State v. Pruitt , 301 N.C. 683 ( 1981 )

273 S.E.2d 264 (1981)

STATE of North Carolina
v.
James Luther PRUITT.

No. 87.

Supreme Court of North Carolina.

January 6, 1981.

Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. James Peeler Smith, Raleigh, for the State.

Neill A. Jennings, Jr., Greensboro, for defendant.

BRITT, Justice.

Defendant contends first that the trial court erred in admitting testimony by a state's witness that defendant had been involved in the commission of an offense other than the ones for which he was being tried. This contention has no merit.

Kim Huffman was called and testified as a witness for the state. On cross-examination defendant attempted to show that she had made a "deal" with the state and that she had a long criminal record. She testified that she had sixteen charges pending against her "in these cases"; that she had been indicted in Forsyth, Davidson and Guilford Counties; and that in Davidson County she was charged with being an accessory after the fact to a break-in.

On re-direct examination, with respect to the Davidson County break-in case, the prosecuting attorney asked the witness who was charged in that case. Over defendant's objection, she testified that defendant, Elbert Nealy and Anthony Nealy were charged and that the check-writer in question, as well as "a checkbook with checks", had been taken from Safrit's Cabinet Shop.^[1]

Defendant argues that the admission of the testimony violated the rule enunciated in State v. McClain, 240 N.C. 171, 81 S.E.2d 364 (1954), that in a prosecution for a particular crime, the state cannot offer evidence tending to show that the accused has committed another distinct, independent or separate offense. Defendant also challenges the admission of the testimony on the additional ground that a defendant in a criminal action may not be cross-examined with respect to whether he has been indicted for the commission of an unrelated criminal offense for purposes of impeachment, relying upon our opinion in State v. Williams, 279 N.C. 663, 185 S.E.2d 174 (1971). Defendant's argument in both respects is unpersuasive.

Although the rule of State v. McClain, supra, states the general rule upon which defendant relies, it further provides that there are eight basic exceptions to that fundamental principle. One of the exceptions is: "Evidence of other crimes is admissible when it tends to establish a common plan or scheme embracing the commission of a series of crimes so related to each other that proof of one or more tends to prove the crime charged and to connect the accused with its commission." State v. McClain, 240 N.C. at 176, 81 S.E.2d at 367; see generally 1 Stansbury's North Carolina Evidence § 92 (Brandis Rev. 1973).

The challenged evidence was competent to show that the check-writer and checks which defendant and the others had used in perpetrating the forgeries in question had been stolen from Safrit's Cabinet Shop. This was a part of the overall scheme which embraced the related offenses for which defendant was being tried and tended to connect him with those offenses.

Furthermore, defendant's reliance upon State v. Williams, supra, is misplaced. The Williams decision relates to the situation where a criminal defendant is cross-examined himself with respect to an indictment for criminal conduct for the purpose of impeaching his credibility before the jury. While in the present case the inquiry was not made of defendant, we do not rest our decision upon that distinction. To do so would be to elevate form over substance to the end that our holding would not adhere to the underlying rationale of State v. Williams: An indictment is purely hearsay in that it is a conclusion drawn upon an ex parte presentation of evidence. See State v. Williams, 279 N.C. at 673, 185 S.E.2d at 180.

Our rejection of defendant's contention is not based upon a fine technical distinction between cases. Instead, a close examination of the record discloses that defendant opened the door to further inquiry by the prosecution by cross-examining Kim Huffman concerning the charges then pending against her. In conducting the inquiry, defense counsel sought to impeach the state's witness by connecting her with other criminal activity. Apparently, counsel sought to convince the jury that Ms. Huffman was testifying in a particular manner so as to obtain leniency towards her from the state. While the state would not have been entitled to initiate such an inquiry itself, it was entitled to explore the matter fully in its attempt to rehabilitate its witness. Ms. Huffman testified on cross-examination that she was charged as an accessory after the fact of a break-in which had occurred in Davidson County. Accordingly, the state was entitled to have its witness elaborate upon the nature of that accusation, even to the extent to naming those who had been charged with the commission of the underlying substantive offense. In the process of securing that elaboration, the state was able to secure the connection it had earlier demonstrated between defendant and the forgery scheme.

Defendant contends that the trial court erred in permitting the state to question Kim Huffman with respect to another offense unrelated to the cases being tried; and in denying his motion for a mistrial because of the admission of said evidence and comments of the district attorney which followed. We find no merit in these contentions.

Defendant also called Kim Huffman as a witness. On recross-examination the prosecuting attorney asked the witness "[w]ho got killed ...?" She answered, "Jerry Kenan". Defendant objected and the court overruled the objection. The witness was then asked who Jerry Kenan was and she answered: "he is a friend of ours." The witness further stated that she was unable to state what connection Kenan had to the case. After this testimony had been received, defendant moved for a mistrial. Following a conference between the attorneys and the court in the absence of the jury, the motion was denied.

Defendant argues that this testimony was a follow-up of testimony elicited on the re-direct examination of Gail Hicks, another witness for the state. Ms. Hicks had testified that James Nealy had shot and killed Kenan after he had helped her inject some drugs into her arm. Defendant contends that the testimony was prejudicial error in that it placed before the jury other acts of unlawfulness which were completely unrelated to the offenses which were then being tried.

We reject defendant's argument. When the jury returned to the courtroom after the conference had been concluded between the attorneys and the judge, the court immediately proceeded to give the following instruction:

Members of the jury, during the course of the trial there has been some testimony in reference to an individual by the name of Jerry Kenan and that Jerry Kenan was recently murdered. The Court instructs you that the circumstances and the death of Jerry Kenan have nothing entirely to do with this particular case and that there is no evidence that this defendant was whatsoever in any way involved in that, or had anything to do with it, and you're not to hold anything concerning Jerry Kenan and his demise against this particular defendant. He's not to be prejudiced by that. We're trying a forgery and a conspiracy to forge case. Is there anyone on this jury who thinks they cannot strike this reference from their mind and who will not, or who cannot refrain from holding against this particular defendant in these cases? If there is anyone, please raise your hand.

The record does not disclose that any juror raised his or her hand.

Ordinarily, when incompetent or objectionable evidence is withdrawn from the jury's consideration by appropriate instructions from the trial judge, any error in the admission of the evidence is cured. E. g., State v. Covington, 290 N.C. 313, 226 S.E.2d 629 (1976). In like manner, improper argument or remarks by counsel are usually cured by appropriate instructions by the court to the jury. State v. Sparrow, 276 N.C. 499, 173 S.E.2d 897 (1970). Assuming arguendo, that the testimony about which defendant complains was erroneously admitted, there was no prejudice because of the curative instructions which the jury received.

In defendant's trial and the judgment entered, we find

No error.

BROCK, J., did not participate in the consideration or decision of this case.

NOTES

[1] It will be noted that Thomasville is in Davidson County.