{
  "id": 8527052,
  "name": "STATE OF NORTH CAROLINA v. RAYMOND CANNON MARSHALL",
  "name_abbreviation": "State v. Marshall",
  "decision_date": "1988-12-30",
  "docket_number": "No. 8822SC231",
  "first_page": "398",
  "last_page": "413",
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  "court": {
    "name_abbreviation": "N.C. Ct. App.",
    "id": 14983,
    "name": "North Carolina Court of Appeals"
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    "id": 5,
    "name_long": "North Carolina",
    "name": "N.C."
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      "cite": "355 S.E. 2d 498",
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          "page": "502",
          "parenthetical": "a motion for appropriate relief is within the discretion of the trial court and will not be disturbed absent a showing of abuse of discretion"
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      "cite": "279 S.E. 2d 788",
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          "page": "803",
          "parenthetical": "in considering motion to dismiss, the question is whether there is substantial evidence of each essential element of the offense"
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      "cite": "303 N.C. 321",
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          "page": "344",
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      "cite": "346 S.E. 2d 139",
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      "year": 1986,
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          "page": "598"
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          "page": "174-75",
          "parenthetical": "admission of defendant's confession at trial indicates the judge concluded it was voluntarily made and failure to formally rule was not fatal"
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      "cite": "339 S.E. 2d 806",
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        {
          "page": "808",
          "parenthetical": "admission of victim's in-court identification of defendant is not reversible error because court failed to make formal ruling denying motion to suppress where decision was clear from record"
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      "cite": "79 N.C. App. 599",
      "category": "reporters:state",
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          "page": "601",
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      "cite": "315 S.E. 2d 331",
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      "year": 1984,
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        {
          "page": "333",
          "parenthetical": "defendant's statement not rendered involuntary because it may have been made with the hope that lower bond would be set"
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    {
      "cite": "68 N.C. App. 430",
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      "cite": "83 N.C. 619",
      "category": "reporters:state",
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        11278919
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          "page": "623-24"
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      "cite": "12 N.C. (1 Dev.) 259",
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        {
          "page": "260"
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        {
          "page": "308"
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    {
      "cite": "293 S.E. 2d 78",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
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        {
          "page": "81",
          "parenthetical": "quoting State v. Roberts, 12 N.C. (1 Dev.) 259, 260 (1826)"
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          "page": "82",
          "parenthetical": "emphasis in original"
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        {
          "page": "82"
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        {
          "page": "82",
          "parenthetical": "emphasis in original"
        },
        {
          "page": "82"
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    {
      "cite": "306 N.C. 302",
      "category": "reporters:state",
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        8568322
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        {
          "page": "307",
          "parenthetical": "quoting State v. Roberts, 12 N.C. (1 Dev.) 259, 260 (1826)"
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    {
      "cite": "230 S.E. 2d 506",
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      "weight": 2,
      "year": 1976,
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        {
          "page": "512",
          "parenthetical": "emphasis in original"
        },
        {
          "page": "512",
          "parenthetical": "emphasis in original"
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    {
      "cite": "291 N.C. 399",
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        8558351
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          "page": "408",
          "parenthetical": "emphasis in original"
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    {
      "cite": "334 S.E. 2d 53",
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      "year": 1985,
      "pin_cites": [
        {
          "page": "59"
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      "opinion_index": 0
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    {
      "cite": "314 N.C. 359",
      "category": "reporters:state",
      "reporter": "N.C.",
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      "year": 1985,
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          "page": "368"
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    {
      "cite": "384 U.S. 436",
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      "reporter": "U.S.",
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    {
      "cite": "365 S.E. 2d 579",
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      "year": 1988,
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        {
          "page": "585",
          "parenthetical": "the State must meet its burden by a preponderance of the evidence"
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    {
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        {
          "page": "636"
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          "page": "636",
          "parenthetical": "confession must be voluntarily made, after defendant has been informed of his rights, and has voluntarily waived his rights"
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    {
      "cite": "307 N.C. 552",
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      "cite": "336 S.E. 2d 857",
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      "year": 1985,
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        {
          "page": "859",
          "parenthetical": "where defendant fails to set forth adequate legal grounds, trial court is vested with discretion of whether to summarily deny the motion"
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    {
      "cite": "78 N.C. App. 235",
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        {
          "page": "237",
          "parenthetical": "where defendant fails to set forth adequate legal grounds, trial court is vested with discretion of whether to summarily deny the motion"
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    {
      "cite": "286 S.E. 2d 535",
      "category": "reporters:state_regional",
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      "year": 1982,
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        {
          "page": "539",
          "parenthetical": "defendant must \"specifically state to the court before voir dire . . . the basis for his motion to suppress or for his objection to the admission of the evidence\""
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    {
      "cite": "305 N.C. 106",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        8566171
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      "year": 1982,
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        {
          "page": "112",
          "parenthetical": "defendant must \"specifically state to the court before voir dire . . . the basis for his motion to suppress or for his objection to the admission of the evidence\""
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    {
      "cite": "268 S.E. 2d 510",
      "category": "reporters:state_regional",
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      "pin_cites": [
        {
          "page": "514"
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        {
          "page": "624-25"
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        {
          "page": "513-14"
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        {
          "page": "514"
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    {
      "cite": "300 N.C. 621",
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        8564183
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          "page": "625"
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        {
          "page": "625"
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    {
      "cite": "364 S.E. 2d 118",
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        {
          "page": "120"
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    {
      "cite": "321 N.C. 574",
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        2569213
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          "page": "579"
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    {
      "cite": "173 S.E. 2d 281",
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        {
          "page": "285"
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    {
      "cite": "276 N.C. 487",
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          "page": "493"
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    {
      "cite": "281 S.E. 2d 198",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1981,
      "pin_cites": [
        {
          "page": "207",
          "parenthetical": "quoting Board of Education v. Lamm, 276 N.C. 487, 493, 173 S.E. 2d 281, 285 (1970)"
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      ],
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    {
      "cite": "53 N.C. App. 373",
      "category": "reporters:state",
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        8521385
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      "year": 1981,
      "pin_cites": [
        {
          "page": "387",
          "parenthetical": "quoting Board of Education v. Lamm, 276 N.C. 487, 493, 173 S.E. 2d 281, 285 (1970)"
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    {
      "cite": "138 S.E. 2d 541",
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      "reporter": "S.E.2d",
      "year": 1964,
      "pin_cites": [
        {
          "page": "546",
          "parenthetical": "admission of expert testimony which supports a particular causal relationship will be held erroneous where it is merely speculative"
        }
      ],
      "opinion_index": 0
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    {
      "cite": "262 N.C. 663",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        8570996
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      "pin_cites": [
        {
          "page": "669",
          "parenthetical": "admission of expert testimony which supports a particular causal relationship will be held erroneous where it is merely speculative"
        }
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    {
      "cite": "279 S.E. 2d 353",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1981,
      "pin_cites": [
        {
          "parenthetical": "doctor allowed to express an opinion that \"woman could be raped without there being evidence of trauma about the vulva or vaginal areas\" as the doctor had \"a more than adequate understanding of the medical results of incidents such as rape\""
        }
      ],
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    {
      "cite": "302 N.C. 399",
      "category": "reporters:state",
      "reporter": "N.C.",
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        8566566,
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        {
          "parenthetical": "doctor allowed to express an opinion that \"woman could be raped without there being evidence of trauma about the vulva or vaginal areas\" as the doctor had \"a more than adequate understanding of the medical results of incidents such as rape\""
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      "cite": "272 S.E. 2d 785",
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      "reporter": "S.E.2d",
      "year": 1980,
      "pin_cites": [
        {
          "page": "787"
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    {
      "cite": "50 N.C. App. 173",
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      "reporter": "N.C. App.",
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          "page": "175-76"
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      "cite": "284 S.E. 2d 509",
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      "year": 1981,
      "pin_cites": [
        {
          "page": "512",
          "parenthetical": "expert allowed to testify that an \"examination revealed evidence of traumatic and force-able penetration consistent with an alleged rape\""
        }
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    {
      "cite": "304 N.C. 485",
      "category": "reporters:state",
      "reporter": "N.C.",
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      "year": 1981,
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        {
          "page": "489",
          "parenthetical": "expert allowed to testify that an \"examination revealed evidence of traumatic and force-able penetration consistent with an alleged rape\""
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      "cite": "340 S.E. 2d 309",
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      "year": 1986,
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        {
          "page": "320-21",
          "parenthetical": "expert precluded from testifying that injuries were proximate cause of death"
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      "opinion_index": 0
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    {
      "cite": "315 N.C. 599",
      "category": "reporters:state",
      "reporter": "N.C.",
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          "page": "617",
          "parenthetical": "expert precluded from testifying that injuries were proximate cause of death"
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    {
      "cite": "322 S.E. 2d 370",
      "category": "reporters:state_regional",
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          "page": "376"
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    {
      "cite": "312 N.C. 129",
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      "reporter": "S.E.2d",
      "year": 1988,
      "pin_cites": [
        {
          "parenthetical": "quoting State v. Bullard, 312 N.C. 129, 139, 322 S.E. 2d 370, 376 (1984)"
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    {
      "cite": "92 N.C. App. 50",
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          "page": "56",
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    "judges": [
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    "parties": [
      "STATE OF NORTH CAROLINA v. RAYMOND CANNON MARSHALL"
    ],
    "opinions": [
      {
        "text": "GREENE, Judge.\nIn this criminal action defendant was indicted for the offenses of first-degree rape, N.C.G.S. Sec. 14-27.2 (1986), first-degree sexual offense, N.C.G.S. Sec. 14-27.4 (1986), financial transaction card theft, N.C.G.S. Sec. 14-113.9(a)(1) (1986) and felonious larceny, N.C.G.S. Sec. 14-72(b)(1) (1986).\nThe defendant pled not guilty and was found guilty by a jury on all charges. The defendant was sentenced to two life sentences plus an additional ten-year sentence, each sentence to run at the expiration of the other. The defendant appeals.\nThe issues to be determined are whether the trial court erred in I) allowing the State to amend the rape indictments; II) allowing a witness to testify the defendant had previously been in prison for rape; III) allowing evidence of a saliva sample and blood sample from the victim; IV) allowing an expert to give his opinion as to how the abrasions suffered by the victim could have been caused; V) failing to declare a mistrial; VI) admitting into evidence the defendant\u2019s written and oral statements; VII) denying the defendant\u2019s motion to dismiss all charges; and VIII) denying the defendant\u2019s motion for appropriate relief.\nI\nThe defendant first argues the trial court erred in allowing the State to amend the rape indictment by substituting the name of \u201cRegina Lapish Foster\u201d for the name of \u201cRegina Lapish.\u201d\nN.C.G.S. Sec. 15A-923(e) (1988) provides that \u201c[a] bill of indictment may not be amended.\u201d An amendment has been defined \u201cto be any change in the indictment which would substantially alter the charge set forth in the indictment.\u201d State v. Price, 310 N.C. 596, 598, 313 S.E. 2d 556, 558 (1984). Here the defendant was indicted for four different criminal violations. Three of these indictments allege the offense was committed against the person of \u201cRegina Lapish Foster.\u201d The indictment for rape used the name \u201cRegina Lapish.\u201d It is clear that the rape indictment inadvertently omitted the last name of Regina Lapish Foster. At no time was defendant misled or surprised as to the nature of the charges against him. Accordingly, the addition of the alleged victim\u2019s last name to one of the four indictments was not an amendment as it did not \u201csubstantially alter the charge set forth in the indictment.\u201d Id.\nII\nThe defendant next contends that the unresponsive answer of a witness was error and highly prejudicial. The unresponsive answer was:\n. . . one day when I was at Gail\u2019s house, Stella was there. They were only there a few minutes after I got there, and there was a big, black boy with her that was her son. When they left \u2014 and this is hearsay or whatever \u2014 Gail told me that that was her son and that he had been in prison for rape before.\nThis testimony was given in response to a question to the witness as to whether she had ever \u201cseen him at Gail Philbeck\u2019s house before.\u201d The reference in the answer to \u201che had been in prison for rape before\u201d was clearly in reference to the defendant.\nHowever, the defendant did not object or move to strike the answer. Assuming the answer of the witness to be inadmissible and prejudicial, the defendant\u2019s \u201c[fjailure to make an appropriate and timely motion or objection constitutes a waiver of the right to assert the alleged error upon appeal.\u201d N.C.G.S. Sec. 15A-1446(b) (1988); N.C.G.S. Sec. 8C-1, Rule 103(a)(1) (1988) (where evidence admitted, error cannot be asserted upon appeal unless there is timely objection or motion to strike); State v. McDougall, 308 N.C. 1, 9, 301 S.E. 2d 308, 314, cert. denied, 464 U.S. 865, 104 S.Ct. 197, 78 L.Ed. 2d 173 (1983); see 1 Brandis on North Carolina Evidence Sec. 27, p. 133 (3d ed. 1988) (where only the answer is objectionable, an objection should be treated as a motion to strike). Here the defendant neither objected or moved to strike the answer and therefore has waived his right to assert any error on appeal.\nThe defendant nonetheless argues that a motion to strike or an objection to the answer and a subsequent request of the trial judge to instruct the jury to disregard the answer of the witness \u201cwould have only harmed the defendant\u2019s chance at a fair trial . . . by inflaming [the jurors\u2019] minds to a greater degree.\u201d Our courts have long rejected this argument and recognize that if the jury is properly instructed not to consider the answer of the witness, it is to be assumed the \u201cjury heeded the caution.\u201d Apel v. Coach Co., 267 N.C. 25, 31, 147 S.E. 2d 566, 570 (1966); State v. Franks, 300 N.C. 1, 13, 265 S.E. 2d 177, 184 (1980) (no prejudicial error where jury actually heard inadmissible answer, provided the jurors were properly instructed to disregard the answer).\nHH HH HH\nThe defendant contends the trial court erred in allowing into evidence saliva and blood samples from the victim Regina Foster. The defendant contends the State failed to establish a chain of custody showing that the blood and saliva were in fact obtained from Regina Foster. However, as these items were later introduced into evidence without objection, the defendant loses the benefit of his earlier objection. State v. Corbett, 307 N.C. 169, 179, 297 S.E. 2d 553, 560 (1982).\nIV\nDefendant next argues that the testimony of Dr. Randall Storm was \u201chighly speculative and prejudicial to the defendant.\u201d Dr. Storm was asked to tell the members of the jury about the \u201cabrasion over the urethra\u201d of the victim Regina Foster. The doctor answered as follows:\nIt was a sore area, a reddened area, one which is conceivably from vigorour [sic] intercourse, though not necessarily traumatic intercourse. It would be conceivable that it would happen in intercourse that was performed at knife-point or under duress.\nThe defendant timely objected to the answer of the doctor, which objection was overruled by the trial court.\nExpert testimony is admissible if it will \u201c \u2018assist the jury to draw inferences from the facts because the expert is better qualified\u2019 than the jury to form an opinion on the particular subject.\u201d State v. Fletcher, 92 N.C. App. 50, 56, 373 S.E. 2d 681, \u2014 (1988) (quoting State v. Bullard, 312 N.C. 129, 139, 322 S.E. 2d 370, 376 (1984)); see N.C.G.S. Sec. 8C-1, Rule 702 (1986) (expert testimony admissible if it will \u201cassist the trier of fact to understand the evidence or to determine a fact in issue\u201d). Furthermore, experts are permitted to give their opinion even though it embraces an ultimate issue to be decided by the trier of fact. N.C.G.S. Sec. 8C-1, Rule 704 (1986). Experts, however, are precluded from stating that a legal standard has been met. State v. Ledford, 315 N.C. 599, 617, 340 S.E. 2d 309, 320-21 (1986) (expert precluded from testifying that injuries were proximate cause of death).\nHere the expert was not any better qualified than the jury to have an opinion on the subject whether intercourse \u201cwas performed at knife-point or under duress.\u201d Cf. State v. Galloway, 304 N.C. 485, 489, 284 S.E. 2d 509, 512 (1981) (expert allowed to testify that an \u201cexamination revealed evidence of traumatic and force-able penetration consistent with an alleged rape\u201d); State v. Allen, 50 N.C. App. 173, 175-76, 272 S.E. 2d 785, 787 (1980), appeal dismissed, 302 N.C. 399, 279 S.E. 2d 353 (1981) (doctor allowed to express an opinion that \u201cwoman could be raped without there being evidence of trauma about the vulva or vaginal areas\u201d as the doctor had \u201ca more than adequate understanding of the medical results of incidents such as rape\u201d). Although the expert was qualified to testify about the physical characteristics of the urethra and surrounding areas, he was \u201cnot competent to testify as to a causal relation which rests upon mere speculation.\u201d 6 Strong\u2019s N.C. Index 3d, Evidence Sec. 50.2, p. 146 (1977); see Lockwood v. McCaskill, 262 N.C. 663, 669, 138 S.E. 2d 541, 546 (1964) (admission of expert testimony which supports a particular causal relationship will be held erroneous where it is merely speculative). \u201c \u2018The admission of incompetent testimony will not be held prejudicial when its import is abundantly established by other competent testimony, or the testimony is merely cumulative or corroborative.\u2019 \u201d In re Peirce, 53 N.C. App. 373, 387, 281 S.E. 2d 198, 207 (1981) (quoting Board of Education v. Lamm, 276 N.C. 487, 493, 173 S.E. 2d 281, 285 (1970)). Here, as the State presented a considerable amount of other evidence regarding the alleged rape being performed at knife-point, we conclude the admission of this testimony was not prejudicial.\nV\nThe defendant argues the trial court erred in failing to declare a mistrial on the grounds the jury was tainted by testimony overheard by a juror during a voir dire hearing. The trial court, after determining that the door to the jury room had been open during a portion of the voir dire, questioned each juror individually. The record reflects that only one juror heard anything said at the voir dire hearing and that juror only heard \u201csomeone asked, I guess the witness, if the Defendant would have been arrested at that time.\u201d As there was evidence presented to the jury during the course of the trial, and without objection, that defendant had been placed under arrest, there was no \u201csubstantial and irreparable prejudice to the defendant\u2019s case.\u201d N.C.G.S. Sec. 15A-1061 (1988) (judge may declare a mistrial if there is error, legal defect or conduct \u201cresulting in substantial and irreparable prejudice to the defendant\u2019s case\u201d). We agree therefore with the trial judge who in denying the defendant\u2019s motion for a mistrial determined that the fairness and impartiality of the jury had not been compromised when only one juror heard a question asked as to whether the defendant had been arrested. The decision of whether to grant a motion for mistrial rests within the sound discretion of the trial judge and here we find no abuse of that discretion. State v. Boyd, 321 N.C. 574, 579, 364 S.E. 2d 118, 120 (1988).\nr \u2014 < >\nDefendant next contends the trial court erred in admitting into evidence the defendant\u2019s written and oral statements given on 17 May 1987 and 18 May 1987 in which he made various admissions relating to the charges against him. The State argues the defendant has waived any right to contest the admissibility of defendant\u2019s statements, as the defendant has failed in his burden of showing that he complied with the timeliness requirements of N.C.G.S. Sec. 15A-975 (1988) (setting forth the situations in which a motion to suppress evidence may be made for first time during trial) and the procedural requirements of N.C.G.S. Sec. 15A-977 (1988) (setting forth procedure for filing of motion to suppress).\nA\nWe first address whether defendant has met his burden of showing he complied with the timeliness requirements. The motion to suppress must be timely filed in accordance with N.C.G.S. Sec. 15A-975. Generally, a motion to suppress must be made before trial. N.C.G.S. Sec. 15A-975(a). A defendant may move to suppress evidence at trial only \u201cif he demonstrates that he did not have a reasonable opportunity to make the motion before trial; or that the State did not give him sufficient advance notice (twenty working days) of its intention to use certain types of evidence; or that additional facts have been discovered after a pretrial determination and denial of the motion which could not have been discovered with reasonable diligence before determination of the motion.\u201d State v. Satterfield, 300 N.C. 621, 625, 268 S.E. 2d 510, 514 (1980); N.C.G.S. Sec. 15A-975(b). The burden of establishing that the motion to suppress is timely filed is on the defendant. Id. at 624-25, 268 S.E. 2d at 513-14. Here the defendant\u2019s motion to suppress was first made at the trial and was in the form of a general objection to a question asked of a witness as to what if anything the defendant told the witness. Defendant met his burden of establishing the timeliness of his motion to suppress by showing that he had not been notified of the State\u2019s intention to use the statements of defendant at trial within twenty working days of trial. Accordingly, we conclude defendant complied with the timeliness requirements of N.C.G.S. Sec. 15A-975.\nB\nA \u201cmotion to suppress made at trial, whether oral or written, should state the legal ground upon which it is made and should be accompanied by an affidavit containing facts supporting the motion.\u201d Satterfield, 300 N.C. at 625, 268 S.E. 2d at 514; see also State v. Hunter, 305 N.C. 106, 112, 286 S.E. 2d 535, 539 (1982) (defendant must \u201cspecifically state to the court before voir dire . . . the basis for his motion to suppress or for his objection to the admission of the evidence\u201d). The trial judge here had the authority pursuant to N.C.G.S. Sec. 15A-977(c)(l) to summarily deny the motion to suppress because defendant did not give a legal basis for his motion to suppress. N.C.G.S. Sec. 15A-977(c)(l) (1988) (judge may summarily deny the motion to suppress evidence if motion does not contain legal basis for motion); State v. Harvey, 78 N.C. App. 235, 237, 336 S.E. 2d 857, 859 (1985) (where defendant fails to set forth adequate legal grounds, trial court is vested with discretion of whether to summarily deny the motion). However, the trial judge exercised his discretion not to summarily deny the motion and immedi\u00e1tely proceeded to conduct a voir dire relating to the admissibility of the defendant\u2019s statements and subsequently entered written findings and conclusions. N.C.G.S. Sec. 15A-977(d)-(f). Thus, we conclude defendant has not waived his right to contest the admissibility of statements by him for failure to comply with the procedural requirements of N.C.G.S. Sec. 15A-977.\nc\nOnce it is determined the defendant\u2019s motion is not barred by N.C.G.S. Sec. 15A-975 or it is not summarily denied pursuant to N.C.G.S. Sec. 15A-977(c)(1), a voir dire hearing must be held pursuant to N.C.G.S. Sec. 15A-977(d). As stated above, the trial judge here conducted a voir dire hearing. The State has the burden at the voir dire hearing of showing by a preponderance of the evidence \u201cthe admissibility of the challenged evidence; and, in the case of a confession, the State must affirmatively show (1) the confession was voluntarily made, (2) the defendant was fully informed of his rights and (3) the defendant voluntarily waived his rights. State v. Cheek, 307 N.C. 552, 557, 299 S.E. 2d 633, 636 (1983); State v. James, 321 N.C. 676, 685, 365 S.E. 2d 579, 585 (1988) (the State must meet its burden by a preponderance of the evidence).\nAt the voir dire hearing conducted in this case, the State\u2019s evidence tended to show the defendant gave three statements to the detective, two oral and one written. On 17 May 1987, the defendant first gave an oral statement and ten minutes later executed a written statement. The 17 May statements related to the alleged rape and sexual assaults. On 18 May 1987, the defendant gave an oral statement. The 18 May statement related to the alleged credit card theft and larceny. The defendant was advised on all three occasions either orally or in writing of his constitutional rights as mandated by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed. 2d 694 (1966). The defendant executed a written waiver of his constitutional rights preceding the oral statement of 17 May. The detective at no time made any promises or threats to entice the defendant to give any statements.\nThe defendant\u2019s evidence at the voir dire hearing tended to show: He executed only one statement and that was written on 17 May 1987, and he made this statement only after he was told by the detective that bond would not be set until \u201cwe write down what we talked about.\u201d After the conversation about the bond, the defendant wrote down what the officer \u201ctold me we had talked about.\u201d Defendant admitted to signing a paper writing which he did not read. Defendant testified he did not realize the statements could be used against him in court but admitted he was advised of his right to remain silent and knew he had a right to have a lawyer present during the questioning.\nAfter hearing the evidence on voir dire, the trial court determined that all three statements had been made by the defendant and allowed the statements into evidence. In support of the court\u2019s order, the trial court entered the following written findings of fact and conclusions of law:\n1. That defendant gave statements to Detective Williams on May 17 and 18, 1987;\n2. That defendant gave two oral statements and one written statement in which he made various admissions regarding his participation in the activities which led to the charges against him;\n3. That at the time defendant gave the first oral statement and the written statement, he had not been formally arrested, had voluntarily accompanied Detective Williams to the Davie County Sheriffs Department and was free to leave at anytime;\n4. That prior to talking with defendant in the Sheriffs Department offices, Detective Williams fully advised defendant of his rights to silence and to legal counsel;\n5. That defendant admits to being able to read and write the English language;\n6. That defendant admits that he understood the rights about which Detective Williams advised him;\n7. That defendant, both orally and in writing, waived his constitutional right to silence and agreed to talk with and to give a written statement to Detective Williams on May 17, 1987, without a lawyer being present;\n8. That defendant never asked for a lawyer to be appointed and never sought to end the questioning; and\n9. That on May 18, 1987, defendant was ag\u00e1in advised of these rights prior to further questioning and refused to sign the waiver form or to give a written statement, but did agree to orally answer Detective Williams\u2019 questions about the bank card involved in the incident which Detective Williams was investigating.\nBased upon the foregoing findings the undersigned CONCLUDES AS A MATTER OF LAW that the two oral statements and one written statement given to Detective Williams were given after defendant had been fully and properly advised of his constitutional rights to silence and to legal counsel and after the defendant had knowingly, willingly, freely and voluntarily waived those rights.\nThe defendant now assigns as error the trial court\u2019s admission of the defendant\u2019s written and oral statements on the grounds that the defendant did not voluntarily give these statements. We limit our review of the admissibility of the confession to the issue of whether it was voluntarily given as defendant does not raise any other issue concerning the confession in his assignments of error. App. R. 10(a) (no exception which is not made the basis of an assignment of error may be considered on appeal).\nOn appeal from a denial of a motion to suppress, the question presented is whether the conclusion of the trial court is supported by findings and whether the findings are supported by competent evidence in the record. State v. Simpson, 314 N.C. 359, 368, 334 S.E. 2d 53, 59 (1985). The findings and conclusions entered by the trial court in this case are devoid of any reference to the issue of voluntariness.\nThe failure of a trial court to find facts is not always fatal. The trial court is not required in every instance to make findings of fact to support its conclusions and must do so only if \u201cthere is a material conflict in the evidence on voir dire.\u201d State v. Riddick, 291 N.C. 399, 408, 230 S.E. 2d 506, 512 (1976) (emphasis in original). \u201cIf there is conflict in the evidence which is immaterial and has no effect on the admissibility of the confession, it is not error to admit the confession without findings.\u201d Id. at 409, 230 S.E. 2d at 512 (emphasis in original). In reviewing the evidence presented at the voir dire hearing, there was a conflict in the evidence as to whether the detective attempted to entice the defendant into giving a statement on the condition that a bond would be set if the statement was given. This was the only evidence presented at voir dire relating to the issue of the voluntariness of the statements. The trial court did not resolve this conflict in the evidence, as it made no findings of fact on the issue. We therefore must determine whether the conflict is material as that term is defined in Riddick.\nA \u201cconfession cannot be received into evidence where the defendant has been influenced by any threat or promise; ... a confession obtained by the slightest emotions of hope or fear ought to be rejected.\u201d State v. Booker, 306 N.C. 302, 307, 293 S.E. 2d 78, 81 (1982) (quoting State v. Roberts, 12 N.C. (1 Dev.) 259, 260 (1826)). However, the \u201cinducement to confess whether it be a promise, a threat, or mere advice must relate to the prisoner\u2019s escape from the criminal charge against him.\u201d Id. at 308, 293 S.E. 2d at 82 (emphasis in original). Here the issue of whether a bond reduction was or was not promised is a \u201ccollateral inducement, having no relation to the offense,\u201d id. at 309, 293 S.E. 2d at 82 (quoting State v. Hardee, 83 N.C. 619, 623-24 (1880)), and therefore the alleged promise to set a bond if defendant confessed did not \u201crelate to the prisoner\u2019s escape from the criminal charge against him.\u201d Id. at 308, 293 S.E. 2d at 82 (emphasis in original). Instead, the alleged promise was \u201centirely disconnected from the possible punishment or treatment defendant might receive,\u201d and did not affect the admissibility of the defendant\u2019s statements. Id. at 309, 293 S.E. 2d at 82; see also State v. Church, 68 N.C. App. 430, 434, 315 S.E. 2d 331, 333 (1984) (defendant\u2019s statement not rendered involuntary because it may have been made with the hope that lower bond would be set). Accordingly, we determine the issue of the bond about which there was a conflict in the evidence at the voir dire hearing, is immaterial and the trial judge was not required to make findings of fact on the issue.\nLikewise, the failure of the trial court to include in its written order a conclusion that the confession was voluntary is not fatal. Although the trial judge concluded in his written order that defendant was advised of his rights and voluntarily waived them, that conclusion alone is insufficient to determine the admissibility of a confession. The confession must also be found to have been voluntarily made. Cheek, 307 N.C. at 557, 299 S.E. 2d at 636 (confession must be voluntarily made, after defendant has been informed of his rights, and has voluntarily waived his rights). However, this court has held that the absence of a formal ruling is not prejudicial where the court\u2019s decision is clear from the record. State v. Hicks, 79 N.C. App. 599, 601, 339 S.E. 2d 806, 808 (1986) (admission of victim\u2019s in-court identification of defendant is not reversible error because court failed to make formal ruling denying motion to suppress where decision was clear from record); see also State v. Frank, 284 N.C. 137, 144-45, 200 S.E. 2d 169, 174-75 (1973) (admission of defendant\u2019s confession at trial indicates the judge concluded it was voluntarily made and failure to formally rule was not fatal). Here the trial judge orally ruled in court at the conclusion of the voir dire that the statements were admissible at trial and that they \u201cwere freely and voluntarily made.\u201d Therefore, it is not prejudicial error that such a conclusion was inadvertently omitted from the subsequent formal written order.\nAccordingly, defendant\u2019s assignment of error based upon the denial of his motion to suppress is overruled.\nVII\nThe defendant next contends the trial court erred in denying his motion to dismiss the charges at the end of the State\u2019s evidence and at the end of all the evidence. The only argument in defendant\u2019s brief in support of this assignment of error is that \u201cthere was not \u2018substantial evidence\u2019 as to each essential element of the offenses charged to warrant the cases being . . . submitted to the jury.\u201d As the defendant makes no attempt to argue in what respect the evidence is insubstantial, we consider this assignment of error abandoned. App. R. 28(b)(5) (brief must contain arguments in support of assignment of error). Here, appellant\u2019s non-specific and general argument amounts to no more than a request for this court to wade through the record to determine if the assignment of error has merit. In re Appeal from Environmental Management Comm\u2019n, 80 N.C. App. 1, 18, 341 S.E. 2d 588, 598, disc. rev. denied, 317 N.C. 334, 346 S.E. 2d 139 (1986). We have nonetheless, pursuant to Rule 2 of the Rules of Appellate Procedure, in order to prevent manifest injustice, reviewed the transcript of evidence and find substantial evidence of each essential element of the offenses charged. State v. Hutchins, 303 N.C. 321, 344, 279 S.E. 2d 788, 803 (1981) (in considering motion to dismiss, the question is whether there is substantial evidence of each essential element of the offense).\nThe State called the victim to the stand who testified that the defendant, armed with a knife, overcame her will and forced her into acts of vaginal and anal intercourse, and fellatio upon his person. The victim positively identified the defendant as her assailant. Her testimony alone presents substantial evidence of the essential elements of first-degree rape and first-degree sexual offense. In addition, as discussed above, defendant\u2019s confession to the crimes charged were properly admitted against him. The victim further testified that the defendant took her bank card and made her tell him the code number for it. A detective also testified for the State that the defendant orally admitted using the bank card to obtain funds and told the detective the amounts withdrawn and the times of the withdrawals. This testimony constitutes substantial evidence of the essential elements of financial card theft and felonious larceny. When considered in the light most favorable to the State, the evidence presented was sufficient to withstand the motion to dismiss and to warrant sending the case to the jury on all the charges.\nVIII\nThe defendant finally argues the trial court erred in denying his motion for appropriate relief, made pursuant to N.C.G.S. Sec. 15A-1414 (1988), which was made after the entry of the verdict.\nThe defendant asserts in his brief as grounds for the motion the following: \u201c(a) the court\u2019s rulings were contrary to law with regard to the motions made during the trial with regard to the admission and exclusion of the evidence, (b) that the evidence at the close of all the evidence, the evidence was insufficient to. justify submission of the case to the jury, and (c) that the verdict was contrary to the weight of the evidence.\u201d In support of this assignment of error, defendant argues in his brief that for \u201cthe reasons previously stated in the appellant\u2019s brief, . . . the court\u2019s denial of the defendnat\u2019s [sic] motion for appropriate relief was improper.\u201d\nAs we have in this opinion rejected the arguments of the defendant in support of his previous assignments of error, we now further determine the trial judge did not abuse his discretion in denying defendant\u2019s motion for appropriate relief. State v. Amette, 85 N.C. App. 492, 498, 355 S.E. 2d 498, 502 (1987) (a motion for appropriate relief is within the discretion of the trial court and will not be disturbed absent a showing of abuse of discretion).\nNo error.\nJudges Orr and Smith concur.",
        "type": "majority",
        "author": "GREENE, Judge."
      }
    ],
    "attorneys": [
      "Attorney General Lacy H. Thornburg, by Special Deputy Attorney General George W. Boylan, for the State.",
      "Hall & Vogler, by E. Edward Vogler, Jr., for defendant-appellant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. RAYMOND CANNON MARSHALL\nNo. 8822SC231\n(Filed 30 December 1988)\n1. Rape and Allied Offenses \u00a7 3\u2014 victim\u2019s last name added to indictment \u2014 no improper amendment\nWhere defendant was indicted for four different criminal violations, three of which alleged the victim\u2019s complete name, the addition of the alleged rape victim\u2019s last name to one of the four indictments was not an amendment, as it did not substantially alter the charge set forth in the indictment, and there was therefore no merit to defendant\u2019s contention that the trial court erred in allowing the State to amend the rape indictment.\n2. Criminal Law \u00a7 162\u2014 evidence of defendant\u2019s prior rape conviction \u2014 failure to object\nDefendant in a rape case waived his right to assert any error on appeal where he failed to object or move to strike a witness\u2019s unresponsive testimony that defendant had been in jail for rape before; moreover, there was no merit to defendant\u2019s contention that a motion to strike or an objection to the answer and a subsequent request of the trial judge to instruct the jury to disregard the answer of the witness \u201cwould have only harmed the defendant\u2019s chance at a fair trial... by inflaming [the jurors\u2019] minds to a greater degree,\u201d since it is assumed that the jury heeds an instruction not to consider a witness\u2019s answer.\n3. Criminal Law \u00a7 169.3\u2014 blood and saliva samples from victim \u2014 failure to object\nWhere blood and saliva samples from a rape victim were introduced into evidence without objection, defendant lost the benefit of his earlier objection.\n4. Rape and Allied Offenses \u00a7 4\u2014 doctor\u2019s opinion that rape could have taken place at knife-point \u2014 inadmissible evidence not prejudicial\nThough the trial court in a rape case erred in allowing a doctor to testify that an abrasion over the victim\u2019s urethra could happen during intercourse which was performed at knife-point or under duress, as the expert was not any better qualified than the jury to have an opinion on the subject of whether intercourse was performed in such a manner, defendant was not prejudiced by the error, since the State presented a considerable amount of other evidence regarding the alleged rape being performed at knife-point.\n5. Criminal Law \u00a7 101.2\u2014 statement overheard by juror during voir dire \u2014 similar evidence subsequently introduced at trial \u2014 defendant not prejudiced\nThe trial court did not err in denying defendant\u2019s motion for mistrial made on the ground that the jury was tainted by testimony overheard by a juror during a voir dire hearing, since the judge determined that the fairness and impartiality of the jury had not been compromised when only one juror heard a question asked as to whether defendant had been arrested, and there was evidence presented without objection during the course of the trial that defendant had been placed under arrest. N.C.G.S. \u00a7 15A-1061.\n6. Criminal Law \u00a7 76\u2014 defendant\u2019s statements \u2014 motion to suppress \u2014 timeliness\nDefendant met his burden of establishing the timeliness of his motion to suppress his oral and written incriminating statements where defendant showed that he had not been notified of the State\u2019s intention to use the statements at trial within twenty working days of trial. N.C.G.S. \u00a7 15A-975.\n7. Criminal Law \u00a7 76\u2014 admissibility of defendant\u2019s statements \u2014 no waiver by defendant of right to contest for failure to follow procedural requirements\nThough the trial judge had the authority pursuant to N.C.G.S. \u00a7 15A-977(c)(1) to summarily deny defendant\u2019s motion to suppress defendant\u2019s statements because defendant did not give a legal basis for his motion to suppress, the trial judge instead exercised his discretion not to summarily deny the motion and immediately proceeded to conduct a voir dire relating to the admissibility of defendant\u2019s statements and subsequently entered written findings and conclusions; therefore defendant did not waive his right to contest the admissibility of statements made by him for failure to comply with the procedural requirements of N.C.G.S. \u00a7 15A-977.\n8. Criminal Law 8 76.5\u2014 confession \u2014 failure to make finding as to inducement to make confession \u2014 finding not required\nThough the trial court, in determining the voluntariness of defendant\u2019s confession, failed to resolve a conflict in the evidence as to whether the detective attempted to entice the defendant into giving a statement on the condition that a bond would be set if the statement was given, this conflict was not material, since the issue of whether a bond reduction was or was not promised was a collateral inducement having no relation to the offense, and the trial judge was not required to make findings of fact on the issue; likewise, the failure of the trial court to include in its written order a conclusion that the confession was voluntary was not fatal, since the trial judge orally ruled in court at the conclusion of the voir dire that the statements were admissible and that they \u201cwere freely and voluntarily made.\u201d\n9. Rape and Allied Offenses 8 5; Larceny 8 7\u2014 first degree rape \u2014 first degree sexual offense \u2014 financial transaction card theft \u2014 larceny\u2014sufficiency of evidence\nIn a prosecution of defendant for first degree rape, first degree sexual offense, financial transaction card theft, and felonious larceny where defendant argued that there was not substantial evidence as to each essential element of the offenses charged to warrant the cases being submitted to the jury, but defendant made no attempt to argue in what respect the evidence was insubstantial, his assignment of error was deemed abandoned; however, the evidence presented was sufficient to withstand the motion to dismiss and to warrant sending the case to the jury on all charges where the victim testified that defendant, armed with a knife, overcame her will and forced her into acts of vaginal and anal intercourse and fellatio upon his person; the victim positively identified defendant as her assailant; defendant\u2019s confession to the crimes was properly admitted against him; the victim further testified that defendant took her bank card and made her tell him the code number for it; and defendant orally admitted using the bank card to obtain funds and told a detective the amounts withdrawn and the times of the withdrawals. Appellate Rule 28(b)(5).\nAppeal by defendant from Walker (Russell G.), Judge. Judgments entered 5 November 1987 in Superior Court, DAVIE County. Heard in the Court of Appeals 8 September 1988.\nAttorney General Lacy H. Thornburg, by Special Deputy Attorney General George W. Boylan, for the State.\nHall & Vogler, by E. Edward Vogler, Jr., for defendant-appellant."
  },
  "file_name": "0398-01",
  "first_page_order": 428,
  "last_page_order": 443
}