State v. Murray , 21 N.C. App. 573 ( 1974 )

205 S.E.2d 587 (1974) 21 N.C. App. 573

STATE of North Carolina
v.
Douglas William MURRAY.

No. 7410SC245.

Court of Appeals of North Carolina.

June 5, 1974.

Atty. Gen. Robert Morgan by Asst. Atty. Gen. Eugene A. Smith, Raleigh, for the State.

Bailey, Dixon, Wooten, McDonald & Fountain by Wright T. Dixon, Jr., Raleigh, for defendant-appellant.

BALEY, Judge.

Defendant has brought forward a number of assignments of error relating to the court's charge. He contends that the court did not instruct the jury adequately on circumstantial evidence and did not define reasonable doubt. In addition, he argues, the court did not set forth his contentions in sufficient detail. However, defendant did not request an instruction defining reasonable doubt, and he did not ask for a more detailed charge on circumstantial evidence or a fuller statement of his contentions. "`Where the charge fully instructs the jury on all substantive features of the case, defines and applies the law thereto, and states the contention of the parties, it complies with G.S. 1-180, and a party desiring further elaboration on a particular point, or of his contentions, or a charge on a subordinate feature of the case, must aptly tender request for special instruction.'" State v. Hunt, 283 N.C. 617, 623, 197 S.E.2d 513, 517. In the absence of a request from the defendant, the court is not required to define reasonable doubt, State v. Ingland, 278 N.C. 42, 178 S.E.2d 577; State v. Browder, 252 N.C. 35, 112 S.E.2d 728; State v. Ammons, 204 N.C. 753, 169 S.E. 631, or to discuss the significance of circumstantial evidence. State v. Flynn, 230 N.C. 293, 52 S.E.2d 791; State v. Warren, 228 N.C. 22, 44 S.E.2d 207; State v. Shoup, 226 N.C. 69, 36 S.E.2d 697. Likewise, a defendant who desires a more detailed statement of his contentions must request it from the court. State v. Rankin, 284 N.C. 219, 200 S.E.2d 182; State v. Hunt, supra; State v. Shumaker, 251 N.C. 678, 111 S.E.2d 878.

Defendant contends that in summarizing the evidence, the court overemphasized the State's case and spent too little time on his own evidence. This contention is without merit; the court fairly and accurately set forth the most important testimony offered by each side. It is true that the court spent more time summarizing the State's evidence than the evidence for defendant, but this was to be expected since the State presented considerably more evidence. State v. Jessup, 219 N.C. 620, 14 S.E.2d 668; State v. Crutchfield, 5 N.C. App. 586, 169 S.E.2d 43.

Defendant strongly asserts that the court erred in admitting the testimony of Mrs. Partsakoulokis in which she identified defendant as the man who entered the Roast Grill through the back screen door. However, the trial judge held a very thorough voir dire hearing on the admissibility of this evidence, and he issued findings of fact stating that the identification testimony had not been obtained by means of unduly suggestive police procedures. These findings of fact are amply supported by the evidence. "When the admissibility of in-court identification testimony is challenged on the ground it is tainted by out-of-court identification(s) made under constitutionally impermissible circumstances, the trial judge must make findings as to the background facts to determine whether the proffered testimony meets the tests of admissibility. When the facts so found are supported by competent evidence, they are conclusive on appellate courts." State v. Tuggle, 284 N.C. 515, 520, 201 S.E.2d 884, 887; State v. McVay, 277 N.C. 410, 417, 177 S.E.2d 874, 878.

Officer Robert Miller testified that when he arrived at the Roast Grill on the morning of 21 May 1973, Mrs. Charles told him that defendant had stolen the money from the cash register while she was in the back of the restaurant for three or four minutes. The court instructed the jury not to consider this testimony as substantive evidence, but only for corroborative purposes. Since no other witness gave similar evidence, this was in effect an instruction to ignore the testimony. Defendant contends that this instruction was erroneous, and that Miller's testimony was admissible as substantive evidence. It is well established that "[w]hen a startling or unusual incident occurs, the exclamations of a participant or bystander concerning the incident, made spontaneously and without time for reflection or fabrication, are admissible." 1 Stansbury, N.C. Evidence (Brandis rev.), § 164, at 554; accord, State v. Cox, 271 N.C. 579, 157 S.E.2d 142; Hargett v. Ins. Co., 258 N.C. 10, 128 S.E.2d 26; State v. McKinney, 13 N.C.App. 214, 184 S.E.2d 897. Such exclamations must be entirely spontaneous, however; they must be made contemporaneously with the startling event, or within a very short time thereafter. Gray v. Insurance Co., 254 N.C. 286, 118 S. E.2d 909; Johnson v. Meyer's Co., 246 N.C. 310, 98 S.E.2d 315; Coley v. Phillips, 224 N.C. 618, 31 S.E.2d 757. In the present case Mrs. Charles' statements to Officer Miller were made some time after she found the money missing from her cash register. Between the time when she discovered the theft and the time when Officer Miller arrived, she had a chance to discuss the incident with the man who delivered the bread, with a customer outside the restaurant, and with the policeman whom she telephoned. During this interval, she had sufficient time for thought and reflection. Therefore, her statements to Officer Miller cannot be considered spontaneous, and the court acted properly in refusing to admit them as substantive evidence.

When Officer Miller went to the Roast Grill on May 21, Mrs. Charles gave him a description of defendant, and Miller testified about this description at the trial. While cross-examining Officer Beasley, counsel for defendant questioned him about this description. No prejudicial error is shown in excluding these questions, because they merely duplicated Miller's testimony. "`The limits of legitimate cross-examination are largely within the discretion of the trial judge,'" and he may exclude questions which are purely repetitious. State v. Chance, 279 N.C. 643, 652, 185 S. E.2d 227, 233, vacated and remanded on other grounds, 408 U.S. 940, 92 S.Ct. 2878, 33 L.Ed.2d 764; see State v. Robinson, 280 N.C. 718, 187 S.E.2d 20; 1 Stansbury, supra, § 35, at 108.

When defendant testified, the Solicitor cross-examined him concerning his criminal record. He first asked defendant about a number of specific convictions, and then asked: "Is there anything else you've been convicted of?" These questions were proper, and the court did not err in allowing them. A criminal defendant, like any other witness, may be cross-examined about prior criminal convictions. State v. Gainey, 280 N.C. 366, 185 S.E.2d 874; State v. Williams, 279 N.C. 663, 185 S.E.2d 174.

Defendant contends that the court erred in failing to instruct the jury on simple larceny, a lesser included offense of felonious larceny. If Mrs. Charles' original statement that defendant stole her money while she was at the back of the restaurant had been admissible as substantive evidence, this contention would be correct. But since the court properly limited this testimony to corroborative purposes, there is no substantive evidence in the record showing that defendant was guilty of simple larceny. The court was therefore correct in refusing to charge on this offense. State v. Duboise, 279 N.C. 73, 181 S.E.2d 393; State v. Hicks, 241 N.C. 156, 84 S.E.2d 545; State v. Lyles, 19 N.C.App. 632, 199 S.E.2d 699, cert. denied and appeal dismissed, 284 N.C. 426, 200 S.E.2d 662.

Finally, defendant argues that his motion for nonsuit should have been granted. This argument cannot be accepted, for there is substantial evidence tending to show defendant's guilt. Mrs. Charles found that all the bills had been taken from her cash register. Defendant was the only customer who had been in the restaurant on the morning when the theft occurred. Mrs. Partsakoulokis observed defendant entering the restaurant through the back screen door, which Mrs. Charles had latched; and Officer Miller noticed that the screen door latch had been broken. Clearly the jury's verdict is supported by the evidence.

Defendant has been well represented by counsel and has received a fair trial free from prejudicial error.

No error.

BROCK, C. J., and PARKER, J., concur.