State v. Jones, 57
| Decision Date | 14 July 1978 |
| Docket Number | No. 57,57 |
| Citation | 295 N.C. 345,245 S.E.2d 711 |
| Court | North Carolina Supreme Court |
| Parties | STATE of North Carolina v. Warren Harden JONES and Albert Joyner alias Thurman Boykin. |
George A. Goodwyn, Tarboro, for defendants appellants.
Defendants' assignments of error deserving discussion challenge (1) the admissibility of various items of evidence, on the ground that they were obtained through unconstitutional searches of an automobile in which defendants were apprehended; (2) the legality of their pre-trial confinement, on the ground that bail was unconstitutionally excessive; (3) the failure of the trial court to grant their pre-trial motion for discovery pursuant to G.S. 15A-902, et seq.; and (4) the failure of the trial court to allow their motion to dismiss their court-appointed attorneys. We find no merit in any of these assignments and no error in the trial.
The state's evidence tends to show that on 27 June 1976 Faye Medlin was working at J&J Quik Mart on Leggett Road in Edgecombe County. Just after she opened the store around 9:00 a. m., a man came in, purchased a pack of cigarettes, and then left. A few minutes later another man entered and bought cigarettes. Faye Medlin identified the two men at trial as defendant Jones and defendant Joyner (alias Thurman Boykin), respectively. Joyner was wearing sunglasses, a tan hat and a blue shirt. Mrs. Medlin turned around to get another carton of cigarettes and turned back to discover Joyner pointing a shotgun at her head. He told her it was a robbery and tied her hands behind her back as she lay face down on the floor. Her diamond ring and wedding band were then removed, and she heard the cash register emptied and a money bag taken from under the counter. Altogether $550 in cash and about $675 in checks and food stamps were taken.
About this time James Suggs arrived at the J&J Quik Mart. He saw in the "store yard" a 1968 dark green Plymouth with the hood "a different color from the rest of the car," a dent in the fender, and a white chrome strip down the side. As he entered the store, James Suggs saw Faye Medlin lying on the floor and Jones standing over her. Then Joyner, standing behind the door and holding a sawed-off shotgun, told him to "Hit the floor." He did so, whereupon defendants tied his hands with some cord, told him not to move, and left. Shortly thereafter another customer arrived and untied Faye Medlin and James Suggs. They immediately summoned the police.
Around 9:20 a. m. the same morning police observed a 1968 dark green Plymouth with a discolored hood, dented fender and white chrome strips, North Carolina license JWL 135, traveling south on Main Street in Tarboro. Having been alerted that a vehicle of this description was used in a robbery in Edgecombe County, they stopped the car and found it occupied by defendants. Patrolman Jimmy Lewis approached the passenger side, where Joyner was seated, and observed a shotgun protruding from beneath the seat. Lewis seized the shotgun, which proved to be a sawed-off gun. Jones and Joyner were then placed under arrest. They and the Plymouth automobile were taken by investigating policemen to the Tarboro Police Station. There a roll of money wrapped in rubber bands, amounting to $550, was taken from Joyner's left front pocket. A search of the vehicle at the station resulted in the discovery and seizure of a woman's pair of gloves, diamond ring, wedding band, sunglasses, tan hat, blue shirt, and twenty-four cartons of cigarettes.
Defendants offered evidence in an attempt to impeach the testimony of Faye Medlin and James Suggs on the basis of variances in their testimony at an earlier probable cause hearing, and tending to show that the Plymouth owned by defendant Jones did not have a chrome strip down the side. Ada Lee Boykin testified that Joyner regularly carried over $500 folded in his pocket before 27 June 1976.
Defendant Jones testified, denying any involvement in the robbery and any knowledge of the location of J&J Quik Mart. He stated that on 27 June 1976 he and Joyner traveled from Wilson to visit Ralph Nettles, who lives near Tarboro. Nettles was not at home, so they proceeded to Princeville to see Wilbur Staton. Upon learning that Staton had moved to Washington, D. C., they left to visit some friends in East Tarboro and were traveling through Tarboro on Main Street when the police stopped them shortly after 9:20 a. m. They were told they were suspected of possessing marijuana, shoved repeatedly, and informed that they "didn't have any rights down here." Joyner did not testify.
Defendants first contend the trial court erred in admitting the sawed-off shotgun and other items of evidence taken from defendants' automobile because these items were unconstitutionally seized.
No voir dire examination was held concerning the shotgun seized at the time of defendants' arrest. Tarboro patrolman Jimmy Lewis testified before the jury:
Following this testimony the state offered the shotgun into evidence. Defendants at that point objected, and the shotgun was received in evidence over the objection.
Upon defendants' motion to suppress "any further evidence concerning the automobile and the search," the trial judge held a voir dire examination. Only the state offered evidence. Sergeant Russell Armstrong of the Tarboro Police Department testified he and Patrolman Jimmy Lewis were on patrol in the morning of 27 June 1976. He had information that two black males, armed with a sawed-off shotgun and riding in a 1968 or 1969 dark colored Plymouth with a white chrome side strip, had perpetrated an armed robbery. As a result of a radio report he and Lewis went to St. John Street in Tarboro near the post office. They found that policemen Knox and Sherman had stopped a green 1968 Plymouth. Two black males were observed at the scene. Jones was standing at the left side of the Plymouth. Joyner was sitting in the right front passenger seat. Sergeant Armstrong asked to search the car and Jones refused to give consent. He nevertheless proceeded to search the car. He opened the trunk and then observed Patrolman Lewis holding up the sawed-off shotgun. Sergeant Armstrong then placed Jones under arrest for armed robbery. Both defendants and the automobile were taken by the officers to the Tarboro Police Station.
On further voir dire Edgecombe County Deputy Sheriff Marion Proctor testified that he investigated the robbery at J&J Quik Mart. His investigation revealed that the perpetrators were two black males who were operating a dark green 1967 or 1968 Plymouth with a dent on one side, a "rusty colored or primer brown" hood and a white side strip, and who were armed with a sawed-off shotgun. He then received information from the Tarboro police that they had stopped two black males riding in a 1967 or 1968 green Plymouth and that one of the men had a sawed-off shotgun. He learned also that the men and the automobile were at the Tarboro Police Station. Upon arriving at the police station he observed the Plymouth automobile, which fitted precisely the description he had been given. Deputy Proctor then got the keys to the automobile and searched it, finding the items delineated above.
The trial court found facts in accord with the state's evidence, concluded that probable cause existed to search the automobile at the police station and that the search was neither unreasonable nor conducted in violation of defendants' constitutional rights, and consequently denied defendants' motion to suppress.
Defendants' contention that the shotgun was unconstitutionally seized is totally without merit. Patrolman Lewis' uncontradicted testimony establishes that the weapon was in plain view, Harris v. United States, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968); State v. Legette, 292 N.C. 44, 231 S.E.2d 896 (1977); State v. Smith, 289 N.C. 143, 221 S.E.2d 247 (1976), and it was seized pursuant to a lawful arrest, United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973); State v. Harrington, 283 N.C. 527, 196 S.E.2d 742 (1973); State v. Dobbins, 277 N.C. 484, 178 S.E.2d 449 (1971).
Turning now to the admissibility of the other items obtained from defendants' vehicle after it was removed to the police station, we begin with the rule stated in State v. Legette, supra, and State v. Allen, 282 N.C. 503, 512, 194 S.E.2d 9, 16 (1973): "(A) warrantless search of a vehicle capable of movement may be made by officers when they have probable cause to search and exigent circumstances make it impracticable to secure a search warrant." In Allen this Court found no error in the admission into evidence of burglary tools discovered when police arrested the defendants around 2:30 a. m., removed their automobile to the police station,...
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