State v. Warren

• Decision Date: 07 September 1983
• Docket Number: No. 676PA82,676PA82
• Citation: 306 S.E.2d 446,309 N.C. 224
• Parties: STATE of North Carolina v. Jimmy Ray WARREN.
• Court: North Carolina Supreme Court

Page 446

306 S.E.2d 446

309 N.C. 224

STATE of North Carolina v. Jimmy Ray WARREN.

No. 676PA82.

Supreme Court of North Carolina.

Sept. 7, 1983.

Rufus L. Edmisten, Atty. Gen. by Robert L. Hillman, Asst. Atty. Gen., Raleigh, for the State.

Marc D. Towler, Asst. Appellate Defender, Raleigh, for defendant-appellant.

FRYE, Justice.

Defendant challenges the process of death qualifying the jury and assigns as error the trial court's denial of his motion for a separate trial jury and a separate sentencing jury. This Court has consistently rejected defendant's contentions. See State v. Kirkley, 308 N.C. 196, 302 S.E.2d 144 (1983) and cases cited therein. See also State v. Jackson 309 N.C. 26, ---, 305 S.E.2d 703, 708 (1983) where we noted:

Attention is called to Jones v. Barnes, 463 U.S. 745, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983), in which the Court held that defense counsel assigned to prosecute an appeal from a criminal conviction does not have a constitutional duty to raise every nonfrivolous issue requested by the defendant. As the Court stated, "[a] brief that raises every colorable issue runs the risk of burying good arguments--those that, in the words of the great advocate John W. Davis, 'go for the jugular,' Davis, The Argument of an Appeal, 26 A.B.A.J. 895, 897 (1940)--in a verbal mound made up of strong and weak contentions. See generally, e.g., Godbold, Twenty Pages and Twenty Minutes --Effective Advocacy on Appeal, 30 Sw.L.J. 801 (1976)." Id. at ----, 103 S.Ct. at 3313, 77 L.Ed.2d at --- (footnote omitted).

Defendant next contends that the trial court erred in denying his motion to suppress the results of a visual search and chemical tests performed on bloodstains in the car in which he, Bost and Charles Warren were riding on the night of the murder. Defendant argues first that the affidavit accompanying the search warrant failed to show probable cause to believe that bloodstains would be found in the car. We disagree.

The affidavit in support of the search warrant stated as follows:

I, Det. Ken E. Dodd, Deputy Sheriff, Wake Co., being duly sworn, hereby request that the court issue a warrant to search the (person) (place) (vehicle) described in this application and to find and seize the items described in this application. There is probable cause to believe that certain property, to wit: Handgun(s), blood spatter clothing, or clothing worn during the commission of the crime, shoes or boots worn, handgun ammunition and other evidence used in the crime. (constitutes evidence of) (constitutes evidence of the identity of a person participating in) a crime, to wit: murder, and the property is located (in the place) (in the vehicle) (on the person) described as follows: vinal [sic] top removed, gray Buick Regal, CB antenna on trunk/with green tennis ball/brick apts. 3221C Calumet Dr. Raleigh, N.C. Basement Apt. (S/W end), first stairwell, 2nd apt. on the right/ and the person of Jimmy Warren for any conceiled [sic] evidence.

The applicant swears to the following acts to establish probable cause for the issuance of a search warrant: On December 29, 1980 applicant(s) were assigned to investigate the shooting death of Byron Montizel Clarke. The victim was shot and beaton [sic] on the 29th of December, 1980 at approximately 4:00 A.M. A witness to the above described crime (Roy Lee Bost) advised investigators that he was present along with Charles Warren and Jimmy Warren, when the victim was killed. Mr. Bost and the Warren brothers had picked up the victim at Morgan St. and S. Wilmington St. and latter [sic] transported the victim to Raleigh Beach Rd. (AKA-R.P.R. 2216). The victim was forced from the above described vehicle by Jimmy Warren at gunpoint. The victim was then shot at close range in the head and was also beaton [sic] by Mr. Jimmy Warren and left for dead. The victim died from the wound inflicted by Mr. Jimmy Warren.

It was reasonable to believe that bloodstains might be found in or on the car as well as on defendants' clothing, and that the evidence sought would aid in the apprehension or conviction of the offender. See State v. Jones, 299 N.C. 298, 261 S.E.2d 860 (1980).

Defendant further challenges the admissibility of this evidence because a second visual search and resultant chemical tests on bloodstains thereby obtained occurred several days following the execution of the warrant.

In State v. Nelson, 298 N.C. 573, 260 S.E.2d 629 (1979), cert. denied, 446 U.S. 929, 100 S.Ct. 1867, 64 L.Ed.2d 282 (1980), this Court held that as a general rule "second looks" at items do not constitute additional searches subject to fourth amendment proscriptions. In Nelson, officers were permitted to re-examine property that had been inventoried and stored. In the case sub judice, samples of the bloodstains were obtained from a vehicle that had been seized and stored. The fact that bloodstains are later subjected to laboratory analysis does not violate the fourth amendment. See United States v. Edwards, 415 U.S. 800, 94 S.Ct. 1234, 39 L.Ed.2d 771 (1974).

Furthermore, as noted by the Court of Appeals, the automobile in question was owned by Carolyn Durham of Goldsboro and, as defendant "specifically declined to come forward with any evidence of ownership or possession" of the automobile, the trial court was correct in concluding that defendant failed to show a legitimate expectation of privacy. See, State v. Greenwood, 301 N.C. 705, 273 S.E.2d 438 (1981); State v. Jones, 299 N.C. 298, 261 S.E.2d 860; State v. Alford, 298 N.C. 465, 259 S.E.2d 242 (1979).

Finally, we find that defendant has shown no prejudice in the admission of this evidence. On this point defendant attempts to argue that the admission of evidence of bloodstains found in the car was prejudicial "because it may have weighed heavily in the credibility contest between defendant and Roy Bost at trial." To support his argument, defendant provides the following insight:

Although defendant admitted being in a fight and shooting the victim accidentally during a struggle, defendant testified that he stepped on the victim before he was shot and that he only struck the victim with the gun four times during the struggle. Bost testified that defendant was stomping on the victim and beating him after he had been shot. The likelihood of defendant getting bood [sic] on his shoes or hands and depositing that blood in the car was therefore much more likely under Bost's version of the incident than defendant's. This evidence therefore may have affected the jury's decision as to which man was telling the truth, and the error in admitting the evidence cannot be deemed harmless. Thus, defendant must be awarded a new trial.

We will not engage in hair-splitting hypothesizing. The clear indication is that irrespective of whose version of the events was to be believed, it is likely that the victim's blood would be found in the automobile. The assignment of error has no merit.

Defendant next assigns error to the trial court's summary of the evidence. As a basis for this alleged error, defendant challenges the following portion of the summary of the parties' contentions:

Now, ladies and gentlemen, in this case very simply the State of North Carolina says and contends that the defendant is guilty of first degree murder with malice, deliberation and premeditation. The defendant says he is not guilty.

This, defendant argues, gave unequal stress to the contentions of the State by "omitting defendant's contentions of self defense and accident." Defendant made no objection to this portion of the instruction and thereby waived objection. We find no plain error. State v. Odom, 307 N.C. 655, 300 S.E.2d 375 (1983). The trial judge fully instructed on self-defense and accident. The assignment of error is without merit.

Defendant argues that the trial court erred "in failing to explain the relationship between imperfect self-defense and voluntary manslaughter in response to a question from the jury after it had retired."

The jury,...