State v. McCormick

259 S.E.2d 880 (1979) 298 N.C. 788

STATE of North Carolina
v.
Timothy Lane McCORMICK.

No. 54.

Supreme Court of North Carolina.

December 4, 1979.

Asst. Public Defenders Malcolm Tye Hunter and James R. Parrish, Jr., Fayetteville, for defendant.

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

COPELAND, Justice.

In his fifth assignment of error, defendant contends that the trial judge committed prejudicial error in improperly restricting the testimony of a defense witness as to the reputation of the prosecutrix, Beatrice Bethea. We agree; therefore, the defendant's conviction must be reversed.

The applicable law in this State provides that an impeaching character witness, who knows the general reputation and character of the witness about which he plans to testify, may state the reputation of the witness "categorically, I. e., simply saying that it is good or bad, without more, or he may, of his own volition, but without suggestion from counsel offering the witness, amplify or qualify his testimony, by adding that it is good for certain virtues or bad for certain vices. . . ." State v. McEachern, 283 N.C. 57, 68, 194 S.E.2d 787, 794 (1973), quoting State v. Hicks, 200 N.C. 539, 541, 157 S.E. 851, 852 (1931) (Emphasis added.) (Citations omitted.); See also, State v. Bush, 289 N.C. 159, 221 S.E.2d 333, death sentence vacated, 429 U.S. 809, 97 S.Ct. 46, 50 L.Ed.2d 69 (1976).

Before State v. Hairston, 121 N.C. 579, 28 S.E. 492 (1897), it was permissible to question a witness about the general reputation of the witness to be impeached, State v. Efler, 85 N.C. 585 (1881); State v. Stallings, 3 N.C. 300 (1804); and about that witness' reputation with respect to a specific character trait, State v. Spurling, 118 N.C. 1250, 24 S.E. 533 (1896); Warlick v. White, 76 N.C. 175 (1877).

However, since Hairston it has been the rule that counsel may only ask about the general reputation or character of the witness to be impeached. State v. Stevens, 295 N.C. 21, 243 S.E.2d 771 (1978); State v. Pearson, 181 N.C. 588, 107 S.E. 305 (1921); State v. Neville, 175 N.C. 731, 95 S.E. 55 (1918); State v. Burton, 172 N.C. 939, 90 S.E. 561 (1916). However, the impeaching witness, of his own volition, may say in what respect the witness' reputation is good or bad. State v. McEachern, supra; State v. Hicks, supra; State v. Butler, 177 N.C. 585, 98 S.E. 821 (1919); State v. Summers, 173 N.C. 775, 92 S.E. 328 (1917); State v. Melton, 166 N.C. 442, 81 S.E. 602 (1914); Edwards v. Price, 162 N.C. 243, 78 S.E. 145 (1913); State v. Hairston, supra. See also, Sizemore, Character Evidence in Criminal Cases in North Carolina, 7 Wake Forest L.Rev. 17 (1970).

Here, the witness, Jimmy Lee Davis, testified for the defendant that the prosecutrix had a bad reputation. The trial judge refused to allow the witness to say in what respect the reputation of the prosecutrix was bad. This testimony was not allowed because the trial judge felt that the witness had been coached and therefore could not give a voluntary or spontaneous answer.

There is absolutely no evidence in this case that defense counsel procured the witness to give perjured testimony. Defense counsel had a witness who would testify that Bethea had a reputation in her community for being an untruthful woman. It is not improper for an attorney to prepare his witness for trial, to explain the applicable law in any given situation and to go over before trial the attorney's questions and the witness' answers so that the witness will be ready for his appearance in court, will be more at ease because he knows what to expect, and will give his testimony in the most effective manner that he can. Such preparation is the mark of a good trial lawyer, see, e. g., A. Morrill, Trial Diplomacy, Ch. 3, Part 8 (1973), and is to be commended because it promotes a more efficient administration of justice and saves court time.

Even though a witness has been prepared in this manner, his testimony at trial is still his voluntary testimony. Nothing improper has occurred so long as the attorney is preparing the witness to give the witness' testimony at trial and not the testimony that the attorney has placed in the witness' mouth and not false or perjured testimony.

When a witness' testimony appears to have been memorized or rehearsed or it appears that the witness has testified using the attorney's words rather than his own or has been improperly coached, then these are matters to be explored on cross-examination, and the weight to be given the witness' testimony is for the jury. The sanctions of the Code of Professional Responsibility are there for the attorney who goes beyond preparing a witness to testify to that about which the witness has knowledge and instead procures false or perjured testimony. DR7-102, Code of Professional Responsibility.

From the record it appears that the witness had knowledge of Bethea's reputation for truthfulness and was prepared to give testimony to that effect. It was not error for the attorney to prepare the witness for the manner in which this testimony would be elicited on direct examination at trial. This proffered testimony was an attack on the credibility of the prosecutrix. The credibility of the prosecutrix was an important and material issue in this case. This testimony would have aided the jury in determining the believability of the testimony of the prosecutrix and thus the weight it should be given. Therefore, its exclusion was prejudicial error.

The record discloses what the excluded testimony of the witness would have been because at one point the witness answered defense counsel's question before the district attorney's objection was sustained. The better practice is for the trial judge to allow the attorney to make his offer of proof. The best manner in which to do this is to excuse the jury from the courtroom and then allow the witness to answer the question for the record. In order to determine whether the trial judge committed prejudicial error in excluding the testimony, it is necessary for the testimony to appear in the record; therefore, the trial judge should allow the attorney to make his offer of proof. State v. Chapman, 294 N.C. 407, 241 S.E.2d 667 (1978); North Carolina State Highway Commission v. Pearce, 261 N.C. 760, 136 S.E.2d 71 (1964); In Re Gamble, 244 N.C. 149, 93 S.E.2d 66 (1956); 1 Strong's N.C. Index 3d, Appeal and Error § 49.1 and cases cited therein.

We deem it unnecessary to discuss defendant's remaining assignments of error, inasmuch as the matters which gave rise to them probably will not recur on retrial.

New trial.