On appeal by defendant as a matter of right from the judgments of Martin, Judge, entered at the 26 May 1981 Criminal Session, Chatham Superior Court. Defendant was charged in indictments, proper in form, with the first-degree murder and kidnapping of Jean Bateman Gaines and the commission of an armed robbery connected therewith on 10 March 1981. The jury found defendant guilty as charged on each count. Upon the jury's recommendation, the trial court imposed a sentence of life imprisonment for the murder conviction. The trial court sentenced defendant to a term of life imprisonment for the kidnapping to commence at the expiration of the previous sentence for the murder and imposed a prison term of thirty years for the armed robbery to commence at the expiration of the kidnapping sentence. Defendant's motion to bypass the Court of Appeals on the robbery conviction was allowed on 15 October 1981.
Defendant brings forward five assignments of error for our review which concern the admission of his inculpatory statements, the propriety of the District Attorney's argument to the jury, and the correctness of the trial court's recapitulation of the evidence in its instructions to the jury. After a thorough and careful consideration of defendant's contentions, we conclude that he received a fair trial free from prejudical error.
Defendant first argues that evidence of his pre-trial confessions to the charged crimes should have been suppressed. We disagree. Upon defendant's pre-trial motion to suppress his inculpatory
statements, the trial court found inter alia that defendant was fully advised of his constitutional rights three times, that he acknowledged his understanding of those rights on each occasion, that he voluntarily elected to forego his privileges and signed the required waiver forms, and that he seemed coherent and sober during his interrogation and conversation with the various police officers. Defendant did not except to any of the trial court's findings of fact in its order denying the motion to suppress. Nevertheless, he now maintains that the trial court's findings were erroneous because no evidence was adduced at the hearing which tended to show that defendant knowingly and intelligently waived his constitutional rights. The state of the record on appeal precludes our consideration of this contention. Defendant has failed to include in the record the substance of the testimony presented to and heard by the trial judge at the suppression hearing. All we have before us is the judge's final order upon the matter. It is plain that we cannot engage in speculation and assume error in the suppression ruling when no aberration can be fairly and affirmatively ascertained from the record.
[I]t is well recognized that a silent record supports the presumption that the proceedings in the court below were regular and free from error. State v. Mullis, 233 N.C. 542, 64 S.E.2d 656. Further, it was the duty of the defendant to see that the record was properly made up and transmitted, and when the matter complained of does not appear of record, defendant has failed to show prejudicial error. State v. Childs, 269 N.C. 307, 152 S.E.2d 453. . . .
State v. Cutshall, 278 N.C. 334, 346, 180 S.E.2d 745, 752 (1971) (citation omitted). Presuming then, as we must in this case, that the trial court's factual findings, supra, were supported by competent evidence, we are also compelled to conclude that those findings adequately supported the corresponding legal determinations that defendant "freely, knowingly, intelligently and voluntarily waived [his constitutional] rights and thereupon made the statements to the officer" on the occasions in which he admitted his guilt.*fn1 (Emphases added.)
In addition, we are not persuaded that the foregoing legal conclusion was deficient in any respect due to the absence of an express factual finding as to the extent and level of defendant's education or intelligence. The trial court found that defendant affirmed his understanding of his rights prior to each waiver. The ability to understand ordinarily implies the possession of the minimal amount of intelligence required for making independent, rational decisions. Nothing in this record indicates that defendant was an exception to this rule or that an issue to this effect was ever raised at the hearing. In fact, defendant presented no evidence whatsoever at the hearing. In these circumstances, we decline to hold that a finding that defendant understood his rights when he waived them was insufficient to support a legal conclusion that defendant knowingly and intelligently executed those waivers.
Defendant next maintains that the district attorney improperly argued his personal beliefs to the jury by insinuating that the people of the county expected a conviction. We find that the statements of the district attorney to which defendant excepted were not reasonably susceptible to such an interpretation. The district attorney was merely thanking the jury for its attentiveness during the trial and expressing additional gratitude to the State's witnesses and the law enforcement officials who assisted in the preparation and presentation of the case. We perceive no transgression in this and hold that such expressions were well within the permissible bounds of jury argument. See State v. Lynch, 300 N.C. 534, 268 S.E.2d 161 (1980); State v. King, 299 N.C. 707, 264 S.E.2d 40 (1980).
Defendant finally argues that the trial court incorrectly summarized certain evidence in its instructions. Defendant has, however, waived his right to complain of the alleged "misstatement" on appeal because he did not make a timely objection thereto at trial and thereby provide the court with an opportunity to correct itself, if necessary, before the jury retired. State v. Jones, 303 N.C. 500, ...