State v. Ross

246 S.E.2d 780, 295 N.C. 488, 1978 N.C. LEXIS 1015
Supreme Court of North Carolina·Decided August 29, 1978·No. 82·Published·Cited by 30 cases

Opinions

MOORE, Justice.

Under his first assignment of error defendant argues that the trial court erred in allowing the district attorney to cross-examine him regarding drugs found in his home during a prior unrelated search by the police subsequently held to be unlawful. [490] At trial defendant testified in his own behalf. On cross-examination the prosecutor asked defendant if “on the 3rd day of January, 1975 . . . you did not have in your possession in your house in your room a zip-locked bag containing a total of 145 milligrams of white powder, that being cocaine?” Counsel for defendant immediately objected, and his objection was overruled. Defendant then answered in the negative. Several pages of transcript follow, wherein the defendant was asked numerous questions regarding various forms of narcotics found in his home on 3 January 1975. Throughout this testimony the defendant indicated that he was not at home when the contraband was found, and that if it was found, it did not belong to him. Defendant finally admitted that he had “found out that something was found in my house” but that he “didn’t find out where it was.” On redirect examination defendant testified that he had been prosecuted for the drugs found in his home on 3 January 1975, but that a district court judge “ruled that the search of my house was unlawful.”

Defendant now insists, citing Walder v. United States, 347 U.S. 62, 98 L.Ed. 503, 74 S.Ct. 354 (1954), and Agnello v. United States, 269 U.S. 20, 70 L.Ed. 145, 46 S.Ct. 4 (1925), that the admission of this evidence was a violation of the Fourth Amendment exclusionary rule. Defendant did not raise this specific objection at trial; instead, he did little more than enter general objections to the prosecutor’s questions. Likewise, the defendant did not argue this particular constitutional objection before the Court of Appeals. Ordinarily the Supreme Court will not pass upon a constitutional question which was not raised and passed upon in the court below. State v. Dorsett, 272 N.C. 227, 158 S.E. 2d 15 (1967). We will, however, further consider defendant’s argument for the purpose of noting additional defects in his appeal.

It is well established in this State that in the trial of every person charged with a crime, if the accused takes the stand in his own behalf he “shall be subject to cross-examination as other witnesses.” G.S. 8-54. Any witness in a criminal case, including the defendant who testifies in his own behalf, may be cross-examined for purposes of impeachment with respect to prior convictions of crimes. State v. Monk, 286 N.C. 509, 212 S.E. 2d 125 (1975), and cases cited therein at p. 517. Cross-examination for purposes of impeachment is not, however, limited to questions concerning prior convictions, but also extends to questions relating to specific acts of criminal and degrading conduct for which there has been no conviction. State v. Monk, supra; State v. [491] Foster, 284 N.C. 259, 200 S.E. 2d 782 (1973); State v. Williams, 279 N.C. 663, 185 S.E. 2d 174 (1971). The scope of such cross-examination is normally subject to the discretion of the trial judge, and the questions must be asked in good faith. State v. Williams, supra. The purpose of this rule permitting such a wide scope for impeachment is that such evidence is a proper and relevant means of aiding the jury in assessing and weighing the credibility of the defendant.

Defendant now contends that his cross-examination concerning various illegal drugs found in his home was improper since the search leading to the discovery of those drugs was subsequently declared unlawful in district court. In Agnello v. United States, supra, the United States Supreme Court held that evidence unconstitutionally seized is not admissible in rebuttal of a defendant’s testimony, where the defendant did not testify concerning such evidence on his direct examination and denied knowledge of it in answer to a question propounded on cross-examination over his objection. The Agnello rule was subsequently tempered somewhat in Walder v. United States, supra, where the highest court held that a defendant’s assertion on direct examination that he never possessed any narcotics opens the door, solely for purposes of attacking his credibility, to evidence of narcotics unlawfully seized in connection with an earlier proceeding. The defendant argues that the exclusionary rule set forth in Agnello, and made applicable to the states in Mapp v. Ohio, 367 U.S. 643, 6 L.Ed. 2d 1081, 81 S.Ct. 1684 (1961), applies in this instance since the defendant made no reference to his use or possession of drugs on his direct examination.

Since the Supreme Court’s decision in Harris v. New York, 401 U.S. 222, 28 L.Ed. 2d 1, 91 S.Ct. 643 (1971), the continued efficacy and scope of the exclusionary rule set forth in Agnello and Walder has been questioned. Cf. Dershowitz and Ely, “Harris v. New York: Some Anxious Observations on the Candor and Logic of the Emerging Nixon Majority,” 80 Yale Law Journal 1198 (1971). The Supreme Court’s subsequent decisions in United States v. Calandra, 414 U.S. 338, 38 L.Ed. 2d 561, 94 S.Ct. 613 (1974), United States v. Janis, 428 U.S. 433, 49 L.Ed. 2d 1046, 96 S.Ct. 3021 (1976), and Stone v. Powell, 428 U.S. 465, 49 L.Ed. 2d 1067, 96 S.Ct. 3037 (1976), have further limited the scope of the exclusionary rule in certain Fourth Amendment cases.

The question of the applicability of the exclusionary rule does not, however, concern us in the present case, for there is nothing [492] in the record to show that the prior unrelated search of defendant’s home was declared unlawful for constitutional reasons. The only mention in the record of the outcome of the prior proceeding in district court is defendant’s assertion on redirect examination that a district court judge “ruled that the search of my house was unlawful,” and the prosecutor’s infelicitous assertion, overruled by the court, that the search was ruled illegal “because an officer put his hand on the door knob and twisted it too soon, even though he had a valid search warrant. . . .”

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State v. Ross, 246 S.E.2d 780, 295 N.C. 488, 1978 N.C. LEXIS 1015 (N.C. 1978).

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State v. Ross
246 S.E.2d 780 (Supreme Court of North Carolina, 1978)