State v. Jones
261 S.E.2d 860
N.C.
1980
Check Treatment
HUSKINS, Justice.

Denial of defendant’s motion to suppress all evidence obtained in a search conducted pursuant to a search warrant issued on 23 August 1978 constitutes defendant’s first assignment of error.

The record reveals that Ken Snead, an SBI investigator, interrogated David Odom for fifteen hours during which Odom told the investigator that he and defendant James Thomas Jones were involved in the murder of Glenn Gibson. Odom furnished the details concerning the crime, including information that a two- *303 inch piece of water pipe was the murder weapon and that an army hatchet with a cover over its metal part and welder’s gloves had been used by defendant during the murder. Relying on information obtained from Odom, Mr. Snead searched a section of the river bank along the Cape Fear River, an area behind the victim’s home, and a site in Scotland County. These searches produced various items of evidence consistent with Odom’s statements to Mr. Snead. With the reliability of Odom’s information thus established, Mr. Snead procured a warrant to search defendant’s truck and to search his father’s house, barn and garage for various items, including “an army-type hatchet with a green cloth cover” and “ ‘Case XX’ welder’s gloves soaked in oil.” Armed with the search warrant, Mr. Snead and Officer Connerly proceeded to the home of Mr. and Mrs. M. L. Jones, parents of defendant, located at Route 1, Box 301, Shannon, N. C., to begin the search. During the search of the M. L. Jones garage, they discovered and seized an army O.D.-type hatchet (State’s Exhibit 17), with the word “U.S.” stamped on it, one pair of men’s leather-type welder’s gloves (State’s Exhibit 39), and a single leather-type welder’s glove (State’s Exhibit 40). These items were later offered in evidence over objection. Defendant contends his motion to suppress them should have been allowed because (1) the affidavit on which the search warrant was issued failed to allege facts sufficient to establish probable cause; and (2) an unreasonable length of time expired between the alleged homicide on 30 March 1978 and the date of the search and seizure on 23 August 1978. We hold defendant’s contentions are unsound and that his first assignment of error has no merit.

Within the meaning of the Fourth Amendment and G.S. 15A-243 to 245, “probable cause means a reasonable ground to believe that the proposed search will reveal the presence, upon the premises to be searched, of the objects sought and that those objects will aid in the apprehension or conviction of the offender. Thus, the affidavit upon which a search warrant is issued is sufficient if it ‘supplies reasonable cause to believe that the proposed search for evidence of the commission of the designated criminal offense will reveal the presence upon the described premises of the objects sought and that they will aid in the apprehension or conviction of the offender.’ ” State v. Riddick, 291 N.C. 399, 230 S.E. 2d 506 (1976) (citations omitted). Accord, State v. Campbell, *304 282 N.C. 125, 191 S.E. 2d 752 (1972). “The affidavit may be based on hearsay information if the magistrate is informed of underlying circumstances upon which the informant bases his conclusion as to the whereabouts of the articles and the underlying circumstances upon which the officer concluded that the informant was credible.” State v. Spillars, 280 N.C. 341, 185 S.E. 2d 881 (1972). Whether probable cause exists for the issuance of a search warrant depends upon a practical assessment of the relevant circumstances. State v. Phifer, 297 N.C. 216, 254 S.E. 2d 586 (1979); State v. Louchheim, 296 N.C. 314, 250 S.E. 2d 630, cert. denied, 40 CCH S.Ct. Bull. p. 15 (1979). Each case must be decided on its own facts and “reviewing courts are to pay deference to judicial determinations of probable cause, and ‘the resolution of doubtful or marginal cases in this area should be largely determined by the preference to be accorded to warrants.’ ” State v. Louchheim, supra, (citations omitted). With these principles in mind, we look at the search warrant and the affidavit upon which it was obtained.

In applying for the search warrant SBI Agent Snead swore, in his affidavit to establish probable cause for issuance, that the body of Glenn Gibson had been found in a ditch near milepost 187 beside 1-95 in Dillon County, South Carolina; that defendant James Thomas Jones and David Carl Odom had been arrested for the murder of Mr. Gibson; that David Carl Odom had given oral and written statements detailing participation in the murder by him and defendant; that Odom had accompanied officers to the crime scene on the banks of the Cape Fear River where the murder weapon had been recovered with other items; that Odom had shown officers the area behind the victim’s residence where the body was kept for a week before it was taken to South Carolina; that Odom had stated that the hatchet used in the killing along with the pipe, already recovered, was the property of defendant and that defendant kept the hatchet and welder’s gloves either in the garage workshop or in the house of his parents located at Route 1, Box 301, Shannon, North Carolina, telephone 875-2510. It further appears that Odom and defendant had jointly participated in the murder of Glenn Gibson and had moved the body twice. Odom knew where defendant’s parents lived and knew there was a workshop behind their house which was used by defendant.

*305 All this information was before the magistrate. A practical assessment of it would lead a reasonably prudent magistrate to conclude that the information was credible and that the proposed search would reveal, upon the premises to be searched, the presence of the objects sought and that those objects would aid in the apprehension or conviction of the offender. This constitutes probable cause sufficient to justify the issuance of a warrant.

Defendant contends that the information contained in the affidavit furnished the magistrate suffers from staleness. He argues that five months elapsed between the time Odom last saw defendant’s hatchet and welder’s gloves and the date Odom told officers of the whereabouts of the hatchet. The passage of such time, it is urged, dissipates probable cause to believe that the materials sought were still located at the place to be searched.

Common sense is the ultimate criterion in determining the degree of evaporation of probable cause. United States v. Brinklow, 560 F. 2d 1003 (10th Cir. 1977), cert. denied, 434 U.S. 1047 (197 ); State v. Louchheim, supra. “The likelihood that the evidence sought is still in place is a function not simply of watch and calendar but of variables that do not punch a clock . . . .” Andresen v. State, 24 Md. App. 128, 331 A. 2d 78, cert. denied, 274 Md. 725 (1975), aff’d, 427 U.S. 463 (1976). “The significance of the length of time between the point probable cause arose and when the warrant issued depends largely upon the property’s nature, and should be contemplated in view of the practical consideration of everyday life.” United States v. Brinklow, supra (citations omitted).

The items sought by the search warrant — a hatchet and welder’s gloves — were not particularly incriminating in themselves and were of enduring utility to defendant. Moreover, the affidavit indicates that defendant normally kept such items either in his parents’ home, or in a garage workshop behind his parents’ home. A practical assessment of this information would lead a reasonably prudent magistrate to conclude that the hatchet and welder’s gloves were “probably” located in the home or on the premises of defendant’s parents. See generally, United States v. Brinklow, supra; State v. Louchheim, supra; State v. Carbone, 172 Conn. 242, 374 A. 2d 215 (1977); People v. Wing, 92 Misc. 2d 846, 400 N.Y.S. 2d 437 (Cty. Ct. 1977). We hold that the search warrant *306 was properly issued and the hatchet and gloves properly admitted into evidence.

We note that the items in question were seized from the premises owned by defendant’s parents. A party seeking shelter under the Fourth Amendment has the burden of establishing that his personal rights were violated by the search and seizure. State v. Taylor, 298 N.C. 405, 259 S.E. 2d 502 (1979); State v. Craddock, 272 N.C. 160, 158 S.E. 2d 25 (1967). The burden is on defendant to establish standing. State v. Taylor, supra. The United States Supreme Court, in a recent review of the protection offered by the Fourth Amendment, determined that such protection encompasses only those persons who have a reasonable expectation of privacy in the premises searched. Rakas v. Illinois, 439 U.S. 128, 58 L.Ed. 2d 387, 99 S.Ct. 421 (1978). Accord, State v. Alford, 298 N.C. 465, 259 S.E. 2d 242 (1979). In the instant case, defendant has asserted neither a property nor a possessory interest in his parents’ garage. Nor has he made a showing of any other circumstances giving rise to a reasonable expectation of privacy in the premises searched. Therefore, irrespective of the existence of probable cause to issue the warrant and the reasonableness of the search and seizure, defendant has failed to establish his standing to object.

The State offered evidence over objection tending to show (1) that defendant and the victim Gibson had been jointly involved in certain thefts of tobacco in Robeson County, and (2) that defendant, the victim Gibson and David Odom had been collectively involved in several car thefts. Defendant contends that admission of evidence of other crimes is prejudicial error. This constitutes his second assignment of error.

It is undoubtedly the general rule that evidence of the commission of other crimes is not admissible to prove defendant’s guilt of the crime for which he is on trial. State v. Hight, 150 N.C. 817, 63 S.E. 1043 (1909). Even so, there are various exceptions to the general rule, as well established as the rule itself. See State v. McClain, 240 N.C. 171, 81 S.E. 2d 364 (1954), containing eight numbered exceptions and citing many authorities. Pertinent to the case before us is the fifth exception listed in McClain, to wit: “Where evidence tends to prove a motive on the part of the accused to commit the crime charged, it is admissible, even though *307 it discloses the commission of another offense by the accused.” (Citations omitted.) Motive is always a relevant fact, and evidence tending to prove it will not be excluded merely because it also shows the accused to have been guilty of an independent crime. See State v. Williams, 292 N.C. 391, 233 S.E. 2d 507 (1977) (evidence of defendant’s participation in a prior armed robbery and murder competent to show motive for committing the crime charged); State v. Christopher, 258 N.C. 249, 128 S.E. 2d 667 (1962) (theft of automobile a month before a murder committed in perpetration of a robbery admissible to show that purpose of the robbery was to obtain money to pay repair bills and regain possession of car); State v. Adams, 245 N.C. 344, 95 S.E. 2d 902 (1957) (evidence of illicit liquor activities by defendant competent to show motive for killing supposed informer); 1 Stansbury’s North Carolina Evidence (Brandis rev. 1973) §§ 91, 92.

It is apparent from the record in this case that evidence with respect to theft of tobacco and cars was offered and admitted for the purpose of showing defendant’s motive for killing Gibson. David Odom testified that defendant “thought Gibson was talking too much” and “was scared that if Gibson went to court he would talk and tell them everything.” The trial court properly permitted the State to offer the challenged evidence to show defendant’s motive for killing Gibson. There is no merit in this assignment.

The remaining assignments are not discussed in defendant’s brief and have been expressly abandoned under Rule 28, Rules of Appellate Procedure.

We note, ex mero motu, that the presiding judge in this case, for reasons not readily apparent, and in violation of the provisions of G.S. 15A-2000, et seq., sentenced defendant to life imprisonment without conducting a separate sentencing proceeding on the issue of punishment.

Defendant was convicted of a capital felony. G.S. 15A-2000(a)(l) provides that upon conviction or adjudication of guilt of a defendant of a capital felony, “the court shall conduct a separate sentencing proceeding to determine whether the defendant should be sentenced to death or life imprisonment.” Succeeding subsections of G.S. 15A-2000 delineate in detail the separate sentencing proceeding to be conducted and the circumstances, aggravating and mitigating, to be considered by *308 the jury in determining whether the sentence shall be death or life imprisonment. Even upon pleas of guilty to a capital offense, the presiding judge is required to empanel a jury for the limited purpose of hearing evidence and determining a sentence recommendation. G.S. 15A-2001. The presiding judge is required by G.S. 15A-2002 to follow the recommendation of the jury and impose the sentence recommended. In State v. Johnson, 298 N.C. 47, 257 S.E. 2d 597 (1979), Justice Exum, writing for the Court, said: “The question raised is whether a defendant may plead guilty to first degree murder and by prearrangement with the State be sentenced to life imprisonment without the intervention of a jury. The answer is no.” Following a discussion of the provisions of G.S. 15A-2000, et seq., Justice Exum continued: “We do not see how the legislature could have expressed in plainer language its intent that the question of sentence in a capital case be determined in the same manner whether a defendant pleads guilty to the capital offense or is found guilty by a jury. Neither does the statute permit the state to recommend to the jury during the sentencing hearing a sentence of life imprisonment when the state has evidence from which a jury could find at least one aggravating circumstance beyond a reasonable doubt.” Accord, State v. Johnson, 298 N.C. 355, 259 S.E. 2d 752 (1979).

In the instant case there was evidence from which the jury could have found at least one or more aggravating circumstances beyond a reasonable doubt. There was evidence, for example, which tended to show the especially heinous, atrocious, and cruel manner in which the victim Gibson was clubbed to death — an aggravating circumstance listed in G.S. 15A-2000(e)(9). Given the existence of such evidence, the presiding judge, district attorney, and defense counsel had no legal authority whatsoever (1) to announce that the State would not seek the death penalty, (2) to agree to make no motions concerning the death penalty, (3) to eliminate voir dire examinations of jurors with respect to the death penalty, (4) to eliminate the separate sentencing proceeding to determine whether the punishment should be death or life imprisonment, or (5) by consent to fix the punishment at life imprisonment should the jury convict defendant of murder in the first degree. These unauthorized “homemade” procedures must not recur. Double jeopardy considerations preclude a retrial of this case. Since the impermissible procedure adopted by the trial *309 court resulted in error obviously favorable to the defendant, he is in no position to complain.

Prejudicial error not having been shown, the verdict and judgment will be upheld.

No error.