State v. Miller , 282 N.C. 633 ( 1973 )

194 S.E.2d 353 (1973) 282 N.C. 633

STATE of North Carolina
v.
Howard Mack MILLER.

No. 44.

Supreme Court of North Carolina.

February 14, 1973.

Robert Morgan, Atty. Gen., by Walter E. Ricks, III, Associate Atty. Gen., for the State of North Carolina, appellant.

James E. Walker and Arnold M. Stone, Charlotte, for defendant appellee.

John M. Rich, Raleigh, for North Carolina Ass'n of Law Enforcement Legal Advisors, amicus curiae.

HUSKINS, Justice:

Defendant contended in the trial court and in the Court of Appeals, and contends here, that the search warrant was invalid and the entry by the officers unlawful. The Court of Appeals so held and we concur.

The Fourth Amendment to the Federal Constitution prohibits the issuance of a search warrant except upon a finding of probable cause for the search. G.S. § 15-25(a) is to like effect. There is no variance between Fourth Amendment requirements and the law of this State in regard to search warrants. State v. Vestal, 278 N.C. 561, 180 S.E.2d 755 (1971).

G.S. § 15-26 requires a search warrant to describe with reasonable certainty the premises to be searched and the contraband for which the search is to be made; and an affidavit signed under oath or affirmation by the affiant indicating the basis for the finding of probable cause must be a part of or attached to the warrant.

The search warrant in this case was wholly invalid because it was issued without any showing of the existence of probable cause. It authorized the officers to search for and seize "intoxicating liquor possessed for the purpose of sale," plus glasses, bottles and other equipment used in the business of selling liquor, while the affidavit upon which the warrant was issued alleged that the occupants had "cards, money, dice and gambling paraphernalia" on the premises to be searched. The affidavit was amply sufficient to support a finding of probable cause for issuance of a warrant authorizing a search of the premises for gambling equipment, but there was absolutely no fact or circumstance presented to the magistrate upon which he could have found probable cause to issue a warrant to search for illicit liquor. "Under the Fourth Amendment, an officer may not properly issue a warrant to search. . . unless he can find probable cause therefor from facts or circumstances presented to him under oath or affirmation." (Emphasis added.) Nathanson v. United States, 290 U.S. 41, 54 S. Ct. 11, 78 L. Ed. 159 (1933). Here, the officer who typed the warrant made the first mistake and the magistrate, serving merely as a rubber stamp for the police, compounded the error by issuing the warrant without reading it. As a result the search warrant was issued when no facts or circumstances were presented to justify it. A search warrant issued under such circumstances is a nullity.

Thus the officers, armed with no authority to enter and search under circumstances requiring a search warrant, made an unlawful entry.

Defendant moved to suppress any evidence which the officers obtained after entering the building, including testimony by the officers concerning what they saw and heard in the room at the time Officer McGraw was shot. Defendant contends that since the search warrant is invalid and the entry by the officers unlawful, all evidence obtained by such an illegal search is inadmissible by Fourth Amendment standards and is expressly excluded in any trial by G.S. § 15-27(a).

The Court of Appeals held that defendant's motion to suppress the testimony of the officers should have been allowed. In this there was error.

The admissibility of evidence under common law rules was not affected by the means, lawful or otherwise, used in obtaining it, Olmstead v. United States, 277 U.S. 438, 48 S. Ct. 564, 72 L. Ed. 944 (1928); State v. McGee, 214 N.C. 184, 198 S.E. 616 (1938); and if the evidence was otherwise relevant and competent it was generally admissible unless its admission violated the constitutional rights of the person against whom it was offered or contravened the statutory law of the jurisdiction. 29 Am. Jur.2d, Evidence, § 408. In abrogation of the common law rule, the Supreme Court of the United States fashioned an exclusionary rule applicable in the federal courts whereby evidence obtained in violation of the constitutional rights of the accused was not admissible. Weeks v. United States, 232 U.S. 383, 34 S. Ct. 341, 58 L. Ed. 652 (1914). Later, in Mapp v. Ohio, 367 U.S. 643, 81 S. Ct. 1684, 6 L. Ed. 2d 1081 (1961), it was held that "all evidence obtained by searches and seizures in violation of the Constitution is, by that same authority, inadmissible in a state court." Since Mapp, evidence unconstitutionally obtained is excluded in state courts as an essential of due process under the Fourteenth Amendment. State v. Colson, 274 N.C. 295, 163 S.E.2d 376 (1968).

Our statute is to like effect. G.S. § 15-27(a) provides: "No evidence obtained or facts discovered by means of an illegal search shall be competent as evidence in any trial." (Emphasis added.) Relying on the emphasized words the Court of Appeals erroneously extended this statute beyond its intended scope by excluding, in this murder trial, any and all evidence obtained by the officers after entering the building, including their testimony concerning what they saw and heard at the time Officer McGraw was shot.

"In the interpretation of statutes, the legislative will is the all important or controlling factor. Indeed, it is frequently stated in effect that the intention of the legislature constitutes the law. The legislative intent has been designated the vital part, heart, soul, and essence of the law, and the guiding star in the interpretation thereof." 50 Am.Jur., Statutes, § 223. In seeking the legislative intent a construction which will operate to defeat or impair the object of the statute should be avoided if the court can reasonably do so without violence to the legislative language. Lockwood v. McCaskill, 261 N.C. 754, 136 S.E.2d 67 (1964). And, where possible, ". . . the language of a statute will be interpreted so as to avoid an absurd consequence." Hobbs v. Moore County, 267 N.C. 665, 149 S.E.2d 1 (1966). Furthermore, "[i]f a strict literal interpretation of a statute contravenes the manifest purpose of the legislature, the reason and purpose of the law should control and the strict letter thereof should be disregarded." State v. Spencer, 276 N.C. 535, 173 S.E.2d 765 (1970). Accord, Duncan v. Carpenter, 233 N.C. 422, 64 S.E.2d 410 (1951); State v. Barksdale, 181 N.C. 621, 107 S.E. 505 (1921).

When subjected to these rules of statutory construction, we hold that G.S. § 15-27(a) was not designed to exclude evidence of crimes directed against the person of trespassing officers. Compare People v. Pearson, 150 Cal. App. 2d 811, 311 P.2d 142 (1957). Application of the exclusionary rule in such fashion would in effect give the victims of illegal searches a license to assault and murder the officers involved— a result manifestly unacceptable and not intended by the Legislature. Although wrongfully on the premises, officers do not thereby become unprotected legal targets. Even trespassers may not be shot with impunity. Such a strict literal interpretation of the language of G.S. § 15-27(a) would contravene the manifest purpose of the Legislature and lead to an absurd result.

Admittedly, the constitutional exclusionary rule has been broadly formulated. In Mapp v. Ohio, supra, the Court said: "We hold that all evidence obtained by searches and seizures in violation of the Constitution is . . . inadmissible in a state court." (Emphasis added.) Again, in Alderman v. United States, 394 U.S. 165, 89 S. Ct. 961, 22 L. Ed. 2d 176 (1969), it is said: "The exclusionary rule . . . excludes from a criminal trial any evidence seized from the defendant in violation of his Fourth Amendment rights." (Emphasis added.) Even so, the meaning of these expressions must be discerned in light of the facts in each case. When so considered, it is apparent that the rule does not require the exclusion of evidence obtained after an illegal entry when that evidence is offered to prove the murder of one of the officers making the entry.

Therefore, the gun and all other evidence seized, if relevant and material to the murder charge, was admissible; and it was competent for all eyewitnesses, both for the State and the defendant, whether lawfully or unlawfully present, to testify regarding every relevant fact and circumstance seen or heard bearing upon the shooting of Officer McGraw and upon defendant's plea of self-defense. Defendant's motion to suppress such evidence was properly overruled. The Court of Appeals erred in holding to the contrary.

The Court of Appeals held, and properly so, that defendant had a right to cross-examine the officers with respect to beatings and injuries allegedly inflicted by them upon defendant and other occupants of the gambling quarters following the shooting. The law is well established that in both civil and criminal cases a party may cross-examine an opposing witness concerning any fact having a logical tendency to show that the witness is biased against him or has an interest adverse to him in the outcome of the litigation. "Cross-examination of an opposing witness for the purpose of showing his bias or interest is a substantial legal right, which the trial judge can neither abrogate nor abridge to the prejudice of the cross-examining party." State v. Hart, 239 N.C. 709, 80 S.E.2d 901 (1954). Accord, State v. Bailey, 278 N.C. 80, 178 S.E.2d 809 (1971); State v. Wilson, 269 N.C. 297, 152 S.E.2d 223 (1967).

The Court of Appeals held, and properly so, that defendant should have been permitted to testify with reference to what others had told him concerning recent robberies of gambling games in the Charlotte area. Hearsay is defined, and the hearsay rule has been stated, as follows: "``Evidence, oral or written, is called "hearsay" when 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.'" King v. Bynum, 137 N.C. 491, 49 S.E. 955 (1905); Chandler v. Jones, 173 N.C. 427, 92 S.E. 145 (1917). "Expressed differently, whenever the assertion of any person, other than that of the witness himself in his present testimony, is offered to prove the truth of the matter asserted, the evidence so offered is hearsay. If offered for any other purpose, it is not hearsay." Stansbury, N.C. Evidence, § 138 (2d ed. 1963).

Here, defendant offered evidence of what others had told him concerning robberies of gambling games to prove the reasonableness of his apprehension that a robbery was in progress and that he was about to suffer death or serious bodily injury. It was competent for that purpose. This evidence was not offered to prove that other robberies had in fact occurred, thus proving the truth of the matters asserted. Accordingly, the evidence was not hearsay at all and should have been admitted since it was relevant to defendant's state of mind in relation to his plea of self-defense. Compare State v. Black, 230 N.C. 448, 53 S.E.2d 443 (1949); Stansbury, N.C. Evidence, § 141 (2d ed. 1963).

Defendant made other assignments of error which we do not reach since they were not discussed by the Court of Appeals. The Supreme Court reviews the decision of the Court of Appeals for errors of law allegedly committed by it and properly brought forward for review. Hence, assignments not passed upon by the Court of Appeals are not before us. "When this Court, after a decision of a cause by the Court of Appeals and pursuant to the petition of a party thereto as authorized by G. S. 7A-31, grants certiorari to review the decision of the Court of Appeals, only the decision of that Court is before us for review. We inquire into proceedings in the trial court solely to determine the correctness of the decision of the Court of Appeals. Our inquiry is restricted to rulings of the Court of Appeals which are assigned as error in the petition for certiorari and which are preserved by arguments or the citation of authorities with reference thereto in the brief filed by the petitioner in this Court, except in those instances in which we elect to exercise our general power of supervision of courts inferior to this Court." State v. Williams, 274 N.C. 328, 163 S.E.2d 353 (1968); State v. Parrish, 275 N.C. 69, 165 S.E.2d 230 (1969).

For the errors noted, the decision of the Court of Appeals awarding defendant a new trial is modified to conform to this opinion, and, as thus modified, affirmed.

Modified and affirmed.