State v. Westry, No. 7218SC205

• Decision Date: 28 June 1972
• Docket Number: No. 7218SC205
• Citation: 15 N.C.App. 1,189 S.E.2d 618
• Court: North Carolina Court of Appeals
• Parties: STATE of North Carolina v. Michael Edward WESTRY. STATE of North Carolina v. Algernon McCUTCHEON. STATE of North Carolina v. Walter Curtis MILLER. STATE of North Carolina v. Franklin Monroe ABBNEY.

Page 618

189 S.E.2d 618

15 N.C.App. 1

STATE of North Carolina v. Michael Edward WESTRY.

STATE of North Carolina v. Algernon McCUTCHEON.

STATE of North Carolina v. Walter Curtis MILLER.

STATE of North Carolina v. Franklin Monroe ABBNEY.

No. 7218SC205.

Court of Appeals of North Carolina.

June 28, 1972 Certiorari Denied by Supreme Court Aug. 31, 1972.

Atty. Gen. Robert Morgan and Asst. Atty. Gen., I. Beverly Lake, Jr., for the State.

Public Defenders Wallace C. Harrelson and Dale Shepherd, for defendant appellants.

MALLARD, Chief Judge.

In the trial in superior court, the defendant Westry was represented by the Public Defenders for the Eighteenth Judicial District and each of the other defendants individually by appointed counsel. Based upon a total of more than 170 exceptions and 150 assignments of error, these defendants present eleven questions for decision on this appeal. Eight of these questions are common to all of the defendants, one pertains to both defendants Miller and Abbney, one pertains only to the defendant McCutcheon and another pertains only to the defendant Westry. This is the proper and preferred manner of perfecting a joint appeal and is commendable. We shall consider each question separately, with appropriate designation when the question applies to fewer than all of the defendants.

The first question involved in this appeal is whether the court erred 'in charging the jury on the punishment that the charged crime carried.' The defendants rely primarily upon the case of State v. Rhodes, 275 N.C. 584, 169 S.E.2d 846 (1969), but that case is not controlling under the present circumstances. In Rhodes, the jury returned to the courtroom after having begun their deliberations and specifically requested to know the penalty for one of the lesser included offenses of the crime charged, which implied that such information would have a bearing upon their decision of guilt or innocence. Even so, the Supreme Court held that the error committed in informing the jury of the maximum penalty involved was not prejudicial, adding that: 'It does not follow, however, that instructions disclosing the punishment authorized by statute will always constitute prejudicial error.'

In the case before us, the only mention of 'punishment' in Judge Seay's instructions was when the applicable statute, G.S. § 14--87, was read verbatim to the jury. Although this practice is not approved in an armed robbery case, we think that in the present case any error resulting from a plain reading of the statute without further comment was neither material nor prejudicial. See State v. Hill, 9 N.C.App. 410, 176 S.E.2d 350 (1970).

The defendants, in questions 'II' and 'III,' also contend that the court erred in its charge to the jury concerning 'aiding and abetting' and as to 'felonious intent.' No exact forms or words are required to properly instruct a jury upon 'aiding and abetting' or 'felonious intent.' See State v. Mundy, 265 N.C. 528, 144 S.E.2d 572 (1965); State v. Anderson, 5 N.C.App. 492, 168 S.E.2d 444 (1969). When the Entire 'Charge of the Court' as it appears in the record on appeal is considered as a contextual whole, we hold that it is free from prejudicial error.

The defendants' fourth contention is that the court committed error 'in refusing to allow the motion to suppress the identification of the defendants made by Linda Greeson, Walter Snow and Gary Knight, and in finding that the identification made by these three witnesses was not tainted by an improper identification procedure.' In this regard, we note that the trial judge conducted exhaustive pre-trial voir dire examinations, examinations covering over fifty pages in the record on appeal, to determine the propriety of admitting such identification testimony and found that the in-court identification would not be 'tainted by an improper out-of-court identification; that there was no improper out-of-court identification; and that no suggestions were made by any police officers as to the identity of the participants in the alleged robbery.'

As previously set out, the four defendants were stopped on Highway 29 near Reidsville by a State highway patrolman as the result of a radio transmission describing the defendants and the automobile in which they were riding. Shortly thereafter (within less than an hour), members of the Greensboro Police Department transported the three victims of the robbery to the point on Highway 29 where the defendants were being detained and the defendants were initially identified at that time. Additionally, the witness Greeson was asked at the time the defendants were being photographed in Greensboro on the same evening 'what each of them that she had identified did during the robbery.'

The defendants contend that two points are raised by this procedure: (1) 'whether the identification procedure was too suggestive' and (2) 'whether the defendants were denied rights to counsel because of the lineup,' and rely primarily upon the cases of United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967) and Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967). The effect and application of these two cases, and of other constitutional considerations, have been much discussed and analyzed both by this court and by the North Carolina Supreme Court in a number of subsequent opinions involving similar pre-trial identifications. The following cases have uniformly held that the absence of counsel during such out-of-court identification procedures (contrary to the assertion in defendants' brief, there was no 'lineup' in the present case) is not necessarily violative of an accused's constitutional rights and does not require the suppression or exclusion of subsequent in-court identification testimony. State v. Banner, 279 N.C. 595, 184 S.E.2d 257 (1971); State v. Thompson, 278 N.C. 277, 179 S.E.2d 315 (1971); State v. Murphy, 10 N.C.App. 11, 177 S.E.2d 917 (1970), appeal dismissed, 277 N.C. 727, 178 S.E.2d 830, cert. denied 278 N.C. 105, 179 S.E.2d 453; State v. Gatling, 5 N.C.App. 536, 169 S.E.2d 60 (1969), aff'd, 275 N.C. 625, 170 S.E.2d 593, and State v. Bertha, 4 N.C.App. 422, 167 S.E.2d 33 (1969). See also, Russell v. United States, 133 U.S.App.D.C. 77, 408 F.2d 1280 (1969), cert. denied, 395 U.S. 928, 89 S.Ct. 1786, 23 L.Ed.2d 245 (1969); State v. Blackwell, 276 N.C. 714, 174 S.E.2d 534 (1970), cert. denied, 400 U.S. 946, 91 S.Ct. 253, 27 L.Ed.2d 252; State v. Williams, 274 N.C. 328, 163 S.E.2d 353 (1968); State v. Accor and State v. Moore, 13 N.C.App. 10, 185 S.E.2d 261 (1971), aff'd, N.C., 188 S.E.2d 332 (filed May 10, 1972) and State v. Stamey, 3 N.C.App. 200, 164 S.E.2d 547 (1968).

We further note that in the present case the victims of the crime had ample opportunity to observe the defendants during the course of the robbery and that they indicated during the voir dire examinations and the court found that their in-court identification was based upon this independent observation, that the defendants were apprehended within one hour after the commission of the armed robbery and were confronted with the identifying witnesses within a matter of minutes thereafter, that no active cooperation (other than their presence) was required of the defendants, that all of the physical evidence and prior descriptions corroborated the identifications and, primarily, that the trial judge conducted full and fair voir dire examinations and concluded that the witnesses' identification testimony of the defendants would not be 'tainted' by improper out-of-court identification.

In State v. Banner, Supra, Justice Higgins made the following observations:

'* * * Both federal and state cases hold evidence of a prior identification will not invalidate the in-court identification unless the former was fundamentally unfair. The totality of the circumstances surrounding the prior identification will determine its admissibility at the trial. To remove the likelihood of a false identification is the purpose of the exclusionary rule. If the in-court identification is of independent origin, a prior confrontation of a suspect in the custody of the officers will not warrant excluding the identifying testimony. Foster v. California, 394 U.S. 440, 89 S.Ct. 1127, 22 L.Ed.2d 402; State v. Austin, 276 N.C. 391, 172 S.E.2d 507, and cases therein cited.

This the officers knew: The defendant was arrested near the time and place of the robbery, attired in a shirt with alternating white and gold stripes around the body, golden orange colored corduroy trousers with a tear on the right hip. Surely this description with the other evidence was sufficient to make out the case of robbery. However, to guard against charging one whom the victim might exonerate, the officers requested the witness to look at the defendant. The physical evidence was sufficient to make out the case. Hence the defendant's chance of release depended not on a failure of the witness to identify him, but on her opinion he was not the robber. The confrontation was to guard against holding the wrong man. State v. McNeil, 277 N.C. 162, 176 S.E.2d 732.'

The assignments of error relating to the court's refusal to suppress the identification of the defendants made by witnesses Knight, Greeson and Snow are overruled.

The defendant's fifth contention is that the trial court erred 'in failing to find that there was no probable cause for the arrest of all the defendants and in finding that the arrests were valid.' This contention is also without merit. The defendants would have us make the distinction between probable cause and 'mere suspicion.' Without again setting forth the entire factual situation in the case before us, we think that Patrolman Durham was justified in assuming, based upon the radio 'alert' that he had just received, that the four Negro men he observed traveling north from Greensboro in a 1968 blue and white Dodge Charger automobile bearing the District of...