State v. Shedd, 261

Citation161 S.E.2d 477,274 N.C. 95
Decision Date14 June 1968
Docket NumberNo. 261,261
PartiesSTATE, v. Kenneth Ray SHEDD and Jimmy Lee Shedd.
CourtUnited States State Supreme Court of North Carolina

Atty. Gen. T. W. Bruton and Asst. Atty. Gen. Millard R. Rich, Jr., for the State.

Frank Battley Rankin, Mount Holly, for defendant appellants.

PARKER, Chief Justice.

This is a brief summary of the State's evidence: On 2 July 1967 Borden's Milk & Ice Cream Company, a corporation, owned and occupied a building on the service road off Interstate Highway #85 between North Graham Street and Sugar Creek Road in the city of Charlotte, North Carolina. The building contains refrigerated space, both high and low temperature, and office space. The office space faces the service road, and the refrigeration facilities are behind the office. A high fence encircles the entire lot. A tunnel about 34 or 35 inches high and 20 inches wide and approximately 90 feet long runs between two of its buildings. The purpose of this tunnel is to enable it to circulate hot air to keep ice from accumulating between the two low temperature rooms in the two buildings. A grate is placed there to throw hot air down into this tunnel.

An ADT burglar alarm system was installed upon the premises of Borden's. When a door is opened at Borden's, a light comes on at a switchboard in an office of the ADT Detective Service located at 325 East Ninth Street. About 9:28 a.m. on Sunday, 2 July 1967, Richard J. Rice, Jr., an employee of the ADT Detective Service, was in its office at 325 East Ninth Street and received a DT alarm there indicating that a door was open at Borden's. Rice immediately sent to the scene James Paul Gentry, the serviceman on duty at the office, and also called the county police, who in turn notified the city police. Gentry proceeded to the Borden building and upon arrival he saw there Officer Smawley, a city policeman. Soon thereafter Marvin Lee Ross, an employee of Borden's, arrived at the scene. Ross unlocked the gate to the fence. Gentry went inside. Officer Smawley went back to his police car, got his shotgun out of the car, and gave it to Ross. Ross and Smawley went inside the fence and when they got about halfway back past the building, they saw Gentry coming around the building with the three defendants. Gentry had a pistol in his hand. These three men had on dirty, muddy clothes. Two of them had on black or dark gloves. Smawley took a two-barrel Derringer from the person of Albert Leon Shedd. A search of the premises of Borden's disclosed that entrance to the building was gained through a tunnel and that a grate over the tunnel had been removed at the end of the tunnel. Four cement blocks had been knocked out of the southernmost wall of the building. The northernmost wall of the storage room had bricks knocked down and there was a hole in the wall. The walls had not been damaged when the plant was closed on Saturday, the night before, at 6 p.m. The safe in the drivers' check-out room had been damaged. The hinges of the lock had been knocked off and there was a small hole drilled in the door. In the storage room of the building there was found a hammer, drill, flashlight, crowbar, a shop hammer of about 10 pounds, a pry bar, a 3/4 inch pipe approximately three feet long, a tire tool, and some assorted punches and chisels. Some of these were on the floor and others were in a burlap sack. The storage room was near the hole that was knocked out in the wall of Borden's.

B. D. Brown, an employee of the Mecklenburg County Police Department, testified that he had advised the defendants as to all their constitutional rights before John F. McAuley, also an employee of the Mecklenburg County Police Department, asked defendants any questions. While defendants were under arrest for storebreaking, and possession of burglar's tools not for a lawful use, and for attempting to break open a safe in the Borden building, and after defendants had been advised of all their constitutional rights, at the scene of the arrest within the fence on the premises of Borden's, McAuley asked defendants their names and where their automobile was. The three defendants told the officers their names and showed them where to drive to a wagon road in a field in the woods, and at the end of the wagon road there was found a 1962 white Ford. This Ford was approximately 100 yards in a straight line from the fence at the back of Borden's in the woods. Defendants objected to the admission of the testimony that they had showed the officers where their car was and also objected to any statements they had made. The trial court found as a fact that the statements referred to allegedly made by defendants were made freely, voluntarily, and understandingly after defendants had been informed of the nature of the charges against them, of their right to remain silent, of the possible use against them of any statements they might make, of their rights to confer with counsel before making any statement, and that if they were unable to hire counsel, they were entitled to have counsel appointed to represent them. The court overruled their objections and defendants excepted.

Jimmy Lee Shedd when searched had an inch drill bit in his rear pocket. A search of the car in the woods disclosed that bolt cutters were in it. McAuley testified that Jimmy Lee Shedd said, when the officers arrived at the car, that there was a creek in the vicinity and that he had gone down to the creek to look for bait to go fishing. Jimmy Lee Shedd said further that when they left the car in the woods they went up to a hole in the fence around Borden's, that the bolt cutters were there and also the box with Independence Electric on it, and that he and his two brothers picked them up and carried them back to their car and placed them in it.

After the three defendants were arrested on the charges for which they were later indicted, they were carried to the Mecklenburg County police station. At this police station the clothes and shoes defendants were wearing were taken off of them, and they were given other clothes to wear. These clothes were bundled up and sent to the Federal Bureau of Investigation in Washington. The officers took sweepings from the floor and from the brick walls or cement walls of Borden's and sent them to the Federal Bureau of Investigation in Washington.

Thomas J. Hughes is an employee of the Federal Bureau of Investigation in the Laboratory in Washington, D.C. He testified in detail as to his education, training, and experience in the examination and comparison of material of a mineral nature, including soil, safe insulation material, building materials such as plaster, mortar, concrete, etc. He is assigned to the Soils and Minerals Unit of the Laboratory. He has done this work for a little over four years. He has been held qualified as an expert witness in this field about fifty times in various states of the Union and in the Federal courts. The court found that Mr. Hughes was an expert Geologist and Mineralogist with special training in the field of examination and comparison of materials of a mineral nature. To this finding defendants did not object. He testified in brief summary: He examined the clothes of the three defendants sent to the F.B.I. Laboratory, and he examined sweepings from the floor of Borden's. He testified in detail as to the minute examination he made of this material. He testified in substance that in the shirts of the defendants he found some small particles of mortar which matched the mortar of the sweepings on the floor of the Borden building, and he also found in these clothes material which matched the cinder block, the mortar, and also the brick from the sweepings from the Borden building.

The State's evidence was amply sufficient to carry the case to the jury on all the counts in all the bills of indictment against all the defendants. Defendant appellants made no argument to the contrary. They made no motion that the State's case should be nonsuited.

Appellants assign as error the trial court's finding that appellants' replies to questions as to their names when they were arrested by the officers inside the fence of Borden's, and other statements they made there after they had been warned in detail of their constitutional rights were freely, voluntarily, and understandably made. This assignment of error is overruled for the following reasons: (1) The trial judge's finding of fact is amply supported by competent evidence, and consequently it is conclusive and binding on appeal. State v. Gray, 268 N.C. 69, 150 S.E.2d 1; (2) all the questions which the officer or officers asked defendants after they had been caught within the fence of Borden's plant early Sunday morning constituted that general type of on-the-scene questioning which is customarily conducted by an officer or officers charged with the duty of investigating the breaking and entry into buildings, and such questioning is a far cry from the custodial interrogation condemned by Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977; Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, 10 A.L.R.3d 974; State v. Meadows, 272 N.C. 327, 158 S.E.2d 638. Appellants have not favored us with any citation of authority to support their contention that the alleged statements of appellants under the circumstances here were incompetent.

Appellants assign as error the search of their automobile parked in the woods about 100 yards back of Borden's plant and testimony as to what was found in it. Appellants about 9:35 a.m. Sunday morning had been caught within a fence encircling Borden's. There was evidence tending to show that they had attempted to drill a hole in a safe in a building occupied by Borden's, that around this safe were many instruments and tools that could be used for safecracking or storebreaking, that they were arrested by the officers at the scene, and that they told the officers where their car was...

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  • State v. Allen, 71
    • United States
    • United States State Supreme Court of North Carolina
    • January 26, 1973
    ......California, 376 U.S. 483, 84 S.Ct. 889, 11 L.Ed.2d 856; State v. Jackson, supra; State v. Roberts, 276 N.C. 98, 171 S.E.2d 440; State v. Shedd, 274 N.C. 95, 161 S.E.2d 477.         Second, evidence obtained by officers without a search warrant is admissible in evidence where the ......
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    • Court of Appeal of North Carolina (US)
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    ...mistrial is misconduct affecting the jury." State v. Gardner, 322 N.C. 591, 593, 369 S.E.2d 593, 595 (1988); see also State v. Shedd, 274 N.C. 95, 161 S.E.2d 477 (1968). Appellate courts are deferential to the trial court's exercise of discretion in this area because a "`trial judge is in a......
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    ...United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925); State v. Roberts, 276 N.C. 98, 171 S.E.2d 440 (1970); State v. Shedd, 274 N.C. 95, 161 S.E.2d 477 (1968). See generally Comment, 'Warrantless Searches and Seizures of Automobiles and the Supreme Court from Carroll to Cardwell: ......
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    ...by him, and the results of any examination of such clothing as well as the clothing itself are admissible at trial. State v. Shedd, 274 N.C. 95, 161 S.E.2d 477 (1968); State v. Ross, 269 N.C. 739, 153 S.E.2d 469 (1967); 5 Am.Jur.2d, Arrest, Section 73 (1962). Moreover, the Fifth Amendment p......
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