State v. McDonald , 11 N.C. App. 497 ( 1971 )

181 S.E.2d 744 (1971) 11 N.C. App. 497

STATE of North Carolina
v.
Arthur Lee McDONALD.

No. 7120SC307.

Court of Appeals of North Carolina.

June 23, 1971.

Atty. Gen. Robert Morgan and Associate Atty. Walter E. Ricks, III, Raleigh, for the State.

Clark, Huffman & Griffin, by Robert L. Huffman, Monroe, for defendant appellant.

HEDRICK, Judge.

Rule 28 of the Rules of Practice in this Court provides in pertinent part: "The brief of appellant * * * shall contain, properly numbered, the several grounds of exception and assignment of error with reference to the pages of the record * * *."

The rule simply requires that appellant, in his brief, point out the numbered exception upon which he is relying and indicate upon what page of the printed record the exception may be found. In the instant case, the numbered exception relied on in the brief does not appear on the printed page of the record to which we are referred. When the printed record is as voluminous as in the instant case, 175 pages with 125 exceptions, it is most difficult for the Court to locate the specific exception upon which appellant relies if counsel has failed to comply with that portion of Rule 28 quoted above.

The defendant states his first question as follows:

"(1) Whether the police authorities failed to either produce the results of or make certain scientific tests and procedures analyzing physical facts, which if produced or made would and could have completely proven the guilt or innocence of defendant in these criminal actions and, therefore, are in violation of the due process requirements of the fourteenth amendment?"

Defendant, in his brief, states that this argument covers exceptions 39-46, 55-60, 62-71, 88-93, 101-106, 115-117, and 120-125. After voyaging through the printed record we have discovered that 43 of these exceptions are not related to the question quoted above. These exceptions relate primarily to the admissibility of evidence, the denial of defendant's motions to strike certain testimony, the court's rulings on defendant's various motions for dismissal and mistrial, and the court's findings and conclusions with respect to the voir dire examination of Miss Morgan and other State's witnesses.

Since defendant has not stated any reason or argument nor cited any authority in support of these 43 exceptions, they are deemed abandoned by him. Rule 28, Rules of Practice in the Court of Appeals of Northern Carolina.

Exception 44 relates to the court's denial of the defendant's motion regarding the use at trial of certain exhibits. The record reveals that the court, upon motion of the defendant, ordered the State to deliver certain exhibits to the defendant's counsel for examination before trial, and the record further reveals compliance with this order by the State. Before any evidence was introduced at the trial, defendant moved that the State not be permitted to use any exhibits or evidence which defendant had requested, but had not had an opportunity to examine. Pursuant to G.S. § 15-155.4, the solicitor in a criminal trial is obligated to furnish certain specifically identified exhibits to the defendant to better enable him to prepare his defense. State v. Macon, 276 N.C. 466, 173 S.E.2d 286 (1970). The record reveals that all the exhibits requested by the defendant and not made available for examination by him were either nonexistent, unavailable, or not offered in evidence at the trial. This exception is without merit.

Defendant contends by Exception No. 122 that the court committed prejudicial error by denying his motion for a mistrial "on the grounds that blood sample tests were apparently ordered and fingerprint tests were apparently ordered and these were never produced." This exception is without merit. There is no evidence in the record that any blood tests were made. There is evidence that the automobile driven by the defendant, and owned by his mother, was "dusted for fingerprints", but there is no evidence whatsoever as to whether any prints were found or lifted from the automobile.

Next, the defendant contends, by numerous assignments of error, that the in-court identification of the defendant as the perpetrator of the crimes charged in the bills of indictment by the victim, Miss Morgan, was tainted by illegal out-of-court procedures by law enforcement officers, including illegal photographic identification procedures.

In State v. Accor and State v. Moore, 277 N.C. 65, 175 S.E.2d 583 (1970), Chief Justice Bobbitt stated the rule to be followed by the trial court with respect to the admissibility of an in-court identification:

"[T]he court must determine upon the evidence then before it whether ``the photographic identification procedure' was ``so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.' Simmons v. United States, supra [390 U.S. 377, 88 S. Ct. 967, 19 L. Ed. 2d 1247]. Whatever the indicated prior determinations may be with reference to the out-of-court photographic identifications, the court must make an additional factual determination as to whether the State has established by clear and convincing proof that the incourt identifications were of independent origin and were untainted by the illegality, if any, underlying the photographic identifications."

In the instant case, the able trial judge followed precisely the procedure outlined by Chief Justice Bobbitt. The court held a voir dire hearing and made detailed findings and conclusions that Miss Morgan's incourt identification of the defendant as one of the assailants was "one of her own recollection as an eyewitness and as one who personally experienced the event and that the same is not tainted by any unconstitutional or illegal procedure. * * *"

We have examined the entire record of the voir dire hearing and find and hold that the court's findings and conclusions are amply supported by the evidence. From a careful examination and review of each exception in the record, it is our opinion that the defendant had a fair trial free from prejudicial error.

No error.

BROCK and MORRIS, JJ., concur.