State v. Gaines

234 S.E.2d 42 (1977)

33 N.C. App. 66

STATE of North Carolina v. Virgil Lee GAINES.

No. 7612SC861.

Court of Appeals of North Carolina.

April 20, 1977.

*44 Atty. Gen. Rufus L. Edmisten by Associate Atty. Jack Cozort, Raleigh, for the State.

Asst. Public Defender John A. Decker, Fayetteville, for defendant-appellant.

BRITT, Judge.

Defendant first assigns as error the denial of his motion to suppress the evidence obtained pursuant to the search. This assignment is without merit.

Defendant concedes that the search warrant was valid but he argues that the manner of service of the warrant resulted in an unreasonable search, thereby rendering any evidence obtained in the search inadmissible. G.S. 15A-249 provides:

"The officer executing a search warrant must, before entering the premises, give appropriate notice of his identity and purpose to the person to be searched, or the person in apparent control of the premises to be searched. If it is unclear whether anyone is present at the premises to be searched, he must give the notice in a manner likely to be heard by anyone who is present."

Our Supreme Court has stated that even though the police officers have a valid search or arrest warrant, ordinarily they may not enter a private home unless they first give notice of their authority and purpose and make a demand for entry. State v. Sparrow, 276 N.C. 499, 173 S.E.2d 897 (1970). This requirement is for the protection of the officers as well as the protection of the occupants and their constitutional rights. State v. Covington, 273 N.C. 690, 161 S.E.2d 140 (1968).

In the instant case, the officers had just observed a man hurriedly leaving the premises. They hastened to the door and noticed that it was slightly open. Officer Mills testified that he stuck his head to the screen door, identified himself, stated that he had a search warrant and then went inside. Defendant argues that Mills' statement that his notice and entry into the premises were "spontaneous" indicates that they occurred simultaneously. Therefore, he contends that the notice was insufficient to meet the requirements of the statute. We disagree.

The amount of time required to be given between notice and entry must depend on the particular circumstances. The evidence in this case indicates that the officer properly stated his identity before entering the premises. No one objected to his entry and it was not necessary to break open anything blocking entry. Under the circumstances, we think the notice was sufficient and the search was appropriate.

Moreover, the findings of fact made by a trial judge at the end of a voir dire hearing are conclusive if supported by competent evidence. State v. Turnbull, 16 N.C.App. 542, 192 S.E.2d 689 (1972). Here, the findings of fact are supported by competent evidence and they support the conclusion that the notice of identity and purpose were sufficient. The motion to suppress was properly denied.

Defendant next assigns as error the failure of the court to grant his motion for a mistrial. This assignment is without merit.

Agnes Carter testified that she saw three silver packets in the bed beside defendant and then told him to get rid of them. The district attorney then asked her why she told him to get rid of them, whereupon she answered, "Well, because I knew he had a record". Defendant's objection and motion to strike were sustained. Defendant then moved for a mistrial and the jury retired from the courtroom. The trial judge allowed *45 the motion to strike but denied the motion for a mistrial. The jury returned and the trial judge properly instructed the jury to erase the remark from their memories and not to consider it in any manner whatsoever. Defendant contends that the remark was highly prejudicial in that it impeached his character when he had not taken the stand and that any limiting instruction could not cure the harm done.

The question whether to grant a mistrial ordinarily rests in the discretion of the trial court and will not be set aside absent an abuse of discretion. 3 Strong, N.C. Index 2d, Criminal Law § 128. In this case, we fail to perceive any abuse of discretion.

In State v. Robbins, 287 N.C. 483, 214 S.E.2d 756 (1975), an investigating officer testified that he had obtained the address of defendant by use of defendant's "arrest record". An objection was sustained but a motion for mistrial was denied. The Supreme Court found no error in the denial of the mistrial and stated:

"Captain Jackson's inadvertent reference to defendant's arrest record was incompetent. We hold, however, that the action of the court in sustaining defendant's objection and prompt instruction to the jury to disregard the statement sufficed to remove any possibility of prejudice to defendant. `[O]ur system for the administration of justice through trial by jury is based upon the assumption that the trial jurors are men of character and of sufficient intelligence to fully understand and comply with the instructions of the court, and are presumed to have done so." Supra at 488, 214 S.E.2d at 760.

See also State v. Jarrette, 284 N.C. 625, 202 S.E.2d 721 (1974), and State v. McKethan, 269 N.C. 81, 152 S.E.2d 341 (1967), for similar results. The trial judge acted properly in instructing the jury not to consider the statement, and we feel that the occurrence was not sufficient to require a mistrial.

We hold that defendant received a fair trial free from prejudicial error.

No error.

PARKER and MARTIN, JJ., concur.