State v. Phillips, 29

• Decision Date: 15 July 1980
• Docket Number: No. 29,29
• Citation: 268 S.E.2d 452,300 N.C. 678
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Jerome PHILLIPS.

Page 452

268 S.E.2d 452

300 N.C. 678

STATE of North Carolina v. Jerome PHILLIPS.

No. 29.

Supreme Court of North Carolina.

July 15, 1980.

Rufus L. Edmisten, Atty. Gen. by William F. Briley, Asst. Atty. Gen., Raleigh, for the State.

Robert L. White, Greenville, for defendant-appellant.

HUSKINS, Justice:

When jury selection began, defense counsel asked Juror No. 2 if defendant would have to prove anything to her before he would be entitled to a verdict of not guilty. At that point, the court requested counsel to direct questions of a general nature to all twelve jurors. The court then permitted counsel to ask all twelve jurors if they would follow the court's instructions, the burden being on the State to prove the guilt of the defendant beyond a reasonable doubt. Nothing in the record indicates that the court imposed any further restriction upon defense counsel's ability to examine each prospective juror individually. Defendant took exception to the ruling and this constitutes his first assignment of error.

No violation of G.S. 15A-1214(c) is shown. The action of the trial judge did not deprive defendant of his right to question each prospective juror personally and individually concerning his fitness and competency to serve as a juror and did not impair counsel's ability to determine whether there was a basis for a challenge for cause or whether a peremptory challenge should be exercised with respect to any particular juror. G.S. 15A-1214(c) does not preempt the exercise of all discretion by the trial judge during the jury selection process. It remains the prerogative of the court to expedite jury selection by requiring certain general questions to be submitted to the panel as a whole. State v. Leonard, 296 N.C. 58, 248 S.E.2d 853 (1978). The presiding judge has the duty "to supervise the examination of prospective jurors and to decide all questions relating to their competency." State v. Young, 287 N.C. 377, 214 S.E.2d 763 (1975), death sentence vacated, 428 U.S. 903 (1976), 96 S.Ct. 3207, 49 L.Ed.2d 1208. Accord, State v. Leonard, supra; State v. Thomas, 294 N.C. 105, 240 S.E.2d 426 (1978). The trial judge has broad discretion "to see that a competent, fair and impartial jury is impaneled and rulings of the trial judge in this regard will not be reversed absent a showing of abuse of discretion." State v. Johnson, 298 N.C. 355, 259 S.E.2d 752 (1979).

In the instant case, no abuse of discretion is shown. In fact, it is the duty of the judge to expedite the trial in every appropriate way. Here, the question which prompted the court's intervention is disapproved. Counsel should not fish for answers to legal questions before the judge has instructed the juror on applicable legal principles by which the juror should be guided. Counsel should not argue the case in any way while questioning the jurors. Counsel should not engage in efforts to indoctrinate, visit with or establish "rapport" with jurors. Jurors should not be asked what kind of verdict they would render under certain named circumstances. Finally, questions should be asked collectively of the entire panel whenever possible. Here, the patient trial judge was simply trying to expedite jury selection by requiring appropriate interrogation. He is to be commended for it. Defendant's first assignment of error is overruled.

Defendant's motion for a daily transcript of the trial proceedings was denied. The ruling of the court in this respect constitutes his next assignment of error.

G.S. 7A-450(b) provides in pertinent part that when a defendant is determined to be indigent and entitled to counsel, as here, "it is the responsibility of the State to provide him with counsel and the other necessary expenses of representation." Defendant contends that a daily transcript comes within the ambit of "other necessary expenses." For reasons which follow, we find no merit in this contention.

Defendant relies on the statute together with the holdings in Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963), and Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956). Neither Douglas nor Griffin, nor the statute itself, nor any other authority of which we are aware, suggest that a daily transcript is a necessary element of defense which the State is required to supply to an indigent defendant. Moreover, the case before us is a very simple one. It was tried in two days. To suggest that a daily transcript was necessary to enable counsel to make an adequate defense is rather ludicrous. We hold that a daily transcript is not a necessary expense of representation which the State is required to provide an indigent defendant under G.S. 7A-450(b). Moreover, defendant has not been deprived of any of his constitutional rights by the State's failure to furnish a daily transcript. This assignment is overruled.

Defendant moved to suppress the watch and bracelet (S-1 and S-2) on the ground that Chief Burney had no probable cause to arrest him and that the subsequent search of his person was therefore unlawful. Denial of this motion constitutes defendant's third assignment of error.

G.S. 15A-401(b) provides in pertinent part that an officer may arrest without a warrant for an offense committed out of his presence if he has probable cause to believe that the person arrested has committed a felony. The record in this case shows that Chief Burney was well acquainted with defendant; that he had heard Wendy Jones describe the intruder as a black male, eighteen to twenty years old, wearing a dark coat, a tan cap and medium to dark pants, 6 feet tall and weighing about 185 pounds, with no facial hair. Chief Burney knew that description fit defendant Phillips. He also knew Phillips had committed this type of crime in the town of Ayden on previous occasions; that he had been convicted of larceny at least six times and of breaking and entering and larceny three or four times. Thus, when Chief Burney found defendant one block from the crime scene wearing a dark blue coat, medium blue pants and generally fitting the description of the intruder, he had probable cause to believe that defendant had committed the felony of burglary and to arrest him without a warrant. State v. Alexander, 279 N.C. 527, 184 S.E.2d 274 (1971).

Probable cause for an arrest has been defined as "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. The existence of probable cause so as to justify an arrest without a warrant "is determined by factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act. It is a pragmatic question to be determined in each case in the light of the particular circumstances and the particular offense involved." 5 Am.Jur.2d, Arrest § 48. Accord, State v. Phifer, 297 N.C. 216, 254 S.E.2d 586 (1979); State v. Harris, 279 N.C. 307, 182 S.E.2d 364 (1971); Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949).

The totality of the facts and circumstances known to Chief Burney would have constituted probable cause for the issuance of an arrest warrant. It is immaterial that some of the information he possessed might not be competent in evidence at the trial. State v. Hoffman, 281 N.C. 727, 190 S.E.2d 842 (1972); State v. Roberts, 276 N.C. 98, 171 S.E.2d 440 (1970); Brinegar v. United States, supra.

Defendant further contends in connection with this assignment that, even if probable cause for arrest without a warrant existed, the trial court failed to make the necessary findings of fact and conclusions of law following the voir dire upon his motion to suppress and for that reason, if no other, the evidence should have been suppressed.

G.S. 15A-977(d) provides that if the motion to suppress is not determined summarily the judge must make the determination after a hearing and findings of fact. Subparagraph (f) provides that "the judge must set forth in the record his findings of fact and conclusions of law."

The evidence on voir dire consisted only of the testimony of chief Burney. His testimony was unrefuted. Following it, the court made the following entry:

"The Court finds that under the...