State v. Russell

• Decision Date: 07 February 1989
• Docket Number: No. 8828SC444,8828SC444
• Citation: 92 N.C.App. 639,376 S.E.2d 458
• Court: North Carolina Court of Appeals
• Parties: STATE of North Carolina v. David Eugene RUSSELL.

Page 458

376 S.E.2d 458

92 N.C.App. 639

STATE of North Carolina v. David Eugene RUSSELL.

No. 8828SC444.

Court of Appeals of North Carolina.

Feb. 7, 1989.

Atty. Gen. Lacy H. Thornburg by Asst. Attys. Gen. John H. Watters and Doris J. Holton, Raleigh, for the State.

David Belser, Asst. Public Defender, Asheville, for defendant appellant.

ARNOLD, Judge.

Defendant argues that the trial court erred in denying his motion to suppress the evidence obtained from the warrantless seizure of his automobile. Absent consent, or some form of exigent circumstances, a warrant based on probable cause is required for a valid search and/or seizure under the Fourth Amendment. United States Constitution, Fourth Amendment. The United States Supreme Court in Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971), held that no exigent circumstances justified the failure of the police to obtain a warrant for the seizure and search of an automobile parked in the defendant's driveway, because the police knew the car was there and planned to seize it when they went to defendant's house.

A plurality of the Court fashioned a three-part test to determine if a search and/or seizure comes within the "plain view" doctrine established by this case. First, the initial intrusion that brings the evidence into plain view must be lawful. Second, the discovery of the evidence must be inadvertent. Third, it must be immediately apparent to the police that the items observed constitute evidence of a crime or are otherwise subject to seizure. Id. Our Supreme Court adopted this three-part analysis of warrantless seizures or searches. See State v. Williams, 315 N.C. 310, 338 S.E.2d 75 (1986).

In the case sub judice, as in Coolidge, defendant was in custody when his car was seized without a warrant. The police had probable cause, but they had no warrant. There were no exigent circumstances, the car did not come within the "plain view" exception, and thus the seizure was a violation of defendant's Fourth Amendment rights.

While the trial court committed error in denying defendant's motion to suppress the evidence obtained from the search of the car, the error in this case is harmless. Even error contravening one's constitutional rights can be harmless. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967); N.C.G.S. § 15A-1443(b); State v. Brown, 306 N.C. 151, 293 S.E.2d 569, cert. denied, 459 U.S. 1080, 103 S.Ct. 503, 74 L.Ed.2d 642 (1982), and cert. denied, 479 U.S. 940, 107 S.Ct. 423, 93 L.Ed.2d 373 (1986).

The United States Supreme Court has applied the harmless error analysis to guilty pleas based on ineffective assistance of counsel. See Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985). For a defendant to show that ineffective counsel was harmful, he must show that there is a reasonable probability that, but for counsel's error, he would not have entered a plea of guilty. Id. at 58, 106 S.Ct. at 370.

Error committed at trial infringing upon one's constitutional rights is presumed to be prejudicial and entitles him to a new trial unless the error was harmless beyond a reasonable doubt. N.C.G.S. 15A-1443(b); Brown, 306 N.C. 151, 293 S.E.2d 569 (1982). This harmless error analysis has been applied to violations of the Fourth Amendment, and we see no reason why the analysis should not be applicable to guilty pleas partly based on evidence that should have been suppressed. See State v. Autry, 321 N.C. 392, 364 S.E.2d 341 (1988).

In no way does this decision set precedent for denial of a motion to suppress to be considered harmless error because defendant, pursuant to G.S. 15A-979(b), pled guilty. It is because there is a full evidentiary record before us that gives this Court full benefit of all the evidence, admissible and inadmissible, that we are able to say, beyond all reasonable doubt, that failure to suppress evidence obtained from the car could not have affected defendant's decision to plead guilty in light of the overwhelming evidence of his guilt.

The evidence presented at voir dire which showed that defendant was guilty of the crimes charged was overwhelming. Defendant admitted in his initial meeting with the police that he had been wearing a Dracula costume the night before. He was seen in the same Fast Fare earlier in the evening wearing that costume. The victim recognized defendant as a regular customer and was able to give a detailed description of him the night of the rape. The victim positively and unwaveringly identified the defendant both in a pre-trial photographic showing, and at the voir dire hearing.

The evidence found in defendant's room was much more incriminating than that found in the car. The money found in the room was traced back to the Fast Fare, whereas the roll of nickels found in the car was not. The Dracula teeth found in the car only corroborated what defendant admitted early on. Lastly, and most importantly, as the State argues, defendant confessed to the crimes.

Defendant further argues that because of his diminished mental capacity, he was unable to confess voluntarily and waive his Fifth Amendment rights. Standing alone, subnormal mental capacity does not render a confession incompetent, if it is in all other respects voluntarily and understandingly made. State v. Thompson, 287 N.C. 303, 214 S.E.2d 742 (1975). In Thompson, the Supreme Court stated further:

If a person has the mental capacity to testify and to understand the meaning and effect of statements made by him, he possesses sufficient mentality to make a confession. Nevertheless, his mental capacity, or his lack of it, is an important factor to be considered in determining the voluntariness of a confession.

Id. at 318, 214 S.E.2d at 752 (citing Blackburn v. Alabama, 361 U.S. 199, 80 S.Ct. 274, 4 L.Ed.2d 242 (1960).

The trial judge here made findings that defendant had been diagnosed as mildly retarded. He noted, however, that such diagnosis was not a part of the evaluation of defendant made by Dorothea Dix State Hospital.

Defendant may have had a low mental IQ, however, he was not so diminished as to make his confession involuntary. See Thompson, 287 N.C. 303, 214 S.E.2d 742 (1975). The trial court, therefore, did not commit error in finding that defendant confessed voluntarily.

Defendant next assigns as error the finding by the trial court that there was valid third party consent to search defendant's residence.

N.C.G.S. § 15A-222(3) states that, "[T]he consent needed to justify a search and seizure ... must be ...: By a person who by ownership or otherwise is reasonably apparently entitled to give or withhold consent to a search of premises." This issue of common authority was addressed by the United States Supreme Court in U.S. v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974), stating:

Common authority is, of course, not to be implied from the mere property interest a third party has in the property. The authority which justifies the third-party consent does not rest upon the law of property, with its attendant historical and legal refinements, ... but rests rather on mutual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that any of the co-inhabitants has the right to permit the inspection in his own right and that the others have assumed the risk that one of their number might permit the common area to be searched.

415 U.S. at 171, 94 S.Ct. at 993.

This Court has held that N.C.G.S. § 15A-222(3) is "consistent with the language in Matlock ... that permission may be 'obtained from a third party who possessed common authority or other sufficient relationship to the premises or effects sought to be inspected.' " State v. Washington, 86 N.C.App. 235, 246, 357 S.E.2d 419, 427 (1987), cert. denied, 322 N.C. 485, 370 S.E.2d 235 (1988) (quoting State v. Kellam, 48 N.C.App. 391, 397, 269 S.E.2d 197, 200 (1980); Matlock, 415 U.S. at 171, 94 S.Ct. at 993) (emphasis deleted).

Findings of fact by the trial court show that defendant's mother, who owned the residence and lived there with him, gave the police permission to search the residence, including defendant's bedroom. When asked if defendant was paying rent, she replied "No," but she also said defendant was "paying his way." From these and other findings, the trial court concluded that defendant's mother had common authority over the premises with her son, that she owned the residence, and that she was apparently entitled to give or withhold consent to the search of the premises.

The trial court's findings of fact were supported by competent evidence. There may have been evidence to the contrary, but it is the responsibility of the trial court to determine what evidence will be fact.

Defendant next assigns as error the trial court's denial of his motion to suppress the out-of-court photographic identification and subsequent in-court identification of the defendant by the victim.

Assuming arguendo that if the pre-hearing photographic identification by the victim was suggestive, and we do not believe that it was, it was nevertheless reliable under the totality of circumstances. See Matter of Stallings, 318 N.C. 565, 350 S.E.2d 327 (1986), reh'g dismissed, 319 N.C. 669, 356 S.E.2d 339 (1987); Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972); see also, Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977).

We likewise conclude that even if the pre-hearing identification were unduly suggestive, the victim's in-court identification was free from taint. See State v. Yancey, 291 N.C. 656, 231 S.E.2d 637 (1977). The victim was with defendant for several hours and had ample time to view her assailant. Moreover, her identification of him in court was unwavering.

Defendant next assigns as error the trial court's alleged refusal to allow defense counsel to cross-examine Detective Smith regarding defendant...