State v. Russell

205 S.E.2d 752 (1974) 22 N.C. App. 156

STATE of North Carolina
v.
Frankie Eugene RUSSELL and James L. Tatum.

No. 7419SC263.

Court of Appeals of North Carolina.

June 19, 1974. Certiorari Denied and Appeal Dismissed September 3, 1974.

Atty. Gen. Robert Morgan, by Asst. Atty. Gen. Rafford E. Jones, Raleigh, for the State.

J. Stephen Gray, Salisbury, for defendant Russell.

Richard F. Thurston, Salisbury, for defendant Tatum.

Certiorari Denied and Appeal Dismissed by Supreme Court September 3, 1974.

BROCK, Chief Judge.

Defendants contend the trial court committed error in concluding as a matter of law that the in-court identification of the defendants was proper.

Defendants first argue that the trial court committed error in failing to make specific findings of fact following a voir dire. While defendants admit there was an extensive voir dire conducted in regard to witness Turner's identification, defendants contend the trial court made no findings of fact to support its conclusion of law that the identification procedure was based upon observation of the defendants at the scene of the robbery, and not identification made at the North Kannapolis Police Station.

The witness Turner and Basinger testified that they had observed defendants at the scene of the robbery for a period of time which would allow them to unequivocally state that the identification of the defendants during the trial was based upon observations made at the scene, and not upon observation of the defendants at the police station on the date of the robbery, nor upon random selection of photographs of defendants prior to the preliminary hearing. No conflicting evidence was offered.

In the absence of conflicting evidence at the voir dire, it is not required of the trial judge to make findings of fact and enter them in the record, although it is a better practice. The failure of making such findings will not be deemed prejudicial error. State v. Gurkins, 19 N.C.App. 226, 198 S. E.2d 448.

Defendants contend the trial court committed error in allowing into evidence articles seized from defendants' car after it was stopped by Deputy Sloop. They also contend that a voir dire should have been held before admitting evidence seized in a search of defendant's car.

The evidence seized from defendants' vehicle consisted of a sawed-off .22 caliber rifle, an AM-FM radio belonging to witness Turner, and a blue cap worn by witness Turner prior to the robbery. The description of the vehicle employed at the robbery scene matched that of defendants' vehicle in detail. When Deputy Sloop, who was on the lookout for such a vehicle, observed and stopped the vehicle, there was sufficient probable cause to suspect that this vehicle was the one used in the robbery.

After the vehicle was stopped, Deputy Sloop observed the sawed-off .22 rifle in the lap of one of the occupants of the back seat. The defendants and the other male were then requested to sit in the deputy's vehicle until the North Kannapolis police arrived. In attempting to cut off the engine in the then-abandoned car, Officer Sloop found witness Turner's cap on a seat of the car. The hat contained a large amount of currency. The ignition switch and wiring in defendants' car had been removed from its proper place and was lying on the dash. The officers were unable to stop the engine. The vehicle was driven by an officer to the North Kannapolis Police Station, and as Officer Smith was assisting in efforts to stop the engine, he observed Turner's radio sitting on the back seat of the defendants' car.

It is not clear from the record that defendants were placed under arrest by Deputy Sloop when he requested them to sit in his vehicle until the North Kannapolis officers arrived. Conceding, however, that an arrest was made by Deputy Sloop without a warrant, G.S. § 15-41 states that a peace officer may without warrant arrest a person when he has reasonable ground to believe the person to be arrested has committed a felony and will evade arrest if not immediately taken into custody. From the evidence then before the Court, it was clear that the Deputy had reasonable grounds to believe that defendants had committed the felony of armed robbery. The evidence showing reasonable grounds to arrest was already before the court. Therefore, a voir dire to determine the validity of the arrest was not necessary. A warrantless search of the vehicle under these same circumstances would have been justified. However, it seems that no search was conducted; the evidence seized was in clear view of the officers. Therefore, a voir dire to determine the validity of the search was not necessary. The trial judge was correct in denying the motion to suppress the evidence, and in denying defendant's request for a voir dire.

Defendants contend the trial court erred in failing to dismiss at the close of State's evidence and at the close of all the evidence.

Motion to nonsuit requires the court to consider the evidence presented in the light most favorable to the State and take it as true, giving the State every reasonable intendment and inference to be drawn therefrom. We find there was sufficient evidence presented to require submission of the case to the jury. This assignment of error is overruled.

We have reviewed the trial judge's instructions to the jury and, in our opinion, the jury was instructed upon the applicable principles of law. We find no prejudicial error in the charge.

No error.

CAMPBELL and BRITT, JJ., concur.