State v. Perry, 19

• Citation: 275 N.C. 565,169 S.E.2d 839
• Decision Date: 16 October 1969
• Docket Number: No. 19,19
• Court: United States State Supreme Court of North Carolina
• Parties: STATE of North Carolina v. Bobby PERRY.

Page 839

169 S.E.2d 839

275 N.C. 565

STATE of North Carolina v. Bobby PERRY.

No. 19.

Supreme Court of North Carolina.

Oct. 16, 1969.

Atty. Gen. Robert Morgan and Deputy Atty. Gen. Ralph Moody, for the state.

Alfonso Lloyd, and R. P. Upchurch, Raleigh, for defendant.

LAKE, Justice.

Without objection, Mrs. Womble testified that her assailant told her he had been released from prison on the day before the events related by her occurred. The defendant assigns as error the admission, over his objection, of testimony by the supervisor of the Wake Advancement Center, a unit of the prison system, that the defendant had been released from the Center on the day preceding those events. There was no error in this ruling.

The defendant offered no evidence. Nevertheless, his plea of not guilty put in issue every material element of the State's charges against him. The identity of the defendant with the perpetrator of the acts to which Mrs. Womble testified was obviously a material issue. It remained an issue notwithstanding Mrs. Womble's in-court identification of the defendant as her assailant. The defendant did not admit that he was the person who accompanied Mrs. Wombel at the time in question. It was not necessary for the State to rely solely upon the identification made by Mrs. Womble in proving its contention that he was that person. It could introduce other evidence, not otherwise incompetent, which was relevant to the identification of the assailant.

The statement by the assailant placed him within a narrowly limited group--men released from prison the preceding day. Had the group been, instead, men released from a specified hospital or other group on a specified date, evidence that the accused was released from such institution or group on such date would clearly be competent in the absence of other ground for objection.

The defendant contends that testimony of his release from prison was incompetent because it is evidence that he committed a criminal offense other than those for which he is presently indicted.

It is well settled that in the trial of one accused of a criminal offense, who has not testified as a witness in his own behalf, the State may not, over objection by the defendant, introduce evidence to show that the accused has committed another independent, separate criminal offense where such evidence has no other relevance to the case on trial than its tendency to show the character of the accused and his disposition to commit criminal offenses. State v. McClain, 240 N.C. 171, 81 S.E.2d 364, 365; State v. Fowler, 230 N.C. 470, 53 S.E.2d 853; Stansbury, North Carolina Evidence, 2d Ed., § 91; 29 Am.Jur.2d, Evidence, § 320. It is, however, equally well settled that evidence relevant to the question of the identity of the accused with the perpetrator of the offense with which he is presently charged is not rendered incompetent by the mere fact that it discloses the commission by him of some other criminal offense. State v. McClain, supra; State v. Biggs, 224 N.C. 722, 32 S.E.2d 352; State v. Stancill, 178 N.C. 683, 100 S.E. 241; 29 Am.Jur.2d, Evidence, §§ 321, 322. Thus, in State v. Spencer, 176 N.C. 709, 97 S.E. 155, a witness having testified that she observed at the scene of the offense charged a man named Spencer 'who had been in the reformatory,' the State was permitted to show that the defendant Spencer had been an inmate of the reformatory. Where the identity of the defendant and the perpetrator of the offense with which he is charged is at issue, the evidence tending to show his commission of another criminal offense, and thereby to show his identity with the perpetrator of the offense with which he is presently charged, is not rendered incompetent by the fact that a witness has testified to such identity. State v. Biggs, supra; State v. Tate, 210 N.C. 613, 188 S.E. 91. In the present case, the testimony did not disclose the details or even the nature of the offense for which the defendant had previously been imprisoned.

The defendant also assigns as error the admission in evidence of certain testimony by Dr. Summerlin. This witness testified that specimens taken by him from the person of Mrs. Womble shortly after the alleged assault were 'sent to the laboratory' for a test for acid phosphatase. In response to the question, 'What was the finding in this particular test?' he answered, '7,824 units per cc.' At that point the defendant objected and moved to strike the answer. The record strongly indicates, if it does not require, the conclusion that the witness was not the person who made the test. Thus, the question was subject to objection on the ground that it called for hearsay evidence. However, it is well settled that an objection must be interposed to an improper question without waiting for the answer and, if the objection is not made in apt time, a motion to strike a responsive answer is addressed to the discretion of the trial court, except where the evidence is rendered incompetent by statute. State v. McKethan, 269 N.C. 81, 152 S.E.2d 341; State v. Warren, 236 N.C. 358, 72 S.E.2d 763; State v. Hunt, 223 N.C. 173, 25 S.E.2d 598; State v. Stancill, supra; State v. Pitts, 177 N.C. 543, 98 S.E. 767; State v. Merrick, 172 N.C. 870, 90 S.E. 257; State v. Lowry, 170 N.C. 730, 87 S.E. 62; State v. Lane, 166 N.C. 333, 81 S.E. 620; Stansbury, North Carolina Evidence, 2d Ed., § 27, note 95. In the present instance, the answer was responsive, there is no statute involved and there is nothing to indicate abuse of discretion in the ruling of the trial court.

There is, likewise, no merit in the contention of the defendant that it was error for the court to permit Dr. Summerlin to give his opinion as to the interpretation of the result of this test. Uncontradicted and unchallenged testimony in the record is ample to support a finding that Dr. Summerlin is a medical expert, qualified to testify as an expert witness in the field to which his testimony in this case relates. The basis for the contention of the defendant is the following statement in the record before us, apparently a stipulation by counsel in the preparation of the record on appeal:

'The State did not request the court to find this witness to be an expert. The court did not make a finding that this witness was an expert; the defendant did not admit this witness to be an expert, and the defendant did not object to testimony of this witness on the ground that he was not an expert.'

In the absence of a request by the appellant for a finding by the trial court as to the qualification of a witness as an expert, it is not essential that the record show an express finding on this matter, the finding, one way or the other, being deemed implicit in the ruling admitting or rejecting the opinion testimony of the witness. Paris v. Carolina Portable Aggregates, Inc., 271 N.C. 471, 157 S.E.2d 131; Kientz v. Carlton, 245 N.C. 236, 96 S.E.2d 14; State v. Atlantic Ice & Coal Company, 210 N.C. 742, 188 S.E. 412; Brewer v. Ring and Valk, 177 N.C. 476, 99 S.E. 358; Stansbury, North Carolina Evidence, 2d Ed., § 133; Strong, N.C. Index, 2d Ed., Evidence, § 48. Here, the record shows the defendant did not object to Dr. Summerlin's being accorded the status of an expert witness. Though it would have been better practice for the solicitor to have tendered him formally as an expert, and for the court so to rule expressly, under the circumstances disclosed in this record there was no error in permitting the witness to state his opinion in response to a question otherwise...