State v. Chapman

• Decision Date: 07 March 1978
• Docket Number: No. 69,69
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Billy Joe CHAPMAN.

Page 667

241 S.E.2d 667

294 N.C. 407

STATE of North Carolina v. Billy Joe CHAPMAN.

No. 69.

Supreme Court of North Carolina.

March 7, 1978.

Rufus L. Edmisten, Atty. Gen., William A. Raney, Jr., Asst. Atty. Gen., and Jo Anne Sanford Routh, Associate Atty., Raleigh, for the State.

Childers & Fowler, Max L. Childers and Roberts, Caldwell & Planer, Joseph B. Roberts, Mount Holly, for defendant appellant.

SHARP, Chief Justice.

Defendant brings to this Court nine of his original 15 assignments of error, to wit, Nos. 2-5 and 10-14. After a careful consideration of the record and briefs we have concluded that it would be a labor in vain to discuss in detail all of these assignments, for none discloses prejudicial error. The majority, therefore, will receive summary treatment.

The background of assignment No. 2 is this:

On direct examination Mauney testified that on the evening of 13 June 1974, while he, his wife and a neighbor, Mrs. W. S. Hyde, were sitting on the front porch and steps of his residence, defendant stopped his truck in front of the house and began shooting. When asked, "Could you describe how you saw him shoot?" Mauney replied, "He put the weapon out beside the rear view mirror, and began shooting, and I told my wife and my neighbor, I said, that's Bill Chapman. He's going to kill us. Get in the house."

Defendant's motion to strike Mauney's entire answer was denied. Defendant now argues that the statement, "That's Bill Chapman. He's going to kill us," was unresponsive to the question and constituted an impermissible expression of opinion by the witness on a material fact. This assignment is devoid of merit for the following reasons: (1) Counsel's motion to strike was general. He did not single out the allegedly objectionable portion. State v. Pope, 287 N.C. 505, 215 S.E.2d 139 (1975). (2) After Mauney had testified, Mrs. Hyde took the stand and, without objection, gave essentially the same account of the shooting, repeating almost verbatim Mauney's spontaneous declaration of defendant's intent. State v. Greene, 285 N.C. 482, 206 S.E.2d 229 (1974). (3) The challenged statement was admissible both as a spontaneous declaration and as a part of the res gestae. State v. Covington, 290 N.C. 313, 226 S.E.2d 629 (1976); State v. Feaganes, 272 N.C. 246, 158 S.E.2d 89 (1967).

Assignment No. 4 parallels No. 2. Mauney was allowed to testify over objection that after defendant had left the scene of the shooting he saw Mrs. Chapman sitting in her car. She called to him, "Uncle Robert, have you seen Bill? He's mad as hell and on his way up here to kill you." Mauney's response was, "He's just tried it, but he didn't get it done."

The trial judge denied defendant's motion to strike the statement "he's on the way up here to kill you." If error was committed by the admission of Mrs. Chapman's statement to Mauney, it was cured shortly thereafter when Mrs. W. S. Hyde, without objection, repeated Mauney's testimony as quoted above ipsissimis verbis. State v. Greene, supra ; 4 Strong's North Carolina Index 3d, Criminal Law § 169.3.

Assignment No. 5 challenges the admission of Mauney's testimony that after the shooting his wife said to him, "Call the Doctor." That this statement is hearsay cannot be doubted, but it is also clear that its admission could not have possibly influenced the jury's verdict. Assignment No. 11 is equally trifling. Mr. W. S. Hyde, a witness for the State, testified that before Mrs. Chapman left the scene of the shooting he heard Mrs. Mauney say to her, "Honey, you're wrong about that." From the record, what Mrs. Mauney's niece was "wrong about" is so obscure it could not be held prejudicial error.

In assignment No. 13 defendant asserts that the trial judge, after having permitted the prosecuting witness to repeat hearsay statements made by his wife, erred in sustaining the State's objection to questions intended to elicit similar hearsay from defendant. The proffered testimony related to statements Mrs. Mauney made to defendant at Lake Norman in October 1972 when she came to warn the Chapmans "to go out on the pier" because Mauney "was mad and had his pistol." Manifestly, the judge's ruling was correct, and his exclusion of incompetent hearsay upon the State's objection would not render prejudicial the harmless error of other rulings. The judge was not required to balance the scales with an equal number of hearsay statements made by the wives of the prosecuting witness and the defendant.

Defendant's assignment of error No. 3 relates to the failure of the trial judge to rule on six of the objections which defendant made during the trial. Defendant correctly asserts that "the parties are entitled, as a matter of right, to have the judge definitely decide all questions relating to the admissibility of evidence, and to admit or reject it accordingly." State v. Whitener, 191 N.C. 659, 662, 132 S.E. 603, 604 (1926). Indubitably, there are times when this obligation will appear onerous to a trial judge exasperated by too many seemingly meritless objections. Nonetheless, "counsel is entitled to an explicit ruling on each objection interposed." State v. Staley, 292 N.C. 160, 167, 232 S.E.2d 680, 685 (1977); State v. Lynch, 279 N.C. 1, 181 S.E.2d 561 (1971).

A trial judge's failure to rule upon an objection is not only error; it is an abdication of the judicial function. In the context of this case, however, we are convinced that the error was harmless. Defendant's objections had little, if any, merit. True, in both Staley and Lynch, supra, the Court reversed the defendants' convictions despite the lack of merit in the ignored objections. However, in both of those cases the trial judge's attitude and related actions, combined with the sheer number of unanswered objections, raised the reasonable inference that he had communicated to the jury an opinion that defendant was guilty as charged. By contrast, in this case, the judge's conduct of the trial and his various rulings, although not always free from error, did not amount singly or in combination, to an expression of opinion as to defendant's guilt. We perceive no possibility that the judge's failure to rule on the six objections influenced the verdict.

Assignment 10 is that the trial judge erred in refusing to allow defendant to exercise his right to put into the record the response which the prosecuting witness Mauney would have made to a question on cross-examination had he been allowed to answer.

Mauney testified on cross-examination that his pistol was loaded with "hollow tip" ammunition and that he did not have "the least idea what the effect of a hollow tip bullet is"; that he bought these hollow tip bullets from a friend. At the close of this cross-examination, counsel for defendant said, "I want to go back to one question. Why is it you put hollow tip bullets in your gun?" The State's objection was sustained, and the court refused to permit Mauney to answer for the record. Defendant's assignment No. 10 specifies this refusal as prejudicial error.

Ordinarily, counsel should be allowed to insert in the record the answer to a question to which objection has been sustained. Indeed, an exception to the action of the trial court will be worthless on appeal unless the answer is thus preserved. 1 Stansbury's N.C. Evidence § 26 (Brandis rev. 1973). We also note that the Rules of Civil Procedure specifically require the judge to preserve the offer of evidence in the record in a civil case. G.S. § 1A-1, Rule 43(c). However, where the witness has already answered the question sufficiently to demonstrate the immateriality of the inquiry, the judge's refusal to allow the preservation of the answer will not be held prejudicial error. State v. Stanfield, 292 N.C. 357, 233 S.E.2d 574 (1977); State v. McPherson, 276 N.C. 482, 172 S.E.2d 50 (1970). See State v. Willis, 285 N.C. 195, 204 S.E.2d 33 (1974); Highway Commission v. Pearce, 261 N.C. 760, 136 S.E.2d 71 (1964). In the case under consideration, the witness had already testified that he did not know the effect of hollow tip bullets; specifically, he was unaware of their greater destructiveness on striking human tissues. Moreover, whatever his answer might have been, it would have been immaterial. The witness was the victim of a shooting; not the assailant. There is not a shred of evidence to suggest that Chapman acted out of self-defense. All the evidence tends to show that Chapman's attack upon Mauney was totally without justification.

Notwithstanding our ruling here, we are constrained to say that we regard the trial judge's refusal to allow counsel to complete the record as a regrettable judicial mistake. A judge should be loath to deny an attorney his right to have the record show the answer a witness would have made when an objection to the question is sustained. In refusing such a request the judge incurs the risk (1) that the Appellate Division may not concur in his judgment that the answer would have been immaterial or was already sufficiently disclosed by the record, and (2) that he may leave with the bench and bar the impression that he acted arbitrarily.

Assignment No. 12 asserts that the trial judge erred in permitting the private prosecutor to ask two questions concerning "alleged prior criminal acts of the defendant." These questions were directed to defendant on cross-examination for the purpose of impeaching his credibility as a witness. As long as such questions are asked in good faith they are permissible. E.g., State v. Foster, 293 N.C. 674, 239 S.E.2d 449 (1977); State v. Williams, 292 N.C. 391, 233 S.E.2d 507 (1977); State v....