State v. Boone

235 S.E.2d 74 (1977)

33 N.C. App. 378

STATE of North Carolina v. Vernon BOONE.

No. 7618SC1042.

Court of Appeals of North Carolina.

June 1, 1977.

Appeal Dismissed August 23, 1977.

*76 Atty. Gen. Rufus L. Edmisten by Associate Atty. Nonnie F. Midgette, Raleigh, for the State.

Boyan & Slate by Clarence C. Boyan, High Point, for defendant-appellant.

Appeal Dismissed by Supreme Court August 23, 1977.

ARNOLD, Judge.

Defendant argues that the court erred in denying his motion to suppress the evidence obtained during the warrantless search of his property. Relying on Katz v. United States, 389 U.S. 347, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967), defendant contends that the search was unconstitutional and that the court applied the wrong rule of law in reaching its decision. He asserts that the rule which permitted police officers to search without a warrant any land which was not within the curtilage of the suspect's dwelling can no longer be applied. See, e.g., State v. Harrison, 239 N.C. 659, 80 S.E.2d 481 (1954). Defendant argues that under recent decisions, "what [a person] seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected." Katz v. United States, supra, 389 U.S. at 351, 88 S. Ct. at 511, see also, Mancusi v. Deforte, 392 U.S. 364, 368, 88 S. Ct. 2120, 20 L. Ed. 2d 1154 (1968). Defendant's argument, when applied to the case at bar, is unpersuasive.

The judge's finding that the tractor was in plain view is supported by evidence and thus binding on appeal. State v. Stepney, 280 N.C. 306, 185 S.E.2d 844 (1972). We find no error in the court's conclusion that a search warrant was not required. The tractor, parked under an open shed, was in plain view and visible to the naked eye of the officers who were in a place where they had a right to be. The Fourth Amendment protects people, not places, and what is knowingly exposed to the public is not subject to Fourth Amendment protection. Katz v. United States, supra; Lewis v. United States, 385 U.S. 206, 210, 87 S. Ct. 424, 17 L. Ed. 2d 312 (1966). See also, State v. Alford, 289 N.C. 372, 222 S.E.2d 222 (1976); State v. Howard, 274 N.C. 186, 162 S.E.2d 495 (1968). Only such searches and seizures which are unreasonable are prohibited by the Constitution, Elkins v. United States, 364 U.S. 206, 80 S. Ct. 1437, 4 L. Ed. 2d 1669 (1960), and whether a search or seizure is reasonable must be determined on the facts of each individual case. Cooper v. California, 386 U.S. 58, 87 S. Ct. 788, 17 L. Ed. 2d 730 (1967). In the instant case the search was within the limits of reasonableness.

There was no prejudicial error in the denial of defendant's request for instructions to the jury concerning his failure to testify. The court charged the jury that it "should not" consider defendant's failure to testify as evidence against him. Defendant says that the court was in error because it failed to charge the jury that it "shall not" consider defendant's silence against him. *77 Use of the phrase "should not", though not expressly approved, is not error prejudicial to defendant. The jury unmistakenly was admonished not to consider defendant's failure to testify as evidence against him.

We find no merit in defendant's contention that the court erred in denying his motion for judgment as of nonsuit or that the court expressed an opinion concerning evidence which was presented. We have also carefully considered the judge's charge and find it to be free of prejudicial error.

The record before us contains the following:

"The Court by statement in open court to counsel for the defendant, with the defendant present, indicated that he would be compelled to give the defendant an active sentence due to the fact that the defendant had pleaded not guilty and the jury had returned a verdict of guilty as charged of a violation of G.S. 14-70. In soliloquy between counsel for the defendant and the Court it was indicated by the presiding judge that the prison sentence would be necessary although the Court was not familiar with the past record or character of the defendant. It was further placed in the record that during the trial of this cause the presiding judge had indicated in chambers to the defendant's counsel his intentions to give to the defendant an active prison sentence if he persisted in his plea of not guilty and did not accept a lesser plea proffered by the Assistant District Attorney."

Defendant has the constitutional right to plead not guilty, to confront his accusers and witnesses, and to have a trial by jury. These rights are not to be impeded. The trial judge may have sentenced defendant quite fairly in the case at bar, but there is a clear inference that a greater sentence was imposed because defendant did not accept a lesser plea proffered by the State. This Court has indicated that it would not tolerate an inference that a greater sentence was imposed because a defendant exercised his right to appeal. State v. Lowry, 10 N.C.App. 717, 179 S.E.2d 888 (1971). We also cannot tolerate the inference that a greater sentence was imposed because defendant exercised his right to plead not guilty.

In defendant's trial we find no error sufficient to warrant a new trial. However, judgment is vacated and the case is remanded to the Superior Court of Guilford County for proper sentencing and judgment.

Vacated and remanded.

MORRIS and HEDRICK, JJ., concur.