State v. Cox , 37 N.C. App. 356 ( 1978 )

246 S.E.2d 152 (1978) 37 N.C. App. 356

STATE of North Carolina
v.
William COX.

No. 782SC231.

Court of Appeals of North Carolina.

August 1, 1978.

Atty. Gen. Rufus L. Edmisten, by Asst. Atty. Gen. Elisha H. Bunting, Jr., Raleigh, for the State.

Wilkinson & Vosburgh, by James R. Vosburgh, Washington, for defendant appellant.

WEBB, Judge.

Defendant contends the second trial on accessory after the fact to armed robbery charges violates the principles of double jeopardy and the joinder of offenses statute, G.S. 15A-926, and thus it was error for the trial court to deny his motions to dismiss. We do not agree with defendant. In support of his argument that a second trial would offend double jeopardy protections, defendant relies on Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970) in which the Court held that the principles of collateral estoppel are embodied in the Fifth Amendment's guarantee against double jeopardy. Collateral estoppel "means simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit." Ashe v. Swenson, supra, at 443, 90 S.Ct. at 1194. In the Swenson case, three or four masked gunmen interrupted a six-man poker game and robbed each of the players. The defendant was tried for the robbery of one of the players and was acquitted. Six weeks later, the defendant was brought to trial for the robbery of another of the players and was convicted. In reversing the conviction of the second trial, the Court stated that when a defendant seeks to prohibit the trial of an issue because of a prior general verdict of acquittal, the Court must examine the record of the prior proceeding and determine "`whether a rational jury could have grounded its verdict upon an issue other than that which the defendant seeks to foreclose from consideration.'" Ashe v. Swenson, supra, at 444, 90 S.Ct. at 1194. The Court in Swenson concluded that the only conceivable issue before the jury in the first trial was whether the defendant was one of the robbers. The jury having found that he was not one of the robbers by its verdict, subsequent prosecution for the robbery of another poker player was prohibited. In the instant case, the directed verdict of not guilty of armed robbery foreclosed the State from subsequent prosecutions for armed robbery of this Zip Mart or for any lesser included offenses of armed robbery. But, accessory after the fact of armed robbery is not a lesser included offense of armed robbery. State v. McIntosh, 260 N.C. 749, 133 S.E.2d 652 (1963). Therefore, general double jeopardy notions would not bar the trial of defendant on charges of accessory after the fact to armed robbery. We are without the benefit of the record in defendant's trial for armed robbery, but accepting as true defense counsel's statement that the evidence introduced at both trials was virtually the same, we find that the directed verdict of not guilty of armed robbery only removes the issues of whether defendant participated as a principal robber or whether he aided and abetted in the commission of the robbery. The possibility remains that after the robbery was committed, the defendant assisted the felons by transporting them in his car from the scene of the crime. Since "[t]he crime of accessory after the fact has its beginning after the principal offense has been committed," the directed verdict of not guilty of armed robbery did not decide the issue of whether the defendant joined the criminal scheme after the robbery was complete. See State v. McIntosh, supra, at 753, 133 S.E.2d at 654.

As an alternative, defendant contends the joinder of offenses statute, G.S. 15A-926 requires the dismissal of the accessory charges. G.S. 15A-926 provides in part:

(a) Joinder of Offenses.—Two or more offenses may be joined in one pleading when the offenses, whether felonies or misdemeanors or both, are based on the same act or transaction or on a series of acts or transactions connected together or constituting parts of a single scheme or plan. Each offense must be stated in a separate count as required by G.S. 15A-924.

* * * * * *

(c) Failure to Join Related Offenses.—

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(2) A defendant who has been tried for one offense may thereafter move to dismiss a charge of a joinable offense. The motion to dismiss must be made prior to the second trial, and must be granted unless

a. A motion for joinder of these offenses was previously denied, or

b. The court finds that the right of joinder has been waived, or

c. The court finds that because the solicitor did not have sufficient evidence to warrant trying this offense at the time of the first trial, or because of some other reason, the ends of justice would be defeated if the motion were granted.

Defendant argues that armed robbery and accessory after the fact to armed robbery were joinable offenses since both charges arose from the same transaction and the evidence for proof of both charges was available at the first trial. He further contends that he questioned the district attorney as to whether accessory after the fact charges would be brought and he was advised that they would not. We are sympathetic with defendant's dilemma, but we do not believe G.S. 15A-926(c)(2) mandates the dismissal of accessory charges. At the outset, we note that defendant had not been charged with the offense of accessory after the fact to armed robbery. There could be no joinder of offenses in the absence of a second offense to join with the first. Additionally, Judge Tillery found armed robbery and accessory after the fact of armed robbery to be mutually exclusive offenses and not joinable for trial. We agree with this holding.

Defendant next contends that his arrest without a warrant and the search and seizure of evidence from his automobile were unlawful. The legality of the search and subsequent arrest must stand or fall on whether there was probable cause to stop and search defendant's automobile. In defendant's view, his presence near the scene of the crime at the approximate time of the crime is not enough to create a reasonable belief that defendant had committed or was committing a crime. We might agree with defendant if those were the only circumstances before us, but they are not. We must consider all of the circumstances, including the facts that Officer Lockley knew defendant and recognized him as the operator of the white Plymouth Valiant that night; that he saw three black males standing across from the Zip Mart; that after someone yelled at defendant, he made a U-turn and pulled up his car to the vicinity where the black males were standing; that Officer Lockley observed one of the black males wearing a black coat and Mrs. Boone later confirmed of three black males who had robbed the Zip Mart, one was wearing a black coat; that approximately an hour after the robbery, officers stopped a white Plymouth Valiant fitting the description of the car observed by Officer Lockley and occupied by four black males; that when the occupants stepped from the car the interior dome light came on, and a detective observed a sawed-off shotgun in the front seat; and that when the detective entered the car to retrieve the shotgun, he observed a blue bank bag protruding from under the seat. We hold that these facts are sufficient to create a reasonable belief that the automobile was carrying contraband or the fruits of crime. Given their authority to stop and search, the seizure of evidence they found in plain view, plus the connection of the seized evidence with the earlier robbery, the officers had probable cause to arrest the defendant. See State v. Harris, 279 N.C. 307, 182 S.E.2d 364 (1971), Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419, rehearing denied, 400 U.S. 856, 91 S.Ct. 23, 27 L.Ed.2d 94 (1970); Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977).

Error has been assigned to certain evidentiary rulings and to the trial court's instructions to the jury. We note, however, that defendant has not presented any argument or authority in support of these exceptions. They are deemed abandoned. Rule 28(b), Rules of Appellate Procedure.

At the close of the State's evidence, the defendant moved for a mistrial on the grounds that he was denied his right of compulsory process for obtaining witnesses in his favor because the three men who robbed the store indicated that, on the advice of counsel, they would refuse to testify. An examination of the record does not reveal any attempt to call any of these men to the witness stand. We believe it is inappropriate for this Court to surmise what testimony would or would not have been given if these men had been called as witnesses and questioned by defendant's counsel. Therefore, we find that the defendant has not shown any prejudice to him under the facts as presented.

Other assignments of error raised questions of the prejudicial effect of an out-of-court identification procedure and the sufficiency of evidence to withstand defendant's motion to dismiss. With respect to the identification procedure, the defendant objects to the court's conclusion that Mrs. Boone based her identification of the three men who robbed her on her observations of the men in the store and that the identification was not based on an unnecessarily suggestive out-of-court line-up. We find that there was ample evidence to support the trial court's conclusion that Mrs. Boone's identification of the three men in court was based on her independent observation of the men on the night of the robbery. See State v. Stephens, 35 N.C. App. 335, 241 S.E.2d 382 (1978).

Defendant also contends the State has failed to prove each of the necessary elements of the offense of accessory after the fact to armed robbery and thus, it was error to deny his motion to dismiss and motion for a directed verdict of not guilty. "On a charge of accessory after the fact the State must show (1) robbery, (2) the accused knew of it and (3) possessing that knowledge he assisted the robber in escaping detection, arrest and punishment." State v. McIntosh, supra, 260 N.C. at 753, 133 S.E.2d at 655. There was plenary evidence to show that three black males entered the Zip Mart at approximately 10:00 p. m. on 16 February 1977 and robbed the business at gun point. At the approximate time of the robbery, the defendant was observed driving his automobile down the same street on which the victimized business was located. Three black men were observed standing across from the Zip Mart, one of whom was wearing a black coat. Someone from the area where the black males stood yelled at defendant and he made a U-turn in the road and drove to the spot where the three men were standing. Shortly thereafter, the police officer who observed this activity responded to a dispatch and was told by Mrs. Boone at the Zip Mart that she had just been robbed by three black males, one of whom was wearing a black coat. About an hour later, defendant was found driving three males, who later pled guilty to robbing the Zip Mart, in his car. A shotgun and bank bags, fitting the description of those taken from the Zip Mart, were found in the car. When we consider this evidence in the light most favorable to the State, giving it every reasonable intendment and every reasonable inference, we hold that it is sufficient evidence of every element of the crime charged to survive defendant's motions and convict defendant. State v. Bowden, 290 N.C. 702, 228 S.E.2d 414 (1976).

For the above stated reasons, we find

No error.

MORRIS and HEDRICK, JJ., concur.