State v. Small ( 1974 )

201 S.E.2d 584 (1974) 20 N.C. App. 423

STATE of North Carolina
v.
Julius SMALL.

No. 7326SC825.

Court of Appeals of North Carolina.

January 9, 1974.

Atty. Gen. Robert Morgan, by Asst. Atty. Gen. Robert G. Webb, Raleigh, for the State.

Howard J. Greenwald, Charlotte, for defendant appellant.

BALEY, Judge.

The judgment in this case was entered on 27 June 1973. The record on appeal was filed more than ninety days later, on 23 October 1973. No order was issued by the trial court extending the time for docketing the record on appeal. Rule 5 of the Rules of Practice in the Court of Appeals provides that the record must be "docketed within ninety days after the date of the judgment, order, decree, or determination appealed from." The penalty for violating this rule is dismissal of the case. Accordingly, defendant's appeal will be treated as a petition for certiorari and is granted in order that the case may be considered on its merits.

The court did not violate any right of defendant by continuing the trial after he fled from the courtroom. Taylor v. United States, 414 U.S. 17, 94 S. Ct. 194, 38 L. Ed. 2d 174 (1973). Defendant does not dispute this, but he assigns as error the failure of the court to permit his counsel to introduce into evidence his voir dire testimony and read it to the jury. In some situations, a court may receive into evidence testimony given at a former trial or at an earlier stage of the same trial. But in order for such testimony to be admissible, two conditions must be satisfied. First, the witness must be unavailable. State Bar v. Frazier, 269 N.C. 625, 153 S.E.2d 367, cert. denied, 389 U.S. 826, 88 S. Ct. 69, 19 L. Ed. 2d 81; State v. Cope, 240 N.C. 244, 81 S.E.2d 773; Glymph v. Glymph, 4 N.C.App. 274, 166 S.E.2d 482; McCormick, Evidence 2d, § 255, at 617. Second, "the party against whom the former testimony is now offered, or a party in like interest, must have had a reasonable opportunity to cross-examine." McCormick, supra, § 255, at 616; accord, Bank v. Motor Co., 216 N.C. 432, 5 S.E.2d 318; McLean v. Scheiber, 212 N.C. 544, 193 S.E. 708; Harris v. Electric R. R., 162 N.C. 236, 78 S.E. 164. In this case neither requirement is met.

A witness cannot be considered unavailable when his absence has been procured by the party who seeks to introduce his former testimony. McCormick, supra, § 253, at 608-09; see 5 Wigmore, Evidence 3d, § 1405, at 155, 158; Motes v. United States, 178 U.S. 458, 20 S. Ct. 993, 44 L. Ed. 1150 (1900). If a defendant persuaded a witness to abscond, or kidnapped a witness and held him in a secret place, no one would suggest that he should be permitted to use the witness's former testimony. Here defendant has brought about his own absence rather than that of another witness. The effect is the same, and the same rule should apply. Defendant should not be allowed to impose on the court by fleeing the jurisdiction and then introducing his former testimony into evidence. Cf. State v. Prince, 270 N.C. 769, 772, 154 S.E.2d 897, 899.

Defendant has likewise failed to satisfy the second requirement for the introduction of former testimony—the requirement of "a reasonable opportunity to cross-examine." When a criminal defendant testifies, he may be cross-examined on all aspects of the case. He may be questioned, for purposes of impeachment, about prior acts of misconduct and prior criminal convictions. 1 Stansbury, N.C.Evidence (Brandis rev.), §§ 56, 111-12. In this case there was no reason for the State to cross-examine defendant extensively when he testified on voir dire, because the voir dire hearing was concerned only with the voluntariness of defendant's confession. If defendant had taken the stand during the trial itself, the State might have chosen to cross-examine him at length. But the State would be deprived of this opportunity if defendant could introduce his voir dire testimony instead of testifying in person.

The trial court was correct in excluding defendant's voir dire testimony. Defendant has not shown that any error was committed at his trial, and his conviction is affirmed.

No error.

CAMPBELL and HEDRICK, JJ., concur.