State v. Curry

• Decision Date: 17 December 1975
• Docket Number: No. 37,37
• Parties: STATE of North Carolina v. Roger Dale CURRY et al.
• Court: North Carolina Supreme Court

Page 545

220 S.E.2d 545

288 N.C. 660

STATE of North Carolina v. Roger Dale CURRY et al.

No. 37.

Supreme Court of North Carolina.

Dec. 17, 1975.

Atty. Gen. Rufus L. Edmisten by Associate Atty. Robert W. Kaylor, Raleigh, for the State.

Eubanks, Villegas & Reavis by Larry L. Eubanks and Samuel J. Villegas, Winston-Salem, for defendant Curry.

Michael G. Plumides, Charlotte, for defendants Gunter, R. Johnson, A. Johnson and Bowles.

James E. Walker, Charlotte, for defendant Bowles.

Jerry W. Whitley, Charlotte, for defendant Stevens.

LAKE, Justice.

There was obviously no error in the denial of the defendants' motions to dismiss the charges of first degree burglary and robbery with a firearm. It is elementary that in the consideration of such a motion the court must treat the evidence favorable to the State as true, view it in the light most favorable to the State and give the State the benefit of every inference in its favor reasonably to be drawn therefrom. State v. Holton,284 N.C. 391, 200 S.E.2d 612; State v. Rankin, 284 N.C. 219, 200 S.E.2d 182; State v. Everette, 284 N.C. 81, 199 S.E.2d 462. Evidence of the defendants relating to matters of defense, or in conflict with the evidence of the State, is not considered upon such a motion. State v. Carthens, 284 N.C. 111, 199 S.E.2d 456; State v. Everette, supra; State v. Arnold, 284 N.C. 41, 199 S.E.2d 423; State v. Peele, 281 N.C. 253, 188 S.E.2d 326. The court does, however, take into consideration all of the admitted evidence favorable to the State, whether such evidence be competent or incompetent. State v. Holton, supra; State v. Accor and State v. Moore,277 N.C. 65, 175 S.E.2d 583; State v. Virgil, 263 N.C. 73, 138 S.E.2d 777. Contradictions and discrepancies, even in the State's evidence, do not warrant the allowance of a motion to dismiss, these being for the jury to resolve. State v. Holton, supra; State v. Everette, supra; State v. Murphy, 280 N.C. 1, 184 S.E.2d 845; State v. Allred, 279 N.C. 398, 183 S.E.2d 553.

If, so considered, the evidence is sufficient to support a finding of every element of the crime charged (or of any lesser included offense if the motion is directed to the entire bill of indictment) and that the defendant was the perpetrator, or one of the perpetrators, of the offense, the motion to dismiss should be denied. State v. Hoffman, 281 N.C. 727, 190 S.E.2d 842; State v. Allred, supra; State v. Bruton, 264 N.C. 488, 142 S.E.2d 169; State v. Virgil, supra. When the evidence, so considered, is sufficient to support a finding that two or more persons acted together, aiding and abetting each other, to commit the offense charged and that such offense was actually committed by one or more persons in such group, all being present, the evidence is sufficient to support a verdict of guilty as to all members of the group and the motion to dismiss is properly denied as to each such defendant. State v. Rankin, supra; State v. Peele, supra; State v. Westbrook, 279 N.C. 18, 181 S.E.2d 572, vacated as to death sentence only, 408 U.S. 939, 92 S.Ct. 2873, 33 L.Ed.2d 761; State v. Bruton, supra; State v. Taft, 256 N.C. 441, 124 S.E.2d 169.

So considered, the evidence of the State in the present case is ample to support a finding of each element of the offense of burglary in the first degree, each element of the offense of robbery with a firearm and the presence and participation in each such offense of each of the six defendants. Consequently, the motions to dismiss were properly denied.

There is no error in the admission in evidence of the weapons taken by the officers from the Ronald Johnson house or in the admission in evidence of the articles taken by the officers from the cellar of the shed. In each instance the contention of the defendants is that these articles were the products of an illegal search and seizure and, therefore, could not properly be admitted in evidence.

As to the articles taken from the cellar of the shed, it is sufficient to note that none of the defendants has standing to raise the question of unlawful search and seizure. The shed, a building apparently not occupied by anyone at the time of the discovery and seizure of the articles, was not on or a part of the premises occupied by Gunter or Ronald Johnson; none of the defendants was then in or about the shed; and no defendant asserted any ownership or possessory interest therein. Possession of the articles seized at the time of the search and seizure is not an essential element of either of the offenses with which they are charged. Brown v. United States, 411 U.S. 223, 93 S.Ct. 1565, 36 L.Ed.2d 208.

Ronald Johnson testified: 'The shed is not on my property. I know nothing about the shed. I do not have any of my belongings down there or put any of my belongings in there or anything like it.' Gunter testified: 'The shed is really like a house. A man tried to rent it. It's got its own yard. It is not on my property. It has its own yard lines. There is (sic) a lot of big bushes and stuff and a lot of ground separating the shed from the Johnson property. The distance between my house and the shed is 100 to 130 feet. There are woods between my house and the shed. The words are fairly dense.' As Chief Justice Parker, speaking for the Court, said in State v. Craddock, 272 N.C. 160, 158 S.E.2d 25: 'The immunity to unreasonable searches and seizures is a privilege personal to those whose rights thereunder have been infringed. They alone may invoke it against illegal searches and seizures.' In State v. Eppley, 282 N.C. 249, 192 S.E.2d 441, we said: 'Neither the Constitution of the United States nor the law of this State confers upon a mere intruder into the house of another the right of the owner to object to a search of it and so enable him to take possession of and use the house of another as a sanctuary within which to secrete stolen property. Such intruder has no right to privacy within such house. Consequently, he has no standing to object to the introduction of the fruits of a search of the house into evidence in his prosecution for the larceny thereof.' See also: Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697; State v. Gordon, 287 N.C. 118, 213 S.E.2d 708; State v. Harrison, 239 N.C. 659, 80 S.E.2d 481; Strong, N.C. Index 2d, Criminal Law, § 84; Annot., 78 A.L.R.2d 246; Annot., 4 L.Ed.2d 1999, 2012.

Furthermore, when the defendants objected to testimony designed to authenticate a photograph of the articles so found in the cellar of the shed, the court properly conducted a voir dire. At its conclusion the court found the following facts which findings (here summarized) are supported by evidence introduced upon the voir dire or theretofore received in the presence of the jury:

The officers went to the vicinity of the Gunter house carrying warrants for the arrest of Gunter, Stevens and Bowles upon the charges of first degree burglary and robbery with a firearm. Upon their arrival Gunter came from the house armed with a pistol, which he dropped upon orders from the officers. Two other persons, later charged with the same crimes, in response to calls from Gunter at the request of the officers, emerged from the Gunter house and another house nearby (the Johnson house). Under the circumstances, the officers had probable cause to believe that the defendant Bowles and Stevens had probably concealed themselves in the vicinity. The officer who discovered the articles in the cellar of the shed was at a place where he had a right and a duty to be. The articles in question were in his plain view while he was properly searching for Bowles and Stevens.

Upon these findings the court concluded that the photograph of the articles and the articles themselves were admissible in evidence. The findings of fact, being supported by the evidence in the record, are conclusive on appeal. State v. Harris, 279 N.C. 307, 182 S.E.2d 364; State v. Pike,273 N.C. 102, 159 S.E.2d 334; State v. Gray, 268 N.C. 69, 150 S.E.2d 1. As Justice Sharp, now Chief Justice, speaking for the Court, said in State v. Howard, 274 N.C. 186, 162 S.E.2d 495: 'Neither the Fourth Amendment nor G.S. § 15--27 is applicable where no search is made. The law does not prohibit a seizure without a (search) warrant by an officer in the discharge of his official duties where the article seized is in plain view.' Accord: State v. Harvey, 281 N.C. 1, 187 S.E.2d 706; State v. Virgil, 276 N.C. 217, 172 S.E.2d 28.

As to the weapons removed by the officers from the Ronald Johnson house, it is sufficient to note that the objection on the ground of unreasonable search and seizure was not made in due time. During the testimony of Francis, concerning the breaking and entering of his house by the defendants and their beating of him, he was shown these weapons, marked for identification as the State's Exhibits 2, 11, 12 and 13, and he identified each as having been used by one of the defendants in beating him. They were then offered in evidence by the State and admitted over the defendants' objections. The prosecuting attorney then requested permission 'to show the jury the weapons, State's Exhibits #2, #3, #11, #12 and #13.' The defendants' objections thereto were overruled. When asked by the court as to the basis of objection to Francis' being asked, 'Where have you seen that before?' the defendants' counsel stated: 'I don't know how he can tie any of these weapons in. I've objected all along about their being the ones, unless he got them after the incident.' Another of defendants' counsel said: 'Your Honor, would the court see fit before introducing any of these weapons into evidence letting us cross examine him about he knows (sic) they are the same weapons, if he does know, and that sort of thing.' Until long after these weapons were so admitted in evidence, there was no suggestion whatever to the trial court that the defendants, or any of them, contended the weapons were fruit of an unlawful search and...