State v. Wortham

• Decision Date: 16 October 1974
• Docket Number: No. 749SC685,749SC685
• Citation: 208 S.E.2d 863,23 N.C.App. 262
• Court: North Carolina Court of Appeals
• Parties: STATE of North Carolina v. Colonel Lee WORTHAM.

Page 863

208 S.E.2d 863

23 N.C.App. 262

STATE of North Carolina v. Colonel Lee WORTHAM.

No. 749SC685.

Court of Appeals of North Carolina.

Oct. 16, 1974.

Atty. Gen. James H. Carson, Jr., by Asst. Atty. Gen. Ralf F. Haskell, Raleigh, for the State.

Watkins, Edmundson & Wilkinson by C. W. Wilkinson, Jr., Oxford, for defendant appellant.

PARKER, Judge.

Defendant initially assigns error to the trial court's allowing the district attorney to ask what the defendant contends were leading questions. Whether to permit counsel to ask leading questions is a matter within the sound discretion of the trial judge, and his exercise of that discretion will not be disturbed on appeal absent a showing of abuse. State v. Peele, 281 N.C. 253, 188 S.E.2d 326 (1972); State v. Pearson, 258 N.C. 188, 128 S.E.2d 251 (1962). Examination of the record discloses that defendant's first assignment of error is based upon only three questions which, if perhaps leading, were all clearly designed to facilitate the hearing. In permitting these questions, no abuse of the trial judge's discretion has been shown.

Nor did the trial court err, as defendant urges, in not allowing him to recross-examine a State's witness concerning testimony elicited on redirect examination. 'After a witness has been cross-examined and re-examined, it is in the discretion of the trial judge to permit or refuse a second cross-examination, and counsel cannot demand it as a right.' 1 Stansbury's N.C. Evidence (Brandis Revision) § 36, p. 109. We note here that the record does not disclose either what specific questions defendant attempted to ask or what the answers to those questions would have been. The record contains only the statement that defendant's attorney 'attempted to recross-examine the witness as to Colonel Lee Wortham's statement as to why he drove the other suspects off.' Examination discloses that defendant's attorney had fully and fairly cross-examined the witness, who testified that defendant had stated that his reason for driving the participants away from the scene of the robbery was that he, the defendant, was 'scared of them,' and defendant's attempted recross-examination did not relate to any matter not touched upon in either the direct or cross-examination of the witness. Defendant's constitutional right to confront the witnesses against him through cross-examination was in no way impaired. Defendant's assignment of error on this point is overruled.

Defendant next contends that the trial court impermissibly expressed an opinion regarding the credibility of a defense witness. The witness, asked of what he had been convicted, replied, 'Like spending time in an institution of any kind?' The trial judge then stated to the witness, 'no, convicted is what he asked you, including payoffs.' While the court's attempt to clarify the question was perhaps inartfully worded, we do not agree that the natural inference of the court's statement was that the witness had been 'paid off' to testify in other trials. The more reasonable conclusion to be drawn from the statement was that the trial judge was attempting to distinguish between convictions which resulted in the imposition of an active sentence and those where the judgment required only payment of a fine. We find no reversible error in the statement made by the judge.

Defendant's next assignment of error is that the trial court erred in allowing a prosecution witness to recount a statement by Dan Moss, a codefendant at this trial, made in defendant's absence. The record shows:

'Mr. Momier (the witness) said he was present when they arrested Dan Moss. He stated that Mr. Moss was warned of his constitutional rights. He stated that Dan Moss made the statement that he was on the car with Colonel Wortham and the two Roysters on the night before the robbery and that he did not commit the robbery.

'At this point, the solicitor asked the following question:

"Mr. Momier, this was on the night before the robbery, or on the night of the robbery?'

'Both the defendant Wortham and the defendant Moss objected.

'The objection was...