State v. Crews

• Decision Date: 16 March 1979
• Docket Number: No. 55,55
• Citation: 252 S.E.2d 745,296 N.C. 607
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Lonzo M. CREWS, Jr. and Phillip Eugene Turpin.

Page 745

252 S.E.2d 745

296 N.C. 607

STATE of North Carolina v. Lonzo M. CREWS, Jr. and Phillip Eugene Turpin.

No. 55.

Supreme Court of North Carolina.

March 16, 1979.

Jeff P. Hunt, Asheville, for defendant Crews.

Bruce Briggs, Mars Hill, for defendant Turpin.

Atty. Gen. Rufus L. Edmisten by Associate Atty. Gen. Thomas H. Davis, Jr., Raleigh, for the State.

COPELAND, Justice.

For the reasons stated below, we find no prejudicial error in defendants' trial.

This appeal concerns two defendants who submitted separate briefs to this Court. We will deal first with those assignments of errors brought forth by both defendants. We will then discuss the arguments made by defendant Turpin alone and those made by defendant Crews alone, in that order.

Both defendants claim the trial court erred in denying their motions for change of venue or, in the alternative, for a special venire to be summoned from outside Madison County. They based their motions primarily on the pretrial publicity of the crimes that was contained in local newspapers.

Before denying the motions, the trial judge heard arguments from the defendants and the State, and he studied defendants' written motions and the accompanying newspaper articles. The judge stated in his order that he would permit "full inquiry" of each prospective juror to determine whether he or she could give defendants "a fair and impartial trial based on the evidence." If there is any indication to the contrary, "the Court will at that time hear challenge for cause."

Defendants do not contend that any juror was impaneled who was biased or prejudiced in any way. They did not include any of the jury selection proceedings in the record.

"Defendant's motion for a change of venue was addressed to the sound discretion of the trial court. Where the record discloses . . . that the presiding judge conducted a full inquiry, examined the press releases and the affidavits in support of the motion, and where the record fails to show that any juror objectionable to the defendant was permitted to sit on the panel, or that defendant had exhausted his peremptory challenges before he passed the jury, denial of the motion for change of venue was not error." State v. Harding, 291 N.C. 223, 227, 230 S.E.2d 397, 400 (1976). (Citations omitted.) See also State v. Harrill, 289 N.C. 186, 221 S.E.2d 325 (1976), death penalty vacated in 428 U.S. 904, 96 S.Ct. 3212, 49 L.Ed.2d 1211 (1976).

This assignment of error is overruled.

The defendants next argue that the trial court erred in denying their motions for severance. We do not agree.

Both defendants in this case were indicted and tried for the murders of Bennie Hudgins and Tommy Norton. "Ordinarily unless it is shown that irreparable prejudice will result therefrom, consolidation for trial rather than multiple individual trials is appropriate when two or more persons are indicted for the same criminal offense(s)." State v. Jones, 280 N.C. 322, 333, 185 S.E.2d 858, 865 (1972).

The most common reason for requesting a separate trial is that one defendant has made an extrajudicial statement that would implicate and prejudice the other defendant should the State offer it into evidence at defendants' joint trial. See State v. Pearson, 269 N.C. 725, 153 S.E.2d 494 (1967). See also Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). In this situation, the State must choose between not using the statement at defendants' joint trial, deleting from the one defendant's out-of-court statement all references to the other defendant(s) or trying the defendants separately. G.S. 15A-927(c).

In this case neither defendant made an extrajudicial statement or confession that was introduced at trial, and neither defendant has shown any prejudice stemming from the joint trial. The question whether to try defendants together or separately is directed to the sound discretion of the trial court. Its ruling will not be disturbed on appeal unless the defendant can show the consolidation deprived him of a fair trial. See, e. g., State v. Smith, 291 N.C. 505, 231 S.E.2d 663 (1977). This assignment of error is overruled.

For many years defendant Turpin and the Romero children have been connected with the child welfare division of the San Francisco Department of Social Services. The defendants subpoenaed Ms. Lorraine Costellano Cocke personally from the San Francisco Department of Social Services and requested access to that agency's files through a Subpoena duces tecum. Ms. Cocke appeared in court with the records and documents on defendant Turpin and the Romero children; however, she was instructed by the San Francisco city attorney not to make them available to anyone unless and until the trial judge inspected them and ordered them released.

The defendants asked the trial judge to conduct an In camera inspection of the files and "to release such paper writings to the Defendant Turpin and the Defendant Crews for such purpose and such use as they may be in the defense of these two cases." The judge did examine the files, and he ordered that they not be released to either the defendants or the State. He then sealed and forwarded them to this Court for review of his ruling.

The defendants also made motions for pretrial discovery of files and reports concerning mental or physical examinations conducted on Lloyd and Raymond Romero. These documents were in the custody of the Blue Ridge Community Mental Health Center in Asheville and the Madison County Department of Social Services. The trial judge also inspected these documents In camera. He allowed defendants' motions in part and denied them in part, ordering that copies of certain reports be furnished to both the defense and the State. The records were sent to this Court for our use in reviewing this matter.

The defendants claim the trial court erred in denying them access to all the requested material. We do not agree.

None of the documents and reports in question were within the prosecutor's possession, custody or control; therefore, they were not subject to discovery as a matter of right under G.S. 15A-903(d) ¹ or G.S. 15A-903(e). ² "Within the possession, custody, or control of the State" as used in these provisions means within the possession, custody or control of the prosecutor or those working in conjunction with him and his office. This interpretation is necessary when one considers that in this case the district attorney had neither the authority nor the power to release the requested material to the defendants and, in fact, he was also denied access to the information.

Almost all the material asked for was privileged under G.S. 8-53.3 ³ had the Romero children been given the chance to assert the privilege. It consisted primarily of reports and test results on the children by practicing psychologists. The trial judge examined the documents in detail and refused to release them to either the defendants or the State. Under the proviso in G.S. 8-53.3, the judge clearly could have compelled disclosure "if in his opinion the same is necessary to a proper administration of justice." His refusal to do so in this case was not error.

Furthermore, the defendants admit that the trial court issued them copies of some of the requested matter; however, the record does not inform this Court which material they were given. This information should have been included in the record as it was necessary for our understanding of defendants' assignment of error. See Rule 9(b)(3) of North Carolina Rules of Appellate Procedure.

Defendant Turpin argues that the guns seized from Tommy Norton's truck in Colorado should have been excluded from evidence at trial because the search of that vehicle was unconstitutional. This contention is without merit.

At defendant Turpin's request, the trial judge conducted a Voir dire concerning the search in question. He found that the search was lawful and reasonable and that neither defendant had standing to object to the search. We agree with both conclusions; however, we need only discuss the standing question.

The vehicle that was searched in this case belonged to neither defendant, and in fact neither defendant was present at the time of the search. Defendant Crews was in Tennessee with his family and Debbie Romero. Defendant Turpin had fled from the vehicle after being chased by Colorado authorities; he was somewhere at large at the time. The search was conducted after Mrs. Alemany and Lloyd and Raymond Romero had been arrested and after they had told the officers there were several weapons in the truck.

The United States Supreme Court recently addressed the issue of standing to object to a search in Rakas v. Illinois, --- U.S. ----, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978). The Court again emphasized that " 'wrongful' presence at the scene of a search would not enable a defendant to object to the legality of the search," and it noted that some lower courts have erroneously allowed a person in a stolen automobile to object to the search of that vehicle. Id. at ----, 99 S.Ct. at 429 n. 9, 58 L.Ed.2d at 399-400 n. 9. The Rakas decision made it clear that a person can object to a search only if he has "a legitimate expectation of privacy in the invaded place," which means, Inter alia, an expectation of privacy that society will recognize. Id. at ----, 99 S.Ct. at 430-31 n. 12, 58 L.Ed.2d at 401 n. 12. Previous possession of a stolen vehicle cannot constitute the basis for a legitimate expectation of privacy; therefore, this assignment of error is overruled.

The defendants' trial was set for 24 October 1977. On 10 October 1977 Judge Thornburg allowed defendant Turpin's request for a pretrial psychiatric examination. On 19 October 1977 defendant Crews made a motion for a pretrial psychiatric examination; however, the only reason stated for the request was that the defendant was charged with a capital crime. The motion was denied because "the Court finds nothing in...