State v. MacKins

266 S.E.2d 694 (1980)

STATE of North Carolina v. Lorenzo MACKINS.

No. 8026SC61.

Court of Appeals of North Carolina.

May 28, 1980.

*695 Atty. Gen. Rufus L. Edmisten by Associate Atty. Gen. J. Chris Prather, for the State.

Robert M. Talford and Charles V. Bell, Charlotte, for defendant-appellant.

WEBB, Judge.

The defendant's first assignment of error is to the court's failure to dismiss because the defendant was denied a speedy trial. Factors to be considered in determining whether a criminal action should be dismissed for failure to grant the defendant a speedy trial are: (1) the length of the delay; (2) the reason for the delay; (3) prejudice to the defendant; and (4) waiver by the defendant. See State v. Brown, 282 N.C. 117, 191 S.E.2d 659 (1972). In the case sub judice, defendant was charged on 28 June 1978. In October 1978, defendant became disenchanted with his attorneys, and they moved to withdraw. In December 1978, defendant made a motion to have his bond reduced which was allowed. In January 1979, defendant moved for a continuance, which motion was granted. In March 1979, defendant had retained new counsel and made a motion to continue the case, waiving his right to dismiss for failure to grant a speedy trial. The case was set for trial in August 1979 and was continued on motion of the State because one of its witnesses was on vacation. The case was tried in September 1979. In the case sub judice, it appears that the case was continued only once on the motion of the State. We hold it was not error to deny the defendant's motion to dismiss for failure to grant a speedy trial.

*696 The defendant's second assignment of error is to the court's allowing the identification testimony of Tommy Lisenby. Defendant relies on State v. Miller, 270 N.C. 726, 154 S.E.2d 902 (1967). In Miller, our Supreme Court held that identification testimony should have been excluded as having no probative force when all the evidence showed the witness attempted to identify a person he had observed from a distance of 286 feet at night. In this case, Mr. Lisenby testified a street light and a light in the house were on. The record does not disclose how close Mr. Lisenby was to the person in the house, but he was within range of a .16-gauge shotgun. We believe State v. Miller, supra, is distinguishable from the case sub judice. We hold the identification testimony of Mr. Lisenby was properly admitted into evidence.

Defendant also assigns as error the admission of the testimony that the officers found the shotgun in the house. The defendant contends the shotgun was the fruit of an illegal search and should have excluded under Payton v. New York, ___ U.S. ___, 100 S. Ct. 1371, 63 L. Ed. 2d 639 (1980). Payton held that an entry into a home to make a routine arrest for a felony without a warrant violates the Fourth Amendment to the United States Constitution, made applicable to the states by the Fourteenth Amendment. In that case the Supreme Court struck down a New York statute, very similar to G.S. 15A-401(b) and (e), allowing entry into homes without a warrant to make felony arrests. Payton pointed out that there were no exigent circumstances in that case justifying an entry without a warrant. In the case sub judice, the officers did not enter to make an arrest. We hold there were exigent circumstances justifying entry. The officers were standing under a light on a porch of a house from which a short time previously two shots had been fired, killing one person and seriously wounding another. We hold this was such an exigent circumstance that the officers were justified in entering the home and searching it to make sure no one else, including the officers, would be shot. As they saw the shotgun in plain view, evidence in regard to the shotgun was admissible.

The defendant also assigns as error the admission into evidence of certain pictures. We hold these were properly admitted to illustrate the testimony of the witnesses.

The defendant's last assignment of error is to the denial of his motion to dismiss both charges. We find no error in the denial of this motion.

No error.

HARRY C. MARTIN and WELLS, JJ., concur.