State v. Cumber

Annotate this Case

185 S.E.2d 141 (1971)

280 N.C. 127

STATE of North Carolina v. Byron Carlton CUMBER.

No. 73.

Supreme Court of North Carolina.

December 15, 1971.

*143 Norman B. Smith and Michael K. Curtis (Smith & Patterson), Greensboro, for defendant appellant.

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

HUSKINS, Justice:

In establishing the North Carolina Court of Appeals, defining its jurisdiction, and providing a system of appeals, the General Assembly followed the basic principle that there should be only one trial on the merits and one appeal on the law, as of right, in every case. Consequently, double appeals as of rightfirst to the Court of Appeals and then to the Supreme Courtare authorized only in three instances specified by G.S. ยง 7A-30. Here, defendant seeks to qualify for a double appeal as of right on the first ground listed in that statute, i.e., involvement of a substantial question arising under the Constitution of the United States or of this State.

The record reveals that after the two school principals had identified the typewriter, adding machine, radios and other property owned by the schools, and after one of the principals had testified that he observed these items in defendant's station wagon on the night of 27 September 1970, the State tendered the various items in evidence. This tender evoked the following colloquy:

"MR. COBB [the solicitor]: I would like to introduce this evidence and these exhibits into evidence. "MR. NEWTON [defense counsel]: Objection. "COURT: On what grounds? "MR. NEWTON: Especially the last two at Bradley Creek; been no positive identification of those, just common items. "COURT: Overruled. "MR. COBB: I would like to introduce them at this time. "COURT: All right."

Defendant contends in this Court, as he did in the Court of Appeals, that the foregoing objection required the trial judge to conduct a voir dire to determine whether the officers obtained the stolen property by an illegal search of his station wagon in violation of the Fourth and Fourteenth Amendments to the Federal Constitution. The Court of Appeals rejected this contention and so do we.

*144 Defendant's objection was directed specifically to an alleged lack of proper identification of some of the stolen property. Had an allegedly illegal search and seizure been the basis of the objection, counsel would certainly have said so when answering the court's inquiry. The law does not require trial judges to be clairvoyant and omniscient. Neither does it permit defense counsel to play hide and seek with objections. The trial court, upon inquiry, is entitled to know the ground upon which an objection is interposed; and if counsel specifies one ground, he cannot be heard to urge a different ground on appeal. "When the objection is made the court may in all cases require the grounds of objection to be stated, and only those stated can be made the subjects of exception and review." State v. Wilkerson, 103 N.C. 337, 9 S.E. 415 (1889). As aptly stated in Gidney v. Moore, 86 N.C. 484 (1882), "although a general objection to obnoxious evidence will be sustained when no ground has been assigned, if upon any ground it ought to have been rejected, yet when the ground of the objection can be fairly inferred from the record as understood by the parties at the time, another cannot be assigned in the reviewing court. The ground of exception is to be deemed on appeal a part of the exception itself."

When these legal principles are applied to the record in this case, it is abundantly clear that the constitutional question upon which defendant relies to sustain his double appeal as of right was not raised in the trial court. The trial judge had no occasion to conduct a voir dire on the question of search and seizure, and his failure to do so was not error. That belated constitutional question was injected for the first time on appeal to the Court of Appeals and therefore came too late. It was not properly before that court and is not now properly before us. "The attempt to smuggle in new questions is not approved. Irvine v. California, 347 U.S. 128, 129, 74 S. Ct. 381, 98 L. Ed. 561. 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. 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 (1959). Accord, State v. Colson, 274 N.C. 295, 163 S.E.2d 376 (1968).

Having failed to show involvement of a substantial constitutional question which was raised and passed upon in the trial court and properly brought forward for consideration by the Court of Appeals, no legal basis exists for this appeal to the Supreme Court, and it must therefore be dismissed.

Appeal dismissed.