State v. Harris , 67 N.C. App. 97 ( 1984 )

312 S.E.2d 541 (1984)

STATE of North Carolina
v.
James Avery Bill HARRIS.

No. 8326SC704.

Court of Appeals of North Carolina.

March 6, 1984.

Atty. Gen. Rufus L. Edmisten by Associate Atty. Edmond W. Caldwell, Jr., Raleigh, for the State.

Appellate Defender Adam Stein, Raleigh, and the Appellate Defender Clinic of the University of North Carolina School of Law by James R. Glover, Chapel Hill, for defendant-appellant.

WEBB, Judge.

Defendant assigns as error the admission into evidence of his post-arrest statement that his address was 624-D Billingsly Road. This evidence was admitted over objection and after a voir dire hearing. The trial court ruled that the question put to the defendant as to his address "was a routine preliminary question and did not constitute interrogation." defendant contends the question did constitute interrogation and that since it was asked before defendant was advised of his constitutional rights, it was inadmissible. The State concedes that Officer Parker asked defendant his name, age, and address so that he could fill out an Adult Waiver of Rights form for defendant and that at the time defendant was asked for this information, he was in police custody and had not yet been advised of his constitutional rights. However, the State argues that these questions were routine questions normally attendant to arrest and custody and did not constitute interrogation. We agree.

In Rhode Island v. Innis, 446 U.S. 291, 301, 100 S. Ct. 1682, 1689-90, 64 L. Ed. 2d 297, 308 (1980), on remand sub nom., State v. Innis, 433 A.2d 646 (R.I.1981), cert. denied sub nom., Innis v. Rhode Island, 456 U.S. 930, 102 S. Ct. 1980, 72 L. Ed. 2d 447, amended, 456 U.S. 942, 102 S. Ct. 2005, 72 L. Ed. 2d 464 (1982), the United States Supreme Court defined "interrogation" as follows:

"[T]he term `interrogation' under Miranda [Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966) ] refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect."

Thus, the Supreme Court indicated that routine questioning attendant to arrest and custody does not constitute interrogation.

North Carolina courts have indicated their agreement with Innis by holding that certain preliminary, routine questions asked of a suspect are not proscribed by Miranda v. Arizona, supra. See State v. Ladd, 308 N.C. 272, 302 S.E.2d 164 (1983); State v. Young, 54 N.C.App. 366, 283 S.E.2d 812 (1981), aff'd, 305 N.C. 391, 289 S.E.2d 374 (1982); and State v. Sellers, 58 N.C.App. 43, 293 S.E.2d 226, appeal dismissed, 306 N.C. 749, 295 S.E.2d 485 (1982). Most recently, in State v. Ladd, supra, our Supreme Court held "that interrogation does not encompass routine informational questions posited to a defendant during the booking process." Id. 308 N.C. at 286, 302 S.E.2d at 173. The Court quoted with approval the following explanation for such a holding:

"`Despite the breadth of the language used in Miranda, the Supreme Court was concerned with protecting the suspect against interrogation of an investigative nature rather than the obtaining of basic identifying data required for booking and arraignment.'"

State v. Ladd, supra at 286, 302 S.E.2d at 173, quoting United States ex rel. Hines v. LaVallee, 521 F.2d 1109, 1112-13 (2d Cir. 1975), cert. denied sub nom., Hines v. Bombard, 423 U.S. 1090, 96 S. Ct. 884, 47 L. Ed. 2d 101 (1976). However, our Supreme Court limited its holding to routine informational questions that are not "reasonably likely to elicit an incriminating response" from the suspect. State v. Ladd, supra, 308 N.C. at 287, 302 S.E.2d at 173.

We hold the trial court correctly concluded that the question asked in the present case as to the defendant's address was a routine preliminary question that did not constitute interrogation as that term has been defined by both the United States and the North Carolina Supreme Courts. This question was asked solely for the purpose of obtaining basic identifying information so that Officer Parker could fill out the Adult Waiver of Rights form for defendant. The question was not asked so as to elicit an incriminating response, nor was it a question reasonably likely to elicit an incriminating response in this particular case. There is nothing in the record that shows that Officer Parker received any information connecting the robbery of the laundromat with the address given by defendant. Officer Parker testified that at one point in his investigation he had information that the robber lived at 634-D Marvin Road but that this information turned out to be incorrect. We hold defendant's statement as to his address was admissible.

Next, defendant argues the trial court erred in failing to instruct on the lesser included offense of common law robbery. In State v. Lee, 282 N.C. 566, 569-70, 193 S.E.2d 705, 707 (1973), the Court stated:

"The essential difference between armed robbery and common law robbery is that the former is accomplished by the use or threatened use of a firearm or other dangerous weapon whereby the life of a person is endangered or threatened.... In a prosecution for armed robbery the court is not required to submit the lesser included offense of common law robbery unless there is evidence of defendant's guilt of that crime. If the State's evidence shows an armed robbery as charged in the indictment and there is no conflicting evidence relating to the elements of the crime charged an instruction on common law robbery is not required. (Citations omitted.)"

The State's evidence in the instant case shows defendant perpetrated the robbery with the threatened use of a shotgun. There was no conflicting evidence with respect to the elements of the crime charged; therefore, this argument is without merit.

Defendant assigns as error the court's refusal to give the special instructions tendered by him that made clear the nature of the element of actual danger or threat to the victim. The uncontradicted testimony of Mrs. Hodson shows that defendant was armed with a shotgun contained in a four-foot tube about two inches in diameter, that Mrs. Hodson saw the barrel of the shotgun inside the tube when defendant pointed it at her, and saw the stock of the gun protruding from the other end of the tube.

Mrs. Hodson testified that defendant pointed the shotgun directly at her when he demanded that she give him the money from the cash box and again when he discovered there was no money in the Coke machine. On the second occasion when defendant pointed the shotgun directly at her, she begged, "Please don't shoot me." At all other times during the robbery, defendant had the shotgun pointed in Mrs. Hodson's direction. Given such evidence, we do not believe the special instructions requested by defendant were warranted. We hold the court in its charge to the jury adequately explained this element of the offense.

Defendant next assigns as error the court's failure to instruct the jury on alibi. In State v. Hunt, 283 N.C. 617, 197 S.E.2d 513 (1973), our Supreme Court held that the trial court is not required to give instructions on the legal effect of alibi evidence unless the defendant makes a special request that such instructions be given. G.S. 1-181 provides that requests for special instructions to the jury must be in writing, entitled in the cause, and signed by the counsel submitting them.

In the present case, defendant's request that the court instruct on alibi was made orally, rather than in writing. Where a requested instruction is not submitted in writing and signed pursuant to G.S. 1-181 it is within the discretion of the court to give or refuse such instruction. See State v. Spencer, 225 N.C. 608, 35 S.E.2d 887 (1945); State v. Broome, 268 N.C. 298, 150 S.E.2d 416 (1966). We find no abuse of discretion in the court's refusal to give the requested instruction.

Lastly, defendant argues the trial court erred by categorically rejecting youthful offender commitments for all persons convicted of robbery with a dangerous weapon. Defendant's counsel requested that the court sentence defendant as a committed youthful offender pursuant to G.S. 148-49.14. The court refused such request stating, "I don't sentence armed robbers as committed youthful offenders." Defendant argues this statement reflected the court's policy of refusing to consider the possibility of youthful offender status for those convicted of armed robbery and thus demonstrated its abuse of discretion by its failure to exercise discretion.

Defendant relies on the case of United States v. Ingram, 530 F.2d 602 (4th Cir. 1976) in which the Fourth Circuit held the trial judge had abused his discretion by refusing to consider armed robbers for treatment under the Federal Youth Corrections Act (hereinafter F.Y.C.A.), 18 U.S.C. § 5010(d). In Ingram, the trial judge stated that he had never considered armed robbers for treatment under F.Y.C.A. and never intended to because he did not believe such persons would benefit from the program. We are not bound by this decision, nor do we find it dispositive of the present case.

G.S. 148-49.14 provides in part:

"As an alternative to a sentence of imprisonment as is otherwise provided by law, when a person under 21 years of age is convicted of an offense punishable by imprisonment ... the court may sentence such person to the custody of the Secretary of Correction for treatment and supervision as a committed youthful offender.... If the court shall find that a person under 21 years of age should not obtain the benefit of release under G.S. 148-49.15, it shall make such `no benefit' finding on the record."

This statute does not say how a judge should exercise his discretion or what factors he must consider when imposing a sentence. We do not believe we can hold that because a judge has a policy of not sentencing those convicted of armed robbery as committed youthful offenders that he has committed error under the statute.

No error.

VAUGHN, C.J., and WHICHARD, J., concur.