State v. Cumber

GRAHAM, Judge.

Two New Hanover County school officials identified various State’s exhibits as property owned by the schools and located in the school buildings on the evening of 27 September 1970. One of these witnesses also identified the exhibits as the property *304which he observed in defendant’s station wagon on 27 September 1970. The only objections made by defendant to any of this testimony were to statements by one of the witnesses as to what he thought certain of the items had cost. These objections were sustained. At the conclusion of the testimony of these witnesses the record reflects that the following transpired:

“Mr. Cobb : I would like to introduce this evidence and these exhibits into evidence.
Mr. Newton: Objection.
Court: On what grounds?
Mr. Newton: Especially the last two at Bradley Creek; been no positive identification of those, just common items.
Court : Overruled.
Mr. Cobb : I would like to introduce them at this time.
Court: All right.”

Defendant contends that the court erred in not ordering a voir dire hearing at this stage of the trial to determine if the evidence had been obtained by an illegal search. If defendant had properly raised an issue as to the legality of the State’s acquisition of this evidence this assignment of error would indeed be well taken. State v. Woody, 277 N.C. 646, 178 S.E. 2d 407; State v. Pike, 273 N.C. 102, 159 S.E. 2d 334; State v. Wood, 8 N.C. App. 34, 173 S.E. 2d 563. The objection entered, however, was directed to what defendant contended was á lack of sufficient identification of some of the items. “When an objection is made upon certain grounds stated, only those stated can be made the subject of review, except where the evidence is excluded by statute.” 2 McIntosh, N. C. Practice 2d, § 1532(7).

In inquiring of defendant’s counsel as to the grounds for the ^objection, the trial judge was undoubtedly seeking to determine if a voir dire hearing would be necessary. Counsel’s response limited the objection to the question of identification of the property. No voir dire hearing was necessary in order to pass upon an objection made on these grounds.

Defendant also assigns as error the failure of the court to order a voir dire hearing before allowing testimony by the Highway Patrolman as to what he observed in the station wagon. *305This assignment of error is without merit. The patrolman did not testify that he conducted a search or that he seized any of the items introduced into evidence. His testimony simply described what he saw as he stood outside the station wagon and looked inside. He stated: “It was in plain view when I went up to the car and talked to Watts.” This testimony was clearly competent, irrespective of whether grounds existed at that time to search the vehicle. Furthermore, at the time the patrolman testified, the subject items had already been introduced into evidence and no question had been raised as to whether they had been illegally obtained by the State.

The case of State v. Wood, supra, which is relied upon by defendant is clearly distinguishable. There, the introduction into evidence of cartons of cigarettes alleged to have been stolen was directly challenged on the ground that the evidence had been obtained by an illegal search. Rather than conducting a voir dire hearing to inquire into the constitutionality of the search, the trial court undertook to examine, in the presence of the jury, the officer who had seized the property. This examination revealed that the officer saw some cigarettes in the car before he searched it and seized various items of property. The objection interposed in that case was not directed to testimony by the officer concerning what he saw without benefit of a search, but to the legality of the search which resulted in the seizure of the property.- Here, no question was raised during the trial as to whether the items of property in question were illegally obtained by the State. Compare State v. Woody, supra.

Defendant contends the court committed prejudicial error by excluding the proposed testimony of a prisoner. If permitted to testify, the prisoner would have stated that he overheard an unidentified person tell State’s witness Watts that if Watts testified he would be walking the streets free and if he stayed quiet he would be liable to get some time. This' alleged conversation occurred in the conference room of the jail. The court sustained the State’s objection to the testimony when the witness admitted that he could not identify the person whom he had heard talking to Watts.

It is true that under certain circumstances a defendant may offer evidence tending to show that an accomplice has reason to expect leniency in return for testifying for the State. State v. Roberson, 215 N.C. 784, 3 S.E. 2d 277. However, we hold that *306this right does not extend to include evidence of a jail conversation between an accomplice and some unidentified person.

Defendant’s other assignments of error are directed to the charge. We have examined the charge in its entirety and hold that no error sufficiently prejudicial to require a new trial appears therein.

No error.

Judges Campbell and Britt concur.