State v. Pearce

• Decision Date: 04 January 1979
• Docket Number: No. 96,96
• Citation: 296 N.C. 281,250 S.E.2d 640
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Jerry Douglas PEARCE.

Page 640

250 S.E.2d 640

296 N.C. 281

STATE of North Carolina v. Jerry Douglas PEARCE.

No. 96.

Supreme Court of North Carolina.

Jan. 4, 1979.

Rufus L. Edmisten, Atty. Gen. by Rudolph A. Ashton, III, Asst. Atty. Gen. and Leigh Emerson Koman, Associate Atty. Gen., Raleigh, for the State.

Carter G. Mackie, Raleigh, for defendant-appellant.

BRANCH, Justice.

Defendant contends that the trial judge's questioning of two witnesses amounted to an expression of opinion as to the credibility of the witnesses.

When the prosecuting witness expressed a reluctance to testify concerning some of the acts done by defendant, Judge Godwin inquired if she would be able to proceed if certain persons were removed from the courtroom. The witness indicated that she did not want to testify in the presence of defendant but was advised by the court that it would be necessary for defendant to be present. The judge then ordered that questioning be continued.

The other instance pointed to by this assignment of error occurred when the district attorney was questioning the witness Terrell concerning statements made to her by the prosecuting witness. The witness Terrell stated that she did not know whether she could give such testimony. At that point, the court questioned the witness as to whether she was embarrassed or whether she did not recall the statements made. Mrs. Terrell indicated that she could not remember and that she would also be embarrassed to repeat it. The court thereupon ordered that examination of the witness be continued.

It is settled that a trial judge may not, in any state of the trial, intimate any opinion which tends to discredit the accused or his cause. State v. Cousin, 292 N.C. 461, 233 S.E.2d 554 (1977); State v. Frazier, 278 N.C. 458, 180 S.E.2d 128 (1971). It is equally well recognized in this jurisdiction that in the exercise of his duty to supervise and control the course of a trial, the trial judge may interrogate a witness for the purpose of developing a relevant fact or clarifying a witness's testimony in order to ensure justice and aid the jury in their search for a verdict that speaks the truth. State v. Riddick, 291 N.C. 399, 230 S.E.2d 506 (1976); State v. Greene, 285 N.C. 482, 206 S.E.2d 229 (1974). In instant case, Judge Godwin properly questioned the witnesses Terrell and Trevathan concerning their reluctance to testify and in so doing did not express or intimate any opinion prejudicial to defendant or his case.

Defendant's assignment of error number two is as follows:

Did the court err in admitting testimony which was conclusionary and invaded the province of the jury and in failing to properly instruct about such testimony?

Under this assignment of error, defendant first argues that the use of the word "rape" by the prosecuting witness, Dr. Thomas Morton, and Officer Battle was improperly admitted because it constituted an expression of opinion which was the ultimate fact for the jury to determine.

The prosecuting witness testified that she told Dr. Morton that, "I had gotten raped." She also told Deputy Sheriff Glennon that her car "had been stolen and the guy that stole my car raped me."

Dr. Morton testified that Brenda told him that a recent acquaintance asked her to take him home, but she was directed to a secluded area "where she was raped." Defense counsel on each occasion objected to the use of the word "rape" and moved to strike.

In the recent case of State v. Goss, 293 N.C. 147, 235 S.E.2d 844, 849 (1977), this Court, speaking through Exum, J., stated:

In State v. Vinson, 287 N.C. 326, 215 S.E.2d 60 (1975), Death sentence vacated, (428 U.S. 902,) 96 S.Ct. 3204 (49 L.Ed.2d 1206) (1976), we held the use of the word "rape" by a witness did not constitute an opinion on a question of law. The same issue was presented in State v. Sneeden, 274 N.C. 498, 501, 164 S.E.2d 190, 193 (1968), where we held that the victim's statement that "defendant was in the act of raping her was merely her way of saying that he was having intercourse with her. She was not expressing her opinion that she had been raped. Rather, she was stating in shorthand fashion her version of the events . . .." Joyce Johnson testified, "When I say he started raping me, I mean he got on top of me and he started having sexual intercourse with me and I begged him to leave me alone and to get off." She also testified that "on both of these occasions he penetrated me." Her use of the term "rape" was clearly a convenient shorthand term, amply defined by the balance of her testimony. This assignment is overruled.

By his fourth assignment of error, defendant claims the court erred in allowing the repetition by witness Barry Wood of Joyce Johnson's pre-trial statement in corroboration of her trial testimony on grounds that the statement contained hearsay and conclusory declarations. Defendant's objections to the use of the word "rape" in this statement we have already answered. . . .

In the case Sub judice, the word "rape" was used by the prosecuting witness upon a background of testimony in which she had made a detailed statement of the actual assault upon her. The use of the word "rape" was obviously a "shorthand statement" of the assault which she had previously described in detail. Also, as in Goss, testimony by Dr. Morton which included use of the word "rape" was properly admitted since it was offered purely for the purpose of corroborating the prosecuting witness's trial testimony.

We turn to defendant's contention that the failure of the trial judge to strike the testimony of Officer Battle was prejudicial error. Officer Battle testified that, "I was requested by Deputy Smith to process the vehicle in reference to a larceny of auto and also in reference to a rape that probably occurred in the vehicle."

This testimony is not subject to the objection that it was hearsay. It was not offered to prove the truth of the matter stated but merely to show why the officer examined the automobile. State v. Caddell, 287 N.C. 266, 215 S.E.2d 348 (1975). Further, this testimony could not have prejudiced defendant for it in no way connected defendant with the charged crime. Finally, under this assignment of error, we consider defendant's argument that the following testimony was unresponsive and constituted an impermissible expression of opinion. After the prosecuting witness had testified fully concerning the act of rape, she testified concerning what occurred after the alleged rape:

I had my clothes on then and he told me to take my pants off and pull my pants down, not all the way off, but pull them down and I hesitated and he told me not to hesitate.

Q. Do you recall exactly how he said it?

A. No, sir, I just I felt the harm was already done.

MR. MACKIE: OBJECTION, motion to strike.

A. Well it was.

MR. MACKIE: OBJECT to that specifically.

COURT: OVERRULED, OVERRULED: motion is denied.

This evidence was admissible testimony of the witness's state of mind at that particular time. McRae v. Malloy, 93 N.C. 154 (1885). Since the answer was relevant and admissible, no prejudice could result to defendant merely because it was unresponsive. State v. Ferguson, 280 N.C. 95, 185 S.E.2d 119 (1971).

This assignment of error is overruled.

Defendant next contends that the trial court erred in admitting " self-corroborating" testimony of the prosecuting witness and in failing to immediately instruct the jury about such evidence. During direct examination of the prosecuting witness, the district attorney asked if she had given a statement to a deputy sheriff and indicated that such testimony would be offered for purposes of corroboration. Judge Godwin ruled that the witness was not permitted to corroborate herself. After a recess, the district attorney asked the witness what she had told the deputy, and she was allowed to respond over defendant's objection. It is competent for a witness to corroborate herself by testifying that she had made a statement to another person. State v. Lentz, 270 N.C. 122, 153 S.E.2d 864 (1967), Cert. denied, 389 U.S. 866, 88 S.Ct. 133, 19 L.Ed.2d 139. The later admission of this testimony, at most, was repetitive, and we discern no resulting prejudice. Furthermore, where, as here, defendant does not specifically request an instruction restricting the purpose of corroborative evidence, its admission is not assignable as error. State v. Bryant, 282 N.C. 92, 191 S.E.2d 745 (1972), Cert. denied, 410 U.S. 958, 93 S.Ct. 1432, 35 L.Ed.2d 691; Cert. denied, 410 U.S. 987, 93 S.Ct. 1516, 36 L.Ed.2d 184.

Defendant contends that the trial court erred in denying defendant's motion for mistrial after the appearance and short testimony of an "unexplained" witness. The prosecuting witness had testified that defendant did not call her by her name, Brenda, on the night in question, but rather called her Barbara. Thereafter, the district attorney informed Judge Godwin and defendant's attorney, in the jury's absence, that he intended to call Barbara Pearce as a witness. Upon learning that the proposed witness would testify about an alleged assault upon her by defendant, Judge Godwin indicated that he would not allow such testimony. Later, in the trial, Barbara Pearce was called as a witness, and the following exchange took place:

DIRECT EXAMINATION by Mr. Dombalis:

Q. Would you tell the court your name please?

A. Barbara Louise Pearce.

Q. How old are you Barbara?

A. Eighteen years old.

Q. How old were you on March 11, 1977?

A. Eighteen years old.

Q. Do you know the defendant, Jerry Pearce?

MR. MACKIE: Now I OBJECT. . . .

At this point, it was brought to the court's attention that this witness was the subject of the earlier conference. The jury was excused, the witness was allowed to testify on voir dire, and the trial court ruled that the evidence would not be admitted. Defendant then made a motion for mistrial based on possible speculation in which the jury might engage concerning the identity of the witness. The motion...