State v. Newcomb

243 S.E.2d 175 (1978)

STATE of North Carolina v. Lonnie B. NEWCOMB.

No. 7726SC962.

Court of Appeals of North Carolina.

April 18, 1978.

*176 Atty. Gen. Rufus L. Edmisten by Associate Atty. Gen. Donald W. Grimes, Raleigh, for the State.

E. Clayton Selvey, Jr., Charlotte, for defendant-appellant.

VAUGHN, Judge.

Several of defendant's 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 the marijuana. All the witnesses agreed that defendant was not present when the sale was made. Defendant testified that, "I sent Venecia up there to see if I could get Mrs. Freeman to buy anything, actually buy some grass or pot." This evidence was sufficient to present to the jury.

Defendant also assigns as error the admission of the marijuana into evidence. He argues that "a constant chain of custody" 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.

During cross-examination of defendant the district attorney referred to him as Officer Newcomb and then corrected himself with "I better say Mr. Newcomb...." 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's consideration. We doubt that addressing defendant as "Mr." instead of "Officer" had the slightest influence on the jury in favor of either defendant or the *177 State. Certainly, it is not cause for a new trial.

Defendant makes assignments of error relating to the effect on the jury of certain nonresponsive answers to the State's 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. "Ordinarily, it is presumed that the jury followed such an 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's admonition." 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).

Many of defendant's other exceptions are taken to the district attorney's 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's 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.

"The 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." State v. Barefoot, 241 N.C. 650, 657, 86 S.E.2d 424, 429 (1955).

We have considered defendant's remaining assignments of error. No error that would require a new trial has been shown.

No error.

PARKER and WEBB, JJ., concur.