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North Carolina v. Cherry

Filed: September 4, 1979.

STATE OF NORTH CAROLINA
v.
JOHNNY CHERRY, ALIAS RAEFORD CHERRY



Appeal by defendant from Thornburg, J., 6 March 1978 Schedule "B" Session of Mecklenburg Superior Court.

Branch, Justice. Justice Brock did not participate in the consideration or decision of this case. Justice Huskins concurring and joins in the concurring opinion of Justice Carlton. Justice Carlton concurring.

Branch

Did the trial judge err by admitting into evidence a pistol seized without a search warrant from a motel room occupied by defendant at the time of his arrest?

Unreasonable searches and seizures are prohibited by the fourth amendment to the United States Constitution, and all evidence seized in violation of the Constitution is inadmissible in a State court as a matter of constitutional law. State v. Colson, 274 N.C. 295, 163 S.E.2d 376 (1968), cert. denied, 393 U.S. 1087. However, it must be borne in mind that only unreasonable searches and seizures are prohibited by the Constitution. Carroll v. United States, 267 U.S. 132, 69 L. Ed. 543, 45 S. Ct. 280 (1925). An unreasonable search has been defined as "an examination or inspection without authority of law of one's premises or person, with a view to the discovery of . . . some evidence of guilt to be used in the prosecution of a criminal action." State v. Robbins, 275 N.C. 537, 169 S.E.2d 858 (1969). The protection against unreasonable searches and seizures is "the security a man relies upon when he places himself or his property within a constitutionally protected area, be it his home or his office, his hotel room or his automobile. There he is protected from unwarranted governmental intrusion." Hoffa v. United States, 385 U.S. 293, 301, 17 L. Ed. 2d 374, 87 S. Ct. 408 (1966). It is basic that, subject to a few specifically established exceptions, searches conducted without a properly issued search warrant are per se unreasonable under the fourth amendment, Katz v. United States, 389 U.S. 347, 19 L. Ed. 2d 576, 88 S. Ct. 507 (1967), and the best assurance of reasonableness lies in obtaining a properly issued search warrant. Two of the recognized exceptions, pertinent to decision of this assignment of error, are search incident to a lawful arrest, Harris v. United States, 331 U.S. 145, 91 L. Ed. 1399, 67 S. Ct. 1098 (1947); State v. Streeter, 283 N.C. 203, 195 S.E.2d 502 (1973), and seizure of items falling within the plain view doctrine, harris v. United States, 390 U.S. 234, 19 L. Ed. 2d 1067, 88 S. Ct. 992 (1968); State v. Alford, 289 N.C. 372, 222 S.E.2d 222 (1976), death sentence vacated, 429 U.S. 809. The United States Supreme Court has limited the scope of reasonable search when made incident to an arrest to the area from which the arrested person might have obtained a weapon or some item that could have been used as evidence against him. Chimel v. California, 395 U.S. 752, 23 L. Ed. 2d 685, 89 S. Ct. 2034 (1969); Shipley v. California, 395 U.S. 818, 23 L. Ed. 2d 732, 8. S. Ct. 2053 (1969). Even so this seemingly stringent rule has been subject to interpretation by other courts particularly in connection with the well-established rule that whether a search and seizure is unreasonable must be determined upon

the facts and circumstances surrounding each individual case. State v. Howard, 274 N.C. 186, 162 S.E.2d 495 (1968). We find it helpful to review some of these decisions.

In State v. Quinn, 565 S.W. 2d 665 (Mo. Ct. App. 1978), the defendant challenged the admission of a gun into evidence on the basis that it was the product of an illegal search and seizure. In Quinn there had been an armed robbery, and the victim had described his assailants to the police. The police officers having these descriptions saw defendant and a Miss Sullivan, who fit the descriptions furnished the police, sitting on the steps of a building. Defendant had a brown bag 18 by 24 inches in size in his hand, and when the police officers called him to their car, he handed the bag to Miss Sullivan. When she was also summoned to the automobile, she placed the bag on the step of the building. Thereupon, one of the officers picked up the bag because he "presumed it was their property." Although he could not see the gun, he "felt" it when he picked up the bag. The Court of Appeals of Missouri, upon viewing the totality of the circumstances, found no violation of defendant's fourth amendment rights and in so holding, in part, reasoned:

and reasonable action was to retrieve the bag, and, upon taking possession of the bag, the officer was justified in taking the gun found in the fold. . . .

The Supreme Court of the United States in United States v. Chadwick, 433 U.S. 1, 53 L. Ed. 2d 538, 97 S. Ct. 2476 (1977), again approved a warrantless search when made incident to a lawful arrest in the following language:

Such searches may be conducted without a warrant, and they may also be made whether or not there is probable cause to believe that the person arrested may have a weapon or is about to destroy evidence. The potential dangers lurking in all custodial arrests makes warrantless searches of items within the "immediate control" area reasonable without requiring the arresting officer to calculate the probability that weapons or destructible evidence may be involved. . . .

State v. Austin, 584 P. 2d 853 (Utah 1978), is a case strikingly similar to the case before us for decision. There defendant was convicted of aggravated robbery, and at trial moved to suppress certain charred papers found in a waste basket in his hotel room and a roll of nickels found on a chair in the hotel room where he was arrested. The trial judge denied defendant's motion to suppress, and in affirming that ruling, the Supreme Court of Utah stated:

Appellant does not challenge the legality of his arrest but maintains that because he was handcuffed, he had no "control" over the area; therefore, the search cannot be justified under the Chimel standard. . . .

The effect of putting handcuffs on the person under arrest has not been held to negate the existing circumstances surrounding a search but is considered to be only one factor in determining the necessity for the search. Several jurisdictions have addressed this specific issue. In State v. Cox [294 Minn. 252, 200 N.W. 2d 305 (1972)] a search was made after handcuffing the defendant. The Minnesota Court held as follows:

In People v. Floyd the New York Court said at page 563, 312 N.Y.S. 2d at page 196, 260 N.E. 2d at page 817:

It thus appears that the defendant in custody need not be physically able to move about in order to justify a search within a limited area once an arrest has been made. This same position was affirmed in People v. Fitzpatrick [32 N.Y. 2d 499, 346 N.Y.S. 2d 793, 300 N.E. 2d 139 (1973), cert. denied, 414 U.S. 1033]:

In the instant matter, the police went to the hotel and knocked on the door. They were admitted into the room where they proceeded to arrest the appellant. Any subsequent search of the immediate area, whether to find concealed weapons or to preserve evidence that was in danger of being destroyed, was proper as incident to a valid arrest. No

warrant was required as long as the search was properly confined to a limited area within the appellant's control. Here, the search was restricted to a single room where the defendant was arrested and held in custody. He was present during the search. Under the foregoing authorities, we hold that a search so limited is valid without a warrant.

In United States v. Wright, 577 F.2d 378 (6th Cir. 1978), the United States Court of Appeals (6th Cir.), in considering a contention that there was an illegal search and seizure succinctly stated:

In instant case, the evidence before the Court tends to show that a man registered at Orvin Inn under the name of Luther Davis. At approximately 11:45 a.m. on 16 September 1977, Charlotte police officers armed with a valid warrant for the arrest of defendant came to the motel premises and asked the manager for a key to Room 270. The manager furnished the key stating, "Do what you got to do." Thereupon, the officers knocked on the door to Room 270, identified themselves as police officers and demanded that the door be opened. A short time later, a scantily clad woman ran from the room and informed the officers that defendant Cherry was in the room and that he had a pistol. Defendant did not respond to the officers' continued demands that he come out of the room for a period of about thirty minutes. Finally, he came to the door and stuck his hands out. He was handcuffed, and the officers entered the room and seated defendant in a chair. The room was approximately nine feet by twelve feet in size, and there were several police officers in the room. One of the policemen observed a lump in the rug in the corner of the room and said, "There is your gun." The rug was pulled back and a .38 caliber pistol introduced at trial as State's Exhibit 15 was seized.

Defendant does not contend that his arrest was illegal. The officers handcuffed defendant and entered the motel room to effect defendant's arrest and did not make entry for the purpose of making a general search for evidence of defendant's guilt. Thus, the officers were in a place where they had a right to be and inadvertently

observed the lump in the rug which was in plain view. The nine by twelve foot motel room was an area under defendant's immediate control, and the officers saw the lump in the rug with the knowledge that defendant had a gun in the area which was under his immediate control. Thus, it was proper and reasonable for the officers to examine the suspicious lump in the rug which was in plain view and to seize the weapon from this area. The fact that defendant was handcuffed did not affect the lawfulness of the seizure. Further, to have required the officers to obtain a search warrant under these conditions would be to refute the test of reasonableness required by the fourth amendment to the United States Constitution.

We hold that there was no unreasonable search and seizure and that the trial judge correctly denied defendant's motion to suppress.

Defendant assigns as error the ruling of the trial judge excluding certain evidence at the sentencing phase of the trial. The evidence excluded was:

(1) Affidavit of one Lloyd McClendon that he had been convicted of felony murder in New Mexico and received a sentence of death; that he received a new trial and upon his second trial received a sentence of life imprisonment; that he has been released from prison, is successfully rehabilitated and now holds a responsible government position in the State of Ohio.

(2) Affidavit of Dr. William Bowers that the death penalty is counterproductive as a deterrent to crime.

(3) Affidavit of a newspaper reporter to the effect that he believed innocent persons are executed from time to time.

(4) Affidavits from several ministers expressing their opposition to the death penalty on religious grounds.

Defendant initially argues that the trial judge unduly limited the jury's consideration of mitigating evidence in violation of the provisions of G.S. 15A-2000(f)(9). That statute in pertinent part provides that at the sentencing phase of the bifurcated trial, the jury may consider "any other circumstance arising from the evidence which the jury deems to have mitigating value." G.S.

15A-2000(a)(3) provides in part that, "Evidence may be presented as to any matter that the court deems relevant to sentence . . . or . . . to have probative value."

The language of this statute does not alter the usual rules of evidence or impair the trial judge's power to rule on the admissibility of evidence. However, defendant argues that our North Carolina case law mandates the admission of this evidence. We do not agree. Our examination of the cases cited by defendant in support of this position discloses that the factors to be considered in sentencing are the defendant's age, character, education, environment, habits, mentality, propensities and record. State v. Stafford, 274 N.C. 519, 164 S.E.2d 371 (1968); State v. Dye, 268 N.C. 362, 150 S.E.2d 507 (1966); State v. Cooper, 238 N.C. 241, 77 S.E.2d 695 (1953). Such matters are obviously relevant in considering mitigation of punishment.

Generally, evidence is relevant and admissible when it tends to shed any light on the matter at issue. Evidence which has no such tendency is inadmissible. 1 Stansbury, North Carolina Evidence, section 77 (Brandis rev. 1973). The evidence here offered and excluded by the trial judge was in no way connected to defendant, his character, his record or the circumstances of the charged offense. It was, therefore, irrelevant and of no probative value as mitigating evidence in the sentencing procedure of defendant's trial. Thus, the trial judge's ruling excluding this evidence did not unduly limit the jury's consideration of mitigating factors in violation of G.S. 15A-2000(f)(9).

Even so, defendant further argues that the trial judge's failure to admit this evidence limited the jury's consideration of mitigating factors so as to violate his rights guaranteed by the eighth and fourteenth amendments to the United States Constitution. In support of this argument, defendant relies upon the case of Lockett v. Ohio, U.S. , 57 L. Ed. 2d 973, 98 S. Ct. 2954 (1978). In Lockett the defendant attacked the constitutionality of the Ohio death statute on the grounds that the statute narrowly limited the sentencer's discretion. The statute provided that once a person is convicted of aggravated murder with at least one of seven specified aggravating circumstances the death penalty must be imposed unless the sentencing judge determined that at least one of the following mitigating circumstances is established

by a preponderance of the evidence: "(1) The victim of the offense induced or facilitated it. (2) It is unlikely that the offense would have been committed but for the fact that the offender was under duress, coercion or strong provocation. (3) The offense was primarily the product of the offender's psychosis or mental deficiency . . . ." Holding that the Ohio statute was unconstitutional in that it limited consideration of mitigating factors, the Supreme Court in an opinion delivered by Chief Justice Burger, in part, stated:

We are now faced with those questions and we conclude that the Eighth and Fourteenth Amendments require that the sentencer, in all but the rarest kind of capital case, not be precluded from considering as a mitigating factor, any aspect of a defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death. . . .

The limited range of mitigating circumstances which may be considered by the sentencer under the Ohio statute is incompatible with the Eighth and Fourteenth Amendments. To meet constitutional requirements, a death penalty statute must not preclude consideration of relevant mitigating factors.

We note that Lockett and our older North Carolina cases are in accord in holding that the matters which cannot be excluded are relevant mitigating factors, i.e., any aspect of defendant's character or record and any circumstances of the charged offense offered by a defendant in mitigation. Although there was no attack upon the constitutionality of the North Carolina statute, under this assignment of error, we note that our statute is not as limited or restrictive as was the Ohio statute considered in Lockett.

We hold that this patently irrelevant evidence was correctly excluded by the trial judge.

Defendant assigns as error the failure of the trial judge to set aside the jury's sentencing recommendation on the ground that the jurors considered matters dehors ...


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