State v. Dawson

268 S.E.2d 572, 48 N.C. App. 99, 1980 N.C. App. LEXIS 3193
Court of Appeals of North Carolina·Decided August 5, 1980·No. No. 8017SC84·Published·Cited by 2 cases

Opinion

HEDRICK, Judge.

Our disposition of defendant’s ninth and tenth assignments of error makes it unnecessary for us to discuss his remaining arguments on appeal. We conclude that the prosecutor imper-missibly harassed a key defense witness on a collateral matter such as to destroy the witness’s credibility on the critical issues involved in the case with neither a concrete showing nor an inference raised by the circumstances that he was acting in good faith. In refusing to restrain the prosecutor’s conduct or at least to require that the prosecutor demonstrate legitimate grounds for his harassment, the trial judge committed prejudicial error which deprived the defendant of his constitutionally guaranteed right to a fair trial. For this reason the defendant is entitled to a new trial.

[104] The error obtains in the following colloquy which occurred between the prosecutor and the defendant’s mother on cross-examination, to which defense counsel to no avail “vigorously” and repeatedly objected:

Q. Have you on any occasion or occasions shoplifted?
Mr. Robinson: Objection.
A. No, I was not.
Q. Do you know what I am talking about?
A. I assume by shoplifting you mean stealing.
Q. Do you often —
Mr. Robinson: Objection to the question.
Court: Overruled.
Q. Have you at any time or times picked up things from Mann’s Drug Store without paying for them?
Mr. Robinson: Objection.
Court: Overruled.
A. They have been charged, no, I never picked up anything without paying for them.
Q. I will ask if you carried them home, left the store without paying for them?
Mr. Robinson: Objection.
Court: Overruled.
A. They had been charged to the account.
[105] Q. Without saying anything to anybody about it?
A. Not that I know of.
Q. And that if some of the articles were not returned?
A. I have never stolen anything in my life.
Q. No further questions.
Court: Members of the jury, you may not consider the implication of the question.

We recognize that, for purposes of impeachment, a witness may be cross-examined by the asking of “disparaging questions concerning collateral matters relating to his criminal and degrading conduct.” State v. Williams, 279 N.C. 663, 675, 185 S.E. 2d 174, 181 (1971). Cf. State v. Purcell, 296 N.C. 728, 252 S.E. 2d 772 (1979) (clarifying the rule that the questions must concern particular acts of misconduct.) However, such cross-examination is limited by the requirement that the questions be asked in good faith. See, e.g., State v. Purcell, supra; State v. Spaulding, 288 N.C. 397, 219 S.E. 2d 178 (1975) (stating the rule), death sentence vacated, 428 U.S. 904, 96 S. Ct. 3210, 49 L. Ed. 2d 1210 (1976); State v. Lowery, 286 N.C. 698, 213 S.E. 2d 255 (1975), death sentence vacated, 428 U.S. 902, 96 S. Ct. 3203, 49 L. Ed. 2d 1206 (1976); State v. Ross, 275 N.C. 550, 169 S.E. 2d 875 (1969), cert. denied, 397 U.S. 1050, 90 S. Ct. 1387, 25 L. Ed. 2d 665 (1970). This means simply that the questions must be grounded in fact. The prosecutor may not “inject into the trial of a cause to the prejudice of the accused by argument or by insinuating questions supposed facts of which there is no evidence.” State v. Phillips, 240 N.C. 516, 524, 82 S.E. 2d 762, 767 (1954). Nor may he “needlessly badger or humiliate” the witness by asking insulting or impertinent questions which he knows will not elicit competent or relevant evidence. State v. Daye, 281 N.C. 592, 596, 189 S.E. 2d 481, 483 (1972).

Nowhere in the record before us does any basis for this attack on this witness appear. If it appears at all that the [106] prosecutor had a basis for asking these questions, it appears solely from the asking, and therein lies the problem with the court’s refusal to require a showing that the questions were asked in good faith. Implicit in the asking is the accusation and appearance of guilt, as well as the impression that the prosecutor “had knowledge of evidential facts sufficient to support these insinuations.” State v. Foster, 284 N.C. 259, 283-84, 200 S.E. 2d 782, 799 (1973) (Chief Justice Bobbitt dissenting). See also State v. Phillips, supra. Obviously, the witness’s credibility already was inherently suspect by virtue of her relationship to the defendant. In our opinion, in his persistence and despite Mrs. Dawson’s protestations to the contrary, the prosecutor succeeded through these questions in totally destroying her testimony by portraying her to be a thief. The portrayal, as far as we can tell, was baseless. Under the circumstances disclosed by this record, we think deference to the dictates of fair play and constitutionally administered justice at a minimum mandated the judge to ascertain whether the prosecutor did have grounds for asking the questions. A simple bench conference should have been sufficient. If the judge was unwilling to test the prosecutor’s good faith or if a test revealed no basis for such harrassment, then the judge should not have permitted the questions to continue. Defense counsel’s objections to their asking should have been sustained.

Moreover, under the circumstances present in this case, we think it plain that the judge’s admonition to the jury to disregard the “implication of the question” came far too late and was too ambiguous to erase the error. At that point, Mrs. Dawson had been asked at least six questions regarding her “shoplifting” activities. Had the instruction been given after only one such question, we doubtless would have found it adequate to cure the impropriety. However, coming as late as it did, after the prosecutor had indicated he was finished with the witness, and being phrased in the singular as it was, the admonition in our opinion was wholly ineffectual.

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State v. Dawson, 268 S.E.2d 572, 48 N.C. App. 99, 1980 N.C. App. LEXIS 3193 (N.C. Ct. App. 1980).

268 S.E.2d 572 (State v. Dawson) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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