State v. Bright

• Decision Date: 04 November 1980
• Docket Number: No. 14,14
• Citation: 271 S.E.2d 368,301 N.C. 243
• Parties: STATE of North Carolina v. Ricky Allen BRIGHT.
• Court: North Carolina Supreme Court

Page 368

271 S.E.2d 368

301 N.C. 243

STATE of North Carolina v. Ricky Allen BRIGHT.

No. 14.

Supreme Court of North Carolina.

Nov. 4, 1980.

Rufus L. Edmisten, Atty. Gen. by Evelyn M. Coman, Associate Atty., Gen., Raleigh, for the State.

R. C. Cloninger, Jr., Asst. Public Defender, Gastonia, for defendant.

BRANCH, Chief Justice.

Defendant assigns as error the trial judge's denial of his motions to suppress evidence obtained from defendant's motel room and automobile pursuant to separate search warrants. Defendant argues that the affidavits upon which the search warrants were issued did not contain sufficient facts or circumstances to support a finding of probable cause by the magistrate.

The affidavit upon which the warrant to search defendant's motel room was issued reads as follows:

That on 4/7/79 Melissa T. Smith was kidnapped from the Major League Bowling Lanes. This incident was reported to the Gastonia City Police at approximately 8:48 p. m. Around 11 p. m. on this same night, 4/7/79, Melissa T. Smith was seen walking in the vicinity of the Major League Lanes by her parents.

Melissa was taken to the Gaston Memorial Hospital and examined. The examination revealed that Melissa T. Smith had been sexually assaulted. While at the hospital, Melissa Smith described the person that took her from the Major League Lanes as having red curly hair, white, about 6 ft. tall and slender. She described the car in which she was riding as blue with two humps on the back. She also states the car had two doors, big, and a black interior. The interior she states was torn up. Victim also states she saw brown beer bottles in the car.

A 1967 Chevy blue/green in color was observed at 2:30 a. m. on 4/8/79 at the Cardinal Motel Lowell, N.C. by Sgt. Carter and Officer Parham. The car is a 2 door 1967 blue/green Chevy with a long trunk which rises up on each side. On closer observation the interior of the car was observed. The car has a black interior and the front seat is torn up. The car is registered to Ricky Allen Bright according to the PIN network. Ricky Allen Bright is registered in room 42 of the Cardinal Motel in Lowell, N.C. //////////

4/8/79

/////s/ SERGEANT J. R. CARTER/////

/////s/ Gastonia Police Dept./////

s/ J. O. ELLINGTON (Magistrate)

The 1973 General Assembly enacted G.S. 15A-245 which declared the basis for issuance of a search warrant and set forth the duties of the issuing official. That statute provides:

Basis for issuance of a search warrant; duty of the issuing official.-(a) Before acting on the application, the issuing official may examine on oath the applicant or any other person who may possess pertinent information, but information other than that contained in the affidavit may not be considered by the issuing official in determining whether probable cause exists for the issuance of the warrant unless the information is either recorded or contemporaneously summarized in the record or on the face of the warrant by the issuing official.

(b) If the issuing official finds that the application meets the requirements of this Article and finds there is probable cause to believe that the search will discover items specified in the application which are subject to seizure under G.S. 15A-242, he must issue a search warrant in accordance with the requirements of this Article. The issuing official must retain a copy of the warrant and warrant application and must promptly file them with the clerk. If he does not so find, the official must deny the application.

A search warrant cannot be issued upon affidavits which are purely conclusory and which do not state underlying circumstances upon which the affiant's belief of probable cause is founded. Further, there must be facts or circumstances in the affidavit which implicate the premises to be searched. In other words, the affidavit must furnish reasonable cause to believe that the search will reveal the presence of the articles sought on the premises described in the application for the warrant and that such objects will aid in the apprehension or conviction of the offender. State v. Edwards, 286 N.C. 162, 209 S.E.2d 758 (1974); State v. Campbell, 282 N.C. 125, 191 S.E.2d 752 (1972); 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).

The affidavit upon which the warrant to search defendant's motel room was issued contains facts from which the magistrate could form a reasonable belief that the charged crime had been committed by a slender white man about six feet tall who had red curly hair. The affidavit would also support a reasonable belief that the 1967 Chevrolet registered in defendant's name and parked in front of the Cardinal Motel in Lowell, North Carolina, was the vehicle in which the victim was assaulted. However, there was only a conclusory statement that defendant was registered in the motel. There was no information or circumstances set forth in the affidavit or which was recorded or contemporaneously summarized in the record or on the face of the warrant by the issuing official in any way indicating that the defendant was the person described in the affidavit. Therefore, it cannot be inferred from the affidavit that defendant was the person who committed the charged crime. It follows that there was nothing to support a belief that the articles sought would be in his motel room or would aid in the apprehension or conviction of the offender. We, therefore, hold that the affidavit upon which the search warrant for defendant's motel room was issued was fatally defective. However, under the facts of this case, we do not believe that the evidence admitted as the result of the search of defendant's motel room was sufficiently prejudicial to warrant a new trial.

There was plenary evidence before the jury that the charged crime had been committed. On the same night that the crime was committed, the seven-year-old victim gave police officers a description of her assailant. The officers questioned employees of the bowling alley from which the child was abducted and determined that defendant matched this description. The officers' investigation also disclosed that defendant had been seen at the bowling alley shortly before Melissa disappeared. The victim on the same night gave the police officers a detailed description of the automobile in which she was transported. After ascertaining that defendant lived at the Cardinal Motel in Lowell, North Carolina, the officers proceeded to that place where they observed a 1967 Chevrolet automobile which matched the exterior and interior descriptions furnished by the victim. They then determined through the Police Information Network that this automobile was registered in defendant's name. A surveillance of the motel and automobile was arranged and in the early morning hours of 8 April 1979 the officers observed defendant as he went to his car and returned to the motel. Shortly thereafter, he was arrested. The victim made a positive in-court identification of defendant as her assailant. There was expert testimony tending to show that defendant's blood-type was O and that the victim's blood-type was A. A piece of cloth taken from the seat of the Chevrolet automobile was tested, and the test disclosed the presence of blood-type A. The expert examination of trousers taken from defendant at the time of his arrest revealed semen and the presence of a group A substance. None of the articles taken pursuant to the challenged search warrant revealed any probative evidentiary matter except the blanket. The blanket revealed the presence of human blood of the same type as that of the victim. On cross-examination the expert witness testified that type A blood is a common blood-type, occurring among about forty percent of the world's population. He testified that he found two blood stains on the blanket, but he could not determine the age of the stains or even whether the two stains were placed on the blanket at the same time.

In State v. Heard and Jones, 285 N.C. 167, 203 S.E.2d 826 (1974), we were faced with the question of whether the admission of certain constitutionally barred evidence was prejudicial. There we stated the following rule:

We recognize that all Federal Constitutional errors are not prejudicial, and under the facts of a particular case, they may be determined to be harmless, so as not to require an automatic reversal upon conviction. The question is whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction. Nevertheless before a court can find a constitutional error to be harmless it must be able to declare a belief that such error was harmless beyond a reasonable doubt. Schneble v. Florida, 405 U.S. 427, 92 S.Ct. 1056, 31 L.Ed.2d 340; Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284; Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705; Fahy v. Connecticut, 375 U.S. 85, 84 S.Ct. 229, 11 L.Ed.2d 171; State v. Cox and State v. Ward and State v. Gary, 281 N.C. 275, 188 S.E.2d 356; State v. Jones, 280 N.C. 322, 185 S.E.2d 858; State v. Swaney, 277 N.C. 602, 178 S.E.2d 399; State v. Brinson, 277 N.C. 286, 177 S.E.2d 398.

Id. at 172, 203 S.E.2d at 829.

The 1977 General Assembly codified this rule by the enactment of G.S. 15A-1443(b) which provides:

(b) A violation of the defendant's rights under the Constitution of the United States is prejudicial unless the appellate court finds that it was harmless beyond a reasonable doubt. The burden is upon the State to demonstrate, beyond a reasonable doubt, that the error was harmless.

We conclude that the evidence obtained from the motel room was of little probative value and was at most cumulative since type A blood stains were found in the automobile, the place where, according to all the evidence, the assault occurred. We, therefore, hold that the erroneous admission of the evidence obtained by a...