{ "id": 8570604, "name": "STATE OF NORTH CAROLINA v. JAMES ALFONZO POWELL", "name_abbreviation": "State v. Powell", "decision_date": "1979-06-12", "docket_number": "No. 50", "first_page": "419", "last_page": "429", "citations": [ { "type": "official", "cite": "297 N.C. 419" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "187 S.E. 2d 98", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "pin_cites": [ { "page": "101" } ], "opinion_index": 0 }, { "cite": "280 N.C. 700", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573421 ], "year": 1972, "pin_cites": [ { "page": "704" } ], "opinion_index": 0, "case_paths": [ "/nc/280/0700-01" ] }, { "cite": "241 S.E. 2d 552", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1978, "pin_cites": [ { "page": "665" } ], "opinion_index": 0 }, { "cite": "294 N.C. 418", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573313 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/nc/294/0418-01" ] }, { "cite": "187 S.E. 2d 27", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "280 N.C. 563", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572920 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/nc/280/0563-01" ] }, { "cite": "86 S.Ct. 1602", "category": "reporters:federal", "reporter": "S. Ct.", "case_ids": [ 12046400 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/us/384/0436-01" ] }, { "cite": "334 U.S. 436", "category": "reporters:federal", "reporter": "U.S.", "opinion_index": 0 }, { "cite": "172 S.E. 2d 28", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1970, "opinion_index": 0 }, { "cite": "276 N.C. 217", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560837 ], "year": 1970, "opinion_index": 0, "case_paths": [ "/nc/276/0217-01" ] }, { "cite": "180 S.E. 2d 755", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1971, "pin_cites": [ { "page": "767" } ], "opinion_index": 0 }, { "cite": "278 N.C. 561", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561152 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/nc/278/0561-01" ] }, { "cite": "412 U.S. 218", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6172008 ], "weight": 7, "year": 1973, "pin_cites": [ { "page": "227" }, { "page": "862-63" }, { "page": "2047-48" } ], "opinion_index": 0, "case_paths": [ "/us/412/0218-01" ] }, { "cite": "181 S.E. 2d 453", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "opinion_index": 0 }, { "cite": "279 N.C. 115", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565865 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/nc/279/0115-01" ] }, { "cite": "155 S.E. 2d 269", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1967, "pin_cites": [ { "page": "274" } ], "opinion_index": 0 }, { "cite": "270 N.C. 588", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569694 ], "year": 1967, "opinion_index": 0, "case_paths": [ "/nc/270/0588-01" ] } ], "analysis": { "cardinality": 900, "char_count": 22265, "ocr_confidence": 0.802, "pagerank": { "raw": 3.903639307688728e-07, "percentile": 0.9018456288378203 }, "sha256": "994c273bb83ccd3185b0168a627dbcc2cba308d81c1d0cb245c6439e7202017c", "simhash": "1:90a3a11660ecbbfc", "word_count": 3827 }, "last_updated": "2023-07-14T15:00:46.792762+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "STATE OF NORTH CAROLINA v. JAMES ALFONZO POWELL" ], "opinions": [ { "text": ". COPELAND, Justice.\nFor the reasons stated below, we must grant the defendant a new trial on his burglary conviction, and we find no error in the remaining convictions. .\nIn his first assignment of error, the defendant contends the trial court erred in not submitting to the jury the lesser included offense of second degree burglary as an alternative to a verdict of first degree burglary. We agree; therefore, the defendant must be granted a new trial on his conviction of first degree burglary.\nIn State v. Tippett, 270 N.C. 588, 155 S.E. 2d 269 (1967), Mr. and Mrs. Patton had been entertaining guests at their home all evening. At about 11:00 p.m. they both left and drove the guests home. The Pattons got back home about half an hour later and went directly to bed in separate bedrooms, but neither of them looked into the third bedroom before retiring. Mrs. Patton read until about 12:30 a.m. She was later awakened by the defendant, who raped her.\nIn Tippett the trial court submitted the charges of first and second degree burglary to the jury, and the defendant was found guilty of second degree burglary. Noting that \u201cthe house was unoccupied for approximately half an hour immediately before Mr. and Mrs. Patton returned to it and retired for the night without going into the third bedroom of the house,\u201d this Court found no error in instructing on second degree burglary even though \u201cwhere all the evidence is to the effect that the building was actually occupied at the time of the breaking and entry, the court is not authorized to instruct the jury that it may return a verdict of burglary in the second degree.\u201d Id. at 595, 155 S.E. 2d at 274.\nIn State v. Allen, 279 N.C. 115, 181 S.E. 2d 453 (1971), Mr. Johnson was visiting his eighty-seven year old mother at her home. He testified that his mother went to bed, and right after that, at about 10:00 p.m., he left. The defendant\u2019s statement to police officers indicated that he entered one room of Mrs. Johnson\u2019s home around midnight, saw no one and took a television set. Mrs. Johnson did not testify, Justice Lake, speaking for this Court, stated:\n\u201cWhile this evidence would permit the jury to draw an inference that Mrs. Johnson was in the house at the time the defendant broke and entered, it does not, even if true, compel a finding to that effect. Consequently, the question of whether the house was actually occupied at the time of the breaking and entering was for the jury, and had there been no announcement by the solicitor [that he was proceeding against the defendant only on a charge of second degree burglary], it would have been necessary for the court to submit to the jury, as possible verdicts, both burglary in the first degree and burglary in the second degree, depending upon whether they found, upon this evidence beyond a reasonable doubt, that the house was or was not occupied at the time of the breaking and entering.\u201d Id. at 119, 18l S.E. 2d at 456.\nIn the case before us, there is no positive evidence as to when the intruder first entered the Baynard home on 28 or 29 April 1978. There is no evidence that Reverend or Mrs. Baynard checked the third bedroom before retiring. The record does indicate, however, that entry to the house was gained by breaking a window in the unoccupied bedroom, but neither Reverend nor Mrs. Baynard was awakened by the sound of shattering glass. A policeman who investigated the case testified that there was a hammer, a screwdriver and a small steak knife in the third bedroom, and the overhead light fixture and light bulbs were found on the bed. Thus, the jury could have found that the intruder entered the house when it was unoccupied, got caught there when the Baynards came home later that night and waited in the third bedroom until Reverend Baynard went to sleep before he acted. Under these facts, the trial court was required to submit second degree burglary to the jury as a possible verdict. Its failure to do so entitles the defendant to a new trial on his conviction for first degree burglary.\nDefendant also argues the trial court erred in not granting his motion to suppress from evidence the items seized from his room by the policemen. We do not agree.\nOn 8 May 1978 four Durham policemen went to defendant\u2019s room to investigate a reported disturbance involving a gun. Officer Taylor knocked on defendant\u2019s bedroom door that was ajar, and the defendant said, \u201cYes.\u201d Officer Taylor identified himself as a policeman, said he would like to talk with him and then entered the room. The defendant, who was lying in bed, identified himself as Tommy Davis and stated that he had moved there three weeks ago from 416 East Geer Street.\nTwo other police officers in the room recognized the defendant as being James Alfonzo Powell because of a flyer they had received the previous day specifying that Powell was to be picked up for a felony charge in Fayetteville. One of the addresses given for Powell was 414 East Geer Street. These two officers then walked over to the bed and asked the defendant to stand up. As he did, they handcuffed him and told him he was under arrest.\nAt this point the defendant volunteered that the officers were looking for James Alfonzo Powell who was his cousin and who defendant claimed was \u201cat 414 East Geer Street right now. If you go over there you can get him.\u201d One of the officers asked if he had any identification to show that he was not James Alfonzo Powell because \u201ceven though I [the officer] knew in my mind it was James Alfonzo Powell, I felt that I was obligated under duty of my office to at least give him some benefit of a doubt.\u201d After the defendant claimed he had no identification, the policemen asked him if they could look for identification. The defendant replied that he had nothing to hide, and the officers could look if they wished. Officer Johnson said, \u201cNow, are you sure,\u201d and the defendant said, \u201cPlease look, and get over there because he will be gone before you can get there.\u201d\nOne officer stepped over to the dresser, noticed a wallet in a partially open drawer and said, \u201cI have got his wallet.\u201d He then opened it up and discovered it was Reverend Baynard\u2019s wallet. At the same time another officer unfolded a piece of paper that was lying on a table and saw it was a birth certificate with the name of James Alfonzo Powell on it. At this point the officers ceased their search. A search warrant was obtained, and a subsequent exaniination of defendant\u2019s room resulted in the seizure of some clothing and the coin box that was taken from the Baynard residence on 3 May 1978.\nAfter a pretrial hearing on defendant\u2019s motion to suppress the evidence, the court made findings of fact and conclusions of law. In denying the motion, the court found, inter alia, that \u201cthe defendant specifically invited and directed the officers to look about the room for identification and in doing so the defendant freely and voluntarily and unequivocally gave his consent to a limited search of the room for identification.\u201d We agree.\nIt is beyond dispute that a search pursuant to the rightful owner\u2019s consent is constitutionally permissible without a search warrant as long as the consent is given freely and voluntarily, without coercion, duress or fraud. Schneckloth v. Bustamonte, 412 U.S. 218, 36 L.Ed. 2d 854, 93 S.Ct. 2041 (1973). See also State v. Vestal, 278 N.C. 561, 180 S.E. 2d 755 (1971); State v. Virgil, 276 N.C. 217, 172 S.E. 2d 28 (1970). \u201c[T]he question whether a consent to a search was in fact \u2018voluntary\u2019 or was the product of duress or coercion, express or implied, is a question of fact to be determined from the totality of all the circumstances.\u201d Schneckloth v. Bustamonte, supra at 227, 36 L.Ed. 2d at 862-63, 93 S.Ct. at 2047-48.\nThe defendant claims that his consent was not given voluntarily because he was in custody at the time, had not been given his Miranda warnings and had not been told that he had the right not to consent to the search. Although all these factors are to be considered in determining the voluntariness of the consent, they are not, taken either alone or together, conclusive. See generally Schneckloth v. Bustamonte, id.\nIn this case the defendant \u201cspecifically invited\u201d the policemen to search his room, obviously to supply credibility to his story that he was Tommy Davis and that the James Alfonzo Powell the police were looking for was his cousin, who was at a different address. There is absolutely no evidence that the officers used any duress or coercion to induce defendant\u2019s consent to a limited search for identification. Furthermore, the examination by the officers was reasonably restricted to that purpose. The only evidence of fraud was that which the defendant was attempting to perpetrate on the officers. Under these facts, the trial court correctly denied defendant\u2019s motion to suppress. This assignment of error is overruled.\nThe defendant next claims the trial court erred in allowing into evidence certain statements he made to the policemen in his room on 8 May 1978 after he had been arrested when he had not been given his Miranda warnings.\nBefore introducing Reverend Baynard\u2019s wallet and coin box into evidence, Officer Taylor and Officer Hanan testified as to what occurred in defendant\u2019s room on the morning of 8 May 1978. The only statements made by the defendant after he was arrested that were testified to were his answers to the officers\u2019 request to search the room for identification and his volunteered assertions that he was not James Alfonzo Powell and that the policemen were looking for his cousin, who was at 414 East Geer Street. The defendant had identified himself as Tommy Davis when the officers first entered the room and before he was arrested.\nThe officers did not give the defendant his Miranda warnings while in the room because \u201cwe did not intend to interrogate him.\u201d \u201cHowever, the warnings required by Miranda v. Arizona, 334 U.S. 436, 86 S.Ct. 1602, 16 L.Ed. 2d 694, in order to make competent a confession made in custody, need not be given by officers before obtaining the consent of the owner to a search of his premises.\u201d State v. Vestal, supra at 579, 180 S.E. 2d at 767. Furthermore, the evidence clearly shows that the defendant\u2019s comments as to his cousin being James Alfonzo Powell were volunteered by him as soon as he was arrested. They were not in response to any interrogation; therefore, they were admissible despite the fact that no Miranda warnings had been previously given. See, e.g., State v. Jackson, 280 N.C. 563, 187 S.E. 2d 27 (1972). Thus, the argument that the policeman failed to give Miranda warnings is without merit.\nDefendant contends the trial court erred in refusing to grant his motion to sever some of the charges against him. We do not agree.\nThe State made a motion to consolidate all the charges against the defendant, and the defendant moved to sever the charges stemming from the 29 April 1978 occurrence from the charges resulting from the 3 May 1978 incident. After a pretrial hearing on the matter, the court found:\n\u201c1. That the defendant is charged on several bills of indictment with various charges each of which is stated as a separate count as required by N.C.G.S. 15A-924;\n2. That the evidence as offered by the State tends to show a series of offenses connected together as parts of a common scheme;\n3. That the several offenses were so closely connected in time, place, and occasion that it would be difficult to separate proof of one charge from proof of the others; and\n4. That the joinder for the purpose of trial of the offenses . . . will not prejudice a fair determination of the defendant\u2019s guilt or innocence of each offense.\u201d\nThe court did, however, grant the defendant\u2019s motion to sever the charge of felonious possession of a firearm by a convicted felon because \u201cjoinder for trial of [that charge] with the remaining cases may prejudice a fair determination of the defendant\u2019s guilt or innocence of each offense.\u201d\nG.S. 15A-926(a) states that \u201c[t]wo or more offenses may be joined . . . for trial when the offenses, whether felonies or misdemeanors or both, are based on the same act or transaction or on a series of acts or transactions connected together or constituting parts of a single scheme or plan.\u201d Thus, there must be some sort of \u201ctransactional connection\u201d between cases consolidated for trial. See State v. Greene, 294 N.C. 418, 241 S.E. 2d 552 (1978).\nIn this case there are two incidents some four days apart involving a break-in of the same dwelling house by a black man in faded green or khaki pants. In both instances the man seemed to be working alone and on foot, and he apparently entered the house by breaking a bedroom window. Both times the intruder stole items from the house. A motion for joinder of offenses is addressed to the sound discretion of the trial judge. Id. There has been no showing the court abused its discretion in this case.\nFurthermore, the defendant has not pointed to how he was prejudiced from the joinder.\n\u201c[I]n determining whether an accused has been prejudiced by joinder \u2018. . . The question is not whether the evidence at the trial of one case would be competent and admissible at the trial of the other. The question is whether the offenses are so separate in time and place and so distinct in circumstances as to render a consolidation unjust and prejudicial to defendant.\u2019 \u201d State v. Greene, supra at 423, 241 S.E. 2d at 665 (quoting State v. Johnson, 280 N.C. 700, 704, 187 S.E. 2d 98, 101 (1972). (Emphasis in original.)\nClearly, these two events were close enough in time, place and circumstances that the defendant was not prejudiced by having to defend the charges arising from them in one action. This assignment of error is overruled.\nDefendant argues the trial court erred in denying his motion to dismiss the charges against him at the close of the State\u2019s evidence.\nIn his brief to this Court \u201cdefendant concedes that there was probably enough evidence to go to the jury on all the charges except receiving stolen property, which the court dismissed.\u201d Defendant also admits the court correctly charged the jury on the doctrine of recent possession of stolen property. There is no doubt that the trial court correctly denied defendant\u2019s motion to dismiss. This argument is without merit.\nAs to the first degree burglary conviction, defendant is granted a NEW TRIAL. As to the remaining convictions, we find NO ERROR.", "type": "majority", "author": ". COPELAND, Justice." } ], "attorneys": [ "0. Hampton Whittington, Jr. for the defendant.", "Attorney General Rufus L. Edmisten by Assistant Attorney General Thomas B. Wood for the State." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. JAMES ALFONZO POWELL\nNo. 50\n(Filed 12 June 1979)\n1. Burglary and Unlawful Breakings \u00a7 7\u2014 first degree burglary \u2014question of whether dwelling occupied \u2014 necessity for submitting second degree burglary\nThe trial court in a first degree burglary case erred in failing to submit to the jury the lesser included offense of second degree burglary where the evidence tended to show that the occupants returned to the dwelling at 9:30 p.m. and went to bed in separate bedrooms at 10:00 p.m. without looking in the third bedroom; entry to the dwelling was gained by breaking a window in the unoccupied bedroom but neither occupant was awakened by the sound of shattering glass; there was a hammer, a screwdriver and a small steak knife in the third bedroom, and the overhead light fixture and light bulbs were found on the bed; and an intruder was in the dwelling and committed certain acts between 1:00 a.m. and 3:00 a.m., since the jury could have found that the intruder entered the house when it was unoccupied, was there when the occupants came home later that night, and waited in the third bedroom until the occupants were asleep before he acted.\n2. Searches and Seizures \u00a7 14\u2014 consent for limited search for identification-discovery of stolen wallet\nThe trial court properly refused to suppress a stolen wallet found by officers in defendant\u2019s room where defendant falsely told officers that he was Tommy Davis and that the James Alfonzo Powell the police were looking for was his cousin, who was at a different address; defendant specifically invited the officers to conduct a limited search of his room for identification; an officer saw the billfold in a partially opened dresser drawer, stated, \u201cI have got his wallet,\u201d opened it up and discovered it was one stolen during a burglary; and the examination by the officers was reasonably restricted to the purpose of seeking identification.\n3. Searches and Seizures \u00a7 13\u2014 consent to search \u2014Miranda warnings not necessary\nThe Miranda warnings need not be given by officers before obtaining consent to a search.\n4. Criminal Law \u00a7 75.9\u2014 volunteered statements \u2014Miranda warnings not necessary\nDefendant\u2019s statements in which he gave officers a false name and falsely told them the person they were looking for was his cousin who lived at a different address were volunteered and were admissible although no Miranda warnings had been given.\n5. Criminal Law \u00a7 92.4\u2014 consolidation of charges from two incidents\nThe trial court did not err in consolidating for trial charges against defendant of first degree burglary, first degree rape, two cases of felonious assault, secret assault, felonious breaking and entering, two cases of felonious larceny, felonious larceny of a firearm, and receiving stolen property where all charges arose from two break-ins of the same dwelling house some four days apart by a black man in faded green or khaki pants, and the two incidents were close enough in time, place and circumstance that defendant was not prejudiced by having to defend charges arising from them in one action.\nAPPEAL by defendant from the judgment of Martin (John) J., entered in the 18 September 1978 Criminal Session of DURHAM County Superior Court.\nThe defendant was charged, in indictments proper in form, with first degree burglary, first degree rape, two cases of assault with a deadly weapon with intent to kill inflicting serious injury, secret assault, felonious breaking and entering, two cases of felonious larceny, felonious larceny of a firearm, receiving stolen property and felonious possession of a firearm by a convicted felon. All the cases except felonious possession of a firearm by a convicted felon were consolidated for trial.\nAt trial the evidence for the State tended to show the following:\nAt about 9:30 p.m. on 28 April 1978 Reverend Paul Baynard and his wife returned home from a trip to Asheville. They went to bed in separate rooms at about 10:00 p.m., and Reverend Baynard read until approximately 1:00 a.m.\nIn the early morning hours of 29 April 1978 Reverend Baynard was awakened by a sting on his head, which he discovered was bleeding profusely. He walked in a daze into his wife\u2019s room. She was gone, and there was a puddle of blood on the floor by her bed. A metal pipe was lying nearby. Reverend Baynard wandered outside looking for his wife, and he saw someone go into his house through a window. He reentered his home and saw a black male in the hallway. Reverend Baynard then went next door, and the police were called. When, he and his neighbor returned to the Baynard residence shortly thereafter, at about 3:00 a.m., his wife was back in the house and the police had arrived. Reverend Baynard noticed that his billfold was missing after the incident.\nMrs. Baynard testified that she was awakened in the early morning of 29 April 1978 by the sound of a man in her bedroom doorway \u201cwith kind of a huffing noise.\u201d The black man beat her on the head and tied a rag around her face and mouth. He then dragged her outside and raped her, telling her he would kill her if she resisted.\nReverend Baynard had to have thirty stitches as a result of the blow to his head, Mrs. Baynard had twenty-three stitches in her head. Neither of them could identify the man who attacked them.\nAt approximately 10:30 a.m. on 3 May 1978 Reverend W. C. Webb went to the Baynard home. He rang the doorbell and then heard glass rattling. Immediately thereafter Reverend Webb saw a black man walking through a vacant lot next door, and he noticed a storm window shattered on the Baynard driveway. The police were called. Clothes from the dressers and closets were strewn all over the bedroom floors, and there was a suitcase on the dining room table containing packages of frozen meat. Reverend Baynard testified that his .22 caliber rifle and a coin box he had made were taken.\nInvestigations were made after the break-ins on 29 April 1978 and 3 May 1978. Numerous fingerprints were lifted. A fingerprint expert testified that in his opinion several of the prints matched those of the defendant.\nAt about 7:00 a.m. on 8 May 1978 Mrs. Carrie Ellerbe went to a Durham police station and reported a disturbance at her house on 304 North Guthrie Street involving a gun. Four policemen went to that address and were informed that the person who owned the gun was upstairs in one of the bedrooms. When the officers entered the room the defendant rented from Mrs. Ellerbe, the defendant was in bed. The police subsequently arrested him and found Reverend Baynard\u2019s wallet and coin box in the room. The gun that was taken from the Baynard house on 3 May 1978 was found downstairs in Mrs. Ellerbe\u2019s house.\nThe defendant presented no evidence.\nThe jury found the defendant guilty of first degree burglary, second degree rape, two assaults inflicting serious injury, two felonious larcenies and felonious breaking and entering. They found the defendant not guilty of secret assault and felonious larceny of a firearm. The defendant was sentenced to life imprisonment on the first degree burglary conviction and imprisonment for forty years on the second degree rape conviction, to run consecutively with the life sentence. All the remaining convictions were consolidated for judgment, for which the defendant was sentenced to imprisonment for ten years, to run concurrently with the forty-year sentence imposed for second degree rape. The defendant appealed by right to this Court on his conviction for first degree burglary, and we granted his motion to bypass the Court of Appeals on all the remaining cases on 16 February 1979.\nOther facts relevant to the decision will be included in the opinion below.\n0. Hampton Whittington, Jr. for the defendant.\nAttorney General Rufus L. Edmisten by Assistant Attorney General Thomas B. Wood for the State." }, "file_name": "0419-01", "first_page_order": 451, "last_page_order": 461 }