State v. Roberts

Decision Date13 June 1977
Docket NumberNo. 83,83
Citation293 N.C. 1,235 S.E.2d 203
CourtNorth Carolina Supreme Court
PartiesSTATE of North Carolina v. Allen ROBERTS.

Rufus L. Edmisten, Atty. Gen., William B. Ray, Asst. Atty. Gen., William W. Melvin, Sp. Deputy Atty. Gen., Raleigh, for the State of North Carolina.

Henry D. Gamble, Durham, for defendant-appellant.

HUSKINS, Justice:

Defendant first assigns as error the denial of his motion to suppress the in-court identification of defendant by Miss Fahey. Defendant contends the prosecutrix saw her assailant for only two or three minutes during which time she was beaten about the face. Therefore, defendant argues, Miss Fahey is not competent to identify him as her assailant. This assignment is not supported by an exception duly taken at trial and therefore presents no question for appellate review. State v. Green, 280 N.C. 431, 185 S.E.2d 872 (1972); State v. Jacobs, 278 N.C. 693, 180 S.E.2d 832 (1971); 1 Strong, N.C. Index 2d, Appeal and Error § 24. Nevertheless, upon examination we find the identification of defendant by Miss Fahey clearly competent and admissible.

On voir dire the victim testified that she had twenty-twenty vision when wearing her contacts and that she was wearing her contact lenses on 10 June 1974 as she walked through Duke Gardens in bright sunlight. She observed defendant for about five seconds when she turned to see who was following her. She observed him again for two to three minutes while he dragged her into some bushes and had sexual intercourse with her. On 1 July 1974 she identified defendant at his preliminary hearing. At that time he was sitting among approximately twenty other black men in the courtroom. She had not been told where he would be sitting and her attention had not been directed to him in any way. She recognized defendant by his prominent jawline and facial expressions. David LaBarre, defendant's former attorney in this matter, also testified on voir dire that the prosecutrix identified defendant at the preliminary hearing on 1 July 1974. On cross-examination Miss Fahey said she told LaBarre that she had not been shown any pictures of defendant or viewed him in a lineup prior to the hearing, and LaBarre testified he had no knowledge of any acts on the part of any person which would tend to suggest to the prosecutrix that defendant was her assailant.

The trial court made findings of fact and then concluded that ". . . the identification by the prosecutrix of the defendant as the person who allegedly assaulted her was and is based upon her independent recollection of the event without suggestion as to identity from any person." The trial court's findings were amply supported by competent evidence and are therefore binding on this Court. State v. Alford, 289 N.C. 372, 222 S.E.2d 222 (1976); State v. Henderson, 285 N.C. 1, 203 S.E.2d 10 (1974); State v. Stepney, 280 N.C. 306, 185 S.E.2d 844 (1972).

By his next assignment of error, defendant contends the trial court erred in permitting Holeman to testify to statements made by defendant before, during and after the rape of Miss Fahey. More specifically, defendant contends that, in light of Holeman's statement on cross-examination that he had received only a warning to stay out of trouble as a result of his participation in the alleged crimes, the trial court should have instructed the jury to scrutinize Holeman's testimony as that of an interested witness. No request for such an instruction was made by defendant and, in the absence of a request, the court is not required to give a cautionary instruction that the jury scrutinize the testimony of a witness on grounds of interest or bias. State v. Vick, 287 N.C. 37, 213 S.E.2d 335 (1975), cert. den., 423 U.S. 918, 96 S.Ct. 228, 46 L.Ed.2d 367 (1975); State v. Brinson, 277 N.C. 286, 177 S.E.2d 398 (1970). This assignment of error is overruled.

The trial court, after a voir dire hearing, denied defendant's motion to suppress evidence pertaining to in-custody statements to the police. Defendant assigns the denial of this motion as error.

The trial court found that prior to interrogation of the defendant, Officer Hayes of the Durham Police Department fully advised defendant of his constitutional rights; that defendant said he fully understood these rights, did not want an attorney present, and that he would make a statement. Defendant then signed the waiver of rights form in Officer Hayes' presence, after which he recounted the events leading up to the assault of Miss Fahey. Concerning the rape itself, defendant stated only, "Well, whatever John told you, that is the way it happened." Against the advice of counsel, defendant refused to testify on voir dire. He now urges to this Court that the waiver is ineffectual because it is not signed but printed. This contention is feckless. Officer Hayes testified on voir dire that some defendants sign the form while others print their names and that defendant willingly and without fear of punishment or hope of reward printed his name on the waiver form in his presence. We fail to see any legal significance in the fact that defendant printed his name instead of signing it. Judge Canaday's findings are supported by competent evidence and the findings in turn support his conclusions that a voluntary and knowing waiver of rights occurred. Consequently, his denial of the motion to suppress is conclusive on appeal. State v. Simmons, 286 N.C. 681, 213 S.E.2d 280 (1975); State v. McRae, 276 N.C. 308, 172 S.E.2d 37 (1970). See also State v. Patterson, 288 N.C. 553, 220 S.E.2d 600 (1975); G.S. 7A-457(c) (Cum.Supp.1975).

Defendant next contends the trial court erred in instructing the jury on what the evidence presented in the case "tends to show" in that use of this phrase misleads the jury into believing that all the evidence restated by the judge is true. This contention is without merit. State v. Huggins,269 N.C. 752, 153 S.E.2d 475 (1967); State v. Jackson, 228 N.C. 656, 46 S.E.2d 858 (1948); 3 Strong, N. C. Index 2d, Criminal Law § 114. The record reveals repeated reminders to the jury that it must determine what the evidence adduced at trial did in fact show. In addition, the trial judge concluded his instructions with the declaration that he did not have any opinion on what the verdict in the case should be. This assignment is overruled.

After jury deliberations had begun, the jury returned to the courtroom to request a repetition of the definitions of first and second degree rape and to ask what recourse existed when members of the jury remembered different versions of certain testimony. The court reiterated the definitions but refused to review any of the evidence, giving only the following instruction:

". . . (L)adies and gentlemen, as I instructed you during the charge, you are the sole triers of the facts. You must determine what those facts are and any differences of recollection with respect to the facts, any differences in evaluation of those facts must be resolved among yourselves."

Defendant now assigns as error the trial court's refusal to review the evidence, contending the trial court should have inquired into the source of the jury's confusion. As defendant lodged no objection to the court's instruction, his assignment of error on appeal is to no avail. State v. Green, supra; State v. Jacobs, supra. See also State v. Dill, 184 N.C. 645, 113 S.E. 609 (1922). Even were this assignment properly presented, we note it is generally held that in the absence of a statute governing the situation the decision to review evidence after the jury has begun its deliberations rests in the sound discretion of the trial judge. State v. Covington, 290 N.C. 313, 226 S.E.2d 629 (1976). See generally Annot., 50 A.L.R.2d 176 (1956). Although a review of certain evidence might have proved helpful to the jury, we will not presume prejudice from the court's refusal to refresh the jurors' recollections and defendant has shown none. This assignment is overruled.

Concerning his conviction for common law robbery, defendant brings forward two assignments of error: first, that his motion as of nonsuit was erroneously denied and second, that the trial court erred in its instructions on common law robbery.

It is elementary that a motion as of nonsuit requires the trial court to consider the evidence in the light most favorable to the State, giving the State the benefit of every reasonable inference to be drawn therefrom. State v. Caron, 288 N.C. 467, 219 S.E.2d 68 (1975); State v. Vestal, 278 N.C. 561, 180 S.E.2d 755 (1971). If there is evidence, whether direct, circumstantial or both, from which the jury could find that the offense charged has been committed and that defendant committed it, the motion as of nonsuit should be overruled. State v. Caron, supra; State v. Cooke, 278 N.C. 288, 179 S.E.2d 365 (1971); State v. Goines, 273 N.C. 509, 160 S.E.2d 469 (1968). The evidence here tends to show that defendant requested Holeman to accompany him to Duke Gardens; that during defendant's assault on Miss Fahey, Holeman forcibly removed her pocketbook from her arm and that defendant then called to Holeman to bring him the purse and covered Miss Fahey's mouth to stop her screaming. After the assault, Holeman hid the pocketbook and wallet but kept the money, car keys, driver's license and bank book he found inside. When defendant next saw Holeman, he asked what had been done with the purse and demanded the items taken from the purse, which Holeman gave to him. Defendant also warned Holeman not to tell anyone about the robbery or rape of Miss Fahey. The Durham Police later found Miss Fahey's car keys in the possession of a girl friend of defendant. We hold this evidence sufficient to carry to the jury the question of defendant's guilt or innocence of the crime of common law robbery. The motion for nonsuit was properly denied.

Defendant's assignment of error challenging the definition of common law robbery is broadside and...

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