State v. Wilson , 289 N.C. 531 ( 1976 )

223 S.E.2d 311 (1976) 289 N.C. 531

STATE of North Carolina
v.
William Christopher WILSON.

No. 13.

Supreme Court of North Carolina.

April 6, 1976.

Laurel O. Boyles, Winston-Salem, for defendant-appellant.

Rufus L. Edmisten, Atty. Gen., James E. Magner, Asst. Atty. Gen., Cynthia Jean Zeliff, Associate Attorney, Raleigh, for the State.

HUSKINS, Justice:

Questions raised by assignments of error but not presented and discussed in a party's brief are deemed abandoned. Rule 28, Rules of Appellate Procedure. In this case the record on appeal contains seven assignments of error but only Nos. 2 and 7 are discussed in defendant's brief. Under the cited rule all other assignments are deemed abandoned.

Defendant's pretrial motion to suppress the testimony of Reba J. Smith identifying defendant as the burglar and rapist was based on the ground that she had seen pictures taken of defendant by the police and her identification was based on her memory of him from the pictures rather than on her memory of him from the events which occurred in the early morning hours of 5 November 1974 in her home. This motion was brought to the attention of the trial judge when the case was called. The judge stated he would deal with that motion during the course of the trial. Thereafter, defendant was arraigned and pled not guilty in each case. Reba J. Smith was called as the first witness for the State. In her testimony on direct examination, covering fourteen pages of the record, she positively identified defendant as the man who stopped in her yard on 2 November 1974 and thereafter forced his way into her home and raped her on 5 November 1974. After describing the assault upon her, she said: "I have no doubt that the defendant is the one that raped me on the 5th day of November 1974. I will never forget his face as long as I live." She was then cross-examined and much of the cross-examination tended to challenge her identification testimony. No objection to her in-court identification of defendant was ever interposed and no request was ever made for a voir dire examination of the witness. As a result the trial judge conducted no voir dire, found no facts, and never ruled on the pretrial motion to suppress Miss Smith's in-court identification of defendant. Defendant assigns these omissions by the trial judge as prejudicial error requiring a new trial.

Under the circumstances narrated above, no ruling on the pretrial motion to suppress was required. "When the State offers a witness whose testimony tends to identify the defendant as the person who committed the crime charged in the indictment, and the defendant interposes timely objection and requests a voir dire or asks for an opportunity to ``qualify' the witness, such voir dire should be conducted in the absence of the jury and the competency of the evidence evaluated. Upon such hearing, if the in-court identification by a witness is challenged on the ground it is tainted by an unlawful out-of-court photographic or corporeal identification, all relevant facts should be elicited and all factual questions determined, including those involving the defendant's constitutional rights, pertinent to the admissibility of the proffered evidence." State v. Accor and State v. Moore, 277 N.C. 65, 175 S.E.2d 583 (1970).

We said in State v. Cook, 280 N.C. 642, 187 S.E.2d 104 (1972): "In the present case, as above noted, there was no objection to the initial in-court identification of the defendant by this witness and there was no request for a voir dire. This assignment is without merit." So it is here.

The rule requiring timely objection to in-court identification testimony is further sustained by the following language from State v. Vinson, 287 N.C. 326, 215 S.E.2d 60 (1975):

"Similarly, there is no merit to the argument that the trial court erred in admitting without a voir dire examination the testimony of this witness concerning Mrs. Ferguson's identification of a photograph of defendant prior to trial. Mrs. Ferguson on direct examination had already made an in-court identification of defendant and on cross-examination she gave explicit testimony of the pretrial identification, all without objection or a request for a voir dire examination. Moreover, there is nothing whatever in the record suggesting this pretrial procedure was conducted in an impermissibly suggestive manner. Under these circumstances a voir dire examination was not necessary, especially since one was not requested at the time objection was made to the testimony of Detective Moore."

It does not suffice merely to file a pretrial motion to suppress evidence which the trial judge has not heard and ordinarily will not hear until it is offered at trial. To challenge the admissibility of in-court testimony defendant is required to interpose at least a general objection when such evidence is offered. State v. Haskins, 278 N.C. 52, 178 S.E.2d 610 (1971). Absent such objection or a request for a voir dire to probe the competency of the proffered evidence, the trial judge is not required to conduct a voir dire, make findings of fact and determine whether the proffered testimony meets the test of admissibility. An objection to the admission of evidence is necessary to present defendant's contention that the evidence was incompetent. State v. Camp, 266 N.C. 626, 146 S.E.2d 643 (1966). "Failure to object in apt time to incompetent testimony results in a waiver of objection so that admission of the evidence will not be reviewed on appeal unless the evidence is forbidden by statute or results from questions asked by the trial judge or a juror." State v. Blackwell, 276 N.C. 714, 174 S.E.2d 534, cert. denied 400 U.S. 946, 91 S.Ct. 253, 27 L.Ed.2d 252 (1970). See 1 Stansbury's North Carolina Evidence, § 27 (Brandis rev. 1973).

Even so, we have carefully examined the record to ascertain whether any pretrial identification procedure was conducted in an impermissibly suggestive manner. We find nothing prejudicial. Miss Smith described defendant to the police immediately after she was raped. She told the officers that the black man who drove into her yard on 2 November 1974 was the same man who invaded her home at 2 a. m. on 5 November 1974 and raped her. She said he was about 5 feet 8 to 9 inches tall, weighed 140 to 150 pounds, was in his early twenties, had a gap between his two front teeth, wore a white formless hat and was driving a small white car. She stated that she could definitely identify him when she saw him.

Defendant requested a lineup after he was taken into custody, and Miss Smith viewed the lineup composed of six black men, each holding a number from one to six. Defendant was permitted to choose his position in the line and to choose the number he would hold. Miss Smith immediately identified defendant as her assailant. There is nothing in the record whatsoever suggesting that the lineup was conducted in an impermissibly suggestive manner or that Miss Smith's in-court identification of defendant was otherwise tainted by out-of-court identification procedures.

There is no merit in this assignment of error and it is overruled.

Defendant contends the trial court erred in signing and entering the judgments appearing of record. This constitutes the seventh and final assignment discussed in his brief.

An exception to the judgment must fail if the judgment is within statutory limits and no fatal defect appears on the face of the record proper. State v. Cox, 281 N.C. 131, 187 S.E.2d 785 (1972); State v. Elliott, 269 N.C. 683, 153 S.E.2d 330 (1967). Ordinarily, the record proper in criminal cases consists of the organization of the court, the charge contained in the information, warrant or indictment, the arraignment and plea, the verdict and the judgment. State v. McClain, 282 N.C. 357, 193 S.E.2d 108 (1972); State v. Tinsley, 279 N.C. 482, 183 S.E.2d 669 (1971).

The record discloses that the indictments are proper in form, the verdicts were properly returned and the judgments are within statutory limits. G.S. 14-21; G.S. 14-52. Moreover, we note parenthetically that the verdicts and judgments are supported by the evidence.

To warrant a conviction for burglary the State's evidence must show that there was a breaking and entering during the nighttime of a dwelling or sleeping apartment with intent to commit a felony therein. State v. Mumford, 227 N.C. 132, 41 S.E.2d 201 (1947). If the burglarized dwelling is occupied it is burglary in the first degree; if unoccupied, it is burglary in the second degree. G.S. 14-51; State v. Frank, 284 N.C. 137, 200 S.E.2d 169 (1973); State v. Allen, 279 N.C. 115, 181 S.E.2d 453 (1971).

A "breaking" is an essential element of the crime of first degree burglary. Defendant's entry was accomplished by a "breaking" notwithstanding the fact that the prosecuting witness "cracked" her door to see who was there. "If any force at all is employed to effect an entrance through any usual or unusual place of ingress, whether open, partly open, or closed, there is a breaking sufficient in law to constitute burglary, if the other elements of the offense are present." 13 Am.Jur.2d, Burglary § 8 (1964). See People v. White, 153 Mich. 617, 117 N.W. 161 (1908). "We think, . . that to hold that the opening of a door or window which is closed but not fastened is sufficient evidence of breaking, but that the further opening of a door or window partly open, in order to gain an entrance is not sufficient evidence, is a useless refinement." Goins v. State, 90 Ohio St. 176, 107 N.E. 335 (1914). We concur, especially in the factual context of this case where entrance was obtained by the use of force and violence.

A breaking may be actual or constructive. In State v. Rodgers, 216 N.C. 572, 5 S.E.2d 831 (1939), defendants challenged the sufficiency of the evidence to sustain a verdict of burglary in the second degree, contending there was no "breaking" as is required in burglary. The evidence disclosed that defendants encountered the owner of a dwelling house immediately outside the house in the nighttime, marched him into the house at the point of a gun and stole money which was hidden therein. Held: The evidence was properly submitted to the jury on the theory of a constructive breaking. Accord, State v. Foster, 129 N.C. 704, 40 S.E. 209 (1901).

"Constructive breaking, as distinguished from actual forcible breaking, may be classed under the following heads:

"1. When entrance is obtained by threats, as if the felon threatens to set fire to the house unless the door is opened.

"2. When, in consequence of violence commenced, or threatened in order to obtain entrance, the owner, with a view more effectually to repel it, opens the door and sallies out, and the felon enters.

"3. When entrance is obtained by procuring the servants or some inmate to remove the fastening.

"4. When some process of law is fraudulently resorted to for the purpose of obtaining an entrance.

"5. When some trick is resorted to to induce the owner to remove the fastening and open the door, and the felon enters; as, if one knocks at the door, under pretense of business, or counterfeits the voice of a friend, and, the door being opened, enters.

"In all these cases, although there is no actual breaking, there is a breaking in law or by construction; ``for the law will not endure to have its justice defrauded by such evasions.' In all other cases, when no fraud or conspiracy is made use of or violence commenced or threatened in order to obtain an entrance, there must be an actual breach of some part of the house." State v. Henry, 31 N.C. 463 (1849).

In light of the foregoing principles, we conclude that the evidence is sufficient to support a finding that defendant did, both actually and constructively, break and enter the occupied dwelling of Reba J. Smith during the nighttime with intent to commit a felony therein.

The sufficiency of the evidence to support the judgment in the rape case is beyond question and requires no discussion.

Since no error appears on the face of the record proper, the judgments will be sustained. State v. Bumgarner, 283 N.C. 388, 196 S.E.2d 210 (1973); State v. Williams, 268 N.C. 295, 150 S.E.2d 447 (1966). Evidence of defendant's guilt is overwhelming.

In the trial, verdicts and judgments we find

NO ERROR.