State v. Mack

• Court: North Carolina Supreme Court
• Writing for the Court: HUSKINS
• Citation: State v. Mack, 282 N.C. 334, 193 S.E.2d 71 (N.C. 1972)
• Decision Date: 13 December 1972
• Docket Number: No. 62,62
• Parties: STATE of North Carolina v. Ernest MACK.

Page 71

193 S.E.2d 71

282 N.C. 334

STATE of North Carolina v. Ernest MACK.

No. 62.

Supreme Court of North Carolina.

Dec. 13, 1972.

John R. Ingle, Charlotte, for defendant appellant.

Robert Morgan, Atty. Gen., and Thomas B. Wood, Asst. Atty. Gen., for the State of North Carolina.

HUSKINS, Justice:

During the course of the trial, the presiding judge twice called the solicitor to the bench and conferred with him, following which the solicitor resumed his examination of the witness then on the stand. Defendant contends these conferences were highly suggestive to the jury and compromised the court's neutrality to the prejudice of the defendant. This constitutes defendant's first assignment of error.

What was said between the judge and solicitor is not shown by the record. Whispered conferences at the bench between the judge and the solicitor, or the judge and defense counsel, or both, are common occurrences and are often necessary to facilitate the trial and avoid delays incident to excusing the jury. Sinister motives and prejudicial consequences may not be inferentially attributed to such occurrences with nothing in the record to support the inference. This assignment is overruled without further discussion.

Janie Crawford, a defense witness, testified that she had heard the deceased threaten the life of defendant. There was no cross-examination concerning other threats, if any, she might have heard. In rebuttal, over objection and after a proper limiting instruction, Officer Starnes was permitted to testify that during his investigation he had talked with Janie Crawford shortly after the murder; that she had told him the Defendant had threatened deceased quite often in the past few weeks but had said nothing whatsoever about the Deceased having threatened the defendant. The admission of this testimony by Officer Starnes for the limited purpose of contradicting and impeaching the testimony of Janie Crawford constitutes defendant's second assignment of error.

Prior statements of a witness which are inconsistent with his present testimony are not admissible as substantive evidence because of their hearsay nature. Hubbard v. R.R., 203 N.C. 675, 166 S.E. 802 (1932); State v. Neville, 51 N.C. 423 [282 N.C. 340] (1859). Even so, such prior inconsistent statements are admissible for the purpose of impeachment. State v. Chance, 279 N.C. 643, 185 S.E.2d 227 (1971); State v. Britt, 225 N.C. 364, 34 S.E.2d 408 (1945); Stansbury, N.C.Evidence, § 46 (2d ed. 1963). Whether a foundation must be laid before a prior inconsistent statement may be shown depends on whether the prior inconsistency relates to A matter pertinent and material to the pending inquiry, or is merely Collateral. If the former, the statement may be shown by other witnesses without the necessity of first laying a foundation therefor by cross-examination. State v. Wellmon, 222 N.C. 215, 22 S.E.2d 437 (1942); State v. Carden, 209 N.C. 404, 183 S.E. 898 (1936); Jones v. Jones, 80 N.C. 246 (1879); State v. Patterson, 24 N.C. 346 (1842); Stansbury, N.C.Evidence, § 48 (2d ed. 1963). Accordingly, if Janie Crawford's prior statement to Officer Starnes that defendant had threatened the deceased when coupled with her Failure also to state that the deceased had threatened defendant was inconsistent with her in-court testimony and concerned matters pertinent and material to the inquiry, then that prior statement was properly admitted for impeachment purposes and laying a foundation therefor by cross-examination was unnecessary.

Applying the foregoing principles, we hold that Janie Crawford's in-court testimony that she had heard deceased threaten defendant was inconsistent with her earlier Failure to so state at the time she told Officer Starnes she had heard defendant threaten deceased. '. . . (I)f the former statement fails to mention a material circumstance presently testified to, which it would have been natural to mention in the prior statement, the prior statement is sufficiently inconsistent,' McCormick, Evidence, § 34 (2d ed. 1972), and is termed an Indirect inconsistency. Esderts v. Chicago Rock Island & Pacific Co., 76 Ill.App.2d 210, 222 N.E.2d 117 (1966). See also Erickson v. Erickson & Co., 212 Minn. 119, 2 N.W.2d 824 (1942). Surely Janie Crawford, a friend of defendant who lived in his home, when being questioned by officers about the relationship between defendant and deceased would naturally have related threats made by deceased against defendant as well as threats made by defendant against deceased. Therefore, her failure to tell Officer Starnes of such threats by deceased when it was natural to do so is indirectly inconsistent with her in-court testimony concerning such threats. Hence, evidence of such failure was admissible to impeach her testimony to that effect.

In the context of this record, this evidence was admissible without laying a foundation by cross-examination of Janie Crawford. Defendant, relying on his plea of self-defense, had testified that deceased had frequently threatened his life and had warned him to 'be ready.' Janie Crawford later testified that she too had heard deceased threaten defendant. Such threats, although apparently not communicated to defendant, were competent to corroborate defendant's testimony. State v. Baldwin, 155 N.C. 494, 71 S.E. 212 (1911); State v. Turpin, 77 N.C. 473 (1877). Therefore, when Janie Crawford failed to relate to Officer Starnes that she had heard deceased threaten defendant, she failed to relate a fact pertinent and material to the case under circumstances in which it would have been natural to do so. Under the rule enunciated, this failure may be shown without laying a foundation. Compare State v. Taylor, 250 N.C. 363, 108 S.E.2d 629 (1959). The evidence of Officer Starnes was properly admitted, and defendant's second assignment of error is overruled.

The State was permitted over defendant's objection to ask him on cross-examination a series of questions concerning his prior criminal conduct. Rather than asking defendant what he had been convicted of, the solicitor phrased these questions as follows: 'Directing your attention back to the year 1950, did you assault someone with a deadly weapon which resulted in serious injury?' Similar questions were propounded with respect to fourteen different offenses between 1950 and 1970. Defendant stated that he had committed five of the offenses, including sodomy, crime against nature and assault with a deadly weapon inflicting serious injury, but he denied having committed the other nine offenses. Defendant contends that cross-examination for impeachment purposes concerning criminal conduct is limited to inquiry about prior Convictions and assigns the allowance of these questions as error.

It has long been the rule that where a defendant in a criminal case testifies in his own behalf, specific acts of misconduct may be brought out on cross-examination to impeach his testimony. State v. Colson, 194 N.C. 206, 139 S.E. 230 (1927); Stansbury, N.C.Evidence § 111 (2d ed. 1963). Such 'cross examination for the purpose of impeachment Is not limited to conviction of crimes. Any act of the witness which tends to impeach his character may be inquired about or proven by cross examination.' State v. Sims, 213 N.C. 590, 197 S.E. 176 (1938).

Although a defendant may not be asked if he has been accused, arrested or indicted for a particular crime, State v. Williams, 279 N.C. 663, 185 S.E.2d 174 (1971), he may be asked if he in fact committed the crime. 'It is permissible, for purposes of impeachment, to cross-examine a witness, including the defendant in a criminal case, by asking disparaging questions concerning collateral matters relating to his criminal and degrading conduct. (Citations omitted.) Such questions relate to matters Within the knowledge of the witness, not to accusations of any kind made by others.' State v. Williams, supra. See also State v. Griffin, 201 N.C. 541, 160 S.E. 826 (1921); State v. Colson, supra. Of course, such questions must be asked in good faith, State v. Williams, supra; State v. Bell, 249 N.C. 379, 106 S.E.2d 495 (1959). When this assignment is subjected to these rules, its lack of merit is quite apparent.

Defendant's fourth assignment of error is based on the contention that the trial court did not allow him to impeach a State's witness on cross-examination by questions concerning her prior criminal conduct.

The record pertinent to this assignment reveals the following exchange among the court, defense counsel and the witness:

'Q. (by Mr. Ingle, defense counsel) In April of 1971 you were tried--

COURT: Wait just a minute. Members of the jury, you step out to your room a minute, please.

(JURY RETIRES TO JURY ROOM.)

COURT: What are you going by?

MR. INGLE: Your Honor, I am going by records I got down in the police department.

COURT: . . . Now, what did you say about your conviction?

A. (by witness) Well, this is the way it was. My husband was caught stealing and I was with him. I had not done anything, the officer said, but I was--Judge Gatling placed me on probation. He gave me six months suspended under two years probation. I got arrested again for damage to real property. I was on probation and my probation officer had it over on me and she revoked my probation and I was tried before you.

COURT: Did you appeal to this court?

A. Yes, I appealed.

COURT: What happened when you got up here?

A. They declared a mistrial, took me off probation.

COURT: Tell the clerk. He will have to get the file. What else do you want to ask her about?

MR. INGLE: I wanted to ask her about occupying a room for immoral purposes.

A. Yes, I wasn't tried for it. It was throwed out of court. Mistrial. I didn't say anything. They told me to go home. It was a mistrial.

MR. INGLE: I was going to ask you about breaching the peace on April of this year.

A. Yes, I was at home.

COURT: Were you tried and convicted of it? This is the important part....