{
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  "name": "STATE OF NORTH CAROLINA v. LONNIE B. NEWCOMB",
  "name_abbreviation": "State v. Newcomb",
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  "last_updated": "2023-07-14T17:02:41.791978+00:00",
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    "date_added": "2019-08-29",
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  "casebody": {
    "judges": [
      "Judges PARKER and WEBB concur."
    ],
    "parties": [
      "STATE OF NORTH CAROLINA v. LONNIE B. NEWCOMB"
    ],
    "opinions": [
      {
        "text": "VAUGHN, Judge.\nSeveral of defendant\u2019s assignments of error are directed to the sufficiency of the evidence. To justify the conviction of defendant as an accessory before the fact, the jury must find that he aided or advised the parties who committed the offense, that he was not present when the offense was committed, and that the principal did commit the offense. State v. Sauls, 291 N.C. 253, 230 S.E. 2d 390 (1976), cert. den., 431 U.S. 916, 97 S.Ct. 2178, 53 L.Ed. 2d 226 (1977); State v. Bass, 255 N.C. 42, 120 S.E. 2d 580 (1961). Venecia Crews admitted that she sold marijuana. All the witnesses agreed that defendant was not present when the sale was made. Defendant testified that, \u201cI sent Venecia up there to see if I could get Mrs. Freeman to buy anything, actually buy some grass or pot.\u201d This evidence was sufficient to present to the jury.\nDefendant also assigns as error the admission of the marijuana into evidence. He argues that \u201ca constant chain of custody\u201d was not established. Although we have not recited all of the evidence, it suffices to say that the chain of custody was properly established. Where a package of evidence is properly sealed by the officer who gathered it and is still sealed with no evidence of tampering when it arrives at the laboratory for analysis, the fact that unknown persons may have had access to it does not destroy the chain of custody. State v. Jordan, 14 N.C. App. 453, 188 S.E. 2d 701 (1972), cert. den., 281 N.C. 626, 190 S.E. 2d 469.\nDuring cross-examination of defendant the district attorney referred to him as Officer Newcomb and then corrected himself with \u201cI better say Mr. Newcomb ...\u201d Objection was sustained. Defendant now argues that the district attorney intended to humiliate him and that the prejudice could not be removed from the jury\u2019s consideration. We doubt that addressing defendant as \u201cMr.\u201d instead of \u201cOfficer\u201d had the slightest influence on the jury in favor of either defendant or the State. Certainly, it is not cause for a new trial.\nDefendant makes assignments or error relating to the effect on the jury of certain nonresponsive answers to the State\u2019s questions. The court repeatedly cautioned the witness Freeman to limit her answers to the question asked. Each time she did not do so, the court promptly struck her answer from the record and instructed the jury to disregard it. \u201cOrdinarily it is presumed that the jury followed such instruction and the admission [of evidence later struck from the record] is not held to be reversible error unless it is apparent from the entire record that the prejudicial effect of it was not removed from the minds of the jury by the court\u2019s admonition.\u201d Smith v. Perdue, 258 N.C. 686, 690, 129 S.E. 2d 293, 297 (1963). There is no reason to believe, based on this record, that the jury depended upon this evidence in any way to arrive at the verdict. See also State v. Perry, 276 N.C. 339, 172 S.E. 2d 541 (1970).\nMany of defendant\u2019s other exceptions are taken to the district attorney\u2019s argument to the jury. He contends that the district attorney argued matters that were not in evidence and matters of personal opinion. We first point out that ordinarily it is the defendant\u2019s duty to object to improper argument. State v. Peele, 274 N.C. 106, 161 S.E. 2d 568 (1968), cert. den., 393 U.S. 1042, 89 S.Ct. 669, 21 L.Ed. 2d 590 (1969). In this case, where defendant objected to argument based on facts he contended were not in evidence, his objection was sustained, and the jurors were cautioned to find the facts from their own recollection.\n\u201cThe manner of conducting the argument of counsel, the language employed, the temper and tone allowed, must be left largely to the discretion of the presiding judge. He sees what is done, and hears what is said. He is cognizant of all the surrounding circumstances, and is a better judge of the latitude that ought to be allowed to counsel in the argument of any particular case.\u201d State v. Barefoot, 241 N.C. 650, 657, 86 S.E. 2d 424, 429 (1955).\nWe have considered defendant\u2019s remaining assignments of error. No error that would require a new trial has been shown.\nNo error.\nJudges PARKER and WEBB concur.",
        "type": "majority",
        "author": "VAUGHN, Judge."
      }
    ],
    "attorneys": [
      "Attorney General Edmisten, by Associate Attorney Donald W. Grimes, for the State.",
      "E. Clayton Selvey, Jr., for defendant appellant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. LONNIE B. NEWCOMB\nNo. 7726SC962\n(Filed 18 April 1978)\n1. Criminal Law \u00a7 10\u2014 accessory before the fact \u2014 elements\nTo justify a conviction of defendant as an accessory before the fact, the jury must find that he aided or advised the party who committed the offense, that he was not present when the offense was committed, and that the principal did commit the offense.\n2. Criminal Law \u00a7 10.2\u2014 accessory before the fact \u2014 sufficiency of evidence\nThe State\u2019s evidence was sufficient to be submitted to the jury on the issue of defendant\u2019s guilt of being an accessory before the fact to the felonious sale of marijuana.\n3. Criminal Law \u00a7 42.6\u2014 chain of custody of marijuana\nWhere a package of marijuana was sealed by the officer who seized it and was still sealed with no evidence of tampering when it arrived at a laboratory for analysis, the fact that unknown persons may have had access to it does not destroy the chain of custody.\n4. Criminal Law \u00a7 102.5\u2014 remark by district attorney \u2014 absence of prejudice\nDefendant, who was a police officer at the time of the alleged crime, was not prejudiced when the district attorney first referred to him as \u201cOfficer\u201d and then stated that he had better say \u201cMr.\u201d\n5. Criminal Law \u00a7 96\u2014 nonresponsive answers \u2014 withdrawal and instruction-absence of prejudice\nDefendant was not prejudiced by a witness\u2019s nonresponsive answers where the court on each occasion struck the nonresponsive answer from the record and instructed the jury to disregard it.\nAPPEAL by defendant from Lewis, Judge. Judgment entered 23 August 1977 in Superior Court, MECKLENBURG County. Heard in the Court of Appeals 29 March 1978.\nDefendant was indicted and tried for the offense of being an accessory before the fact to the felonious sale of marijuana.\nThe State\u2019s evidence, in summary, tends to show the following. Louise Freeman worked at a cleaning establishment in Charlotte during April, 1977. Defendant was a police officer with whom she was acquainted. She had a conversation with defendant on 13 April 1977 and told defendant that she wanted to buy some marijuana. Defendant agreed to bring marijuana to her at 11:30 a.m. on 15 April. She then called the police, and they sent officers to listen secretly during the 15 April meeting. Defendant appeared at the cleaners at about 11:45 a.m. on 15 April, and Freeman asked for $25.00 worth of marijuana. Defendant expressed concern that Freeman was trying to \u201cbust\u201d him but promised to \u201chave you some brought up here in a little while.\u201d Defendant left and a young girl named Venecia Jean Crews appeared in about five minutes. Venecia said, \u201cLonnie sent me.\u201d Shortly thereafter she produced a quantity of marijuana for which Freeman paid her $30.00. Venecia testified that she knew defendant, had worked for him, and that when she saw defendant on 15 April 1977, he asked her to go to the cleaners \u201cand see Louise about $25.00.\u201d She went to the cleaners, and Louise Freeman asked for some marijuana. She got some marijuana and sold it to Freeman for $30.00.\nDefendant\u2019s evidence tended to show that he received information in January, 1977 \u201cthat Louise Freeman and some members of the Police Department were going to try to set me up,\u201d and that on 21 March 1977, he wrote a letter setting forth this suspicion and gave it to Sherman Sides to hold for him. He got many calls from Louise Freeman asking him to meet her. When he met Freeman she asked to buy marijuana. He \u201cplanned to see that Mrs. Freeman got her pot and arrest her for it.\u201d He met Venecia Jean Crews and \u201csent Venecia up there to see if I could get Mrs. Freeman to buy anything, actually buy some grass or pot.\u201d He contended that, at all times, he was acting as a police officer.\nDefendant was convicted as charged, and judgment imposing a prison sentence was entered.\nAttorney General Edmisten, by Associate Attorney Donald W. Grimes, for the State.\nE. Clayton Selvey, Jr., for defendant appellant."
  },
  "file_name": "0137-01",
  "first_page_order": 165,
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