State v. Gurley , 283 N.C. 541 ( 1973 )

196 S.E.2d 725 (1973) 283 N.C. 541

STATE of North Carolina
v.
Johnnie Lee GURLEY.

No. 8.

Supreme Court of North Carolina.

June 1, 1973.

Atty. Gen. Robert Morgan and Asst. Atty. Gen. Millard R. Rich, Jr., for the State.

J. Reid Potter, Charlotte, for defendant.

LAKE, Justice.

The rape of which the defendant was convicted having been committed prior to our decision in State v. Waddell, 282 N.C. 431, 194 S.E.2d 19, the imposition of the sentence to imprisonment for life therefor was not error insofar as the nature of the punishment imposed is concerned.

At the trial the defendant was represented by court-appointed counsel who gave notice of appeal in due time. Before the appeal was perfected, the trial counsel was relieved by order of the court, pursuant to the motion of the defendant, and the defendant was represented in this Court by counsel employed by his family. Due to the change in counsel, we extended the time for the docketing of the appeal and the filing of the defendant's brief.

The defendant's Assignments of Error 1, 2, 5, 6 and 7 are directed to the admission in evidence of testimony to which no objection was made. It is elementary that, with the exception of evidence precluded by statute in furtherance of public policy, which exception is not applicable to these assignments of error, the failure to object to the introduction of the evidence is a waiver of the right to do so, and its admission, even if incompetent, is not a proper basis for appeal. State v. McKethan, 269 N.C. 81, 152 S.E.2d 341; State v. Howell, 239 N.C. 78, 79 S.E.2d 235; 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, 3rd Ed., § 18. As said by Justice Parker, later Chief Justice, in State v. Howell, supra, "It is too late after the trial to make exceptions to the evidence." Due to the serious nature of the charges against the defendant and the extent of the sentences imposed, we have, nevertheless, carefully reviewed the entire record, including the admission of the evidence to which these assignments of error relate, and find therein no basis for the granting of a new trial.

Assignment of Error No. 1 is to the allowance of leading questions, which "is a matter entirely within the discretion of the trial judge, and his ruling will not be reviewed on appeal, at least in the absence of a showing of abuse of discretion." State v. Cranfield, 238 N.C. 110, 76 S.E.2d 353; Stansbury, North Carolina Evidence, 2d Ed., § 31. The record shows no such abuse of discretion even if we were to assume that objections had been duly interposed and overruled. The record does not show that one of the alleged leading questions was ever answered. For this further reason, no error is shown by the exception now taken to it. State v. Fountain, 282 N. C. 58, 66, 191 S.E.2d 674. Two others merely elicited repetition of the same witness' earlier testimony. One of these was a mere introductory reference, on the morning of the second day of the trial, to the testimony of the same witness on the preceding day so as to furnish a starting point for the resumption of the examination. The remaining question to which this assignment of error relates was as to whether there were any stains upon the strip of towel used as a blindfold, the exhibit, itself, being before the jury and the presence of stains thereon obvious. The prosecuting witness had previously testified that the blows on her head with the pistol drew blood.

The defendant's Assignment of Error No. 2 is directed to the admission, without objection, of three alleged conclusions of witnesses. The first was the statement by the prosecuting witness that she found out her assailant had moved her car around to the back of the apartment. In the first place, this is not, on its face, a conclusion. In any event, the same witness subsequently testified that, when she left the defendant's apartment, he told her that he had parked her car "around behind the apartment" and she went there, found it and drove away in it. Thus, had there been error in admitting the alleged conclusion, it was cured by this subsequent testimony. The second of the alleged conclusions was the testimony of the deputy sheriff that the State's Exhibit No. 1 was a blank check belonging to the prosecuting witness and her husband with a note written on the back of it. The prosecuting witness, herself, had previously identified this exhibit as a note she had written to her husband, pursuant to the dictation of her assailant, upon a check torn from the checkbook of the witness and her husband. The third of the alleged conclusions was the statement by the deputy sheriff that the stains on the blindfold appeared to be blood stains. The prosecuting witness had previously testified that the blows upon her head by the pistol in the hand of her assailant caused bleeding and had identified the exhibit as the blindfold placed over her eyes by the assailant. This testimony of the deputy sheriff would not have been ground for a new trial even had an objection been interposed in due time and overruled.

The defendant's Assignment of Error No. 5 is to testimony elicited on cross-examination of a highway patrolman called as a witness for the defendant and of the deputy sheriff recalled as his witness by the defendant. No objection was interposed to any part of the examinations to which this assignment relates. The defendant now contends the questions asked were not within the proper scope of cross-examination. Had objection been interposed, there would have been no error in overruling such objection. There is no merit in this assignment of error.

Assignment of Error No. 6 is to the admission of cross-examination of the defendant by the solicitor, without objection, concerning the contents of the pornographic magazines taken from his apartment pursuant to the search warrant. The defendant contends that this cross-examination relates to "evidence previously excluded." It appears from the record that this group of magazines was excluded, upon the defendant's objection, when offered in evidence by the State. It does not follow that, for this reason, the defendant, having subsequently testified as a witness in his own behalf, could not be cross-examined about his possession of, familiarity with and interest in this type of literature for the purpose of impeachment.

The defendant's Assignment of Error No. 7 is directed to the admission in evidence, without objection, of certain cross-examination of the defendant by the solicitor concerning the defendant's involvement in other criminal activities and the reason for the defendant's departure from the City of Charlotte and his move therefrom to Jacksonville. The defendant, having testified as a witness in his own behalf, was subject to cross-examination for the purpose of impeachment. State v. Fountain, supra, at p. 68, 191 S.E.2d 674. For that purpose he may be questioned as to particular acts impeaching his character. State v. Williams, 279 N.C. 663, 185 S.E.2d 174; State v. Cureton, 215 N.C. 778, 3 S.E.2d 343; State v. Sims, 213 N.C. 590, 197 S.E. 176. The questions by the solicitor of which the defendant now complains did not inquire us to the nature of any indictments, arrests or other charges brought against him but were directed to the defendant's own conduct. The first was as to the reason for the defendant's leaving Charlotte. The second was as to what the defendant had been "involved in" in the criminal court. The record shows no answer to this question. See, State v. Fountain, supra. At this point, upon the request of the defendant's trial counsel, the court instructed the jury that any "prior convictions the defendant may testify to" (emphasis added) were admissible solely for the purpose of impeaching his testimony if they tended to do so and should be considered by the jury in that connection only. The remaining questions were as to whether the defendant had not been "involved in narcotics" and "involved with assault on a female." The defendant himself asked if the solicitor meant had he ever been convicted and thereupon the solicitor replied in the affirmative. The defendant's testimony was that he had not been convicted of these offenses. Had objections been interposed seasonably to these questions, the overrulings of such objections would not have been basis for a new trial.

In fairness to the defendant's trial counsel, the record shows that in the course of the trial he made numerous objections to evidence offered by the State and to questions propounded to the defendant on cross-examination. Some of these were sustained, some overruled. The record does not disclose, as the defendant seeks to imply on appeal, that his trial counsel, an experienced attorney, sat idly by and permitted the solicitor to introduce incompetent evidence at will. The advisability of objecting to questions propounded to a witness always calls for an exercise of counsel's judgment as to the competency and as to the effect of the probable answer. We find nothing in the record to indicate that the convictions of the defendant upon these two major criminal charges were the result of the failure of his assigned counsel to object to the evidence of which the defendant now complains on appeal.

In view of the overwhelming evidence presented by the State of unquestioned competence, any error in the admission of the evidence of which he now complains, assuming timely objection had been made, would clearly have been harmless error.

The defendant's Assignment of Error No. 3 is to the admission in evidence, over objection, of articles taken from the defendant's apartment pursuant to a search thereof by the arresting officer. The search was conducted pursuant to a search warrant, proper in form and issued upon a sufficient affidavit. Upon objection to the evidence by the defendant, the court conducted a voir dire and at the conclusion thereof made full findings of fact which were supported by the evidence on the voir dire. On the basis of these findings, the objection was overruled. The defendant's contention is that the search was improper for the reason that the defendant was removed from his apartment and taken into custody shortly after midnight on Friday and the search was not made until the following Monday morning. The testimony of the arresting officer, who also made the search of the apartment, is that when he left the apartment with the defendant on Friday night the apartment was locked and when he returned on Monday morning with the search warrant the apartment was locked. The defendant cites no authority in support of his contention that, under the circumstances, the lapse of time between the arrest and the search made the search unreasonable. We find no merit in this assignment of error.

The defendant's fourth assignment of error is to the denial of his motion for judgment of nonsuit. The evidence of the State is ample, if true, to show each element of each offense. The evidence offered by the defendant to contradict that offered by the State is not considered in the determination of the motion for judgment of nonsuit. Upon consideration of such motion, the evidence of the State is taken to be true and is to be considered in the light most favorable to the State's contention. State v. Peele, 281 N.C. 253, 188 S.E.2d 326; State v. McNeil, 280 N.C. 159, 185 S.E.2d 156. There is no merit in this assignment of error.

Assignment of Error No. 8 is to the solicitor's argument to the jury. The defendant contends that the solicitor therein made repeated references to evidence which had been excluded by the court. An examination of the solicitor's argument, which is set forth in the record, discloses first that the references by the solicitor of which the defendant now complains are amply supported by the defendant's own testimony on cross-examination and also discloses that no objection was made to this portion of the solicitor's argument. The only objection made to any portion of the solicitor's argument was sustained by the trial court. It had no relation to the defendant's eighth assignment of error. We find no merit in this assignment. The argument of counsel, especially in absence of objection at the time, must be left largely to the control and discretion of the trial judge. State v. Westbrook, 279 N.C. 18, 181 S.E.2d 572. The record discloses no abuse of the privilege by the solicitor.

No error.