State v. Pope

215 S.E.2d 139 (1975)

STATE of North Carolina v. Elvin Claude POPE.

No. 117.

Supreme Court of North Carolina.

June 6, 1975.

*143 Rufus L. Edmisten, Atty. Gen., George W. Boylan, Asst. Atty. Gen., Raleigh, for the State.

Seawell, Pollock, Fullenwider, Van Camp and Robbins by Bruce T. Cunningham, Jr. and P. Wayne Robbins, Southern Pines, for defendant-appellant.

SHARP, Chief Justice.

On his appeal to the Court of Appeals and to this Court defendant has presented only the question whether the trial court erred in permitting the State to impeach its witness Richie Nelson Pope by introducing evidence that he had made prior statements which contradicted his testimony.

Disregarding the prior inconsistent statements Richie himself admitted having made (which were not substantive evidence), his testimony as to the theft of the heat pump is as follows. On direct examination he said, "I did not go with my father anywhere on Morganton Road on January 3, 1974.. . . I have never been to a dwelling owned by O. J. Garrison on Morganton Road." On cross-examination he said, "I never denied to the Sheriff or any of the officers that I did not steal it. In fact, I pled guilty. My father did not have any part in it; he did not go with me and steal any of the air-conditioning units. I don't deny that I did it myself."

It remains the general rule in this jurisdiction that the solicitor (or district attorney) may not impeach a State's witness by evidence that the character of the witness is bad or that he has made prior statements inconsistent with or contradictory of his testimony. State v. Anderson, 283 N.C. 218, 195 S.E.2d 561 (1973); State v. Tilley, 239 N.C. 245, 79 S.E.2d 473 (1954); see 1 Stansbury's North Carolina Evidence (Brandis Rev., 1973) § 40.

Although it is quite clear that on cross-examination Richie was testifying as a defense witness, bent upon exonerating defendant of the charge for which he was being tried, he remained the witness of the State, which had called him. See State v. Tilley, supra; 1 Stansbury's North Carolina Evidence § 41 (Brandis Rev., 1973); McCormick on Evidence § 38 (1972); 98 C.J.S. Witnesses § 578 i (1957). Therefore under the anti-impeachment rule Sherif Wimberly's testimony that on the night Richie was arrested he told him "he stayed in the vehicle, and that his daddy and Larry Martin went to the house, brought this unit back through the woods and come back . . ." was incompetent. This testimony, however, was given before any objection to it was interposed. When the objection interrupted the statement quoted above (as shown by the dots) it was at once "sustained as to that." Defendant made no motion to strike "that," and the judge gave the jury no instruction to disregard "that." Immediately thereafter, in answer to specific questions to which no objection was made, the *144 Sheriff testified that Richie also told him that the unit was put in the trunk of the car; that "they" took it into Southern Pines and left it; that it was later moved to his father's house; and that "he was nervous when they were moving it because he was involved." This evidence was likewise incompetent.

Notwithstanding the incompetency of that portion of Sheriff Wimberly's testimony set out in the preceding paragraph the court's refusal "to strike his entire testimony," is sustainable on two grounds:

First, when no objection is interposed to an incompetent question at the time it is asked, a motion to strike the answer is addressed to the trial judge's discretion and his ruling is not subject to review in the absence of abuse. State v. Hunt, 223 N.C. 173, 176, 25 S.E.2d 598, 600 (1943); State v. Merrick, 172 N.C. 870, 90 S.E. 257 (1916); State v. Lewis, 281 N.C. 564, 189 S.E.2d 216 (1972); 7 N.C. Index 2d, Trial § 15 (1968).

As noted in Bryant v. Construction Company, 197 N.C. 639, 641-642, 150 S.E. 122, 123-124 (1929), motions to strike the answer elicited by a question to which no objection was made "are often allowed when the answer is not responsive to the question and contains prejudicial testimony of a fact concerning which the objecting party was not put on notice. But when the answer is directly responsive it will usually be permitted to stand unless in apt time objection was made to the question propounded." In Dobson v. R. R., 132 N.C. 900, 901, 44 S.E. 593, 594 (1903), it is said: "Objections should be interposed when the incompetent questions are asked. It will not do to object after the question has been asked and answered. This would give the objector two chancesone to exclude the testimony if unfavorable to him, and the other to make use of it if favorable; and for this reason the law requires that parties should act promptly or else the right to have testimony excluded, or the examination conducted within proper limits, will be waived."

Second, as pointed out in the opinion of the Court of Appeals, where only a portion of a witness' testimony is incompetent, the party moving to strike should specify the objectionable part and move to strike it alone. State v. Williams, 274 N.C. 328, 163 S.E.2d 353 (1968); State v. Tyson, 242 N.C. 574, 89 S.E.2d 138 (1955). In the preliminary statement of facts the objectionable portion of Sheriff Wimberly's testimony is quoted; all other portions were competent. When defendant moved to strike the Sheriff's entire testimony, the court, in its discretion, could have stricken the incompetent evidence. It was, however, under no duty to separate the good from the bad. Nance v. Telegraph Co., 177 N.C. 313, 98 S.E. 838 (1919). Under these circumstances the court will ordinarily deny the motion. See 38 C.J.S. Trial § 143 (1955).

Our decisions dictate the conclusion that defendant has shown no reversible error in the trial below.

Although the State made no attempt to invoke its application in this case, and it is not pertinent to decision here, the evidence merits examination of a generally recognized exception or corollary to the anti-impeachment rule which does not seem to have been the subject of discussion in our decisions. This corollary allows impeachment "where the party calling the witness has been misled and surprised, or entrapped to his prejudice." Green v. State, 243 Md. 154, 157, 220 A.2d 544, 546 (1966); State v. Green, 71 Wash. 2d 372, 428 P.2d 540 (1967); 98 C.J.S. Witnesses § 578 c (1) (1957); 58 Am.Jur., Witnesses § 799 (1948).

Our decisions, in holding that the State cannot impeach its own witness, also hold that the State is not bound by what the witness says. The State's attorney, therefore, may show by other witnesses or other competent evidence that the facts are different from those to which the witness has testified. The trial judge also has the discretionary power to permit a prosecuting attorney who has been surprised by the *145 testimony of an evasive or hostile witness to call his attention to his prior inconsistent statements for the purpose of "refreshing his memory" or "awakening his conscience." McCormick on Evidence § 38 (1972); State v. Tilley, 239 N.C. at 251, 79 S.E.2d at 477. (Clearly, this is what the solicitor attempted to do in this case.)

In a situation where the witness has treacherously induced the State to call him by representing that he will give testimony favorable to its contentions and then surprises the solicitor with testimony contra, cross-examination is not likely either to "refresh his memory" or "awaken his conscience." In such instances the reason for the corollary to the anti-impeachment rule is demonstrated: "It would be grossly unfair to permit a witness to entrap a party into calling him by making a statement favorable to that party's contention, and then, when he is called and accredited by that party and gives testimony at variance with his previous statement and against that party's interest, to deny the party calling him the right to show that he was induced to do so by a previous statement of the witness made under such circumstances as to warrant a reasonable belief that the witness would repeat the statement when called to testify." 58 Am.Jur., Witnesses § 799 (1948); see Murphy v. State, 120 Md. 229, 233, 87 A. 811, 812 (1913).

Surprise or entrapment, however, will not automatically invoke the anti-impeachment corollary. The State's motion to be allowed to impeach its own witness by proof of his prior inconsistent statements is addressed to the sound discretion of the trial court. The motion should be made as soon as the prosecuting attorney is surprised. He may not wait until subsequent "surprises" follow. Further, surprise does not mean mere disappointment; it means "taken (captured) unawares." Selden v. Metropolitan Life Ins. Co., 157 Pa.Super. 500, 43 A.2d 571 (1945).

Before granting the motion the court must be satisfied that the State's attorney has been misled and surprised by the witness, whose testimony as to a material fact is contrary to what the State had a right to expect. These preliminary questions are determined by the court upon a voir dire hearing in the absence of the jury in the manner in which the admissibility of a confession is ascertained after objection. If the trial judge finds that the State should be allowed to offer prior inconsistent statements, his findings should also specify the extent to which such statements may be offered. Green v. State, supra; Sellman v. State, 232 Md. 344, 192 A.2d 788 (1963); 58 Am.Jur., Witnesses § 800 (1948).

The right to prove prior oral inconsistent statements is limited to statements made by the witness to the State's attorney or to some person whom he specifically instructed to communicate the statement to the attorney. Sellman v. State, supra; State v. Baltimore Contracting Co., 177 Md. 1, 6 A.2d 625 (1939); Riggins v. State, 67 Ga.App. 309, 20 S.E.2d 95 (1942); Allen v. State, 71 Ga.App. 517, 31 S.E.2d 107 (1944). However, where investigating officers, whose duty it is to seek, find, preserve and analyze evidence of criminal offenses and turn it over to the prosecuting attorney for ultimate legal action, have furnished him with formally prepared, signed or acknowledged statements of witnesses, he may rely on these statements unless he possesses other information which reasonably apprises him that they were false or that the witness making them intends to repudiate them. State v. Green, 71 Wash. 2d 372, 379, 428 P.2d 540, 545 (1967); Commonwealth v. Smith, 178 Pa.Super. 251, 115 A.2d 782 (1955).

While the cases cited in the preceding paragraph hold that the State's attorney can legitimately claim surprise in the instances above specified albeit he himself does not interview the witness before calling him to the stand, in our view the better practice, and the only safe rule, is "never to call a witness to whom you have not talked."

*146 Where the prosecuting attorney knows at the time the witness is called that he has retracted or disavowed his statement, or has reason to believe that he will do so if called upon to testify, he will not be permitted to impeach the witness. He must first show that he has been genuinely "surprised or taken unawares" by testimony which differed in material respects from the witness' prior statements, which he had no reason to assume the witness would repudiate. Commonwealth v. Smith, supra; State v. Green, supra; State v. Baltimore Contracting Co., supra; Perrotti v. Sampson, 163 Cal. App. 2d 280, 329 P.2d 310 (1958); 98 C.J.S. Witnesses § 578 c (2) (1957); see State v. Anderson, supra.

Testimony tending to show a witness' prior inconsistent statements is admitted only to show that the State was surprised by his testimony and to explain why the witness was called. Such statements "are not probative evidence on the merits and are not to be treated as having any substantive or independent testimonial value." Green v. State, 243 Md. 154, 158, 220 A.2d 544, 546. Their only effect is to impeach the credibility of the witness. State v. Green, supra; see 58 Am.Jur., Witnesses § 804 (1948).

In this case, although the evidence of Richie's prior contradictory statements came in without objection and were not admissible under the corollary or exception to the anti-impeachment rule, the trial judge carefully instructed the jury that Sheriff Wimberly's testimony as to those statements was not substantive evidence; that it was not evidence defendant had committed the offense with which he was charged; that the jury could consider the statements only as bearing upon the credibility of the witness Richie Pope, "in determining whether to believe his testimony or not."

Our consideration of the record in this case convinces us that, aside from the non-substantive evidence of Richie's prior inconsistent statements, substantive evidence supports defendant's conviction of the crime with which he was charged and that his trial contains no reversible error. The decision of the Court of Appeals is

Affirmed.