State v. Wilhelm , 59 N.C. App. 298 ( 1982 )

296 S.E.2d 664 (1982)

STATE of North Carolina
v.
Robert Leroy WILHELM.

No. 8219SC273.

Court of Appeals of North Carolina.

November 2, 1982.

Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. W. Dale Talbert, Raleigh, for the State.

Davis & Corriher by James A. Corriher, Salisbury, for defendant-appellant.

VAUGHN, Judge.

Defendant's first argument is that the trial court erred in denying his motion for change of venue or a special venire.

If, upon motion of the defendant, the court determines that there exists in the county in which the prosecution is pending so great a prejudice against the defendant that he cannot obtain a fair and impartial trial, the court must either:

(1) Transfer the proceeding to another county..., or

(2) Order a special venire....

G.S. 15A-957.

Defendant has the burden of proof on a motion for change of venue, and to prevail, he must show that there is a reasonable likelihood that the prejudicial publicity complained of will prevent a fair trial. State v. McDougald, 38 N.C.App. 244, 248 S.E.2d 72 (1978), review denied, 296 N.C. 413, 251 S.E.2d 472 (1979). A motion for change of venue is addressed to the sound discretion of the trial judge, absent a showing of abuse of discretion, the ruling will not be overturned. State v. Alford, 289 N.C. 372, 222 S.E.2d 222, death sentence vacated, 429 U.S. 809, 97 S. Ct. 46, 50 L. Ed. 2d 69 (1976).

In his brief, defendant contends that various articles published in the local newspaper were inflammatory and prejudicial. Of the twelve newspaper articles he introduced into evidence, ten were written in November 1979, and were about a different trial. Only two rather short articles were about this case. At trial, defendant admitted that the articles were factual, not inflammatory. News coverage which accurately reports the circumstances of the case is not so innately conducive to the inciting of local prejudices as to require a change of venue. State v. Oliver, 302 N.C. 28, 274 S.E.2d 183 (1981); State v. Matthews, 295 N.C. 265, 245 S.E.2d 727 (1978), cert. denied, 439 U.S. 1128, 99 S. Ct. 1046, 59 L. Ed. 2d 90 (1979).

Defendant's second argument is that the trial judge expressed an opinion as to the credibility of the evidence after the following questions on cross-examination:

Q: [Mr. Corriher]: Mr. Neuner, did you do a physical count yourself of any of these pills?

A: No, sir, I did not.

Q: And did you check for latent fingerprints on the four or five plastic bags you testified about?

A: The five clear plastic bags.

Q: You didn't find any latent fingerprints of Mr. Robert Wilhelm on any of those bags, did you, sir?

A: Made no comparison. I found several fragmentary latent prints, but they did not contain a sufficient number of identifying characteristics to determine who they belonged to.

Q: You found no latent fingerprints of Robert Wilhelm on those bags, did you, sir?

Mr. Bowers: Your Honor, the State objects.

The Court: I think he answered that. Sustained. If you want him to testify to those he found to be identical or substantially similar to those of Mr. Wilhelm and those found not to be similar, I'll let him go into it if you want him to. Now, do you want him to go all the way into this?

Mr. Corriher: No, sir.

The Court: Then the objection would be sustained.

"A trial judge may not express ..., any opinion in the presence of the jury on any question of fact to be decided by the jury." G.S. 15A-1222. It is immaterial how the opinion is expressed, whether in the examination of a witness, in the rulings upon objections to evidence, or in any other manner. State v. Freeman, 280 N.C. 622, 187 S.E.2d 59 (1972). The judge's comments should be considered in light of all the facts and circumstances. State v. Brady, 299 N.C. 547, 264 S.E.2d 66 (1980).

In this case, it is clear that the trial judge's comments, taken in context, were not prejudicial. He was merely sustaining an objection to a question that was already asked and answered, and indicating that he would allow Mr. Corriher to go deeper in that line of questioning.

Defendant's third argument is that the trial court erred in denying his motion to suppress the evidence seized by the police.

It is a "basic principle of Fourth Amendment law" that searches and seizures inside a home without a warrant are presumptively unreasonable. Yet it is also well settled that ... [t]he seizure of property in plain view involves no invasion of privacy and is presumptively reasonable, assuming that there is probable cause to associate the property with criminal activity.

Payton v. New York, 445 U.S. 573, 100 S. Ct. 1371, 63 L. Ed. 2d 639 (1980).

Defendant contends that a nonconsensual search was made in his apartment after the SBI agents left to obtain a warrant. Although the State's witnesses deny making an illegal search, defendant's witnesses said that they saw men looking into defendant's cars and refrigerator. Even if the judge had believed the testimony of defendant's witnesses, no evidence was found in the cars or refrigerator which could have been suppressed.

Defendant contends that the trial court erred by not making findings of fact at the conclusion of the suppression hearing. G.S. 15A-977(d) provides: "If the motion is not determined summarily the judge must make the determination after a hearing and finding of facts...." Section (f) provides: "The judge must set forth in the record his findings of facts and conclusions of law." Since there is no conflict over whether anything was obtained from the alleged illegal search, there was no material conflict in the evidence. Although it is a good practice to make findings of fact, if there is no material conflict in the evidence, it is not error to admit the evidence without making specific findings of fact. State v. Phillips, 300 N.C. 678, 268 S.E.2d 452 (1980); State v. Riddick, 291 N.C. 399, 230 S.E.2d 506 (1976), rehearing denied, 293 N.C. 261, 247 S.E.2d 234 (1977).

Defendant's next argument is that the trial court erred in allowing State's exhibits 1, 2, and 3 to be introduced into evidence as 4855, 33, and 1106 units of methaqualone. Defendant contends that since only three tablets were analyzed, the State did not prove that he possessed more than 5,000 tablets.

Mr. McSwain, the forensic chemistry expert, testified that each bag contained uniform, identical tablets, although the tablets in Exhibit 2 were unlike the tablets in Exhibits 1 and 3. He testified that he randomly selected the tablets he tested, and they were methaqualone. When a random sample from a quantity of tablets or capsules identical in appearance is analyzed and is found to contain contraband, the entire quantity may be introduced as the contraband. For example, in State v. Riera, 276 N.C. 361, 172 S.E.2d 535 (1970), the fact that several capsules, selected randomly out of more than 100 capsules, which were identical in appearance, were found to contain barbiturates, was sufficient evidence to establish that defendant possessed over 100 barbiturates.

We have carefully reviewed defendant's assignments of error and find no error.

No error.

WEBB and WELLS, JJ., concur.