State v. McKoy

Chief Judge Hedrick

dissenting.

My colleagues in their majority opinion have awarded both defendants new trials finding that the trial judge erred to each defendant’s prejudice in allowing the district attorney to ask the State’s witness if he and the defendants had broken into places other than the Maxway Store and if he had broken into a pawn shop with defendant Harrison.

The assignment of error upon which defendant McKoy relies is set out in the record as follows: “The trial court erred in allowing the State to question Thomas Bowen with respect to whether he, the defendant, and co-defendant Harrison had participated together in other break-ins because such testimony amounted to evidence suggesting prior criminal conduct.” Defendant McKoy’s assignment of error is based on his exception to the following:

Q: Had the three of you done anything like this before?
Mr. MELVIN: Objection, your Honor.
COURT: Overruled.
(McKoy Exception No. 1)
(Witness shaking head.)
COURT: You may answer.
A: Answer?
COURT: Yes.
A: What do you mean?
*540Q: Had you and Mr. Harrison and Mr. McKoy or any of you broken into places like this before?
Mr. MELVIN: Objection.
COURT: Overruled.
(McKoy Exception No. 2)
A: No.
Q: Had you broken into anything — at homes or anything with these two, either of these two fellows before.
Mr. Melvin: Objection.
COURT: Overruled.
(McKoy Exception No. 3)
COURT: You may answer.
A: (Shook head negatively.) No.

Since the witness testified that defendant McKoy had not committed other crimes with him, the witness, it is inconceivable to me that defendant McKoy suffered any prejudice from the questions to which he now takes exception. Under the circumstances of this case, however, it is my opinion that the trial court did not err in overruling defendant’s general objections to the question excepted to. By feeding defendants out of the same spoon, the majority has overlooked the fact that the court might have committed prejudicial error with respect to one defendant and not with respect to the other. Although it is not true in the present case, it is possible for one defendant to be entitled to a new trial without awarding a new trial to the other defendant.

By Assignments of Error Nos. 1, 2 and 3, defendant Harrison contends that the trial court erred in allowing the State’s witness to testify about other crimes allegedly committed by Harrison. Defendant Harrison’s assignments of error are based on exceptions to the court’s allowing the district attorney to question the witness Bowens as to whether he and Harrison had broken into a pawn shop. I note that when the State’s witness first testified on direct, no evidence of Bowens’ having committed other crimes with either defendant was admitted. He was, however, asked on direct whether he, Bowens, had broken into the Cash Pawn Shop. *541Defendant’s objection to this question was sustained. On cross-examination by defendants the witness was asked about numerous other crimes, including breaking or entering, that he had committed. In particular, he was asked by defendants’ counsel whether he had broken into a pawn shop. On redirect examination, the district attorney began to question the witness about his having broken into a pawn shop with defendant Harrison. To this line of questioning, defendant Harrison interposed a general objection. The witness was allowed to answer the question and ultimately testified that he did break into a pawn shop with Harrison. In my opinion, the court did not err in overruling defendant’s objection because defendant had “opened the door” with respect to this line of questioning when he brought out the fact that the witness had indeed broken into a pawn shop.

It must be noted that defendant merely interposed a general objection to the district attorney’s question about the witness breaking into a pawn shop with defendant Harrison. Rule 404(b) of the rules of evidence provides as follows:

(b) Other crimes, wrongs, or acts. — Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake, entrapment or accident.

G.S. 8C-1, Rule 404(b). A general objection, if overruled, “is no good, unless, on the face of the evidence, there is no purpose whatever for which it could have been admissible.” State v. Ward, 301 N.C. 469, 477, 272 S.E. 2d 84, 89 (1980).

In the present case, the evidence that the witness had committed another crime with defendant Harrison might have been admissible to show “motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake, entrapment or accident.” G.S. 8C-1, Rule 404(b). Had defendant desired to have the court make a ruling as to the specific reason or purpose the evidence was being offered, he should have interposed a specific objection, whereupon the trial judge could have conducted a voir dire to determine whether the probative value of the evidence outweighed its prejudicial effect. We then would have had some*542thing to review on appeal. In my opinion, the State was not under the burden of qualifying the testimony objected to under the circumstances of this case. In any event, however, I disagree with the majority that the trial judge erred in overruling defendant’s general objection to the testimony. Furthermore, it is my opinion that under the circumstances of this case, no conceivable prejudice resulted from the admission of this evidence.

I am particularly concerned with the final paragraph of the majority opinion, because it seems to place the burden on the State to prove on appeal that the trial court did not err, while the contrary is the rule. The burden is on the appellant, not only to show error, but to show prejudicial error. Stated in another way, the trial court’s rulings are presumed to be correct. The statement by the majority that “the State has made no effort to explain the permissible purpose for which the evidence was offered,” carries the implication that the State, either at trial or on appeal, should explain for what purpose the evidence was admissible. In my opinion, this assertion by the majority ignores well established rules with respect to the conduct of both trials and appeals. Other portions of the final paragraph of the majority opinion seem to be passing on the credibility of the witness Bowens, which, of course, is for the jury, not for the appellate court.

I vote to find no error with respect to the trial of both defendants.