State v. Pilkington

276 S.E.2d 389, 302 N.C. 505, 1981 N.C. LEXIS 1070
CourtSupreme Court of North Carolina
DecidedApril 7, 1981
Docket65
StatusPublished
Cited by5 cases

This text of 276 S.E.2d 389 (State v. Pilkington) 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. Pilkington, 276 S.E.2d 389, 302 N.C. 505, 1981 N.C. LEXIS 1070 (N.C. 1981).

Opinions

BRANCH, Chief Justice.

By assignments of error four and five, defendant contends that the trial court erred in denying his motion for appropriate relief on grounds that he was denied a fair trial and deprived of his constitu[507]*507tional right to due process. Defendant maintains that the trial judge erred in permitting the prosecutor to cross-examine him concerning prior convictions based on an erroneous criminal record.

The portion of the cross-examination pertinent to the question here presented is as follows:

Q. I believe you testified on direct examination that you had lived in both Johnston County and Wake County before, is that correct?
A. Right.
Q. Okay. Have you ever lived at 304 Linden Avenue in Raleigh?
A. Where again?
Q. 304 Linden Avenue in Raleigh?
A. No.
Q. Ever lived at 814 Wake Forest Road in Raleigh?
A. No.
Q. Have you ever lived at 3714 Old Garner Road?
A. No.
Q. Could you tell me the places you have lived in Raleigh?
A. Dacian Road and Cameron Court Apartments. Then Hillsborough and Morgan.
Q. Okay. Did you ever live at 324 North Moore Street in Clayton, North Carolina?
A. Yes, I did.
Q. And that is in Johnston County, isn’t it?
A. Right.
Q. Okay. And I believe that you testified on direct examination that you had been convicted in Johnston County of an offense, is that correct?
A. Yes.
[508]*508Q. And what offense was that offense that you had had and convicted?
A. Detaining an officer in the line of duty.
Q. Is that resisting, obstructing and delaying, is that the nature of the charge?
A. Repeat that again.
Q. Resisting, obstructing and delaying a law enforcement officer in the carrying out of his duties, is that the charge?
A. I wouldn’t consider it so but I don’t know. That is what is on the record.
Q. When was that conviction, sir?
A. I believe it was ’74.
Q. And what, if anything, else besides that have you been convicted of or pled guilty to?
A. Nothing other than traffic violations.
Q. Okay. Isn’t it, isn’t it a fact that at the present time you are under a suspended sentence?
MR. COOK: Objection.
COURT: The objection is sustained. You are to give no consideration to an unanswered question. An answer to the question is evidence.
Q. Mr. Pilkington, have you ever been convicted of driving under the influence?
A. No. I don’t drink.
Q. And have you ever been convicted of_
MR. COOK: Objection.
COURT: Overruled.
EXCEPTION.
DEFENDANT’S EXCEPTION NO. 8
[509]*509Q. Have you ever been convicted of reckless driving?
A. No.

In support of his motion for appropriate relief, defendant offered evidence tending to show that the above-quoted cross-examination concerning convictions of driving under the influence and reckless driving was based upon the record of another person named Willie Pilkington and that during the cross-examination, the prosecutor referred to and appeared to read from a document of some kind.

In opposition to the motion, the State offered the affidavit of Linda C. Mobley, the assistant district attorney assigned to the case. She averred that pursuant to a request for voluntary discovery she met defendant’s attorney, Mr. Rodney Cook, on 22 March 1979 and without any court order orally provided him with information requested by him. She specifically noted that she had furnished information indicating that Willie Pilkington had been convicted of and pled guilty to several traffic offenses including a “reckless driving” charge which had been reduced from an original charge of driving under the influence. She further informed defense counsel that according to information furnished her, defendant was at that time under a suspended sentence as a result of his plea of guilty to the “reckless driving” charge. The affidavit also stated that prior to trial, and over his counsel’s objection, defendant had personally talked with her and at no time before trial did Mr. Cook or defendant inform the prosecutor that the information furnished was incorrect. After trial she and Mr. Cook discussed the accuracy of the records, and further investigation disclosed that defendant and the Willie Pilkington charged with driving under the influence had different birthdays. This information did not appear on the disposition record in the clerk’s office but only appeared on the original citations for the traffic offenses.

Defendant offered no evidence at the hearing to refute Ms. Mobley’s affidavit.

At the conclusion of the hearing, Judge McLelland found facts consistent with those set out above and further concluded (1) that the State had “a reasonable basis for believing the charges and convictions were in fact those of defendant,” (2) that the questions asked on cross-examination were asked in good faith and that defendant was not prejudiced by the questions, and (3) that defendant [510]*510“received a fair trial on these matters.” The court thereupon denied defendant’s motion for appropriate relief for a new trial.

The rule in this jurisdiction is that, for purposes of impeachment, a witness, including a defendant in a criminal case, is subject to cross-examination concerning his convictions of crimes. State v. Williams, 279 N.C. 663, 185 S.E. 2d 174 (1971). Likewise, a defendant who elects to testify may be questioned concerning specific acts of criminal and degrading conduct. In both instances, the State is bound by the witness’s answers and may not introduce extrinsic evidence to contradict them. Both rules are further subject to the proviso that the questions asked by the prosecutor must be based on information and must be asked in good faith. State v. McLean, 294 N.C. 623, 242 S.E. 2d 814 (1978).

In the instant case, defendant does not contend that the prosecutor acted in bad faith. Furthermore, it does not appear that the prosecutor lacked sufficient information upon which to base her questions on cross-examination. She initially relied upon the “indexes to criminal actions” which were records kept in the office of the Clerk of Superior Court of Wake County.

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State v. Pilkington
276 S.E.2d 389 (Supreme Court of North Carolina, 1981)

Cite This Page — Counsel Stack

Bluebook (online)
276 S.E.2d 389, 302 N.C. 505, 1981 N.C. LEXIS 1070, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-pilkington-nc-1981.