State v. Black
Decision Date | 09 May 1973 |
Docket Number | No. 65,65 |
Citation | 196 S.E.2d 225,283 N.C. 344 |
Court | North Carolina Supreme Court |
Parties | STATE of North Carolina v. Bobby Ray BLACK. |
Frank Patton Cooke, Gastonia, for defendant-appellant.
Defendant brings forward two assignments of error. The first raises the question whether the trial judge committed prejudicial error in permitting the solicitor, over the defendant's objections and motions for mistrial, to propound questions to the defendant relating to his alleged assaults on other persons on other occasions not related to this case.
This assignment is based upon the following questions asked by Solicitor Morris while cross-examining defendant:
'Q. And you didn't tell Bill Wilson you had a pistol loaded back there did you?
A. No.
Q. You stayed in his business a couple of hours with that pistol, didn't you?
A. No.
Q. And you went there to kill him?
A. No.
Q. Just like Ross Brackett--you cut him . . .
. . . from ear to ear, didn't you?
A. No, sir.
Q. Do you deny that on December 16, 1951, you took a pocket knife and cut Ross Brackett?
JURY IN
Q. I'll ask you again, didn't you on December 16, 1951, cut Ross Brackett with a knife in a violent manner?
A. I jobbed him. He had me down on the floor--there was three of them had me down and I stuck it right in there and that was it.
MOTION FOR MISTRIAL; DENIED.
Q. I'll ask you if you didn't beat Mr. Ted Brady of 29 Maple Street in Banlo down to the floor?
OBJECTION AND MOTION FOR MISTRIAL; OVERRULED.
A. No, sir. I don't know anything about that.
Q. I'll ask you if you place of business out on West Franklin Boulevard is not next to Ellis-Bowen Carpet Company?
A. Yes, it is.
Q. And I'll ask you if the two people that run that are not Don Ellis and Bobby Bowen?
A. Yes, it is.
Q. I'll ask you if within the last month you haven't been over there with them and threatened to put a cap in them?
OBJECTION SUSTAINED.
A. No, I haven't.
MOTION FOR MISTRIAL: DENIED; EXCEPTION.'
Defendant contends that the questions asked were more in the nature of testimony and arguments, were designed solely to paint the defendant as the agressor and to damage his character by insinuation, and that such questions under State v. Phillips, 240 N.C. 516, 82 S.E.2d 762 (1954), were improper. In Phillips the solicitor asked seventeen questions insinuating various wrongdoings of the defendant. Objections to only three questions were sustained, and the defendant answered the remaining fourteen. Furthermore, while the solicitor was asking the defendant in that case question pertaining to his service as a policeman in Lowell, counsel for the defense appealed to the presiding judge to protect their client against the cross-examination on the ground that it was tantamount to the solicitor's testifying. The solicitor made this instant retort in the presence of the jury: Under these circumstances this Court held that the solicitor had violated the rules of practice governing cross-examination to such an extent as to deprive the defendant of a fair trial.
The present case is factually distinguishable from Phillips. Here the solicitor's questions relate to only three occurrences. The first related to defendant's cutting Ross Brackett with a knife. Defendant answered this question to the effect that he did indeed stab Ross Brackett and then gave his version as to how and why he did so. The next referred to the fact that defendant beat Ted Brady. Defendant denied that he knew anything about this. The last instance referred to threats to someone at Ellis-Bowen Carpet Company. The court sustained defendant's objection to this question, but after the objection was sustained defendant voluntarily answered that he had not threatened anyone. Thus, one question was answered in the affirmative, and the other two were answered in the negative. These questions involved collateral matters. Defendant's negative answers were conclusive and rendered the questions harmless. State v. Ross, 275 N.C. 550, 169 S.E.2d 875 (1969); State v. King, 224 N.C. 329, 30 S.E.2d 230 (1944); 7 Strong, N.C.Index 2d, Witnesses § 8, p. 701 et seq.
It is permissible for the purpose of impeachment to cross-examine a defendant in a criminal case by asking disparaging questions concerning collateral matters relating to his criminal and degrading conduct, since such questions related to matters within the knowledge of the witness. Such questions may cover a wide range and are permissible within the discretion of the court. State v. Mack, 282 N.C. 334, 193 S.E.2d 71 (1972); State v. Williams, 279 N.C. 663, 185 S.E.2d 174 (1971).
As stated by Justice Higgins in State v. Ross, supra:
Here, no prejudicial error is disclosed. This assignment is overruled.
Defendant's other assignment of error relates to a portion of the judge's charge. The presiding judge charged the jury that it could return one of three verdicts: Guilty of murder in the second degree, guilty of manslaughter, or not guilty of either offense. The judge correctly defined second degree murder and manslaughter and fully explained defendant's right of self-defense. Defendant did not object to any of the charges except the following:
Defendant contends that the presiding judge violated G.S. § 1--180 by erroneously instructing the jury that it was the defendant's contention that he was struck about the shoulder and head with a cue stick, that this produced in him a sudden passion, and before he had time to cool he pulled his gun and fired the shot. Defendant says that he made no such contention. To the contrary, he contends that immediately upon being struck by the cue stick he pulled his gun and fired, not because of anger or passion suddenly aroused but to save his own life and prevent Wilson from beating him to death or severely injuring him.
Defendant did not object to the statement of this contention at the time. Since the argument of the attorney for defendant is not brought forward in the record, we do not know that contention might have been made by defendant's attorney to the jury. Moreover, an examination of the record discloses evidence from which inferences related by the court as a contention of defendant could fairly and logically be drawn by the jury. A statement of a valid contention based on competent evidence is not error. State v. Virgil, 276 N.C. 217, 172 S.E.2d 28...
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