State v. Lock , 284 N.C. 182 ( 1973 )

200 S.E.2d 49 (1973) 284 N.C. 182

STATE of North Carolina
v.
Jeremiah LOCK, alias Jerry Lock.

No. 6.

Supreme Court of North Carolina.

November 14, 1973.

Robert Morgan, Atty. Gen. by Ralf F. Haskell, Assoc. Atty. Gen., Raleigh, for the State.

John G. Shaw, Fayetteville, for defendant.

HIGGINS, Justice.

The defendant, by exceptive assignments supported by discussion in the brief and by oral argument, contends the court committed six prejudicial errors of law: (1) By admitting the evidence of James Lampros identifying the defendant as one of the persons who entered the store and committed the offenses charged; (2) by permitting Officer Banks to testify that the defendant made the oral admissions and signed the written confession introduced in evidence by the State; (3) and (4) by overruling defendant's motion to dismiss at the close of the State's evidence and renewed after the defense rested without offering evidence; (5) by charging the jury with respect to the taking of $61.00 as an element of the robbery; and (6) by accepting the verdict.

Mr. Lampros, a witness for the State, testified that on August 10, 1972, the defendant and three other males entered the shop operated by him and his wife, Christine Lampros. They remained for a few minutes, made two small purchases, and then left together. They returned in about five minutes. One of the men drew a pistol and began shooting, killing Mrs. Lampros and severely wounding Mr. Lampros. Mr. Lampros testified that he had seen one of the parties many times. He knew his name as "Jerry" but did not know his last name. He gave the officers a detailed description of Jerry, his race, age group, and "characteristics." In order to further identify Jerry the officers selected the unmarked photographs of ten males of similar race, age, and characteristics of Jerry as described by the witness. The witness immediately identified the photograph of the defendant and recognized it as a photograph of Jerry.

The foregoing was developed in the evidence on the voir dire at the conclusion of which the court concluded that the use of the photographs was not prejudicially suggestive and permitted the witness to identify the defendant before the jury as one of the robbers. The trial court found the identification of the defendant by Mr. Lampros was independent of and not influenced by the view of the photographs. The finding was supported by the evidence and was conclusive on appeal. Simmons v. United States, 390 U.S. 377, 88 S. Ct. 967, 19 L. Ed. 2d 1247 (1968); Stovall v. Denno, 388 U.S. 293, 87 S. Ct. 1967, 18 L. Ed. 2d 1199 (1967); State v. McPherson, 276 N. C. 482, 172 S.E.2d 50, and cases cited therein.

When the State sought to introduce the defendant's in-custody confession, objection precipitated another voir dire. Officer Banks testified he gave the defendant the warnings and cautions, specifically stating them, which have been held by the United States and state courts a prerequisite to their introduction in evidence. The defendant signed the written waiver of counsel, freely recited the details of the robbery and the shooting of both Mr. and Mrs. Lampros, the taking of the money from the cash register, and the division among the participants whom the defendant named.

The defendant testified on the voir dire admitting making the confession and signing the written report of it. However, he testified, "I was afraid he was going to grab me and I got tired of him you know scarring me up and made the statement."

The testimony of Officer Banks, corroborated by the defendant's signed statement, was sufficient to support the court's findings that the admissions were free and voluntary and admissible in evidence. Of course, the defendant contended the writing was signed involuntarily. The conflicting evidence required decision by the trial judge. State v. Murphy, 280 N.C. 1, 184 S.E.2d 845; State v. Haskins, 278 N.C. 52, 178 S.E.2d 610; State v. Hill, 276 N.C. 1, 170 S.E.2d 885; State v. Wright, 275 N.C. 242, 166 S.E.2d 681; State v. Gray, 268 N.C. 69, 150 S.E.2d 1; Miranda v. Ariz., 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). The objections to the admission of evidence and to its sufficiency to go to the jury are not sustained. State v. Roseman, 279 N.C. 573, 184 S.E.2d 289; State v. Goines, 273 N.C. 509, 160 S.E.2d 469; State v. Stephens, 244 N.C. 380, 93 S.E.2d 431. Hence Assignments of Error Nos. 3 and 4 are not sustained.

The defendant contends the court committed error in the charge by referring to the taking and carrying away of money as an element of the robbery. The reason assigned is, "[T]here was no evidence of this taking." The robbery indictment charged the taking and carrying away of $61.00. The defendant's confession disclosed that he, or one of his companions, took the bills from the cash register and thereafter, he and his companions divided the money taken from the cash register. The amount of money involved in an armed robbery is immaterial. The attempt to rob with a dangerous weapon is a felony. In common law robbery a taking is necessary, but in armed robbery either the taking or the attempt to take will support a verdict under G.S. § 14-87. State v. Owens, 277 N.C. 459, 178 S.E.2d 226; State v. Parker, 262 N.C. 679, 138 S.E.2d 496. The defendant's objection to the charge is not sustained.

The defendant challenged the validity of the verdicts on the ground that one juror on the poll reported her findings that the defendant was guilty of murder in the first degree "according to the law." The court instructed the clerk to repeat the poll at which the juror repeated that her verdict was guilty of murder in the first degree and that she still assented thereto. The verdict of the jury was then received by the court and recorded in its minutes. The foregoing, with respect to the verdict, was a full compliance with the requirements of the law. State v. Best, 280 N.C. 413, 186 S.E.2d 1; State v. Sanders, 280 N.C. 81, 185 S.E.2d 158; Davis v. State, 273 N.C. 533, 160 S.E.2d 697. The objection to the verdict on the murder charge is not sustained.

This Court has examined and found without merit all of defendant's assignments of error. Nevertheless, this Court, especially in cases involving grave consequences, carefully examines the record of the cases on appeal and ex mero motu notes all legal defects appearing thereon. Examination of the indictments, the verdicts (in the light of the court's charge) and the judgments discloses that the defendant was convicted of murder in the first degree in Case No. 72 CR 23379 on the ground the killing of Mrs. Lampros therein charged was committed in the course of the armed robbery charged in Case No. 72 CR 23381. The conviction on the armed robbery charge, treated by the State as an element in the charge of murder in the first degree, cannot be sustained. In State v. Carroll, 282 N.C. 326, 193 S.E.2d 85, this Court disposed of a similar case in this manner:

"It appears conclusively that the armed robbery charges were proved as essential elements in the capital offense of murder in the first degree upon which the defendants were convicted. The robberies, therefore, became a part of and were merged into the murder charges. Having been so used, the defendants cannot again be charged, convicted and sentenced for these elements although the robberies constituted crimes within themselves. The following is quoted from State v. Peele, 281 N.C. 253, 188 S.E.2d 326:

"``Examination of the indictments, verdicts, and judmgents disclose that the armed robbery charge was embraced in and made a part of the charge of murder in the first degree. Wharton's Criminal Law and Procedure, Vol. 1, Section 148, states the rule: "It is generally agreed that if a person is tried for a greater offense he cannot be tried thereafter for a lesser offense necessarily involved in, and a part of, the greater, . . ." Many cases recognize and apply the same principle. Among them are State v. Thompson, 280 N.C. 202, 185 S.E.2d 666; State v. Hatcher, 277 N.C. 380, 177 S.E.2d 892; State v. Parker, 262 N.C. 679, 138 S.E.2d 496; State v. Birckhead, 256 N.C. 494, 124 S.E.2d 838; and State v. Bell, 205 N.C. 225, 171 S.E. 50.'"

On the charge of armed robebry the verdict is set aside and the judgment vacated. On the charges of murder in the first degree of Mrs. Lampros and the assault with a deadly weapon on Mr. Lampros, we find no error.

In No. 72 CR 23379 — No error.

In No. 72 CR 23380 — No error.

In No. 72 CR 23381 — Verdict set aside; judgment vacated.