State v. Phillips

212 S.E.2d 172 (1975) 25 N.C. App. 5

STATE of North Carolina
v.
Dwight Everette PHILLIPS and Bobby Miles.

No. 7415SC991.

Court of Appeals of North Carolina.

March 5, 1975.

Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. Rafford E. Jones, Raleigh, for the State.

Ross, Wood & Dodge by B. F. Wood, Graham, for defendant appellant Dwight Everette Phillips.

Fred Darlington, III, Graham, for defendant appellant Bobby Miles.

ARNOLD, Judge.

In order to preserve all objections on appeal, both defendants have assigned error to the wording of the indictments, the denial of their motions for nonsuit, and the court's instructions to the jury. We have examined the record and conclude that these assignments are without merit.

The indictments clearly negate the idea that defendants took their own property and therefore are sufficient as to ownership. See State v. Ballard, 280 N.C. 479, 186 S.E.2d 372 (1972); State v. Mason, 279 N.C. 435, 183 S.E.2d 661 (1971); State v. Fountain, 14 N.C.App. 82, 187 S.E.2d 493 (1972). Viewed in the light most favorable to the State, the testimony of John Virgil Hodgins constituted a sufficient basis for finding that a crime was committed and that defendants committed it. See State v. Mason, supra; State v. Terry, 278 N.C. 284, 179 S.E.2d 368 (1971). See generally 6 Strong, N.C. Index 2d, Robbery § 4, pp. 682-83. The trial court did not err in overruling their motions for nonsuit. In instructing the jury, the court properly recapitulated Hodgins' corroborative testimony. The court is not required to instruct on lesser included offenses when there is no evidence to support the charge. State v. McLeod, 17 N.C.App. 577, 194 S.E.2d 861 (1973); State v. Hailstock, 15 N.C.App. 556, 190 S.E.2d 376, cert. denied 281 N.C. 760, 191 S.E.2d 363 (1972).

Defendant Phillips further contends that the trial court erred in permitting Clifton Snyder to testify that the men who robbed him "sounded like black people talking, that was as much identification as I could tell." We disagree. Mr. Snyder did not purport to identify his assailants by race. He merely testified as to the dialect he heard. Moreover, he later stated that he did not know whether they were black or white. Defendant's objection to his testimony was properly overruled.

Turning now to Phillips' objection to the State's evidence concerning handguns found in his automobile, we hold that the search was illegal and the testimony was inadmissible against him. The trial court's finding of fact that the search warrant was valid is not supported by the evidence. A warrant based on hearsay information must disclose the basis for the informant's beliefs as well as the basis for the officer's reliance on the informant. Jones v. United States, 362 U.S. 257, 80 S. Ct. 725, 4 L. Ed. 2d 697 (1960); State v. Campbell, 282 N.C. 125, 191 S.E.2d 752 (1972); State v. Spillars, 280 N.C. 341, 185 S.E.2d 881 (1971). See also Spinelli v. United States, 393 U.S. 410, 89 S. Ct. 584, 21 L. Ed. 2d 637 (1969); Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (1964). In the instant case, the affidavit attached to the warrant reads in part as follows: "The facts which established probable cause for the issuance of the search warrant are as follows: Received information from a reliable informer that Dwight Phillips took the thirty-eight caliber pistol, Serial No. D-230342 during the armed robbery of Cliff Snyder. 2920 Maple Avenue, Burlington, N. C. on March 21, 1974. The informer has given information in the past which has proven to be correct and has resulted in conviction." This warrant is totally devoid of any information as to the circumstances underlying the informant's belief that Clifton Snyder's.38 caliber pistol would be found in Phillips' car. It is insufficient as a matter of law to support an issuing magistrate's independent finding of probable cause. See State v. Edwards, 286 N.C. 162, 209 S.E.2d 758 (1974).

The State contends, however, that Phillips consented to the search and the trial court so found. Again, this finding is not supported by the evidence. The burden is on the State to show by clear and convincing evidence that consent to search was given freely and voluntarily. State v. Vestal, 278 N.C. 561, 180 S.E.2d 755 (1971), cert. denied 414 U.S. 874, 94 S. Ct. 157, 38 L. Ed. 2d 114 (1973). Testimony on voir dire hearing tended to show that, after they arrested him at the Annedeen Hosiery Mill, the officers told Phillips they had a warrant to search his car. He then told them to go ahead. The United States Supreme Court has held that under such circumstances there is no consent but only acquiescence. Bumper v. North Carolina, 391 U.S. 543, 88 S. Ct. 1788, 20 L. Ed. 2d 797 (1968). Nor was the search valid as being incident to an arrest. See Coolidge v. New Hampshire, 403 U.S. 443, 91 S. Ct. 2022, 29 L. Ed. 2d 564 (1971). The State having failed to show otherwise, we hold that Phillips did not freely and voluntarily consent to the search of his automobile. The search therefore was invalid, and testimony concerning items thereby obtained was inadmissible against this defendant. He is entitled to a new trial.

Defendant Miles, conceding that he lacks standing to object to the search of Phillips' vehicle, nevertheless contends that he was prejudiced by the State's repeated references to the illegally obtained evidence and also is entitled to a new trial. The exclusionary rule has not been extended to codefendants. Alderman v. United States, 394 U.S. 165, 89 S. Ct. 961, 22 L. Ed. 2d 176 (1969). Unlike the victim of the illegal search this defendant has the burden of showing prejudicial effect.

While defendant has failed to point this out in his brief, we believe the record speaks for itself. The State offered no evidence to indicate that the weapons found in Phillips' car were used to commit the robbery. The stolen weapon was never found. Moreover, the trial court did not instruct the jury that the weapons taken from Phillips were not to be considered with respect to Miles. The cumulative effect was so potentially prejudicial as to require that this defendant also be given a new trial.

As to both defendants, new trial.

BRITT and MORRIS, JJ., concur.