State v. Moore

271 S.E.2d 242 (1980)

STATE of North Carolina
v.
Dharlene Frances MOORE.

No. 4.

Supreme Court of North Carolina.

November 4, 1980.

W. Joseph Burns, Winston-Salem, for defendant-appellant.

Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen., J. Michael Carpenter, Raleigh, for the State.

COPELAND, Justice.

Jackie Richard Weimer was convicted after a separate trial of first degree murder and conspiracy to commit armed robbery. The judgment of the trial court was affirmed by this Court in State v. Weimer, 300 N.C. 642, 268 S.E.2d 216 (1980). The opinion by Chief Justice Branch in Weimer is cited below where dispositive of identical assignments of error raised by defendant. We have carefully considered each of defendant's assignments of error and, for the reasons stated below, we find no error justifying a new trial.

Defendant first contends that the State violated G.S. 15A-907 by not disclosing to defendant prior to trial the fact that Betty Ballard had seen a photograph of defendant in the district attorney's office. Defendant claims she was prejudiced by this nondisclosure in that she was unprepared to fully cross-examine Ms. Ballard. Defendant further alleges that the trial court erred in not imposing sanctions pursuant to G.S. 15A-910 for the State's failure to disclose.

Defendant made a timely motion for discovery in accordance with G.S. 15A-902(a), requesting the State to supply, among other information, any photographs in its possession. This motion gave rise to the State's duty under G.S. 15A-907 to disclose any additional, relevant evidence discovered prior to or during the trial. State v. Jones, 296 N.C. 75, 248 S.E.2d 858 (1978). The record clearly shows that during discovery, which took place prior to 16 October 1979, defendant's attorney was aware that the State possessed a photograph of defendant. When the district attorney was asked during discovery if he had shown the photograph to anyone, he replied that he had not. This was a truthful statement at the time. In ruling on defendant's motion to suppress Ms. Ballard's in-court identification of defendant, the trial court found as facts that on 16 October 1979 Ms. Ballard was in the district attorney's office and for the first time asked to see a picture of defendant. The district attorney handed her the picture in question and she looked at it for a short period. He did not ask Ms. Ballard if the person photographed resembled the individual she had seen and Ms. Ballard never indicated that she recognized the person in the picture. Ms. Ballard never told anyone that she was able to identify defendant. These findings of fact are supported by competent evidence and are therefore binding on this Court. State v. Saults, 299 N.C. 319, 261 S.E.2d 839 (1980); State v. Small, 293 N.C. 646, 239 S.E.2d 429 (1977). It appears, then, that the district attorney first became aware that Ms. Ballard recognized and could identify defendant during her testimony at trial. Thus, the only fact he failed to disclose to defendant prior to Ms. Ballard's testimony was that he had shown the witness the picture for a short time. He may well have considered this an irrelevant matter outside his statutory duty to disclose. Even if there was a duty to disclose pursuant to G.S. 15A-907, there is no evidence of bad faith on the part of the district attorney nor is there any indication that he misrepresented the facts to defendant. Defense attorney had the opportunity to conduct a complete and searching cross-examination of Ms. Ballard. We therefore hold that defendant was not prejudiced by the district attorney's failure to disclose that Ms. Ballard had seen the photograph, and defendant's contention that she was too surprised to adequately cross-examine the witness is without merit. State v. Jones, supra; State v. Hill, 294 N.C. 320, 240 S.E.2d 794 (1978). We also find no merit in defendant's argument that the trial court erred in not imposing sanctions under G.S. 15A-910. The decision to employ one of the remedies available under G.S. 15A-910 is a matter within the discretion of the trial judge and, absent abuse, is not reviewable on appeal. State v. Hill, supra; State v. Thomas, 291 N.C. 687, 231 S.E.2d 585 (1977). Defendant did not request the imposition of sanctions at the time the facts were revealed. Furthermore, defendant showed no evidence of bad faith by the State and defendant was not prejudiced by the State's nondisclosure. For these reasons the trial judge did not abuse his discretion in refusing to impose sanctions.

By her fourth assignment of error, defendant contends that the trial court erred in allowing Betty Ballard to give an in-court identification of defendant. Defendant claims that showing Ms. Ballard a picture of defendant in the district attorney's office constituted an impermissibly suggestive pretrial identification procedure which tainted Ms. Ballard's in-court identification and rendered it inadmissible. We addressed and overruled the identical assignment of error in State v. Weimer, supra. Our decision in that case is dispositive of defendant's argument in this case and we likewise find no error. Ms. Ballard's in-court identification was properly allowed both because it was based solely on her personal observation of defendant immediately after the shooting and because the observation of one photograph was not a pretrial identification procedure sufficiently suggestive to deny defendant due process of law. Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968); United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); State v. Thomas, 292 N.C. 527, 234 S.E.2d 615 (1977); State v. Yancey, 291 N.C. 656, 231 S.E.2d 637 (1977).

In her second assignment of error defendant contends that the trial court erred in denying her motion for pretrial discovery of the names of the State's witnesses, any statement made by defendant to a third party, and any statement of a codefendant.

It is well settled that a defendant in a criminal case is not entitled to a list of the State's witnesses who are to testify against him. G.S. 15A-903, which lists the information the State must disclose upon defendant's proper discovery motion, does not alter this rule. State v. Sledge, 297 N.C. 227, 254 S.E.2d 579 (1979); State v. Smith, 291 N.C. 505, 231 S.E.2d 663 (1977).

Nor is the State required to disclose the substance of defendant's statements to third parties which the State intends to use as evidence against him. G.S. 15A-903(a)(2) provides that the State, upon defendant's motion, must "... divulge, in written or recorded form, the substance of any oral statement made by the defendant which the State intends to offer in evidence at the trial." This provision has been interpreted to require the State to disclose defendant's statements to third parties only when the third party is an agent of the State. State v. Crews, 296 N.C. 607, 252 S.E.2d 745 (1979). Defendant gave no indication that the statements she sought to discover were statements she had made to an agent of the State, therefore her motion to discover was properly denied.

Likewise, the State was not obliged to divulge any statement of a codefendant. G.S. 15A-903(b) entitles defendant to discover any written, recorded, or oral statement by a codefendant "... which the State intends to offer in evidence at their joint trial." Defendant's motion to sever her case from codefendant Weimer's for separate trial was granted on 19 October 1979, prior to the commencement of this trial. Since there was no joint trial, defendant had no right under G.S. 15A-903(b) to discover statements made by a codefendant. We find defendant's assignment of error without merit.

By her fifth and thirteenth assignments of error defendant alleges that the trial court erred in denying her motion to sequester several of the State's witnesses. After two Food World employees had testified for the State, defendant moved to sequester the remaining witnesses who were Food World employees or customers in the store at the time of the shooting. The one employee witness remaining was sequestered by the court, but defendant's motion as to the customers was denied. Defendant claims that allowing the customer witnesses to testify in the presence of each other created a risk of collusion among the witnesses which prevented her obtaining a fair trial. The sequestration of witnesses is a matter within the trial judge's discretion, and his ruling thereon is not reviewable absent a showing of abuse of that discretion. Geders v. United States, 425 U.S. 80, 96 S.Ct. 1330, 47 L.Ed.2d 592 (1976); State v. McQueen, 295 N.C. 96, 244 S.E.2d 414 (1978); State v. Cross, 293 N.C. 296, 237 S.E.2d 734 (1977). In this case, defendant had filed a pretrial motion for sequestration of witnesses which she later abandoned. She offered no reason to the court for her renewal of the motion. We have carefully reviewed the testimony of each witness defendant sought to sequester and found that nearly all the witnesses testified to different facts and circumstances surrounding the incident. The testimony of each witness is sufficiently different from the others so as to indicate an absence of collusion or the parroting of another's testimony. Under these circumstances, the failure of the trial court to sequester witnesses did not prejudice defendant and we find no abuse of discretion. See State v. Mason, 295 N.C. 584, 248 S.E.2d 241 (1978).

Defendant also contends that the trial court abused its discretion in denying her motion to sequester the witnesses Wallace Alverin Turner and his wife, Viola Mae Turner during the testimony of the other. Defendant claims that she could not effectively cross-examine either of the Turners in the presence of the other, in that there were certain lines of questioning defendant wished to pursue which would be harmful to the marriage and which either spouse would be reluctant to discuss in the presence of the other. The trial record reveals that defendant conducted an extensive cross-examination of both witnesses, during which Mrs. Turner admitted that she had had sexual relations with Mr. Weimer and that she had seen her husband "in bed with" defendant. Mr. Turner testified on cross-examination that he had "been with" defendant and eight or nine hundred other women. These responses indicate that neither spouse was a restraining influence on the other. The trial court did not abuse its discretion in refusing to sequester the witnesses and defendant's assignments of error are overruled.

Defendant next argues that it was error to permit the witnesses Charles Stoltz and Dennis Turbyfill, Food World customers at the time of the shooting, to give testimony characterizing the assailant as female or having feminine characteristics. Defendant claims that whether the assailant was male or female was a question for the jury and the State's witnesses should not have been allowed to give an opinion on the assailant's sex. The specific testimony objected to was the witnesses' description of the manner in which the assailant fled from the store as "like a feminine run." As a general rule, a witness may not give opinion evidence when the facts underlying the opinion are such that the witness can state them in a manner which will permit an adequate understanding of them by the jury and the witness is no better qualified than the jury to draw inferences and conclusions from facts. State v. Sanders, 295 N.C. 631, 245 S.E.2d 674 (1978); State v. Watson, 294 N.C. 159, 240 S.E.2d 440 (1978). However, this Court has long held that a witness may state the "instantaneous conclusions of the mind as to the appearance, condition, or mental or physical state of persons, animals, and things, derived from observation of a variety of facts presented to the senses at one and the same time." State v. Spaulding, 288 N.C. 397, 411, 219 S.E.2d 178, 187 (1975). Such testimony is referred to as a shorthand statement of facts, and is admissible when, as here, the facts on which the witness bases his opinion are difficult to describe in a manner which will allow the jury to understand them sufficiently to be able to draw their own inferences. State v. Myers, 299 N.C. 671, 263 S.E.2d 768 (1980); State v. Jones, 291 N.C. 681, 231 S.E.2d 252 (1977); 1 Stansbury, N.C. Evidence § 125 (Brandis Rev.1973). In this case, it was extremely difficult for the witnesses to convey their impressions of the person fleeing without referring to the feminine nature of the run. We therefore find the testimony admissible as a shorthand statement of facts. Any prejudicial effect of the statement was remedied by the trial judge's instruction during Mr. Turbyfill's testimony that the jury should disregard that the witness said the person ran more like a female than a male. Defendant's assignment of error is without merit.

By her eleventh assignment of error, defendant contends that the trial court erred in permitting Avis Weimer, wife of Jackie Weimer, to testify that she saw defendant and Mr. Weimer "in bed together." She argues that this testimony was irrelevant, inflammatory, and highly prejudicial. It is well settled that a party loses his objection to the admission of testimony when the same or similar evidence is theretofore or thereafter admitted without objection. State v. Smith, 294 N.C. 365, 241 S.E.2d 674 (1978). In this case, both Mr. and Mrs. Turner testified without objection that defendant had "been to bed with" Mr. Turner. We therefore find that defendant waived her right to object to Mrs. Weimer's testimony. In any event, the statement was not unduly prejudicial to defendant, and her assignment of error is overruled.

In defendant's twelfth assignment she alleges that it was error to admit into evidence State's Exhibit 13, a .38 caliber revolver, where the State failed to establish a continuous chain of custody to the date of trial and failed to show that the fatal bullet was fired from the weapon. This argument is without merit. This court has often held that "any object which has a relevant connection with the case is admissible in evidence, in both civil and criminal trials. Thus, weapons may be admitted where there is evidence tending to show that they were used in the commission of a crime...." State v. Crowder, 285 N.C. 42, 46, 203 S.E.2d 38, 41-42 (1974), death sentence vacated, 428 U.S. 903, 96 S.Ct. 3205, 49 L.Ed.2d 1207 (1976). See also State v. Lovette, 299 N.C. 642, 263 S.E.2d 751 (1980); State v. Thomas, 294 N.C. 105, 240 S.E.2d 426 (1978); State v. Bishop, 293 N.C. 84, 235 S.E.2d 214 (1977); 1 Stansbury, N.C. Evidence § 118 (Brandis Rev.1973). In the instant case, there was evidence tending to show that Mr. Miller died of a gunshot wound; that a .38 caliber pistol was found on the steps of the manager's office immediately after the shooting, and that no gun was normally kept in the office. Members of the Forsyth County Sheriff's Department testified that State's Exhibit 13 was the weapon or a weapon identical to the gun taken from the scene of the shooting, and that the gun they found contained four unfired cartridges and one fired cartridge. SBI agent Carpenter stated that the bullet found in the victim's body could have been fired from a .38 pistol. This evidence tended to show that State's Exhibit 13 was the weapon used in the commission of the murder, and thus the weapon was properly admitted into evidence. Any evidence to the contrary only effects the probative force of the exhibit, not its admissibility. State v. Thomas, supra.

By her assignments numbered 14 through 20, 22, and 27, defendant contests two of the trial court's rulings concerning the testimony of State's witnesses Mr. and Mrs. Turner. She first alleges that the trial court erred in denying her motion for a voir dire examination of the Turners to determine the voluntariness of admissions made to them by defendant and Jackie Weimer, as required by the United States Supreme Court in Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964). Defendant has misinterpreted the necessity for a voir dire examination to determine the voluntariness of confessions. Our rule was established in State v. Perry, 276 N.C. 339, 345-46, 172 S.E.2d 541, 546 (1970) as follows:

"As a general rule, voluntary admissions of guilt are admissible in evidence in a trial. To render them inadmissible, incriminating statements must be made under some sort of pressure. Here we quote from the Supreme Court of the United States in Hoffa v. United States, 385 U.S. 293, 87 S.Ct. 408, 17 L.Ed.2d 374: ``Neither this Court nor any member of it has ever expressed the view that the Fourth Amendment protects a wrongdoer's misplaced belief that a person to whom he voluntarily confides his wrongdoing will not reveal it.... "The risk of being overheard by an eavesdropper or betrayed by an informer or deceived as to the identity of one with whom one deals is probably inherent in the conditions of human society. It is the kind of risk we necessarily assume whenever we speak." [A]ll have agreed that a necessary element of compulsory self-incrimination is some kind of compulsion.'"

This rule was recently reaffirmed in State v. Boykin, 298 N.C. 687, 259 S.E.2d 883 (1979), where Justice Carlton, speaking for the Court, found defendant Boykin's admissions to a police officer admissible without a voir dire to determine voluntariness. The evidence presented in the instant case indicates that defendant and Mr. Weimer went to the Turners' home of their own free will and admitted their participation in the shooting without coercion from the Turners. We therefore find no error in the trial court's refusal to grant a voir dire.

Defendant also contends that it was error for the trial court to instruct the jury on the law concerning admission by silence, in that the State's evidence was insufficient to support a finding that defendant implied an admission by not denying statements made by Mr. Weimer to Mr. Turner. The rule in this jurisdiction on implied admissions was aptly stated in State v. Spaulding, 288 N.C. 397, 406, 219 S.E.2d 178, 184 (1975):

"Implied admissions are received with great caution. However, if the statement is made in a person's presence by a person having firsthand knowledge under such circumstances that a denial would be naturally expected if the statement were untrue and it is shown that he was in position to hear and understand what was said and had the opportunity to speak, then his silence or failure to deny renders the statement admissible against him as an implied admission. 2 Stansbury's N.C. Evidence, § 179, p. 50 (Brandis Rev. 1973)."

See also State v. Phifer, 290 N.C. 203, 225 S.E.2d 786 (1976), cert. denied, 429 U.S. 1123, 97 S.Ct. 1160, 51 L.Ed.2d 573 (1977). In the present case, the evidence tends to show that during Jackie Weimer's discussion with Mr. Turner, defendant was present and silently seated on a couch approximately twelve feet away. Mr. Turner testified that defendant was close enough to the two men to hear what they were saying. Mr. Weimer referred to defendant's participation in the shooting on several occasions, but she never made a statement of denial. We find this testimony sufficient to show that defendant was in a position to hear Mr. Weimer's statements, that the statements were such that a denial would naturally be expected if the statements were untrue, and that no denial was made by defendant. The instruction to the jury on implied admissions was proper and defendant's assignments of error are overruled.

In assignment number 21 defendant argues it was error to admit the hearsay testimony of State's witness Kay Pettit. Ms. Pettit was allowed, over defendant's objection, to relate a conversation between herself and Mrs. Turner as follows: "... she [Mrs. Turner] said, ``you heard about the guy that got killed at Food World last night?'" And I said "Yes." She said, "Well, it wasn't a man that shot him." Ms. Pettit further testified that "... she [Mrs. Turner] said the girl did make the statement that she had shot the man but she didn't mean to." This evidence was offered for the purpose of corroborating Mrs. Turner's testimony that defendant had said she shot the man at Food World but didn't mean to. This Court has long held that prior consistent statements of a witness which strengthen his credibility may be admitted into evidence as an exception to the hearsay rule. See 1 Stansbury, N.C. Evidence § 51 (Brandis Rev.1973), and cases cited therein. To be admissible as corroborative evidence, the prior consistent statement need not be identical to the testimony it is offered to corroborate. Slight variations will effect only the credibility of the evidence, not its admissibility. State v. Madden, 292 N.C. 114, 232 S.E.2d 656 (1977); State v. Warren, 289 N.C. 551, 223 S.E.2d 317 (1976). However, if the testimony offered as a prior consistent statement contains additional or contradictory evidence, it should not be allowed. State v. Madden, supra; State v. Brooks, 260 N.C. 186, 132 S.E.2d 354 (1963). Defendant claims that since Ms. Pettit's testimony referred to the person who shot Mr. Miller as a female, it contained evidence in addition to Mrs. Turner's testimony and should not have been admitted. We disagree. Inherent in Mrs. Turner's statement that defendant said she killed a man at Food World is the statement that the assailant was female. Ms. Pettit's testimony was properly admitted as corroborative evidence and assignment number 21 is overruled.

By her twenty-sixth assignment of error, defendant alleges that the trial court erred in denying her request for a special instruction to the jury that the Turners were interested witnesses in this case. Instead, the trial judge gave a general instruction concerning interested witnesses, to the effect that the jury might find that a witness was interested in the outcome of the trial and, if so, the jury might properly take this interest into account in deciding the credibility to be attributed to the witness' testimony. We hold that defendant was not entitled to an instruction which required the jury to consider the Turners as interested witnesses. In the present case where there is no evidence to show that the Turners were accomplices in the shooting, testifying under a grant of immunity from the State, or otherwise clearly interested witnesses, whether the Turners should be considered interested parties is a question for jury. State v. Abernathy, 295 N.C. 147, 244 S.E.2d 373 (1978); State v. Hardy, 293 N.C. 105, 235 S.E.2d 828 (1977); State v. Harris, 290 N.C. 681, 228 S.E.2d 437 (1976); State v. Bailey, 254 N.C. 380, 119 S.E.2d 165 (1961); G.S. 15A-1052(c). The only evidence of the Turners' interest or bias in this case is their admitted aid to defendant and Mr. Weimer in not reporting their whereabouts subsequent to the shooting, Mrs. Turner's statement that she "had her reasons" not to report the fugitives' whereabouts, and Mr. Turner's testimony that he had hired an attorney to advise him during this case. This evidence is insufficient to establish that the Turners are interested witnesses to the degree necessary to warrant the instruction requested by defendant.

The instruction requested thus embodies an erroneous statement of the law, and the trial judge properly refused to give it. State v. Bock, 288 N.C. 145, 217 S.E.2d 513 (1975); State v. Beach, 283 N.C. 261, 196 S.E.2d 214 (1973). The court's general instruction concerning interested witnesses was an adequate statement of the existing law and was sufficient to inform the jury that if they found the Turners to be interested witnesses, they should weigh the credibility of the Turners' testimony accordingly. State v. Holmes, 296 N.C. 47, 249 S.E.2d 380 (1978); State v. Watson, 294 N.C. 159, 240 S.E.2d 440 (1978); State v. Eakins, 292 N.C. 445, 233 S.E.2d 387 (1977). This assignment of error is without merit and overruled.

By her twenty-ninth assignment of error, defendant claims the trial court erred in its summary of the evidence to the jury by failing to relate any of the evidence favorable to defendant. Although defendant presented no evidence in her behalf, she claims that evidence was brought out during her cross-examination of the State's witnesses which tended to raise inferences favorable to her, and therefore the trial judge was required to summarize this evidence in accordance with this Court's holding in State v. Sanders, 298 N.C. 512, 259 S.E.2d 258 (1979). In Sanders we interpreted the following language of G.S. 15A-1232: "In instructing the jury, the judge must declare and explain the law arising on the evidence. He is not required to state the evidence except to the extent necessary to explain the application of the law to the evidence." We found that although the wording of G.S. 15A-1232 is not identical to former G.S. 1-180, the law essentially remains unchanged, and thus the provision of G.S. 1-180 which required the trial judge to give equal stress to the State and defendant in its charge is implicit in the new statute. See also State v. Hewett, 295 N.C. 640, 247 S.E.2d 886 (1978). We further held that:

"... when the court recapitulates fully the evidence of the State but fails to summarize, at all, evidence favorable to the defendant, he violates the clear mandate of the statute which requires the trial judge to state the evidence to the extent necessary to explain the application of the law thereto. In addition, he violates the requirement that equal stress be given to the State and to the defendant."

State v. Sanders, supra at 519, 259 S.E.2d at 262. The State in Sanders argued that the defendant waived his right to challenge the trial judge's error on appeal. Relying on the general rule that objections to the charge in reviewing the evidence and stating the contentions of the parties must be made before the jury retires so as to afford the trial judge an opportunity for correction, otherwise they are deemed to have been waived and will not be considered on appeal. State v. Hewett, supra; State v. Potter, 295 N.C. 126, 244 S.E.2d 397 (1978); State v. Abernathy, supra; State v. Virgil, 276 N.C. 217, 172 S.E.2d 28 (1970). The Court rejected the State's contention, expanding the rationale of State v. Hewett, supra. In Hewett the Court held that where the trial judge in his charge states the contentions of the State but fails to relate any contentions of defendant, the defendant is not required to object before the jury retires in order to preserve his challenge on appeal. Chief Justice Branch, speaking for the Court in Sanders, reasoned that the rationale of Hewitt "... should apply with equal force when in his instructions the trial judge states the evidence favorable to the State and applies the law to that evidence but fails to state any of the evidence favorable to defendant to the extent necessary to explain the application of the law thereto." State v. Sanders, supra at 520, 259 S.E.2d at 262.

The facts in the case sub judice are similar to those in Sanders in that the defendant in both cases presented no evidence, claimed that the State's evidence created inferences favorable to the defense, and challenged the trial judge's failure to summarize any of the evidence favorable to the defendant. In both cases defendant failed to object to the charge before the jury retired. The State's argument in the present case that defendant waived her right to challenge the charge on appeal by not making a timely objection is squarely rejected by the Court's opinion in Sanders.

However, the case at issue is factually distinguishable from Sanders, and we find that G.S. 15A-1232 does not require the trial judge to summarize the evidence favorable to defendant under the circumstances present in this case. The language of the statute and our prior decisions interpreting it require the court to summarize the evidence of both parties only to the extent necessary to explain the application of the law thereto. In Sanders, the evidence elicited on cross-examination and presented in the State's case which was favorable to defendant was substantive evidence which tended to exculpate defendant, including a statement made by defendant to police officers which was directly in conflict to the evidence presented by the State. The trial judge could not have adequately explained the application of the law in the case without mentioning this evidence. In the present case, the evidence which defendant claims is favorable to her includes testimony by several of the State's witnesses that the assailant had male characteristics, the inability of several witnesses to make a positive in-court identification of defendant, inconsistencies in the witnesses' descriptions of the assailant's clothing, and prior inconsistent statements by some of the witnesses. This evidence is all testimony which tends to impeach or show bias in the State's witnesses. It is not substantive in nature and would not clearly exculpate defendant if believed. The capable trial judge was thus able to adequately relate the application of the law to the evidence without mentioning this testimony. We hold that G.S. 15A-1232 and our opinion in Sanders do not require the trial judge to summarize evidence favorable to defendant under the circumstances present in this case where the evidence is not necessary to an explanation of the applicable law. Since there was no evidence favorable to defendant which met this test, the court was not required to summarize it. We find no merit in defendant's assignment number 29.

We have carefully reviewed defendant's assignments of error numbered 17, 23, 24, and 28 and find no error which would entitle defendant to a new trial. Assignments numbered 3, 6, 8, 9, and 25 were not brought forward and argued in defendant's brief and are therefore deemed abandoned. State v. Franks, 300 N.C. 1, 265 S.E.2d 177 (1980); State v. Detter, 298 N.C. 604, 260 S.E.2d 567 (1979), Rule 28 (a)(b)(3), Rules of Appellate Procedure.

Defendant received a fair trial free from prejudicial error. The convictions and sentences are affirmed because in the trial we find

NO ERROR.

BROCK, J., did not participate in the consideration or decision of this case.