State v. Sommerset

HEDRICK Judge. Defendant by his first assignment of error contends that the trial court erred in denying his motion to require the State to elect between the offenses of armed robbery and kidnapping; and defendant submits in support of this argument that the case at bar is controlled by State v. Dix, 282 N.C. 490, 193 S.E. 2d 897 (1972). In State v. Dix, supra, the Supreme Court by a 5 to 2 decision, determined that there was not a sufficient asportation to constitute the crime of kidnapping where defendant forced a jailer at gunpoint to go from the front door of the jail to the jail cells, a distance of some 62 feet, compelled the jailer to release two prisoners, and then locked the jailer in one of the jail cells. In the instant case the evidence introduced by the State revealed that Mr. Morrison was forced from his residence at gunpoint and transported by car for a distance of approximately eight miles at which point the defendant and his accomplice robbed Morrison. It is our view that a comparison between the present case and State v. Dix, supra, renders the latter case readily distinguishable from the case sub judice and that the construction of State v. Dix which defendant desires us to adopt is much too broad. Clearly, the asportation of Morrison exceeded the incidental restraint present in State v. Dix, supra, and the risk of harm to Morrison was over and above that necessarily present in the robbery itself. The decisions of this jurisdiction define kidnapping as the unlawful taking and carrying away of a person against his will by force, threats, or fraud, State v. Murphy, 280 N.C. 1, 184 S.E. 2d 845 (1971) ; State v. Barbour, 278 N.C. 449, 180 S.E. 2d 115 (1971), cert. denied, 404 U.S. 1023 (1972) ; State v. Gough, 257 N.C. 348, 126 S.E. 2d 118 (1962) ; and the evidence presented in this case fully satisfies the requirements of this definition as well as [275] the definition of armed robbery. Thus, the trial court correctly denied defendant’s motion to require the State to elect between the two charges. Next, the defendant maintains that the trial court committed error in denying defendant’s motions to suppress the testimony of two witnesses, namely Morrison and his wife. These motions to suppress were predicated upon defense counsel’s belief that both Morrison and his wife had given written statements to the police; however, the record reveals that the statements made by Mr. Morrison and his wife were not in the form of written statements as implied by defendant but rather their comments were transcribed by an investigating officer and placed in a police report. A copy of this police report was furnished to defendant’s counsel; therefore, the trial court did not err in refusing to suppress the testimony of Morrison and his wife. Similarly, defendant asserts that it was error to allow the introduction into evidence of a photograph of Mr. Morrison (the purpose of the photograph being to illustrate the testimony pf Mr. Morrison relating to a pistol blow he received across the nose) when defendant had not first been supplied a copy of this photograph as required by a prior court order. Assuming arguendo that it was technical error to allow the admission of such evidence, the defendant has failed to demonstrate how the introduction of this photograph has prejudiced him. Thus, this assignment of error is overruled. Defendant further asserts that it was error for the trial judge in his charge to the jury to refer to Mr. Morrison as “the victim” as this constituted an expression of an opinion on the evidence and as such was in violation of G.S. 1-180. It is true that the charge does contain the language complained of; however, the trial judge also at one point included within the charge the words “the victim—the alleged victim.” It is a well-established principle that the charge will be construed contextually and isolated portions will not be held prejudicial when the charge as a whole is correct. State v. Cook, 263 N.C. 730, 140 S.E. 2d 305 (1965) ; State v. Goldberg, 261 N.C. 181, 134 S.E. 2d 334 (1963). Also, “[i]f the charge presents the law fairly and clearly to the jury, the fact that some expressions standing alone might be considered erroneous will afford no ground for reversal.” State v. Lee, 277 N.C. 205, 176 S.E. 2d 765 (1970). This assignment of error is governed by the foregoing principles ; hence, it is without merit. [276] We have carefully reviewed defendant’s remaining assignments of error, including those related to the charge, and find them to be nonmeritorious. The defendant was afforded a fair trial, free from prejudicial error. No error. Judges Britt and Carson concur.