State v. Handsome, 116

• Decision Date: 03 June 1980
• Docket Number: No. 116,116
• Citation: 266 S.E.2d 670,300 N.C. 313
• Parties: STATE of North Carolina v. Darrill Lewis HANDSOME.
• Court: North Carolina Supreme Court

Page 670

266 S.E.2d 670

300 N.C. 313

STATE of North Carolina v. Darrill Lewis HANDSOME.

No. 116.

Supreme Court of North Carolina.

June 3, 1980.

David B. Brantley, Goldsboro, for defendant.

Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. Jane Rankin Thompson, Raleigh, for the State.

COPELAND, Justice.

By his tenth assignment of error, defendant contends that the trial judge erred in giving him separate and consecutive sentences for the armed robbery and kidnapping of George Bryant.

Defendant concedes in his brief that this Court's decision in State v. Williams 295 N.C. 655, 249 S.E.2d 709 (1978), is dispositive of this issue. It is not necessary to prove the completed offense of armed robbery as a part of proving the offense of kidnapping. Under G.S. 14-39 it is necessary to prove that the confinement, restraint, or removal is for the purpose of, among other alternatives, "facilitating the commission of any felony." Id.; State v. Dammons, 293 N.C. 263, 237 S.E.2d 834 (1977); see, State v. Fulcher, 294 N.C. 503, 243 S.E.2d 338 (1978); see also, Banghart v. United States, 148 F.2d 521 (4th Cir. 1945) (per curiam), cert. denied, 325 U.S. 887, 65 S.Ct. 1568, 89 L.Ed. 2001 (1945). Thus, there is no violation of the Double Jeopardy Clause of the Fifth Amendment in defendant's having been convicted of and sentenced for both offenses. The situation is analogous to the crime of burglary. An element of burglary is that the defendant intended to commit a felony at the time of the breaking and entering. The defendant may also be convicted of that felony if he in fact commits it after accomplishing the breaking and entering with that intent.

Defendant also maintains that the consecutive sentences imposed in this case which make him eligible for parole only after thirty-two years constitute cruel and unusual punishment.

All of the sentences imposed were within statutory limits. We have held that sentences that are within the statutory limits and impose consecutive sentences do not constitute cruel and unusual punishment. State v. Mitchell, 283 N.C. 462, 196 S.E.2d 736 (1973), and cases cited therein; State v. Bruce, 268 N.C. 174, 150 S.E.2d 216 (1966). This assignment of error is overruled.

By his eleventh assignment of error, defendant contends that since he asserted the defense of duress he was at most guilty of aiding and abetting and it was error for the trial judge to charge on acting in concert with respect to all of the crimes charged. There is evidence that the defendant was present at the scene of the crimes and, pursuant to a common plan or purpose to commit those crimes, acted together with another who performed the acts necessary to constitute the crimes charged. Thus, the trial judge properly instructed on acting in concert. State v. Williams, 299 N.C. 652, 263 S.E.2d 774 (1980); State v. Joyner, 297 N.C. 349, 255 S.E.2d 390 (1979). This assignment of error is overruled.

By his sixth, seventh and ninth assignments of error, defendant contends that his motions for nonsuit, judgment notwithstanding the verdict, arrest of judgment, and for a new trial should have been granted because the evidence is insufficient to show that the crime of armed robbery was in fact committed and that if it was, the defendant did not participate in it.

As held above, the trial judge properly instructed on acting in concert with respect to the crime of armed robbery. State v. Williams, supra; State v. Joyner, supra. Defendant further argues that no armed robbery was committed because no threats or requests for money were made to the victim before the money was taken. The victim was shot first and then his money was stolen. This contention is devoid of merit.

George Bryant's personal property was taken from his person without his consent by violent means with the intent to steal. This is the definition of robbery. State v. Bailey, 278 N.C. 80, 178 S.E.2d 809 (1971), cert. denied, 409 U.S. 948, 93 S.Ct. 293, 34 L.Ed.2d 218 (1972). In addition, a firearm was used thus making the crime armed robbery. The elements of violence and taking were so joined in time and circumstances in one continuous transaction amounting to armed robbery as to be inseparable. State v. Lilly, 32 N.C.App. 467, 232 S.E.2d 495, cert. denied, 292 N.C. 643, 235 S.E.2d 64 (1977). These assignments of error are overruled.

By his second and fourth assignments of error, defendant contends that it was error to allow a victim's clothing to be introduced into evidence since a sufficient chain of custody was not established and that it was error to admit a certain hearsay statement.

In order to be admitted into evidence, real evidence, such as the clothing in this case, must be authenticated as the same objects involved in the incident and it must be shown that the objects have undergone no material change in condition since the incident. State v. Harbison, 293 N.C. 474, 238 S.E.2d 449 (1977). Trial judges must exercise sound discretion in making these determinations. Id.

The clothing was properly admitted into evidence. Victim identified the clothing in court as the clothing that he was wearing on the evening of 20 May 1979. He stated that the clothing was "now bloody and dirty." This was consistent with his testimony that he had been shot and thrown out of a car into a ditch. It was error to allow a police officer to testify that he received the articles of clothing from an emergency room nurse who told him that she had received the clothing from the victim. This was a hearsay statement offered to prove the truth of the matter asserted in the statement. Nevertheless, its admission was not prejudicial error because the victim had already identified the articles of clothing as those that he was wearing that night and the exhibits had already been properly admitted into evidence. These assignments of error are overruled.

By his third assignment of error, defendant contends that the trial judge erred in admitting photographs of the crime scene into evidence. The photographs were properly authenticated. The jury should be instructed to consider photographs for illustrative purposes only; however, where the defendant does not request that the limiting instruction be given, as he did not in this case, it is...