State v. Hopkins

252 S.E.2d 755 (1979)

296 N.C. 673

STATE of North Carolina v. Larry Dale HOPKINS and Virginia Lewis Petty Hopkins.

No. 58.

Supreme Court of North Carolina.

March 16, 1979.

*759 James M. Deal, Jr., Boone, for defendant Larry Dale Hopkins.

Stacy C. Eggers, III, Boone, for defendant Virginia Lewis Petty Hopkins.

Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. Thomas B. Wood, Raleigh, for the State.

COPELAND, Justice.

For the reasons stated below, we find no error in defendants' trial.

In their first assignment of error, defendants claim the trial court erred in allowing the State to use leading questions during the direct examination of Howard Miller, the main prosecuting witness.

The general rule in North Carolina is that a party cannot use leading questions during direct examination of his own witness. See, e. g., State v. Greene, 285 N.C. 482, 206 S.E.2d 229 (1974). This rule is subject to various exceptions, one of which is if the witness "has difficulty in understanding the question because of immaturity, age, infirmity or ignorance." Id. at 492, 206 S.E.2d at 236. Furthermore, because of the trial court's opportunity to personally observe the witness, we recognize his superior ability to make a decision on this matter. His ruling will be disturbed only upon showing an abuse of discretion. Id.

An examination of the record in this case shows that Mr. Miller had trouble understanding the gist of the questions posed to him by the State. The answers he gave were often cursory and unresponsive. One portion of the examination of which defendants complain is as follows:

"Q. Now, I hand you State's Exhibit `4' [a photograph] and ask you what that is if you know. A. It's a Pontiac. Q. Is that the same Pontiac as State's Exhibit `3?' A. [Witness nods his head in the affirmative.] Q. Except a different position? A. Yea. Q. And that is your car? A. Yea. Q. And where is that sitting? A. Police station. Q. At Elizabethton, Tennessee? A. Yea."

The trial judge stated for the record, in the absence of the jury, that "the Court in this case finds and has permitted the prosecution latitude and the defendants in cross examination latitude [in] examination of this witness . . . on the ground that the witness has difficulty in understanding the questions because of immaturity, age, infirmity or ignorance and because the examinations *760 [are] directing his attention to the subject at hand without suggesting answers and the mode of questions by both State and defendants is collated to elicit truth." Under the circumstances, there was no need for the judge to conduct a formal voir dire to reach this conclusion. Furthermore, there has been no showing of prejudice to the defendants, see State v. Young, 291 N.C. 562, 231 S.E.2d 577 (1977); therefore, this assignment of error is overruled.

The defendants also contend that the court erred in allowing testimony concerning the offenses they committed in Tennessee some four hours after the crimes for which they were being tried occurred. We do not agree.

The testimony complained of was introduced as the State was trying to show the circumstances under which Mr. Miller's car, which was the subject of the auto larceny charges, and the two guns, which were directly involved in the armed robbery charges, were recovered. This testimony was essential in order to show that the objects at trial were the same as those involved in the crimes in question before the State could introduce the photographs of the car and the guns themselves into evidence. See State v. Harbison, 293 N.C. 474, 238 S.E.2d 449 (1977). This Court has stated:

"Evidence of other offenses is inadmissible if its only relevancy is to show the character of the accused or his disposition to commit an offense of the nature of the one charged; but if it tends to prove any other relevant facts it will not be excluded merely because it also shows him to have been guilty of an independent crime." State v. Poole, 289 N.C. 47, 50-51, 220 S.E.2d 320, 323 (1975) (quoting 1 Stansbury, North Carolina Evidence § 91 (Brandis rev. 1973)).

This assignment of error is overruled. Defendants' claim that they were entitled to a mistrial because of the admission of the above "prejudicial matter" likewise is without merit.

The defendants bring forth several assignments of error relating to the searches of them conducted in Tennessee after they were arrested in that state.

Defendant Larry claims that the introduction of the gun that was taken from him after being arrested in Tennessee "was remote and unduly prejudicial to the defendant's case before the jury." He cites no authority for this proposition. As we previously stated, the introduction of the guns and the circumstances under which they were obtained by the State were relevant and necessary. This argument is without merit.

Defendant Virginia attacks the search of her person at the Tennessee jail on the ground that the officers lacked probable cause. We cannot agree.

Upon the arrest of defendants, the Tennessee authorities immediately frisked the male defendant and seized the gun that was in plain sight in the waistband of his pants. At that time they also arrested the female defendant for public drunkenness but conducted only a visual search of her, finding and seizing nothing. Jerry Vaughn, a deputy sheriff of Watauga County, went to Tennessee later that morning and informed the officers that he had reason to believe the defendants had two guns. Defendant Virginia was then searched more fully, and a gun was found concealed in her blouse. It was seized and introduced at trial.

Clearly there was probable cause for the officers to fully search defendant Virginia at this time, and the circumstances were such that it was impractical to obtain a search warrant.

"When an arrest is made, it is reasonable for the arresting officer to search the person arrested in order to remove any weapons that the latter might seek to use in order to resist arrest or effect his escape. Otherwise, the officer's safety might well be endangered, and the arrest itself frustrated." Chimel v. California, 395 U.S. 752, 762-63, 89 S. Ct. 2034, 2040, 23 L. Ed. 2d 685, 694 (1969).

*761 The fact that the search was made some six or seven hours after defendant Virginia was arrested did not make it too remote in time or place to be a search incident to a lawful arrest. See generally Preston v. United States, 376 U.S. 364, 84 S. Ct. 881, 11 L. Ed. 2d 777 (1964). This assignment of error is overruled.

Defendant Larry argues that the trial court improperly limited his cross-examination of Howard Miller. His complaint relates to the following exchange:

"Q. You need a lot of help, don't you, try and get your story out. OBJECTION. SUSTAINED. Q. Mr. Miller, are you still selling LSD? A. I don't sell LSD. OBJECTION. SUSTAINED. Q. Are you giving it away? OBJECTION. SUSTAINED. A. I don't have none. Q. Well, you've sold drugs on several occasions, haven't you? OBJECTION. SUSTAINED. A. I do on numerous occasions take nerve pills which have been prescribed for me. Q. Oh, so you do take drugs, sometimes? OBJECTION. SUSTAINED."

In spite of the fact that the judge sustained the State's objections, the witness answered most of the questions, and no motion was made to strike. Therefore, the defendants had the practical benefit of the evidence and were not prejudiced by the judge's rulings. See State v. Hodges, 296 N.C. 66, 249 S.E.2d 371 (1978); State v. Edmondson, 283 N.C. 533, 196 S.E.2d 505 (1973). The other two questions were merely argumentative or repetitious, and it was within the trial court's discretion to exclude the witness' answers. See State v. Bumper, 275 N.C. 670, 170 S.E.2d 457 (1969). This assignment of error is overruled.

Defendants brought forward other assignments of error to this Court. We have examined them all and find them totally without merit.

We note that Rule 28(b)(2) of the North Carolina Rules of Appellate Procedure requires the appellant to include "a short non-argumentative summary of the essential facts underlying the matter in controversy where this will be helpful to an understanding of the questions presented for review" in his brief. This is in addition to the requirement that he include a concise statement of the case, dealing with the procedural posture of the case to date. As neither defendant-appellant supplied a factual summary, it was difficult for us to ascertain the facts by sifting through this lengthy record. Thus, our review of this case was more complicated than should have been necessary. See State v. Siler, 292 N.C. 543, 234 S.E.2d 733 (1977).

In defendants' trial we find

NO ERROR.

BROCK, J., took no part in the consideration or decision of this case.