State v. Currie ( 1977 )

238 S.E.2d 477 (1977) 293 N.C. 523

STATE of North Carolina
v.
Allen CURRIE.

No. 24.

Supreme Court of North Carolina.

November 11, 1977.

Rufus L. Edmisten, Atty. Gen., Elizabeth C. Bunting, Asst. Atty. Gen., Raleigh, for the State of North Carolina.

Harold T. Dodge, Graham, for defendant-appellant.

HUSKINS, Justice:

Mrs. Alexander heard defendant's voice for the first time during the assault upon her. On direct examination she stated that the voice of her assailant "was not the voice of an average colored man." When defendant testified during the trial she immediately recognized his voice as that of her assailant. Then, when the defense rested, the trial judge permitted the State to reopen its case and permitted Mrs. Alexander to testify, over objection, that she recognized defendant's voice as the voice of the man who raped and robbed her. Defense counsel then undertook to cross-examine with respect to her additional testimony as compared with her previous statement that the voice of her assailant was not that of an average colored man. The following exchange occurred:

"DEFENSE COUNSEL: Well, now you said on direct examination, as I recall, that this voice you heard was not the voice of an average colored man, is that what you said?

COURT: Answer the question Mrs. Alexander.

A. Yes. Yes, sir.

Q. Are you now saying that this voice of the defendant is not the voice of an average colored man?

PROSECUTOR: Well, object. Now we're getting argumentative.

COURT: Sustained.

EXCEPTION NO. 29"

Had Mrs. Alexander been permitted to answer in the presence of the jury, she would have replied: "He didn't use the average slang of a Negro, the average talk of the average Negro off the street. His words were clear, but he did not talk like a Negro that I ever heard talk before. This boy is more educated." Exclusion of the victim's answer constitutes defendant's first assignment of error.

There is no merit in this assignment. The scope of cross-examination rests largely in the discretion of the trial judge because he is present, hears the testimony, observes the demeanor of the witnesses, knows the background of the case and is in a favored position to determine the proper limits of cross-examination. For these reasons his rulings thereon will not be disturbed absent abuse of discretion amounting to prejudicial error. State v. Carver, 286 N.C. 179, 209 S.E.2d 785 (1974); State v. McPherson, 276 N.C. 482, 172 S.E.2d 50 (1970); State v. Ross, 275 N.C. 550, 169 S.E.2d 875 (1969), cert. denied 397 U.S. 1050, 90 S.Ct. 1387, 25 L.Ed.2d 665 (1970); State v. Edwards, 228 N.C. 153, 44 S.E.2d 725 (1947). Admission of the excluded answer could not have influenced the verdict favorably for defendant or produced a different result. Hence in no view of the matter was the court's ruling prejudicial. Defendant's first assignment is overruled.

Defendant next contends the trial court erred in allowing the State, over objection, to cross-examine him concerning his probationary judgment.

Defendant testified in his own behalf and, as part of his direct examination, stated that in 1972 (sic) he was convicted of breaking and entering, put on probation, ordered to pay back $800 and in fact paid it back. On cross-examination he stated that on 18 January 1973 he pled guilty to breaking and entering Oscar's Snack Bar with intent to commit larceny and stealing $120. He denied breaking and entering Alamance Beauty College, whereupon the prosecutor asked him if he did not agree to make restitution to five different businesses that he had broken into. Defendant said he thought it was just one place. The prosecutor, over objection, then asked: "Did you agree to pay back as part of your probation restitution in the amount of $608 to Oscar's Snack Bar, Bill's Lounge, the Owl Tavern, the Ernest Jackson Poolroom? You remember that, don't you, Mr. Currie?" Over objection, defendant replied that he remembered those charges. We perceive no error in the admission of this evidence.

For impeachment purposes, a witness, including the defendant in a criminal case, may be cross-examined with respect to prior convictions of crime and may be asked disparaging questions concerning collateral matters relating to his criminal and degrading conduct. State v. Williams, 279 N.C. 663, 185 S.E.2d 174 (1971); State v. Goodson, 273 N.C. 128, 159 S.E.2d 310 (1968); Ingle v. Transfer Corp., 271 N.C. 276, 156 S.E.2d 265 (1967). With respect to such collateral matters, the answers of the witness are conclusive in the sense that the record of his convictions cannot be introduced to contradict him. State v. Brown, 266 N.C. 55, 145 S.E.2d 297 (1965); State v. King, 224 N.C. 329, 30 S.E.2d 230 (1944); 1 Stansbury's North Carolina Evidence § 112 (Brandis rev. 1973). By appropriate questions, however, the cross-examiner may continue to inquire about specific convictions already denied as well as other prior unrelated criminal convictions so as to "sift the witness." State v. Gaiten, 277 N.C. 236, 176 S.E.2d 778 (1970); State v. Robinson, 272 N.C. 271, 158 S.E.2d 23 (1967).

When the foregoing rules are applied to the challenged cross-examination here, it is readily apparent that no error was committed. Defendant did not deny breaking and entering Oscar's Snack Bar, Bill's Lounge, the Owl Tavern or the Ernest Jackson Poolroom. He merely stated that he "thought it was just one place." The State was not bound by that answer. The cross-examiner was entitled to press or sift the witness in search of the truth. State v. Fountain, 282 N.C. 58, 191 S.E.2d 674 (1972). "The scope of cross-examination rests largely in the trial judge's discretion and his rulings thereon will not be disturbed unless it is shown that the verdict is improperly influenced thereby." State v. Waddell, 289 N.C. 19, 220 S.E.2d 293 (1975); State v. Carver, supra. No such showing has been made in this case. Defendant's second assignment of error is overruled.

On cross-examination of defendant's father the prosecutor was permitted to inquire whether the father was in court with defendant in 1973 when defendant was placed on probation for various charges of breaking and entering. The prosecutor was further permitted, over objection, to ask the witness if he did not state to the court on that occasion that he had tried to raise his boys right and couldn't help what had happened. The witness replied: "I said exactly. That is true." Defendant contends the State was thus permitted to show defendant's bad character by implication, i. e., "by proof of specific acts of misconduct of defendant." Counsel argues that although defendant testified he did not otherwise put his character in issue and it was error to permit the challenged cross-examination of his father "as to particular acts of misconduct on the part of the defendant," citing State v. Green, 238 N.C. 257, 77 S.E.2d 614 (1953).

We perceive no error prejudicial to defendant in the challenged testimony. The father's statement at the 1973 trial that he had tried to raise his boys right and couldn't help what had happened to his son does not, as defendant contends, show by implication or otherwise specific acts of misconduct on defendant's part. Our decision in State v. Green, supra, relied on by defendant, is not in point. Defendant's third assignment of error is overruled.

The following question by the court was put to the witness during the course of the trial: "Mrs. Alexander, how long have you been working as a telephone operator?" She answered: "Going into seventeen years, sir." Defendant took exception thereto and also to certain isolated comments by the judge. At one point when defendant was eliciting testimony concerning the trophy won in the softball tournament by the team on which defendant played, the court said: "I fail to see any relevance to this." Defense counsel explained that he wanted to show "what they did when they came home about this trophy." The court replied: "Well, let's get on to it." Later while examining Mr. Graves, the man in charge of the softball team, counsel requested that he go home and bring the trophy to court. The judge said: "I don't really see what much difference that trophy has to do with this case . .. What is the purpose of this testimony." Defense counsel replied: "It's alibi, your Honor, to show where he was." The foregoing questions and comments by the court constitutes defendant's fourth and final assignment of error. Defendant contends they amount to an expression of opinion in violation of G.S. 1-180.

There is no merit in this assignment. "It has been the immemorial custom for the trial judge to examine witnesses who are tendered by either side whenever he sees fit to do so . . .." State v. Horne, 171 N.C. 787, 88 S.E. 433 (1916). Of course, such examinations should be conducted in a manner which avoids prejudice to either party. If by their tenor, their frequency, or by the persistence of the trial judge they tend to convey the impression of judicial leaning, they violate the purpose and intent of G.S. 1-180 and constitute prejudicial error. State v. Lea, 259 N.C. 398, 130 S.E.2d 688 (1963); State v. Peters, 253 N.C. 331, 116 S.E.2d 787 (1960); Andrews v. Andrews, 243 N.C. 779, 92 S.E.2d 180 (1956); State v. McRae, 240 N.C. 334, 82 S.E.2d 67 (1954). Even so, judges are not mere moderators. They preside over the courts as essential and active agencies in the due and orderly administration of justice. "It is entirely proper, and often necessary, that the trial judge ask questions to clarify and promote a proper understanding of the testimony of the witnesses." State v. Riddick, 291 N.C. 399, 230 S.E.2d 506 (1976); State v. Colson, 274 N.C. 295, 163 S.E.2d 376 (1968).

The question put to Mrs. Alexander served only to clarify and promote a proper understanding of her testimony and did not amount to an expression of opinion by the judge. State v. Grundler, 251 N.C. 177, 111 S.E.2d 1 (1959). Weight and credibility of the testimony remained a matter for the jury.

With respect to the trophy, the record discloses that defendant was allowed to offer it in evidence with additional testimony concerning its display to various friends at various times. The judge's repeated statement that he could not see the relevance of the trophy merely sought a clarifying response and, when any relevance was suggested, counsel was permitted to continue. It was the duty of the judge to expedite the trial and to question the irrelevancy or redundancy of evidence. In doing so he expressed no opinion in violation of G.S. 1-180. See State v. Perry, 231 N.C. 467, 57 S.E.2d 774 (1950). This assignment is overruled.

There is substantial evidence of all material elements of first degree rape and armed robbery as charged in the bills of indictment. Defendant having failed to show prejudicial error, the verdicts and judgments must be upheld.

NO ERROR.