State v. Poole

220 S.E.2d 320 (1975) 289 N.C. 47

STATE of North Carolina
v.
Harold David POOLE.

No. 62.

Supreme Court of North Carolina.

December 17, 1975.

W. Lamont Brown, Southern Pines, for defendant-appellant.

Rufus L. Edmisten, Atty. Gen., Thomas B. Wood, Asst. Atty. Gen., Raleigh, for the State of North Carolina.

HUSKINS, Justice:

Defendant's first assignment of error is based on the admission of Mrs. McGill's testimony that defendant committed the crime of rape in addition to the crime of kidnapping.

It is a general rule of evidence 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. State v. Long, 280 N.C. 633, 187 S.E.2d 47 (1972). But it is equally well established that this rule does not apply when the two crimes are parts of the same transaction and are so connected in time or circumstance that one cannot be fully shown without proving the other. State v. McClain, 282 N.C. 357, 193 S.E.2d 108 (1972); State v. McClain, 240 N.C. 171, 81 S.E.2d 364 (1954).

Stansbury formulates the rule in this fashion: "Evidence of other offenses is inadmissible if its only relevancy is to show the character of the accused or his disposition to commit an offense of the nature of the one charged; but if it tends to prove any other relevant fact it will not be excluded merely because it also shows him to have been guilty of an independent crime." 1 Stansbury, North Carolina Evidence, § 91 (Brandis rev. 1973).

The purpose for which defendant carried Mrs. McGill into the woods of Montgomery County is obviously relevant to the charge of kidnapping. Among other things, it bears directly upon the motive for kidnapping her. The rape and kidnap are part of the same transaction and are so connected in time or circumstance that one cannot be fully shown without proving the other. State v. Caddell, 287 N.C. 266, 215 S.E.2d 348 (1975). This assignment is without merit and is overruled.

The record shows that, over objection, the district attorney asked defendant if he did not forcibly kidnap Judy Sheffield on the dame day as this offense. Defendant denied it. He was asked if he had not forcibly kidnapped Veronica Clendenin on 14 March 1975. Defendant said he had been accused of it but didn't do it. He was asked if on the night of 14 March 1975 he kidnapped two men in Richmond County and took them to a fire tower in Montgomery County. Defendant answered in the negative but stated he was in the fire tower and called the sheriff's department himself. He said no charges had been brought against him in connection with the incident.

Defendant contends the court erred in allowing the district attorney to cross-examine him regarding other alleged kidnappings when he had not been convicted of such crimes. This constitutes his second assignment of error.

Defendant's contention that cross-examination concerning criminal conduct is limited to inquiry about prior convictions is unsound. We held in State v. Williams, 279 N.C. 663, 185 S.E.2d 174 (1971), that "[i]t is permissible, for purposes of impeachment, to cross-examine a witness, including the defendant in a criminal case, by asking disparaging questions concerning collateral matters relating to his criminal and degrading conduct. [Citations omitted.] Such questions relate to matters within the knowledge of the witness, not to accusations of any kind made by others."

It has long been the rule in this jurisdiction that where a defendant in a criminal case testifies in his own behalf, specific acts of misconduct may be brought out on cross-examination to impeach his testimony. State v. Griffin, 201 N.C. 541, 160 S.E. 826 (1931); State v. Colson, 194 N.C. 206, 139 S.E. 230 (1927); State v. Davidson, 67 N.C. 119 (1872); State v. Patterson, 24 N.C. 346 (1842); 1 Stansbury, North Carolina Evidence, § 111 (Brandis rev. 1973). Such cross-examination for impeachment purposes is not limited to conviction of crimes. "Any act of the witness which tends to impeach his character may be inquired about or proven by cross examination." State v. Sims, 213 N.C. 590, 197 S.E. 176 (1938). So it comes to this: A defendant may not be asked on cross-examination for impeachment purposes if he has been accused, arrested or indicted for a particular crime, State v. Williams, supra, but he may be asked if he in fact committed the crime. State v. Mack, 282 N.C. 334, 193 S.E.2d 71 (1972); State v. Gainey, 280 N.C. 366, 185 S.E.2d 874 (1972). Defendant's second assignment of error is overruled.

Defendant's third assignment of error is addressed to the following excerpt from the charge: "Now, you may find that a witness is interested in the outcome of this trial. In deciding whether you will believe or disbelieve the testimony of any such witness, you may take his interest into account. If after doing so you believe his testimony in whole or in part, you should then treat what you believe the same as any other believable evidence in the case." Defendant argues that since the female prosecutor and the male defendant were the only important witnesses in the case, "this charge has the effect of making the jury scrutinize and hold the male defendant's testimony up to a higher standard to determine whether he was telling the truth. The use of the masculine pronoun ``his' could also have led the jury to believe that the judge was expressing his opinion that the testimony of the male defendant should be more carefully scrutinized than that of other witnesses." We now examine the charge in light of these contentions.

Immediately preceding the portion of the charge to which exception is taken, the judge instructed the jury as follows:

"Now, as the jurors in this case you are the sole judges of the credibility of the witnesses. You must decide for yourself whether you believe or disbelieve the testimony of any witness. You may believe all or any part or none of what a witness has had to say while on the stand.

In determining whether you will believe any witness, you should apply the same tests of truthfulness which you apply in your everyday affairs. These tests may include the opportunity of the witness to see or hear or know or remember the facts or occurrences about which he has testified, or she has testified; the manner and appearance of the witness, any interest, bias or prejudice the witness may have displayed, the apparent understanding and fairness of the witness, and whether the testimony of the witness is reasonable and whether that testimony is consistent with other believable evidence in the case.

Now, you are likewise the sole judges of the weight to be given the evidence. If you believe that certain evidence is believable, you must then determine the importance of that evidence in the light of all other believable evidence in the case."

Three witnesses, two male and one female, testified in this case. When the charge is considered contextually it is perfectly apparent that the court used the term "his" to refer to all the witnesses who testified, both male and female. We think the jury so understood it. Isolated portions of a charge will not be held prejudicial when the charge as a whole is correct. State v. Cook, 263 N.C. 730, 140 S.E.2d 305 (1965); State v. Goldberg, 261 N.C. 181, 134 S.E.2d 334, cert. denied, 377 U.S. 978, 84 S. Ct. 1884, 12 L. Ed. 2d 747 (1964). Merely showing that a critical examination of the judge's words, detached from the context and the incidents of the trial, are capable of an interpretation from which an expression of opinion may be inferred is insufficient to show prejudicial error. State v. Gatling, 275 N.C. 625, 170 S.E.2d 593 (1969); State v. Jones, 67 N.C. 285 (1872).

The charge complained of does not constitute an expression of opinion upon the credibility of defendant in violation of G.S. 1-180. The admonition to scrutinize included not only the defendant but also the testimony "of any witness." Instructions couched in substantially similar language are fully supported by our decisions. "There is no hard and fast form of expression or consecrated formula required, but the jury should be instructed that, as to the testimony of relatives or parties interested in the case and defendants, that the jury should scrutinize their testimony in the light of that fact; but if, after such scrutiny, the jury should believe that the witness has told the truth, they should give him as full credit as if he were disinterested." State v. Green, 187 N.C. 466, 122 S.E. 178 (1924). Accord, State v. Griffin, 280 N.C. 142, 185 S.E.2d 149 (1971); State v. Barrow, 276 N.C. 381, 172 S.E.2d 512 (1970); State v. Choplin, 268 N.C. 461, 150 S.E.2d 851 (1966); State v. Turner, 253 N.C. 37, 116 S.E.2d 194 (1960); State v. McKinnon, 223 N.C. 160, 25 S.E.2d 606 (1943). This assignment is overruled.

Defendant's final assignment is based upon the following excerpt from the charge: "The evidence of the State further tended to show that before the defendant raped Phyllis McGill she pretended to faint;. . ." Defendant contends the language used amounted to an expression of opinion on the part of the judge, in violation of G.S. 1-180, that defendant raped Mrs. McGill.

The record discloses that the language complained of was used by the judge while recapitulating the State's evidence. Defendant voiced no objection at that time. When the charge was completed and as the jury retired to the jury room, the statement was brought to the attention of the court and the jury was recalled. The court thereupon instructed the jury as follows:

"Members of the jury, after you retired, or just as you retired, I had a conference with the attorneys and it did appear that in one place during the course of my instructions to you that I may have used a term which you could misinterpret. During my restatement of the evidence, or my summary of the evidence, I used at one point that the evidence of the State tended to show that the defendant had sexual relations with the State's witness, Phyllis McGill, against her will. I also used the term ``and that before the rape.' I did not in any way mean to indicate to you that I felt that there was a rape in the case, but only that the State's evidence tended to show that before the sexual relation is against the will of the witness, Phyllis McGill, then certain things happened, and I wanted to make sure that you fully understood that I was not in any way attempting to suggest to you that there was a rape, but only that the State's evidence tended to show that there was sexual relations against the will of the State's witness, only if you believe the State's evidence would you so find."

If the portion of the charge challenged by this assignment be, in fact, erroneous, which is not conceded, the final instruction given to the jury effectively cured the error. The jury could not have been misled by any notion that use of the word "rape" by the judge indicated an expression on the judge's part that such fact had been established. In addition to the full and adequate curative instruction regarding the use of the word "rape," the jury was instructed elsewhere in the charge that "what the evidence does actually show is a question of fact for the jury's determination." When the charge is considered as a whole, we find it free from prejudicial error. There is no merit to this assignment.

Defendant has been accorded a fair trial. No prejudicial error having been shown, the verdict and judgment must be upheld.

No error.