State v. Thompson

190 S.E.2d 355 (1972) 15 N.C. App. 416

STATE of North Carolina
v.
Clinton THOMPSON.

No. 7216SC476.

Court of Appeals of North Carolina.

August 2, 1972.

Atty. Gen. Robert Morgan, by Associate Atty. Gen. Thomas E. Kane, for the State.

William S. McLean, Lumberton, for defendant petitioner.

MORRIS, Judge.

Defendant asserts for the first time on appeal that he was denied his constitutional right to a speedy trial. No motion to dismiss on these grounds was made at the trial level, and no exception was taken which would properly put this issue before us. Rules 19 and 21, Rules of Practice in the Court of Appeals of North Carolina; State v. Hudson, 281 N.C. 100, 187 S.E.2d 756 (1972).

Even had this assignment of error been properly presented, defendant's contention is without merit in light of the recent decisions of our Supreme Court in State v. Watson, 281 N.C. 221, 188 S.E.2d 289 (1972); State v. Spencer, 281 N.C. 121, 187 S.E.2d 779 (1972); and State v. Harrell, 281 N.C. 111, 187 S.E.2d 789 (1972). Defendant has not shown the delay was a result of the State's wilfulness or neglect. To the contrary, defendant has demonstrated that the delays were unavoidable due to the unavailability of a witness for the State or caused by defendant himself who requested three continuances and who, after one year had passed, requested a new attorney. Defendant has shown no prejudice, and this assignment of error is overruled.

By another assignment of error, defendant excepts to the entry of Judge Brewer's order denying his motion to quash the indictments and contends the court erred in failing to afford him a hearing on his motion to suppress. It is obvious from the record that because of the vague language in defendant's motion, Judge Brewer thought the motion to suppress was directed towards the trial in which defendant had already been convicted and had served part of his sentence prior to his escape in 1968. Consequently Judge Brewer treated defendant's motion as one under the Post-Conviction Hearing Act (G.S. § 15-217 et seq.) and correctly denied it. State v. White, 274 N.C. 220, 162 S.E.2d 473 (1968); State v. Noles, 12 N.C.App. 676, 184 S.E.2d 409 (1971). It now appears on appeal that defendant desired a pretrial hearing to determine the admissibility of evidence seized in connection with the offenses for which he had not yet been tried. Defendant cites as authority State v. Pike, 273 N.C. 102, 159 S.E.2d 334 (1968), which is clearly distinguishable and recognizes the trial court's duty to pass upon the validity of a search and the competency of evidence procured thereunder when properly made the subject of inquiry. See State v. Woody, 277 N.C. 646, 178 S.E.2d 407 (1971). In the case at bar, defendant never moved to suppress the evidence at trial which would have entitled him to a voir dire hearing. Nor did he offer any evidence to contradict the State's evidence that the seizure was lawful. State v. Altman, N.C.App., 189 S.E.2d 793 (filed 12 July 1972). We find no merit in defendant's contention that due process entitles him to a hearing on his motion to suppress after arraignment but before trial. This assignment of error cannot be sustained.

The admission into evidence of a bumper and two tires removed, without a search warrant, from the automobile which defendant drove was not error since the evidence was not obtained as the result of an unreasonable search and seizure in violation of the Fourth Amendment to the Constitution of the United States. The automobile used in the commission of the crimes collided with a pine tree in making its getaway, and the tires left clear tracks in the clay soil at the scene of the crime. No interior search of the automobile was necessary in order to observe the pine bark and resin on the bumper or the tire treads which were clearly visible. No search warrant was needed to seize the items in plain view, and they were properly admitted into evidence. State v. Virgil, 276 N.C. 217, 172 S.E.2d 28 (1970). Nor do we believe there was any error in admitting plaster casts of the tire prints into evidence.

Defendant was represented by competent and able counsel throughout this proceeding. He received a fair and impartial trial, and the sentences imposed were within the limits set by statute. We find

No error.

VAUGHN and GRAHAM, JJ., concur.