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BOBBY DEAN RINCK and RONALD DEAN McMURRY" ], "opinions": [ { "text": "COPELAND, Justice.\nI\nWhile defendants have filed separate briefs before this court, there are several issues that are argued by both of them. Therefore, for the sake of clarity and convenience, those issues which are raised by both defendants will be addressed first.\nA\nDefendants argue first that the trial court erred in granting the State\u2019s motion to consolidate their cases for trial. The essence of their argument is that by granting the State\u2019s motion, the trial court allowed the jury to consider evidence which was competent against only one defendant against both of them. We are compelled to disagree.\nUpon the written motion of the prosecutor, charges against two or more defendants may be joined for trial when each of the defendants is charged with accountability for each offense. G.S. \u00a7 15A-926(b)(2) (1978). Such motions are addressed to the sound discretion of the trial court and are not reviewable on appeal absent a showing of abuse of discretion. E.g., State v. Hardy, 293 N.C. 105, 235 S.E. 2d 828 (1977).\nThere has been no showing that the trial court abused its discretion. In the case sub judice, each defendant was charged with having committed the same offense at the same time; the first-degree murder of Donald B. Williamson on or about the 19th day of August 1979. Neither defendant acted at trial in such a way as to incriminate the other, and their defenses were not antagonistic. While it is the case that, on occasion, the State presented evidence that was competent only against one of the defendants, the trial court proceeded at those times to instruct the jury that such evidence was competent only against a particular defendant. Compare State v. Clark, 298 N.C. 529, 259 S.E. 2d 271 (1979).\nB\nDuring its case-in-chief, the State offered the testimony of Mrs. Denise Allen, a dispatcher with the Catawba County Sheriff\u2019s Department, concerning a call for assistance which she received at 1:16 a.m. on 19 August 1979. Purporting to be decedent Williamson, the caller said that he had been robbed of his pocketbook which contained thirty-five dollars. Upon inquiry by the dispatcher, the caller identified his assailant as being \u201cBobby Swink.\u201d At the close of the voir dire held to determine the competency of Mrs. Allen\u2019s testimony concerning the conversation, the trial court ruled that the testimony was admissible as part of the res gestae of the crime of robbery but not as part of the res gestae of burglary. However, the trial court received the proffered testimony without limiting its consideration by the jury. There was no error.\nInitially, we are compelled to observe that defendants are in violation of the Rules of Appellate Procedure. Rule 10(c) provides, in pertinent part, that \u201c[e]ach assignment of error . . . shall be followed by a listing of all the exceptions upon which it is based, identified by their numbers and by the pages of the record on appeal at which they appear.\u201d The exceptions to the actual receipt of the evidence in question are not so listed. Therefore, the Rules of Appellate Procedure mandate that they are deemed abandoned. N.C.R. App. p. 10(c). However, because of the gravity of this crime and the severity of the punishment imposed, we have elected to exercise our discretion and reach the merits of the argument. See N.C.R. App. p. 2.\nWe note initially that even if the trial court had committed error in its handling of this matter, that action could not have prejudiced defendant McMurry because the trial judge instructed the jury that it was not to consider the testimony of the dispatcher against him. The record indicates that, upon giving this instruction, the court asked the jury if the instruction was clear, and that all of the jurors nodded affirmatively. That being the case, defendant McMurry has no basis upon which to argue prejudicial error. See State v. Clark, supra.\nSimilarly, defendant Rinck has no basis upon which to assert error. Defendant Rinck made a series of general objections to the dispatcher\u2019s testimony. At no time did he request a special instruction which would limit the jury\u2019s consideration of the evidence. Defendant\u2019s only motion sought to strike the entire conversation, not an instruction to limit its consideration by the jury. Consequently, the overruling of defendant Rinck\u2019s general objection without an appropriate limiting instruction was not error. State v. Montgomery, 291 N.C. 91, 229 S.E. 2d 572 (1976).\nC\nDefendants next contend that the trial court erred in receiving evidence at trial which was obtained as a result of an illegal and unconstitutional arrest. An individual is arrested when law enforcement officers interrupt his activities and significantly restrict his freedom of action. State v. Morgan, 299 N.C. 191, 261 S.E. 2d 827, cert. denied, 446 U.S. 986 (1980). No one disputes that defendants were placed under arrest within a matter of minutes after being stopped as they walked along the road near decedent\u2019s house. However, defendants argue that there was no basis upon which law enforcement officers could legally detain or search them. If defendants are correct in their position, it follows necessarily that the subsequent arrests were invalid and cannot justify a search of their persons. After careful deliberation, we conclude that this assignment is without merit.\nIf from the totality of circumstances, a law enforcement officer has reasonable grounds to believe that criminal activity may be afoot, he may temporarily detain an individual. Terry v. Ohio, 392 U.S. 1, 20 L.Ed. 2d 889, 88 S.Ct. 1868 (1968); State v. Buie, 297 N.C. 159, 254 S.E. 2d 26, cert. denied, 444 U.S. 971 (1979); State v. Thompson, 296 N.C. 703, 252 S.E. 2d 776, cert. denied, 444 U.S. 907 (1979); State v. Streeter, 283 N.C. 203, 195 S.E. 2d 502 (1973). If upon detaining the individual, the officer\u2019s personal observations confirm that criminal activity may be afoot and suggest that the person detained may be armed, the officer may frisk him as a matter of self-protection. Terry v. Ohio, supra; State v. Buie, supra; State v. Streeter, supra.\nIn State v. Streeter, supra, the State\u2019s evidence tended to show that while they were on routine patrol at approximately 2:45 a.m., two police officers in Greenville, North Carolina observed the defendant walking along a highway roughly four hundred feet from a doctor\u2019s office. Because of the time and his proximity to the nearby business offices, defendant was approached by the officers and directed to stop. One of the officers testified that they had stopped the defendant to learn his identity and the reason he was in the area at that hour of the morning. As he talked with the defendant, one of the officers observed a bulge under the defendant\u2019s shirt, and he ordered defendant not to move. Thinking that the bulging object was a weapon, the officer touched it and thought the object was made of metal. The policeman thereupon reached under the defendant\u2019s shirt and found one pair of gloves, one screwdriver, one hammer, one prybar, a flashlight, and a bank bag. Thereupon, the officers seized the items and arrested defendant for the possession of burglary tools. Over the objection of defendant, the trial court received the testimony of one of the officers concerning the encounter, as well as the items that had been seized.\nOn appeal, this court affirmed the judgment of the Court of Appeals finding no error in the defendant\u2019s trial. Writing for the majority, Justice Huskins drew upon the rule and rationale enunciated in Terry v. Ohio, supra, to uphold the officer\u2019s conduct in stopping the defendant and subsequently frisking him for weapons. The opinion notes that:\n\u201cCrimes of violence are on the increase, and officers are becoming the victims of such crimes in increasing numbers. As a result the necessity for officers to protect themselves and others in situations where probable cause for an arrest may be lacking is now recognized and permitted. Of course, North Carolina has no \u2018stop and frisk\u2019 statute although many states do. (Citation omitted.) The lack of such a statute, however, is not fatal to the authority of law enforcement officers in North Carolina to stop suspicious persons for questioning (field interrogation) and to search those persons for dangerous weapons (frisking). These practices have been a time-honored police procedure and have been recognized, as valid at common law \u2018as a reasonable and necessary police authority for the prevention of crime and the preservation of public order.\u2019 \u201d (Citations omitted.) 283 N.C. at 209, 195 S.E. 2d at 506.\nIt is our conclusion that Streeter controls the case sub judice, and, therefore, we hold that on the facts of this particular case there was nothing illegal about defendants being stopped or searched. It must be remembered that defendants were walking along the road at an unusual hour for persons to be going about their business. In this regard, the present case approximates the situation dealt with in Streeter. However, in one critical respect, there was a more compelling reason for stopping defendants as they walked along the road. The officer who directed them to stop knew that a homicide had been committed within a few hundred feet and within little more than the preceding half hour. While these circumstances do not constitute probable cause for an arrest, they do amount to a reasonable basis for directing defendants to stop and identify themselves.\nHowever, to say that it was lawful to stop defendants as they walked along the road does not end the matter. It must be determined whether it was permissible for the officers to search defendants. Upon seeing them as they walked along the road near decedent\u2019s house, Lieutenant Finger turned on his blue light and directed defendants to stop. As we noted above, the officer was acting lawfully in directing the men to stop. Meanwhile, Deputy Sigmon and Lieutenant Burgess arrived at the scene. Both men had been at the Williamson house investigating the homicide, and they had seen the flashing blue light nearby. Lieutenant Burgess thereupon asked defendants to identify themselves. Defendant McMurry identified himself by his given name. However, defendant Rinck said that his name was \u201cShuford.\u201d Deputy Sigmon, who recognized defendants from his earlier encounter, told his fellow officers that defendant Rinck had identified himself earlier as \u201cSwink.\u201d\nAt the same time, Lieutenant Burgess noticed a bulge in the left front pocket of defendant McMurry\u2019s pants. The officer also observed defendant McMurry placing his hand in the pocket. Thinking that the bulge was a weapon, Lieutenant Burgess grabbed defendant McMurry\u2019s hand and pulled it out of the pocket. The officer then reached in the pocket and retrieved a pill bottle which bore decedent\u2019s name. Thereupon, the officers placed both defendants under arrest and searched them.\nAgain, we perceive nothing unlawful. As we noted earlier, if an officer who has detained an individual has reason to believe that criminal activity may be afoot and that the individual may be armed, the officer may frisk him as a matter of self-protection. Terry v. Ohio, supra; State v. Buie, supra; State v. Streeter, supra. Such was the case here. Defendants had been lawfully stopped in close proximity to the scene of a recent homicide. Nothing else appearing, there were no grounds upon which a search could be justified. However, Officer Burgess observed a bulge in defendant McMurry\u2019s pocket. He also saw defendant McMurry put his hand in the pocket. A reasonable man facing the same set of circumstances would have reacted as did Lieutenant Burgess. That the search did not reveal a weapon is irrelevant. Evidence of a crime which is necessarily exposed by a limited weapons search is evidence which is lawfully obtained. State v. Streeter, supra.\nHaving established that there was adequate justification for stopping defendants as well as searching them, we now turn our attention to the question of whether there was probable cause to arrest defendants. Unless probable cause existed at the time of their seizure, defendant\u2019s arrest was constitutionally invalid, State v. Streeter, supra, as well as statutorily prohibited. See G.S. \u00a7 15A-401 (Cum. Supp. 1979). The existence of probable cause depends upon whether at the time of the arrest there were facts and circumstances within the knowledge of the arresting officer which would justify a prudent man\u2019s belief that a suspect had committed an offense. Beck v. Ohio, 379 U.S. 89, 13 L.Ed. 2d 142, 85 S.Ct. 223 (1964); State v. Joyner, 301 N.C. 18, 269 S.E. 2d 125 (1980); State v. Streeter, supra; see generally J. Cook, Constitutional Rights of the Accused; Pretrial Rights \u00a7 17 (1972). The existence of probable cause to arrest an individual is a pragmatic question to be determined in each case in light of the particular circumstances and the particular offense involved. State v. Harris, 279 N.C. 307, 182 S.E. 2d 364 (1971).\nWe conclude from all the facts and circumstances in the case sub judice that there was probable cause to arrest defendants. Deputy Sigmon recognized defendants from his earlier encounter with them at decedent\u2019s house. That fact alone does not establish probable cause for an arrest. It is but one fact among several that must be considered. Not only had defendants been seen at decedent\u2019s home, they were observed going back into a dwelling where a body was subsequently found. Also, Deputy Sigmon recognized that defendant Rinck gave a different last name in identifying himself to Lieutenant Finger than he had at the house. Defendants\u2019 appearance were disheveled and there were stains upon clothing that appeared to be blood. All of these considerations, coupled with the medicine bottle bearing decedent\u2019s name found in defendant McMurry\u2019s pocket, would be sufficient to justify a prudent man\u2019s belief that defendants had been involved in decedent\u2019s death. It, therefore, follows that the arresting officers were acting lawfully by thoroughly searching the person of each defendant and that the items so seized were not subject to being suppressed. Chimel v. California, 395 U.S. 752, 23 L.Ed. 2d 685, 89 S.Ct. 2034 (1969).\nD\nSimilarly, we find no merit in defendants\u2019 contentions that by his questions of witnesses, his comments to counsel, and in his arranging of the evidence before the jury in his charge, the trial judge expressed an opinion as to their guilt in violation of G.S. \u00a7 15A-1222 (1978).\nA trial judge may properly question- witnesses in order to clarify and to promote a proper understanding of the testimony. E.g., State v. Riddick, 291 N.C. 399, 230 S.E. 2d 506 (1976). However, such questions constitute prejudicial error if by their tenor, frequency, or persistence, the trial judge expresses an opinion. E.g., State v. Lea, 259 N.C. 398, 130 S.E. 2d 688 (1963). In the case sub judice, we find nothing objectionable about the judge\u2019s questions. Since they were asked in a detached and neutral fashion, they tended to clarify unclear and confusing testimony.\nNor do we find anything objectionable in the judge\u2019s comments to defense counsel during the cross-examination of Deputy Sigmon. They were directed at the form of the questions employed, as well as the proper scope of cross-examination. The comments are straightforward, and they are not demeaning, insulting, or patronizing. See State v. Berry, 295 N.C. 534, 246 S.E. 2d 758 (1978).\nDefendants\u2019 objections to the judge\u2019s array of the evidence before the jury are also without merit. It is clear that while the judge spent more time summarizing the evidence for the State than he did the evidence for defendant Rinck, the mere fact that a judge spends more time summarizing the evidence for the State does not amount to an expression of opinion. E.g., State v. Sanders, 288 N.C. 285, 218 S.E. 2d 352 (1975), cert. denied, 423 U.S. 1091 (1976). While evidence which is brought out on cross-examination is evidence for a defendant, State v. Sanders, 298 N.C. 512, 259 S.E. 2d 258 (1979), it is not error for a court to fail to summarize such evidence if it is not of an exculpatory nature which goes to the establishment of a defense. State v. Moore, 301 N.C. 262, 271 S.E. 2d 242 (1980). The cross-examination of the State\u2019s witnesses elicited no such evidence. Lastly, defendants argue that the trial court erred in failing to state their contentions sufficiently. A trial court is not required to state the contentions of the parties. E.g., State v. Dietz, 289 N.C. 488, 223 S.E. 2d 357 (1976). In the present case, the court merely stated that it was the contention of the State that the jury ought to be satisfied of defendant\u2019s guilt beyond a reasonable doubt from all of the evidence; and that it was the contention of defendants that the State\u2019s evidence ought not to be believed, and that, at the very least, the jury ought to have a reasonable doubt as to their guilt. Nothing more is required, and it is clear from the record that the court gave equal stress to the contentions of the State as well as to those of defendants.\nE\nDefendants next contend that the trial court erred by submitting burglary to the jury as the underlying felony for first-degree murder on the theory of felony murder. There was no error.\nA killing is committed in the perpetration or attempted perpetration of a felony when there is no break in the chain of events leading from the initial felony to the act causing death. State v. Thompson, 280 N.C. 202, 185 S.E. 2d 666 (1972). The underlying felony is not deemed terminated prior to the killing merely because the participants have proceeded far enough to be convicted of the underlying felony. State v. Squire, 292 N.C. 494, 234 S.E. 2d 563, cert. denied, 434 U.S. 998 (1977).\nIt is our conclusion that State v. Thompson, supra, controls the present case. In Thompson, the defendant broke and entered an apartment and took various articles of property. An accomplice asked the defendant if he had gotten everything he wanted. The defendant replied affirmatively, but he went on to say that he had something \u201cto take care of.\u201d Upon further questioning by the accomplice, the defendant said that it was \u201csomebody upstairs.\u201d The defendant then went upstairs to the apartment and killed a youth who lived there. On appeal, this Court held that it was not error to have charged the jury on felony murder with felonious breaking and entering and felonious larceny being the underlying felonies.\nIn the present case, the evidence tends to show a similar factual pattern to that of Thompson. At 1:16 a.m. a caller purporting to be decedent called the Catawba County Sheriff\u2019s Department and reported that he had been robbed by Bobby Swink. The dispatcher attempted to call back but the line was constantly busy. Investigating officers who discovered decedent\u2019s body found one of the telephones in the house off the hook, and the other telephone had its cord broken off. Defendants were at the scene of the homicide when the first officer arrived at the scene, and they left shortly thereafter. The State\u2019s evidence therefore tends to show that while the homicide was not committed to overcome resistance or consummate the crime of burglary, it was committed to silence the decedent and thereby prevent him from identifying defendants. In this respect, the present case is identical to State v. Thompson, supra.\nThere was no error.\nF\nDefendants were charged with the crime of first-degree murder. The State proceeded under a felony murder theory, and the trial judge so instructed the jury. Defendants now assert that the trial court erred in failing to charge the jury on the lesser included offenses of second-degree murder and voluntary manslaughter. There was no error.\nIt is well-established in North Carolina that the trial court is under a duty to instruct the jury upon, and to submit for its consideration, a lesser included offense only when there is evidence tending to show the commission of such lesser included offense. State v. Squire, supra. In particular, where the law and the evidence justify the use of the felony murder rule, the State is not required to prove premeditation and deliberation, and neither is the court required to submit the offenses of second-degree murder or manslaughter unless there is evidence to support it. State v. Warren, 292 N.C. 235, 232 S.E. 2d 419 (1977); State v. Swift, 290 N.C. 383, 226 S.E. 2d 652 (1976).\nMurder in the second degree is the unlawful killing of a human being with malice but without premeditation and deliberation. E.g., State v. Duboise, 279 N.C. 73, 181 S.E. 2d 393 (1971). Voluntary manslaughter is the unlawful killing of a human being without malice, express or implied, and without premeditation and deliberation. E.g., State v. Fleming, 296 N.C. 559, 251 S.E. 2d 430 (1979).\nThe State submits, and we agree, that the evidence tends to show that defendants killed decedent in the perpetration of the underlying felony of burglary. Compare State v. Thompson, supra. There is no evidence that decedent was killed other than in the course of the commission of the felony of burglary. There is no evidence in the record which would justify submitting any lesser included offenses. The record establishes that defendants were guilty of first-degree murder or not guilty of any crime. The State has established a prima facie case as to first-degree murder under the felony murder rule. No other crime was made out by the evidence.\nThere was no error.\nII\nWe next address those assignments of error raised by defendant McMurry.\nA\nDefendant McMurry first contends that the trial court erred in denying his motion for pretrial discovery of the names of the State\u2019s witnesses.\nIt is well settled that a defendant in a criminal case is not entitled to a list of the State\u2019s witnesses who are to testify against him. G.S. 15A-903, which lists the information the State must disclose upon defendant\u2019s proper discovery motion, does not alter this rule. State v. Moore, 301 N.C. 262, 271 S.E. 2d 242 (1980); State v. Sledge, 297 N.C. 227, 254 S.E. 2d 579 (1979); State v. Smith, 291 N.C. 505, 231 S.E. 2d 663 (1977). There was no error.\nB\nBy his next assignment, McMurry argues that the trial court erred in failing to more fully set forth the elements of robbery in his charge to the jury. The trial judge defined robbery as follows:\n\u201cRobbery is the forcible taking and carrying away personal property of another from his person or in his presence without his consent with the intent to deprive him of its use permanently, the taker knowing that he is not entitled to take it.\u201d\nThis instruction was in compliance with the definitions of common law robbery previously outlined by this Court. State v. King, 299 N.C. 707, 264 S.E. 2d 40 (1980); State v. Moore, 279 N.C. 455, 183 S.E. 2d 546 (1971).\nDefendant alleges that the trial judge should have also submitted an instruction to the jury on the lesser included offenses of non-felonious larceny and non-felonious breaking and entering. We disagree. McMurry was charged in an indictment with first-degree murder under the felony-murder doctrine. The State sought to prove that the murder occurred during the perpetration of the felony of burglary in the first-degree. First-degree burglary is defined as the breaking and entering in the nighttime of an occupied dwelling or sleeping apartment with the intent to commit a felony therein. State v. Simpson, 299 N.C. 377, 261 S.E. 2d 661 (1980); State v. Bell, 285 N.C. 746, 208 S.E. 2d 506 (1974). The State\u2019s evidence tended to show that robbery was the felony that defendants intended to commit at the time of the breaking and entering into the home of Donald Williamson. Thus, the instructions on both burglary and armed robbery were submitted to the jury as part of the murder charge. Under such circumstances, the underlying felonies become part of the first-degree murder charge, prohibiting a further prosecution of the defendant for the underlying felonies. State v. Thompson, supra. Defendant McMurry could not have been lawfully convicted of robbery upon his indictment for first-degree murder. The court was therefore not required to instruct the jury as to the lesser included offenses of robbery. State v. Squire, supra. Defendant\u2019s assignment of error is without merit and overruled.\nIll\nWe finally address those issues argued solely by defendant Rinck.\nA\nRinck submits that the trial court erred in admitting evidence of the telephone conversation between Deputy Denise Allen and a person identifying himself as the decedent, Donald B. Williamson.\nDeputy Allen, a dispatcher for the Catawba County Sheriff\u2019s Department, testified for the State that she received a telephone call on one of the emergency lines at the Catawba County Communications Center at 1:16 a.m. on 19 August 1979. The caller identified himself as Donald Williamson and stated that he had just been robbed of his pocketbook containing about $35.00. He identified one of his assailants as \u201cBobby Swink.\u201d Upon Deputy Allen\u2019s request, the caller gave his address, telephone number, and a description of his house. The entire conversation was tape recorded and retained as part of the records of the Catawba County Sheriff\u2019s Department, as are all calls made on the Communications Center\u2019s emergency lines. A transcript of the recorded conversation was received into evidence.\nDefendant maintains that the evidence of the telephone call was improperly admitted on two grounds; first, because the State was unable to sufficiently identify the caller as Donald Williamson and second, because the statements made in the telephone conversation were hearsay and not admissible under any of the recognized exceptions to the hearsay rule.\nJustice Exum, speaking for the Court in State v. Richards, 294 N.C. 474, 480, 242 S.E. 2d 844, 849 (1978), summarized the principles of law relevant to establishing the identity of a telephone caller as follows:\n\u201cBefore a witness may relate what he heard during a telephone conversation with another person, the identity of the person with whom the witness was speaking must be established. State v. Williams, 288 N.C. 680, 698, 220 S.E. 2d 558, 571 (1975). If the call was from the person whose identity is in question, the mere fact that he represented himself to be a certain person is not enough to identify him as that person, 1 Stansbury\u2019s N.C. Evidence \u00a7 96, p. 310 (Brandis Rev. 1973) accord, State v. Williams, supra. Identity of the caller may be established by testimony that the witness recognized the caller\u2019s voice, or by circumstantial evidence. State v. Williams, supra, 288 N.C. at 698, 220 S.E. 2d at 571. It is not always necessary to prove the identification before introducing evidence of the conversation, particularly in criminal prosecutions where secrecy, anonymity and concealed identity are generally resorted to. In such cases it is only necessary that identity of the person be shown directly or by circumstances somewhere in the development of the case. . . . State v. Strickland, 229 N.C. 201, 208, 49 S.E. 2d 469, 474 (1948).\u201d\nApplying these principles to the facts of the case sub judice, we find that there was sufficient evidence presented to identify the caller as Donald Williamson. During the conversation, the caller clearly stated his name, address, and telephone number and gave an accurate description of his house, all of which information was verified by law enforcement officers. Further, although Deputy Allen was not personally familiar with Mr. Williamson\u2019s voice so as to recognize it at the time of the conversation, both decedent\u2019s daughter, Zonnie Reinhardt, and his granddaughter, Candy Frye, listened to the tape recording of the call at voir dire and were able to immediately and without hesitation identify the male voice on the tape as that of decedent.\nWe are likewise unpersuaded by defendant Rinck\u2019s contention that, assuming the identity of the caller was sufficiently established, Deputy Allen\u2019s testimony regarding the substance of that conversation and the transcript of the tape recording of the call were still inadmissible as hearsay not falling within any of the recognized exceptions to the hearsay rule. Whenever a statement of any person other than the witness himself in his present testimony is offered to prove the truth of the matter asserted, the evidence so offered is hearsay. State v. Tilley, 292 N.C. 132, 232 S.E. 2d 433 (1977). Stated differently, evidence, whether oral or written, is hearsay \u201cwhen its probative force depends, in whole or in part, upon the competency and credibility of some person other than the witness by whom it is sought to produce it.\u201d State v. Deck, 285 N.C. 209, 213, 203 S.E. 2d 830, 833 (1974). Unless it falls within one of the recognized exceptions to the hearsay rule, hearsay evidence is inadmissible. State v. Connley, 295 N.C. 327, 245 S.E. 2d 663 (1978), death sentenced vacated, 441 U.S. 929 (1979). Indisputably, the content of the telephone conversation between Deputy Allen and the decedent was hearsay, as the evidence was offered to prove the truth of the matters discussed during the call and its probative force depended upon the credibility of the decedent. We hold, however, that this evidence falls within two well-established exceptions to the hearsay rule and was therefore properly admitted.\nFirst, Deputy Allen\u2019s testimony regarding the entire conversation was admissible under the res gestae exception. Under that exception, statements made by an individual immediately prior to or during the course of a continuing criminal transaction are admissible despite their hearsay nature. The res gestae doctrine was described in State v. Connley, supra, as follows:\n\u201cThe rule of res gestae, under which it is said that all facts which are a part of the res gestae are admissible, is a rule determining the relevancy and not the character or probative force of the evidence. If the court determines that the fact offered is a part of the the res gestae, it will be accepted, because, as it is said, that fact is then relevant. . . . Circumstances constituting a criminal transaction which is being investigated by the jury, and which are so interwoven with other circumstances and with the principal facts which are at issue that they cannot be very well separated from the principal facts without depriving the jury of proof which is necessary for it to have in order to reach a direct conclusion on the evidence, may be regarded as res gestae.\nThese facts include declarations which grow out of the main fact, shed light upon it, and which are unpremeditated, spontaneous, and made at a time so near, either prior or subsequent to the main act, as to exclude the idea of deliberation or fabrication. A statement made as part of res gestae does not narrate a past event, but it is the event speaking through the person and therefore is not excluded as hearsay, and precludes the idea of design.\u201d 295 N.C. at 341-2, 245 S.E. 2d at 672, quoting from 1 Underhill\u2019s Criminal Evidence \u00a7 266 (5th Ed. 1956).\nFor a declaration to be competent as part of the res gestae, the State must show: (a) that the declaration was of such a spontaneous character that it is unlikely that the declarant had the opportunity to reflect and fabricate; (b) that it was spoken contemporaneously with the transaction or so close in time to the transaction as to be practically inseparable therefrom; and (c) it must be relevant to the facts sought to be proved. State v. Vestal, 278 N.C. 561, 180 S.E. 2d 755, cert. denied, 414 U.S. 874 (1971); Coley v. Phillips, 224 N.C. 618, 31 S.E. 2d 757 (1944).\nBoth Deputy Allen\u2019s testimony and the transcript of the tape clearly show that when the decedent called the dispatcher, he immediately stated that he had \u201cjust\u201d been robbed. In addition, although the decedent was alive during the phone conversation, the State\u2019s evidence indicates that he was killed no more than seventeen minutes after the call, at which time law enforcement officers arrived at his home and found his body. Deputy Allen testified that she called decedent\u2019s home immediately after their conversation to verify the call, but was unable to get anything other than a busy signal. The officers who investigated the incident found that decedent\u2019s phone had been taken off the hook. This evidence is sufficient to show the spontaneous character of the phone conversation and the fact that it was made contemporaneously with the continuing criminal transaction of the robbery and the homicide. Under these facts, we hold that Deputy Allen\u2019s testimony concerning the phone conversation was properly admitted as part of the res gestae. See also State v. Cawthorne, 290 N.C. 639, 227 S.E. 2d 528 (1976).\nThe transcript of the tape recording of the phone call was likewise admissible under the business records exception to the hearsay rule. Business entries made in the regular course of business, at or near the time of the transaction, and which are authenticated by a witness who is familiar with the system under which they are made, are admissible despite their hearsay nature. State v. Connley, supra; 1 Stansbury\u2019s N.C. Evidence \u00a7 155 (Brandis Rev. 1973). Several witnesses employed by the Catawba County Sheriffs Department testified at voir dire that all calls made on the emergency lines of the Catawba County Communications Center were regularly recorded and stored, and that the call at issue in this case was recorded and stored in the normal manner. The transcript of this conversation was thus admissible as a business entry.\nB\nDefendant Rinck next argues that the. trial court erred in allowing several of the State\u2019s witnesses to testify that the decedent, Donald Williamson had often referred to defendant Rinck by the name \u201cBobby Swink.\u201d Defendant complains that such testimony was inadmissible hearsay evidence not falling within any recognized exception to the hearsay rule.\nIt is well settled that an individual\u2019s statements concerning his own state of mind are admissible to prove his state of mind, knowledge and intention, despite the hearsay nature of the statements. 1 Stansbury\u2019s North Carolina Evidence \u00a7 161 (Brandis Rev. 1973). In the case before us, several witnesses testified that the decedent had referred to defendant as \u201cBobby Swink\u201d on several occasions prior to his death. This evidence was offered to show the decedent\u2019s knowledge of defendant Rinck\u2019s identity and to explain why he referred to him as \u201cBobby Swink\u201d during the telephone call to the Catawba County Police Department at 1:16 a.m. on 19 August 1979. Consequently, the testimony was properly admitted and defendant\u2019s allegations to the contrary are without merit.\nC\nDefendant Rinck further argues that even if the hearsay evidence of the phone call between the deceased and Deputy Allen on 19 August 1979 is admissible under an exception to the hearsay rule, the admission of this evidence is nevertheless a violation of defendant\u2019s right under the Sixth Amendment to the United States Constitution to confront the witness presented against him.\nIn support of his argument, defendant chiefly relies on the recent case of Ohio v. Roberts, --- U.S. --- , 100 S.Ct. 2531, 65 L.Ed. 2d 597 (1980). The Court in Roberts, however did not prohibit the use of hearsay testimony, but merely expressed a strong preference for face-to-face confrontation and suggested a weighing of this preference against considerations of public policy and the necessities of the case. See also Dutton v. Evans, 400 U.S. 74, 91 S.Ct. 210, 27 L.Ed. 2d 213 (1970). The court held that hearsay evidence may be used without violating an accused\u2019s sixth amendment right of confrontation where: (a) the declarant is unavailable to testify at defendant\u2019s trial and (b) where the testimony bears adequate indicia of reliability, which reliability can be inferred where the evidence falls within a firmly established hearsay exception.\nIn the case sub judice, decedent\u2019s death rendered him unavailable to testify at defendant\u2019s trial. Furthermore, we held that evidence of the phone conversation between Donald Williamson and Deputy Allen fell into two well recognized exceptions to the rule which renders hearsay evidence generally inadmissible. The fact that the conversation was part of the res gestae of the robbery and homicide offenses indicates its reliability, in that the decedent had not had the opportunity to fabricate his statements. Under these circumstances we find that the necessity of using the hearsay evidence outweighs the preference for in-court confrontation of the witness, and defendant Rinck\u2019s assignment of error is without merit.\nD\nDefendant Rinck fin\u00e1lly contends that the trial court erred in sustaining the State\u2019s objections to several of his attempts to explain his answers, thereby violating his right to testify in his own behalf pursuant to G.S. 8-54. We disagree.\nWe find that any error by the trial court in sustaining the State\u2019s objections was cured when the evidence sought to be admitted was subsequently admitted without objection. State v. Colvin, 297 N.C. 691, 256 S.E. 2d 689 (1979); State v. Milano, 297 N.C. 485, 256 S.E. 2d 154 (1979); State v. Holmes, 296 N.C. 47, 249 S.E. 2d 380 (1978). Consequently, defendant\u2019s assignment of error is overruled.\nDefendants received a fair trial free from prejudicial error and we find\nNo error.\n. Defendant McMurry did not offer any evidence. The court instructed the jury that they were not to use defendant McMurry\u2019s silence against him in any way.", "type": "majority", "author": "COPELAND, Justice." } ], "attorneys": [ "Attorney General Rufus L. Edmisten, by Assistant Attorney General Ralf F. Haskell, for the State.", "Robert M. Grant, Jr., for defendant Bobby Dean Rinck.", "Thomas C. Morphis, for defendant Ronald Dean McMurry." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. BOBBY DEAN RINCK and RONALD DEAN McMURRY\nNo. 45\n(Filed 17 August 1981)\n1. Criminal Law \u00a7 92.1\u2014 two defendants charged with same crime \u2014 consolidation proper\nThe trial court did not err in granting the State\u2019s motion to consolidate defendants\u2019 cases for trial where each defendant was charged with having committed the same offense at the same time; neither defendant acted at trial in such a way as to incriminate the other and their defenses were not antagonistic; and while the State on occasion presented evidence that was competent against only one defendant, the trial court proceeded at those times to instruct the jury that such evidence was competent against only a particular defendant.\n2. Criminal Law \u00a7 162.5\u2014 witness\u2019s testimony \u2014 failure to request limiting instructions\nIn a prosecution of defendants for murder committed during the perpetration of a robbery, defendants were not prejudiced by the admission of testimony by a radio dispatcher, since the trial judge instructed the jury that it was not to consider the testimony of the dispatcher against one defendant, and the other defendant made a series of general objections to the dispatcher\u2019s testimony but at no time requested a special instruction which would limit the jury\u2019s consideration of the evidence.\n3. Arrest and Bail \u00a7 3.1; Searches and Seizures \u00a7 10\u2014 warrantless search and arrest-probable cause\nThere was adequate justification for officers to stop defendants as they walked along the road and to conduct a limited search of defendants, and there was probable cause to arrest defendants where defendants were walking along a road at an unusual hour for persons to be going about their business; the officer who directed defendants to stop knew that a homicide had been committed within a few hundred feet and within little more than the preceding half hour; after defendants were stopped, an officer asked them to identify themselves, and one defendant gave a name different from that which he had given officers only a few minutes earlier; one officer noticed a bulge in the left front pocket of one defendant\u2019s pants; the officer also observed defendant placing his hand in the pocket; thinking that the bulge was a weapon, the officer grabbed defendant\u2019s hand and pulled it out of the pocket; the officer then reached into the pocket and retrieved a pill bottle which bore decedent\u2019s name; officers had observed defendants at decedent\u2019s home; defendants were observed going back into the dwelling where the body was subsequently found; and defendants were disheveled and there were stains upon their clothing which appeared to be blood.\n4. Criminal Law \u00a7 99.1\u2014 no expression of opinion by judge\nThe trial judge did not express an opinion as to defendants\u2019 guilt by his questions of witnesses, which tended to clarify unclear and confusing testimony, by his comments to counsel, which were straightforward and were not demeaning, insulting or patronizing, or by his arranging of the evidence before the jury in his charge; moreover, the trial court did not express an opinion by spending more time in summarizing the evidence for the State, and the trial court gave equal stress to the contentions of the State and the defendants.\n5. Homicide \u00a7 25.1\u2014 felony murder \u2014 instructions on burglary proper\nThe trial court did not err by submitting burglary to the jury as the underlying felony for first degree murder on the theory of felony murder where the evidence tended to show that at 1:16 a.m. a caller purporting to be decedent called the sheriffs department and reported that he had been robbed by Bobby Swink; the dispatcher attempted to call back but the line was constantly busy; investigating officers who discovered decedent\u2019s body found one of the telephones in the house off the hook and the other telephone had its cord broken off; defendants were at the scene of the homicide when the first officer arrived at the scene, and they left shortly thereafter; and the State\u2019s evidence therefore tended to show that, while the homicide was not committed to overcome resistance or consummate the crime of burglary, it was committed to silence the decedent and thereby prevent him from identifying defendants.\n6. Homicide \u00a7 30\u2014 felony murder \u2014 failure to instruct on lesser offenses\nWhere defendants were charged with first degree murder and the evidence tended to show that defendants killed decedent in the perpetration of the underlying felony of burglary, but there was no evidence that decedent was killed other than in the course of the commission of burglary, the trial court was not required to submit lesser included offenses of second degree murder and voluntary manslaughter to the jury.\n7. Constitutional Law \u00a7 30\u2014 names of State\u2019s witnesses \u2014no pretrial discovery\nA defendant in a criminal case is not entitled to a list of the State\u2019s witnesses who are to testify against him.\n8. Homicide \u00a7 25\u2014 felony murder \u2014 lesser offenses of underlying felony \u2014 instruction not required\nWhere defendants were charged with first degree murder under the felony murder doctrine, the underlying felony became part of the first degree murder charge, and further prosecution for the underlying felony was prohibited; therefore, the trial court was not required to instruct the jury as to the lesser included offenses of the underlying felony.\n9. Criminal Law \u00a7 69\u2014 telephone conversation \u2014identity of caller \u2014res gestae \u2014 business entry\nThe trial court in a first degree murder case did not err in admitting evidence of a telephone conversation between a sheriffs department dispatcher and a person identifying himself as decedent where the identity of the caller was sufficiently established by the conversation itself and by testimony of decedent\u2019s daughter and granddaughter that the voice on the tape of the conversation was that of decedent, and though the content of the telephone conversation was hearsay, it was nevertheless admissible as part of the res gestae, and the transcript of the tape recording of the phone call was admissible under the business records exception to the hearsay rule.\n10. Criminal Law \u00a7 73.3\u2014 statements showing state of mind \u2014 admissibility\nThe trial court in a first degree murder case did not err in allowing several of the State\u2019s witnesses to testify that decedent had often referred to defendant Rinck as \u201cBobby Swink,\u201d since the evidence was offered to show decedent\u2019s knowledge of defendant Rinck\u2019s identity as one of the persons who had robbed him and to explain why he referred to defendant as \u201cBobby Swink\u201d during a telephone call which he made to the police department on the day that he was killed.\n11. Constitutional Law \u00a7 65 \u2014telephone conversation \u2014 admissibility \u2014right to confront witnesses not abridged\nIn a first degree murder case there was no merit to defendant\u2019s contention that admission of a telephone conversation between deceased and a sheriffs department dispatcher violated defendant\u2019s right to confront the witnesses against him, since decedent\u2019s death rendered him unavailable to testify at defendant\u2019s trial; evidence of the phone conversation fell into two well recognized exceptions to the hearsay rule; and the necessity of using the hearsay evidence outweighed the preference for in-court confrontation of the witness.\nAppeal by defendants from judgments of Grist, J., entered at the 25 March 1980 Criminal Session of CATAWBA Superior Court sentencing each defendant to life imprisonment for the crime of first-degree murder.\nUpon entry of pleas of not guilty, defendants were tried upon bills of indictment, proper in form, which charged them with the first-degree murder of Donald B. Williamson. At trial, the State presented evidence that tended to show that:\nDuring the evening of 18 August 1979, defendants were in the company of several of their friends, including Cynthia Bass, a witness for the State. Early in the evening of 18 August, Ms. Bass drove defendants from the home of a friend to a tavern on Highway 321 between Newton and Maiden. After a short while, defendants gave Ms. Bass directions and instructed her to drive them to another destination. At approximately one o\u2019clock on the morning of 19 August, Ms. Bass drove her car into the driveway of the home of Donald B. Williamson located near Maiden, North Carolina. The Williamson house was built of cement blocks. Both defendants got out of the car, and Ms. Bass drove away without observing where the men went.\nAt 1:16 a.m. a dispatcher at the Catawba County Sheriffs Department received a telephone call from a person identifying himself as the decedent, Donald B. Williamson. The caller requested that he be allowed to talk with the Maiden Police Department. Upon inquiry by the dispatcher, the person said he had been robbed of his pocketbook which contained the sum of $35.00. As the caller described the robbery, he identified one of his assailants as being Bobby Swink. Before the conversation ended, the caller gave his name, address and telephone number, as well as a description of his house. After the conversation ended at approximately 1:19 a.m., Deputy Sheriff Gary Sigmon was dispatched to the address.\nDeputy Sigmon arrived at the Williamson residence at 1:35 a.m. The officer went to the front door and knocked several times but no one answered. It appeared to the deputy that most of the lights were on in the house. As he stood on the front porch of the house, the officer heard a noise at the rear of the dwelling that sounded like a door closing. As he walked around the left side of the house, he saw a blue automobile parked at the rear of the house. The back door of the house was open.\nAs Deputy Sigmon approached the vehicle, he saw an individual sitting in the driver\u2019s seat whom he subsequently identified as being defendant Rinck. Upon being asked by the officer who had called the sheriff\u2019s department, defendant Rinck said \u201cThem in there.\u201d Defendant Rinck thereupon got out of the car and walked in front of it. Thereafter, the officer saw another person standing at the threshold of the back door. That individual was wearing faded blue jeans and no shirt, and he had shoulder length brown hair. Officer Sigmon observed both individuals go back into the house. As he stood at the car after the men had gone inside, he saw two rifles, one resting in the rear floorboard, the other lying on the backseat.\nThe deputy went back to his cruiser and radioed in the license tag number of the automobile parked at the rear of the house. The Communications Center ran a check upon the license number and informed the officer that it was registered in decedent\u2019s name. The officer also requested that the dispatcher telephone the residence. After calling the house, the dispatcher told the deputy that the line was busy.\nShortly thereafter, two policemen, Office Tom Hurley and Officer Steve Pruitt, from Maiden arrived. The policemen went to the rear of the house, and Deputy Sigmon covered the front door. Meanwhile, Lieutenant Gene Finger, Shift Commander of the Catawba County Sheriff\u2019s Department, arrived at the scene.\nLieutenant Finger and Deputy Sigmon entered the front door to find a telephone cord on the floor and numerous .22 caliber rifle cartridges strewn about the living room. Some of the cartridges had been spent. The men proceeded through the house to the bedroom to find decedent\u2019s body lying in the bed. The body bore two bullet wounds about the face.\nUpon the arrival of a detective, the lieutenant left the scene to return to the sheriff\u2019s office. As he drove along, the officer noticed two individuals walking along the road approximately 200 feet from decedent\u2019s residence. The lieutenant turned on his blue light and stopped the men. The individuals were the defendants.\nLieutenant Don Burgess, a detective with the Catawba County Sheriff\u2019s Department, observed the blue light from the Williamson house, and Deputy Sigmon, as well as an agent of the State Bureau of Investigation, accompanied the detective to the place where the defendants had been stopped. Lieutenant Burgess observed defendant McMurry placing his hand in a bulging pocket. The detective ordered defendant McMurry to stop and to take his hand out of the pocket. The defendant did as he was told, and Lieutenant Burgess reached into the pocket and retrieved a pill bottle which bore decedent\u2019s name. Thereupon, the officers arrested defendants and proceeded to search them. The subsequent search revealed, among other things, a set of keys. The keys were those to the automobile parked at the rear of the Williamson residence which belonged to the decedent. Subsequent investigation identified fingerprints found within the house as being those of the defendants.\nDefendant McMurry did not offer any evidence.\nDefendant Rinck offered evidence, including his own testimony, that tended to show that he and defendant McMurry had visited the Williamson home during the early morning hours of 19 August for the purpose of visiting decedent\u2019s son Jerry Beal, and decedent\u2019s daughter, Judy Beal, whom defendant Rinck had dated. They knocked on the front door, but nobody answered. The pair then proceeded to look around the outside premises. Upon the arrival of Deputy Sigmon, the pair left. Defendant Rinck denied that anyone ever called him \u201cSwink.\u201d\nOther evidence pertinent to our decision will be discussed in the opinion.\nAttorney General Rufus L. Edmisten, by Assistant Attorney General Ralf F. Haskell, for the State.\nRobert M. Grant, Jr., for defendant Bobby Dean Rinck.\nThomas C. Morphis, for defendant Ronald Dean McMurry.\n. Judy Gail Beal was decedent\u2019s daughter and testified for the State. Ms. Beal testified that she and defendant Rinck had dated one another until approximately one week before her father\u2019s death. Throughout that time, defendant Rinck had spent much time at decedent\u2019s home. According to Ms. Beal, decedent referred to defendant Rinck as \u201cSwink.\u201d Decedent\u2019s granddaughter, Candy Frye, confirmed the practice.\n. The State proceeded under a theory of felony murder. Upon inquiry by the court, the State conceded that the only aggravating circumstance for which it had evidence was that of the underlying felony of burglary. Thereupon, the court entered judgments sentencing defendants to life imprisonment. See State v. Cherry, 298 N.C. 86, 257 S.E. 2d 551 (1979), cert. denied, 446 U.S. 941 (1980)." }, "file_name": "0551-01", "first_page_order": 579, "last_page_order": 601 }