State v. Collins , 22 N.C. App. 590 ( 1974 )

207 S.E.2d 278 (1974) 22 N.C. App. 590

STATE of North Carolina
v.
James Henry COLLINS and Jesse Johnson.

No. 7420SC468.

Court of Appeals of North Carolina.

August 7, 1974. Certiorari Denied September 24, 1974.

Atty. Gen. Robert Morgan by Asst. Atty. Gen. T. Buie Costen, Raleigh, for the State.

Henry L. Kitchin and Benny S. Sharpe, Rockingham, for defendant appellants.

Certiorari Denied by Supreme Court September 24, 1974.

BALEY, Judge.

Fulton Junior Moore appeared as a witness for the State and testified that defendant Collins came to his home on July 10 and picked up a gun which Moore had been keeping for him. On cross-examination, counsel for defendants asked Moore: "And did you see him any time thereafter?" Moore answered: "No, sir, the next thing I heard somebody said he done what he done." This answer was hearsay and unresponsive to the question, but it did not accuse Collins of any specific crime and was of doubtful probative value. In the absence of a request, the court's failure to strike this answer was not prejudicial error.

Defendants contend that the trial court erred in asking certain leading questions of the witness James Frye during the voir dire hearing, and also in allowing the Solicitor to use leading questions in his direct examination of Frye in the presence of the jury. This contention cannot be upheld. The trial judge has discretionary power to permit the use of leading questions in order to save time. State v. Bass, 280 N.C. 435, 186 S.E.2d 384; State v. Clanton, 278 N.C. 502, 180 S.E.2d 5; State v. Painter, 265 N.C. 277, 144 S.E.2d 6. He also has the power to question a witness himself for the purpose of clarifying his testimony. State v. Freeman, 280 N.C. 622, 187 S.E.2d 59; State v. Colson, 274 N.C. 295, 163 S.E.2d 376, cert. denied, 393 U.S. 1087, 89 S. Ct. 876, 21 L. Ed. 2d 780; State v. Case, 11 N.C.App. 203, 180 S.E.2d 460.

Defendants next assert that the court erred in admitting the identification testimony of the witness Frye, because its findings of fact made at the conclusion of the voir dire hearing were not sufficiently specific and detailed. The court found from Frye's testimony that his observation of the defendants during the robbery, including the kind of guns which they individually displayed, was the basis for his incourt identification, and the identification "was not tainted in any way by his photographic observation or lineup at the Richmond County Jail." "When the admissibility of in-court identification testimony is challenged on the ground it is tainted by out-of-court identification(s) made under constitutionally impermissible circumstances, the trial judge must make findings as to the background facts to determine whether the proffered testimony meets the tests of admissibility. When the facts so found are supported by competent evidence, they are conclusive on appellate courts." State v. Tuggle, 284 N.C. 515, 520, 201 S.E.2d 884, 887; State v. McVay, 277 N.C. 410, 417, 177 S.E.2d 874, 878; accord, State v. Cross, 284 N.C. 174, 200 S.E.2d 27; State v. Willis, 20 N.C.App. 365, 201 S.E.2d 588.

Defendants' next assignment of error relates to the denial of their motions for nonsuit. The court quite properly denied these motions, for the evidence is amply sufficient to support defendants' convictions.

When Van Parker testified as a rebuttal witness for the State, the following proceedings occurred:

"WITNESS: I talked with Josephine Pegues. She made a statement about the evening and night of July 10, 1973.

"Q. What did she say?

"A. She informed me that—

"OBJECTION. OVERRULED.

"MR. KITCHIN [counsel for defendant]: Object to Mr. Parker reading from said document up there.

"MR. LOWDER [Solicitor]: Objection to the conclusion of counsel, if your honor please.

"MR. KITCHIN: Could the record state that Mr. Parker is reading from some document?

"COURT: Are you using your notes to refresh your recollection?

"A. Yes, sir, I am.

"COURT: Don't read from them.

"Q. Tell in your own words what she said to you happened on that evening.

"A. On July 10, 1973 that the defendant and herself were not living together.

"COURT: What defendant?

"A. Pegues, and that she was living with a cousin, Irene Moore, and that the defendant Pegues was staying with his mother. She informed me that she did not see the defendant Pegues on July 10, 1973, and that it was approximately 2:10 A.M. on July 11, 1973 that the defendant came to the residence.

"MR. KITCHIN: He's reading straight from his notes again. Objection.

"OVERRULED."

Defendants contend that the court committed error in allowing Parker to read from his notes. This contention is not well founded. First, Parker's testimony related only to defendant Pegues, and it could not have been prejudicial to defendant appellants. Second, the record does not show that Parker was in fact reading from his notes, but only that counsel for defendants believed he was doing so; and the court specifically instructed him not to read from them. Third, even if Parker was reading from his notes, his testimony would not necessarily have been inadmissible. A witness may refer to a document for the purpose of refreshing his memory about certain events. If, after reading the document, he is able to remember the events, he may give testimony about them. State v. Chance, 279 N.C. 643, 185 S.E.2d 227, vacated and remanded on other grounds, 408 U.S. 940, 92 S. Ct. 2878, 33 L. Ed. 2d 764; State v. Peacock, 236 N.C. 137, 72 S.E.2d 612; 1 Stansbury, N.C.Evidence (Brandis rev.), § 32. When the witness is able to remember the events after reading the document to himself, the better practice is for him to describe them in his own words, rather than reading the document aloud. State v. Peacock, supra. But there is nothing per se wrong with his reading from the document in answer to a question, if the words of the document are responsive to the questions asked, and if he can honestly state that after reading it he is able to recall the events about which he is testifying. Here the witness expressly stated that the use of his notes refreshed his recollection of the conversation with Mrs. Pegues, and his testimony was admissible whether or not he was reading from his notes.

At the conclusion of all the evidence defendants moved to dismiss all charges against them arising out of the robbery at Rib's Place, other than the cases then being tried. This motion was properly denied. The other charges against defendants were not before the court, and it had no authority to dismiss them.

At one point in its charge to the jury the court stated:

"Now, the State has offered evidence and as I have stated, the defendant is presumed to be guilty until the State has satisfied you from the evidence and beyond a reasonable doubt, and the State contends they have offered evidence from which you should be satisfied from the evidence and beyond a reasonable doubt of their guilt."

Taken literally, this sentence does not make sense, as one could not be presumed guilty until proved to be guilty beyond a reasonable doubt. It seems clear that this is a lapsus linguae and that the jury could not reasonably have been misled. Several times in its charge the court correctly stated that the defendants were presumed to be innocent and that the State must prove them guilty beyond a reasonable doubt. The instructions to the jury must be considered as a whole, and an isolated portion of these instructions which at best may be ambiguous cannot be detached from the context of the charge and held to be prejudicial if the charge as a whole is correct. State v. Gaines, 283 N.C. 33, 194 S.E.2d 839; State v. Bailey, 280 N.C. 264, 185 S.E.2d 683, cert. denied, 409 U.S. 948, 93 S. Ct. 293, 34 L. Ed. 2d 218.

Defendants have shown no prejudicial error in their trial.

No error.

BRITT and MORRIS, JJ., concur.