State v. Drakeford , 37 N.C. App. 340 ( 1978 )

246 S.E.2d 55 (1978) 37 N.C. App. 340

STATE of North Carolina
v.
Reginald Gilmore DRAKEFORD and Reginald Scott Watson.

No. 7826SC272.

Court of Appeals of North Carolina.

August 1, 1978.

Atty. Gen. Rufus L. Edmisten, by Associate Atty. Gen. Norma S. Harrell, Raleigh, for the State.

Gene H. Kendall, Charlotte, for defendants appellants.

HEDRICK, Judge.

We first consider defendant Watson's separate assignment of error which challenges the admission of evidence identifying him as a participant in the robbery. On the morning of the robbery a lineup was conducted at which Jewel Robbins, the victim of the robbery, identified Watson as one of her assailants. Under this assignment Watson first contends that the lineup was impermissibly suggestive in that the defendant was required to wear brown pants while the other men in the lineup wore blue pants. The record does not support the defendant's contention but discloses that all participants in the lineup were black males and were of approximately the same height and weight as Watson, and that all wore varying shades of blue pants. This procedure clearly comports with constitutional principles. 1 Stansbury's N.C. Evidence, § 57 (Brandis Rev. 1973). However, even if it were shown that the defendant's pants were of a different color, this fact alone would not render the lineup procedure impermissibly suggestive. State v. Taylor, 280 N.C. 273, 185 S.E.2d 677 (1972).

Watson also contends that he was denied presence of counsel at the lineup. The record reveals that while the defendant was fully advised of his rights prior to the lineup, he made no request to have counsel present at that time. Nevertheless, an attorney from the Public Defender's Office was contacted by the police, and was allowed to advise the defendant and view the lineup. The defendant bases his contention on the fact that the attorney "was on the side of the one-way glass with the individuals to view the lineup, while defendant Watson was on the back side of that glass and could see neither [his] attorney . . . nor Mrs. Robbins and/or such other individuals as may have viewed the lineup." The defendant's contention is patently absurd and merits no discussion.

Finally, under the same assignment the defendant contends that the in-court identification by Jewel Robbins was inadmissible because it was tainted from her seeing the defendant at his preliminary hearing at which Robbins appeared as a witness. The preliminary hearing was held after the lineup in which she had previously identified Watson. These contentions of the defendant Watson are totally without merit, and his assignment is overruled.

The remaining assignments of error are argued jointly in the defendants' brief. The defendants assign as error the admission of testimony regarding the search of Room 114 at the Days Inn Motel and the admission of the fruits of that search. The exceptions upon which these assignments are based refer to general objections by each defendant to admission of the evidence. The State contends that the defendants' failure to comply with the statutory procedure for challenging evidence obtained in an allegedly invalid search constitutes a waiver of objection to the evidence on that ground.

Article 53 of Chapter 15A of the North Carolina General Statutes, entitled "Motion to Suppress Evidence," prescribes "the exclusive method of challenging the admissibility of evidence" on constitutional or statutory grounds. G.S. 15A-979(d). General Statute 15A-975(a) requires a defendant to make his motion to suppress evidence prior to trial "unless the defendant did not have reasonable opportunity to make the motion before trial or unless a motion to suppress is allowed during trial under subsection (b) or (c)." The subsections referred to authorize a motion to suppress during trial "when the State has failed to notify the defendant's counsel or, if he has none, the defendant, sooner than 20 working days before trial, of its intention to use the evidence," and the evidence is of a specified nature; or when "additional pertinent facts have been discovered by the defendant which he could not have discovered with reasonable diligence before" the denial of his pretrial motion. The specific timing of the pre-trial motion is provided in G.S. 15A-976, and the procedure for filing and hearing such motion is set forth in G.S. 15A-977.

Our Supreme Court recently held in State v. Hill, 294 N.C. 320, 240 S.E.2d 794 (1978), that the failure to raise the question of the admissibility of evidence obtained in an allegedly unlawful search in a proper motion pursuant to the foregoing statutes constitutes a waiver by the defendant of his objection to the admission of the evidence. In Hill the trial court found as a fact that "the defendant had reasonable opportunity to move to suppress the evidence which is the subject of this motion" within the statutory time limit, 294 N.C. at 333-4, 240 S.E.2d at 803; and, therefore, his failure to make a timely motion, was fatal to his objection to the evidence.

In the present case there is no such finding by the trial court. Furthermore, there is no indication in the record as to whether a motion to suppress was made at any time by the defendant. Thus, we are unable to determine whether the defendant presented his objection in a timely fashion and in suitable form. In our opinion, Article 53 of Chapter 15A not only requires the defendant to raise his motion according to its mandate, but also places the burden on the defendant to demonstrate that he has done so. Since the record reflects only general objections to the admission of the evidence, the defendants have waived any right to challenge the evidence on constitutional grounds.

Thus, as the State contends, the only question raised by the defendants' general objections is whether the evidence is relevant. The search of Room 114 of the Days Inn Motel which was registered under defendant Drakeford's name yielded a hacksaw, a brown cap, and portions of a rifle barrel and stock which had been sawed off of a .22 caliber rifle and which, according to one witness, matched the sawed-off .22 caliber rifle found in defendant Watson's automobile. This evidence is unquestionably relevant in connecting the defendants to the crime committed. The defendants' assignment of error challenging the admission of this evidence is overruled.

The defendants also assign as error the denial of their respective motions to dismiss at the close of the evidence. Defendant Drakeford argues that there is no evidence to support the verdict that he was a participant in the robbery. It is established that "``when two or more persons aid and abet each other in the commission of a crime, all being present, all are principals and equally guilty.'" State v. Rankin, 284 N.C. 219, 222, 200 S.E.2d 182, 184 (1973). In order to support the defendant Drakeford's conviction the State's evidence must be sufficient to raise an inference

that the defendant was present, actually or constructively, with the intent to aid the perpetrators in the commission of the offense should his assistance become necessary and that such intent was communicated to the actual perpetrators. The communication or intent to aid, if needed, does not have to be shown by express words of the defendant but may be inferred from his actions and from his relation to the actual perpetrators.

State v. Sanders, 288 N.C. 285, 290-1, 218 S.E.2d 352, 357 (1975). It is also settled that flight from the scene of the crime is competent evidence of the defendant's guilt. State v. Jones, 292 N.C. 513, 234 S.E.2d 555 (1977); State v. Rankin, supra.

The evidence pertaining to defendant Drakeford, when viewed in the light favorable to the State, tends to show that Drakeford was riding in the back seat of Watson's Volkswagen while in flight from the motel; that his fingerprint was on a cigarette pack found in the getaway car; that he fled on foot with the other occupants of the car after they had stopped; and that a .22 caliber rifle was prepared for use in the robbery in a motel room registered in his name. We think this evidence was sufficient to withstand Drakeford's motion for judgment as of nonsuit.

Defendant Watson's contention with respect to his motion for judgment as of nonsuit was predicated on his contention that his identification was inadmissible in evidence. In view of our rejection of this latter contention it is clear that the evidence favorable to the State is sufficient to submit the case to the jury and to support the verdict. The assignments based on the denial of the defendants' motions for judgment as of nonsuit are overruled.

Finally, both defendants assign as error the sentencing of the defendants as adults without a preliminary finding that they would not benefit from sentencing as youthful offenders. The State concedes that each defendant was under 21 years of age at the time of his conviction, and that the trial judge nevertheless sentenced them as adult offenders. The State argues, however, that the statutes in effect at the time of the defendants' convictions did not require the trial court to make a finding that a youthful offender would not benefit from treatment as such in order to sentence him as an adult offender. In doing so the State requests that we reconsider our decision in State v. Mitchell, 24 N.C.App. 484, 211 S.E.2d 645 (1975), and the cases which followed. See In re Tuttle, 36 N.C.App. 222, 243 S.E.2d 434 (1978); State v. Matre, 32 N.C.App. 309, 231 S.E.2d 688 (1977); State v. Worthington, 27 N.C.App. 167, 218 S.E.2d 233 (1975); State v. Jones, 26 N.C.App. 63, 214 S.E.2d 779 (1975).

In State v. Mitchell, supra, Judge Clark, writing for this Court, discussed the applicable statutes, G.S. 148-49.1 through 148-49.9 (1974), providing special treatment for youthful offenders and quoted as follows from G.S. 148-49.4:

If the court shall find that the youthful offender will not derive benefit from treatment and supervision pursuant to this Article, then the court may sentence the youthful offender under any other applicable penalty provision.

The court then held that the quoted portion of the statute

expresses a clear legislative intent that a youthful offender receive the benefit of a sentence as a ``committed youthful offender,' unless the trial judge shall find that he will not derive benefit from such sentence.

24 N.C.App. at 488, 211 S.E.2d at 648.

We uphold our decisions in the cited cases. Furthermore, in our opinion the rewritten statutes regarding youthful offenders, G.S. 148-49.10 through 148-49.16 (1978) which explicitly require that the trial judge make a "``no benefit' finding on the record" if he determines that the defendant "should not obtain the benefit of release under G.S. 148-49.15," merely clarify the legislative intent which this Court found manifest in Mitchell. Childers v. Parker's, Inc., 274 N.C. 256, 162 S.E.2d 481 (1968). See also State v. Niccum, 293 N.C. 276, 238 S.E.2d 141 (1977), in which the Supreme Court recognizes the requirement of the amended statutes but expresses no view of our decision in State v. Mitchell, supra. Thus, we hold that the trial court erred in sentencing the defendants as adult offenders without first finding that they would not benefit from the treatment provided youthful offenders in Chapter 148 of the General Statutes.

We find no error in the trials of defendants in which they were convicted of armed robbery. We remand the cases to the Superior Court for re-sentencing in accordance with this opinion.

No error in trial.

Remanded for re-sentencing.

MORRIS and WEBB, JJ., concur.