State v. Kaplan

• Decision Date: 06 November 1974
• Docket Number: No. 7415SC565,7415SC565
• Citation: 23 N.C.App. 410,209 S.E.2d 325
• Court: North Carolina Court of Appeals
• Parties: STATE of North Carolina v. Arthur S. KAPLAN.

Page 325

209 S.E.2d 325

23 N.C.App. 410

STATE of North Carolina v. Arthur S. KAPLAN.

No. 7415SC565.

Court of Appeals of North Carolina.

Nov. 6, 1974.

Atty. Gen. James H. Carson, Jr., by Deputy Atty. Gen. Andrew A. Vanore, Raleigh, for the State.

Winston, Coleman & Bernholz by Roger B. Bernholz, Chapel Hill, for defendant appellant.

MORRIS, Judge.

We note at the outset that defendant's brief makes no reference to any exceptions in the record on appeal. For the failure to abide by the rules of appellate procedure, specifically Rule 28, Rules of Practice in the Court of Appeals of North Carolina, defendant's appeal is subject to dismissal upon the grounds that he has abandoned all exceptions. However, we have chosen to decide this case on its merits in view of defendant's notion that the case has grave constitutional import.

Appellant first assigns as error the court's denial of his motion to continue. The motion was bottomed on the refusal of the State to furnish the matters requested in defendant's motions for a bill of particulars under G.S. § 15--155.4 and G.S. § 15--143. G.S. § 15--143 provides that the court may, in its discretion, require the solicitor to furnish defendant with requested information for better preparation of his defense. Defendant's second motion for a bill of particulars was under that statute. He has shown no abuse of discretion nor does the record disclose any. G.S. § 15--155.4 provides that the court 'shall For good cause shown, direct the solicitor or other counsel for the State to produce for inspection, examination, copying and testing by the accused or his counsel any Specifically identified exhibits to be used in the trial of the case sufficiently in advance of the trial to permit the accused to prepare his defense; . . .' (Emphasis supplied.) It is significant that defendant does not ask for that which the statute provides, to wit: specifically identified exhibits. The request asked for copies of all reports prepared by police or other agents or employees of the State; statements of witnesses; statements of defendant; names, addresses and occupations of witnesses; copies of any documents signed by defendant; agreement of the solicitor for defendant to examine before the Clerk Any expert witness to be offered by the State; the delivery to defendant for his examination and testing of the substance confiscated from him alleged to be a controlled substance. The defendant's request asked for practically the complete files of the investigating officers and all the information obtained by the investigating officers and solicitor's office as the result of their investigation. We quote Justice Moore, writing for a unanimous Court in State v. Davis, 282 N.C. 107, 111, 191 S.E.2d 664, 667 (1972):

"We know of no constitutional requirement that the prosecution make a complete and detailed accounting to the defense of all police investigatory work on a case.' Moore v. Illinois, 408 U.S. 786, 92 S.Ct. 2562, 33 L.Ed.2d 706 (1972). Defendant was not entitled to the granting of his motion for a fishing expedition nor to receive the work product of police or State investigators.'

Certainly the court is not required to turn over the seized contraband to defendant and take the chance of not being able to introduce it into evidence at trial because of breaks in the chain of possession or other reasons.

Defendant further contends that he was denied the reasonable opportunity to prepare his defense, that his constitutional right of confrontation was abridged, that he was denied due process all by reason of the denial of his motion for continuance and the failure of the court to direct the solicitor to accede to the requests filed by defendant. In State v. Goldberg,261 N.C. 181, 134 S.E.2d 334, cert. denied 377 U.S. 978, 84 S.Ct. 1884, 12 L.Ed.2d 747 (1964), defendant had made a motion for broad discovery and on appeal had raised questions of denial of constitutional rights. Although Goldberg was decided prior to the enactment of G.S. § 15--155.4, we think Justice Parker's (later C.J.) statement is applicable to the facts before us:

'In our opinion, and we so hold, defendants here have not shown facts which would have warranted the trial court to enter an order in its discretion or as a matter of right allowing them to inspect the files of the State Bureau of Investigation in these criminal cases pending against them as prayed in their petition, and the denial of their petition does not violate any of their rights under Article I, sections 11 and 17 of the North Carolina Constitution, and under the Fifth, Sixth, Seventh, and Fourteenth Amendments to the United States Constitution.' State v. Goldberg, supra, at 192--193, 134 S.E.2d at 341.

For an excellent discussion of the underlying objections to giving criminal defendants an unqualified right to an inspection of all papers and documents, if any, in the files of the investigative or prosecutorial officers, see State v. Tune, 13 N.J. 203, 98 A.2d 881 (1953). Defendant's first assignment of error is overruled.

By his second assignment of error defendant contends that the court erred in denying his motion to quash the bill of indictment for the reason that the indictment charged the defendant with a crime pursuant to statutes which are violative of defendant's constitutional rights to due process of law and the equal protection of the laws. In support of this contention defendant poses two arguments: that the statutes create a statutory presumption which violates defendant's constitutional rights and that the Constitution of North Carolina and the Fourteenth Amendment to the Constitution of the United States forbid the statutory enactment of any legislation criminalizing marijuana. Neither of these positions is well taken. With respect to the first, we reaffirm the position of this Court in State v. Maggio, 19 N.C.App. 519, 199 S.E.2d 138 (1973), and earlier cases cited therein and in State v. McAuliffe, 22 N.C.App. 601, 207 S.E.2d 1 (1974). As to the second, we take defendant's position to mean that because there is debate and disagreement as to whether the use of marijuana is injurious to the user, the State has acted beyond its constitutional power in making its possession and sale illegal. Defendant also argues that he has a fundamental right to make a fool of himself so long as he, by so doing, does not endanger others. It is not our purpose to treat defendant's arguments lightly. However, we see nothing in his position deserving of lengthy treatment. Suffice it to say that all 50 States and the Federal Government make the possession of marijuana illegal. We have no intention of taking the position that they have exceeded their constitutional powers. This assignment of error is overruled.

The third assignment of error is directed to the court's denial of defendant's motion to suppress evidence obtained as the result of a search of defendant's premises.

Evidence with respect to the alleged invalid search was as follows: Officers had the house where defendant lived under surveillance on the night of 8 November 1973. Officer Brown testified that at approximately 10:40 p.m. he saw a person leave from the back side of the residence with a flashlight in his hand and enter the wooded area to the right and rear of the dwelling house. The person himself was lost from witness's sight, but the flashlight beam could be seen in the woods for quite some time. Approximately ten minutes later the person was again seen coming nearer the house, and he re-entered the house. Officer Brown stated that a few minutes before he saw the subject leave from the back of the house, he had seen two white males come from the house and step under the balcony area. He recognized one of them at the time. He stated that since he had seen defendant he could state that the other one was Arthur Kaplan, the defendant. He heard the other person say, 'I'll probably need more soon', and defendant Kaplan reply: 'I'll try to have it for you when you need it. It's good weed.' Witness missed the rest of the conversation because he tried to conceal himself better since the two men had turned on several outside lights. Approximately five to ten minutes after the other person left witness saw 'a subject I can identify in court...