State v. Nelson

• Decision Date: 04 December 1979
• Docket Number: No. 106,106
• Parties: STATE of North Carolina v. Anthony D. NELSON and Javan Jolly.
• Court: North Carolina Supreme Court

Page 629

260 S.E.2d 629

298 N.C. 573

STATE of North Carolina v. Anthony D. NELSON and Javan Jolly.

No. 106.

Supreme Court of North Carolina.

Dec. 4, 1979.

Rufus L. Edmisten, Atty. Gen., by T. Buie Costen, Sp. Deputy Atty. Gen., and Grayson G. Kelley, Associate Atty., Raleigh, for the State.

Neill Fleishman, Fayetteville, for defendant Jolly.

Fred J. Williams, Asst. Public Defender, Fayetteville, for defendant Nelson.

EXUM, Justice.

These appeals present a number of questions, the most important of which are raised by both defendants and involve (1) the legality of a warrantless search of defendants' military billets and seizure therefrom of various items by military authorities and the ultimate delivery of some of these items to civilian authorities for use as evidence against defendants; and (2) the consolidation for trial of the charges against each defendant. We find no error in these procedures or in any other aspect of the trial.

The evidence for the state tends to show that on 16 December 1977, Margaret and Eugene Macek, who were returning to their home in Newcastle, Pennsylvania, following a honeymoon trip to Florida, stopped for the night at Motel 6 in Cumberland County. After registering they drove their car to a parking place in front of their assigned room. Both went inside briefly. Mr. Macek, after instructing his wife to lock the door and to admit no one other than him, returned to the car to get their luggage. Moments later Mrs. Macek heard a knock at the door, and her husband identified himself. When she opened the door, two black males were standing behind her husband. One of them had a small gun pointed at her husband's head. Both men, forcing Mr. Macek ahead of them, entered the room. They forced Mr. and Mrs. Macek to disrobe and bound and gagged Mr. Macek. The men then forced Mrs. Macek to submit to repeated sexual intercourse and fellatio with them. They then bound and gagged Mrs. Macek and sexually assaulted her with a tube of toothpaste. The two assailants fled, taking with them money and jewelry belonging to the couple.

Both defendants were arrested on 22 December 1977 in connection with another incident at the Americana Motel involving Evelyn and Morris Friedman. ¹ Defendants were soldiers stationed at Ft. Bragg. Items discovered in their billets at Ft. Bragg ultimately linked them to the Macek incident. These items consisted of a watch and jewelry identified by the Maceks as having been taken from them on 16 December. Nelson was identified by both Mr. and Mrs. Macek at separate lineups. Neither could identify Jolly, but his fingerprints were found on the previously mentioned tube of toothpaste.

Jolly testified that he had loaned his car to Nelson on 16 December 1977. He said Nelson sold him the Macek jewelry found among his belongings.

Nelson testified that he asked to borrow Jolly's car but never actually borrowed it. He further testified that he had purchased from an unidentified man Mr. Macek's watch. He said he had not sold the Macek jewelry to Jolly and had never before seen it.

I

After defendants were arrested and confined to the county jail on 22 December 1977 military personnel at Ft. Bragg, pursuant to military regulations, ² entered their military billets on 24 December for the purpose of making inventory of their property. Lt. Gorwitz, who conducted the inventory in Nelson's billet, testified, "Every time a person is in confinement or gone for more than 24 hours we are required to inventory the equipment and secure it." Nelson had been gone for more than 24 hours. After being inventoried the property of both Nelson and Jolly was secured.

Lt. Gorwitz and Sgt. Cromartie, both assigned to "C" Battery, 1st Battalion, 39th Field Artillery (Nelson's unit), inventoried Nelson's property on 24 December. After reading a newspaper account of the Macek incident which included a description of some of the jewelry taken from the Maceks, then Lt. Wood, Nelson's Battery Commander, ³ personally viewed on 27 December the items seized from Nelson's billet. He observed "what appeared to him to be some of the items about which he had read." Sgt. Cook, assigned to "B" Battery of the aforementioned battalion, conducted the inventory of Jolly's property on 24 December. Thereafter Jolly's Battery Commander, Lt. Lacek, after having read a newspaper account of the Macek incident, personally viewed on 27 December the items seized from Jolly's billet. He said, "I compared certain items of jewelry in that property with what I had read in the paper." Thereafter both Lt. Wood and Lt. Lacek conferred with higher military authorities for instructions. Civilian authorities were contacted. On 27 December Fayetteville Police Detective Nash, after talking by telephone to both Lt. Wood and Lt. Lacek, told them to keep the property of Jolly and Nelson secure.

On 30 December military personnel in charge delivered the items (except for one item) taken from the billets of Jolly and Nelson to Detective Pearson of the Fayetteville Police. The one item not then delivered, an heirloom pendant taken from Mrs. Macek, was ultimately surrendered to Detective Pronier by Lt. Wood on 3 January 1978. The items sapphire ring, wedding band, engagement ring, pendant, high school class ring, wedding band, and watch were all identified at trial by Mr. or Mrs. Macek as having been taken from them on 16 December. Sgt. Cromartie testified that he recognized the pendant and the watch as being among the items which he removed from Nelson's military locker on 24 December. Captain Wood testified that he recognized the pendant and watch as being among the items which he examined together with Sgt. Cromartie on 27 December. Sgt. Cook testified that he recognized the sapphire ring as being among the items he found in Jolly's locker on 24 December. Detective Pearson testified that on 30 December he observed Sgt. Cook deliver all of the jewelry referred to except the watch and the pendant to Sgt. Brunner. He observed Lt. Wood deliver the watch to Sgt. Brunner. Ultimately Pearson obtained possession of everything but the pendant on 30 December. Pearson said that he observed the pendant "in Nelson's property on the 30th but he did not then take it." Detective Pronier testified that he obtained the pendant on 3 January from Lt. Wood.

Prior to trial Judge Maurice Braswell conducted a hearing on defendants' motions to suppress these items on the ground that they were unconstitutionally taken from defendants' military billets. Evidence offered at this hearing does not appear in the record, but Judge Braswell made findings of fact which essentially accord with the above recitation. He denied the motion and the items were ultimately offered in evidence as described.

Defendants, relying on Fourth Amendment proscriptions, assign as error the denial of their motion to suppress and the introduction into evidence of the jewelry. We find no merit in this assignment.

The search by military authorities of a military billet of a soldier detained by civilian authority, or otherwise absent without leave, to make inventory of his belongings and to secure them for safeguarding pursuant to military regulation without any investigative purpose is not an Unreasonable search or seizure proscribed by the Fourth Amendment. Both actions may be consummated without a warrant. This kind of search and seizure is analogous to that permitted of impounded automobiles by police in South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976). The Court there approved a police inventory and seizure of belongings in an impounded automobile without a warrant. Police found marijuana during their inventory of the contents of defendant's car. Defendant, later charged with criminal possession of this marijuana, moved to suppress evidence of his crime on the ground that it was obtained in violation of the Fourth Amendment. The United States Supreme Court, disagreeing with the Supreme Court of South Dakota, held that the trial court properly denied this motion. It concluded that "the conduct of the police was not 'unreasonable' under the Fourth Amendment." Id. at 376, 96 S.Ct. at 3100. The Court's opinion observed that (1) persons have a diminished expectation of privacy in automobiles, (2) inventories of impounded cars are routinely conducted pursuant to standardized police procedures without any investigative purpose, and (3) the inventories serve both to protect police against hazardous materials and civil claims for property loss and to protect the public against loss of their property.

This Court recently had occasion to discuss and distinguish Opperman in State v. Phifer, 297 N.C. 216, 254 S.E.2d 586 (1979). We noted that Opperman stood essentially for the proposition that "the benefits in safety and protection of private property provided by a standardized police inventory outweigh the intrusion upon the diminished privacy interests of an owner whose automobile has been Lawfully impounded." Id. at 220, 254 S.E.2d at 588. Justice Huskins, for this Court in Phifer, wrote, Id. at 220-21, 254 S.E.2d at 588:

"Since an inventory search may be undertaken without a warrant or probable cause, it is potentially subject to abuse by police officers intent upon ferreting out evidence of criminal activity. Cognizant of this danger, the Court in Opperman made it clear that the validity of an inventory search under the Fourth Amendment is premised upon its being a benign, neutral, administrative procedure designed primarily to safeguard the contents of lawfully impounded automobiles until owners are able to reclaim them. Accordingly, the Court stressed that inventory searches should be 'carried out in accordance with Standard procedures in the local police department, a factor tending to insure that the intrusion would be limited in scope to the extent necessary to carry out the caretaking function.' 428 U.S. at 375, 96 S.Ct. at 3100. (Citations omitted...