State v. Elam, 7320SC632

• Decision Date: 19 September 1973
• Docket Number: No. 7320SC632,7320SC632
• Citation: 19 N.C.App. 451,199 S.E.2d 45
• Parties: STATE of North Carolina v. Don ELAM.
• Court: North Carolina Court of Appeals

Page 45

199 S.E.2d 45

19 N.C.App. 451

STATE of North Carolina v. Don ELAM.

No. 7320SC632.

Court of Appeals of North Carolina.

Sept. 19, 1973.

Certiorari Denied and Appeal Dismissed by Supreme Court Nov. 1, 1973.

Atty. Gen. Robert Morgan by C. Diederich Heidgerd, Associate Atty. Gen., Raleigh, for the State.

James, Williams, McElroy & Diehl, P.A., by William K. Diehl, Jr., Charlotte, for defendant appellant.

BRITT, Judge.

Defendant first assigns as error the failure of the trial court to suppress evidence seized under the search warrant, contending that the affidavit upon which the search warrant was issued, was insufficient to establish probable cause. The affidavit, in pertinent part reads:

'* * * Confidential source of information stated to Affiant (John Mayberry) that Don Elam has on the property & curtilage described above a quantity of marijuana. Affiant believes the confidential source of information to be true and reliable. Further affiant has determined through investigation that the information from the confidential source of information to be accurate. The source of information stated to affiant that he had observed a great deal of trafficking in and out of the above described premises. The source of information states he knows of his own knowledge that the above named subject has growing on the above described premises marijuana. The source of information further states that Don Elam has inside the above described dwelling structure marijuana. The source of information stated that Don Elam has on the above described premises a quantity of marijuana at this time. That he further has marijuana growing on the premises at this time.'

'Affiant further states the S/A B.M. Lea of the SBI advised him that the above named subject is dealer of marijuana. S/A Lea advised affiant that he had obtained this information from a confidential source of information who had given information in the past which led to the arrest and conviction of Rodney McCain. S/A Lea further stated to affiant that he believes his information to be true and accurate.'

Having applied the tests of sufficiency as set forth by the United States Supreme Court in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964); Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969), and United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971), in applying the Fourth Amendment to the Federal Constitution and as adopted by our State courts in State v. Shirley, 12 N.C.App. 440, 183 S.E.2d 880 (1971), cert. den. 279 N.C. 729, 184 S.E. 885 (1971); State v. Flowers, 12 N.C.App. 487, 183 S.E.2d 820 (1971), cert. den. 279 N.C. 728, 184 S.E.2d 885 (1971); State v. Foye, 14 N.C.App. 200, 188 S.E.2d 67 (1972); State v. McKoy, 16 N.C.App. 349, 191 S.E.2d 897 (1972), cert. den. 282 N.C. 584, 193 S.E.2d 744 (1973); State v. Shanklin, 16 N.C.App. 712, 193 S.E.2d 341 (1972), cert. den. 282 N.C. 674, 194 S.E.2d 154 (1973); State v. McCuien, 17 N.C.App. 109, 193 S.E.2d 349 (1972), and State v. Ellington, 18 N.C.App. 273, 196 S.E.2d 629 (1973), we conclude the affidavit was sufficient to establish probable cause to issue a search warrant as required by G.S. § 15--26(b).

By his second assignment of error defendant contends that he was denied due process of law when the trial court refused to allow him to examine, before trial, the State's chemist and evidence, and refused to grant a continuance to allow such examination; that these actions violated the provisions of G.S. § 15--155.4 and constituted an abuse of the court's discretion. We find no merit in this assignment.

G.S. § 15--155.4 provides that in all criminal cases before the superior court, the assigned judge shall, for good cause shown, order the State to produce evidence and permit expert witnesses to be examined by the defendant. The statute also provides in pertinent part as follows:

'Prior to issuance of any order for the inspecting, examining, copying ortesting of any exhibit or the examination of any expert witness under this section the accused or his counsel shall have made a written request to the solicitor or other counsel for the State for such inspection, examination, copying or testing of one or more specifically identified exhibits or the examination of a specific expert witness and have had such request denied by the solicitor or other counsel for the State or have had such request remain unanswered for a period of more than 15 days.'

The alleged offenses occurred on 7 July 1972, warrants were served on defendant on that date, he was given a preliminary hearing on 31 July 1972, and bills of indictment were returned at the 21 August 1972 session of the court. The record indicates that on Thursday, 1 February 1973, after these cases had been calendared to be tried on 12 February 1973, defendant's counsel (of Charlotte, N.C.) wrote a letter addressed to Solicitor Carroll Lowder, Union County courthouse, Monroe, N.C., requesting the solicitor, pursuant to G.S. § 15--155.4, to produce for counsel's 'inspection, examination and testing' all exhibits intended to be used in the trial of defendant, the exhibits to include any allegedly criminal...