State v. Sports

255 S.E.2d 631, 41 N.C. App. 687, 1979 N.C. App. LEXIS 2724
CourtCourt of Appeals of North Carolina
DecidedJune 19, 1979
DocketNo. 7918SC221
StatusPublished
Cited by3 cases

This text of 255 S.E.2d 631 (State v. Sports) 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. Sports, 255 S.E.2d 631, 41 N.C. App. 687, 1979 N.C. App. LEXIS 2724 (N.C. Ct. App. 1979).

Opinion

CARLTON, Judge.

Defendant first assigns as error the trial court’s overruling of his objections and denial of his motion to strike certain testimony of Virginia Poot. On preliminary and direct examination of Ms. Poot by the assistant district attorney, evidence of Ms. Poot’s orphan status, epileptic history, scholarship assistance and summer employment was admitted over defendant’s objections. Defendant contends that the evidence presented was irrele[690]*690vant and served only to excite prejudice and sympathy for the prosecuting witness. We disagree.

It is elementary that when a witness has been sworn and takes the stand, preliminary questions are properly put to him as to name, residence, knowledge of the case, etc. The purpose of such questions is generally to introduce the witness to the court and the jury and to show why he is there testifying. 1 Stansbury, N.C. Evidence, § 24, p. 56 (Brandis rev. ed. 1973); Pittman v. Camp, 94 N.C. 283 (1886). Evidence offered for this purpose is relevant at trial, if it does in fact establish an introduction for the witness. See McCormick, Evidence, Relevancy, § 185, p. 435.

Moreover, relevant evidence should not be excluded “simply because it may tend to prejudice the opponent or excite sympathy for the cause of the party who offers it.” 1 Stansbury, N.C. Evidence, § 80, p. 242 (Brandis rev. ed. 1973); see State v. Branch, 288 N.C. 514, 220 S.E. 2d 495 (1975), cert. denied, 433 U.S. 907, 97 S.Ct. 2971, 53 L.Ed. 2d 1091 (1977); State v. Williams, 17 N.C. App. 39, 193 S.E. 2d 452 (1972), cert. denied, 282 N.C. 675 (1973).

In the case sub judice, evidence of Ms. Poot’s background and epilepsy was presented pursuant to preliminary questioning by the assistant district attorney. The evidence was relevant not only for introductory and general purposes, but also to serve as an explanation as to why the witness was working at McDonald’s, living with her aunt in Greensboro, and walking home alone on the night in question. We do not believe the challenged testimony played upon the passions and prejudices of the jury to the extent that it must be considered prejudicial. This assignment of error is overruled.

The defendant next argues that the assistant district attorney’s jury argument, which incorporated evidence from the testimony complained of above, was prejudicial and designed solely to arouse the sympathy and emotions of the jury. In his argument, the assistant district attorney referred to the prosecuting witness as “a young twenty-one year old epileptic, half-blind college student,” an “epileptic, virgin orphan,” and an “innocent young orphan and virgin.” He also briefly recounted Ms. Poot’s testimony concerning her prior summer employment and the fact that after tutoring two children she was never paid. That particular portion of Ms. Poot’s testimony was not in the evidence, [691]*691as the court had sustained defense counsel’s objection and granted his motion to strike.

The argument of counsel is left largely to the control and discretion of the presiding judge and counsel must be allowed wide latitude in the argument of hotly contested cases. State v. Seipel, 252 N.C. 335, 113 S.E. 2d 432 (1960); State v. Barefoot, 241 N.C. 650, 86 S.E. 2d 424 (1955). “[Counsel], may not, however, by argument, insinuating questions, or other means, place before the jury incompetent and prejudicial matters not legally admissible in evidence, and may not ‘travel outside of the record’ or inject into his argument facts of his own knowledge of other facts not included in the evidence.” State v. Westbrook, 279 N.C. 18, 39, 181 S.E. 2d 572, 584 (1971). “The fact that the sympathy or prejudice of the jury may be aroused by the argument of counsel does not render the argument improper when it is legitimate and based on competent evidence.” State v. Stegmann, 286 N.C. 638, 656, 213 S.E. 2d 262, 275 (1975).

Applying these principles to the present case, we find that the State’s argument was in substantial compliance with case authority. References to Ms. Poot’s virginity, epileptic condition and visionary problems were all permissible, such references being consistent with the facts in evidence. Granted, the assistant district attorney at one point did travel outside the record by referring to Ms. Poot’s noncompensated summer employment. However, we believe that this error was of relatively little importance, particularly in light of the facts that were in evidence. We do not believe it was prejudicial. Moreover, during the assistant district attorney’s argument, defense counsel made no objections to the portions of the argument that he now complains of. An impropriety in the argument should be brought to the attention of the trial court in time for the impropriety to be corrected in the charge unless the impropriety is gross, in which case the error can be corrected ex mero mo tu. 4 Strong, N.C. Index 3d, Criminal Law, § 102.3, p. 520; State v. Miller, 271 N.C. 646, 157 S.E. 2d 335 (1967). This assignment of error is overruled.

The defendant next contends that the trial court erred in overruling his objection and denying his motion to strike the testimony of defendant’s character witness, regarding a specific act of misconduct on the part of the defendant. We disagree.

[692]*692During cross-examination of defendant’s character witness, the assistant district attorney asked the witness whether he knew the defendant had been convicted of armed robbery.

The defendant relies on the case of State v. Chapman, 294 N.C. 407, 241 S.E. 2d 667 (1978) in support of his argument. In Chapman, our Supreme Court stated the well established rule in our jurisdiction that it is error for the State to cross-examine the defendant’s character witness as to particular acts of misconduct on the part of the defendant. A character witness may be cross-examined as to the general reputation of the defendant as to particular vices or virtues, but not as to specific acts of misconduct. See also State v. Green, 238 N.C. 257, 77 S.E. 2d 614 (1953).

Any error here was harmless in that the defendant had previously testified himself that he had been convicted of armed robbery. In Chapman, the situation presented was strikingly similar to the case at bar in that the prosecutor asked the defendant’s character witnesses whether they were aware that defendant “got his gun and went after some black people in Charlotte.” The error was acknowledged, but declared to be harmless. The test for harmless error was stated in Chapman as being the absence of a “reasonable possibility that a different verdict would be reached at a new and error free trial.” Chapman, supra, at 417, 241 S.E. 2d at 674. This assignment of error is overruled.

Defendant next assigns as error the denial of his motion for mistrial and for a new trial on the ground that the State improperly and prejudicially argued the defendant’s prior armed robbery conviction for purposes other than to attack defendant’s credibility. He argues that these remarks by the assistant district attorney might have been considered by the jury as substantive evidence of defendant’s guilt rather than mere impeachment evidence.

During his argument, the assistant district attorney characterized the defendant as an “admitted armed robber.” At another point in the argument, he juxtaposed the credibility of Ms. Poot against the defendant.

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Bluebook (online)
255 S.E.2d 631, 41 N.C. App. 687, 1979 N.C. App. LEXIS 2724, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-sports-ncctapp-1979.