State v. White , 311 N.C. 238 ( 1984 )

316 S.E.2d 42 (1984)

STATE of North Carolina
v.
Alexander WHITE.

No. 154A83.

Supreme Court of North Carolina.

June 5, 1984.

Rufus L. Edmisten, Atty. Gen. by Harry H. Harkins, Jr., Asst. Atty. Gen., Raleigh, for the State.

James L. Nelson and Mary E. Lee, Burgaw, for defendant-appellant.

COPELAND, Justice.

Defendant first contends that the trial court's erroneous denial of his motions for a change of venue or in the alternative a special jury venire, and for an individual voir dire of the jury prejudiced his right to a fair trial by an impartial jury.

Defendant filed a pretrial motion for a change of venue based upon the grounds of "undue, prejudicial and inflammatory publicity concerning the defendant and matters inadmissible at trial, the widespread reputation of the prosecuting witness in the small community of Burgaw and the general occurrence of conversation among the population about the alleged crimes." Defendant's motion for a special jury venire was made orally. At the evidentiary hearing, defendant elicited testimony from thirteen witnesses.

Recently, this Court has considered cases raising the issue of when pretrial publicity requires a change of venue or special venire. State v. Corbett, 309 N.C. 382, 307 S.E.2d 139 (1983); State v. Jerrett, 309 N.C. 239, 307 S.E.2d 339 (1983); State v. Richardson, 308 N.C. 470, 302 S.E.2d 799 (1983). Decisions on a motion for a change of venue, or for a special venire, remain within the sound discretion of the trial judge and will not be disturbed unless a gross abuse of discretion is shown. Corbett, 309 N.C. at 396, 307 S.E.2d at 148. This Court has consistently enunciated the well-established rule that the defendant bears the burden of proving that pretrial publicity precludes him from receiving a fair and impartial trial. Id.; Jerrett, 309 N.C. at 251, 307 S.E.2d at 347. The defendant "must establish that prospective jurors in his case were reasonably likely to base their verdict upon conclusions induced by outside influences rather than upon conclusions induced solely by evidence and arguments presented in court." (Citations omitted.) Corbett 309 N.C. at 396, 307 S.E.2d at 148.

At the pretrial hearing on the venue and venire motions, defendant elicited testimony which tended to support the following facts. The area in which the victim lived was a rural traditional community. She and her family were "well known" and "highly regarded." Two articles concerning the arrest of the defendant were published in the two local weekly newspapers. A great deal of conversation and concern had been generated as a result of the criminal incidents. In short, the defendant contends that not only did substantial adverse emotions and opinions exist in the community against the accused due to the "inflammatory and heinous nature of the alleged crime," but also there had been "unusual and pervasive word-of-mouth publicity about the incident."

We have carefully reviewed the transcript of the hearing on the venue and venire motions and conclude that the trial court did not abuse its discretion in denying defendant's motions. With regard to the pretrial media publicity, we note that the two local newspapers each printed one story about the crime, both appearing five months prior to trial. Defendant does not contend in his brief that these articles were inflammatory or not factual, and since we do not have those articles before us, we must presume them to be non-prejudicial publicity. Further, the State concedes that there existed pervasive word-of-mouth publicity in Pender County regarding this crime. However, in the instant case, defendant called thirteen witnesses, none of whom testified that the defendant could not get a fair trial in Pender County. Mere exposure to publicity concerning a case, be it through mass media or general conversation, does not of itself render a prospective juror biased or establish that he has preconceived opinions about the case. See: Irvin v. Dowd, 366 U.S. 717, 81 S. Ct. 1639, 6 L. Ed. 2d 751 (1961). We believe the evidence adduced at the pretrial hearing did not support defendant's contention that he could not receive a fair trial.

Defendant also challenges the trial court's refusal to allow an individual voir dire of prospective jurors in light of the testimony of the witnesses at the venue hearing. Based upon our holding above that the venue hearing evidence failed to support the claim of identifiable prejudice, we conclude that the trial court did not abuse its discretion in denying an individual voir dire of the prospective jurors. Furthermore, the record of the voir dire proceedings reveals that of the 42 prospective jurors examined, only nine knew or knew of Mrs. McKoy or her family. No person who knew the victim or her family was seated on the jury. Three jurors had heard nothing about the case. Five other jurors had only read an article in the paper. One juror had discussed the article with his wife, while another juror was vaguely familiar with the case through the newspaper article and her relatives who knew the victim. Two jurors were not questioned at all regarding their exposure to publicity about the case. But the most significant factor is that each juror selected to hear defendant's case affirmatively stated that they had no preconceived opinions about the case and could give defendant a fair trial based only on evidence presented in court. In sum, defendant has failed to show how he was actually prejudiced by the jury selection process. Defendant's first assignment of error is overruled.

In defendant's next assignment of error, he argues that the trial court erred in denying his motion to suppress or limit the victim's in-court identification testimony. This motion was premised upon the fact that Mrs. McKoy had previously failed to make a positive identification of the defendant during either a photographic or physical lineup.

Judge Peel conducted a thorough voir dire hearing and made detailed findings of facts. In accordance with the standard to determine reliability of an identification, as enunciated in State v. Clark, 301 N.C. 176, 270 S.E.2d 425 (1980), Judge Peel found that the victim had ample time, lighting and vision to carefully observe her assailant. Mrs. McKoy unequivocally testified that her identification was based on her observation of the perpetrator on the morning of 7 June 1982. The trial court concluded, based on its findings of fact, that Mrs. McKoy's in-court identification was of independent origin and was properly admissible. When, as in the case sub judice, the trial court's findings are supported by competent evidence, they are conclusive on appeal. State v. Tann, 302 N.C. 89, 273 S.E.2d 720 (1981). We find no error in the introduction of the identification evidence.

Defendant finally asserts that the evidence seized from his person and from the vehicle which he was driving should have been excluded at trial, because the searches violated his Fourth Amendment rights. After a duly conducted voir dire hearing at trial, Judge Peel concluded that the searches were lawful and reasonable, and that the items obtained as a result of the searches were properly admissible into evidence. We agree with the trial court's conclusions.

First, defendant claims that he was illegally and unconstitutionally stopped, and subsequently arrested for not having his operator's license, without "sufficient sustaining probable cause on the officer's part to believe he had committed a crime." Based on the evidence presented the trial court found in pertinent part, certain facts which led to defendant's arrest. On the day in question, a Wallace Police Department Sergeant, with 12 years of experience, was on routine patrol. Upon observing the defendant parking in a no parking area, the sergeant drove past defendant and made eye contact with him. The officer was of the opinion that the defendant "appeared to be highly intoxicated according to the way he looked," thereupon, he drove off to a position where he could observe defendant and possibly follow him to determine whether he was in fact intoxicated. Defendant drove away followed by the officer. When defendant failed to respond to the blue light, the sergeant used his siren to stop him. Judge Peel concluded that, at this point, the officer "had an articulable and reasonable suspicion that the defendant was violating the law in his presence." This conclusion complies with the standard mandated by the United States Supreme Court in Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). We agree that the stop and detention did not violate any of the defendant's constitutional rights, and that a fortiori, the search incident to the arrest was valid.

Defendant also challenges the search of the vehicle by law enforcement officers without a warrant. The record discloses that the vehicle in question was in fact stolen. Defendant presented no evidence showing any legitimate property or possessory interest in the automobile. The law is well settled in this jurisdiction that one has no standing to "object to a search or seizure of the premises or property of another." State v. Greenwood, 301 N.C. 705, 707, 273 S.E.2d 438, 440 (1980); State v. Jones, 299 N.C. 298, 261 S.E.2d 860 (1980); State v. Taylor, 298 N.C. 405, 259 S.E.2d 502 (1979). This principle follows the Supreme Court's interpretations of the Fourth Amendment set forth in Rakas v. Illinois, 439 U.S. 128, 99 S. Ct. 421, 58 L. Ed. 2d 387 (1978).

We believe that the defendant had no legitimate expectations of privacy in the stolen vehicle; therefore, this assignment of error is overruled.

This defendant received a trial free from prejudicial error.

NO ERROR.