State v. Rogers

259 S.E.2d 572 (1979)

43 N.C. App. 475

STATE of North Carolina v. Dorothy Hagwood ROGERS.

No. 7914SC443.

Court of Appeals of North Carolina.

November 6, 1979.

*574 Atty. Gen. Rufus L. Edmisten, by Asst. Atty. Gen. Isham B. Hudson, Jr., Raleigh, for the State.

B. Frank Bullock, Durham, for defendant.

ROBERT M. MARTIN, Judge.

In her brief, defendant has failed to state the questions and pertinent assignments of error and exceptions at the beginning of each argument as required by Appellate Rule 28(b)(3) which provides: "Immediately following each question [presented in the brief] shall be a reference to the assignments of error and exceptions pertinent to the question . . ." Appeals are subject to dismissal for failure to comply with the North Carolina Rules of Appellate Procedure. We will, however, consider the appeal on its merits despite the difficulties presented by the appellant's brief.

In her assignments of error one through six, defendant contends that the court erred in permitting irrelevant and prejudicial testimony during voir dire. The record does not show how the judge's material findings of fact, conclusions, and order are in any way influenced by the challenged evidence and defendant has failed to demonstrate that hearing of the evidence by the trial judge resulted in any prejudice to her State v. Thomas, 34 N.C.App. 534, 239 S.E.2d 281 (1977), rev. denied 294 N.C. 444, 241 S.E.2d 846 (1978). Defendant's first six assignments of error are overruled.

Defendant contends by her seventh assignment of error that the court erred in denying defendant's motion for a change of venue. The judge, in hearing the motion, conducted a full inquiry, examined newspaper articles, and concluded that there were *575 no facts to support the motion for a change of venue. The record reveals that no juror objectionable to the defendant was permitted to sit on the jury panel. There was no error in denying the motion for a change of venue. State v. Conrad, 275 N.C. 342, 168 S.E.2d 39 (1969).

By her eighth assignment of error, defendant contends that evidence seized by the officer during his search of defendant's residence should have been excluded. She argues that no search warrant was read to her and that the search violated N.C.Gen. Stat. § 15A-252. This statute, which provides that "[b]efore undertaking any search or seizure pursuant to the warrant, the officer must read the warrant and give a copy of the warrant application and affidavit to the person to be searched, or the person in apparent control of the premises. . . to be searched . . .," did not apply to the search in the instant case, which was conducted 27 March 1975. The Criminal Procedure Act (Chapter 15A of the North Carolina General Statutes) became effective 1 July 1975. Moreover, it appears that an actual reading of the search warrant was rendered impossible because of the active obstruction by defendant's husband of the officers in their attempt to read the warrant. We find that there was substantial compliance with the provisions of the statutes claimed to have been violated. See State v. Fruitt, 35 N.C.App. 177, 241 S.E.2d 125 (1978); State v. Watson, 19 N.C. App. 160, 198 S.E.2d 185, rev. denied, 284 N.C. 124, 199 S.E.2d 662 (1973). The evidence was not obtained "as a result" of a violation of any provision of Chapter 15A. Therefore, its exclusion was not required by N.C.Gen.Stat. § 15A-974(2). See State v. Richardson, 295 N.C. 309, 245 S.E.2d 754 (1978). This assignment of error is overruled.

In her ninth assignment of error, defendant argues that it was prejudicial error for Officer C. E. Britt to testify that the white powdery substance found around the rim of defendant's commode "looked like heroin." Any error in the admission of this evidence was cured when the State's expert subsequently identified the substance as heroin. See State v. Bagnard, 24 N.C.App. 54, 210 S.E.2d 93, cert. denied 286 N.C. 416, 211 S.E.2d 796 (1974). This assignment of error is overruled.

Defendant contends by assignments of error 11 and 16 that the trial court erred in permitting testimony that certain paraphernalia and ingredients found in defendant's house were commonly used in the processing and packaging of the narcotic drug heroin. The questions posed by these assignments of error have been answered by this Court in State v. Bell, 33 N.C.App. 607, 235 S.E.2d 886, rev. denied 293 N.C. 254, 237 S.E.2d 536 (1977). In that case we said:

The defendant was tried, among other things, for the manufacture of heroin. G.S. 90-87(15) defines the term "manufacture" to include the packaging or repackaging of a controlled substance or the labeling or relabeling of its container. Buchanan's demonstration and testimony concerning the process of cutting, bagging, and mixing heroin was important to help the jury better understand the charges against the defendant and it was helpful in illustrating to the jury how the items contained in the black carrying case could have been used to package heroin.

Id. at 609, 235 S.E.2d 888.

By defendant's fourteenth assignment of error defendant contends that Officer Fuller's testimony as to the dog Baron's reaction in his search of the bank was incompetent for that no search warrant had been obtained for the safety deposit area. The test of the validity of a search is reasonableness. The test of what constitutes a search has been stated as a governmental intrusion into an area in which a person has a reasonable expectation of privacy. Generally, evidence acquired by unaided human senses from without a protected area is not considered an illegal invasion of privacy, but is usable under doctrines of plain view or open view or the equivalent. Odors so detected may furnish evidence of probable cause of most persuasive character. United States v. Solis, 536 F.2d 880 (9th Cir. 1976). In determining whether the use of the dog *576 Baron to replace the natural senses of officers constitutes unreasonable search, the court must determine whether the defendant had reasonable expectation of privacy. Privacy could not be expected in an area open to customers of the bank and bank employees who were free to open and shut nearby boxes. We hold that the use of the dog did not constitute a search but rather constituted a monitoring of the air in an area open to the public for determining the existence of criminal enterprise nearby. U. S. v. Solis, 536 F.2d 880 (9th Cir. 1976). We do not find that, on the facts before us, the search was carried out in an unreasonable manner or that the use of the dog itself was an unreasonable invasion of defendant's privacy. Accordingly, defendant's assignments of error are overruled.

We disagree with defendant that a chain of custody was not established in the admission of State's exhibits. The State's evidence established a clear chain of identity between the substance which Officer Fuller testified he procured at defendant's residence and that substance which the State's chemist, Jerry Dismukes, testified he tested and found to contain heroin. There was evidence that the package was sealed when turned over to Officer Calvin Smith who delivered the sealed package to the S.B.I. laboratory in Raleigh. State v. Newcomb, 36 N.C.App. 137, 243 S.E.2d 175 (1978); State v. Jordan, 14 N.C.App. 453, 188 S.E.2d 701, rev. denied 281 N.C. 626, 190 S.E.2d 469 (1972). Defendant's seventeenth assignment of error is overruled.

No reason or argument is stated or authority cited in support of appellant's assignments of error 10 and 13, and they are therefore deemed abandoned. Appellate Rule 28(b)(3).

Defendant's assignments of error 12, 15, 18 and 19 raise questions concerning admission of evidence. We have carefully examined these assignments of error and supporting exceptions, and no error of law requiring a new trial has been made to appear.

Defendant contends by assignments of error 21 and 22 that the court erred in refusing to grant defendant's motion for nonsuit. The evidence relative to the charges of possession and manufacturing of heroin was sufficient for jury consideration. State v. Bell, 33 N.C.App. 607, 235 S.E.2d 886, rev. denied 293 N.C. 254, 237 S.E.2d 536 (1977). The authority upon which defendant relies was expressly overruled by this Court in State v. Childers, 41 N.C.App. 729, 255 S.E.2d 654, rev. denied ___ N.C. ___, 259 S.E.2d 916 (1979).

One of the elements of the offense of possession of an unregistered pistol, as provided in 1935 Sess. Law Ch. 157, is that "registration of pistols shall be done within 10 days after purchase or transfer thereof where acquisition of the weapon occurred on or after 15 March 1935."

The State failed to establish that the defendant had possession of the pistols 10 days prior to 27 March 1975. The charge of possession of unregistered pistols should have been dismissed, in that no evidence was adduced by the State on this essential element of the offense.

We have examined defendant's assignments of error Nos. 23, 24, 25, 26 and 27 (relating to instructions given by the trial court to the jury) and find they are without merit. Accordingly, they are overruled.

In the charge of possession and manufacturing of heroin we find no prejudicial error. In the charges of possession of unregistered pistols we reverse and remand to the trial court to vacate the convictions.

In No. 75CR8045, no error.

In No. 75CR9401, no error.

In No. 75CR8046, reversed.

In No. 75CR8047, reversed.

MORRIS, C. J., and PARKER, J., concur.