State v. Howard, 8120SC842

• Decision Date: 16 February 1982
• Docket Number: No. 8120SC842,8120SC842
• Citation: 286 S.E.2d 853,56 N.C.App. 41
• Court: North Carolina Court of Appeals
• Parties: STATE of North Carolina v. Gregory Gordon HOWARD and Deborah Patton Jones.

Page 853

286 S.E.2d 853

56 N.C.App. 41

STATE of North Carolina v. Gregory Gordon HOWARD and Deborah Patton Jones.

No. 8120SC842.

Court of Appeals of North Carolina.

Feb. 16, 1982.

Atty. Gen. Rufus L. Edmisten by Sp. Deputy Atty. Gen. Jo Anne Sanford, Raleigh, for the State.

George Daly, Charlotte, for defendants-appellants.

HEDRICK, Judge.

Defendants' first three assignments of error are directed to the court's order admitting into evidence certain items obtained pursuant to police searches of a house and an automobile. Defendants argue that this evidence should have been suppressed in that it was obtained as a result of an unconstitutional search and seizure to which both defendant Jones and defendant Howard had standing to object.

The findings and conclusions of a trial judge, upon voir dire to determine the admissibility of evidence, are not subject to reversal on appeal if they are supported by competent evidence. State v. McKeithan, 293 N.C. 722, 239 S.E.2d 254 (1977); State v. Hawley, 54 N.C.App. 293, 283 S.E.2d 387 (1981). In the present case, the trial judge conducted a voir dire at which the evidence tended to show the following:

On 13 December 1980, law enforcement officers went to defendant Jones' residence at 104 Hillcrest Circle in Indian Trail, North Carolina. Defendant Jones spoke with the officers and appeared coherent and to understand what was being said to her by the officers. She told the officers that the house at 104 Hillcrest Circle was her home. The house in fact was her home. One officer asked defendant Jones for permission to search her house and she voluntarily gave the officer such permission and executed a consent to search form. The officers used no promises, threats, coercion, or undue influence on defendant Jones in procuring her permission to search her residence. Defendant Jones said that a 1972 Pontiac in front of her house was her car. A woman named Deborah Jones, who fit defendant Jones' description had previously been seen driving the 1972 Pontiac. She gave the officer permission to search the car and indicated that permission by placing her initials on an additional notation on the consent to search form. The consent to search form signed by defendant Jones authorized the officers to remove any stolen property, contraband, or any other materials or evidence of a crime found during the search. After defendant Jones gave such authorization, the officers conducted a search of her home and seized items of stolen property found therein. The officers also searched defendant Jones' automobile and seized two sets of nail pullers found therein and identified by defendant Howard as belonging to him.

At the conclusion of the voir dire, the trial judge made findings of fact consistent with and supported by the evidence recounted, and this Court is bound by such findings of fact.

Also at the conclusion of voir dire, the trial judge concluded as a matter of law that the consent to search the house and vehicle was lawfully obtained and ordered that the evidence seized as a result of the search be admitted into evidence. A person may consent to a search of premises he or she jointly uses or occupies with another, and evidence found pursuant to such a search may constitutionally be used against that other if the person giving consent to the search has rights of use or occupation at least equal to those of the other. State v. Melvin, 32 N.C.App. 772, 233 S.E.2d 636 (1977); see also State v. McNeill, 33 N.C.App. 317, 235 S.E.2d 274 (1977). Furthermore, the statutory law in North Carolina allows a law enforcement officer to conduct a search and make seizures if voluntary consent is given by a person who by ownership or otherwise is reasonably apparently entitled to give or withhold consent to a search of premises. G.S. §§ 15A-221-222; State v. Reagan, 35 N.C.App. 140, 240 S.E.2d 805 (1978). A seizure of an item is also constitutionally permissible if the officer making the seizure has probable cause to believe that the object seized constitutes contraband or evidence of a crime. State v. Beaver, 37 N.C.App. 513, 246 S.E.2d 535 (1978). In the present case, evidence was presented and findings of fact consistent therewith were made that defendant Jones was a person with extensive use and control of the premises searched and the items seized, that she voluntarily gave consent to a search of the premises and to a seizure of such items, and that the items seized were known to be stolen property and evidence of a crime. The evidence adduced at voir dire therefore supported the court's critical findings of fact, which in turn support the order admitting the seized items into evidence. Even if defendant Howard had standing to object to an improper search and seizure of the premises and vehicle in the present case, such standing is unavailing where, as here, we uphold the trial court's ruling that the search and seizure were in all respects proper. See United States v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974); United States v. Sumlin, 567 F.2d 684 (6th Cir. 1977), cert. denied 435 U.S. 932, 98 S.Ct. 1507, 55 L.Ed.2d 529 (1978). Defendants' first three assignments of error are without merit.

Defendants next assign as error the admission into evidence of testimony by Officer Randy Cox that defendant Jones stated to him "that she had a good idea that the items were stolen." Defendants argue that the admission of this testimony and the failure of defendant Jones to testify unconstitutionally prejudiced defendant Howard in that he was deprived of his right to confront a witness against him; defendant Howard argues that defendant Jones' statement implicated him in that it contradicted his testimony that he had purchased the items.

Under Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476, it is a clear violation of a defendant's constitutional rights in a joint trial to offer the confession of a co-defendant who does not testify where the confession incriminates and implicates the defendant not making the statement. In this instance, the defendant who is incriminated and implicated by the statement has been denied his Sixth Amendment right to confront and cross-examine the co-defendant making the statement.

State v. Johnson, 29 N.C.App. 534, 536-37, 225 S.E.2d 113, 115 (1976). "The sine qua non for application of Bruton is that the party claiming incrimination without confrontation at lease be incriminated." State v. Jones, 280 N.C. 322, 340, 185 S.E.2d 858, 869 (1972).

The statement by defendant Jones in the present case did not make reference to defendant Howard. The portion of her statement suggesting that the goods were stolen does not suggest that they were stolen by defendant Howard and further, is not even logically inconsistent with his testimony that he purchased the goods; defendant Howard may have purchased goods which, unbeknownst to him, were stolen and known to be stolen by defendant Jones. Defendant Jones' statement in no way incriminated defendant Howard or contradicted his testimony. This assignment of error has no merit.

By their next assignment of error, defendants argue that the joint trial was tainted by an "obvious conflict of interest between Defendants Howard and Jones," and that each defendant received ineffective assistance of counsel.

The contention of defendant Howard is that defendants' trial counsel consciously pursued the advantage of defendant Jones, to the disadvantage and prejudice of defendant Howard. Defendant Howard points out the following as indicative of a prejudicial conflict of interest depriving him of effective assistance of counsel: (1) counsel's failure to request limiting instructions after testimony was given that defendant Jones...