State v. Hobson , 310 N.C. 555 ( 1984 )

313 S.E.2d 546 (1984) 310 N.C. 555

STATE of North Carolina
v.
Donald Lee HOBSON.

No. 258A83.

Supreme Court of North Carolina.

April 3, 1984.

Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. Charles M. Hensey, Raleigh, for the State.

Nora Henry Hargrove, Wilson, for defendant.

COPELAND, Justice.

Defendant brings forward several assignments of error which he contends require a new trial. We disagree and affirm the sentences imposed.

Under the first assignment or error, defendant argues that Judge Strickland's comment excusing Janice Hobson's inconsistent testimony expressed an opinion and deprived him of a fair trial in violation of N.C.Gen.Stat. § 15A-1232.

The record indicates that defendant's wife, Janice Hobson, one of the alleged victims of these crimes, was subjected to substantial cross-examination by counsel for defendant. At two points in this cross-examination, she was asked about discrepancies between testimony given in District Court in an earlier hearing and her testimony given at this trial on direct examination. She was not shown a transcript of her prior District Court testimony. She admitted certain inconsistencies between these two occasions with regard to when she removed her clothes and to whether the defendant was intoxicated at the time of the crime. It appears that at one time during the cross-examination, Judge Strickland, while sustaining an objection by the district attorney, said: "Well, she doesn't have the benefit of the transcript in front of her to help her refresh her recollection." The trial judge did, however, sustain the objection to the form of the question and afforded defense counsel an opportunity to rephrase the question.

Defendant now argues that this one comment constituted an expression of opinion by the trial judge in violation of N.C.Gen. Stat. § 15A-1232. The defendant contends that this was prejudicial to him because the opinion tended to bolster the credibility of the witness by providing an explanation for her difficulties in answering defense counsel's questions.

It is always proper, of course, to impeach a witness' testimony by showing it is inconsistent with prior statements by the same witness. 1 Brandis on North Carolina Evidence, § 45 (1982). Moreover, it is clear that the trial judge should refrain from making any remarks that would tend to express an opinion as to the credibility of the witness. State v. Faircloth, 297 N.C. 388, 255 S.E.2d 366 (1979). However, when the trial judge does make a comment the burden is on the defendant to show prejudice. State v. Arnold, 284 N.C. 41, 199 S.E.2d 423 (1973).

We conclude that the challenged remarks, read in context with all of the extensive cross-examination of Mrs. Hobson, does not constitute an expression of opinion concerning the witness' credibility. The trial judge merely stated the obvious, to wit, that Mrs. Hobson was testifying without the benefit of examining a transcript of her earlier testimony. Finally, defendant has failed to show any prejudice which would entitle him to a new trial. This assignment is without merit and is overruled.

The defendant's second assignment of error contends that evidence of the alleged prior rape was inadmissible and extremely prejudicial to the defendant.

The defendant was charged with the rape, sexual offense, and incest involving his sixteen-year old daughter. The State offered evidence tending to show that the defendant had raped his daughter about two years before when she was fourteen years of age. The defendant contends that this was improperly admitted because it was not relevant for any purpose and violated the principles of State v. McClain, 240 N.C. 171, 81 S.E.2d 364 (1954). Justice Ervin in McClain, stated it was the general rule "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 ... even though the other offense is of the same nature as the crime charged." (Citations omitted.) Id. at 173, 81 S.E.2d at 365. See: State v. Moore, 309 N.C. 102, 305 S.E.2d 542 (1983). The defendant further argues that none of the exceptions to the general rule, which are enumerated in McClain, apply in this case.

In cases involving sex offenses, this Court has held numerous times that evidence of similar sex crimes is admissible. State v. Effler, 309 N.C. 742, 309 S.E.2d 203 (1983); State v. Shane, 304 N.C. 643, 285 S.E.2d 813 (1982); State v. Greene, 294 N.C. 418, 241 S.E.2d 662 (1978); State v. Arnold, 284 N.C. 41, 199 S.E.2d 423 (1973). See also, 1 Brandis on North Carolina Evidence, § 92 (1982). In particular, we have held admissible evidence which tends to show prior offenses of the same kind committed by the defendant with the prosecuting witness, such as occurred in the case at bar. State v. Browder, 252 N.C. 35, 112 S.E.2d 728 (1960); State v. Edwards, 224 N.C. 527, 31 S.E.2d 516 (1944); State v. Broadway, 157 N.C. 598, 72 S.E. 987 (1911). This assignment of error is overruled.

Defendant next assigns as error the trial court's instructions that the jury could use evidence of the prior rape to determine defendant's intent in this case. Defendant argues that the instructions were "plain error" and deprived defendant of a fundamental right to a fair trial. State v. Odom, 307 N.C. 655, 300 S.E.2d 375 (1983).

After defining the elements of first degree sexual offense, first degree rape and incest in his instructions to the jury, the trial judge specifically charged as follows:

Now, in this case evidence has been received tending to show that Donald Lee Hobson had sexual intercourse with Janet Lee Hobson about two years ago. This evidence as received solely for the purpose of showing that the defendant had the intent which is a necessary element of the crime [sic] charged in this case. If you believe this evidence, you may consider it, but only for the limited purpose for which it was received.

We previously held the admission of evidence of the prior rape not to be error. We have examined the limiting instructions and found them appropriate to the evidence. Having found no error in the instructions we do not need to address the defendant's "plain error" argument. This assignment of error is overruled.

Defendant finally asserts as error the trial judge's refusal to summarize the testimony of certain witnesses which the defendant deemed favorable to him.

In this connection, Judge Strickland, upon request, refused to summarize the testimony of three prosecution witnesses, Dr. Ederington, and S.B.I. Agents Spittle and Worsham. Their testimony was, in essence, that tests of material collected during a pelvic examination of Janet Lee Hobson shortly after the crime were negative for either sperm or pubic hair. Spittle and Worsham did testify, however, that such a result occurs at least fifty percent of the time.

Defendant argues that it was error for the judge to omit this testimony even though N.C.Gen.Stat. § 15A-1232 requires a summarization of only so much of the evidence as is necessary to apply the law thereto. See: State v. Sanders, 298 N.C. 512, 259 S.E.2d 258 (1979), cert. denied, 454 U.S. 973, 102 S. Ct. 523, 70 L. Ed. 2d 392 (1981).

In the present case, the trial court adequately incorporated into his jury charge the substantive facts and contentions of both the State and the defendant. The evidence which defendant sought to have summarized was not substantive evidence which would clearly exculpate the defendant. This evidence was merely testimony which tended to impeach the prosecution's witnesses. See: State v. Moore, 301 N.C. 262, 271 S.E.2d 242 (1980). Thus, the trial court was not required to summarize this evidence in order to explain the applicable law. We do not believe that the absence of this summary affected the outcome of the trial in any manner or that a different result would have occurred. We find no merit in defendant's final assignment of error.

Defendant received a fair trial free from prejudicial error.

NO ERROR.