State v. Virgil , 276 N.C. 217 ( 1970 )

172 S.E.2d 28 (1970) 276 N.C. 217

STATE of North Carolina
v.
Richard VIRGIL.

No. 37.

Supreme Court of North Carolina.

January 30, 1970.

King V. Cheek, Jr., Samuel S. Mitchell, and Romallus O. Murphy, Raleigh, for defendant-appellant.

Robert Morgan, Atty. Gen., by William W. Melvin, Asst. Atty. Gen., and T. Buie Costen, Raleigh, Staff Atty., for the State.

HUSKINS, Justice.

Defendant was convicted of non-burglarious breaking and entering with intent to commit a felony. This is a felony punishable by imprisonment for not less than four months nor more than ten years. G.S. § 14-54. Defendant contends the trial court erred in imposing a sentence of nine to ten years without giving him credit for time already served. We now examine the validity of that contention.

In State v. Weaver, 264 N.C. 681, 142 S.E.2d 633, at the May 1963 Session of Alamance Superior Court, defendant pled nolo contendere to a charge of felonious assault and a prison sentence of five to seven years was imposed. On 9 May 1963 defendant was committed to State's Prison to serve said sentence. On 25 September 1964, after a habeas corpus hearing in the United States District Court, the judgment was vacated and the five to seven year sentence set aside. Defendant was returned to the Alamance County Jail to await retrial in default of an appearance bond. Upon retrial at the December 1964 Session of Alamance, defendant was convicted of assault with a deadly weapon, a misdemeanor, for which he received the maximum statutory sentence of two years. G.S. § 14-33. Defendant appealed. Held: (1) Defendant's service of sentence from 9 May 1963, the date he was committed to the State's Prison system, until 25 September 1964, the date said sentence was vacated, must be considered as service on the maximum two-year sentence pronounced at the December 1964 Session; and (2) "defendant is not entitled as a matter of right to credit for the period from September 25, 1964 until the date of the judgment pronounced at December 1964 Session. During this period, while in custody in default of bond, defendant was not serving a sentence as punishment for the conduct charged in the bill of indictment." Accord Williams v. State, 269 N.C. 301, 152 S.E.2d 111; State v. Foster, 271 N.C. 727, 157 S.E.2d 542; State v. Paige, 272 N.C. 417, 158 S.E.2d 522; State v. Stafford, 274 N.C. 519, 164 S.E.2d 371; North Carolina v. Pearce, 395 U.S. 711, 89 S. Ct. 2072, 23 L. Ed. 2d 656. See Annotation, 35 A.L.R. 2d 1283.

Thus North Carolina requires that credit be given for time served under a previous sentence for the same conduct but holds that a defendant is not entitled to credit for time spent in custody while awaiting trial. Until the date of his commitment on 18 October 1965, defendant's status was that of a person under indictment awaiting trial and not that of a prisoner serving a sentence. State v. Weaver, supra. The fact that defendant was held on a capital charge without privilege of bail from the date of his arrest on 9 February 1963 until the conclusion of his third trial on 26 March 1965 when a $5,000 appearance bond was set pending appeal did not change his status to that of a prisoner serving a sentence. He was simply awaiting trial in the county jail, and time thus spent may not be credited on a subsequent prison sentence.

Recent enactments designed to require credit on a prison sentence for all time spent in custody pending appeal are not retroactive and therefore do not apply to this case. G.S. § 15-186.1 (1969 cc. 266, 888). Defendant's first assignment of error is overruled.

Defendant assigns as error the admission into evidence of a piece of chrome with blood stains on it removed from his automobile without a search warrant on 15 February 1963 (State's Exhibit 10). Defendant contends this amounted to an unreasonable search and seizure prohibited by the Fourth Amendment to the Constitution of the United States.

The automobile in question was parked "ten feet from the house and it was pulled across the sidewalk with the back of the car sitting almost on the sidewalk." No interior search of the car was undertaken at the time the chrome was removed. None was necessary. The officers merely inspected its exterior and "observed on the chrome bolting below the door what appeared to be blood." The chrome strip was thereupon removed from the exterior of the car and taken to the Identification Bureau. Expert testimony confirmed the presence of human blood on the chrome.

The Constitution prohibits only those searches and seizures which are unreasonable. Carroll v. United States, 267 U.S. 132, 45 S. Ct. 280, 69 L. Ed. 543; Elkins v. United States, 364 U.S. 206, 80 S. Ct. 1437, 4 L. Ed. 2d 1669. "Furthermore, under circumstances requiring no search, the constitutional immunity never arises. This principle is aptly stated in 47 Am.Jur., Searches and Seizures § 20, as follows: ``Where no search is required, the constitutional guaranty is not applicable. The guaranty applies only in those instances where the seizure is assisted by a necessary search. It does not prohibit a seizure without warrant where there is no need of a search, and where the contraband subject matter is fully disclosed and open to the eye and hand.'" State v. Colson, 274 N.C. 295, 163 S.E.2d 376. Accord, State v. Rogers, 275 N.C. 411, 168 S.E.2d 345; State v. Howard, 274 N.C. 186, 162 S.E.2d 495; State v. Craddock, 272 N.C. 160, 158 S.E.2d 25; State v. Kinley, 270 N.C. 296, 154 S.E.2d 95; State v. Coffey, 255 N.C. 293, 121 S.E.2d 736; State v. Giles, 254 N.C. 499, 119 S.E.2d 394.

Applying these principles to State's Exhibit 10, we hold that no search warrant was required. The blood stained strip of chrome on the exterior of defendant's car was fully disclosed and open to the naked eye. No search was required to obtain it. It was legally acquired and properly admitted into evidence.

Defendant complains that the officers searched his room and the interior of his automobile on 9 February 1963 without a search warrant and without warning him of his constitutional rights. It suffices to say in that connection, however, that defendant was present and consenting. The record shows that the door to his room was open; that the officers requested permission to search it, "and Virgil said that we could, to go ahead and help ourselves." With respect to the car, he not only permitted the officers to search it but he himself unlocked the car door and the trunk so they could do so. "An individual may waive any provision of the Constitution intended for his benefit, including the immunity from unreasonable searches and seizures; and where such immunity has been waived and consent given to a search * * *, an individual cannot thereafter complain that his constitutional rights have been violated." State v. Colson, supra.

Defendant's further contention that he should have been advised of his constitutional rights (not itemized or otherwise described) before he was asked for consent to search his room and car has not heretofore been considered by this Court. Other jurisdictions, however, have had occasion to deal with the subject.

In Washington v. Lyons, 76 Wash.Dec. 2d 502, 458 P.2d 30, the Supreme Court of Washington, in passing on a similar contention, said: "No cases are cited nor have we found any that require officers investigating a crime to preface a request to search premises with a recital to the owner or occupants of their constitutional rights * * *. The courts which have had occasion to deal with this issue have with complete unanimity decided it adversely to the appellant's contention."

Warnings required by Miranda are inapplicable to searches and seizures, and a search by consent is valid despite failure to give such warnings prior to obtaining consent. It was so held in State v. Oldham, 92 Idaho 124, 438 P.2d 275; People v. Trent, 85 Ul.App.2d 157, 228 N.E.2d 535; State v. McCarty, 199 Kan. 116, 427 P.2d 616; Lamot v. State, 2 Md.App. 378, 234 A.2d 615; State v. Forney, 182 Neb. 802, 157 N.W.2d 403, cert. den. 393 U.S. 1044, 89 S. Ct. 640, 21 L. Ed. 2d 593. We adhere to that view. Furthermore, appellant has cited no decision, nor have we found any, holding that officers investigating a crime are required by the Federal Constitution to preface a request to search premises with advice to the occupant that he does not have to consent to a search, that he has a right to insist on a search warrant, and that the fruits of the search may be used as evidence against him.

In State v. McCarty, supra, the Supreme Court of Kansas said:

"Miranda deals only with the compulsory self-incrimination barred by the Fifth Amendment, not with the unreasonable search and seizure proscribed by the Fourth Amendment. There is an obvious distinction between the purposes to be served by these two historic sections of the Bill of Rights. The Fifth Amendment prohibits the odious practice of compelling a man to convict himself; the Fourth guards the sanctity of his home and possessions as those terms have been judicially interpreted. An indispensable element of compulsory selfincrimination is some degree of compulsion. The essential component of an unreasonable search and seizure is some sort of unreasonableness.

"No responsible court has yet said, to our knowledge, that before a valid voluntary consent to a search can be given, the person consenting must first be warned that whatever is discovered through the search may be used as evidence against him. We decline to be the first judicial body to espouse so dubious a theory."

The quoted language is appropriate here. We also decline the distinction. Defendant was not in custody at the time, and there was nothing in the circumstances to suggest that his consent to the search was coerced or otherwise involuntary. Defendant's second assignment is overruled.

Finally, defendant contends the learned trial judge committed prejudicial error in the charge by (1) giving undue emphasis to "negative" testimony, (2) deploying evidence favorable to defendant in such manner as to destroy its value, and (3) failing to charge clearly that the State is required to prove beyond a reasonable doubt every necessary ingredient of the crime.

An extended discussion of the distinctions between positive and negative evidence is not required and could serve no useful purpose here. In Murray v. Wyatt, 245 N.C. 123, 95 S.E.2d 541 (1956), defendants insisted that the trial court, even in the absence of special request, should have instructed the jury concerning the probative value, weight and effect of "negative testimony." Bobbitt, J., now C. J., writing for the Court, said: "In some cases, where defendant's motion for judgment of nonsuit turns on the sufficiency of certain negative evidence to take the case to the jury, the court must say as a matter of law whether such negative evidence has any probative value. Johnson & Sons, Inc. v. Southern R. Co., 214 N.C. 484, 199 S.E. 704. But when the evidence, apart from such negative evidence, is sufficient to take the case to the jury, the rule is that the trial court may not comment on the weight of evidence, negative or otherwise." Accord, Carruthers v. Atlantic & G. R. Co., 218 N.C. 49, 9 S.E.2d 498; Rosser v. Bynum, 168 N.C. 340, 84 S.E. 393. In a charge which fully and fairly presented the contentions of both parties, Judge Carr wisely and correctly left to the jury the credibility, weight and probative value of all the evidence.

Defendant further assigns as unfair and prejudicial the court's statement of the State's contentions. An examination of the record, however, discloses evidence from which inferences related by the court as a contention of the State could legitimately, fairly and logically be drawn by the jury. A statement of a valid contention based on competent evidence is not error. State v. Ford, 266 N.C. 743, 147 S.E.2d 198. Furthermore, it is the general rule that objections to the charge in reviewing the evidence and stating the contentions of the parties must be made before the jury retires so as to afford the trial judge an opportunity for correction; otherwise they are deemed to have been waived and will not be considered on appeal. State v. Goines, 273 N.C. 509, 160 S.E.2d 469; State v. Butler, 269 N.C. 733, 153 S.E.2d 477; State v. Case, 253 N.C. 130, 116 S.E.2d 429; State v. Rhodes, 252 N.C. 438, 113 S.E.2d 917; State v. Holder, 252 N.C. 121, 113 S.E.2d 15; State v. Shumaker, 251 N.C. 678, 111 S.E.2d 878; State v. Grundler, 251 N.C. 177, 111 S.E.2d 1; State v. Moore, 247 N.C. 368, 101 S.E.2d 26; State v. Saunders, 245 N.C. 338, 95 S.E.2d 876.

Defendant's exception to the mandate contained in the charge is without merit. It requires the State to prove beyond a reasonable doubt every essential ingredient of the offense and instructs the jurors to acquit defendant if the State has failed to so satisfy them. "This fully complies with the requirements of G.S. § 1-180.

Evidence of defendant's guilt is plenary and persuasive. In the trial below we find

No error.

BOBBITT, Chief Justice (concurring in part and dissenting in part).

I concur in that portion of the decision which upholds the trial, verdict and judgment. The judgment upheld, which was pronounced at March 1965 Session of Wake Superior Court, imposed a prison sentence of nine to ten years. Defendant, charged with the capital felony of burglary in the first degree, was confined in Wake County Jail, awaiting trial or retrial, from his arrest on February 9, 1963, until his (third) trial at said March 1965 Session, at which time the charge was reduced to non-burglarious breaking and entering. In my opinion, defendant is entitled to credit for this period when he was confined, without privilege of bond, on the capital charge. I dissent from that portion of the decision which adjudges that defendant is not entitled to such credit.

SHARP, J., joins in this opinion.