State v. Alston , 293 N.C. 553 ( 1977 )

238 S.E.2d 505 (1977) 293 N.C. 553

STATE of North Carolina
v.
Harry ALSTON, Jr.

No. 52.

Supreme Court of North Carolina.

November 11, 1977.

Rufus L. Edmisten, Atty. Gen. by Isaac T. Avery, III, Associate Atty., Raleigh, for the State.

John B. Evans, Southern Pines, for defendant-appellant.

LAKE, Justice.

The defendant does not except to any portion of the court's charge to the jury. We have, however, carefully examined the court's instructions and find no error therein. In his statement of the case on appeal, the defendant did assign as error the failure of the court to instruct the jury with respect to possible verdicts of guilt of lesser offenses included within the charge of first degree burglary, but no argument is made or authority cited with reference to this assignment of error in the defendant's brief. It is, therefore, deemed abandoned. Rule 28(a) of the Rules of Appellate Procedure, 287 N.C. 671, 741. In any event, this assignment of error is without merit. There was no evidence of a lesser offense included within the offense of first degree burglary, the evidence for the State showing the commission of the offense charged in the bill of indictment and the evidence of the defendant tending to establish an alibi. Where there is no evidence which would support a verdict of guilty of a lesser included offense, it is not error to fail to instruct the jury upon such offenses or to fail to submit these as possible verdicts. State v. Harvey, 281 N.C. 1, 12, 187 S.E.2d 706 (1972); State v. Griffin, 280 N.C. 142, 185 S.E.2d 149 (1971); Strong, N.C. Index 3d, Criminal Law, § 115.

On cross-examination, Deputy Sheriff Thornton stated that he took no physical evidence from the residence of Mary Lee Clark, such as fingerprints, clothing or blood samples. Thereupon, defendant's counsel asked the witness, "Then eventually, Deputy Thornton, your entire case is just on Mrs. Clark's words * * *." The State objected and the objection was sustained. In this there was no error. While the record indicates the defendant's question was not completed, his assignment of error is not based on that circumstance so we conclude that the question was, in fact, complete. The objection was properly sustained for the reason that this question was, in reality, mere argument with the witness and not designed to elicit any information not already before the jury. Moreover, the record does not disclose what the answer of the witness would have been. See, Stansbury, North Carolina Evidence (Brandis Rev.), § 26. Furthermore, while the deputy may have relied entirely upon Mary Lee Clark's statements, the case for the State also includes the testimony of Dr. Smith and the evidence with reference to the condition of clothing worn by the defendant.

The principal contention of the defendant on appeal is that the court erred in failing to reopen the voir dire examination of Mary Lee Clark concerning the admissibility of her testimony identifying the defendant as her assailant. The basis for this contention is that, after the voir dire was concluded, upon cross-examination of this witness the defendant ascertained that her vision was impaired by cataracts. This would relate only to the credibility of her identification, not to the admissibility of her testimony, there being no indication whatsoever of any police procedures, proper or improper, contributing to her identification of the defendant. Her testimony, not controverted by the defendant, was that she knew the defendant well and had known him practically all of his life. On the occasion in question, she was confronted by and struggled with her assailant over a substantial period of time in a lighted room in her own home. Under these circumstances, there was no occasion for the court to conduct any further voir dire examination with reference to the admissibility of the incourt identification of the defendant by this witness. State v. Cox, Ward and Gary, 281 N.C. 275, 282, 188 S.E.2d 356 (1972); State v. Richardson, 279 N.C. 621, 626, 185 S.E.2d 102 (1971). State v. Branch, 288 N.C. 514, 220 S.E.2d 495 (1975), relied upon by the defendant, has no application to the circumstances of the present case.

The conflict between the testimony of Mary Lee Clark positively identifying the defendant as the burglar and her assailant, and the testimony of the defendant, designed to establish an alibi, simply presented a question of credibility for the jury, which resolved it contrary to the defendant's contention.

NO ERROR.