State v. Wilkins

• Decision Date: 16 November 1977
• Docket Number: No. 778SC393,778SC393
• Citation: 238 S.E.2d 659,34 N.C.App. 392
• Parties: STATE of North Carolina v. Steve WILKINS.
• Court: North Carolina Court of Appeals

Page 659

238 S.E.2d 659

34 N.C.App. 392

STATE of North Carolina v. Steve WILKINS.

No. 778SC393.

Court of Appeals of North Carolina.

Nov. 16, 1977.

Atty. Gen. Rufus L. Edmisten by Associate Atty. Henry H. Burgwyn, Raleigh, for the State.

Hulse & Hulse by Herbert B. Hulse, Goldsboro, for defendant-appellant.

MORRIS, Judge.

The defendant presents 16 arguments to the Court preserving 20 of 22 assignments of error. The defendant's first argument (assignments of error Nos. 2 and 7 is directed to the trial court's exclusion of testimony offered by the defendant relevant to his defense of entrapment. Assuming, arguendo, that the offered testimony should have been admitted as relevant to the defense, there was no prejudice to the defendant, for the record discloses that substantially the same evidence was admitted at other times during the trial without objection. The exclusion of evidence is not prejudicial when substantially the same evidence is thereafter admitted or introduced. State v. Creech, 229 N.C. 662, 51 S.E.2d 348 (1949); State v. Elder, 217 N.C. 111, 6 S.E.2d 840 (1940).

The defendant's second argument (assignment of error No. 3) is directed to the admission of evidence of the general character and reputation of State's witness Melvin. Defendant argues that "in view of the moral turpitude and illegality of much of Miss Melvin's conduct as brought out in her own testimony, the defendant respectfully contends that the allowance by the court of evidence as to her good character fortified her position before the jury and encouraged the jury to minimize, if not ignore, the unsavory aspects of her behavior". Melvin had been subjected to vigorous cross-examination in an effort to discredit her testimony in chief, and the efforts of defendant's counsel were not totally unavailing. After the impeachment of a witness, evidence is admissible to restore and strengthen the credibility of the witness. Gibson v. Whitton, 239 N.C. 11, 79 S.E.2d 196 (1953). In Lorbacher v. Talley, 256 N.C. 258, 260 123 S.E.2d 477, 479 (1961), Justice Bobbitt, later Chief Justice, quoted with approval from Jones v. Jones, 80 N.C. 246, 250, the following:

"In whatever way the credit of the witness may be impaired, it may be restored or strengthened by this (proof of prior consistent statements) or any other proper evidence tending to insure confidence in his veracity and in the truthfulness of his testimony."

The defendant also objects, by his eleventh assignment of error, to the exclusion of certain testimony offered to impeach witness Melvin by proof of a prior inconsistent statement. Testimony was offered by defense witness Russell tending to show that Melvin, during the course of her undercover work, had stated she enjoyed smoking marijuana, supposedly in contradiction of her testimony that she had only simulated smoking marijuana during the course of her assignment. Whether Melvin enjoyed, or simulated smoking pot is a collateral issue to the question of the defendant's guilt. Defense counsel is bound by the witness's answer to cross-examination on collateral issues and may not contradict it by extrinsic evidence or other testimony. State v. Poolos, 241 N.C. 382, 85 S.E.2d 342 (1955). See Stansbury, N.C. Evidence 2d, § 48, p. 138 (Brandis Rev.1973). This assignment of error is overruled.

The defendant's third argument (assignment of error No. 5) is directed to the admission, over defendant's objection, of testimony by witness Minshew relating other criminal acts of the defendant. The record discloses, however, that the defendant elicited substantially the same evidence on cross-examination to clarify Minshew's testimony. The admission of the testimony over objection is harmless to the defendant when he elicits the same testimony on cross-examination for the purpose of amplifying the information given on direct examination. State v. Landingham, 283 N.C. 589, 197 S.E.2d 539 (1973). This assignment of error is overruled.

By his sixth assignment of error defendant contends that the trial judge erred by not granting his motions for nonsuit. The defendant cites State v. Stanley, 288 N.C. 19, 215 S.E.2d 589 (1975), evidently asserting entrapment was established as a matter of law. He also argues that he was guilty of possession only as the agent of the State's agent Melvin. We conclude the denial of the motion was not error.

Examining the evidence relating to entrapment in the light most favorable to the State, it is clear that the facts of this case are distinguishable from Stanley and do not compel a finding that defendant's actions in violation of the law were not his voluntary acts but acts he had no intention of committing absent the strong and clear importuning and coercion of the agent of the State. Justice Branch, in State v. Stanley, supra at 32, 215 S.E.2d at 597 wrote the following:

"The rule governing the application of the offense of entrapment as a matter of law is clearly and concisely stated by the New Hampshire Supreme Court in State v. Campbell, 110 N.H. 238, 265 A.2d 11. We quote from that case:

'Ordinarily, if the evidence presents an issue of entrapment it is a question of fact for the jury to determine. The court can find entrapment as a matter of law only where the undisputed testimony and required inferences compel a finding that the defendant was lured by the officers into an action he was not predisposed to take.' " (Citations omitted.)

The Court in Stanley found entrapment as a matter of law when a State agent ingratiated himself into the confidence of a 16-year-old boy and used the trust and confidence accompanying that friendship to coerce the young boy to acquire drugs and make a sale. In the case sub judice the State presented evidence tending to show: that the relationship between the defendant and Agent Melvin was very casual; that Melvin and the defendant had met only once before the sale was consummated; that the defendant agreed to acquire marijuana and sell it to Melvin after only two requests from Melvin, both of which were made over the telephone; and that the defendant refused the request for a sale made in the first phone call only because there was no marijuana available. The evidence presented by the State is ample to show that the defendant was predisposed to commit the crime and that Agent Melvin only presented him with an opportunity to act. The question of entrapment was, therefore, properly left for the jury. The contention that a nonsuit should have been granted because the evidence shows that the defendant was acting as the agent of Melvin is a novel contention attempting to apply the law of agency to criminal activity. It is, however, a contention without merit.

Defendant's assignments of error Nos. 9, 10, 12, 13, and 14 are directed to the scope of cross-examination allowed to the State. No authority is cited in support of these arguments, but the defendant objects to questions eliciting information regarding violations of probation by witness Parker and the defendant, and to questioning which the defendant contends was beyond the proper bounds of cross-examination regarding previous offenses and collateral issues. The scope of cross-examination rests in the discretion of the trial judge and his rulings should not be disturbed except upon a showing of prejudicial error. State v. Ross, 275 N.C. 550, 169 S.E.2d 875 (1969), cert. den., 397 U.S. 1050, 90 S.Ct. 1387, 25 L.Ed.2d 665 (1970). Our review of the record discloses no abuse of discretion nor prejudicial error in the trial judge's control of the cross-examination. He was in a position to observe the demeanor of the witnesses, he knew the background of the case and was in a favorable position to control the scope of the questioning. State v. Ross, supra.

A witness may be cross-examined on matters that tend to show interest or bias, or impeach his credibility. State v. Warren, 4 N.C.App. 441, 166 S.E.2d 858 (1969). A witness's credibility may be impeached by proof of bad character, and on cross-examination, a witness may be asked questions concerning prior specific acts of misconduct which tend to show bad character. State v. Gainey, 280 N.C. 366, 185 S.E.2d 874 (1972). It was within the trial judge's discretion to allow cross-examination regarding violations of the terms of probation and the defendant's failure to disclose criminal activity. Both of these matters tend to cast light on the character of the witnesses. These assignments of error are overruled.

By assignments of error Nos. 15, 16, 17, 18 and 19, the defendant preserves exceptions to the trial judge's charge to the jury. The defendant first contends that the court improperly charged the jury on the law with respect to the scrutiny of the testimony of an undercover agent.

"The general rule is that the jury should be directed to scrutinize the evidence of a paid detective and make proper allowance for the bias likely to exist in one having such an interest in the outcome of the prosecution and in...