State v. Fleming

MORRIS, Judge.

Defendant raises seven assignments of error but argues only two of them on appeal. He contends that the trial judge erred in admitting into evidence the transcript of defendant’s testimony in the trial of Clintes Person ■ and in subsequently overruling his motion to dismiss.

As a general rule, where a defendant testifies as a witness at a judicial proceeding, his testimony is admissible against him in a subsequent criminal trial. State v. Farrell, 223 N.C. 804, 28 S.E. 2d 560 (1944); State v. Burnett, 184 N.C. 783, 115 S.E. 57 (1922); State v. Simpson, 133 N.C. 676, 45 S.E. 567 (1903). Defendant argues, however, that because of the transcript “ . . . contained statements and admissions by the defendant that he had been arrested and accused of another unrelated armed robbery, had previously been convicted of other crimes, had served an active prison sentence or sentences and contained statements by the district attorney which insinuated that the defendant had been one of the parties involved in the armed robbery which is the subject of the case at bar,” it was therefore incompetent at his own trial. We cannot agree.

Following defendant’s objection to the introduction of the transcript, counsel for defendant and the State approached the bench at which time the court asked defendant’s attorney to state the basis for his objection. Counsel told the court that the grounds for his objection were that the admission of the former testimony would violate defendant’s constitutional right against self-incrimination. The district attorney asked defense counsel if self-incrimination was the sole basis for the objection and was informed that it was. The record states “[t]hat at the bench there was no discussion whatsoever with the district attorney or the defendant’s attorney about the fact that the transcript sought to be entered into evidence contained some reference to defendant’s prior criminal activity.”

It is well settled in North Carolina that when a specific objection to evidence is made, the competency of the evidence will be determined on appeal solely on the basis of the ground specified. The existence of another ground for objection is irrelevant for purposes of review unless the evidence is completely without purpose. State v. Cornell, 281 N.C. 20, 187 S.E. 2d 768 (1972); Pratt v. Bishop, 257 N.C. 486, 126 S.E. 2d 597 (1962); State v. Westmoreland, 181 N.C. 590, 107 S.E. 438 (1921). But the rule does not apply when the evidence is rendered incompetent by statute. Glenn v. Smith, 264 N.C. 706, 142 S.E. 2d 596 (1965). Thus, defendant may properly raise a violation of G.S. 8-54 for the first time on appeal.

However, even assuming arguendo that the introduction of portions of the transcript constitute a violation of G.S. 8-54, there were other portions which were properly admissible into evidence. State v. Farrell, supra. Defendant did not specify the objectionable portions. A general, broadside objection should be overruled if any part of the evidence is admissible. Pratt v. Bishop, supra.

“The rule is well settled that general objections will not be entertained if the evidence consists of several distinct parts, some of which are competent and others not. In such case the objector must specify the grounds of the objection, and it must be confined to the incompetent evidence. Unless this is done he cannot afterwards single out and assign as error that part of the evidence which was incompetent.” State v. Hill, 6 N.C. App. 365, 368, 170 S.E. 2d 99, 101 (1969).

Since defendant failed to object to the specific parts of the transcript which were incompetent, he may not now complain of their admission. These assignments are overruled.

No error.

Judges Hedrick and Arnold concur.