State v. Keitt

199 S.E.2d 23 (1973) 19 N.C. App. 414

STATE of North Carolina
v.
Gwendolyn Gill KEITT and Danny Edward Cobb.

No. 7318SC602.

Court of Appeals of North Carolina.

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

Atty. Gen. Robert Morgan by William F. Briley, Asst. Atty. Gen., Raleigh, for the State.

Lee, High, Taylor, Dansby & Stanback, by Herman L. Taylor, Greensboro, for defendant Gwendolyn Gill Keitt.

Frye, Johnson & Barbee by Walter T. Johnson, Jr., Greensboro, for defendant Danny Edward Cobb.

Certiorari Denied by Supreme Court November 1, 1973.

BRITT, Judge.

Defendants assign as error the denial of their motions to be tried separately. This assignment has no merit. The two defendants were charged with identical offenses that were connected and tied together in time, place and circumstances. The consolidation for trial of the cases charging them with possession of heroin under the facts appearing is fully authorized by the statutory and case law of our State. G.S. § 15-152; State v. Yoes et al., 271 N.C. 616, 157 S.E.2d 386 (1967); State v. Walker et al., 6 N.C.App. 447, 170 S.E.2d 627 (1969).

Defendants assign as error the denial of their motions to suppress evidence obtained pursuant to a search of the automobile and the motel room and the admissions of the fruits of the search into evidence. This assignment has no merit.

The record reveals: Upon the call of the cases for trial on 26 February 1973, before arraignment of defendants and in the absence of prospective jurors, defendants made several motions including a motion "to suppress any evidence in the cases seized pursuant to a search warrant." On 27 February 1973 the court resumed its sitting. Defendants were arraigned and pleaded not guilty. Also on 27 February 1973, the court entered an order (briefly summarized) reciting that defendants' motions to suppress evidence came on to be heard; the court found as facts that the court was presented with a search warrant issued at 9:25 p. m. on 31 July 1972 authorizing a search of defendant Cobb's person, Room 228 of the Ramada Inn, and a 1972 Plymouth bearing N.C. license number 6289-C, that the search warrant was fully supported by an affidavit, that defendants offered no evidence at the voir dire, that defendant Keitt had no proprietary interest in Room 228 and the search warrant was not directed at her or her property; and the court concluded that the search warrant was proper "in form and content" and that defendants' motions to suppress were denied. The affidavit to obtain a search warrant and the search warrant are included in the record.

Defendants argue that the court did not conduct a hearing on their motions to suppress evidence and they have filed as an exhibit what purports to be the court reporter's "transcript of proceedings." We must reject the argument and exhibit. It is well settled in this jurisdiction that the record as certified imports verity and the Court of Appeals is bound thereby. 3 Strong, N.C.Index 2d, Criminal Law, § 158, p. 107. This court is bound by the record as certified and can judicially know only what appears of record. State v. Shedd, 274 N.C. 95, 161 S.E.2d 477 (1968).

The certified record before us reveals that there was a hearing on defendants' motions to suppress evidence. The search warrant and the affidavit supporting the same are sufficient to meet the requirements of law, and the order of the trial judge contains sufficient findings to hold the evidence admissible. Having been sufficiently heard on their motions to suppress, defendants were not entitled to a further voir dire hearing when they objected to the evidence at trial. See State v. Myers, 266 N.C. 581, 146 S.E.2d 674 (1966); State v. Thompson, 15 N.C.App. 416, 190 S.E.2d 355 (1972), cert. den. 282 N.C. 307, 192 S.E.2d 197 (1972). The assignment of error is overruled.

Defendants assign as error the admission into evidence of State's Exhibit 2 which purported to be a Ramada Inn registration folio for the dates 30 and 31 July 1972. This assignment is without merit. In 1 Stansbury's N.C.Evidence, Brandis Revision, § 155, p. 523, it is said: "If the entries were made in the regular course of business, at or near the time of the transaction involved, and are authenticated by a witness who is familiar with them and the system under which they were made, they are admissible." In Dairy & Ice Cream Supply Co. v. Gastonia Ice Cream Co., 232 N.C. 684, 686, 61 S.E.2d 895, 897 (1950), the court, after stating the quoted rule, said: "This rule applies to original entries made in books of account in regular course by those engaged in business, when properly identified, though the witness may not have made the entries and may have had no personal knowledge of the transactions." We hold that sufficient foundation was laid for the introduction of the exhibit into evidence.

Defendants assign as error the denial of their motions for nonsuit. We hold that the evidence was more than sufficient to survive the motions and the assignment is without merit.

Defendants assign as error the action of the court in consolidating two other cases against defendant Cobb with the trial of the two cases at hand and then withdrawing those cases from consideration after the trial had begun. This assignment has merit.

The record reveals that in addition to the possession of heroin case, defendant Cobb was charged also in two indictments with possession of marijuana and methadone, all on 31 July 1972. Prior to arraignment and in the absence of prospective jurors, defendants moved for severance of the four cases but the court denied the motions and allowed the State's motion to consolidate all cases for trial. Thereafter, defendants were arraigned not only on the heroin possession charges but defendant Cobb was arraigned also on the two indictments charging him with possession of marijuana and methadone. Defendants pleaded not guilty to all charges. While the first witness for the State was testifying, the court, in the absence of the jury, determined that since defendant Keitt was not connected with the marijuana and methadone cases, those cases should be tried separately. The court then modified its former ruling and denied the State's motion to try the heroin cases with the other two cases.

In State v. Williams, 279 N.C. 663, 185 S.E.2d 174 (1971), opinion by Chief Justice Bobbitt, the court reversed a long line of cases and held that for purposes of impeachment, a witness, including the defendant in a criminal case, may not be cross-examined as to whether he has been indicted or is under indictment for a criminal offense other than the offense for which he is on trial. However, the court further held that the circumstances of the particular case will determine whether a defendant will be awarded a new trial for having had to answer on cross-examination that he is currently under indictment for other crimes.

It appears to us that the principle laid down in Williams would apply also to the action of the court complained of here. We think the arraignment of a defendant in the presence of the jury on two untried charges, and then postponing the trial of those charges, could have an effect just as harmful, if not more so, as cross-examining a defendant with respect to untried charges. Nevertheless, under the circumstances of the cases at bar, we do not think defendants are entitled to a new trial. The evidence against defendants was strong and convincing, uncontradicted except for the presumption of innocence raised by the pleas of not guilty. In Fahy v. Connecticut, 375 U.S. 85, 84 S.Ct. 229, 11 L.Ed.2d 171 (1963), it was held that unless there is a reasonable possibility that the evidence complained of might have contributed to the conviction, its admission is harmless. We think the same rule would apply to the action complained of here and that although the action was erroneous, it was harmless beyond a reasonable doubt. State v. Taylor, 280 N.C. 273, 185 S.E.2d 677 (1972).

A careful consideration of the record impels us to conclude that defendants received a fair trial free from error sufficiently prejudicial to warrant a new trial.

No error.

MORRIS and PARKER, JJ., concur.