State v. Dortch

PHILLIPS, Judge. The defendant first cites as error the testimony of Agent Dove that preliminary tests performed on the white powder purchased by him from the defendant showed that it was opium. Though this testimony was improper, since Dove was not shown to have made the tests or have expert qualifications, it was harmless, since the record discloses that Agent Kempie, an acknowledged expert chemist, later testified to the same effect, without objection. State v. Ingram, 23 N.C. App. 186, 208 S.E. 2d 519 (1974). The defendant’s next citation of error is to the Court’s refusal to let SBI agent Surratt on cross-examination say whether “there’s a substantial difference between 5' 7" and 5' 9"; between 5' 7" and 5' 9" versus 5' 11", and between weighing 140 and 190 pounds.” The different heights and weights stated were all used by Agent Dove on different occasions in describing the defendant, who, in fact, weighed about 190 pounds and was 5' 11" tall. The questions were argumentative, rather than evidentiary, and the Court’s refusal to permit answers thereto was proper. State v. Blount, 4 N.C. App. 561, 167 S.E. 2d 444 (1969). Anyway, this witness had testified just a moment before, “Yes, I would say there is a substantial difference in 5' 7" and 9" versus 5' 11".” Defendant’s final contention is that defendant was unduly prejudiced by Agent Surratt testifying as to a search that was made of defendant’s house after the incident alleged in the bill of indictment. Had this testimony been spontaneously presented by the State, the defendant’s point would be well taken. But, the record shows that the search was first mentioned during the cross-examination of this witness, when defense counsel, apparently believing that such evidence would be helpful, had this witness reveal that defendant’s house was later searched for cocaine, but that none was found. The testimony complained of — (to the effect that during the search, “clothing with tags still attached and some vegetable material” were found) — was elicited during re-direct examination. Thus, it seems to us that if this evidence was error that it was more or less invited by the defendant. But no error is seen, since it is permissible to explain on redirect any new matter raised on cross-examination, even though standing alone the explanation would be irrelevant and even prej [610] udicial. State v. Oxendine, 224 N.C. 825, 32 S.E. 2d 648 (1945). Too, since Agent Surratt testified that none of the items found in this search were linked in any way to the defendant, the evidence would seem to be harmless, in any event. State v. Shaw, 284 N.C. 366, 200 S.E. 2d 585 (1980). Thus, we find No error. Judges Webb and Becton concur.