{
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  "name": "STATE OF NORTH CAROLINA v. DENNIS RAY CARLTON",
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    "judges": [
      "Judges Vaughn and Clark concur."
    ],
    "parties": [
      "STATE OF NORTH CAROLINA v. DENNIS RAY CARLTON"
    ],
    "opinions": [
      {
        "text": "MORRIS, Judge.\nDefendant first contends that the trial court erred in denying his motion to suppress as evidence articles obtained during a warrantless search of defendant\u2019s residence. We disagree.\nDuring a voir dire examination, police officers testified that they repeatedly warned defendant that he did not have to allow this warrantless search and that defendant, while seemingly alert and in possession of his mental faculties, freely and voluntarily agreed to the search. As SBI Special Agent E. H. Cross, Jr., recalled, defendant had stated to the police that \u201c ... he would be more than happy to do anything he could to assist . . . [the police]Moreover, Deputy Sheriff Robert E. Davis claimed that no promises, threats or coercion marked the search operation. After the defendant helped the investigators locate certain items, Officer Davis decided to\n\u201c . . . warn him of his rights at this point. I did that. I warned :him of his rights at this time by reading his rights from the Miranda Card I have: \u2018You have the fight to remain silent and not make any statement. Anything you say can and will be used against you in Court. You have the right to talk to a lawyer for advice before we ask you any questions and have him or any one else with you during questioning. You have the same right to the advice and presence of a lawyer if you cannot afford to employ one and if you are indigent a lawyer will be appointed to represent you before any questions if you desire it. Do you want a lawyer?\u2019 At this time, I said \u2018Do you already have a lawyer?\u2019 He said, \u2018Yes, sir\u2019, he had a lawyer. (In response to question as to whether he asked the Defendant if he wanted his lawyer present) he said, \u2018No, I have already talked to my lawyer this morning.\u2019 I said, \u2018If you decide to answer questions now without a lawyer you will still have the right to stop answering them at any time. You also have the right to stop answering at any time until you talk to your lawyer. Do you understand each of these rights I have explained to you?\u2019 He said, \u2018Yes.\u2019 At this point I felt that my card would not cover the search. I also told, now I may put one thing ahead of another, but to my recollection I told the Defendant, I said, \u2018We want to search your house for articles that would be involved in this homicide of Melvin Sutton.\u2019 I said, \u2018At any time you so desire you can stop us. Tell us to stop searching your home and we will stop. You also have the right to have your lawyer here before we start searching your home and if you don\u2019t wish \u00fas to search your home without a search warrant we can\u2019t search it.\u2019 I told him we did not have a search warrant. At this time I said, \u2018And having these rights in mind do you wish to let us search your house at this time,\u2019 He said, \u2018Go right ahead.- As a matter of. fact I would love to help you.\u2019 I said, \u2018Dennis, if you would just sit here in this chair with Mr. Pennington and me and Hap Cross will look around and see what we can find.\u2019 \u201d\nThe only evidence to the contrary was the voir dire testimony of the defendant, who argued he gave no permission for the search.\nOur Supreme Court, speaking through former Chief Justice Parker, recognizes the \u201c . . . well-settled law that a person may waive his right to be free from unreasonable searches and seizures. \u2018No rule of public policy forbids its waiver.\u2019 Manchester Press Club v. State Liquor Com., 89 N.H. 442, 200 A. 407, 116 A.L.R. 1093. It has been repeatedly decided in this jurisdiction, in the United States Supreme Court, and the Courts of this Nation that one can validly consent to a search of his premises, and consent will render competent evidence thus obtained.\u201d State v. Little, 270 N.C. 234, 238, 154 S.E. 2d 61 (1967). However, to constitute a valid consent, the concurrence must be voluntary, specific, freely offered, unequivocal, and \u201c . . . free from coercion, duress or fraud, and not given merely to avoid resistance.\u201d Id. at 239.\nIn this case, the evidence is plenary that defendant presented no resistance to the search, actually offered open and helpful assistance to the police, and did so without any misconceptions, misapprehensions or fears. When a person, as in this case, \u201c . . . voluntarily permits or expressly invites and agrees to the search, being cognizant of his rights, such conduct amounts to a waiver of his constitutional protection.\u201d State v. Colson, 274 N.C. 295, 307, 163 S.E. 2d 376 (1968), cert. denied 393 U.S. 1087. Moreover, defendant was advised of his \u201crights\u201d with respect to a search of his premises even though such a warning was not legally required. State v. Virgil, 276 N.C. 217, 172 S.E. 2d 28 (1970). There was evidence presented that defendant was afforded every opportunity to stop the warrantless search. The court found facts and concluded that defendant gave a \u201cvalid and voluntary\u201d consent for the search, that the search and seizure were not unreasonable, and that the evidence was admissible. The findings are supported by competent evidence, and the facts found support the conclusions reached.\nDefendant next argues that the trial court erred in allowing SBI Chemist Dr. Otis Donald Philen to testify as to his soil comparison tests. Specifically, defendant asserts that the State failed to lay a proper foundation for the testimony. Moreover, defendant maintains that redirect examination of the chemist exceeded the scope of testimony developed on direct examination. We find no merit in these contentions.\nDr. Philen, qualified as an expert in soil mineralogy with defendant\u2019s consent, first explained that he personally conducted the soil comparison tests and he then fully detailed the nature of the process. When read contextually, it is clear that a proper foundation preceded the chemist\u2019s testimony that soil samples taken from the victim\u2019s yard bore typological and mineralogical points of conformity and similarity to soil particles lifted from defendant\u2019s clothing.\nThough ostensibly new to North Carolina, this particular testimony is not necessarily unacceptable. \u201cIt seems abundantly clear that . . . there can be expert testimony upon practically any facet of human knowledge and experience.\u201d 1 Stansbury, N. C. Evidence, \u00a7 134, p. 438 (Brandis Rev. 1973). Even assuming that this particular theory of soil analysis is of little scientific consequence, we fail to see prejudice to defendant in view of his own testimony that he in fact was on the victim\u2019s property on the night in question.\nWe are, of course, aware of our recent decision in Williams v. Power Co., 26 N.C. App. 392, 216 S.E. 2d 482 (1975), wherein this Court held that the trial court properly excluded opinion testimony that the siltification of plaintiffs\u2019 property came from' a right-of-way cut by the defendant\u2019s bulldozers. That witness purportedly had \u201c . . . made extensive examinations of plaintiffs\u2019 property between 1969 and 1972 . . . \u201d , and arguably could have possessed expertise with respect to that property. Id. at 395. Our Court, however, held that this particular witness\u2019s opinion was inadmissible because she was no \u201c . . . better qualified to form an opinion from the facts than the jury was.\u201d Id. at 396. Here, the jury was not capable of comparing the intricate mineralogical composition of soil samples, and thus, we are confronted with a situation clearly distinguishable from the facts presented in the Williams v. Power Co. case.\nMoreover, we have examined carefully the redirect examination of Dr. Philen and believe that it merely clarifies points raised during his earlier direct examination.\nFinally, defendant contends that the trial court erred in instructing the jury that they also could return verdicts of guilty of second-degree murder, manslaughter, second-degree rape, or assault on a female, because there was no evidence to sustain such findings. As noted at page 71 in our recent opinion in State v. Tomlin, 27 N.C. App. 68, 217 S.E. 2d 755 (1975), cert. denied 288 N.C. 513 (1975), \u201c [s] ubmission of the lesser offense ... to the jury totally inured to the benefit of the defendant. \u2018An error on the side of mercy is not reversible. \u201d (Citation omitted.) This contention, therefore, is without merit. State v. Stephens, 244 N.C. 380, 93 S.E. 2d 431 (1956).\nNo error.\nJudges Vaughn and Clark concur.",
        "type": "majority",
        "author": "MORRIS, Judge."
      }
    ],
    "attorneys": [
      "Attorney General Edmisten, by Associate Attorney Elizabeth R. Cochrane, for the State.",
      "Komegay and Bruce, P.A., by R. Michael Bruce and Robert T. Rice, for defendant appellant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. DENNIS RAY CARLTON\nNo. 758SC789\n(Filed 18 February 1976)\n1. Searches and Seizures \u00a7 1\u2014 warrantless search of residence \u2014 consent given\nA warrantless search of defendant\u2019s residence was not unconstitutional where defendant voluntarily gave officers permission to search his home.\n2. Criminal Law \u00a7 50\u2014 soil samples \u2014 expert testimony admissible\nThe trial court in a first degree murder and first degree rape case did not err in allowing a witness, who qualified as an expert in soil mineralogy with defendant\u2019s consent, to testify that he personally conducted soil comparison tests, to explain the nature of the process, and to testify that soil samples taken from the victim\u2019s yard bore typological and mineralogical points of conformity and similarity to soil particles lifted from defendant\u2019s clothing.\n3. Criminal Law \u00a7 168\u2014 submission of lesser included offenses \u2014 benefit to defendant \u2014 no prejudicial error\nIn a prosecution for first degree murder and first degree rape, the trial court\u2019s submission to the jury of the lesser included offenses of second degree murder, manslaughter, second degree rape or assault on a female in the absence of evidence to sustain those findings totally inured to the benefit of defendant and was not reversible error.\nOn certiorari from Rouse, Judge. Judgment entered 19 December 1974 in Superior Court, Wayne County. Heard in the Court of Appeals 22 January 1976.\nDefendant was indicted for first-degree murder and first-degree rape. From pleas of not guilty, the jury returned verdicts of guilty of second-degree murder and second-degree rape. Defendant sought review of his trial by way of a petition for a writ of certiorari which we allowed on 14 May 1975.\nOther facts necessary for decision are set out below.\nAttorney General Edmisten, by Associate Attorney Elizabeth R. Cochrane, for the State.\nKomegay and Bruce, P.A., by R. Michael Bruce and Robert T. Rice, for defendant appellant."
  },
  "file_name": "0573-01",
  "first_page_order": 601,
  "last_page_order": 605
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