State v. Gatling, 694SC161

• Decision Date: 13 August 1969
• Docket Number: No. 694SC161,694SC161
• Citation: 169 S.E.2d 60,5 N.C.App. 536
• Court: North Carolina Court of Appeals
• Parties: STATE of North Carolina v. Arthur S. GATLING and Clarence B. Banks.

Page 60

169 S.E.2d 60

5 N.C.App. 536

STATE of North Carolina v. Arthur S. GATLING and Clarence B. Banks.

No. 694SC161.

Court of Appeals of North Carolina.

Aug. 13, 1969.

Atty. Gen. Robert Morgan, by Asst. Atty. Gen. George A. Goodwyn, for the State.

John H. Harmon, New Bern, for defendant appellant.

MORRIS, Judge.

The evidence, taken in the light most favorable to the State, tends to show that on 24 October 1968 Milton J. Russell, Jr., left Morehead City, North Carolina, hitchhiking to Jacksonville, North Carolina. The defendants picked Russell up near the main gate of the Camp Lejeune Marine Base at approximately 3:30 p.m. and took him to Highway 17. From this point Russell walked to Cars Incorporated and placed a down payment on an automobile. The car dealer then took Russell to a standing station near the main gate of Camp Lejeune. Russell was hitchhiking back to Morehead City when the defendants picked him up the second time. However, instead of proceeding toward Morehead City, the defendants turned off on another highway. Russell asked the defendants to let him out of the car and they replied that they would let him out in a minute. Russell stated that he felt something was wrong and, therefore, placed this wallet, which contained $105, under the passenger side of the front seat. Russell stated, 'When they stopped at the Stop sign, I said, 'You can let me out here. It will be O.K.,' and they turned again. I told them that if they were trying to scare me, they were doing it and I had showed the defendants his change and told them that was all the money he had. One of the defendants took the money from him. Defendants continued with Russell in the car. They went on a back road between an old building and some high weeds. When the car was stopped, the defendants took out a straight razor and began passing it back and forth and asking Russell questions. Gatling took Russell's watch. Russell stated that the defendants did not hold the razor up to him, but they held it where it could be seen at all times. After taking the watch the defendants hit him in the face and side. Gatling told him to get out of the car. Russell stated that he got out of the car and ran. Gatling chased him for a short distance before returning to the car. Defendants were later apprehended at the Van Nessa Club in Jacksonville. Russell's wallet was found under the front seat of their car.

Defendants argue that their motion for judgment as of nonsuit and motion to set aside the verdict as being against the weight of the evidence should have been allowed because the evidence shows that Russell voluntarily gave the money and watch to the defendants. 'Robbery is the taking of money of goods with felonious intent from the person of another, or in his presence, against his will, by violence or putting him in fear.' 6 Strong, N.C. Index 2d, Robbery, § 1, p. 678.

The element of force involved in the offense of robbery may be actual or constructive. Constructive force includes "all demonstrations of force, menaces, and other means by which the person robbed is put in fear sufficient to suspend the free exercise of his will or prevent resistance to the taking * * *. No matter how slight the cause creating the fear may be or by what other circumstances the taking may be accomplished, if the transaction is attended with such circumstances of terror, such threatening by word or gesture, as in common experience are likely to create an apprehension of danger and induce a man to part with his property for the sake of his person, the victim is put in fear.' State v. Sawyer, 224 N.C. 61, 29 S.E.2d 34. 'The degree of force is immaterial so long as it is sufficient to compel the victim to part with his property or property in his presence, and the element of force may be actual or constructive.' State v. Sipes, 233 N.C. 633, 65 S.E.2d 127. We think that the evidence tested by these principles was sufficient to support a verdict on the offense charged. The defendants' motions were properly overruled.

Defendants argue that the watch belonging to the prosecuting witness should not have been introduced into evidence because it was found in the deputy's car some 48 hours after they had been in the car. The prosecuting witness testified that a watch was taken from him by the defendants. He identified the watch in court as being the one that was taken from him. Clearly, the watch was competent evidence. It served to better explain the evidence to the jury. State v. Rogers, 233 N.C. 390, 64 S.E.2d 572, 28 A.L.R.2d 1104. The fact that the watch was found in the deputy's car some 48 hours after the defendants were in the car affected credibility, but not competence. Credibility of the evidence is a matter for the jury. Stansbury, N.C. Evidence 2d, § 8.

Defendants' next assignment of error relates to certain testimony concerning identification of the defendants by the prosecuting witness in the police station prior to the trial of this case.

The evidence disclosed that Russell was picked up by a 'State Police car' and that he and the patrolman rode around looking for the car driven by the two who had robbed him. About 8:30 the patrolman got a call. Russell was taken to the 'police station' where he remained until the officers brought the two men in. When they came in the room Russell promptly identified them as the two men who had robbed him. No questions were asked the two by him or by any officer prior to his identification of them. About three or four hours had elapsed from the time Russell had last seen them and when they came into the station. They were dressed the same as when he last saw them. Russell was certain of his identification. He saw them as they were being brought in.

Counsel for defendants argued, in the absence of the jury, that defendants were entitled to counsel before being placed in a lineup and that the law requires that several people of similar build and size be placed with the suspects before they can be exhibited for identification purposes. Defendants insist in argument here that the identification was violative of defendants' Sixth Amendment right to counsel because counsel was not present when they were subjected to a lineup identification, on the authority of United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149; Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178; and Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199. All of these cases were argued the same day and decided the same day.

Both Wade and Gilbert involved lineups held at substantial intervals after arrest. Counsel had been appointed but was not present. In each instance, the United States Supreme Court said that a lineup was a critical stage in the criminal proceedings at which the accuseds were constitutionally entitled to have counsel present unless intelligently waived.

Stovall was a federal habeas corpus attack upon a state court conviction. Defendant, a Negro, was arrested within a day after a very brutal assault committed during the course of a robbery. The next day he was taken to the hospital room of the victim who was in critical condition. He was manacled to a white police officer, accompanied by several other officers and prosecutors. He was the only Negro in the room and not represented by counsel. The victim was asked if he 'was the man', and she identified him. Wade and Gilbert were not applicable because they were given only prospective effect.

We are not here concerned with a lineup as in Wade and Gilbert. We are concerned with a confrontation or presentation of the suspect alone to the witness as in Stovall. Some of the language in Wade at least implies that a suspect has the right to counsel at any pretrial confrontation arranged by officers, regardless of the circumstances. The Court said in Wade that 'the confrontation compelled by the State between the accused and the victim or witnesses to a crime to elicit identification evidence is peculiarly riddled with innumerable dangers and variable factors which might seriously, even crucially, derogate from a fair trial.' and 'The pretrial confrontation for purpose of identification may take the form of a lineup, also known as an 'identification parade' or 'showup,' as in the present case, or presentation of the suspect alone to the witness, as in Stovall v. Denno, (388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199) supra. It is obvious that risks of suggestion attend either form of confrontation and increase the dangers inhering in eyewitness identification.'

In Stovall, decided the same day as Wade, but to which the Wade rule could not be applied, the Court declared that the confrontation there before the Court 'was so unnecessarily suggestive and conducive to irreparable mistaken identification that (defendant) was denied due process of law'. The Court held that 'a claimed...