State v. Jones

• Decision Date: 03 November 1981
• Docket Number: No. 31,31
• Citation: 283 S.E.2d 483,304 N.C. 323
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Anthony Dwayne JONES.

Page 483

283 S.E.2d 483

304 N.C. 323

STATE of North Carolina v. Anthony Dwayne JONES.

No. 31.

Supreme Court of North Carolina.

Nov. 3, 1981.

Rufus L. Edmisten, Atty. Gen. by Guy A. Hamlin, Asst. Atty. Gen., Raleigh, for the State.

James R. Parish, Asst. Public Defender, Fayetteville, for defendant-appellant.

HUSKINS, Justice:

Defendant's first three assignments of error are based on the search of his car and the introduction into evidence of a shotgun seized during that search. These assignments will be considered together.

Defendant contends the shotgun was inadmissible on grounds it was seized in violation of the Fourth Amendment to the United States Constitution. The Fourth Amendment, as one of the original eight substantive amendments forming the Bill of Rights, does not limit any power or prohibit any action of the State of North Carolina, or any of its agents. Barron v. Baltimore, 32 U.S. (7 Pet.) 243, 8 L.Ed. 672 (1833). The assignments of error more properly pose an alleged violation of the due process clause of the Fourteenth Amendment, which does prohibit states from participating in searches and seizures which violate the Fourth Amendment. Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961).

The initial question is whether the Fourth Amendment, as incorporated by the due process clause of the Fourteenth Amendment, applies to the actions of Sergeant Welch in instructing defendant to halt and step back from the Toyota with his hands in plain view. Defendant was not free to leave when Sergeant Welch directed him to stop. "[W]henever a police officer accosts an individual and restrains his freedom to walk away, he has 'seized' that person." Terry v. Ohio, 392 U.S. 1, 16, 88 S.Ct. 1868, 1877, 20 L.Ed.2d 889, 903 (1968). We hold the actions of Sergeant Welch constituted a seizure within the ambit of the Fourth Amendment.

The Fourth Amendment requires seizures to be reasonable. United States v. Brignoni-Ponce, 422 U.S. 873, 878, 95 S.Ct. 2574, 2578, 45 L.Ed.2d 607, 614 (1975). The reasonableness of seizures less intrusive than traditional arrests depends on a balance between the public interest and the individual's right to personal security. Pennsylvania v. Mimms, 434 U.S. 106, 109, 98 S.Ct. 330, 332, 54 L.Ed.2d 331, 336 (1977). Brief detention for questioning need not be based on probable cause to believe an individual is involved in criminal activity--the standard for a traditional arrest. Instead, the detention may be grounded on "a reasonable suspicion, based on objective facts, that the individual is involved in criminal activity." Brown v. Texas, 443 U.S. 47, 51, 99 S.Ct. 2637, 2641, 61 L.Ed.2d 357, 362 (1979).

Sergeant Welch's initial stopping of the defendant satisfied this constitutional requisite. His action was based on several factors. He observed an unoccupied vehicle parked in the travel lane of a public road at 11:45 p. m. with its lights off and motor running. While turning to investigate, he noticed a man running from a closed business toward the car. The man opened the car door and placed something on the back seat. These objective facts support a reasonable suspicion that the individual was involved in criminal activity. Where the totality of circumstances affords an officer reasonable grounds to believe criminal activity is afoot, he may temporarily detain a suspect. State v. Buie, 297 N.C. 159, 162, 254 S.E.2d 26, 28, cert. denied, 444 U.S. 971, 100 S.Ct. 464, 62 L.Ed.2d 386 (1979); State v. Streeter, 283 N.C. 203, 210, 195 S.E.2d 502, 507 (1973). See State v. Allen, 282 N.C. 503, 194 S.E.2d 9 (1973), for detention of suspects based on grounds similar to those in the case sub judice. Therefore, Sergeant Welch did not violate defendant's constitutional rights by instructing him to halt and step away from his car.

Since our analysis is based on the initial detention of defendant and whether there was a reasonable suspicion he was involved in criminal activity, we find it unnecessary to determine whether Sergeant Welch had probable cause to arrest him. We therefore have no occasion to consider whether Sergeant Welch searched the interior of defendant's vehicle incident to a lawful arrest within the scope of the recent decision of New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981).

After Sergeant Welch approached defendant's car, he shined his flashlight into the back seat. He observed the sawed-off butt of a shotgun protruding from a brown paper bag wedged between the seat cushions. Possession of such a weapon is unlawful. G.S. 14-288.8(c)(3). The shotgun thus constituted contraband, which may be seized by an officer who has observed it in plain view from a vantage point he has legally obtained. Harris v. United States, 390 U.S. 234, 236, 88 S.Ct. 992, 993, 19 L.Ed.2d 1067, 1069 (1968); State v. Smith, 289 N.C. 143, 150, 221 S.E.2d 247, 252 (1976). Since Sergeant Welch had the authority to detain defendant temporarily, he violated no constitutional rights in seizing an illegal weapon he observed upon approaching defendant.

The trial court's conclusions of law were thus supported by the evidence, and the court did not err in denying defendant's motion to suppress the shotgun.

Defendant abandoned his fourth and fifth assignments of error.

Defendant's sixth and seventh assignments are based on the failure of the trial court to submit second degree rape and second degree sexual offense as permissible verdicts. These issues will be consolidated for discussion.

The elements of first degree rape as applicable to this case are as follows: (1) vaginal intercourse, (2) against the will and without the consent of the victim, (3) using force sufficient to overcome any resistance of the victim, (4) effected through the employment or display of a dangerous or deadly weapon. G.S. 14-27.2(a)(2)a. Second degree rape includes the first three of these elements, but there is no requirement of use of a dangerous or deadly weapon. G.S. 14-27.3(a)(1). The elements of first degree sexual offense are (1) a sexual act, (2) against the will and without the consent of the victim, (3) using force sufficient to overcome any resistance of the victim, (4) effected through the employment or display of a dangerous or deadly weapon. G.S. 14-27.4(a)(2)a. Second degree sexual offense includes the first three of these elements, but there is no requirement of use of a dangerous or deadly weapon. G.S. 14-27.5(a)(1).

Defendant contends that since his witness John Danny Sparks testified that he had defendant's shotgun while defendant was with Ms. Whittaker, the court should have given an instruction on second degree rape and second degree sexual offense. This argument is based on State v. Drumgold, 297 N.C. 267, 254 S.E.2d 531 (1979). Defendant's reliance on Drumgold is misplaced.

In Drumgold, we granted a new trial because the trial court had erroneously failed to instruct the jury regarding second degree rape. Drumgold had presented evidence that he did not have a gun on the day in question. This contradicted the evidence of the State's witness that he used a pistol to overcome her resistance. We ruled that although a "trial court need not submit lesser degrees of a crime to the jury 'when the State's evidence is positive as to each and every element of the crime charged and there is no conflicting evidence relating to any element of the charged crime,' " the lesser included offense should have been submitted because there was conflicting evidence on an essential element of the crime charged. Id. at 271, 254 S.E.2d at 533.

An implicit underlying factor in the decision in Drumgold was that the lesser included offense was supported by the evidence. The defendant had "threatened to kill" the victim, and "she had what appeared to be an abrasion on the left side of her face." Id. at 271-72, 254 S.E.2d at 533. From this evidence the jury could have inferred the victim submitted to Drumgold because of fear or duress. Submission to sexual intercourse...