State v. Corn , 307 N.C. 79 ( 1982 )

296 S.E.2d 261 (1982)

STATE of North Carolina
v.
Ernest Thomas "Pete" CORN.

No. 21A82.

Supreme Court of North Carolina.

November 3, 1982.

Marc D. Towler, Asst. Appellate Defender, Raleigh, for defendant.

Rufus L. Edmisten, Atty. Gen. by Archie W. Anders, Asst. Atty. Gen., Raleigh, for the State.

COPELAND, Justice.

The defendant first assigns as error the trial court's refusal to strike the entire testimony of Dr. Lacy, the pathologist who conducted the autopsy on the body of Lloyd Melton. In support of this argument, defendant contends that since Dr. Lacy testified on cross-examination that he had no recollection of the autopsy independent of the written report, his entire testimony was incompetent as either present recollection refreshed or past recollection recorded. We find no merit in this claim.

The rule in this jurisdiction is that a witness may be aided in his testimony by either (1) present recollection refreshed, State v. Smith, 291 N.C. 505, 231 S.E.2d 663 (1977), or (2) past recollection recorded. State v. Wright, 282 N.C. 364, 192 S.E.2d 818 (1972). Under present recollection refreshed the witness' memory is refreshed or jogged through the employment of a writing, diagram, smell or even touch. Smith, supra. 1 Brandis on North Carolina Evidence § 32 (2d rev. ed., 1982). When a witness' recollection is refreshed the testimony comes from his memory and not from the writing or diagram. Under past recollection recorded the witness is unable to testify from memory even after reviewing writings, diagrams, or any other stimuli which might refresh his memory. 1 Brandis on North Carolina Evidence § 33 (2d rev. ed. 1982). Under past recollection recorded, since the witness cannot testify from memory, the facts being elicited must be put into evidence by means of the writing. This can be done by having the witness read the writing to the jury. Johnson v. Johnson, 23 N.C.App. 449, 209 S.E.2d 420 (1974), cert. denied, 286 N.C. 335, 211 S.E.2d 212 (1974).

Although these two forms of recollection have distinct definitions, in practice the two differ only in degree. United States v. Riccardi, 174 F.2d 883, (1949), cert. denied, 337 U.S. 941, 69 S. Ct. 1519, 93 L. Ed. 1746 (1949). 1 Brandis on North Carolina Evidence § 32 (2d rev. ed. 1982). After reviewing the transcript, we see no reason why the record of the autopsy could not have been introduced into evidence as past recollection recorded since Dr. Lacy dictated the entire report while he conducted the autopsy. State v. Wright, 282 N.C. 364, 192 S.E.2d 818 (1972). We are equally confident that Dr. Lacy, the authenticating witness, could have read the entire autopsy report to the jury. Cooper v. R.R., 170 N.C. 490, 87 S.E. 322 (1915). Since the transcript indicates that Dr. Lacy testified directly from his notes, we conclude that his testimony was nothing more than selected readings from his notes. Therefore, if the entire report may be admitted as past recollection recorded, then selected passages must also be admitted as past recollection recorded. Therefore we find no error in the doctor's testimony.

In his second assignment of error, defendant asserts that the district attorney acted in bad faith by cross-examining him with the following two questions:

(1) Q. Mr. Corn, did you relate to Kathy Fowler that you considered it a thrill to kill people?

Mr. Hudson [defense counsel] objection.

Court: Objection overruled.

A. No sir.

Defendant's Exception No. 13.

(2) Q. Mr. Corn, did you make, did you tell, just shortly before the Melton boy was killed, did you sometime shortly before that tell Jack Orr and Martha McKinney that you were going to kill Lloyd Melton if he didn't quit pinching or taking your pot or marijuana ...?

Mr. Hudson: Objection.

Q. That he was going to pinch it one time too many, did you say that in their presence?

A. No sir.

The rule in this jurisdiction is that a defendant may be impeached on cross-examination by asking "disparaging questions concerning collateral matters relating to his criminal or degrading conduct." State v. Williams, 279 N.C. 663, 675, 185 S.E.2d 174, 181 (1971); State v. Dawson, 302 N.C. 581, 276 S.E.2d 348 (1981). However, the scope of such a cross-examination is limited by (1) the trial court's discretion and (2) by a requirement that the questions be asked in good faith. Williams, supra.

The defendant alleges that the district attorney did not ask the two questions, set out above, in good faith. However, "the rule in this jurisdiction is that the questions of the prosecutor will be considered proper unless the record shows that the question was asked in bad faith." State v. Dawson, 302 N.C. 581, 586, 276 S.E.2d 348, 352 (1981). (Emphasis added.) The record of this case does not reveal any bad faith on the part of the district attorney. Even though defendant produced several affidavits which, standing alone, might suggest that the questions were not asked in good faith, these affidavits, when read with the record of the trial, do not show the questions were asked in bad faith. In fact, in response to defendant's objection to the first question, the district attorney claimed he had several reliable sources, identities of which he was willing to reveal to the court. No such offer was made for the second question since the objection was quickly overruled. As a result we feel the record does not reveal bad faith on the part of the prosecutor and therefore no error was committed.

As a third assignment of error, defendant claims the court erred by preventing his introduction into evidence of the records of the prior convictions of the deceased. Those convictions concerned an assault with a gun on the victim's mother and injury to personal property belonging to the victim's mother. As in this case, when self defense is raised as a defense, the defendant may produce evidence of the victim's character tending to show, "(1) that the victim was the aggressor or (2) that defendant had a reasonable apprehension of death or bodily harm, or both." 1 Brandis on North Carolina Evidence, § 106 (2d rev. ed. 1982). If defendant seeks to offer evidence for the purpose of showing the victim was the aggressor, it must be done through testimony concerning the victim's general reputation for violence, "but this rule does not render admissible evidence of specific acts of violence which have no connection with the homicide." State v. LeFevers, 221 N.C. 184, 185, 19 S.E.2d 488, 489 (1942). State v. Morgan, 245 N.C. 215, 95 S.E.2d 507 (1956). The excluded conviction records are clearly not evidence of the victim's reputation. Likewise, the records are not evidence of what the defendant actually knew. Therefore the records can be offered neither for the purpose of establishing the victim's reputation for violence nor for the purpose of showing what the defendant knew about the defendant's violent behavior.

In addition, the conviction records are not admissible for the purpose of bolstering defendant's credibility. The evidence indicates that the records would have at best only partially supported what defendant said and would have clearly highlighted the fact that defendant was testifying only to what he knew and not to what was in fact true. Therefore, there was no error committed when the trial court excluded the victim's criminal records.

Defendant next assigns as error the trial court's refusal to allow him to impeach the State's only eyewitness. There is no doubt in this jurisdiction that a witness' credibility may be impeached by questions concerning specific acts of criminal or degrading conduct. State v. Dawson, 302 N.C. 581, 276 S.E.2d 348 (1981). Defendant contends the court did not allow him to question the eyewitness concerning an incident in which the witness gave a false name and address to a woman after driving his truck into her yard. However, defense counsel failed to phrase his question in a manner designed to elicit information concerning the alleged false statement. Even the district attorney made it clear that he would have no objection to questions dealing with the alleged false statement. The defense counsel refused to rephrase the question and requested the original question be answered into the record. We feel the original question was properly excluded and therefore no error was committed.

In his final assignment of error, defendant contends the trial court improperly instructed the jury on the issue of self defense by failing to submit, in substance at least, specifically requested instructions. When instructing the jury, the trial court has the duty to, "declare and explain the law arising on the evidence." G.S. 15A-1232; State v. Ferdinando, 298 N.C. 737, 260 S.E.2d 423 (1979). Although a trial judge is not required to give requested instructions verbatim, State v. Beach, 283 N.C. 261, 196 S.E.2d 214 (1973), he is required to give the requested instruction at least in substance if it is a correct statement of the law and supported by the evidence. State v. Monk, 291 N.C. 37, 229 S.E.2d 163 (1976).

Specifically, defendant argues the trial court's instruction deprived him of the defense of self defense by failing to state that, "A show of force by the deceased is not, however, necessary under the circumstances." We disagree with defendant's position. The instructions given the jury, when read as a whole, as they must be, adequately state in substance that the circumstances must be viewed from defendant's perspective and that a show of force was not necessary in order to find he acted in self defense. Unlike State v. Francis, 252 N.C. 57, 112 S.E.2d 756 (1960), where the instructions virtually eliminated the defendant's right to self defense, the instructions given in this case preserved the defense of self defense. Therefore we find no error.

After examining the record and each of defendant's assignments of error, we conclude that defendant's trial was free from reversible error.

NO ERROR.