State v. McKinney, No. 1

No. 1 | N.C. | Mar 7, 1978

LAKE, Justice.

In his brief, counsel for the defendant states that he has examined the record at great length and on many occasions and is unable to cite any authority to the effect that the errors alleged by him were prejudicial so as to warrant a new trial. He requests this Court to review the case to ascertain whether prejudicial error occurred in the trial of the defendant. Due to the nature of the crime of which the defendant has been convicted and the sentence imposed, we have done so. We, like counsel for the defendant, find no error.

Three assignments of error are brought forward into the brief for our consideration: (1) There was error in permitting the sister-in-law, a witness for the State, to testify to a conversation she had with the district attorney; (2) there was error in permitting the defendant’s companion, a witness for the State, to testify that, upon his return to the scene, he tried to talk to the sister-in-law and “she couldn’t talk” but just sat there in the car screaming; (3) the court erred when, after sustaining a motion to strike certain testimony of the State’s witness Whitmire, and while considering a motion for a mistrial, the court repeated that testimony to the jury. There is no merit in any of these assignments.

On cross-examination of the sister-in-law, defendant’s counsel elicited the information that she had talked to the district attorney on the preceding day for five or ten minutes. On redirect examination, over objection, the witness was permitted to state that the extent of the conversation was that the district attorney asked her if the statement she had given the police officers was the truth, she replying that it was to the best of her knowledge, and, thereupon, the district attorney told her that, when she was called to the witness stand, she should just tell the truth as to what happened and what she saw and nothing else. The defendant, having opened the door, there was no error in permitting the State, through this witness, to show the nature of the conversation.

The comment by the defendant’s companion as to the condition of the sister-in-law immediately after the shooting and her inability to talk, other than just screaming, was simply a narrative of observed conditions substantially contemporaneous with the shooting. There was obviously no error in the admission of this testimony.

The State’s witness Whitmire, a deputy sheriff who went to the scene of the shooting in response to the call to the police for assistance; testified that when he arrived at the scene, dressed in his uniform, the defendant seemed to be hysterical, was crying and had what appeared to be blood oh his shirt and hand, that the witness tried to calm the defendant down and was under the impression that there had been an automobile accident, and that the defendant said to the officer that his wife was over there dead and he, the defendant, would kill the officer too.

The record does not show the question in response to which this testimony was given. It shows that there was no objection entered until after the testimony and, thereupon, the defendant moved to strike. Assuming that the testimony was responsive to questions asked by the district attorney, the failure to object prior to the answer of the witness would waive any right to object. State v. Edwards, 274 N.C. 431, 163 S.E. 2d 767 (1968); Stansbury, North Carolina Evidence (Brandis Rev.), § 27. The court, nevertheless, sustained the motion to strike.

Thereupon, the defendant moved for a mistrial on the ground that the district attorney knew the witness would so testify. In the absence of the jury, the defendant’s counsel was permitted to examine this witness further and the witness stated that he had advised the district attorney as to the nature of the testimony which he would give if called as a witness. The court then brought the jury back in and reminded the jury that he had sustained the motion to strike testimony to the effect that the defendant wanted to shoot this witness. The court then asked the jurors if they could abide by their oath and disregard that testimony pursuant to the court’s instruction. No juror having indicated that he or she could not so disregard that stricken testimony, the court denied the motion for a mistrial. In this there was no error. The court was merely readvising the jury that the testimony of this witness which the defendant had moved to strike should not be considered by them at all and ascertaining that the members of the jury would, indeed, not consider it.

Although there is no error assigned to the charge of the court, we have carefully considered the entire charge and find therein no error.

No error.