State v. Robinson

MITCHELL, Judge.

The defendant first assigns as error the admission into evidence of the testimony of two witnesses, Patricia Britt and Donald Lewis. They each testified that Ann Bryant stated in their presence that the defendant caused her injuries by beating her. We find no merit in this assignment.

In responding to the defendant’s arguments in support of this assignment of error, the State contends inter alia that the statements of Ann Bryant to the witnesses should be treated as dying declarations and, therefore, as exceptionally admissible hearsay. We note that there is evidence in the record which would have supported a finding that the declarant, Ann Bryant, at the time the statements were made was in actual danger of death and had full apprehension of this danger. She suffered extensive and apparently irreversible brain damage which will, in all probability, leave her forever in a comatose state. However, cessation of all involuntary bodily functions, which is required in most jurisdictions for finding of “death,” had not taken place.

The State contends that all of the considerations of public policy supporting the exception to the hearsay rule for dying declarations are present in this case, and that we should so rule. However, we are not required here to decide the issues presented by this intriguing proposition.

In this case prior to the admission of the testimony complained of, the defendant had extensively questioned other witnesses as to their communications with Ann Bryant. The defendant had inquired specifically into what, if anything, Ann Bryant had stated to these witnesses since her injuries. The defendant specifically inquired as to whether she stated the injuries had been caused by him. During the defendant’s cross-examination of Mrs. Clara Holland, one of Mrs. Bryant’s sisters, the following transpired:

“Mr. Turlington: Now, she had never told you and never written anything to you that Roland Dennis Robinson ever touched her or laid a hand on her, has she?

Mr. Henry: Objection.

The Court: Overruled.

A. No, sir.

The Court: Ma’am?

A. No, sir.

The Court: Overruled.”

It is apparent, therefore, that the defendant was responsible for introducing the complained of subject in the first instance by his vigorous cross-examination of the State’s witnesses. Having opened the door on the subject, the defendant is entitled to no consideration on this assignment of error. Adams v. Godwin, 254 N.C. 632, 119 S.E. 2d 484 (1961); See also, State v. Williams, 255 N.C. 82, 120 S.E. 2d 442 (1961).

Thereafter, during the testimony of the State’s witness, Patricia Britt, the subject of what Ann Bryant had said to rescue squad member Donald Lewis concerning the defendant’s having beaten her arose. At that point the defendant objected. Prior to a ruling by the trial court, however, the defendant specifically withdrew the objection. The witness was then questioned extensively concerning accusations against the defendant made to the rescue squad driver by Ann Bryant in the witness’ presence. The witness, Patricia Britt, was then cross-examined by the defendant. After cross-examination of the witness, the defendant asked that the jury be excused in order that he might make a motion in their absence. Out of the presence of the jury, the defendant objected to the testimony concerning Ann Bryant’s statements and made a motion to strike.

Even if the testimony complained of had been inadmissible, the trial court was not required to exclude it, as the defendant’s failure to object promptly constituted a waiver. State v. Blackwell, 276 N.C. 714, 174 S.E. 2d 534 (1970), cert. denied sub nom. Blackwell v. North Carolina, 400 U.S. 946, 27 L.Ed. 2d 252, 91 S.Ct. 253 (1970). Further, where, as here, the defendant did not immediately object but waited until additional questions had been asked and answered before objecting and moving to strike, the failure to object in apt time is regarded as a waiver. The admission of evidence complained of is not then assignable as error absent unusual circumstances not here presented. State v. Letterlough, 6 N.C. App. 36, 169 S.E. 2d 269 (1969); Stansbury, N.C. Evidence 2d, § 27.

The reasoning of Letterlough applies with even greater vigor here than in that case. The record reveals that this defendant, by objecting and immediately withdrawing the objection when the testimony complained of was elicited, made a conscious decision to allow the testimony to come into evidence. Only after hearing all of the testimony on both direct and cross-examination did the defendant determine that he should change his trial strategy and seek exclusion. The admission of this testimony was not error.

We additionally note that the defendant made several objections to similar testimony which, when overruled by the trial court, were not followed by motions to strike or requests for instructions to the jury to disregard the testimony. This, too, constituted a waiver making the admission of the testimony proper. State v. Battle, 267 N.C. 513, 148 S.E. 2d 599 (1966); Highway Commission v. Black,, 239 N.C. 198, 79 S.E. 2d 778 (1954); Mays v. Butcher, 33 N.C. App. 81, 234 S.E. 2d 204 (1977).

Later, the defendant did, on one occasion, timely object and move to strike Donald Lewis’ testimony concerning Mrs. Bryant’s accusation of the defendant. However, since the defendant permitted the admission of similar evidence both before and after this, the benefit of the objection and motion to strike was lost. Dunes Club v. Ins. Co., 259 N.C. 293, 130 S.E. 2d 625 (1963). The assignment of error is overruled.

The defendant next assigns as error the refusal of the trial court to allow into evidence testimony concerning Ann Bryant’s alleged propensities for drinking intoxicating beverages and her prior conviction for driving under the influence of intoxicants. The trial court properly excluded this evidence as irrelevant in this case as there was specific evidence in the record that Mrs. Bryant had not been drinking at the time she was found in a battered condition and taken to a hospital. The evidence which the defendant sought to introduce would not have contradicted that evidence and was, at best, remote and conjectural and would have had no value other than as an invitation to prejudice. It was, therefore, irrelevant and properly excluded. Pearce v. Barham, 267 N.C. 707, 149 S.E. 2d 22 (1966); Redding v. Braddy, 258 N.C. 154, 128 S.E. 2d 147 (1962).

Even had the evidence of Mrs. Bryant’s prior consumption of alcohol been admissible, its exclusion would not require a new trial. Courts do not lightly set aside verdicts or grant new trials. State v. Mundy, 182 N.C. 907, 110 S.E. 93 (1921). As the excluded evidence clearly would not, if admitted, have changed the result of the trial, no new trial will be granted. Stansbury, N.C. Evidence 2d, § 9.

The defendant made other assignments of error which, upon our reading of the record in its entirety, we find to be without merit. The defendant had a fair trial free from prejudicial error and we find

No error.

Judges Morris and Clark concur.