State v. Burgin

329 S.E.2d 653, 313 N.C. 404, 1985 N.C. LEXIS 1549
CourtSupreme Court of North Carolina
DecidedMay 7, 1985
Docket75A84
StatusPublished
Cited by32 cases

This text of 329 S.E.2d 653 (State v. Burgin) is published on Counsel Stack Legal Research, covering Supreme Court 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. Burgin, 329 S.E.2d 653, 313 N.C. 404, 1985 N.C. LEXIS 1549 (N.C. 1985).

Opinions

FRYE, Justice.

Defendant raises two issues on this appeal. He first argues that the trial court erred in allowing the State to ask certain [405]*405questions during cross-examination of defendant and certain of defendant’s witnesses. Secondly, defendant contends that the trial court erroneously instructed the jury when the trial court denied the jury’s request to have certain testimony read to it after beginning deliberations. After reviewing the record, the parties’ briefs and arguments, and the relevant law, we find that the actions complained of by defendant do not constitute error on the part of the trial court.

Facts

Evidence for the State tended to show that on Monday, 31 January 1983, the victim was approximately seven years ten months old and lived in a small town in North Carolina with her mother, her stepfather and two younger sisters. On that date, the victim and a younger sister were taken to the home of defendant and his wife while the victim’s mother went to the hospital to give birth to a child. On the afternoon of 1 February 1983, while defendant’s wife was at work, defendant allegedly put his hand in the victim’s pants and rubbed her genitalia. On 2 February 1983, defendant allegedly put some vaseline on one of his fingers and inserted it into the victim’s vagina. He told the victim not to tell anyone that he had done this. Defendant also asked the victim to rub him between his legs but she refused.

The victim and her younger sister were taken home the following day when their mother returned from the hospital. Defendant and his wife had supper with the victim’s family and then, as they were about to leave, the victim’s mother asked the victim to go kiss them “bye.” The victim kissed defendant’s wife and then went into her bedroom. When the victim’s mother went in to ask her why she had not kissed defendant “bye,” the victim started crying. When her mother asked her what was wrong, she told her that Leon, the defendant, had rubbed her between her legs and that he had put vaseline on one of his fingers and put it “up into” her.

The victim’s mother immediately called the sheriffs department and then took the victim to the hospital. At the hospital, the victim told the examining physician and nurse what defendant had done to her. The physician discovered a small tear in the victim’s hymen.

[406]*406Defendant presented witnesses and testified on his own behalf. His evidence tends to show that he did take care of the victim and her younger sister on the dates in question, although he denies having had any sexual relations with the victim.

I.

Defendant first argues that the trial court erred in permitting the State to ask certain questions of defendant and his witnesses during cross-examination. More specifically, defendant contends that the State “improperly chartered a course of proving that the defendant committed the offense in this case by proving with improper inference and innuendo, prior alleged ‘bad acts’ of the defendant.” Thus, as defendant further argues, this improper cross-examination of the defendant and his witnesses deprived him of a fair trial and due process of law. We disagree.

Certain legal principles assist us in determining whether the cross-examination in this case was improper. Generally, when a witness, including a defendant in a criminal case, takes the stand and testifies in his own behalf, the opposing party has an absolute right to cross-examine the witness. State v. Davis, 291 N.C. 1, 229 S.E. 2d 285 (1976); see, e.g., 1 Brandis § 35 (2d rev. ed. 1982); McCormick on Evidence § 19 (1984). If the witness during direct examination raises specific issues, he “opens the door” to an inquiry into these subject areas during cross-examination. State v. Albert, 303 N.C. 173, 277 S.E. 2d 439 (1981); State v. Small, 301 N.C. 407, 272 S.E. 2d 128 (1980). Furthermore, our courts have traditionally been liberal in allowing extensive questioning during cross-examination of witnesses. State v. Huskins, 209 N.C. 727, 184 S.E. 2d 480 (1936); McCormick on Evidence, supra, § 21 (this practice is referred to by legal scholars and commentators as the wide-open cross-examination or the English Rule); 1 Brandis, supra, § 35.

“On cross-examination much latitude is given counsel in testing for consistency and probability matters related by a witness on direct examination.” Maddox v. Brown, 233 N.C. 519, 524, 64 S.E. 2d 864, 867 (1951). One of the primary purposes of allowing cross-examination in this manner is “to elicit further details of the story related on direct, in the hope of presenting a complete picture less unfavorable to the cross-examiner’s case; . . .” 1 Brandis, supra, § 35 at 145. Evidence thus becomes ad[407]*407missible to explain or rebut other evidence put in by the defendant himself. State v. Small, 301 N.C. 436, 272 S.E. 2d 128; State v. Black, 230 N.C. 448, 53 S.E. 2d 443 (1949). Finally, the legitimate bounds of cross-examination are largely within the discretion of the trial judge. State v. Cox, 296 N.C. 388, 250 S.E. 2d 259 (1979).

Our review of the trial judge’s rulings on the objections to questions asked during cross-examination is guided by the following considerations:

The prosecuting officer has the right, and it is his duty, to cross examine a defendant who testifies in his own defense. A well-directed cross examination may disclose fallacies, if any, in the defendant’s testimony and thus aid the jury in its search for the truth. A cross examination, especially where there are no eyewitnesses, should be searching, but at all times it should be fair. The trial judge hears all witnesses and observes their demeanor as they testify. He knows the background of the case and is thus in a favorable position to control the scope of the cross examination. The appellate court reviews a cold record. For this reason, the trial court, because of its favored position, should have wide discretion in the control of the trial. Its rulings should not be disturbed except when prejudicial error is disclosed. (Citations omitted.)

State v. Ross, 275 N.C. 550, 553, 169 S.E. 2d 875, 878 (1969), cert. denied, 397 U.S. 1050 (1970).

It should be noted at the outset that not all of the allegedly improper questions asked by the State were objected to by defendant’s trial counsel. Generally, failure to object at trial to a question waives such objection. State v. Black, 308 N.C. 736, 303 S.E. 2d 804 (1983). However, when the improper questioning is so prejudicial or so grave that it results in plain error, a new trial will be granted notwithstanding the absence of an objection. Id.

In the case before us, defendant testified on direct as follows:
Q. Now, Mr. Burgin, have you ever had any problems with young children or any kind of sexual problems?
A. No, sir.
[408]*408Q. I believe that sometime, ten or some odd years ago while you were operating a restaurant, you had a marijuana charge against you.
A. Yes, sir.
Q. I believe you had a traffic charge here four or five years ago.
A. Yes, sir.
Q. Have you had anything else? Violations of the law?

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Bluebook (online)
329 S.E.2d 653, 313 N.C. 404, 1985 N.C. LEXIS 1549, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-burgin-nc-1985.