State v. Bumper

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170 S.E.2d 457 (1969)

275 N.C. 670

STATE of North Carolina v. Wayne Darnell BUMPER.

No. 31.

Supreme Court of North Carolina.

November 19, 1969.

*459 Atty. Gen. Robert Morgan and Trial Attorney Eugene A. Smith, Raleigh, for the State.

Clarence Ross, Graham, for defendant appellant.

BRANCH, Justice.

The sole question for decision is whether the trial court erred in restricting defendant's cross-examination of State's witness, Monty Jones, on the question of his identification of defendant in the line-ups held on 16 August 1966.

Monty Jones stated on direct examination that he went into a room at the jail on two separate occasions and on each occasion he observed ten or fifteen colored men standing in line. On each occasion he went back and told Sheriff Stockard the number being held by the man who attacked him.

On cross-examination he testified:

"Yes, sir, I looked at each and every face the first time of the men in the line-up. Yes, sir, that included everyone in the line-up. Yes sir, after I looked at each one of the men, I came back to the Sheriff and said I believed it was 6., it was the right one. I forgot the number I told him the first time. No, sir, I didn't tell him No. 6. I said I believed No. 6, but I got the right one in the line-up. I got the numbers mixed up. I got the numbers mixed up when I got in court. When I was at the line-up I got the right number, when up here I got the numbers mixed up. When I testified at a previous hearing I said I believed No. 6. "Q. Were you asked the question at the trial: You recall what number he was carrying and you answered No. 6?"

Before Jones could answer, Mr. Cooper, the District Solicitor, asked the Judge to remove the jury. The jury was sent to the juryroom and Mr. Cooper, Mr. Dodge (defendant's attorney) and the Court engaged in the following colloquy:

"MR. COOPER: Mr. Dodge is purporting to read from a transcript of this boy's testimony, he deliberately left out a word. THE COURT: What word? MR. COOPER: I believe. MR. DODGE: Page 7 I am reading from. THE COURT: Is that on Page 7, Mr. Cooper? MR. DODGE: 11 and 12. This is cross examination, I wasn't deliberately omitting anything. THE COURT: Let's don't pursue that particular line of question any further about the number 6. MR. DODGE: Except to the ruling of the Court."

The jury returned to the courtroom and no further mention was made of whether Monty Jones had testified on the first trial that he believed that his attacker was No. 6 or that his attacker was No. 6.

At the time defendant's attorney elicited the above quoted evidence, he was conducting his cross-examination by use of a transcript *460 of the former trial. We note that, although defendant offered evidence, he did not favor the jury with the introduction of the transcript which would have shown with great finality and credence the statements made by the witness Jones at the first trial.

The right of cross-examination is a common law right and is guaranteed by the North Carolina Constitution, Article I, Sec. 11. The right to confront affirms the common law rule that in criminal trials by jury the witness must be present and subject to cross-examination under oath. State v. Perry, 210 N.C. 796, 188 S.E. 639; State v. Breece, 206 N.C. 92, 173 S.E. 9; State v. Hightower, 187 N.C. 300, 121 S.E. 616. The right to confront witnesses and cross-examine is also guaranteed by the Sixth Amendment to the United States Constitution, which is made applicable to the states by the Fourteenth Amendment. Pointer v. Texas, 380 U.S. 400, 85 S. Ct. 1065, 13 L. Ed. 2d 923; State v. Jackson, 270 N.C. 773, 155 S.E.2d 236.

The defendant is entitled to a full and fair cross-examination upon the subject of the witness' examination-in-chief, and this is an absolute right rather than a privilege. Resurrection Gold Min. Co. v. Fortune Gold Min. Co., 10 Cir., 129 F. 668; State v. Hightower, supra. However, when cross-examination is made for the purpose of impeaching the credibility of a witness, the method and duration of the cross-examination for these purposes rest largely in the discretion of the trial court, and the trial court may properly exclude such cross-examination when it becomes merely repetitious or argumentative. State v. Maynard, 247 N.C. 462, 101 S.E.2d 340; McCorkle v. Beatty, 226 N.C. 338, 38 S.E.2d 102; State v. Wall, 218 N.C. 566, 11 S.E.2d 880; State v. Beal, 199 N.C. 278, 154 S.E. 604.

The United States Supreme Court will not encroach upon the powers of the states to make their own rules of evidence in their own courts as long as they serve a legitimate state purpose not prohibited by the provisions of the United States Constitution. Spencer v. Texas, 385 U.S. 554, 87 S. Ct. 648, 17 L. Ed. 2d 606. The rule allowing the trial judge to exercise his discretion to limit cross-examination for the purpose of impeachment when it becomes repetitious or argumentative does not violate any provision of the United States Constitution. We would quickly destroy the orderly administration of justice in our courts should the trial judge be forced to allow counsel to cross-examine on such matters ad infinitum. It is obvious that the rule is for a legitimate and fair state purpose and does not contravene due process.

Here, the real question before the jury was the identity of the assailant and not the number on the card held by defendant. The witness had testified as to the identity of his assailant. Therefore the question asked by defendant's attorney and upon which he bases his assignment of error was clearly for the purpose of impeachment by showing prior statements inconsistent with his testimony. An examination of the record shows that Monty Jones had responded to a battery of questions concerning his testimony at the first trial as related to his identification of defendant in the police line-ups. The witness had several times substantially answered the question propounded, and it therefore became a repetitious inquiry calculated to bring out matter already testified to by the witness.

We find no abuse of discretion on the part of the trial judge in halting the repetitious and argumentative questions which sought to impeach the witness Monty Jones.

The decision of the Court of Appeals is


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