State v. Henley ( 1979 )

251 S.E.2d 463 (1979) 296 N.C. 547

STATE of North Carolina
v.
Bobby Lee HENLEY.

No. 132.

Supreme Court of North Carolina.

February 5, 1979.

Atty. Gen. Rufus L. Edmisten, by Asst. Atty. Gen. Thomas F. Moffitt, Raleigh, for the State.

White & Crumpler, by Fred G. Crumpler, Jr., G. Edgar Parker, and David R. Tanis, Winston-Salem, for the defendant.

BROCK, Justice.

Defendant's assignments of error Nos. 2, 5, 6, 8 and 9 are deemed abandoned. "The function of all briefs required or permitted by these rules is to define clearly the questions presented to the reviewing court and to present the arguments and authorities upon which the parties rely in support of their respective positions thereon. Review is limited to questions so presented in the several briefs. Questions raised by assignments of error in appeals from trial tribunals but not then presented and discussed in a party's brief are deemed abandoned." Rule 28, North Carolina Rules of Appellate Procedure. This opinion is limited to a discussion of assignments of error Nos. 1, 3, 4 and 7.

By his first assignment of error defendant contends that the trial judge abused his discretionary authority by permitting the district attorney to propound leading questions to the prosecuting witness to establish the essential elements of rape.

It is well established in this jurisdiction that the trial court has discretionary authority to permit leading questions in proper instances such as when the inquiry is into a subject of delicate nature such as sexual matters, and that an appellant must show prejudice before the action of the trial court will be disturbed. State v. Manuel, 291 N.C. 705, 231 S.E.2d 588 (1977). In State v. Brunson, 287 N.C. 436, 215 S.E.2d 94 (1975) the rule was thus stated: "[T]his Court has wisely and almost invariably held that the presiding judge has wide discretion in permitting or restricting leading questions. When the testimony so elicited is competent and there is no abuse of discretion, defendant's exception thereto will not be sustained." Id. at 444, 215 S.E.2d at 99.

Defendant's exceptions Nos. 1 and 2 form the basis for this first assignment of error. Exception No. 1 discloses the following:

"Q. Well, once he entered you, what, if anything, did he do?

A. He just, well, moved around, if that's what you are saying.

Q. All right. And did he reach a climax?

A. It appeared that he did."

OBJECTION: OVERRULED

DEFENDANT'S EXCEPTION NO. 1

Conceding arguendo that the question was leading it was nevertheless a permissible question. State v. Greene, 285 N.C. 482 at 492, 206 S.E.2d 229.

The question that is the subject of defendant's exception No. 2 is as follows:

"Q. You did not consent to him having intercourse with you except at the point of a gun?

A. Right."

OBJECTION: OVERRULED

DEFENDANT'S EXCEPTION NO. 2

Although we agree with defendant that this latter question was leading, we view it as non-prejudicial because of the witness' prior testimony. The witness had already testified that defendant pointed the pistol at her when he opened her car door, that he kept it pointed at her as she drove under his directions, and that he held the pistol in his right hand at all times. She further testified:

"Q. During the time that the man was on top of you, what was your state of mind?

A. Well, at that time, I was just trying to—I was trying to forget. I was praying at the same time that I didn't get killed, and I was just sitting, well, there gritting my teeth, hating every minute of it."

Defendant's first assignment of error is overruled.

Defendant's assignment of error No. 3 alleges prejudice to him, by reason of a question propounded to a State's witness by the district attorney even though the trial judge sustained defendant's objection to the question. This argument is without merit. The district attorney asked a police identification technician if, in his opinion, State's exhibit No. 1 (a photograph of a composite drawing made from the description Thresa Phelps had given the police of her assailant which had been identified, admitted into evidence, and presumably exhibited to the jury) was a likeness of the defendant. Defendant's objection was promptly sustained by the trial judge and the witness did not answer. This assignment of error is overruled.

Defendant's assignment of error No. 4 challenges the rulings of the trial judge in admitting, over objection, prior statements of Thresa to others for the purpose of corroboration. "The application of the rules regulating the reception and exclusion of corroborative testimony of this kind, so as to keep its scope and volume within reasonable bounds, is necessarily a matter which rests in large measure in the discretion of the trial court." Gibson v. Whitton, 239 N.C. 11, 17, 79 S.E.2d 196, 201 (1953). A total of eight witnesses testified as to prior statements of Thresa describing the events and her attacker. Yet defendant brings forward exceptions to the testimony of only one of these eight corroborative witnesses. In view of this situation, a well established rule comes into play. When incompetent evidence is admitted over objection, but the same evidence has theretofore or thereafter been admitted without objection, the benefit of the objection is lost. See Harvels, Inc. v. Eggleston, 268 N.C. 388, 150 S.E.2d 786 (1966); 1 Strong's North Carolina Index 3d, Appeal and Error, § 30.1. Nevertheless, defendant launches an attack on the liberality of the North Carolina rule upon the admissibility of such corroborative evidence. We are not convinced that change is either needed or desirable. An excellent observation on the question was made by Dean Henry Brandis, Jr. as follows: "Particularly this latter aspect of the North Carolina rule has been subjected to severe criticism; but the present author believes that sound practical reasons justify it. The cases reflect few, if any instances in which the reception of such evidence has unduly prolonged trials or unfortunately confused the issues. Identifying the substantive evidence which is credible is the main task of the jury in many, if not most trials; and, in the view of this author, trial judges should pave wide discretion in admitting evidence which they believe may aid the jury in appraising credibility. The North Carolina rule allows this and thus, at the appellate level, avoids much technical, and largely profitless, disputation as to the precise occasions on which corroborative evidence should be received." 1 Stansbury's North Carolina Evidence, § 52, pp. 149-150 (Brandis Rev. 1973).

The defendant further argues that even if we do not see fit to reject the present North Carolina rule, and we do not, the trial court erred in giving its limiting instruction on the manner in which the jury should consider evidence of prior consistent statements. Upon objection being overruled as to the admissibility of evidence of a prior consistent statement, if counsel desires a limiting instruction he should request it. At no point in the present case did counsel make such a request. Even so, on numerous occasions the trial court upon its own initiative gave a limiting instruction. Each was substantially the same. Defendant's argument is addressed only to the limiting instruction given as the seventh corroborating witness testified. We have examined this instruction and find that it substantially complies with the law. Defendant has shown no prejudice. Defendant's assignment of error No. 4 is overruled.

Defendant's assignment of error No. 7 contends that the trial judge expressed an opinion upon the evidence as he was summarizing the defendant's evidence. Defendant cites us to a point in the instructions where the trial judge summarized a portion of defendant's evidence by stating that there was evidence which tended to show that defendant was not the man that got in the prosecuting witness' car. The judge then said, "don't consider that", and proceeded to say that there was evidence that tended to show that the defendant was not the man that the prosecuting witness said got in her car.

We find no intimation from the trial judge of an opinion as to whether any fact had or had not been proved. Defendant's assignment of error No. 7 is overruled.

From the whole record we conclude that defendant had a fair trial, free from prejudicial error.

NO ERROR.