State v. Dawson

48 N.C. App. 99 | N.C. Ct. App. | 1980

HEDRICK, Judge.

Our disposition of defendant’s ninth and tenth assignments of error makes it unnecessary for us to discuss his remaining arguments on appeal. We conclude that the prosecutor imper-missibly harassed a key defense witness on a collateral matter such as to destroy the witness’s credibility on the critical issues involved in the case with neither a concrete showing nor an inference raised by the circumstances that he was acting in good faith. In refusing to restrain the prosecutor’s conduct or at least to require that the prosecutor demonstrate legitimate grounds for his harassment, the trial judge committed prejudicial error which deprived the defendant of his constitutionally guaranteed right to a fair trial. For this reason the defendant is entitled to a new trial.

The error obtains in the following colloquy which occurred between the prosecutor and the defendant’s mother on cross-examination, to which defense counsel to no avail “vigorously” and repeatedly objected:

Q. Have you on any occasion or occasions shoplifted?

Mr. Robinson: Objection.

A. No, I was not.

Q. Do you know what I am talking about?

A. I assume by shoplifting you mean stealing.

Q. Do you often —

Mr. Robinson: Objection to the question.

Court: Overruled.

Q. Have you at any time or times picked up things from Mann’s Drug Store without paying for them?

Mr. Robinson: Objection.

Court: Overruled.

A. They have been charged, no, I never picked up anything without paying for them.

Q. I will ask if you carried them home, left the store without paying for them?

Mr. Robinson: Objection.

Court: Overruled.

A. They had been charged to the account.

Q. Without saying anything to anybody about it?

A. Not that I know of.

Q. And that if some of the articles were not returned?

A. I have never stolen anything in my life.

Q. No further questions.

Court: Members of the jury, you may not consider the implication of the question.

We recognize that, for purposes of impeachment, a witness may be cross-examined by the asking of “disparaging questions concerning collateral matters relating to his criminal and degrading conduct.” State v. Williams, 279 N.C. 663, 675, 185 S.E. 2d 174, 181 (1971). Cf. State v. Purcell, 296 N.C. 728, 252 S.E. 2d 772 (1979) (clarifying the rule that the questions must concern particular acts of misconduct.) However, such cross-examination is limited by the requirement that the questions be asked in good faith. See, e.g., State v. Purcell, supra; State v. Spaulding, 288 N.C. 397, 219 S.E. 2d 178 (1975) (stating the rule), death sentence vacated, 428 U.S. 904, 96 S. Ct. 3210, 49 L. Ed. 2d 1210 (1976); State v. Lowery, 286 N.C. 698, 213 S.E. 2d 255 (1975), death sentence vacated, 428 U.S. 902, 96 S. Ct. 3203, 49 L. Ed. 2d 1206 (1976); State v. Ross, 275 N.C. 550, 169 S.E. 2d 875 (1969), cert. denied, 397 U.S. 1050, 90 S. Ct. 1387, 25 L. Ed. 2d 665 (1970). This means simply that the questions must be grounded in fact. The prosecutor may not “inject into the trial of a cause to the prejudice of the accused by argument or by insinuating questions supposed facts of which there is no evidence.” State v. Phillips, 240 N.C. 516, 524, 82 S.E. 2d 762, 767 (1954). Nor may he “needlessly badger or humiliate” the witness by asking insulting or impertinent questions which he knows will not elicit competent or relevant evidence. State v. Daye, 281 N.C. 592, 596, 189 S.E. 2d 481, 483 (1972).

Nowhere in the record before us does any basis for this attack on this witness appear. If it appears at all that the prosecutor had a basis for asking these questions, it appears solely from the asking, and therein lies the problem with the court’s refusal to require a showing that the questions were asked in good faith. Implicit in the asking is the accusation and appearance of guilt, as well as the impression that the prosecutor “had knowledge of evidential facts sufficient to support these insinuations.” State v. Foster, 284 N.C. 259, 283-84, 200 S.E. 2d 782, 799 (1973) (Chief Justice Bobbitt dissenting). See also State v. Phillips, supra. Obviously, the witness’s credibility already was inherently suspect by virtue of her relationship to the defendant. In our opinion, in his persistence and despite Mrs. Dawson’s protestations to the contrary, the prosecutor succeeded through these questions in totally destroying her testimony by portraying her to be a thief. The portrayal, as far as we can tell, was baseless. Under the circumstances disclosed by this record, we think deference to the dictates of fair play and constitutionally administered justice at a minimum mandated the judge to ascertain whether the prosecutor did have grounds for asking the questions. A simple bench conference should have been sufficient. If the judge was unwilling to test the prosecutor’s good faith or if a test revealed no basis for such harrassment, then the judge should not have permitted the questions to continue. Defense counsel’s objections to their asking should have been sustained.

Moreover, under the circumstances present in this case, we think it plain that the judge’s admonition to the jury to disregard the “implication of the question” came far too late and was too ambiguous to erase the error. At that point, Mrs. Dawson had been asked at least six questions regarding her “shoplifting” activities. Had the instruction been given after only one such question, we doubtless would have found it adequate to cure the impropriety. However, coming as late as it did, after the prosecutor had indicated he was finished with the witness, and being phrased in the singular as it was, the admonition in our opinion was wholly ineffectual.

In holding as we do in this case, we emphasize the fact that this witness was crucial to the defendant’s defense. She supported his alibi with the critical assertion that he could not have left the house at any time from approximately 6:30 p.m. on without her seeing his departure. She explained why the station wagon was parked in the place it was when the police officers arrived — that is, it had been moved out and parked behind the other cars in the driveway, which gave the appearance that it had arrived last, simply because it was to be driven out of town early the next morning to transport paint and to pull the U-Haul to some rental property owned by the family. She corroborated the defendant’s testimony that he was dressed in a green “scrub suit” all evening, as opposed to the jeans and t-shirt described by the prosecuting witnesses, until he changed to go to the police station. The fair assessment of her credibility by the jury was perhaps pivotal. Yet, as we noted earlier, her credibility from the outset was innately weak because she was the defendant’s mother. Furthermore, the question of the identification of defendant as the assailant was critical to the State’s case in view of the fact that none of the State’s witnesses personally knew the defendant, and four of the five persons in the jeep had never seen him before, nor did they recognize him at the time. The incident occurred at night. The other witness, McCrickard, stated only that he thought he knew who the assailant was. In short, the defendant’s whole defense was built on misidentification-and alibi. Under the circumstances, the asking of these six questions by the prosecutor was highly prejudicial to the defendant in that it tended to destroy by innuendo and suspicion the otherwise unim-peached evidence that Grant Dawson was at home when the shooting took place. Since the record fails to show that the prosecutor had a good faith basis for asking the questions, the cross-examination was improper.

The defendant is entitled to a new trial, and it is so ordered.

New trial.

Judges Parker and Vaughn concur.