State v. Dickens

180 S.E.2d 844 (1971)

STATE of North Carolina v. Clifton Earl DICKENS.

No. 80.

Supreme Court of North Carolina.

May 12, 1971.

*848 Atty. Gen. Robert Morgan and Deputy Atty. Gen. Ralph Moody, for the State.

Edgar J. Gurganus, Williamston, for defendant.

BRANCH, Justice:

Defendant assigns as error the action of the trial judge in admitting into evidence, over objection, clothing worn by defendant when he was taken into custody a short time after the alleged crime.

It is well settled in North Carolina that clothing worn by a person while in custody under a valid arrest may be taken from him for examination, and, when otherwise competent, such clothing may be introduced into evidence at his trial. State v. Rogers, 275 N.C. 411, 168 S.E.2d 345; State v. Peele, 274 N.C. 106, 161 S.E.2d 568; State v. Tippett, 270 N.C. 588, 155 S.E.2d 269. Defendant stressfully argues that he was not in custody under a valid arrest.

An arrest without a warrant except as authorized by statute is illegal. State v. Moore, 275 N.C. 141, 166 S.E.2d 53; State v. Mobley, 240 N.C. 476, 83 S.E.2d 100.

G.S. § 15-41, in part, provides: "A peace officer may without a warrant arrest a person: * * * (2) When the officer has reasonable ground to believe that the person to be arrested has committed a felony and will evade arrest if not immediately taken into custody."

The courts have held that a description of an assailant's physical characteristics and his clothing may supply reasonable grounds for believing that he had committed a felony.

In State v. Tippett, supra, police officers were informed that a felony had been committed by a barefooted white man wearing coveralls. Police officers arrested the defendant without a warrant upon finding him dressed as described and hiding behind a bush two blocks from the scene of the crime. This Court held that under these circumstances it was lawful to arrest the defendant without a warrant.

In State v. Grier, 268 N.C. 296, 150 S.E.2d 443, police officers knew that a robbery had been committed, and they had information that the robber wore checkered pants and had a cut on the rear of his right leg. When the police apprehended the defendant, dressed in checkered pants, with a cut on the rear of his right leg, they placed him under arrest. Incident to the arrest, the officers searched the defendant and found property on his person similar to that taken in the robbery. This Court held that the police officers had reasonable grounds to arrest the defendant, and that the arrest without a warrant was valid.

In the case of State v. Bell, 270 N.C. 25, 153 S.E.2d 741, police officers stopped an automobile which fitted the description of one used in connection with a robbery, and at that time observed a pistol lying on the seat of the car. The Court held that the officers had reasonable ground to believe *849 that the defendant had committed a felony and would evade arrest if not taken into custody. Accord: State v. Jacobs, 277 N. C. 151, 176 S.E.2d 744; State v. Pearson (State v. Belk) 269 N.C. 725, 153 S.E.2d 494; State v. Egerton, 264 N.C. 328, 141 S.E.2d 515; People v. La Bostrie, 14 Ill. 2d 617, 153 N.E.2d 570; People v. Kissane, 347 Ill. 385, 179 N.E. 850; Holmgren, What Are Reasonable Grounds for Arrest, 42 Chi-Kent L.Rev. 101.

Here, the victim of the assault gave police officers a description of her assailant, including information as to the color and type of his shirt and trousers. As a result of the description furnished, the officers went to defendant's residence and found him there dressed as described, with unexplained fresh scratches on his hands and arms and skinned places on the knuckles on his right hand. The police were aware that the person whom they sought had struck his victim with his hands and that the person had been engaged in a struggle with his victim. It had been raining on this night and defendant's pants were wet from the waist down.

There was sufficient competent evidence to support the trial judge's findings of fact, and the findings of fact in turn supported the trial judge's conclusion that the items of clothing were legally obtained while defendant was in custody under lawful arrest.

We have not here discussed defendant's argument as to certain misdemeanor warrants since we hold that the arrest was valid pursuant to G.S. § 15-41(2).

The trial judge correctly admitted the items of clothing into evidence.

Defendant next assigns as error the admission of the testimony of Officer Swain to the effect that he had found hairs inside and outside the Simpson dwelling which matched the hairs found on defendant's clothing. He argues that five days had passed since the crime was committed, and although the house was locked, the premises had not been under constant surveillance since the date of the crime, and therefore someone else could have been on the premises and left the hairs.

Every circumstance that is calculated to throw light upon a supposed crime is admissible if otherwise competent. The weight of the evidence is for the jury. State v. Hamilton, 264 N.C. 277, 141 S.E.2d 506; State v. Ham, 224 N.C. 128, 29 S.E.2d 449; Strong's N.C.Index 2d, Criminal Law, § 33, p. 531.

The finding of the hairs similar to those found on defendant's clothing on the living room floor and in the moulding of the front porch of the victim's house is a circumstance tending to show that defendant had been on the premises. The lapse of time which might have given someone else opportunity to go on the premises and leave such hairs is a circumstance to be considered by the jury in determining the weight of the testimony.

Defendant contends that he should be granted a new trial because of a statement made by the solicitor for the State during his argument to the jury. The full argument of the solicitor does not appear in the record. The only excerpt from the argument is shown in the record as follows:

"If a jury says guilty, the appeals can go on from now until Doom's Day. Look at Cassius Clay. Appeals can go on forever. That is the reason we have these appeals. * * *

OBJECTION SUSTAINED EXCEPTION NO. 5."

The principles of law concerning arguments of counsel in contested cases have been recently stated in the case of State v. Williams, 276 N.C. 703, 174 S.E.2d 503, where Moore, J., speaking for the Court, stated:

"In this jurisdiction wide latitude is given to counsel in the argument of contested cases. Moreover, what constitutes *850 an abuse of this privilege must ordinarily be left to the sound discretion of the trial judge. State v. Bowen, 230 N.C. 710, 55 S.E.2d 466; State v. Christopher, supra [258 N.C. 249, 128 S.E.2d 667]. However, it is the duty of the judge to interfere when the remarks of counsel are not warranted by the evidence and are calculated to mislead or prejudice the jury, the argument and conduct of counsel being largely in the control and discretion of the presiding judge. State v. Correll, 229 N.C. 640, 50 S.E.2d 717. Ordinarily, exceptions to improper remarks of counsel during argument must be taken before verdict. State v. Hawley, 229 N.C. 167, 48 S.E.2d 35; State v. Tyson, 133 N.C. 692, 45 S.E. 838. Such exceptions, like those to the admission of incompetent evidence, must be made in apt time or else be lost. This general rule has been modified in recent years so that it does not apply to death cases where the argument of counsel is so prejudicial to defendant that in this Court's opinion it is doubted that the prejudicial effect of such argument could have been removed from the jurors' minds by any instruction the trial judge might have given. State v. Miller, 271 N.C. 646, 157 S.E.2d 335; State v. Dockery, 238 N.C. 222, 77 S.E.2d 664."

Defendant cites and relies heavily upon the case of State v. Little, 228 N.C. 417, 45 S.E.2d 542, where the solicitor stated that in the event of conviction there would be an appeal, and if the decision of the lower court were affirmed, there would be an appeal to the Governor and that not more than sixty percent of persons convicted of capital offenses were ever executed. The court granted a new trial, holding this argument to be prejudicial error.

State v. Little, supra, is distinguishable from instant case in that there the death penalty was imposed. In Little the argument went further than in instant case by stating that not more than sixty percent of the persons convicted of capital crimes were ever executed. It is also clear that in the case before us for decision the argument was not directed toward imposing the death sentence.

In State v. Tucker, 190 N.C. 708, 130 S.E. 720, the defendant was charged with violating the prohibition laws. The solicitor stated that the defendants looked like professional bootleggers, and that their looks were enough to convict them. The trial judge held the argument to be proper and overruled defendant's objection, which was duly entered before verdict. This Court, granting a new trial, stated:

"* * * To uphold this ruling would mean not only to sanction the vituperative language used in the present case, but also to open the door for advocates generally to engage in vilification and abusea practice which may be all too frequent, but which the law rightfully holds in reproach."

In this case the language of the solicitor, when considered out of context, appears to have exceeded the bounds of the record evidence and of propriety. However, the record shows that the trial judge sustained defendant's objection, thereby avoiding the evil of approving or sanctioning the language of the solicitor. The record is mute as to whether the trial judge, after sustaining the objection, proceeded to instruct and caution the jury so as to correct the effect of the solicitor's argument. The record is equally silent as to whether the solicitor's statement was made in answer to argument of defendant's counsel. The argument obviously was not directed toward the imposition of the death sentence.

In State v. Thompson, 278 N.C. 277, 179 S.E.2d 315, Higgins, J., quoted with approval from State v. Barefoot, 241 N.C. 650, 86 S.E.2d 424, the following:

"The manner of conducting the argument of counsel, the language employed, the temper and tone allowed, must be left largely to the discretion of the presiding judge. He sees what is done, and *851 hears what is said. He is cognizant of all the surrounding circumstances, and is a better judge of the latitude that ought to be allowed to counsel in the argument of any particular case. It is only in extreme cases of the abuse of the privilege of counsel, and when this is not checked by the court, and the jury is not properly cautioned, this Court can intervene and grant a new trial."

Prejudicial error resulting from the solicitor's argument is not disclosed by this record.

Defendant assigns as error the action of the trial judge in excusing for cause three jurors because of their personal convictions concerning the death penalty.

The jurors were excused after the State had exhausted its peremptory challenges and after each of the jurors, in effect, stated that he would not under any circumstances vote to return a verdict which would result in the imposition of the death penalty.

The decision in Witherspoon v. Illinois, 391 U.S. 510, 88 S. Ct. 1770, 20 L. Ed. 2d 776, does not govern the present case since the jury recommended a sentence of life imprisonment. State v. Williams, 275 N.C. 77, 165 S.E.2d 481; Bumper v. North Carolina, 391 U.S. 543, 88 S. Ct. 1788, 20 L. Ed. 2d 797. Even had the decision in Witherspoon v. Illinois been applicable, the jurors would have been properly excused under its holding.

The State is entitled to challenge for cause any prospective juror who states under oath that it would be impossible for him to return a verdict which would result in the imposition of the death sentence, even though the State proved the defendant guilty beyond a reasonable doubt. State v. Peele, supra; State v. Bumpers, 270 N.C. 521, 155 S.E.2d 173, reversed on other grounds in Bumper v. North Carolina, supra.

Defendant advances the argument that there was error in allowing the challenge to each of the jurors because the solicitor wished to excuse the jurors for reasons other than their belief as to capital punishment. The solicitor challenged these jurors on a valid ground, and the trial judge ruled correctly. We cannot depart from the record and speculate as to the solicitor's motives in challenging these jurors.

This assignment of error is overruled.

Defendant assigned as error the trial judge's denial of his motions for directed verdicts. We do not deem it necessary to discuss this assignment of error since the record reveals plenary evidence to repel defendant's motions.

No error.