State v. Greene

33 N.C. App. 228 | N.C. Ct. App. | 1977

CLARK, Judge.

The defendant contends that G.S. 14-72 (b) (2) and G.S. 14-54 (a) are unconstitutional in that the two statutes elevate the crimes from misdemeanors to felonies in violation of the due process and equal protection clauses of the Federal Constitution and the State Constitution. G.S. 14-72 (b) (2) makes the crime of larceny a felony if committed pursuant to a breaking or entering. G.S. 14-54 (a) makes breaking or entering a felony if done “with intent to commit any felony or larceny therein . ”

,It does not appear from the record on appeal that this question of constitutionality was raised in the trial court. When the State concluded its evidence and rested, defense counsel announced that he would “like to make the motions at this time.” The motions, whatever they were, were denied.

The procedure for raising the question is found in G.S. 15A-954(a) (1) and (c), which provide that a motion to dismiss on the ground that the statute alleged to have been violated is unconstitutional on its face or as applied to the defendant may be raised at any time in the trial court. Though the motion may be made at any time, if made and heard before trial under G.S. 15A-952, an unnecessary trial may be avoided. If the motion is based on unconstitutionality of the statute on its face, hearing would be limited to a consideration of the record and the questioned statute. See State v. Lee, 277 N.C. 242, 176 S.E. 2d 772 (1970). If the motion is based on unconstitutionality of the statute as applied to the defendant, an eviden-tiary hearing may be necessary for the purpose of determining its discriminatory application to the defendant. See Mobile Home Sales v. Tomlinson, 276 N.C. 661, 174 S.E. 2d 542 (1970).

It does not appear that defendant raised in the trial court the question of the constitutionality of the cited statutes, but appears that the question was raised for the first time on appeal. Ordinarily, an appellate court will not pass upon á constitutional question which was not raised and passed upon in the court below. State v. Jones, 242 N.C. 563, 89 S.E. 2d 129 (1955); N.C.R. App. P. 10; 1 Strong, N. C. Index, Appeal and Error § 3 (3d ed. 1976); 16 C.J.S., Constitutional Law § 96 (1956). Since the question of the constitutionality of the statutes, G.S. 14-72(b) (2) and G.S. 14-54(a), was not raised in the trial court, we decline to pass upon the question on this appeal.

During his argument to the jury, the District Attorney pointed his finger at the defendant and asked the jury to look at the defendant, to observe his size and build, and to recall the size and age of the witness Church. Defendant’s objection was overruled. It was stipulated that defense counsel argued to the jury that Church’s demeanor was that of one lying and that the District Attorney argued that Church’s demeanor was that of one afraid to testify. It is the general rule that argument to the jury must be supported by the evidence. State v. Crawford, 29 N.C. App. 487, 224 S.E. 2d 680 (1976). The District Attorney should not make characterizations of a defendant which are intended to prejudice him in the eyes of the jury when there is no evidence from which such characterization may legitimately be inferred. State v. Britt, 288 N.C. 699, 220 S.E. 2d 283 (1975). But in the case before us the jury had the opportunity to observe the size and build of the defendant who was present during trial; the District Attorney limited his argument to these physical characteristics without characterizing the defendant. The argument was relevant in view of the attack on the credibility and demeanor of the State’s witness. We find no abuse of discretion by the trial court in overruling defendant’s objection to this argument.

We find that defendant had a fair trial, free from prejudicial error.

No error.

Chief Judge Brock and Judge Vaughn concur.