*1 THE IN SUPREME COURT NELSON CAROLINA LEON BURGIN STATE OF NORTH Nо. 75A84 1985) (Filed May § of bad character —not im- 85.3— cross-examination —evidence 1. Criminal Law proper child, seven-year-old first-degree prosecution with a a for sexual offense In permit of and his not an cross-examination defendant the court did object questions, some defendant witnesses where defendant did taking any girls illegal purposes to a motel for he categorically denied particular accepted anything wrong girl, the State with a had done owned, formerly any wrongdoing he had denial of at a restaurant testimony marijuana prior a conviction and his opened the door for about examination, questions relationship with his own children direct knowledge proper to the witnesses’ witnesses were test asked character acquaintance with defendant. jury’s request § evidence —no error in instruc- 101.4— rehear 2. Criminal Law denying tion child, seven-year-old first-degree prosecution offense with In a for sexual jury’s request judge did when he denied the trial not abuse discretion instructed the to them some of the that the court read back memory. jurors jury use their own G.S. 15A-1233. that all twelve should Vaughn participate in or decision of this did not the consideration Justice case. concurring. Martin Justice dissenting.
Justice Exum G.S. as a matter pursuant Defendant right appeals Howell, J., 7A-27(a) the 5 December at judgment entered Court, County, sentencing Superior 1983 session of BUNCOMBE ver- mandatory imprisonment upon term life him in violation of G.S. offense of a sexual guilty first-degree dict 14-27.4. Davis, General, Edmisten, by Thomas H. Attorney L. Rufus General,
Jr., State-appellee. Attorney Assistant for Petersen, Stein, Defender, by Ann B. As- B. Appellate Adam Defender, defendant-appellant. Appellate sistant for FRYE, Justice. argues He first on this appeal. two issues raises State to ask certain allowing erred trial court *2 Burgin
questions during cross-examination of defendant and certain of defendant’s witnesses. Secondly, defendant contends that the trial erroneously court instructed the when the trial court denied jury’s request to have certain read to it after record, beginning deliberations. After reviewing the the parties’ law, briefs arguments, and the relevant we find that the ac- tions complained defendant do not constitute error on the part the trial court.
Facts Evidence for the State tended to show that on Monday, 31 1983, January the victim was approximately years seven ten months old and lived in a small town in North Carolina with her mother, her stepfather date, and two younger sisters. On that victim and a younger sister were taken to the home of defendant and his wife while the victim’s mother went to the hospital give birth to a child. On the afternoon of 1 February while work, defendant’s wife was at defendant allegedly his in put hand the victim’s pants and rubbed her genitalia. 2 February On defendant allegedly put some vaseline on one of his fingers and it inserted into the victim’s vagina. He told the victim not to tell anyone that he had done this. Defendant also asked the victim to rub him between his legs but she refused.
The victim and her younger sister were taken home the following day when their mother returned from the hospital. Defendant and his wife had with supper the victim’s family and then, leave, as were about to the victim’s mother asked the victim to kiss go “bye.” them The victim kissed defendant’s wife and then went into her bedroom. When the victim’s mother went in to why ask her she had not kissed “bye,” defendant the victim started When crying. her mothеr asked her what was she wrong, Leon, defendant, told her that had rubbed her between her legs and that he put had vaseline on one of his fingers put “up into” her.
The victim’s immediately mother called the sheriffs depart- ment and then took the victim to the hospital. At the hospital, victim told the examining physician and nurse what defendant to her. had done The physician discovered a small tear in the vic- hymen. tim’s on his own and testified
Defendant
witnesses
presented
that he did take care of
His
tends
show
evidence
behalf.
although
sister on the dates
younger
question,
viсtim and her
any
relations
the victim.
sexual
having
he denies
I.
[1]
first
argues
that the trial
court
erred
permit
certain
of defendant and
to ask
ting
questions
More
defendant
specifically,
cross-examination.
witnesses
chartered
of prov
the State
a course
“improperly
contends that
offense in
prov
committed the
this case
ing that
*3
innuendo,
‘bad acts’
prior alleged
inference and
ing
Thus,
further
im
as defendant
this
argues,
of the defendant.”
of the defendant and his witnesses
cross-examination
proper
fair trial
law. We
process
disagree.
him оf a
and due
deprived
in
assist us
whether the
legal principles
determining
Certain
Generally,
case
when a
improper.
in this
cross-examination
witness,
case,
defendant in a criminal
takes the stand
including a
behalf,
party
testifies in his own
has an absolute
opposing
1,
Davis,
(2d
229
to
v.
291
cross-examine
witness. State
N.C.
right
(1976);
1982);
see,
285
1
Mc-
e.g.,
S.E. 2d
Brandis
35
rev. ed.
§
(1984).
19
ex-
on Evidence
If the witness
direct
during
Cormick
§
issues,
specific
“opens
inquiry
amination raises
he
door” to an
v.
subject
during
into these
areas
cross-examination. State
173,
Albert,
(1981);
Small,
303
277 S.E.
439
301
N.C.
2d
State v.
(1980).
407,
Furthermore,
“On cross-examination much counsel in consistency for matters testing probability related Brown, 519, witness on examination.” Maddox v. 233 direct N.C. (1951). 524, 864, primary 64 S.E. of the purposes 2d One in manner is allowing cross-examination “to elicit further direct, in story hope details of the related of presеnting a case; less complete picture unfavorable cross-examiner’s Brandis, .” 1 . . at 145. Evidence ad- supra, thus becomes §
State v.
missible to
or rebut other evidence
in
explain
put
the defend-
Small,
436,
128;
ant himself.
272 S.E.
N.C.
2d
(1949).
Black, 230
Our review of the trial judge’s rulings objections on the asked questions cross-examination is guided follow- considerations: ing duty, officer has the and it prosecuting right, is his
cross examine a defendant who testifies in his own defense.
fallacies,
A
cross
well-directed
examination
disclose
if
any,
in the defendant’s
in
and thus aid the
its
examination,
A
search for the truth.
cross
especially where
eyewitnesses,
there
no
are
should be
but at all
searching,
times it should be fair. The trial
judge hears all witnesses
and observes their
testify.
demeanor as
He knows the
background
the case and is thus
a favorable
position
control
of the cross
scope
examination. The appellate
reason,
court,
court reviews a cold record. For this
the trial
because of its favored
have
position, shоuld
wide discretion
the control of the trial. Its
should not be disturbed
rulings
*4
(Citations omitted.)
when
error is disclosed.
except
prejudicial
(1969),
Ross,
550, 553,
169 S.E. 2d
cert.
N.C.
denied,
Q. years ago while ten or some odd believe restaurant, marijuana had you charge you operating you. against Yes,
A. sir. Q. years here you charge traffic four or five believe had a ago. Yes,
A. sir. you Have had else? Violations of the law? anything And, No, way, marijuana charge was pos- A. sir. my establishment. place session in Defendant also testified on direct that he had retired years fivе earlier because of employment full time approximately disability. disability of his a Thereafter, and further the nature explained the follow- on cross-examination defendant was asked ing:
Q. So, 1975? basically, you job haven’t a full-time since No, A. ma’am. treatment, sir, did out to Thoms part go As Center,
Rehabilitation sir? Yes,
A. ma’am.
Q. And would that have been in 1975? Yes,
A.
Q. And— No, ma’am, not in been,
Q. When would that have sir? 1977, I
A. It was believe. once; more or were there And were there than *5 once, sir?
just
A. Just once.
Q. 8 1977? How old were EXCEPTION No. Forty-two, I guess. A. 409 COURT IN THE SUPREME
Q. Thoms Rehabilitation Lisa at named girl Did meet Exception 9 No. Center? Yes, A. ma’am. Exception
Q. at the time? was about sixteen I believe Lisa 10 NO. No, that. was older than
A. she Exception
Q. No. How old? She had years old. eighteen me she was A. At least she told year. or was that graduating school high graduated there, she, Q. sir? wasn’t patient She was also a Yes, A. ma’am.
Q. you left Lisa? stay, isn’t it a fact that During to the and took her Thoms Rehabilitation Center You left Motel, sir? Evergreen No, ma’am,
A. is not a fact. wheelchair, No. she? Lisa was wasn’t EXCEPTION Yes,
A. ma’am. down, from the waist I believe. Is that paralyzed She was 15No.
correct? EXCEPTION Yes, Exception went, you say you and Lisa sir? Where do No.
A. I did not. Objection.
Mr. Swain: Sustained.
COURT: object failed to to most of these questions. the witness objection lodged responded one made after answer, no motion to Defendant made strike the question. Goss, objection. therefore waived N.C. (1977); Battle, 148 S.E. S.E. 2d 834 2d 599 note that defendant denied that he categorically We *6 IN THE SUPREME COURT Burgin Thereafter, Lisa to a motel.
taken redirect defendant testified charged taking any that he had never been to a motel girls for and he had never illegal purposes anything done circumstances, with Lisa. Under the we do view this line of Black, to be error. questioning plain S.E. 2d 804. cross-examination, further
During defendant was asked whether the rеstaurant he owned in 1974 was “hangout for teenagers” and whether his main clientele young people. Defendant had referred to his restaurant direct examina- tion and the door to opened further questions designed explain given during direct. The State accepted defendant’s any wrongdoing denial of and did not persist asking the same Therefore, questions repeatedly. did not judge abuse his dis- testimony. cretion in allowing this objected following line dur- questioning
ing cross-examination: recall, Do Mr. when Burgin, your the officers came to
place of business? Yes,
Mr. Swain: Objection.
COURT: Sustained. came, day Mr. Burgin, before the officers do remember Rebecca Smith into coming place of business? Object. Mr. Swain:
COURT: Overruled. EXCEPTION No. fact, day Isn’t it a Mr. that the Burgin, before the officers came, Smith marijuana, Rebecca gave quantity sir? Well, I object Swain: to this.
Mr.
COURT: Overruled. EXCEPTION No. fact,
Q. Isn’t that a sir? honestly A. I don’t remember. I did not give her —She —I purchased don’t bought any remember her giving —she marijuana. quantities *7 then, Q. it to her sir? You sold No, ma’am, No, I to her.
A. did not sell it her, to sir? you say Who do sold it who sold it to her. A. I don’t know you Leon’s running that while were Isn’t it a fact that young away girls for sexual favors giving were Leon’s, sir? to coming Absolutеly not. Objection. Mr. SWAIN: Overruled.
COURT: redirect, he marijuana pled testified that On in his and seeds found bag was a stems possessing guilty stated, floor of the he were found drugs, Other briefcase. floor in the front of in his restaurant and on the bathroom with charged he was Defendant on direct had testified that bar. offered the restaurant and operating while marijuana possession customers had left some testimony tending to infer that favorable Therefore, proper the officers. it was marijuana found cross-examina- during into these matters inquire for the State to Therefоre, by allowing did not abuse his discretion judge tion. of questioning. this line questions next several additional argues
Defendant activity drug him about his restaurant and asked State were Defendant did improper. recross-examination any of this We find no error. questioning. plain object Black, 303 S.E. 2d further as error the admission certain assigns grown with his children relationship regarding in court for their appear and their failure marriage his first defendant’s, father’s, Burgin, present trial. Mrs. wife, as a witness for defendant and testified called as follows on direct: will relate to the what oc- Mrs. Burgin, All right, Hughes? mеt Mrs. from the time
curred room, Hughes stayed A. Leon and Mr. in the control and she I because and went into his office the children too much noise and it went across the air and he made let them be in there. wouldn’t about, well, say I
We sat in there and talked from would home, ready 9:00 until Leon I to come and until and were around, say, I 12:00 We about the it was would o’clock. talked children, I age. fact she and are almost the same She had I do not. She had Her stepchildren stepchildren. David, is, my age think his name was the same as stepson, she, you know —we were discuss- Ronnie. And then stepson, her, I, you family how sometimes his did not ing accept *8 know, of felt like at first but after Leon and kind mine didn’t they for a while that did. had been married with Ronnie or the other two any problems
I never had stepson had had some with her be- girls, problems but she while, she told me stayed he had with them for a and cause movies pornographic he cable television and he watched Sid to about it something in the house. And she had asked do would, pull so she took it herself to upon and he never any- movies the wall so he wouldn’t watch the cable from more. Burgin, of Mrs. of the State’s cross-examination part
As were asked: following questions
Q. you you with Mrs. about you Hughes And said talked [sic] you basically general and talked about having stepchildren; is that correct? things, Yes, it is.
A. Q. before this incident just that a few weeks Isn’t it a fact teenage daughter belonging that Burgin, Mrs. happened, you didn’t your doorstep up husband showed about it? anything know even Objection.
Mr. SWAIN: Exception Overruled. No. Court: Q. that a fact? Isn’t No, not.
A. it’s THE SUPREME COURT IN Burgin Q. Department, Sheriffs down you tell Delores Didn’t you stand be- more could how much didn’t know a daughter day, happened, weeks before few cause one know didn’t to Mr. belonged up showed her that? Didn’t tell about her. anything Objection. Swain: Mr. EXCEPTION No. Overruled.
COURT: ma’am, No, not. A. did
Q. your husband have? many does How children Exception A. No. Three. their names? What are Ronnie, Shera,
A. Teresa. EXCEPTION No. they? are How old Objection. Swain:
Mr. Overruled. EXCEPTION No. Court: is Teresa A. is 24. Shera is 18. Ronnis [sic] live in Asheville. Is that correct? here And Yes, *9 is, Q. they of the matter do come about their Truth father, they? do Objection.
Mr. Swain: Exception Overruled. No. Court: designed to delve into sub- again questioning The State’s by the witness direct during and raised examina- jects presented defendant, by raised argumеnts we do foregoing As with the tion. Nor do view improper. this line of we questioning not consider his discretion in the allowing as abused having trial judge the matters picture of alluded complete to clear present State to on direct. to argument by pertains
The raised defendant certain next cross-examination one asked questions character witnesses. Defendant contends that the questions asked were because were prejudicial irrelevant. The the questions by asked State were as follows: And lived next door him. right to Is that correсt? A. Yes. Did ever meet his kids? EXCEPTION 49No.
A. Yes. Exception they in today? Are the courtroom No. 50 Shera, not. Okay, only Ronnie’s met her once. the — one, really IAnd don’t remember. And the other I never met. I saw But of her. He me a picture picture. showed This same character witness stated earlier on direct that she had lived next door to defendant and had visited with him “all the . .” time. . “It been generally has held that a character witness respect be cross-examined with to the extent of his knowl- edge acquaintance person with the in whose behalf he testi- fies or with regard the sources of information which upon he Nelson, 69, 72, bases estimate character.” 200 N.C. 156 S.E. This line of questioning during cross- However, examination objected was not defendant. such questions to test the extent proper character witness’ defendant, knowledge and acquaintance with the person whose Therefore, character she was be supposed to familiar with. line of was not questioning prejudicial nor improper.
II. [2] second issue raised relates to the instruc tion given jury trial court after the had begun delibera tions. After jury begаn deliberating to determine defendant’s innocence, guilt returned to the courtroom with a re quest that court read back them the of some of response witnesses. In to this request, court stated in part:
All ladies and right, gentlemen, have received a re- *10 you that have submitted. Let quest me advise that the Reporter has taken down through Court the stenotype ma- witnesses, testimony chine the of all the I and have the dis- v. State I it. also have type up present to order her to and cretion situation, to. And in after particular the discretion not this all and the fact that there are twelve considering the factors memories, I’m you have you over there and that collective of deny my request that to exercise discretion going provided. be read back or of witnesses EX- 63. NO. CEPTION your I or
By might lapse the time this memories did that imprac- occur that would make might some other reason tical, I’m to let resume deliberations going so memories, that all your collective means ask to use you, to recall all the evidence in case. 12 of EXCEPTION NO. if I wanted that could do this again, emphasize
And not, to, my case I’m in this own discretion. particular but now You retirе. coercive to these instructions were
Defendant contends by interpreted jury “could have been because their jurors non-agreeing compromise to the as a direction their of the facts and either surrender individual recollections of or reach majority to the views convictions or judgment majority dispute, vote on the facts by or agreement ‘collective’ Thus, defendant maintains by than unanimous vote.” rather coercive, and denied defendant improper, the instructions con- the federal and state process of law under to due right rejected. argument is Defendant’s stitutions. concedes, there no cases from this Court are
As defendant
an instruction similar
directly addressing the
propriety
Instead,
a
relies on and cites
above.
forth
one set
a
given
additional
See,
instructions
involving
of cases
number
Alston,
jury.
e.g.,
a
deadlocked
judge
to be
do not consider such cases
We
416 Burgin
State v. (a) jury If the after retiring for deliberation requests a evidence, testimony review of certain or jurors other must be conducted to the courtroom. in judge The his discre- tion, defendant, after notice to the prosecutor may direct of the requested parts jury be read to the may in permit jury open reexamine court the request- materials ed admitted into evidence. In his discretion the may jury also have the judge review other evidence relating to the same factual issue so as not to give prominence undue to the evidence requested. Thus, the trial has sole judge discretion to decide this mat- (1983). Dover, 372,
ter. State v.
308
Justice VAUGHN did not consideration decision of this case.
Justice Martin
concurring.
I
Believing as do that the
error”
“plain
doctrine has no prop-
evidence,
in
place
er
the law of
concur in the result reached in
Black,
majority
of the
part
opinion. State
N.C.
(1983) (Martin, J.,
In
concurring).
S.E. 2d
this
it is
regard,
Code,
8C,
notable that
the Evidence
became
N.C.G.S.
effective
July 1984. It does not contain a reference to the
error” doc-
“plain
trine сreated
adopted
majority
federal courts and
but,
Black,
rather,
this
that “an
court
provides
appellate
Court
determines,
if
affecting
rights
review errors
substantial
justice,
the interest of
it is
to do so.”
Gen. Stat.
appropriate
(Cum.
103(d)
1983).
8C-1, Rule
This is no more than what
Supp.
§
IN THE SUPREME
COURT
done,
do,
always
has
Court
and will continue to
to prevent
*12
506,
manifest miscarriage
justice.
Ange
Ange, 235 N.C.
(1952);
Cochran,
523,
S.E. 2d 19
230 N.C.
Justice dissenting. EXUM like this involving
Cases sexual alleged against assaults young children tear at the hearts of us all. Emotions tend run high our and natural inclination is to want to favor and protect the child. In these еspecially cases it is important the courts permit the state to on all put legitimate evidence it has to prove its case. It is equally important that courts be assiduous to keep out evidence which is both irrelevant to defendant’s or guilt any innocence other question in the case but which in- cline the jury to want to convict defendant for reasons other than guilt evidence of his of the crime for which he is being tried. In trial this so case much of this kind came evidence in that I think there is possibility different result would have been by 15A-1443, reached hаd it been out. kept N.C.G.S. § which that a new requires granted trial be if error in question possibility, results such a compels me to vote for a new trial. The state’s evidence consisted primarily of victim, the young corroborated the testimony of several adults the victim had made statements to them consistent with her was, however, testimony. trial There no testimony by the examin- ing physician concerning a tear in the hymen. victim’s Although state, the physician was subpoenaed he was never called Instead, testify. a nurse who assisted the physician testified that she observed a tear in the hymen victim’s during the physi- cian’s examination of the victim’s genitalia. external Defendant testified in his own behalf and guilt. denied his Ac- cording testimony, to his he had been previously married and divorced, had three adult children his former wife and had recently been year married about a to his second wife. He been youth minister of music and director at several churches in County Buncombe gotten and had to know the victim’s parents his work through with a local radio station where the victim’s and which station director program as employed was father music. gospel defendant’s broadcast victim’s parents, help wife volunteered to Defendant’s community, babysitting when needed new to the who serv- babysitting his wife these provided Defendant and services. child. birth to another giving victim’s mother while the ices and his wife stayed her with defendant sister The victim Friday, February Monday, until January as detail great his witnesses testified others, wife, defendant, defend- including care parents, provid- foster care who were licensed parents ant’s wife’s detailing week. Without her sister victim and ed the *13 evidence, sup- it to say I to does tend think fair аll of this charged. innocence of the crime port defendant’s evidence, offered several to this factual defendant In addition with defendant and who were well acquainted witnesses character community. in the good reputation he had a who testified that ten-year-old boy witness a who Finally, called as a boy while the victim was there. The home visited defendant’s he and victim were alone defendant’s that while testified January, Monday, pull the victim to tried living room pants down.
I this evidence for the defendant demonstrate mention close, on the hard-fought guilt. was a case issue of came in what I con- offending Much of the evidence of the cross-examination defendant. In addi- sider be in the majority detailed opinion tion the cross-examination activities at Thoms Rehabilitation Center concerning marijuana, defendant was involving cross- and the incident he owned in 1974 called a restaurant “Leon’s.” examined about occurred: following colloquy for cor- basically hangout teenagers, it was is that And rect? ma’am, No, basically It was a restaurant. basically.
A. in the serve restаurant? What did IN THE SUPREME COURT there, A. I served —When started out I served three meals day. And then I changed when started selling beer. when I That’s getting started to folks in young there. Q. Well, while, after a didn’t it become sort of like what
call a teenage hangout in the sir? evening, No, A. ma’am. I never —I never discontinued to serve food as as I was
long there. Q. Well, in the evening hours during the time that — running ‘Leon’s’ Objection, Your Honor.
Mr. SWAIN: (Ms. continues) Carlisle you say Burgin, would —Mr. evening hours main clientele were young people? Yes, Mr. Object. Swain:
COURT: Overruled.
Exception 2No. Under the rules of evidence when prevailing this casе was tried, a defendant who testified could be cross-examined for pur- misconduct; poses about impeachment specific acts of but general inquiries activity broad concerning ranges which *14 Shane, or not be misconduct were not permitted. State v. 304 (1982) 651-52, (error 643, 813, 285 S.E. N.C. 2d on to ask cross- examination whether defendant “resigned from the intelligence of unit because sexual . . improprieties .” the question because not to elicit designed was an affirmance or denial “of ‘some iden- by tifiable act’ means specific of detailed reference to ‘the time or the or the victim place any of the circumstances of defend- ”); accord, Purcell, alleged prior ant’s misconduct’ State v. (1979). 732-33, 772, also, 252 S.E. 2d See Mason, 584, 592-93, (1978), 295 N.C. 248 S.E. 2d where question, this Court held the “Were involved in call what operations in New York?” gang inappropriate street cross- impeachment examination for purposes. for the
Except question about whether defendant had sold Smith, marijuana to Rebecca of complained none of the cross- of misconduct. Yet alleged specific acts referred to examination por- to solely by and tended suggestion innuendo examination jury and could have light in a before the tray defendant bad innuen- convict him because of these jury to want to inclined the guilt. the issue of his than the evidence relevant to rather does attempted defendant’s wife Finally, cross-examination of innuendo and again through suggestion, to convey jury, to with his children. good relationship did have that defendant purposes for impeachment was improper This cross-examination any only purpose, tried. Its relеvancy being no issue and eyes of the and in- jury in the belittle defendant again, him for reasons other than to want to convict jury cline guilt. evidence cross-examination improper not think these instances of
I do theory on the somehow defendant can be sustained by inquiry stating lines of direct the door” these “opened any young problems he had never “had examination or that he had been con- any problems” kind of sexual children or a restaurant” “operating while marijuana of possessing victed cross-examination, by innuendo exceрt years before. some Further, assertions. does not tend to refute these suggestion, and crime which the into the of the go is “to details usually distract being impeached. Such details witness is it, inject the witness and harm properly the issues before . time place . . into the trial the case. confusion [T]he may be into imposed inquired the punishment the conviction 132, 141, Finch, 293 N.C. cross-examination.” State upon 819, 825 S.E. 2d or, as the concurring error” doctrine Whether the “plain I believe the exten- justice,” interest of in “the suggests, opinion wife about of defendant and cross-examination sive or the witness’s guilt question irrelevant matters paints yet solely suggestion innuendo credibility which new jury warrants a trial. before the as a “bad man”