Defendant brings before this Court eight assignments of error for review in which he contends he is entitled to a new trial. For the reasons stated below, we disagree with each of defendant’s assignments of error and find that he received a fair trial, free from prejudicial error.
Under assignment of error number one, the defendant asks the Court to determine whether defendant’s exhibits 19-30 were discoverable by him at trial. Defendant is unaware of the contents of these exhibits which were part of a police officer’s file. Under G.S. 15A-903 the State must disclose to defendant, upon proper request, information concerning statements made by the defendant, his prior criminal record or tangible objects material to the preparation of a defense. However, G.S. 15A-904 protects from disclosure reports, memoranda or other internal documents made by persons acting on behalf of the State’s investigation and those statements made by witnesses or prospective witnesses of the State to anyone acting on behalf of the State. In
State v. Hardy,
In the case sub judice the trial court conducted an in camera inspection of thirty exhibits. As a result of this inspection defendant’s exhibits 19-30 were found to be non-discoverable. Although Judge Bruce failed to make specific findings of fact concerning each excluded exhibit, he did seal in an envelope the excluded material and preserved it in the record.
We have reviewed each of the excluded exhibits consisting primarily of police records and statements of prospective witnesses. The information in these excluded exhibits would have added nothing to the evidence produced at trial and would have been of no assistance to the defendant at trial. As a result we find no prejudicial error resulted from the failure of the trial court to allow discovery of the defendant’s exhibits 19-30 and this assignment of error is overruled.
In his second assignment of error the defendant contends that the trial court erred by permitting the victim, Ms. Reep, to make an in-court identification of the defendant as her assailant. The defendant attacks the in-court identification on three grounds.
(A) Defendant first contends that any in-court identification was irreparably tainted when the police conducted a photographic “show-up” by showing the victim a single photograph of a white male matching the description of her assailant. Although such a procedure may, under some circumstances, be suggestive there is no evidence that this photograph was of the defendant. In fact, the victim unequivocally stated that the person in the photograph was not her assailant. We fail to see how this specific photographic “show-up” could in any way lead to a possible misidentification of the defendant in court.
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(B) Secondly, defendant attacks the court’s refusal to suppress the victim’s in-court identification on the grounds that the trial court’s determination that a courtroom confrontation between the victim and the defendant was not suggestive is not supported by the evidence presented at the
voir dire
hearing. In determining whether such a confrontation is unconstitutionally suggestive, the trial court must consider the totality of the circumstances.
State v. Thomas,
(C) Thirdly, defendant contends the in-court identification was irreparably tainted when the victim was hypnotized prior to trial. Defendant argues that such a procedure is inherently suggestive. A review of the record discloses nothing which might remotely suggest that the victim’s identification of the defendant was affected by the hypnosis. The hypnosis occurred months before the defendant was identified and there is no evidence that any suggestive remarks were made to the victim during her hypnosis. As stated by Justice Lake in
State v. McQueen,
In his third assignment of error defendant argues that Judge Bruce committed prejudicial error when he allowed the State to question the victim, on re-direct examination, about items missing from her home after the defendant left when no mention of these *354 missing items had been made on direct examination. The record indicates that the district attorney had failed to establish during the direct examination of Ms. Reep that any property had been taken from the home, person or presence of the victim as required for a conviction of robbery with a dangerous weapon as defined in G.S. 14-87. However, G.S. 15A-1226(b) provides, “[t]he Judge in his discretion may permit any party to introduce additional evidence at any time prior to verdict.”
Defendant concedes that the trial judge had within his discretion the authority to permit the State to introduce new evidence on re-direct examination. However, he contends he was surprised by the additional evidence and was thereby prejudiced. In
State v. Carson,
Defendant maintains in his fourth assignment of error that the trial court erred by allowing police officer Matthews to testify that, “He (the husband) got a call saying she had been raped.” Defendant contends the statement Was improper opinion testimony invading the province of the jury and was not offered for corroborative purposes. The contested statement made by Officer Matthews is not inadmissible hearsay because it does not refer to what the husband said to the officer. Instead, the statement was in part an explanation of why the husband was home with his wife. In addition, we fail to see how the word “raped” was prejudicial since the victim had already given a detailed account of the crime during her testimony. The defendant has failed to show how the verdict in this case was influenced by this statement. G.S. 15A-1443(a);
State v. Turner,
Defendant argues in his fifth assignment of error that the trial judge erred by refusing to dismiss the charge of armed robbery at the close of the State’s evidence. Defendant contends the deadly weapons he possessed at the time of the crimes were not used to commit the robbery. This contention is ludicrous. The *355 defendant used the weapons to compel the victim’s cooperation and enable him to bind, blindfold and gag her. While Ms. Reep was bound and gagged the defendant took several items of jewelry including three rings from her hand. There is no doubt that the deadly weapons were used in the commission of the robbery. This assignment of error is overruled.
Defendant advances in his sixth assignment of error the argument that G.S. 8-58.6, which prohibits a defendant from cross-examining a rape victim about prior acts of misconduct, violates his right to equal protection and due process under the law. Neither the Constitution of the United States nor the Constitution of North Carolina requires “that the same rules apply to incompatible classes.”
State v. Stafford,
Defendant also asserts that G.S. 8-58.6 violates his right to due process under the law. We recently upheld the constitutionality of G.S. 8-58.6 in
State v. Fortney,
Defendant next assigns as error the trial court’s refusal to prevent his wife from testifying for the State over his objection.
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Although G.S. 8-57 makes a spouse competent to testify as a witness for the defense, it does not make a spouse competent to testify in a criminal case for the State. In effect G.S. 8-57 left intact the common law rule that a spouse is incompetent to testify against the other spouse in a criminal case. However, in
State v. Freeman,
In his brief defendant suggests that Ms. Waters was compelled to testify on behalf of the State against her husband. A review of the record discloses no subpoena commanding Ms. Waters’ appearance or testimony. Likewise, a review of the transcript, including a voir dire hearing concerning the defendant’s objection to Ms. Waters’ testimony, fails to produce any evidence that Ms. Waters was being compelled to testify. As a result we review Ms. Waters’ testimony only on the issue of competency and do not consider the merits of whether a wife may be compelled to testify against her husband. This assignment of error is overruled.
Defendant finally argues that the trial court erred in summarizing the contentions of the State in regard to certain circumstantial evidence presented at trial. Specifically defendant argues that the court misstated facts concerning the victim’s identification of the vehicle driven by her assailant and facts concerning the defendant’s access to and knowledge of the use of adhesive tape.
Upon review of Judge Bruce’s charge to the jury and the transcript we believe the judge gave a fair and accurate summary of the circumstantial evidence presented by the State. We also note that the defendant made neither an objection to the judge’s summary of the evidence nor a request for further instructions. If there was a slight misstatement of any kind concerning circumstantial evidence, it was harmless beyond a reasonable doubt.
*357 We believe that the defendant received a fair and impartial trial free of prejudicial error.
No error.