State v. Lindley

208 S.E.2d 203 (1974)

23 N.C. App. 48

STATE of North Carolina v. Barry Dean LINDLEY.

No. 7419SC606.

Court of Appeals of North Carolina.

September 18, 1974.

*204 Atty. Gen. Robert Morgan by Asst. Attys. Gen. H. A. Cole, Jr. and Thomas B. Wood, Raleigh, for the State.

Dark & Edwards by Phil S. Edwards, Siler City, for defendant appellant.

PARKER, Judge.

Defendant first assigns as error the court's ruling allowing the officer to testify to his opinion that defendant was under the influence of some type of drug. In this connection defendant points out that there was no showing that the witness had any expertise in such matters. However, our Supreme Court has held that a lay witness may state his opinion as to whether a person is under the influence of drugs when the witness has observed the person and such testimony is relevant to the issue being tried. State v. Cook, 273 N.C. 377, 160 S.E.2d 49 (1968); State v. Fletcher, 279 N.C. 85, 181 S.E.2d 405 (1971). On authority of those decisions, defendant's first assignment of error is overruled.

Defendant's second assignment of error is that the court erred in not allowing defendant's attorney to cross-examine the officer concerning other possible causes of defendant's impairment. On cross-examination the officer admitted that he did not eliminate the possibility that defendant might have had an inner ear infection, but then testified that he had asked the defendant if he had diabetes, if he had any physical defects, if he was sick, if he limped, if he had been injured, if he had seen a doctor or dentist lately, or if he had been taking any kind of medication, to all of which questions defendant had answered "no." Only after this testimony did the court sustain an objection when defendant's counsel asked the officer whether he had eliminated "all the other possibilities."

Control over the manner and extent of cross-examination is a matter within the sound discretion of the trial court, and its rulings in this regard should not be disturbed except when prejudicial error is made to appear. State v. Diaz, 14 N.C.App. 730, 189 S.E.2d 570 (1972). In the present case no attempt was made to place in the record what the witness would have said had he been permitted to answer, and we can see no way in which defendant could have been prejudiced when, after permitting extensive cross-examination, the court finally sustained an objection to the broadside and somewhat repetitious question asked by defendant's counsel. Defendant's second assignment of error is overruled.

The next assignment of error discussed in defendant's brief relates to a remark made by the trial judge after the case had been submitted to the jury. The jury had commenced deliberations and the judge called them back into the courtroom for the evening recess. After ascertaining that they had not agreed on a verdict, the judge said:

"Well, I guess you want to go to supper now, don't you? Maybe you will feel better in the morning, fresh and be able *205 to agree on something. How come everybody got so stubborn? That other jury hasn't agreed yet. "I hope you will weigh and consider everything and the law that the court gave you, and be able to agree some way in the morning. We will let you go today. Don't talk to anybody about the case. Don't let anybody talk to you. Don't talk to each other, if any of you happen to be together. Come back in the morning and go directly to that same jury room, and when all twelve are present, you begin your deliberations. Do what you think is right based upon the evidence and the law that the court gave you. That is all anybody wants you to do."

Defendant contends that by this statement the court intimated that the jury should have already found him guilty and that not to have done so was stubbornness on their part. The court's statement, however, expressed no opinion as to what the jury's verdict should be, nor was the statement, when considered as a whole, in any way coercive. This assignment of error is also overruled.

The evidence in this case, considered in the light most favorable to the State, was sufficient to require submission of the case to the jury, and defendant's assignments of error directed to the denial of his motions for nonsuit are overruled.

In defendant's trial and in the judgment appealed from we find

No error.

CAMPBELL, J., concurs.

VAUGHN, J., dissents.

VAUGHN, Judge (dissenting):

I am not firmly committed to the notion that a lay witness, after stating in detail all the relevant and specific facts observed by him, should not be allowed to state his conclusion based on those facts for whatever weight, if any, the jury may elect to attach to it. As a practical matter I doubt that the results at trial would be affected if all rules to the contrary were discarded.

Given however, that we do recognize a concept called the "opinion rule," I must dissent from the view of the majority that the decisions in Cook and Fletcher require us to hold, without qualification, and contrary to the great weight of authority in this country, that any witness may testify that in his opinion a defendant was under the influence of drugs. As to this question, the law of Cook and Fletcher appears to be only that in those cases the admissions or exclusion of the lay opinion did not constitute prejudicial error so as to require a new trial.

The issue is squarely presented in the case at bar. There is no evidence that the witness had ever seen anyone known to be under the influence of drugs or that he was aware of any symptoms a person under the influence of drugs might display. On the record he was without experience or training relating to drugs. He had never seen defendant before the occasion of the arrest. In my view defendant's first assignment of error is well taken and there should be a new trial.