State v. Blackburn ( 1969 )

170 S.E.2d 501 (1969) 6 N.C. App. 510

STATE of North Carolina
v.
Richard Lee BLACKBURN and Harold Dean Holland.

No. 6927SC382.

Court of Appeals of North Carolina.

November 19, 1969.

Atty. Gen. Robert Morgan and Staff Atty. Sidney S. Eagles, Jr., Raleigh, for the State.

Michael S. Kennedy, Shelby, for Richard Lee Blackburn.

John D. Church, Shelby, for Harold Dean Holland.

MALLARD, Chief Judge.

Appeal of Defendant Holland

The defendant Holland assigns as error the refusal of the trial judge to sever the trials of the two defendants and the trial judge's refusal to nonsuit the State as to Holland after the State had presented its evidence.

As to the trial judge's refusal to sever the defendants' trials, the correct rule is stated in 2 Strong, N.C. Index 2d, Criminal Law, § 92:

"Indictments charging several defendants with committing the same offense based upon a single occurrence are properly consolidated for trial, at least when there is no reason to anticipate that the State would offer an admission of either defendant which might prejudice the other. * * *

* * * * * *

Where three defendants are charged in separate indictments with larceny of specified personalty from a specified store and with breaking and entering and safebreaking at said store, the court may properly consolidate the indictments for trial, the offenses charged being of the same class and so connected in time and place that evidence at the trial of one would be competent and admissible at the trial of the others.

* * * * * *

Ordinarily, a motion for severance is addressed to the discretion of the trial court, to be determined in each particular case on the basis of possible prejudice in a joint trial."

The indictments in these cases charged each defendant with breaking and entering the same store. The crime was alleged to have been committed jointly. As such, trial was properly consolidated and motion for severance properly denied.

Before the jury was selected Blackburn stated he would like to discharge his appointed counsel and "disregard that not guilty plea and take the Fourth Amendment." The judge made appropriate findings in the absence of potential jurors and declined to discharge counsel. We do not agree with Holland's contention that this episode was prejudicial to him.

Defendant Holland next assigns as error the failure of the trial judge to allow his motion for judgment as of nonsuit.

The applicable rule on nonsuit of the State is stated in State v. Church, 265 N.C. 534, 144 S.E.2d 624 (1965):

"Upon a motion for judgment of nonsuit the evidence offered by the State must be taken in the light most favorable to the State and conflicts therein must be resolved in the State's favor, the credibility and effect of such evidence being a question for the jury."

In this case the State has shown that a store was broken into and articles found in defendant's possession were taken therefrom; that the defendants were a short distance from the store which had been broken into; that the store had been broken into only a short time before; that a dog left in the store to warn the owner of intruders had been owned by defendant Holland; and that the owner of the store did not hear a sound from the dog. The inference which could reasonably be made from the State's evidence would tend to show that the defendant Holland took part in the breaking and entering and larceny. The Credibility and effect of such evidence is for the jury.

We are of the opinion that there was sufficient evidence of defendant's guilt under the indictment to go to the jury.

Appeal of Defendant Blackburn

Defendant Blackburn assigns as error the refusal of the trial judge to exclude evidence seized as a result of the search of defendant's car and defendant's person.

The defendant contends that his car was illegally searched. He testified that he was assaulted and threatened and did not voluntarily give his permission for a search of his automobile. The State presented evidence which tended to show that the defendant Blackburn gave his consent to the search.

Deputy Sheriff Barbee testified:

"I saw some dishes and pots in the back seat by looking through the glass. The car was registered in Blackburn's name. As Blackburn was standing by the car, I asked him if he would mind my looking in his car. As I started walking back toward the trunk of the car, Blackburn said, `Not a bit in the world.'

I couldn't get the trunk lid opened and Blackburn opened it for me. After I searched the trunk, I asked Blackburn if he minded my searching inside the car and he said, `Not a bit.' I walked to the driver's side and found a large amount of coins lying on the floor right under the driver's seat. I found two pistols up under the seat on the driver's side.

Officer Poston was standing on the other side of the car and I told him to look up under the front seat. He pulled out two more guns. There was one .25 automatic Spanish pistol, one .22 caliber made in Italy, one .32 caliber Rossi and one .22 caliber Rossi—four guns totaled."

Officer G. A. Poston testified:

"Blackburn said `Yes, go ahead' when Barbee asked him to search the car. Officer Barbee then searched the front of the car. * * *

* * * * * *

* * * Officer Barbee saw money lying in the floorboard of the car on the driver's side. He asked him if he could search the car and Blackburn gave him permission to search. Officer Barbee got the money out of the floorboard of the car and as he did he saw a pistol under the front driver's seat, and he took the pistol out from under the seat and placed Mr. Blackburn under arrest for carrying a concealed weapon."

The trial judge, after holding a voir dire, found and concluded that:

"(O)n the morning of November 8, 1968, the defendant, Richard Lee Blackburn, was operating a 1955 or 1956 Chevrolet, going north on highway 150, and had as a passenger in his vehicle and seated in the right front seat the defendant Harold Dean Holland; that the vehicle was stopped by Officer Barbee, a member of the Cleveland County Sheriff's Department; that at the time and place the vehicle was stopped, the defendant, Blackburn, told Officer Barbee after a request being made that he could search the Blackburn vehicle if he chose to do so; that prior to the time this statement was made, the defendant, Blackburn, had not been threatened in any manner, or intimidated or coerced in any manner, and that the consent was understandingly, voluntarily, freely, and willingly given; that pursuant to the permission given by the defendant, Richard Lee Blackburn, a search of the vehicle was made, at which time certain pots, pans, coins, guns, and gun cases were found; that both the defendant, Blackburn, and the defendant, Holland, were placed under arrest for carrying a concealed weapon; that after the arrest for the carrying of a concealed weapon, Officer Barbee did search the persons of the defendants, Blackburn and Holland, finding upon their persons certain coins and .22 cartridges; that at the time the vehicle was stopped and without the necessity of permission to search, certain pots, pans, and other items were visible in the vehicle; that the defendant, Blackburn, owned the vehicle, or had the vehicle under his control; that the defendant, Holland, was in his presence at all times; that the defendant, Blackburn, had a legal right to permit the search of the vehicle; that neither the defendant, Blackburn, nor the defendant, Holland, at any time objected to the search made by Officer Barbee."

The applicable rule as to the findings of the trial judge on voir dire and the necessity of a waiver of defendants' right not to be searched without a search warrant is stated in 7 Strong, N.C. Index 2d, Searches and Seizures, § 2:

"Where a person consents to a search by officers of the law, such consent dispenses with the necessity for a search warrant. However, the presumption is against the waiver of the constitutional right to be free from unreasonable searches and seizures, and the burden is upon the state to establish unequivocally that the consent was voluntarily, freely, and intelligently given, free from coercion, duress, or fraud. Upon the voir dire to determine the voluntariness of defendant's consent to a search of his premises, the weight to be given the evidence is peculiarly a determination for the trial judge, and his findings are conclusive when supported by competent evidence." (Emphasis added.) See also State v. Colson, 274 N.C. 295, 163 S.E.2d 376 (1968).

The findings of the trial judge were based on competent evidence and the conclusion of the trial judge that the defendant consented to the search are supported by the findings of fact. The evidence seized in the search was properly admitted in the trial as evidence of the crime charged.

As to the search of defendant Blackburn's person, both defendant Blackburn and defendant Holland were searched after each was arrested. Defendant Holland was searched after he was arrested for public drunkenness; defendant Blackburn was searched after he had been arrested for carrying a concealed weapon found under the front seat of the car. The applicable rule is stated in United States v. Rabinowitz, 339 U.S. 56, 70 S. Ct. 430, 94 L. Ed. 653 (1950):

"Where one had been placed in the custody of the law by valid action of officers, it was not unreasonable to search him."

It is also a rule that evidence of a different offense from the crime for which defendant was arrested and lawfully searched is competent evidence on the trial of such defendant for that different offense. Harris v. United States, 331 U.S. 145, 67 S. Ct. 1098, 91 L. Ed. 1399 (1946); State v. Grant, 248 N.C. 341, 103 S.E.2d 339 (1958); 2 Strong, N.C. Index 2d, Criminal Law, § 84.

Applying the above rules, we hold that the officers had the right to conduct the search of defendant Blackburn and that the evidence thus obtained was properly admitted in this case by the trial judge.

We have examined all other assignments of error not abandoned by these defendants on this appeal and find no prejudicial error.

No error.

MORRIS and HEDRICK, JJ., concur.