State v. Haltom

199 S.E.2d 708 (1973) 19 N.C. App. 646

STATE of North Carolina
v.
William R. HALTOM.

No. 7320SC596.

Court of Appeals of North Carolina.

October 24, 1973. Certiorari Denied and Appeal Dismissed January 9, 1974.

Atty. Gen. Robert B. Morgan, by Asst. Attys. Gen. William W. Melvin and William B. Ray, Raleigh, for the State.

Leath, Bynum & Kitchin, by Henry L. Kitchin, Rockingham, for defendant appellant.

Certiorari Denied and Appeal Dismissed by Supreme Court January 9, 1974.

MORRIS, Judge.

Appellant assigns as error the trial court's denial of his motion for a change of venue on the ground that a recent rock festival in Richmond County had stirred up public outrage against the use of marijuana to the extent that it would be impossible for him to get a fair trial from any jury panel in the county. A motion to remove pursuant to G.S. § 1-84 is within the sound discretion of the trial court. Patrick v. Hurdle, 6 N.C.App. 51, 169 S.E. 2d 239 (1969). When such a motion is made, the facts upon which the motion is based must be stated with particularity and detail in the affidavit pursuant to G.S. § 1-85. Patrick v. Hurdle, supra. Nowhere in the record does it appear that defendant has set forth the facts on which his motion was based in any detail; therefore, the trial court did not abuse its discretion in denying the motion.

Appellant also contends that the trial court erred in its denial of his motion for continuance prior to the trial. The basis of this motion is the fact that the panel from which the jury was selected was in the audience at the trial of the case immediately preceding the present one, and they heard arguments made by counsel on voir dire on issues identical to those of the present case that were heard outside the presence of the jury. Like the motion for removal, this motion is the subject of the trial judge's discretion, and is not subject to review absent an abuse of discretion. State v. Robinson, 283 N.C. 71, 194 S.E.2d 811 (1973); State v. Stepney, 280 N.C. 306, 185 S.E.2d 844 (1972); State v. Cameron, 17 N.C.App. 229, 193 S.E.2d 485 (1972).

The crux of appellant's case is his contention that the various items of evidence seized pursuant to the search warrant should have been suppressed because of the invalidity of the search warrant. However, the search warrant and supporting affidavit do not appear in the record, and there is no indication of their contents other than the testimony of Agent Parker on voir dire. We are, therefore, precluded from reviewing the trial court's conclusion that the search warrant was properly granted, the search properly conducted and the evidence seized pursuant thereto admissible.

We are of the opinion, nevertheless, that the trial court's conclusions were correct inasmuch as they are supported by the testimony of Agent Parker on voir dire. According to Agent Parker, he had two informants—one of whom had been reliable in the past, and one who had not previously furnished information. The information furnished by the informant who had not proven reliable in the past was corroborated by the previously reliable informant. Thus, we feel that the standard for probable cause as established in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), has been satisfied.

We cannot sustain appellant's contention that the trial court erred in refusing to allow him to ascertain the identity of one of the informants. The right of the State to confidentiality of its informants is well established. State v. Boles, 246 N.C. 83, 97 S.E.2d 476 (1957); McCray v. Illinois, 386 U.S. 300, 87 S.Ct. 1056, 18 L.Ed.2d 62 (1968); Aguilar v. Texas, supra.

There has been no prejudice to defendant in allowing the jury to compare the unanalyzed substances to the packages previously analyzed as containing marijuana. As we have noted, the substance identified as marijuana was 52.2 grams—well above the statutory requirement of 5 grams. Inasmuch as there was 52.2 grams of marijuana introduced into evidence, State's case was sufficient to go to the jury, and appellant's assignment of error to the denial of the motion for nonsuit cannot be sustained.

The trial court's charge to the jury appears to be free from prejudicial error. Even if defendant had been prejudiced thereby, his broadside exception cannot be sustained. An assignment of error to the charge as a whole that specifies no additional charges deemed to be required is ineffective to bring up any portion of the charge for review. Investment Properties v. Allen, 281 N.C. 174, 188 S.E.2d 441 (1972).

Appellant contends the trial court erred in allowing the jury to take the State's evidence into the jury room. Assuming, arguendo, that this was error, appellant has nevertheless failed to sustain his burden upon appeal. It is not sufficient that he show error; he must make it appear that the error was prejudicial to him and that a different result would likely have ensued absent the error. State v. Bass, 280 N.C. 435, 186 S.E.2d 384 (1972); State v. Crump, 280 N.C. 491, 186 S.E.2d 369 (1972).

The final assignment of error is to the denial of appellant's motion to set aside the verdict of the jury. Such a motion is addressed to the discretion of the trial court and is not reviewable on appeal. State v. Mason, 279 N.C. 435, 183 S.E.2d 661 (1971).

No error.

CAMPBELL and PARKER, JJ., concur.