State v. Beaty, 97A81

• Decision Date: 03 August 1982
• Docket Number: No. 97A81,97A81
• Citation: 293 S.E.2d 760,306 N.C. 491
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. David Maurice BEATY.

Page 760

293 S.E.2d 760

306 N.C. 491

STATE of North Carolina v. David Maurice BEATY.

No. 97A81.

Supreme Court of North Carolina.

Aug. 3, 1982.

Rufus L. Edmisten, Atty. Gen. by George W. Boylan, Asst. Atty. Gen., Raleigh, for the State.

Joseph M. Hester, Jr., Rocky Mount, for defendant-appellant.

MEYER, Justice.

We note initially that defendant has failed to comply with Rule 28(b)(2) of the North Carolina Rules of Appellate Procedure requiring that the appellant's brief contain a concise statement of the case. Nevertheless, we have gleaned from the record on appeal, particularly the testimony given at trial, the following summary of the facts.

On 12 December 1980 at about 2:15 p.m., the defendant and another man entered the Middlesex ABC store where the store manager Franklin Perry was then working. Defendant asked for two half-gallons of rum. Mr. Perry asked defendant if he wanted dark or light rum. At this point, defendant became aware that another individual, a Mr. Womble, was in the store, and he told his companion to call at a phone booth to find out what kind of rum "she" wanted. Mr. Perry remained behind the counter looking straight ahead and at the defendant until Mr. Womble left the store a few minutes later. Defendant then asked for two half-gallons of dark rum. As Mr. Perry bent down to get the rum, defendant jumped on the counter, squatted down, and pointed a shotgun at him. While defendant took money from the cash register and a cash drawer, he instructed his companion to take Mr. Perry's wallet, which was removed from his back pocket and which contained $208.

Three days after the robbery, Mr. Perry was asked to meet with ABC officers and at that time selected defendant's picture from a photographic array. Mr. Perry testified that he "spotted it right off." Deputy Sheriff M. M. Reams testified that on that same day, as a result of a lead, he asked defendant to come in for questioning. Defendant came voluntarily. Subsequent to Mr. Perry's photographic identification, Officer Reams advised defendant of his rights. In the presence of Officer Reams and an ABC officer, defendant signed a waiver of rights. At first defendant denied any involvement in the robberies, but after being informed that an identification had been made gave statements implicating himself in the Middlesex robbery as well as two others. At this time no warrants had been issued for the defendant and he had not been arrested. Both officers who were present at the interrogation testified that the defendant was cooperative; that he did not appear to be under the influence of any drugs; that he appeared to understand the proceedings; and that he did not request to leave at any time during the questioning.

At trial, defendant took the stand. He denied going into the Middlesex ABC store, participating in the robbery, and owning a firearm.

Defendant contends that the pretrial photographic line-up was so suggestive and conducive to irreparable mistaken identity that it tainted the in-court identification. He does not argue that the array of photographs shown to the witness was such as to unduly single out the defendant or otherwise influence the witness's choice. Rather he questions Mr. Perry's ability to adequately identify him, given the circumstances surrounding the robbery.

On voir dire, Mr. Perry testified that the defendant stood in front of him in a well-lighted store for approximately five minutes. He was able to give an accurate description of the defendant to law enforcement officers. He looked through the photographic line-up once and immediately selected defendant's picture from the group. Only later was he told that the defendant was in custody. The trial court's findings are supported by competent evidence, and in turn support the conclusion that Mr. Perry's in-court identification of the defendant was of an independent origin, based solely on what he saw at the time of the robbery, and in no way tainted by any pretrial identification procedure so unnecessarily suggestive and conducive to irreparable mistaken identification as to constitute a denial of due process. We are bound by the court's ruling, and the in-court identification was properly allowed. State v. Weimer, 300 N.C. 642, 268 S.E.2d 216 (1980); State v. Tuggle, 284 N.C. 515, 201 S.E.2d 884 (1974).

The trial court permitted the State, over objection, to cross-examine the defendant concerning the two other ABC store robberies in which defendant had admitted his involvement. Defendant assigns as error both the admission of the testimony and the court's refusal to reopen voir dire to determine the admissibility of these confessions.

Defendant relies on State v. Williams, 279 N.C. 663, 185 S.E.2d 174 (1971), and argues that the State improperly impeached him as to indictments, accusations and arrest. An inquiry as to whether the defendant had robbed other liquor stores and whether he had admitted these robberies to the officers is not tantamount to a suggestion that he had been arrested or indicted for these offenses. The information sought to be elicited falls within the recognized rule that a criminal defendant who testifies may, for impeachment purposes, be asked whether he has committed specific criminal acts or been guilty of specified reprehensible conduct. State v. Gainey, 280 N.C. 366, 185 S.E.2d 874 (1972).

Defendant persisted in denying his involvement in the other robberies. The District Attorney continued to press, finally confronting the defendant with the statements he had made. The record discloses that when so confronted, defendant volunteered information contained in the first statement. He was asked only to verify his signature on the second statement. The State made no reference to the nature or contents of the writings. "A witness's denial of a conviction or of specific degrading conduct does not per se preclude further cross-examination with reference to these matters." State v. Garrison, 294 N.C. 270, 279, 240 S.E.2d 377, 382 (1978). Also in Garrison the Court said: "It is for the trial judge to say how far the State may go 'in sifting' the witness who denies the commission of the acts about which he is cross-examined. The scope of such cross-examination is subject to his discretion." 294 N.C. at 278-79. 240 S.E.2d at 382.

We find no basis for defendant's argument that further voir dire was necessary to determine the admissibility of defendant's confessions to offenses other than the crimes charged. The confessions were not introduced into evidence. The information contained in the confessions did, however, provide a good faith basis for the State's impeaching questions, and the court immediately instructed the jury that the only purpose of the testimony concerning other robberies was impeachment. These assignments are overruled.

Defendant next contends that his confessions were obtained as a result of a substantial violation of G.S. § 15A-501(2), and therefore should have been suppressed pursuant to G.S. § 15A-974. He also assigns as error the admission into evidence of the Middlesex robbery confession because it was not voluntarily and understandingly given.

G.S. § 15A-501(2) provides that a law enforcement officer must, upon the arrest of a person, take him before a judicial official without unnecessary delay. We agree with the State that defendant's position is not well taken because G.S. § 15A-501(2) is predicated upon "arrest," and defendant was not arrested until after he confessed. Defendant's rights under G.S. § 15A-501(2) were not violated. The statute clearly contemplates post-arrest procedures. Defendant was not arrested until after his interrogation. The facts belie any suggestion that he was "technically" under arrest.

Further, counsel for the defendant concedes that the trial court's findings concerning the admissibility of the Middlesex robbery confession were supported by competent evidence and that the statement was properly admitted. Our review of the record yields the same conclusion, and the assignment of error is overruled. State v. Stinson, 297 N.C. 168, 254 S.E.2d 23 (1979); State v. Smith, 278 N.C. 36, 178 S.E.2d 597, cert. denied, 403 U.S. 934, 91 S.Ct. 2266, 29 L.Ed.2d 715 (1971).

Finally, defendant contends that the second indictment herein must be quashed as he was subjected to multiple prosecutions for the same offense; the verdict will support only one judgment for a violation of G.S. § 14-87 (armed robbery). We agree.

In order to sustain the conviction and sentence at one trial for multiple offenses arising out of a single criminal incident, each offense must rest on different necessary elements. The test is "[w]hether the facts alleged in the second indictment, if given in evidence, would have sustained a conviction under the first indictment" or "whether the same evidence would support a conviction in each case." State v. Hicks, 233 N.C. 511, 516, 64 S.E.2d 871, 875 (1951).

The elements necessary to constitute armed robbery under G.S. § 14-87 are (1) the unlawful taking or an attempt to take personal property from the person or in the presence of another (2) by use or threatened use of a firearm or other dangerous weapon (3) whereby the life of a person is endangered or threatened. "Force or intimidation occasioned by the use or threatened use of firearms, is the main element of the offense." State v. Mull, 224 N.C. 574, 576, 31 S.E.2d 764, 765 (1944). Ownership of the property is generally immaterial as long as the proof is sufficient to establish ownership in someone other than the defendant. State v. Rogers, 273 N.C. 208, 159 S.E.2d 525 (1968).

We have found no North Carolina case dealing precisely with the very issue before us, that is, whether a person may be convicted of two counts of armed robbery where, in addition to the theft of an employer's money or property, the robber takes money or property belonging to an employee. ¹ A brief review of several categories of robbery ...