5 N.C. App. 429 | N.C. Ct. App. | 1969
Appellant’s first assignment of error, based on his exceptions #1 and 2, is that the court denied his constitutional right effectively to cross-examine the principal witness for the State, first, as to the method by which the robbery had been accomplished and, second, as to the witness’s past criminal record. Exception #1 is based upon the following episode, which occurred while counsel for defendant was cross-examining the victim of the robbery:
Counsel for defendant: “Mr. Parrish, you say this boy here came up behind you?”
The Court: “All interrogation of witnesses is conducted from the counsel table.”
Counsel for defendant: “I was going to get him to show me how this man grabbed him, if Your Honor please. I would like to use something to show how it happened, and I think it is important as to how it happened.”
The Court: “When you come to that point, we will see.” The court committed no error in reminding defense counsel of the rule of decorum generally enforced in the courts of this State that interrogation of witnesses be conducted from the counsel table. Further, the court clearly indicated that it would review its ruling should the necessity be later shown for defense counsel to leave the counsel table for purpose of a physical demonstration. Examination of the record reveals that such necessity was never shown, as defense counsel proceeded to accomplish his purpose of demonstrating how the attack had been made by questions asked from the counsel table, and this was done without further interruption by the court or objection by the solicitor. The defendant was given full opportunity- to cross-examine the State’s witness as to the method by which the robbery had been accomplished.
“On December 29, 1966, Mr. Parrish, were you charged with and convicted of — ”
The Court: “Sustained. You know better than to ask that question.”
For the purpose of impeaching the testimony of the State’s witness, defendant had the right to cross-examine with respect to the witness’s previous criminal convictions and the question asked was a proper one. Ingle v. Transfer Corp., 271 N.C. 276, 156 S.E. 2d 265. Apparently the trial judge thought that defendant’s counsel was continuing to interrogate concerning previous criminal charges which had been made against the witness, as distinguished from his previous convictions for criminal offenses. That this was the case appears from the fact that the court did permit defense counsel immediately thereafter to continue, without interruption, to question the witness and to obtain his admission to having been convicted and sentenced for the criminal offense of leaving the scene of an accident. It is not clear from the record whether this conviction was the one referred to in counsel’s question, above quoted, as having occurred on 29 December 1966. If it was, then defendant’s counsel did successfully cross-examine the witness with respect to that conviction, despite the interruption by the court, and defendant has suffered no prejudice. If it was not, then the record does not disclose what the witness’s answer would have been; consequently, it is impossible for us to know whether the ruling was prejudicial. We cannot assume the witness’s answer would have been in the affirmative. The burden was on the defendant not only to show error but to show that such error was prejudicial. State v. Poolos, 241 N.C. 382, 85 S.E. 2d 342. No prejudicial error has been shown in defendant’s first assignment of error.
Appellant’s second assignment of error, based on his exceptions #4 and 5, is addressed to that portion of the court’s charge -to the jury in which the court recapitulated the testimony of the prosecuting witness. Exception #4 is directed to that portion of the
“Q. Have you been shown any pictures by Mr. Cameron?
“A. Yes sir.
“Q. Have you identified anybody?
“A. No.
“Q. You have not?
“A. I identified him (pointing to the defendant).
“Q. You identified him where?
“A. I said I could identify him.
“Q. Where did you identify him?
“A. Pictures Mr. Cameron showed me.”
From the foregoing series of questions and answers, it is clearly apparent that the witness did testify positively that he had identified the defendant from pictures shown him by the detective, and it was not error for the court to so charge the jury while recapitulating that testimony.
Exception #5 is to the portion of the judge’s charge in which it is stated, while still recapitulating the testimony of the same witness:
“On redirect examination the witness testified that the lights at the scene from the street light were a little brighter than the courtroom lights.”
This statement of the witness’s testimony was not accurate, since the witness had testified that the lights in the bus station, not the lights at the scene of the crime, were a little brighter than the courtroom lights. The witness had testified in some detail, both on direct and cross-examination, as to the lighting conditions at the scene of the crime. In particular, he had testified that the scene was lighted by an ordinary street light which was at the corner approximately 50 feet from the place he was robbed. The court did positively instruct the jury that they were to be governed solely and entirely by their own recollection of the testimony and were to disregard the recollection of any other person, including that of the judge. While the judge’s charge did contain an inaccurate statement of the testimony
Appellant's final assignment of error is not brought forward in his brief and is deemed abandoned. Rule 28, Rules of Practice in the Court of Appeals. In the entire trial we find no error sufficiently prejudicial to warrant awarding a new trial.
No error.
