*1 COURT STATE OF HARRIS, NORTH CAROLINA v. CEATRICE J. NORMAN HARRIS, AND CARL HARRIS
No. 7515SC5 (Filed April 1975) — 1. Searches and on § Seizures 3—voir dire — attack on of affiant or informant allega- Where a search warrant is valid on the sworn tions are sufficient to establish not and attack of the affiant on his informant press the voir dire on defendant’s motion to the evidence seized to the search war- rant. — 2. Narcotics §§ to manufacture and sell 5— — possession as lesser offense included conviction of both offenses Since of heroin ais included offense within a sell, heroin with intent to manufacture properly offenses, defendants could not convicted and their simple possession must be set aside. concurring in of obiter lan- guage cases. Appeal by defendants Norman Harris and Carl Harris Judgments Brewer, Judge. entered October in Superior Court, County. Orange Appeals Heard in the Court of 12 March 1975. charged separate defendants were bills of indict-
ment (2) possession of heroin and heroin heroin a controlled substance under I Schedule of the North Carolina Controlled pled Substances Act. The evidence for the tended to show that or about February 1974, Tripp Officer Don
Department appeared Orange County Magistrate before J. C. purpose obtaining Merritt for the il- legally possessed drugs. A search warrant thereafter issued Tripp basis he Officer that his informer was reliable and that his information in the past more than two resulted convictions. obtaining
Upon along Tripp, with a Officer police officers, number of other went to 613 arriving Upon apartment, Tripp knocked on the N.C.App.] OF APPEALS *2 Harris. After the defendant Carl door which was answered persons, in- opened, Tripp door been observed several the had cluding defendant, positioned in the around table the other Harris, to lived who kitchen. He read the search apartment the the and then entered. He and other officers brownish-looking large quantity powdered of sub- observed stance, bags glassine cards, playing some small sifter and some immediately photograph A was the table. taken upon with the it. All and table articles this evidence was seized pack- Department to was taken the where it aged Laboratory Raleigh. and taken to the The evidence SBI Lytle, SBI, was turned over Leslie a chemist with the who analyzed powder testified that it the and was heroin in. combina- with other noncontrolled substances. tion judg- rested,
After for the State the defendants’ motions no ment as of nonsuit were The defendants offered evi- denied. again and dence renewed their motions which were denied. The jury, whereupon to the case submitted Carl Harris was guilty found and to manu- pos- facture and sell Norman J. Harris was found sentencing judgments session. From imprisonment, defendants to terms they appealed. pertinent disposition facts of this case will
Further opinion. be discussed in
Attorney Attorney Edmisten Assistant General General E. III Ricks the State. Walter
Pearson, Spaulding by Malone, Johnson, C. DeJarmon & C. Malone, Jr., and W. Pearson II G. for defendants. Judge.
CLARK, any empaneled evidence After the had been but before introduced, had the defendants made a been A dire was seized voir all evidence dire, jury. At the voir conducted in Tripp absence questions was asked testified and on cross-examination relating two which informer’s convictions to presumably questions These were asked led. information impeaching hope the affiant obvious concerning previous reliability in- statements his questions sustained, Objections these were former. excepted.
Státe
application
required
The initial
for a search
(b)
G.S. 15-26
form
submitted
magistrate.
alone,
or the affidavit and
plementary
allege underlying
testimony,
sworn
must
(1)
thing
from
informant
stances
which
concluded the
sought
was,
was where he claimed it
affiant concluded the informant
his
was credible or
information
Aguilar
reliable.
Texas,.
2d 723
Coolidge
must be neutral and detached.
*3
Hampshire,
443,
2022,
v. New
403 U.S.
91 S.Ct.
29
making
(1971).
2d 564
probable
L.Ed.
cause the
In
his determination of
magistrate
judge
persuasiveness
“must
for himself the
complaining
of the facts relied on
Giordenello v.
officer.”
States,
480,
1245,
United
357
1503,
U.S.
78
2
2d
S.Ct.
(1958).
great
paid
respect
1509
His determination should be
by reviewing
Spinelli
States,
410,
court.
v. United
393
89
584,
making
(1969).
of the informant the judicially would at trial issues, determined, issue theretofore collateral guilt to that of or innocence. is valid on its [1] adopt face, majority and the sworn rule that allegations where the search warrant are sufficient probable cause, may establish allegations, attack the informant, or the of the affiant or his in the voir dire defendant’s motion evidence seized Salem, App. search 2d 755 269, warrant. 17 N.C. 193 S.E. (1973), denied, 259, cert. 283 N.C. 195 S.E. 692 (1973). Annot., 5 See also A.L.R. 2d 394 language In other decisions this court has used obiter majority is at specifically variance with the view. We refer language Wooten, such in State v. App. 139, 20 201 N.C. Logan, App. 2d 89 2d 18 557, 197 S.E. (1973), disapprove language and we this insofar it as that indicates a defendant attack the informer; or the search the affiant or COURT OF APPEALS App.] approve in both to the effect but we eases that set in the affidavit are sufficient within if the facts out them- finding justify selves is showing on voir a sufficient dire. broadly interpreted
This rule of law should not so as to be. infer that under no circumstances can validity defendant attack of a valid which is on its or valid adequately supported by when the affidavit a sworn statement. ground attacking example, validity one is that For magistrate properly perform judicial failed to function in finding probable cause, Miller, 1, as in State v. 16 N.C. (1972), modified, 282 N.C. 194 S.E. 2d where the issued the (1973), reading without it.
[2] The defendant Carl was convicted charges intent to manufacture and sell. Aiken, In the case of 286 N.C. 209 S.E. 2d said, the court is an “[P]ossession possession with intent to and the unauthorized deliver is, necessity, an offense included within that the. unlawfully possess did to deliver.” defendant *4 included offense and an crime the crime of submitting on both error in the case we find the conviction below reverse and affirm the with intent to manufacture and sell. part.
Affirmed in part.
Reversed
Judges and Hedrick concur. Parker as follows: also concurs the obiter I concur in the Logan, 18 App. 139, 141, Wooten, 20