State v. Carter , 293 N.C. 532 ( 1977 )

238 S.E.2d 493 (1977) 293 N.C. 532

STATE of North Carolina
v.
Garland Wayne CARTER.

No. 33.

Supreme Court of North Carolina.

November 11, 1977.

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

J. Calvin Cunningham, Lexington, for defendant-appellant.

BRANCH, Justice.

Defendant first contends that the trial judge erred by admitting testimony of Detective Truell which was offered to corroborate the testimony of Porterfield. Initially, defendant seems to take the position that this evidence was inadmissible because Porterfield had not testified to the content of the statement as he had related it to Detective Truell. This argument is without merit.

In this jurisdiction, evidence tending to support a witness's credibility is admissible when he is impeached in any manner including contradictory statements, cross examination, or contradiction by other witnesses. State v. Cope, 240 N.C. 244, 81 S.E.2d 773. Some of our more recent cases tend to recognize the admissibility of corroborative evidence without even considering the question of whether the witness has been impeached. See, 1 Stansbury's N.C. Evidence, Witnesses Sec. 50 (Brandis Rev.), and cases there cited. One of the most widely used and well-recognized methods of strengthening the credibility of a witness, as was done here, is by the admission of prior consistent statements. State v. Caddell, 287 N.C. 266, 215 S.E.2d 348; State v. Sawyer, 283 N.C. 289, 196 S.E.2d 250; State v. Bennett, 226 N.C. 82, 36 S.E.2d 708. Defendant, however, argues that the challenged evidence was erroneously admitted because the Witness Porterfield did not testify to certain facts which the officer's testimony allegedly corroborated. In his testimony, offered for the purpose of corroboration, Detective Truell testified: "Porterfield said this man then took James' billfold out of his pocket, took his money . .." The record shows that Porterfield did not so testify. All other portions of Truell's testimony tend to corroborate the evidence given by Porterfield.

The rule of law which defendant relies upon is well stated in State v. Brooks, 260 N.C. 186, 132 S.E.2d 354, 356, as follows:

If a prior statement of a witness, offered in corroboration of his testimony at the trial, contains additional evidence going beyond his testimony, the State is not entitled to introduce this "new" evidence under a claim of corroboration. Neither may the State impeach or discredit its own witness by introducing his prior contradictory statements under the guise of corroboration. State v. Bagley, 229 N.C. 723, 51 S.E.2d 298; State v. Melvin, 194 N.C. 394, 139 S.E. 762; State v. Scoggins, 225 N.C. 71, 33 S.E.2d 473. However, if the previous statements offered in corroboration are generally consistent with the witness' testimony, slight variations between them will not render the statements inadmissible. Such variations affect only the credibility of the evidence which is always for the jury. State v. Case, 253 N.C. 130, 116 S.E.2d 429; State v. Walker, 226 N.C. 458, 38 S.E.2d 531; State v. Scoggins, supra.

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Where portions of a document are competent as corroborating evidence and other parts incompetent, it is the duty of the party objecting to the evidence to point out the objectionable portions. Objections to evidence en masse will not ordinarily be sustained if any part is competent. State v. Litteral, 227 N.C. 527, 43 S.E.2d 84; State v. Wilson, 176 N.C. 751, 97 S.E. 496; State v. English, 164 N.C. 497, 80 S.E. 72; Gibson v. Whitton, 239 N.C. 11, 79 S.E.2d 196; Grandy v. Walker, 234 N.C. 734, 68 S.E.2d 807; Wilson v. Williams, 215 N.C. 407, 2 S.E.2d 19. N.C. Index, Trial, Sec. 15.

Accord: State v. Tinsley, 283 N.C. 564, 196 S.E.2d 746.

Here when the district attorney asked Detective Truell to relate the statement made by Porterfield to him on 1 February 1976, defense counsel entered a general objection. During Detective Truell's lengthy testimony, counsel failed to further object or point out the testimony which he now claims to have been erroneously admitted; neither did he move to strike that testimony. Detective Truell's testimony did not contradict Porterfield's testimony and was generally consistent with it.

The State's evidence raises reasonable inferences which would have permitted, but not have required, the jury to find that defendant came into the home of Kay Huffman with the intent to commit an armed robbery and during the course of that robbery shot and killed James Price. Whether he first robbed Price before he completed the armed robbery of Porterfield is of little consequence. Therefore, the variance between Porterfield's testimony and the Witness Truell's corroborative testimony was slight. Further the trial judge carefully and correctly instructed the jury as to the purpose for which this evidence was admitted, and in his charge cautioned the jury that it should not consider that portion of Truell's evidence which varied from Porterfield's sworn testimony.

We hold that there was no error prejudicial to defendant in the admission of Detective Truell's corroborative testimony.

Defendant's "Issue Two" is as follows: "Did testimony of Officer Truell, a law enforcement officer, to the effect that defendant fled to avoid service of warrants, constitute incompetent, irrelevant and immaterial questioning to the prejudice of the defendant?" We find nothing in this record which discloses that Detective Truell testified that defendant fled to avoid service of warrants. The detective stated that he obtained a warrant for defendant's arrest on February 1, and had been attempting service but could not locate defendant until February 6.

Defendant relies on the cases of State v. Lee, 287 N.C. 536, 215 S.E.2d 146, and State v. Lampkins, 283 N.C. 520, 196 S.E.2d 697, to support his position. His reliance is misplaced. Both Lee and Lampkins turn on the question of whether there was sufficient record evidence to support an instruction on flight. In the instant case, there was no exception or assignment of error relating to the trial judge's charge on flight. Rather, defendant seems to question the competency of the evidence. The answer to this contention is found in the following language from State v. Lampkins, supra:

. . . most jurisdictions recognize that testimony of a law enforcement officer to the effect that he searched for the accused without success after the commission of the crime is competent. See cases collected in Annot., 25 A.L.R. 886; Wharton's Criminal Evidence Section 214 (1972). See also, State v. Wallace, 162 N.C. 622, 78 S.E. 1; State v. Jones, 93 N.C. 611.

Our conclusion that there is no merit to this contention is strengthened by the fact that defense Witness Kay Huffman later testified that she and defendant fled the scene and after driving around for one or two days lived in the woods until their surrender on 6 February 1976. This testimony was of the same import as that here challenged. Its later admission without objection cured any possible error in the admission of the evidence relating to flight. State v. Jarrett, 271 N.C. 576, 157 S.E.2d 4, cert. denied, 389 U.S. 865, 88 S.Ct. 128, 19 L.Ed.2d 135.

Finally defendant contends that the trial judge committed prejudicial error in his charge upon armed robbery and the felony murder rule.

In his charge on the underlying felony of armed robbery, the trial judge stated, "Armed robbery or attempted armed robbery need not be of a person who may have been shot." We are of the opinion that this is a substantially correct statement of the law. G.S. 14-17 declares that a murder committed in the perpetration of any robbery or attempted robbery is deemed to be murder in the first degree. See, State v. Squire, 292 N.C. 494, 234 S.E.2d 563. Here the homicide was linked to and was a part of a series of incidents forming one continuous transaction which resulted in decedent's being killed during the course of an armed robbery. See, State v. Thompson, 280 N.C. 202, 185 S.E.2d 666.

The second portion of the charge to which defendant excepts is in the trial judge's statement of the elements of the felony of armed robbery. He charged, "One, that the defendant took property from the person of Dennis Porterfield or took property in Porterfield's presence." (Emphasis ours.) Defendant argues that the italicized portion of the preceding quotation constituted a prejudicial reference to the non-corroborative statement of the Witness Truell to the effect that Price was robbed. We disagree. Immediately after charging on the elements of armed robbery, the trial judge in his final mandate to the jury on the charge of armed robbery made it absolutely clear that Porterfield was the victim of the robbery. In light of this charge and the trial judge's careful and clear instructions to the jury that it should disregard the evidence concerning a robbery of the decedent, we conclude that the jury would not have been misled by the use of this rather ambiguous phrase.

We find nothing in defendant's assignments of error or in this record which would justify a new trial.

No error.