State v. Milby

273 S.E.2d 716 (1981)

STATE of North Carolina v. Zebedee MILBY. STATE of North Carolina v. Charles Linwood BOYD.

No. 134.

Supreme Court of North Carolina.

January 27, 1981.

*718 Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. Lucien Capone, III, Raleigh, for the State.

George T. BLackburn, II, Henderson, for defendant Charles Linwood Boyd.

Linwood T. Peoples, Henderson, for defendant Zebedee Milby.

BRITT, Justice.

Because of defendants' failure to preserve for our review the other assignments of error which they presented to the Court of Appeals by bringing them forward in their new briefs, see N.C.R.App.P. 16, only one question is properly before this court for our consideration: Did the Court of Appeals commit error in awarding defendants new trials because of the introduction into evidence by the state of two handguns which had been seized at the time of their arrest? We conclude that the Court of Appeals was in error, and, accordingly, we reverse its decision.

The handguns in question were seized from defendants on the evening of 26 May 1979 when they were arrested. On that date, the Henderson Police Department received a communication from the Richmond Police Department through the Police Information Network (PIN) to the effect that defendant Boyd and a companion had left Richmond in a Ford Pinto bearing Virginia license plate number JGD 732. The message indicated that both individuals were armed. The dispatch also advised that the license plate was invalid because the vehicle to which it had been issued had been given a new license plate, suggesting that the particular license plate had been stolen or lost.

When the message was received in Henderson, elements of the State Highway Patrol, the Henderson Police Department, and the Vance County Sheriff's Department were posted along Interstate Highway 85 for the purpose of intercepting the vehicle.

Late in the evening of 26 May, Officer C. G. Todd of the State Highway Patrol stopped a car meeting the description contained in the PIN dispatch on Norlina Road across from an A.B.C. store. Defendant Boyd was driving the Pinto, and defendant Milby was seated in the passenger seat. After repeated requests, defendants removed themselves from the automobile. When defendant Milby got out of the car, Officer J.W. Prather of the Vance County Sheriff's Department who had arrived on the scene in the interim, observed a .22 caliber pistol lying on the seat upon which defendant Milby had been riding. This pistol was later offered by the state as exhibit *719 number 2. At approximately the same time, defendant Boyd was searched, and a .32 caliber pistol was seized which was later offered by the state as exhibit number 1.

During her direct examination, Ms. Fuller testified at length concerning the conduct of defendants during the course of the robbery. In the course of describing the exit of defendant Boyd from the store's office after he had emptied the safe, Ms. Fuller testified that

I didn't try to stop him because of company policy. He started out the door. I looked at his face. I closely observed it. I could see where the gun was at that time. He never took the gun off of me the whole time. I can describe that gun. It was long, narrow gun. It was sort of a brass look. As he left, the brown bag tore and two bags inside fell out. He went out to Zeb on the floor and told him to come back for the two bags of money. Zeb came to the office. He stood about five feet from me and pointed a gun at me. The gun was the same kind as the other one. He told me to hand him the money bags. I handed him the bags.

It will be observed that not only did Ms. Fuller describe the pistol used by defendant Boyd while he was in the store's office but also that she tied its description in with that of defendant Milby's gun. It was the alleged disparity between Ms. Fuller's testimony and the state's offer of proof in the introduction of state's exhibits one and two which constituted the basis for the award of a new trial by the Court of Appeals.

At no time did the state connect the pistols which were seized from defendants at the time of their arrest and subsequently introduced as exhibits one and two with the pistols which had been utilized in the robbery of the grocery store. Nor was there any testimony to the effect that the exhibits were similar to those actually employed by defendants. The Court of Appeals concluded that the admission into evidence of these handguns was prejudicial error because there was no evidence that either gun matched the description given by Ms. Fuller. State v. Milby & Boyd, 47 N.C.App. at 671, 267 S.E.2d at 595. We hold that the Court of Appeals was in error for two reasons.

First, on the basis of the record which is before us, we are unable to conclude that the admission of the exhibits by the trial court was in fact error. The exhibits in question have not been placed before this court for its examination. Nor has there been any stipulation placed in the record which would serve to describe the exhibits for us. In other words, we are unable to determine that there was indeed a discrepancy between the weapons which were used in the commission of the armed robbery and the exhibits about which defendants now complain.

A ruling of the trial court on an evidentiary point is presumptively correct, and counsel asserting prejudicial error must demonstrate that the particular ruling was in fact incorrect. See generally 1 Stansbury's North Carolina Evidence § 27 (Brandis Rev.1973). Where the matter complained of does not appear of record, appellant has failed to make the irregularity manifest and it will not be considered as a basis for prejudicial error. E. g., State v. Hilton, 271 N.C. 456, 156 S.E.2d 833 (1967); State v. Duncan, 270 N.C. 241, 154 S.E.2d 53 (1967). It is the duty of an appellant to see that the record on appeal is properly made up and transmitted to the appellate court. State v. Atkinson, 275 N.C. 288, 167 S.E.2d 241 (1969). While it is true that defendants asserted in their brief before the Court of Appeals that the exhibits are short, dark-barreled pistols, no description of the exhibits is part of the record, nor are the exhibits filed with our clerk. It is our conclusion that the admission of an exhibit cannot be held to be prejudicial error when the exhibit complained of or a description of same, does not appear of record in some fashion. Compare Consolidated Vending Co. v. Turner, 267 N.C. 576, 148 S.E.2d 531 (1966); Cudworth v. Reserve Life Insurance Co., 243 N.C. 584, 91 S.E.2d 580 (1956); see also State v. Samuel, 27 N.C.App. 562, 219 S.E.2d 526 (1975).

*720 Second, even assuming arguendo that the exhibits were admitted erroneously, we are unable to conclude that defendants were prejudiced by their admission into evidence. Ms. Fuller and Mr. Twisdale positively identified defendant Boyd as being the robber who was in the store's office emptying the safe. Defendant Milby was identified by all three of the state's witnesses as being the robber who was positioned at the second checkout stand at the front of the store. There was no hesitancy or equivocation on the part of the state's witnesses in making these identifications.

It is well-established that the burden is on the appellant not only to show error but also to show that he suffered prejudice as a result of the error. E. g., State v. Chapman, 294 N.C. 407, 241 S.E.2d 667 (1978). The test for prejudicial error is whether there is a reasonable possibility that the evidence complained of contributed to the conviction, G.S. § 15A-1443 (1978), not whether the appellate court is able to conclude beyond a reasonable doubt that the evidence was harmless to the rights of a defendant. The latter standard is appropriately invoked only in matters of constitutional dimension. State v. Heard & Jones, 285 N.C. 167, 203 S.E.2d 826 (1974). In view of the overwhelming evidence which was presented by the state, as well as the quality of the evidence, we conclude that there is no reasonable possibility that the verdicts returned by the jury were affected by the introduction of the handguns in question.

The decision of the Court of Appeals is

Reversed.

MEYER, J., did not participate in the consideration or decision of this case.