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**FINAL**
STATE OF NORTH CAROLINA v. RONNIE LEE KIMBLE, Defendant
No. COA99-981
(Filed 3 October 2000)
1. Evidence--hearsay--statements against interest--accomplice's self-inculpatory
statements--statements implicating defendant already admitted
The trial court did not err in a first-degree murder case by allowing into evidence under
N.C.G.S. § 8C-1, Rule 804(b)(3) a nontestifying accomplice's statements against the
accomplice's penal interest, and statements both against the accomplice's penal interest and
inculpating defendant, because: (1) testimony of only self-inculpatory statements by the
accomplice are classic statements against interest that fall within a firmly-rooted hearsay
exception; (2) even assuming the testimony of both the accomplice's self-inculpatory statements
and statements that implicated defendant was error, such error was not prejudicial when the State
presented overwhelming evidence that defendant committed the murder and that the evidence was
properly admitted through other witnesses; and (3) collateral remarks inculpating defendant are
not required to be redacted from an out-of-court statement that also contains self-inculpating
remarks in order to admit the statement under N.C.G.S. § 8C-1, Rule 804(b)(3).
2. Evidence--hearsay--not offered for truth of matter asserted
The trial court did not err in a first-degree murder case by admitting various statements of
the victim inquiring why the agent for an insurance company needed health information for a
cancer insurance policy, and inquiring about the value of the policy once the victim found out that
it was a life insurance policy, because: (1) the statements were offered to establish that the
victim's husband had submitted the victim's life insurance application without her knowledge; and
(2) the statements were not offered for the truth of the matters asserted.
3. Evidence--hearsay--state of mind exception
Even though the victim's statements contained descriptions of factual events, the trial
court did not err in a first-degree murder case by admitting her statements under N.C.G.S. § 8C-
1, Rule 803(3) that the victim's husband took out a life insurance policy without her knowledge,
that her husband was not the man she married and had been acting differently, and that she was
afraid she would not wake up in the morning since her husband slept with a gun underneath his
pillow, because: (1) the statements were admissible to show the victim's state of mind; and (2) it
was not necessary for the victim to state explicitly to each witness that she was afraid as long as
the scope of the conversation related directly to her existing state of mind and emotional
condition.
4. Evidence--exclusion--not preserved for review--objectionable questions
The trial court did not commit prejudicial error in a first-degree murder case by sustaining
the State's objections to various questions during defendant's cross-examination of a detective,
because: (1) the record fails to demonstrate what the detective's answers would have been had he
been permitted to respond to defendant's questions; and (2) the questions were objectionable
based on the fact that they were repetitive, argumentative, or called for speculation and
conjecture.
5. Evidence--direct examination--leading questions
The trial court did not abuse its discretion in a first-degree murder case by sustaining theState's objections to v
arious questions put to defendant on direct examination on the grounds that
the questions were leading, because: (1) defendant had an opportunity to deny the charges against
him; and (2) the questions were repetitious.
6. Evidence--cross-examination--collateral matter--no prejudicial error
The trial court did not commit prejudicial error in a first-degree murder case even though
it allowed the State to question defendant during cross-examination on a collateral matter
regarding three photographs of a woman found in defendant's cell to contradict defendant's
statement that he holds nothing secret from his wife, because: (1) the subject was collateral to the
issues before the jury and any error was thus unlikely to have impacted the outcome of the trial;
(2) the inquiry by the State was extremely brief and was terminated by a sustained objection and
an instruction to disregard the question; and (3) defendant had already testified that his wife had
filed for divorce, significantly decreasing the potential for prejudice resulting from any implication
of defendant's interest in another woman.
7. Evidence--allegations of prior insurance fraud--probative of truthfulness
The trial court did not abuse its discretion in a first-degree murder case by allowing the
State to question defendant regarding allegations that his brother and his parents had committed
insurance fraud, because: (1) the possibility that defendant was aware of, and therefore conspired
in, an insurance fraud scam undertaken by his brother and parents is arguably probative of
defendant's truthfulness under N.C.G.S. § 8C-1, Rule 608(b); and (2) defendant failed to show an
abuse of discretion.
Appeal by defendant from judgment entered 3 September 1998 by
Judge C. Preston Cornelius in Guilford County Criminal Superior
Court. Heard in the Court of Appeals 15 August 2000.
Michael F. Easley, Attorney General, by James C. Gulick,
Special Deputy Attorney General, for the State.
W. David Lloyd and John B. Hatfield, Jr., for defendant-
appellant.
SMITH, Judge.
Patricia Kimble (Patricia) was found dead in her home on 9
October 1995. An autopsy determined the cause of death was a
gunshot wound to the side of her head. Patricia's body and the
area of the house in which she was found had been burned.
Investigators concluded the fire had been caused by arson.
Defendant is the brother of Patricia's husband, Ted Kimble
(Ted). At trial, the State espoused the theory that Ted haddecided to kill Patricia in order to collect the proceeds from her
life insurance. The State further contended that Ted had recruited
defendant to murder Patricia. The jury found defendant guilty of
first-degree murder, conspiracy to commit murder, and first-degree
arson.
I.
[1]Defendant first asserts the trial court erroneously
allowed in evidence statements by Ted, a co-defendant in the crime
who was tried separately. Defendant asserts the admission of these
statements violated both North Carolina law, as well as defendant's
Sixth Amendment right to confront and cross-examine an adverse
witness. Defendant's argument is without merit.
During defendant's trial, Ted invoked his Fifth Amendment
privilege not to testify. Statements Ted made were then offered in
evidence through the testimony of two witnesses, both of whom had
been involved with Ted in a theft ring. All of the statements
implicated Ted in the murder; some of the statements also
implicated defendant in the murder. After conducting a
voir direhearing, the trial court admitted the statements pursuant to
N.C.G.S. § 8C-1, Rule 804(b)(3) (1999) (statements against
interest) (Rule 804(b)(3)) and N.C.G.S. § 8C-1, Rule 801(d)(E)
(1999) (statement by co-conspirator in furtherance of conspiracy).
The first of these two witnesses, Robert Nicholes (Nicholes),
testified that Ted told Nicholes the following: (1) Ted had been
involved in Patricia's death but had not killed her; (2) Ted had
attempted to take out a life insurance policy on Patricia and had
forged her signature on the application; and (3) Ted was angry
because the life insurance policy was not valid because Patricia
had not taken a required physical examination. Notably, Nicholes
did not testify that Ted had stated that defendant had beeninvolved in the murder; Nicholes testified only to self-inculpatory
statements made by Ted.
The second of these two witnesses, Patrick Pardee (Pardee),
testified that Ted had told him the following: (1) defendant had
gone to Ted's house, had shot Patricia in the head with Ted's
pistol, and had then poured gasoline on her body and set it afire;
(2) Ted had taken a second job to establish an alibi for himself;
(3) the murder was committed to collect life insurance proceeds;
(4) Ted realized he would be unable to collect on the life
insurance policy because it was not in effect; and (5) Ted believed
the police were closing in on him.
The State properly concedes there is little basis for arguing
that the statements were made during the course and in furtherance
of the defendant's conspiracy with Ted to murder Patricia for her
life insurance as the conspiracy had ended. The issue on appeal,
then, is limited to whether the statements were properly admitted
under Rule 804(b)(3).
A.
An out-of-court statement by an unavailable witness may be
admissible if the statement satisfies the definition of a
statement against interest, which is defined by Rule 804(b)(3) as
[a] statement which was at the time of its
making so far contrary to the declarant's
pecuniary or proprietary interest, or so far
tended to subject him to civil or criminal
liability . . . that a reasonable man in his
position would not have made the statement
unless he believed it to be true. A statement
tending to expose the declarant to criminal
liability is not admissible in a criminal case
unless corroborating circumstances clearlyindicate the trustworthiness of the statement.
G.S. § 8C-1, Rule 804(b)(3).
Our Supreme Court has held that Rule 804(b)(3) requires a two-
pronged analysis. See State v. Wilson, 322 N.C. 117, 134, 367
S.E.2d 589, 599 (1988). First, the statement must be deemed to be
against the declarant's penal interest. Id. Second, the trial
judge must be satisfied that corroborating circumstances clearly
indicate the trustworthiness of the statement if it exposes the
declarant to criminal liability. Id. The corroborating
circumstances required by the second prong may include other
evidence presented at trial. See id. (corroborating circumstances
properly included fact that statement by unavailable witness
accurately identified location of stolen items).
However, the analysis required in the case at bar is further
complicated by a second hurdle. In addition to satisfying Rule
804(b)(3), the evidence also must satisfy the requirements of the
Confrontation Clause of the Sixth Amendment. U.S. Const. amend.
VI. In the recent case of Lilly v. Virginia, 527 U.S. 116, 144 L.
Ed. 2d 117 (1999), the United States Supreme Court considered the
issue of whether a criminal defendant's Sixth Amendment rights are
violated by admitting in evidence a non-testifying accomplice's
statement which contains both statements against the accomplice's
penal interest and statements inculpating the defendant.
The four-Justice plurality in Lilly began by setting forth the
fundamental principle that when the government seeks to offer an
unavailable declarant's out-of-court statements against a criminaldefendant, the court must decide whether the Confrontation Clause
permits the government to deny the defendant an opportunity to
cross-examine the declarant. Id. at 124, 144 L. Ed. 2d at 126.
The plurality then reiterated the holding in Ohio v. Roberts, 448
U.S. 56, 65 L. Ed. 2d 597 (1980), that such statements may be
admissible when
(1) the evidence falls within a firmly rooted
hearsay exception or (2) it contains
particularized guarantees of trustworthiness
such that adversarial testing would be
expected to add little, if anything, to the
statements' reliability.
Lilly, 527 U.S. at 124-25, 144 L. Ed. 2d at 127 (quoting Roberts,
448 U.S. at 66, 65 L. Ed. 2d at 608).
The plurality then explained that the categorization of an
out-of-court statement as a statement against penal interest does
not necessarily place the statement within a firmly rooted hearsay
exception under the Roberts test because the label statement
against penal interest defines too broad a class. Id. at 127, 144
L. Ed. 2d at 128. The plurality then defined three different
categories of statements against penal interest, id., only one of
which is pertinent here. The third category (statements offered as
evidence by the prosecution to establish the guilt of an
accomplice) encompasses the kind of statements against interest
found in Lilly, i.e., those statements that inculpate both a
declarant and a defendant. Id. at 130, 144 L. Ed. 2d at 130. Such
dual-inculpatory statements are inherently unreliable and
untrustworthy as the accomplice often stands to gain by inculpating
another defendant. Id. at 131, 144 L. Ed. 2d at 131. Theplurality concluded by stating: [t]he decisive fact, which we make
explicit today, is that accomplices' confessions that inculpate a
criminal defendant are not within a firmly rooted exception to the
hearsay rule. Id. at 134, 144 L. Ed. 2d at 133.
B.
In light of this framework, the substantive differences
between the testimony of Pardee and of Nicholes become extremely
significant. While Pardee testified as to a conversation in which
Ted made both self-inculpatory statements and statements that
implicated defendant, Nicholes testified only to self-inculpatory
statements by Ted. Such purely self-inculpatory statements, unlike
the dual-inculpatory statements in Lilly, are classic statements
against interest and thus fall within a firmly-rooted hearsay
exception. See id. at 131-32, 144 L. Ed. 2d at 131-32.
Having concluded that the admission of Nicholes' testimony did
not violate defendant's Sixth Amendment rights, we now proceed to
analyze Nicholes' testimony to determine whether it was properly
admitted under Rule 804(b)(3). Applying the two-part test set
forth in Wilson, we first note that the challenged statements
unquestionably were against Ted's penal interests at the time they
were made, and, thus, a reasonable man in his position would not
have made the statement[s] unless he believed [them] to be true.
G.S. § 8C-1, Rule 804(b)(3). The statements, therefore, satisfy
the first prong of the analysis.
Furthermore, sufficient corroborating evidence was admitted at
trial to indicate the trustworthiness of the statements. Suchevidence included: (1) Ted's efforts to take out additional life
insurance policies on Patricia shortly before her murder, without
her knowledge; (2) Patricia's statements to various friends shortly
before her murder, conveying her fear, based on Ted's conduct and
behavior, that Ted might be planning on killing her; and (3)
testimony of Mitch Whidden (Whidden) regarding defendant's
statements that provided the same portrayal of Ted's involvement in
the murder as Ted's own statements. Thus, the second prong of the
analysis is also satisfied. The trial court, therefore, did not
err in admitting Nicholes' testimony.
C.
Pardee's testimony, however, presents precisely the kind of
situation addressed in Lilly, in which the prosecution offers in
evidence statements of an accomplice that inculpate both the
accomplice and the criminal defendant. Because such dual-
inculpatory statements are inherently unreliable, in that the
declarant often stands to gain by inculpating another, Lilly, 527
U.S. at 131, 144 L. Ed. 2d at 131, such statements do not fall
within a firmly-rooted exception to the hearsay rule, id. at 134,
144 L. Ed. 2d at 133. Thus, as to Pardee's testimony, the
constitutional issue becomes whether the statements contain
particularized guarantees of trustworthiness. Id. at 135, 144 L.
Ed. 2d at 133-34 (quoting Roberts, 448 U.S. at 66, 65 L. Ed. 2d at
608).
Whether the statements at issue satisfy this standard requires
an analysis for which only a few guidelines have been set by theSupreme Court. For example, the reliability of the statements must
be established by the inherent trustworthiness of the statements
themselves and cannot be established by an effort to bootstrap on
the trustworthiness of other evidence at trial. Id. at 138, 144 L.
Ed. 2d at 135.
In the instant case, we find it unnecessary to determine
whether the statements offered through the testimony of Pardee
contain particularized guarantees of trustworthiness. Assuming
arguendo that the statements fail to meet this constitutional
standard, and that admission of such statements was error, we
believe such error was not prejudicial.
A violation of the defendant's rights under the Constitution
of the United States is prejudicial unless the appellate court
finds that it was harmless beyond a reasonable doubt. N.C.G.S. §
15A-1443(b) (1999). In the case at bar, we believe the State has
successfully met this burden for two reasons. First, the State
presented overwhelming evidence that defendant committed the murder
even without the admission of Pardee's testimony. Second, the
facts established through Pardee's testimony were properly admitted
in evidence through other witnesses.
Whidden, an ordained Baptist minister and a personal friend of
defendant, testified that in 1997 defendant visited Whidden at his
home and stayed with Whidden and his family overnight. Whidden
testified that during this visit defendant confessed to Whidden
that he had killed Patricia at Ted's request and that he was to
receive payment from Ted in return. Whidden testified that afterdefendant left his home, Whidden spoke with the Reverend Jerry
Falwell (Falwell) to ask his advice about defendant's confession.
After meeting with Falwell and Falwell's son, an attorney, Whidden
checked into a hotel with his family because he was afraid that
defendant might return to his home.
Thereafter, Whidden went to see defendant in an attempt to
persuade him to turn himself in. When defendant refused to do so,
Whidden returned home, met with another attorney, Frank Yeatts
(Yeatts), and gave a statement to the State Bureau of Investigation
(SBI). He then left his job and moved himself and his family out
of state for six months until defendant was in prison because he
feared for the safety of his family. Various elements of Whidden's
testimony were corroborated by the testimony of Falwell, Yeatts,
Whidden's wife, and an agent with the SBI.
Whidden's testimony demonstrates the strength of the State's
case against defendant. In addition, much of the evidence
established through Pardee's testimony was properly admitted
through Whidden's testimony. Where evidence is properly admitted
through one witness, the defendant will not be heard to complain
that the same evidence, improperly admitted through a different
witness, was prejudicial error. See, e.g., State v. Washington,
131 N.C. App. 156, 163-64, 506 S.E.2d 283, 288 (1998) (trial
court's error was harmless beyond a reasonable doubt where
improperly admitted hearsay testimony was almost entirely
repetitive of the properly admitted testimony of other witnesses at
trial). Given these considerations, we conclude any constitutionalerror was harmless beyond all doubt.
As for the Rule 804(b)(3) analysis, our Supreme Court does not
require that collateral remarks inculpating the defendant be
redacted from an out-of-court statement that also contains self-
inculpating remarks in order to admit the statement under Rule
804(b)(3). See Wilson, 322 N.C. at 133, 367 S.E.2d at 598 (The
fact that [the challenged statements] have dual inculpatory aspects
does not take the statements outside the range of Rule
804(b)(3).). The statements offered by Pardee contain the same
self-inculpatory remarks as the statements offered by Nicholes.
Accordingly, the statements offered by Pardee satisfy Rule
804(b)(3) for the same reasons as the statements offered by
Nicholes, and the collateral remarks that inculpate defendant need
not be redacted from the statements in order for the statements to
be admissible. This assignment of error is overruled.
II.
[2]Defendant next alleges the trial court erred in admitting
in evidence various statements by the victim, Patricia. The State
called five witnesses to offer testimony regarding statements
Patricia made at various times prior to her death. We find no
error in the admission of these statements.
The first of these five witnesses, William Jarrell (Jarrell),
an agent for a life insurance company, testified that: (1) Ted
requested a $200,000 life insurance policy for Patricia; (2) Ted
provided Jarrell with an insurance application allegedly signed by
Patricia; (3) Jarrell called Patricia in order to obtain requiredhealth information; (4) during this phone call, when Patricia
inquired as to why such information was necessary for a cancer
insurance policy, Jarrell informed her the policy was for life
insurance; and (5) when she further inquired about the value of the
life insurance policy, Jarrell informed her it was for $200,000, at
which point Patricia slammed the phone down.
Defendant contends such statements constitute hearsay and were
improperly admitted. 'Hearsay' is a statement, other than one
made by the declarant while testifying at the trial or hearing,
offered in evidence to prove the truth of the matter asserted.
N.C.G.S. § 8C-1, Rule 801(c) (1999). We find no error in the
admission of Jarrell's testimony, as the statements made by
Patricia (Why do you need this information for a cancer
insurance? and How much life insurance?) were offered merely to
establish that Ted had submitted Patricia's life insurance
application to Jarrell without Patricia's knowledge. The
statements were not offered for the truth of the matters asserted
and, therefore, do not constitute hearsay.
[3]The second of the five witnesses was Linda Cherry
(Cherry), a friend of Patricia. Cherry testified that Patricia
told her the following shortly before her death: (1) she was
concerned about the state of her marriage, and she believed Ted did
not want to spend time with her anymore; (2) Ted had been acting
differently, he had been getting agitated easily, and he had
started to use profanity; (3) she did not like the fact that Ted
had gotten a second job because she felt that they did not need theextra money.
The third of the five witnesses was Cara Dudley (Dudley), a
close friend of Patricia. Dudley testified that Patricia told her
the following shortly before her death: (1) in case anything
strange ever happened to her, she wanted Dudley to know that she
had discovered by accident that Ted had taken out a large insurance
policy on her; (2) she did not know why Ted wanted so much
additional life insurance because she already had one life
insurance policy; and (3) Ted must have signed her name on the
application because she had not signed her own name. Dudley also
testified that Patricia was very upset, her voice was shaky during
this conversation, and she was trying not to cry.
The fourth of these five witnesses was Rose Lyles (Rose),
another friend of Patricia. Rose testified that Patricia told her:
(1) she had found a life insurance application on which Ted had
forged her signature; (2) Ted was not the man she married; (3) Ted
slept with a gun underneath his pillow and when she went to sleep
she feared that she might not wake up in the morning. Rose also
testified that Patricia cried during the conversation and that Rose
had never heard so much fear in anybody's voice.
The final of these five witnesses was Gary Lyles (Gary),
Rose's husband and also a friend of Patricia. Gary testified that
Patricia told him: (1) she had found a life insurance policy that
Ted had taken out without her knowledge; (2) Ted had forged her
signature on the application; (3) Ted was not the man she married;
and (4) Ted slept with a gun underneath his pillow. Defendant contends these statements were erroneously admitted
under the hearsay exception provided by N.C.G.S. § 8C-1, Rule
803(3) (1999) (Rule 803(3)). Rule 803(3) allows the admission of
hearsay testimony in evidence if it tends to show the victim's then
existing state of mind or emotion, sensation, or physical
condition (such as intent, plan, motive, design, mental feeling,
pain, and bodily health), but not including a statement of memory
or belief to prove the fact remembered or believed. G.S. § 8C-1,
Rule 803(3).
This Court was recently faced with a strikingly similar set of
facts in
State v. Wilds, 133 N.C. App. 195, 515 S.E.2d 466 (1999).
In
Wilds, the defendant Curtis Wilds was accused of the first-
degree murder of his wife, Tonya Wilds (Tonya). At trial, the
State offered testimony from multiple witnesses regarding
statements made by Tonya within a few weeks before her murder.
Id.
at 203-04, 515 S.E.2d at 473-74. Testimony offered by the
witnesses included the following statements by Tonya: (1) her
husband had attempted to change her life insurance policy to
designate himself as the named beneficiary; (2) she had once woken
up in her bed during the night to discover her husband pouring
gasoline on her nightgown; (3) she had an unhappy marriage filled
with physical and emotional abuse; and (4) she was afraid her
husband would try to kill her.
Id. Many of the witnesses
specifically testified that Tonya was shaking and tearful when she
made such statements.
Id.
The
Wilds Court stated: [a]lthough statements that relate onl
y factual
events do not fall within the Rule 803(3)
exception, statements relating factual events
which tend to show the victim's state of mind,
emotion, sensation, or physical condition when
the victim made the statements are not
excluded if the facts related by the victim
serve to demonstrate the basis for the
victim's state of mind, emotions, sensations,
or physical condition.
Id. at 204-05, 515 S.E.2d at 474 (citations omitted).
The Court in
Wilds therefore held that the statements were
admissible to show Tonya's state of mind, despite the fact that the
statements also contained descriptions of factual events.
Id. at
205, 515 S.E.2d at 475. Similarly, we hold in the instant case
that Patricia's prior statements were properly admitted to show her
state of mind. Furthermore, as in
Wilds, it was not necessary for
[Patricia] to state explicitly to each witness that she was afraid,
as long as the 'scope of the conversation . . . related directly to
[her] existing state of mind and emotional condition.'
Id. at
206, 515 S.E.2d at 475
(quoting
State v. Mixion, 110 N.C. App. 138,
148, 429 S.E.2d 363, 368,
disc. review denied, 334 N.C. 437, 433
S.E.2d 183 (1993)).
Defendant argues that the case of
State v. Hardy, 339 N.C.
207, 451 S.E.2d 600 (1994), is directly on point with the case at
bar, and cites to
Hardy for the proposition that [s]tatements of
fact, even those which might explain why the declarant was
frightened or angry are not admissible. One searches in vain for
such a proposition in
Hardy.
In
Hardy, our Supreme Court held that statements from the
victim's diary describing the defendant's violent conduct, whichexpresse[d] no emotion and seem[ed] to have been written in a calm
and detached manner,
id. at 229, 451 S.E.2d at 613, were not
admissible under Rule 803(3) because they did not constitute
statements of the victim's state of mind, and merely amounted to a
recitation of facts which describe various events,
id. at 228, 451
S.E.2d at 612. The notion that the result in
Hardy may be expanded
beyond the particular facts in that case has previously been
foreclosed by this Court. As we stated in
Wilds,
[t]his case is distinguishable from
Hardy in
that the statements in
Hardy were taken from
the victim's diary and contained descriptions
of assaults and threats against the victim
before she died but
did not reveal the
victim's state of mind or contain statements
of the victim's fear of defendant.
Wilds, 133 N.C. App. at 205, 515 S.E.2d at 475 (emphasis added).
This assignment of error is overruled.
III.
[4]Defendant next contends the trial court erred in
sustaining the State's objections to various questions put to
Detective James Church (Detective Church) during cross-examination
by defendant. It is well established that an exception to the
exclusion of evidence cannot be sustained where the record fails to
show what the witness' testimony would have been had he been
permitted to testify.
State v. Simpson, 314 N.C. 359, 370, 334
S.E.2d 53, 60 (1985).
It is undisputed that the record fails to demonstrate what
Detective Church's answers would have been had he been permitted to
respond to defendant's questions. By failing to preserve evidencefor review, defendant deprives the Court of the necessary record
from which to ascertain if the alleged error is prejudicial.
State v. Locklear, 349 N.C. 118, 150, 505 S.E.2d 277, 296 (1998),
cert. denied, 526 U.S. 1075, 143 L. Ed. 2d 559 (1999). Thus,
defendant cannot show that the trial court's ruling with respect to
the exclusion of this testimony was prejudicial.
Furthermore, even if we assume
arguendo that the assignment of
error is properly before us on appeal, and even if we assume, as
defendant asks of us, that Detective Church would have answered as
the questions led, we find no error in the exclusion of this
testimony. We agree with the State that the questions were
objectionable because they were repetitive, argumentative, or
called for speculation and conjecture.
See Wilson, 322 N.C. at
135, 367 S.E.2d at 600. This assignment of error is overruled.
IV.
[5]Defendant next contends the trial court erred in
sustaining the State's objections, on the grounds of leading, to
six specific questions put to defendant on direct examination. The
most significant of these questions was the following:
Q: Did your brother,
Ted, ever tell you that
he would pay you money if you would
assist him in eliminating [Patricia]?
A leading question is generally defined as one which suggests
the desired response and may frequently be answered yes or no.
State v. Britt, 291 N.C. 528, 539, 231 S.E.2d 644, 652 (1977)
(citations omitted). Leading questions should not be used on the
direct examination of a witness except as may be necessary todevelop his testimony. N.C.G.S. § 8C-1, Rule 611(c) (1999).
Defendant argues that in sustaining the State's objections,
the trial court deprived defendant of an opportunity to deny to
the jury the fundamental charge against him--that his brother
offered him money to kill his wife. Defendant is correct in
asserting that each of the six questions at issue, to varying
degrees, were efforts at rebutting the State's underlying theory
that defendant conspired with Ted to murder Patricia. However, at
the time of the sustained objections, defendant had already been
provided ample opportunity to deny the State's charges against him.
For example, a portion of the direct examination of defendant
transpired as follows:
Q: Mr Kimble, last night, right before we
broke, I asked you if you killed
Patricia, and you said you did not.
A: Yes, sir.
Q: Did your brother ever ask you to do
anything like that?
A: No.
Q: Did Ted ever tell you he was looking for
a hit man?
A: No.
Q: Did you have any knowledge whatsoever of
Ted's and Patricia's life insurance
arrangements?
A: No.
Rulings by the trial judge on the use of leading questions
are discretionary and reversible only for an abuse of discretion.
State v. Smith, 290 N.C. 148, 160, 226 S.E.2d 10, 18,
cert. denied,
429 U.S. 932, 50 L. Ed. 2d 301 (1976) (citations omitted). A
trial court may be reversed for abuse of discretion only upon a
showing that its [ruling was] manifestly unsupported by reason.
White v. White, 312 N.C. 770, 777, 324 S.E.2d 829, 833 (1985). Because defendant had had an opportunity to deny the charges
against him, it was unnecessary to employ leading questions during
the direct examination. Furthermore, the questions were
repetitious. We find no abuse of discretion by the trial court in
sustaining the State's objections. This assignment of error is
overruled.
V.
[6]Defendant next asserts the trial court erred in allowing
the State to question defendant during cross-examination regarding
three photographs of a woman named Janet Smith. We find no
prejudicial error.
The State elicited the following statement from defendant on
cross-examination: I don't know of many things that my wife -- I
don't know of anything that I -- that my wife does not know today,
that I hold in secret from her in any way. I think she knows
everything there is to know about me. The State then sought to
impeach defendant using three photographs of Janet Smith that had
been seized from defendant's cell. Defendant objected, but after
a
voir dire hearing on the matter the trial court allowed the
following inquiry by the State:
Q: And showing you then State's Exhibit 139-
A, B and C, what are those?
A: These are pictures of Janet Smith.
Q: Were those in the book at the time it was
taken?
A: I don't know if they were or not.
Q: Were those pictures in your possession on
that day?
A: Yes.
Q: Did you tell your wife about those
pictures?
MR. LLOYD: Well, objection, Your Honor. &nbs
p; A: Yes, I --
THE COURT: Sustained. Don't answer it.
MR. LLOYD: Move to strike, Your Honor.
THE COURT: Disregard the question,
members of the jury.
The credibility of a witness may be impeached on cross-
examination by questioning the witness regarding evidence that
appears to be inconsistent with the testimony of the witness.
See
1 Henry Brandis, Jr.,
Brandis on North Carolina Evidence § 47 (3d
ed. 1988). However, contradiction of collateral facts by other
evidence is not permitted, as its only effect would be to show that
the witness is capable of error on immaterial points, and to allow
it would confuse the issues and unduly prolong the trial.
Id.
As a general rule, collateral matters are those that are
irrelevant to the issues in the case.
See State v. Najewicz, 112
N.C. App. 280, 289, 436 S.E.2d 132, 138 (1993),
disc. review
denied, 335 N.C. 563, 441 S.E.2d 130 (1994). In the case at bar,
whether defendant told his wife about photographs of another woman
found in his cell is clearly a collateral matter to the murder of
his brother's wife. In seeking to contradict defendant's statement
that he holds nothing secret from his wife, the State should have
been limited to asking defendant to acknowledge the existence of
the photographs, and then asking defendant whether he had told his
wife about the photographs. Defendant's answers would have been
conclusive on the matter, and the State would have been prohibited
from offering extrinsic evidence to contradict the defendant.
However, we conclude the error does not require reversal.
Reversible error exists where there is a reasonable possibilitythat, had the error in question not been committed, a different
result would have been reached at the trial. N.C.G.S. §
15A-1443(a) (1999). Here, the subject was collateral to the issues
before the jury and any error was thus unlikely to have impacted
the outcome of the trial. Furthermore, the inquiry by the State
was extremely brief, and was terminated by a sustained objection
and an instruction to disregard the question. In addition, the
defendant had already testified that his wife had filed for
divorce, significantly decreasing the potential for prejudice
resulting from any implication of defendant's interest in another
woman. This assignment of error is overruled.
VI.
[7]Defendant lastly asserts the trial court erred in allowing
the State to question defendant regarding allegations that his
brother and his parents had committed insurance fraud. Over
defendant's objection, the trial court allowed the State to briefly
inquire into the matter. In response to the State's questions,
defendant stated that no fraud had been committed and that until he
read the discovery documents in the case he had no knowledge that
such allegations even existed.
It is well-established that a defendant may be cross-examined,
for impeachment purposes, concerning prior acts of misconduct, if
such prior acts are probative of truthfulness or untruthfulness.
N.C.G.S. § 8C-1, Rule 608(b) (1999). The possibility that
defendant was aware of, and therefore conspired in, an insurance
fraud scam undertaken by his brother and his parents is arguablyprobative of defendant's truthfulness. The propriety or unfairness
of cross-examination rests largely in the trial judge's discretion,
and [h]is ruling thereon will not be disturbed without a showing
of gross abuse of discretion.
State v. Foster, 293 N.C. 674, 685,
239 S.E.2d 449, 457 (1977) (citations omitted). Defendant has
shown no abuse of discretion here. We hold there was no error in
allowing the State to briefly cross-examine defendant concerning
allegations of insurance fraud. This assignment of error is
overruled.
No error.
Judges GREENE and EDMUNDS concur.
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