{
  "id": 8551038,
  "name": "STATE OF NORTH CAROLINA v. DAVID LEE SMITH",
  "name_abbreviation": "State v. Smith",
  "decision_date": "1979-06-05",
  "docket_number": "No. 7920SC132",
  "first_page": "600",
  "last_page": "603",
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    "name_abbreviation": "N.C. Ct. App.",
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    "name": "North Carolina Court of Appeals"
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      "reporter": "S.E.2d",
      "year": 1975,
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    {
      "cite": "286 N.C. 420",
      "category": "reporters:state",
      "reporter": "N.C.",
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    {
      "cite": "209 S.E. 2d 350",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1974,
      "opinion_index": 0
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    {
      "cite": "23 N.C. App. 396",
      "category": "reporters:state",
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  "analysis": {
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  "last_updated": "2023-07-14T18:02:40.540741+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [
      "Judges MARTIN (Robert M.) and ERWIN concur."
    ],
    "parties": [
      "STATE OF NORTH CAROLINA v. DAVID LEE SMITH"
    ],
    "opinions": [
      {
        "text": "ARNOLD, Judge.\nThe 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\u2019s un-contradicted testimony is that he saw in the open box \u201cvarious paraphernalia such as pipes which contained residue\u201d and \u201ca glass bottle which contained seeds, marijuana seeds.\u201d 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 \u201cinstrumentalities of crime,\u201d the narcotics paraphernalia, or evidence having a nexus with criminal behavior. Defendant\u2019s argument is unavailing.\nDefendant argues further that the trial court expressed an opinion in violation of G.S. 15A-1222 when he charged the jury that \u201c[t]hese offenses occurred on or about the 25th of May.\u201d Though it might have been better had the trial court said \u201cthese offenses allegedly occurred,\u201d we find no prejudicial error. Nor do we find merit in defendant\u2019s other assignments of error to the charge.\nDefendant 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 \u201ctrial 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.\u201d 294 N.C. 210, 213, 241 S.E. 2d 65, 67 (1978). There was no error in the admission of the testimony.\nDefendant 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 \u201cunless called as a witness by the defendant, the prosecutor, or the court.\u201d G.S. 15A-1334(b) (emphasis added).\nEvidence relating to defendant\u2019s 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.\nWe find that defendant received a fair trial, free from prejudicial error.\nNo error.\nJudges MARTIN (Robert M.) and ERWIN concur.",
        "type": "majority",
        "author": "ARNOLD, Judge."
      }
    ],
    "attorneys": [
      "Attorney General Edmisten, by Assistant Attorney General James Wallace, Jr., for the State.",
      "Seawell Pollock, Fullenwider, Robbins and May, by Bruce T. Cunningham, Jr., for defendant appellant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. DAVID LEE SMITH\nNo. 7920SC132\n(Filed 5 June 1979)\n1. Searches and Seizures \u00a7 40\u2014 warrant to search for marijuana \u2014 box containing methamphetamine \u2014seizure proper\nWhere a detective searched defendant\u2019s apartment pursuant to a warrant to search for marijuana, the detective seized a box filled with drug paraphernalia which was in plain view, and a later inventory of the box revealed methamphetamine in foil packets, the trial court did not err in determining that the box was properly seized either as containing instrumentalities of crime or as evidence having a nexus with criminal behavior.\n2. Criminal Law \u00a7 114.2\u2014 jury instructions \u2014 no expression of opinion\nThe trial court did not express an opinion by instructing the jury that \u201cthese offenses occurred on or about the 25th of May,\u201d instead of \u201cthese offenses allegedly occurred.\u201d\n3. Criminal Law \u00a7 138.7\u2014 sentencing hearing \u2014 witness called by court\nThe trial court did not violate G.S. 15A-1334 by calling a detective on its own motion to testify at defendant\u2019s sentencing hearing.\nAPPEAL by defendant from Gavin, Judge. Judgment entered 21 September 1978 in Superior Court, MOORE County. Heard in the Court of Appeals 2 May 1979.\nDefendant was indicted for possession of more than one ounce of marijuana and for possession with intent to sell methamphetamine. At trial the State presented evidence that Detective Campbell of the Moore County Sheriff\u2019s Department searched defendant\u2019s residence pursuant to a search warrant. On voir dire Campbell testified that he found the marijuana for which the warrant was issued in a bedroom drawer, and that he also seized an open box containing pipes, roach clips and other marijuana paraphernalia which was in plain view in the living room. An inventory of the box the next day disclosed methamphetamine in four tiny foil packets.\nDefendant conceded that the search warrant was valid and that the search was properly conducted as to the marijuana, but moved to suppress evidence of the methamphetamine as improperly seized. The court concluded that the box and its contents were properly seized under the plain view doctrine, and denied defendant\u2019s motion. At the close of the State\u2019s evidence, defendant\u2019s motion to dismiss was denied.\nDefendant was found guilty of possession of both marijuana and methamphetamine, and sentenced to 4-5 years on the marijuana charge and two years consecutive, suspended on condition, on the methamphetamine charge. He appeals.\nAttorney General Edmisten, by Assistant Attorney General James Wallace, Jr., for the State.\nSeawell Pollock, Fullenwider, Robbins and May, by Bruce T. Cunningham, Jr., for defendant appellant."
  },
  "file_name": "0600-01",
  "first_page_order": 628,
  "last_page_order": 631
}