State v. Neely, 7527SC307

• Decision Date: 06 August 1975
• Docket Number: No. 7527SC307,7527SC307
• Citation: 217 S.E.2d 94,26 N.C.App. 707
• Parties: STATE of North Carolina v. Willie Lee NEELY.
• Court: North Carolina Court of Appeals

Page 94

217 S.E.2d 94

26 N.C.App. 707

STATE of North Carolina v. Willie Lee NEELY.

No. 7527SC307.

Court of Appeals of North Carolina.

Aug. 6, 1975.

Certiorari Denied and Appeal Dismissed by Supreme Court Nov. 5, 1975.

Atty. Gen. Rufus L. Edmisten by Associate Atty. Sandra M. King, Raleigh, for the State.

Chambers, Stein, Ferguson & Becton by James E. Ferguson, II, Charlotte, for the defendant-appellant.

BROCK, Chief Judge.

The main assignment of error presented in this appeal is directed to the lack of a complete stenographic transcript of the trial proceedings. The court reporter at the trial died prior to the transcription of the trial proceedings. The other official court reporter for Gaston County supervised the preparation of the transcript of the trial. However, a complete transcript could not be prepared because of difficulties in interpreting the audiograph recordings and because of the method by which notes of the trial were taken. The result is that the stenographic transcript prepared does not contain the direct examination of Mrs. Seward, the State's witness Andrew Strain, and defendant. The entire testimony of the State's witness P. E. Purser also is missing from the stenographic transcript prepared.

Defendant asserts that he is entitled to a new trial because the absence of a complete transcript abridges his right to appeal. Specifically, defendant argues that (1) there may have been errors in the admission and exclusion of certain testimony, and (2) improperly suggestive identification procedures may have been used by the police.

There is a presumption of regularity in a trial. 'In order to overcome that presumption it is necessary for matters constituting material and reversible error to be made to appear in the case on appeal.' State v. Sanders, 280 N.C. 67, 72, 18 S.E.2d 137, 140 (1971).

In an earlier appeal of this case, we stated that when there is an incomplete transcript, '(i)n lieu of the usual narrative statement of evidence, defendant should set out the facts upon which his appeal is based, any defects appearing on the face of the record, And the errors he contends were committed at the trial.' State v. Neely, 21 N.C.App. 439, 440--441, 204 S.E.2d 531, 532 (1971) (Emphasis added). Defendant contends that there was error in the 'failure of the trial court to conduct a proper Voir dire and to apply constitutional standards. . . .' The record on appeal does not show the extent of the Voir dire or the findings of the trial judge, and defendant does not point out in what respect the Voir dire was improper or in what way there was a failure to apply constitutional standards. We do not find this contention specific enough to justify a determination that defendant is prejudiced by the incomplete transcript.

Defendant makes no showing that errors were committed. He argues only that the police May have used impermissibly suggestive identification procedures and that errors in the admission and exclusion of evidence May have been committed. This is not enough to entitle him to a new trial. The record does not show that any incompetent evidence was given by the witnesses Seward, Strain, or Purser, or by defendant, and it does not establish that either Mrs. Seward's or Mrs. Dow's identification of defendant was improperly obtained. Absent some specific, affirmative showing by the defendant that error was committed, we will uphold the conviction because of the presumption of regularity in a trial. See also State v. Teat, 24 N.C.App. 621, 211 S.E.2d 816 (1975). This assignment of error is overruled.

In his next assignment of error defendant contends that questions asked him by the district attorney were prejudicial because they tended to reveal that he had been indicted and arrested for obtaining money by false pretenses. In State v. Williams, 279 N.C. 663, 185 S.E.2d 174 (1971), the Court held that it was improper to impeach a witness by asking him about prior arrests and indictments.

The three exceptions which constitute this assignment of error are as follows:

'Q And then, also, an obtaining some by false pretenses from Roncum Moore. He was the one that got on you and got you back in March, wasn't he?

Objection--Overruled.

EXCEPTION #10.

'Q Your bondsman didn't get in touch with you?

Through my father.

Q Through your father, but he had been looking for you, hadn't he? For failing to appear in District Court February 19, 1972, on another case?

A No, he ain't looking for me.

Q And that was the reason, in fact, you failed to appear on February 18th of 1972, wasn't it?

Overruled.

EXCEPTION #11.'

* * *

* * *

'Q You went to work after you got back and the bondsman got after you?

A Right.

Objection--Overruled.

EXCEPTION #12.

'A I worked at Smyre Mills until I was picked up on a capias. I think it's about two months.'

In our opinion the questions propounded by the district attorney did not prejudice defendant. They were designed to show specific acts of misconduct that the defendant had committed, not his prior arrests and indictments. '. . . Williams did not change the rule that for purposes of impeachment a witness may be asked whether he has Committed specific criminal acts . . ..' State v. Gainey, 280 N.C. 366, 373, 185 S.E.2d 874, 879 (1971). The failure of defendant to...