State v. Schiro, COA11–1092.

• Decision Date: 21 February 2012
• Docket Number: No. COA11–1092.,COA11–1092.
• Parties: STATE of North Carolina v. Perry Ross SCHIRO.
• Court: North Carolina Court of Appeals

723 S.E.2d 134

STATE of North Carolina

v.Perry Ross SCHIRO.

No. COA11–1092.

Court of Appeals of North Carolina.

Feb. 21, 2012.

Appeal by defendant from judgment entered 14 January 2011 by Judge James M. Webb in Moore County Superior Court. Heard in the Court of Appeals 10 January 2012.

Attorney General Roy Cooper, by Special Deputy Attorney General Lars F. Nance, for the State.

M. Alexander Charns, Durham, for defendant appellant.

McCULLOUGH, Judge.

Perry Ross Schiro (“defendant”) appeals from his conviction of accessory after the fact to first-degree murder for attempting to hide the murder weapon. We find no error.

I. Background

On the morning of Friday, 21 September 2007, in Carthage, North Carolina, Michael Graham Currie and Sherrod Harrison broke into the home of Emily Haddock, who was home sick from school. Currie proceeded to shoot Haddock twice in the head with a .22 caliber handgun, resulting in her death. Defendant, Currie, Harrison, Ryan White, and Van Roger Smith, Jr., were all initially charged with first-degree murder. Defendant's charge for first-degree murder was dropped a few days before trial. Currie ultimately escaped being tried for capital murder by confessing and agreeing to testify against defendant. Currie, however, did receive a sentence of life without parole. Currie gave two statements to police on 22 October 2007, but in neither statement did he tell police anything about conveying to defendant that the gun had been used in a murder. Currie allegedly did not alert authorities to having told defendant about the gun until he began discussing his plea bargain with the district attorney. Furthermore, in a 26 June 2009 letter to the district attorney, Currie falsely claimed defendant was the one “who broke in and shot and killed Emily Haddock.” However, Currie admitted to the fallacy at trial. Defendant did not testify at trial, but he had previously provided law enforcement with a signed statement.

Currie obtained the murder weapon during a 20 September 2007 break-in of David Ball's home with Harrison, where they also stole other goods. The gun had a distinct look to it; mainly that it had a gold trigger. After the shooting, Currie held onto the gun, but then gave it to Harrison. Not much later he got the gun back from Harrison and gave it to White, telling him that he could do “[w]hatever he wanted” with it. Prior to giving the gun to White, though, Currie had been handling it in front of defendant and others while wearing white gloves, which they found to be strange. Defendant and Currie stayed in a hotel in Spring Lake, North Carolina, over the weekend. While there Currie called White and told him to give the gun to defendant.

Defendant went by White's house to pick up the gun and subsequently shot the gun once inside of a Wendy's bag. Defendant then returned to the hotel with the gun. Currie testified that while he and defendant were in the hotel room he told defendant “where the gun was from” and at some point before they were locked up “that Sherrod [Harrison] did that shooting.” Furthermore, he testified that he “told [defendant] the next night at the hotel—Sunday night I told him what happened. I told him me and Sherrod were involved and Ryan had the gun.” Defendant also learned at some point before being arrested that a Moore County detective was looking for Currie. Currie had told defendant to toss the gun somewhere Currie could find it, so Currie could get rid of it.

Defendant left the hotel early Monday morning with the gun in a Nike bag. At some point that morning, defendant went by Jamel Allen's house where he put the gun in a sock and hid it in the trunk of his car. He then went to eat with some friends where they discussed needing to stay away from Currie because he was acting weird and wearing white gloves. He stated that had he known at the time that Haddock had been shot, he would have thought Currie was involved in the shooting. Soon thereafter, he and White got in the car to ride around looking for Currie, but they could not find him and thus returned to White's house. About five minutes later, the Harnett County Sheriff's Office pulled up and started questioning defendant about his car and Currie's whereabouts. Detective Lieutenant Joe Webb asked defendant for the keys to his car, so defendant told his little brother to give them to Lieutenant Webb. Lieutenant Webb and Detective Justin Toler then opened defendant's trunk to find the gun hidden in the wheel well.

The trial court held a pretrial hearing regarding defendant's motion to suppress the evidence seized from the car. Conflicting evidence was presented regarding the consent necessary to search the vehicle. Detective Toler testified that the search was based on consent, but his report stated it was incident to arrest. Upon hearing all the evidence, the trial court denied defendant's motion. The trial court entered oral findings of fact and conclusions of law.

In summary, the trial court found that upon determining that the license plate on defendant's car was stolen, officers placed defendant under arrest and Lieutenant Webb accompanied defendant to the rear of defendant's car. Detective Toler searched the driver's side of the car where he found a marijuana bud under the seat. He continued to search the backseat where he found a vanity license plate containing the words “HOTT CHIC,” which belonged to a stolen Lexus found on 24 September 2007, after being wrecked and burned. Lieutenant Webb asked defendant for consent to search the rest of his vehicle, to which defendant acquiesced. Another patrol car arrived and defendant was placed in the passenger seat, about 10–15 feet away from the trunk of his car. Lieutenant Webb obtained the keys and opened defendant's trunk to search it. While authorities were searching his vehicle, defendant complained to Lieutenant Darren Ritter, who was sitting in the patrol car with defendant, that they were “tearing up” his car. Both rear quarter panels of the trunk were fitted with carpet/cardboard type interior trim, which were loose. Detective Toler found the gun behind the right rear quarter panel. Defendant was within range to verbally withdraw consent. Defendant told Lieutenant Ritter that he was a convicted felon, that his fingerprints should not be on the gun, and that he did not know anything about the gun. Lieutenant Ritter testified that defendant was visibly sweating and shaking.

The trial court found that the search of the driver's area of the vehicle was lawful subsequent to defendant's arrest. Additionally, the search of the interior was lawful after finding the marijuana and the search of the trunk was based on voluntary consent. Furthermore, the search of the entire vehicle was justified based on the interest of seeking evidence of contraband and crime after finding the license plate from the stolen car along with marijuana.

Moreover, at trial, the State presented evidence that defendant had been involved in the theft of the Lexus connected to the license plate “HOTT CHIC.” Olivia Marie Elliott–Priest, a friend of Currie and defendant, testified that she had seen defendant driving around in a white Lexus, which she had never seen him in. Defendant usually drove a green Cadillac. She also testified to defendant and Currie having arrived at her house earlier in the week late at night, after having wrecked the Lexus about two minutes away. White had then picked defendant and Currie up in defendant's Cadillac.

Another issue arose at trial regarding the admission of evidence and testimony pertaining to defendant's involvement in the robbery of David Wayne Oakley's house. Defendant filed a motion in limine to prevent mention of these details. The trial court initially sustained an objection to the admission of the evidence due to hearsay, but eventually let the evidence in based on its corroborating other testimony and showing the chain of circumstances of the weekend. The robbery included the taking of nearly a dozen guns and over one thousand rounds of ammunition. Mr. Oakley's neighbor, John Vincent Gallant, III, testified to having seen defendant outside Mr. Oakley's house and telling him to leave. Major Jeffrey Huber testified that he found a rifle and a pair of black bootie socks in the area where Mr. Gallant had seen defendant.

Defendant pled not guilty to the charges, but a jury found him guilty on 3 January 2011. The trial court sentenced defendant to 116 to 149 months in prison. Defendant appeals.

II. Analysis

A. Motion to Suppress

Defendant raises four issues on appeal with the first being that the trial court erred in denying his motion to suppress the evidence seized from his vehicle. Defendant contends the gun obtained during the search of his vehicle was the result of an illegal search and seizure. For the following reasons, we disagree.

When reviewing an appeal from the denial of a motion to suppress, the findings of fact are binding if supported by competent evidence and the conclusions of law are reviewed de novo. State v. Barnhill, 166 N.C.App. 228, 230–31, 601 S.E.2d 215, 217 (2004). The State has the burden of showing the constitutionality of a search. State v. Cooke, 306 N.C. 132, 136, 291 S.E.2d 618, 620 (1982). Furthermore, the review of a search should be for constitutional errors, which the State has the burden of proving are “harmless beyond a reasonable doubt.” N.C. Gen.Stat. § 15A–1443(b) (2011).

Defendant first argues that warrantless searches are presumed to be unconstitutional. In arguing so, defendant notes that “[a] search and seizure ‘ “conducted outside the judicial process, without prior approval by a judge or magistrate, [is] per se unreasonable under the Fourth Amendment—subject only to a few specifically established and well delineated exceptions.” ’ ” State v. Summey, 150 N.C.App. 662, 666, 564 S.E.2d 624, 627 (2002) (quoting Minnesota v. Dickerson, 508 U.S. 366, 372, 113 S.Ct. 2130, 2135, 124 L.Ed.2d 334,...