State v. Royall

• Decision Date: 26 April 1972
• Docket Number: No. 7223SC167,7223SC167
• Citation: 14 N.C.App. 214,188 S.E.2d 50
• Parties: STATE of North Carolina v. Clyde ROYALL.
• Court: North Carolina Court of Appeals

Page 50

188 S.E.2d 50

14 N.C.App. 214

STATE of North Carolina v. Clyde ROYALL.

No. 7223SC167.

Court of Appeals of North Carolina.

April 26, 1972 Certiorari Denied by Supreme Court June 13, 1972.

Atty. Gen. Robert Morgan, by Asst. Atty. Gen. Charles M. Hensey, for the State.

Arnold L. Young, Sparta, and Franklin Smith, Elkin, for defendant appellant.

PARKER, Judge.

Appellant's first assignment of error, based on his first two exceptions, is that the trial judge erred in sustaining the State's objections to two questions asked on cross-examination of the arresting officer concerning statements made by defendant at the time of his arrest. On the earlier appeal of this case this Court held that defendant should be permitted to cross-examine the officer regarding such statements, 'if for no other purpose than to attempt to show that defendant talked intelligently and was in control of his mental faculties.' On the present appeal the record shows that on the retrial defendant's counsel was successful in eliciting by cross-examination considerable evidence as to such statements made by defendant. In only two instances were his inquiries in this regard limited by the trial court's sustaining objections interposed by the State. No general prohibition to this entire line of questions was imposed as had occurred on the first trial which was the subject of the first appeal to this Court. The present record does not disclose what the witness's answers would have been had he been allowed to answer the two questions as to which the State's objections were sustained on the second trial. In the absence of any answers in the record, it is impossible for an appellate court to ascertain whether defendant was prejudiced by the action of the trial court in sustaining the objections interposed by the State. State v. Bailey, 12 N.C.App. 280, 182 S.E.2d 881. In view of this fact and in view of the fact that defendant's counsel was not unduly restricted on the second trial in cross-examining as to statements made by defendant at the time of his arrest, we hold that appellant has failed to demonstrate prejudicial error in connection with his first assignment of error.

Appellant's second assignment of error is that the court erred in permitting the breathalyzer operator to express his opinion as to defendant's condition based on his observation of and conversation with the defendant apart from the results of the test. In this there was no error. The witness had ample opportunity to observe defendant and to arrive at an informed opinion as to his condition. In addition, appellant's brief contains no reason or argument and cites no authority in support of his second assignment of error, and it is taken as abandoned by him. Rule 28, Rules of Practice in the Court of Appeals.

Appellant's third, fifth and sixth assignments of error are all directed to the trial judge's actions in sustaining the State's objections to certain questions asked by defendant's counsel in cross-examining the State's witnesses. Appellant contends these questions were proper in that they were either designed to impeach the testimony of a prosecuting witness or were for the purpose of eliciting testimony germane to the case. However, 'the legitimate bounds of cross-examination are largely within the discretion of the trial judge, so that his ruling will not be held as prejudicial error absent a showing that the verdict was improperly influenced thereby.' State v. Chance, 279 N.C. 643, 654, 185 S.E.2d 227, 234. The record on the present appeal discloses that defendant's right to cross-examine the witnessess against him was not unduly restricted. His counsel did in fact vigorously cross-examine all of the State's witnesses, and nothing in the record even suggests that the verdict was in any way improperly influenced by such limitations as were imposed by the trial judge. These assigments of error are overruled.

A defense witness testified that defendant had traded horses and had ridden horseback at the witness's barn during the evening prior to his arrest. This witness testified that when defendant was riding his condition was good and that 'he was riding O.K.' Defendant's counsel then asked the witness whether one of the horses ridden by defendant was 'meaner to ride than the others.' The trial court sustained the State's objection to this question and this ruling is the subject of appellant's fourth assignment of error. In this ruling defendant suffered no prejudicial error. The witness testified that they 'completed riding horses about 10:30 or quarter to eleven, something like that.' The arresting officer testified he had observed defendant driving his truck about 12:15 a.m. and that in his opinion defendant was then under the influence of some intoxicating liquor. The opinion of defendant's witness as to the relative difficulty of riding one horse as compared with riding another at 10:30 or 10:45 o'clock hardly seems relevant in determining whether defendant was or was not under the influence of some intoxicating liquor at 12:15, some hour and a half or two hours after all horseback riding had...