State v. Cox, 14

• Decision Date: 05 May 1981
• Docket Number: No. 14,14
• Citation: 303 N.C. 75,277 S.E.2d 376
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Albert COX, James Earl Covington and Graelyn R. Godfrey.

Page 376

277 S.E.2d 376

303 N.C. 75

STATE of North Carolina v. Albert COX, James Earl Covington and Graelyn R. Godfrey.

No. 14.

Supreme Court of North Carolina.

May 5, 1981.

John G. Trimpi and C. Everett Thompson, Elizabeth City, for defendants-appellants.

Atty. Gen. Rufus L. Edmisten by Sp. Deputy Atty. Gen. Charles J. Murray, Raleigh, for the State.

COPELAND, Justice.

Defendants and the State argue several assignments of error on appeal. We have carefully considered each assignment and conclude that the Court of Appeals correctly found no error which would entitle defendant Cox to a new trial on the kidnapping charge. For the reasons stated below, we reverse the Court of Appeals' decision awarding a new trial to defendants Covington and Godfrey on the kidnapping charges and reinstate the trial court's judgment on these charges. We also reverse the Court of Appeals' opinion finding no error in defendants' convictions of second degree rape, and remand to the trial court for a new trial for all three defendants on the rape charges.

By their first assignment of error, defendants contend that the Court of Appeals erred in affirming the trial court's denial of defendants' motion to strike the testimony of State's witnesses Dorothy Newby and Shirley Barnes. Dorothy Newby's testimony concerning the character of the prosecutrix and defendants' objections thereto are reported in the record as follows:

"My name is Dorothy Newby, and I am employed as resident director at Elizabeth City State University. I have been employed with the Elizabeth City State University since August of 1970. I reside in Elizabeth City at 1208 Harris Drive. In my capacity as resident director I have had an occasion to become acquainted with the young lady by the name of Angela Pettiford. I did have an occasion from time to time to see Ms. Pettiford at or about the campus during the last school year in 1978-1979.

Q. And I ask you whether or not you had an opportunity and occasion to form some opinion about the character and reputation of Angela Pettiford?

OBJECTION.

OVERRULED.

Q. You can answer the question. Did you form some opinion?

A. Yes.

Q. And was that opinion based upon the information there on the campus community, or your contact with her on campus?

A. My contact with her on campus.

Q. And what is your opinion as to the character and reputation of Angela Pettiford?

A. My opinion is that she is a very nice young lady, and has a very good character.

CROSS EXAMINATION by Mr. Rosser:

Q. Who have you heard discuss her reputation?

A. I haven't heard anyone discuss her reputation.

MR. ROSSER: Move to strike her testimony.

COURT: I didn't hear your question.

MR. ROSSER: I asked her who had she heard discuss the reputation of Angela Pettiford, and she said she had heard no one discuss it. And I move to strike the testimony as to her character, and reputation.

COURT: I am Denying your Motion."

State's witness Shirley Barnes also testified to the prosecutrix's character, and stated in pertinent part:

"From my personal observations in and about the campus community I did form an opinion satisfactory to myself as to the character and reputation of Angela Pettiford. As to what my opinion as to her character and reputation is, she is a very nice young lady.

CROSS EXAMINATION by Mr. Rosser:

Q. Have you heard anyone discuss her character and reputation prior to today?

A. No.

MR. ROSSER: Move to strike.

COURT: Denied.

It is the general rule in this jurisdiction that a witness may testify concerning a person's character only after he qualifies himself by affirmatively indicating that he is familiar with that person's general character and reputation. A witness who testifies that he does not know the general reputation of the person in question is incompetent to testify as a character witness. State v. Denny, 294 N.C. 294, 240 S.E.2d 437 (1978); State v. Stegmann, 286 N.C. 638, 213 S.E.2d 262 (1975), death sentence vacated, 428 U.S. 902, 96 S.Ct. 3203, 49 L.Ed.2d 1205 (1976); Johnson v. Massengill, 280 N.C. 376, 186 S.E.2d 168 (1972). The proper procedure for qualifying a character witness was set forth in State v. Hicks, 200 N.C. 539, 540-41, 157 S.E. 851, 852 (1931) as follows:

"The rule is, that when an impeaching or sustaining character witness is called, he should first be asked whether he knows the general reputation and character of the witness or party about which he proposes to testify. This is a preliminary qualifying question which should be answered yes or no. If the witness answer it in the negative, he should be stood aside without further examination. If he reply in the affirmative, thus qualifying himself to speak on the subject of general reputation and character, counsel may then ask him to state what it is."

It is apparent from the record that neither Dorothy Newby nor Shirley Barnes were properly qualified as character witnesses before testifying that Angela Pettiford was "a very nice young lady" of good character. Consequently, their testimony was incompetent and improperly admitted. However, we find that defendants waived their right to object to the testimony by failing to make a prompt, timely objection thereto.

It is axiomatic that an objection to or motion to strike an offer of evidence must be made as soon as the party objecting has an opportunity to discover the objectionable nature thereof. Unless prompt objection is made, the opponent will be held to have waived it. State v. Logner, 297 N.C. 539, 256 S.E.2d 166 (1979); State v. Banks, 295 N.C. 399, 245 S.E.2d 743 (1978); State v. Jones, 293 N.C. 413, 238 S.E.2d 482 (1977). In the present case, no objection was made at the time the objectionable nature of the character witnesses' testimony became apparent. Defendants first objected to the following question addressed to Dorothy Newby: "And I ask you whether or not you had an opportunity and occasion to form some opinion about the character and reputation of Angela Pettiford?" The trial court correctly overruled defendants' objection. The question appeared designed to elicit the foundation for the witness' testimony; there was no indication in the wording of the question that the witness would respond with an inadmissible statement. The objectionable nature of Ms. Newby's testimony was subsequently revealed in her statement to the effect that her opinion of Ms. Pettiford's character was based upon personal contact with Ms. Pettiford and not from a general knowledge of her reputation on the campus. At this point it became apparent that Ms. Newby was expressing her personal opinion of Ms. Pettiford's character rather than relating the general opinion held by the community. However, defendants made no objection at this time, therefore they are deemed to have waived it.

The incompetency of Ms. Barnes' testimony was revealed when she stated that from her personal observations she formed an opinion of Ms. Pettiford's character. Defendants entered no objection to this statement and allowed the witness to further state her opinion of Ms. Pettiford's good character. Again, defendants failed to make a timely objection to the evidence and therefore waived their right to contest it. Defendants' assignment of error is without merit and overruled.

Defendants argue under their second assignment that the Court of Appeals erred in upholding the trial judge's decision to overrule their objection to certain testimony given by State's witness O. L. Wise. Detective Wise, an agent for the State Bureau of Investigation, interviewed Angela Pettiford and took a written statement from her on 8 March 1979. He testified as a corroborating witness, relating in detail Ms. Pettiford's statements to him concerning the events which transpired on 3 and 4 March 1979. At the end of his lengthy testimony, Detective Wise was asked: "And at any point of time in her statement to you did she say anything different from what she testified to here?" Defendants' objection to the question was overruled, after which the witness replied, "No, sir." Defendants maintain that by permitting the witness to answer the question, the trial court allowed him to make a conclusory statement of opinion which invaded the province of the jury.

Ordinarily, opinion testimony from a lay witness is not admissible since it is the province of the jury to draw whatever inferences are warranted by the evidence presented. State v. Phifer, 290 N.C. 203, 225 S.E.2d 786 (1976), cert. denied, 429 U.S. 1123, 97 S.Ct. 1160, 51 L.Ed.2d 573 (1977). The testimony objected to in the present case, however, was not opinion testimony but Detective Wise's own personal observations after having interviewed the prosecuting witness and having heard her testimony at trial. Mr. Wise was not expressing an opinion on whether Ms. Pettiford was telling the truth, which was the issue to be decided by the jury; he was merely stating that he did not hear Ms. Pettiford make any statement at trial which was inconsistent with her written and verbal statements during a prior interview. The fact that a witness made a prior consistent statement is admissible as evidence tending to strengthen the witness' credibility. State v. Mayhand, 298 N.C. 418, 259 S.E.2d 231 (1979); State v. Medley, 295 N.C. 75, 243 S.E.2d 374 (1978); 1 Stansbury's North Carolina Evidence § 51 (Brandis Rev.1973). This evidence is admissible solely for the purpose of corroborating the witness' testimony, and not as substantive evidence. However, when a defendant fails to specifically request an instruction restricting the use of corroborative testimony, it is not error for the trial judge to admit the evidence without a limiting instruction. State v. Sauls, 291 N.C. 253, 230 S.E.2d 390 (1976), cert. denied, 431 U.S. 916, 97 S.Ct. 2178, 53 L.Ed.2d 226 (1977); State v. Sawyer, 283 N.C. 289, 196 S.E.2d 250 (1973). In the case sub judice, defendants did not request an instruction restricting the use of Detective...