State v. Britt , 42 N.C. App. 637 ( 1979 )

257 S.E.2d 468 (1979) 42 N.C. App. 637

STATE of North Carolina
v.
Samuel H. BRITT.
STATE of North Carolina
v.
Teresa BRITT.

No. 788SC506.

Court of Appeals of North Carolina.

August 21, 1979.

Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. Elizabeth C. Bunting, Raleigh, for the State.

Braswell & Taylor by Roland C. Braswell, Goldsboro, for defendants-appellants.

PARKER, Judge.

The validity of the search having been already determined by this Court in State v. Long, 37 N.C.App. 662, 246 S.E.2d 846 (1978); cert. denied, 295 N.C. 736, 248 S.E.2d 866 (1978), defendants' assignments of error directed to that question are overruled.

Defendants' assignments of error directed to the denial of their motions for directed verdicts are also overruled. In the first place, the record on this appeal does not contain a narration of all, or even of most, of the evidence presented before the jury. Therefore, no question as to the sufficiency of the evidence to take the cases to the jury is properly presented for our review on this appeal. Moreover, the record does show that evidence was presented that heroin was found in the bedroom of defendants' home, and "[w]here such materials are found on the premises under the control of an accused, this fact, in and of itself, gives rise to an inference of knowledge and possession which may be sufficient to carry the case to the jury on a charge of unlawful possession." State v. Harvey, 281 N.C. 1, 12, 187 S.E.2d 706, 714 (1972); accord, State v. Wells, 27 N.C.App. 144, 218 S.E.2d 225 (1975); State v. Summers, 15 N.C.App. 282, 189 S.E.2d 807 (1972).

This brings us to the principal question presented by this appeal, whether the court erred in excluding the evidence sought to be elicited by defendant's counsel through cross-examination of the State's witnesses concerning the eight plastic bags of heroin found on the person of Walter Long. We find that the court erred in its rulings excluding this evidence.

The law of this State with respect to the admissibility of evidence tending to show the guilt of one other than the accused has been described by our Supreme Court as being "rather unsettled." State v. Gaines, 283 N.C. 33, 41, 194 S.E.2d 839, 845 (1973). In that case the Supreme Court found it unnecessary to discuss this area of the law, since the Court found the evidence in question in that case was properly excluded because it was "totally lacking in probative value" and was "wholly irrelevant". In our view, the admissibility of such evidence should depend upon its relevancy in the case in which it is offered — whether it logically tends to prove or disprove some material fact at issue in the particular case. State v. Couch, 35 N.C. App. 202, 241 S.E.2d 105 (1978); 1 Stansbury's N.C Evidence (Brandis Rev.) § 93; 1 Wigmore on Evidence, 3d ed., §§ 139-142. Evidence which tends to show nothing more than that someone other than the accused had an opportunity to commit the offense, without tending to show that such person actually did commit the offense and that therefore the defendant did not do so, is too remote to be relevant and should be excluded. Examples of this type of situation may be found in State v. Shinn, 238 N.C. 535, 78 S.E.2d 388 (1953) and State v. Smith, 211 N.C. 93, 189 S.E. 175 (1937). Similarly, evidence that someone other than the accused may have had a motive to commit the offense, without more, is not sufficiently relevant to be admissible. Examples of this are State v. Jenkins, 292 N.C. 179, 232 S.E.2d 648 (1977); State v. Couch, supra; State v. Jones, 32 N.C.App. 408, 232 S.E.2d 475 (1977).

Applying the test of relevancy to the excluded evidence in the present case, we find it relevant as tending to show, not just by way of conjecture but as a logical inference which the jury might draw, that Long, rather than either of the defendants, had possession of the one packet of heroin found in the bedroom. Long was the only person seen coming from the bedroom or known by the officers to have been there shortly before the search was made. Evidence that he had secreted on his person eight exactly similar packets gives rise to the logical inference that he also had had actual possession of the single packet left in the bedroom. No evidence showed that the defendants had had actual possession of the heroin, the State depending entirely on the theory of constructive possession to show their guilt. Certainly, evidence which logically tends to show that someone other than the defendants had actually possessed the heroin while on their premises is relevant in the jury's determination of whether the defendants had such knowledge of the presence of the heroin in their home and such power and intent to control its disposition and use as to make them guilty of possessing it.

That Judge Fountain had ruled the evidence of the heroin found on Long's person was incompetent as against him, would not warrant its suppression when the defendants sought to use it in their defense. This would be true even had Judge Fountain's ruling been correct. The purpose of the exclusionary rule is to deter officers from making unlawful searches, a purpose which can hardly be achieved when a defendant seeks to use the evidence as relevant to his defense. For the error in excluding the evidence as to the eight packets of heroin found on Long, the defendants are granted a

New trial.

HEDRICK and ROBERT M. MARTIN, JJ., concur.