State v. Smith

41 N.C. App. 600 | N.C. Ct. App. | 1979

ARNOLD, Judge.

The defendant argues that evidence of the methamphetamine should have been suppressed because the box which contained it was not properly seized. His contention is that since Detective Campbell did not discover the methamphetamine until a later inventory of the box, he did not know the box contained contraband and therefore had no reason to seize it. Detective Campbell’s un-contradicted testimony is that he saw in the open box “various paraphernalia such as pipes which contained residue” and “a glass bottle which contained seeds, marijuana seeds.” Thus, under our holding in State v. Zimmerman, 23 N.C. App. 396, 209 S.E. 2d 350 (1974), cert. denied 286 N.C. 420, 211 S.E. 2d 800 (1975), this box was properly seized as containing either “instrumentalities of crime,” the narcotics paraphernalia, or evidence having a nexus with criminal behavior. Defendant’s argument is unavailing.

Defendant argues further that the trial court expressed an opinion in violation of G.S. 15A-1222 when he charged the jury that “[t]hese offenses occurred on or about the 25th of May.” Though it might have been better had the trial court said “these offenses allegedly occurred,” we find no prejudicial error. Nor do we find merit in defendant’s other assignments of error to the charge.

Defendant contends that hearsay testimony was improperly admitted at the sentencing hearing. He relies on State v. Locklear, 34 N.C. App. 37, 237 S.E. 2d 289 (1977), to support his position, but that decision has been reversed by the Supreme Court, saying that “trial judges have a broad discretion ... in making a judgment as to proper punishment . . . [and] must not be hampered in the performance of that duty by unwise restrictive procedures.” 294 N.C. 210, 213, 241 S.E. 2d 65, 67 (1978). There was no error in the admission of the testimony.

Defendant also contends that the trial court violated G.S. 15A-1334 by calling Detective Campbell on its own motion to testify at the sentencing hearing. However, that statute says clearly that no one other than certain named persons may comment to the court on sentencing “unless called as a witness by the defendant, the prosecutor, or the court.” G.S. 15A-1334(b) (emphasis added).

Evidence relating to defendant’s last assignment of error was excluded from the record on appeal by order of the trial court. Therefore, there is no basis for considering that assignment of error.

We find that defendant received a fair trial, free from prejudicial error.

No error.

Judges MARTIN (Robert M.) and ERWIN concur.