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App.", "case_ids": [ 8551065 ], "year": 1969, "opinion_index": 0, "case_paths": [ "/nc-app/6/0751-01" ] }, { "cite": "224 S.E. 2d 174", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1976, "pin_cites": [ { "page": "179-80" } ], "opinion_index": 0 }, { "cite": "290 N.C. 56", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560150 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/nc/290/0056-01" ] }, { "cite": "230 S.E. 2d 524", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1976, "pin_cites": [ { "page": "529" }, { "page": "529" } ], "opinion_index": 0 }, { "cite": "291 N.C. 366", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8558324 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/nc/291/0366-01" ] }, { "cite": "422 U.S. 806", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9431 ], "weight": 3, "year": 1975, "pin_cites": [ { "page": "835" }, { "page": "834, n. 46" } ], "opinion_index": 0, "case_paths": [ "/us/422/0806-01" ] }, { "cite": "141 S.E. 2d 303", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1965, "opinion_index": 0 }, { "cite": "264 N.C. 208", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572185 ], "year": 1965, "opinion_index": 0, "case_paths": [ "/nc/264/0208-01" ] }, { "cite": "34 A.L.R. 3d, 1256", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "year": 1970, "opinion_index": 0 }, { "cite": "417 U.S. 600", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1519804 ], "year": 1974, "pin_cites": [ { "page": "616" } ], "opinion_index": 0, "case_paths": [ "/us/417/0600-01" ] }, { "cite": "96 S.Ct. 3211", "category": "reporters:federal", "reporter": "S. Ct.", "weight": 2, "year": 1976, "opinion_index": 0 }, { "cite": "220 S.E. 2d 600", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "opinion_index": 0 }, { "cite": "288 N.C. 553", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570287 ], "year": 1975, "opinion_index": 0, "case_paths": [ "/nc/288/0553-01" ] }, { "cite": "344 U.S. 561", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11300671 ], "year": 1953, "pin_cites": [ { "parenthetical": "the state has no constitutional duty to provide an expert witness to assist in the defense of an indigent" } ], "opinion_index": 0, "case_paths": [ "/us/344/0561-01" ] }, { "cite": "229 S.E. 2d 572", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "opinion_index": 0 }, { "cite": "291 N.C. 91", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8557348 ], "weight": 2, "year": 1976, "opinion_index": 0, "case_paths": [ "/nc/291/0091-01" ] }, { "cite": "229 S.E. 2d 562", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "opinion_index": 0 }, { "cite": "291 N.C. 73", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8557304 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/nc/291/0073-01" ] } ], "analysis": { "cardinality": 1949, "char_count": 58607, "ocr_confidence": 0.657, "pagerank": { "raw": 6.815182200904051e-07, "percentile": 0.9639735752933858 }, "sha256": "212f12c923d9794f853dc78b747c75f72d9afb87d47211e660843e7261bbd4a7", "simhash": "1:5013c7736624195d", "word_count": 9724 }, "last_updated": "2023-07-14T19:01:08.778506+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "STATE OF NORTH CAROLINA v. DEWEY L. GRAY, JR." ], "opinions": [ { "text": "EXUM, Justice.\nUpon separate bills of indictment defendant was tried and convicted of first degree rape (75-CR-2774), assault with a deadly weapon with intent to kill resulting in serious bodily injury (75-CR-2775), and first degree burglary (75-CR-2776). He was sentenced, respectively, to death, twenty years imprisonment, and life imprisonment.\nIncorporated within twenty questions presented in his brief, defendant brings forward some twenty-eight assignments of error, the most significant of which challenge the: (1) trial court\u2019s refusal to appoint a private investigator and an expert witness to assist in the defense; (2) denial of defendant\u2019s motion to dismiss court-appointed counsel and counsel\u2019s motion to be permitted to withdraw; (3) admissibility of certain blood grouping and absorption inhibition tests; and (4) admissibility of lay opinion testimony as to defendant\u2019s age and a so-called \u201cCertified Certificate of Birth.\u201d We find no merit in any of defendant\u2019s assignments of error relating to the trial of the cases. We do, however, vacate the death sentence entered in the rape case and remand this case for the entry of a sentence of life imprisonment.\nThe state\u2019s evidence tends to show the following: At about 11:00 p.m. on 12 January 1975, Louise Johns was at home in her apartment at 609 Key Street in Charlotte with a friend, Robert Griffith. They heard a knock at the front door. Thinking the visitor might be Griffith\u2019s wife, from whom he was separated, Griffith exited the apartment through the back door while Mrs. Johns proceeded to answer the door.\nWhen she opened the door, Mrs. Johns encountered a black man whom she mistakenly thought she recognized as a neighbor\u2019s son. The man asked to use her phone but she told him it was out of order and suggested he use a neighbor\u2019s phone. When he was insistent she again refused. Mrs. Johns quickly apprehended her mistake as to the visitor\u2019s identity as she observed him in the strong light in the doorway. She was close enough to the man to smell alcohol on his breath.\nThe man pushed his way through the door with a long-barreled pistol in his hand. He was smoking a cigarette and dropped it on the carpet. Upon his inquiry, Mrs. Johns told him someone had just left the apartment. He instructed her to \u201cgo get rid of them.\u201d Mrs. Johns went to Griffith, who was standing in front of the apartment and said, \u201cRun. He has a gun.\u201d Griffith ran after Mrs. Johns but was confronted by the black man, who pointed a \u201cbig gun\u201d at his stomach and threatened to kill him. At this time Mr. Griffith was standing in the parking lot where there was sufficient illumination from a street light that he could see the man\u2019s face clearly. From Griffith\u2019s and Mrs. Johns\u2019 descriptions the man was tall and thin-faced, wearing a three-quarter length coat with a fur collar and a small hat. Griffith was edged toward his car by the gunman, got into it and drove away to a phone booth from which he tried to call Mrs. Johns, but got no answer.\nMrs. Johns ran back into her apartment, locked the door and called police, giving her name and address. Then she went upstairs and hid in her bedroom closet. The man, having kicked in the door, soon discovered her hiding place, grabbed her around the neck and dragged her down the stairs and out the back door. He told her not to scream and waved the gun. Still holding Mrs. Johns by the neck, the man dragged her down an embankment and into a field behind the apartment building. He pushed her down and ordered her to undress. After Louise Johns had pulled down her jeans and the man had undressed, he began having sexual intercourse with her, and then forced her to have oral sex with him. The man then resumed having intercourse until he ejaculated.\nMrs. Johns testified that her assailant hit her on the head with the butt of his gun after the completed act of intercourse, dazing her. She said he began beating her and that she thought she was stabbed but did not see a knife. The man walked quickly back towards the apartment building. Mrs. Johns walked to the front of the apartment building where she saw a police car with the door open. She fell into the car, told police what had happened and gave them a description of her assailant.\nMrs. Johns was taken by ambulance to a hospital, where she underwent surgery to repair damage resulting from deep puncture wounds to her stomach, diaphragm and colon. Her scalp was also sutured. At the hospital Mrs. Johns told police that her assailant was not her neighbor\u2019s son, although he looked something like him. (Defendant is the brother of the man whom Mrs. Johns knew as her neighbor\u2019s son.) Medical testimony established the presence of spermatozoa in a vaginal fluid sample taken from. Mrs. Johns. Testimony of an expert witness established the presence of blood type \u201cB\u201d in this sample. Mrs. Johns and Griffith both had blood type \u201cA.\u201d The defendant had blood type \u201cB.\u201d\nAt trial Mrs. Johns and Robert Griffith positively identified defendant as the assailant.\nTwo police officers arrived at the apartment complex soon after Mrs. Johns\u2019 call, but found no one at her apartment, although they saw the dead bolt lock hanging by one screw. In cruising the parking lot using their spotlight these officers saw a man who met the description later given them by Mrs. Johns, but the man disappeared before the officers could apprehend him. At trial both officers positively identified defendant as the man they saw in the parking lot.\nDefendant presented an alibi defense. He testified himself that he was with friends at the Red Bird Lounge or Club until 10:00 or 10:30 on the night of the crime, that he went home alone, watched TV and went to sleep. His testimony was corroborated by the friends he named as his companions that evening.\nI\nBy his first assignment of error defendant, an indigent, contends the court erred in denying his pre-trial motion that the state furnish him for the purpose of assisting in his defense an expert in serology and a private investigator. We fully considered the questions presented by this assignment in State v. Tatum, 291 N.C. 73, 229 S.E. 2d 562 (1976) and State v. Montgomery, 291 N.C. 91, 229 S.E. 2d 572 (1976). In these cases defendants\u2019 pre-trial motions for appointment of private investigators at state expense were held properly denied. Recognizing that General Statute 7A-450 (b) requires the state to provide an indigent defendant \u201cwith counsel and the other necessary expenses of representation,\u201d the Court in Tatum held that an order for the appointment of a private investigator \u201cshould be made with caution and only upon a clear showing that specific evidence is reasonably available and necessary for a proper defense. Mere hope or suspicion that such evidence is available will not suffice.\u201d 291 N.C. at 82, 229 S.E. 2d at 568. To similar effect was the statement in Montgomery that \u201c[t]his statute has never been construed to extend to the employment of an investigator in the absence of a showing of a reasonable likelihood that such an investigator could discover evidence favorable to the defendant. We decline so to construe it. We do not have before us . . . the right of an indigent defendant to have such an investigator employed at the expense of the State upon a showing of a reasonable basis for belief that such employment would be productive of evidence favorable to him.\u201d 291 N.C. at 97-98, 229 S.E. 2d at 577. These cases also established that denial of a state-paid private investigator to an indigent defendant did not, ipso facto, constitute a denial of equal protection of the laws notwithstanding that such investigators might be available to indigent defendants represented by public defenders, G.S. 7A-468, and to pecunious defendants.\nWe recognized in Tatum that \u201call defendants in criminal cases shall enjoy the right to effective assistance of counsel and that the State must provide indigent defendants with the basic tools for an adequate trial defense or appeal.\u201d 291 N.C. at 80, 229 S.E. 2d at 566-67. While in Tatum, we determined to adhere to the holding in United States ex rel. Smith v. Baldi, 344 U.S. 561 (1953) (the state has no constitutional duty to provide an expert witness to assist in the defense of an indigent), we said, further, that \u201cwe do not interpret Baldi to obviate the doctrine of \u2018fundamental fairness\u2019 guaranteed by the due process clause of the Fourteenth Amendment to the United States Constitution.\u201d 291 N.C. at 81, 229 S.E. 2d at 567. We concluded in Tatum that the appointment of experts to assist an indigent in his defense depends really upon the facts and circumstances of each case and lies, finally, within the discretion of the trial judge. See also G.S. 7A-454 providing for payment in the court\u2019s discretion of a fee for an expert witness who testifies for an indigent defendant.\nWe know, of course, that the assistance of an expert or private investigator or both would be, generally, welcomed by all defendants and their counsel as an added convenience to the preparation of a defense. State v. Tatum, supra. We must, however, also recognize that it is practically and financially impossible for the state to give indigents charged with crime every jot of advantage enjoyed by the more financially privileged. See State v. Patterson, 288 N.C. 553, 220 S.E. 2d 600 (1975), death sentence vacated, 96 S.Ct. 3211 (1976). \u201cAnd the fact that a particular service might be of benefit to an indigent defendant does not mean that the service is constitutionally required.\u201d Ross v. Moffitt, 417 U.S. 600, 616 (1974). There are usually other methods by which defense counsel himself, without the use of investigators or experts, can uncover information or educate himself regarding a particular scientific discipline.\nThere are, then, no constitutional or legal requirements that private investigators or expert assistance always be made available simply for the asking. See, generally, \u201cRight of Indigent Defendant in Criminal Case to Aid of State by Appointment of Investigator or Expert,\u201d Annot., 34 A.L.R. 3d, 1256 (1970). Our statutes, G.S. 7A-450(b) and 7A-454, as interpreted in Tatum and Montgomery require that this kind of assistance be provided only upon a showing by defendant that there is a reasonable likelihood that it will materially assist the defendant in the preparation of his defense or that without such help it is probable that defendant will not receive a fair trial. Neither the state nor the federal constitution requires more.\nDefendant here really makes no showing or serious argument for the necessity of a state-appointed private investigator. He does argue vigorously that the appointment of an expert in serology was necessary for effective cross-examination of the state\u2019s expert, Brian Stemball, an SBI chemist, who testified regarding blood groupings ascertained by examining certain fluids taken from the bodies of Mrs. Johns, Mr. Griffith and defendant and from a cigarette butt found in Mrs. Johns\u2019 apartment.\nWe do not find the argument persuasive. In its order denying defendant\u2019s motion to appoint an expert and investigator, the court provided that Brian Stemball would be available to defense counsel for examination under oath at state expense well before trial. Defendant thus had ample opportunity to discover the procedures used in the blood grouping tests and the expert\u2019s opinion regarding the results he obtained. The able cross-examination of Stemball at trial well demonstrates that defense counsel was amply prepared for this phase of the trial.\nSince the facts and circumstances reveal no real necessity for the appointment of an expert serologist or a private investigator in the preparation of an adequate defense, it was not error to deny defendant\u2019s motion.\nII\nDefendant next claims error in the denial of his motion to dismiss his court-appointed attorney and the attorney\u2019s motion to withdraw from the case. We believe the court ruled correctly in denying both motions.\nAn attorney of record may withdraw from the case only upon satisfying the court that his withdrawal is justified. Smith v. Bryant, 264 N.C. 208, 141 S.E. 2d 303 (1965). Defendant\u2019s attorney, in support of his motion to withdraw, cited only the reasons set forth by defendant in his motion to dismiss counsel. Therefore, unless adequate justification was demonstrated by defendant it was not error to deny his attorney\u2019s motion to withdraw.\nThe United States Supreme Court has recognized a right to self-representation implicit in the Sixth Amendment and independent of defendant\u2019s power to waive the right to counsel. Faretta v. California, 422 U.S. 806 (1975). California was held to have violated that right when it imposed counsel upon a defendant who, weeks before trial, had \u201cclearly and unequivocally declared to the trial judge that he wanted to represent himself and did not want counsel.\u201d 422 U.S. at 835.\nIn State v. Sweezy, 291 N.C. 366, 230 S.E. 2d 524 (1976), the defendant requested that his counsel be removed in order that two black counsel might be appointed. Since no substantial claim was asserted that defendant was denied effective assistance of counsel, and since an indigent defendant has no right to choose his appointed counsel, State v. Robinson, 290 N.C. 56, 224 S.E. 2d 174 (1976), we held there was no error in the denial of defendant\u2019s request in Sweezy. Addressing the informality of the pertinent exchange between the court and the defendant, but noting the defendant\u2019s vociferous insistence that his desires be known, we held , the lack of a formal hearing in that case did not constitute reversible error. We nevertheless cautioned:\n\u201cIt would have been the better practice for the trial judge to have excused the jury and allowed defendant to state his reasons for desiring other counsel. If no good reason was shown requiring the removal of counsel, then the court should have determined whether the defendant actually desired to conduct his own defense.\u201d Id, at 372, 230 S.E. 2d at 529.\nSince there was no intimation that defendant Sweezy wished to represent himself, but only that he wanted \u201ctwo black lawyers,\u201d and since \u201c [d] efendant\u2019s courtroom behavior gave the trial judge every right \u2018to suspect the bona fides of the defendant,\u2019 \u201d Id. at 373, 230 S.E. 2d at 529, there was no reversible error in the court\u2019s failure to follow the recommended procedure.\nIn this case, defendant Gray moved at his arraignment on June 23, 1975, the day his trial was to begin, to dismiss his attorney on the grounds that his attorney had, on several occasions, urged defendant to plead guilty to first degree burglary. In addition, he complained that the attorney had \u201cmisled\u201d defendant, his wife and mother and had \u201cput distrust\u201d in his witnesses\u2019 hearts. Defendant also said he and his attorney had not been able to communicate because \u201che hasn\u2019t been coming to see me and when he does come to see me his only objective is to get me to plead guilty.\u201d Defendant concluded his request by telling the court that \u201cunder the circumstances I feel that it\u2019s best for me to get my own counsel to come into this court pertaining to this matter where I would get proper representation, and that is the only way I feel I would get justice.\u201d\nThe court questioned defendant extensively concerning his wishes and the background of his case. Defendant revealed that after his arrest in mid-January he requested that an attorney appointed prior to Mr. Austin (defendant\u2019s trial counsel) be relieved from representing him and another attorney appointed. This request was granted. Defendant asserted that he was not this time requesting the appointment of another attorney, but only that \u201cthe court relieve this attorney of all obligation toward this case and me.\u201d In reply to the court\u2019s question as to how long defendant had known he had a right to employ an attorney of his choosing, defendant responded that he had known this \u201csince the very beginning . . . but the fact remains that I did not have necessary funds to obtain counsel on my own, but since I\u2019ve found out certain information and corresponded with certain other attorneys, I have a better opportunity now to obtain my own counsel.\u201d Thereupon the following colloquy ensued:\n\u201cCourt: How much money do you have?\nMr. Gray: It\u2019s not a matter of money. It\u2019s a matter that I have corresponded and talked to other attorneys and, you know, I could still get back in touch with them so they could take up this matter.\nCourt: Are any of them here?\nMr. Gray: No, they are not.\nCourt : How long have you known the case was going to be tried today?\nMr. Gray : I would say approximately three weeks, but there were certain matters involved that I mentioned that I didn\u2019t know until only recently, within a week or so.\u201d\nThe court also questioned defense counsel and ascertained that he was qualified, both by education and experience, including an eariler two year\u2019s service as assistant district attorney, to do criminal defense work at the superior court level. At this point defendant interrupted, reminding the court that his first court-appointed attorney had been an ex-district attorney and that another ex-district, attorney had refused to take the case. He objected to the \u201cinjustice and wrong\u201d of having had ex-district attorneys appointed for him.\nIt is clear that defendant had no reasonable objection to his attorney\u2019s conduct or preparation of his case. His complaints are general and vague, and the emphasis of his objections shifted during the hearing. His counsel, as appears from the record, was well qualified and did, in fact, represent defendant in an exemplary fashion. Defendant\u2019s assertion that he wished to employ his own counsel, made as it was, on the day trial was to begin and without the appearance or even the name of a single attorney who might be privately employed to represent him, was no ground for the dismissal of his court-appointed counsel. Defendant did not claim he had the funds to employ counsel. There is not a scintilla of evidence indicating defendant\u2019s intention or desire to represent himself; indeed, he seems to have been more than usually aware of the critical role played by counsel in criminal trials.\nWhile defendant may have been peeved with his attorney for personal reasons, the court had no reason to doubt that attorney\u2019s effectiveness and capability as an advocate or to suspect the relationship between defendant and his counsel to have deteriorated so as to prejudice the presentation of his defense. See State v. Robinson, supra at 66-67, 224 S.E. 2d at 179-80. Certainly, counsel\u2019s brief former tenure as an assistant district attorney constitutes no conflict of interest and yields, if anything, a greater probability that defendant would be competently represented by an attorney experienced in serious criminal trials. To have allowed the motions to remove counsel would have significantly delayed defendant\u2019s trial without the slightest demonstration of any potential benefit to his case.\nIll\nDefendant challenges on grounds of relevancy the admission of the results of certain blood grouping and absorption inhibition tests and the comparison of those results with the blood types of Mrs. Johns, the defendant, and Griffith.\nThe Court of Appeals has resolved the issue of the relevancy of blood grouping test results in favor of admissibility. State v. Jacobs, 6 N.C. App. 751, 171 S.E. 2d 21 (1969). That Court held, speaking through Judge Morris, that \u201c[t]here is respectable authority that such testimony relating to blood test results may be admitted into evidence. 46 A.L.R. 2d 1000; McCormick on Evidence, \u00a7 177 (1954) ; 29 Am. Jur. 2d, Evidence, \u00a7 106.\u201d The following authorities also support the general rule of admissibility of blood grouping test results in criminal trials: Kemp v. Government of the Canal Zone, 167 F. 2d 938 (5th Cir. 1948); State v. Thomas, 78 Ariz. 52, 275 P. 2d 408 (1954), aff\u2019d, 356 U.S. 390 (1958), rev\u2019d on other grounds in State v. Pina, 94 Ariz. 243, 383 P. 2d 167 (1963); Davis v. State, 189 Md. 640, 57 A. 2d 289 (1948) ; see Dockery v. State, 269 Ala. 564, 114 So. 2d 394 (1959) ; Commonwealth v. Statti, 166 Pa. Super. Ct. 577, 73 A. 2d 688 (1950) ; cf. People v. Mummert, 57 Cal. App. 2d 849, 135 P. 2d 665 (1943), rev\u2019d on other grounds in People v. Collins, 54 Cal. 2d 57, 351 P. 2d 326, 4 Cal. Rptr. 158 (1960) ; State v. Alexander, 7 N.J. 585, 83 A. 2d 441, cert. denied, 343 U.S. 908 (1951); State v. Tipton, 57 N.M. 681, 262 P. 2d 378 (1953).\nWhile this Court has never directly decided the relevancy issue we have several times addressed questions closely associated with it. In State v. King, 287 N.C. 645, 215 S.E. 2d 540 (1975), death sentence vacated, 96 S.Ct. 3208 (1976), evidence was offered that some blood stains found on a coat at defendants\u2019 residence were group \u201cO\u201d and some were group \u201cA.\u201d The victim\u2019s blood was group \u201cO\u201d and defendants\u2019 group \u201cA.\u201d The Court overruled assignments of error directed to the factual basis for allowing blood samples to be drawn from defendants, to defendants\u2019 right to counsel at the time blood samples were taken and to the trial court\u2019s finding certain witnesses on the point to be experts. One of these witnesses was Brian Stemball, the state\u2019s serology expert in the case at bar. The court allowed the evidence, no error having been assigned based on its relevancy. Similar tangential issues were resolved in favor of the state in State v. Johnson, 280 N.C. 281, 185 S.E. 2d 698 (1972) and State v. Peale, 274 N.C. 106, 161 S.E. 2d 568 (1968), cert. denied, 393 U.S. 1042 (1969).\nWe believe the better view to be that results of blood grouping tests are generally admissible. While their positive probative value is somewhat tenuous, we see little, if any, ascertainable prejudice which could arise from their admission. As we observed in State v. Johnson, supra at 287, 185 S.E. 2d at 701: \u201cAt most, analysis of hair and blood samples tended to identify the defendant as belonging to the class to which the guilty party belonged. The analysis might have indicated he did not belong to that class.\u201d Obviously the tests are highly probative negatively. Here Stemball testified that the vaginal sample of semen taken from the victim indicated the secretor thereof had type \u201cB\u201d or type \u201cAB\u201d blood. This tended to negate a possible defense contention, however weak, that the semen was deposited in perhaps a consensual sexual encounter by Griffith who had blood type \u201cA.\u201d\nNeither People v. Robinson, 27 N.Y. 2d 864, 265 N.E. 2d 543, 317 N.Y.S. 2d 19 (1970) (finding blood grouping test results \u201cof no probative value\u201d but holding their admission nonprejudicial in light of unspecified limiting instructions and \u201cthe fully adequate case made out by other proof against the defendant\u201d) nor State v. Peterson, 219 N.W. 2d 665 (Iowa, 1974) (holding blood samples inadmissible because seized unlawfully) is persuasive of defendant\u2019s contention that the admission of the test results here was prejudicial error. In view of the weight of other evidence against defendant we cannot perceive how evidence of the blood grouping results could have affected the outcome of the trial.\nDefendant also argues that no proper foundation was laid for the admission of the absorption inhibition tests. The contention is that their validity and reliability were not properly established. The witness Brian Stemball, found to be an expert forensic chemist by the court, on voir dire testified that both Louise Johns and defendant Gray were \u201csecretors,\u201d that is, that their blood types could be determined from body fluids other than blood. His tests established defendant as a type \u201cB\u201d secretor and Louise Johns as a type \u201cA\u201d secretor. The witness testified at length to his methodology. Over objection he testified that he found blood types \u201cA\u201d and \u201cB\u201d in a test done on a vaginal swab taken from Louise Johns and type \u201cB\u201d on a cigarette butt which, evidence tended to show, had been dropped in Mrs. Johns\u2019 apartment by her assailant. The witness conducted the tests himself and was carefully precise in his testimony. Under these circumstances and particularly in light of the evident similarity between the absorption inhibition tests used here and standard blood typing tests, whose reliability are not open to serious doubt, see State v. Fowler, 277 N.C. 305, 177 S.E. 2d 385 (1970), we hold that the reliability and validity of the tests in question were sufficiently demonstrated to render them admissible. Cf. State v. Crowder, 285 N.C. 42, 203 S.E. 2d 38 (1974), death sentence vacated, 96 S.Ct. 3205 (1976); Coppolino v. State, 223 So. 2d 68 (Fla. 2d Dist.), appeal dismissed, 234 So. 2d 120 (Fla. 1969), cert. denied, 399 U.S. 927 (1970).\nIV\nBy assignment of error numbers seven and twenty, defendant asserts error in the allowance, over objection, of lay opinion testimony regarding defendant\u2019s age and the admission into evidence of State\u2019s Exhibit # 13, a so-called \u201cCertified Certificate of Birth.\u201d For reasons given below w\u00e9 find no error prejudicial to the defendant in the admission of this evidence.\nIn a prosecution for first degree rape under General Statute 14-21 (a) (2) the state must allege in the indictment and prove that the defendant was more than sixteen years of age at the time of the alleged rape, this being an essential element of the crime. State v. Perry, 291 N.C. 586, 231 S.E. 2d 262 (1977). In an effort to meet this burden here the state elicited from the victim, Robert Griffith and two police officers, all of whom had observed defendant, their respective opinions that the defendant was in his \u201cmiddle to late twenties\u201d; \u201ctwenties, mid-twenties\u201d ; \u201ctwenty-one or twenty-two\u201d; \u201ctwenty-six or twenty-seven.\u201d The state also offered a paper writing, State\u2019s Exhibit #13, in words and figures as follows:\n\u201cCertified Certificate of Birth\nThis certifies that the following birth occurred in Charlotte, North Carolina, and is registered in the Office of Vital Statistics, Mecklenburg County Health Department, Charlotte, North Carolina.\nName Dewey Lee Gray, Jr.\nDate of Birth February 17, 1947\nName of Father Dewey Lee Gray, Sr.\nMaiden Name of Mother Birdie Williams\nThis birth is recorded as Certificate No. 868\nWitness my hand and official seal this 18th day of June 1975\nDirector of Health /s/Jacqueline Creech\n/s/Maurice Kamp, M.D. Deputy Registrar\u201d\nThe signature of Maurice Kamp, M.D., is printed as is all else except the information pertaining particularly to \u201cDewey Lee Gray, Jr.\u201d and the signature of Jacqueline Creech. The name Jacqueline Creech appears as an original signature. The seal of the Mecklenburg County Health Department is embossed on the document.\nAt trial defendant objected to introduction of State\u2019s Exhibit # 13 on the ground that the \u201cDewey Lee Gray, Jr.,\u201d named therein was not shown to be the defendant on trial.\nDefendant was a witness on his own behalf. On cross-examination he testified in part as follows:\n\u201cI was born and raised in Charlotte. My mother\u2019s name was Bertie Williams. Yes, my birthday is February 17, 1974.\n\u201cAs to whether I was in San Diego in 1967, right, in the Navy.\u201d\nClearly whatever error may have been committed in the introduction of evidence of defendant\u2019s age in the state\u2019s case was rendered harmless by defendant\u2019s own testimony. While on the stand he never denied that he was more than sixteen years old. His statement about his Navy duty establishes that he must have been more than sixteen long before the alleged rape occurred. His statement that his birthday was \u201cFebruary 17, 1974,\u201d is obviously either a lapsus linguae or a typographical error whereby the seven and the four have been transposed. Defendant on direct examination testified that he was married, living with his wife, the father of two children, working regularly, and buying his own home. From defendant\u2019s own testimony the conclusion that he was more than sixteen years old, although admittedly one for the jury to draw, is simply inescapable. Furthermore the jury may base its determination of a defendant\u2019s age on its own observation of him even when the defendant does not testify. State v. Overman, 269 N.C. 453, 153 S.E. 2d 44 (1967), relying on 1 Stansbury\u2019s North Carolina Evidence \u00a7 119 (2d ed. 1963). Cf. State v. McNair, 93 N.C. 628 (1884).\nWhile to decide this case we need not determine whether the admission of defendant\u2019s age was technical error, we deem it advisable to consider the question for the guidance of our district attorneys and defense counsel in future cases where the state will be faced with the problem of proving a defendant\u2019s age. Our conclusion is that it was proper to admit the opinion of the lay witnesses who had ample opportunity to observe and did observe defendant but that it was error to admit the so-called \u201cCertified Certificate of Birth.\u201d\nThe question of the admissibility of lay opinion regarding a person\u2019s age when age is in issue is, with us, one of first impression. This Court has held that a medical expert may give his opinion as to the age of the victim of a crime. State v. Smith, 61 N.C. 302 (1867) . It has long been established, too, that lay opinion generally is permitted in circumstances where an ordinary observer having sufficient opportunity to observe would be qualified to draw inferences helpful to the jury if the factual foundations for such inferences are difficult of formulation or explication. Examples are cases allowing lay opinion as to mental capacity, value, or identity. 1 Stansbury\u2019s North Carolina Evidence \u00a7\u00a7 127, 128, 129 (Brandis Rev. 1973). Non-expert testimony as to a person\u2019s race has been allowed. Hop kins v. Bowers, 111 N.C. 175, 16 S.E. 1 (1892). \u201cEven when it might be 'possible to describe the facts in detail, it may still be impracticable to do so because of the limitations of customary speech, or the relative unimportance of the subject testified about, or the difficulty in analyzing the thought processes by which the witness reaches his conclusion, or because the inference drawn is such a natural and well understood one that it would be a waste of time for him to elaborate the facts . . . . \u201d 1 Stansbury\u2019s North Carolina Evidence. \u00a7 125 (Brandis Rev. 1973). The general rule is that a competent lay observer may be permitted to state his opinion as to the age of another person. 32 C.J.S. Evidence \u00a7 546(7)1\nSince the age of a defendant is a fact peculiarly within his own knowledge, the state must be left some latitude within which to carry its burden of proof on this issue. We, therefore, adopt the rule that lay witnesses with an adequate opportunity to observe and who have in fact observed may state their opinion regarding the age of a defendant in a criminal case when the fact that he was at the time in question over a certain age is one of the essential elements to be proved by the state. It is important to note that the exact age of the defendant is not in issue, nor need the state prove it. It must prove only that he was at the time of the offense charged over sixteen. The rule we adopt should not be interpreted to extend to any case, criminal or civil, where the exact age of someone must be proved.\nRegarding the so-called \u201cCertificate of Birth\u201d it is obvious that, again due to defendant\u2019s own testimony, the ground stated by defendant at trial for his objection is feckless. He testified that his mother was named Bertie Williams. State\u2019s Exhibit # 13 listed the mother of the person whose date of birth was given as \u201cBirdie Williams.\u201d\nIt would have been, however, a proper ground of objection that State\u2019s Exhibit # 13 is not really a certified copy of any official record so as to be admissible under General Statutes 130-66; 8-34; or 8-35. The exhibit, while labeled a \u201cCertified Certificate of Birth,\u201d purports to be an original document which, over the signature of a \u201cDeputy Registrar\u201d merely summarizes certain information which is apparently recorded in the Office of Vital Statistics in Mecklenburg County on Birth Certificate No. 868. Thus State\u2019s Exhibit # 13 is no more than the Deputy Registrar\u2019s assertion of what she found on the recorded birth certificate. As such it was double hearsay and inadmissible.\nGeneral Statute 130-66(b) provides:\n\u201cThe State Registrar is authorized to prepare typewritten, photographic, or other reproductions of original records and files in his office. Such reproductions, when certified by him, shall be considered for all purposes the same as the original and shall be prima facie evidence of the facts therein stated.\u201d\nThe State Registrar in this same section is also given power to appoint agents with authority to issue certified copies of birth or death records and \u201cto sign the name of or affix a facsimile of the signature of the State Registrar to the certification of said copy; and any copy of a record of a birth or a death, with the certification of same, so signed or with the facsimile of the State Registrar fixed thereto shall have the same evidentiary value as those issued by the State Registrar.\u201d Not only does State\u2019s Exhibit # 13 not purport to be a certified copy of an official birth certificate, there is no showing that it was certified by the State Registrar or an authorized agent thereof.\nThe admission, consequently, of State\u2019s Exhibit # 13 was technically error but not, under the circumstances, prejudicial to this defendant. Cf. State v. Watson, 281 N.C. 221, 188 S.E. 2d 289 (1972).\nV\nWe now discuss seriatim other less substantial contentions of defendant. Defendant assigns as error the denial of his pretrial motion to be mentally examined to determine his capacity to stand trial. Defendant concedes that under General Statute 122-91, in effect at the time of this trial but since repealed, this motion lay within the sound discretion of the trial court. State v. Washington, 283 N.C. 175, 195 S.E. 2d 534 (1973), cert. denied, 414 U.S. 1132 (1974). Nevertheless, he complains of the informality of the inquiry in this case. \u201cOrdinarily, it is for the court, in its discretion, to determine whether the circumstances brought to its attention are sufficient to call for a formal inquiry to determine whether defendant has sufficient mental capacity to plead to the indictment and conduct a rational defense.\u201d State v. Propst, 274 N.C. 62, 68, 161 S.E. 2d 560, 565 (1968).\nThe question of defendant\u2019s competency to stand trial was raised in this case at the end of the hearing conducted on defendant\u2019s motion to dismiss his counsel, discussed ante. During the process of that hearing, the court inquired concerning the alleged breakdown of communications between defendant and his attorney and questioned defendant as to whether he bad ever been treated by or consulted with a psychologist or psychiatrist or been confined to a mental institution. Defendant answered negatively. At that point defendant and his attorney conferred out of the courtroom. Upon returning to the courtroom, defense counsel moved to have defendant mentally examined \u201cto determine whether or not he is, by reason of mental illness, capable of assisting in the preparation of his defense, and also to determine the question of whether or not he understands the charges against him . ...\u201d To the court\u2019s invitation for evidence on that question, defense counsel replied that his evidence was \u201chis inability to communicate\u201d with defendant for the preceding week or ten days. Counsel concluded \u201cI\u2019m not a psychologist or psychiatrist so I can only speculate, but the reason may very well be mental illness.\u201d This conclusion, he said, was induced by the failure of defendant\u2019s apprehension of the seriousness of the charge against him to inspire any effective communication. Counsel specifically stated he had no other evidence to present. At that time, defendant interrupted to inform the court that the reason for the lack of communication lay in his attorney\u2019s failure to come to see him for a week accompanied by counsel\u2019s urging that defendant plead guilty to first degree burglary. We see nothing amiss in the procedure utilized by the court in hearing and ruling on this question. We find nothing in the record to indicate defendant\u2019s incapacity to stand trial; indeed he seems to have been more than usually adept at that task. His lengthy personal argument to the court on other pre-trial motions demonstrates his understanding and powers of articulation concerning the charges against him. The motion for a pre-trial mental examination was a mere afterthought totally lacking in substance. This assignment is overruled.\nDefendant assigns as error the admission of Louise Johns\u2019 and Robert Griffith\u2019s in-court identification. He contends that the pre-trial photographic identification procedures were unnecessarily suggestive because of the nature of the photographs. We have examined the photographs and find nothing to indicate impermissible suggestiveness. Defendant\u2019s hairdo, though different from others in the stack of photographs, was not the basis for either identification. Testimony revealed the assailant wore a hat. Nor is there any evidence to suggest that Louise Johns\u2019 identification of defendant at the preliminary hearing, where he was the only black male in the courtroom, had any effect on her identification at trial.\nThe trial court held voir dire examinations before admitting Louise Johns\u2019 and Robert Griffith\u2019s testimony identifying defendant as the assailant. Each time, the court found facts, fully supported by testimony given during voir dire, that the witnesses had extensive opportunity to view defendant in good lighting and in close proximity at the time of the crime. The court\u2019s conclusions, properly supported by these findings of fact, were that none of the pre-trial identification procedures were impermissibly suggestive and that the in-court identifications of defendant by witnesses Johns and Griffith arose independently, from adequate observation at the time of the crime, and were not tainted by any pre-trial conduct of any law enforcement officer or court personnel.\nThese assignments are overruled. State v. Woods, 286 N.C. 612, 213 S.E. 2d 214 (1975), death sentence vacated, 96 S.Ct. 3207 (1976) ; State v. Tuggle, 284 N.C. 515, 201 S.E. 2d 884 (1974); State v. Mems, 281 N.C. 658, 190 S.E. 2d 164 (1972).\nDefendant next contends his constitutional rights to confrontation, counsel, due process, and equal protection were violated by denial of his pre-trial motion to undergo a polygraph examination. There is no merit to this contention. The results of a polygraph examination are inadmissible in evidence. State v. Brunson, 287 N.C. 436, 215 S.E. 2d 94 (1975) ; State v. Foye, 254 N.C. 704, 120 S.E. 2d 169 (1961). In addition, defendant\u2019s argument is considerably undermined by his refusal of the state\u2019s offer to administer a polygraph examination on condition that defendant as well as the state stipulate the admissibility of the results. Such an examination was, therefore, irrelevant to the case and unnecessary to the presentation of an effective defense.\nDefendant objects to the admission into evidence of a black and white tweed three-quarter length coat with a fur collar, which closely matched the description Mrs. Johns gave police of the coat worn by her assailant as well as descriptions offered by other witnesses. The day after defendant\u2019s arrest, the coat was seized from his home pursuant to a search warrant. The affidavit upon which the warrant was issued contained Mrs. Johns\u2019 description of the coat as a \u201cbrown three-quarter length coat with fur collar.\u201d The coat is unquestionably relevant and was properly admitted. State v. Bass, 280 N.C. 435, 186 S.E. 2d 384 (1972). The variance in description and actuality of the color of the coat is easily explained by the darkness and the rain on the night of the crime. Under such conditions it would be easy to mistake a black and white tweed for brown. This discrepancy affects the weight but not the admissibility of the evidence. The description in the warrant was sufficiently precise to preclude any doubt that the coat seized was the one authorized to be taken. Since the warrant was adequately descriptive to prevent a roving or exploratory search, there is no merit to defendant\u2019s objection to the warrant. State v. Foye, 14 N.C. App. 200, 188 S.E. 2d 67 (1972) ; United States v. Scharfman, 448 F. 2d 1352 (2d Cir. 1971), cert. denied, 405 U.S. 919 (1972) ; James v. United States, 416 F. 2d 467 (5th Cir. 1969), cert. denied, 397 U.S. 907 (1970). Neither must the coat be excluded, as defendant contends, as \u201cthe fruit of a poisonous tree.\u201d The trial court found on voir dire that the coat was legally and properly obtained pursuant to a valid search warrant. There is no evidence whatever in the record that the seizure of the coat originated from an illegal search at the time of arrest, as defendant contends. This assignment is overruled.\nDefendant\u2019s contention that nonsuit should have been granted as to first degree rape because there was no evidence that the victim\u2019s resistance was overcome or her submission procured through the use of a deadly weapon is wholly without merit. Defendant argues there is not substantial evidence that the use of the gun he carried caused Louise Johns to submit, and that the term \u201cuse\u201d in General Statute 14-21 means more than \u201cpossess.\u201d \u201c [A] deadly weapon is used to procure the subjugation or submission of a rape victim within the meaning of G.S. 14-21 (a) (2) when (1) it is exhibited to her and the defendant verbally, by brandishment or otherwise, threatens to use it; (2) the victim knows, or reasonably believes, that the weapon remains in the possession of her attacker or readily accessible to him; and (3) she submits or terminates her resistance because of her fear that if she does not he will kill or injure her with the weapon. In other words, the deadly weapon is used, not only when the attacker overcomes the rape victim\u2019s resistance or obtains her submission by its actual functional use as a weapon, but also by his threatened use of it when the victim knows, or reasonably believes, that the weapon is readily accessible to her attacker or that he commands its immediate use.\u201d State v. Thompson, 290 N.C. 431, 444, 226 S.E. 2d 487, 494-95 (1976) ; accord, State v. Dull, 289 N.C. 55, 220 S.E. 2d 344 (1975), death sentence vacated, 96 S.Ct. 3211 (1976).\nBoth Mrs. Johns and Griffith testified that defendant carried a gun with a \u201cvery long barrel\u201d in full view and waved it in his hands and that Mrs. Johns told Griffith, \u201cRun. He has a gun,\u201d then returned into her apartment, locked the door and called police. Mrs. Johns testified defendant kicked the door in, discovered her hiding place and dragged her out of the apartment into the field behind to rape her, again brandishing the gun in one hand.\nNot only is this evidence fully sufficient to permit a reasonable inference that Mrs. Johns\u2019 submission was procured by the use of a deadly weapon, it would permit no other reasonable inference.\nDefendant urges that there is a fatal variance between the allegations in the indictment and the proof. The indictment charges that the prosecuting witness had her resistance overcome or her submission procured \u201cby the use of a deadly weapon and by the infliction of serious bodily injury . \u201d General Statute 14-21 (a) (2) provides: \u201c[A]nd the rape victim had her resistance overcome or her submission procured by the use of a deadly weapon, or by the infliciton of serious bodily injury . ...\u201d We considered a similar issue concerning General Statute 14-87 in State v. Swaney, 277 N.C. 602, 611, 178 S.E. 2d 399, 405, appeal dismissed, 402 U.S. 1006 (1971). We held there, \u201c \u2018Where a statute sets forth disjunctively several means or ways by which the offense may be committed, a warrant thereunder correctly charges them conjunctively.\u2019 4 Strong\u2019s N. C. Index 2d, Indictment and Warrant \u00a7 9, p. 353; State v. Chestnutt, 241 N.C. 401, 85 S.E. 2d 297.\u201d The indictment correctly charged the offense of first degree rape.\nAll of the evidence pointed to the procurance of Mrs. Johns\u2019 submission by the use of a deadly weapon, i.e., a gun. The stabbing, as the state\u2019s evidence shows, took place after the act of intercourse. There is no evidence that serious bodily injury occurred to the victim prior to the act of intercourse.\nThe court submitted the issue of first degree rape to the jury solely on the theory, supported by the evidence, that the prosecuting witness\u2019 submission was procured by the use of a deadly weapon. There was thus no error prejudicial to defendant in the inclusion of the \u201cserious bodily injury\u201d theory of the crime in the indictment. See State v. Shields, 14 N.C. App. 650, 188 S.E. 2d 641 (1972); cf. State v. Adams, 266 N.C. 406, 146 S.E. 2d 505 (1966) ; State v. Mundy, 243 N.C. 149, 90 S.E. 2d 312 (1955).\nWhere an indictment sets forth conjunctively two means by which the crime charged may have been committed, there is no fatal variance between indictment and proof when the state offers evidence supporting only one of the means charged. See State v. Brown, 266 N.C. 55, 145 S.E. 2d 297 (1965), rev\u2019d on other grounds in State v. Jones, 275 N.C. 432, 168 S.E. 2d 380 (1969) and State v. Williams, 279 N.C. 663, 185 S.E. 2d 174 (1971); State v. Best, 232 N.C. 575, 61 S.E. 2d 612 (1950) ; State v. Mumford, 227 N.C. 132, 41 S.E. 2d 201 (1947).\nDefendant assigns error directed to the court\u2019s failure to submit an issue of second degree rape to the jury. Defendant presented an alibi defense. He concedes that if the Court finds sufficient evidence of first degree rape to withstand motion for nonsuit, this assignment is of no merit. We find no evidence in the record to support a verdict of. guilty of second degree rape. This assignment is overruled. State v. Harris, 290 N.C. 681, 228 S.E. 2d 437 (1976) ; State v. Woods, supra.\nWe have closely examined the record and have considered all defendant\u2019s remaining assignments of error. No purpose is served by our discussing them. They are obviously without merit. Since there is no error in this record which would require a new trial, we may not disturb the verdict of the jury.\nHowever, under Woodson v. North Carolina, 428 U.S. 280 (1976) the judgment of the superior court sentencing defendant to death must be vacated. State v. Montgomery, 291 N.C. 91, supra. So that a sentence of life imprisonment in Case No. 75-CR-2774 may be substituted under the authority of 1973 Session Laws, Ch. 1201, \u00a7 7 (1974 Session), we remand this case to the Superior Court of Mecklenburg County with directions (1) that the presiding judge, without requiring the presence of defendant, enter a judgment in Case No. 75-CR-2774 imposing life imprisonment for the first degree rape of which defendant has been convicted; and (2) that in accordance with this judgment, the Clerk of the Superior Court issue a commitment in substitution for the commitment heretofore issued. It is further ordered that the Clerk of Superior Court furnish to defendant and his counsel a copy of the judgment and commitment as revised in accordance with this opinion.\nIn Case No. 75-CR-2774 \u2014 No error in the verdict;\nDeath sentence vacated.\nIn Case No. 75-CR-2775 \u2014 No error.\nIn Case No. 75-CR-2776 \u2014 No error.\nThe Court nevertheless recognized that termination of sell-representation by a defendant who deliberately and seriously- disrupts court proceedings and appointment of stand-by counsel to assist a defendant representing himself if he should request such assistance during the trial were constitutionally permissible. 422 U.S. at 834, n. 46.", "type": "majority", "author": "EXUM, Justice." } ], "attorneys": [ "Rufus L. Edmisten, Attorney General, by Edwin Speas, Jr., Special Deputy Attorney General, and Jack Cozort, Associate Attorney, for the State.", "Tate K. Sterrett, Attorney for defendant appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. DEWEY L. GRAY, JR.\nNo. 85\n(Filed 14 April 1977)\n1. Constitutional Law \u00a7 31 \u2014 indigent defendant \u2014 appointment of investigator, expert\nThe State is required by G.S. 7A-450(b) and 7A-454 to provide an indigent defendant with a private investigator or expert assistance only upon a showing that there is a reasonable likelihood that defendant will be materially assisted in the preparation of his defense or that without such help it is probable that defendant will not receive a fair trial, and neither the State Constitution nor the Federal Constitution requires more.\n2. Constitutional Law \u00a7 31 \u2014 indigent'defendant \u2014 denial of appointment of investigator, serologist\nThe trial court in a rape case did not err in the denial of the indigent defendant\u2019s pretrial motion that the State furnish him a private investigator where there was no showing for the necessity of a private investigator; nor did the court err in the denial of defendant\u2019s motion that the State furnish him an expert in serology to aid in defense counsel\u2019s preparation for the cross-examination of the State\u2019s expert chemist who testified regarding blood groupings ascertained by examining fluids taken from the victim, a male friend of the victim, and defendant, and from a cigarette butt found in the victim\u2019s apartment, where the court ordered that the chemist be available to defense counsel for examination under oath at State expense well before trial.\n3. Constitutional Law \u00a7 46 \u2014 withdrawal of attorney\nAn attorney of record may withdraw from the case only upon satisfying the court that his withdrawal is justified.\n4. Constitutional Law \u00a7 46 \u2014 refusal to dismiss court-appointed counsel\nIn this prosecution for rape, burglary and felonious assault, the trial court did not err in the denial of defendant\u2019s motion to dismiss his court-appointed attorney on grounds that the attorney had urged defendant to plead guilty to first degree' burglary, had \u201cmisled\u201d defendant, his wife and mother, hadn\u2019t come to see defendant regularly, and had served as an assistant district attorney, since it is clear that defendant had no reasonable objection to his attorney\u2019s conduct or preparation of his case, and the court had no reason to believe that the relationship between defendant and his counsel had deteriorated so as to prejudice the presentation of his defense.\n5. Constitutional Law \u00a7 46\u2014 desire to employ counsel \u2014 refusal to dismiss court-appointed counsel\nDefendant\u2019s assertion that he wished to employ his own counsel, made on the day trial was to begin without the appearance or even the name of a single attorney who might be privately employed to represent him and with no claim that he had funds to employ counsel, was no ground for dismissal of his court-appointed counsel.\n6. Constitutional Law \u00a7 46 \u2014 court-appointed counsel \u2014 former assistant district attorney \u2014 motion to dismiss\nCourt-appointed counsel\u2019s brief former tenure as an assistant district attorney constituted no conflict of interest which would require his dismissal upon motion by defendant.\n7. Criminal Law \u00a7 55.1 \u2014 blood grouping tests\nThe results of blood grouping tests are generally admissible in criminal trials.\n8. Criminal Law \u00a7 55.1\u2014 blood grouping tests \u2014 relevancy in rape trial\nThe results of blood grouping and absorption inhibition tests establishing that a vaginal fluid sample taken from an alleged rape victim contained type \u201cB\u201d or \u201cAB\u201d blood, that the victim and a male friend of the victim had type \u201cA\u201d blood, and that defendant had type \u201cB\u201d blood were relevant in this rape prosecution to negate a possible defense contention that semen found in the victim\u2019s vagina was deposited in a consensual sexual encounter by the victim\u2019s male friend.\n9. Criminal Law \u00a7 55.1 \u2014 blood absorption inhibition tests \u2014 reliability and validity\nThe reliability and validity of absorption inhibition tests were sufficiently demonstrated to render them admissible in a rape prosecution where an expert forensic chemist testified that both defendant and the victim were \u201csecretors\u201d whose blood types could be determined from body fluids other than blood, the witness testified at length to his methodology, and the witness conducted the tests himself and was carefully precise in his testimony.\n10. Criminal Law \u00a7 72\u2014 age \u2014 lay' opinion testimony\nLay witnesses who had adequate opportunity to observe and in fact did observe defendant may state their opinion regarding the age of a defendant in a criminal case when the fact that he was at the time in question over a certain age' is one of the essential elements to be proved by the State; therefore, the trial court in a rape case properly permitted lay opinion testimony regarding defendant\u2019s age for the purpose of proving that he was more than sixteen years of age at the time of the rape, this being an essential element of the crime.\n11. Criminal Law \u00a7\u00a7 72, 80.1 \u2014 certificate showing birth certificate information \u2014 no official record \u2014 inadmissibility\nA \u201cCertified Certificate of Birth\u201d signed by a Deputy Registrar which was no more than the Deputy Registrar\u2019s assertion of what she found on the recorded birth certificate was double hearsay and inadmissible in a rape prosecution to show defendant\u2019s age since the certificate was not a certified copy of any official record so as to be admissible under G.S. 130-66, 8-34, or 8-35, and there was no showing that it was certified by the State Registrar or an authorized agent thereof; however, the admission of the certificate was rendered harmless by defendant\u2019s own testimony establishing that he was more than sixteen years old at the time the rape occurred.\n12. Criminal Law \u00a7 29.1 \u2014 denial of motion for mental examination\nThe trial court did not err in the denial of defendant\u2019s pretrial motion for a mental examination to determine his capacity to stand trial without conducting a formal inquiry into his mental capacity where the only evidence in support of the motion was counsel\u2019s assertion that defendant\u2019s apprehension of the seriousness of the charge against him had failed to inspire any effective communication by defendant with counsel, and the record contains nothing to indicate defendant\u2019s incapacity to stand trial and demonstrates his understanding and articulation concerning the charges against him.\n13. Criminal Law \u00a7 66.9\u2014 pretrial photographic procedures \u2014 defendant\u2019s different hairdo\nPretrial photographic procedures were not unnecessarily suggestive because defendant\u2019s hairdo was different from others in the stack of photographs since the hairdo was not the basis for the identification of defendant.\n14. Criminal Law \u00a7 66.12\u2014 identification at preliminary hearing \u2014 effect on in-court identification\nRape victim\u2019s in-eourt identification of defendant was not tainted by her identification of defendant at the preliminary hearing, where he was the only black male in the courtroom, where there was no evidence that her identification of him at the preliminary hearing had any effect on her identification at trial.\n15. Criminal Law \u00a7 66.14\u2014 in-court identifications \u2014 independent origin\nThe trial court in a rape case properly admitted the in-court identifications of defendant by a rape victim and another witness where the court determined upon supporting evidence that pretrial identification procedures were not impermissibly suggestive and that the in-court identifications arose independently, from adequate observation at the time of the crime, and were not tainted by any pretrial conduct of any law enforcement officer or court personnel.\n16. Criminal Law \u00a7 62 \u2014 denial of polygraph test\nDefendant\u2019s rights to confrontation, counsel, due process and equal protection were not violated by denial of his pretrial motion to undergo a polygraph examination, particularly since defendant refused the State\u2019s offer to administer a polygraph examination on condition that defendant and the State stipulate the admissibility of the results.\n17. Criminal Law \u00a7\u00a7 42.3; 84 \u2014 rape case \u2014 coat worn, by assailant \u2014 variance in description in warrant and actuality\nAlthough an affidavit for a search warrant contained a rape victim\u2019s description of the coat worn by her assailant as a \u201cbrown three-quarter length coat with fur collar,\u201d a black and white tweed three-quarter length coat with a fur collar seized pursuant to the warrant was relevant and properly admitted in defendant\u2019s trial for rape since the variance in description and actuality of the color affected the weight but not the admissibility of the evidence, and the description in the warrant was sufficiently precise to preclude any doubt that the coat seized was the one authorized to be taken.\n18. Rape \u00a7 5 \u2014 submission procured by use of gun \u2014 sufficiency of evidence\nThe State\u2019s evidence in a rape case was sufficient to permit the inference that the victim\u2019s submission was procured through the use of a gun defendant carried and was sufficient to overcome defendant\u2019s motion for nonsuit of the charge of first degree rape where it tended to show that defendant carried a gun with a \u201cvery long barrel\u201d in full view and waved it in his hands, that the victim told her companion, \u201cRun. He has a gun,\u201d then returned to her apartment, locked the door and called the police, and that defendant kicked the door in, discovered her hiding place and dragged her out of the apartment and into a field where he had intercourse with her, again brandishing the gun in one hand.\n19. Rape \u00a7 3 \u2014 indictment \u2014 procurement of submission \u2014 two means alleged conjunctively\nAn indictment for rape charging that the prosecutrix had her resistance overcome or her submission procured \u201cby the use of a deadly weapon and by the infliction of serious bodily injury\u201d correctly charged the offense of first degree rape, and defendant was not prejudiced by the inclusion of the \u201cserious bodily injury\u201d allegation where the court submitted the issue of first degree rape to the jury solely on the theory, supported by the evidence, that the victim\u2019s submission was procured by the use of a deadly weapon.\n20. Indictment and Warrant \u00a7 17\u2014 two means alleged conjunctively \u2014 proof of one \u2014 variance\nWhere an indictment sets forth conjunctively two means by which the crime charged may have been committed, there is no fatal variance between indictment and proof when the State offers evidence supporting only one of the means charged.\n21. Rape \u00a7 7 \u2014 death sentence vacated \u2014 substitution of life imprisonment\nSentence of death imposed for first degree rape is vacated and the case is remanded for substitution of a sentence of life imprisonment.\nDependant appeals from judgment of Thornburg, J., at the 23 June 1975 Session of Mecklenburg Superior Court. Docketed and argued as No. 106, Fall Term 1975.\nRufus L. Edmisten, Attorney General, by Edwin Speas, Jr., Special Deputy Attorney General, and Jack Cozort, Associate Attorney, for the State.\nTate K. Sterrett, Attorney for defendant appellant." }, "file_name": "0270-01", "first_page_order": 290, "last_page_order": 314 }