State v. Neely , 26 N.C. App. 707 ( 1975 )

217 S.E.2d 94 (1975) 26 N.C. App. 707

STATE of North Carolina
v.
Willie Lee NEELY.

No. 7527SC307.

Court of Appeals of North Carolina.

August 6, 1975. Certiorari Denied and Appeal Dismissed November 5, 1975.

Atty. Gen. Rufus L. Edmisten by Associate Atty. Sandra M. King, Raleigh, for the State.

Chambers, Stein, Ferguson & Becton by James E. Ferguson, II, Charlotte, for the defendant-appellant.

Certiorari Denied and Appeal Dismissed by Supreme Court November 5, 1975.

BROCK, Chief Judge.

The main assignment of error presented in this appeal is directed to the lack of a complete stenographic transcript of the trial proceedings. The court reporter at the trial died prior to the transcription of the trial proceedings. The other official court reporter for Gaston County supervised the preparation of the transcript of the trial. However, a complete transcript could not be prepared because of difficulties in interpreting the audiograph recordings and because of the method by which notes of the trial were taken. The result is that the stenographic transcript prepared does not contain the direct examination of Mrs. Seward, the State's witness Andrew Strain, and defendant. The entire testimony of the State's witness P. E. Purser also is missing from the stenographic transcript prepared.

Defendant asserts that he is entitled to a new trial because the absence of a complete transcript abridges his right to appeal. Specifically, defendant argues that (1) there may have been errors in the admission and exclusion of certain testimony, and (2) improperly suggestive identification procedures may have been used by the police.

There is a presumption of regularity in a trial. "In order to overcome that presumption it is necessary for matters constituting material and reversible error to be made to appear in the case on appeal." State v. Sanders, 280 N.C. 67, 72, 185 S.E.2d 137, 140 (1971).

In an earlier appeal of this case, we stated that when there is an incomplete transcript, "[i]n lieu of the usual narrative statement of evidence, defendant should set out the facts upon which his appeal is based, any defects appearing on the face of the record, and the errors he contends were committed at the trial." State v. Neely, 21 N.C.App. 439, 440-441, 204 S.E.2d 531, 532 (1971) (Emphasis added). Defendant contends that there was error in the "failure of the trial court to conduct a proper voir dire and to apply constitutional standards.. . ." The record on appeal does not show the extent of the voir dire or the findings of the trial judge, and defendant does not point out in what respect the voir dire was improper or in what way there was a failure to apply constitutional standards. We do not find this contention specific enough to justify a determination that defendant is prejudiced by the incomplete transcript.

Defendant makes no showing that errors were committed. He argues only that the police may have used impermissibly suggestive identification procedures and that errors in the admission and exclusion of evidence may have been committed. This is not enough to entitle him to a new trial. The record does not show that any incompetent evidence was given by the witnesses Seward, Strain, or Purser, or by defendant, and it does not establish that either Mrs. Seward's or Mrs. Dow's identification of defendant was improperly obtained. Absent some specific, affirmative showing by the defendant that error was committed, we will uphold the conviction because of the presumption of regularity in a trial. See also State v. Teat, 24 N.C.App. 621, 211 S.E.2d 816 (1975). This assignment of error is overruled.

In his next assignment of error defendant contends that questions asked him by the district attorney were prejudicial because they tended to reveal that he had been indicted and arrested for obtaining money by false pretenses. In State v. Williams, 279 N.C. 663, 185 S.E.2d 174 (1971), the Court held that it was improper to impeach a witness by asking him about prior arrests and indictments.

The three exceptions which constitute this assignment of error are as follows:

"Q And then, also, an obtaining some by false pretenses from Roncum Moore. He was the one that got on you and got you back in March, wasn't he?

Objection—Overruled.

EXCEPTION # 10.

"Q Your bondsman didn't get in touch with you?

Through my father.

Q Through your father, but he had been looking for you, hadn't he? For failing to appear in District Court February 19, 1972, on another case?

A No, he ain't looking for me.

Q And that was the reason, in fact, you failed to appear on February 18th of 1972, wasn't it?

Overruled. EXCEPTION # 11."

* * * * * *

"Q You went to work after you got back and the bondsman got after you?

A Right.

Objection—Overruled. EXCEPTION # 12.

"A I worked at Smyre Mills until I was picked up on a capias. I think it's about two months."

In our opinion the questions propounded by the district attorney did not prejudice defendant. They were designed to show specific acts of misconduct that the defendant had committed, not his prior arrests and indictments." . . .Williams did not change the rule that for purposes of impeachment a witness may be asked whether he has committed specific criminal acts . . .." State v. Gainey, 280 N.C. 366, 373, 185 S.E.2d 874, 879 (1971). The failure of defendant to appear in court for his trial or preliminary hearing is an act of misconduct about which he could be properly questioned. Additionally, even though the objections constituting exceptions # 10 and # 11 were overruled, no answer was elicited from the defendant. This is, practically speaking, the equivalent of having the objection sustained. Defendant could not have been prejudiced. As to exception # 12, suffice to say we are of the opinion that it does not constitute prejudicial error. This assignment of error is overruled.

In his third assignment of error the defendant objects to the denial of his request for subpoenas to the Southern Bell Telephone Company for the production of certain telephone records. In his argument defendant asserts that the failure to grant the subpoenas was prejudicial in spite of the fact that, as defendant admits, the "records would not be ultimately dispositive, and that (the) calls might have been made by another." The record discloses that defendant's trial attorney requested six subpoenas "for all long distance telephone calls for the months of January, February and March, 1972, to the residence of Christie Gilmore, 537 Henderson Street, Mountain View Section of Gastonia, and Mrs. Hazel Reid, 2814 Booker Street, Randleman, North Carolina."

General Statute § 1A-1, Rule 45(c)(1) provides that the judge may quash or modify the subpoena if it is unreasonable or oppressive. We are of the opinion that the request for records of calls placed over a three-month period to certain persons was unreasonable and of dubious relevance when it is considered that the records could show only, at most, that someone made calls, not that defendant made them. The request was not even limited to records of calls from Falls Church, Virginia, to the residences of Gilmore and Reid. Defendant contended he was in Falls Church, Virginia, and that he made calls from there. Records of calls from any other place to the residences of Gilmore and Reid clearly would have been irrelevant to defendant's defense, and an order to produce them would have been unreasonable. We note that neither Gilmore nor Reid was called as a witness by defendant to corroborate his contention that he made calls to them. This assignment of error is overruled.

We have carefully considered defendant's remaining argument and find that no prejudicial error was committed.

We note, however, that the judgment imposed by the judge confines the defendant "in the State Prison in Raleigh for a period not to exceed twenty-five years." This is an improper sentence. In State v. Black, 283 N.C. 344, 353, 196 S.E.2d 225 (1973), the Court stated:

"[U]nder an indeterminate sentence law, a sentence cannot be for a definite term of imprisonment. It must be for not less than a specified minimum period and not more than a specified maximum period. There must be a difference between the periods, and a sentence fixing identical minimum and maximum terms of imprisonment is invalid." 283 N.C. at 353, 196 S.E.2d at 231, quoting 21 Am.Jur.2d Criminal Law § 540.

Although we find no error in the trial, the case must be remanded to the Superior Court, Gaston County, for the entry of a proper judgment.

Remanded for judgment.

PARKER and ARNOLD, JJ., concur.