The opinion
Justice Exum
dissenting.
I cannot agree with the majority’s conclusion that the state tried but failed to elicit inadmissible testimony from its witness Brown. As the majority correctly concludes, it was improper for the state to offer Brown’s testimony as “corroborative” of its witness Jones when in fact Brown’s testimony contradicted what Jones had said on the stand. Jones, testifying for the state, said that on the day these crimes were allegedly committed, defendant lived with him. Jones said during the “first part of the night” (the crimes were allegedly committed at approximately 6 p.m.) he and defendant were drinking beer at defendant’s house. Jones said defendant “didn’t go out that night, not to my knowing.” Jones said later in the evening he went to sleep and that “I was asleep if he [defendant] did go out.” Brown, however, testified that Jones, prior to trial, had told him that defendant had left Jones’ home at “about 7:30” on the evening in question. The majority concedes that Brown’s testimony should not have been admitted but finds no error because it says the state’s effort to elicit Brown’s testimony was “aborted.”
In my view the state quite successfully proffered Brown’s inadmissible testimony. After Brown testified to Jones’ prior inconsistent statement, defense counsel promptly objected. (There was no cause to object to the question, “And what, if anything, did he tell you?”, because the state represented that Brown’s testimony would be corroborative of, not inconsistent with, Jones’.) Technically, of course, defendant should have moved to strike; but under these circumstances the trial judge should have, in *624 response to the objection, instructed the jury to disregard Brown’s answer because the answer was obviously, as a matter of law, inadmissible. Yet the trial judge left the question of its admissibility to the jury, telling it to “disregard [it] if it doesn’t corroborate.” The admissibility of the testimony was for the judge, not the jury.
Finally, defendant’s counsel moved to strike the incompetent testimony. Clearly at this point the judge should have allowed the motion and told the jury in no uncertain terms to disregard the testimony. Instead, the judge admonished the state not to continue the line of questioning. Its purpose by this time accomplished, the state had no need to continue and so indicated by saying, “No further questions.” The court then replied, “Disregard that, members of the jury.”
One wonders, as I am sure the jury must have wondered, what the judge meant by “that.” It could have meant, so far as the jury knew, Mr. Tisdale’s last statement, or the last statement made by the trial judge. It clearly did not constitute a granting of defendant’s motion to strike, nor a direction to the jury not to consider Brown’s incompetent testimony.
Believing that a reasonable possibility exists that if this testimony had not been admitted, “a different result would have been reached at the trial,” G.S. 15A-1443(a), I am constrained to vote for a new trial.