State v. Mitchell

172 S.E.2d 527 (1970)

276 N.C. 404

STATE of North Carolina v. Leroy MITCHELL.

No. 16.

Supreme Court of North Carolina.

March 11, 1970.

*529 Atty. Gen. Robert Morgan and Roy A. Giles, Jr., Raleigh, Staff Attorney, for the State.

Murchison, Fox & Newton, Wilmington, for defendant.

*530 LAKE, Justice.

G.S. § 7A-30 provides that, subject to an exception not here material, an appeal lies of right to this Court from any decision of the Court of Appeals in a case which directly involves a substantial question arising under the Constitution of the United States or the Constitution of this State. In order to exercise this right, however, the appellant must follow appropriate procedures for raising and for preserving for review such constitutional question.

In State v. Colson, 274 N.C. 295, 163 S.E.2d 376, the defendant was indicted for murder. Over his objection, the trial court admitted in evidence a vodka bottle, found by police officers in a bedroom of his house, and testimony concerning its discovery. On appeal to the Court of Appeals, this was assigned as error but this assignment was not discussed in the appellant's brief filed in the Court of Appeals and no reason or argument was cited in support of it. The Court of Appeals did not discuss this assignment of error in its opinion, apparently treating it as abandoned by the appellant. Upon appeal to this Court, the appellant asserted that the admission of the evidence violated his constitutional rights because it was the tainted fruit of an illegal search. Speaking through Huskins, J., we said at pp. 309-310, 163 S.E.2d at p. 386:

"Now in this Court for the first time in the appellate division, defendant seeks to inject the constitutionality of the search of the bedroom * * *. This he cannot do. The Supreme Court reviews the decision of the Court of Appeals for errors of law allegedly committed by it and properly brought forward for consideration. "* * * `Appellate courts will not ordinarily pass upon a constitutional question unless it affirmatively appears that such question was raised and passed upon in the trial court. State v. Jones, 242 N.C. 563, 564, 89 S.E.2d 129. This is in accord with the decisions of the Supreme Court of the United States. Edelman v. People of State of California, 344 U.S. 357, 358, 73 S. Ct. 293, 97 L. Ed. 387.' State v. Grundler, 251 N.C. 177, 111 S.E.2d 1. Thus, the new question is not properly before us because it was not raised and passed upon in the Court of Appeals."

The record in the present case shows that, in the trial court, the defendant did not object to any testimony of any witness concerning either the entry of Officer Hanes and Bradley into the room where the defendant was found, the taking of the ring from his finger, the identification of the State's Exhibit #1 as the ring so taken, or any statement or action of the defendant while in the presence of Officers Genes and Bradley. The record shows no exception to any ruling of the trial court with reference to any of these matters. Upon the appeal to the Court of Appeals, no ruling of the trial court relating to any of these matters was assigned as error.

It is elementary that, "nothing else appearing, the admission of incompetent evidence is not ground for a new trial where there was no objection at the time the evidence was offered." State v. Williams, 274 N.C. 328, 334, 163 S.E.2d 353; State v. McKethan, 269 N.C. 81, 152 S.E.2d 341; State v. Camp, 266 N.C. 626, 146 S.E.2d 643; Lambros v. Zrakas, 234 N.C. 287, 66 S.E.2d 895; State v. Fuqua, 234 N. C. 168, 66 S.E.2d 667; State v. Hunt, 223 N.C. 173, 25 S.E.2d 598; Stansbury, North Carolina Evidence, 2d Ed., § 27; Wigmore on Evidence, 3rd Ed., § 18. An assertion in this Court by the appellant that evidence, to the introduction of which he interposed no objection, was obtained in violation of his rights under the Constitution of the United Sates, or under the Constitution of this State, does not prevent the operation of this rule.

This Court will not pass upon the merits of a litigant's contention that his constitutional right has been violated by a *531 ruling or order of a lower court, unless, at the time the alleged violation of such right occurred or was threatened by a proposed procedure, ruling or offer of evidence, or at the earliest opportunity thereafter, the litigant made an appropriate objection, exception or motion and thereafter preserved the constitutional question at each level of appellate review by an appropriate assignment of error and by argument in his brief. State v. Colson, supra; State v. Grundler and State v. Jelly, 251 N.C. 177, 111 S.E.2d 1; State v. Jones, 242 N.C. 563, 89 S.E.2d 129. As Stone, C.J., speaking for the Supreme Court of the United States, said in Yakus v. United States, 321 U.S. 414, 444, 64 S. Ct. 660, 88 L. Ed. 834, "No procedural principle is more familiar to this Court than that a constitutional right may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it."

In his notice of appeal to this Court, the defendant asserts, for the first time, that he was a tenant of the room wherein he lay when the ring was taken from his finger by Officer Hanes, and that the constitutional question, which he now attempts to raise with reference to such taking of the ring, "was not raised in the Court of Appeals due to the fact that appellant's status as a tenant was only recently communicated to appellant's attorney." If true, this does not exempt him from the operation of the above mentioned rule. Nothing in the record supports his contention that he was occupying the room as a tenant. If he was, that fact was within his knowledge at the time the evidence in question was introduced.

The defendant does not even suggest any reason for his failure to raise, either in the trial court or in the Court of Appeals, any question as to the admissibility of testimony concerning his statements and actions while in the police car in the company of Officers Genes and Bradley.

We, therefore, do not reach and do not pass upon any constitutional question as to the admissibility of any of the evidence of which the defendant complains in his notice of appeal and in his brief filed in this Court. The appeal is dismissed for the failure of the defendant to raise by appropriate and available procedures any substantial constitutional question for the consideration of this Court.

Appeal dismissed.