State v. Horne , 59 N.C. App. 576 ( 1982 )

297 S.E.2d 788 (1982)

STATE of North Carolina
v.
Phyllis HORNE.

No. 8225SC214.

Court of Appeals of North Carolina.

December 7, 1982.

Atty. Gen. Rufus L. Edmisten by Associate Atty. Gen. John W. Lassiter, Raleigh, for the State.

Tuttle & Thomas by Bryce O. Thomas, Jr., Granite Falls, for defendant-appellant.

MORRIS, Chief Judge.

On the first day of trial defendant filed a motion to suppress evidence seized pursuant to a search warrant issued two days after the alleged robberies. In her motion defendant alleged as grounds for suppression that the warrant was void and unconstitutional on its face and that no probable cause was established for its issuance. The trial court denied the motion, and defendant has assigned error. She asserts in her brief that the evidence seized should be suppressed because the warrant was not based on the personal observations of the applicant for the warrant, but was instead based on the observations of the Vineses whose reliability and trustworthiness were not demonstrated. Defendant further alleges that there was nothing to indicate that the items sought would be found in the place described. We find no merit to this assignment of error.

In his application for the search warrant Detective Richard Matheson attached a detailed list of property sought and specifically described the residence to be searched. Detective Matheson then swore to the following grounds upon which he believed the evidence might be found in the described residence:

That on July 13, 1981 the residence of Wayne Vines, located at Rt. 10, Box 398; Lenoir, N.C. was broken into and the items listed in the attached list were taken by force. During this occurrence, Mr. Wayne Vines and other occupants of the house were victims of the Assault with Deadly Weapon. A report was filed with the Caldwell County Sheriff's Dept. ... and the applicant was assigned as the investigating officer. On this same date this applicant interviewed two of the victims, Wayne Vines and his wife, Donna Vines. The Vines advised this applicant that they were both acquainted with one of the perpetrators; same being one Phyllis Stout, aka- Red, and they both have personal knowledge of Stout living in Harmony, N.C. and working in Mocksville, N.C.

Further, that this applicant contacted Lt. Cotton Edwards of the Mocksville Police Department and was advised that he was familiar with Phyllis Stout and that she did work in Mocksville, N.C.

Further, that this applicant contacted S.E. Wallace of the Iredell County Sheriff's Department and was advised by Wallace that Phyllis Stout does re(side) at the above described residence.

That the property described herein was last seen in the possession of Phyllis Stout by the Vines as Stout left their residence on the night of July 13, 1981.

Also that approximately $2,500.00 was taken from the Vines residence.

We find that this application for the search warrant clearly satisfies the definition of probable cause as defined by statute and interpreted by our courts. Judge Parker summarized these well-established principles in State v. Dailey, 33 N.C.App. 600, 235 S.E.2d 917, appeal dismissed and disc. review denied, 293 N.C. 362, 237 S.E.2d 849 (1977).

Probable cause, as that expression is used in the Fourth Amendment and in our statutes, G.S. 15A-244 and 245, "means a reasonable ground to believe that the proposed search will reveal the presence upon the premises to be searched of the objects sought and that those objects will aid in the apprehension or conviction of the offender." State v. Campbell, 282 N.C. 125, 128-29, 191 S.E.2d 752, 755 (1972). Probable cause does not deal in certainties but deals rather in probabilities "which are factual and practical considerations of everyday life upon which reasonable and prudent men may act." State v. Spillars, 280 N.C. 341, 350, 185 S.E.2d 881, 887 (1972). Moreover, a valid search warrant may be issued on the basis of an affidavit setting forth information which may not be competent as evidence in a criminal trial. State v. Vestal, 278 N.C. 561, 180 S.E.2d 755 (1971). Thus, "[t]he affidavit may be based on hearsay information and need not reflect the direct personal observations of the affiant; but the affidavit in such case must contain some of the underlying circumstances from which the affiant's informer concluded that the articles sought were where the informer claimed they were, and some of the underlying circumstances from which the affiant concluded that the informer, whose identity need not be disclosed, was credible and his information reliable." State v. Campbell, supra at 129. In this connection, the police officer making the affidavit may do so in reliance upon information reported to him by other officers in the performance of their duties. United States v. Ventresca, 380 U.S. 102, 13 L. Ed. 2d 684, 85 S. Ct. 741 (1965); State v. Harvey, 281 N.C. 1, 187 S.E.2d 706 (1972); State v. Vestal, supra; State v. Banks, 250 N.C. 728, 110 S.E.2d 322 (1959).

Id. at 602, 235 S.E.2d at 919. In the affidavit before us Detective Matheson relied upon information reported to him by other officers and the named victims of the alleged robberies. We hold that the facts stated in the application support a finding of probable cause.

Defendant has also assigned error to the admission of "certain inadmissible and prejudicial evidence" and to the non-admission of "certain proper and significant evidence." Under this assignment of error defendant has noted exceptions to testimony regarding statements made by Lawrence and Hanks during the alleged robberies. The majority of these exceptions refer to Mae Vines' testimony that she heard Lawrence tell defendant that she had hired him and Hanks to do "this job" and they were going "to do it right." Wayne Vines testified that Lawrence hit him and then told him that he had "ripped off" his girlfriend. Defendant alleges that these statements were hearsay and therefore inadmissible. The court allowed the statements of Lawrence into evidence on the basis that they were all made in the presence of defendant and were competent. We find no error in the admission of this evidence. The statements of Lawrence were relevant to the charges of armed robbery, since they appeared to be part of the res gestae. To be part of the res gestae, a declaration must meet three qualifying conditions: The declaration must be of a spontaneous character, it must be contemporaneous with the transaction at issue or so closely connected as to be practically inseparable, and it must possess some relevancy to the facts sought to be proved. Coley v. Phillips, 224 N.C. 618, 31 S.E.2d 757 (1944). The statements of Lawrence were also relevant to establish the intent of defendant and her cohorts. Intent was directly in issue since the crimes charged require a showing of felonious intent. See State v. McQueen, 295 N.C. 96, 244 S.E.2d 414 (1978).

This Court also finds no error in the disallowance of two questions posed to defendant. An examination of the record reveals that the court sustained objections to these questions because they were leading. Traditionally the judge's ruling as to the admissibility of leading questions has been reversible only for abuse of discretion. No such abuse was shown here. 1 Brandis on N.C. Evidence § 31 (2d Rev.Ed.1982).

Defendant has further excepted to questions posed to her on cross-examination concerning threats made to her by her supplier of marijuana after the marijuana was allegedly switched. She argues that these questions constitute impermissible forms of impeachment. The record on appeal shows that this line of questioning was initially opened by defense counsel during his examination of defendant. Furthermore, the questions were admissible to rebut defendant's prior testimony, that she did not intend to participate in the armed robberies. These questions elicited testimony tending to show defendant's motive for the crimes. A defendant may be asked questions on cross-examination which discredit his testimony, no matter how disparaging the questions. The defendant, however, may not be needlessly badgered by questions which the examiner knows will not elicit competent or relevant evidence. State v. Daye, 281 N.C. 592, 189 S.E.2d 481 (1972). The questions here were relevant to show motive. Defendant's contention, that they were elicited to bring out purely prejudicial matters, is baseless.

We have carefully examined defendant's remaining exceptions to the judge's rulings on the admissibility of evidence and find no prejudicial error.

In Assignment of Error No. 3 defendant excepts to the failure of the trial court to instruct on the offenses of common law robbery and larceny. She argues that the jury could have found from her testimony that there was no evidence to support all of the elements necessary for a conviction of armed robbery. She specifically contends that her testimony neither used nor threatened use of any firearm. Our examination of defendant's testimony leads us to the opposite conclusion. Defendant admitted that while she was at the Vineses' residence, she wielded both a knife and a gun. When the evidence discloses no conflicting evidence as to the elements of the greater offense, the lesser included offense need not be submitted. State v. Brown, 300 N.C. 41, 265 S.E.2d 191 (1980). We further note that since the State presented evidence of aiding and abetting by defendant, the court properly instructed the jury on the law of aiding and abetting.

A person aids when, being present at the time and place, he does some act to render aid to the actual perpetrator of the crime though he takes no direct share in its commission; and an abettor is one who gives aid and comfort, or either commands, advises, instigates or encourages, another to commit a crime. (Citation omitted.) By its express terms G.S. 14-87 extends to one who aids and abets in an attempt to commit armed robbery.

State v. Dowd, 28 N.C.App. 32, 38, 220 S.E.2d 393, 397 (1975). Under the law of aiding and abetting, the State was not required to present evidence that defendant personally committed each essential element of armed robbery. This assignment of error is overruled.

Defendant has assigned error to the denial of her motions for directed verdict, to set aside the verdict and for new trial. She argues that the evidence failed to prove anything as to her involvement. When ruling on a motion for directed verdict, the trial judge is required to consider the evidence in the light most favorable to the State and to give the State the benefit of every reasonable inference to be drawn therefrom. State v. Hood, 294 N.C. 30, 239 S.E.2d 802 (1978). The State presented considerable evidence that defendant was an aider and abettor to the armed robberies. These motions were properly denied.

Defendant has also assigned error to the court's denial of her motion to dismiss one of the charges of armed robbery. She argues that since the property taken belonged to a husband and wife, it was then taken from "only one entity." She cites State v. Potter, 285 N.C. 238, 204 S.E.2d 649 (1974), as supporting authority. In Potter the Court held that the taking of an employer's property from two employees at gunpoint constituted a single offense of armed robbery. We find this case to be inapplicable to the situation here. A more apposite case is State v. Johnson, 23 N.C. App. 52, 208 S.E.2d 206, cert. denied, 286 N.C. 339, 210 S.E.2d 59 (1974). We held therein that the taking of property by threatened use of force from two persons constituted separate and distinct offenses. In the matter before us defendant was charged in separate bills of indictment with the taking of guns and money belonging to Wayne Vines and with the taking of jewelry belonging to Donna Vines. The evidence was consistent with these indictments. This assignment of error is overruled.

Defendant's final assignment of error is directed to the sentence imposed by the court. Defendant argues that when the court sentenced her to consecutive terms of 14 years each, the court apparently overlooked evidence of many of the mitigating factors listed under G.S. 15A-1340.4(a)(2). She further implies that the court punished her for exercising her right to a jury trial. These allegations are based upon sheer speculation. Evidence of both mitigating and aggravating factors was before the court, and we must presume that each of these factors was considered. Moreover, since the court imposed the presumptive sentence specified in G.S. 14-87(d), it was not required to make any findings regarding aggravating and mitigating factors. See G.S. 15A-1340.4(b) and State v. Morris, 296 S.E.2d 309 (filed 19 October 1982). This assignment of error is, therefore, overruled.

No error.

BECTON and JOHNSON, JJ., concur.