State v. Rigsbee, 24

Citation208 S.E.2d 656,285 N.C. 708
Decision Date10 October 1974
Docket NumberNo. 24,24
PartiesSTATE of North Carolina v. Jack W. RIGSBEE.
CourtUnited States State Supreme Court of North Carolina

Atty. Gen. Robert Morgan and Associate Atty. William Woodward Webb, Raleigh, for the State.

Donald W. Grimes, Fayetteville, for defendant appellant.

MOORE, Justice.

Defendant in his petition for Certiorari brings forward four assignments of error. He first assigns as error the denial of his motion for a continuance based upon the absence of the witness Mary Helen Allen.

The crimes for which defendant was tried were alleged to have occurred on 21 May 1973. Defendant's counsel conferred with defendant in early or mid-June 1973, at which time he was informed of the substance of a conversation between defendant and a Negro female known to him at that time only as Helen. On 31 August 1973 defendant's counsel filed written motion for a disclosure by the State of the identity and address of this female who was alleged to be a confidential informant. This motion was allowed by the court, and the case was continued from 10 September 1973 to 13 September 1973, on defendant's motion, to enable him to locate the witness. Mary Helen Allen, the witness in question, was located on 10 September 1973, and defendant's counsel conferred with her concerning her knowledge of the facts pertinent to the charges against defendant. At that time she was confined in the Cumberland County jail pending trial on 12 September 1973 on a charge of soliciting for prostitution. She was then served with a subpoena to appear in court on 13 September 1973. She failed to appear on 13 September, and an Instanter capias ad testificandum was issued for her arrest. She was not found.

After finding the facts substantially as set out above, the trial court--after further finding that the trial had been delayed once for the sole purpose of allowing the defendant to locate Mary Helen Allen--overruled defendant's motion for a continuance.

A motion for continuance is ordinarily addressed to the sound discretion of the trial court, and its ruling thereon is not subject to review absent an abuse of discretion. 2 Strong, N.C. Index 2d, Criminal Law § 91 (1967); State v. Baldwin, 276 N.C. 690, 174 S.E.2d 526 (1970); State v. Moses, 272 N.C. 509, 158 S.E.2d 617 (1968); State v. Stinson, 267 N.C. 661, 148 S.E.2d 593 (1966).

Continuances should not be granted unless the reasons therefor are fully established. Even though G.S. § 1--175 and G.S. § 1--176 that required an affidavit showing the grounds for continuance have now been repealed, we still think, as a general rule, it is desirable that a motion for continuance be supported by such affidavit. State v. Cradle, 281 N.C. 198, 188 S.E.2d 296 (1972); State v. Stepney, 280 N.C. 306, 185 S.E.2d 844 (1972); State v. Gibson, 229 N.C. 497, 50 S.E.2d 520 (1948). No affidavit was filed in this case stating what Mary Helen Allen would have testified although defendant's counsel had talked to her just three days before the trial. It would have been an easy matter for counsel to have filed such an affidavit.

In the Court of Appeals defendant contended that the trial court abused its discretion in denying his motion for continuance until he could find and produce the witness Mary Helen Allen. Defendant, in this Court, for the first time, contends that the court's ruling amounted to a practical invalidation of his right under the Sixth Amendment to obtain witnesses by compulsory process, citing Washington v. Texas, 388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967). Although the constitutional question was not timely raised, we have considered it. Washington is distinguishable from the present case. In Washington the Court held that defendant was denied his constitutional right to have compulsory process for obtaining witnesses in his favor where the State by statute prevented persons charged as principals, accomplices, or accessories in the same crime from testifying in behalf of one another while permitting such persons to testify in behalf of the prosecution. In the present case, a subpoena was issued for the witness, and on her failure to appear an Instanter capias ad testificandum to compel her attendance was issued. She was not prevented by the State from testifying, but instead, if she had been found, she would have been brought into court as a witness, willingly or unwillingly. Defendant was denied no right to obtain the witness by compulsory process.

However, a motion for a continuance based on a right guaranteed by the Federal and State Constitutions presents a question of law, and the order of the court is reviewable. State v. Cradle, supra; State v. Baldwin,supra; State v. Lane, 258 N.C. 349, 128 S.E.2d 389 (1962); State v. Phillip, 261 N.C. 263, 134 S.E.2d 386 (1964). As stated in State v. Cradle, supra:

'The right to the assistance of counsel and the right to face one's accusers and witnesses with other testimony are guaranteed by the Sixth Amendment to the Federal Constitution which is made applicable to the States by the Fourteenth Amendment, and by Article I, Sections 19 and 23 of the Constitution of North Carolina. The right to the assistance of counsel includes the right of counsel to confer with witnesses, to consult with the accused and to prepare his defense. (Citations omitted.)'

The facts in this case show that defendant's counsel had an opportunity to confer with his client and possible witnesses over a period of some three months. During that time he had ample opportunity to prepare his defense. The name and address of the informant were furnished defendant, and the case was continued until counsel could confer with her. Under these facts, no abuse of discretion has been shown and no violation of defendant's constitutional rights to due process under the Sixth and Fourteenth Amendments has been established.

Defendant's first assignment of error is overruled.

Defendant next assigns as error the trial court's denial of his motion to suppress the $60 in marked bills that were seized during the search of his home and admitted into evidence over his objection. It is stipulated that the search was made under a valid search warrant that listed only marijuana as the item sought.

The Fourth Amendment to the Constitution of the United States provides in part '. . . no Warrants shall issue, . . . but upon probable cause, . . . and particularly describing the place to be searched, and the persons or things to be seized.' The Fourth Amendment has been made applicable to the states by the Fourteenth Amendment. Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, reh. den. 368 U.S. 871, 82 S.Ct. 23, 7 L.Ed.2d 72 (1961).

In this case the money seized was not particularly described. However, an exception to the strict mandate of the Fourth Amendment is the 'plain view rule.' Under this exception, an item is lawfully seized even though it is not listed in the warrant if the officer is at a place where he has a legal right to be and if the item seized is in plain view. Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685, reh. den. 396 U.S. 869, 90 S.Ct. 36, 24 L.Ed.2d 124 (1969); Harris v. United States, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968); State v. Carey, 285 N.C. 509, 206 S.E.2d 222 (1974); State v. Allen, 282 N.C. 503, 194 S.E.2d 9 (1973).

The officers in the present case had a legal right to be in defendant's home, and there was ample evidence to support the court's finding that the money seized was in plain view of the officers. Before the money was introduced, a Voir dire examination was held at the request of the defendant. The investigating officer testified: 'I had looked behind the speaker for drugs and when I stepped back and looked up with the flashlight I saw what appeared to be currency on top of the speaker cabinet. . . . I had not been told that this (the currency) was one of the items that we were to search for.' The court then asked Mr. Harrah: 'Was it necessary for you to move or open any object in order to view or see these bills?' He answered: 'No, sir. When I stepped away from the speaker, after searching behind it, the flashlight beam revealed what I thought was the currency, that's all there was to it.' The court: 'No physical items were moved in order to reveal the currency?' Answer: 'No, sir. Not to reveal it.' There is also evidence from the defendant that he heard one of the investigating officers make the statement when the currency was found that it was a 'lucky find.'

Defendant contends, however, that the money should have been suppressed under the decision of the United States Supreme Court in Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564, reh. den. 404 U.S. 874, 92 S.Ct. 26, 30 L.Ed.2d 120 (1971). Defendant bases his argument on that part of the Coolidge opinion (II--C) in which Mr. Justice Stewart, writing for the majority, states that discovery of items under the plain view rule must be 'inadvertent.' 403 U.S. at 469, 91 S.Ct. at 2040, 29 L.Ed.2d at 585. It is noteworthy that only three Justices concurred with Mr. Justice Stewart in part II--C of the opinion. Mr. Justice Stewart said, at 403 U.S. 469--471, 91 S.Ct. at 2040, 29 L.Ed.2d at 585--586:

'The second limitation (on the plain view doctrine) is that the discovery of evidence in plain view must be inadvertent. The rationale of the exception to the warrant requirement . . . is that a plain-view seizure will not turn an initially valid (and therefore limited) search into a 'general' one, while the inconvenience of procuring a warrant to cover an inadvertent discovery is great. But where the discovery is anticipated, where the police know in advance the location of the evidence and intend to seize it, the situation is altogether different. The requirement of a warrant to seize imposes no inconvenience whatever, or at least none which is constitutionally cognizable in a legal system that regards warrantless...

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