State v. Thornton , 283 N.C. 513 ( 1973 )

196 S.E.2d 701 (1973) 283 N.C. 513

STATE of North Carolina
v.
Douglas THORNTON.

No. 56.

Supreme Court of North Carolina.

June 1, 1973.

Robert Morgan, Atty. Gen., R. S. Weathers, Asst. Atty. Gen., for the State of North Carolina, appellant.

Loflin, Anderson, Loflin & Goldsmith by Thomas F. Loflin, III, Durham, for defendant appellee.

HUSKINS, Justice:

Before pleading to the charges contained in the bills of indictment, defendant moved that both cases be remanded to the district court for a preliminary hearing. Denial of this motion constitutes defendant's first assignment of error.

Defendant asks this Court to reexamine prior decisions holding that a preliminary hearing is not an essential prerequisite to a valid indictment. He argues that a mandatory preliminary hearing prior to indictment would result in a more realistic evaluation of the case by both prosecution and defense, and thus lead to more effective plea-bargaining and a consequent lessening of the case load. The argument is not persuasive. It is firmly established by a long line of cases that the accused may be tried upon a bill of indictment without a preliminary hearing. We adhere to our former rulings. See State v. Foster, 282 N.C. 189, 192 S.E.2d 320 (1972); State v. Bryant, 282 N.C. 92, 191 S.E.2d 745 (1972); State v. Hartsell, 272 N.C. 710, 158 S.E.2d 785 (1968); State v. Overman, 269 N.C. 453, 153 S.E.2d 44 (1967); State v. Hargett, 255 N.C. 412, 121 S.E.2d 589 (1961); State v. Hackney, 240 N.C. 230, 81 S.E.2d 778 (1954).

Defendant moved for judgment of nonsuit on the indictment charging illegal possession of heroin on the ground that any possession shown by the evidence was incidental to the transaction involving the alleged sale of the heroin and that it constitutes double jeopardy under both State and Federal Constitutions to place him on trial for two offenses and impose consecutive sentences for two convictions. We expressly held to the contrary in State v. Cameron, 283 N.C. 191, 195 S.E.2d 481 (1973), and we reaffirm that ruling here. Possession of heroin and distribution of heroin are separate and distinct crimes and each may be punished as provided by law. The decision of the Court of Appeals is erroneous insofar as it sustains this contention.

After the jury was empaneled and before the introduction of evidence, the stipulation appearing in the statement of facts was agreed upon and entered of record. The trial judge in his charge, while recapitulating the State's evidence, characterized the stipulation as follows: ". . . Mr. Thompson went to the back room;. . . when he returned he had with him three bags of heroin, or three bags of some substance; . . . Thompson took the bags and paid to Mr. Thornton the sum of $30 and left. Now, it was stipulated at the outset of this trial that that material, or some of it, was analyzed by the State Bureau of Investigation, and that the chemist who is a duly qualified expert in the field of qualitative analysis, would testify if he were here that upon analysis of this material he found it to be the narcotic drug known as heroin. Now, what his findings would be is not in contest, so if I refer to the contents of the bags as heroin, I do so simply because there is no argument that that is what the analysis would show. We do that simply to avoid the necessity of bringing the chemist over here to say what he has written in a letter." (Emphasis added) Defendant did not call this portion of the charge to the court's attention to afford the opportunity for correction but now assigns same as error.

"The general rule is that objections to the charge in stating the contentions of the parties or in recapitulating the evidence must be called to the court's attention in apt time to afford the opportunity for correction, in order that an exception thereto will be considered on appeal." 3 Strong N.C. Index 2d, Criminal Law § 163 (1967); State v. Gaines, 283 N.C. 33, 194 S.E.2d 839 (1973). However, the general rule does not apply here since defendant's assignment of error is not addressed to the court's recapitulation of evidence; rather, it is addressed to the court's enlargement of the stipulation. The stipulation itself "is not evidence, but rather removes the admitted fact from the field of evidence by formally conceding its existence." State v. McWilliams, 277 N.C. 680, 178 S.E.2d 476 (1971), quoting Stansbury, N.C. Evidence § 166 (2d ed. 1963).

The stipulation in question, when stripped of unnecessary verbiage, simply states that Neal C. Evans, an expert in the field of forensic chemistry and employed by the SBI laboratory, analyzed one of the three glassine envelopes turned over to him by J. C. Fuller, which analysis showed that the envelope contained heroin; and that Mr. Evans would so testify if called as a witness. The stipulation does not state that any of the envelopes bought from defendant by Officer Thompson were among the glassine envelopes turned over to Mr. Evans by J. C. Fuller. It was left to the State to prove that fact, and the State offered ample evidence to show that the envelopes purchased from defendant were marked by Thompson with his initials, the date and the time and then turned over to Sergeant Ronald Cooper who delivered them to J. C. Fuller.

Notwithstanding such evidence, however, defendant elicited testimony tending to show that the glassine envelopes initially marked by Thompson were not those purchased from defendant. By cross-examination of Officer Thompson, defendant produced evidence tending to show the possibility of a "mix-up" resulting in a mislabeling of purchased glassine envelopes. On direct examination Officer Thompson testified that he put the envelopes purchased from defendant into his left sock; on cross-examination he said, "I think I put them in my left pocket." Thompson further testified on cross-examination that he did not mark the envelopes in question as being those purchased from defendant until "after I got home," and that "I can't recall how many little white powder envelopes I may have purchased at various places on March 18 . . . I didn't initial them until I got home." In addition, defendant testified that the envelopes he sold Officer Thompson were "dummies" containing only milk, sugar and quinine.

Thus, defendant not only failed to concede that the envelope later found by the chemist to contain heroin was one of the envelopes purchased from him, he also affirmatively challenged the State's evidence that such was the case. In instructing the jury that it was stipulated that the chemist analyzed the contents of one of the very envelopes bought from defendant and found it to be heroin, the court removed all doubt concerning a material fact the State was required to prove. Such inadvertence on the part of the court effectively negated the paramount issue raised, i. e., whether the material eventually analyzed by the SBI chemist was part of the material defendant sold to Officer Thompson. This unintentional expression by the court, which assumed the existence of a material fact in issue, was prejudicial error and entitles defendant to a new trial. The Court of Appeals correctly so held.

Other assignments concern matters not likely to arise again and, for that reason, they will not be discussed.

The decision of the Court of Appeals awarding defendant a new trial is modified to conform to this opinion and, as thus modified, affirmed.

Modified and affirmed.