STATE of North Carolina
v.
Richard DeWayne McCLOUD.
No. 6918SC520.
Court of Appeals of North Carolina.
January 14, 1970.Atty. Gen. Robert Morgan, Staff Atty. Christine Y. Denson, and Staff Atty. T. Buie Costen, Raleigh, for the State.
Forrest E. Campbell, Greensboro, for defendant appellant.
FRANK M. PARKER, Judge.
Defendant assigns as error the admission in evidence of testimony by the police officers concerning his oral confession. This testimony was admitted only after the court had held a voir dire examination into the circumstances under which defendant's confession had been made. The defendant did not testify at this voir dire examination, and there was no conflict in the evidence presented. At the conclusion of the voir dire, the court found as a fact that prior to making any statement the defendant was properly warned of his constitutional rights as required by Miranda, making detailed findings in this regard, and that his statements to the police officers had been freely, understandingly, and voluntarily made without duress, promise or hope of reward offered or threat made against him. These findings are fully supported by the evidence presented at the voir dire and in turn support the trial court's ruling admitting in evidence the testimony as to defendant's confession.
Defendant's argument that his confession was rendered inadmissible because his initial arrest was unlawful is without merit. On the same day he was first taken into custody he was properly served with warrants charging him with certain of the crimes for which he was tried, and at the time he confessed he was in lawful custody. Furthermore, even if it be conceded that his initial arrest was illegal "* * * every statement made by a person in custody as a result of an illegal arrest is not ipso facto involuntary and inadmissible, but the facts and circumstances surrounding such arrest and the in-custody statement should be considered in determining whether the statement is voluntary and admissible. Voluntariness remains as the test of admissibility." State v. Moore, 275 N.C. 141, 153, 166 S.E.2d 53, 62.
Nor is there merit in defendant's argument that the trial court was required to find that his confession was coerced because he was being held under excessive bail and his preliminary hearing was delayed until Tuesday, 1 April 1969. No evidence introduced at the voir dire or at any other time during the trial would indicate that defendant's confession was the product of any requirement of excessive bail or of any delay in granting him a preliminary hearing. Defendant himself did not so contend when he testified in his own defense; rather, he simply denied that he had ever made any confession.
There is also no merit in defendant's contention that the judge's findings on the voir dire were not sufficiently complete and were more in the nature of conclusions than findings of fact. Since there was no conflict in evidence at the voir dire, it was not essential, though certainly it was desirable, that the judge make findings of fact. State v. Fuqua, 269 N.C. 223, 152 S.E.2d 68; State v. Keith, 266 N.C. 263, 145 S.E.2d 841. In this case the judge did make detailed findings concerning the prior warnings which had been given defendant as to his Miranda rights. In the absence of any conflict in the evidence at the voir dire it was not essential that he make further detailed findings as to all of the other circumstances of the interrogation. The findings of fact he did make were supported by the evidence, and these findings, when considered with the *474 other facts established by the uncontradicted evidence at the voir dire, fully support his ruling.
Defendant assigns as error the admission in evidence over his objection of the tools and other articles found by the police in the car owned and operated by Jordan. In this connection he contends: (1) There was no sufficient evidence to connect him with these articles to make them admissible in evidence against him, and (2) the articles were obtained by an illegal search and for that reason were not admissible. There is no merit to this assignment of error. On the first point, defendant's confession placed him in the car and in joint possession with Jordan of the articles involved during the time the crimes for which he was tried were committed. This sufficiently connected defendant with the articles to make them admissible in evidence against him. As to the second point, most of the tools and other articles involved were observed by the officers in plain view on the floor of the car. As to these, no search warrant would have in any event been required. State v. Craddock, 272 N.C. 160, 158 S.E.2d 25; State v. Giles, 254 N.C. 499, 199 S.E.2d 394. Upon observing these articles, the officers immediately placed Jordan under arrest for unlawful possession of burglary tools. A further search conducted at that time and as an incident to the arrest of Jordan revealed the stolen money and other articles in the glove compartment of the car. Since the search was clearly incidental to the lawful arrest of Jordan, who was the owner and presently in possession of the car, no search warrant was required and the search was legal even as to him. State v. Bell, 270 N.C. 25, 153 S.E.2d 741; State v. Haney, 263 N.C. 816, 140 S.E.2d 544; Annotation, 19 A.L.R.3rd 727. Even had the search been illegal as to Jordan, it is questionable if the defendant, who was not the owner or in possession of the car, had standing to raise any objection as to the manner of the search. Ordinarily "(t)he right to immunity from unreasonable searches and seizures is personal, and can be asserted only by him whose rights are violated." 47 Am.Jur.2d, Searches and Seizures, § 11, p. 508. Since the search without a warrant here was in any event legal, it is not necessary for us to decide whether defendant would have had standing to take advantage of the exclusionary rule provided by G.S. § 15-27 as now enacted.
Defendant's assignments of error 10 and 14, relating to admission in evidence of testimony as to other criminal offenses, are also without merit. Assignment No. 10, based on exception No. 37, was directed to the court's overruling of defendant's motion to strike made when a police officer, testifying for the State concerning the interrogation of defendant which had been made by the officers, stated that one of the officers had told defendant that "he wanted to talk to him with reference to some breaking and enterings that we had had here in the city, and also about some money and coins that was found in the motel room where he was arrested." The latter part of the statement was the only indication of any charge against defendant which might have been unconnected with the offenses for which he was being tried. While the motion to strike should have been granted, its refusal could hardly have affected the outcome of the trial. "A new trial will not be granted for mere technical error which could not have affected the result, but only for error which is prejudicial or harmful, amounting to the denial of a substantial right." 1 Strong, N.C. Index 2d, Appeal and Error, § 47, p. 192. Defendant's assignment of error No. 14, based on his exceptions 43 and 44, related to questions asked by the solicitor of the defendant when the latter took the stand as a witness. For purposes of impeachment, defendant was subject to cross-examination as to convictions and indictments for prior criminal offenses. State v. Goodson, 273 N.C. 128, 159 S.E.2d 310; State v. Williams, 272 N.C. 273, 158 S.E.2d 85; *475 Stansbury, N.C. Evidence 2d, § 112, p. 254. Absent a request that such evidence be restricted for purposes of impeachment, the failure to give such an instruction is not error. State v. Williams, supra; Stansbury, N.C. Evidence 2d, § 79, p. 174. In the present case the trial judge, even without a request from defendant, did include such an instruction in the charge.
There is no merit in defendant's contention that his rights have been violated by denial of a speedy trial. Defendant was arrested 28 March 1969 and was tried in July, 1969. The delay of approximately three and one-half months is to be contrasted with the four-year delay between issuance of arrest warrant and return of indictment which our Supreme Court found inexcusable in State v. Johnson, 275 N.C. 264, 167 S.E.2d 274.
We have examined all of defendant's remaining assignments of error and find them to be without merit except for assignment No. 21 which is based on defendant's exception No. 52. This related to the portion of the judge's charge to the jury concerning the case against defendant for possession of burglary tools without lawful excuse, a violation of G.S. § 14-55. In this connection, the court charged:
"Now, when a person is charged with possession of implements of housebreaking, the burden of proving lawful excuse is on the person so charged. That burden is discharged by the accused if he proves that the alleged implement of housebreaking, or capable of being used for that purpose, is a tool used by him in his trade or business."
In a prosecution for violation of G.S. § 14-55 "the burden is on the State to show two things: (1) That the person charged was found having in his possession an implement or implements of housebreaking enumerated in, or which come within the meaning of the statute quoted above, and (2) that such possession was without lawful excuse." State v. Godwin, 269 N.C. 263, 266, 152 S.E.2d 152, 154. While in other portions of the charge the trial judge correctly placed the burden of proof upon the State, the portion of the charge quoted above, in which the judge inadvertently placed a burden upon the defendant to prove lawful excuse, was prejudicial error, since it is impossible to know which portion of the charge was followed by the jury. This requires a new trial of the defendant in the case based on the indictment against him for unlawful possession of burglary tools.
The result is: As to the judgments in the cases for safecracking, breaking and entering, and larceny,
Affirmed.
As to the judgment in the case for possession of burglary tools,
New trial.
CAMPBELL and GRAHAM, JJ., concur.