State v. Hunt

259 S.E.2d 322, 43 N.C. App. 428, 1979 N.C. App. LEXIS 3127
CourtCourt of Appeals of North Carolina
DecidedNovember 6, 1979
DocketNo. 7918SC395
StatusPublished

This text of 259 S.E.2d 322 (State v. Hunt) 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. Hunt, 259 S.E.2d 322, 43 N.C. App. 428, 1979 N.C. App. LEXIS 3127 (N.C. Ct. App. 1979).

Opinion

ERWIN, Judge.

The record reveals that the following occurred on redirect examination at the time Dr. Hudson was being questioned by Assistant District Attorney Greeson for the State:

“Q. Well, assuming then, Dr. Hudson, that the jury found as a fact that on October the 6th, 1977, Ralph Dilldine was hit with a stick — approximately twenty-four inches, I believe, is the width as he stated — to the left side of the neck and face area, do you have an opinion satisfactory to yourself as to what type of weapon was used?
A. If I understand your question, it is what sort of weapon could have hit him on the left side of the head?
Q. Yeah. Assume the jury found as a fact that he was struck, let’s just say, without the stick — just assuming that he was struck to the left side of his face on October the 6th, 1977, with a force sufficient enough to knock him down, do [431]*431you have an opinion as to what type of weapon that would be — and I mean and not leave any marks.
MR. KASTNER: Well, objection, your Honor.
A. Yes, in general terms.
COURT: Go ahead. Overruled.
A. It would have to be something very big and very soft like a sack of feathers.”

Defendant assigns error contending the witness, Dr. Hudson, expressed an improper opinion prejudicial to defendant.

On recross-examination pursuant to questions asked by Mr. Kastner, Dr. Hudson testified without objections as follows:

“The only kind of instrument that I know of that could have struck the left side of the head or neck and could have knocked him down and it left no mark would have been a large, fairly soft instrument. I am assuming that the blow was delivered by this instrument to a person who was completely stable and that the force of the blow provided all of the impetus for him falling. I am responding to the question as asked me. My response to the question was of a man who was more or less — not anchored — but steady on his feet and was driven off his feet by the force of some blow. A man who was intoxicated and might have been off balance because that sort of person could have fallen without any blow. None of us took a hair sample from Ralph Dilldine’s body in the area of this hematoma that I’ve talked about at the top of the head. I was not requested to do so by Detective Brown or any other officer to the best of my knowledge. I took no hair sample.”

The first hypothetical question propounded by Mr. Greeson was not answered by the witness. A defendant is not prejudiced by the mere asking of an unanswered, hypothetical question, even though the form of the question is objectionable. State v. Courtney, 25 N.C. App. 351, 213 S.E. 2d 403, cert. denied, 288 N.C. 245, 217 S.E. 2d 668 (1975).

In State v. Horton, 275 N.C. 651, 658, 170 S.E. 2d 466, 471 (1969), cert. denied, 398 U.S. 959, 26 L.Ed. 2d 545, 90 S.Ct. 2175, reh. denied, 400 U.S. 857, 27 L.Ed. 2d 97, 91 S.Ct. 25 (1970), our Supreme Court stated:

[432]*432“It is well established in this jurisdiction that a party cannot introduce testimony to impeach or discredit the character of his witness, and when in a criminal action a complete defense is established by the State’s evidence, a defendant may avail himself of such defense by a motion for judgment as of nonsuit. Yet, if the witness testifies to facts against the State’s contentions, the State is not precluded from showing the facts to be other than as testified to by the witness. State v. Jarrell, 233 N.C. 741, 65 S.E. 2d 304; State v. Todd, 222 N.C. 346, 23 S.E. 2d 47; State v. Cohoon, 206 N.C. 388, 174 S.E. 91; Smith v. R. R., 147 N.C. 603, 61 S.E. 575.”

In the case sub judice, the State was attempting to show the facts to be other than those testified to by the witnesses. In light of the additional testimony at defendant’s behest, we find no merit in defendant’s claim of prejudice resulting from Dr. Hudson’s response to the second hypothetical question.

During the course of the trial, Betty Allen testified for the State in part as follows:

“A. And we sat around in there and talked some more. And Faye, the lady that was in there with us, she jumped on Mr. Hunt about slapping me and she told him that he shouldn’t have done it.
* * *
A. Anyway, she told him that he should not have done it and that there was no real reason for him slapping me and losing his temper at me. So Mr. Hunt apologized to me and I accepted it because — well, he was drinking and I know how he loses his temper when he’s drinking.
Mr. Kastner: Objection and move to strike, your Honor. Ask that the jury be instructed.
COURT: Members of the jury, you’ll not consider what she knows about how he is when he loses his temper when he’s drinking.
Q. Then what happened?
A. Okay —
[433]*433MR. KASTNER: Like to MOVE FOR A MISTRIAL, your Honor.
COURT: MOTION DENIED and exception.”

Defendant contends that the trial court committed error in admission of the testimony and in the failure of the court to declare a mistrial. Defendant contends that the withdrawal and subsequent instructions were not sufficient to cure the prejudicial effect of the elicited testimony. We do not agree.

Whether instructions can cure the prejudicial effect of incompetent statements depends primarily on the nature of the evidence and the particular circumstances of the individual case. State v. Hunt, 287 N.C. 360, 215 S.E. 2d 40 (1975); State v. Aldridge, 254 N.C. 297, 118 S.E. 2d 766 (1961). In the case sub judice, the trial court’s instructions were prompt and specific. The evidence to be disregarded was not of a highly prejudicial nature. At the time the evidence complained of was admitted, three other witnesses had testified without objections that defendant had been drinking and that he and Dilldine had gotten into an argument earlier in the evening. George Dobbins testified that defendant had threatened to kill Dilldine. Edward Lee Hunt had testified that defendant came in the house and got his stick before he went out to where Dilldine was in the street. From the evidence, a jury could infer that the defendant had been drinking and had lost his temper before going out into the street. Defendant’s reliance on State v. Aycoth, 270 N.C. 270, 154 S.E. 2d 59 (1967), is misplaced. Aycoth, supra, held that in cross-examination of a codefendant in the prosecution of defendants for armed robbery where the codefendant made an unresponsive answer disclosing that defendant had been indicted for murder, the unresponsive answer was of sufficient prejudicial nature to award defendant a new trial, although the court instructed the jury not to consider such evidence. Here, the reference to defendant’s prior loss of temper was not so prejudicial as to warrant a new trial. We find no merit in this assignment of error.

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Related

State v. Jarrell
65 S.E.2d 304 (Supreme Court of North Carolina, 1951)
State v. Aycoth
154 S.E.2d 59 (Supreme Court of North Carolina, 1967)
State v. Beach
196 S.E.2d 214 (Supreme Court of North Carolina, 1973)
State v. Bailey
185 S.E.2d 683 (Supreme Court of North Carolina, 1972)
State v. Hunter
227 S.E.2d 535 (Supreme Court of North Carolina, 1976)
State v. Hunt
215 S.E.2d 40 (Supreme Court of North Carolina, 1975)
State v. Doss
183 S.E.2d 671 (Supreme Court of North Carolina, 1971)
State v. Covington
226 S.E.2d 629 (Supreme Court of North Carolina, 1976)
State v. Aldridge
118 S.E.2d 766 (Supreme Court of North Carolina, 1961)
State v. Courtney
213 S.E.2d 403 (Court of Appeals of North Carolina, 1975)
State v. Horton
170 S.E.2d 466 (Supreme Court of North Carolina, 1969)
State v. . Cohoon
174 S.E. 91 (Supreme Court of North Carolina, 1934)
Smith v. . R. R.
61 S.E. 675 (Supreme Court of North Carolina, 1908)
State v. . Todd
23 S.E.2d 47 (Supreme Court of North Carolina, 1942)
State v. Cohoon
206 N.C. 388 (Supreme Court of North Carolina, 1934)

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Bluebook (online)
259 S.E.2d 322, 43 N.C. App. 428, 1979 N.C. App. LEXIS 3127, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-hunt-ncctapp-1979.