State v. Franks

BEOCK, Chief Judge.

The trial judge is expressly authorized by G.S. 15-152 to order consolidation for trial of two or more charges in which defendant is charged with crimes of the same class. Defendant has failed to show prejudicial error in the consolidation of the eight charges against the defendant in this trial.

Defendant assigns as error that the trial judge permitted testimony concerning 285 calls which had been made with the use of the same fictitious number. Defendant argues that he was charged only with making eight calls and that evidence as to the other 277 calls was prejudicial to him. Defendant is in no position to complain of this testimony. Although defendant made objections to some references to 285 calls, the following testimony was admitted without objection: “Some of the other 285 calls originated over in Eockingham. There is a prison camp over there. My investigation revealed that the defendant was an inmate over there.” The admission of testimony over objection is ordinarily harmless when testimony of the same import is theretofore or thereafter introduced without objection. 8 Strong, N. C. Index 2d, Criminal Law, § 169, p. 132. In any event in view of the evidence pointedly establishing defendant’s use of the fictitious number to make the eight calls to Greensboro, if it were error to permit reference to the 285 calls, it was harmless.

Defendant assigns as error the admission of testimony to establish that the charges for the telephone calls were rejected by the computer. The witness explained how the charge was initiated and placed upon a punch card; that this punch card was supposed to match an account by that number; that the computer was unable to match the charge number with an existing account; and that it was rejected by the computer. The witness further testified that he personally investigated the company records and found that the charge number was fictitious. We see no error in the admission of this evidence. If entries are 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. See, Stansbury, North Carolina Evidence, Brandis Revision, § 155.

Defendant assigns as error the admission of evidence seized as a result of a search of defendant’s person while in custody of the Department of Correction as a prisoner. When the warrants in these cases were brought to the unit of the Department of Correction from which defendant was scheduled to be discharged, the Sergeant in charge searched defendant prior to placing him in the lockup. During this search, the pocket calendar notebook was seized containing the fictitious account number and the two telephone numbers in Greensboro to which the eight calls in question were placed. Defendant complains that the trial court failed to conduct a voir dire at the time defendant requested it to determine the legality of the search. Although the trial court did not hold the voir dire at the time requested by defendant, the voir dire was later conducted and the search was found to be legal. This was done before the State completed the testimony concerning the evidence seized. The trial court having found, upon competent evidence, that the search was legal, we hold that the failure to conduct the voir dire at the time requested by defendant was not prejudicial. Defendant’s further argument that the trial judge failed to find the facts upon which he concluded the search to be legal must fail. Defendant offered no evidence on voir dire, and the State’s evidence which supports the trial court’s conclusion is uncon-tradicted. There was no requirement for findings of fact under these circumstances.

We have given careful consideration to defendant’s remaining assignments of error and find them to be without merit.

No error.

Judges Campbell and Parker concur.