State v. Parker, 632A83

Citation337 S.E.2d 487,315 N.C. 222
Decision Date10 December 1985
Docket NumberNo. 632A83,632A83
CourtUnited States State Supreme Court of North Carolina
PartiesSTATE of North Carolina v. Dwight PARKER, Sr.

Lacy H. Thornburg, Atty. Gen. by David Roy Blackwell, Asst. Atty. Gen., Raleigh, for State.

Ann B. Petersen, Chapel Hill, for defendant-appellant.

BILLINGS, Justice.

The defendant brings forward three assignments of error:

(1) The knife recovered from the pocket of the defendant's jacket was unlawfully seized in the course of an unlawful search conducted without a warrant;

(2) The evidence was not sufficient to permit a conviction for armed robbery of Ray Herring;

(3) The imposition of a sentence based upon a verdict of guilt [sic] returned by a jury drawn from a venire from which potential jurors were excluded because of their scruples against capital punishment deprives the defendant of his right to due process of law and his right to trial by jury.

At the defendant's trial, the State offered into evidence the fixed-blade knife that was taken from the defendant's jacket pocket at the time of his arrest. The defendant objected on the basis that the knife, allegedly the one used to stab the victim Herring, was obtained in the course of a warrantless search that extended beyond the bounds justified by a search pursuant to an arrest and therefore violated his rights under the Fourth Amendment to the United States Constitution.

After a voir dire hearing, the trial judge determined that the arrest was lawful. The defendant does not raise on appeal any claim that the arrest was unlawful.

Evidence offered at the voir dire hearing on the motion to suppress the knife supported the trial judge's findings that at the time of defendant's arrest, the defendant was handcuffed and frisked, that the gray suede jacket from which the knife was taken was within three or four feet of the place where the defendant was reclining on the sofa, that when the defendant was confronted by the officers he made a movement toward the jacket, and that the officers had information that the defendant was wearing a gray suede jacket. The trial judge upheld the seizure of the knife as having been obtained by a valid search incident to the arrest of the defendant.

Recognizing that under the rule laid down by the United States Supreme Court in Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969) the parameters of a search incident to arrest depend upon the facts of each case, the defendant contends that although the jacket was within three or four feet of him when he was arrested, it was not within the permissible scope of the search incident to the arrest because when it was searched he was in handcuffs and in the control of a number of officers in a confined space.

We reject the defendant's contention. The uncontradicted evidence on voir dire was that when the officers entered the small basement room where the defendant was reclining on the sofa, he first attempted to reach under the sofa cushion and then started to get up. A struggle ensued between the defendant and some of the officers as they subdued and handcuffed him. The officer who searched the jacket stated that he grabbed it because the defendant, who was three or four feet from the jacket, made a motion toward it. Additionally, when the defendant was taken to the sheriff's department he was allowed to wear the jacket.

In the case of State v. Cherry, 298 N.C. 86, 257 S.E.2d 551 (1979), cert. denied, 446 U.S. 941, 100 S.Ct. 2165, 64 L.Ed.2d 796 (1980), this Court upheld as incident to an arrest the search and seizure of a gun hidden under the rug in the corner of the nine by twelve foot motel room occupied by the defendant, even though the defendant was handcuffed and under the control of police officers. In upholding the search, the Court quoted with approval the following statement from State v. Austin, 584 P.2d 853, 855 (Utah 1978):

Appellant does not challenge the legality of his arrest but maintains that because he was handcuffed, he had no "control" over the area; therefore, the search cannot be justified under the Chimel standard....

* * *

It thus appears that the defendant in custody need not be physically able to move about in order to justify a search within a limited area once an arrest has been made.

We hold that the findings of the trial judge, amply supported by the evidence, support the conclusion that the knife was lawfully seized incident to the arrest of the defendant.

By his second assignment of error, the defendant contends that his conviction for the armed robbery of Ray Herring must be vacated because apart from his extrajudicial confession that "he [the defendant] took $10.00 off the guy", there was no evidence of the corpus delicti of that armed robbery. In support of his contention, the defendant cites a long line of North Carolina cases standing for the proposition that there must be direct or circumstantial proof of the corpus delicti independent of the defendant's confession in order to sustain a conviction. See, e.g., State v. Brown, 308 N.C. 181, 301 S.E.2d 89 (1983); State v. Green, 295 N.C. 244, 244 S.E.2d 369 (1978); State v. Bass, 253 N.C. 318, 116 S.E.2d 772 (1960).

The State concedes that aside from the defendant's confession there was no evidence presented at trial tending to prove the corpus delicti of the Herring armed robbery. There is nothing in the record to show that Herring had any money with him when he left home at 10:45 p.m. on 18 February, the night he was murdered, and nothing which would tend to prove that any property was missing from his person when his body was found in the Tar River. In short, the corpus delicti of this robbery, missing property, was shown only by the defendant's extrajudicial statement given to police officers following his arrest on 26 February 1983.

While conceding the absence of independent evidence tending to prove the corpus delicti, the State takes the position that under this Court's recent decision in State v. Franklin, 308 N.C. 682, 304 S.E.2d 579 (1983), proof of the corpus delicti aliunde the defendant's confession is no longer necessary so long as there are sufficient facts and circumstances which corroborate the defendant's confession and generate a belief in its trustworthiness.

We do not agree that Franklin determines the question presented in this case. In Franklin, the defendant was convicted of felony murder and contended on appeal that his conviction could not stand as there was no evidence of the corpus delicti of first degree sexual offense, the predicate felony for the murder conviction. We characterized the issue as "one of first impression in our State." Id. at 692, 304 S.E.2d at 585. Following an analysis of the underlying purposes and policies of the corpus delicti rule, the Court in Franklin concluded that "[w]here there is proof of facts and circumstances which add credibility to the confession and generate a belief in its trustworthiness, and where there is independent proof of death, injury, or damage, as the case may require, by criminal means, these concerns vanish and the rule has served its purpose." Id. at 693, 304 S.E.2d at 586 (emphasis added). This narrow ruling does not control the instant case, however, as both sides admit there was not presented "independent evidence of the fact of injury," i.e., missing property. Further, the Franklin opinion makes clear that the corpus delicti of felony murder "is established by evidence of the death of a human being by criminal means ...." Id. at 692, 304 S.E.2d at 585-86. We therefore did not abandon the rule that there must be some evidence of the corpus delicti in addition to the defendant's confession, we simply held that this rule is fulfilled in a felony murder prosecution when the fact of death is independently shown. The element which consists of the underlying felony may be proved by the defendant's confession when there is corroborative evidence tending to establish the reliability of the confession.

Having determined that Franklin is not dispositive, we elect to make further inquiry as to whether our current approach to the corpus delicti rule is a sound one in consideration of the result which its application would produce under the facts presented in the instant case and in light of what we perceive to be a judicial trend toward abandoning a strict application of the corroboration requirement.

Our research reveals that the rule is quite universal that an extrajudicial confession, standing alone, is not sufficient to sustain a conviction of a crime. 1 As to the extent and quality of corroborative evidence required, however, courts are in sharp disagreement. The legal commentators identify three basic formulations of the corpus delicti rule. See Opper v. United States, 348 U.S. 84, 75 S.Ct. 158, 99 L.Ed. 101 (1954); McCormick, Evidence § 145 (3rd ed. 1984); Note, Confession Corroboration in New York: A Replacement for the Corpus Delicti Rule, 46 Fordham L.Rev. 1205 (1978); Developments in the Law-Confessions, 79 Harv.L.Rev. 935 (1966); Annot., 45 A.L.R.2d 1316 (1956). These different approaches reflect the fact that there is marked divergence of opinion as to the quantum and type of corroboration necessary to ensure that a person is not convicted "of a crime that was never committed or was committed by someone else." State v. Franklin, 308 N.C. at 693, 304 S.E.2d at 586.

The majority of American jurisdictions follow a formulation of the corpus delicti rule which requires that there be corroborative evidence, independent of the defendant's confession, which tends to prove the commission of the crime charged. E.g., People v. Cobb, 45 Cal.2d 158, 287 P.2d 752 (1955); People v. Willingham, 89 Ill.2d 352, 59 Ill.Dec. 917, 432 N.E.2d 861 (1982). See also Annot., 45 A.L.R.2d 1316, § 7 and cases cited therein. Under this approach, the independent evidence is sufficient only if it "touches or concerns the corpus delicti." Lemons v. State, 49...

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