State v. Walker , 6 N.C. App. 447 ( 1969 )

170 S.E.2d 627 (1969) 6 N.C. App. 447

STATE of North Carolina
v.
Phillip M. WALKER and Sonny D. Fleeman.

No. 6918SC308.

Court of Appeals of North Carolina.

November 19, 1969.

Atty. Gen. Robert Morgan, Deputy Atty. Gen. Harrison Lewis, Trial Atty. William F. Briley, Raleigh, and Staff Atty. James E. Magner, Raleigh, for the State.

John F. Comer, Comer & Harrelson, Greensboro, for defendant appellant Walker.

J. C. Barefoot, Jr., Greensboro, for defendant appellant Fleeman.

FRANK M. PARKER, Judge.

Defendants assign as error the denial of their motions for separate trials and the allowance of the State's motion to consolidate all cases against both defendants for purposes of trial. The two defendants were charged in separate bills of indictment with identical crimes. The offenses charged were so connected and tied together in time, place, and circumstances as to make one continuous criminal episode. In such cases there is statutory authority for a consolidation. G.S. § 15-152; State v. Hamilton, 264 N.C. 277, 141 S.E.2d 506. Moreover, the motions were addressed to the sound discretion of the trial judge. State v. Yoes, 271 N.C. 616, 157 S.E.2d 386; State v. Wright, 270 N.C. 158, 153 S.E.2d 883; State v. Combs, 200 N.C. 671, 158 S.E. 252. There being nothing in the record to suggest abuse of discretion, these assignments of error are without merit and are overruled.

Defendant Walker assigns as error the trial court's allowing introduction in evidence over his objection of plaster casts of tire tracks made by an identification specialist employed by the Greensboro Police Department. These casts were made only a few hours after the crime had been committed; they were obtained from fresh tire tracks found in the alleyway behind the building which had been broken into and from which the safe had been stolen; and there was evidence that the tire tracks from which the casts were made corresponded in a number of respects with the treads on the tires found on defendant Walker's car when it was impounded on the same night the crime was committed. Thus, the jury could legitimately find that the tire tracks: (1) were found at or near the place of the crime, (2) were made at the time of the crime, and (3) corresponded to the tires on defendant Walker's car at the time of the crime. Therefore, the evidence objected to met the three requirements set out in State v. Palmer, 230 N.C. 205, 52 S.E.2d 908, and there was no error in allowing the casts to be introduced into evidence.

There was also no error in the trial court's allowing in evidence photographs of the tire tracks found at the scene of the crime and photographs of the tires on defendant Walker's car. These photographs were offered in connection with testimony of a police officer concerning these tire tracks and were admitted over general objection. They were property admissible for the limited purpose of enabling the witness the better to explain, and the court and jury the better to understand and interpret, his testimony. When a general objection is interposed and overruled it will not be considered reversible error if the evidence is competent for any purpose. State v. Casper, 256 N.C. 99, 122 S.E.2d 805; Stansbury, N.C. Evidence 2d, § 27, p. 52.

Defendant Walker assigns as error the allowing into evidence of articles of clothing worn by him at the time of his arrest. He was arrested at approximately 3:30 a.m. on 10 December 1966, which was about three hours after the time when the crimes with which he was charged had been committed. He was taken to jail and his clothing removed in order that it might be sent to the F.B.I. headquarters for examination. The clothing of his codefendant, Fleeman, and of the third occupant of his car, Kennett, was similarly removed and inspected. This examination revealed the presence on the clothing worn by all three occupants of the car of safe insulation of the type used in Century safes, the same type of safe which had been stolen and broken open.

The case of Robinson v. United States, 109 U.S.App.D.C. 22, 283 F.2d 508, presented a factual situation closely parallel to the facts in the present case. In that case the Court said (page 509):

"Appellants Robinson and Williams complain that their clothing was removed at police headquarters, shortly after their arrest, and was subjected to tests at the laboratories of the Federal Bureau of Investigation. These tests revealed paint chips and other debris corresponding to like materials found at the scene of the burglary, and at a place where a safe stolen from the pharmacy had been opened. We think that this procedure was proper, since probable cause to believe appellants guilty of housebreaking and larceny had already appeared, and appellants were validly under arrest therefor. (Citing cases.)"

We agree with the conclusion of the Court in Robinson v. United States, supra and find no merit in defendant Walker's assignment of error relating to the allowance in evidence of the articles of clothing.

Both defendants assign as error the overruling of their motions for nonsuit as to all of the cases against them. Considering the evidence in the light most favorable to the State, as we are required to do when passing upon a refusal of the trial court to sustain a motion for nonsuit interposed in a criminal case, if the record here discloses substantial evidence of all material elements constituting the offense for which the accused was tried, then this Court must affirm the trial court's ruling. It is immaterial whether the substantial evidence is circumstantial or direct, or a combination of both. State v. Stephens, 244 N.C. 380, 93 S.E.2d 431. In the present case no question has been raised but that the State offered substantial evidence to show that some person or persons committed the crimes of breaking and entering, larceny, and safe cracking. The only question raised by appellants is whether the State's evidence was sufficient to permit the jury to determine that the defendants were the persons who committed the crimes. We think that it was.

The owner testified that the safe was stolen from his premises at some time within the period of one hour following 11:40 p. m. on 9 December 1966. Eyewitness testimony and tire impressions provided evidence from which the jury could legitimately find that defendant Walker's car was at the scene of the crime during this period. The car, with three occupants, was placed by an eyewitness at a point in the neighborhood where the broken safe was later discovered and at a time within approximately two hours after the safe was stolen. Approximately one hour thereafter defendants Walker and Fleeman and their companion Kennett were arrested in the car. All of these events occurred within a three-hour time span and late at night when it would be unusual to engage in casual driving. This evidence tends to show defendants' activity in a time sequence, and at places, closely related to the accomplishment of the criminal acts.

The car was owned by defendant Walker and was being driven by him when defendants were arrested. Cloth fibers found around the window through which entry had been gained to the building from which the stolen safe was taken were of the same type as the fibers in the sweater worn by Kennett, one of the occupants of the car. This evidence tends to show Walker's control of the vehicle used in the crime and tends to show the association of both defendants, Walker and Fleeman, with a participant a short time after the crime was committed.

Safe insulation found on the clothing of all three occupants of the car and in the trunk and interior of the car itself was of a type used in the stolen safe. A special agent assigned to the Washington, D.C. Laboratory of the F.B.I. testified that this insulation was a vermiculite carbonate sand type which in his opinion was not found anywhere except in Century safes and that insulation used by other manufacturers of safes was quite different. Particles of this insulation were found on defendant Walker's shoes and socks and in the pockets and cuffs of his trousers. Particles were also found on defendant Fleeman's shoes, socks, shirt, sweater, sweat shirt and even on his underwear. Paint of the type and color on the stolen safe, as well as particles of safe insulation, were found on tools which were in the trunk of defendant Walker's car at the time he and his codefendant were arrested. A fragment of metal stuck on the door of the stolen safe was found on microscopic examination to match exactly the broken end of a long-handled screw driver which was among those tools. The owner of Stereo Products, Inc., testified there was at least one roll of pennies in the safe; two rolls of pennies were found under the front seat of the car. The three occupants were found to be in possession of cash totaling approximately the amount stolen. Thus, the State's evidence, considered in its totality, does tend to establish a large number of facts which, when fitted together, form a composite picture from which the jury might legitimately identify defendants as the perpetrators of the crimes. In our opinion this evidence was sufficient to require a jury decision on the issue of each defendant's guilt.

Appellants cite cases in which circumstantial evidence was held insufficient to survive a motion for nonsuit and argue that these cases are controlling here. In State v. Burton, 272 N.C. 687, 158 S.E.2d 883, evidence of possession by defendant some three days after a safe had been forced open of tools which had been used to open the safe was held insufficient to be submitted to the jury on the issue of defendant's guilt of safe cracking. In State v. Aycoth, 272 N.C. 48, 157 S.E.2d 655, evidence that defendant remained seated in the passenger's seat in a car while another went into and robbed a store was held insufficient to submit to the jury the issue of defendant's guilt as an aider and abettor in the commission of the armed robbery, there being no evidence that defendant moved from his position in the car, that he observed what was taking place in the store, or that he shared in the proceeds of the robbery. In State v. Shu, 218 N.C. 387, 11 S.E.2d 155, evidence of customary use and possession of an automobile used in commission of a crime was held insufficient to be submitted to the jury, as it raised no more than a suspicion or conjecture that defendant was present or actually participated in the crime. In each of these cases the limited circumstantial evidence tending to link the defendant with the crime for which he was being tried was held not sufficient to be submitted to the jury. In the case before us there is much more. Many circumstances detailed in the evidence in the present case, if considered standing alone, may have been of small moment. When fitted together, however, they complement each other in such manner as to render them sufficiently substantial to require consideration by the jury. It was for the jury to determine what the evidence actually proved or failed to prove. In overruling the motions for nonsuit in the present case, there was no error.

A number of defendants' assignments of error have not been brought forward and discussed in their briefs. These are therefore deemed abandoned. Rule 28 of Rules of Practice in the Court of Appeals.

We have examined the defendants' remaining assignments of error argued in their briefs and which were principally directed to admission of evidence and to portions of the court's charge to the jury, and find therein no prejudicial error.

No error.

MALLARD, C. J., and BRITT, J., concur.