State v. Hegler

15 N.C. App. 51 | N.C. Ct. App. | 1972

BROCK, Judge.

Defendant assigns as error that the trial judge admitted evidence of finding the body of Virginia Drye White in the trunk of her car. He argues that this was an illegal search because he told the officers not to open the trunk and because the search was not incident to a lawful arrest. If we assume, arguendo, that the search without a warrant was illegal, nevertheless defendant may not now complain that the evidence was admitted. One reason why defendant may not now complain is that he made no objection to any of the testimony or to the photograph. Another reason is that his properly entered plea of guilty waived all right to question the legality of the search. State v. Perry, 265 N.C. 517, 144 S.E. 2d 591. This assignment of error is without merit and is overruled.

Defendant assigns as error that the trial judge abused his discretion by showing an indisposition to consider defendant’s evidence of his alcoholic addiction as a mitigating circumstance. We find no abuse of discretion. The record on appeal contains twenty-eight pages of testimony from witnesses offered by defendant; this is opposed to only seventeen pages of testimony from witnesses offered by the State. Obviously, the trial judge heard all evidence defendant wished to offer. Suffice it to say, the minimum sentence imposed by the trial judge is considerably less than it might have been. This assignment of error is without merit and is overruled.

Defendant assigns as error that the trial judge admitted evidence of defendant’s prior record. A trial judge “may inquire into such matters as the age, the character, the education, the environment, the habits, the mentality, the propensities, and the record of the person about to be sentenced.” State v. Stewart, 4 N.C. App. 249, 166 S.E. 2d 458. This assignment of error is without merit and is overruled.

Defendant assigns as error that the trial judge admitted hearsay evidence. One of the investigating officers gave the testimony of an absent witness for the State. When the officer began to recite the hearsay testimony, the following appears in the record on appeal:

“Mr. Carlton: Excuse me, your Honor. The man he is quoting is not here?

“Mr. Zimmerman: No, he is not here.

“Mr. Carlton: All right.”

No objection was made to the testimony. Had defendant objected, the State would have had an opportunity to present the witness in person. It would not be fair to allow the defendant to consent at trial and then object on appeal. This assignment of error is without merit and is overruled.

Defendant assigns as error that the indictment under which he entered his plea of guilty is illegal because it is based upon a statute involving the death penalty, which constitutes cruel and unusual punishment. This assignment of error is without merit and is overruled. The entire record supports the finding that defendant’s plea of guilty was freely, voluntarily and understandingly entered. That defendant would not have pleaded guilty except for the opportunity to limit the possible penalty does not necessarily demonstrate that the plea of guilty was not the product of a free and rational choice. North Carolina v. Alford, 400 U.S. 25, 27 L.E. 2d 162, 91 S.Ct. 160. Obviously, since his plea of guilty to second degree murder was freely, voluntarily, and understandingly entered, it can make no difference whether the imposition of the death penalty for first degree murder constitutes cruel and unusual punishment or not.

No error.

Chief Judge Mallard and Judge Campbell concur.