State v. Purcell
| Decision Date | 16 March 1979 |
| Docket Number | No. 83,83 |
| Citation | 296 N.C. 728,252 S.E.2d 772 |
| Court | North Carolina Supreme Court |
| Parties | STATE of North Carolina v. Gilbert PURCELL. |
Rufus L. Edmisten, Atty. Gen. by John R. B. Matthis, Sp. Deputy Atty. Gen., Raleigh, for the state.
DeMent, Redwine, Yeargan & Askew by Russell W. DeMent, Jr., Raleigh, for defendant-appellant.
Defendant contends the trial court committed prejudicial error in refusing to sustain his objections to two questions asked him on cross-examination by the prosecutor. These questions were "You have killed somebody haven't you, Mr. Purcell?" and "Well, it was known all around town that you killed somebody weren't it?" We agree with defendant that these questions, in the form in which they were asked, fall outside the scope of our rule allowing cross-examination for purposes of impeachment as to prior specific acts of degrading conduct. We therefore order that defendant receive a new trial.
For some time prior to 31 March 1975, there had been bad feelings between defendant and George Willie Carroll over defendant's alleged relationship with Carroll's estranged wife. On 31 March Carroll went to defendant's house and confronted him, using abusive language and threatening him. Defendant tried to get Carroll to leave. Carroll would not. Defendant then got up and left the room, returning with a pistol tucked in the waistband of his pants. Witnesses for the state testified that the argument continued after defendant returned, and shortly thereafter he shot and killed Carroll. They stated that there was no weapon on George Carroll's person either before or after the killing and that he made no movement indicating he was reaching for a weapon. Witnesses for defendant testified that Carroll made a movement toward the inside of his jacket just prior to the shooting. Defendant himself stated, "George Carroll reached down in his belt and at that time I spied a black handle pistol, and when he went for it I shot him." Investigating officers found a .32 caliber pistol on Carroll's body.
In the course of the prosecutor's cross-examination of defendant, the following exchanges took place:
A. I haven't never been found guilty of murder.
COURT: Overruled.
Q. I didn't ask you that?
Q. Have you ever killed anybody, Gilbert?
A. (pause)
Q. Yes or no?
A. Yes, sir.
Q. Well, it was known all around town that you killed somebody weren't it?
Q. What?
A. Sir?
Q. Did you hear my question?
A. No, I didn't.
Q. It was known all around town that you had killed somebody weren't it?
A. Yes, sir. They've said I've killed somebody. I wasn't found guilty--of I wasn't found guilty of murder.
Q. This is the second person you have killed?
A. Sir?
Q. This is the second person you have killed?
A. That is the second person I've been charged with.
Defendant has assigned as error the trial judge's overruling of his objections in each of these instances.
Defendant's character had not been put in issue. These questions were thus proper, if at all, for the purpose of impeaching defendant's credibility as a witness. There is no indication in the record that defendant was ever convicted for the act about which the prosecutor questioned him. 1 This case therefore concerns the manner in which a criminal defendant can be cross-examined for the purpose of impeaching his credibility by questions about prior bad acts that did not result in criminal convictions.
In State v. Foster, 284 N.C. 259, 200 S.E.2d 782 (1973), the prosecutor was permitted to ask a criminal defendant on cross-examination whether he had committed certain other crimes for which he had not been tried and convicted. This Court held such inquiries to be proper, stating the rule as follows, Id. at 275, 200 S.E.2d at 794:
" (Emphasis added.) (Citations omitted.)
In State v. Williams, 279 N.C. 663, 185 S.E.2d 174 (1971), defendant was being tried for armed robbery. On cross-examination he was asked whether he was under indictment in three other towns for armed robbery. This Court, speaking through Chief Justice Bobbitt, found such an inquiry improper, holding that a defendant cannot for purposes of impeachment be cross-examined as to whether he has been indicted for criminal offenses unrelated to the one for which he is standing trial. The Court went on to say, Id. at 672, 185 S.E.2d at 180:
"(F)or purposes of impeachment, a witness, including the defendant in a criminal case, may Not be cross-examined as to whether he has been Accused, either informally or by affidavit on which a warrant is issued, of a criminal offense unrelated to the case on trial, nor cross-examined as to whether he has been Arrested for such unrelated criminal offense." (Emphasis original.)
The Court in Williams concluded by distinguishing between the kinds of questions it disapproved and proper inquiries about prior bad acts used to discredit a criminal defendant's testimony, Id. at 675, 185 S.E.2d at 181 (Citations omitted.) (Emphasis original.)
Thus a criminal defendant who takes the stand may be cross-examined for purposes of impeachment concerning any prior specific acts of criminal and degrading conduct on his part. Such acts need not have resulted in a criminal conviction in order to be appropriate subjects for inquiry. The scope of inquiry about particular acts is, however, within the discretion of the trial judge, and questions concerning them must be asked in good faith. It is not permissible to inquire for purposes of impeachment as to whether a defendant has previously been arrested or indicted for or accused of some unrelated criminal or degrading act.
Here the prosecutor asked defendant, "You have killed somebody haven't you, Mr. Purcell?" We think this question was improper because it did not inquire about some identifiable specific act on defendant's part. The question does not refer to the time or the place or the victim or any of the circumstances of defendant's alleged prior misconduct. Compare, State v. Hankerson, 288 N.C. 632, 220 S.E.2d 575 (1975), Rev'd on other grounds, 432 U.S. 233, 97 S.Ct. 2339, 53 L.Ed.2d 306 (1977) (); State v. Black, 283 N.C. 344, 196 S.E.2d 225 (1973) (); State v. Mack, 282 N.C. 334, 193 S.E.2d 71 (1972) (). It is instead almost categorical in nature, as is illustrated by the way the prosecutor rephrased it: "Have you ever killed anybody, Gilbert?" We specifically disapproved of this type of question in State v. Mason, 295 N.C. 584, 248 S.E.2d 241 (1978). There defendant sought to cross-examine a witness for the prosecution by asking him, " 'Were you...
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State v. Hunt
...scope of such cross examination is limited only by the exercise of discretion, in good faith, by the trial judge. State v. Purcell, 296 N.C. 728, 252 S.E.2d 772 (1979); see, e.g., State v. Wise, 27 N.C.App. 622, 626, 219 S.E.2d 820, 822 (1975), disc. rev. denied, 289 N.C. 302, 222 S.E.2d 70......
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State v. Herbin
...Miller, 281 N.C. 70, 187 S.E.2d 729 (1972); and any specific acts of misconduct which tend to impeach his character, State v. Purcell, 296 N.C. 728, 252 S.E.2d 772 (1979), State v. McKenna, 289 N.C. 668, 224 S.E.2d 537, Death sentence vacated, 429 U.S. 912, 97 S.Ct. 301, 50 L.Ed.2d 278 (197......
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State v. Royal, 115
...State v. Herbin, 298 N.C. 441, 259 S.E.2d 263 (1979); State v. Mayhand, 298 N.C. 418, 259 S.E.2d 231 (1979); State v. Purcell, 296 N.C. 728, 252 S.E.2d 772 (1979). Such questions are permissible provided that they are asked in good faith. State v. Herbin, supra; State v. Williams, 279 N.C. ......
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State v. Shane
...and ambiguity of the prosecutor's questions, see infra, practically forced defendant to answer in such terms. In State v. Purcell, 296 N.C. 728, 733, 252 S.E.2d 772, 775 (1979), this Court disapproved of a question which essentially requested the defendant to repeat informal accusations of ......