31 N.C. App. 736 | N.C. Ct. App. | 1976
At trial the minor witness, in the presence of the jury, was allowed to whisper a portion of her testimony, which was of a very personal nature, to the court reporter, who in turn read the testimony to the jury. This procedure, which was utilized for the answers to three questions, provides the basis for defendant’s first three exceptions. Defendant neither objected to this procedure nor the evidence obtained by it nor moved to strike the child’s testimony. Therefore, these exceptions present no question for review, and the assignment of error based thereon is not sustained. State v. Blackwell, 276 N.C. 714, 174 S.E. 2d 534 (1970), cert. denied, 400 U.S. 946, 91 S.Ct. 253, 27 L.Ed. 2d 252 (1970).
By his second assignment of error defendant contends the court erred in allowing the child’s grandmother to testify that the child told her that the defendant “had messed with her before.” Prior to the testimony challenged by this exception, the child had testified, without objection, that she told her grandmother the defendant had molested her on numerous other occasions. The trial judge allowed the grandmother’s testimony into evidence as corroborative of the child’s prior testimony, and in his charge instructed the jury that the challenged evidence should be considered only for the purpose of corroborating the child’s testimony at trial, if it did. The challenged testimony was admissible. Webster v. Trust Co., 208 N.C. 759, 182 S.E. 333 (1935); State v. Feimster, 21 N.C. App. 602, 205 S.E. 2d 602 (1974), cert. denied, 285 N.C. 665, 207 S.E. 2d 763 (1974). This assignment of error has no merit.
On direct examination Hilda Wells, defendant’s ex-wife, testified in substance that defendant had never done anything that would indicate a propensity to commit the crime with which he was charged. On rebuttal Maria Cook was asked, over
“Q. What did she tell ya’ll?
Objection by Mr. Knox. Overruled.
[A.] She was wondering what she was going to tell her boys. She said, well, she was very upset and I might have asked her a few questions, but she really didn’t want to talk about it too much she was really, she was just very upset. She did say, she kept saying, ‘Oh, my God, oh my God, I thought he had outgrown that.'’ When I asked her what she meant by outgrown what—
Objection by Mr. Knox. Overruled.
A. She said that she had loved Pee Wee for a lot of years, ten or fifteen years and that she had covered for him and protected him because of that problem, but that he had, she led me to believe that he had had his hands on other little girls but he had never gone so far as to mess with them internally like he did Jamie.
Exception No. 7” (Emphasis added).
By his fifth assignment of error defendant contends the trial court erred in not striking the answer quoted above because it “was based on conjecture and created an insinuation not based on fact which prejudiced the jury.” This assignment of error has no merit. Clearly the State was entitled to ask the witness for purposes of impeachment if Hilda Wells had made prior statements inconsistent with her testimony at trial. Perkins v. Clarke, 241 N.C. 24, 84 S.E. 2d 251 (1954). Assuming arguendo that by testifying as to what Mrs. Wells had “led her to believe,” Mrs. Cook gave an inadmissible interpretation of her conversation with Mrs.' Wells, defendant cannot raise the alleged error on appeal because he did not object to the witness’s answer or move to have it stricken from the record. State v. Blackwell, supra.
We hold that the defendant had a fair trial free from prejudicial error.
No error.
