State v. Pearsall , 38 N.C. App. 600 ( 1978 )

248 S.E.2d 436 (1978) 38 N.C. App. 600

STATE of North Carolina
v.
Delmas PEARSALL.

No. 784SC415.

Court of Appeals of North Carolina.

November 7, 1978.

Atty. Gen. Rufus L. Edmisten by Associate Atty. Lucien Capone, III, Raleigh, for the State.

Bruce H. Robinson, Jr., Wallace, for defendant-appellant.

CLARK, Judge.

The sole issue raised by this appeal is whether the trial court erred in ruling that Linda Sutton Williams, having claimed the Fifth Amendment privilege against self-incrimination, was not required to testify as a witness for the defendant.

Before taking the stand to testify in his own behalf, defendant called Linda Sutton Williams as his witness. She informed the court that she would not testify. Her lawyer was not present. She had been convicted of armed robbery of the clerk in the convenience store (as defendant was charged in the case before us) but her appeal was pending at the time of this trial. The trial court ruled that she would not be required to testify.

It appears from the record on appeal that counsel then stipulated that "the following is the testimony of Linda Sutton Williams at a trial conducted on October 12 and October 13, 1977."

"Q. Do you know Delmas Pearsall?

A. No, I put a gun to his head in the store.

Q. Weren't you with Delmas Pearsall on this night?

A. No, sir, I wasn't.

Q. He never had occasion to drive your car on this night?

A. I can't tell you if he had or not. Yes, I can, because the police officer said that he stopped him in the car.

Q. You never gave him permission to use your car?

A. No, sir, I didn't, and I would like to break his face for breaking up my car. What is all them scratches doing on my car?"

The transcript of the testimony was read to the jury by defense counsel.

Did Linda Sutton Williams by testifying for the defendant in his trial of October, 1977, waive her constitutional right against self-incrimination?

It is the majority view that a witness who testifies to incriminating matters in one proceeding does not thereby waive the right to refuse to answer as to such matters on subsequent, separate, or independent trial or hearing. Commonwealth v. Fisher, 189 Pa.Super. 13, 149 A.2d 666 (1959), rev'd on other grounds, 398 Pa. 237, 157 A.2d 207 (1960); C. McCormick, Evidence, § 132 at 281 (2d ed. 1972); 8 Wigmore on Evidence, § 2276 at 470 (McNaughten rev. 1961). However, the privilege against self-incrimination is waived as to the testimony given in the first proceeding, provided that the privilege was effectively waived. Annot., 5 A.L.R.2d 1404 (1949).

There was no claim of privilege as to the transcript of the testimony of Linda Sutton Williams and thus no question as to the effectiveness of her waiver of the privilege in the first trial of the defendant. Since the appeal from her conviction and judgment was pending at the time she was called as a witness in the case before us, there had been no final disposition of the armed robbery charge against her, and she was protected by her privilege from being compelled to testify in this case. The trial court did not err in its ruling that Linda Sutton Williams would not be required to testify.

No error.

PARKER and ERWIN, JJ., concur.