State v. BakerAnnotate this Case
238 S.E.2d 648 (1977)
34 N.C. App. 434
STATE of North Carolina v. Wallace DeWitt BAKER.
Court of Appeals of North Carolina.
November 16, 1977.
*650 Atty. Gen. Rufus L. Edmisten by Sp. Deputy Atty. Gen. Robert P. Gruber, Raleigh, for the State.
Winston, Coleman & Bernholz by Donald R. Dickerson, Hillsborough, for defendant-appellant.
Defendant makes thirty-three assignments of error and brings nine of them forward in his brief in seven arguments.
In his first argument, he contends the trial court erred in admitting Linda Kitchens' testimony of missing silver dollars and stamps on the grounds that the testimony was irrelevant and prejudicial and subjected him to double jeopardy since he had already been acquitted on the larceny charge. We do not find this argument persuasive.
First, the testimony by the prosecuting witness concerning the missing property was not irrelevant."In criminal cases every circumstance that is calculated to throw light upon the supposed crime is relevant and admissible if competent. "It is not required that evidence bear directly on the question in issue, and evidence is competent and relevant if it is one of the circumstances surrounding the parties, and necessary to be known, to properly understand their conduct or motives, or if it reasonably allows the jury to draw an inference as to a disputed fact." 4 Strong's N.C. Index 3d Criminal Law § 33, pp. 140-41.
The fact that Mrs. Kitchens' lockbox had been pried open and some silver dollars and stamps were missing was a relevant circumstance surrounding the breaking and entering *651 charge. As stated in State v. Jackson, 28 N.C.App. 136, 137, 220 S.E.2d 186, 187 (1975), "[t]he general rule in North Carolina is that `[e]very circumstance calculated to throw light upon the crime charged is admissible in criminal cases.' State v. Robbins, 287 N.C. 483, 490, 214 S.E.2d 756 (1975); State v. Hamilton, 264 N.C. 277, 286-287, 141 S.E.2d 506 (1965), cert. denied 384 U.S. 1020, 2 Strong, N.C. Index 2d, Criminal Law, § 33, p. 531."
Second, the testimony by Mrs. Kitchens concerning the missing property did not place defendant in double jeopardy on the larceny charge. "The test of former jeopardy is not whether the defendant has already been tried for the same act, but whether he has been put in jeopardy for the same offense. Hence, the plea of former jeopardy, to be good, must be grounded on the `same offense,' both in law and in fact, and it is not sufficient that the two offenses grew out of the same transaction." 4 Strong's N.C. Index 3d, Criminal Law § 26.3, p. 112.
The crime of larceny of which defendant was acquitted was not the same offense in law and fact as the crime of breaking and entering. Testimony concerning the missing property was relevant to the breaking and entering charge and it did not constitute a retrial of defendant on the larceny charge.
In his second argument, defendant contends the trial court erred in failing to allow his counsel to question Vernon Burch with respect to previous testimony under oath concerning his description of the party who allegedly broke into the Kitchens home. We find no merit in this argument.
It is a well-recognized rule that an appellant has the burden not only to show error but that the error was prejudicial. 1 Stansbury's N.C. Evidence, § 9 (Brandis rev. 1973). Defendant has failed to include in the record what the witness would have answered. "The exclusion of evidence,. . . cannot be held prejudicial when the record fails to show . . . what testimony would have been given by the witness." 1 Strong's N.C. Index 3d, Appeal and Error § 49.1, p. 313. See State v. Poolos, 241 N.C. 382, 85 S.E.2d 342 (1955).
Defendant contends in his third argument that the trial court erred by allowing in-court identifications of him by Vernon Burch and David Burch for the reason that the identifications were obtained in violation of his due process rights. This contention is without merit.
Defendant argues that the confrontation with the two witnesses at the scene of the crime immediately after he was apprehended was so impermissibly suggestive that it tainted their in-court identification.
"When the admissibility of in-court identification testimony is challenged on the ground that it is tainted by an out-of-court identification made under constitutionally impermissible circumstances, the trial judge must make findings as to the background facts to determine whether the proffered testimony meets the test of admissibility, when the facts so found are supported by competent evidence, they are conclusive on appellate courts." 4 Strong's N.C. Index 3d, Criminal Law § 66.20, p. 276. In order to successfully challenge an in-court identification as being tainted by an impermissibly suggestive out-of-court show-up, the defendant must show two things: (1) that the out-of-court identification was impermissibly suggestive, and (2) that it created a substantial likelihood of irreparable misidentification. 4 Strong's N.C. Index 3d, Criminal Law § 66.3, p. 247.
In the present case, the court conducted voir dire hearings and made findings of fact. The court concluded with respect to the identification made by each witness that his in-court identification was based upon his having seen the defendant on 22 June 1976, as he exited the Kitchens residence through the back door; that his identification was not tainted by an improper out-of-court procedure or suggestion; and that no improper out-of-court identification procedure was involved. We hold that the findings and conclusions were amply supported by the evidence.
*652 Defendant contends in his fourth argument that the trial court erred by sustaining the State's objections to his questions during cross-examination of the investigating officer. Here again the record fails to disclose what the answers to the questions would have been, therefore, defendant has failed to show prejudicial error. State v. Poolos, supra.
In his fifth argument, defendant contends that the trial court erred in denying his motion for a directed verdict of not guilty and a motion for a new trial. He argues that there is a fatal variance between the allegations in the indictment that the home broken into and entered was occupied by Elvin Kitchens and the proof in the case which was based on testimony of Linda Kitchens. We find no merit in this argument.
"The recommended practice is to identify the location of the subject premises by street address, rural road address, or some other clear description. However, an indictment under G.S. 14-54 is sufficient if the building allegedly broken and entered is described sufficiently to show that it is within the language of the statute and to identify it with reasonable particularity so that defendant may prepare his defense and plead his conviction or acquittal as a bar to further prosecution for the same offense." 2 Strong's N.C. Index 3d, Burglary and Unlawful Breakings, § 3.1, pp. 660-61. In a recent case, this court held that there was no fatal variance in an indictment for breaking and entering when the indictment described the building as being owned and operated by a corporation while evidence showed that it was owned and operated by a family. Although the indictment in that case was held insufficient on the larceny charge, it was sufficient for the breaking and entering charge because "the location of the subject premises [was] set forth with sufficient particularity to enable defendant to prepare his defense and to plead his conviction or acquittal as a bar to further prosecution for the same offense." State v. Vawter, 33 N.C.App. 131, 136, 234 S.E.2d 438, 441 (1977). See also State v. Sellers, 273 N.C. 641, 161 S.E.2d 15 (1968).
Applying these principles to the present case, we find that the indictment prepared pursuant to G.S. 14-54 charged that the defendant "unlawfully and wilfully did feloniously break and enter a building occupied by Elvin Kitchens used as a dwelling house located at Route 8, Box 138A, Homestead Road, Chapel Hill, N.C. with the intent to commit a felony therein, to wit: larceny." At the second trial, Linda Kitchens, the wife of Elvin Kitchens, gave the following testimony:"My name is Linda Kitchens. My husband is Elvin Kitchens. We have two children, ages nine and seven. We live in a trilevel brick and wood house on Homestead Road in Chapel Hill. It was our residence on the 22nd of June, 1976."
Based on the detailed description of the residence in the indictment and the testimony of Linda Kitchens, there was not a fatal variance in the allegation in the indictment and the proof at trial on the breaking and entering charge. The premises were described with sufficient particularity to enable the defendant to prepare his defense and to prevent a retrial on the same issues.
In his sixth argument, defendant contends that the trial court erred in denying his motion for the last jury argument because he asserts that he had not introduced evidence after the State had rested its case. We find no merit in this contention.
During the cross-examination of Deputy James Horton, defendant's counsel presented a photograph of defendant to the deputy for identification. After Deputy Horton identified the photograph, counsel made the following request:"Your Honor, at this time I move to introduce this into evidence in an effort to illustrate this witness' testimony as to the appearance of Wallace DeWitt Baker on the 22nd day of June, 1976."
The court allowed the admission of the photograph.
Rule 10, General Rules of Practice for the Superior and District Courts in North Carolina provides:*653 "In all cases, civil or criminal, if no evidence is introduced by the defendant, the right to open and close the argument to the jury shall belong to him. If a question arises as to whether the plaintiff or the defendant has the final argument to the jury, the court shall decide who is so entitled, and its decision shall be final."
In the present case, the trial court ruled that defendant lost his right to conclude the argument to the jury when he introduced the photograph of the defendant. See State v. Knight, 261 N.C. 17, 134 S.E.2d 101 (1964); Golding v. Taylor, 23 N.C.App. 171, 208 S.E.2d 422, cert. denied 286 N.C. 334, 210 S.E.2d 57 (1974).
In his seventh and final argument, defendant contends that the trial court erred in failing to summarize his evidence and thereby expressed an opinion in violation of G.S. 1-180. It suffices to say that we have carefully reviewed the record with respect to this contention and conclude that it too has no merit.
For the reasons stated, we conclude that the defendant received a fair trial, free from prejudicial error.
HEDRICK and MARTIN, JJ., concur.