State v. Brooks

190 S.E.2d 338 (1972)

15 N.C. App. 367

STATE of North Carolina v. Lawrence Winford BROOKS, alias Wayne Haywood Brooks.

No. 7227SC494.

Court of Appeals of North Carolina.

August 2, 1972.

*340 Atty. Gen. Robert Morgan by Associate Atty. Gen. Richard B. Conely, for the State.

Henry L. Fowler, Jr., Mount Holly, and Bob W. Lawing, Gastonia, for defendant appellant.

CAMPBELL, Judge.

Defendant first assigns as error the denial of his pretrial motions. We do not feel it necessary to discuss each of the numerous motions filed by defendant. They were, for the most part, entirely frivolous and without merit. We have, nevertheless, reviewed each motion and the trial court's ruling in each case. We find no error in the denial of defendant's pretrial motions.

The defendant's second assignment of error is to the admission of hearsay evidence on the voir dire examination. Defendant contends that it was error for the court to admit the testimony of Officer Howard that another officer had informed him that an automobile similar to the one in this case had been observed in the vicinity of a supermarket which had been burglarized the previous week. The testimony in question was offered for the purpose of showing why Officer Howard stopped the automobile. It was not offered for the purpose of proving the truth of the assertion that a similar vehicle was seen near the scene of a previous crime. The testimony, therefore, falls within the exception to the hearsay rule which permits "testimony of such assertions [those of third persons] for the purpose of showing the state of mind of the witness in consequence of such assertions and not for the purpose of proving the matters asserted." 2 Strong, N.C. Index 2d, Criminal Law, § 73 at p. 573. There was no error in the admission of this testimony on voir dire.

Defendant assigns as error the admission into evidence of the items listed in the bill of indictment and allegedly found in the automobile occupied by defendant. Defendant contends that these items were not properly identified and that the chain of evidence was not complete. We do not agree with this argument. There was testimony *341 by Officer Hinson that after the tools were found in defendant's automobile, he marked them by tag and then took them to the crime laboratory in Charlotte. Hinson testified that the items were retrieved from the crime laboratory about five days later. Each item was identified by Officer Hinson as it was introduced into evidence. There is no evidence that any of these items were tampered with and they were properly identified by the officer who found them. This assignment of error is overruled.

On the cross-examination of Officer Hinson, the defendant endeavored to show, by demonstration, that the officer could not have seen the outline of the pistol as he had claimed. The defendant participated in the demonstration. During this demonstration the trial court gave the defendant certain instructions about where to place the pistol and how to stand. It is contended that these instructions amounted to an expression of opinion by the court in violation of G.S. § 1-180. Prior to charging the jury, the trial court directed that the items in evidence be placed on a table so that the jury could view them. Defendant contends that this also is an expression of opinion by the court in violation of G.S. § 1-180. Defendant cites no authority for his argument that these actions of the trial court were error. More importantly, he does not show how defendant was in any way prejudiced by the trial court's actions.

The court, in its instructions to defendant, was merely assuring that the demonstration illustrated the testimony as it was given. In ordering the State's exhibits placed on the table the court was merely allowing the jury to view the evidence. These acts did not amount to an expression of opinion. It is proper for the judge to attempt to obtain a proper understanding and clarification of the testimony. A comment or question of the judge should be considered in the light of the facts and circumstances disclosed by the record, and any error will be considered harmless unless it is apparent that an infraction of the rules was prejudicial to defendant. State v. Perry, 231 N.C. 467, 57 S.E.2d 774 (1950); State v. Hoyle, 3 N.C.App. 109, 164 S.E.2d 83 (1968). Here we find that there was no error in the judge's remarks and certainly the defendant could not have been prejudiced by these remarks. This assignment of error is overruled.

Defendant assigns as error the denial of his motions for nonsuit. It is contended that the tools allegedly found with defendant should not have been admitted in evidence and that without this evidence the State had failed to prove its case. In view of our holding that the evidence was admissible, this argument is without merit.

Defendant has assigned as error several portions of the trial court's charge to the jury. We have examined the charge in its entirety, and we find that, when taken as a whole, it provides a fair and accurate statement of the evidence and law in this case. We conclude that the charge was correct and free from prejudicial error.

The defendant has made several other assignments of error. We have considered each of them and find them to be without merit.

Without the authority or leave of this Court, and contrary to the rules, the defendant filed what purports to be a brief in this cause on 13 July 1972, after the case had been heard on oral argument on 5 July 1972. Rule 11 of the Rules of Practice in the Court of Appeals provides, "No brief or written argument will be received after a case has been argued or submitted, except upon leave granted in open court, after notice to opposing counsel."

This defendant was accorded a full and impartial trial and we find

No error.

MALLARD, C. J., and BRITT, J., concur.