State v. Kimbrell

351 S.E.2d 801, 84 N.C. App. 59, 1987 N.C. App. LEXIS 2462
CourtCourt of Appeals of North Carolina
DecidedJanuary 20, 1987
DocketNo. 8622SC545
StatusPublished
Cited by2 cases

This text of 351 S.E.2d 801 (State v. Kimbrell) 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. Kimbrell, 351 S.E.2d 801, 84 N.C. App. 59, 1987 N.C. App. LEXIS 2462 (N.C. Ct. App. 1987).

Opinion

WELLS, Judge.

Defendant contends the court erred in allowing the State to cross-examine him about his knowledge and participation in “devil worshipping.” Defendant also contends that the court erred in allowing the State to cross-examine him about his son’s attempt to “sneak” or “smuggle” marijuana to him while defendant was being held in custody. For the reasons below, we hold that the court erred in both instances by permitting such questioning, but that these errors were not sufficiently prejudicial to warrant a new trial in light of the substantial evidence of defendant’s guilt.

After defendant’s arrest, he made a statement while in custody in which he referred to his knowledge of and participation in “black magic” with a group that included Ricky Norman and others. The State’s cross-examination of defendant was based, in part, on this prior statement. Defendant’s cross-examination proceeded, in pertinent part, as follows:

Q. Have you done any devil worshipping?
A. No, sir.
MR. KLASS: Object.
The COURT: Overruled.
MR. ZIMMERMAN: Thank you.
Q. Have you ever been to any ceremonies?
A. No, sir.
Q. Have you seen things at night?
A. No, sir.
Q. Birds, hawks, dogs, a number of things?
A. No, sir.
Q. You don’t recall telling Special Agent Leggett of the SBI that you saw those things?
A. No, sir.
Q. “I saw a goat head made out of brass in the vision”?
MR. LOHR: Objection.
[62]*62The COURT: Overruled.
Q. And you and Luther on Friday the 13th —April, Friday the 13th, you-all were supposed to go to a seance, isn’t that right?
A. That’s what Bobby Tucker said.
Q. Huh?
A. That’s what Curtis Robert Tucker said.
Q. Well, you were supposed to go, weren’t you?
MR. LOHR: Objection.
THE COURT: Overruled.
A. I was invited.
THE COURT: You may answer the question.
A. (continuing) I was invited to it, and when I got up on Main Street to go down toward Luther’s house I seen some police officers going down towards Luther’s, and I kept going straight.
Q. A police officer?
A. I seen two carloads going down towards Luther’s.
Q. And of course that scared you?
A. Yes, sir.
[[Image here]]
Q. Did you tell them you wanted to show them something that Bob and Luther gave you about some little swords — some little bitty swords, something about they had power?
A. That’s what they told me.
MR. LOHR: Objection.
The COURT: Overruled.
Q. Go ahead. What? Answer the question. You’ve got to answer the question.
[63]*63A. I told them about the swords, yes, sir. I wasn’t talking about myself, I was explaining about Luther Flynn at the time, if you’ll remember.
Q. You had one of these black magic bibles, too, didn’t you?
A. No, sir.
Mr. LOHR: Objection.
THE COURT: Overruled.
Q. Who had the bible? Who had the bible?
A. Luther Flynn had the bible.
Q. Had he ever read any of it to you?
A. Yes, sir.
MR. LOHR: Objection. Objection.
The COURT: Overruled.
Q. Were Ricky and Pam Norman involved in this black magic stuff?
A. I don’t know, sir.
Q. What did that consist of? Worshipping the devil?
MR. LOHR: Objection.
THE COURT: Overruled.
A. I don’t know, sir.
Q. What did that black bible Luther had have to say about it?
MR. LOHR: Objection.
THE COURT: Overruled.
Q. You can answer.
A. It’s just a bunch of words. I don’t know. I didn’t pay any attention to it.

[64]*64The State contends that this evidence was admissible under N.C. Gen. Stat. § 8C-1, Rule 608(b) of the North Carolina Rules of Evidence, which provides that:

(b) Specific instances of conduct. — Specific instances of the conduct of a witness, for the purpose of attacking or supporting his credibility, other than conviction of crime as provided in Rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning his character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified.

The State argues that “defendant’s involvement and belief in ‘devil-worshipping’ is conduct directly related to the issue of his truthfulness since ‘devil-worship’ is by definition, glorification of the archetypal embodiment of evil and deceit.” However, Rule 610 expressly provides that:

Evidence of the beliefs or opinions of a witness on matters of religion is not admissible for the purpose of showing that by reason of their nature his credibility is impaired or enhanced; provided, however, such evidence may be admitted for the purpose of showing interest or bias.

Accordingly, even assuming that this evidence was probative of defendant’s veracity as the State contends, it was nevertheless inadmissible under Rule 610 for that purpose. Cf. State v. Reilly, 71 N.C. App. 1, 321 S.E. 2d 564 (1984), aff'd on other grounds, 313 N.C. 499, 329 S.E. 2d 381 (1985) and 1 Brandis, North Carolina Evidence § 55 (1983 Supp.).

The commentary to Rule 610 provides that “[e]vidence probative of something other than veracity is not prohibited by the rule.” In this regard the State contends that this evidence was admissible to show motive and identity under Rule 404(b). Specifically, the State contends that this evidence supported its theory that defendant and the Normans “were involved in a group tied together by drug dealings, black magic and other illicit activities, and that defendant was motivated to have the Normans killed [65]

Free access — add to your briefcase to read the full text and ask questions with AI

Related

State v. Kimbrell
360 S.E.2d 691 (Supreme Court of North Carolina, 1987)

Cite This Page — Counsel Stack

Bluebook (online)
351 S.E.2d 801, 84 N.C. App. 59, 1987 N.C. App. LEXIS 2462, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-kimbrell-ncctapp-1987.