State v. Horner

• Decision Date: 02 February 1984
• Docket Number: No. 189A83,189A83
• Citation: 310 N.C. 274,311 S.E.2d 281
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. James Harden HORNER.

Page 281

311 S.E.2d 281

310 N.C. 274

STATE of North Carolina v. James Harden HORNER.

No. 189A83.

Supreme Court of North Carolina.

Feb. 2, 1984.

Rufus L. Edmisten, Atty. Gen., by Myron C. Banks, Sp. Deputy Atty. Gen., Raleigh, for the State.

Adam Stein, Appellate Defender, by Lorinzo L. Joyner, Asst. Appellate Defender, Raleigh, for defendant.

MARTIN, Justice.

Defendant first argues that the trial court should have allowed his motion for change of venue. Defendant's motion was based upon prejudicial pretrial publicity in Chatham County. In support of this motion, the defendant "handed up" two newspaper articles, one from the Chatham Record of Thursday, 23 September 1982, and one from the Chatham County Herald of 9 September 1982. Neither of the articles was offered into evidence nor is either before us as an exhibit. The trial judge filed a written order denying defendant's motion. In so doing he found that the articles referred to defendant's escape from custody and not to the rape charges. The newspapers are weekly publications. Defendant's trial was held the week of 3 January 1983, about three and one-half months after these publications appeared. The burden is on defendant to show prejudicial error in the denial of the motion for change of venue. State v. Dobbins, 306 N.C. 342, 293 S.E.2d 162 (1982); State v. Boykin, 291 N.C. 264, 229 S.E.2d 914 (1976). This he has failed to do.

The trial court denied defendant's motion for a continuance, and defendant insists that this constitutes prejudicial error. We do not agree. The crimes were allegedly committed on 20 or 21 August 1982. Defendant's counsel was appointed 30 August 1982. The bills of indictment were returned on 13 September 1982 and 29 November 1982. The defendant escaped from the Chatham County jail on 16 September 1982 and was recaptured 5 November 1982. Defendant filed two motions for discovery. The first was in November, and defendant concedes it was complied with by the state. The second motion was filed on Wednesday, 29 December 1982, five days before the trial date. The motion to continue was filed at the same time.

The trial court held that the state had complied with the discovery motions, and defendant did not except to this ruling. He now contends that he needed additional time in which to review the discovery materials.

A motion for continuance is ordinarily addressed to the discretion of the trial judge, and his ruling thereon is not subject to review absent abuse of discretion. State v. Stinson, 267 N.C. 661, 148 S.E.2d 593 (1966). However, when the motion is based upon a constitutional right, the issue is a reviewable question of law. State v. Mason, 295 N.C. 584, 248 S.E.2d 241 (1978), cert. denied, 440 U.S. 984, 99 S.Ct. 1797, 60 L.Ed.2d 246 (1979). Here, defendant's constitutional right to effective assistance of counsel is raised by the motion on the theory that defendant's counsel must have a reasonable time to investigate, prepare, and present defendant's case. Because no set length of time is guaranteed, each case must be decided upon its own circumstances. Continuances should not be granted unless the reasons therefor are fully established. Therefore, a motion for continuance should be supported by an affidavit showing sufficient grounds. State v. Stepney, 280 N.C. 306, 185 S.E.2d 844 (1972); State v. Gibson, 229 N.C. 497, 50 S.E.2d 520 (1948). Defendant failed to file such affidavit.

While defendant told the trial court in a general way that he had not had sufficient time to examine the discovery material, he did not give specific reasons to support the assertion. Furthermore, defendant failed to introduce into evidence the discovery materials he allegedly needed additional time to review. Absent these materials, the reviewing court is left with only the naked assertion of defendant that he required additional time to review the materials. Defendant has failed to present us with adequate and specific circumstances of the case to support his claim of constitutional violation. State v. Harrill, 289 N.C. 186, 221 S.E.2d 325 (1976). (Defendant failed to include in evidence the autopsy report which he relied upon as requiring additional time to review.) Defendant states in his brief only that the materials were the results of laboratory tests performed in September 1982 and a medical report from Dorothea Dix Hospital on defendant's competency to proceed to trial. This is insufficient to support a conclusion that as a matter of law defendant's constitutional rights were violated. This assignment of error is overruled.

The trial court entered a written order denying defendant's motion to suppress several items of physical evidence that the state proposed to introduce. The written order was signed on 13 January 1983 and filed 18 January 1983. Defendant argues that the order is a nullity because it was entered "out of session, out of district and without defendant's consent." The record does not support the argument that the order was "entered" out of the district. It was filed with the Clerk of Superior Court of Chatham County, where the case was pending. If "entered" means "filed," the order was entered in the district. If "entered" means "signed," the record is silent on whether the judge was physically within the district when he signed the order.

In any event, these technicalities are not determinative of the issue. After hearing counsel's arguments on the motion in open court, the trial court decided it, then and there, in open court, during the session and within the judicial district. There were eight items in controversy in the motion to suppress: The trial court specifically held that the results of the nontestimonial order--a blood sample, head hair, pubic hair, and saliva--were admissible. Next, the trial court denied defendant's motion to suppress defendant's shirt and the tire from defendant's car. Last, the court denied defendant's motion to suppress the red rug and hair from it. Thus it appears from the transcript that the trial judge ruled on each of the objects of the motion to suppress at the time of trial. He later reduced his ruling to writing, signed the order, and filed it with the clerk.

The holding of this Court in State v. Boone, 310 N.C. 284, 311 S.E.2d 552 (1984), is not controlling on the issue. In Boone, the trial judge did not make a ruling on the motion to suppress in open court which was recorded as a part of the proceedings. The trial judge in Boone left the district and, after the session expired, wrote, signed, and mailed to the clerk the order denying the motion to suppress. Nothing in the trial transcript or record indicated that the trial judge had made his decision on the motion at any time in open court during the session. Here, the trial judge passed on each part of the motion to suppress in open court as it was argued.

State v. Richardson, 295 N.C. 309, 245 S.E.2d 754 (1978), controls the issue in the case at bar. In Richardson, the trial judge announced his ruling in open court on a motion to suppress and later filed his written order with findings of fact and conclusions of law. The time that the written order was made was not disclosed by the record. The Court held that defendant had failed to show any prejudice from the delay in the entry of the written order. See State v. Boone, supra; State v. Williams, 34 N.C.App. 386, 238 S.E.2d 195 (1977). Where the trial judge makes the determination after a hearing, as in this case, he must set forth in the record his findings of fact and conclusions of law. N.C.Gen.Stat. § 15A-977(d), (f) (1983). Findings and conclusions are required in order that there may be a meaningful appellate review of the decision. The statute does not require that the findings be made in writing at the time of the ruling. Effective appellate review is not thwarted by the subsequent order. Defendant has not shown prejudice from the failure of the trial court to make the findings at the time that the rulings were made during the suppression hearing. State v. Richardson, supra; N.C.Gen.Stat. § 15A-1443(a). The assignment of error is meritless.

In his brief, the defendant argues only that the red rug was erroneously allowed into evidence over his motion to suppress. He has, thereby, waived his objection to the remaining evidence which was the subject of his motion. N.C.R.App.P. 28(a).

Defendant argues with respect to the rug that the search warrant was defective and that his wife, Gilda, did not have authority to consent to a search of the trunk of his automobile. We are not required to consider the consent argument as we find the search warrant in this case to be valid.

The trial court held the warrant to be invalid because there was no showing of probable cause in the affidavit. The affidavit of detective Henry J. Shamburger stated that "one red rug used in an [sic] rape charge is in a white over red Dodge Charger two door vehicle with bucket seat and no wheel covers." Further, "[t]hat in the Statement of victim an [sic] red rug was taking [sic] from the trunk and used in the Commission of the Crime. And rug was placed back inside trunk of the Car."

On voir dire, the evidence showed that Gay Phillips, a female officer with the Chatham County Sheriff's Department, interviewed the rape victim at Duke Hospital. The child told her about defendant taking the rug out of the trunk of the car, raping her upon it, and replacing it in the trunk. Ms. Phillips repeated this statement to Officer Shamburger shortly thereafter, and he proceeded to use it in the affidavit. N.C.G.S. 15A-244(3) requires that the affidavit contain a statement of facts and circumstances establishing probable cause to believe that the items are in the place to be searched. This statement may be based upon hearsay evidence. The officer making the affidavit may do so in reliance upon information reported to him by other officers in the performance of their duties. State v. Vestal, 278...