These appeals present a number of questions, the most important of which are raised by both defendants and involve (1) the legality of a warrantless search of defendants' military billets and seizure therefrom of various items by military authorities and the ultimate delivery of some of these items to civilian authorities for use as evidence against defendants; and (2) the consolidation for trial of the charges against each defendant. We find no error in these procedures or in any other aspect of the trial.
The evidence for the state tends to show that on 16 December 1977, Margaret and Eugene Macek, who were returning to their home in Newcastle, Pennsylvania, following a honeymoon trip to Florida, stopped for the night at Motel 6 in Cumberland County. After registering they drove their car to a parking place in front of their assigned room. Both went inside briefly. Mr. Macek, after instructing his wife to lock the door and to admit no one other than him, returned to the car to get their luggage. Moments later Mrs. Macek heard a knock at the door, and her husband identified himself. When she opened the door, two black males were standing behind her husband. One of them had a small gun pointed at her husband's head. Both men, forcing Mr. Macek ahead of them, entered the room. They forced Mr. and Mrs. Macek to disrobe and bound and gagged Mr. Macek. The men then forced Mrs. Macek to submit to repeated sexual intercourse and fellatio with them. They then bound and gagged Mrs. Macek and sexually assaulted her with a tube of toothpaste. The two assailants fled, taking with them money and jewelry belonging to the couple.
Both defendants were arrested on 22 December 1977 in connection with another incident at the Americana Motel involving Evelyn and Morris Friedman.
Jolly testified that he had loaned his car to Nelson on 16 December 1977. He said Nelson sold him the Macek jewelry found among his belongings.
Nelson testified that he asked to borrow Jolly's car but never actually borrowed it. He further testified that he had purchased from an unidentified man Mr. Macek's watch. He said he had not sold the Macek jewelry to Jolly and had never before seen it.
After defendants were arrested and confined to the county jail on 22 December 1977 military personnel at Ft. Bragg, pursuant to military regulations,
Lt. Gorwitz and Sgt. Cromartie, both assigned to "C" Battery, 1st Battalion, 39th Field Artillery (Nelson's unit), inventoried Nelson's property on 24 December. After reading a newspaper account of the Macek incident which included a description of some of the jewelry taken from the Maceks, then Lt. Wood, Nelson's Battery Commander,
On 30 December military personnel in charge delivered the items (except for one item) taken from the billets of Jolly and
Prior to trial Judge Maurice Braswell conducted a hearing on defendants' motions to suppress these items on the ground that they were unconstitutionally taken from defendants' military billets. Evidence offered at this hearing does not appear in the record, but Judge Braswell made findings of fact which essentially accord with the above recitation. He denied the motion and the items were ultimately offered in evidence as described.
Defendants, relying on Fourth Amendment proscriptions, assign as error the denial of their motion to suppress and the introduction into evidence of the jewelry. We find no merit in this assignment.
The search by military authorities of a military billet of a soldier detained by civilian authority, or otherwise absent without leave, to make inventory of his belongings and to secure them for safeguarding pursuant to military regulation without any investigative purpose is not an unreasonable search or seizure proscribed by the Fourth Amendment. Both actions may be consummated without a warrant. This kind of search and seizure is analogous to that permitted of impounded automobiles by police in South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976). The Court there approved a police inventory and seizure of belongings in an impounded automobile without a warrant. Police found marijuana during their inventory of the contents of defendant's car. Defendant, later charged with criminal possession of this marijuana, moved to suppress evidence of his crime on the ground that it was obtained in violation of the Fourth Amendment. The United States Supreme Court, disagreeing with the Supreme Court of South Dakota, held that the trial court properly denied this motion. It concluded that "the conduct of the police was not `unreasonable' under the Fourth Amendment." Id. at 376, 96 S.Ct. at 3100. The Court's opinion observed that (1) persons have a diminished expectation of privacy in automobiles, (2) inventories of impounded cars are routinely conducted pursuant to standardized police procedures without any investigative purpose, and (3) the inventories serve both to protect police against hazardous materials and civil claims for property loss and to protect the public against loss of their property.
This Court recently had occasion to discuss and distinguish Opperman in State v. Phifer, 297 N.C. 216, 254 S.E.2d 586 (1979). We noted that Opperman stood essentially for the proposition that "the benefits in safety and protection of private property provided by a standardized police inventory outweigh the intrusion upon the diminished privacy interests of an owner whose automobile has been lawfully impounded." Id. at 220, 254 S.E.2d at 588. Justice Huskins, for this Court in Phifer, wrote, id. at 220-21, 254 S.E.2d at 588:
We concluded in Phifer that the search could not be justified as a "valid inventory search" because the officers "did not comply with pertinent portions of standard procedures in effect at the time of defendant's arrest for the towing, inventory, storage and release of impounded vehicles. See City of Charlotte Code §§ 20-20 through 24 (superseded 24 July 1978)." Id. at 221, 254 S.E.2d at 588.
This case differs from Opperman and Phifer in that here we deal not with an automobile but with soldiers' billets. Solution here, however, does not depend on the proposition that a soldier has the same "diminished" expectation in his quarters as does a motorist in his car. Whatever a soldier's expectation of privacy in his quarters may be, it is not absolute and must yield to "those intrusions which are reasonably related to a legitimate Governmental interest in those quarters." United States v. Hines, 5 M.J. 916, 919 (A.C.M.R.1978). Inventories under certain circumstances of these quarters are justified by the need for safeguarding property owned by or within the control or custody of the government, protecting the government against claims on disputes arising from loss or theft of the property, and protecting against the hazards of storing dangerous materials. Id. Such inventory "searches" have been regularly upheld. See e. g., United States v. Welch, 19 C.M.A. 134, 41 C.M.R. 134 (1969); United States v. Kazmierczak, 16 C.M.A. 594, 37 C.M.R. 214 (1967).
Judge Braswell found as a fact after hearing evidence on defendants' motion to suppress that the inventories of defendants' belongings conducted on 24 December were: (1) pursuant to military regulation (referring to those sections of Field Manual 27-1, set out at n. 2, supra; (2) for the purpose of securing defendants' property for the protection of both the Army and defendants; and (3) routine without any subterfuge, ulterior motive, or investigative purpose. The 24 December warrantless intrusions of defendants' billets and the securing of defendants' property found therein were, consequently, constitutionally permissible.
The 27 December examinations of defendants' property, however, were not neutral of investigatory purpose. Both officers who then examined the property did so only after reading newspaper coverage of the Macek incident. We recognize that an initial permissible intrusion into a constitutionally protected zone does not per se validate a subsequent intrusion.
The cases generally hold that these kinds of "second looks" at items already once seen are not another search subject to Fourth Amendment proscriptions. In United States v. Grill, 484 F.2d 990 (5th Cir. 1973), cert. denied, 416 U.S. 989, 94 S.Ct. 2396, 40 L.Ed.2d 767 (1974) an arrestee's personal effects were inventoried, among them a key. The Court held that it was constitutionally permissible for officers to return for a "second look" at the key, without a warrant, when a federal agent brought a lock to the jail to see if the key would fit. Several courts have held that serial numbers on currency lawfully inventoried could be later examined by police without a warrant. United States v. Lacey, 530 F.2d 821 (8th Cir. 1976), cert. denied, 429 U.S. 845, 97 S.Ct. 125, 50 L.Ed.2d 115; United States v. Jenkins, 496 F.2d 57 (2nd Cir. 1974), cert. denied, 420 U.S. 925, 95 S.Ct. 1119, 43 L.Ed.2d 394 (1975) (police officers "simply looked again at what they had already— lawfully—seen."); Westover v. United States, 394 F.2d 164 (9th Cir. 1968). In People v. Rivard, 59 Mich.App. 530, 230 N.W.2d 6 (1975), an officer noticed a ring during an inventory of an arrestee's personal property. Learning the next day that the ring probably matched a description on a list of stolen property, the officer went back for a "second look." The Court held that no warrant was required, saying, "a search warrant to again look at [a] ring, already in police custody, does not make sense." Finally, the Supreme Court in United States v. Edwards, 415 U.S. 800, 94 S.Ct. 1234, 39 L.Ed.2d 771 (1974), held permissible a warrantless laboratory examination of a suspect's clothing seized from him on the day after the administrative mechanics of arrest and incarceration had been completed saying, "it is difficult to perceive what is unreasonable about the police's examining and holding as evidence those personal effects of the accused that they already have in their lawful custody as the result of a lawful arrest." Id. at 806, 94 S.Ct. at 1238.
The statements in Rivard and Edwards may be rendered too broadly in view of United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977). There officers lawfully seized a footlocker incident to the arrest of its owners. Having probable cause to believe that the footlocker contained contraband, they searched it without a warrant and discovered marijuana. The Supreme Court held the Fourth Amendment required a search warrant to open the trunk saying, "[t]here being no exigency, it was unreasonable for the Government to conduct this search [of the footlocker] without the safeguards a judicial warrant provides." Id. at 11, 97 S.Ct. at 2483.
Defendants contend finally that surrender of this evidence by military to civilian authorities violated the Posse Comitatus Act, 18 U.S.C. § 1385
We find, however, no violation of the Act by military authorities in this case. The legislative purpose of the Posse Comitatus Act is to preclude the direct active use of federal troops in aid of execution of civilian laws. Gillars v. United States, 87 U.S.App.D.C. 16, 182 F.2d 962 (D.C. Cir. 1950); United States v. Red Feather, 392 F.Supp. 916 (D.S.D.1975). Passive activities of military authorities which incidentally aid civilian law enforcement are not precluded. United States v. Red Feather, supra. "[T]he statute is limited to deliberate use of armed force for the primary purpose of executing civilian laws more effectively than possible through civilian law enforcement channels, and . . . those situations where an act performed primarily for the purpose of insuring the accomplishment of the mission of the armed forces incidentally enhances the enforcement of civilian law do not violate the statute." Furman, Restrictions Upon Use of the Army Imposed by the Posse Comitatus Act, 7 Mil.L. Rev. 85, 128 (1960).
Here the military authorities' surrender of evidence to civilian authorities for use in a civilian criminal prosecution of soldiers is only a passive involvement in the enforcement of civilian law. The military inventory which led ultimately to the surrender of evidence was initially conducted for military purposes. Only incidentally did it enhance the effectiveness of civilian law enforcement.
Defendants' assignments of error directed to the introduction of items discovered in the inventory of their military billets are, consequently, overruled.
Both defendants assign error to the consolidation of their trials and the denial of repeated motions for severance. They argue that consolidation should not have been permitted because (a) their defenses were antagonistic and (b) evidence admissible against only one defendant was allowed to be considered against both. Defendant Jolly argues, further, that consolidation permitted his former attorney, Mr. Williams, assistant public defender, now representing Nelson, to cross-examine Jolly on behalf of Nelson's defense. We have carefully considered these arguments and find no error in the consolidation.
One of the statutory bases for joining two or more defendants for trial is that each defendant is sought to be held accountable for the same crime or crimes. G.S. 15A-926(b)(2)a. In such cases public policy strongly compels consolidation as the rule rather than the exception. As said in Parker v. United States, 404 F.2d 1193, 1196 (9th Cir. 1968), cert. denied, 394 U.S. 1004, 89 S.Ct. 1602, 22 L.Ed.2d 782 (1969), consolidation
Joinder of defendants should not be permitted, however, if severance is necessary for "a fair determination of . . . guilt. . . ." G.S. 15A-927(c)(2)a and b. See also ABA Standards Relating to Joinder and Severance, § 2.3 (Approved Draft, 1968). The propriety of joinder depends upon the circumstances of each case. Absent a showing that a defendant has been deprived of a fair trial by joinder, the trial judge's discretionary ruling on the question will not be disturbed. State v. Brower, 289 N.C. 644, 224 S.E.2d 551 (1976); see also State v. Slade, 291 N.C. 275, 229 S.E.2d 921 (1976); State v. Jones, 280 N.C. 322, 185 S.E.2d 858 (1972).
Defendants argue that certain inconsistencies in their respective testimony amounted to "antagonistic defenses" requiring that they be given separate trials. They point to Jolly's testimony that he loaned his car to Nelson on 16 December and that certain items of jewelry found in his locker were sold to him by Nelson sometime after that date, and to Nelson's testimony denying the truth of these statements by Jolly. Defendants rely upon State v. Madden, 292 N.C. 114, 121, 232 S.E.2d 556, 661 (1977), in which this Court approved joinder where neither defendant "attempted to incriminate the other" and their defenses were not "antagonistic." Madden, however, does not mean that antagonistic defenses necessarily warrant severance. The test is whether the conflict in defendants' respective positions at trial is of such a nature that, considering all of the other evidence in the case, defendants were denied a fair trial. G.S. 15A-927(c)(2). In a case where antagonistic defenses were urged as a ground for severance this Court said long ago, "Unless the accused suffered some apparent and palpable injustice in the trial below, this court will not interfere with the decision of the court on the motion for a severance." State v. Finley, 118 N.C. 1162, 1163, 24 S.E. 495, 496 (1896).
Prejudice would ordinarily result where codefendants' defenses are so irreconcilable that "the jury will unjustifiably infer that this conflict alone demonstrates that both are guilty." Rhone v. United States, 125 U.S.App.D.C. 47, 48, 365 F.2d 980, 981 (D.C. Cir. 1966). Severance should ordinarily be granted where defenses are so discrepant as to pose an evidentiary contest more between defendants themselves than between the state and the defendants. See ABA Standards Relating to Joinder and Severance 41 (Approved Draft, 1968). To be avoided is the spectacle where the state simply stands by and witnesses "a combat in which the defendants [attempt] to destroy each other." People v. Braune, 363 Ill. 551, 557, 2 N.E.2d 839, 842 (1936). Many cases illustrative of varying results but generally supporting these principles are collected in Annotation, "Antagonistic Defenses as Ground for Separate Trials of Co-Defendants in a Criminal Case," 82 A.L. R.3d 245 (1978).
In Cain v. State, 235 Ga. 128, 218 S.E.2d 856 (1975), defendant's testimony that he had never been at the scene of the crime was directly contradicted by his codefendants' story that they had waited in a car while defendant shot and robbed a motel owner. The Georgia Supreme Court found no error in denial of defendant's motion for severance. Although previous Georgia cases had approved joinder on the basis that codefendants' testimony was not "contradictory," Cain made it clear that those cases
We conclude that defendants here were not denied a fair trial by the joinder notwithstanding the conflicts in their testimony. This is not a case where the state simply stood by and relied on the testimony of the respective defendants to convict them. The state itself offered plenary evidence of both defendants' guilt. Neither defendant testified directly to the other's guilt. Both denied any participation in the crime. Each defendant was subject to cross-examination by the other. Had separate trials been granted, Jolly could have testified to the same matters tending to implicate Nelson at Nelson's separate trial. The conflict between each defendant's respective testimony was not of such magnitude when considered in the context of other evidence that the jury was likely to infer from that conflict alone that both were guilty.
Defendants next argue that joinder permitted evidence competent against only one defendant to be considered against the other. This consequence of joinder, they say, was aggravated because the trial judge in reviewing the evidence against Nelson alluded to items of stolen jewelry which the state's evidence tended to show was found in Jolly's locker.
That the jury might have considered evidence competent only against one defendant as evidence against the other is a consequence defendants might have avoided had they made timely objections and motions for limiting instructions. "Where testimony incompetent as to one defendant is admitted without objection and without request that its admission be limited, an exception thereto will not be sustained." State v. Case, 253 N.C. 130, 137, 116 S.E.2d 429, 434 (1960), cert. denied, 365 U.S. 830, 81 S.Ct. 717, 5 L.Ed.2d 707 (1961). See also State v. Pierce, 36 N.C. App. 770, 245 S.E.2d 195 (1978); State v. Kessack, 32 N.C. App. 536, 232 S.E.2d 859 (1977). In Pierce different items of stolen property were shown to have been in the possession of each defendant after a breaking and entering. No limiting instructions were given. The Court of Appeals said that defendants
This Court has held that even a general objection by a codefendant against whom evidence is inadmissible will suffice to require the trial judge to give limiting instructions. State v. Franklin, 248 N.C. 695, 104 S.E.2d 837 (1958). The record here, however, is devoid of any general objection, much less a request for limiting instructions, by either defendant as to testimony regarding items obtained from their respective lockers. That the evidence might have been generally considered is, therefore, no error. State v. Smith, 291 N.C. 505, 231 S.E.2d 663 (1977); State v. Gosnell, 38 N.C. App. 679, 248 S.E.2d 756 (1978).
Jolly argues that the joint trial permitted his former attorney, Mr. Williams, who represented Nelson at trial, to cross-examine Jolly and argue Jolly's exclusive guilt to the jury on behalf of Nelson. Jolly contends that Mr. Williams actually "prosecuted" him and that to permit such "prosecution" by his former attorney denied him a fair trial.
Mr. Williams, Nelson's trial counsel, had originally represented both Nelson and Jolly as an assistant public defender. On 5 January 1978 the court, after finding that an apparent conflict between the defendants precluded Williams from representing both defendants, appointed Mr. Fleishman as counsel for Jolly. At trial Mr. Williams' cross-examination of Jolly was directed at discrediting Jolly's testimony. Mr. Williams argued to the jury on behalf of defendant Nelson that the evidence tended to show that Jolly and not Nelson was guilty. The record is devoid of any suggestion that Mr. Williams obtained information by way of confidential communications from Jolly during their attorney-client relationship, used such information, or in any way relied on his former representation of Jolly to Jolly's disadvantage at the trial.
Since the cornerstone of Jolly's argument is that it was unfair to his interest
As we understand it, however, Jolly's argument does not attack Mr. Williams' cross-examination or jury argument as such. Jolly urges us instead to hold that prejudice warranting a new trial automatically results to a defendant whose opposing codefendant is represented by counsel who formerly
Not before us is whether Mr. Williams should have voluntarily sought to withdraw from the case
Here Jolly has failed to show prejudice arising from having his former lawyer represent his codefendant Nelson at trial. The questions asked Jolly on cross-examination by Mr. Williams and Mr. Williams' argument to the jury carry not the slightest suggestion that they were engendered by information obtained during Mr. Williams' representation of Jolly or that this representation put Jolly at any other disadvantage at his trial. Further defendant's acquiescence in the adverse representation of his former lawyer weighs heavily against him on appeal. United States v.
Both defendants assign error to the denial of their motions for mistrial made after the trial court excused a juror and substituted an alternate. Before the lunch break on Friday, 29 September 1978, it became obvious that the case could not be concluded by the day's end. The court had already decided not to hold sessions on the next Monday or Tuesday, October 2-3, in deference to Jolly's attorney's request to be excused for Jewish religious holidays. In view of the long break ahead, the trial court asked members of the jury whether they could appear on Saturday. All but Mrs. Henson, Juror No. 11, indicated that they could. The judge excused Mrs. Henson at 4:25 p.m. on 29 September and substituted the alternate juror.
Defendants' contention that the excusal constituted prejudicial error requiring a mistrial is without merit. The trial judge has broad discretion in supervising the selection of the jury to the end that both the state and defendant may receive a fair trial. State v. McKenna, 289 N.C. 668, 224 S.E.2d 537, death sentence vacated, 429 U.S. 912, 97 S.Ct. 301, 50 L.Ed.2d 278 (1976). This discretionary power to regulate the composition of the jury continues beyond empanelment. State v. Kirkman, 293 N.C. 447, 238 S.E.2d 456 (1977). It is within the trial court's discretion to excuse a juror and substitute an alternate at any time before final submission of the case to the jury panel. G.S. 15A-1215. These kinds of decisions relating to the competency and service of jurors are not reviewable on appeal absent a showing of abuse of discretion, or some imputed legal error. State v. Waddell, 289 N.C. 19, 220 S.E.2d 293 (1975), death sentence vacated, 428 U.S. 904, 96 S.Ct. 3211, 49 L.Ed.2d 1210; State v. McNair, 36 N.C. App. 196, 243 S.E.2d 805 (1978).
Here no prejudice, abuse of discretion, or legal error has been shown to result from the excusal of Mrs. Henson. The alternate substituted in her place in accordance with G.S. 15A-1215 had been subject to a challenge, peremptory or for cause, by defendants, G.S. 15A-1217. The alternate was empaneled with the other jurors and heard all the evidence. A defendant "is not entitled to a jury of his choice and has no vested right to any particular juror. So long as the jurors who are actually empaneled are competent and qualified to serve, defendant may not complain . . . ." State v. McKenna, supra, 289 N.C. at 681, 224 S.E.2d at 546.
In a related argument Jolly assigns error to the denial of his motion for continuance. Jolly's attorney, Mr. Fleishman, moved for continuance prior to trial on the grounds that it would be impossible to complete trial during the week of 25 September and he would not be present the next Monday or Tuesday because of religious holidays. Jolly now argues in his brief that denial of this motion was an abuse of the trial court's discretion "insofar as this issue relates to [substituting the alternate juror]." Presumably "this issue" refers to the fact that the parties were aware in advance that the trial would last longer than a week and that there would be a long break due to Mr. Fleishman's absence for two days of the second week. In any case, we fail to see how Jolly was prejudiced by denial of the continuance. The prospect of a lengthy break in a lengthy trial was occasioned by Jolly's own attorney's desire, however commendable, to put in an appearance before an authority higher than the secular bench. Jolly should not now be heard to complain of a delay brought about by his own counsel. This assignment is overruled.
Both defendants assign error to the admission in evidence of a black holster and a
The "test" of relevance is whether an item of evidence tends to shed any light on the inquiry or has as its only effect the exciting of prejudice or sympathy. See State v. Brown, 294 N.C. 446, 242 S.E.2d 769 (1978), and cases cited therein. In the present case, testimony of the Maceks tended to show that their assailants had been armed with a "short golden type or silver pistol" on 16 December. The state contends that the presence of a holster and small caliber ammunition in Jolly's car on 22 December is "of some relevance" in that it shows Jolly probably carried a pistol at one time. It is arguable that the challenged evidence may have some probative value in tending to establish Jolly's possession of a small gun at some time prior to 22 December. "[I]n a criminal case, any evidence which sheds light upon the supposed crime is admissible." State v. Bundridge, 294 N.C. 45, 58, 239 S.E.2d 811, 820 (1978), citing State v. Hamilton, 264 N.C. 277, 141 S.E.2d 506 (1965), cert. denied, 384 U.S. 1020, 86 S.Ct. 1936, 16 L.Ed.2d 1044 (1966). "[T]he evidence need not bear directly on the issue and . . . the inference to be drawn need not be a necessary one." 1 Stansbury's North Carolina Evidence § 78 (Brandis rev. 1973); see generally id. §§ 77, 78, and cases cited therein. In Bundridge the trial court in a prosecution for assault and armed robbery allowed in evidence bloodstained clothing seized at defendant's residence on the night of the crime, though there was no showing that defendant had worn the clothing at the time in question or that the stains were of the victim's blood. Our Court held the evidence admissible, finding a reasonable connection between the clothing and the crime.
Here, however, the link between holster and ammunition seized from Jolly's car on 22 December and the possession of a gun by the Macek's assailants some six days earlier is more attenuated than the circumstantial connection in Bundridge. Yet even if the evidence here was technically incompetent, defendants have not demonstrated prejudice by its admission. An examination of the entire record reveals that evidence of the holster and bullets constituted an insignificant part of the state's case. The items were used by the state only once at trial and were not mentioned in the judge's review of the evidence. In light of other considerable evidence against defendants, there is no reasonable basis to believe the jury would have returned a different verdict had this particular evidence been excluded. Its admission, if error, was therefore harmless. G.S. 15A-1443; State v. Hudson, 281 N.C. 100, 187 S.E.2d 756 (1972), cert. denied, 414 U.S. 1160, 94 S.Ct. 920, 39 L.Ed.2d 112.
In their various assignments of error to the trial court's jury instructions, defendants first contend that the instruction defining constructive breaking had no application to the facts of this case.
The court instructed the jury that a "breaking" may be shown where the defendant, by threat or force, inspires such fear as to induce the occupants to allow him to enter. This definition is in accord with those previously approved by this Court. A "breaking" in the law of burglary constitutes any act of force, however slight, employed to effect an entrance; a constructive breaking occurs where entrance is obtained as a consequence of violence commenced or threatened by defendant. See State v. Jolly, supra, 297 N.C. 121, 254 S.E.2d 1; State v. Wilson, 289 N.C. 531, 223 S.E.2d 311 (1976); State v. Rodgers, 216 N.C. 572, 5 S.E.2d 831 (1939). The evidence here tends to show that one of the defendants pointed a gun at Mr. Macek as he was standing at the door of his motel room. When Mrs.
Both defendants next complain that the trial court erred in refusing to submit tendered instructions on lesser included offenses. Jolly contends the court should have instructed on the lesser offense of felonious breaking or entering. Nelson maintains the court should have charged with respect to second degree burglary. Neither proposition is correct. A jury should be instructed on a lesser included offense only when there is evidence tending to show that such lesser crime was committed. State v. Fleming, 296 N.C. 559, 251 S.E.2d 430 (1979). To justify a finding of felonious breaking or entering, there must be evidence tending to show that entry was obtained otherwise than by a burglarious breaking. State v. Jolly, supra, 297 N.C. 121, 254 S.E.2d 1. The evidence here plainly tends to show only a burglarious breaking. To justify a charge on second degree burglary, there must be evidence from which the jury could find that the dwelling house or sleeping apartment in question was unoccupied at the time of the breaking. State v. Tippett, 270 N.C. 588, 155 S.E.2d 269 (1967). The uncontradicted testimony of Mrs. Macek was that she was in the motel room at the time the defendants gained entry. These assignments are overruled.
Jolly contends the court erred in telling the jury that the motel room was a "sleeping apartment" for purposes of applying the law of burglary. He correctly points to State v. Wells, 290 N.C. 485, 226 S.E.2d 325 (1976) where a similar instruction was held to be error, albeit harmless. In Wells, a first degree burglary case, the trial court instructed the jury that "[t]he apartment described for you [in the evidence]. . . is a sleeping apartment." This Court held that such an affirmative statement constituted an impermissible expression of opinion, or an assumption that a material fact had been proved. See G.S. 15A-1232, replacing in substance former G.S. 1-180. Here, however, as in Wells, such error as is shown by this part of the charge cannot have prejudiced defendant. There can be no serious contention that a motel room, regularly and usually occupied by travelers for the purpose of sleeping, is not in fact a "sleeping apartment" within the meaning of G.S. 14-51 and its predecessors. See State v. Foster, 129 N.C. 704, 40 S.E. 209 (1901). Nor did defendants contest the "sleeping apartment" issue at trial, other than by their general pleas of not guilty. Since there is no reasonable possibility that this error contributed to Jolly's conviction or that a different result would have obtained had the language complained of been omitted, the error is harmless. G.S. 15A-1443; State v. Wells, supra. Jolly yet urges this Court to grant a new trial as a means of insuring that the trial bench will cease giving this type of erroneous instruction. Judicial enactment of this kind of supervisory rule is unwarranted. "[E]rrors relating to rights arising under the statutory law of the State will not entitle defendant to a new trial unless he demonstrates that the error was material and prejudicial." State v. Jolly, supra, 297 N.C. at 126, 254 S.E.2d at 5; see G.S. 15A-1442 and 1443(a).
Officer Pronier testified at trial that the Maceks had selected the photo of one James King from a police photograph book. Testimony was admitted over objection concerning the officer's subsequent investigation of King. By his sixth assignment of error, Jolly asserts that such testimony was irrelevant and should have been excluded.
It is true, as Jolly contends in his brief, that the testimony about King "had no tendency to prove the probability or improbability of any fact in issue in this case." As such, its admission cannot have harmed defendant. Even where irrelevant or incompetent evidence is admitted, the burden
Jolly's seventh assignment of error relates to the trial court's denial of his motion for mistrial made after cross-examination by the state. Testifying on his own behalf, Jolly had some difficulty in recollecting whether an automotive repair shop had repaired his car on 14 or 16 December. The state showed him Exhibit No. 50, a dated receipt from the shop, to refresh his recollection. He then testified that the repairs had been made on 14 December. The receipt had previously been suppressed as evidence on the grounds that its seizure was the product of an unconstitutional search. Jolly's attorney objected to the use of Exhibit No. 50 for any purpose, and his motion for mistrial was denied.
Jolly's argument that the receipt was "tainted evidence" which was " used to impeach his recollection of events" is simply not supported by the record. The receipt was never admitted into evidence or shown to the jury. Where a writing is used to refresh the recollection of a witness, it is not the writing which is evidence but the testimony of the revived recollection. State v. Smith, supra, 291 N.C. 505, 231 S.E.2d 663 (1977); see generally 1 Stansbury's North Carolina Evidence § 32 (Brandis rev. 1973). There is nothing in the record to suggest that presentation of the receipt to defendant "impeached" his credibility in the eyes of the jury. Its use was limited to aiding him to clarify an uncertainty which he had already admitted.
Even if showing the receipt to Jolly was error of constitutional dimension, which we do not decide but which the state concedes, the error was harmless. The crime was committed on the night of 16 December. Whether defendant's car was repaired 14 or 16 December was immaterial. Had the suppressed receipt been fully admitted into evidence, its presence would have added nothing to the state's case. Since the receipt contributed in no way to Jolly's conviction, we are satisfied that the state has demonstrated, as it has the burden to do, that error in its use was harmless beyond a reasonable doubt. G.S. 15A-1443(b); see Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967); State v. Shutt, 279 N.C. 689, 185 S.E.2d 206 (1971), cert. denied, 406 U.S. 928, 92 S.Ct. 1805, 32 L.Ed.2d 130 (1972). In the absence of a showing of prejudicial error, the trial court properly denied the motion for mistrial. G.S. 15A-1061; State v. Chapman, 294 N.C. 407, 241 S.E.2d 667 (1978).
By his third and fourth assignments of error, Nelson seems to argue that the pre-trial lineup at which he was identified was constitutionally defective, and that the trial court erred in allowing Mrs. Macek to identify him in court by touching him on the shoulder.
Both of the Maceks independently selected Nelson from a lineup of six black males of substantially similar height and weight and wearing identical clothing. Both of the Maceks then witnessed a second lineup, similar in procedure. Jolly but not Nelson was in the second lineup. The Maceks selected someone other than Jolly. After completion of both lineups Detective Nash told the Maceks that they picked the "right person" in the first lineup but not in the second.
A careful study of Nelson's brief reveals that although Nelson argues that his lineup was impermissibly suggestive, no attempt is made to controvert the trial court's finding that the lineup was entirely proper. Instead, Nelson submits that the detective's comment after the lineup identification procedure must be considered together with the lineup as part of "the totality of the out-of-court procedures which in any way affected the witness' in-court identification." It is contended that because of improper out-of-court suggestiveness on the
In the first place, defendant seeks to apply the right law to the wrong facts. It is true that where the setting for pre-trial confrontation is found to have been unnecessarily suggestive and conducive to mistaken identification, a subsequent in-court identification will be rendered inadmissible unless it is first determined (usually upon voir dire) that the courtroom identification is of independent origin. State v. Henderson, 285 N.C. 1, 203 S.E.2d 10 (1974). The evil sought to be remedied by this exclusionary rule is the "substantial likelihood of irreparable misidentification," Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247 (1968). (Emphasis added.) Irreparability arises because the witness is apt to retain in his memory the image of a photograph or lineup participant rather than of the person actually seen committing the crime. In effect, when police manipulate suggestive elements of an identification procedure to convince a witness that "there is the man," the reliability of the witness' subsequent identification of the defendant in court can be so undermined as to violate due process. See Foster v. California, 394 U.S. 440 at 443, 89 S.Ct. 1127, 22 L.Ed.2d 402 (1969).
These principles of constitutional law do not apply to the facts of this case. The courtroom identification at issue here, indeed the only specific witness identification of either defendant in the entire record, occurred in the course of Mrs. Macek's testimony about the pre-trial lineups.
Upon objection by Nelson's attorney, the trial court intervened and asked Mrs. Macek to touch the person she was identifying on the shoulder. She left the stand and touched Nelson. By doing so, she did no more than identify Nelson as the man she had picked from the first lineup. Hence we are not faced with the sort of in-court "identification" which may suffer from the dubious ancestry of pre-trial suggestiveness. Mrs. Macek's identification of Nelson as the man she chose from the lineup is merely a part of her general testimony about the lineup itself. Its admissibility stands or falls with the admissibility of other testimony regarding the lineup. Having properly found that the lineup itself was free from undue suggestiveness, the trial court did not err in permitting the challenged testimony.
Second, assuming for the sake of argument that the identification at issue was an in-court, accusatory identification, we need not necessarily conclude that it was fatally tainted by pre-trial suggestiveness. It may be questioned at the outset whether a post lineup remark that the witness picked "the right person" was suggestive at all, or merely served to confirm what the witness already knew. Cf., United States v. Person, 155 U.S.App.D.C. 455, 478 F.2d 659 (D.C.Cir.1973) (remark to witness after lineup that she had "done well" in picking defendant does not materially affect the certainty of the in-court identification); Jackson v. State, 361 So.2d 1152 (Ala.Cr.App.1977) (officer's statement after lineup identification of "that is the man we are looking for" not unduly suggestive). In any case, the remark complained of can be viewed as impermissibly suggestive only to the degree that it served to strengthen an
Even if Nash's comment were such as to raise an aura of suggestiveness around the totality of the pre-trial identification process, the question remains whether the suggestiveness gave rise to a substantial likelihood of misidentification at trial. See Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977); Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972); State v. Headen, 295 N.C. 437, 245 S.E.2d 706 (1976). It is the strong probability of misidentification which violates a defendant's right to due process. Unnecessarily suggestive circumstances alone do not require the exclusion of identification evidence. The factors to be considered in evaluating the inherent reliability of the contested identification include: (1) the opportunity of the witness to view the criminal at the time of the crime; (2) the witness' degree of attention during the commission of the crime; (3) the accuracy of the witness' prior description of the criminal; (4) the level of certainty demonstrated by the witness at the challenged confrontation; and (5) the length of time between the crime and the confrontation. Neil v. Biggers, supra. Against these factors must be weighed the "corrupting influence" of any suggestive circumstances leading to and surrounding the contested identification. See Manson v. Brathwaite, supra.
Applying these standards, we find plenary evidence of the inherent reliability of Mrs. Macek's assumed courtroom identification of Nelson. It cannot be said that she suffered from lack of attention on the night of 16 December, or that she had little opportunity to view her rapists. "She was no casual observer, but rather the victim of one of the most personally humiliating of all crimes." Neil v. Biggers, supra, 409 U.S. at 200, 93 S.Ct. at 382-383. Although her eyes were shut during some moments of the sexual assaults, they were open well enough to see the man later identified from the lineup as Nelson: "I had a good view of his face as it was only a couple of inches from mine." She saw his clothes and the build of his legs. She later gave a fairly complete description of his age, height, weight, complexion, and other physical characteristics. This description matched well the characteristics exhibited by Nelson around the time of his arrest. There was no uncertainty manifested in court. Although there was a gap of over nine months between the crime and the courtroom confrontation, the negative force of this factor is lessened by the certainty of the first confrontation two weeks after the crime—a valid lineup in which the witness took "approximately one minute and three seconds" to pick out Nelson. Weighing this "totality of circumstances" against the possible suggestiveness of a single post lineup comment, it can hardly be said that Mrs. Macek's courtroom testimony was less than reliable. The ample opportunity of the victim to witness the events and actors of the night of 16 December supports a conclusion that her in-court "identification" of defendant Nelson had an origin sufficiently independent of the taint of a single improper remark.
Nor can there be error in the trial court's allowing the witness to touch Nelson on the shoulder. The touching of defendant simply served to remove any possibility of doubt as to the man about whom the witness was testifying. There is nothing improper or prejudicial in the trial court's insistence on certainty. See, e. g., State v. Cook, 280 N.C. 642, 187 S.E.2d 104 (1972) (no error to allow an eight-year-old rape victim to identify defendant by touching him).
Nelson's assignments of error 6 and 7 contest the trial court's denial of a motion to suppress State's Exhibit No. 25, a watch which had been seized from the Cumberland County jail pursuant to a search warrant.
No contention is made that Nelson did not have reasonable opportunity to submit the required motion prior to trial. Nor is there any suggestion that other circumstances existed which, under the statute, would permit a motion to suppress to be made at trial. Thus there is no error in the trial court's denial of the motion or in the failure to conduct a voir dire hearing. State v. Hill, 294 N.C. 320, 240 S.E.2d 794 (1978). Nelson's argument that the procedure provided by G.S. 15A-975 cannot take precedence "over a constitutional right" is without merit. Far from displacing any constitutional right, the statute merely provides for their timely assertion. It is not impermissible for a state to impose reasonable conditions on the assertion of motions to suppress evidence. See Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977).
These assignments of error are overruled.
In the trial of these defendants we find
CARLTON, J., did not participate in the consideration and decision of this case.
Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or the Air Force as a posse comitatus or otherwise to execute the laws shall be fined not more than $10,000 or imprisoned not more than two years, or both."
Lawyers' ethics, however, govern the conduct of advocates, not the advocates' forum. While it should be the policy of courts to give them effect, they do not per se shape the contours of due process. See Town of Mebane v. Insurance Co., 28 N.C. App. 27, 30, 220 S.E.2d 623, 625 (1975).