*1 SPRING TERM 1980 mаy It be far likely more conception July that in occurred of 1977 while defendant and his wife were living together but the evidence is not conclusive on that point. This a criminal case I do not believe the constitutional error committed beyond harmless a reasonable doubt. Since average the number of days conception days from to birth is and the calculations are no more plus accurate than minus two weeks from the woman’s term, last menstruation even for full normal pregnancy, there is at possibility least reasonable that conception occurred the point when she separated her from husband and began relations Pinnley. The conception may of child the have been the last product of her relationship with her husband or the product first husband, of her sexual Pinnley. Pinnley, affair with her not likely was the object mоre her affections point at that in time. I For these reasons believe that scrupulous concern for the fairness process and of the requires result there be new trial at which the be applying would the law as set forth opinion this to the evidence as presented. majority’s Under the conclusion that will be achieved in this case due to the con- clusive majority evidence the discerns from the record.
STATE OF NORTH CAROLINA v. FLETCHER LEE ROYAL
No. 115 (Filed 1980) July 1. photographic Criminal Law 66.9— suggestiveness pro- identification —no cedure failing did suppress photographic trial court not err in the iden- robbery tification of defendant victims of an armed and assault where the evidence dire positive on voir tended show that the victims were about they identification photographs their at the viewed time and selected picture among group; from were not told that thе robber persons photographic lineup; one of there was no evidence made; suggested the officer portrayed choice which the victims the men similarly photographs were photographed dressed and were in casual sur- roundings; all pointed evidence on voir dire to the conclusion that photographs procedure themselves and surrounding their use did not any way point perpetrator to defendant as the crimes of which he accused. stood COURT IN THE SUPREME *2 Royal obtaining of photographic § identification —method 66.7— 2. Criminal Law inquiry to make photograph allowed —defendant by that the trial court erred defendant’s contention There was no merit to photograph was ob- manner in which his permitting inquire into the to not permitted in- photographic lineup, defendant was to in a since tained for use obtaining photograph surrounding fully the of quire circumstances into the propriety during the by the voir dire to determine authorities law enforcement identification; permitted inquiry was within pretrial photographic that this of a concerning was irrelevant ongoing a related matter of an voir dire the context provided complete examination of the prejudice question of to the permitted; the basis of was and on challenged and circumstances facts defendant, specifically by found that the presented the court evidence by voluntarily police given to defendant’s photograph question had been mother-in-law. opportunity for § of 66.1— in-court identification Criminal Law 3. defendant — observation robbery, trial court did not err prosecution and armed the for assault defendant, allowing an in-court identification of victims to make the three range at in familiar sur- was view the intruder close each of them able to since minutes, period and that roundings lighted over a of about which were well uproar while the context confusion and inherently occurred within the the observations taking incredible and thus place not render them were did crimes incompetent as a matter of law. questions § leading Law 87.1— 4. Criminal the trial court ex- was no to contention that There merit by objections leading questions since most opinion overruling his to pressed an objected suggest not the questions to which defendant did answer leading by interrogator questions; two of the were not thus desired by investigator subpoenaed who was the State questions were addressed to an defendant, judge by that was not an abuse of discretion called so but leading object questions; and defendant did not State to ask him tо allow the answered, truly leading question until after the witness had to the one no strike. was motion to even then there log procedure prop- § of radio to refresh Criminal Law 87.3— use 5. recollection — er robbery, memory deputy of a prosecution and armed In a for assault permissible a radio manner where he was handed was refreshed in a sheriff document, question; night he identified the log of the crimes sheet for report he sheriff’s office when the came and then testified in, gave logged; dispatcher him the call at the time it was moreover, which served to refresh the recollection of that the document incompetent. him did render the method witness had not been made not right § to con- Criminal Law 88— limitation cross-examination —defendant’s 6. abridged front accusers deny right confront his accusers trial court did not defendant his attorney propounded by sustaining objections district TERM 1980 SPRING cross-examination, objections defense counsel on since court sustained questions which called for incompetent answers would have been hear- laid, say, expert opinions or for for which no foundation had been and since unduly questioning repetitive argumentative. much of the or § impeachment prior 7. Criminal Law 86.5— criminal acts defendant — robbery prosecution In an armed and assault the trial court did not err in permitting attorney concerning district kidnap- date, robbery ping person aof named on a certain since defendant could questioned purpose impeachment be for the concerning prior specific degrading criminal acts conduct for which there had been no conviction. 8. admissibility Criminal Law 89.3— corroborative *3 evidence — testimony The trial did err admitting сourt not of a law of- enforcement concerning ficer his conversation with another law officer about defendant and hospital shortly his statement made while he was in the after commission of charged, the crimes which he was since the evidence was for admissible only, purposes corroborative properly and the court instructed how use could it. Justice participate did not Brock consideration decision of this case. dissenting.
Justice Exum joins opinion. Justice dissenting Carlton Brown, J., from judgment of imposed APPEAL at the October 1979 Superior Session of WAYNE Court. of not Upon pleas guilty, defendant upon was tried bills of in- proper dictment form which charged with the crimes robbery, armed first-degree burglary, and two counts of assault with intent to kill.
The state introduced evidence summarized in pertinent part as follows: the night
On of 18-19 June 1979 William Nelson Smith lived Dudley, near North Carolina. He and operated owned a used car Olive, lot and a service station in Mount approximately four miles from his home. Three lived people with Smith in his home: his wife, Edna; fourteen-year-old daughter, Nancy; and his mother, seventy-one-year-old Maybelle. date, the evening family
On of said retired for bed at about 11:30. Mr. family Smith had closed the business for the home, night at about 11:00. Upon arriving he entered the house IN THE COURT SUPREME into the opened a door which door and then back through a storm wood; second door was made half of the kitchen. The bottom entering the house glass panes. After top half consisted doors, sufficient proceeded Smith count out both locking he at- day, That day’s the next business activities. change for Carolina, Kenly, he had sold six North tended a car show home, arrived Smith had in the time he automobiles. At $20,000 in cash аnd checks. possession approximately was awak- morning, 3:00 the next Smith At approximately door, at the back who him that someone was by his wife told ened As the con- the door bell. noise beating ringing the door and on tinued, a .22 caliber pants procured on a pair Smith put at the time. which was loaded pistol kitchen, on fluorescent he entered the Smith turned When Upon going room. the back light door, brightened entire window through and looked the curtain back pulled standing steps saw a black man on back panes and Im- yard light. backyard entire was illuminated house. The and Smith was open, was forced mediately thereafter door wall. The intruder and Smith scuffled kitchen against slammed range, Smith at close a few moments. The intruder then shot bullet shattered his jaw. jawbone him in his wounding *4 extensively damaged gums. Smith, began assailant on him and jumped
After he shot a revolvеr. In the course of the him with small caliber beating tussle, Smith was able to look at his assailant. Smith testified that image to visualize the of his attacker several times a he was able the assailant. identified defendant as day and positively out, out wife. Mrs. Before he Smith called for his passed kitchen, in prog- observed the scuffle then Smith went into ress, carry- left She returned to the kitchen and the room. quickly the attacker but the .22 rifle. She tried to shoot caliber ing to beat the man about the began would not fire. She then weapon efforts, ri- her the assailant took the Despite with the rifle. head with her. Defendant then away began struggling fle from her and Smith. shot Mrs. Smith’s mother
The in the kitchen awakened commotion down in an bedroom. As she came upstairs had been sleeping who TERM SPRING the stairs and saw the fighting kitchen she went into the kitchen, chair, picked and the man up hit over the head twice with the chair. The blows apparently did injure defendant elderly because he then turned to the began woman and slapping about, time, her demanding money. By this Mr. Smith and his wife had lost consciousness. while,
Mrs. Edna regained Smith consciousness after a short floor, got off of up and tried to reach the telephone hallway. When she picked the receiver up began to call for away defendant help, jerked telephone from her knocked her to the floor. He struck her several times.
By this time Mr. Smith had regained consciousness and made way into the bedroom where he procured another .22 caliber assailant, revolver. Mr. Smith ran toward the put the gun up stomach, against the intruder’s and fired at least two times. wounded, the attacker Though he was able to force Mr. Smith back into the bedroom where resumed fighting. After while, struggling short Mr. Smith gave thе drawer, of money intruder all that was in a dresser more than $12,000.00. The attacker then fled out the back door. 5:45, Later morning, at approximately Officer K. R. Ed- wards the Goldsboro Department Police was leaving police when he station observed a brown 1964 Chevrolet drive into the parking lot. The horn was blowing continuously. Officer Edwards walked over the car where saw defendant slumped over in the front seat. Defendant out car got officer able to see two bullet wounds area defendant’s stomach. bloody Defendant’s clothes were and his vest was unbuttoned. bloody, interior the car was especially near on the door driver’s side. The officer called for the rescue squad defend- ant Wayne was taken to Memorial Hospital for treatment. *5 evidence,
Defendant offered including his testimony own which tended to show that: years
Defendant was 28 old at of his time trial and worked as looma fixer and mechanic aat textile mill. He was married and lived with his wife their three children in a near park trailer Goldsboro. IN COURT THE SUPREME Royal a.m. at his from 8:00 job 1979 defendant worked
18On June a garage work he went to local After he left 4:00 p.m. until car, was made to his a having he progress repairs check on the driving he was a being his repaired, While car was Vega. friend, David Best. belonged 1964 Chevrolet brown 8:00, defendant and his at evening, approximately on Later cou- the home of her mother. The with their children to wife went left, leaving the thirty minutes before stayed about ple his wife night. Defendant drove spend children behind night where on the Company she worked the Mt. Pickle Olive factory, Mrs. off at the defendant dropping shift. After washing clothes after changed to their trailer and returned home sister-in-law, Blake, to visit his Eva at He then went himself. stаyed briefly driving to He there before p.m. 11:00 about Goldsboro, stayed until it closed Lounge in where he Peacock he drove Goldsboro until came to self- 3:00 a.m. He then around away, after he could drive gasoline filling service station. Before tank, men in. of the men car drove One asked carrying two As he searched his change for for a five dollar bill. defendant was shot the driver of the pockets change, for shot, passenger he defendant was searched car. After was two then left the area. passengers The car and its the car. driving car and drove to back into the been got Defendant where he was found Department Police Officer the Goldsboro Edwards. robbery two guilty was found of armed counts
Defendant kill. deadly with a with intent to weapon of assault charge on and mistrial burglary, to reach a verdict unable to life im- as to that case. Defendant sentenced was declared year robbery twenty conviction and on the armed two prisonment were to run the assault convictions. The sentences sentences on consecutively. granted bypass and we his motion to appealed
Defendant on the assault convictions. Appeals Court Edmisten, by L. Attorney Attorney General Assistant Rufus Blackwell, Roy General David State. for Taylor defendant-appellant. F. George *6 TERM 1980 521 SPRING Royal v.
State BRITT, Justice.
[1] suppress Defendant contends that photographic identification of him the trial court erred by Mr. and Mrs. in failing unduly was ground procedure sug that the Nelson Smith on is This contention without merit. gestive. home, days five incident Smith Of-
Four or after the at the Flowers, Wayne County S. a Special Investigator ficer J. with the business in Department, place Sheriff’s went to the Smith’s While five each produced photogrаphs, Mount Olive. there one black men in casual dress and Officer portrayed settings. identify Mr. if asked Smith he could the robber from Flowers immediately portrayed photographs. the men Smith among she was in the picked picture. Though out defendant’s office at time, Mrs. Smith was unable to see which her photograph She, turn, was same husband selected. shown the five and she too out photographs picked picture. constitutionally A ais photographic lineup acceptable compo States, a criminal Simmons v. United 390 investigation. nent of 377, 1247, (1968); 19 L.Ed. 2d 967 v. Bundridge, U.S. S.Ct. State (1978); S.E. 2d (1972). Stepney, Such a pretrial procedure identification is if is as rise impermissibly suggestive give inadmissible so very Sim irreparable substantial likelihood of misidentification. States, Davis, 294 N.C. supra; mons United Bundridge, S.E. 2d 656 State v. see An supra; generally not., 39 A.L.R. 3d infirmity The evidence in case at bar reveals no in the The evidence photographic procedure employed. identification voir dire the time viewed the elicited on establishes that at picture among and selected defendant’s from photographs positive Mr. and Mrs. were about the identification. Smith group, show couple The evidence further tends to that the not told persons photographic the robber one of the any suggested evidence that the officer lineup. Nor there addition, made. In evidence is couple which the uncon- choice photographs the men were portrayed troverted that similarly dressed and were in casual photographed surroundings. dire points All evidence on voir to the conclusion that the use procedure surrounding themselves their photographs IN THE SUPREME COURT *7 way any did not in point to defendant as the of the perpetrator crimes of which he stood accused.
In a related assignment, defendant contends that the trial court erred in denying his motion to witnesses who sequester testify were to on voir dire as to the photographic identification described above. Defendant that the denial argues of his motion to amounted an sequester abuse of discretion and a denial of to a fair and trial. right impartial This is argument without merit. motion of a the trial
Upon party, judge may order all or some defendant, than the witnesses other to remain outside the courtroom until testify. are called to 15A-1222 G.S. § (1978).A motion to witnesses is sequester addressed to the sound discretion of the trial will judge and not be reviewed on appeal absent a of an showing E.g., abuse discretion. v. Mc- State Queen, (1978); S.E. 2d 414 see generally J. Van Gill, Trial, D. Camp & Criminal Law The Symposium: 14 Wake (1978). Forest L. Rev. 949 The record the рresent case reveals no abuse of discretion nor it demonstrate does how the denial of defendant’s motion to him sequester deprived of his to a right fair by trial an impartial tribunal.
[2] Defendant makes the further contention that the trial court by erred him permitting into inquire the manner in which photograph obtained for use in the photographic lineup. Defendant made a pretrial motion to suppress in-court iden Smith, by tification of him Nelson Edna Smith and Maybelle identification, Smith. the voir dire During concerning the defend ant moved for a voir dire concerning the method which in vestigating officers had obtained the photograph of had been used in the photographic lineup. The trial judge over ruled defendant’s motion. We no perceive error.
The record does not support defendant’s contention. While it is true that the trial denied judge defendant’s motion voir dire separate on the issue of the procuring of the photograph in question, the record establishes that voir during the dire that witnesses, was held defendant was able to present including Of- Flowers, ficer who gave testimony concerning the manner which the photograph obtained. At the conclusion of the hear- ing, the court made findings of fact and conclusions of law. TERM 1980 SPRING
State photograph court found that the had been specifically question voluntarily given to the defendant’s mother-in-law. police There is evidence in the record this competent support finding, Harris, appeal. E.g., and it is conclusive on 214 S.E. Thompson, (1975), vacated, 2d 742 death sentence A U.S. would have been The record in- separate hearing superfluous. fully dicates defendant was into the cir- permitted inquire of his law surrounding obtaining photograph cumstances within this was permitted enforcement authorities. That inquiry voir dire a related matter ongoing concerning the context of an irrelevant to the that a prejudice provided complete *8 facts and circumstances was challenged per- examination of manner, By this the trial conducting procedure mitted. was in a to examine the position propriety court in a contextual fashion rather than as a photographic lineup criminal segmented portion larger investigation. makes the further contention that the trial court Defendant
[3] erred by of him by suppress the in-court identification failing witnesses, Smith, Mr. his wife and his mother arguing the state’s opportunity that none of the witnesses had a sufficient to ade in their home. This contention is observe the intruder quately without merit. assignment, evidence this admitting challenged
Beforе Smith, dire. Mr. hearing, the trial conducted a voir At that judge defendant, with reference to his to observe speaking opportunity testified that when he went into the kitchen because of the knock- bell, at the back door and the of the door he turned on ing ringing yard light burning two fluorescent that a at the time lights; door; man upon which shone the back that he saw black stand- door; man through outside the back that the burst the door ing him; upon fought; that he and the intruder that the intruder was minutes; forty-five in the house about that he saw the assailant time; half of that he described the attacker to law about that old, years being weighing enforcement officers as with a chocolate pounds, complexion. defendant, respect
With to her observe Mrs. opportunity Maybelle Smith testified that she had awakened about four a.m. bathroom; on the to the that she heard night go IN THE SUPREME COURT door; the back that she went downstairs to beating someone on shot; son, Nelson, that a and found that her had been the kitchen head with a that the man beating pistol; man was about the minutes; and 45 and that she had was in the house between 35 to touch him. enough been close to the intruder wife that she had been awakened Mr. Smith’s testified bell; and ringing on the back door the door that beating someone to see what was gotten up happening, after her husband she commotion; then out of bed and went to got heard a loud that she kitchen; defendant; she saw that she went back to the that rifle; fire; the rifle would not that she got bedroom and about his began beating turned the rifle around defendant it; her; away that defendant took the rifle head with from was able to look at defendant in the face for “quite she awhile.” judge findings
The trial made detailed of fact and concluded of defendant the state’s the in-court identification solely an and based independent origin upon witnesses was of they had seen at the time of the incident in their home. The what to elicit in-court identifications of thereupon permitted state was by its witnesses. principal defendant error, assignment forward this bringing Miller, 154 S.E. 2d
relies
the case
upon
*9
(1967).
stands
the
that while the
proposition
ques-
902
Miller
for
testimony
the identification
of the prosecuting
tion of whether
decide,
any
jury
witness has
value is for the
to
the rule
probative
only
has
where the
evidence which tends to iden-
application
no
inherently
the
of the
is
in-
tify
perpetrator
a defendant as
offense
clearly
of
facts
established
the
undisputed
credible because
731,
270
at
In the evidence the state tended to show that the Hall was broken into and entered on Company Oil Charlotte 28 1966. The of evening Sеptember building the of exterior the grounds by nearby were illuminated street- surrounding its at the front and back and which were lights, floodlights spotlights its eaves. A vacant lot separated company attached to oil by a 286 only from a service station distance of feet. The iden- sixteen-year-old boy tification evidence was that a provided defendant Miller out of a picked lineup. night who had Before 525 1980 TERM SPRING v.
State defendant, break-in, and he had never seen the witness of the direction, in front stop in each a man run once saw stated it, in the and then look around company building, peep the oil of was unable to describe witness. The witness direction of the he able describe hair. to eyes the man’s Nor color of were say that his clothes clothing to except color of man’s dark. grounded in Miller is sound which was enunciated
The rule and we reaffirm its continued logic policy, considerations however, application, in the our state. It has no viability law of which is of observation opportunity reasonable where there a event, permit identification. subsequent sufficient force of his identifica- credibility witness and probative of the testimony E.g., to resolve. State for the tion Herndon, (1977); Wilson, 2d 235 S.E. Cox, 2d 557 S.E. 2d S.E. facts of case at to control the applied Miller cannot be obligation Miller from the springs The rationale of bar. and im- of a criminal defendant a fair right courts to insure the end, to minimize the the Miller rule seeks trial. To that partial by a being misidentification right infringed possibility for observation. patently opportunity inadequate caused which for observation present opportunities In the case the inade- patently were not afforded the state’s witnesses were range, the intruder close Each of them was able view quate. well over a lighted, period were surroundings in familiar while a break-in That the observations occurred about minutes. in- does not render them a series of assaults were progress occurred within as a matter of law. The observations competent uproar which is inherent context of confusion defendant stands accused violent criminal acts for which nature of be made committing. To that such observations require case, manner, be the would be argues casual as defendant should unreasonable.
[4] opinion Defendant contends next that overruling objections the trial leading judge expressed questions of the *10 an deny as him a attorney degree district to such an extent and so impartial disagree. fair and trial. We IN THE SUPREME COURT
State v.
A leading question is a
which
suggests its desired
Davis,
397,
(1978);
answer. E.g., State v.
294 N.C.
. . . counsel should be allowed to lead his witness on direct (1) examination when the witness is: hostile or unwilling to (2) testify, has difficulty in understanding the question because of immaturity, infirmity age, or or ignorance where (3) the is into a inquiry subject of delicate nature such as sex- (4) matters, ual the witness is called to contradict (5) witnesses, testimony of prior the examiner seeks to aid the witness’ recollection or refresh memory when the witness has memory exhausted his stating without the par- (6) ticular matters required, are questions asked for (7) securing preliminary introductory testimony, the ex- aminer directs subject attention to the matter at hand (8) suggesting without answers and the mode of questioning is best calculated to elicit the truth. 492-93, 206 S.E. 2d at 236.
It would serve no useful for us to set in detail purpose out the multitudinous about which com- questions defendant now plains. Upon examining each of them in light guidelines Greene, enunciated we there supra, conclude that no abuse of discretion. The bulk of the questions characterizes as leading nature cannot be so portrayed suggest do not the answer desired interrogator. Insо- concerned, far as the other two of them were asked *11 1980 527 TERM SPRING Royal by the of Officer Flowers on cross-examination assistant district attorney. investigator The had been called as a witness de- though subpoenaed by fendant even he had been the state. It is party well established that does not make witness his own him, see 239 subpoenaing calling Tilley, and not (1954), 2d 473 and if he later interrogated by S.E. Stansbury’s another the latter’s party, becomes witness. (Brandis 1973). North Evidence Rev. That being Carolina § case, it was not an discretion to judge abuse of allow the leading state to ask the In the investigator questions. remaining truly instance of a defendant did leading object not until question, then, after the witness had answered. Even there was no motion to strike. There was no error. was it trial
Nor error for the court to Nelson Smith to permit testify concerning robbery. his wife’s actions during Our ex- amination of record leads us to conclude that Smith was testi- from first-hand as to what wife did fying knowledge during course of the incident their home. That he cast his testimony terms of statements shorthand of fact concerning her movements does mean was incompetent. See (Brandis generally Stansbury’s North Evidence Carolina § 1973). By doing, convey Rev. so Smith was attempting jury in a comprehensible fashion his recollections of the events of 19 June. It would be unreasonable to require witness to recount in minute detail all of which he the events had observed during fly the commission of a crime. To violent do so would be to face of the inherent confusion and disorientation of such incidents. intermittently That Smith testified that he was unconscious dur- robbery is a ing only relevant consideration insofar as it credibility relates to the probative weight, both are of which considerations to be made the jury subject to instructions. proper
[5] Defendant contends that it was error to receive into evidence
log
Wayne County
the radio
for 19
1979 of
June
Sheriff’s
We
When the
Department.
disagree.
log itself was received into
authenticated,
being
evidence after
see
properly
generally
(Brandis
1973),
Stansbury’s North
Evidence
Carolina
Rev.
objection.
defendant made no
exceptions
preserved
only
for our review deal
log
with the
sheet
handed
being
Depu
ty Sheriff Fane S.
while he
Greenfield
was on the witness stand.
IN
THE SUPREME COURT
residence when
dispatched
Greenfield
Nelson
Deputy
to law enforcement authorities. At the
reported
the incident
*12
in,
department.
came
he was
sheriff’s
On
time the
at the
report
examination,
was handed a
which he
the officer
document
redirect
identify-
19
1979. Upon
as
sheet for
June
recognized
log
thе radio
document,
served
Greenfield stated that
to
ing
Deputy
the
help
as
time that the call for
came
refresh
recollection
to the
office;
3:41;
call
sheriff’s
the
came
at
that the
into the
By
call
was
dispatcher
logged.
him the
at the time it
this
gave
was
a
memory
permissi-
refreshed in
procedure,
deputy
the
Smith,
291
[7] Defendant
contends that the
trial court
erred
permitting
attorney
the district
concerning prior acts of
This
misconduct.
On
contention
without merit.
recross-
attorney
asked
if
examination
district
defendant
kid
$1,125.00
Mr.
napped
May
and robbed
Knowles
Robert
on
1979. Defendant
having
specified
denied
committed
On
acts.
examination,
redirect
he had
ar
testified that
been
rested and charged with the crimes of
kidnapping
robbing
Knowles but that there had been
finding
probable
no
cause
*13
charges
the
had been dismissed.
an
It is
law
principle
established
evidence
when
of
that
behalf,
testify
a criminal
defendant elects to
he is sub-
own
cross-examination,
ject
purpose
to
impeachment,
for the
of
with
respect
prior
criminal
specific
to
acts or degrading conduct for
Herbin,
441,
has
there
been no
State v.
298
conviction.
N.C.
(1979);
418,
State v. gave Defendant at a station. gasoline and shot self-service robbed Officer Bun- Thereupon, to the officer. of the station the location the Goldsboro was located outside that the station dy determined Wayne County jurisdiction was within city limits and determination, he in- Having made that Department. Sheriff’s would thereafter have investigation that the formed defendant report and that he would by the sheriff’s department be handled thereafter, had to talk Shortly occasion policeman them. time, what Bundy told Edwards Edwards. At that with Officer station. Bun- of the service had said about location he had the investigation tell Edwards that turned dy went on to had crime purported because department over to sheriff’s rebuttal, city limits. On both of- outside of the Goldsboro occurred Bundy as to the conversation defend- ficers testified: had with to the conversation he Edwards as hospital; ant Bundy. testimony testimony which tends is Corroborative confirm, testimony more certain the or make
strengthen,
Rogers, 299
264 S.E. 2d
another witness.
(1980).
ac-
prior
The introduction of
consistent statements
an
testimony of
E.g.,
a witness.
corroborating
manner
cepted
see generally
243 S.E. 2d
Medley,
State
(Brandis
1973).
Rev.
North
Evidence
Stansbury’s
Carolina
generally
if
consistent statements are admissible
Prior
Britt,
testimony.
supra;
with the witness’ оwn
consistent
(1975),
Patterson,
553, 220
2d
S.E.
death
vacated,
sentence
Defendant contends that trial court dismiss, notwithstanding for the ver- ing judgment his motions dict, trial, for of These judgment. new and arrest motions formal in and the substantive dependent upon nature brought of error forward the brief. There was suf- assignments evidence at trial to withstand these motions and were ficient denied. properly SPRING TERM
No error.
Justice did participate consideration BROCK decision this case.
Justice EXUM dissenting. view, trial
The court erred prejudicially, my when it per- mitted cross and recross examination of defendant regarding robbery alleged kidnapping Robert Knowles. incident very occurred at the end of testimony as follows: “Q. you Did day not on the 24th May, kidnap $1,125.00? and rob one Robert Knowles of Mr. TAYLOR: Objection.
COURT: Overruled.
Exception No. 55. No,
A. sir. (By Taylor) Mr. Redirect Examination I was charged with kidnapping and Mr. robbing Knowles. Mr. Knowles testified under oath he that could not identify me as the man who robbed him. testify He did that no probable cause was found the District Court Wayne County. The charges were charges dismissed. Those were brought against me after I was arrested on these charges. Jacobs) (By Mr.
Recross Examination Mr. testify Knowles did I looked like man but he wasn’t a hundred sure. He percent told the court that. He he said wouldn’t stake his life say on it. He I didn’t looked said, officer, like the man. He Stan Officer Flowers brought some photographs and said I had been charged something was a happened, suspect he asked No, sir, him to look photographs recognizе me. say didn’t I looked like him.”
Our rules have long been that a criminal defendant who may testifies be cross-examined about prior criminal convictions IN THE SUPREME COURT 532 Eoyal v.
State (1) are asked the provided or acts of other misconduct faith, i.e., reasonably that defend- believes in good questioner the act of actually committed or actually ant was convicted (2) about, denials unequivocal and defendant’s asked misconduct conclusive; an answer is “sifting” some evasive although 534, See, 300 268 S.E. Lynch, N.C. State v. permitted. generally, (1977); Currie, 2d Williams, 2d The ex- 185 S.E. witness, however, permitted must not be amination of the guilt of defendant’s question a mini-trial on the evolve into 509, 517, Monk, 286 collateral misconduct. See State Evidence, (1975); Stansbury’s North S.E. 2d Carolina 1973). (Brandis nor jury The should not be distracted Rev. collateral into trial the injecting prejudiced the defendant of some other crime guilty whether defendant question of not, may A further- being he is not then tried. defendant indictments, more, ac- or charges, be cross-examined about mere crime which have not resulted convictions. cusations of Williams, supra. prior had been at some
It is here that defendant undisputed robbing one Robert Knowles. charged kidnapping time hearing It at a cause on undisputed probable is likewise identify could not defendant as assailant charges Knowles probable dismissed for want of charges consequently were recross examination prosecutor’s It is obvious from the cause. pros- The he knew reason for it. dismissal far had no reason to believe that ecutor so as record reveals asking His actually or robbed Knowles. kidnapped put his desire to incident must have been motivated about the with an charged the fact defendant had been before the pros- which he was tried. The being offense similar to one for also faith. He was question good permit- ecutor did not ask ted, effect, mere charges ask defendant about accusations holding in Williams. violation of the furthermore, permitted the matter judge, trial deteriorate, into a mini-trial on the impermissibly, robbery of Knowles. The guilt of the kidnapping une- our rule that defendant’s prosecutor permitted to violate likely is a result whenever denial is conclusive. This quivocal an incident which has concerning is permitted cross-examination *16 SPRING TERM 1980 State v. already the subject prosecution been of a criminal against defend- ant and which has terminated on merits in his favor.
I consistently urged, unsuccessfully, have that the court not permit concerning cross-examination alleged acts for which de- formally been fendant has charged acquitted. See State v. (1979) Herbin, 441, (Exum, J., N.C. S.E. 2d 263 concurring); Ross, (1978) 488, (Exum, J., v. State C.J., Lake, J.); also, joined by dissenting, Sharp, see State v. (filed 1980) Leonard, No. Term 1980 Spring 3 June (Copeland, J.). J., Exum, Carlton, J., dissenting, joined In Ross then Chief Sharp joined my Justice and Justice Lake in dissent ex- this view. I pressing continue to believe as I wrote in my concur- Herbin, ring opinion supra, 259 S.E. 2d at 271:
“When one has been tried for and acquitted of par- ticular crime that should end matter for all purposes. A so person should not be acquitted continually to de- required against fend himself charge criminal subsequent pro- ceedings in may which he become involved.” cases, all, see, Herbin, e.g., most albeit not supra, State this kind of cross-examination will severely prejudice defend- ant. It is all too for a tempting jury, particularly case close us, such as the one now before against resolve may whatever doubt it have may when believes that defendant or, have previously committed criminal misconduct for acts matter, may merely have been charged having commit- ted them. The man previously reasons that a who has been implicated in criminal activity likely is more not guilty than to be law, fallacy case before it. Our recognizing the this has reasoning, long prohibited the State from offering defendant’s earlier criminal against acts as evidence him when pur- the sole pose predispose jurors is to to convict of the crime for McClain, which he is then tried. being S.E. 2d 364 experienced Those in criminal trials know well that placing this kind of before a jury information even on cross-examination purposes impeachment has the same as devastating effect if evidence been offered in the case in State’s chief. A past criminal reсord is quite major often con- IN THE COURT SUPREME Lynch testify subject should determining
sideration if he criminal acts even prior the revelation his case to innocence in the case testify proclaim would maintains and *17 to seek continue prosecutors this is for reason on trial. It every jury, before the such information get way imaginable trial. it out of the lawyers try keep mightily and defense admis- its permitting to guard against be assiduous Courts should clearly truly legitimate purpose some serves sion unless limiting its use. rules with our well-established comports Leonard, case, Ross, I in Herbin and fear the Court as this kind of the introduction this gone permitting has too far disregard principles evidence in of heretofore well-established limiting its use. by the in- prejudiced improper I am satisfied defendant therefore, evidence; I trial. vote for new
troduction of joins in this dissent. Justice CARLTON LYNCH, v. MICHAEL SALVADOR STATE OF NORTH CAROLINA alias MICHAEL SALVADOR WILSON No. 17 1980) (Filed July § incorporating from 1. Law 166— material another case Criminal necessity filing present material with case brief — brief, incorporating from another case reference in a When material incorporated copy should with the immediate case of the material be filed opposing party will this under so that and the have access to reivew Court having it from the clerk’s file on other case. material without to retrieve quash § 2. and Warrant 15— motion indictment —timeliness Indictment ground quash the on the of racial Defendant’s motion to indictments grand jury timely was not where it was discrimination selection of arraignment before but was made after a was declared not made at or mistrial 15A-952(e). first trial. G.S. Jury grand jury prima 3. Grand 3.3— racial discrimination selection —no showing facie population county of the of the black Evidence 10.8% to 11.3% blacks, resulting in list were of that 7.4% names on