State v. Willis

200 S.E.2d 408 (1973) 20 N.C. App. 43

STATE of North Carolina
v.
Herbert Hill WILLIS.

No. 7315SC673.

Court of Appeals of North Carolina.

November 28, 1973. Certiorari Allowed January 9, 1974.

Atty. Gen. Robert Morgan, Raleigh, by Asst. Attys. Gen. William W. Melvin and William B. Ray, Raleigh, for the State.

Alston, Pell, Pell & Weston, by E. L. Alston, Jr., Greensboro, for defendant appellant.

Certiorari Allowed by Supreme Court January 9, 1974.

MORRIS, Judge.

Defendant presents as his first assignment of error the trial court's allowing the solicitor to question him concerning another speeding violation. Specifically, the solicitor asked defendant whether he saw a certain highway patrolman who "clocked" him travelling 94 miles per hour in a 65 mile-per-hour zone. This assignment of error cannot be sustained.

The law regarding impeachment by reference to prior offenses was succinctly stated by the Supreme Court in State v. Williams, 279 N.C. 663, 185 S.E.2d 174 (1971). A witness—including a criminal defendant—may not for purposes of impeachment be cross-examined as to whether he has been accused—formally or informally—, arrested, indicted or whether he is under indictment for an offense other than the one for which he is on trial. The Supreme Court in the Williams decision overruled prior decisions on this point, but it specifically reaffirmed the rule that a witness—including a criminal defendant — is subject to cross-examination as to prior convictions.

In State v. Gainey, 280 N.C. 366, 185 S.E.2d 874 (1972), the Supreme Court elaborated on the rules established by Williams, supra, by holding that while a witness may not, for purposes of impeachment, be asked whether he has been accused, arrested, or indicted for a specific offense, he may nevertheless be asked whether he has committed specific criminal acts or has been guilty of specific reprehensible conduct. Accord, State v. Lassiter, 17 N.C.App. 35, 193 S.E.2d 265 (1972).

The question as set out hereinabove is proper within the rule established by State v. Gainey, supra, and State v. Lassiter, supra. The trial court did not err in allowing it.

The trial court was likewise correct in its denial of defendant's motion— made at the close of his case—to let the record show the answers that would have been given to questions to which the objections were sustained. Defendant is correct that G.S. § 1A-1, Rule 43(c) does not state time to be of the essence in making such a motion. Nevertheless, we do not sustain this assignment of error. We recognize the well-established right of the trial court in its discretion to control the conduct of the parties, counsel and the witnesses. See 7 Strong, N.C.Index 2d, Trial, § 9.

Defendant further assigns as error the trial court's allowing Patrolman Clemmons to testify regarding the alcohol on defendant's breath and his staggering condition. Assuming, arguendo, that this was error, we fail to perceive how defendant has been prejudiced. As defendant points out, he was found not guilty of driving while intoxicated. It is not enough that defendant show error, he must show that it was prejudicial to him and that a different result would likely have ensued absent the error. State v. Bass, 280 N.C. 435, 186 S.E.2d 384 (1972); State v. Crump, 280 N.C. 491, 186 S.E.2d 369 (1972).

Defendant's final assignment of error is to the trial court's instructions to the jury. Though the trial court's remarks concerning the unintelligible nature of the pattern jury instruction is highly irregular, we fail to discern any way in which defendant has been prejudiced thereby. The charge when read as a whole fairly stated the law and fairly applied the law to the evidence in the case.

No error.

CAMPBELL and VAUGHN, JJ., concur.