# State v. Mackey

> Court of Appeals of North Carolina · May 2, 2000 · 137 N.C. App. 734

URL: https://www.frixlaw.com/law-library/cases/8895146

## Case

- **Full name:** STATE OF NORTH CAROLINA v. CHARLIE JAMES MACKEY
- **Court:** Court of Appeals of North Carolina
- **Decided:** May 2, 2000
- **Citations:** 137 N.C. App. 734; 530 S.E.2d 306; 2000 N.C. App. LEXIS 533
- **Precedential status:** Published
- **Opinion:** Dissent by Horton
- **Judges:** Horton, Smith, Wynn
- **Cited by:** 1 later opinions in the Frix Law Library

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## Opinion text

Judge Horton
dissenting.
In this prosecution for the possession and sale of illicit drugs, the State relied on the testimony of a former police officer with 30 years of experience in undercover drug investigations. Defendant sought to attack the credibility of the State’s witness through the testimony of Major Johnson, also a retired police officer with 30 years of experience. Defendant contended that the State’s witness substantially departed from usual and customary undercover procedures, and that his testimony about drug purchases from defendant was suspect. The trial court found that Johnson’s testimony would not assist the jury, and declined to allow defendant to place the testimony of Johnson on *740 the record. The majority hold that the trial court’s refusal to allow Johnson’s testimony was not an abuse of discretion, and the trial court’s refusal to allow defendant to place the excluded testimony in the record was not prejudicial error. I respectfully dissent from both holdings.
When the trial court sustains an objection to a question, it is basic learning that the trial court ordinarily should permit counsel to place in the record the answer to the question so that an appellate court might properly review the action of the trial court. “Indeed, an exception to the action of the trial court will be worthless on appeal unless the answer is thus preserved.” State v. Chapman, 294 N.C. 407, 415 , 241 S.E.2d 667, 672 (1978). Our Rules of Civil Procedure require that in civil cases tried before the jury, the trial court “on request of the examining attorney shall order a record made of the answer the witness would have given.” N.C. Gen. Stat. § 1A-1, Rule 43(c) (1999). Certainly due process demands no less in a criminal trial.
Our Supreme Court ruled in Chapman that the failure of the trial court to allow counsel to complete the record was a “regrettable judicial mistake,” but ruled that the trial court’s error was not prejudicial because the witness had already “answered the question sufficiently to demonstrate the immateriality of the inquiry. ...” Chapman, 294 N.C. 415 , 241 S.E.2d 672 . Here, the majority hold that defense counsel made a sufficient forecast of the expert testimony he sought to offer, so that any error by the trial court was not prejudicial. I cannot say on this record that the testimony of the expert witness would not have assisted the jury in assessing the credibility of the key witness for the State. The undercover witness for the State had worked in undercover drug investigations for more than 30 years. Testimony which apparently would have shown that, despite his long experience in such undercover investigations, the State’s witness significantly departed from proper police procedure in making undercover drug buys, would seem to bear on both his credibility and the weight to be given his testimony by the jury. Because the excluded testimony is not before us, we cannot properly review the actions of the trial court in excluding the testimony. In these circumstances where there are serious questions about the relevancy and materiality of certain testimony, and the trial court’s ruling prevents the defendant from bringing the proffered testimony before us for proper review, we should resolve all such threshold evidentiary questions in favor of the defendant and remand for a new trial. Accordingly, I vote to do so.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8895146. Public record. Not legal advice.