State v. Alexander

• Decision Date: 10 November 1971
• Docket Number: No. 69,69
• Citation: 279 N.C. 527,184 S.E.2d 274
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Rickey Stevenson ALEXANDER and Grady Wilson.

Page 274

184 S.E.2d 274

279 N.C. 527

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

No. 69.

Supreme Court of North Carolina.

Nov. 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 suurrounding 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, 11 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...