State v. Boyd

242 S.E.2d 541, 35 N.C. App. 707, 1978 N.C. App. LEXIS 3065
CourtCourt of Appeals of North Carolina
DecidedApril 4, 1978
DocketNo. 775SC893
StatusPublished

This text of 242 S.E.2d 541 (State v. Boyd) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Boyd, 242 S.E.2d 541, 35 N.C. App. 707, 1978 N.C. App. LEXIS 3065 (N.C. Ct. App. 1978).

Opinion

ARNOLD, Judge.

After the State’s witness Alan Strickland testified that he firmly believed defendant Boyd was not the man who robbed him at New Hanover Market, Strickland was cross-examined by defendant’s counsel. On redirect examination, the State attempted to impeach the credibility of its own witness, and defendant ob[709]*709jected. A voir dire hearing was held, and Strickland stated that he had told the Assistant District Attorney that morning that he would tell him if defendant was not the man who committed the robberies, and that he had not told him prior to his taking the stand. Strickland further stated that he was not sure that defendant was not the man until he took the witness stand. At the close of the voir dire the court ruled that the State could examine Strickland as an adverse witness. Defendant contends that the court erred in this ruling. We disagree.

Our Supreme Court, in State v. Pope, 287 N.C. 505, 215 S.E. 2d 139 (1975), examined the generally recognized exception to the rule that the solicitor (or district attorney) may not impeach a State’s witness by evidence that the witness has made prior statements inconsistent with his testimony. The exception allows impeachment “where the party calling the witness has been misled and surprised or entrapped to his prejudice.” State v. Pope, supra at 512, 215 S.E. 2d at 144, quoting Green v. State, 243 Md. 154, 157, 220 A. 2d 544, 546 (1966). Our Supreme Court, in discussing the exception to the anti-impeachment rule, stated:

“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. . . .
“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.”

287 N.C. at 512-13, 215 S.E. 2d at 145.

[710]*710Defendant argues that our Supreme Court thereby established a procedural framework for invoking the exception to the anti-impeachment rule and that the State failed to follow it in the instant case. First, defendant argues, instead of passing the witness to defendant for cross-examination the State should have moved to examine Strickland as an adverse witness on direct, and that the motion came too late on redirect examination. During voir dire, however, Strickland stated that he had told the assistant district attorney who was handling the case that he would inform him if he decided defendant was not the man. We do not believe that the State’s passing the witness to defendant negated the existence of surprise, and we find no error in the discretionary ruling by the trial court to allow the State’s motion.

Defendant next argues that the court erred in not making findings of fact after the voir dire hearing. The evidence on the voir dire, however, clearly established the surprise of the State so that we see no prejudicial error in the court’s failure to state a finding of surprise. While the trial court might have stated the extent to which the inconsistent statements were offered, we can find no prejudicial error in the court’s failure to do so.

The second assignment of error brought forth by defendant is that the court erred in its own questioning of Alan Dale Strickland. We have reviewed pertinent parts of the record and find nothing improper in the court’s questions. The trial court may ask questions of witnesses which may aid in clarifying the witness’s testimony and which are not prejudicial to either party. See, e.g. State v. Bunton, 27 N.C. App. 704, 220 S.E. 2d 354 (1975). The following excerpt from the record contains the portions to which defendant took exception. Mr. Strickland stated, on redirect examination:

“As to what feature about the defendant or about the individual who had the shotgun on the 29th of January, what features did I notice that I felt would assist me in being able to recognize him if I saw him again, I say he had a wool like toboggan sitting on the top part of his head pulled down. He had three to four teeth out. Small moustache maybe to the side of his upper lip. He was short and he had on a long green like a Marine field jacket on. This morning after I first [711]*711saw the defendant I did not have a conversation with Det. Wolak. I spoke to him over here on the bench. He did not ask me a question about this defendant. He did not speak directly to me but he was speaking to all of us, Mr. Kentrolis and Anna Pickett, and he looked right at me and I nodded my head too. I shook my head like that.
“Q. Indicating that you did recognize him?
“Mr. Larrick: Object.
“A. At that moment, yes sir.
“Mr. Larrick: I object.
“COURT: What did you mean to indicate by nodding your head?
“A. At that time ‘Yes’.
“COURT: Yes what?
“Exception No. 4.
“A. That he was the person.
“Court: Go ahead.
“I did say that I was a friend of Charles Kentrolis. I had not been working on this particular day, the 29th of January. I had been at Castle Hayne before I went out to the fruit stand. I was at the Shamrock Grill at Castle Hayne. The Shamrock Grill. I did not have anything to drink while I was there. I met him there.
“Recross EXAMINATION by Mr. Larrick:
“My personal opinion as to how tall the man was that committed the robbery was that he was a couple of inches taller than I am. I am five foot five inches. That would make the man approximately five foot seven. His hair was about the same length as this gentleman here.
“COURT: For clarification, Mr. Strickland, this Court and this jury may not be clear as to what you are or are not saying so let me ask you this. This morning before the trial began were you then certain that this defendant was the [712]*712man who committed the robbery or not? Were you then certain or not?
“Exception No. 5.
“A. At the time, yes. The more I looked at the man the more I thought about it. I am not sure. I can’t say positively.
“COURT: So you are not saying you have now changed your mind.
“Exception No. 6.
“A. No, sir. I am saying that I don’t think this is the man that robbed the store.

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Related

State v. Bunton
220 S.E.2d 354 (Court of Appeals of North Carolina, 1975)
State v. Pope
215 S.E.2d 139 (Supreme Court of North Carolina, 1975)
State v. Byrd
177 S.E.2d 738 (Court of Appeals of North Carolina, 1970)
Green v. State
220 A.2d 544 (Court of Appeals of Maryland, 1966)

Cite This Page — Counsel Stack

Bluebook (online)
242 S.E.2d 541, 35 N.C. App. 707, 1978 N.C. App. LEXIS 3065, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-boyd-ncctapp-1978.