State v. Griffin

292 S.E.2d 156 (1982)

STATE of North Carolina
v.
Roy Lee GRIFFIN, Jr.

No. 8118SC1195.

Court of Appeals of North Carolina.

June 15, 1982.

Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. George W. Lennon, Raleigh, for the State.

Appellate Defender Adam Stein by Asst. Appellate Defenders Lorenzo L. Joyner and Marc D. Towler, Raleigh, for defendant-appellant.

ARNOLD, Judge.

Defendant's first assignment of error is that the trial court erred in refusing to instruct the jury on assault and larceny from the person. While these are lesser included offenses of the crime charged, we find no significant evidence to support an instruction thereon. Defendant would have the Court theorize that the assault on Rhinehart and the taking of his property may have been separate and unrelated crimes. Yet the only direct evidence presented at trial established that the victim was beaten and robbed by defendant and Taylor. Only evidence tending to show the absence of one of these elements would have justified an instruction on a lesser included offense. We find no such evidence in the record.

Defendant next argues that the trial court erred in excluding evidence of Rhinehart's reputation for homosexuality. Defendant contends that such evidence was essential to his theory of the case in that Taylor's refusal of Rhinehart's sexual advances could have been the motive for Rhinehart's false charges against Taylor and defendant. Defendant argues that since the value of the evidence for impeachment purposes is obvious from the record, his failure to make an offer of proof was not fatal.

Defendant relies heavily on the case of State v. Becraft, 33 N.C.App. 709, 236 S.E.2d 306, cert. denied 293 N.C. 362, 237 S.E.2d 850 (1977), in which this Court held that the trial court had erred in excluding evidence that the alleged robbery victim was a homosexual who had previously propositioned the defendant. The case at bar is distinguishable from Becraft, however, in two important respects. First, the only evidence identifying the defendant in Becraft came from the alleged victim, making any evidence of the victim's bias or prejudice against the defendant critical. Here, the prejudicial effect of the victim's alleged bias is questionable at best since two other State's witnesses testified to the identity of the defendant and to his criminal acts. Moreover, Becraft involved evidence of a specific instance of the witness's behavior. Where, as here, evidence of the general reputation of a witness is sought to be introduced, a foundation must be laid to establish the basis for the testifying witness's opinion of that reputation. 1 Stansbury's N.C. Evidence § 110 (Brandis Rev. 1973). This was not done.

Defendant next assigns error to the trial court's failure to strike an improper question by the prosecutor and to give a curative instruction. Objection to the question, asked of defense witness Taylor about crimes committed by defense witness Means, was sustained. Yet we agree with defendant that the question itself could have been prejudicial and that a denial of defendant's motion to strike and for curative instructions might well have been error. However, where, as here, no such motion was made at trial, the issue is deemed to have been waived on appeal. State v. Willard, 293 N.C. 394, 238 S.E.2d 509 (1977); State v. Locklear, 41 N.C.App. 292, 254 S.E.2d 653 (1979).

As his next assignment of error, defendant contends that the trial court improperly permitted cross-examination of Anthony Taylor regarding his own conviction for the same crime for which defendant was being tried. It is well established that impeachment by cross-examination of a witness concerning his prior criminal behavior is proper. State v. Monk, 286 N.C. 509, 212 S.E.2d 125 (1975). Moreover, defendant's reliance upon the rationale set forth in State v. Atkinson, 25 N.C.App. 575, 214 S.E.2d 270 (1975), is misplaced. Atkinson supports exclusion of evidence of a co-defendant's conviction for the same crime only where the co-defendant does not testify. Here, Taylor was called as a witness by defendant. The defendant thus exposed his witness to impeachment by the prosecutor. Finally, even if the cross-examination had been improper, the defendant's failure to object to it at trial constitutes a waiver of the issue on appeal. State v. Campbell, 296 N.C. 394, 250 S.E.2d 228 (1979).

Defendant's final argument on appeal concerns the court's alleged error in failing to issue an invitation to defendant to speak personally on his own behalf prior to sentencing. We find this Court's opinion in State v. Martin, 53 N.C.App. 297, 280 S.E.2d 775 (1981), to be dispositive of this issue. Martin established that, unlike Rule 32(a) of the Federal Rules of Criminal Procedure, G.S. 15A-1334(b) does not mandate that such a personal invitation be directed to the defendant himself rather than to his attorney.

In the trial of defendant we find

No error.

VAUGHN and ROBERT M. MARTIN, JJ., concur.