State v. Cook

• Decision Date: 15 March 1972
• Docket Number: No. 11,11
• Citation: 187 S.E.2d 104,280 N.C. 642
• Parties: STATE of North Carolina v. Leroy COOK.
• Court: North Carolina Supreme Court

Page 104

187 S.E.2d 104

280 N.C. 642

STATE of North Carolina v. Leroy COOK.

No. 11.

Supreme Court of North Carolina.

March 15, 1972.

Atty. Gen. Robert Morgan and Asst. Atty. Gen. Sidney S. Eagles, Jr., for the State.

Gudger, Erwin & Crow by James P. Erwin, Jr., Asheville, for defendant.

LAKE, Justice.

The defendant assigns as error the sustaining of challenges for cause by the State to nine prospective jurors. Each of the prospective jurors so excused stated on voir dire that he or she would not, under any circumstances, regardless of the evidence, consider joining in a verdict as a result of which the death penalty would be imposed, but would vote automatically against such a verdict. In these rulings by the trial court, there was no error. They were not in violation of the decision of the Supreme Court of the United States in Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776. We have so held, since the Witherspoon decision was announced, in cases wherein the verdict of the jury, so selected, resulted in the imposition of the death penalty. State v. Atkinson, 275 N.C. 288, 303--308, 167 S.E.2d 241; State v. Sanders, 276 N.C. 598, 174 A.E.2d 487. While in both of these cases the judgment was reversed by the Supreme Court of the United States, insofar as it imposed the death penalty, such reversal was on a different ground and our view as to the validity of the selection of the jury was not mentioned. Where, as here, the verdict actually rendered by the jury so selected does not result in the imposition of the death penalty, the decision in Witherspoon v. Illinois, supra, has no application. Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797; State v. Dickens, 278 N.C. 537, 548, 180 S.E.2d 844; State v. Williams, 275 N.C. 77, 86, 165 S.E.2d 481; State v. Peele, 274 N.C. 106, 113--114, 161 S.E.2d 568. There is nothing to be gained in rethereshing this old straw.

The defendant next assigns as error the refusal of the trial judge to rule, prior to trial, upon the defendant's motion that, if he should elect to take the witness stand and testify, the State be denied the right to cross-examine him concerning his prior convictions for other sex crimes. The defendant's motion recited, 'that among the charges and convictions appearing on the defendant's record are charges and convictions involving sex crimes similar in nature to the crime with which the defendant is charged in this action.' His contention is that to permit the State, on cross-examination, to inquire into these offenses for the purpose of impeaching this credibility as a witness would be highly prejudicial and so, impermissible. The trial judge stated that he would not pass on the motion at that time; i.e., prior to trial. The defendant did not take the stand and, consequently, no evidence of his prior convictions on these or other offenses was introduced.

It is well established in this State that when the defendant in a criminal action becomes a witness in his own behalf, he is subject to cross-examination like any other witness and, for the purpose of impeachment may be asked about his prior convictions, including those for offenses similar to that for which he is presently on trial. State v. Brown, 266 N.C. 55, 58, 145 S.E.2d 297 (no longer a correct statement of the law as to questions concerning previous indictments as distinguished from previous convictions); Stansbury, North Carolina Evidence, 2d Ed., §§ 38 and 112. Since, had the defendant taken the stand as a witness in his own behalf, cross-examination of the type in question would have been competent, the failure of the court to grant his motion prior to the commencement of the trial does not afford basis for granting him a new trial.

The defendant next assigns as error the ruling by the trial court, following an examination of Tanya Denise Jeffries, that the child was competent to testify, notwithstanding her tender age. Here, too, the law of this State is well settled contrary to the defendant's position. The determination of the competency of a child to testify is a matter resting in the sound discretion of the trial judge. State v. Turner, 268 N.C. 225, 230, 150 S.E.2d 406, 410, is directly in point with reference to the competency of an eight-year-old child to testify in a case of this nature. There, we said:

'There was no error in holding that the little girl who was the alleged victim of these offenses was a competent witness. Artesani v. Gritton, 252 N.C. 463, 113 S.E.2d 895; State v. Merritt, 236 N.C. 363, 72 S.E.2d 754; State v. Gibson, 221 N.C. 252, 20 S.E.2d 51; Wigmore on Evidence, 3rd ed., § 505. There is no age below which one is incompetent, as a matter of law, to testify. The test of competency is the capacity of the proposed witness to understand and to relate under the obligation of an oath facts which will assist the jury in determining the truth of the matters as to which it is called upon to decide. This is a matter which rests in the sound discretion of the trial judge in the light of his examination and observation of the particular witness. In the present case, the child was examined with reference to her intelligence, understanding and religious beliefs concerning the telling of a falsehood, all of which took place out of the presence of the jury. The record indicates that she was alert, intelligent and fully aware of the necessity for telling the truth.'

In the present case, as in State v. Turner, supra, there is nothing in the record to indicate an abuse of discretion in permitting the child to testify.

Likewise, there was no error in granting the defendant's motion that the witnesses for the State be sequestered, with the exception of permitting the child's mother to remain in the courtroom while the child testified. The sequestration of witnesses is not a matter of right but is discretionary with the trial judge. State v. Yoes and Hale v. State, 271 N.C. 616, 641, 157 S.E.2d 386; State v. Manuel, 64 N.C. 601; Stansbury, North Carolina Evidence, 2d Ed., § 20. It was clearly not an abuse of discretion to permit the mother of an eight-year-old witness to remain in the courtroom while the child testified so as to give the child the comfort of her mother's presence in strange and, at best, frightening circumstances to a little girl testifying in a case of this nature.

There is likewise no merit in the contention that permitting the in-court identification of the defendant by the child was error. There was nothing improper in permitting the little witness to step down from the witness chair and walk over to the defendant and, by placing her hand on his shoulder, identify him positively as her assailant. The child had previously testified that the defendant, whom she thereupon indicated in a manner not disclosed by the record, looked just like her assailant. To this testimony there was no objection. The touching of the defendant by the witness simply removed any possibility of doubt as to the man she was identifying as the assailant.

There was no reference to the little girl's...