State v. Rinck, 45

• Citation: 303 N.C. 551,280 S.E.2d 912
• Decision Date: 17 August 1981
• Docket Number: No. 45,45
• Parties: STATE of North Carolina v. Bobby Dean RINCK and Ronald Dean McMurry.
• Court: United States State Supreme Court of North Carolina

Page 912

280 S.E.2d 912

303 N.C. 551

STATE of North Carolina v. Bobby Dean RINCK and Ronald Dean McMurry.

No. 45.

Supreme Court of North Carolina.

Aug. 17, 1981.

Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. Ralf F. Haskell, Raleigh, for the State.

Robert M. Grant, Jr., Newton, for defendant Bobby Dean Rinck.

Thomas C. Morphis, Hickory, for defendant Ronald Dean McMurry.

COPELAND, Justice.

I

While defendants have filed separate briefs before this court, there are several issues that are argued by both of them. Therefore, for the sake of clarity and convenience, those issues which are raised by both defendants will be addressed first.

A

Defendants argue first that the trial court erred in granting the State's motion to consolidate their cases for trial. The essence of their argument is that by granting the State's motion, the trial court allowed the jury to consider evidence which was competent against only one defendant against both of them. We are compelled to disagree.

Upon the written motion of the prosecutor, charges against two or more defendants may be joined for trial when each of the defendants is charged with accountability for each offense. G.S. § 15A-926(b)(2) (1978). Such motions are addressed to the sound discretion of the trial court and are not reviewable on appeal absent a showing of abuse of discretion. E. g., State v. Hardy, 293 N.C. 105, 235 S.E.2d 828 (1977).

There has been no showing that the trial court abused its discretion. In the case sub judice, each defendant was charged with having committed the same offense at the same time; the first-degree murder of Donald B. Williamson on or about the 19th day of August 1979. Neither defendant acted at trial in such a way as to incriminate the other, and their defenses were not antagonistic. While it is the case that, on occasion, the State presented evidence that was competent only against one of the defendants, the trial court proceeded at those times to instruct the jury that such evidence was competent only against a particular defendant. Compare State v. Clark, 298 N.C. 529, 259 S.E.2d 271 (1979).

B

During its case-in-chief, the State offered the testimony of Mrs. Denise Allen, a dispatcher with the Catawba County Sheriff's Department, concerning a call for assistance which she received at 1:16 a. m. on 19 August 1979. Purporting to be decedent Williamson, the caller said that he had been robbed of his pocketbook which contained thirty-five dollars. Upon inquiry by the dispatcher, the caller identified his assailant as being "Bobby Swink." At the close of the voir dire held to determine the competency of Mrs. Allen's testimony concerning the conversation, the trial court ruled that the testimony was admissible as part of the res gestae of the crime of robbery but not as part of the res gestae of burglary. However, the trial court received the proffered testimony without limiting its consideration by the jury. There was no error.

Initially, we are compelled to observe that defendants are in violation of the Rules of Appellate Procedure. Rule 10(c) provides, in pertinent part, that "(e)ach assignment of error ... shall be followed by a listing of all the exceptions upon which it is based, identified by their numbers and by the pages of the record on appeal at which they appear." The exceptions to the actual receipt of the evidence in question are not so listed. Therefore, the Rules of Appellate Procedure mandate that they are deemed abandoned. N.C.R.App. p. 10(c). However, because of the gravity of this crime and the severity of the punishment imposed, we have elected to exercise our discretion and reach the merits of the argument. See N.C.R.App. p. 2.

We note initially that even if the trial court had committed error in its handling of this matter, that action could not have prejudiced defendant McMurry because the trial judge instructed the jury that it was not to consider the testimony of the dispatcher against him. The record indicates that, upon giving this instruction, the court asked the jury if the instruction was clear, and that all of the jurors nodded affirmatively. That being the case, defendant McMurry has no basis upon which to argue prejudicial error. See State v. Clark, supra.

Similarly, defendant Rinck has no basis upon which to assert error. Defendant Rinck made a series of general objections to the dispatcher's testimony. At no time did he request a special instruction which would limit the jury's consideration of the evidence. Defendant's only motion sought to strike the entire conversation, not an instruction to limit its consideration by the jury. Consequently, the overruling of defendant Rinck's general objection without an appropriate limiting instruction was not error. State v. Montgomery, 291 N.C. 91, 229 S.E.2d 572 (1976).

C

Defendants next contend that the trial court erred in receiving evidence at trial which was obtained as a result of an illegal and unconstitutional arrest. An individual is arrested when law enforcement officers interrupt his activities and significantly restrict his freedom of action. State v. Morgan, 299 N.C. 191, 261 S.E.2d 827, cert. denied, 446 U.S. 986, 100 S.Ct. 2971, 64 L.Ed.2d 844 (1980). No one disputes that defendants were placed under arrest within a matter of minutes after being stopped as they walked along the road near decedent's house. However, defendants argue that there was no basis upon which law enforcement officers could legally detain or search them. If defendants are correct in their position, it follows necessarily that the subsequent arrests were invalid and cannot justify a search of their persons. After careful deliberation, we conclude that this assignment is without merit.

If from the totality of circumstances, a law enforcement officer has reasonable grounds to believe that criminal activity may be afoot, he may temporarily detain an individual. Terry v. Ohio, 392 U.S. 1, 20 L.Ed.2d 889, 88 S.Ct. 1868 (1968); State v. Buie, 297 N.C. 159, 254 S.E.2d 26, cert. denied, 444 U.S. 971, 100 S.Ct. 464, 62 L.Ed.2d 386 (1979); State v. Thompson, 296 N.C. 703, 252 S.E.2d 776, cert. denied, 444 U.S. 907, 100 S.Ct. 220, 62 L.Ed.2d 143 (1979); State v. Streeter, 283 N.C. 203, 195 S.E.2d 502 (1973). If upon detaining the individual, the officer's personal observations confirm that criminal activity may be afoot and suggest that the person detained may be armed, the officer may frisk him as a matter of self-protection. Terry v. Ohio, supra; State v. Buie, supra; State v. Streeter, supra.

In State v. Streeter, supra, the State's evidence tended to show that while they were on routine patrol at approximately 2:45 a. m., two police officers in Greenville, North Carolina observed the defendant walking along a highway roughly four hundred feet from a doctor's office. Because of the time and his proximity to the nearby business offices, defendant was approached by the officers and directed to stop. One of the officers testified that they had stopped the defendant to learn his identity and the reason he was in the area at that hour of the morning. As he talked with the defendant, one of the officers observed a bulge under the defendant's shirt, and he ordered defendant not to move. Thinking that the bulging object was a weapon, the officer touched it and though the object was made of metal. The policeman thereupon reached under the defendant's shirt and found one pair of gloves, one screwdriver, one hammer, one prybar, a flashlight, and a bank bag. Thereupon, the officers seized the items and arrested defendant for the possession of burglary tools. Over the objection of defendant, the trial court received the testimony of one of the officers concerning the encounter, as well as the items that had been seized.

On appeal, this court affirmed the judgment of the Court of Appeals finding no error in the defendant's trial. Writing for the majority, Justice Huskins drew upon the rule and rationale enunciated in Terry v. Ohio, supra, to uphold the officer's conduct in stopping the defendant and subsequently frisking him for weapons. The opinion notes that:

"Crimes of violence are on the increase, and officers are becoming the victims of such crimes in increasing numbers. As a result the necessity for officers to protect themselves and others in situations where probable cause for an arrest may be lacking is now recognized and permitted. Of course, North Carolina has no 'stop and frisk' statute although many states do. (Citation omitted.) The lack of such a statute, however, is not fatal to the authority of law enforcement officers in North Carolina to stop suspicious persons for questioning (field interrogation) and to search those persons for dangerous weapons (frisking). These practices have been a time-honored police procedure and have been recognized as valid at common law 'as a reasonable and necessary police authority for the prevention of crime and the preservation of public order.' " (Citations omitted.) 283 N.C. at 209, 195 S.E.2d at 506.

It is our conclusion that Streeter controls the case sub judice, and, therefore, we hold that on the facts of this particular case there was nothing illegal about defendants being stopped or searched. It must be remembered that defendants were walking along the road at an unusual hour for persons to be going about their business. In this regard, the present case approximates the situation dealt with in Streeter. However, in one critical respect, there was a more compelling reason for stopping defendants as they walked along the road. The officer who directed them to stop knew that a homicide had been committed within a few hundred feet and within little more than the preceding half hour. While these circumstances do not constitute probable cause for an arrest, they do amount to a reasonable basis for directing defendants to stop and identify themselves.

However, to say that it was lawful to stop defendants as they...