State v. Silva

• Decision Date: 06 October 1981
• Docket Number: No. 84,84
• Citation: 282 S.E.2d 449,304 N.C. 122
• Parties: STATE of North Carolina v. David Daniel SILVA, Jr.
• Court: North Carolina Supreme Court

Page 449

282 S.E.2d 449

304 N.C. 122

STATE of North Carolina v. David Daniel SILVA, Jr.

No. 84.

Supreme Court of North Carolina.

Oct. 6, 1981.

Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. Nonnie F. Midgette, Raleigh, for the State.

Herbert P. Scott and John P. Swart, Wilmington, for defendant.

CARLTON, Justice.

I.

Evidence for the State tended to show that shortly after 9:15 a. m. on 29 May 1979 two armed men wearing ski masks entered the Long Leaf Branch of First Citizens Bank and Trust Company in Wilmington. Each was armed, one with a small silver gun, the other with a large black handgun which had a brown stock and a black barrel. The masked men shouted obscenities, laughed and told everyone to "(p)ut your hands up" and to "(h)it the floor." The robber with the small silver gun then shot a bank customer in the back, seriously wounding him. Another shot was fired, and the robbers took money from all the cashiers' drawers. Included in the money stolen was approximately $1,000 in bait money, specially packaged twenty dollar bills of whose series and serial numbers the bank had made a list. The robbers wore long shirts and gloves, and the witnesses were unable to determine even their race. After emptying the cash drawers, the robbers fled in a green Ford pickup truck with either yellow or white stripes on the sides.

A truck fitting the general description of the one used in the bank robbery was stolen from Jerry Lee Little on the night of 4 April 1979. Little's truck was recovered two and one-half months later on 26 June 1979. A set of jumper cables, a jack, a chain and some tools were missing. Defendant was not charged with this theft.

On 24 June 1979 Raeford Newman discovered that his white Ford pickup truck had been stolen from his home. He had last seen his truck on the previous day around noon. The police spotted the truck on 25 June 1979 parked in some woods in Wilmington and, with Newman's permission, placed the truck under surveillance. The next morning, 26 June 1979, at approximately 8:45, three males were seen walking into the woods and shortly thereafter the truck was driven out of the woods. Three people were inside. Two had ski masks on; the third's face was concealed by a yellow garment. The police chased the vehicle to another wooded area, and the truck stopped. The occupants fled on foot into the woods and were not captured. The two ski masks were found inside the truck. A search of the wooded area yielded a wallet containing an operator's and a chauffeur's license issued to defendant and a yellow head covering.

On the afternoon of the same day the police had under surveillance a Chevrolet Corvette and a motorcycle parked in the doctor's parking area at New Hanover Memorial Hospital. Defendant's sister, Diana Silva Shiver, and half-brother, William Evans, were seen circling the lot and were stopped and questioned by the police. As a result of the discovery of driver's licenses issued to defendant and information given them by defendant's sister, the police arrested defendant on the evening of 26 June 1979 at William Evans's home.

On the afternoon or evening of 26 June 1979 the police went to Winnabow to search the home where defendant lived with his mother and sister. Although the police had obtained a warrant to search the home, it was never served or returned. Defendant's sister, Ms. Shiver, accompanied the police to the home and gave her consent to the search. A search of defendant's bedroom revealed a yellow shirt, a blue bank bag and a snubnose .38 revolver which matched the description of one of the guns used in the robbery. Ms. Shiver and FBI Agent Zimmerman were allowed to testify over defendant's objection as to the items seized from his bedroom, but Judge Bruce subsequently ruled that the search of defendant's bedroom was illegal and instructed the jury to disregard that evidence. Search of a truck parked outside the home yielded a set of jumper cables similar to those missing from Mr. Little's truck.

On 2 July 1979 defendant was questioned by police officers. The officers advised him of his constitutional rights, and he signed a written waiver of them. Although defendant did not expressly admit his participation in the robbery, he agreed to lead the police to the wooded area where checks stolen in the robbery had been discarded. The checks were found in the spot where defendant led them. He told the police that the checks had been left in the woods when he and his accomplices divided the robbery proceeds and that he had planned the robbery. The wooded area where the checks had been discarded was the same area where Mr. Little's green Ford pickup truck had been found on 26 June 1979.

Defendant offered no evidence. His motion to dismiss the conspiracy charge was allowed at the close of all evidence, and the charges of robbery with a dangerous weapon and felonious larceny of an automobile were submitted to the jury. The jury returned verdicts of guilty as charged and Judge Bruce sentenced defendant to life imprisonment.

Other facts pertinent to this decision will be noted below.

II.

Defendant first assigns as error the consolidation for trial of the robbery, larceny and conspiracy charges.

G.S. 15A-926(a) (1978) governs the joinder for trial of several charges against the same defendant. It provides that "(t)wo or more offenses may be joined ... for trial when the offenses, whether felonies or misdemeanors or both, are based on the same act or transaction or on a series of acts or transactions connected together or constituting parts of a single scheme or plan." Thus, offenses may be joined for trial if they are based on the same act or transaction or arise out of a series of acts or transactions which are connected together or are part of a single scheme or plan. Id.; State v. Bracey, 303 N.C. 112, 277 S.E.2d 390 (1981). In short, for offenses to be joined, there must be a "transactional connection" common to all. State v. Powell, 297 N.C. 419, 428, 255 S.E.2d 154, 159 (1979).

A mere finding of the transactional connection required by the statute is not enough, however. In ruling on a motion to consolidate, the trial judge must consider whether the accused can receive a fair hearing on more than one charge at the same trial; if consolidation hinders or deprives the accused of his ability to present his defense, the charges should not be consolidated. State v. Greene, 294 N.C. 418, 241 S.E.2d 662 (1978); State v. Davis, 289 N.C. 500, 508, 223 S.E.2d 296, 301, death sentence vacated, 429 U.S. 809, 97 S.Ct. 47, 50 L.Ed.2d 69 (1976). A motion to consolidate charges for trial is addressed to the sound discretion of the trial judge and that ruling will not be disturbed on appeal absent an abuse of discretion. E. g., State v. Bracey, 303 N.C. 112, 277 S.E.2d 390 (1981); State v. Davis, 289 N.C. 500, 223 S.E.2d 296. If, however, the charges consolidated for trial possess no transactional connection, then the consolidation is improper as a matter of law. See G.S. § 15A-926(a).

We are faced here with a complex set of facts. Defendant was indicted for armed robbery of a bank, larceny of a truck and conspiracy to commit another bank robbery. At the time the motion for consolidation was made and the charges were ordered consolidated, there appeared to be a transactional connection among the three charges. The State's theory of this case was that defendant, with others, conceived a scheme to rob banks whereby he and his accomplices would steal a vehicle and use that vehicle to transport them to and from the targeted bank. Such a theory, in our opinion, provides an adequate basis to support a finding of a "transactional connection." Although the conspiracy charge, the actual link connecting the armed robbery and larceny charges, was dismissed at the close of the evidence, that fact does not and cannot enter into our consideration of whether Judge Bruce abused his discretion in allowing joinder. Whether an abuse of discretion occurred must be determined as of the time of the order of consolidation; subsequent events are irrelevant on this issue. See State v. Blizzard, 280 N.C. 11 184 S.E.2d 851 (1971). Because at the time the consolidation order was entered there appeared to be a sufficient transactional connection among the three offenses, we hold that the trial judge committed no abuse of discretion. Given the State's theory of a single scheme to commit bank robberies, we think that there was no abuse of discretion "in permitting the State to paint its entire picture on a single canvas," id. at 13, 184 S.E.2d at 853.

This, however, does not end our inquiry. As noted above, the statutorily required transactional link, the conspiracy charge, was never shown at trial. The conspiracy charge was dismissed at the close of all the evidence, leaving no transactional connection between the armed robbery and the larceny charges. The disappearance of the transactional link raises the question of whether, when subsequent developments at trial negate the existence of the transactional link, the joinder is improper as a matter of law, i. e., whether subsequent developments can render the joinder improper. We think not. Joinder is a decision which is made prior to trial; the nature of the decision and its timing indicate that the correctness of the joinder must be determined as of the time of the trial court's decision and not with the benefit of hindsight. See State v. Blizzard, 280 N.C. 11, 184 S.E.2d 851. While this rule may seem severe and, perhaps, highly prejudicial to an accused, our statutes provide a method by which an accused may protect against prejudice to his defense. Under G.S. 15A-927(a), a defendant may protect his right to a fair determination of the charges against him by making a pre-trial motion for severance. If this motion is overruled, the defendant may preserve his challenge to the joinder by renewing his motion before or at the close of all evidence. G.S....