State v. Gordon , 287 N.C. 118 ( 1975 )

213 S.E.2d 708 (1975) 287 N.C. 118

STATE of North Carolina
v.
Richard GORDON.

No. 39.

Supreme Court of North Carolina.

May 6, 1975.

Atty. Gen. James H. Carson, Jr. and Asst. Attys. Gen. Lester V. Chalmers, Jr. and Sidney S. Eagles, Jr., Raleigh, for the State.

Lacy W. Blue, Charlotte, for defendant appellant.

MOORE, Justice.

Before pleading to the bills of indictment, defendant moved to dismiss for failure of the State to afford him a speedy trial. Defendant assigns as error the denial of this motion.

In support of his motion, defendant introduced death certificates of two possible witnesses, Isaac Harris and Mattie Howze. Harris was shot on 15 January 1974, while robbing a store, and died on 19 January 1974. Howze was doused with gasoline and set on fire on 29 December 1973, and died on 30 December 1973. Defendant contends that had his cases been tried earlier, these two persons might have been helpful in the presentation of his defense. He offered no evidence as to what either of these persons would have testified had they been called as witnesses.

In opposition to defendant's motion to dismiss, the State offered the testimony of Thomas F. Moore, Jr., the District Attorney for the Twenty-Sixth Judicial District, who testified in part that from 21 August 1973 to 20 May 1974 approximately 70 weeks of criminal court were held in Mecklenburg County, with an average of about 100 persons awaiting trial at all times; that during this period approximately 1200 cases were disposed of, including between 150 to 200 requiring jury trials; that it takes about four to six months to bring a jail case to trial in the county because of the condition of the docket; that it took two to three months longer to bring this case to trial because of pretrial publicity adverse to the defendants; that the delay was necessary in order to secure a fair trial for the defendant; that there were other criminal cases that did not receive the publicity this case received; that additional time was needed to prepare this case because of the technical legal aspects involved; that the availability of Judge Ervin to try the case, because of the legal technicalities involved, was an important factor involved in setting the case for trial.

The following facts were stipulated by the two Assistant District Attorneys representing the State and counsel for defendant:

"1. That the defendant, Richard Gordon, was arrested on this charge or these charges on August 21, 1973, and has been held in custody without privilege of bond since that date.

"2. That he was given a preliminary hearing in the Mecklenburg County District Court on September 26, 1973, and was bound over to Superior Court for trial on these charges at that time; that no bond was permitted by the District Court.

"3. That on November 5, 1973, the Grand Jury of Mecklenburg County returned a true bill against the defendant, Richard Gordon, in each case.

"4. That the defendant made a motion for speedy trial on April 11, 1974, and that the case was called for trial on Monday, May 20, 1974."

Based on the stipulation, the death certificates, and the testimony of District Attorney Moore, the trial judge made detailed findings of fact and then concluded as a matter of law:

"1. That the defendant has not been deprived of a speedy trial in the constitutional sense and that the defendant is not entitled to have this case dismissed, nor is he entitled to any other relief by virtue of his contention that he has been denied a speedy trial.

"2. That the evidence fails to disclose that the State has acted wilfully or that the State has been guilty of any neglect in its handling of the matter, the Court finding that the case has been called for trial on the first occasion on which it has been docketed and that there is no showing that the State handled this case in any fashion other than in the normal fashion in which serious criminal cases are handled and disposed of in Mecklenburg County Superior Court; that the defendant has failed to show that the fact that the case has not been called for trial prior to May 20, 1974, has in any wise prejudiced the defendant or that he has in any wise been harmed by virtue of the fact that the case was not called for trial prior to this date."

The right to a speedy trial has been considered by this Court in many cases, including State v. Frank, 284 N.C. 137, 200 S.E.2d 169 (1973); State v. Harrell, 281 N.C. 111, 187 S.E.2d 789 (1972); State v. Ball, 277 N.C. 714, 178 S.E.2d 377 (1971); State v. Johnson, 275 N.C. 264, 167 S.E.2d 274 (1969); State v. Cavallaro, 274 N.C. 480, 164 S.E.2d 168 (1968); State v. Hollars, 266 N.C. 45, 145 S.E.2d 309 (1965).

The Supreme Court of the United States has also considered the constitutional guaranty of a speedy trial in various cases, including United States v. Marion, 404 U.S. 307, 92 S. Ct. 455, 30 L. Ed. 2d 468 (1971); Dickey v. Florida, 398 U.S. 30, 90 S. Ct. 1564, 26 L. Ed. 2d 26 (1970); Smith v. Hooey, 393 U.S. 374, 89 S. Ct. 575, 21 L. Ed. 2d 607 (1969); Klopfer v. North Carolina, 386 U.S. 213, 87 S. Ct. 988, 18 L. Ed. 2d 1 (1967); United States v. Ewell, 383 U.S. 116, 86 S. Ct. 773, 15 L. Ed. 2d 627 (1966); Pollard v. United States, 352 U.S. 354, 77 S. Ct. 481, 1 L. Ed. 2d 393 (1957); Beavers v. Haubert, 198 U.S. 77, 25 S. Ct. 573, 49 L. Ed. 950 (1905).

The length of delay is never per se determinative, although a delay of nine months, as in the present case, could contravene the defendant's right to a speedy trial under some circumstances. State v. Brown, 282 N.C. 117, 191 S.E.2d 659 (1972).

The constitutional right to a speedy trial prohibits arbitrary and oppressive delays by the prosecution. State v. Brown supra; State v. Spencer, 281 N.C. 121, 187 S.E.2d 779 (1972). ". . . But this right is necessarily relative and is consistent with delays under certain circumstances. [Citation omitted.]" State v. Spencer, supra.

As we said in State v. Harrell, supra:

"The word speedy cannot be defined in specific terms of days, months or years, so the question whether a defendant has been denied a speedy trial must be answered in light of the facts in a particular case. Four factors should be considered in determining the reasonableness of a delay: the length of the delay, the reason for the delay, prejudice to the defendant, and waiver by the defendant. [Citations omitted.]"

The congestion of criminal court dockets has been consistently recognized as a valid justification for delay. Crowded dockets, lack of judges or lawyers, and other factors, make some delays inevitable. State v. Brown supra; State v. George, 271 N.C. 438, 156 S.E.2d 845 (1967).

A delay from 21 August 1973, the date on which defendant was arrested, until 20 May 1974, the date of the trial, in view of the congested docket in Mecklenburg County, could hardly be considered "willful or oppressive." Pollard v. United States, supra. The burden is clearly on the accused to show that the delay was due to the neglect or willfulness of the prosecution. State v. Brown, supra; State v. Ball, supra; State v. Hatcher, 277 N.C. 380, 177 S.E.2d 892 (1970); State v. Hollars, supra. Defendant has failed to carry that burden.

Defendant here apparently acquiesced in the delay until 11 April 1974—the date on which he first asked for a speedy trial. ". . . A defendant who has himself caused the delay, or acquiesced in it, will not be allowed to convert the guarantee, designed for his protection, into a vehicle in which to escape justice. [Citations omitted.]" State v. Johnson, supra.

The record is devoid of any evidence of prejudice although defendant did state that he had expected to call the two deceased persons as possible witnesses. He did not attempt to show what he expected to prove by them had they been available. Nothing in the record suggests that his ability to present his defense was in any way impaired by the delay or by the death of those persons.

Defendant's contention that he has been denied his right to a speedy trial is without merit. This assignment is overruled.

Prior to 17 August 1973, defendant sometimes left a rifle or pistol in Apartment 3, occupied by the two sisters, Ellen Gilmore and Brenda Barber, adjoining Apartment 2 in which defendant lived. On 18 August a shotgun, a pistol and a "long gun" in a zipper bag were seen by Ellen Gilmore in the closet of Apartment 3. On 21 August police officers, armed with a search warrant, went to Apartment 3, located and seized these guns. At trial they were identified by Ellen Gilmore as the ones or similar to the ones put in her closet by defendant. The State offered these guns in evidence. Defendant's counsel objected and moved to suppress for the reason that they had been seized in the course of an unlawful and unconstitutional search. This motion was overruled. The denial of this motion is the basis for defendant's second assignment of error.

Defendant contends that although the officers had a search warrant it was not introduced in evidence, and also, contrary to the State's contention, that he does have standing to challenge the introduction into evidence of the 30-30 rifle and other weapons seized in Apartment 3. ". . . The immunity to unreasonable searches and seizures is a privilege personal to those whose rights thereunder have been infringed. They alone may invoke it against illegal searches and seizures. . ." State v. Craddock, 272 N.C. 160, 158 S.E.2d 25 (1967).

As stated by Chief Justice Burger in Brown v. United States, 411 U.S. 223, 93 S. Ct. 1565, 36 L. Ed. 2d 208 (1973):

". . . [T]here is no standing to contest a search and seizure where, as here, the defendants: (a) were not on the premises at the time of the contested search and seizure; (b) alleged no proprietary or possessory interest in the premises; and (c) were not charged with an offense that includes, as an essential element of the offense charged, possession of seized evidence at the time of the contested search and seizure. . . ."

The search warrant in the present case, although not introduced in evidence at trial, was introduced on the voir dire hearing and complied with the provisions of G.S. § 15-26. See State v. Vestal, 278 N.C. 561, 180 S.E.2d 755 (1971). Regardless of the validity of the search warrant, however, defendant had no standing to contest the search and seizure in this case. He was not on the premises at the time of the contested search and seizure; he had no proprietary or possessory interest in the premises, nor had he ever claimed any; and he was not charged with an offense that includes, as an essential element of the offense charged, possession of the seized evidence at the time of the contested search and seizure. Hence, the rights of defendant were not invaded by the search of Apartment 3. This assignment is overruled.

Defendant next assigns as error the admission into evidence, over objection, of an in-custody inculpatory statement made by him to Charlotte Police Officers Gibson and Thompson after his arrest without a warrant. On defendant's objection to the introduction of the written statement, the trial court conducted an extensive voir dire hearing. Officer Gibson, Officer Travis, and the defendant testified. The court, considering this testimony and, by stipulation, the testimony of other officers who had testified prior to the voir dire hearing, made detailed findings of fact, covering nine pages in the record, and in part concluded:

"That the defendant was properly advised of his constitutional rights in accordance with Miranda v. Arizona;

"That considering the totality of the circumstances, the defendant's confession was freely, understandingly, knowingly, and voluntarily made and that it was not the result of undue influence, compulsion, duress, physical abuse, or promise of leniency, and the State is entitled to offer said confession in evidence against the defendant.

"That the defendant knowingly waived his right to counsel, both orally and in writing."

The evidence on the voir dire hearing fully supports the findings that the defendant's confession was free and voluntary. Defendant was questioned on three occasions on 21 August. An identification card was filled out between 6:00 and 7:00 a. m. At that time he was not questioned concerning the crimes. At 9:45 a. m., defendant signed a waiver and was asked questions for ten to fifteen minutes. He then denied any knowledge of the murders. Defendant made a full confession about 3:15 p. m., after being questioned for twenty-five to thirty minutes. There was ample evidence that defendant was never promised anything or threatened in any way, and that defendant completely volunteered his statement. These findings, having support in the evidence, are conclusive on appeal. State v. Thompson, 285 N.C. 181, 203 S.E.2d 781 (1974); State v. Frazier, 280 N.C. 181, 185 S.E.2d 652 (1972); State v. Hill, 276 N.C. 1,170 S.E.2d 885 (1969); State v. Vickers, 274 N.C. 311, 163 S.E.2d 481 (1968).

When the officers arrested defendant they had reasonable grounds to believe that defendant had committed the two murders and would evade arrest if not immediately taken into custody. Under these circumstances the arrest was proper, and the confession was in no wise tainted by an illegal arrest. G.S. § 15-41 (repealed by Session Laws 1973, Chapter 1286, Section 26, effective July 1,1975); State v. Dickens, 278 N.C. 537,180 S.E.2d 844 (1971); State v. Alexander, 279 N.C. 527, 184 S.E.2d 274 (1971).

Assuming, arguendo, that the arrest was illegal, this would not have made the statement ipso facto involuntary and inadmissible. As Justice Branch stated in an excellent discussion of this point in State v. Moore, 275 N.C. 141,166 S.E.2d 53 (1969):

"Both reason and weight of authority lead us to hold that every statement made by a person in custody as a result of an illegal arrest is not ipso facto involuntary and inadmissible, but the facts and circumstances surrounding such arrest and the in-custody statement should be considered in determining whether the statement is voluntary and admissible. Voluntariness remains as the test of admissibility." (Emphasis added.)

The court, after carefully reviewing all the circumstances, found that the statement in question was voluntarily made. This assignment is overruled.

Defendant objected to the introduction into evidence of two fragments of bullets, a small shot pellet, an empty 30-30 cartridge, a fired shotgun shell, a box of shotgun shells, a box of 30-30 shells, a brown bag, and a .32-caliber pistol. Defendant contends that it was error to admit these items because they were obtained by an unreasonable search and seizure.

The fragments of bullets and the shot introduced were taken from the bodies of the victims. The empty 30-30 cartridge was found at the scene of the shooting immediately after the shooting occurred. Tracks leading from the scene of the shooting led to where the empty shotgun shell was found. Both the empty 30-30 cartridge and the empty shotgun shell were identified as having been fired from the rifle and shotgun found in Apartment 3. The box of shotgun shells and the box of 30-30 cartridges were found with the shotgun and rifle. The .32-caliber pistol was found in Apartment 2 on a chair about two feet from where defendant was standing when arrested.

First, we note that, except for the .32-caliber pistol, these items were so located that defendant lacked standing to complain of any search, legal or otherwise. Brown v. United States, supra; State v. Craddock, supra. As to the .32-caliber pistol, it was seized incident to a lawful arrest and was in plain view of the arresting officer and was thus properly seized. Chimel v. California, 395 U.S. 752, 89 S. Ct. 2034, 23 L. Ed. 2d 685, reh. den. 396 U.S. 869, 90 S. Ct. 36, 24 L. Ed. 2d 124 (1969); Harris v. United States, 390 U.S. 234, 88 S. Ct. 992, 19 L. Ed. 2d 1067 (1968); Preston v. United States, 376 U.S. 364, 84 S. Ct. 881, 11 L. Ed. 2d 777 (1964); State v. Rigsbee, 285 N.C. 708, 208 S.E.2d 656 (1974); State v. Carey, 285 N.C. 509, 206 S.E.2d 222 (1974). We find no merit whatever in this contention.

At the close of the evidence defendant moved for judgment as of nonsuit. This motion was overruled and defendant assigns this as error.

"If there is any evidence tending to prove the fact of guilt or which reasonably conduces to this conclusion as a fairly logical and legitimate deduction, and not such as merely raises a suspicion or conjecture of guilt, it is for the jury to say whether they are convinced beyond a reasonable doubt of the fact of guilt." 2 Strong, N.C. Index 2d, Criminal Law § 106 (1967); State v. Williams, 286 N.C. 422, 212 S.E.2d 113 (1975); State v. Bell, 285 N.C. 746, 208 S.E.2d 506 (1974). An examination of the evidence in this case convinces us that it was properly submitted to the jury.

While the evidence does not show that the shots fired by defendant from the .32-caliber pistol were the ones that killed Sharon Williams and Steve Helton, the record discloses that the defendant was present at the scene for the purpose of aiding and abetting his companions in the commission of the crimes, and that he actively participated by firing his pistol into the car where one of the deceased was sitting. This was sufficient to require the submission of his cases to the jury. See State v. Rankin, 284 N.C. 219, 200 S.E.2d 182 (1973); State v. Terry, 278 N.C. 284, 179 S.E.2d 368 (1971); State v. Johnson, 272 N.C. 239, 158 S.E.2d 95 (1967). This assignment is overruled.

Defendant finally contends that the death penalty was unconstitutional at the time of the commission of these crimes. We have carefully considered and rejected defendant's argument in numerous cases; e. g., State v. Noell, 284 N.C. 670, 202 S.E.2d 750 (1974); State v. Jarrette, 284 N.C. 625, 202 S.E.2d 721 (1974); State v. Waddell, 282 N.C. 431, 194 S.E.2d 19 (1973). We reaffirm our position as there set out. No useful purpose would be served by further elaboration here.

It is noted that the court's charge was not brought forward in the record. Therefore, it is presumed that the jury was clearly charged as to the law arising from the evidence as required by G.S. § 1-180. 3 Strong, N.C. Index 2d, Criminal Law § 158 (1967); State v. Moore, 276 N.C. 142, 171 S.E.2d 453 (1970); State v. Cooper, 273 N.C. 51, 159 S.E.2d 305 (1968).

In view of the seriousness of the charges, we have carefully examined each of defendant's assignments of error. Our examination of the entire record discloses that the defendant has had a fair trial, free from prejudicial error.

No error.

SHARP, Chief Justice, dissents as to the death sentence and votes to remand for the imposition of a sentence of life imprisonment for the reasons stated in her dissenting opinion in State v. Avery, 286 N.C. 459, 472, 212 S.E.2d 142, 149 (1975).

COPELAND, Justice, dissents as to death sentence and votes to remand for imposition of a sentence of life imprisonment for the reasons stated in his dissenting opinion in State v. Williams, 286 N.C. 422, 437, 212 S.E.2d 113, 122 (1975).

EXUM, Justice, dissents from that portion of the majority opinion which affirms the death sentence and votes to remand this case in order that a sentence of life imprisonment can be imposed for the reasons stated in his dissenting opinion in State v. Williams, 286 N.C. 422, 439, 212 S.E.2d 113, 121 (1975), other than those relating to the effect of Section 8 of Chapter 1201 of the 1973 Session Laws.