25 N.C. App. 381 | N.C. Ct. App. | 1975
The direct examination of the prosecuting witness Shumate was conducted before noon, and the court then recessed for lunch. After lunch, Shumate did not appear to testify and could not be found. As a consequence, the trial judge ordered a recess
The same rules applicable to continuance should logically apply to the granting of recesses during the course of trial. State v. Hailstock, 15 N.C. App. 556, 190 S.E. 2d 376 (1972). It is established that rulings on motions to continue ordinarily rest in the sound discretion of the trial judge. State v. Cavallaro, 274 N.C. 480, 164 S.E. 2d 168 (1968). This same discretion carries over to the trial where it is recognized that “ . . . the paramount duty of the trial judge is to conduct the course of a trial so as to prevent injustice to any party. In the exercise of this duty he possesses broad discretionary powers.” State v. Britt, 285 N.C. 256, 271-72, 204 S.E. 2d 817, 828 (1974). Further, “[t]rial judges must be given sufficient discretion to meet the circumstances of each case.” State v. Bass, 280 N.C. 435, 454, 186 S.E. 2d 384, 397 (1972).
In circumstances like those in the present case where a State’s chief witness just takes the afternoon off without a word to anyone as to where he has gone or where he will be, we believe that the trial court in granting a recess for that afternoon rather than a mistrial did not abuse its discretion where defendants fail to show prejudice. We find no error in this action.
During the defendants’ presentation of their case, the State was allowed, over objection by counsel, to cross-examine each defendant relative to specific acts of misconduct and violations of prison rules while they were inmates in the custody of the Department of Corrections, and relative to guilty pleas on some of the charged violations. Generally, the cross-examination related to refusals to obey lawful orders, rioting, fighting, and the use of abusive and profane language toward prison officials. Such acts and conduct evince a lack of respect for authority, and a rebellious attitude. The good faith of the State was not questioned, it appearing that the District Attorney was basing the cross-examination on records provided by prison authorities.
It is established' in this State that for purposes of impeachment a witness may be cross-examined about specific criminal acts or reprehensible conduct. State v. Gainey, 280 N.C. 366, 185 S.E. 2d 874 (1972) ; State v. Williams, 279 N.C. 663,
Too, a plea of guilty on a former trial may be admitted against the defendant as an admission. State v. Ingram, 204 N.C. 557, 168 S.E. 837 (1933) ; State v. Libby, 209 N.C. 363, 183 S.E. 414 (1936). Though the violation of a prison rule by an'inmate may not be a crime in the usual sense of the word, a plea of guilty to a charged violation of a prison rule is an admission by the defendant that he did in fact commit the alleged act, and, if relevant for the purpose of impeachment, it is admissible.
But the State went further and extended the scope of its cross-examination in asking both defendants about convictions or findings of guilty for violations of prison rules and the imposition of disciplinary action by prison authority. For example, the defendant Elliott was asked if he was found guilty of sticking his penis into another inmate’s cell; and the defendant Warren was asked if he was convicted of getting into a fight and into a race riot. The trial judge overruled objections to both questions. In each instance the defendant replied that he was convicted or found guilty but did not commit the alleged acts.
In State v. Williams, supra, the Court details the nature and purposes of a bill of indictment, particularly criticizing it as “purely hearsay” and “based on ex parte evidence.” While we recognize that certain incidents of due process are followed in a prison disciplinary hearing, it is obvious that such hearings do not have the standards of due process which we have in our trial courts.
We infer from State v. Williams, supra, that prior “convictions” are admissible because the protections that are afforded a defendant in a traditional trial assure him that his guilt has been fairly proved beyond a reasonable doubt. Indictments and warrant accusations, being findings not afforded these traditional protections, were held to be inadmissible. The solemnity of a trial assures one of a certain standard of-proof, one sufficiently high that a finding of guilt is admissible in a later trial. A finding of guilt by prison officials in a disciplinary hearing
Under some circumstances the impeachment of a defendant witness by cross-examination relative to convictions by a prison disciplinary board may not constitute reversible error, but here the case for the State was based entirely on the unsupported testimony of the prosecuting witness that both defendants had committed the crime charged; both defendants testified and claimed innocence. Thus, credibility, a matter for the jury, was crucial, and there was a real danger that the testimony of the defendants was destroyed by evidence of “convictions” in a prison disciplinary board hearing where the standards of due process do not approximate those in a court of law.
The judgments as to-both defendants are vacated and the causes remanded for
New trial.
