Appeal by defendant from Washington, Judge. Judgments entered 7 May 1981 in Superior Court, Caswell County. Heard in the Court of Appeals 9 March 1982.
Martin (Harry C.), Judge. Judge Martin (Robert M.) concurs. Judge Whichard dissents.
Defendant contends there was insufficient evidence that the crime was committed with a deadly weapon. Mrs. Sherrill testified that she saw a weapon in defendant's right hand. Defendant was seen walking toward the Sherrill home carrying a rifle. Mr. Sherrill testified, without objection, "that is when he [the defendant] pointed a gun in my stomach and told me to back up and I did. He told me to cut the light off and I did because the Page 773} gun was on me at the time. He told me to sit down and I did because the gun was still on me." (Emphasis ours.) Defendant's contention is without merit. See State v. Thompson, 297 N.C. 285, 254 S.E.2d 526 (1979); State v. Evans, 25 N.C. App. 459, 213 S.E.2d 389 (1975).
Defendant further contends there was insufficient evidence that he was the person who committed the crime. We disagree. Mrs. Sherrill testified that she had seen or spoken with the defendant "every day or two" from August to December and that defendant had worked for the Sherrills as a day laborer and had helped them with their tobacco. The witness observed her assailant sufficiently to permit subsequent identification based on "the sound of his voice and the size and shape of him." Her credibility and the weight given to her identification testimony was properly for the jury. Defendant fails to show that the evidence of identification was inherently incredible. State v. Wilson, 293 N.C. 47, 235 S.E.2d 219 (1977).
During his final argument to the jury, defendant's counsel stated: "I argue and contend, ladies and gentlemen of the jury, that the State's has not introduced any statement or confession of the crime there to bring before you for you to consider and say this is some other evidence. I have here where the defendant admitted to doing this. . . . You don't have that evidence before you to consider."
The district attorney, in his closing argument, responded: "Okay, and you don't have the statement to consider, ladies and gentlemen of the jury, because the defendant objected to it." It is defendant's contention that the trial court erred in allowing the district attorney to argue improper matters relating to suppressed evidence and defendant's failure to testify. Defendant did not object to the state's argument, and as a general rule, such failure constitutes waiver. State v. Coffey, 289 N.C. 431, 222 S.E.2d 217 (1976). Moreover, defendant's counsel himself argued the matter of the suppressed evidence and, by implication, defendant's failure to testify; and it appears from the record that the trial court had apprised the jury of the matter of suppressed evidence prior to closing arguments. We find no evidence of gross impropriety upon the record before us that would require the trial court to intervene ex mero motu. State v. Britt, 288 N.C. 699,
220 S.E.2d 283 (1975); State v. Brown, 39 N.C. App. 548, 251 S.E.2d 706, cert. denied, 297 N.C. 302 (1979). The record does not support a finding of prejudicial error.
Defendant next contends that the trial court erred in commenting on defendant's failure to testify. The court's instructions were proper and in compliance with State v. Baxter, 285 N.C. 735, 208 S.E.2d 696 (1974). Moreover, there is nothing in the record before us to suggest that the trial court erred in stating the applicable law or in its summary of the facts.