State v. Neely
State v. Neely
Opinion
Defendant asserts that he is entitled to a new trial because the absence of a complete transcript abridges his right to appeal. Specifically, defendant argues that (1) there may have been errors in the admission and exclusion of certain testimony, and (2) improperly suggestive identification procedures may have been used by the police.
There is a presumption of regularity in a trial. “In order to overcome that presumption it is necessary for matters constituting material and reversible error to be made to appear in the case on appeal.” State v. Sanders, 280 N.C. 67, 72, 185 S.E. 2d 137 (1971).
In an earlier appeal of this case, we stated that when there is an incomplete transcript, “[i]n lieu of the usual narrative *709 statement of evidence, defendant should set out the facts upon which his appeal is based, any defects appearing on the face of the record, and the errors he contends were committed at the trial.” State v. Neely, 21 N.C. App. 439, 440-441, 204 S.E. 2d 531 (1971) (Emphasis added). Defendant contends that there was error in the “failure of the trial court to conduct a proper voir dire and to apply constitutional standards. . . . ” The record on appeal does not show the extent of the voir dire or the findings of the trial judge, and defendant does not point out in what respect the voir dire was improper or in what way there was a failure to apply constitutional standards. We do not find this contention specific enough to justify a determination that defendant is prejudiced by the incomplete transcript.
Defendant makes no showing that errors were committed. He argues only that the police may have used impermissibly suggestive identification procedures and that errors in the admission and exclusion of evidence may have been committed. This is not enough to entitle him to a new trial. The record does not show that any incompetent evidence was given by the witnesses Seward, Strain, or Purser, or by defendant, and it does not establish that either Mrs. Seward’s or Mrs. Dow’s identification of defendant was improperly obtained. Absent some specific, affirmative showing by the defendant that error was committed, we will uphold the conviction because of the presumption of regularity in a trial. See also State v. Teat, 24 N.C. App. 621, 211 S.E. 2d 816 (1975). This assignment of error is overruled.
The three exceptions which constitute this assignment of error are as follows:
Q And then, also, an obtaining some money by false pretenses from Roncum Moore. He was the one that got on you and got you back in March, wasn’t he ?
Objection — Overruled.
Exception #10.
*710 “Q Your bondsman didn’t get in touch with you?
A Through my father.
Q Through your father, but he had been looking for you, hadn’t he? For failing to appear in District Court February 19, 1972, on another case?
A No, he ain’t looking for me.
Q And that was the reason, in fact, you failed to appear on February 18th of 1972, wasn’t it?
Overruled.
Exception #11.”
* * *
“Q You went to work after you got back and the bondsman got after you?
A Right.
Objection — Overruled.
Exception #12.
“A I worked at Smyre Mills until I was picked up on a capias. I think it’s about two months.”
In our opinion the questions propounded by the district attorney did not prejudice defendant. They were designed to show specific acts of misconduct that the defendant had committed, not his prior arrests and indictments. “ . . .Williams did not change the rule that for purposes of impeachment a witness may be asked whether he has committed specific criminal acts_” State v. Gainey, 280 N.C. 366, 373, 185 S.E. 2d 874 (1971). The failure of defendant to appear in court for his trial or preliminary hearing is an act of misconduct about which he could be properly questioned. Additionally, even though the objections constituting exceptions #10 and #11 were overruled, no answer was elicited from the defendant. This is, practically speaking, the equivalent of having the objection sustained. Defendant could not have been prejudiced. As to exception #12, suffice to say we are of the opinion that it does not constitute prejudicial error. This assignment of error is overruled.
General Statute 1A-1, Rule 45(c) (1) provides that the judge may quash or modify the subpoena if it is unreasonable or oppressive. We are of the opinion that the request for records of calls placed over a three-month period to certain persons was unreasonable and of dubious relevance when it is considered that the records could show only, at most, that someone made calls, not that defendant made them. The request was not even limited to records of calls from Falls Church, Virginia, to the residences of Gilmore and Reid. Defendant contended he was in Falls Church, Virginia, and that he made calls from there. Records of calls from any other place to the residences of Gilmore and Reid clearly would have been irrelevant to defendant’s defense, and an order to produce them would have been unreasonable. We note that neither Gilmore nor Reid was called as a witness by defendant to corroborate his contention that he made calls to them. This assignment of error is overruled.
We have carefully considered defendant’s remaining argument and find that no prejudicial error was committed.
“[U]nder an indeterminate sentence law, a sentence cannot be for a definite term of imprisonment. It must be for not less than a specified minimum period and not more than a specified maximum period. There must be a difference between the periods, and a sentence fixing identical minimum and maximum terms of imprisonment is invalid.” 283 N.C. at 353, quoting 21 Am. Jur. 2d Criminal Law § 540.
*712 Although we find no error in the trial, the case must be remanded to the Superior Court, Gaston County, for the entry of a proper judgment.
Remanded for judgment.
Reference
- Full Case Name
- State of North Carolina v. Willie Lee Neely
- Cited By
- 8 cases
- Status
- Published