State v. Edwards, 8013SC595

• Decision Date: 02 December 1980
• Docket Number: No. 8013SC595,8013SC595
• Citation: 272 S.E.2d 384,49 N.C.App. 547
• Court: North Carolina Court of Appeals
• Parties: STATE of North Carolina v. Dennis Edwin EDWARDS. STATE of North Carolina v. Richard Keith NANCE.

Page 384

272 S.E.2d 384

49 N.C.App. 547

STATE of North Carolina v. Dennis Edwin EDWARDS.

STATE of North Carolina v. Richard Keith NANCE.

No. 8013SC595.

Court of Appeals of North Carolina.

Dec. 2, 1980.

Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. Charles M. Hensey, Raleigh, for the State.

Hester, Johnson & Johnson by W. Leslie Johnson, Jr., and Moore & Melvin by David Garrett Wall, Elizabethtown, for defendants-appellants.

VAUGHN, Judge.

Defendant Edwards raises many questions for review, but his basic contentions concern the admission of Jessie Singletary's identification testimony, the District Attorney's questioning about his prior criminal record and the admission of a copy of that record during sentencing. Defendant Nance questions the admissibility of lay testimony about the working condition of brakes in a car, the court's failure to summarize his evidence and contentions adequately and its denial of his motion to arrest judgment in the conviction for assault with a deadly weapon inflicting serious bodily injury. Both defendants argue that their motions to dismiss should have been allowed and that the many alleged errors require reversal or a new trial. We disagree.

Defendant Edwards contends that the court improperly overruled his objection to the following questioning of Jessie Singletary on direct examination.

Q. Did you see him (the man in her house) walk at this time?

A. Yes.

Q. What did you observe about the way he walked?

MR. JOHNSON: OBJECTION.

COURT: OVERRULED.

MR. JOHNSON: I would like to be heard.

COURT: You would like to be heard on the way he walked?

MR. JOHNSON: Yes, sir.

COURT: DENIED. Proceed.

Q. What did you notice about the way he walked?

A. There was a limp in his walk.

MR. JOHNSON: OBJECTION AND MOTION TO STRIKE.

COURT: OVERRULED AND DENIED.

Defendant argues that the court should have conducted a voir dire hearing before this testimony was admitted. The trial court ordinarily should conduct a voir dire examination, even upon a general objection, to determine the admissibility of identification testimony. State v. Stepney, 280 N.C. 306, 185 S.E.2d 844 (1972); State v. Byrd, 40 N.C.App. 172, 252 S.E.2d 279, cert. denied, 298 N.C. 301, 259 S.E.2d 915 (1979). Nevertheless, we fail to see how defendant was prejudiced by the court's initial failure to conduct a voir dire. The witness was not identifying defendant Edwards in particular but was merely describing in general the man who assaulted her in the house. Moreover, a voir dire hearing was later conducted in which defendant had a full opportunity to challenge and discredit the witness's identification. In these circumstances, any error concerning the timing of the voir dire must be deemed harmless. State v. Boykin, 298 N.C. 687, 259 S.E.2d 883 (1979); State v. Martin, 29 N.C.App. 17, 222 S.E.2d 718, review denied, 290 N.C. 96, 225 S.E.2d 325 (1976).

Defendant Edwards next contends that Mrs. Singletary's identification should have been suppressed because it was tainted by an illegal and impermissibly suggestive pretrial identification procedure. The court, however, held to the contrary and found from the evidence

that the witness, Mrs. Singletary, observed at close range and in adequate light in her home a man wearing a mask who limped, not noting his clothing but noting his size and build. That she observed the man for some minutes, was assaulted by him. That the defendant Dennis Edwin Edwards was brought by officers before the witness in her back yard and among a crowd of people some three to four hours later. That she observed the defendant walk, observed his size and build, and responding to an officer's inquiry identified defendant as the man seen earlier in her house. The confrontation was not impermissibly suggestive. The witness' identification was based on her observation.

It is axiomatic that the findings entered on voir dire are conclusive and binding on appeal if they are supported by competent evidence in the record. State v. Gray, 268 N.C. 69, 150 S.E.2d 1 (1966); State v. Baker, 34 N.C.App. 434, 238 S.E.2d 648 (1977). In addition, there is a presumption that the judge disregards incompetent evidence in making such findings. 1 Stansbury, N.C. Evidence § 4a (Brandis rev. 1973).

We believe that the witness had a sufficient opportunity to view her attacker in the house while he walked toward her, attempted to shoot her at a very close range, and then beat her about the head. She returned home from the hospital a few hours after the crime. Her yard was full of many people and police. She recognized defendant Nance as the man in the parked car. She later identified defendant Edwards as the man that had attacked her in the house after observing him in the yard for ten minutes, while he stood in a group of "law officers, neighbors and friends." She testified that Edwards had similar physical characteristics, including the distinguishing feature of a limp, as her attacker. In short, the witness made a positive pretrial and in-court identification of defendant Edwards based on her personal observations during the assault. On cross-examination of Mrs. Singletary, defendant tended to impeach the reliability of her identification. The jury could properly weigh this evidence in its deliberations, but the evidence did not require the judge to exclude Mrs. Singletary's identification testimony as a matter of law. The court's conclusion that the pretrial procedures were not impermissibly suggestive is supported by ample competent evidence; therefore, it is binding on appeal. State v. Patton, 45 N.C.App. 676, 263 S.E.2d 796 (1980).

Counsel seems to assert an additional error with regard to the pretrial identification procedure: "the defendant had a right to counsel at the time he was paraded before the prosecuting witness, alone and in custody ...." Any question about a violation of defendant's right to counsel should have been raised during trial, and we cannot find any mention of it in the record. It suffices to say, however, that a defendant has a constitutional right to presence of counsel during a pretrial identification only when adversary judicial criminal proceedings have been instituted against him prior to the confrontation. Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972); State v. Henderson, 285 N.C. 1, 203 S.E.2d 10 (1974), death penalty vacated, 428 U.S. 902, 96 S.Ct. 3202, 49 L.Ed.2d 1205 (1976); State v. Puckett, 46 N.C.App. 719, 266 S.E.2d 48, appeal dismissed, 300 N.C. 561, 270 S.E.2d 115 (1980). Edwards had not been arrested at the time of the confrontation. His right to counsel was not, therefore, violated when the prosecuting witness identified him in the yard because he had not yet been accused in a judicial sense.

Defendant Edwards also claims that the District Attorney asked prejudicial and inflammatory questions in cross-examining him about his criminal record. On direct examination, defendant testified about his convictions for breaking and entering, larceny and two simple assaults. Defendant was then cross-examined as follows:

Q. Let me ask you this: Now, you told Mr. Johnson you have only been convicted of breaking and entering, is that right?

A. And simple assault.

Q. All right, was that in the house of a lady "that you had earlier cased out"?

A. No, sir.

MR. JOHNSON: OBJECTION.

COURT: OVERRULED.

A. In 1977 I was convicted of assault with a firearm. In 1976 they locked me up but they broke it down because it was not true.

Q. Tell me whether or not you were convicted of using a firearm, trying to kill someone?

A. No, sir.

MR. JOHNSON: OBJECTION.

COURT: OVERRULED.

There is nothing in the record to show that these questions were not asked in good faith, and we must defer to the judge's discretion in permitting the questions since there is no clear showing of abuse. State v. McLean, 294 N.C. 623, 242 S.E.2d 814 (1978). Moreover, it is noteworthy that defendant testified about an additional conviction for assault with a firearm in 1977 which he had failed to mention during his direct examination. Certainly, this was relevant impeachment evidence. Thus, it was not only proper, it was also prudent for the prosecutor to attempt to elicit further details about defendant's prior convictions. 1 Stansbury, N.C. Evidence § 112 (Brandis rev. 1973).

Defendant Edwards has also failed to show prejudicial error in the admission of a copy of his U.S. Department of Justice criminal record during the sentencing hearing. Clearly, it was within the judge's discretion to permit the introduction of actual evidence of defendant's prior criminal record. State v. Hester, 37 N.C.App. 448, 246 S.E.2d 83 (1978); State v. Hegler, 15 N.C.App. 51, 189 S.E.2d 596, cert. denied, 281 N.C. 761, 191 S.E.2d 358 (1972). Defendant will not now be permitted to complain on appeal, on the basis of a general objection, when he did not specifically challenge the authenticity or accuracy of the record during the sentencing hearing and failed to present any evidence whatsoever that the copy was false or irregular.

We now turn our attention to the alleged errors asserted by defendant Nance. Nance told officers shortly after the perpetration of the crime that he was parked near the Singletary residence because of brake trouble and that he had sent Joe, a fellow riding with him, to get some brake fluid. Deputy Prevatte testified that he checked the brakes on the car later, and they worked properly. Though defendant objected to this testimony, he has not made any argument or cited any authorities in his brief pertaining to these objections. The exceptions are, therefore, deemed abandoned on appeal. App.R. 28(b)(3). Defendant does, however, present argument in his brief concerning objections to similar testimony by another deputy which he contends should have been sustained.

Deputy Little testified that he checked the brakes after Nance was in custody. He stated that the brakes worked...