23 N.C. App. 619 | N.C. Ct. App. | 1974
Defendant moved to suppress all evidence obtained as result of the search, contending that the search was unlawful on a number of grounds. After conducting an extensive voir dire examination, the court entered an order making findings of fact on the basis of which the court concluded that the search was lawful. Defendant now contends this ruling was error, attacking the legality of the search on the sole ground that the method of entry employed by the officers was unlawful. Defendant does not bring forward in his brief or argument the other grounds on which at the trial he attacked the legality of the search warrant, nor does the record support any of those grounds.
Considering the record as it pertains to the sole ground upon which defendant now contends that the search was illegal, evidence at the voir dire hearing pertinent to the method of entry was as follows: The officers arrived at defendant’s house during daylight hours, at about 8 o’clock in the morning of 6 October 1972. They were armed with a valid search warrant. They had previously received information from their confidential source that defendant had told the informer “to come
We find the trial court’s essential findings of fact concerning the entry to be supported by the evidence and that these findings support the court’s conclusion that the entry was lawful. The officers did knock, announce their identity, state the source of their authority, request admission, and then wait a reasonable length of time before entering the house. The fact that silence greeted their demand for entrance did not make their entry unlawful, see State v. Hoffman, 281 N.C. 727, 190 S.E. 2d 842 (1972), and we hold that under the circumstances of this case the forcible nature of the entry did not render the subsequent search illegal.
Defendant next contends that the trial court erred “by admitting into evidence, over the defendant’s objections, testimony which was incompetent, irrelevant, immaterial, remote, inconclusive, conclusory, prejudicial and inflammatory to the defendant.” The assignment of error on which this contention is based contains the above language, followed by a long listing of exception numbers and page numbers where presumably the exceptions may be found. This assignment of error does not show what question is intended to be presented for consideration by this Court without the necessity of going beyond the assignment itself, and for that reason it does not conform to the requirements of the Rules of Practice of this Court or of our Supreme Court. In re Will of Adams, 268 N.C. 565, 151 S.E. 2d 59
Defendant’s motions for nonsuit were properly overruled. An accused has possession of contraband material within the meaning of the law when he has both the power and intent to control its disposition and use. “Where such materials are found on the premises under the control of an accused, this fact, in and of itself, gives rise to an inference of knowledge and possession which is sufficient to carry the case to the jury on a charge of unlawful possession.” State v. Harvey, 281 N.C. 1, 12, 187 S.E. 2d 706, 714 (1972). Here, there was evidence that heroin was found on defendant’s premises. The trash can in which it was found was under the carport only a few steps from the door to his house. There was also evidence that defendant admitted that he placed the plastic bag which contained the heroin in the trash can, though he denied any knowledge of the contraband nature of its contents. We hold the evidence in this case sufficient to support the jury’s finding defendant knowingly possessed the heroin found in his trash can, and the fact that only a small amount of heroin was here involved did not entitle defendant to a judgment of nonsuit. State v. Young, 20 N.C. App. 316, 201 S.E. 2d 370 (1973) ; State v. Thomas, 20 N.C. App. 255, 201 S.E. 2d 201 (1973), cert. denied, 284 N.C. 622, 202 S.E. 2d 277 (1974).
The State presented the testimony of Annie C. Pollock, who admitted she had formerly been a drug addict and that at the time of testifying was serving a prison sentence for possession of heroin. This witness was permitted to testify over defendant’s objections that she was present in Kinston, N. C., in the latter part of September, 1972, when defendant sold to her uncle some packages of white powder which defendant then stated to be “good dope,” that the purpose of her being present on that occasion was to test the powder after her uncle got it, that she
Admittedly the witness was no chemist and did not purport to be. She testified, however, that she had “taken heroin thousands of times” by injecting it through her veins with a needle, and on cross-examination stated that she analyzed the substance “[t]he way the junkies do,” she “took some of it.” She further testified on cross-examination:
“No, it couldn’t have been sugar. Sugar won’t cook up like the way heroin does. It couldn’t have been powder either. It wouldn’t cook the same. I know heroin from experience. I know the way, all right, the way that it looks and smells and what not, you can tell it from other powders that look like it if you know what you are doing.”
We hold that there was a sufficient showing that the witness’s previous experience qualified her to express the opinion given. Furthermore, there is no basis for defendant appellant’s complaint that the court made no express finding that the witness was qualified to give opinion testimony as an expert witness. Appellant made no request for such a finding, and “[i]n the absence of a request by the appellant for a finding by the trial court as to the qualification of a witness as an expert, it is not essential that the record show an express finding on this matter, the finding, one way or the other, being deemed implicit in the ruling admitting or rejecting the opinion testimony of the witness.” State v. Perry, 275 N.C. 565, 572, 169 S.E. 2d 839, 844 (1969).
In connection with appellant’s assignment of error relating to Pollock’s opinion testimony, defendant now contends that her entire testimony as to what occurred at the meeting in Kinston between herself, her uncle, and defendant in September should have been excluded because, so defendant argues, its only relevance was to show defendant’s disposition to commit a crime. The assignment of error, however, does not present this question, since it was limited to the question as to the admissibility of the witness’s opinion testimony and did not purport to raise any question as to admissibility of testimony as to the
Finally, defendant assigns error to portions of the court’s charge to the jury. In our opinion the charge considered as a whole, was free from prejudicial error.
No error.
