State v. Salem

193 S.E.2d 755 (1973)

17 N.C. App. 269

STATE of North Carolina v. Richard Dean SALEM, and Fred Woodrow Mauney, Jr.

No. 7226SC844.

Court of Appeals of North Carolina.

January 17, 1973.

*757 Atty. Gen. Robert Morgan by Associate Atty. Gen., Howard A. Kramer, for the State.

Lila Bellar, Charlotte, for defendant appellant Richard Dean Salem.

Scarborough, Haywood & Selvey by E. Clayton Selvey, Jr., Charlotte, for defendant appellant Fred Woodrow Mauney, Jr.

GRAHAM, Judge.

The 46 exceptions, which are grouped under 9 assignments of error and are set forth on 40 pages of the record, purport to be the exceptions of both defendants. Many of the exceptions are based on the overruling of objections made by only one defendant. For various reasons, some of the assignments of error could not possibly relate to both defendants. It does appear that both defendants contend: (1) the cases should not have been consolidated and (2) the search of defendants' apartment was illegal and the evidence seized in the search should have been excluded. Both of these contentions are without merit.

G.S. § 15-152 authorizes the consolidation for trial of separate charges against two or more defendants when the offenses charged are of the same class and are so connected in time or place that most of the evidence at trial upon one of the charges would be admissible at a trial on the others. State v. Bass, 280 N.C. 435, 186 S.E.2d 384. There is nothing in the record to suggest that either defendant was prejudiced by the consolidation, and we hold that the order consolidating the cases for trial was an appropriate exercise of the trial court's discretion.

The search warrant authorizing the search of defendants' premises, along with the affidavit on which the warrant is based, appear in the record. We deem it unnecessary to set them forth in this opinion. Suffice to say, the warrant and affidavit have been carefully scrutinized and we find that they meet the requirements of G.S. § 15-26 and the Fourth Amendment to the United States Constitution. The fact that Salem is not named in the search warrant as an occupant of the apartment is without significance under the facts of this case. State v. Cook, 273 N.C. 377, 160 S.E.2d 49.

None of the remaining assignments of error appear to relate to both defendants and we therefore discuss them separately.

Defendant Mauney appeared at the apartment about ten minutes after the arrival of the officers. One of the officers asked Mauney who he was and if he lived there. Mauney told the officer his name, walked into a bedroom, and without being asked, stated that it was his room. Mauney says this evidence should have been excluded because he was not advised of his constitutional rights before making the statements. We disagree. These questions were asked before Mauney was taken into custody and before any contraband substance had been found. It was not necessary that the officers give Mauney the usual constitutional warnings before asking him general investigatory questions such as his name and whether he lived in the apartment. See State v. Gladden, 279 N.C. 566, 184 S.E.2d 249; State v. Shedd, 274 N.C. 95, 161 S.E.2d 477; State v. Hayes, 273 N.C. 712, 161 S.E.2d 185.

Mauney further contends that the court erred in denying his motion for a mistrial, made after the solicitor asked defendant on cross-examination if he were not a good friend of one Howard Mack Miller. There was no evidence before the jury as to the identity of Howard Mack Miller and there has been no showing that *758 any juror might have been prejudiced against one of his friends. Moreover, Mauney's objection to the question was sustained by the court. Under these circumstances, the court was acting well within the bounds of its discretion in denying Mauney's motions for a mistrial.

Mauney assigns as error the denial of his motion for nonsuit and argues that the evidence was insufficient to show that he was in possession of either the marijuana or pyrotechnics. These contentions are overruled. The marijuana was found in a bedroom which defendant told the officers was "his room." The pyrotechnics were found in a closet of the bedroom. This was sufficient to permit the jury to find that defendant was in constructive possession of the items.

Finally, Mauney argues that the court's charge on the law of possession was erroneous. The court instructed the jury thoroughly and accurately as to what constitutes possession, actual and constructive, and we find the charge free from prejudicial error.

One of the police officers who conducted the search of defendants' apartment was permitted to read to the jury, over Salem's objection, from a list of items seized during the search. Some of the items mentioned were not contraband and Salem contends he was prejudiced in that the jury may have thought that they were. The court should have limited the officer's testimony to the items which were relevant to the charges against defendants. However, we do not regard its failure to do so as error requiring a new trial. The noncontraband items were not introduced in evidence and it does not appear the State contended during the trial that possession of these items was illegal. It is inconceivable that the jury could have been influenced against defendants by evidence that legitimate pills and other non-contraband items were found in the apartment.

Assignment of error number six, which is argued in Salem's brief only, is: "The Court erred in refusing to allow certain answers to questions asked by defendants to be placed in the record. . . ." This assignment of error purports to be based on "Exceptions Nos. 3, 28 (R pp 39, 90)." Exception No. 28 on page 90 of the record is the exception entered by defendant Mauney to the court's denial of his motion for nonsuit, made at the conclusion of the State's evidence. No Exception No. 3 appears in the record.

It does appear from page 40 of the record that during a voir dire hearing, which defendant requested, the court refused to require a police officer to answer questions designed to attack the credibility of an informer who furnished information relied upon by the officer in applying for the search warrant. This was not error. Defendants were not entitled to a voir dire hearing for purposes of conducting a fishing expedition into the credibility of the informer, because the informer's credibility was a matter solely for the magistrate who issued the search warrant. The question before the trial court was not whether the informer was in fact reliable, but whether the facts sworn to by the officer in the affidavit as being within his personal knowledge were sufficient to support the magistrate's independent determination that the informer was reliable and that the information given by the informer to the affiant was probably accurate. State v. Shirley, 12 N.C.App. 440, 183 S.E.2d 880, cert. denied, 279 N.C. 729, 184 S.E.2d 885. The affidavit was before the court and a voir dire hearing was not required in order for the court to find that the facts contained therein were sufficient to meet constitutional and statutory requirements.

*759 Defendant Salem argues other contentions in his brief. These have been reviewed and are overruled. We are of the opinion and hold that defendants had a fair trial free from prejudicial error.

No error.

HEDRICK and VAUGHN, JJ., concur.