State v. Crawford

29 N.C. App. 487 | N.C. Ct. App. | 1976

BROCK, Chief Judge.

On direct examination defendant Crawford testified that four police officers beat him while he was in the hospital emergency room for treatment of a gunshot wound received in his attempt to avoid apprehension. On cross-examination the district attorney asked defendant if he remembered a police officer taking his picture while he was in the emergency room, and then displayed a photograph to him. Defendant answered that he did not, but also refused to deny that it was a picture of himself. The district attorney then asked defendant to show him any bruise or cut on his face visible in the picture. Defendant objected on the grounds that taking his picture in the hospital emergency room constituted an invasion of his right of privacy. The objection was overruled, and defendant answered that he could show where his lip was cut. Defendant argues on appeal that it was error to permit the questions about the photograph because no proper foundation had been laid. It is questionable whether this argument is preserved by the exception because at trial the objection was on the specific ground of invasion of privacy. In any event the argument is feckless. Defendant admitted that it was a photograph of himself.

On cross-examination of defendant’s alibi witness, one Bobby Westbrook, the district attorney sought to impeach West-brook by the following questions:

Question: “Not even a month had passed at Myers Park High when you participated in a riot there, didn’t you?”

Defense Counsel: “Objection.”

The Court: “Sustained.”

Question: “In fact, you were beating up an officer.”

Defense Counsel: “Object.”

The Court: “Sustained.”

From the remarks thereafter made by the trial j udge to the district attorney, it seems that the trial judge considered the foregoing questioning improper conduct on the part of the district attorney and specifically restricted the further cross-examination as follows: “Now if you want to ask him what he has been convicted of, do that, otherwise we will go on to another area.” Defendant argues on appeal that the district attorney’s conduct exceeded the bounds of propriety and such conduct entitles defendant to a new trial. This argument is wholly without merit.

There is no suggestion that the questions by the district attorney were groundless or otherwise not asked in good faith. The questions appear to be proper .inquiries for the purpose of impeaching the witness. If the trial judge committed error, it was error favorable to defendant and prejudicial to the State by confining the district attorney to questions of what the witness “has been convicted of.” A witness, including a defendant in a criminal case, “may not be cross-examined as to whether he has been indicted or is under indictment, or has been accused either informally or by affidavit on which a warrant is issued, or has been arrested, for a criminal offense other than the one for which he is then on trial,” State v. Sharratt and Richardson, 29 N.C. App. 199 (filed 21 April 1976), because such questions relate only to accusations against the witness. However, for purposes of impeachment a witness, including the defendant in a criminal case, may be cross-examined concerning prior convictions. State v. Sharratt and Richardson, supra. And, for purposes of impeachment, such witness may be cross-examined “by asking disparaging questions concerning collateral matters relating to his criminal and degrading conduct. (Citations omitted.) Such questions relate to matters within the knowledge of the witness, not to accusations of any kind made by others.” State v. Williams, 279 N.C. 663, 185 S.E. 2d 174 (1971).

During argument to the jury the district attorney picked up the photograph of defendant Crawford taken while Crawford was lying in the hospital. The record on appeal does not disclose what the district attorney did with the photograph or what he said about it. Nevertheless, if we assume that the district attorney referred to the photograph as contradicting defendant’s assertion that he was assaulted by the police officers while he was lying in the hospital, defendant’s prompt objection was timely and properly sustained. The district attorney apologized to the court and to the jury for overlooking the fact that the photograph had not been formally introduced in evidence. In view of the fact that defendant had been cross-examined regarding the photograph, admitted that it was a photograph of himself, and admitted that it displayed only a cut on his lip, coupled with the court’s action and the apology by the district attorney, we deem this inadvertence on the part of the district attorney to be nonprejudicial.

In our opinion defendant received a fair trial free from prejudicial error.

No error.

Judges Hedrick and Clark concur.