State v. Houston , 19 N.C. App. 542 ( 1973 )

199 S.E.2d 668 (1973) 19 N.C. App. 542

STATE of North Carolina
v.
Charles HOUSTON.

No. 7322SC565.

Court of Appeals of North Carolina.

October 10, 1973. Certiorari Denied December 4, 1973.

Atty. Gen., Robert Morgan, by Asst. Atty. Gen. George W. Boylan, Raleigh, for the State.

Pope, McMillan & Bender, by Harold J. Bender, Statesville, for defendant appellant.

Certiorari Denied by Supreme Court December 4, 1973.

MORRIS, Judge.

Rule 11 of the General Rules of Practice for the Superior and District Courts states that "[w]hen several counsel are employed by the same party, the examination or cross-examination of each witness for such party shall be conducted by one counsel, but the counsel may change with each successive witness or, with leave of the court, in a prolonged examination." This rule clearly leaves it to the discretion of the trial court to permit a change of counsel if a lengthy examination is imminent. Assuming the circumstances of the present case did not bring it within the purview of the rule, appellant has failed to show that he was prejudiced by the court's overruling his objection. It has been stated by this Court that

"[m]ere technical error will not entitle defendant to a new trial; it is necessary that error be material and prejudicial and amount to a denial of some substantial right. Whether technical error is prejudicial is to be determined upon the basis of whether there is a reasonable possibility that, had the error in question not been committed, a different result would have been reached at the trial out of which the appeal arises." State v. Garnett, 4 N.C.App. 367, 373, 167 S.E.2d 63, 67 (1969), quoting 3 Strong, N.C. Index 2d, Criminal Law, § 167.

It is further appellant's contention that the trial court erred in its conclusions of law that Mrs. Johnson's in-court identification of defendant was based upon her opportunity to observe defendant at the date of the break-in and was not tainted by an out-of-court photographic identification. We do not agree.

A conviction based upon in-court identification following a pretrial photographic identification will be set aside only if the photographic identification procedure is so suggestive as to give rise to a substantial likelihood of irreparable misidentification. Simmons v. U.S., 390 U.S. 377, 88 S. Ct. 967, 19 L. Ed. 2d 1247 (1968); State v. McPherson, 276 N.C. 482, 172 S.E.2d 50 (1970); State v. Neal and Davis, 19 N.C.App. 426, 199 S.E.2d 143 (1973). Appellant's contention that the court failed to find as a fact or conclude as a matter of law that the in-court identification was based on the independent memory of the witness is without merit. The conclusions that the witness had ample opportunity to observe defendant and that the in-court identification was not tainted by the photographic identification is tantamount to a conclusion that the identification was based upon her independent memory.

Appellant also urges that the trial court erred in admitting into evidence the pretrial statement made by the witnesses Campbell and Feimster to Deputy Tate. It is his position that these statements—offered to corroborate the testimony of Campbell and Feimster—are inadmissible in that portions are contradictory to the testimony of the witnesses. This contention cannot be sustained, for portions of the statements do in fact corroborate testimony of Campbell and Feimster, and the objections of appellant did not specify the objectionable portions.

In State v. Brooks, 260 N.C. 186, 132 S.E.2d 354 (1963), appellant sought a new trial on the grounds that a written statement introduced as corroboration of the testimony of a State's witness was not a "prior consistent statement". In affirming the manslaughter conviction the Court said:

"If a prior statement of a witness, offered in corroboration of his testimony at the trial, contains additional evidence going beyond his testimony, the State is not entitled to introduce this ``new' evidence under a claim of corroboration.. . . (Citations omitted.) However, if the previous statements offered in corroboration are generally consistent with the witness' testimony, slight variations between them will not render the statements inadmissible. Such variations affect only the credibility of the evidence which is always for the jury." (Citations omitted.) Id. at 189, 132 S.E.2d at 356.

The prior statements proferred in Brooks were not contradictory to the testimony they were introduced to corroborate, but portions were not identical. Defendant did not specify the portions of the prior statement objectionable to him. The Court held that:

"Where portions of a document are competent as corroborating evidence and other parts incompetent, it is the duty of the party objecting to the evidence to point out the objectionable portions. Objections to evidence en masse will not ordinarily be sustained if any part is competent." (Citations omitted.) Id.

In accord is State v. Strickland, 276 N. C. 253, 173 S.E.2d 129 (1970). See also 7 Strong, N.C. Index 2d, Trial, § 15.

In the case sub judice, portions of the testimony of Campbell and Feimster are corroborated by portions of their prior statements. Although other portions of the prior statements offer additional matter and vary the testimony somewhat, defendant's objection was to both statements in their entirety. Thus the prior statements fall within the rule of State v. Brooks, supra, and their admission was proper.

Appellant's final assignment of error is to the denial of his motion of nonsuit as to the charges of attempted armed robbery and felonious breaking and entering with intent to commit a felony. There was no prejudice with respect to the attempted armed robbery since defendant was acquitted on that charge. With respect to the breaking and entering charge, there was sufficient evidence to withstand motion for nonsuit. Appellant's contention that there is no evidence that defendant broke and entered Mrs. Johnson's house is not well taken, for G.S. § 14-54(a) provides that "Any person who breaks or enters any building with intent to commit any felony or larceny therein is guilty of a felony and is punishable under G.S. 14-2." (Emphasis added.) Mrs. Johnson testified that defendant entered her trailer. It is not necessary that the State show a breaking to support a conviction of breaking or entering. State v. Vines, 262 N.C. 747, 138 S.E.2d 630 (1964).

The necessary felonious intent may be found from the actions of defendant once he was within the trailer, i. e., tying up Mrs. Johnson and threatening her. "The intent with which defendant broke and entered, or entered, may be found by the jury from what he did within the building." State v. Bronson, 10 N.C.App. 638, 640, 179 S.E.2d 823, 825 (1971).

No error.

CAMPBELL and PARKER, JJ., concur.