State v. West

222 S.E.2d 738, 28 N.C. App. 689, 1976 N.C. App. LEXIS 2801

• Court: Court of Appeals of North Carolina
• Decided: March 17, 1976
• Docket: No. 755SC812
• Status: Published

Opinion

BRITT, Judge.

Defendants assign as error the failure of the trial court to grant their motions for nonsuit. We hold that the assignments are without merit and that the evidence was sufficient to survive all nonsuit motions and to sustain all charges against each of the defendants.

Defendants also assign as error the failure of the trial court to conduct a voir dire to pass upon the legality of the search of the Cougar automobile. These assignments likewise have no merit.

It will be noted that defendants did not move to suppress the testimony and they do not challenge the validity of the search, only the failure of the court to conduct a voir dire. The validity of the search can be defended on several grounds, including the fact that it was incident to a lawful arrest. State v. Haney, 263 N.C. 816, 140 S.E. 2d 544 (1965). A further ground is that it was based on probable cause. State v. Ratliff, 281 N.C. 397, 189 S.E. 2d 179 (1972).

Defendants rely upon the well established rule that ordinarily an objection to the admission in evidence of the fruits of a warrantless search is sufficient to require an inquiry by the court, in the absence of the jury, into the validity of the search. While we recognize the rule, there are many reasons why it does not avail defendants in this case.

The record fails to disclose that any of the defendants objected when Officer Tucker (R pp 86, 87) testified with respect to what he found in the car immediately after the arrest of defendants. Without objection he told of finding a broken-down shotgun, a gun shell, a paper bag containing wine, beer, etc., and U. S. currency with identification showing that it belonged to the Wrightsboro 7-11 Store. Those were the primary items found in the car.

While it is true that defendants objected to certain other testimony relating to property found in the car, its admission was rendered harmless by the testimony of similar import admitted without objection. 3 Strong, N. C. Index 2d, Criminal Law § 169.

Furthermore, under the facts in this case we do not think a voir dire would have been required even if defendants had properly objected to the challenged testimony. See State v. Vestal, 278 N.C. 561, 180 S.E. 2d 755 (1971), cert. denied, 414 U.S. 874, 38 L.Ed. 2d 114, 94 S.Ct. 157 (1973) ; State v. Altman, 15 N.C. App. 257, 189 S.E. 2d 793 (1972), cert. denied, 281 N.C. 759 (1972).

We have carefully considered the other assignments of error brought forward and argued in defendants’ briefs but find them too to be without merit.

We hold that defendants received fair trials, free from prejudicial error.

No error.

Judges Hedrick and Martin concur.