State v. Noble , 326 N.C. 581 ( 1990 )

391 S.E.2d 168 (1990) 326 N.C. 581

STATE of North Carolina
v.
Frederick A. NOBLE.

No. 160PA89.

Supreme Court of North Carolina.

May 10, 1990.

Lacy H. Thornburg, Atty. Gen. by Henry T. Rosser, Sp. Deputy Atty. Gen., Raleigh, for the State.

James M. Cooper, Fayetteville, for defendant-appellant.

WEBB, Justice.

The first question posed by this appeal is whether the defendant has been afforded an appeal that comports with the requirements of Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493, reh'g denied, 388 U.S. 924, 87 S. Ct. 2094, 18 L. Ed. 2d 1377 (1967). In Anders the defendant's court appointed attorney advised the appellate court by letter that he felt there was no merit in the appeal and would not file a brief. He told the court his client would file a brief on his own behalf. The client filed a brief. The appellate court found no error. The United States Supreme Court held this was not sufficient appellate representation under the fourteenth amendment to the United States Constitution. The Supreme Court said an appellate attorney should act as an advocate. It is not enough that he finds no merit in the appeal. He must determine that an appeal would be frivolous before he is excused from filing a brief. If he determines that the appeal is frivolous he should so inform the court and even then he must refer to anything in the record that might arguably support the appeal. He must inform his client that he will not assign error and give the client an opportunity to file a brief in his own behalf. The court must then determine if the appeal is frivolous. If the court determines that any of the legal points are arguable on their merits, counsel must be appointed to brief these points.

We believe the defendant's attorney in this case has complied with Anders. By putting six assignments of error in the record he has called our attention to what he believes are issues that might arguably support an appeal. By not arguing the assignments of error in the brief he has let us know he feels an appeal based on these legal points would be frivolous. We can determine whether such an appeal would be frivolous. He has notified his client that he can file a brief in his own behalf.

We have examined the six assignments of error in the record and we agree with the defendant's attorney that an appeal based upon them would be frivolous. The first assignment of error dealt with the fact that the prosecuting witness was allowed to testify that he was mentally handicapped because he was hit by a car and suffered a fractured skull. The defendant said the witness was a lay person not qualified to give this expert testimony. In State v. Nall, 211 N.C. 61, 188 S.E. 637 (1936), we held it was error for the defendant not to be allowed to testify that he had been hit in the head with a baseball bat and an axe and that measles had settled in his head which had a bad effect on his mind. We believe, based on Nall, that the testimony by the prosecuting witness in this case was admissible. See also State v. Taylor, 290 N.C. 220, 226 S.E.2d 23 (1976) and State v. Hammonds, 290 N.C. 1, 224 S.E.2d 595 (1976). An appeal based on this assignment of error would have been frivolous.

The second assignment of error in the record contends that prejudice to the defendant from evidence that the victim was mentally handicapped greatly outweighed any probative value the evidence might have in violation of N.C.G.S. § 8C-1, Rule 403. Rule 403 did not become effective until 1 July 1984 and does not apply to this case. In any event this evidence of the victim's mental condition was relevant. Mental defectiveness of the victim is an element of second degree sexual offense. N.C.G.S. § 14-27.5(a)(2) (1979). We hold it would have been frivolous to have argued this assignment of error.

In the next assignment of error in the record the defendant contends that hearsay testimony was improperly admitted. Shortly after the incident occurred for which the defendant was tried, the victim was taken to the emergency room at Cape Fear Valley Hospital where he was treated by Dr. James Bundy for a perforated rectum. The defendant contends Dr. Bundy should not have been allowed to testify that the victim told him that two men had forced an iron rod into his rectum. The trial of this case occurred before the adoption of N.C.G.S. § 8C-1, Rule 803(4) which provides for an exception to the hearsay exclusion for statements made for purposes of medical diagnosis or treatment. This testimony of Dr. Bundy corroborated the testimony of the prosecuting witness. The defendant objected to it but he did not request a limiting instruction. When a party does not request a limiting instruction to corroborating evidence he cannot assign error to it. State v. Bryant, 282 N.C. 92, 191 S.E.2d 745 (1972). It would have been frivolous to have brought forward this assignment of error.

The fourth assignment of error in the record deals with the testimony of Pamela Crawford, the victim's sister. She testified she was in her yard the day of the incident when she heard the defendant, who was in his house, say "blow hard, blow hard." She said before this time she had heard the defendant talk and could recognize his voice. It was not error to allow this testimony. See State v. Williams, 288 N.C. 680, 220 S.E.2d 558 (1975) and State v. Poplin, 56 N.C.App. 304, 289 S.E.2d 124, cert. den., 305 N.C. 763, 292 S.E.2d 579 (1982) for the adequacy of voice identification to make such identification admissible.

The fifth assignment of error deals with the testimony of Joseph Richardson who testified over objection that the victim told him the defendant and another man had raped him by forcing some kind of rod up his rectum. The judge instructed the jury to consider this testimony only in corroboration of the victim's testimony if they found it corroborated his testimony. The victim testified to the same thing. There was clearly no error in this testimony. State v. Elkerson, 304 N.C. 658, 285 S.E.2d 784 (1982).

The last assignment of error in the record deals with the overruling of the defendant's motion to dismiss at the close of the evidence. The prosecuting witness testified that the defendant was his neighbor and that he was in the home of defendant when the defendant accused him of telling people the defendant was a "faggot." The prosecuting witness testified further that the defendant, with the aid of another person, forced him to perform fellatio on the defendant. He testified that the defendant held a knife at his throat while he performed the fellatio. The prosecuting witness testified further that after he had been forced to perform fellatio the defendant and the other person removed his clothes and forced a curtain rod into his rectum. This testimony was sufficient for the jury to convict the defendant of a first degree sexual offense and a second degree sexual offense. State v. DeLeonardo, 315 N.C. 762, 340 S.E.2d 350 (1986); State v. Locklear, 304 N.C. 534, 284 S.E.2d 500 (1981). It would have been frivolous to bring forward this assignment of error.

We have examined the record for other possible error and have found none.

NO ERROR.