State v. Black

290 S.E.2d 669, 305 N.C. 614, 1982 N.C. LEXIS 1333
Supreme Court of North Carolina·Decided May 4, 1982·No. No. 172A81·Published·Cited by 2 cases

Opinions

MITCHELL, Justice.

In this appeal, the defendant contends that the trial court erroneously allowed the district attorney to cross-examine and impeach a State’s witness and erroneously admitted incompetent evidence. For the reasons enunciated herein, we hold that the defendant had a fair trial free from prejudicial error.

On the evening of 16 April 1981, Artemus Peterson, then eight years old, and his brother Monte Peterson, seven years old, were approached by a man as they walked down a street near their home in Winston-Salem. The man asked if they knew -where someone named Ronnie lived. Acting pursuant to standing instructions from their mother, the boys feigned ignorance although they in fact knew where Ronnie lived.

The man grabbed the boys by the napes of their necks and threw them into the front seat of his 1970 Impala. He drove them to a house and parked in the driveway. They remained in the car, playing pattycake, while he went inside. When he returned, he drove by a convenience store and bought some red wine and a bag of Cheese Doodles. He finally took them to Winston Lake Park, parked and told them the car was out of gas.

He tried to make them drink the wine, but they repeatedly spit it out without swallowing. Monte eventually went to sleep in the back seat of the car, and the man took Artemus into some woods near the lake. After getting a drink of water, Artemus went to sleep on a park bench. When he awakened, his pants and underpants were off and his shirt was pulled up.

The man, naked from the waist down, approached the boy and according to Artemus, he “made me suck his weenie.” The man later attempted anal sex and hit the victim in the crotch with his fist.

Meanwhile, Officer J. A. Berry of the Winston-Salem Police Department discovered the Impala in the parking area. He awakened Monte, learned his identity, and took him home.

After warning Artemus to keep quiet or the KKK would throw him in the lake, the man drove him to a street corner near his home. Artemus arrived home shortly after the police took Monte there. The boys then related the evening’s events.

[616] The police ascertained an address by means of the license plate number of the Impala. Upon their arrival at the address, the door was answered by the defendant, Howard Black. When the defendant told them he was the only one who used the car, the officers asked him to come to police headquarters.

After the defendant was advised of his constitutional rights and he signed a rights waiver form, officers confronted him with the boys’ story. He denied any involvement. When the officers asked him to submit to having his photograph placed in a lineup with other photographs, he refused and instead demanded an immediate confrontation with his accusers. The boys were in fact brought to the police station and identified the defendant as the perpetrator.

The defendant first assigns that the trial court erroneously allowed the district attorney to lead one of the State’s witnesses. In questioning Steve Jones about the defendant Howard Black, the following exchange took place:

Q. (Mr. Tisdale) Does he walk with a limp?
A. Walk with a what?
Q. A limp.
A. I walk with a limp?
Q. Yes.
A. Yeah, walk with a stick.
Q. No, I’m talking about Howard Black.
A. No, not to my memory.
Q. Do you know whether he was ever in an automobile accident?
A. No, I do not. I do not.
Q. Does he walk with a limp?
Mr. Liner: Objection. He has already asked that.
THE COURT: Objection overruled. Go ahead and answer the question.
[617] Exception No. 2
Q. (Mr. Tisdale) Does he walk with a limp?
A. Nope.
Q. You’re under oath now, Mr. Black — I mean, Mr. Jones.
MR. LINER: Your Honor, I object. This is his witness. This is
not a cross examination.
The COURT: Well, go ahead and answer the question. The objection is overruled.
Exception No. 3
Q. (Mr. Tisdale) Does he walk with a limp?
A. Nope.

The defendant did not object to the original question “Does he walk with a limp?” Therefore, he waived any objection to the evidence as admitted and to the form of the question as propounded. His later attempt to object to the repetition of the question was of no avail. State v. Satterfield, 300 N.C. 621, 268 S.E. 2d 510 (1980).

Even had there been a timely objection, the trial court did not commit reversible error in allowing the examination as conducted. The examination of witnesses and the form of questions permitted are matters within the discretion of the trial court. State v. Bass, 280 N.C. 435, 186 S.E. 2d 384 (1972). Absent an abuse, the exercise of such discretion will not be disturbed on appeal. State v. Willis, 281 N.C. 558, 189 S.E. 2d 190 (1972). In its discretion, the trial court may in certain circumstances allow a prosecutor to ask a State’s witness leading questions. These include situations where the witness “has difficulty in understanding the question because of immaturity, age, infirmity or ignorance or where . . . the mode questioning is best calculated to elicit the truth.” State v. Greene, 285 N.C. 482, 492, 206 S.E. 2d 229, 236 (1974).

Mr. Jones was a semi-invalid stroke victim. From the outset of his testimony, he quite obviously had difficulty in comprehending and responding to questions. For example:

[618] Mr. TISDALE: Mr. Steve Jones. Is Mr. Jones in the courtroom? Mr. Jones, come up, please. You might want to come this way, Mr. Jones. You’ll have a little more room. Mr. Jones, will you be sworn, please? Will you be sworn on the Bible?
THE COURT: Raise your right hand, please. Let someone hold your cane there, sir. Thank you. You can raise your right hand. Put your hand up.
Whereupon, the witness, Steve Jones, first being duly sworn by the Court, on his oath testified as follows:
[4:03 o’clock p.m.]
THE COURT: Can you get up here all right, Mr. Jones. You have some steps to come up. Can you get up there all right?
THE WITNESS: I think so.
Direct Examination By Mr. Tisdale to Steve Jones:
Q. Would you tell us your name, please?
A. Beg pardon?
Q. Would you state your name, please.
A. State your name?
Q. What’s your name?
A. Steve Jones.

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State v. Black, 290 S.E.2d 669, 305 N.C. 614, 1982 N.C. LEXIS 1333 (N.C. 1982).

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