State v. Andrews

291 S.E.2d 581 (1982)

STATE of North Carolina v. Merrill Lane ANDREWS.

No. 69A81.

Supreme Court of North Carolina.

June 2, 1982.

*583 Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. Thomas F. Moffitt, Raleigh, for the State.

Loflin & Loflin by Thomas F. Loflin III, Durham, for defendant-appellant.

COPELAND, Justice.

Defendant contends that the Court of Appeals erred in failing to reverse his convictions or order a new trial. Our recent decision in State v. Perry, ___ N.C. ___, 287 S.E.2d 810 (1982), requires us to vacate defendant's conviction for felonious possession of stolen property. In all other respects, however, we affirm the Court of Appeals.

Defendant argues that all of the evidence seized from his car should have been suppressed at trial because neither his arrest nor the subsequent vehicular search was accompanied by probable cause to believe that he had committed a crime. The Court of Appeals held, inter alia: (1) that, considering the circumstances existing at the time, a reasonably prudent person had ample cause to believe that defendant and his companion had committed a burglary and (2) that a reasonable search of the car incident to defendant's lawful arrest was also lawful. We agree with both of these holdings and cite as additional authority in support thereof the decision of the United States Supreme Court in New York v. Belton, 453 U.S. 454, 101 S. Ct. 2860, 69 L. Ed. 2d 768 (1981).

According to the authority of Belton, supra, a police officer may constitutionally search the passenger compartment of a vehicle, including any containers located therein, as a contemporaneous incident of the lawful arrest of an occupant of that vehicle. We are, of course, aware that the Belton decision was filed on 1 July 1981, approximately six weeks after the Court of Appeals filed its opinion in the instant case, and over a year after defendant's actual trial. However, we have previously held that retroactive application of the Belton rule is warranted in cases raising similar issues about the legality of a warrantless search. State v. Cooper, 304 N.C. 701, 286 S.E.2d 102 (1982). Thus, we hold that the police officers' search of defendant's car and the gym bag found inside the car fell squarely within the constitutional boundaries established by Belton, and defendant's motion to suppress the incriminating evidence thereby discovered was properly denied.

Defendant argues that the State's evidence was insufficient to convict him of any of the crimes submitted to the jury. This contention lacks merit, and we shall not restate the evidence at length here. Simply put, the State's evidence showed that defendant and his companion were caught red-handed with the instrumentalities and fruits of a burglary committed at a nearby residence. Consequently, we agree with the Court of Appeals that the State adduced substantial evidence of defendant's guilt upon the essential elements of the charged crimes. See G.S. 14-51, 14-55, 14-71.1 and 14-72.

Defendant asserts that he "was placed in double jeopardy by being convicted and sentenced on duplicative charges the charge of felonious larceny and the charge of felonious possession of the identical property which was the alleged subject *584 matter of that larceny."[1] Defendant's Brief at 20-21. The Court of Appeals' majority rejected this claim and held that defendant could be constitutionally tried and punished for both larceny and possession because the offenses were separate and distinct, with each crime including an element not present in the other. Judge Clark dissented and stated his belief that the issue of former jeopardy was governed by the opinion of another panel of the Court of Appeals filed on the very same day which had reached a contrary conclusion. See State v. Perry, 52 N.C.App. 48, 278 S.E.2d 273 (1981), modified and affirmed, ___ N.C. ___, 287 S.E.2d 810 (1982). Our recent decision in State v. Perry, supra, is dispositive of these matters.

In Perry, this Court held "[n]othing in the United States Constitution or in the Constitution of North Carolina prohibits the Legislature from punishing a defendant for both offenses" of larceny and possession since each crime required proof of an additional fact which the other did not. ___ N.C. at ___, 287 S.E.2d at 815-16. Notwithstanding that, however, our Court further held that, considering the legislative history, case law background and internal provisions of the possession statutes, the state legislature "did not intend to punish an individual for larceny of property and the possession of the same property which he stole." Id. at ___, 287 S.E.2d at 816 (emphasis added). Our final conclusion in Perry was that "though a defendant may be indicted and tried on charges of larceny, receiving, and possession of the same property, he may be convicted of only one of those offenses." Id. at ___, 287 S.E.2d at 817 (footnote omitted).

The situation presently before us is indistinguishable from that in Perry. We must therefore reverse the Court of Appeals and vacate defendant's additional conviction for possession of stolen property.

Defendant assigns error to several portions of the trial court's final instructions to the jury. We hold that these contentions were fully and correctly addressed in the Court of Appeals' opinion, and, for the reasons there stated, the assignments are overruled.

Defendant finally argues that judgment should be arrested on all of his convictions because he did not sign the written waiver of formal arraignment upon the charges in accordance with G.S. 15A-945. Defendant's position is untenable. Defendant failed to take an exception or bring forward an assignment of error on this basis in the record on appeal, and he did not brief or argue the point in the Court of Appeals.[2] Obviously, the matter is not properly raised for the first time in this Court. See N.C. Rules of Appellate Procedure, Rule 10(a). In any event, defendant has no justifiable cause for complaint. The record reveals that his counsel signed the written waiver of arraignment and entered pleas of not guilty on his behalf. Defendant does not even suggest, much less affirmatively show, that the waiver and pleas were entered without his full knowledge or concurrence. Consequently, defendant has not fulfilled his burden of establishing that his right to a fair trial was impaired or prejudiced due to the mere fact that he did not also personally sign the written waiver of arraignment. See State v. Small, 301 N.C. 407, 430-31, 272 S.E.2d 128, 142-43 (1980); State v. Smith, 300 N.C. 71, 73, 265 S.E.2d 164, 166-67 (1980); State v. McCotter, 288 N.C. 227, 234, 217 S.E.2d 525, 530 (1975). This "assignment" is overruled.

In summary, we affirm the Court of Appeals' decision to the extent that it found no error in the entry of the judgments of *585 conviction against defendant upon charges of burglary, larceny of property and possession of a burglary tool. However, we must reverse the Court of Appeals to the extent that it did not vacate defendant's conviction of possession of stolen property. The Court of Appeals is hereby directed to remand the cause to the trial court for a dismissal of that charge.

AFFIRMED IN PART; REVERSED IN PART.

MITCHELL, J., did not participate in the consideration or decision of this case.

[1] Defendant moved for a dismissal of either the larceny or the possession charge at trial upon this basis. The motion was denied.

[2] Defendant's counsel in this appeal did not represent him at trial or at the Court of Appeals.