Summary
rejecting defendant's argument that an instruction on common law robbery was required because "[t]here was no evidence that would warrant or support a finding that defendant was guilty of a lesser included offense"
Summary of this case from State v. ClevingerOpinion
No. 115
Filed 15 December 1971
1. Criminal Law 66 — in-court identification — necessity for voir dire The trial court did not err in permitting an in-court identification of defendant by a robbery and assault victim without first finding on a voir dire examination that such identification did not result from an illegal, out-of-court confrontation, where there was no evidence that the victim identified, or even saw, defendant between the time of the robbery and assault and the time of his in-court identification.
2. Arrest and Bail 7 — right to communicate with friends and relatives The record does not support assertions by defendant that he was illegally imprisoned in jail for five days without a warrant and that during this interval he was not afforded counsel or permitted to communicate with friends or relatives.
3. Criminal Law 75, 84 — pistol voluntarily produced by defendant — failure to hold voir dire Where the record shows that, in the course of the sheriff's investigation of a felonious assault and an armed robbery, the sheriff asked defendant whether he owned a weapon and defendant got a .38 pistol from his room and handed it to the sheriff, the trial court did not err in admitting the pistol into evidence and permitting the sheriff to testify where it was obtained without first finding on voir dire that defendant voluntarily produced the pistol, there being no request for or occasion for a voir dire hearing.
4. Robbery 5 — armed robbery — failure to submit common law robbery In this armed robbery prosecution, the trial court did not err in failing to instruct the jury on the lesser included offense of common law robbery where the State's evidence showed a completed robbery at gunpoint and there was no evidence that would support a finding that defendant was guilty of the lesser offense.
5. Robbery 1 — elements of robbery and armed robbery — assault — assault with deadly weapon The crime of robbery includes an assault on the person; the crime of armed robbery defined in G.S. 14-87 includes an assault on the person with a deadly weapon.
6. Assault and Battery 5; Robbery 1 — felonious assault — intent to kill — serious injury — armed robbery The elements of intent to kill and infliction of serious injury which are essentials of the crime of felonious assault defined in G.S. 14-32(a) are not essentials of the crime of armed robbery defined in G.S. 14-87.
7. Assault and Battery 4; Robbery 1 — assault in perpetration of robbery An assault is committed in the perpetration of a robbery if made to overcome resistance, to effectuate flight, or to eliminate the possibility of identification by the victim, notwithstanding the assault may occur after the robber has taken possession of the victim's goods.
8. Assault and Battery 5; Robbery 6 — felonious assault during robbery — separate crime The fact that a felonious assault is committed during the perpetration of armed robbery does not deprive the felonious assault of its character as a complete and separate felony.
9. Assault and Battery 5; Criminal Law 26; Robbery 6 — armed robbery — felonious assault — continuous course of conduct — conviction of both crimes When separate indictments for armed robbery and felonious assault based on separate features of one continuous course of conduct are tried together, verdicts of guilty as charged will support separate judgments for each crime, since all of the essential elements of felonious assault are not essential elements of armed robbery, notwithstanding the two crimes share the common element of assault with a deadly weapon.
APPEAL by defendant from Kivett, J., September 14, 1970 Criminal Session of ANSON Superior Court, transferred for initial appellate review by the Supreme Court under general order of July 31, 1970, entered pursuant to G.S. 7A-31(b)(4), docketed and argued as No. 34 at Spring Term 1971.
Attorney General Morgan and Staff Attorney Ricks for the State.
E. A. Hightower for defendant appellant.
Justice LAKE concurring.
Justice HIGGINS concurring in the decision in Case No. 2296 and dissenting in the decision in Case No. 2295.
These criminal prosecutions were based on two bills of indictment, viz.:
In Case No. 2295 the bill charged that on July 2, 1970, defendant, Charlie Richardson, Jr., ". . . did, unlawfully, willfully, and feloniously assault Lester Smith with a certain deadly weapon, to wit: a gun, with the felonious intent to kill and murder the said Lester Smith, inflicting serious injuries, not resulting in death, upon the said Lester Smith, to wit: by shooting him about the head, face, body and limbs, . . . ."
In Case No. 2296 the bill charged that on July 2, 1970, defendant, Charlie Richardson, Jr., ". . . unlawfully, willfully, and feloniously, having in his possession and with the use and threatened use of firearms, and other dangerous weapons, implements, and means, to wit: A Gun, A 22 cal. pistol, whereby the life of Lester Smith was endangered and threatened, did then and there unlawfully, willfully, forcibly, violently and feloniously take, steal, and carry away money in amount of $50.00; 22 Cal. Pistol, and a wallet, of the value of less than $200. from the presence, person, place of business . . . of Lester Smith . . . ."
On July 16, 1970, District Court Judge Langley, after inquiry, found defendant an indigent and appointed Enos T. Edwards, Esq., to represent him.
In the superior court, defendant, through his court-appointed counsel, entered pleas of not guilty to the charges in the indictments. Without objection, the two cases were consolidated for trial.
The State's evidence tends to show the facts narrated below.
Bigguns Texaco Service Station is located on Highway 74 about 14 miles east of Wadesboro, N.C. Lester Smith was the employee on duty at about 8:00 a.m. on July 2, 1970, when the alleged robbery and assault occurred. Smith first observed defendant while Smith was engaged in carrying out some trash. Defendant was then coming down the side of the road toward the station. Upon Smith's return to the station, defendant was standing at the front door. Defendant followed Smith into the station and asked for a package of gum.
When Smith turned around to hand defendant the gum, defendant pulled a .38 pistol out from under his shirt, pointed it in Smith's face and told Smith "it was a holdup and to do as he was told." While holding the .38 pistol in his right hand and pointing it in Smith's face, defendant took approximately $50.00 from the cash register and Smith's loaded .22 caliber pistol from a cigar box near the cash register. Defendant made Smith take off his pants and shoes, go to the back of the store, lie down with his face on his hands. Defendant then shot Smith three times in the back of the head with the .22 caliber pistol.
Smith remained conscious but continued to lie still on the floor until defendant went out and shut the door. Thereafter Smith went to a side door and saw defendant about one-tenth of a mile away, walking along the rural paved road which ran southward. Smith then came out the front door, stopped a car and was carried to a hospital where he was operated on and three .22 caliber bullets were extracted from his head.
On July 7, 1970, "[i]n carrying out his investigation," Sheriff Jarman saw defendant at Greene's Peach Camp, a campground for migrant workers during peach season. The camp is located "some 3 miles from Bigguns Texaco." After advising him of his constitutional rights, Sheriff Jarman asked defendant if he was the owner of any weapons of any kind. Defendant admitted he had a gun and got a .38 caliber pistol from his room and handed it to the sheriff. Then and since then defendant has steadfastly denied being at Bigguns Texaco on July 2, 1970. On July 7, 1970, he told the sheriff he had spent the night of July 1, 1970, at the home of Jimmy Little, a friend, in Harlem Heights, Wadesboro, N.C., and was there at 8:00 a.m. on the following morning. The sheriff never did find the .22 pistol with which Smith was shot.
Defendant testified and offered evidence tending to show the facts narrated below.
He did not rob or assault Smith. He did not know he was suspected of such a robbery and assault until July 7, 1970, about 7:00 a.m., when Sheriff Jarman came to Greene's Peach Camp and told him that "he wanted to talk with him for suspicion." After talking with Sheriff Jarman, defendant went back into his room and got his pistol and gave it to a deputy who had accompanied Sheriff Jarman.
Defendant spent the night of July 1, 1970, in Harlem Heights, Wadesboro, N.C., in the home of his friends, Jim Little and wife, Ella Little, and stayed there until the morning of Thursday, July 2, 1970. Defendant testified he left the home with Jim Little about 9:15 (sic) a.m. and that he stopped at a bank in Wadesboro "about 7 minutes to 9:00 o'clock" before going to a district court session in Wadesboro. Jim Little testified he and defendant left the Little home at about 8:30 a.m. in a cab and got to Wadesboro about 8:45. He saw defendant again about 9:15 at which time defendant said he was going to court. Ella Little testified her husband and defendant left "about 7:30 or 8:00 o'clock A.M." at which time defendant said "he was coming to a trial."
Defendant was not working on July 2, 1970, because he had been notified to be in district court in Wadesboro at 9:30 a.m. on that date to testify as a State's witness in a criminal case in which one Lee Vernon Henry was charged with stealing his (Richardson's) polaroid camera. He testified he arrived in district court at approximately 9:05 a.m. and remained there until the larceny case against Henry was disposed of. This occurred "a little after 12:00 o'clock." He was not a witness because Henry pleaded guilty. He received his camera and signed a release to Sgt. Hooks of the Police Department.
It was stipulated that a criminal proceeding was had against Lee Vernon Henry on July 2, 1970, in the District Court of Anson County, and that the defendant Lee Vernon Henry entered a plea of guilty as charged.
On July 1, 1970, defendant bought the .38 pistol in Ellerbe and paid $25.00 for it. He bought it with money he had found in a billfold lying beside the road. He had delivered the billfold and its contents other than money (bills) to the sheriff. Before going to the district court hearing on July 2, 1970, he left the .38 with a cab driver in Wadesboro. He expected to get it when court was over and register it with the sheriff but did not see that cab driver until the following day.
On cross-examination defendant admitted he knew the location of the Bigguns Texaco Station and went by it almost daily. He admitted he had been tried and convicted "twice for assault, once for larceny of some wrenches, and one time for breaking and entering."
In each case, the jury returned a verdict of guilty as charged. In Case No. 2296 charging armed robbery, the court imposed a sentence of not less than 22 nor more than 30 years. In Case No. 2295 charging felonious assault, the court imposed a sentence of not less than 8 nor more than 10 years, this sentence to commence upon expiration of the sentence imposed in Case No. 2296. Defendant excepted and appealed.
Upon finding that defendant was then an indigent, the court appointed E. A. Hightower, Esq., to represent him in prosecuting his appeal and ordered the state of North Carolina to pay all expenses incident thereto.
Neither in the trial court nor here has defendant challenged the sufficiency of the evidence to require submission to the jury and to support the verdicts. Apart from the isolated instruction referred to in our discussion of Assignment of Error #4, the court's charge is not made a part of defendant's case on appeal.
We shall consider first the five assignments of error set forth in the record on appeal. Thereafter, we shall consider the motion defendant filed in this Court for arrest of judgment in Case No. 2295, the felonious assault case.
In Assignment #1, defendant asserts "[t]he Court erred in permitting the in-court identification of the defendant by the witness Smith without first finding, on a voir dire examination, that his in-court identification had an independent origin and did not result from illegal, out-of-court confrontation." In his testimony at trial, Smith pointed out and positively identified defendant as the man who entered the service station and robbed and shot him. Assignment #1 is without merit for the simple reason there is no evidence whatever that Smith identified, or even saw, defendant between the time of the robbery and assault and the time of his in-court identification. The in-court identification, therefore, could not have been influenced or tainted by prior confrontation because there was no such prior confrontation.
Assignments #2 and #5 contain assertions that defendant was arrested without a warrant on July 7, 1970, and illegally imprisoned in jail without a warrant from July 7, 1970, until July 12, 1970, and that during this interval defendant was not advised of his constitutional rights or "afforded counsel" or permitted to communicate with friends or relatives. These assertions are not supported by the record. All the record discloses with reference to what occurred on July 7, 1970, is contained in the testimony of Sheriff Jarman and of defendant. The record shows that warrants for the arrest of defendant for armed robbery and felonious assault were issued July 12, 1970, and were executed the same day. Nothing in the record shows defendant was arrested and "imprisoned in jail" prior to July 12, 1970, or that he at any time was denied permission to communicate with friends or relatives. The record does disclose the formal appointment of counsel for defendant on July 16, 1970, the date of the preliminary hearings. There being no basis for consideration of the assertions therein, Assignments #2 and #5 are overruled.
In Assignment #3, defendant asserts "[t]he Court erred in permitting the .38 caliber pistol to be introduced into evidence and in permitting the Sheriff to relate where it was obtained or that it was obtained, without first finding, upon voir dire in the absence of the jury, that the production of the pistol by the defendant was done voluntarily and understandingly." Under the circumstances disclosed by the record, there was no request for or occasion for a voir dire hearing. The record indicates Sheriff Jarman's conversation with defendant on July 7, 1970, was simply an incident in the course of Sheriff Jarman's investigation of the armed robbery and felonious assault committed on Lester Smith on July 2, 1970. An inference may be drawn from the facts in evidence that the investigation by Sheriff Jarman continued in order to afford opportunity to check the statements made to him by defendant on July 7, 1970, when defendant voluntarily delivered the .38 pistol to Sheriff Jarman.
The only portion of the charge in the record is the following: "Now, as to the charge in that Bill of Indictment, which is referred to as armed robbery, you may return one of two verdicts, members of the jury. You may either find the defendant guilty of armed robbery, as charged, or not." Assignment #4 is based on defendant's exception to this isolated excerpt from the charge. Defendant contends the court erred in charging the jury in Case No. 2296 that they might return a verdict of guilty of armed robbery as charged or a verdict of not guilty. Since a charge must be considered contextually and not piecemeal, the record is insufficient to support this assignment. Even so, defendant's contention that the court should have instructed the jury that they might return a verdict of guilty of common law robbery is without merit. The State's evidence, which showed a completed robbery of Lester Smith at gunpoint, was positive and unequivocal as to each and every element of the crime charged in the bill of indictment in Case No. 2296. The crucial issue was whether the crime was committed by defendant. There was no evidence that would warrant or support a finding that defendant was guilty of a lesser included offense. Hence, the court's instruction was proper. State v. Williams, 275 N.C. 77, 88, 165 S.E.2d 481, 488 (1969); State v. Carnes, 279 N.C. 549, 554, 184 S.E.2d 235, 238-39 (1971).
Defendant's motion that this Court arrest the judgment in Case No. 2295 is based on the contention that the felonious assault for which he was indicted and convicted in Case No. 2295 is a lesser included offense of the armed robbery for which he was indicted and convicted in Case No. 2296. Answering, the Attorney General contends the motion should be denied. We
[5, 6] The crime of robbery includes an assault on the person. State v. Hicks, 241 N.C. 156, 159, 84 S.E.2d 545, 547 (1954). The crime of armed robbery defined in G.S. 14-87 includes an assault on the person with a deadly weapon. The crime of felonious assault defined in G.S. 14-32(a) is an assault with a deadly weapon which is made with intent to kill and which inflicts serious injury. These additional elements of the crime of felonious assault are not elements of the crime of armed robbery defined in G.S. 14-87.
If a person is convicted simultaneously of armed robbery and of the lesser included offense of assault with a deadly weapon, and both offenses arise out of the same conduct, as in State v. Parker, 262 N.C. 679, 138 S.E.2d 496 (1964), and State v. Hatcher, 277 N.C. 380, 177 S.E.2d 892 (1970), and separate judgments are pronounced, the judgment on the separate verdict of guilty of assault with a deadly weapon must be arrested. In such case, the armed robbery is accomplished by the assault with a deadly weapon and all essentials of this assault charge are essentials of the armed robbery charge. However, if a defendant is convicted simultaneously of armed robbery and of felonious assault under G.S. 14-32(a), neither the infliction of serious injury nor an intent to kill is an essential of the armed robbery charge. A conviction of armed robbery does not establish a defendant's guilt of felonious assault.
In the present case, the evidence shows that, by the use or threatened use of his .38 pistol, defendant robbed his victim of cash and of a .22 pistol and ordered him to go to the back of the store and lie down with his face on his hands. Thereafter, while the victim was lying on the floor, defendant shot him in the head, closed the door and left when his victim was apparently dead. Thus, separate assaults were committed in quick succession, the first being an assault with a deadly weapon and the second an assault with a deadly weapon which was made with intent to kill and which inflicted serious injuries.
[7, 8] It is true that both of these assaults were committed in the perpetration by defendant of the felony of armed robbery defined in G.S. 14-87. An assault is committed in the perpetration of a robbery if made to overcome resistance, to effectuate flight, or to eliminate the possibility of identification by the victim, notwithstanding the assault may occur after the robber has taken possession of the victim's goods. However, the fact that a felonious assault is committed during the perpetration of armed robbery does not deprive the felonious assault of its character as a complete and separate felony.
Here the injury inflicted by the felonious assault was not fatal. However, the injury was serious and the assault was made with intent to kill. The question is whether the felonious assault is to be ignored as an independent felony simply because an assault with a deadly weapon is an essential element both of felonious assault and of armed robbery and the permissible punishment for armed robbery is greater than the permissible punishment for felonious assault. We perceive no sound reason why two felonies should be treated as one simply because they share a single essential element, when they consist of additional separate elements.
Our research has disclosed few decisions bearing closely upon the precise question under consideration. People v. Thomas, 59 Cal.App.2d 585, 139 P.2d 359 (1943), presented an analogous factual situation. In Thomas, the defendants were charged with the crime of robbery (Count I) and of assault by means of force likely to produce great bodily injury (Count II), offenses committed on the same occasion and in the course of the same series of acts. As stated in the opinion: "Defendants pleaded guilty to the charge of assault by means of force likely to produce great bodily injury (Count II), and not guilty to the charge of robbery (Count I). When placed on trial for the latter crime they interposed a plea of once in jeopardy and at the conclusion of their trial moved to dismiss the robbery charge, upon the grounds of former conviction and former jeopardy. The motions were denied, defendants were found guilty of robbery and were sentenced for each crime, to state prison for the crime of robbery and to the county jail for the assault, the sentences to run concurrently. All of them have appealed from the conviction of robbery." Id. at 586-87, 139 P.2d at 360. The court sustained the conviction of robbery and the sentence pronounced thereon. Apposite excerpts from the opinion include the following:
"The two felonies charged to appellants, having different essential elements, are separate and distinct offenses. . . . Neither offense is included within the other and appellants in a prosecution for one of the offenses could not have been convicted of the other. Appellants' contention is not that they have been convicted twice of the same offense or that either of the offenses of which they have been convicted is included in the other. They say only that they might have been convicted of simple assault in either prosecution, which is correct, but they overlook the important fact that in neither prosecution were they adjudged guilty only of the offense of simple assault . . . ." Id. at 588, 139 P.2d at 361.
"Appellants' argument amounts only to this: that in prosecutions for two distinct and different felonies, each involving an element of criminality not found in the other, and each involving the act of assault constituting the offense of simple assault, there can be a conviction of one or the other of the major crimes but not convictions of both. . . . [Defendants] stand convicted of two felonies, each involving an act of assault upon the person of their victim, but each involving an element distinguishing the major offense from the offense of simple assault. They would have us hold that they have been convicted twice solely of the offense of simple assault, which is true only in the sense that the plea of guilty in the one case or the conviction in the other would have barred further prosecution for the offense of simple assault or any other included offense. But all that has happened is that they have been convicted of two felonies committed in the course of a continuous series of acts, which offenses have the common element of assault on the person of the victim constituting the offense of simple assault.
"While the law jealously protects a culprit from double punishment, it does not allow him to commit two separate and distinct offenses for the price of one merely because they have some minor common element. Here the defendants assaulted their victim with great violence, rendering him unconscious, and while he was unconscious they robbed him; they might just as well have robbed him or attempted to rob him first and attacked him afterwards, as was the case in People v. Bentley, supra, (1888) 77 Cal. 7 [ 18 P. 799, 11 Am. St. Rep. 225]. It would be wholly illogical to say that in either case one of the major crimes must go unpunished because, perchance, appellants in each felony prosecution might have been, although they were not, convicted only of the offense of simple assault. Of course, as we have said, two convictions of simple assault could not stand. A plea of guilty to simple assault in one case and a conviction of simple assault in the other, would be an acquittal of the greater offenses charged and would eliminate the elements which distinguish each in the major offenses from the other and from the offense of simple assault. But the judgments here establish the existence of those distinct elements as realities and they cannot be ignored. Appellants are subject to punishment for the offense of assault by means of force likely to produce great bodily injury and for the offense of robbery, because these are separate and distinct offenses, neither of which is necessarily included within the other. Although the act of assault is involved in each, in neither case can it be said that defendants are suffering punishment for the mere offense of simple assault and they are therefore not suffering double punishment." Thomas at 588-90, 139 P.2d at 361-62.
Decisions in accord with People v. Thomas, supra, include the following: State v. Moore, 326 Mo. 1199, 33 S.W.2d 905 (Mo. 1930); Foss v. State, 36 Ohio App. 417, 173 N.E. 296 (1930); Higgins v. Superior Court, 185 Cal.App.2d 37, 7 Cal.Rptr. 771 (1960); Commonwealth ex rel. Hairston v. Myers, 202 Pa. Super. 214, 195 A.2d 813 (1963).
In People v. Logan, 41 Cal.2d 279, 260 P.2d 20 (1953), the defendant was convicted of an assault with a deadly weapon (Count 1) and of robbery in the first degree, that is, robbery committed by one "armed with a dangerous or deadly weapon" (Count 2). Both offenses arose out of the same conduct. As in our decisions in State v. Parker, supra, and State v. Hatcher, supra, the judgment for an assault with a deadly weapon was reversed on the ground all essentials of assault "with a deadly weapon" were essentials of robbery committed by one "armed with a dangerous or deadly weapon." Justice Schauer, speaking for the Supreme Court of California, distinguished this case from People v. Thomas, supra, on the ground that neither of the offenses for which the defendants in Thomas were convicted contained all the essentials of the other but each contained additional separate elements.
Decisions cited as tending to support a different conclusion are discussed below.
In State v. Richardson, 460 S.W.2d 537 (Mo. 1970), the defendant's attempted robbery by the threatened use of a butcher knife was thwarted by the would-be victim and no injury was inflicted. The defendant was convicted of attempted robbery. Later he was convicted of "assault with intent to maim without malice," and he appealed this conviction on the ground of double jeopardy. The Missouri Supreme Court upheld his plea.
The fundamental difference between the present case and the Missouri Richardson case lies in the type of assault for which defendant was convicted. Defendant herein has been found guilty of "assault with a deadly weapon, with intent to kill, is flicting serious injury" — not merely assault with intent to kill. The Attorney General of Missouri argued that assault with intent to rob and assault with intent to maim were different criminal offenses, even if involving the very same act. But the Missouri Supreme Court held the State could not split one act of assault into two crimes merely by changing the name of the intent. It was noted that proof of the unlawful act gives rise to a presumption of criminal intent, which presumption was of both intent to rob and intent to maim. In the first trial, the prosecutor had elected to treat the criminal intent as the intent to rob. There is no presumption of serious injury. Serious injury must be separately proved in a prosecution under our statute, G.S. 14-32(a); serious injury need not be shown at all in a prosecution under G.S. 14-87, for armed robbery.
Likewise, in Wilcox v. State, 74 Tenn. (6 Lea) 571, 40 Am.Rep. 53 (1880), and in Duckett v. State, 454 S.W.2d 755 (Tex.Crim. 1970), convictions for "assault with intent to murder" followed robbery convictions, and the assault convictions met reversal. In neither case was felonious assault resulting in serious injury charged. In neither case was the State put to the proof of the additional, critical element of serious injury (though it does appear that the victim in Duckett testified to being "shot").
The court in Duckett makes much of the proposition that "`[t]he State can carve the minor part of the transaction . . . or can carve the major part of the transaction . . . . However, the State can carve only the one time.'" Duckett at 757, quoting Paschal v. State, 49 Tex.Crim. 111, 114, 90 S.W. 878, 880 (1905). We agree that a single independent criminal offense can only be punished once. We do not agree the same is true of a criminal transaction which involves more than one independent criminal offense. "To support a plea of former acquittal, it is not sufficient that the two prosecutions should grow out of the same transaction; but they must be for the same offense; the same, both in fact and in law." State v. Nash, 86 N.C. 650, 651 (1882).
It is noteworthy that the maximum penalties for armed robbery in Missouri, Tennessee and Texas are far more severe than in North Carolina. The maximum penalty in North Carolina is 30 years in prison (minimum 5 years). G.S. 14-87. In Missouri, the maximum penalty is death (minimum 5 years), 41 Vernon's Mo. Stats. 560.135 (1953); in Tennessee, death (minimum 10 years), 7 Tenn. Code 39-3901 (1970 Cum. Supp.); in Texas, death (minimum 5 years), 3 Vernon's Texas Penal Code, art. 1408 (1953).
The question before us is whether, when separate indictments for armed robbery and felonious assault based on separate features of one continuous course of conduct are tried together, and verdicts of guilty as charged are returned, these verdicts provide support for separate judgments.
The motion in arrest of judgment in Case No. 2295 is denied.
Defendant having failed to show error in the trial, the verdicts and judgments will not be disturbed.
No error.