State v. Blount

167 S.E.2d 444 (1969)

4 N.C. App. 561

STATE of North Carolina v. James Earl BLOUNT.

No. 692SC258.

Court of Appeals of North Carolina.

May 28, 1969.

Certiorari Denied June 23, 1969.

*446 Atty. Gen. Robert Morgan, Deputy Atty. Gen. Harrison Lewis and Trial Atty. J. Bruce Morton, Raleigh, for the State.

John A. Wilkinson, Washington, for defendant appellant.

CAMPBELL, Judge.

The record indicates that the evidence was submitted under Rule 19(d) (2) of the *447 Rules of Practice in the Court of Appeals. However, the evidence in its present form should have been submitted under Rule 19 (d)(1), because a reading of the transcript reveals that the evidence has been reduced to narrative form, except where "a question and answer, or a series of them, (have been) set out when the subject of a particular exception." Rule 19 (d) (1). It is further noted that, contrary to Rule 19(d) (2), no appendix was set forth by the defendant in his brief.

The defendant's first assignment of error is that the trial judge abused his discretion in failing to excuse a juror who indicated his acquaintance with Mourning, the State's second witness. After a plea of not guilty was entered and the jury impaneled, the following occurred during the direct examination of Griffin, the State's first witness:

"(GRIFFIN:) Mourning had a pistol too. One of them looked like

JUROR: (Speaking from Jury Box) This fellow right here, I know him. When you said William Mourning, I didn't know him by that name. I have always known him by his nick name.

The Court: Are you well acquainted with him?

A Yes, he knows me.

The Court: I asked if you know him well.

A Fairly well. In other words, I say, `old friends', actually I see him every once in a while. We get together for a little chat, something like that.

The Court: Mr. Juror, what is your name, please?

A James T. Williams.

The Court: You have just indicated you recognized the person by the name of Mourning that you did not identify by that name a few moments ago?

A Yes, sir.

The Court: It may be that he will be a witness in the case. I don't know. His name has been mentioned, of course, by this witness.

A Right.

The Court: I want to ask you if the fact that you know him, the fact you know this man named Mourning, if that would have any bearing on your verdict in this case?

A Is he related to the other fellows?

The Court: I don't know. I never heard of him before. I don't know. I am asking, from your knowledge of him if it would cause you to have any feeling against the defendant, or against the State?

A If there was any way of not serving in this case I really would not want to serve on it because I do know the persons.

The Court: Well, that person is not on trial. You understand that, don't you?

A I understand that he is not on trial.

The Court: He is not on trial at this time. I can tell you that.

A Oh, well, that is all right then.

The Court: In view of that, would your knowledge of him, even if he becomes a witness, cause you to have any feeling against the defendant or against the prosecution, just because of your knowledge of this man named Mourning, that is what I want to know?

A I don't think so.

The Court: Have you got any doubt about it?

A I believe I could make a sound judgment on the case.

The Court: You say you believe you can, I want to be sure about it?

A I can.

*448 MR. WILKINSON: I ask Your Honor, in your discretion to excuse this juror.

The Court: Well, I deny your request."

In his brief, the defendant argued that it was an abuse of discretion to compel him "to be tried by a juror whose connection with the case had been concealed". However, this connection was immediately brought to the attention of the trial court when discovered, and the concealment, if any, was clearly not deliberate, intentional or prejudicial. The defendant further argued that he "was given no opportunity to inquire into the extent or depth of" this connection. However, the record reveals no attempt by defense counsel to make any inquiry.

The question of whether a juror is competent is one for the trial judge to determine in his discretion. G.S. § 9-14. "(H)is rulings thereon are not subject to review on appeal, unless accompanied by some imputed error of law." State v. Spencer, 239 N.C. 604, 80 S.E.2d 670. In the instant case, there is neither an imputed error of law nor an abuse of discretion in the denial of the defendant's motion to excuse the juror.

This assignment of error is without merit.

The defendant's second assignment of error is that the trial judge erred in denying his motion to strike the following answer of Griffin on direct examination:

"Q How long have you known him altogether?

A Well, I been knowing of (the defendant) ever since he was growing up, when he was growing up.

MOTION TO STRIKE OVERRULED"

In his brief, the defendant argued that this answer was unresponsive. However, the question was proper and the answer was clearly responsive. It was also argued that the answer was highly prejudicial, because it "emphasized the alleged familiarity of the witness with" the defendant when, in fact, Griffin had not seen him for several years. During this time, the defendant "had changed from a boy of seventeen to a man of twenty-two, grown a mustache, and gained sixty pounds". However, this answer was admissible, and it was for the jury to determine what weight should be given to it. State v. Orr, 260 N.C. 177, 132 S.E.2d 334; State v. Perry, 3 N.C.App. 356, 164 S.E.2d 629. No prejudice has been made to appear.

This assignment of error is without merit.

The defendant's third, fourth, fifth, sixth and seventh assignments of error all relate to the contention that the trial judge abused his discretion in sustaining the State's objections to the following questions prepounded by defense counsel on the cross-examination of Griffin:

"Q You tell this Jury you can identify a person after five years, a man wearing a beard, five years later, and a mustache, and identify him from somebody you can not even remember had a mustache or not?

OBJECTION SUSTAINED * * * * * *

Q I thought you had testified that is where it was?

OBJECTION SUSTAINED * * * * * *

Q Certainly, Mr. Griffin, you know what a beard is?

OBJECTION SUSTAINED

The Court: Mr. Wilkinson, start off, ask the witness a question. Don't tell him what he knows or does not know, please.

Mr. Wilkinson: It is cross-examination, Your Honor.

*449 The Court: You may examine him but don't tell him. * * * * * *

Q Do you tell this Jury, Mr. Griffin, that you can recognize somebody after he is grown by his appearance as a boy?

OBJECTION SUSTAINED * * * * * *

Q The truth of the matter is, you don't have any recollection of having seen him at any particular period before then, do you?

OBJECTION SUSTAINED"

It is noted in passing that, contrary to Rule 28, the defendant's brief does not include references to the pages of the record for all of his assignments of error.

"One of the most jealously guarded rights in the administration of justice is that of cross-examining an adversary's witnesses." Stansbury, N. C. Evidence 2d, § 35. However, "(i)t is the duty of the trial court to protect a witness on cross-examination from being unfairly dealt with, and cross-examining counsel should not be permitted to browbeat, bulldoze, or intimidate a witness * * *." 98 C.J.S. Witnesses § 410, p. 211. Therefore, "the allowing of * * * questions (calling for a repetition of testimony already given) ordinarily rests in the discretion of the trial court, and the court acts properly within its discretion when it refuses to permit further cross-examination, where unduly repetitious * * *." 98 C.J.S. Witnesses § 414, p. 217. "Other questions disallowed are those which are argumentative * *." 98 C.J.S. Witnesses § 411, p. 211. See In Re Will of Kemp, 236 N.C. 680, 73 S.E.2d 906.

The questions supra were clearly repetitious and argumentative, and there was no abuse of discretion by the trial judge in sustaining the State's objections, particularly in view of the otherwise extensive cross-examination.

These assignments of error are without merit.

The defendant's eighth, ninth, tenth and eleventh assignments of error relate to the contention that the trial judge erred in his charge to the jury.

The defendant argues that the testimony of the two witnesses for the State was diametrically opposed, since Griffin testified to the involvement of the defendant, Mourning, Mills and Langley, while Mourning testified to the involvement of the defendant, Little, Whitaker and Holliday. The defendant says it was incumbent upon the trial judge to make no "election" between the two versions, but that the trial judge did make an "election" and hence committed error by the expression of an opinion. A careful review of the charge reveals that the trial judge did not make such an "election" and he expressed no opinion. He gave the contentions of both the State and the defendant and left the determination of guilt or innocence to the jury. If the defendant desired any further instruction as to the contradictory nature of the State's evidence, a request should have been made. "Failure to charge on a subordinatenot a substantivefeature of a trial is not reversible error in the absence of request for such instruction." State v. Pitt, 248 N.C. 57, 102 S.E.2d 410. Under the circumstances "(i)t was not inappropriate for the court to leave to counsel for the State and counsel for defendant, respectively, the making of contentions relating to the credibility of the witnesses and the probative value of their testimony." State v. Jones, 249 N.C. 134, 105 S.E.2d 513.

These assignments of error are without merit.

The charge when taken as a whole and in context was not prejudicial to the defendant.

No error.

MALLARD, C. J., and MORRIS, J., concur.