State v. Porter

• Decision Date: 31 August 1981
• Docket Number: No. 129,129
• Citation: 281 S.E.2d 377,303 N.C. 680
• Parties: STATE of North Carolina v. Johnell PORTER and Keith Emerson Ross.
• Court: North Carolina Supreme Court

Page 377

281 S.E.2d 377

303 N.C. 680

STATE of North Carolina v. Johnell PORTER and Keith Emerson Ross.

No. 129.

Supreme Court of North Carolina.

Aug. 31, 1981.

Scott T. Pollard, Charlotte, for defendant Johnell Porter.

Asst. Public Defender Lyle J. Yurko, Charlotte, for defendant Keith Emerson Ross.

Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. Ben G. Irons, II, Raleigh, for the State.

COPELAND, Justice.

Defendants argue numerous assignments of error on appeal. We have carefully considered each assignment and conclude that the trial court committed no error which would entitle either defendant to a new trial.

I

Although defendants submitted separate briefs, several issues are argued by both defendants. For the sake of clarity and convenience, we will first address those issues which are raised by both defendants.

Defendants first contend that the trial court erred in allowing State's witness Hal Martin to testify that the cash register at the Phillips 73 Store was difficult to open. Defendants argue that this testimony was an expression of opinion by a non-expert witness, and therefore inadmissible.

As a general rule, a witness may not give opinion evidence when the facts underlying the opinion are such that the witness can state them in a manner which will permit an adequate understanding of them by a jury and the witness is no better qualified than the jury to draw inferences and conclusions from the facts. State v. Sanders, 295 N.C. 361, 245 S.E.2d 674 (1978); State v. Watson, 294 N.C. 159, 240 S.E.2d 440 (1978). However, this Court has long held that despite the general rule prohibiting opinion evidence, a witness may employ "shorthand statements of fact" as a means of referring to matters about which he has previously testified. Such shorthand statements are admissible even though the witness must also state a conclusion or opinion in rendering them. State v. Yancey, 291 N.C. 656, 231 S.E.2d 637 (1977); State v. Sneeden, 274 N.C. 498, 164 S.E.2d 190 (1968); 1 Stansbury's North Carolina Evidence § 125 (Brandis Rev.1973). In the present case, Mr. Martin first testified that to open the cash register one must "put a dime in it" and hit the groceries and total keys, or one must punch the no sale key. His subsequent statement that the cash register was difficult to open was therefore a shorthand method of referring to his prior testimony, and defendants' objection to the statement was properly overruled.

Under similar reasoning, we likewise find defendants' next assignment of error without merit. Defendants maintain that the trial court erred in allowing Mr. Martin to testify that he had been "robbed," since such a statement was conclusory and involved a statement of opinion by the witness. Before making this statement Mr. Martin had testified that a gun had been held to his head, that he was forced to crawl on the floor, that he had been beaten over the head until rendered unconscious, and that money and several other items had been taken from the store. His later testimony that he had been "robbed" was thus properly admitted as a shorthand statement of the facts.

Defendants also allege that the trial court erred in denying their motions to dismiss on the ground that the evidence was insufficient to sustain their convictions. In ruling upon defendants' motion to dismiss, the trial court is required to interpret the evidence in the light most favorable to the State, drawing all reasonable inferences in the State's favor. State v. King, 299 N.C. 707, 264 S.E.2d 40 (1980); State v. Powell, 299 N.C. 95, 261 S.E.2d 114 (1980). The defendants' motion must be denied if the State has offered substantial evidence against defendant of every essential element of the crime charged. "Substantial evidence" is defined as that amount of relevant evidence that a reasonable mind might accept as adequate to support a conclusion. State v. Fletcher, 301 N.C. 709, 272 S.E.2d 859 (1981); State v. Smith, 300 N.C. 71, 265 S.E.2d 164 (1980). The test of the sufficiency of evidence to withstand dismissal is the same whether the State's evidence is direct, circumstantial, or a combination of the two. State v. Cutler, 271 N.C. 379, 156 S.E.2d 679 (1967).

An armed robbery occurs when an individual takes or attempts to take personal property from the person of another, or in his presence, or from any place of business or residence where there is a person or persons in attendance, by the use or threatened use of a dangerous weapon, whereby the life of a person is endangered or threatened. G.S. 14-87. See also State v. Ballard, 280 N.C. 479, 186 S.E.2d 372 (1972); State v. Waddell, 279 N.C. 442, 183 S.E.2d 644 (1971). In the case sub judice, the defendants acknowledged that a robbery had taken place. The State presented evidence tending to show that Hal Martin was robbed at gunpoint by more than one person, that the persons who robbed him fled from the scene in a red Dodge Aspen, that at least one person fled from the Dodge into the woods at the end of a high speed chase by a county police officer, that police officers used a bloodhound to follow the trail of that person to a location where both defendants were found hiding under a bridge, and that a .32 caliber revolver was also found at that location. After considering this evidence in the light most favorable to the State, we find that there was substantial evidence presented of defendants' guilt on each material element of armed robbery. The determination of defendants' guilt or innocence was therefore a question to be answered by the jury, and the trial court did not err in denying defendants' motion to dismiss.

Defendants next argue that the trial court erred in failing to instruct the jury on common law robbery. As a general rule, when there is evidence of defendant's guilt of a crime which is a lesser included offense of the crime stated in the bill of indictment, the defendant is entitled to have the trial judge submit an instruction on the lesser included offense to the jury. State v. Redfern, 291 N.C. 319, 230 S.E.2d 152 (1976); State v. Bell, 284 N.C. 416, 200 S.E.2d 601 (1973). Common law robbery is a lesser included offense of armed robbery, and an indictment for armed robbery will support a conviction of common law robbery. State v. Black, 286 N.C. 191, 209 S.E.2d 458 (1974). Nevertheless, the trial judge is not required to instruct on common law robbery when the defendant is indicted for armed robbery if the uncontradicted evidence indicates that the robbery was perpetrated by the use or threatened use of what appeared to be a dangerous weapon. Justice Branch (later Chief Justice), speaking for the Court in State v. Thompson, 297 N.C. 285, 289, 254 S.E.2d 526, 528 (1979), set forth the test for determining when an instruction on common law robbery is required as follows:

"We conclude that when the State offers evidence in an armed robbery case that the robbery was attempted or accomplished by the use or threatened use of what appeared to the victim to be a firearm or other dangerous weapon, evidence elicited on cross-examination that the witness or witnesses could not positively testify that the instrument used was in fact a firearm or dangerous weapon is not of sufficient probative value to warrant submission of the lesser included offense of common law robbery. When a person perpetrates a robbery by brandishing an instrument which appears to be a firearm, or other dangerous weapon, in the absence of any evidence to the contrary, the law will presume the instrument to be what his conduct represents it to be a firearm or other dangerous weapon."

See also State v. Rivens, 299 N.C. 385, 261 S.E.2d 867 (1980).

In the case before us, Mr. Hal Martin testified that all he observed during the incident before being rendered unconscious was the barrel of a gun, held at his forehead. There is no evidence in the record to contradict this testimony. We therefore presume the instrument described by Mr. Martin to be a firearm, and hold that the trial court properly refused defendants' request for an instruction on common law robbery.

II

We next address those issues argued solely by defendant Porter.

Porter contends that the trial court erred in denying his motion to participate as co-counsel at his trial, in violation of his constitutional right to represent himself, guaranteed by the Sixth Amendment to the United States Constitution. The Sixth Amendment, made applicable to the states by the Fourteenth Amendment, guarantees the accused in a State criminal action the right to proceed without counsel and represent himself at trial when he voluntarily and knowingly elects to do so. Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975); State v. Robinson, 290 N.C. 56, 224 S.E.2d 174 (1976). Defendant Porter urges us to interpret the holding of the United States Supreme Court in Faretta v. California, supra, as establishing not only the right to represent oneself in a criminal action, but also as establishing the right of an accused to represent himself as co-counsel with an attorney. This Court has previously held in State v. House, 295 N.C. 189, 244 S.E.2d 654 (1978), that the Faretta decision extends only to an accused's right to forego all assistance of counsel and does not create a right to be simultaneously represented by himself and an attorney. We reaffirmed this holding in State v. Parton, --- N.C. ---, 277 S.E.2d 410 (1981). It is clear that in this jurisdiction, an accused has the right to appear in propria persona or, in the alternative, by counsel. Since defendant Porter elected to retain the services of his court-appointed attorney, the trial court properly denied his motion to participate as co-counsel, and his allegations to the contrary are without merit.

By his next assignment of error, defendant submits that the trial court erred in granting the State's motion to join his case with defendant Ross' case for trial, and erred...