State v. Kearns , 27 N.C. App. 354 ( 1975 )

219 S.E.2d 228 (1975) 27 N.C. App. 354

STATE of North Carolina
v.
Percy Lee KEARNS.

No. 7520SC401.

Court of Appeals of North Carolina.

November 5, 1975.

Atty. Gen. Rufus L. Edmisten by Associate Atty. Robert P. Gruber, Raleigh, for the State.

Henry T. Drake, Raleigh, for defendant-appellant.

CLARK, Judge.

Defendant's motion that the judgment in Case No. 74CR2671 be arrested is based on the contention that the felonious assault for which he was indicted and assault with a deadly weapon inflicting serious injury for which he was convicted are lesser included offenses of armed robbery for which he was indicted and convicted in Case No. 74CR2670. The contention is without merit because the crime of armed robbery includes an assault on the person with a deadly weapon, but it does not include the additional elements of (1) intent to kill or (2) inflicting serious injury. So the conviction of armed robbery did not establish defendant's guilt of assault with a deadly weapon inflicting serious injury. State v. Richardson, 279 N.C. 621, 185 S.E.2d 102 (1971); State v. Stepney, 280 N.C. 306, 185 S.E.2d 844 (1971).

The defendant claimed the defense of coercion. He testified that just prior to the robbery, while he was driving the car to the store, Larry Johnson had a pistol and stated that "all of them were going to be in it or he'd shoot them." The trial judge stated the doctrine of coercion and placed the burden with the State. Defendant assigns as error the charge of the court relating to coercion in that there was no application of the law to the evidence.

Trial judges may find guidance for charging on the doctrine of coercion in State v. Sherian, 234 N.C. 30, 34, 65 S.E.2d 331, 333 (1951), wherein Devin, Judge, wrote:

"The defendants were entitled to have the court instruct the jury to the effect that if, upon a consideration of all the evidence, it failed to find beyond a reasonable doubt, that the assistance rendered to James Diggs, after he committed the felonious assault upon officer Howell, was rendered with the willful and felonious intent to aid Diggs to escape arrest and punishment, and not under compulsion or through fear of death or great bodily harm, it should return a verdict of not guilty."

It is the general rule that in order to constitute a defense to a criminal charge other than taking the life of an innocent person, the coercion or duress must be present, imminent or impending, and of such a nature as to induce a well-grounded apprehension of death or serious bodily harm if the act is not done. Furthermore, the doctrine of coercion cannot be invoked as an excuse by one who had a reasonable opportunity to avoid doing the act without undue exposure to death or serious bodily harm. Annot. 40 A.L.R. 2d 908 (1955).

In this case the defendant was convicted as a principal in the second degree in that he drove the car to the scene, waited outside the store while his brother and Larry Johnson committed the armed robbery, and drove the car away after the robbery. The jury found that he aided and abetted the perpetrators. His claim of coercion was based on threat made to him by Johnson as he drove the car to the scene; Johnson then left the car and entered the store. Defendant testified, "I don't really know why I didn't leave from the store while they went into it." At this time the defendant was in control of the car and had a reasonable opportunity to leave the scene and to avoid aiding and abetting the perpetrators. Under these circumstances, the doctrine of coercion was not applicable, and the trial judge was under no duty to charge on this doctrine. Assuming that there was a failure to apply the law of coercion to the evidence, such failure was not error.

We have carefully examined the other assignments of error and find that the defendant had a fair trial free from prejudicial error.

No error.

MORRIS and VAUGHN, JJ., concur.