State v. Stegmann, 38

Decision Date14 April 1975
Docket NumberNo. 38,38
CourtNorth Carolina Supreme Court
PartiesSTATE of North Carolina v. John Richard STEGMANN.

Kenneth A. Glusman, Fayetteville, for defendant-appellant.

James H. Carson, Jr., Atty. Gen., and James E. Magner, Jr., Asst. Atty. Gen., Raleigh, for the State of North Carolina.

HUSKINS, Justice:

The trial court admitted over objection the testimony of fourteen character witnesses offered by the State to show the good character and reputation of the prosecuting witness. Defendant's second and third assignments of error are based upon admission of this testimony. Following is a brief narration of the evidence in question.

Roger Frazee, manager of Aetna Finance Company where Mrs. Ruth Kendall had been working for fourteen months, testified that he knew her character and reputation in the community in which she lived and that it was outstanding.

Gilda Smith testified she had known Ruth Kendall for over four years, knew her character and reputation in the community in which she lived and that it was 'very good, excellent.'

Reverend Clarence L. Hopkins testified he had known Ruth Kendall for about ten years, knew her character and reputation in the community in which she lived, and that it was outstanding. When asked to state on what he based his opinion, he replied: 'As a pastor and counseling with other members of the church and their counseling with me and statements made about her and also in and out of the church I knew her.'

Major Darryl C. Judson testified he had known Ruth Kendall for about eight years, knew her character and reputation in the community in which she lived, and that it was outstanding. When requested to state the basis for his answer, he replied: 'I base this upon personal observation, talking with friends and conversation with other people and upon my own seeing what she has done on her courage and her integrity.'

Will R. Godwin testified he had known Ruth Kendall for ten or twelve years, knew her character and reputation in the community in which she lived, and that it was very good. When asked to state the basis for his testimony he replied: 'I am her Sunday School teacher and I am the director of the choir in which she sings. She is there every Wednesday night and every Sunday and I can find nothing wrong with her whatsoever. She is a very fine girl.'

Eugene Arthur Ledbetter, a soldier in the United States Army, testified he had known Ruth Kendall between ten and twelve years, knew her character and reputation in the community in which she lived, and that it was excellent. When asked to state the basis for that opinion, he replied: 'I base this on my own personal observation and discussions with other church leaders regarding positions of leadership that have been filled with the church and I know her reputation as being the finest a woman can have.'

Pansy Cain Porter testified she had known Ruth Kendall approximately twelve years, knew her character and reputation in the community in which she lived, and that it was outstanding. When asked what she based that opinion on, she replied: 'I have been knowing her approximately twelve years and personal contact. And working with her in the church and choir.'

Roy A. Parker testified that he knew Ruth Kendall; that her character and reputation in the community in which she lived was very good and that he based his opinion upon talking with his friends and neighbors in the church and in the community and as a personal observation.

Mitchell Reinburger testified that he knew the character and reputation of the prosecuting witness in the community in which she lived and that it was outstanding; that his opinion was based on his personal knowledge of her and the opinions of his friends.

Catherine Reinburger testified that she knew the character and reputation of Ruth Kendall in the community in which she lived and that it was excellent; that her opinion was based on the fact that she had known Mrs. Kendall for three and one-half years, had been involved in activities with her and her husband, and from talking with friends and acquaintances.

Ann Riggin testified that she knew the character and reputation of Ruth Kendall in the community in which she lived and that it was excellent; that her opinion was based on living in the community with her when she was growing up, going to church with her, and having Mrs. Kendall in her home at Christmas time.

Tony Cimaglia testified that he knew the general character and reputation of the prosecuting witness in the community in which she lived and that it was very good; that his opinion was based on being with Mrs. Kendall and her husband on numerous occasions and through friends in the community and from knowing her personally.

Aldan Ernest Pease testified that he knew the character and reputation of Mrs. Kendall in the community in which she lived and that it was outstanding; that his opinion was based on his personal acquaintance with Ruth Kendall and her husband 'and through personal acquaintances with neighbors and church members.'

Mrs. Roland Harris, Jr., testified that she knew the general character and reputation of the prosecuting witness in the community in which she lived and that it was good; that her opinion was based on her own personal observation. 'The witness testified that the prosecuting witness and her husband had been in the witness' home several times during the time they were dating and since then and the witness further testified that in her opinion the prosecuting witness is a fine Christian girl.'

It is the general rule in this State that a sustaining or impeaching character witness must first qualify himself by indicating whether he knows the general reputation or character of the person. Johnson v. Massengill, 280 N.C. 376, 186 S.E.2d 168 (1972); State v. Ellis, 243 N.C. 142, 90 S.E.2d 225 (1955); State v. Bowen, 226 N.C. 601, 39 S.E.2d 740 (1946); State v. Colson, 193 N.C. 236, 136 S.E. 730 (1927); State v. Steen, 185 N.C. 768, 117 S.E. 793 (1923); 1 Stansbury's North Carolina Evidence, § 114 (Brandis Rev. 1973).

When thus qualified, the character witness may then indicate, of his own accord or by prompting from counsel, what that general reputation is. State v. Smoak, 213 N.C. 79, 195 S.E. 72 (1938); State v. Sentelle, 212 N.C. 386, 193 S.E. 405 (1937); State v. Nance, 195 N.C. 47, 141 S.E. 468 (1928); Edwards v. Price, 162 N.C. 243, 78 S.E. 145 (1913); State v. Ussery, 118 N.C. 1177, 24 S.E. 414 (1896).

Chief Justice Stacy in State v. Hicks, 200 N.C. 539, 157 S.E. 851 (1931), states the rule for qualifying a character witness and eliciting character testimony from him in these words:

'The rule is, 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.'

This procedure was followed in the examination of witnesses Roger Frazee and Gilda Smith. In the examination of the remaining twelve witnesses, however, the district attorney added the question: 'On what do you base your opinion?' Defendant contends this question spawned expressions of personal opinions and narrations of specific acts relating to Ruth Kendall's good character in violation of the rule that character may not be shown by the opinion of the character witness or by specific acts of the person whose character is in question. See Johnson v. Massengill, 280 N.C. 376, 186 S.E.2d 168 (1972).

Although unnecessary and ineptly phrased, the additional question and the answers thereto tended to show the foundation for the character evidence given by the witnesses. A strong or weak foundation for the testimony of a witness aids the jury in determining the weight it will give that testimony. State v. Young, 210 N.C. 452, 187 S.E. 561 (1936); Moss v. Knitting Mills, 190 N.C. 644, 130 S.E. 635 (1925); 2 Wigmore, Evidence § 655 (3rd Ed. 1940). Thus the question was properly permitted, and we perceive no prejudice from either the question or the responses. State v. Kiziah, 217 N.C. 399, 8 S.E.2d 474 (1940).

In the cross-examination of Ruth Kendall, defense counsel attempted to elicit testimony tending to show that she consented to the intercourse with defendant and fabricated the alleged rape because she was afraid her husband would learn the truth concerning her rendezvous with defendant. The questions implied that Mrs. Kendall had willingly engaged in an adulterous act and then sought to conceal it by false testimony on direct examination. In that setting, the district attorney was entitled, while making out the State's case in chief, to offer evidence of her good character and reputation to sustain and strengthen her veracity and virtue. Ingle v. Transfer Corp., 271 N.C. 276, 156 S.E.2d 265 (1967); Lorbacher v. Talley, 256 N.C. 258, 123 S.E.2d 477 (1962); State v. Hooks, 228 N.C. 689, 47 S.E.2d 234 (1948); State v. Litteral, 227 N.C. 527, 43 S.E.2d 84, cert. denied, 332 U.S. 764, 68 S.Ct. 69, 92 L.Ed. 349 (1947); State v. Bethea, 186 N.C. 22, 118 S.E. 800 (1923); 1 Jones on Evidence § 4:37 (6th Ed. 1972); 1 Stansbury's North Carolina Evidence § 50 (Brandis Rev. 1973); 4 Wigmore, Evidence § 1104 (Chadbourn Rev. 1972); 29 Am.Jur.2d, Evidence § 342 (1967). Moreover, 'the character of the complainant in...

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