State v. Williams, 494

• Decision Date: 09 October 1968
• Docket Number: No. 494,494
• Citation: 163 S.E.2d 353,274 N.C. 328
• Parties: STATE of North Carolina v. Johnny Thomas WILLIAMS.
• Court: North Carolina Supreme Court

Page 353

163 S.E.2d 353

274 N.C. 328

STATE of North Carolina v. Johnny Thomas WILLIAMS.

No. 494.

Supreme Court of North Carolina.

Oct. 9, 1968.

T. Wade Bruton, Atty. Gen., Harry W. McGalliard and James F. Bullock, Deputy Attys. Gen., for the State.

Ralph McDonald, Raleigh, for defendant appellant.

LAKE, Justice.

The only question presented for our consideration is: Did the Court of Appeals err in its conclusion that there was no error in the denial by the trial judge of the defendant's motion to strike the entire testimony of the witness Wood?

In his appeal to the Court of Appeals the defendant assigned as error this ruling of the trial judge, the denial of his motion for judgment as of nonsuit, and a specified portion of the charge to the jury. The Court of Appeals concluded there was no merit in any of these assignments of error. Neither in his petition to this Court for certiorari nor in his brief filed in this Court did the defendant refer to the denial of his motion for judgment as of nonsuit or to the alleged error in the charge to the jury. Consequently, these matters are not before us and are deemed abandoned by the defendant.

When this Court, after a decision of a cause by the Court of Appeals and pursuant to the petition of a party thereto as authorized by G.S. § 7A--31, grants certiorari to review the decision of the Court of Appeals, only the decision of that Court is before us for review. We inquire into proceedings in the trial court solely to determine the correctness of the decision of the Court of Appeals. Our inquiry is restricted to rulings of the Court of Appeals which are assigned to error in the petition for certiorari and which are preserved by arguments or the citation of authorities with reference thereto in the brief filed by the petitioner in this Court, except in those instances in which we elect to exercise our general power of supervision of courts inferior to this Court. Our review of a decision by the Court of Appeals upon an appeal from it to us as a matter of right, pursuant to G.S. § 7A--30, which means of review might have been pursued by the defendant in this action, is similarly limited.

The complete transcript of the proceedings in the trial court, contained in the record before the Court of Appeals and before us, shows that the defendant did not interpose a single objection to any question propounded to the witness Wood or move to strike any specific portion of his testimony. At the conclusion of the direct examination of this witness, his testimony thereon being summarized above in our statement of facts, the defendant made a motion to strike his entire testimony. Thereupon the trial judge sent the jury from the courtroom and in the absence of the jury there was 'discussion off record,' the nature of which is not set forth in any manner in the record. The motion to strike was denied. The jury then returned to the courtroom.

Elementary consideration for efficient and just administration of the legal processes involved in the adjudication of a lawsuit, criminal or civil, requires that an appellate court have in the record before it a complete account of the action by the trial court of which the appellant complains. An appellate court is not required to, and should not, assume error by the trial judge when none appears on the record before the appellate court.

As soon as counsel made his motion to strike the testimony, the trial judge sent the jury from the courtroom and heard counsel upon his motion. There is nothing whatever in the record to suggest that the trial judge did not hear and consider everything which counsel sought to present for his consideration.

So far as appears in the record, at the time the trial judge denied the motion to strike, which motion was never renewed, all of the evidence was to the effect that approximately two months prior to the trial a robbery had been committed, that the only witness who had then testified was the victim of the robbery, that he identified the defendant in the courtroom as the perpetrator of it and that he had previously identified the defendant as such perpetrator in a lineup of approximately eight people at the jail sixteen days after the robbery. According to the record, there was then before the trial judge no evidence, or even contention, that the lineup was unfairly conducted, or that counsel or friends of the defendant were not present or that there was any other defect in the lineup procedure. Upon these facts, should a new trial be granted for the reason that the trial judge denied the motion to strike the entire testimony of the witness Wood?

We turn first to the law of this State.

Nothing else appearing, the admission of incompetent evidence is not ground for a new trial where there was no objection at the time the evidence was offered. State v. McKethan, 269 N.C. 81, 152 S.E.2d 341; State v. Camp, 266 N.C. 626, 146 S.E.2d 643; Lambros v. Zrakas, 234 N.C. 287, 66 S.E.2d 895; State v. Fuqua, 234 N.C. 168, 66 S.E.2d 667; State v. Hunt, 223 N.C. 173, 25 S.E.2d 598; Stansbury, North Carolina Evidence 2d ed, § 27; Wigmore on Evidence, 3d ed, § 18. Where, however, a proper question is propounded to a witness and the incompetency of the testimony elicited does not become apparent until the witness answers or until subsequent evidence is introduced, the opposing party may then make a motion to strike the testimony then shown to be incompetent. More v. New York Life Insurance Co., 266 N.C. 440, 146 S.E.2d 492; Gatlin v. Parsons, 257 N.C. 469, 126 S.E.2d 51; Gibson v. Whitton, 239 N.C 11, 79 S.E.2d 196; Ziglar v. Ziglar, 226 N.C. 102, 36 S.E.2d 657; Hodges v. Wilson, 165 N.C. 323, 81 S.E. 340. If, therefore, the in-court identification of the defendant by Wood was competent on its face when such testimony was given and its incompetency became apparent only when the subsequent testimony by Wood relating to his observation of the defendant in the lineup at the jail was given, it was then not too late for the defendant to move to strike the testimony relating to the in-court identification.

However, the ruling of the trial court upon that motion must be judged in the light of matters in the record at the time the motion was made, there having been no renewal of it at a later stage of the trial. State v. Bishop, 272 N.C. 283, 158 S.E.2d 511. In the present case, the testimony of Wood with reference to the in-court identification of the defendant as the man who robbed him was competent per se. At the time of the motion to strike, the only evidence in the record concerning Wood's observation of the defendant at the jail lineup was that he had so observed the defendant sixteen days after the robbery at the jail in a lineup composed of eight people, two police officers being present.

Evidence that the victim of a crime has identified the defendant as the perpetrator of it at a police lineup is not incompetent per se. State v. McKissick, 271 N.C. 500, 157 S.E.2d 112. It follows, necessarily, that such evidence alone does not make incompetent an in-court identification of the defendant as the perpetrator of the crime and, consequently, does not require or permit the striking of the previously admitted in-court identification testimony.

Furthermore, it is the well settled rule in this jurisdiction that even though subsequently admitted evidence discloses the incompetency of earlier testimony, apparently competent when admitted, a motion to strike the entire testimony of the witness in question will not be allowed where some of that testimony remains competent, notwithstanding the subsequent development. State v. Tyson, 242 N.C. 574, 89 S.E.2d 138; Nance v. Western Union Telegraph Co., 177 N.C. 313, 98 S.E. 838. In such case, the moving party must designate the incompetent evidence to be stricken from the record. This the defendant did not do, so far as the record shows. The trial judge is under no duty to go back and study the earlier testimony in order to separate the competent from the incompetent portions of it.

The defendant was clearly not entitled to have stricken testimony by Wood to the effect that the crime of robbery had been committed against him by someone. For this reason, if for no other, his broadside motion to strike the entire testimony of Wood was properly overruled. He made no other motion and, in this Court, relies on no other ground for the granting of a new trial. In the dead silence of the record as to what transpired in the 'discussion off record,' which occurred in the absence of the jury following his motion to strike the testimony of Wood, we would not be justified in granting a new trial on the basis of speculation as to what may have been presented to the trial judge or speculation as to what his rulings and 'off the record' findings were or were not prior to and leading to his overruling of the motion.

It is also the well established rule in the courts of this State that an objection, even though seasonably made upon a sound ground, is waived when like evidence is thereafter admitted without objection, and especially so where like evidence is subsequently offered by the objecting party himself. Adams v. Godwin, 254 N.C. 632, 119 S.E.2d 484; Shelton v. Southern R.R. Co., 193 N.C. 670, 139 S.E. 232; Willis v. City of New Bern, 191 N.C. 507, 132 S.E. 286. The Court of Appeals relied, in part, upon this rule in support of its decision. We do not, however, rest our decision upon that ground since one does not waive an objection or a motion to strike, otherwise sound and seasonably made, by offering evidence for the purpose of impeaching the credibility or establishing the incompetency of the testimony in question. State v. Aldridge, 254 N.C. 297, 118 S.E.2d 766; Stansbury, North Carolina Evidence 2d ed., § 30.

The defendant's cross-examination of the witness Wood with reference to his observation of the defendant at the jail lineup, his failure to object to the testimony of...