State v. Stanley
| Decision Date | 06 March 1984 |
| Docket Number | No. 209A83,209A83 |
| Citation | 310 N.C. 353,312 S.E.2d 482 |
| Court | North Carolina Supreme Court |
| Parties | STATE of North Carolina v. Rembert Wayne STANLEY. |
Rufus L. Edmisten, Atty. Gen. by Daniel C. Oakley, Special Deputy Atty. Gen., Raleigh, for the state.
Steven E. Philo and David C. Spivey, Franklin, for defendant.
Attorneys for the defendant have raised seventeen issues on appeal, based on twenty-two assignments of error. We have examined the entire record on appeal. For reasons which follow, we find that this defendant received a fair trial, free of prejudicial error.
In this opinion, assignments of error will be grouped together where clarity dictates; further facts in the case will be related as relevant issues are considered.
Defendant's first two assignments of error concern the following decision and comments by Judge Thornburg immediately after the jury had been impaneled, just prior to the calling of the first witness:
Defendant argues that the trial judge "singled out the State for a special privilege," in violation of N.C.G.S. 15A-1225, when he permitted two of the state's corroborating witnesses who later testified to remain in the courtroom during Christy Deal's testimony, while excluding one of defendant's chief witnesses who also later testified. Furthermore, defendant argues, it was error for the trial judge to comment in the presence of the jury that the two witnesses for the state were "law enforcement officers ... instrumental in the preparation of the case." This comment improperly bolstered the later testimony of these witnesses and also gave more credence to the child's testimony, prejudicing the defendant, in violation of N.C.G.S. 15A-1222 and -1232.
We find each of these contentions to be meritless.
With respect to the sequestration of witnesses at this trial, the pertinent statute provides:
Upon motion of a party the judge may order all or some of the witnesses other than the defendant to remain outside of the courtroom until called to testify, except when a minor child is called as a witness the parent or guardian may be present while the child is testifying even though his parent or guardian is to be called subsequently.
N.C.Gen.Stat. § 15A-1225 (1983) (emphasis added). It is well settled that this practice is discretionary with the judge and is not a matter of right. State v. Mason, 295 N.C. 584, 248 S.E.2d 241 (1978), cert. denied, 440 U.S. 984, 99 S.Ct. 1797, 60 L.Ed.2d 246 (1979); State v. Cross, 293 N.C. 296, 237 S.E.2d 734 (1977); State v. Taylor, 280 N.C. 273, 185 S.E.2d 677 (1972); 1 Brandis on North Carolina Evidence § 20 (1982). A ruling on this matter is therefore not reviewable on appeal absent a showing of an abuse of discretion. State v. Woods, 307 N.C. 213, 297 S.E.2d 574 (1982); State v. Royal, 300 N.C. 515, 268 S.E.2d 517 (1980); State v. Mason, supra.
Defendant has neither argued nor shown abuse of discretion by the trial court, nor do we find it from the record. The statute allows the trial judge to exclude "all or some" of the witnesses. We find no error in the trial court's decision to permit Wanda Cook, Macon County Department of Social Services worker, and juvenile officer Gene Ledford to remain in the courtroom during the testimony of Christy Deal.
That the trial judge made the ruling on his own motion, rather than upon motion of counsel, is of no moment. The trial judge has this discretionary power in the absence of the statute. Lee v. Thornton, 174 N.C. 288, 93 S.E. 788 (1917) (). 1 The judge's power to control the progress and, within the limits of the adversary system, the shape of the trial has long included the broad power to sequester witness before, during, and after their testimony. Geders v. United States, 425 U.S. 80, 96 S.Ct. 1330, 47 L.Ed.2d 592 (1976); Holder v. United States, 150 U.S. 91, 14 S.Ct. 10, 37 L.Ed. 1010 (1893).
With regard to the propriety of the trial judge's references to the witnesses excused from the sequestration, we note that the one objection made at trial to the court's order went clearly and solely to the decision to allow Cook and Ledford to remain in the courtroom. No objection was made to the court's subsequent explanatory comments. The alleged impropriety should have been brought to the judge's attention at trial. "He who would save his rights must be reasonably prompt and diligent in asserting them." State v. Randall, 170 N.C. 757, 762, 87 S.E. 227, 229 (1915). Defendant has waived his right to challenge these remarks on appeal. State v. Jones, 303 N.C. 500, 279 S.E.2d 835 (1981); State v. Monk, 291 N.C. 37, 229 S.E.2d 163 (1976); State v. McAllister, 287 N.C. 178, 214 S.E.2d 75 (1975). Furthermore, defendant has failed to argue or demonstrate any prejudice. State v. Jones, 278 N.C. 259, 179 S.E.2d 433 (1971); N.C.Gen.Stat. § 15A-1443(a) (1983).
Defendant's third and fourth assignments of error are concerned with the trial testimony of Christy Marie Deal. At the time of this trial, the child was six years old. A series of introductory questions and answers about details of her schooling, living arrangment, and persons to whom she had spoken about this case showed that this witness understood questions put to her and could answer these questions. Defendant argues that having established her ability to so testify, there was no further justification for the leading questions then addressed to this witness. Direct evidence of defendant's criminal activity was provided by this sole witness, argues defendant, by way of improper leading questions which were used to establish the essential elements of the crime for which he was charged.
Examples of the challenged testimony follow:
Q. What did Rembert say to you?
A. He told me to go get my clothes off.
....
Q. Did you take your clothes off?
A. Yeah.
Q. And where did you go?
A. I went in Mama's room.
Q. How was Rembert dressed at that time, Christy?
A. Just a T-shirt and he didn't have on no more clothes on.
Q. When you went into the bedroom, where did you go in the bedroom, Christy?
A. I got in the bed.
....
Q. How were you laying?
A. I was laying on my back.
Q. Now, Christy, what happened at that time?
A. He put his thing in my--he put his thing way up in my pee.
Q. Now, what is your pee, Christy?
A. In front.
Q. Christy, would you step down, please?
A. (Witness complies.)
Q. Right here. Now, when you refer to your pee, Christy, what--would you point out with your hand what you mean?
A. (Indicating.) My pee hole.
Q. When he did that, Christy, did it hurt?
A. Yeah.
Q. When you say his thing, Christy, what do you mean?
A. His thing what he pees through.
....
Q. After that was over, Christy, what did Rembert tell you?
A. He told me to go in the bathroom to wipe the blood off, and so I got a wash rag to wipe the blood off. And so he brought my clothes to me and he told me to get a napkin so I wouldn't get any blood on my panties.
....
Q. Now, Christy, where was your mother during this time?
A. At work.
.... Q. Before you went outside, Christy, did Rembert tell you anything else?
A. He told me not to tell anybody or he'd do it again.
....
Q. Christy, has Rembert ever done this thing to you before?
A. Yeah.
A leading question is generally defined as one which suggests the desired response and may frequently be answered yes or no. State v. Britt, 291 N.C. 528, 231 S.E.2d 644 (1977); State v. Greene, 285 N.C. 482, 206 S.E.2d 229 (1974); 1 Brandis, supra, § 31. We note that, by definition, the question must suggest the proper response; it is not leading simply because it may be answered yes or no. State v. Britt, supra; State v. Watkins, 283 N.C. 504, 196 S.E.2d 750 (1973). Examining the direct testimony of Christy Deal in its entirety, we find that in virtually no instance did the questioner suggest the proper response.
We note, furthermore--and defendant concedes--that questions which are clearly leading are often necessary and permitted on direct examination when the witness "has difficulty in understanding the question because of immaturity, age, infirmity or ignorance or where ... the inquiry is into a subject of delicate nature such as sexual matters." State v. Greene, supra, 285 N.C. at 492, 206 S.E.2d at 236. Here the trial judge was concerned with a six-year-old child as a prosecuting witness and with unnatural sexual acts. In any event, rulings by the trial court on the use of leading questions are discretionary and reversible only for abuse of discretion. State v. Smith, 290 N.C. 148, 226 S.E.2d 10, cert. denied, 429 U.S. 932, 97 S.Ct. 339, 50 L.Ed.2d 301 (1976); State v. Payne, 280 N.C. 150, 185 S.E.2d 116 (1971) ().
Defendant's assignments of error are overruled.
By his fifth assignment of error, defendant contends that the trial court erred in...
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