State v. Bailey

182 S.E.2d 881 (1971) 12 N.C. App. 280

STATE of North Carolina
v.
Larry Lamont BAILEY.

No. 7121SC512.

Court of Appeals of North Carolina.

August 25, 1971.

Atty. Gen. Robert Morgan and Asst. Atty., Gen. R. S. Weathers, for the State.

R. Lewis Ray, Legal Aid Society, Winston-Salem, for defendant-appellant.

CAMPBELL, Judge.

This appeal presents three questions: (1) error in permitting Patricia Vaughn to identify the defendant as the one who grabbed and held her wrists while his companion extracted the money from the cash register; (2) error in denying defendant's motion to set aside the verdict as being against the greater weight of the evidence; and (3) error in sustaining an objection by the State to a question seeking to establish inconsistent prior testimony given by Patricia Vaughn at the preliminary hearing.

The first question raised by the defendant is not properly presented in this record. No objection was made to the identification of the defendant by Patricia Vaughn, and no request was made for a voir dire examination to develop the facts as to whether or not a pretrial identification was properly conducted, and if not, whether such tainted identification carried over to the in-court identification. Counsel for the defendant, in his brief, with frankness and candor, answers this question as follows:

"* * * [T]his defendant is not entitled to have this issue reviewed on appeal in the manner in which this issue is raised * * *."

The case of State v. Blackwell, 276 N.C. 714, 174 S.E.2d 534 (1970), is ample authority to deny any error presented in this first question.

With regard to the second question presented, while the evidence on behalf of the State and of the defendant was in sharp conflict, nevertheless, the evidence on behalf of the State was adequate and sufficient to go to the jury. The jury, as the triers of the facts, found the facts in favor of the State and contrary to the version of the defendant. The defendant is bound by the jury verdict, and no abuse of discretion has been shown in the failure of the trial court to set the verdict aside. State v. Mitchell, 6 N.C.App. 755, 171 S.E.2d 74 (1969).

The third question presented by this appeal is not properly supported by the record. The defendant asked a question of the co-defendant as follows:

"Q. Did you hear the testimony of Mrs. Patricia Vaughn at the preliminary hearing on November—that date was December 28, 1970? Do you recall what her testimony was?

OBJECTION. SUSTAINED. EXCEPTION * * *."

There is nothing in the record to indicate what the answer to this question would have been. In the absence of any answer in the record, it is impossible for an appellate court to ascertain whether the defendant was prejudiced by the action of the trial court in sustaining the objection interposed by the State. The burden is upon the defendant to establish prejudicial error in the trial This he has failed to do. Newbern v. Hinton, 190 N.C. 108, 129 S.E. 181 (1925); Rhodes v. Raxter, 242 N.C. 206, 87 S.E.2d 265 (1955); and Westmoreland v. Southern R. R., 253 N.C. 197, 116 S.E.2d 350 (1960).

All questions presented by this appeal have been carefully considered, and we find

No error.

MALLARD, C. J., and HEDRICK, J., concur.