{
  "id": 8555059,
  "name": "STATE OF NORTH CAROLINA v. WILLIE LEE NEELY",
  "name_abbreviation": "State v. Neely",
  "decision_date": "1975-08-06",
  "docket_number": "No. 7527SC307",
  "first_page": "707",
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  "casebody": {
    "judges": [
      "Judges Parker and Arnold concur."
    ],
    "parties": [
      "STATE OF NORTH CAROLINA v. WILLIE LEE NEELY"
    ],
    "opinions": [
      {
        "text": "BROCK, Chief Judge.\nThe 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 audio-graph 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\u2019s witness Andrew Strain, and defendant. The entire testimony of the State\u2019s witness P. E. Purser also is missing from the stenographic transcript prepared.\nDefendant 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.\nThere is a presumption of regularity in a trial. \u201cIn 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.\u201d State v. Sanders, 280 N.C. 67, 72, 185 S.E. 2d 137 (1971).\nIn an earlier appeal of this case, we stated that when there is an incomplete transcript, \u201c[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.\u201d State v. Neely, 21 N.C. App. 439, 440-441, 204 S.E. 2d 531 (1971) (Emphasis added). Defendant contends that there was error in the \u201cfailure of the trial court to conduct a proper voir dire and to apply constitutional standards. . . . \u201d 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.\nDefendant 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\u2019s or Mrs. Dow\u2019s 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.\nIn 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.\nThe three exceptions which constitute this assignment of error are as follows:\nQ And then, also, an obtaining some money by false pretenses from Roncum Moore. He was the one that got on you and got you back in March, wasn\u2019t he ?\nObjection \u2014 Overruled.\nException #10.\n\u201cQ Your bondsman didn\u2019t get in touch with you?\nA Through my father.\nQ Through your father, but he had been looking for you, hadn\u2019t he? For failing to appear in District Court February 19, 1972, on another case?\nA No, he ain\u2019t looking for me.\nQ And that was the reason, in fact, you failed to appear on February 18th of 1972, wasn\u2019t it?\nOverruled.\nException #11.\u201d\n* * *\n\u201cQ You went to work after you got back and the bondsman got after you?\nA Right.\nObjection \u2014 Overruled.\nException #12.\n\u201cA I worked at Smyre Mills until I was picked up on a capias. I think it\u2019s about two months.\u201d\nIn 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. \u201c . . .Williams did not change the rule that for purposes of impeachment a witness may be asked whether he has committed specific criminal acts_\u201d State v. Gainey, 280 N.C. 366, 373, 185 S.E. 2d 874 (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.\nIn 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 \u201crecords would not be ultimately dis-positive, and that (the) calls might have been made by another.\u201d The record discloses that defendant\u2019s trial attorney requested six subpoenas \u201cfor 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, Ran-dleman, North Carolina.\u201d\nGeneral 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\u2019s 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.\nWe have carefully considered defendant\u2019s remaining argument and find that no prejudicial error was committed.\nWe note, however, that the judgment imposed by the judge confines the defendant \u201cin the State Prison in Raleigh for a period not to exceed twenty-five years.\u201d This is an improper sentence. In State v. Black, 283 N.C. 344, 353, 196 S.E. 2d 225 (1973), the Court stated:\n\u201c[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.\u201d 283 N.C. at 353, quoting 21 Am. Jur. 2d Criminal Law \u00a7 540.\nAlthough 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.\nRemanded for judgment.\nJudges Parker and Arnold concur.",
        "type": "majority",
        "author": "BROCK, Chief Judge."
      }
    ],
    "attorneys": [
      "Attorney General Edmisten, by Associate Attorney Sandra M. King, for the State.",
      "Chambers, Stein, Ferguson & Becton, by James E. Ferguson II, for the defendant-appellant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. WILLIE LEE NEELY\nNo. 7527SC307\n(Filed 6 August 1975)\n1. Criminal Law \u00a7 154 \u2014 incomplete trial transcript \u2014 setting out errors in case on appeal\nIn the absence of a complete stenographic record of the trial due to the death of the court reporter before she transcribed the proceedings, the burden was upon defendant to set forth in the case on appeal the errors he contended were committed at the trial, and defendant failed to meet that burden where he contended that the trial court did not conduct a proper voir dire or apply constitutional standards, that the police may have used impermissibly suggestive identification procedures, and that errors in the admission and exclusion of evidence may have been committed.\n2. Criminal Law \u00a7 86\u2014 cross-examination of defendant \u2014 evidence of misconduct proper\nThe defendant was not prejudiced where the district attorney asked him questions designed to show specific acts of misconduct that defendant had committed, not his prior arrests and indictments.\n3. Criminal Law \u00a7 80 \u2014 telephone company records \u2014 denial of subpoena proper\nThe trial court did not err in denying defendant\u2019s request for subpoenas to the telephone company for records of all long distance calls over a three month period to two residences, since the request was unreasonable and of dubious relevance.\n4. Criminal Law \u00a7 139 \u2014 failure to sentence for minimum term \u2014 sentence improper\nSentence imposed by the trial court which confined the defendant \u201cin the State Prison in Raleigh for a period not to exceed twenty-five years\u201d was improper since it did not specify a minimum term of imprisonment.\nOn certiorari to review a trial before McLean, Judge. Judgment entered 21 November 1972 in Superior Court, Gaston County. Heard in the Court of Appeals 17 June 1975.\nDefendant was convicted of armed robbery, and a sentence \u201cfor a period not to exceed twenty-five years\u201d was imposed.\nOn 15 February 1972 Barbara Dow and Dorothy Seward were working at the Dow Grocery Store in Gastonia. The defendant entered the store, threatened the two women with a gun, and demanded money. Mrs. Dow gave him $62.00, and defendant left, fleeing on foot. Mrs. Seward subsequently spent a considerable amount of time trying to locate the person who had robbed the store. Some four months after the robbery, she recognized the defendant in a courtroom. She left the courtroom and advised a police officer that the man who had robbed the store was in the courtroom. Defendant was taken into custody and charged with armed robbery. Defendant was also identified by Mrs. Dow at his preliminary hearing.\nThe defendant offered evidence that he was living in Falls Church, Virginia, with his cousin at the time of the robbery.\nAttorney General Edmisten, by Associate Attorney Sandra M. King, for the State.\nChambers, Stein, Ferguson & Becton, by James E. Ferguson II, for the defendant-appellant."
  },
  "file_name": "0707-01",
  "first_page_order": 735,
  "last_page_order": 740
}
