State v. Alexander , 279 N.C. 527 ( 1971 )

184 S.E.2d 274 (1971) 279 N.C. 527

STATE of North Carolina
v.
Rickey Stevenson ALEXANDER and Grady Wilson.

No. 69.

Supreme Court of North Carolina.

November 10, 1971.

Lila Bellar and George S. Daly, Jr., Charlotte, for defendant appellants.

Robert Morgan, Atty. Gen., I. Beverly Lake, Jr., Asst. Atty. Gen., and Ronald M. Price, Raleigh, Staff Atty., for the State of North Carolina.

HUSKINS, Justice:

Defendants' first assignment of error is based on the contention that their warrantless arrest was made without probable cause and therefore illegal.

G.S. § 15-41, in pertinent part, provides: "A peace officer may without warrant arrest a person: * * * (2) When the officer has reasonable ground to believe that the person to be arrested has committed a felony and will evade arrest if not immediately taken into custody." In order to justify an arrest under this section, it is not required that a felony be shown actually to have been committed. It is only necessary that the officer have reasonable ground to believe that such an offense has been committed. State v. Mobley, 240 N.C. 476, 83 S.E.2d 100 (1954). The terms "probable cause," as used in the Fourth Amendment to the Federal Constitution, and "reasonable ground," as used in the foregoing statute, are substantial equivalents having virtually the same meaning. Draper v. United States, 358 U.S. 307, 79 S. Ct. 329, 3 L. Ed. 2d 327 (1959). An arrest without a warrant is based upon probable cause if the facts and circumstances known to the arresting officer warrant a prudent man in believing that a felony has been committed and the person to be arrested is the felon. McCray v. Illinois, 386 U.S. 300, 87 S. Ct. 1056, 18 L. Ed. 2d 62 (1967). "Probable cause for an arrest has been defined to be a reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious man in believing the accused to be guilty. * * * To establish probable cause the evidence need not amount to proof of guilt, or even to prima facie evidence of guilt, but it must be such as would actuate a reasonable man acting in good faith. One does not have probable cause unless he has information of facts which, if submitted to a magistrate, would require the issuance of an arrest warrant." 5 Am.Jur.2d, Arrest § 44 (1962); State v. Harris, 279 N.C. 307, 182 S.E.2d 364 (1971).

Here, the police had a description of defendants, including their height, weight, estimated age, clothing, color and complexion. Defendant Wilson had been identified from photographs by two eyewitnesses and one informer. Furthermore, a second informer whose information had led to the conviction of seven persons within the past two years, had told Sergeant Smith that defendants and William Gill, Jr., were the three individuals involved in this robbery. He told the officer how he came into possession of this information and how it was revealed to him. Manifestly, the totality of these facts and circumstances would warrant a prudent man in believing that the felony of armed robbery had been committed at the Carolina Pharmacy and that these defendants participated in commission of the crime. We hold that the officers acted on reasonable ground and with probable cause. State v. Roberts, 276 N.C. 98, 171 S.E.2d 440 (1970); State v. Harris, supra (279 N.C. 307, 182 S.E.2d 364).

Defendants further argue, however, that their arrests without a warrant were illegal because the arresting officer had no reasonable ground to believe that they would "evade arrest if not immediately taken into custody." G.S. § 15-41(2).

The record in this case reveals that an armed robbery had been committed and the robbers had fled the scene. During the following seven days they had concealed their identity and avoided, if not evaded, arrest. When the officers approached Rickey Alexander at his home on the morning of his arrest he denied his identity and "said he was not Rickey Alexander, but his brother." June Gill, who was in the patrol car and already in custody, identified Rickey Alexander and the officers then placed him under arrest.

Defendant Wilson had been described by eyewitnesses, identified from photographs by them and by an informer, and was subject to recognition on sight by the officers. He had ample reason to keep himself concealed. Although the officers had not been informed by anybody that defendants might flee the jurisdiction or evade arrest, the record shows they knew both defendants were under investigation as suspects in other recent armed robberies at Home Credit Company and Walker Drugstore. Armed robbery is a crime of violence, and those who participate in it may be expected to evade arrest as long as possible. The language of Justice Branch in State v. Jacobs, 277 N.C. 151, 176 S.E.2d 744 (1970), is both appropriate and applicable here: "The facts and circumstances surrounding defendant's arrest furnished plenary evidence to support a reasonable belief on the part of the officers that defendant had committed a felony. The very nature of the crime suffices to support a reasonable belief that defendant would evade arrest if not immediately taken into custody." We hold that the officers were in possession of such facts as to justify taking defendants into custody without a warrant and that the arrest of each defendant was in all respects lawful. State v. Grier, 268 N.C. 296, 150 S.E.2d 443 (1966); State v. Egerton, 264 N.C. 328, 141 S.E.2d 515 (1965); State v. Jacobs, supra. This assignment of error is overruled.

Defendants next contend that their incourt identification should have been suppressed since it was the fruit of an illegal arrest and a suggestive lineup. This constitutes defendants' second and third assignments of error. We perceive no merit in these assignments.

In the first place, the arrest was legal. Furthermore, there was evidence to show and the trial court found on voir dire that the in-court identification by Mrs. Turner and her son was independent in origin and not based on the lineup. This alone rendered the in-court identification competent even had the lineup procedures been improper. State v. Haskins, 278 N.C. 52, 178 S.E.2d 610 (1970); State v. Wright, 274 N.C. 84, 161 S.E.2d 581 (1968).

Finally, it should be noted that all evidence offered in the presence of the jury pertaining to the lineup was elicited by defense counsel on cross-examination. There was no objection made and no exception noted to the admission of this evidence. Assignments of error must be based on exceptions duly noted, State v. Ferebee, 266 N.C. 606, 146 S.E.2d 666 (1966), and may not present a question not embraced in an exception. Wilson v. Wilson, 263 N.C. 88, 138 S.E.2d 827 (1964); 1 Strong's N.C. Index 2d, Appeal and Error § 24. These assignments are overruled.

Defendant Alexander, as a witness in his own behalf, testified he was elsewhere at the time of the robbery. On cross-examination he denied he had ever been convicted of any crime. The solicitor then asked "Were you convicted of store breaking and larceny in 1965?" His counsel objected, saying: "If the court please, we are talking about juvenile matters which are not part of the criminal record." The objection was overruled and defendant answered: "When I was a juvenile, in 1965, I was convicted of store breaking and larceny." This defendant duly excepted and this constitutes his fourth assignment of error. Defendant argues that the evidence was incompetent for impeachment purposes by reason of the following provisions in G.S. § 7A-287: "An adjudication that a child is delinquent or undisciplined shall not * * * be considered as conviction of any criminal offense."

Defendant testified on direct examination that he was twenty-one years of age. He now contends that the store breaking and larceny of which he was convicted was a reference to an adjudication of delinquency in 1965 and that the court should have conducted a voir dire in the absence of the jury to ascertain whether defendant was sixteen, or only fifteen, years of age at the time of the store breaking and larceny and whether it was heard on a petition in the juvenile court or tried on an indictment in the superior court.

When a defendant in a criminal case takes the stand, he may be impeached by cross-examination with respect to previous convictions of crime, but his answers are conclusive and the record of prior convictions cannot be introduced to contradict him. State v. Sheffield, 251 N.C. 309, 111 S.E.2d 195 (1959); State v. King, 224 N. C. 329, 30 S.E.2d 230 (1944). In a criminal case, this rule applies to every defendant who takes the stand, regardless of his age at the time of his previous conviction. Upon a charge of store breaking and larceny—a felony the punishment for which could be ten years—this defendant, even if only fifteen years old at the time, could have been processed as a juvenile or tried and convicted in the superior court. State v. Burnett, 179 N.C. 735, 102 S.E. 711 (1920); State v. Rogers, 275 N.C. 411, 168 S.E.2d 345 (1969). He said he had been convicted. His answer was competent for impeachment purposes. The burden is on appellant to show error. Burgess v. C. G. Tate Construction Co., 264 N.C. 82, 140 S.E.2d 766 (1965). "The burden is upon the appellant not only to show error but also to make it appear that the result was materially affected thereby to his hurt." Garland v. Penegar, 235 N.C. 517, 70 S.E.2d 486 (1952). On the record before us he has failed to show error or prejudice. This assignment is overruled.

Defendants' fifth assignment of error reads: "The trial judge failed to adequately warn the jurors of their duty to decide the case solely on the evidence." Defendants argue that upon any interim recess during the course of the trial the judge was required to warn the jurors not to discuss the case among themselves nor allow anyone to discuss it with them.

The record discloses that the jury was excused on several occasions in the course of the trial and that such warning was given on at least one occasion. There is no showing or suggestion of any impropriety on the part of any juror and no showing of prejudice. This assignment is obviously without merit and requires no further discussion.

Defendants assign as error certain portions of the charge, contending that the jury was instructed, in effect, that should the jury find beyond a reasonable doubt that either defendant committed the offense charged in the bill of indictment it should convict both defendants.

The record reveals that following the arguments and charge of the court the jury retired and deliberated for a short period. It then returned to the courtroom and inquired whether the cases against these defendants were to be decided separately or jointly. The court instructed them that each case should be decided separately. "You may convict one in one case or acquit one in one case or vice versa. There are two verdicts you have to render." The jury again retired to the jury room and sometime thereafter the court recessed for the day. The following morning the court, on its own motion, further instructed the jury at length, reviewing the instructions he had given the previous day, correcting verbiage he felt might be misleading or susceptible to more than one interpretation, and closed his charge with a separate mandate as to each defendant as follows:

"Now I give you these final corrected instructions of Rickey Stevenson Alexander. If the State has satisfied you from the evidence beyond a reasonable doubt that on or about August 26, 1970, the defendant Rickey Stevenson Alexander had a firearm and took and carried away or aided and abetted some other person or persons in taking and carrying away $60.00 in cash from the place of business of the Carolina Pharmacy located at Trade and Brevard Streets in Charlotte in the presence of Dorothy Turner who was there in attendance without her or the pharmacy's voluntary consent, by endangering or threatening the life of Dorothy Turner by the use or threatened use of a firearm, Rickey Stevenson Alexander knowing he was not entitled to take the $60.00 in cash and intending at that time to deprive the Carolina Pharmacy of its use permanently, it would be your duty to return a verdict of guilty of robbery with a firearm as charged in the bill of indictment. However, if you do not so find or have a reasonable doubt as to one or more of these things, it would be your duty to return a verdict of not guilty.

"I also now give you these final instructions—corrected instructions in the case against Grady Wilson. If the State has satisfied you from the evidence beyond a reasonable doubt that on or about August 26, 1970, the defendant Grady Wilson aided and abetted by some other person or persons who had a firearm, took and carried away $60.00 in cash from the place of business of the Carolina Pharmacy located at Trade and Brevard Streets in Charlotte in the presence of Dorothy Turner, who was there in attendance without her or the pharmacy's voluntary consent, by aiding and abetting the said other person or persons in endangering or threatening the life of Dorothy Turner by the use or threatened use of a firearm, Grady Wilson knowing that he was not entitled to take $60.00 in cash and intending at that time to deprive the Carolina Pharmacy of its use permanently, it would be your duty to return a verdict of guilty of robbery with a firearm as charged in the bill of indictment. However, if you do not so find or have a reasonable doubt as to one or more of these things, it would be your duty to return a verdict of not guilty in the case of Grady Wilson.

"Now, members of the jury, when you retire to the jury room, you will remember and bear in mind the entire charge of the court in your deliberations, which, of course, includes the final instructions I have just given you this morning. In other words, you will not detach the final instructions this morning in each case from the instructions you were given yesterday but consider the final instructions this morning only as a correction to the final instructions you received late yesterday, as I have indicated.

"Now, under the evidence and charge of the court, you may find both defendants guilty or not guilty or you may find one defendant guilty and the other defendant not guilty or vice versa, according as you may find the facts to be under the entire charge of the court.

"So you may retire now and say how you find."

In the foregoing charge the able and patient trial judge sought to emphasize that a verdict of guilty should be rendered only against the defendant concerning whose guilt the jury had no reasonable doubt and that the jury should not convict both defendants unless it was satisfied of the guilt of each beyond a reasonable doubt. We think the charge as a whole made that quite clear. "A charge must be construed contextually, and isolated portions of it will not be held prejudicial when the charge as a whole is correct. State v. Cook, 263 N.C. 730, 140 S.E.2d 305 (1965); State v. Goldberg, 261 N.C. 181, 134 S.E.2d 334 (1964); State v. Taft, 256 N.C. 441, 124 S.E.2d 169 (1962). If the charge as a whole presents the law fairly and clearly to the jury, the fact that isolated expressions, standing alone, might be considered erroneous will afford no ground for a reversal. State v. Hall, 267 N.C. 90, 147 S.E.2d 548 (1966). Furthermore, insubstantial technical errors which could not have affected the result will not be held prejudicial. State v. Norris, 242 N.C. 47, 86 S.E.2d 916 (1955). The judge's words may not be detached from the context and the incidents of the trial and then critically examined for an interpretation from which erroneous expressions may be inferred. State v. Gatling, 275 N.C. 625, 170 S.E.2d 593 (1969); State v. Jones, 67 N.C. 285 (1872)." State v. McWilliams, 277 N.C. 680, 178 S.E.2d 476 (1971).

A fair appraisal of the charge in its entirety impels the conclusion that the trial court submitted the question of the guilt or innocence of each defendant separately and presented the law fairly. The jury was not misled as defendants contend. The assignment of error addressed to the charge is overruled.

Defendants having failed to show prejudicial error, the verdict and judgment as to each defendant must be upheld.

No error.