State v. Covington, 742
| Decision Date | 22 May 1968 |
| Docket Number | No. 742,742 |
| Citation | 161 S.E.2d 140,273 N.C. 690 |
| Parties | STATE of North Carolina v. Jimmy Dexter COVINGTON. |
| Court | North Carolina Supreme Court |
Atty. Gen. T. Wade Bruton and Deputy Atty. Gen. Ralph Moddy for the state.
C. C. Malone, Jr., and C. E. Johnson, Durham, for defendant appellant.
Appellant, Covington, assigns as error the denial of his motion for judgment as in case of nonsuit. This assignment is not set out in his brief and is deemed abandoned. Rule 28, Rules of Practice in the Supreme Court, 254 N.C. 783, 810. There was ample evidence to require submission to the jury and to support a verdict of guilty as to the charge of armed robbery set forth in each of the three bills of indictment.
Appellant, Covington, assigns as error the rulings on evidence discussed below.
A pistol, marked for identification as State's Exhibit No. 4, was presented to Cross, a State's witness, during direct examination. Defendants objected and, in the absence of the jury, 'moved to suppress the evidence of the weapon on the grounds that it was obtained by reason of an illegal search.'
In the absence of the jury, Ralph D. Seagroves, a Durham Police Officer, testified in substance as narrated below.
On Friday, July 28, 1967, between 4:45 and 5:00 a.m., Seagroves, accompanied by other police officers, went to the Holiday Inn, Downtown, on Chapel Hill Street in Durham. Seagroves had seen a 1965 Chevrolet, 'red or burgundy,' in the parking lot. After talking with the night clerk, the officers got in touch with Whitfield; and, at the request of the oficers, Whitfield accompanied the officers to separate but adjoining motel rooms to see if Whitfield could identify either of the occupants as a participant in the Voyager Inn robberies of July 26th.
The officers knocked on the door of the motel room occupied by McDougald. When McDougald came to the door, bright lights from the police car were thrown on him and Whitfield said, 'That is one of them.'
After entering and staying briefly in McDougald's room, the officers proceeded from the sidewalk to the outside door of the adjoining motel room. It was 'chain locked.' The officers pushed open the door as far as the chain would permit. Big lights from the police car were directed through this opening into the room. Throught this opening Whitfield identified the person lying on the bed as the other man involved in the Voyager Inn robberies. It was Covington. Unable to gain entrance, the officers 'just pulled out' the chain, thereby breaking the chain lock, and entered Covington's room. Convington was getting out of bed. State's Exhibit No. 4 was on a table near Covington's bed. The officers seized and retained it. Covington and McDougald, having been identified in this manner by Whitfield, were arrested and taken into custody.
None of the victims of the robberies knew either Covington or McDougald by name. The officers were armed. The officers had no warrant of arrest and had no search warrant.
The court, after hearing said testimony of Seagroves, made no findings of fact. The court overruled said motion to suppress and recalled the jury. Thereupon, before the jury, the direct examination of Cross was resumed. Cross testified Inter alia that the pistol exhibited to him, marked for identification as State's Exhibit no. 4, 'looks exactly like the gun McDougald held on him on the 26th day of July, 1967.' (Our italics.)
Whitfield, a State's witness, when asked on direct examination if he could identify the two men who had robbed him, touched the shoulder of Covington and of McDougald. Thereupon, in the absence of the jury, each defendant moved 'to suppress any identification by this witness as (sic) for the reason that the identification here being made is identification made as a result of an illegal arrest.' The motion(s) were overruled and defendants excepted.
On direct examination, Whitfield was not asked and did not testify as to what occurred at the Holiday Inn on July 28th when Covington and McDougald were arrested. He did testify on direct examination that, on July 26th when he and Roberson were robbed, McDougald had the pistol marked for identification as State's Exhibit No. 4 'or one like it.'
On cross-examination of Whitfield, defense counsel elicited For the first time in the presence of the jury testimony as to what occurred on July 28th at said Holiday Inn when Covington and McDougald were arrested. Under cross-examination, and without objection or motion to strike, Whitfield testified in substance as follows: On July 28, 1967, around 4:30 a.m., he received a call from the Police Station 'that two suspects fitting the description he had given had just checked into the Holiday Inn,' and that the police officers wanted him to come down and identify them. Upon arrival at the Holiday Inn around 5:00 a.m. he saw 'an automobile resembling the one he saw at the Voyager Inn,' and was told that the car 'belonged to the suspects.' In response to a knock on his door, McDougald opened the door and thereupon he (Whitfield) identified McDougald as one of the participants in the Voyager Inn robberies of July 26th. The door to Covington's room was closed. Police officers opened it 'with their shoulders.' He did not recognize Covington 'until his door had been opened.'
Roberson, a State's witness, testified 'he recognizes State's Exhibit Four.' Roberson gave no other testimony with reference thereto.
The State offered Seagroves who testified, in the presence of the jury, in substance as follows: On July 28, 1967, around 5:00 a.m., he, with 'Lt. Evans, Officer Roop, Officer Clayton, Officer Lewis and Mr. Whitfield went to the Holiday Inn, Downtown.'
The court, apparently Ex mero motu, instructed the jury Seagroves' further testimony was received 'solely for the purpose of corroborating Mr. Whitfield and only to that extent.' Thereupon, Seagroves testified both on direct and on cross-examination to what happened on July 28th at said Holiday Inn, without objection and without motion to strike except as follows: Defendants objected to the statement of Seagroves that 'he saw State's Exhibit Four on the morning of the 28th.'
The testimony of Seagroves in the presence of the jury, both on direct and on cross-examination, is in substantial accord with the testimony of Whitfield as to what occurred on July 28th at said Holiday Inn with these exceptions: Seagroves testified he 'turned the latch' on Covington's door and 'it opened'; that when the 'spotlights' were turned into Covington's room, Whitfield said, 'That is the other one'; that thereafter he 'hit the door and it unlocked'; and that the officers then entered Convington's room.
On recross-examination, Seagroves testified that 'the manager of Holiday Inn reported to him the fact that persons of the description he (Seagroves) had given him earlier were there.'
There is no merit in appellant's contention that Whitfield was precluded from testifying At trial as to the identity of the men who robbed him on July 26th on account of asserted unlawful conduct of the officers on July 28th in forcibly opening the door and entering his motel room. Whitfield did not identify Covington At trial on the basis of what occurred on the morning of July 28th at the Holiday Inn but on the basis of what he saw at the Voyager Inn on the morning of July 26th. Moreover, the evidence before the jury as to what occurred on the morning of July 28th at the Holiday Inn was first elicited by defense counsel in the cross-examination of Whitfield and was thereafter developed in detail by defense counsel in the further cross-examination of Whitfield and in the cross-examination of Seagroves.
The only serious question is whether the court should have sustained defendants' objections to the admission in evidence of State's Exhibit No. 4 on the ground the officers seized it as the result of an illegal search. This question must be resolved in the light of statutory provisions discussed below.
G.S. § 15--41 provides: 'A peace officer may Without warrant arrest a person: (1) When the person to be arrested has committed a felony or misdemeanor in the presence of the officer, or when the officer has reasonable ground to believe that the person to be arrested has committed a felony or misdemeanor in his presence; (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.' (Our italics.)
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