State v. Walsh , 19 N.C. App. 420 ( 1973 )

199 S.E.2d 38 (1973) 19 N.C. App. 420

STATE of North Carolina
v.
Patrick J. WALSH et al.

No. 7312SC264.

Court of Appeals of North Carolina.

September 19, 1973. Certiorari Denied November 1, 1973.

Atty. Gen. Robert Morgan, by Asst. Atty. Gen. Walter E. Ricks, III, Raleigh, for the State.

Donald W. Grimes, Asst. Public Defender, Twelfth District, Fayetteville, for defendants Patrick J. Walsh and Gary L. Peterson.

Carl A. Barrington, Jr., Fayetteville, for defendant Ruth Ann Quinn.

Certiorari Denied by Supreme Court November 1, 1973.

BROCK, Chief Judge.

Defendants' first assignment of error is that the search warrant was fatally defective, and that evidence seized thereunder should be suppressed.

G.S. § 15-26 sets forth the required contents of a search warrant. G.S. § 15-26(a) states: "The search warrant must describe with reasonable certainty the person, premises, or other place to be searched and the contraband, instrumentality, or evidence for which the search is to be made."

Defendants place great emphasis upon the fact that the address of the house described in the warrant differs from the address of the house actually searched, and that the house searched has a different color trim from an otherwise identical house fifty feet away on Pamalee Drive. Defendants are requiring exactness in the description of the premises, whereas the statute only requires a description with reasonable certainty.

"In determining whether a search warrant described the premises to be searched with sufficient particularity, it has been said that the executing officer's prior knowledge as to the place intended in the warrant is relevant. This would seem to be especially true where the executing officer is the affiant on whose affidavit the warrant had issued, and where he knows that the judge who issued the warrant intended the building described in the affidavit." 68 Am.Jur.2d, Search and Seizure, § 74, p. 729.

This assignment of error is overruled.

Defendants' second assignment of error embraces numerous exceptions which allege bias and prejudice on the part of the trial judge. In substance they allege that the trial judge favored the State in his discretionary rulings and otherwise aided the State in the prosecution of the case.

"Remarks of the court during the trial will not entitle defendant to a new trial unless they tend to prejudice defendant, the remarks to be considered in the light of the circumstances under which they were made; defendant has the burden of showing prejudice, and a bare possibility that they were prejudicial is insufficient." 2 Strong, N.C.Index 2d, Criminal Law § 99, p. 635.

Defendants' exceptions have failed to show prejudice. This assignment of error is overruled.

Defendants assign as error the denial of defendants' motion to strike the testimony of Officer Nichols regarding a bottle which exploded two days after it was seized at Pamalee Drive. Defendants contend this testimony served to create an impression in the minds of the jury that the defendants were dealing with explosive materials, and that this evidence had no connection with a drug offense prosecution.

"Where there is abundant evidence to support the main contentions of the state, the admission of evidence, even though technically incompetent, will not be held prejudicial when defendant does not affirmatively make it appear that he was prejudiced thereby or that the admission of the evidence could have affected the result." 3 Strong, N.C.Index 2d, Criminal Law § 169, p. 135.

The record on appeal further discloses that defendants did not object to the question; that the witness' answer was responsive, and that thereafter defendants moved to strike the answer. Objection must be interposed to an improper question without waiting for an answer, and, if objection is not made in that time, motion to strike the responsive answer is addressed to the discretion of the trial court, except where evidence is rendered incompetent by statute. State v. Perry, 275 N.C. 565, 169 S.E.2d 839. This assignment of error is overruled.

The defendant next assigns as error that the trial judge permitted the State's witness to weigh the contents of State's exhibit # 29 on a set of scales in the presence of the jury. State's exhibit # 29 was a bag containing marijuana. Obviously, the witness would have been permitted to testify that he had weighed the bag and to give its weight. We see no merit in defendant's argument that the act of weighing it should not have been permitted in the presence of the jury.

Defendants next assign as error the Court's failure to strike the opinion testimony of Officer Engleke that defendant Walsh was under the influence of marijuana at the time of the raid. A lay witness may state his opinion as to whether a person is under the influence of drugs when he has observed the person and such testimony is relevant to the issue being tried. State v. Cook, 273 N.C. 377, 160 S.E.2d 49; State v. Fletcher, 279 N.C. 85, 181 S.E.2d 405. This assignment of error is overruled.

Defendants assign as error the admission of testimony of a rebuttal witness called by the State. The rebuttal witness, Sergeant Taylor, the immediate supervisor of defendant Walsh at Fort Bragg, testified that the reputation of Walsh in the military community was not good.

The defendant Walsh elected to testify in his own behalf. By doing so, he subjected himself to impeachment by evidence of bad character just as any other witness. The evidence of defendant's character goes to his credibility and is not substantive evidence of guilt or innocence. Stansbury, N.C.Evidence, Brandis Edition, § 108. This assignment of error is overruled.

Defendants' final assignment of error alleges prejudicial omissions in the charge to the jury. Defendants contend that both knowledge and consent are necessary elements of criminal possession of controlled substances, and that defendants failed to give such consent to Gary Adams, the alleged sole owner and controller of the contraband.

The trial court instructed the jury that possession of a controlled substance exists if one has knowledge and power to control that substance. The trial court then delineated actual and constructive possession of property, and then instructed the jury that when one occupies a house, either alone or together with others as a tenant and as such has control over the premises, this fact in and of itself gives rise to the inference of both knowledge and control. This principle was clearly enunciated in State v. Harvey, 281 N.C. 1, 187 S.E.2d 706, as follows: "Where such materials (narcotics) are found on the premises under the control of an accused, this fact, in and of itself, gives rise to an inference of knowledge and possession which may be sufficient to carry the case to the jury on a charge of unlawful possession."

We find no prejudicial error in the charge.

In our opinion defendants had a fair trial free from prejudicial error.

No error.

BRITT and BALEY, JJ., concur.