State v. Chance

• Decision Date: 15 December 1971
• Docket Number: No. 78,78
• Citation: 185 S.E.2d 227,279 N.C. 643
• Parties: STATE of North Carolina v. Danny CHANCE.
• Court: North Carolina Supreme Court

Page 227

185 S.E.2d 227

279 N.C. 643

STATE of North Carolina v. Danny CHANCE.

No. 78.

Supreme Court of North Carolina.

Dec. 15, 1971.

Atty. Gen. Robert Morgan and Asst. Atty. Gen. Millard R. Rich, Jr., for the State.

Sol G. Cherry, Public Defender, Twelfth Judicial District, and William S. Geimer, Asst. Public Defender, for defendant.

BRANCH, Justice.

By his first assignment of error, based on Exceptions 2, 3, 4 and 5, defendant contends that the jury's selection in the present case violated the mandate of Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776.

Each of the challenged veniremen stated unequivocally that he or she would automatically vote against the imposition of capital punishment without regard to any evidence that might develop in the trial.

In Footnote 21 of Witherspoon v. Illinois, supra, it is stated:

'We repeat, however, that nothing we say today bears upon the power of a State to execute a defendant sentenced to death by a jury from which the only veniremen who were in fact excluded for cause were those who made unmistakably clear (1) That they would automatically vote against the imposition of capital punishment without regard to any evidence that might be developed at the trial of the case before them, or (2) that their attitude toward the death penalty would prevent them from making an impartial decision as to the defendant's Guilt.' (Emphasis added)

The examination which is fully set out in the record clearly shows that each of the challenged jurors would not return a verdict that would result in the imposition of the death sentence. We hold that the jury selection in the present case did not violate the mandate of Witherspoon. State v. Westbrook, 279 N.C. 18, 181 S.E.2d 572; State v. Miller, 276 N.C. 681, 174 S.E.2d 481; State v. Sanders, 276 N.C. 598, 174 S.E.2d 487; State v. Atkinson, 275 N.C. 288, 167 S.E.2d 241.

Defendant assigns as error the action of the trial judge in restricting defendant counsel's cross-examination.

Defendant's counsel asked the witness Gwen Davis:

Q. Now, Miss, did you not make a statement to Mr. Gerald Cannon (?) in Lillington, and at that time you told him that you had dated Buckner?

The trial judge sustained the State's objection.

Again on cross-examination of the witness Gwen Davis, the following occurred:

'I don't remember who was in the car when I heard something like someone hit Buckner.

Q. Is that what you testified to in the Wilcosky and Sisneros trial?

Objection by State

Court: Sustained.

EXCEPTION EXCEPTION NO. 10.'

Later, the witness Louis W. Frye was asked:

'Q. Well, didn't you say on direct examination that she said Buckner was her boyfriend?

A. She said a friend, that had brought her home.

Q. Didn't you testify to that, Mr. Frye?

Objection by State.

Court: Sustained.

EXCEPTION EXCEPTION NO. 11.'

The applicable law permits joint consideration of these several rulings.

It is true that a witness may be impeached by proof of prior inconsistent statements. State v. Britt, 225 N.C. 364, 34 S.E.2d 408. However, 'The limits of legitimate cross-examination are largely within the discretion of the trial judge, and his ruling thereon will not be held for error in the absence of showing that the verdict was improperly influenced thereby.' The above statement was quoted with approval in State v. McPherson, 276 N.C. 482, 172 S.E.2d 50.

This record does not show what the witness would have said had he or she been allowed to answer, and a denial would have been binding on the cross-examiner since the matter inquired into was obviously collateral. Stansbury, N.C. Evidence, 2d Ed., § 48, p. 96. The subject matter of the questions addressed to the witness Davis and the witness Frye did not, in itself, tend to discredit either witness. Whether Gwen Davis had 'dated' Buckner, or whether he was her friend or 'boyfriend' or who was in the car when she heard something like someone hit Buckner, all seem to be of little moment when considered in context with the facts of this case. Even conceding technical error, defendant fails to show that the verdict was improperly influenced by these rulings.

This assignment of error is overruled.

By his next assignment of error defendant contends that the trial judge erred by allowing the Solicitor to impeach his own witness, David Sisneros. This assignment of error is based on Exception No. 12, which points to the following portion of the record.

'Q. I refer to the statement marked State Exhibit 12 and ask you, would you read it to yourself, the last paragraph, on page 2 and ask you if you can refresh your recollection from that?

Attorney Cherry: I object to this. He is trying to impeach his own witness.

Court: Well, I will let him read it to himself. Then you may read it. Then I will read it. It is hard to rule on it until I do.

QUESTIONS Continued by Solicitor Thompson:

Q. From reading and refreshing your recollection from this statement--

Attorney Cherry: Objection, your Honor.

Court: Overruled.

EXCEPTION EXCEPTION NO. 12.

I now recall that Chance or Strickland told me that they had already killed him and put him in the bushes. I don't remember which one it was. Chance was present.'

State's Exhibit 12 is identified on page 67 of the record as being the statement given to a Mr. Neal by the witness Sisneros.

Stansbury, N.C. Evidence, 2d Ed., § 32, p. 62, contains the following statement:

'A witness may be compelled, at the instance of a party who is examining or cross-examining him, to inspect a writing which is present in court, if it is in his handwriting or it otherwise appears that his memory may be refreshed by reading it.'

In the case of State v. Noland, 204 N.C. 329, 168 S.E. 412, this Court, speaking through Adams, J., stated:

'* * * The witness had made an affidavit as to facts which were material, and upon his examination in this case was hesitant and evasive in his answers to questions asked him by the solicitor. The court gave the prosecuting officer leave to call the attention of the witness directly to the contents of his affidavit. The examination was not intended as an impeachment of the witness, but as an effort to refresh his memory by reference to statements he had previously made and to prevent confusion or equivocation in his testimony. The trial court in the exercise of its discretion may under such circumstances permit a party to propound leading questions to his own witness.'

The Judge correctly allowed the Solicior to refresh the recollection of this witness, and such action did not amount to an impeachment of his own witness.

Defense counsel asked witness Sisneros if his attorney, Mr. Allen Litch, did not tell him that he would probably get help on a parole if he, Sisneros, testified for the State. The trial judge sustained the State's objection.

It is recognized that it is proper on cross-examination to test a witness as to bias concerning a promise of or his just expectation of pardon or parole as the result of his testifying for the State. State v. Roberson, 215 N.C. 784, 3 S.E.2d 277. However, this rule must be applied in connection with the equally well recognized rule that the legitimate bounds of cross-examination are largely within the discretion of the trial judge, so that his ruling will not be held as prejudicial error absent a showing that the verdict was improperly influenced thereby. State v. McPherson, supra.

Here the question was directed to a conversation with defendant's attorney. There is nothing to indicate that he was in any way connected with the State so as to be able to promise or deliver parole relief. Further, defendant by his question carried to the jury the full force and implication of his contention. The trial judge's ruling was within the extent of this authority, and defendant has failed to show prejudicial error resulting from this ruling.

By Assignment of Error No. 23 defendant contends that the trial judge erred by limiting his cross-examination of the witness Sisneros. Defendant seems to concede that this ruling was made in the exercise of the trial judge's discretion. We agree that this was a discretionary ruling and that no abuse of discretion is shown. State v. McPherson, supra. This assignment of error is overruled.

Defendant next contends that the trial judge committed error by admitting into evidence photographs of the deceased Louis Buckner because they were inflammatory and served no useful purpose.

Defendant does not contend that the photographs are inaccurate, repetitious, or that they were not properly taken and authenticated.

Ordinarily, a witness may use photographs to explain or illustrate anything which it is competent for him to describe in words, State v. Atkinson, supra; State v. Gardner, 228 N.C. 567, 46 S.E.2d 824, and if a photograph is relevant and material, the fact that it is gory or gruesome will not alone render it inadmissible. State v. Atkinson, supra; State v. Lentz, 270 N.C. 122, 153 S.E.2d 864; State v. Porth, 269 N.C. 329, 153 S.E.2d 10; State v. Gardner, supra. The photographs in this case were used by the physicians to illustrate and make their testimony more intelligible to the jury. They were admitted into evidence under a proper instruction limiting their use to illustration of the witnesses' testimony. The photographs were relevant, properly authenticated, served a useful purpose, and were properly admitted into evidence and viewed by the jury.

In his charge to the jury the trial judge state, Inter alia, 'You may find the defendant, Danny Chance, guilty of rape, as charged in the bill of indictment, and if you say no more, I will sentence him to die.' Defendants accepts and assigns as error this portion of the charge.

Defense counsel in his brief states: 'It is recognized that the court considered somewhat stronger language by the same trial judge in State v. Atkinson, 278 N.C. 168, 179 S.E.2d 410, and found no error. For this reason, it would seem to be an exercise in...