State v. Phillips

283 N.C. 339 | N.C. | 1973

HIGGINS, Justice.

Ordinarily when it becomes necessary to order a new trial on the ground the prosecution in a criminal case was permitted, over objection, to introduce incompetent and prejudicial evidence, this Court confines the discussion to the assignment of error which challenges the admissibility of the evidence. In this' instance, Assignment of Error No. 1, based on Exception No. 28, challenged the admissibility of State’s Exhibit Eight— the defendant’s letter to the warden of the State’s prison.

The State’s witness who identified the letter stated on cross-examination it was written one year prior to the homicide. The witness was in the habit of transcribing stories which the defendant wrote for publication. She testified:

“ , . I typed a number of letters and stories for Mrs.Phillips.

“Mrs. Phillips discussed her stories with me. . . .

“When I wrote the letter she discussed with me about a story she anticipated writing and was gathering the proper background and details about a woman that was sent to prison.”

. The- letter itself stated the writer wanted the information for a story. The witness at the time she typed the letter knew of the defendant’s plans and preparations for the story..’

Iir this case, not only the solicitor for the State and- his staff, but privately employed counsel appeared for the prosecution. The defendant offered evidence, hence the State had the right to open and conclude the argument to the jury. After the argument, the court in reviewing the evidence, charged the jury:

“. . That on one occasion about eighteen months ago that the defendant in this case brought her a letter to be typed and that she typed the letter for the defendant. The letter was introduced into evidence and as I recall it but you take your own recollection of the letter, that it was to the Warden of the State Prison or some official in the State Department of Correction asking for information as to what would happen to a woman that was in prison serving a sentence for manslaughter.” (Emphasis added.)

The court interpreted the letter “as asking for information as to what would happen to a woman that was in prison . . . serving a sentence for manslaughter.”

Research has failed to disclose a court decision which is of much value as authority on the question before us. The cases deal largely with remoteness in time rather than with remoteness in purpose or mental attitude. With respect to remoteness in time, the rule is stated in 1 Wharton’s Criminal Evidence, 13th Ed., § 152:

“No rigid rule can be stated to determine when the time interval is so great that a given fact has no probative value. . . . Flexibility, then, is necessary in verbalizing a workable standard. . . . There being no fixed standard for determining remoteness, it is necessary to consider all the attendant circumstances, the nature of the evidence offered, and the nature of the crime.”

Evidence of prior acts or declarations, to be admissible must be related to and tend to shed light on the acts complained of State v. Kelly, 227 N.C. 62, 40 S.E. 2d 454; Barnes v. Teer, 218 N.C. 122, 10 S.E. 2d 614.

The legitimate purpose of the defendant’s letter is explained by the State’s witness as well as by the letter itself. The purpose was to obtain information for use in a story.

To those familiar with criminal trials, it is not difficult to visualize the prejudicial effect the private counsel for the prosecution and the solicitor were able to generate by waving this letter before the jury and picturing it as an attempt on the part of this woman to find out what would happen to her when she executed her plan and thereafter was convicted of killing her husband. In the court’s recapitulation of the State’s evidence, the court characterized the letter as “asking for information as to what would happen to a woman that was in prison . . . serving a sentence for manslaughter.” (Emphasis added.) The recapitulation magnified the error.

In view of the explanation the State’s witness gave for the defendant’s letter, none of which was contradicted in the evidence, the use the court permitted the State to make of it was so prejudicial the defendant is entitled to go before another jury.

The cause is remanded to the Superior Court of Caldwell County for a

New trial.

Justices Lake and Branch dissent.