State v. Henley, 132
Decision Date | 05 February 1979 |
Docket Number | No. 132,132 |
Parties | STATE of North Carolina v. Bobby Lee HENLEY. |
Court | North Carolina Supreme Court |
White & Crumpler, by Fred G. Crumpler, Jr., G. Edgar Parker, and David R. Tanis, Winston-Salem, for the defendant.
Defendant's assignments of error Nos. 2, 5, 6, 8 and 9 are deemed abandoned. Rule 28, North Carolina Rules of Appellate Procedure. This opinion is limited to a discussion of assignments of error Nos. 1, 3, 4 and 7.
By his first assignment of error defendant contends that the trial judge abused his discretionary authority by permitting the district attorney to propound leading questions to the prosecuting witness to establish the essential elements of rape.
It is well established in this jurisdiction that the trial court has discretionary authority to permit leading questions in proper instances such as when the inquiry is into a subject of delicate nature such as sexual matters, and that an appellant must show prejudice before the action of the trial court will be disturbed. State v. Manuel, 291 N.C. 705, 231 S.E.2d 588 (1977). In State v. Brunson, 287 N.C. 436, 215 S.E.2d 94 (1975) the rule was thus stated: Id. at 444, 215 S.E.2d at 99.
Defendant's exceptions Nos. 1 and 2 form the basis for this first assignment of error. Exception No. 1 discloses the following:
"Q. Well, once he entered you, what, if anything, did he do?
A. He just, well, moved around, if that's what you are saying.
Q. All right. And did he reach a climax?
DEFENDANT'S EXCEPTION NO. 1
Conceding arguendo that the question was leading it was nevertheless a permissible question. State v. Greene, 285 N.C. 482 at 492, 206 S.E.2d 229.
The question that is the subject of defendant's exception No. 2 is as follows:
Although we agree with defendant that this latter question was leading, we view it as non-prejudicial because of the witness' prior testimony. The witness had already testified that defendant pointed the pistol at her when he opened her car door, that he kept it pointed at her as she drove under his directions, and that he held the pistol in his right hand at all times. She further testified:
Defendant's first assignment of error is overruled.
Defendant's assignment of error No. 3 alleges prejudice to him, by reason of a question propounded to a State's witness by the district attorney even though the trial judge sustained defendant's objection to the question. This argument is without merit. The district attorney asked a police identification technician if, in his opinion, State's exhibit No. 1 ( ) was a likeness of the defendant. Defendant's objection was promptly sustained by the trial judge and the witness did not answer. This assignment of error is overruled.
Defendant's assignment of error No. 4 challenges the rulings of the trial judge in admitting, over objection, prior statements of Thresa to others for the purpose of corroboration. "The application of the rules regulating the reception and exclusion of corroborative testimony of this kind, so as to keep its scope and volume within reasonable bounds, is necessarily a matter which rests in large measure in the discretion of the trial court." Gibson v. Whitton, 239 N.C. 11, 17, 79 S.E.2d 196, 201 (1953). A total of eight witnesses testified as to prior statements of Thresa describing the events and her attacker. Yet defendant brings forward exceptions to the testimony of only one of these eight corroborative witnesses. In view of this situation, a well established rule comes into play. When incompetent evidence is admitted over objection, but the same evidence has theretofore or thereafter been admitted without objection, the benefit of the objection is lost. See Harvels, Inc. v. Eggleston, ...
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