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North Carolina v. Rogers

Filed: November 6, 1979.


Appeal by defendant from Braswell, Judge. Judgment entered 11 December 1975 in Superior Court, Durham County. Heard in the Court of Appeals 18 September 1979.

Martin (Robert M.), Judge. Chief Judge Morris and Judge Parker concur.


In her brief, defendant has failed to state the questions and pertinent assignments of error and exceptions at the beginning of each argument as required by Appellate Rule 28(b)(3) which provides: "Immediately following each question [presented in the

brief] shall be a reference to the assignments of error and exceptions pertinent to the question . . ." Appeals are subject to dismissal for failure to comply with the North Carolina Rules of Appellate Procedure. We will, however, consider the appeal on its merits despite the difficulties presented by the appellant's brief.

In her assignments of error one through six, defendant contends that the court erred in permitting irrelevant and prejudicial testimony during voir dire. The record does not show how the judge's material findings of fact, conclusions, and order are in any way influenced by the challenged evidence and defendant has failed to demonstrate that hearing of the evidence by the trial judge resulted in any prejudice to her. State v. Thomas, 34 N.C. App. 534, 239 S.E.2d 281 (1977), rev. denied 294 N.C. 444, 241 S.E.2d 846 (1978). Defendant's first six assignments of error are overruled.

Defendant contends by her seventh assignment of error that the court erred in denying defendant's motion for a change of venue. The judge, in hearing the motion, conducted a full inquiry, examined newspaper articles, and concluded that there were no facts to support the motion for a change of venue. The record reveals that no juror objectionable to the defendant was permitted to sit on the jury panel. There was no error in denying the motion for a change of venue. State v. Conrad, 275 N.C. 342, 168 S.E.2d 39 (1969).

By her eighth assignment of error, defendant contends that evidence seized by the officer during his search of defendant's residence should have been excluded. She argues that no search warrant was read to her and that the search violated N.C. Gen. Stat. § 15A-252. This statute, which provides taht "[b]efore undertaking any search or seizure pursuant to the warrant, the officer must read the warrant and give a copy of the warrant application and affidavit to the person to be searched, or the person in apparent control of the premises . . . to be searched . . .," did not apply to the search in the instant case, which was conducted 27 March 1975. The Criminal Procedure Act (Chapter 15A of the North Carolina General Statutes) became effective 1 July 1975. Moreover, it appears that an actual reading of the search warrant was rendered impossible because of the active obstruction by defendant's husband of the officers in their attempt to read the

warrant. We find that there was substantial compliance with the provisions of the statutes claimed to have been violated. See State v. Fruitt, 35 N.C. App. 177, 241 S.E.2d 125 (1978); State v. Watson, 19 N.C. App. 160, 198 S.E.2d 185, rev. denied 284 N.C. 124, 199 S.E.2d 662 (1973). The evidence was not obtained "as a result" of a violation of any provision of Chapter 15A. Therefore, its exclusion was not required by N.C. Gen. Stat. § 15A-974(2). See State v. Richardson, 295 N.C. 309, 245 S.E.2d 754 (1978). This assignment of error is overruled.

In her ninth assignment of error, defendant argues that it was prejudicial error for Officer C. E. Britt to testify that the white powdery substance found around the rim of defendant's commode "looked like heroin." Any error in the admission of this evidence was cured when the State's expert subsequently identified the substance as heroin. See State v. Bagnard, 24 N.C. App. 54, 210 S.E.2d 93, cert. denied 286 N.C. 416, 211 S.E.2d 796 (1974). This assignment of error is overruled.

Defendant contends by assignments of error 11 and 16 that the trial court erred in permitting testimony that certain paraphernalia and ingredients found in defendant's house were commonly used in the processing and packaging of the narcotic drug heroin. The questions posed by these assignments of error have been answered by this Court in State v. Bell, 33 N.C. App. 607, 235 S.E.2d 886, rev. denied 293 N.C. 254, 237 S.E.2d 536 (1977). In that case we said:

The defendant was tried, among other things, for the manufacture of heroin. G.S. 90-87(15) defines the term "manufacture" to include the packaging or repackaging of a controlled substance or the labeling or relabeling of its container. Buchanan's demonstration and testimony concerning the process of cutting, bagging, and mixing heroin was important to help the jury better understand the charges against the defendant and it was helpful in ...

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