State v. McDougald

197 S.E.2d 11 (1973) 18 N.C. App. 407

STATE of North Carolina
v.
John Junior McDOUGALD.

No. 7312SC405.

Court of Appeals of North Carolina.

June 13, 1973. Certiorari Denied August 31, 1973.

Atty. Gen. Robert Morgan by Associate Atty. Gen. Henry E. Poole, Raleigh, for the State.

Barrington, Smith & Jones by William S. Geimer, Fayetteville, for defendant appellant.

Certiorari Denied by Supreme Court August 31, 1973.

BALEY, Judge.

The defendant contends that it was error for him not to be given a copy of the search warrant, that entry into his premises was illegal, and that evidence obtained by the search should be suppressed. We find no merit in these contentions.

G.S. § 15-21 specifically provides that a failure to furnish copy of warrant ". . shall not invalidate the arrest." The officers read the search warrant to the defendant before any search was made, and he was advised of its contents. There was no indication in the record that defendant made any contention that he had suffered any improper invasion of his privacy.

Defendant further contends that if he had been furnished a copy of the warrant he would have had an opportunity to show that the identity of the informant was essential to his defense.

Disclosure of the identity of a confidential informer will not be allowed unless such disclosure would be relevant or helpful to the defense. State v. Fletcher and State v. St. Arnold, 279 N.C. 85, 181 S.E.2d 405; State v. Moore, 275 N.C. 141, 166 S.E.2d 53; State v. Hendrickson, 17 N.C.App. 356, 194 S.E.2d 208; State v. Cameron, 17 N.C.App. 229, 193 S.E.2d 485.

In this case 276 grams of marijuana were found in a bedroom of defendant's home. It was separated into 20 plastic bags known as "lids" which, according to the testimony of the officer, sell locally at $20.00 per lid. Correspondence addressed to defendant was in the room. It is abundantly clear that the defendant was in possession of this marijuana. It was in his custody and control and subject to his disposition. State v. Romes, 14 N.C.App. 602, 188 S.E.2d 591, cert. denied, 281 N.C. 627, 190 S.E.2d 469.

The disclosure of the informant whose information led the police to the defendant would not be relevant or helpful to this defendant as there is ample independent evidence of his guilt. The activities of the confidential informant are only collaterally connected with the offense for which defendant was on trial, and there is no showing that disclosure of his identity could aid the defendant in any way. State v. Johnson, 13 N.C.App. 323, 185 S.E.2d 423.

Defendant assigns as error the failure of the court to declare a mistrial or give a precautionary instruction to the jury in connection with the testimony of Officer Samuel White on cross-examination by the defendant.

The statement of Officer White must be taken in context. The defendant by cross-examination was attempting to establish that the officer did not believe that the defendant had anything to do with the marijuana being in his house, and asked what the officer told him. Officer White then testified ". . . as I stated to you, even I had information in reference to you and your son dealing in narcotics." In reply to defendant's question, ill-advised as that question may have been, the answer of Officer White cannot be held as error.

Defendant asserts that the court owes him an additional duty because he was not represented by counsel. The court is not required to represent a defendant who chooses to be his own counsel, but, rather, a trial judge sits as an impartial arbiter to see that justice is done between the accused on the one hand and society on the other. State v. Morris, 2 N.C.App. 262, 163 S.E.2d 108, reversed on other grounds, 275 N.C. 50, 165 S.E.2d 245.

A defendant appearing pro se by his own choice does so at his peril and does not automatically become a ward of the court. See Note, "Criminal Procedure— Right to Defend Pro Se", 48 N.C.L.Rev. 678, 683-84 (1970). We have, however, considered all assignments of error urged by defendant and find them without merit.

Finally, defendant insists that the statute relating to the possession and distribution of controlled substances upon which the bill of indictment is based is unconstitutional as it creates a presumption of guilt. This same statute has already been before this Court upon a similar contention in State v. Garcia, 16 N.C.App. 344, 192 S.E.2d 2, cert. denied, 282 N.C. 427, 192 S.E.2d 837, where it was held to be constitutional.

The evidence here of possession of 276 grams of marijuana is reinforced by other evidence showing concealment and that the marijuana was separated into smaller containers, indicating that it was being broken up for more ready distribution. This would support a jury finding that the defendant actually had the intent to distribute. State v. Riera, 276 N.C. 361, 172 S.E.2d 535.

In our opinion, the defendant has been accorded a fair trial free from prejudicial error.

No error.

BRITT and HEDRICK, JJ., concur.