbery with a firearm.

The word "presence" must be interpreted broadly and with due consideration to the main element of the crime-intimidation or force by the use or threatened use of firearms. "Presence" here means a possession or control by a person so immediate that force or intimidation is essential to the taking of the property. And if the force or intimidation by the use of firearms for the purpose of taking personal property has been used and caused the victim in possession or control to flee the premises and this is followed by the taking of the property in a continuous course of conduct, the taking is from the "presence" of the victim.

We construe the term "presence" broadly and hold that the evidence against defendants was sufficient to support convictions for armed robbery. See State v. Brown, 300 N.C. 41, 265 S.E.2d 191 (1980); State v. King, 299 N.C. 707, 264 S.E.2d 40 (1980).

Defendant Nance additionally contends that the court should have dismissed the charge against him as an aider and abettor. To support such a conviction, the State's evidence must show the existence of the following three elements: (1) defendant's actual or constructive presence during the crime; (2) defendant's intent to aid in the commission of the offense if necessary; and (3) the communication of defendant's intent to assist to the actual perpetrator. State v. Sanders, 288 N.C. 285, 218 S.E.2d 352 (1975); see, e. g., State v. Corbin, 48 N.C.App. 194, 268 S.E.2d 260 (1980).

The State's evidence showed that defendant Nance was parked on the road near woods leading to Mrs. Singletary's house at the time of the crime. The car belonged to defendant Edwards. An officer had seen the car parked at the same location two weeks earlier. In his statement to Deputy Little, Nance admitted that he had lied about the brake problem and knew about the "hit" at Mrs. Singletary's. The hatchet found in the bedroom, the ladder outside the window, and the hatchet holster and belt belonged to Nance. Viewed in the light most favorable to the State, this evidence supports the conclusion that Nance communicated to Edwards his intent to aid him by driving the car and waiting for his return, by supplying the tools used to gain entry into the building and by remaining close enough to the scene to render assistance if it became necessary. See State v. Sanders, supra ; State v. Gregory, 37 N.C.App. 693, 247 S.E.2d 19 (1978). We affirm the denial of defendant Nance's motion to dismiss the charge for aiding and abetting.

We have carefully reviewed defendants' remaining assignments of error concerning the manner in which the verdicts were taken and recorded and the denial of various post-verdict motions. These assignments lack merit, fail to disclose any prejudicial error and are expressly overruled.

No error.

ROBERT M. MARTIN and WELLS, JJ., concur.