Opinion
No. 112A83
Filed 2 February 1984
1. Criminal Law 66.4 — photographic and lineup identifications — defendant only person in both — no impermissible suggestiveness Pretrial photographic and live lineup identification procedures were not impermissibly suggestive because defendant was the only person who appeared in both photograph and live lineups where a rape victim could make no positive identification at the first photographic procedure but made a tentative identification of defendant as her assailant upon viewing the photographs a second time; the victim testified that her reluctance to make a more positive identification at that time was due to the fact that she realized the seriousness of the offenses charged and that there were certain identifying features not visible in the photograph; and the victim testified that she based her identification of defendant at the live lineup on the fact that she saw freckles on defendant's face which did not appear on the photograph and that she also recognized certain distinctive features of defendant's profile.
2. Criminal Law 66.4 — photographic and lineup identification procedures — hypnosis prior to live lineup — procedures not impermissibly suggestive Pretrial photographic and live lineup identification procedures were not impermissibly suggestive because the victim was hypnotized prior to the live lineup to see if she could recall why defendant's photograph had bothered her where the victim, immediately after the assault, had provided law enforcement authorities with a complete, detailed, and reasonably accurate description of her assailant, and where the victim testified that no new information developed as a result of the hypnotic session.
3. Constitutional Law 30; Bills of Discovery 6 — statements of witness — no discovery for voir dire hearing Defendant was not entitled to discovery of the victim's statement for the purpose of cross-examination at a voir dire hearing on a motion to suppress her identification testimony even though the voir dire hearing took place at trial after the jury had been selected. Rather, defendant's rights were protected when defendant was provided with the victim's statement prior to her cross-examination before the jury.
4. Criminal Law 86.5 — cross-examination of defendant — viewing of pornographic movie In a prosecution for first degree rape and first degree sexual offenses, even if it was error for the trial court to permit, for the purpose of showing prior disparaging conduct, cross-examination of defendant about his viewing a pornographic movie in a motel room with a female companion five days after the crimes charged which depicted the same kind of sex acts with which defendant was charged, such error was harmless when viewed in the context of all the evidence and in light of the substantial evidence of defendant's guilt.
5. Rape and Allied Offenses 5 — first degree rape and sexual offenses — use of deadly weapon — infliction of serious injury — sufficiency of evidence The evidence in a prosecution for first degree rape and first degree sexual offenses was sufficient for the jury to find that defendant employed or displayed a deadly weapon where it tended to show that the victim was threatened with a pair of vise grips, notwithstanding defendant used the grips to feign the presence of a gun, since the victim had every reason to fear that the vise grips could and would be used to harm her. Furthermore, the evidence was sufficient for the jury to find that defendant inflicted serious personal injury on the victim where it tended to show that the victim suffered a bruised and swollen cheek, a cut lip, and two broken teeth.
BEFORE Phillips, J., at the 29 November 1982 Criminal Session of Superior Court, ONSLOW County, defendant was convicted of three counts of first degree sexual offense and one count of first degree rape. He appeals from the imposition of two consecutive life sentences. Heard in the Supreme Court 3 October 1983.
Rufus L. Edmisten, Attorney General by Special Deputy Attorney General Ann Reed, for the State.
Marc D. Towler, Assistant Appellate Defender, for defendant-appellant.
Justice MARTIN concurring.
Chief Justice BRANCH joins in this concurring opinion.
Justice EXUM dissenting.
Justice FRYE joins in this dissenting opinion.
As a basis for his appeal, defendant assigns as error the denial of his motion to suppress the victim's identification testimony; the trial court's refusal to permit defense counsel to view the victim's statements prior to cross-examining her during the voir dire hearing on the motion to suppress; the trial court's permitting the prosecutor to cross-examine the defendant concerning certain acts of misconduct; and the trial court's failure to dismiss the charges where there was insufficient evidence that defendant either employed a deadly weapon or inflicted personal injury on the victim. We find no error.
The facts, briefly stated, are as follows: On 21 July 1982, Mrs. Alice Kathleen Wilson awoke at approximately 3:00 a.m. to find a man standing at the foot of her bed. Over the course of the next hour and fifteen minutes, she endured a nightmare of the most degrading perversion. She was subjected to unnatural sexual acts; she was threatened with a pair of vise grips; she was beaten and she was raped. Mrs. Wilson was twenty-seven years old at the time. She was married, and the mother of three young children, the youngest of whom remained asleep in the bedroom where the assaults took place. Her husband was at work. We deem it unnecessary to further stain the pages of our reports with the sordid details of this victim's ordeal. State v. Warren, 309 N.C. 224, 311 S.E.2d 266 (1983). Suffice it to say that as a result of the victim's detailed description of her assailant, the defendant was subsequently arrested, charged, and convicted of these crimes. Additional facts necessary to a determination of the issues will be discussed in the opinion.
Defendant first contends that the trial court erred in denying his motion to suppress the identification testimony of Mrs. Wilson, arguing that the testimony was the product of a pretrial identification procedure which was so impermissibly suggestive that it created a substantial likelihood of irreparably mistaken identification.
Following a voir dire hearing on defendant's motion to suppress, the trial court made the following findings of fact:
2. That Alice Kathleen Wilson retired for bed at approximately one o'clock A.M. on the 21st of July and before retiring for bed she left the lights on in her hallway, living room and kitchen.
3. That the lights from the kitchen and living room shown in through her bedroom.
5. That at 3:00 A.M. on July 21st, 1982, Mrs. Wilson awoke from her sleep and observed a black male standing over her. That this person grabbed Mrs. Wilson and forced her to submit to various acts of sexual and oral intercourse within her bedroom. That this intruder was in Mrs. Wilson's bedroom for an hour and 15 minutes and that during this time Mrs. Wilson was within a foot of him for an hour of that time.
6. That these various acts of sexual intercourse and oral intercourse occurred in an area of Mrs. Wilson's bedroom where she could see very clearly who her intruder was because of the light emanating from the kitchen into her bedroom.
8. That Mrs. Wilson described her assailant as being approximately 5 feet 8 inches tall, 160-165 pounds, wearing dark navy blue jogging shorts, dark tee shirt, white high-top Nike tennis shoes with a black swirl on the side of the tennis shoes, almond eyes, high cheek bones, fairly thick lips, and a freckle on the left side of her assailant's face.
9. That her assailant left her house at approximately 4:15 A.M. and Mrs. Wilson thereafter reported the sexual assault to the police. That at this time the Jacksonville Police Department placed the description of Mrs. Wilson's assailant over the radio and this was disseminated to various police officers in Jacksonville.
10. That at approximately 4:40 A.M. Officer Jim Shingleton of the Jacksonville Police Department stopped a person along LeJeune Blvd. in Jacksonville meeting the description of Mrs. Wilson's assailant. That Officer Shingleton frisked this person and was in this person's presence for a period of about 2 minutes. That thereafter this person ran from Officer Shingleton into the woods along Lejeune Blvd. and was not to be found on that particular morning.
11. That on July 26th, 1982 Officer Shingleton saw the defendant at Dunkin' Donuts in Jacksonville located 2 houses away from 104 Sherwood Rd. and at that time seized the defendant and took him to the police station in Jacksonville. At that time the defendant granted permission to Detective Steve Smith of the Jacksonville Police Department to search his wall locker. That Officer Smith after executing said search returned Lesly Jean to the police department where Lesly Jean consented to the taking of his photograph. Lesly Jean was then released at 2:30 on the 27th of July, 1982.
12. That on July 27th, 1982, Detective Smith made up a photographic lineup containing 6 black males including the defendant. That these photographs depicted persons in their early 20's from the waist up including their head. That these pictures were all similar in physical description.
13. That these photographs were displayed to Alice Kathleen Wilson on July 27, 1982 at the Jacksonville Police Department. That these photographs were displayed in a folder. That these photographs were displayed in a non-suggestive manner. That Detective Smith never told Alice Kathleen Wilson which person or persons he suspected of this crime. That Alice Kathleen Wilson was unable at that time to select a photograph of her assailant.
14. That on July 28th, 1982, Alice Kathleen Wilson asked to see the photographic lineup again. That at 6:30 on July 28, 1982, she viewed the same photographs displayed to her on the 27th of July, 1982. That again these photographs were displayed in a non-suggestive manner by Detective Steve Smith and he did not tell her at any time which of those photographs, if any, were suspects in the rape case. That after viewing this photographic lineup, Mrs. Wilson told Detective Smith that photograph number 5 appeared as if he was looking at her and stated `That's the one who makes me feel sick.' That photograph number 5 is the defendant Lesly Jean.
15. That on August 3rd, 1982, Detective Steve Smith asked Lesly Jean if he would consent to reading various sentences into a tape recorder for the purpose of recording his voice. That Lesly Jean consented to doing this and did so. That Detective Smith also asked 4 other persons to do the same thing. That the voices were recorded onto a tape recording. That the voices are all fairly similar in sound.
16. That on August 4th, 1982, this tape recording was played for Mrs. Wilson and she selected voice number 3, that of Lesly Jean, as her assailant by stating the words `Number 3 sounds like the one that was in my bedroom the other night.' That this voice identification procedure was conducted in a non-suggestive manner. That Detective Smith never told Mrs. Wilson which of the voices if any were suspected of being her assailant.
17. That the investigation of this case continued until the 17th of September, 1982, whereupon Lesly Jean came to the police department of his own volition. That at this time Lesly Jean was not under arrest and was appearing at the police station voluntarily, of his own will and accord. That Lesly Jean agreed to participate in a live lineup which occurred at the police station. That this lineup consisted of, in addition to Lesly Jean, two other black males who were similar in physical size and description to Lesly Jean. That Lesly Jean was given a chance to select which position of the lineup he would stand and he selected to stand in between the two other black males. That Mrs. Wilson viewed these persons from behind a glass window wherein she only saw the person from the waist up including their head. That these persons had their shirts off at this time and Mrs. Wilson could see the bare chest of each person and his face. That these lineup procedures were conducted in a totally non-suggestive manner and Mrs. Wilson was never told by anyone who, if any, of the persons were suspected of being her assailant. That after viewing these persons for a few moments Mrs. Wilson selected person number 2, that of Lesly Jean, as being her assailant. That the defendant, before participating in the lineup, was told that he had a right to counsel and he voluntarily waived a right to counsel before participating in the lineup. That at this time Mrs. Wilson indicated that she was positive that Lesly Jean was in fact her assailant. That at the time of this viewing Mrs. Wilson noted a freckle on the left cheek of the defendant, the same freckle she recalled seeing the morning of her assault. At the time of this lineup procedure, no adversary judicial criminal proceedings had been initiated against the defendant.
18. That after Mrs. Wilson was attacked her description to the Jacksonville Police Department included her assailant's height, weight, complexion, distinguishing facial features, build, and voice. That this description was extremely detailed and more than ordinarily thorough. That she expressed no doubt what-so-ever that the defendant was the person who raped her.
19. That Mrs. Wilson's identification of the defendant in the courtroom is based on her observation of him in her house on the morning of July 21, 1982 and is not tainted by any pretrial identification procedures.
20. That the Court has had an opportunity [to] observe Mrs. Wilson's testimony in court during the Voir Dire and notes that the witness had over one hour and 15 minutes in the presence of the defendant. That during this time she was within extremely close proximity of the defendant for an hour out of this hour and 15 minutes. That during this time her degree of attention was directed towards the defendant at all times. That the accuracy of Mrs. Wilson's prior description of her assailant conforms with the way the defendant appears in court today and Mrs. Wilson is absolutely positive that the defendant is her assailant.
Based on the above findings of fact, the trial court concluded:
1. That the photographic lineup procedure was not impermissibly suggestive and was proper in all respects.
2. That the totality of the circumstances does not reveal a pretrial procedure so unnecessarily suggestive and conducive to irreparable mistaken identification as to offend fundamental standards of decency, fairness and justice.
3. That the photographic lineup procedure does not give rise to any likelihood of irreparable misidentification.
4. That the voice identification procedures were not impermissibly or unduly suggestive and were proper in all respects.
5. That the totality of the circumstances does not reveal a pretrial procedure so unnecessarily suggestive and conducive to irreparable misidentification as to offend fundamental standards of decency, fairness and justice.
6. That the voice identification procedure does not give rise to any likelihood of irreparable misidentification.
7. That the live lineup which occurred on September 17, 1982 was not impermissibly or unduly suggestive and was perfectly proper in all respects.
8. That the defendant did not have a constitutional right to the presence [of] counsel at the live lineup because no adversary judicial criminal proceeding had been initiated against the defendant prior to this confrontation.
9. That this identification procedure did not give rise to any likelihood of irreparable misidentification and was not so suggestive as to deprive the defendant of due process of law.
Sometime after viewing the photographic lineup, in late July or early August, Mrs. Wilson was hypnotized for purposes of determining further details concerning her description of the defendant. Mrs. Wilson stated that nothing new developed as a result of the hypnosis.
In support of his contention that the pretrial identification procedure was impermissibly suggestive, defendant points to the following:
(1) Defendant was the only person who appeared in both photographic and live lineups, therefore a possibility exists that Mrs. Wilson may have identified the defendant in the live lineup because he was the only man she had seen in the two previous photographic arrays. The record suggests otherwise.
After viewing the first photographic array, the victim could make no positive identification. She testified that she became physically ill that evening after viewing the photographs because one of them bothered her. She asked to view the same lineup the next day at which time she stated that the photograph of the defendant was the one that made her feel sick. At this point, then, the victim had made a tentative identification of the defendant as her assailant. She testified that her reluctance to make a more positive identification at that time was due to the fact that she realized the seriousness of the offenses charged and that there were certain identifying features not visible in the photograph. It was, nevertheless, a tentative identification which a live lineup merely served to reinforce once the victim was afforded an opportunity to observe certain details of her assailant's appearance not observable in the photograph. As she viewed the live lineup, the victim asked to view defendant's profile. She then became emotionally upset and identified the defendant as her assailant. She testified that she based her identification of the defendant at the live lineup on the fact that she saw freckles on the defendant's face which she observed on her assailant. She did not see the freckles on the front view photograph of the defendant which appeared in the photographic lineup. She also recognized certain distinctive features of the defendant's profile.
(2) Mrs. Wilson was hypnotized prior to viewing the live lineup in order to see if she could recall why defendant's photograph had bothered her. This fact, according to defendant, "greatly enhanced the possibility of an unconscious transference causing her to mistakenly relate to her recollection of defendant's photograph rather than to the features of the assailant she actually observed on the night of the crime." We reject defendant's argument based on two significant facts which emerge from this record. First, the victim, immediately after the assault, had provided law enforcement authorities with a complete, detailed, and, under the circumstances of the trauma she experienced, a reasonably accurate description of her assailant. Second, the victim testified that no new information developed as a result of the hypnotic session.
In his brief defendant argues that the original description given by Mrs. Wilson did not include the fact that the assailant's white shoes were tied with black shoelaces or that his jogging shorts had white stripes as did the shorts seized from defendant, hence the description "failed to include anything which would set the man apart from hundreds of joggers." The argument is specious.
We conclude that because the victim's initial description of her assailant was sufficiently detailed to result in a composite drawing upon which defendant's subsequent apprehension was based, and because the articulated basis for the victim's positive identification was independent of any possible suggestiveness in the procedure, the pretrial identification procedure cannot be said to be so impermissibly suggestive as to create a substantial likelihood of irreparable mistaken identification. The trial court's findings of fact support its conclusions of law and defendant's motion to suppress the identification testimony was properly denied. See State v. Chatman, 308 N.C. 169, 301 S.E.2d 71 (1983).
Defendant next contends that he was denied due process when the trial judge refused to permit defense counsel to view the victim's statement prior to cross-examining her during the voir dire hearing on the motion to suppress her identification testimony. Defendant argues that because the trial court denied his request without conducting an in camera hearing to determine whether the statement contained inconsistencies useful for impeachment purposes, reversible error was thereby committed. He cites to State v. Hardy, 293 N.C. 105, 235 S.E.2d 828 (1977), which held that G.S. 15A-904(a) does not bar discovery of prosecution witnesses' statements at trial and that the appropriate procedure for disclosure once a request has been made is for the trial judge to order an in camera inspection of the statement to determine its relevance for, as an example, impeachment purposes. In the instant case the voir dire hearing took place after the jury had been selected. Thus, argues defendant, although defense counsel requested the statement for purposes of cross-examination at the voir dire hearing on the motion as opposed to cross-examination before the jury, the voir dire hearing took place at trial. Therefore the trial judge was required to follow the in camera procedure outlined in Hardy once defense counsel requested the statement.
We addressed this issue in State v. Williams, 308 N.C. 357, 302 S.E.2d 438 (1983). In Williams the defendant, too, argued that the victim's statements were critical to defense counsel's cross-examination of the prosecuting witness at a voir dire hearing on a motion to suppress identification testimony. The jury had, however, not yet been empaneled in Williams. There we declined to extend the rule enunciated in Hardy to permit discovery of a prosecuting witness's statements for the purpose of cross-examination at the voir dire. We adhere to our holding in Williams and reject defendant's argument that the technical distinction of whether a jury has or has not been empaneled is of some consequence in determining whether the statements may be discoverable at trial. Rather, the issue is whether the statements are made available to the defendant during trial before a jury after direct examination of the witness. As we stated in Williams, "[w]hatever impeachment value there [is] in the victim's statements [goes] to the weight of the victim's identification of the defendant rather than to its admissibility." Id. at 361, 302 S.E.2d at 441.
The Legislature has spoken to this issue by amending G.S. 15A-903, effective for trials held after 14 July 1983. That section now reads: "(f) Statements of State's Witnesses. (1) In any criminal prosecution brought by the State, no statement or report in the possession of the State that was made by a State witness or prospective State witness, other than the defendant, shall be the subject of subpoena, discovery, or inspection until that witness has testified on direct examination in the trial of the case. (2) After a witness called by the State has testified on direct examination, the court shall, on motion of the defendant, order the State to produce any statement of the witness in the possession of the State that relates to the subject matter as to which the witness has testified. If the entire contents of that statement relate to the subject matter of the testimony of the witness, the court shall order it to be delivered directly to the defendant for his examination and use. (3) If the State claims that any statement ordered to be produced under this section contains matter that does not relate to the subject matter of the testimony of the witness, the court shall order the State to deliver that statement for the inspection of the court in camera. Upon delivery the court shall excise the portions of the statement that do not relate to the subject matter of the testimony of the witness. With that material excised, the court shall then direct delivery of the statement to the defendant for his use. If, pursuant to this procedure, any portion of the statement is withheld from the defendant and the defendant objects to the withholding, and if the trial results in the conviction of the defendant, the entire text of the statement shall be preserved by the State and, in the event the defendant appeals, shall be made available to the appellate court for the purpose of determining the correctness of the ruling of the trial judge. Whenever any statement is delivered to a defendant pursuant to this subsection, the court, upon application of the defendant, may recess proceedings in the trial for a period of time that it determines is reasonably required for the examination of the statement by the defendant and his preparation for its use in the trial. (4) If the State elects not to comply with an order of the court under subdivision (2) or (3) to deliver a statement to the defendant, the court shall strike from the record the testimony of the witness, and direct the jury to disregard the testimony, and the trial shall proceed unless the court determines that the interests of justice require that a mistrial be declared. (5) The term `statement', as used in subdivision (2), (3), and (4) in relation to any witness called by the State means a. a written statement made by the witness and signed or otherwise adopted or approved by him; b. a stenographic, mechanical, electrical, or other recording or a transcription thereof, that is a substantially verbatim recital or an oral statement made by the witness and recorded contemporaneously with the making of the oral statements." 1983 N.C. Sess. Laws, chapter 759.
In the case sub judice defendant was provided with the victim's statement prior to cross-examination before the jury. At that time the alleged "inconsistency" between the statement and her trial testimony was fully explored by defense counsel. That is, she testified that although she had not mentioned, as part of her initial description of her assailant, that he had a freckle or mole on the side of his face, she did tell the officer who compiled the composite drawing about the freckle. This fact was corroborated by the officer who prepared the composite. The assignment of error is without merit.
Defendant's third assignment of error concerns a matter brought out on cross-examination of the defendant which he contends was error because it was irrelevant to the issue being tried in the case, "highly inflammatory" and "extremely prejudicial."
At trial the defendant took the stand and testified on his own behalf. He testified on direct examination that on the night of 26 July he had been at the Deluxe Hotel with a "young lady" and from there went to Dunkin' Donuts where he was first apprehended. On cross-examination he was questioned further concerning what transpired at the Deluxe Hotel prior to his arrest. He admitted that he and the unidentified young woman were in the hotel room viewing pornographic movies depicting acts of sexually deviant behavior. The acts depicted were the same type of sexual acts that had been forced upon the victim five days earlier. Defendant argues that the conduct in question was not necessarily wrongful and therefore not admissible as a specific act of degrading conduct. The defendant further argues that even if this evidence is relevant, it should be excluded because its probative force is comparatively weak and the likelihood of its playing upon the passions and prejudices of the jury is great.
The State contends that this conduct related to defendant's character, or lack thereof, and was a proper subject for cross-examination. 1 Brandis on North Carolina Evidence 43 (1982). State v. Lynch, 300 N.C. 534, 268 S.E.2d 161 (1980). The State argues that this evidence of prior disparaging conduct by a defendant is properly admissible upon cross-examination of that defendant, not as substantive evidence of guilt, but rather for purposes of character impeachment. State v. McKenna, 289 N.C. 668, 224 S.E.2d 537, death penalty vacated, 429 U.S. 912, 50 L.Ed 2d 278 (1976); 1 Brandis on North Carolina Evidence 80.
The cases and authorities which tend to support the State's position are: State v. Sparks, 307 N.C. 71, 296 S.E.2d 451 (1982) (Exum, J., citing the general rule that a criminal defendant who testifies may be cross-examined for purposes of impeachment concerning any prior specific acts of criminal and degrading conduct but error here where prosecutor's query, in a first degree sexual offense case, concerning sexual improprieties failed to identify a specific act of misconduct); State v. Small, 301 N.C. 407, 272 S.E.2d 128 (1980) (Exum, J., holding no error in admissibility of evidence regarding defendant's sexual relations with other women and other forms of misconduct brought out on cross-examination of defendant himself); State v. Lynch, 300 N.C. 534, 268 S.E.2d 161 (Copeland, J., holding that district attorney could properly ask defendant on cross-examination if he had called the district attorney a "punk" and had mouthed the word "mother" to him); State v. Lester, 289 N.C. 239, 221 S.E.2d 268 (1976) (Exum, J., holding that an accused person who testifies as a witness may be cross-examined regarding prior acts of misconduct, in this case circumstances of defendant's undesirable discharge from military service); State v. Gurley, 283 N.C. 541, 196 S.E.2d 725 (1973) (Lake, J., holding defendant properly cross-examined about his possession of, familiarity with, and interest in pornographic magazines); and 1 Brandis on North Carolina Evidence 111 and cases cited thereunder.
We find it unnecessary to address the question of the admissibility of this evidence on cross-examination concerning defendant's conduct in watching these movies in the motel room with the young woman to show prior disparaging conduct. Assuming arguendo that it should not have been admitted, we find the error harmless. Taken in the context of all the evidence and in view of the substantial evidence of defendant's guilt, it is completely unreasonable to assume that this item of evidence was, in the minds of the jurors, a determining factor in assessing defendant's guilt. Immediately following the assault, the victim gave a description of her assailant from which a composite drawing was made. Defendant was recognized by a police officer and arrested based on this composite drawing. The victim made a positive voice identification, and an unequivocal in-court identification, based solely on her observations at the time of the crime. Results of blood tests pointed to the defendant as the perpetrator of the crime. Clothes matching those worn by the assailant were discovered in defendant's locker. There is no reasonable possibility that had the evidence been excluded, a different result would have been reached at trial. G.S. 15A-1443(a); State v. Jordan, 305 N.C. 274, 287 S.E.2d 827 (1982). We find no prejudicial error in the admission of this testimony.
Finally, defendant contends that the trial court erred in failing to dismiss the charges against him because of insufficient evidence that defendant either employed a deadly weapon or inflicted serious personal injury on the victim. He argues that although the vise grips employed by defendant in this case could possibly be considered a deadly weapon, because he employed them to feign the presence of a gun and "neither by words nor by gestures indicated that the Vice Grips (sic) would be used as a club," the evidence was insufficient to support a finding that defendant employed a deadly weapon. As we understand defendant's reasoning, he argues that because he threatened to shoot the victim with the vise grips, her fear that he was going to crush her skull with them was inconsistent with the manner in which the weapon was employed or displayed. The argument is specious. Irrespective of the impossibility of defendant's intent to shoot the victim with a pair of vise grips, the victim had every reason to fear that the vise grips could and would be used to harm her. The jury was instructed to consider "the nature of the Vice Grips (sic), the manner in which it is used and the size and strength of Lesly Jean as compared to Kathy Wilson." The evidence was sufficient for the jury to find that defendant employed or displayed a deadly weapon. See State v. Powell, 306 N.C. 718, 295 S.E.2d 413 (1982).
We, likewise, reject defendant's contention that there was insufficient evidence that he inflicted serious personal injury on the victim. Mrs. Wilson suffered a bruised and swollen cheek, a cut lip, and two broken teeth. The evidence was sufficient to support a finding of serious personal injury. See State v. Roberts, 293 N.C. 1, 235 S.E.2d 203 (1977).
The defendant in this case appears to have been ably represented both at trial and on his appeal. In light of the severity of his sentence, we have reviewed his assignments of error with care and find none sufficiently prejudicial to warrant a new trial.
Defendant received a fair trial free of prejudicial error.
No error.