State v. Moore, 8523SC871

• Decision Date: 18 March 1986
• Docket Number: No. 8523SC871,8523SC871
• Citation: 79 N.C.App. 666,340 S.E.2d 771
• Parties: STATE of North Carolina v. Melvin Cecil MOORE and Billy Dean Transeau.
• Court: North Carolina Court of Appeals

Page 771

340 S.E.2d 771

79 N.C.App. 666

STATE of North Carolina v. Melvin Cecil MOORE and Billy Dean Transeau.

No. 8523SC871.

Court of Appeals of North Carolina.

March 18, 1986.

Atty. Gen. Lacy H. Thornburg by Sp. Deputy Atty. Gen. David S. Crump, Dept. of Justice, Raleigh, for the State.

Dennis R. Joyce, Wilkesboro, for defendant-appellant Melvin Cecil Moore.

Brewer & Freeman by Paul W. Freeman, Jr., Wilkesboro, for defendant-appellant Billy Dean Transeau.

WEBB, Judge.

Each of the defendants assigns error to the denial of his motions to suppress evidence seized pursuant to a search of the house. Each of the defendants made two motions to suppress. At a hearing on their first motions the court considered only the application for the search warrant in determining whether there was probable cause to issue the warrant. The appellants contend the affidavit of Mr. Call was not sufficient to support a finding of probable cause. The United States Supreme Court in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983) held that in issuing a search warrant:

The task of the issuing magistrate is simply to make a practical, commonsense decision whether, given all the circumstances set forth in the affidavit before him, including the "veracity" and "basis of knowledge" of persons supplying hearsay information, there is a fair probability that contraband or evidence of crime will be found in a particular place. And the duty of the reviewing court is simply to ensure that the magistrate had a "substantial basis for ... conclud[ing]" that probable cause existed.

Id. at 238, 103 S.Ct. at 2332, 76 L.Ed.2d at 548.

In this case the affidavit shows that the officer had been to an area of Wilkes County and observed a field of growing marijuana. He stated he had observed persons coming out of a house near the field. We believe that the magistrate had a substantial basis for concluding there was a fair probability that marijuana was in the house.

The appellants argue that the affidavit does not contain any information from which anyone could reasonably relate the dwelling to be searched to the field of marijuana. We believe that the magistrate could conclude there is a fair probability that a house near a marijuana field in rural Wilkes County is related to the field. We hold that the court did not err in finding the application was sufficient for the magistrate to find there was a fair probability that marijuana was in the house.

The appellants also contend in their first assignment of error that the court erred in not allowing their second motions to suppress. Evidence was received in the form of testimony from Mr. Call at the hearing on the defendants' second motions to suppress. The court did not make findings of fact but denied each defendant's motion. The defendants argue it was error for the court not to make findings of fact. Our Supreme Court has held it is not reversible error to fail to make findings of fact before admitting evidence after a hearing on a motion to suppress if there is not a material conflict in the evidence on voir dire. State v. Phillips, 300 N.C. 678, 268 S.E.2d 452 (1980). The appellants argue that there was a conflict in the evidence in this case because Mr. Call's testimony differed from the statements in his affidavit. For this reason they say it was error for the court not to find facts. We do not believe there was a conflict between the affidavit and Mr. Call's testimony. Mr. Call supplied in more detail in his testimony the facts which he set forth in the affidavit. He testified that the marijuana was 1,410 feet from the house. We do not believe this is inconsistent with his characterization of the house as "near" the field in the affidavit. He testified he did not see the people come in or out of the house. He heard a door slam and then saw the defendants on the back porch. We do not believe this is inconsistent with his statement in the affidavit as to people coming from the house. In sum we do not believe the affidavit was so impeached by the showing at the second voir dire hearing that we should hold the magistrate could not have relied upon it. The appellants' first assignment of error is overruled.

Each of the defendants contends that the statements made by them before they were warned of their rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) should have been suppressed because they had not been warned of their rights and because they had been unlawfully arrested. An officer may briefly detain a person if he can point to specific and articulable facts which justify a conclusion that a crime has probably been committed. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). He may then "ask the detainee a moderate number of questions to determine his identity and to try to obtain information confirming or dispelling the officer's suspicions." Berkemer v. McCarty, 468 U.S. 420, ----, 104 S.Ct. 3138, 3150, 82 L.Ed.2d 317, 334 (1984). We believe that in this case the officers could point to specific and articulable facts which justified their belief that a crime had been committed. They had a map which showed a marijuana field close by and the map in all other respects was accurate. The house from which the officers had reason to believe the defendants had just left was as shown on the map. The officers had the right to detain the defendants while Mr. Call checked to see if the marijuana field was where the map indicated it would be and the officers could ask the questions which were asked. This assignment of error is overruled.

The defendants assign error to the admission of evidence that their fingerprints were found on objects in the house. They base this argument on the premise that the search of the house was illegal. We have held it was a proper search. This assignment of error is overruled.

The defendants next assign error to the failure of the court to give their requested jury instructions that as to each defendant his silence was not to be construed as evidence that his fingerprints could only have been impressed at the time the crime was committed and that neither of them had to explain the presence of his fingerprints. The court instructed the jury that the defendants' silence was not to be considered against them in any way. It also instructed the jury that they could not consider the fingerprint evidence unless they were satisfied beyond a reasonable doubt as to each defendant that the fingerprints were his and could have been impressed only while the marijuana was in the house. We hold that this instruction substantially complied with the defendants' request and was not prejudicial to either of them.

The defendants next assign error to the admission of testimony by Mr. Call and by Nick Nixon, a deputy sheriff, regarding their opinions as to the weight of the marijuana. The defendants contend neither of the witnesses was qualified as an expert in "weight" and their testimony was hearsay because they gave the result of what was shown on a scale. We are bound by State v. Singleton, 33 N.C.App. 390, 235 S.E.2d 77 (1977), to overrule this assignment of error.

The defendants next assign error to the court's charge that if the jury found that either of the defendants was in close proximity to the marijuana that would be a circumstance together with other circumstances from which the jury could infer the defendants were aware of the presence of marijuana and had the power and intent to control its disposition or use. The defendants contend this was error because the jury was not told what other kinds of circumstances could be considered and that it allowed the jury to convict both defendants if they found one of them was in close proximity to the marijuana. There was no objection to this portion of the charge and it is not properly before us for review. North Carolina Rules of Appellate Procedure, Rule 10(b)(2). We do not believe it was error. We believe the other circumstances to be considered by the jury were amply stated in other parts of the charge. In the instructions on acting in concert we believe the court properly explained how the jury should consider evidence that one of the defendants was in proximity to the marijuana. This assignment of error is overruled.

The defendants next assign error to the court's overruling their motions to quash the bills of indictment. They argue that State v. Sanderson, 60 N.C.App. 604, 300 S.E.2d 9, disc. rev. den., 308 N.C. 679, 304 S.E.2d 759 (1983) is a better-reasoned case than State v. Anderson, 57 N.C.App. 602, 292 S.E.2d 163, disc. rev. den., 306 N.C. 559, 294 S.E.2d 372 (1982) and ask us to overrule Anderson. This we decline to do. The defendant Moore also argues that he was first indicted for only one offense and possibly because of his vigorous defense he was one year later indicted for two offenses. He does not attack the form of the indictment. We cannot speculate as to why the State chose to indict Moore for two offenses rather than one. This assignment of error is overruled.

The defendants next assign error to the court's overruling their motions to dismiss. The case was tried on the theory that the defendants had constructive possession of the marijuana. If a person has the...