Matter of Horne

272 S.E.2d 905 (1980)

In the Matter of Isaiah HORNE.

No. 803DC671.

Court of Appeals of North Carolina.

December 16, 1980.

Atty. Gen. Rufus L. Edmisten by Associate Atty. Gen. Sarah C. Young, Raleigh, for the State.

Ward, Ward, Willey & Ward by Joshua W. Willey, Jr., New Bern, for defendant-appellant.

ROBERT M. MARTIN, Judge.

Respondent assigns as error the trial court's failure to suppress an inculpatory statement made by him during in-custody interrogation and the subsequent admission of the statement into evidence over objection. Respondent contends he was not advised of his right to have a parent present, that he did not waive his rights and that the court should have made findings of fact and conclusions of law in support of its order denying respondent's motion to suppress the statement. After carefully scrutinizing the record on appeal, we find that respondent's contentions have no merit.

In Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, 10 A.L.R.3d 974 (1966), the United States Supreme Court held that a suspect must be informed of his rights upon being arrested: the right to remain silent, the right to an attorney and that any statement made may be used as evidence against him. In addition to the above-mentioned constitutional rights, our legislature has granted to juveniles the additional right to have a parent, guardian or custodian present during questioning. N.C. Gen.Stat. § 7A-595(a)(3). A defendant may effectively waive these rights if done voluntarily, knowingly, and intelligently. Miranda v. Arizona, supra. The State may not use evidence obtained as a result of custodial interrogation against the juvenile at trial unless and until it demonstrates that the warnings were made and that the juvenile knowingly, willingly and understandingly waived them. N.C. Gen.Stat. § 7A-595(d).

In the case sub judice, the court properly conducted a voir dire hearing for the purpose of determining the admissibility of the statement in question. The only person to testify at the hearing was Investigator Dunn. Prior to the voir dire hearing, Investigator Dunn testified that he had advised respondent orally of all of his constitutional rights as required by Miranda v. Arizona, supra, and of his right to have a parent present during questioning. Investigator Dunn testified that respondent had stated that he understood his rights and that respondent also had read a copy of his constitutional rights. During the voir dire hearing, Investigator Dunn testified that the written copy of his rights that respondent had read did not contain his right to have a parent present. The record indicates that the respondent never signed a written waiver of his rights. After being advised of his constitutional rights and stating that he understood them, the respondent confessed to the crime.

The uncontradicted evidence at the voir dire hearing was that the respondent was fully advised of his constitutional and statutory rights. In addition, the trial court's failure to make findings of fact and conclusions of law in support of its order denying respondent's motion to suppress is not reversible error. "When no material conflict in the evidence on voir dire exists, it is not error to admit a confession without making specific findings of fact, although the better practice is always to find all facts upon which the admissibility of the evidence depends." State v. Siler, 292 N.C. 543, 549, 234 S.E.2d 733, 737 (1977). Therefore the only remaining question with regard to this assignment of error is whether the respondent knowingly, willingly and understandingly waived his rights.

Respondent relies upon Miranda v. Arizona, supra, and State v. Siler, supra, in support of his argument that because the State failed to show a specific waiver of respondent's rights, it failed to sustain its burden of showing a knowing, willing and understanding waiver. We feel, however, that this case is governed by the later cases of North Carolina v. Butler, 441 U.S. 369, 99 S.Ct. 1755, 60 L.Ed.2d 286 (1979) and State v. Connley, 297 N.C. 584, 256 S.E.2d 234, cert. denied, 444 U.S. 954, 100 S.Ct. 433, 62 L.Ed.2d 327 (1979). In Butler, the United States Supreme Court repudiated the North Carolina rule that the State must show an express written or oral statement of waiver of rights before a confession may properly be admitted into evidence. The Butler court stated that the question of whether a defendant knowingly, intelligently and voluntarily waived his rights must be determined on a case-by-case basis, based on the circumstances of each case. The court stated:

An express written or oral statement of waiver of the right to remain silent or of the right to counsel is usually strong proof of the validity of that waiver, but it is not inevitably either necessary or sufficient to establish waiver. The question is not one of form, but rather whether the defendant in fact knowingly and voluntarily waived the rights delineated in the Miranda case. As was unequivocally said in Miranda, mere silence is not enough. That does not mean that the defendant's silence, coupled with an understanding of his rights and a course of conduct indicating waiver, may never support a conclusion that a defendant has waived his rights. The courts must presume that a defendant did not waive his rights; the prosecution's burden is great; but in at least some cases waiver can be clearly inferred from the actions and words of the person interrogated.

441 U.S. at 373, 99 S.Ct. at 1757, 60 L.Ed.2d at 292.

In Butler, the defendant was informed of his rights upon arrest, stated that he understood those rights, but refused to sign a written waiver. After stating "I will talk to you but I am not signing any form" he made inculpatory statements. 441 U.S. at 371, 99 S.Ct. at 1756, 60 L.Ed.2d at 291. The Court found that under those circumstances the defendant's statements were admissible. In Connley, supra, the defendant was advised of his rights, stated that he understood those rights and refused to sign a written waiver. After stating "I know what it says and I understand, but I'm not going to sign it" defendant made inculpatory statements. 297 N.C. at 587, 256 S.E.2d at 236. Our Supreme Court held that the defendant's statements were admissible.

We see no material distinction in the circumstances surrounding the waiver of rights in the case sub judice and those found in Butler and Connley. Therefore we hold that the trial court was correct in admitting the statement in question into evidence.

The respondent also contends that the trial court erred in admitting the testimony of Investigator Dunn regarding the substance of respondent's inculpatory statement. The record reveals that Investigator Dunn made a recording of respondent's statement which was subsequently transcribed by someone other than the officer and then erased. The respondent had neither acknowledged nor signed the statement. When Investigator Dunn began testifying by referring to the transcript, defense counsel, with the court's permission, asked the officer if he was reading from anything. The officer replied that he was. After stating that the witness could use the statement to refresh his recollection, the court allowed the officer to testify as to the substance of respondent's statement over defense counsel's objection. On cross-examination, defense counsel did not ask the officer whether his testimony had been based on his own recollection. Defense counsel did ask the officer "[t]hat piece of paper, that you refresh your memory with, what did the information on that piece of paper come from?" There is no indication in the record that the officer's testimony was not based on his own recollection of the statement which the respondent made to him.

Our Supreme Court held in State v. Smith, 291 N.C. 505, 231 S.E.2d 663 (1977), that where there is doubt as to whether the witness is testifying from his own recollection, the use of the testimony depends upon the credibility of the witness and is a question for the trier of fact. Absent an abuse of discretion, the ruling of the trial court should not be disturbed on appeal. In the case sub judice the trial judge was in a position to determine whether the witness was merely reading from a written transcript of respondent's statement or relying on his own recollection. As respondent has failed to show any abuse of discretion, we will not disturb the trial court's ruling on appeal.

Respondent further assigns as error the trial court's admission of the merchandise found in the respondent's possession into evidence. Respondent first contends that the officer had no justification for detaining him and next contends that even if the detention was justified, the officer had no authority to search the box containing the merchandise. We disagree.

Our Supreme Court has stated:

"The brief detention of a citizen based upon an officer's reasonable suspicion that criminal activity may be afoot is permissible for the purpose of limited inquiry in the course of a routine investigation, and any incriminating evidence which comes to that officer's attention during this period of detention may become a reasonable basis for effecting a valid arrest...." (Citation omitted.)

State v. Allen, 282 N.C. 503, 508, 194 S.E.2d 9, 13 (1973). This Court held in State v. Bridges, 35 N.C.App. 81, 84, 239 S.E.2d 856, 858 (1978) that "a law officer ... may lawfully detain a person where there is a need for immediate action, if, upon personal observation or reliable information, he has an honest and reasonable suspicion that the suspect either has committed or is preparing to commit a crime." The record discloses that the officers heard a radio dispatch at 1:00 a. m. concerning suspicious characters pulling a wagon containing what appeared to be a television. Upon sighting the described individuals, Officer Brantley stopped his car beside them, whereupon one suspect fled. The box on the wagon contained various merchandise which was in plain view. From the totality of these circumstances, we conclude that Officer Brantley had an honest and reasonable suspicion that the respondent had committed the crime of larceny which justified his detention of the respondent.

In addition, we do not think the search of the cigar box which revealed a tax receipt to Mr. Richardson was illegal. The constitutional guarantee against unreasonable searches and seizures does not prohibit the seizure and introduction into evidence of contraband materials when they are in plain view and require no search to discover them. State v. Allen, supra. In the case at bar, the cigar box was contained in a larger, open box, along with various articles of merchandise and was in plain view. The fact that the officer had to open the cigar box to find the tax receipt is of no consequence. The respondent had no expectation of privacy with regard to the contents of the cigar box. A cigar box is not normally used, and was not being used by respondent as a repository of personal items. Thus, our recent decisions in State v. Greenwood, 47 N.C.App. 731, 268 S.E.2d 835 (1980), disc. rev. allowed (filed 7 October 1980), holding that the contents of a pocketbook found on the rear seat of an automobile should have been suppressed, and State v. Cole, 46 N.C.App. 592, 265 S.E.2d 507, rev. denied, 301 N.C. 96 (1980), holding that the warrantless search of a jacket found in the trunk of a car was in violation of the Fourth Amendment, are distinguishable.

Finally, respondent assigns as error the trial court's denial of his motion to dismiss the charge of larceny at the end of the State's evidence. He contends that the merchandise found in his possession was not sufficiently identified as the merchandise stolen from the store of E. C. Richardson and therefore the State could not rely upon the doctrine of recent possession to raise the presumption that the respondent stole the items in question.

It is axiomatic that "[t]he identity of the fruits of the crime must be established before the presumption of recent possession can apply. The presumption is not in aid of identifying or locating the stolen property, but in tracking down the thief upon its discovery." State v. Jones, 227 N.C. 47, 49, 40 S.E.2d 458, 460 (1946); in accord, State v. Foster, 268 N.C. 480, 151 S.E.2d 62 (1966). Respondent argues that because Mr. Richardson admitted that there were no markings on the items of merchandise that would distinguish them from other similar merchandise sold at other stores, the merchandise was not sufficiently identified as that stolen from Mr. Richardson. We disagree. At the trial, Mr. Richardson was asked, "Did you recognize the contents [of the box]?" He replied "Every bit of it. I was the man that owned that property, me and my wife."

It is not necessary that stolen property be unique to be identifiable. Often stolen property consists of items which are almost devoid of identifying features, such as goods which are mass produced and nationally distributed under a brand name. When such items are the proceeds of a larceny their identity must necessarily be drawn from other facts satisfactorily proved. State v. Crawford, 27 N.C.App. 414, 219 S.E.2d 248, rev. denied, 288 N.C. 732, 220 S.E.2d 621 (1975). In the case sub judice, Mr. Richardson's testimony identifying the goods as those taken from his store and the close proximity in time and location of the defendant and the goods to the robbery site were sufficient to raise a reasonable and logical inference that the goods found in the respondent's possession were the goods stolen from Mr. Richardson's store. Moreover, respondent confessed to his participation in the crime. Therefore, respondent's motion for dismissal was properly denied.

In the trial we find no prejudicial error.

No error.

VAUGHN and WELLS, JJ., concur.