State v. Horne

• Decision Date: 07 December 1982
• Docket Number: No. 8225SC214,8225SC214
• Citation: 59 N.C.App. 576,297 S.E.2d 788
• Parties: STATE of North Carolina v. Phyllis HORNE.
• Court: North Carolina Court of Appeals

Page 788

297 S.E.2d 788

59 N.C.App. 576

STATE of North Carolina v. Phyllis HORNE.

No. 8225SC214.

Court of Appeals of North Carolina.

Dec. 7, 1982.

Atty. Gen. Rufus L. Edmisten by Associate Atty. Gen. John W. Lassiter, Raleigh, for the State.

Tuttle & Thomas by Bryce O. Thomas, Jr., Granite Falls, for defendant-appellant.

MORRIS, Chief Judge.

On the first day of trial defendant filed a motion to suppress evidence seized pursuant to a search warrant issued two days after the alleged robberies. In her motion defendant alleged as grounds for suppression that the warrant was void and unconstitutional on its face and that no probable cause was established for its issuance. The trial court denied the motion, and defendant has assigned error. She asserts in her brief that the evidence seized should be suppressed because the warrant was not based on the personal observations of the applicant for the warrant, but was instead based on the observations of the Vineses whose reliability and trustworthiness were not demonstrated. Defendant further alleges that there was nothing to indicate that the items sought would be found in the place described. We find no merit to this assignment of error.

In his application for the search warrant Detective Richard Matheson attached a detailed list of property sought and specifically described the residence to be searched. Detective Matheson then swore to the following grounds upon which he believed the evidence might be found in the described residence:

That on July 13, 1981 the residence of Wayne Vines, located at Rt. 10, Box 398; Lenoir, N.C. was broken into and the items listed in the attached list were taken by force. During this occurrence, Mr. Wayne Vines and other occupants of the house were victims of the Assault with Deadly Weapon. A report was filed with the Caldwell County Sheriff's Dept. ... and the applicant was assigned as the investigating officer. On this same date this applicant interviewed two of the victims, Wayne Vines and his wife, Donna Vines. The Vines advised this applicant that they were both acquainted with one of the perpetrators; same being one Phyllis Stout, aka- Red, and they both have personal knowledge of Stout living in Harmony, N.C. and working in Mocksville, N.C.

Further, that this applicant contacted Lt. Cotton Edwards of the Mocksville Police Department and was advised that he was familiar with Phyllis Stout and that she did work in Mocksville, N.C.

Further, that this applicant contacted S.E. Wallace of the Iredell County Sheriff's Department and was advised by Wallace that Phyllis Stout does re(side) at the above described residence.

That the property described herein was last seen in the possession of Phyllis Stout by the Vines as Stout left their residence on the night of July 13, 1981. Also that approximately $2,500.00 was taken from the Vines residence.

We find that this application for the search warrant clearly satisfies the definition of probable cause as defined by statute and interpreted by our courts. Judge Parker summarized these well-established principles in State v. Dailey, 33 N.C.App. 600, 235 S.E.2d 917, appeal dismissed and disc. review denied, 293 N.C. 362, 237 S.E.2d 849 (1977).

Probable cause, as that expression is used in the Fourth Amendment and in our statutes, G.S. 15A-244 and 245, "means a reasonable ground to believe that the proposed search will reveal the presence upon the premises to be searched of the objects sought and that those objects will aid in the apprehension or conviction of the offender." State v. Campbell, 282 N.C. 125, 128-29, 191 S.E.2d 752, 755 (1972). Probable cause does not deal in certainties but deals rather in probabilities "which are factual and practical considerations of everyday life upon which reasonable and prudent men may act." State v. Spillars, 280 N.C. 341, 350, 185 S.E.2d 881, 887 (1972). Moreover, a valid search warrant may be issued on the basis of an affidavit setting forth information which may not be competent as evidence in a criminal trial. State v. Vestal, 278 N.C. 561, 180 S.E.2d 755 (1971). Thus, "[t]he affidavit may be based on hearsay information and need not reflect the direct personal observations of the affiant; but the affidavit in such case must contain some of the underlying circumstances from which the affiant's informer concluded that the articles sought were where the informer claimed they were, and some of the underlying circumstances from which the affiant concluded that the informer, whose identity need not be disclosed, was credible and his information reliable." State v. Campbell, supra at 129. In this connection, the police officer making the affidavit may do so in reliance upon information reported to him by other officers in the performance of their duties. United States v. Ventresca, 380 U.S. 102, 13 L.Ed.2d 684, 85 S.Ct. 741 (1965); State v. Harvey, 281 N.C. 1, 187 S.E.2d 706 (1972); State v. Vestal, supra; State v. Banks, 250 N.C. 728, 110 S.E.2d 322 (1959).

Id. at 602, 235 S.E.2d at 919. In the affidavit before us Detective Matheson relied upon information reported to him by other officers and the named victims of the alleged robberies. We hold that the facts stated in the application support a finding of probable cause.

Defendant has also assigned error to the admission of "certain inadmissible and prejudicial evidence" and to the non- admission of "certain proper and significant evidence." Under this assignment of error defendant has noted exceptions to testimony regarding statements made by Lawrence and Hanks during the alleged robberies. The majority of these exceptions refer to Mae Vines' testimony that she heard Lawrence tell defendant that she had hired him and Hanks to do "this job" and they were going "to do it right." Wayne Vines testified that Lawrence hit him and then told him that he had "ripped off" his girlfriend. Defendant alleges that these statements were hearsay and therefore inadmissible. The court allowed the statements of Lawrence into evidence on the basis that they were all made in the presence of defendant and were competent. We find no error in the admission of this evidence. The statements of Lawrence were relevant to the charges of armed robbery, since they appeared to be part of the res gestae. To be part of the res gestae, a declaration must meet three qualifying conditions: The declaration must be of a spontaneous character, it must be contemporaneous with the transaction at issue or so closely connected as to be practically inseparable, and it must possess some relevancy to the facts sought to be proved. Coley v. Phillips, 224 N.C. 618, 31 S.E.2d 757 (1944). The statements of Lawrence were also relevant to establish the intent of defendant and her cohorts. Intent was directly in issue since the crimes charged require a showing of felonious intent. See State v. McQueen, 295 N.C. 96, 244 S.E.2d 414 (1978).

This Court also finds no error in the disallowance of two questions posed to defendant. An examination of the record reveals that the court sustained objections to these questions because they were leading. Traditionally the judge's ruling as to the admissibility of leading questions has been reversible only for abuse of discretion. No such abuse was shown here. 1 Brandis on N.C. Evidence § 31 (2d Rev.Ed.1982).

Defendant has further excepted to questions posed to her on cross-examination concerning threats made to her by her supplier of marijuana after the marijuana was allegedly switched. She argues that these questions constitute impermissible forms of impeachment. The record on appeal shows that this line of questioning was initially opened by defense counsel during his examination of defendant. Furthermore, the questions were admissible to rebut defendant's prior...