State v. Sidden
| Decision Date | 18 February 1986 |
| Docket Number | No. 487A84,487A84 |
| Citation | 315 N.C. 539,340 S.E.2d 340 |
| Parties | STATE of North Carolina v. Tony Mitchell SIDDEN and Anthony Ray Blankenship. |
| Court | North Carolina Supreme Court |
Lacy H. Thornburg, Atty. Gen. by Dennis P. Myers, Asst. Atty. Gen., Raleigh, for the State.
William C. Gray, Jr., Wilkesboro, for defendant Sidden.
Adam Stein, Appellate Defender by Malcolm Ray Hunter, Jr., First Asst. Appellate Defender, Raleigh, for defendant Blankenship.
The defendants jointly argue three assignments of error. Two of these assignments concern testimony by prosecution witnesses regarding Claude Johnson's reputation in the community, and the third assignment relates to testimony offered by SBI Agent Kenneth Sneed as to the reputation of George Torrealba, one of the defendants' alibi witnesses.
The defendants first argue that the trial court erred by permitting Earl Gambill to testify concerning Claude Johnson's reputation. The defendants object to Gambill's testimony on the ground that it was based upon personal opinion rather than a knowledge of Johnson's reputation.
The defendants correctly state the rule of law applicable to this issue. As this Court's recent decision in Holiday v. Cutchin, 311 N.C. 277, 280-81, 316 S.E.2d 55, 58 (1984) makes clear:
[W]hen character is only collaterally in issue, as it is when offered either to impeach or rehabilitate a witness, proof by witnesses other than the person whose character is in question may only be by evidence of reputation. State v. Taylor, 309 N.C. 570, 308 S.E.2d 302 (1983); State v. Cox, 303 N.C. 75, 277 S.E.2d 376 (1981); State v. Grundler, 251 N.C. 177, 111 S.E.2d 1 (1959), cert. denied, 362 U.S. 917, [80 S.Ct. 670, 4 L.Ed.2d 738] (1960). Unlike proof of character when character is directly in issue, proof of character to impeach or rehabilitate may not be by opinion evidence or evidence of specific acts of the person whose character is in question. See 1 Brandis on North Carolina Evidence, § 113 at 419.20 (2d ed. 1982). Where character testimony is offered to prove another person's credibility as a witness, the testimony must be limited to that person's reputation.
See also State v. Peek, 313 N.C. 266, 328 S.E.2d 249 (1985); State v. McEachern, 283 N.C. 57, 194 S.E.2d 787 (1973); State v. Hicks, 200 N.C. 539, 157 S.E. 851 (1931).
With respect to the defendants' objections to Earl Gambill's testimony, we find that the record does not support their argument that Gambill was expressing a personal opinion about Claude Johnson's character. Gambill testified on direct examination that "if anybody knows [Claude Johnson's reputation in the community], I should know it." He further testified that Johnson's general character and reputation in Hays was "good." It is true that during cross-examination by defendant Blankenship's attorney Gambill made statements to the effect that it was "immaterial" to him what others said about Claude Johnson and that he didn't "have to have nobody to give his character." When questioned by the trial judge about the basis for his testimony regarding Johnson's character, Gambill responded that it was based upon his "opinion." While taken in isolation this comment might seem to require the exclusion of Gambill's testimony as violative of the North Carolina rule prohibiting proof of character based upon personal opinion rather than reputation, 1 we note the following testimony which the defendants did not quote in their briefs. The trial court also asked Gambill whether his testimony was "based in any way upon what you say you may have heard other people say?" Gambill responded: Furthermore, Gambill testified as follows during cross-examination by defendant Sidden's counsel:
....
We think that considering Gambill's testimony in its entirety, it is plain that Gambill was familiar with Claude Johnson's reputation in the community and that his testimony as to Johnson's character was based upon this reputation. We therefore hold that the trial judge correctly overruled defendants' objection to Gambill's testimony.
By this same assignment of error, the defendants attack the reputation testimony offered by prosecution witness Thurman Holloway. Mr. Holloway testified, in pertinent part, as follows:
The defendants here argue that the trial judge erred in overruling their objections to this testimony because the proper method of qualifying character witnesses proffered to give reputation evidence was not followed. They argue that Holloway should not have been permitted to specifically describe Johnson's character traits without first stating categorically what Johnson's reputation was.
We acknowledge that the defendants' argument is technically correct. Established case law 2 provides that
when an impeaching or sustaining character witness is called, he should first be asked whether he knows the general reputation and character of the witness or party about which he proposes to testify. This is a preliminary qualifying question which should be answered yes or no. If the witness answer it in the negative, he should be stood aside without further examination. If he reply in the affirmative, thus qualifying himself to speak on the subject of general reputation and character, counsel may then ask him to state what it is. This he may do categorically, i.e., simply saying that it is good or bad, without more, or he may, of his own volition, but without suggestion from counsel offering the witness, amplify or qualify his testimony, by adding that it is good for certain virtues or bad for certain vices.
State v. Hicks, 200 N.C. 539, 540-41, 157 S.E. 851, 852 (1931). See also State v. McEachern, 283 N.C. 57, 194 S.E.2d 787 (1973); State v. Abernathy, 295 N.C. 147, 244 S.E.2d 373 (1978).
While we agree with defendants that Holloway should have been required to state that Johnson's reputation was "good" before proceeding to enumerate the character traits which accounted for Johnson's good reputation, we are convinced that no reversible error was here committed by the failure to follow this procedure. It is clear from Holloway's assessment of Johnson's character that he thought Johnson's reputation in the community was "good." Furthermore, we note that no less than 13 witnesses testified as to Johnson's "good" reputation in the Hays Community. The jury therefore heard time and again testimony of the same import as that offered by Thurman Holloway from witnesses who were, in fact, properly examined in accordance with the Hicks rule. We therefore hold that despite technical merit in defendants' contention, this assignment of error is overruled.
The defendants' next argument concerns the testimony offered by Thelma Garwood and Herbert Gambill as to Claude Johnson's good character. The basis of this assignment of error is that the trial judge erred in denying motions to strike their testimony because "neither had sufficient knowledge of Johnson's present reputation upon which to rest an opinion."
In State v. McEachern, 283 N.C. 57, 67, 194 S.E.2d 787, 794 (1973), this Court held that before a witness may testify as to another person's reputation, it must be demonstrated that "the testifying witness [has] sufficient contact with that community or society to qualify him as knowing the general reputation of the person sought to be attacked or supported."
Thelma Garwood's testimony on direct examination reveals that she was born and raised in Wilkes County and that she has known Claude Johnson "almost all of [her] life." She further stated that she knew "the general character and reputation of Claude Junior Johnson" in the Hays Community and that it was "very good." On cross-examination, defense counsel elicited from Mrs. Garwood that she had lived in Winston-Salem since 1934. She testified, however, that she "still [owns] property up there" and that she "[goes] back there quite often." Significantly, she also stated that on her frequent visits to Wilkes County she always asks about Johnson. In our estimation, this testimony established that Mrs. Garwood had "sufficient contact" with the Hays Community to afford her "an adequate basis upon which to form [an] opinion" concerning Johnson's general reputation. McEachern, 283 N.C. at 67, 194 S.E.2d at 794.
The defendants also object to the testimony of Herbert...
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