State v. Tennyson

HEDRICK, Judge.

Based on assignments of error 1 and 3 (exceptions 1 and 3) defendant contends the court erred in admitting into evidence, over defendant’s objection, the marijuana (State’s exhibits 3, 4 and 5) found as a result of the search of defendant and his automobile.

These assignments of error have no merit. The record discloses that the police officers searched defendant and his automobile and seized exhibits 3, 4 and 5 by authority of a duly issued and executed search warrant.

Defendant assigns as error: “[t]he action of the Court in asking the weight of the three envelopes and then allowing the Solicitor to ask the witness to answer that the total exceeded five grams.”

A trial judge may ask questions of a witness to clarify his testimony. State v. Freeman, 280 N.C. 622, 187 S.E. 2d 59 (1972). The record reveals that the witness first testified as to the weight of two of the three packages of marijuana. The trial judge merely asked the witness to give the weight of each of the three packages. ■ Thereafter, the witness was permitted to testify as to the total weight of the three packages. Obviously, the purpose of the court’s questions was to clarify testimony of the officer as to the weight of each package of marijuana. No prejudicial error is shown.

By assignments of error 4 and 5, based on exceptions 4 and 5, defendant contends the court erred in allowing into evidence “marijuana residue” taken from a trash can in defendant’s motel room and in refusing to strike testimony that “marijuana residue was found in a trash can” in defendant’s motel room.

Assignment of error number 4 has no merit since there is nothing in the record to indicate that the “marijuana residue” was offered or admitted into evidence. While the record indicates that defendant duly excepted to the court’s refusal to strike the testimony complained of in assignment of error number 5, it is not clear that defendant objected to the question eliciting the testimony. An objection does appear in the record immediately prior to the testimony complained of, but the exception noted therein (exception 4) purportedly is the basis of another assignment of error. A motion to strike testimony to which no objection was timely raised, is addressed to the sound discretion of the trial judge and his ruling thereon will not be reviewed on appeal absent a showing of abuse of discretion. State v. Hunt, 223 N.C. 173, 25 S.E. 2d 598 (1943). We do not perceive that the testimony complained of was prejudicial to defendant or that the trial court abused its discretion in denying the motion since possession of the marijuana residue was not the basis of the charge against defendant. Furthermore, the admission of the testimony could not have been prejudicial since defendant elicited evidence of the same import by his extensive cross-examination of the witness. State v. Colson, 262 N.C. 506, 138 S.E. 2d 121 (1964); 1 Strong, N. C. Index 2d, Appeal and Error, § 48. Assignments of error 4 and 5 are overruled.

By his sixth assignment of error, defendant contends the court expressed an opinion on the evidence in violation of the provisions of G.S. 1-180 when it asked the witness, “Don’t you know marijuana?” and “What is it, then?”

These questions were asked by the judge during defendant’s extensive cross-examination of the officer regarding the material described as “marijuana residue” which he found in defendant’s motel room. The questions clearly were for the purpose of clarifying the witness’s testimony and did not amount to an expression of opinion on the evidence by the judge. Assignment of error number 6 is not sustained.

Next defendant contends the court erred in admitting into evidence, over his objection, the search warrant and affidavit used by the officers to search the defendant and his automobile. Defendant and the State stipulated that it was not necessary that the search warrant and affidavit be included as part of the record on appeal. Prejudicial error, therefore, is not made to appear. State v. Culbertson, 6 N.C. App. 327, 170 S.E. 2d 125 (1969).

Defendant contends the court erred in denying his motions for judgment as of nonsuit. There was sufficient competent evidence to require submission of the case to the jury and to support the verdict.

Finally, defendant contends the court erred in its instructions to the jury. After carefully examining each exception upon which these assignments of error are based, we find no prejudicial error in the charge.

Defendant had a fair trial free from prejudicial error.

No error.

Judges Campbell and Morris concur.