State v. Rogers

264 S.E.2d 89, 299 N.C. 597, 1980 N.C. LEXIS 988
CourtSupreme Court of North Carolina
DecidedApril 1, 1980
Docket39
StatusPublished
Cited by48 cases

This text of 264 S.E.2d 89 (State v. Rogers) 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. Rogers, 264 S.E.2d 89, 299 N.C. 597, 1980 N.C. LEXIS 988 (N.C. 1980).

Opinions

[600]*600BRITT, Justice.

Defendant contends that the trial court committed prejudicial error in admitting the testimony of Lieutenant Daniel Qualls, a detective with the Alamance County Sheriff’s Department. The essence of defendant’s contention is that the officer was able to testify in a narrative fashion as to his interpretation of the events which occurred on the evening of 24 December 1977. By so doing, he was then able to fill in portions of the narrative which were crucial to the state’s case but which had not been testified to by any of the state’s witnesses. Defendant therefore concludes that the testimony of the detective was not corroborative in nature but was, in fact, incompetent hearsay whose admission entitles him to a new trial. We disagree.

During the presentation of the state’s case-in-chief, Robert Moore testified on direct examination that

[Defendant] went around the car from the front of it and opened the door and pulled this guy out. There were no lights except the headlights. . . . Well, he — he—he pulled him out and went to the bridge with him. I heard Charlie [Phillips] say, ‘Man,’ say, ‘don’t throw that boy in that cold-ass water,’ and about this time I heard the water splash. ... I heard the water splash and just continued sitting in the car. I didn’t hear anybody say anything except Charlie. As to what happened outside the car, it was sort of a blur like and dark outside the car. I saw him when he pulled the Yancey boy out of the car onto the bridge with him.

Later on in the state’s case-in-chief, Detective Qualls testified regarding a conversation he had with Robert Moore on 12 January 1978. On direct examination, the officer testified that Moore told him that

. . . the defendant, Wilbert Rogers, gets out, goes around in front of the vehicle, opens the passenger’s door on the car, takes the defendant — correction, takes the victim, Talmadge Yancey, out, takes him over to the side of the bridge and throws him over. He heard the man hit the water, hears the splash. From the time he heard the — heard the splash, he didn’t hear any more struggling, no more splashing in the water.

[601]*601Corroborative testimony is testimony which tends to strengthen, confirm, or make more certain the testimony of another witness. See State v. Case, 253 N.C. 130, 116 S.E. 2d 429 (1960), cert. denied, 365 U.S. 830 (1961); Lassiter v. Seaboard Air Line Ry., 171 N.C. 283, 88 S.E. 335 (1916). Where testimony which is offered to corroborate the testimony of another witness does so substantially, it is not rendered incompetent by the fact that there is some variation. State v. Lester, 294 N.C. 220, 240 S.E. 2d 391 (1978); State v. Westbrook, 279 N.C. 18, 181 S.E. 2d 572 (1971), death sentence vacated, 408 U.S. 939 (1972). It is the responsibility of the jury to decide if the proffered testimony does, in fact, corroborate the testimony of another witness. State v. Lester, supra; State v. Case, supra.

A careful comparison of the testimony of the detective with that offered by the witness Moore indicates that the two are substantially the same account of the activities which occurred on the Stoney Creek Bridge on the evening of 24 December 1977. This same analysis clearly shows that the testimony of Detective Qualls goes beyond that of Moore in one important respect: At no time did Moore testify that he actually saw defendant throw Talmadge Yancey over the side of the bridge. However, the clear implication of Moore’s testimony is that defendant did precisely that act. That Moore did not mention one act which was clearly a component of a series of interrelated acts does not in any way serve to abridge the probative force of the rest of his testimony.

That the testimony of the detective differed from that of Moore in that it embodied an additional element in its narrative of the events of 24 December 1977 does not render it incompetent as corroborative evidence. We do not mean to suggest that we are calling into question the continued viability of the rule of State v. Brooks, 260 N.C. 186, 132 S.E. 2d 354 (1963). Brooks stands for the proposition that the state may not introduce new evidence through testimony which purportedly corroborates the testimony of a prior witness. On the facts of this case, Brooks does not come into play in that the proffered testimony meets the threshold test of substantial similarity. It must be observed also that in the present case, there was no objection to this portion of the officer’s testimony, nor was there a motion to strike. Had there been such a request, the court would have been obligated to instruct the jury that the officer’s testimony was not substantive [602]*602evidence but was to be considered by them with reference to the weight and credit they would give to Moore’s testimony if the jury found that it did corroborate his testimony. See State v. Westbrook, supra. There was no error.

At a later point in his direct examination, Detective Qualls testified with respect to a trip to the Stoney Creek Bridge with Moore in early March 1978. Over objection, the officer testified about what Moore told him on the trip as to where defendant had stopped the car on the bridge on the evening of 24 December 1977 and Moore’s pointing out where the car stopped. We perceive no error in the admission of this evidence as it too was competent to corroborate Moore’s testimony. State v. Westbrook, supra; see generally 1 Stansbury’s North Carolina Evidence §§ 50, 52 (Brandis Rev. 1973).

Defendant assigns as error the following portion of Judge McLelland’s charge to the jury:

If the State does not prove beyond a reasonable doubt that the defendant did not act in the heat of passion upon adequate provocation and that his action was so soon after the provocation that the passion of a person of average mind and disposition would not have cooled, then you may not find the defendant guilty of second-degree murder, but he would at most be guilty of voluntary manslaughter.

Defendant argues that the quoted instruction was erroneous and prejudicial to him. The state argues that even if the instruction was erroneous, it was favorable to defendant because it placed a greater burden on the state than is required. The state further argues that any error in the instruction was cured by later instructions given by the court.

Reasonable minds can disagree as to the true meaning of the instruction complained of. We can appreciate the difficulty the trial judge encountered in charging juries in compliance with the decision in Mullaney v. Wilbur, 421 U.S. 684, 44 L.Ed. 2d 508, 95 S.Ct. 1881 (1975), which mandated our decision in State v. Hankerson, 288 N.C. 632, 220 S.E. 2d 575 (1975), rev’d. on other grounds 432 U.S. 233, 53 L.Ed. 2d 306 (1977). Nevertheless, we must say that the challenged instruction is confusing and difficult, if not impossible, to understand.

[603]*603Assuming, arguendo, that the instruction is erroneous, we hold that it was not prejudicial to defendant in view of the later instructions given by the trial judge.

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Bluebook (online)
264 S.E.2d 89, 299 N.C. 597, 1980 N.C. LEXIS 988, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-rogers-nc-1980.