State v. Elam , 56 N.C. App. 590 ( 1982 )

289 S.E.2d 857 (1982)

STATE of North Carolina
v.
Florine H. ELAM.

No. 8112SC1007.

Court of Appeals of North Carolina.

April 6, 1982.

Atty. Gen. Rufus L. Edmisten by Associate Atty. Walter M. Smith, Raleigh, for the State.

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

HARRY C. MARTIN, Judge.

Defendant first contends the court erred in excluding the testimony of the witness Barbara Jenkins concerning the character and reputation of defendant in her "work setting." We find no error. First, the record does not reflect what the witness would have answered; therefore, we cannot determine if the exclusion was prejudicial. State v. Martin, 294 N.C. 253, 240 S.E.2d 415 (1978); State v. Darden, 48 N.C.App. 128, 268 S.E.2d 225 (1980). Further, assuming the testimony would have been favorable to defendant, it was cumulative. Three other witnesses testified defendant had a good character and reputation. Two of the witnesses were Baptist ministers. Under these circumstances, we cannot hold the exclusion of the testimony, if erroneous, was prejudicial. State v. Gray, 268 N.C. 69, 150 S.E.2d 1 (1966); State v. Lindsey, 25 N.C.App. 343, 213 S.E.2d 434, cert. denied, 287 N.C. 468, 215 S.E.2d 627 (1975).

The trial judge refused to instruct the jury that it could infer from the state's failure to produce written statements made by the eyewitnesses Rhone and Thompson that the statements were damaging to the state's case. Defendant argues this was error, relying upon People v. Zamora, 28 Cal. 3d 88, 167 Cal. Rptr. 573, 615 P.2d 1361 (1980). In Zamora, the city attorney's office had directed the destruction of all records of citizen complaints against police officers if the complaints were considered unmeritorious. The court held that the trial judge should instruct the jury that the officers had used excessive force in the incidents complained of in the destroyed records. Such is not the case here. There is no intimation that the evidence was destroyed. Defendant did not make his motion to produce until immediately before trial, and although the officers looked for the material, they were unable to produce it. The statutory discovery process contemplates that it shall be done pretrial. N.C. Gen.Stat. § 15A-902(a) (1978). In most instances, pretrial discovery will eliminate the very problem here complained of. We find no abuse of discretion by the ruling of the trial court. See State v. Smathers, 287 N.C. 226, 214 S.E.2d 112 (1975).

We find no prejudicial error in the trial court's failure to apply evidence of deceased's reputation for violence to the question of defendant's reasonable apprehension of death or great bodily harm from the alleged assault by deceased. The jury was fully charged on the law of self-defense. On this state of facts, we find State v. Rummage, 280 N.C. 51, 185 S.E.2d 221 (1971), to be controlling. Although this was error, we do not find it, standing alone, sufficient to require a new trial. Id.

Defendant argues the court should have charged on the defense of an accidental killing and involuntary manslaughter. All the evidence, including that of defendant, indicates that she intentionally fired the weapon. There was no evidence of an accidental discharge of the pistol. Defendant testified, "I had a pistol and fired to scare them off.... After I fired the gun...." She says she intentionally fired the gun. The assignments of error are meritless. State v. Redfern, 291 N.C. 319, 230 S.E.2d 152 (1976); State v. Efird, 37 N.C. App. 66, 245 S.E.2d 226 (1978), cert. denied, 301 N.C. 98 (1980).

Defendant argues that the solicitor in four instances committed prejudicial error in his jury argument. We have carefully examined the entire argument of counsel and cannot find it to contain prejudicial error so as to require a new trial. The trial judge has broad discretion in controlling the argument of counsel, especially in hotly contested cases. State v. Britt, 288 N.C. 699, 220 S.E.2d 283 (1975). We find no abuse of that discretion.

Last, defendant insists that she was denied effective assistance of counsel because her counsel did not insist that the court rule on her motion for mistrial so that counsel could testify to impeach state's witness Daws, to the effect that Daws was present during the entire interview of state's witnesses Rhone and Thompson. Ethical Consideration EC5-10 of the Code of Professional Responsibility of The North Carolina State Bar, volume 4A of the General Statutes of North Carolina (Cum.Supp. 1981), states: "In the exceptional situation where it will be manifestly unfair to the client for the lawyer to refuse employment or to withdraw when he will likely be a witness on a contested issue, he may serve as advocate even though he may be a witness." A mistrial was not necessary in order for defendant's counsel to testify in the case. Whether she could withdraw as counsel was a matter in the sound discretion of the trial judge. State v. Brady, 16 N.C. App. 555, 192 S.E.2d 640 (1972), cert. denied, 282 N.C. 582, 193 S.E.2d 745 (1973). See Smith v. Bryant, 264 N.C. 208, 141 S.E.2d 303 (1965); 81 Am.Jur.2d Witnesses §§ 98, 98.5 (1976). A motion to allow defense counsel to testify in this case on a collateral matter, impeachment of a witness, would have been in the discretion of the trial judge. People v. Stratton, 64 Mich.App. 349, 235 N.W.2d 778 (1975).

Moreover, here counsel stipulated for the jury what she would have testified if called as a witness. Further, a tape recording of the disputed statements was played for the jury. We find no violation of defendant's right to effective counsel.

No error.

ROBERT M. MARTIN and WHICHARD, JJ., concur.