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North Carolina v. Leggett

Filed: March 3, 1982.

STATE OF NORTH CAROLINA
v.
LISTON LEGGETT, JR.



Appeal by the defendant from Seay, J., 4 May 1981 Criminal Session of Forsyth Superior Court.

Mitchell, Justice.

Mitchell

The defendant first contends that the trial court committed reversible error by reading the bills of indictment against him to prospective jurors. The defendant asserts that the trial court thereby violated the express terms of G.S. 15A-1213 and G.S. 15A-1221(b). We do not agree.

G.S. 15A-1221(b) prohibits the reading by any person of bills of indictment against the defendant to prospective jurors or to the jury during jury selection or trial. G.S. 15A-1213 provides:

Prior to selection of jurors, the judge must identify the parties and their counsel and briefly inform the prospective jurors, as to each defendant, of the charge, the date of the alleged offense, the name of any victim alleged in the pleading, the defendant's plea to the charge, and any affirmative defense of which the defendant has given pretrial notice as required by Article 52, Motions Practice. The judge may not read the pleadings to the jury.

The defendant specifically complains that the trial court by its opening statement to prospective jurors in the present case violated both statutes. The trial court's opening statement was as follows:

During the course of this trial when I use the word defendant, I will be referring at all times to Liston Leggett, Jr. He has come into court and has entered pleas of not guilty to a charge of first-degree sexual offense, specifically that on December 7th, 1980, he did with force and arms, commit a first-degree sexual offense upon Elizabeth Kay Martin, that

he did this by force and against her will, and employed in the course thereof a dangerous or deadly weapon, and he is further charged and has entered a plea of not guilty to the felony of kidnapping in that he's charged with kidnapping Elizabeth Kay Martin on December the 7th, 1980, and he has come into court and also entered a plea of not guilty to a charge of attempting to rape Elizabeth Kay Martin by force and against her will, employing a deadly weapon, a knife, on December 7th, 1980.

The State has correctly pointed out that the three bills of indictment against the defendant, exclusive of captions and signature lines, constitute twenty-seven lines in the printed record. That portion of the statement by the trial court complained of by the defendant consists of thirteen lines in the printed record. Clearly the trial court did not read the indictments to the jury as prohibited by G.S. 15A-1213 and G.S. 15A-1221(b). By its previously quoted statement to prospective jurors, the trial court merely drew information from the bills of indictment to the extent necessary to identify the defendant and explain the charges against him and the circumstances under which he was being tried. In so doing, the trial court did not commit error. See State v. McNeil, 47 N.C. App. 30, 266 S.E.2d 824, appeal dismissed, 301 N.C. 102, 273 S.E.2d 306 (1980), cert. denied, 450 U.S. 915, 67 L. Ed. 2d 339, 101 S. Ct. 1356 (1981). To the contrary, this statement by the trial court was necessary to inform the prospective jurors of the circumstances surrounding the cases against the defendant as required by the specific terms of G.S. 15A-1213.

Additionally, we think the statement of the trial court was consistent with the spirit of each statute in question. The legislature apparently intended that jurors not be given a distorted view of the case before them by an initial exposure to the case through the stilted language of indictments and other pleadings. The statement by the trial court in the present case entirely complied with this intent and was not error.

The defendant next contends that the trial court erred by allowing the State to introduce evidence that Miss Martin identified him as the perpetrator of the crimes charged by choosing him from a physical line-up in which he was required to participate. This contention is without merit.

We note at the outset that the record on appeal does not reflect any motions for voir dire hearings or any objections taken to the victim's in-court identification of the defendant or objections to the victim's testimony relating to her pretrial line-up or photographic identifications of the defendant. Therefore, the defendant failed to preserve his right to except to such evidence and effectively waived his right to raise any contentions concerning it on appeal. State v. Hedrick, 289 N.C. 232, 234, 221 S.E.2d 350, 352 (1976); Gasque v. State, 271 N.C. 323, 339, 156 S.E.2d 740, 751 (1967), cert. denied, 390 U.S. 1030, 20 L. Ed. 2d 288, 88 S. Ct. 1423 (1968); Rules 9 and 10, North Carolina Rules of Appellate Procedure. Nevertheless, due to the gravity of the offenses and ...


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