State v. McClain , 4 N.C. App. 265 ( 1969 )

166 S.E.2d 451 (1969) 4 N.C. App. 265

STATE of North Carolina
v.
James Phillip McCLAIN.

No. 6910SC169.

Court of Appeals of North Carolina.

April 2, 1969.

Atty. Gen. Robert Morgan, by Asst. Atty. Gen. William W. Melvin and Staff Atty. T. Buie Costen, Raleigh, for the State.

Howard F. Twiggs, Raleigh, for defendant appellant.

MORRIS, Judge.

The defendant presents two questions to this Court. His first contention is that the evidence of identity was not sufficient to survive the motion for judgment as of nonsuit. In this regard the defendant cites State v. Miller, 270 N.C. 726, 154 S.E.2d 902. In Miller, the witness testified that he was never closer than 286 feet from the suspect. The witness had never seen this man before, and that he only observed the suspect run along the side of the building in each direction, stop at the front and "peep" at the witness. The witness described the man he saw to the police as being 6 feet 3 inches tall. The person whom the witness later identified, the defendant, was actually 5 feet 11 inches tall. Our Supreme Court held that under these facts it was not possible "* * * for an observer to note and store in memory features which would enable him, six hours later, to identify a complete stranger with the degree of certainty which would justify the submission of guilt of such person to the jury."

The general rule is, as stated in State v. Miller, supra, "Where there is a reasonable possibility of observation sufficient to permit subsequent identification, the credibility of the witness' identification of the defendant is for the jury, and the court's doubt upon the matter will not justify granting a motion for judgment of nonsuit * * *." The facts here show that the witness Barbour had seen the defendant many times before this particular incident occurred. Barbour was approximately 75 to 100 feet from the defendant when he first saw him. Upon these facts, we hold that the present case is distinguishable from State v. Miller, supra, and that the evidence of identity was not "inherently incredible because of undisputed facts, clearly established by the State's evidence, as to the physical conditions under which the alleged observation occurred." State v. Miller, supra. The Court properly left it to the jury to determine the weight to be given to the testimony of Barbour.

The second question raised by the defendant is in regard to testimony by Officer M. L. Stephenson. He was asked the following on direct examination:

"Q. Do you have an opinion satisfactory to yourself as to whether or not latent prints could have been lifted from this roof?

MR. TWIGGS (defendant): Objection.

COURT: Overruled.

A. Yes, sir.

Q. What is that opinion?

A. That they could not have been lifted.

Q. Why?

A. The dew and the dust made it impossible to lift a latent print.

MR. TWIGGS: Objection and motion to strike.

COURT: Motion overruled, exception."

The same series of questions were asked by the State in regard to footprints without objection by the defense. Officer Stephenson had not been qualified as a fingerprint expert when these questions were asked, although it was brought out that he had been a detective with the Raleigh Police Department for ten years.

Conceding, arguendo, that this testimony from a non-expert was improper, we do not think that it was prejudicial to the defendant. The defendant brought out evidence on cross-examination which showed that the State did not take fingerprints from the televisions, nor from the skylight. The above testimony referred only to the roof. Prior to the above series of questions Officer Stephenson had described the roof of the H & H Tire Company as being constructed of tar paper; and restated that on the morning in question it was wet with dew. Under these conditions, we do not think it was prejudicial to allow the non-expert to testify that prints could not be removed from the roof.

"It is thoroughly established in our decisions that the admission of evidence which is not prejudicial to a defendant does not entitle him to a new trial. To warrant a new trial it should be made to appear by defendant that the admission of the evidence complained of was material and prejudicial to defendant's rights and that a different result would have likely ensued if the evidence had been excluded." State v. Temple, 269 N.C. 57, 152 S.E.2d 206.

"Where there is abundant evidence to support the main contentions of the state, the admission of evidence, even though technically incompetent, will not be held prejudicial when defendant does not affirmatively make it appear that he was prejudiced thereby or that the admission of the evidence could have affected the result." 3 Strong, N.C. Index 2d, Criminal Law, § 169.

Aside from the fact that we do not believe the defendant was prejudiced by the admission of this evidence, we note that an objection was entered to the introductory question only. The defense did not object to the substantive question.

"An objection to testimony not taken in apt time is waived. State v. Merrick, 172 N.C. 870, 90 S.E. 257. Afterward, a motion to strike out the testimony, to which no objection was aptly made is addressed to the discretion of the trial judge, and his ruling in the exercise of such discretion, unless abuse of that discretion appears, is not subject to review on appeal. State v. Merrick, supra. State v. Pitts, 177 N.C. 543, 98 S.E. 767." State v. Hunt, 223 N.C. 173, 25 S.E.2d 598.

Even though we have carefully examined the record and find no prejudicial error, the appeal must be dismissed for failure of defendant to docket the record on appeal within the time provided by our rules. Rule 5, Rules of Practice in the Court of Appeals of North Carolina. We note that judgment was entered on 18 September 1968. The appeal was not docketed in this Court until 4 February 1969, considerably beyond the 90-day period, and no extension of time was requested.

Appeal dismissed.

MALLARD, C. J., and CAMPBELL, J., concur.