State v. Hunter, 79

Citation299 N.C. 29,261 S.E.2d 189
Decision Date08 January 1980
Docket NumberNo. 79,79
CourtUnited States State Supreme Court of North Carolina
PartiesSTATE of North Carolina v. Curtis Edward HUNTER.

James R. Fullwood, Raleigh, for defendant-appellant.

BRITT, Justice.

Defendant assigns as error the denial of his motion to suppress certain evidence obtained pursuant to a warrantless search of his automobile. There is no merit in this assignment.

Prior to trial defendant filed a motion asking that all evidence, including a pistol, hard hat, key chain, knife, coat and some gloves, seized by police from his automobile be suppressed because his automobile was searched and the property was seized without a search warrant, in violation of his constitutional rights.

The court conducted a Voir dire hearing on the motion at which investigating and arresting officers testified. Their evidence tended to show that Ms. Freeman reported the alleged offenses early in the evening of the day in question; that Officer C. K. Womble of the Raleigh Police Department went immediately to her apartment; that she provided him with a vivid description of defendant and his automobile; that Officer Womble related the descriptions of defendant and his automobile to the police radio dispatcher who, in turn, broadcasted the descriptions and other pertinent information over the police radio; that Officers Weingarten and Holloway of the Raleigh Police Department were on patrol that evening and were riding together; that they heard the broadcast relating to the suspect, his automobile and the crimes he allegedly had committed; that they observed an automobile being operated on a public street by a male person, both meeting the descriptions relayed on the broadcast; that they stopped the automobile and required the occupant, defendant, to get out; that defendant left the motor of his car running and stood just outside of the car; that one of the officers ran his hand under the front seat of the car and retrieved a loaded, cocked pistol therefrom; that the other items listed in the motion were lying on the seat of the automobile; and that defendant was arrested and taken to jail.

Defendant offered no evidence at the Voir dire. Since the evidence offered by the state was uncontradicted, the court made no findings of fact but made conclusions of law that the officers had probable cause to stop defendant's car and arrest him; that the search the officers conducted was incident to a lawful arrest and the seizure effected by the officers was valid; and that the seizure of the items which had been on the car seat was lawful under the plain view, exigent circumstances and probable cause doctrines.

The conclusions of the trial court are fully supported by the evidence and the law. Police officers may arrest without a warrant any person who they have probable cause to believe has committed a felony. G.S. § 15A-401(b)(2)a; See also, United States v. Watson, 423 U.S. 411, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976). The officers in this case had probable cause to believe that defendant had committed the felonies of kidnapping and rape. When an arrest is made, it is reasonable for the arresting officer to search without a warrant the suspect and the area within his immediate control for weapons and evidentiary items which may be concealed or destroyed. Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969); See generally 2 W. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 7.1 (1978). The seizure of the gun from under the front seat was effected by a search incident to a lawful arrest. At the time Officer Weingarten ran his hand underneath the car seat, defendant was standing close to the door jamb, with his hands placed on top of the car. It follows, therefore, that the area around the front seat of the car was within his immediate control, as he could have attempted to retrieve the pistol to resist arrest or effect his escape. Cf., Chimel v. California, supra ("There is ample justification, therefore, for a search of the arrestee's person and the area 'within his immediate control' construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence.") As to the other items, they were lawfully seized under the "plain view" doctrine. Objects which are in the plain view of a law enforcement officer who has the right to be in the position to have that view are subject to seizure and may be introduced into evidence. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); Harris v. United States, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968); State v. Leggete, 292 N.C. 44, 231 S.E.2d 896 (1977); State v. Alford, 289 N.C. 372, 222 S.E.2d 222, Death sentence vacated, 429 U.S. 809, 97 S.Ct. 45, 50 L.Ed.2d 69 (1976). All of the other items which defendant sought to suppress were observed by the officers from outside the car on the backseat and in the back floorboard of the automobile. There was probable cause to believe that the items were connected in some way with the crimes which the officers were then investigating.

Defendant assigns as error the admission of certain opinion testimony by T. E. Yeshion. This assignment has no merit.

When Mr. Yeshion was offered as a witness, he stated that he was employed by the North Carolina State Bureau of Investigation as a forensic serologist 2.

At that point defendant stipulated "as to the qualifications" of the witness as a forensic serologist. The court then conducted a Voir dire in the absence of the jury to pass upon defendant's pretrial motion to suppress Mr. Yeshion's testimony. Following the Voir dire, the court overruled the motion to suppress.

The witness testified in the presence of the jury, among other things, that in his official capacity he received male and female "rape kits" relating to defendant and Ms. Freeman; that he also received blood samples from defendant and Ms. Freeman together with certain clothing belonging to her; that he performed certain scientific tests on the materials received; that the tests revealed that Ms. Freeman was a Group B secretor in which group approximately 80 percent of the population falls; that Group B individuals secrete their blood group types in their body fluids; that the Group B blood type can be detected in the vaginal secretions in a female "or in semen in a male as well as saliva and other bodily fluids"; that the tests revealed that defendant was a Group A non-secretor individual; and that approximately 20 percent of the population falls into the same category as defendant.

After giving certain other information, the witness was asked the following hypothetical question:

"Mr. Yeshion, if the jury could find beyond a reasonable doubt the following facts: first, that Millicent Freeman is a type B secretor; second that the defendant is a type A non-secretor; third, that the presence of spermatozoa was found by you on the vaginal slides, the vaginal swabs, the rectal swabs, and the panties; and fourth, that the B antigen was found by you on the vaginal slides, the vaginal swabs, the rectal swabs, and the panties; do you have an opinion satisfactory to yourself as to whether or not that result, or whether or not that finding as to the slides, the swabs and panties, could or might have resulted from sexual intercourse between a type B secretor and a type A non-secretor?"

Over defendant's objection, the witness stated that he did have an opinion which is: "My opinion is that these reactions are consistent with group B secretors, vaginal secretions, from Millicent Freeman; and group A non-secretor semen from the defendant."

Expert opinion testimony is generally admissible when the proffered witness is better qualified than the jury to form and state an opinion on a particular set of facts in a case. See 1 Stansbury's North Carolina Evidence § 132 (Brandis Rev. 1973). "The test is to inquire whether the witness' knowledge of the matter in relation to which his opinion is asked is such, or so great, that it will aid the trier in his search. Hardy v. Dahl, 210 N.C. 530, 535, 187 S.E. 788 (1936).

We hold that the court did not err in permitting the witness to answer the hypothetical question posed. Defendant did not move to strike any part of the answer. Clearly, the witness was better qualified than the jury to state an opinion on the facts. That scientific testimony is being accepted as more reliable is indicated by the comparatively recent enactment of our statute authorizing breathalyzer tests to determine intoxication, G.S. § 20-16.3, and our recently enacted statute authorizing evidence of blood types to prove or disprove paternity. G.S. § 8-50.1.

By his third assignment of error, defendant contends that the trial court erred in receiving into evidence expert testimony that the prosecuting witness had been sexually penetrated a short time before a medical examination was conducted. The assignment is without merit.

Dr. Charles Hagan, a physician in the Emergency Department at Wake Medical Center, testified on behalf of the state. Defendant stipulated as to the qualifications of Dr. Hagan. During his direct examination by the district attorney, Dr. Hagan testified that on 27 October 1978, he was on duty in the emergency room of Wake Medical Center; that he had a conversation with the prosecutrix at about 7:00 p. m. during which she told him that she had been raped at approximately 5:30 p. m.; that he conducted a pelvic examination of the prosecutrix which indicated that she had an abrasion on the posterior wall of her vagina; that it was his opinion that the abrasion had been made a short time prior to the examination; and that the prosecuting witness had been sexually penetrated by an "assailant" on the day of the examination. Defendant argues that to allow Dr. Hagan to testify in the manner summarized above was to allow him to testify regarding the very question which the jury was charged to...

To continue reading

Request your trial
52 cases
  • Cinema I Video, Inc. v. Thornburg
    • United States
    • North Carolina Court of Appeals
    • December 30, 1986
    ...growth are competent evidence for the jury to look upon and draw reasonable inferences as to the age of the actor. See State v. Hunter, 299 N.C. 29, 261 S.E.2d 189 (1980). In Hunter, supra, the State, in order to obtain a first-degree kidnapping conviction of the defendant, had to prove bey......
  • State v. Rankin, 23A18
    • United States
    • North Carolina Supreme Court
    • December 21, 2018
    ...S.E.2d 917, 920 (1953) (quoting State v. Cole , 202 N.C. 592, 597, 163 S.E. 594, 597 (1932) ); see also, e.g. , State v. Hunter , 299 N.C. 29, 41, 261 S.E.2d 189, 197 (1980) (stating that although an indictment need not track the language of the statute completely, an indictment charging th......
  • State Carolina v. Phillips
    • United States
    • North Carolina Supreme Court
    • June 16, 2011
    ...one place to another ... without the consent of a parent or legal custodian.” N.C.G.S. § 14–39(a) (2009); see also State v. Hunter, 299 N.C. 29, 40, 261 S.E.2d 189, 196 (1980) (discussing the element). After the State rested its case-in-chief, defendant moved to dismiss all kidnapping charg......
  • State v. Sturdivant, 1
    • United States
    • North Carolina Supreme Court
    • November 3, 1981
    ...specifically that the weapon was used to overcome the victim's resistance or to procure her submission. See, e. g., State v. Hunter, 299 N.C. 29, 261 S.E.2d 189 (1980); State v. Brady, 299 N.C. 547, 264 S.E.2d 66 (1980); State v. Thompson, 290 N.C. 431, 226 S.E.2d 487 (1976). The current st......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT