State v. Swann

370 S.E.2d 533 (1988) 322 N.C. 666

STATE of North Carolina
v.
John Robert SWANN, III.

No. 181A86.

Supreme Court of North Carolina.

July 28, 1988.

Lacy H. Thornburg, Atty. Gen. by Philip A. Telfer, Asst. Atty. Gen., for the State.

Stephen P. Lindsay, P.A. by Stephen P. Lindsay, for defendant-appellant.

WEBB, Justice.

The defendant first assigns error to the trial court's denial of his motion to dismiss for impermissible pretrial delay. The defendant argues that this delay violated the speedy trial requirement of the Sixth Amendment to the United States Constitution, the due process requirements of the Fifth and Fourteenth Amendments to the United States Constitution, and the North Carolina Speedy Trial Act, N.C.G.S. § 15A-701. The defendant also claims that there is a separate speedy trial requirement in Article I, Section 19 of the North Carolina Constitution, and this requirement was also violated.

We first note that in his motion to dismiss at trial, the defendant only invoked the North Carolina Speedy Trial Act; defendant raises the constitutional issues for the first time on appeal. This Court will not ordinarily consider a constitutional question raised for the first time on appeal. State v. Dorsett, 272 N.C. 227, 158 S.E.2d 15 (1967). Nevertheless, we may do so in the exercise of our supervisory jurisdiction. Rice v. Rigsby, 259 N.C. 506, 131 S.E.2d 469 (1963).

It would not help the defendant if we considered the constitutional questions he has raised pursuant to the Fifth, Sixth and Fourteenth Amendments of the United States Constitution and Article I, Section 19 of the Constitution of North Carolina. Although the defendant says in his assignment of error that his right to a speedy trial is based on the Constitution of North Carolina as well as the Constitution of the United States, he argues only the question of whether the United States Constitution applies. The Sixth Amendment to the United States Constitution commands that "[i]n all criminal prosecutions the accused shall enjoy the right to a speedy and public trial." The United States Supreme Court has held in U.S. v. Marion, 404 U.S. 307, 92 S. Ct. 455, 30 L. Ed. 2d 468 (1971), that the speedy trial provision of the Sixth Amendment does not apply to the period before a defendant is indicted, arrested, or otherwise officially accused. We applied this rule in State v. McCoy, 303 N.C. 1, 277 S.E.2d 515 (1981).

The defendant argues that the rationale of Marion is that there was no need for the application of the speedy trial provision in that case because the defendant was protected by a statute of limitations. There is not a statute of limitations for the crimes with which the defendant was charged in this case and the defendant contends the speedy trial provision of the Sixth Amendment should apply to the pre-accusatory period. We do not believe the Court's holding in Marion was based on the fact that there was a statute of limitations. Nevertheless in U.S. v. MacDonald, 456 U.S. 1, 102 S. Ct. 1497, 71 L. Ed. 2d 696 (1982), there was no statute of limitations and the Court held the speedy trial clause does not apply to the pre-accusatory period. The defendant was arrested on 22 August 1985 and his trial began on 5 February 1986. The period before his arrest is not applicable in determining the defendant's Sixth Amendment rights. The defendant's trial commenced 167 days after he was arrested. He was not deprived of a speedy trial under the Sixth Amendment to the Constitution of the United States.

The defendant is not helped by the due process clause of the Fifth and Fourteenth Amendments to the United States Constitution. The United States Supreme Court dealt with the requirements for establishing a due process violation based on pre-accusation delay in U.S. v. Lovasco, 431 U.S. 783, 97 S. Ct. 2044, 52 L. Ed. 2d 752 (1977). This Court summarized the Lovasco holding in State v. McCoy, 303 N.C. 1, 277 S.E.2d 515:

Essentially a pre-accusation delay violates due process only if the defendant can show that the delay actually prejudiced the conduct of his defense and that it was engaged in by the prosecution deliberately and unnecessarily in order to gain tactical advantage over the defendant.

Id. at 7-8, 277 S.E.2d at 522. The defendant does not argue, nor does the record indicate, that the prosecution deliberately delayed the defendant's indictment. The delay was largely due to the fact that the victim never mentioned the incidents to anyone until April 1985, six months after the incidents occurred. There was no due process violation because of pretrial delay.

The defendant also contends it was error to deny his motion to dismiss for failure to comply with the Speedy Trial Act, N.C.G.S. § 15A-701.

The defendant at trial moved to dismiss for failure to comply with the Speedy Trial Act, N.C.G.S. § 15A-701. Under that statute, a defendant's trial must begin "[w]ithin 120 days from the date the defendant is arrested, served with criminal process, waives an indictment, or is indicted, whichever occurs last." N.C.G.S. § 15A-701(a1)(1) (1983). The statute provides that certain time periods are excluded from the computation of this 120-day period. Two are relevant to the present case:

(1) Any period of delay resulting from other proceedings concerning the defendant, including, but not limited to, delays resulting from:

. . . . .

(d) Hearings on any pretrial motions or the granting or denial of such motions;

(7) Any period of delay resulting from a continuance granted by any judge if the judge granting the continuance finds that the ends of justice served by granting the continuance outweigh the best interests of the public and the defendant in a speedy trial and sets forth in writing in the record of the case the reasons for so finding....

N.C.G.S. § 15A-701(b) (1987 Cumm.Supp.).

In the present case, the last of the four events specified in the statute was the defendant's indictment on 3 September 1985. The defendant's trial began on 5 February 1986, 155 days later. Within this time, the trial court granted the defendant's motion of 9 September 1985 to continue through 23 September 1985, and his motion of 23 September 1985 to continue through 7 October 1985. The time to be excluded due to these continuances is 28 days, under the rule enunciated in State v. Harren, 302 N.C. 142, 273 S.E.2d 694 (1981), that in calculating a time period, the first day is excluded and the last day is included.

On 7 October 1986, the defendant waived arraignment and requested a one-week extension to file motions otherwise required upon arraignment. This seven-day period was properly excluded under N.C.G.S. § 15A-701(b)(1)d. Thus, a total of 35 days is excludable from the 155 days between indictment and trial. The remaining 120 days meets the statutory requirement.

The defendant contends that the seven day period from 7 October 1985 should not be excluded because he was to be arraigned on 7 October 1985 and he could not have been tried that week if his motion had not been granted. The plain words of N.C.G.S. § 15A-701(b)(1)d require the exclusion of any period of delay which results from the granting of a pretrial motion. This seven day period was properly excluded. The defendant's first assignment of error is overruled.

The defendant next assigns error to the denial of his motion to dismiss on the ground there was not sufficient evidence to convict him. He argues that this motion should have been granted for three reasons. He says (1) the victim was incompetent to testify, (2) the victim did not testify as to the dates of the offenses charged, and (3) based on these first two assertions, the defendant was "more appropriately" guilty of a sex offense against a mental defective.

In passing on a motion to dismiss the court must consider all evidence, whether competent or incompetent, in the light most favorable to the State. State v. Allen, 279 N.C. 406, 183 S.E.2d 680 (1971). In another part of this opinion we hold that the victim was competent to testify, but assuming he was not, his testimony was admitted by the court and it was properly considered on the motion to dismiss.

As to his contention that the victim did not testify as to the dates of the offenses the defendant argues that the ages of both the defendant and the victim were essential in proving the charges. If the date of the offenses was not proved, says the defendant, essential elements of the offenses were not proved. The victim did not testify to the exact dates of the incidents but he did testify the first incident occurred shortly after his brother was born. He testified the second incident took place approximately one week later. The victim's mother testified that her youngest son was born 20 September 1984 and the first incident took place three to four weeks later. We hold this is sufficient evidence for the jury to find the dates of the offenses. In light of the fact that we hold the evidence was sufficient to be submitted to the jury for both the charges for which the defendant was tried, we do not discuss his third contention.

The defendant next contends the trial court erred in sentencing him to prison terms in excess of the presumptive term for the indecent liberties convictions, based on the aggravating factor of prior convictions. The defendant complains that (1) it was not clear whether the prior convictions the court relied on to aggravate the sentence were punishable by more than 60 days' confinement, (2) the court did not determine whether at the time of his earlier convictions the defendant had been represented by or had waived counsel, and (3) that the nature of his prior convictions did not merit the aggravation of the sentence.

The defendant's complaints have no merit. The defendant admitted during direct examination that he had four prior convictions, including one for damage to property and one for driving without a license. These two offenses are punishable by up to six months' imprisonment and one year imprisonment, respectively. N.C.G.S. § 14-160(a) (1986); N.C.G.S. § 20-28(a) (1983). On each of the findings of factors sheets, the trial judge marked the box indicating his finding that "[t]he defendant has a prior conviction or convictions for criminal offenses punishable by more than 60 days' confinement."

The burden of raising the issue of indigency and lack of assistance of counsel on a prior conviction is on the defendant. State v. Thompson, 309 N.C. 421, 307 S.E.2d 156 (1983). The defendant did not raise this issue at trial, so he cannot now complain that the court did not address it.

The "weight to be given mitigating and aggravating factors is a matter solely within the trial court's discretion." State v. Penley, 318 N.C. 30, 52, 347 S.E.2d 783, 796 (1986). The defendant has shown no abuse of discretion in the present case, and his assignment of error is overruled.

The defendant next assigns error to the consolidation of the four charges for trial. He argues that the consolidation for trial of offenses which allegedly occurred a week apart is not allowed under N.C.G.S. § 15A-926(a) which provides in part:

Two or more offenses may be joined in one pleading or for trial when the offenses, whether felonies or misdemeanors or both, are based on the same act or transaction or on a series of acts or transactions connected together or constituting parts of a single scheme or plan.

In State v. Williams, 308 N.C. 339, 302 S.E.2d 441 (1983), the defendant was charged with kidnapping, two counts of second degree rape, first degree burglary, second degree burglary and larceny. Some of the charges grew from an incident which occurred on 3 October 1976 and the other charges grew from an incident which occurred on 29 October 1976. The evidence showed that on both occasions the defendant entered the apartment of the same woman and raped her. This Court held there was a transactional connection between all the alleged crimes and found no error in the consolidation of them for trial. In State v. Bracey, 303 N.C. 112, 277 S.E.2d 390 (1981), the defendant was charged with committing three common law robberies within a period of ten days. The method of the robbery in each case was very similar to the robberies in the other two. This Court said there was a transactional connection between the alleged crimes and found no error in their joinder for trial. We hold based on the holdings of Williams and Bracey that there was no error in the consolidation of the charges for trial in this case.

The defendant next assigns error to the trial court's denial of his motion to continue. The motion, filed and heard on the first day of trial, was made for the reason that two essential witnesses for the defendant were absent or unavailable. The witnesses were identified on the written motion as Connie Robinson and Jocelyn Montgomery. In court, defense counsel identified them as Connie Robinson and Joyce Lynn Montgomery. Defense counsel stated, "I'm informed that these witnesses, one of whom is the fiancee of the defendant, would testify as to his character, both generally and possibly specifically as to specific traits, and she is not in the courtroom."

A request for a continuance based on the absence of a witness is addressed to the sound discretion of the trial court; absent a showing of abuse of discretion, the court's ruling on the request is not reviewable. State v. Williams, 304 N.C. 394, 284 S.E.2d 437 (1981), cert. denied, 456 U.S. 932, 102 S. Ct. 1985, 72 L. Ed. 2d 450 (1982). The defendant in the present case has shown no abuse of discretion in denying his motion to continue. Moreover, we do not believe the defendant was prejudiced by the denial of this motion. The record reveals that a Connie Robinson did in fact testify for the defendant as a character witness. Another character witness for the defendant, Judith Ann Knueppel, testified that she was the defendant's fiancee. It thus appears that one or possibly both of the "unavailable" witnesses in fact testified at trial. The defendant's assignment of error has no merit.

The defendant next assigns error to the imposition of sentences for the first degree sexual offenses as well as the offenses of taking of indecent liberties with a child. The defendant, relying on Blockburger v. U.S., 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306 (1932), argues that first degree sexual offense does not have an element that is not contained in the offense of taking indecent liberties with a child. For that reason he says he has twice been put in jeopardy by being sentenced twice for the same offense. In Blockburger the United States Supreme Court stated:

The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of an additional fact which the other does not.

Id. at 304, 52 S.Ct. at 182, 76 L.Ed. at 309. In State v. Gardner, 315 N.C. 444, 340 S.E.2d 701 (1986), we held that in single prosecutions for more than one crime, such as in this case, Blockburger has no application. We held in Gardner that it is a matter of legislative intent as to whether a defendant may receive multiple punishment if he is convicted of two crimes in one prosecution. Although the elements of two crimes may be identical, we said in Gardner, multiple sentences may be imposed if that is the intent of the legislature. In determining the intent of the legislature, the fact that each crime for which a defendant is convicted in one trial requires proof of an element the other does not demonstrates the legislature's intent that the defendant may be punished for both crimes. See State v. Etheridge, 319 N.C. 34, 352 S.E.2d 673 (1987).

We disagree with the defendant that first degree sexual offense does not have an element that is not contained in the offense of taking indecent liberties with a child. Conviction of first degree sexual offense requires that the victim be under the age of 13, whereas conviction of indecent liberties requires only that the victim be under the age of 16. Conviction of taking indecent liberties requires that the defendant be at least 16 years old and five years older than the victim, whereas first degree sexual offense only requires that he be at least 12 years old and four years older than the victim. Conviction of taking indecent liberties also requires that the offense be committed "for the purpose of arousing or gratifying sexual desire" which is not required for conviction of first degree sexual offense. N.C.G.S. § 14-202.1(a)(1) (1986). The elements of the two crimes are different.

The defendant also contends that he was subjected to double jeopardy under State v. Summrell, 282 N.C. 157, 192 S.E.2d 569 (1972). In Summrell the defendant was convicted of resisting an officer and assaulting an officer. This Court said, "[e]ach warrant included all the elements of the offense charged in the other, and each specified only acts of violence which defendant directed at the officer's person while he was attempting to hold defendant in custody." Id. at 173, 192 S.E.2d at 579. Although the defendant in Summrell had been convicted of two offenses in a single prosecution, we held that he had been placed in double jeopardy solely because he was sentenced for both crimes, each of which had all the elements of the other. In light of more recent cases, however, Summrell is no longer authoritative on this point and is expressly disapproved in this regard. The correct rule is that, "where a legislature clearly expresses its intent to proscribe and punish exactly the same conduct under two separate statutes a trial court in a single trial may impose cumulative punishments under the statutes." State v. Gardner, 315 N.C. at 453, 340 S.E.2d at 708, (quoting State v. Murray, 310 N.C. 541, 547, 313 S.E.2d 523, 528 (1984)).

In this case, the elements of the two crimes in question are different. Therefore, no problem of double jeopardy arises. See State v. Etheridge, 319 N.C. 34, 352 S.E.2d 673. We hold the defendant was not put twice in jeopardy by being sentenced for both first degree sexual offense and taking indecent liberties with a child.

The defendant next contends it was error for the court not to declare a mistrial after what the defendant contends was an improper argument to the jury by the prosecuting attorney. The prosecuting attorney made the following argument:

I ask you to recall a question asked of Mrs. Swann on cross examination about what she did to prepare her son for Court. And if my recollection of her response differs from yours, then you take yours, but I recollect that she answered, "I told him just to tell the truth. God has the situation in hand, and if he is not found guilty, he will still have to answer to God."

Well, it isn't God's law that brings us into the courtroom today. It's man's law, but man's law is based almost wholly on moral law or God's law. Our law also says, "Thou shalt not kill," and our law ... also says, "Thou shall not steal...."

Defense counsel objected to this argument and the court instructed the jury to disregard it. The defendant, relying on State v. Moose, 310 N.C. 482, 313 S.E.2d 507 (1984), argues that the argument was an improper attempt to appeal to the jury's sympathy and compassion which was not curable by the court's instruction not to consider it. In Moose we held it was improper to argue that the police, prosecutors and judges are ordained by God as his representatives on this earth and that to resist these powers is to resist God. That is not the same as in this case in which the prosecuting attorney said our law is based on God's law. It is true that a good part of our law is based on the moral rules we derive from biblical principles. In any event the court instructed the jury to disregard this argument. We assume the jury followed the court's instructions. State v. Woods, 307 N.C. 213, 297 S.E.2d 574 (1982). The defendant was not erroneously prejudiced by this argument.

The defendant next says it was error not to submit to the jury second degree sexual offense as a lesser included offense of first degree sex offense. The defendant, relying on State v. Brown, 300 N.C. 41, 265 S.E.2d 191 (1980), argues that there was sufficient evidence to support a finding of guilty of second degree sexual offense and it was error not to submit it to the jury. In order for an offense to be submitted as a lesser included offense not only must there be evidence of all elements of the offense but all the elements of the offense to be submitted must be contained in the greater offense. State v. Weaver, 306 N.C. 629, 295 S.E.2d 375 (1982). Second degree sexual offense has as an element that the sexual act must be committed "by force and against the will of the other person," or against a person "who is mentally defective, mentally incapacitated, or physically helpless, and the person performing the act knows or should reasonably know" of the victim's deficiency. N.C.G.S. § 14-27.5 (1986). Neither of these alternative elements is an element of the first degree sexual offense with which the defendant was charged. It was not error for the court not to submit second degree sexual offense as a lesser included charge.

In his last assignment of error the defendant contends that because of the ineffectiveness of his counsel he was denied meaningful representation as guaranteed him by the Sixth and Fourteenth Amendments to the Constitution of the United States and Article I, Sections 19 and 23 of the Constitution of North Carolina. After hearing oral arguments we remanded the case to superior court for a hearing on this assignment of error. A hearing was held before Judge Robert D. Lewis who made findings of fact based on the evidence and concluded the defendant's counsel was not ineffective and if he were the defendant had not shown any prejudice. We hold the evidence supported the findings of fact and the findings of fact supported the conclusion.

In Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the United States Supreme Court dealt with the question of ineffective assistance of counsel. The Supreme Court said, "[t]he benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Id. at 686, 104 S.Ct. at 2064, 80 L.Ed.2d at 692-93. The Court also said, "[i]n any case presenting an ineffectiveness claim, the performance inquiry must be whether counsel's assistance was reasonable considering all the circumstances." Id. at 688, 104 S.Ct. at 2065, 80 L.Ed.2d at 694. The Court said a no more detailed rule should be formulated and a court should be very deferential in judging the competency of an attorney's performance. The Supreme Court also said, "[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S.Ct. at 2068, 80 L.Ed.2d at 698. In State v. Braswell, 312 N.C. 553, 324 S.E.2d 241 (1985), this Court expressly adopted the Strickland test as the standard for measuring the ineffective assistance of counsel under the North Carolina Constitution.

The defendant contends his trial counsel was deficient in seven ways. He says first that his counsel did not properly investigate the case and prepare for trial. The defendant says specifically that there were twenty-one potential witnesses who should have been interviewed prior to trial. Twelve of these witnesses testified at trial. Some of those who were not interviewed would have testified they were living in the trailer or near the trailer in which one of the incidents allegedly occurred and they either did not hear anything unusual at the time of the incident or that they observed the victim shortly after the incident allegedly occurred and there was nothing peculiar in the way he walked. There was testimony from other witnesses at trial to this effect. If the witnesses which the defendant's attorney did not interview had testified their testimony would have been cumulative. We cannot hold that if this cumulative testimony had been used the result of the trial would have been different.

The defendant also complains that his trial counsel did not visit the crime scene or have photographs made of it for introduction as evidence. He says this is important because it would show the closeness of the rooms in the trailer and the likelihood that some one in the trailer would have heard a noise if the incident had occurred as contended by the State. We believe the average juror would know of the close quarters in a trailer. Pictorial evidence would have been cumulative.

The defendant also says that his trial counsel should have had a chemical analysis performed of the mattress on which the alleged incident occurred in order to determine whether there was blood on the mattress. The mattress was available at the time of the hearing before Judge Lewis and no chemical analysis had been performed. We do not know what such an analysis would have shown.

We hold that the defendant has not shown that there is a reasonable possibility that but for errors of the defendant's counsel in his pretrial investigation the result of the trial would have been different.

The second instance which the defendant contends shows his counsel was ineffective is the failure to pursue alibi as a defense. At the hearing before Judge Lewis the defendant contended he was living with his mother in Burnsville at the time of the offense and if his counsel had interviewed his mother he would have discovered his mother would have provided evidence of an alibi. The defendant's trial counsel testified the defendant told him he did not know where he was at the time of the alleged incidents. The defendant testified to the same thing at trial. In Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674, the United States Supreme Court said:

And when a defendant has given counsel reason to believe that pursuing certain investigations would be fruitless or even harmful, counsel's failure to pursue those investigations may not later be challenged as unreasonable. In short, inquiry into counsel's conversations with the defendant may be critical to a proper assessment of counsel's investigation decisions, just as it may be critical to a proper assessment of counsel's other litigation decisions.

Id. at 691, 104 S.Ct. at 2066, 80 L.Ed.2d at 696. From the testimony of defendant's trial counsel and the testimony of the defendant at trial we cannot say it was unreasonable not to pursue an alibi defense at trial. At the remand hearing the defendant's mother testified the defendant was living with her in Burnsville at the time of the alleged incidents. She said she tried to call the defendant's trial attorney to tell him of this alibi evidence but was not able to get him. She did not come to the trial. The defendant contends this failure by his trial counsel to investigate by talking to his mother deprived him of alibi evidence and proves ineffectiveness on the part of his counsel. Judge Lewis found that the testimony of the defendant's mother was inherently incredible in light of the fact that the information was not given to defendant's counsel and indeed that the mother did not come to the trial. We hold the record supports this conclusion.

The defendant next argues that if his counsel had investigated more thoroughly he would have discovered that the victim's mother had a motive for prosecuting the defendant. The defendant testified at the remand hearing that approximately one month before the crimes for which he was charged allegedly occurred that the victim's mother made sexual advances toward him which he rejected. He says this is important evidence of a motive to prosecute him which should have been developed. The defendant and his counsel testified at the hearing that the counsel asked defendant why the victim's mother would do this to the defendant and the defendant did not tell his counsel of the alleged sexual advance. The defendant testified he did not see the importance of it. The defendant's counsel may not be blamed for not knowing of this incident if the defendant did not tell him.

The defendant next complains that his trial counsel should have filed a number of pretrial motions, including a motion to compel discovery, a motion for a bill of particulars, a motion to require the State to elect between the charges of first degree sexual offense and taking indecent liberties with a child, a motion pursuant to Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), requiring the State to produce all exculpatory evidence in its possession, including criminal records of the State's witnesses, and mental or physical conditions of witnesses affecting their ability to perceive or recall events, a motion to record all judicial proceedings (the voir dire hearing for the selection of the jury was not recorded), a motion to determine the competency of the victim to testify, and motions in limine to exclude evidence of the defendant's use of a gun and use of marijuana.

The defendant's trial attorney made a request for voluntary discovery with which the State did not comply. No motion for an order compelling discovery was made and the defendant contends this shows ineffective assistance of counsel. The defendant says this is so because the defendant's counsel had to analyze what discovery he was given during the trial. Except for those items the defendant was given at trial there has been no showing what else may have been discovered. As we point out in another part of this opinion the defendant was not prejudiced because he did not receive the items delivered to him before trial. We cannot say the defendant was prejudiced because his attorney did not file a motion to compel discovery when we do not know what other evidence could have been discovered other than the document given him at trial.

The defendant says the purpose of a bill of particulars is to inform the defendant of the specific occurrences intended to be brought out at trial and to limit the scope of inquiry at the trial. He says if the State had answered a bill of particulars and told him the exact time of day and the exact location at which the offenses allegedly occurred as well as the exact conduct which allegedly constituted a sexual offense it would have been valuable to the defendant in determining whether there was an alibi defense and whether there might have been any witnesses or physical evidence. We have discussed an alibi defense in another part of this opinion. We do not believe the defendant would have been in a better position to develop an alibi defense if he was told what time of day the offenses allegedly occurred when he had told his attorney he did not know where he was on those days. We also believe the defendant had adequate information to determine whether there were witnesses or physical evidence without a bill of particulars.

If the defendant's trial attorney had moved to require the State to elect which of the charges upon which the defendant would be prosecuted such a motion should have been denied. First degree sexual offense and taking indecent liberties with a child contain different elements. In such a case an election is not required. State v. McGill, 296 N.C. 564, 251 S.E.2d 616 (1979).

The defendant argues that if a Brady motion had been made requiring the State to deliver to the defendant any exculpatory evidence in the possession of the State the defendant's attorney could have gotten (1) the prior criminal records of all the State's witnesses, (2) any inconsistent statements made by any State's witnesses, and (3) any mental or physical condition of a witness that could affect that witness' ability to perceive the alleged crime at the time it occurred or could affect the witness' ability to recall the crime. Criminal records of witnesses are not discoverable under Brady. State v. Bruce, 315 N.C. 273, 337 S.E.2d 510 (1985). When asked by Judge Lewis at the remand hearing what Brady material had been withheld the defendant's attorney said, "[t]he specific mental condition of this child at the time." The defendant was certainly in a position to know of the mental condition of the victim without being told by the State. The defendant had lived in the house with the victim and his lawyer had interviewed him. The defendant argues that if a Brady motion had been made "the State would have been required to give counsel a detailed description of that condition prior to trial." The difficulty with this assertion is that there is nothing in the record to show the State had more of a "detailed description" of the victim's mental condition than the defendant. The defendant has not shown he was prejudiced by his counsel's failure to get from the State whatever knowledge it had as to the victim's mental condition.

At the hearing before Judge Lewis the transcripts of two interviews with the victim were offered in evidence. One of them was a transcript of an interview with the defendant's trial counsel. The other is a transcript of an interview with the victim by some other person. In his interview with defendant's trial counsel the victim was much more equivocal as to what had happened than he was in his interview with the second person. The transcript of the interview with the other person was in the possession of the State. The defendant contends that a Brady motion would have required the State to deliver this prior inconsistent statement to the defendant's trial attorney and he would have been better able to cross-examine the witness. The district attorney had delivered before trial to the defendant's counsel a transcript of an interview the district attorney had with the victim. The defendant's trial counsel was aware the victim had been equivocal in answering questions as to the incidents during interviews. We cannot hold it was prejudicial to the defendant for his trial counsel not to have a transcript of yet another interview.

The defendant next contends his trial counsel should have filed a motion requesting the complete recordation of the trial including the voir dire on the jury selection. He says that by failing to have the questions asked on jury voir dire recorded he was prejudiced. He says this is so because if the voir dire had been recorded he might be able to show pursuant to Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986), that there was racial discrimination in the jury selection. We note that this case was tried in February 1986. Batson was handed down on 30 April 1986 and changed the law as to the proof required to show a constitutional violation by a racially discriminatory selection of a jury. We cannot hold an attorney is ineffective because he did not anticipate a change in the law by the United States Supreme Court.

Another motion the defendant says his trial counsel should have made was to disqualify the victim as a witness on the ground the victim was incompetent to testify. The defendant argues that if such a motion had been made the victim could have been found incompetent and not allowed to testify. He also says he could have made a record for appeal. The answer to this argument is that the defendant was not prejudiced because the record shows the victim was competent to testify. The competency of a witness to testify is governed by N.C.G.S. § 8C-1, Rule 601 which provides in part:

(a) General Rule—Every person is competent to be a witness except as otherwise provided in these rules.

(b) Disqualification of witness in general —A person is disqualified to testify as a witness when the court determines that he is (1) incapable of expressing himself concerning the matter as to be understood, either directly or through interpretation by one who can understand him, or (2) incapable of understanding the duty of a witness to tell the truth.

The record in this case clearly shows the victim was a competent witness. Before being sworn he stated, "I'll just tell it like it is. I do tell the truth." After being sworn he was able to state fully what had happened in both instances. We could not hold that the witness was incapable of understanding the duty of a witness to tell the truth or incapable of expressing himself so that he could be understood as to the matter.

The last pretrial motions the defendant says his trial counsel should have filed were motions in limine to exclude testimony that the defendant had a gun and that the defendant used marijuana. The defendant argues that if motions in limine had been made this testimony could possibly have been excluded. We do not believe that evidence the defendant had a gun when he committed the sexual offenses while hunting with the victim should be excluded. We also do not believe we should hold ineffective assistance of counsel can be proved by the failure of defendant's counsel to make a motion in limine in this instance. A ruling on a motion in limine is an interlocutory ruling which a trial court may change when the evidence is offered at trial. State v. Lamb, 321 N.C. 633, 365 S.E.2d 600 (1988). In this case the fact that motions in limine were not made did not prevent the defendant from objecting to the evidence at trial. For that reason no prejudice occurred at that time. No assignment of error was made to the admission of this evidence and the defendant has not shown us how he was prejudiced by the admission of any evidence for which he says a motion in limine should have been made.

We hold the defendant has not shown his trial attorney was ineffective by the failure to make pretrial motions.

The defendant next complains that trial counsel did not make an opening statement. However, the defendant offers no argument as to why an opening statement would have been the only reasonable strategy in this case. Rather, he relies on statements in trial treatises regarding the importance of a good opening statement. We cannot hold that failure to make an opening statement is per se unreasonable under prevailing professional norms, especially when it is common practice in this State to waive the opening statement. See Blanchard and Abrams, Opening and Closing Arguments: The Law in North Carolina (1981), p. 3. Trial counsel testified at the hearing that he made the tactical decision not to give an opening statement in the present case because he was uncertain what evidence would be introduced at trial, and was even uncertain as to whether the victim would be allowed to testify. This was a tactical decision and we cannot review it. Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674.

The defendant next says his trial counsel was ineffective for failing to request six specific jury instructions which are (1) the failure to request an instruction on how to treat the evidence of the failure of the child to report the incidents for six months, (2) the failure to request the court to submit a charge of second degree sexual offense, (3) the failure to request a charge as to how to treat the corroborating testimony of the State's witnesses, (4) the failure to request a charge on the treatment of the victim's prior inconsistent statements, (5) the failure to request a charge on the motive of the victim's mother to prosecute the defendant, and (6) the failure to request an instruction on the consideration to be given the testimony of a mentally retarded child.

We have held that second degree sexual offense is not a lesser included offense of the first degree sexual offense charged in this case. The defendant's trial counsel should not have requested that it be submitted to the jury.

The other instructions which the defendant says should have been submitted dealt with subordinate features of the case. It was not error for the court not to charge on them. In State v. Seagroves, 78 N.C. App. 49, 336 S.E.2d 684 (1985), disc. rev. denied, 316 N.C. 384, 342 S.E.2d 905 (1986), the Court of Appeals held that in order to show ineffective assistance of counsel because of the failure to request jury instructions, the defendant must show that without the requested instructions there was plain error in the charge. These five requested instructions were directed at the credibility of the victim and other witnesses. Judge Lewis' conclusion with regard to these requested instructions was:

With respect to failure to request instructions, the jury was aware that credibility was the issue in this case. The court instructed on interested witnesses, and both counsel argued on the credibility aspect of the case. The suggested instructions would have added little to the jury's awareness of the importance of deciding whom to believe.

The record supports this conclusion.

Finally, the defendant complains of trial counsel's failure to make an argument at the sentencing hearing. However, this failure cannot possibly have prejudiced the defendant; he effectively received the minimum possible sentence for his crimes, since the trial judge ordered all four sentences to run concurrently.

We hold that the defendant has made no showing that his trial counsel failed to render effective assistance of counsel, to the prejudice of his defense, and that Judge Lewis properly denied his motion for appropriate relief. The defendant had a fair trial, free from prejudicial error.

NO ERROR.