State v. Ross

*494 Justice EXUM

dissenting.

Believing defendant is entitled to a new trial because of improper cross-examination by the Assistant District Attorney, Mr. Irwin Coffield, I respectfully dissent.

The state’s case rested entirely on the testimony of R. T. Guerette, an undercover police officer who testified that he purchased a controlled substance from defendant on the night of 27 February 1975 in Charlotte. Defendant testified and offered a number of corroborating witnesses to the effect that he was not in Charlotte at the time testified to by Guerette. It seems clear to me that the state then embarked on the improper, however successful, tactic of convicting defendant of the crime charged against him by trying him, in effect, for certain alleged past offenses of which he had been accused and acquitted.

Defendant testified that in the fall of 1974 he purchased a rather large single family dwelling on Briardale Drive in Charlotte. The dwelling consisted of four bedrooms, a basement, a downstairs den, a kitchen and two bathrooms. To help make payments on this home, defendant rented portions of the house to others. Several persons other than defendant were living there in January, 1975. Defendant himself, because of his job, spent much of his time away from home and on the road.

Apparently, according to the prosecutor’s questions, a search of defendant’s dwelling was conducted on 3 January 1975 at a time when defendant was not at home. Various illicit controlled substances, including cocaine, MDA, marijuana, phencyclidine, together with valium and tuinol were discovered during the search. Defendant was prosecuted in 1975 for possession of these substances. The charges against him, however, were dismissed in the District Court.

During the course of the prosecutor’s cross-examination, defendant admitted two prior convictions for the possession of marijuana and amphetamines in Raleigh in 1973.

The district attorney then asked him whether on 3 January 1975 he possessed 150 milligrams of cocaine. Defendant denied that he did. The prosecutor then utilized, for eight pages in the record, what I consider to be an improper and highly prejudicial form of cross-examination. He asked defendant whether one M. B. Hinson entered his home on 3 January 1975 and found in defendant’s room cocaine, 3.46 grams of MDA, 15.67 grams of mari *495 juana, a tablet of phencyclidine, 1900 grams of MDA, valium tablets, and tuinol in defendant’s room. To these questions defendant consistently replied that he was not at home on the occasion in question, and could not admit or deny what an officer who searched the premises might have found or where he might have found it. He denied any knowledge of the presence of the items in his room.

One example from the record will suffice to illustrate the nature of the cross-examination:

“Q. Now, then Mr. Ross, on the 3rd day of January, 1975, I’ll ask you, sir, if you did not have in your possession in your house in your room a zip-locked bag containing a total of 145 milligrams of white powder, that being cocaine?

Mr. Whitfield: Objection.

Court: Overruled

DEFENDANT’S EXCEPTION #16.

A. No, sir.

Q. You deny that Officer M. B. Hinson came into your house on that date, searched your room and found that quantity of cocaine? Do you deny that, sir?

Mr. Whitfield: Objection.

Court: Overruled.

DEFENDANT’S EXCEPTION #17.

A. I don’t deny that he came into my house and he found something, but I don’t know where he found it but he didn’t find it in my room. If he did, I didn’t put it there.”

Thereafter the prosecutor never asked defendant whether he on the occasion in question possessed controlled substances. He asked him merely whether Officer Hinson found these substances in his room. Again, samples from the record will suffice to illustrate the point:

“Q. Do you deny that that [3.46 grams of MDA] was found in your room on that date at approximately 1310 hours, that being 1:10?

Mr. Whitfield: Objection.

*496 A. I was not there, so I can’t say where it was found.

Court: Overruled.”

“Q. I’ll ask you, sir, if on the third day of January, 1975, if found in your room, pursuant to a search warrant, was 15.67 grams of a green vegetable material, that material being marijuana?

Mr. Whitfield: Objection as to that question.

Court: Overruled.

Defendant’s Exception #26.

Q. Was it found in your room, sir?

Objection.

Overruled.

DEFENDANT’S EXCEPTION #27.

A. I don’t know. To my knowledge, it couldn’t have been.

Q. I’ll ask you, sir, if on the third day of January, 1975, if found in your room was a zipped-locked bag containing a mottled orange tablet, that tablet analyzed as containing phencyclidine, otherwise known as PCP?

Mr. Whitfield: Objection.

Court: Overruled.

Defendant’s Exception #28.

A. No, sir.

Q. Is what you’re telling this jury, sir, that you deny it being found there because you don’t have any knowledge of it? Is that what you’re saying?

Objection. Overruled.

Defendant’s Exception #29.

A. Yes, sir.

Q. So you really have no basis for the denial on what you have stated in this courtroom. Is that right?

*497 Objection. Overruled.

Defendant’s Exception #30.

A. Just the same thing I have said. I wasn’t there so I don’t know whether it was found in my room or not.”

“Q. How about four yellow capsules marked 18904, Tuinol, found in the dresser? Is it possible that you remember those being there on 3 January, ’75, sir?

Mr. Whitfield: Objection.

Court: Overruled.

Defendant’s Exception #42.

A. No, sir.

Q. You don’t deny, of course, that they were found there, do you?

Mr. Whitfield: Objection.

Court: Overruled.

Defendant’s Exception #43.

A. Like I said, I wasn’t there. I don’t know what was found there unless I stood there and watched somebody.

Q. You found out subsequently?

Mr. Whitfield: Objection.

Court: Overruled.

Defendant’s Exception #44.

A. Yes sir. I found out that something was found in my house. I didn’t find out where it was.”

The impropriety of this form of cross-examination is obvious. To inquire of defendant what some other person might have found in his room in a house where he and others were living is not, first of all, an inquiry concerning defendant’s misconduct. Defendant would be guilty of misconduct only if he knowingly *498 possessed these controlled substances. 1 Second, the inquiry-related to matters not within the knowledge of the defendant and were framed in such a way that defendant could not appropriately respond. The questions were not propounded in good faith. The cross-examination was a calculated attempt by the prosecutor to get before the jury evidence supplied by the questions themselves rather than by the witness’ responses. Finally, this cross-examination inquired into criminal charges of which the defendant had earlier been acquitted and amounted to no more than questions about prior criminal accusations.

This kind of cross-examination was condemned in State v. Williams, 279 N.C. 663 , 185 S.E. 2d 174 (1971). In a carefully considered opinion by Chief Justice Bobbitt, the Court overruled earlier cases which permitted cross-examination of a defendant regarding past accusations of crime. The Court concluded, 279 N.C. at 675 , 185 S.E. 2d at 181 :

“It is permissible, for purposes of impeachment, to cross-examine a witness, including the defendant in a criminal case, by asking disparaging questions concerning collateral matters relating to his criminal and degrading conduct. State v. Patterson, 24 N.C. 346 (1842); State v. Davidson, 67 N.C. 119 (1872); State v. Ross, 275 N.C. 550, 553 , 169 S.E. 2d 875, 878 (1969). Such questions relate to matters within the knowledge of the witness, not to accusations of any kind made by others. We do not undertake here to mark the limits of such cross-examination except to say generally (1) the scope thereof is subject to the discretion of the trial judge, and (2) the questions must be asked in good faith.” (Emphasis original.)

Cross-examination of a defendant regarding his past use of heroin was sustained in State v. McAllister, 287 N.C. 178, 184 , 214 S.E. 2d 75, 81 (1975), because “the questions related to the matters within the knowledge of the witness, not to accusations of any kind made by others, and were competent for the purpose of impeachment.”

*499 Nor do I believe this Court has carried this impeachment rule so far as to permit cross-examination about past criminal conduct for which a defendant has been tried and acquitted. The majority would extend the rule this far. I cannot agree to such an extension. The Court of Appeals has correctly held that a witness may not be impeached by cross-examination relating to a controlled substance charge which was later dismissed. State v. Sharratt, 29 N.C. App. 199 , 223 S.E. 2d 906 (1976), cert. denied, 290 N.C. 554 , 226 S.E. 2d 512 (1976), relying on State v. Williams, supra.

The kind of tactic used here by the prosecutor was considered at length in State v. Phillips, 240 N.C. 516 , 82 S.E. 2d 762 (1954). In Phillips the prosecutor persisted in asking the defendants on cross-examination about various prior acts of misconduct which they consistently denied having committed. The court characterized the cross-examinations as an attempt by the state to put before the jury through its questions “supposed facts of which there is no evidence” and found the tactic sufficiently prejudicial to warrant a new trial. The questions put to the defendant in the case sub judice were even more vicious than those in Phillips . At least in Phillips the defendants could either admit or deny the accusations of the prosecutor. Here, however, the questions were asked about matters which defendant could neither admit nor deny. Defendant argues in his brief:

“The defendant respectfully contends that there is a clear distinction between asking a defendant about previous degrading acts of conduct, or of matters within his own knowledge, and in asking questions with regard to activities of the police outside of the presence of the defendant, and in which the defendant took no part, and of which the defendant had no personal knowledge.”

I fully agree and believe our cases require us to concede the correctness of this argument. Defendant should be granted a new trial.

Chief Justice SHARP and Justice LAKE join in this dissenting opinion.

. The fact that these substances might have been found in defendant's room would, of course, be some evidence that he knowingly possessed them if defendant were on trial for these earlier possessions. The point is that defendant was not on trial for these possessions. When cross-examining a witness for impeachment purposes the examiner is bound by the witness’ answers, although the cases permit some “sifting” of the witness. State v. Currie, 293 N.C. 523 , 238 S.E. 2d 477 (1977); State v. Fountain, 282 N.C. 58 , 191 S.E. 2d 674 (1972). Such cross-examination must not, however, be permitted to evolve into a mini-trial on the question of defendant’s guilt of the collateral misconduct. See State v. Monk, 286 N.C. 509 , 517, 212 S.E. 2d 125 , 132 (1975); 1 Stansbury’s North Carolina Evidence § 112 (Brandis rev. 1973). It did so evolve in this case to the prejudice of defendant.