State v. Abernathy

Decision Date06 June 1978
Docket NumberNo. 11,11
Citation295 N.C. 147,244 S.E.2d 373
PartiesSTATE of North Carolina v. David Wesley ABERNATHY and Jack Jaynes.
CourtNorth Carolina Supreme Court

Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. Ralf F. Haskell, Raleigh, for the State.

Louis L. Lesesne, Jr., Charlotte, for David W. Abernathy, defendant-appellant.

C. Frank Goldsmith, Jr., Marion, for Jack Jaynes, defendant-appellant.

MOORE, Justice.

Defendants file separate briefs. Some of the same or similar assignments of error are brought forward in each brief, while other assignments of error pertain only to each individual's appeal. We will first consider those questions presented jointly by defendants.

Abernathy's and Jaynes' Joint Appeal

Defendants first insist that the trial court erred in refusing to allow them to cross-examine the State's witness Ronald Clark, an admitted accomplice, concerning his expectation of leniency as a result of his testimony; this, defendants argue, was necessary to establish Clark's bias and interest in the case.

This Court has held that a defendant is entitled to cross-examine an accomplice who has testified against him as to whether he has been promised immunity or leniency in return for his testimony, and that the denial of this right would constitute prejudicial error. State v. Harris, 290 N.C. 681, 228 S.E.2d 437 (1976); State v. Carey, 285 N.C. 497, 206 S.E.2d 213 (1974); State v. Spicer, 285 N.C. 274, 204 S.E.2d 641 (1974); State v. Roberson, 215 N.C. 784, 3 S.E.2d 277 (1939). The scope and duration of cross-examination rests, however, largely in the discretion of the trial judge, and he may limit cross-examination when it becomes merely repetitious. State v. Harris, supra; State v. Bumper, 275 N.C. 670, 170 S.E.2d 457 (1969); State v. Maynard, 247 N.C. 462, 101 S.E.2d 340 (1958).

Defendants strongly rely on the cases of State v. Carey, supra, and State v. Roberson, supra, to support their position. These cases are distinguishable from the instant case in that in both Roberson and Carey the trial judge's limitation on cross-examination totally precluded inquiry into the subject matter to which the respective defendant's cross-examination was directed.

In the case before us, Clark had entered a plea of guilty but had not been sentenced. The defendants were permitted to cross-examine Clark at length concerning the circumstances and reasons surrounding his testifying as a witness for the prosecution, and as to whether he made any deals with the State in exchange for his testimony. They further cross-examined Clark extensively about his criminal record and prior confrontations with the law, including prior instances in which he had been charged with various crimes and had been allowed to plead guilty to lesser offenses.

The specific questions to which defendants except are as follows:

Counsel for defendant Abernathy

"Q. Well, you know how to maneuver to save your own skin, because you did that in Burke County, didn't you

MR. LOWE: OBJECTION.

Q. You entered a plea of guilty and got off very light?

MR. LOWE: OBJECTION.

THE COURT: OBJECTION SUSTAINED."

Counsel for defendant Jaynes

"Q. You knew what a deal was, didn't you?

A. Yes sir.

Q. You knew they could be worked out when you're charged with a crime, didn't you?

MR. LOWE: OBJECTION.

THE COURT: SUSTAINED."

The record indicates that the same or similar questions had previously been asked of and answered by the witness Clark. The witness testified that he had been promised nothing for his testimony; that he had pled guilty to the charges against him but had "made no deals, no nothing"; that he had pled guilty to other offenses during his criminal career in order to receive a lighter sentence; and that his prior counsel had worked out deals for him for these unrelated offenses so that he might receive lighter sentences.

In addition to being repetitive, the question asked by counsel for defendant Abernathy was objectionable for lack of proper foundation prior to asking this question counsel failed to inquire as to the specific Burke County offense and its eventual disposition. The question asked by counsel for defendant Jaynes is objectionable in that it calls for his knowledge of a supposed fact not in evidence and of questionable validity. Counsel for defendants made no efforts to rephrase their questions and make proper inquiry. We hold, therefore, that the trial judge did not abuse his discretion by sustaining the objections to these improper questions.

Prior to the court's charge to the jury, counsel for defendant Jaynes filed a written request for jury instructions concerning the consideration to be given the testimony of the State's witness Ronald Clark, an admitted accomplice. (The record fails to show that counsel for Abernathy made a similar request for instructions.) Pursuant to this request, the court instructed the jury concerning the consideration to be given to Clark's testimony. Defendants, however, contend that the court's charge was insufficient in that it failed to include in this instruction the contention that "an accomplice may be motivated to falsify his testimony in whole or in part because of his own self-interest in obtaining leniency in his own prosecution."

An accomplice testifying for the prosecution is generally regarded as an interested witness, and a defendant, upon timely request, is entitled to an instruction that the testimony of the accomplice should be carefully scrutinized. State v. Harris, supra; State v. White, 288 N.C. 44, 215 S.E.2d 557 (1975); State v. Bailey, 254 N.C. 380, 119 S.E.2d 165 (1961). Since an instruction to carefully scrutinize an accomplice's testimony is a subordinate feature of the trial, the trial judge is not required to so charge in the absence of a timely request for the instruction. State v. Vick, 287 N.C. 37, 213 S.E.2d 335 (1975); State v. Roux, 266 N.C. 555, 146 S.E.2d 654 (1966); State v. Reddick, 222 N.C. 520, 23 S.E.2d 909 (1943). But when a defendant makes a request in writing and before argument to the jury for an instruction on accomplice testimony, the court should give such instruction. State v. White, supra. And once the judge undertakes to instruct the jury on such subordinate issue it must do so accurately and completely. State v. Eakins, 292 N.C. 445, 233 S.E.2d 387 (1977); State v. Hale, 231 N.C. 412, 57 S.E.2d 322 (1950). The court, however, is not required to give the requested instruction in the exact language of the request, but is only required to give such instruction in substance. State v. Spicer, 285 N.C. 274, 204 S.E.2d 641 (1974); State v. Hooker, 243 N.C. 429, 90 S.E.2d 690 (1956); State v. Pennell, 232 N.C. 573, 61 S.E.2d 593 (1950).

In present case, concerning Clark, the trial judge instructed the jury:

"Now, as to the witness Clark, I instruct you that he is in Law what is known as an accomplice. And our Court has said that a person may be convicted on the unsupported testimony of an accomplice, if that testimony is believed by the Jury. However, in considering the weight and credibility you will give to the testimony of Clark, I instruct you that you should carefully examine his testimony for the purpose of determining what weight and credibility it deserves. You should scrutinize it with care, all to the end that you will determine whether he is truthful or not, because in Law, an accomplice does have an interest and bias in the case and in what your verdict will be.

"So, Members of the Jury, it's dangerous to convict upon the testimony of an accomplice but if you find that he is truthful, then you may, if you are satisfied from the evidence and beyond a reasonable doubt, convict upon his unsupported testimony."

The instruction as given by the trial judge is substantially in accord with the request made by the defendant Jaynes and is in accord with instructions on accomplice testimony approved by this Court in State v. Willard, 293 N.C. 394, 238 S.E.2d 509 (1977), and State v. Hairston, 280 N.C. 220, 185 S.E.2d 633 (1972). This assignment of error is overruled.

On 3 May 1977 defendant Abernathy filed a pre-trial motion for discovery pursuant to G.S. 15A-903 in which he sought, among other things, the following:

"(2) Written or recorded statements by any witness implicating this defendant in any of the crimes for which he is charged. . . .

(7) Copies of any written statements made by any witness intended to be used by the State.

(8) Names and addresses of all witnesses intended to be used by the State."

On 17 May 1977 defendant Jaynes filed a similar motion requesting, in pertinent part, the following:

"(4) Any documents, photographs, tangible objects, or other items enumerated in G.S. 15A-903(d) which are within the possession, custody or control of the State and are to be used as evidence at trial, or were obtained from or belonged to the defendant, including any physical evidence whatsoever found at the scene of the alleged crime;

(7) Any information, materials, or evidence which may be favorable to the accused or exculpatory in nature. Giles v. Maryland, 386 U.S. 66 (87 S.Ct. 793, 17 L.Ed.2d 737) (1967); Brady v. Maryland, 373 U.S. 83 (83 S.Ct. 1194, 10 L.Ed.2d 215) (1963)."

In response to these motions, the district attorney filed a motion for protective order together with supporting affidavits pursuant to G.S. 15A-908 requesting that defendants' motions be denied. On 31 May 1977, after considering the above motions and record and after hearing arguments of counsel for defendants, the court entered an order granting defendants' motions for discovery in part, but denying each of the items set out above. Defendants did not renew their requests for the above requested information at their trial on 6 June nor did they seek to exclude or otherwise try to limit the testimony of the State's witness Clark or make any other motion relative thereto at trial.

The State's witness, Clark, did not make a written or recorded statement to anyone...

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