State v. Wells ( 1981 )

278 S.E.2d 527 (1981)

STATE of North Carolina
v.
Claudia Howell WELLS, alias Claudie Howell Wells

No. 807SC1127.

Court of Appeals of North Carolina.

June 2, 1981.

Atty. Gen. Rufus L. Edmisten by Associate Atty. Gen. Jane P. Gray and Deputy Atty. Gen. William W. Melvin, Raleigh, for the State.

Kirby & Clark by John E. Clark, Wilson, for defendant-appellant.

VAUGHN, Judge.

Defendant assigns error to the court's admission, over his repeated objections, of Trooper Parks' opinion as to where the collision between the two cars occurred. This assignment of error is sustained.

Our State Supreme Court has held in several cases that while it is competent for an investigating officer to testify as to the condition and position of the vehicles and other physical facts observed by him at the scene of an accident, his testimony as to his conclusions from those facts is incompetent. See Farrow v. Baugham, 266 N.C. 739, 147 S.E.2d 167 (1966); McGinnis v. Robinson, 258 N.C. 264, 128 S.E.2d 608 (1962); Shaw v. Sylvester, 253 N.C. 176, 116 S.E.2d 351 (1960). A case almost directly on point is Cheek v. Barnwell Warehouse and Brokerage Co., 209 N.C. 569, 183 S.E. 729 (1936). In that case the Supreme Court upheld the trial court's exclusion of opinion testimony by a nonexpert witness as to where a collision occurred based upon his examination of the scene sometime after the accident on the ground that its admission would invade the province of the jury. In the present case, the most crucial question for the jury on the manslaughter charge was whether defendant caused the collision which resulted in decedent's death by crossing the center line into decedent's lane of travel. By testifying that his investigation revealed the point of impact between the two cars to be in decedent's lane of travel, Trooper Parks stated an opinion or conclusion which invaded the province of the jury. Cf. Kaczala v. Richardson, 18 N.C.App. 446, 197 S.E.2d 21, cert. denied, 283 N.C. 753, 198 S.E.2d 722 (1973).

State concedes that the opinion of Trooper Parks was incompetent but argues that defendant waived his objections thereto by failing to move to strike it and by eliciting similar testimony from Trooper Parks on cross-examination. We reject both arguments.

Defendant objected each time Trooper Parks was asked to state his opinion as to where the impact occurred. The questions were clearly incompetent as calling for inadmissible opinion testimony; nevertheless, defendant's objections to them were overruled, and Trooper Parks was allowed to state the inadmissible opinion called for by the questions. On these facts, no motion to strike was required to preserve defendant's objections to the testimony elicited by the improper questions. Cases to the contrary relied upon by State are distinguishable. In the majority of those cases inadmissibility was not indicated by the question but only became apparent by some feature of the answer. Highway Commission v. Black, 239 N.C. 198, 79 S.E.2d 778 (1954); State v. Huggins, 35 N.C.App. 597, 242 S.E.2d 187, disc. rev. denied, 295 N.C. 262, 245 S.E.2d 779 (1978); State v. Robinson, 35 N.C.App. 617, 242 S.E.2d 197 (1978). In Mays v. Butcher, 33 N.C.App. 81, 234 S.E.2d 204 (1977), although the defendant objected to the improper question, he failed to move to strike not only the answer thereto, but also the answers to several subsequent questions in the same vein to which he did not object.

We also find no waiver resulting from defendant's cross-examination of Trooper Parks. It is true, as argued by State, that an objection is waived when like evidence is thereafter admitted without objection, especially where the like evidence is elicited by the objecting party himself. State v. Williams, 274 N.C. 328, 163 S.E.2d 353 (1968); Adams v. Godwin, 254 N.C. 632, 119 S.E.2d 484 (1961). However, it is also true that one does not waive an objection, otherwise sound and seasonably made, by attempting to explain or destroy the probative value of the evidence on cross-examination. State v. Van Landingham, 283 N.C. 589, 197 S.E.2d 539 (1973); State v. Aldridge, 254 N.C. 297, 118 S.E.2d 766 (1961); State v. Godwin, 224 N.C. 846, 32 S.E.2d 609 (1945); 1 Stansbury's N.C. Evidence § 30 (Brandis rev. 1973). Defendant's cross-examination of Trooper Parks appears to have been for the purpose of destroying the probative value of the incompetent opinion stated by Parks. Defendant was entitled to offer such testimony without losing the benefit of his earlier objections to that opinion.

Defendant also assigns error to the denial of his motion for a directed verdict as to the manslaughter charge on the ground that, without the incompetent testimony of Trooper Parks as to where the impact occurred, State's evidence created only a conjecture as to whether defendant's conduct was the proximate cause of the collision and resulting death of the decedent. This assignment is overruled. In ruling on a motion for a directed verdict, all of the evidence actually admitted, whether competent or incompetent, which is favorable to the State must be taken into account and considered in the light most favorable to the State. State v. Hunt, 289 N.C. 403, 222 S.E.2d 234, death sentence vacated, 429 U.S. 809, 97 S. Ct. 46, 50 L. Ed. 2d 69 (1976). Applying these principles to the present case, State's evidence tended to show that defendant was driving under the influence of alcohol at the time of the accident, he collided with a car that only seconds before was observed to be in its proper lane of travel, almost all of the debris and gouge marks resulting from the collision were found in the decedent's lane of travel as were both cars after the collision and, in the opinion of the investigating officer, the collision did occur in the decedent's lane of travel. These facts create more than a conjecture as to the cause of the collision and differ markedly from the facts in State v. Hewitt, 263 N.C. 759, 140 S.E.2d 241 (1965), relied upon by defendant, where there was no evidence of any reckless or wanton conduct by the defendant and the physical facts observed after the accident supported several possibilities as to where the impact occurred.

In accordance with our preceding discussion, defendant is entitled to a new trial on the manslaughter charge as a result of the court's erroneous admission into evidence of the incompetent opinion testimony of Trooper Parks. Defendant also contends, however, that he is entitled to a new trial on the charge of driving under the influence because the jury's verdict thereon may have been influenced to his prejudice by the incompetent testimony of Trooper Parks. In view of the overwhelming evidence of defendant's intoxication at the time of the collision, it is unlikely that the jury would have reached a different result had the incompetent testimony been excluded.

In case No. 79CRS14141, new trial.

In case No. 79CRS14148, no error.

CLARK and WELLS, JJ., concur.