{
  "id": 8549075,
  "name": "STATE OF NORTH CAROLINA v. ALTON DAWES CROUCH",
  "name_abbreviation": "State v. Crouch",
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    "judges": [
      "Judges Hedrick and Arnold concur."
    ],
    "parties": [
      "STATE OF NORTH CAROLINA v. ALTON DAWES CROUCH"
    ],
    "opinions": [
      {
        "text": "ERWIN, Judge.\nIn his brief, defendant brings forward 38 assignments of error based on 135 exceptions taken during his trial. Defendant contends, inter alia, that the trial court committed error in allowing the district attorney to repeatedly question, argue with, and belittle his own witnesses concerning pretrial statements given to agents of the State Bureau of Investigation and in allowing the district attorney to ask leading questions of his own witness, portions of which questions were read verbatim upon excluded portions of the pretrial statements. We find prejudicial error, the judgment entered is vacated, and the defendant is awarded a new trial.\nIn State v. Anderson, 283 N.C. 218, 224-25, 195 S.E. 2d 561, 565-66 (1973), Justice Sharp (later Chief Justice) stated the rule for the Supreme Court relating to a party impeaching his own witness as follows:\n\u201cUntil changed by statute applicable to civil cases (G.S. 1A-1, Rule 43(b) (1969)), it was established law in this State that a party could not impeach is own witness in either a civil or a criminal case. 1 Stansbury, North Carolina Evidence \u00a7 40 (Brandis rev. 1973). See also McCormick, Evidence \u00a7 38 (Cleary Ed., 2d, ed. 1972); 3A Wigmore, Evidence \u00a7\u00a7 896-905 (Chadbourn rev. 1970). This rule, unchanged as to criminal cases, still precludes the solicitor from discrediting a State\u2019s witness by evidence that his general character is bad or that the witness had made prior statements inconsistent with or contradictory of his testimony.. However, the trial judge has the discretion to permit the solicitor to cross-examine either a hostile or an unwilling witness for the purpose of refreshing his recollection and enabling him to testify correctly. \u2018In so doing, the trial judge may permit the party to call the attention of the witness directly to statements made by the witness on other occasions. S. v. Noland, [204 N.C. 329, 168 S.E. 413 (1933)]; S. v. Taylor, [88 N.C. 694 (1883)]. But the trial judge offends the rule that a witness may not be impeached by the party calling him and so commits error if he allows a party to cross-examine his own witness solely for the purpose of proving him to be unworthy of belief.\u2019 State v. Tilley, 239 N.C. 245, 251,79 S.E. 2d 473, 477-78 (1954).\u201d\nIn State v. Smith, 289 N.C. 143, 157, 221 S.E. 2d 247, 255-56 (1976), Justice Huskins stated for the Supreme Court:\n\u201cDuring the examination of James Thomas, the district attorney questioned him with reference to a paper writing marked State\u2019s Exhibit 10 which purportedly was a statement made by Thomas to a police officer in November 1973. This statement apparently consisted of responses to the identical questions which were being asked at trial regard-ingthe involvement of defendants in the crimes charged in this case. Defendants objected to the interrogation of Thomas concerning his previous written statement and, with the jury absent, argued that such examination was tantamount to the State\u2019s impeachment of its own witness. In overruling the objections the court replied that the statement previously made by Thomas was \u2018no more impeaching than the leading questions that he has been permitted to ask.\u2019 That is precisely the point defendants now urge, and we think the point is well taken.\nThe district attorney\u2019s \u2018leading questions\u2019 were calculated not only to impeach his own witness but also to prove the contents and the truth of the prior inconsistent testimony of the witness at the first trial. The obvious effect of these questions was to demonstrate to the jury that a written record existed which corroborated verbatim the \u2018testimony\u2019 contained in the district attorney\u2019s questions. The anti-impeachment rule makes Exhibit 10 imcompetent as evidence, and the district attorney\u2019s questions which indirectly but unmistakably placed it before the jury were prejudicial. Such interrogation of the witness Thomas violated the \u2018rule of law which forbids a prosecuting attorney to place before the jury by argument, insinuating questions, or other means, incompetent and prejudicial matters not legally admissible in evidence.\u2019 State v. Phillips, 240 N.C. 516, 82 S.E. 2d 762 (1954); accord, State v. Anderson, supra.\u201d\nRayford Crouch was interviewed by Special Agent Lester of the SBI on 29 December 1978. A written statement was taken by the agent. Judge Washington ruled that the following portion of the 29 December 1978 statement of Rayford Crouch was excluded from being introduced into evidence at the trial of defendant:\n\u201cDecember 29, 1978 Interview of Rayford W. Crouch:\nAccording to Rayford Crouch, after the first affray inside the trailer, and after Shuford Marlow had returned and stated, \u2018If any one of you sons-of-bitches come out of that place, I\u2019ll kill you.\u2019 Alton stated that he was, \u2018Not scared of the son-of-a-bitch and go up and went out the door.\u2019\nThe witness stated that when Alton Crouch returned the next morning to find the body of Shuford Marlow, the defendant said, \u2018Let\u2019s take him and throw him in the river.\u2019 The witness stated that he told Alton, \u2018Hell no, I\u2019m not having nothing to do with that.\u2019\u201d\nOn direct examination of Rayford Crouch by Mr. Zimmerman, the following questions were propounded:\n\u201cQ. Now, again, you talked to Special Agent Lester and gave him a statement, didn\u2019t you?\nA. Yes, sir.\nQ. And you looked at what I showed you just a minute ago. I ask you to look at this and refresh your recollection about this, also. Look at that line I have underlined right there where my thumb is. Does that refresh your recollection now as to what you told him?\nA. I told him that.\nQ. What was that you told him?\nMr. Hedrick: Objection.\nCourt: Overruled.\nEXCEPTION NO. 10\nA. I told him that he said, \u2018Let\u2019s throw him in the river.\u2019\nQ. Who said that?\nA. Alton, but just like I said, I drunk so much liquor and everything until I have these hallucinations and dreams, and I\u2019ll not get on this stand and swear that that is the Gospel truth.\nQ. But you ain\u2019t going to swear you didn\u2019t say it, either, are you?\nMr. Hedrick: Objection.\nCourt: Sustained. You can\u2019t cross examine your own witness.\nMr. Zimmerman: I understand, if Your Honor please.\nQ. Now, you see that there, Rayford?\nA. Yes.\nQ. Does that refresh your recollection \u2014 what did you say then?\nMr. Hedrick: Objection.\nCourt: Overruled.\nEXCEPTION NO. 11\nA. I don\u2019t think he said that.\nQ. What did he say, though?\nA. He said \u2014 said, \u2018I\u2019m a going home.\u2019\nQ. What did you tell the agent that he said after you refreshed your recollection now?\nmr. Hedrick: Objection.\nCourt: Overruled.\nMr. Hedrick: I\u2019d like to be heard, if Your Honor please.\n(Conference at the bench with the court and Mr. Hed-rick and Mr. Zimmerman.)\nCourt: The objection is sustained to that question.\nMr. Zimmerman: Cross examine.\n(To the foregoing which, despite the court\u2019s rulings, amounted to an impeachment of his own witness by the district attorney, the defendant respectfully excepts.)\nEXCEPTION NO. 12\u201d\nOn redirect examination of Rayford Crouch, Mr. Zimmerman propounded:\n\u201cQ. All right. Now, what was that he asked you to put in that there \u2014 is that what is up here?\nMr. Hedrick: Objection.\nCourt: Overruled.\nQ. Is that what he told you to say \u2014 is that one of the things Mr. Lester told you to say?\nA. Well, I don\u2019t recall.\nQ. That Alton said he wasn\u2019t scared of the son-of-a-bitch and went out the door?\n(The foregoing questions were asked while the district attorney was pointing to a paper in his hand and holding the paper in the face of the witness.)\nMr. Hedrick: Objection to his reading- that to the jury, your Honor. (Referring to the district attorney\u2019s reading from the SB I report to the witness.)\nCourt: Members of the jury, the question of counsel is not evidence of itself. The witness testifies from the witness stand. Next question?\nQ. What did this man right here tell you to put in there that wasn\u2019t the truth? (Referring to the statement again.)\nA. Well, I don\u2019t know just offhand. He just scared me, and I had been drinking so much that I would have told him anything to get out of there. I ain\u2019t going to swear that he said those words now.\nQ. What words?\nA. That he said he wasn\u2019t scared of him.\nMr. Hedrick: Objection.\nMr. Zimmerman: He has a right to answer now.\n(Comment directed to defense counsel)\n(To the court\u2019s failure to rule upon defense counsel\u2019s objection and to the court\u2019s allowing the questioningto proceed, the defendant respectfully excepts.)\nEXCEPTION NO. 14\nA. I'm not going to say he said, 'I\u2019m not scared of the son-of-a-bitch,\u2019 because he said three or four times he was going home; but whether he said that, I wouldn\u2019t swear to that.\nQ. You say Alton said that and you can\u2019t swear to that, is that right?\nA. That\u2019s right.\nQ. Now, you said, (Alton said), \u2018Let\u2019s take him and throw him in the river.\u2019 You are saying Mr. Lester told you that \u2014 to tell that, too?\nA. No, sir, I believe I dreamed that, because I have a lot of hallucinations over drinking whiskey.\nQ. Did you dream him out there, this man, cutting that old man out in the yard there?\nMr. Hedrick: Objection.\nCourt: Overruled.\nEXCEPTION NO. 15\nA. No, sir.\nQ. Was that dreaming?\nA. No, but I hadn\u2019t been asleep yet then. I\u2019d been asleep whenever he questioned me.\u201d\nThe State contends that the record does not show prejudicial error and relies on State v. Peplinski, 290 N.C. 236, 225 S.E. 2d 568 (1976), cert. denied, 429 U.S. 932, 50 L.Ed. 2d 301, 97 S.Ct. 338 (1976). The distinction between Peplinski and the case sub judice lies in the fact that Judge Washington had ruled that the portion of the statement complained of would not be admitted into evidence; but nevertheless, the district attorney continued to read and to cross-examine his witness about the excluded statement. We are compelled to find prejudicial error in this assignment of error.\nThe trial court did not err in denying defendant\u2019s request to serve as co-counsel. A party has the right to appear in propria persona or by counsel, but the right is alternative, and one has no right to appear both by himself and by counsel. State v. Phillip, 261 N.C. 263, 134 S.E. 2d 386 (1964), cert. denied, 377 U.S. 1003, 12 L.Ed. 2d 1052, 84 S.Ct. 1939 (1964), reh. denied, 379 U.S. 874, 13 L.Ed. 2 d 83, 85 S.Ct. 28 (1964).\nWe do not consider the other assignments of error, in that they may not occur at retrial of this defendant.\nDefendant is awarded a\nNew trial.\nJudges Hedrick and Arnold concur.",
        "type": "majority",
        "author": "ERWIN, Judge."
      }
    ],
    "attorneys": [
      "Attorney General Edmisten, by Assistant Attorney General Ben G. Irons II, for the State.",
      "Edward L. Hedrick, for defendant appellant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. ALTON DAWES CROUCH\nNo. 7922SC1150\n(Filed 5 August 1980)\n1. Criminal Law \u00a7 90- State\u2019s impeachment of own witness - prior inconsistent statements - prejudicial error\nThe trial court committed prejudicial error in permitting the district attorney to impeach his own witness by reading from and questioning the witness about portions of a pretrial statement made by the witness to an S.B.I. agent after the court had ruled that such portions of the statement were inadmissible in evidence.\n2. Constitutional Law \u00a7 45- refusal to permit defendant to act as co-counsel\nThe trial court did not err in denying defendant\u2019s request to serve as co-counsel since a defendant does not have a right to appear both by himself and by counsel.\nAppeal by defendant from Washington, Judge. Judgment entered 19 July 1979 in Superior Court, Alexander County. Heard in the Court of Appeals 22 April 1980.\nDefendant was charged in a bill of indictment, proper in form, with the offense of murder in the first degree and was convicted of murder in the second degree. Defendant was sentenced to an active term of imprisonment of not less than 18 years nor more than 25 years, from which he appealed.\nState\u2019s Evidence\nAt 7:15 p.m. on 28 December 1978, Rayford and Irene Crouch (husband and wife) were watching television at home when Shuford John Marlow, deceased (Mr. Crouch\u2019s first cousin), came to visit them. The three had a few drinks. They went to the store and purchased $12.00 worth of groceries with a $100 bill. Marlow gave Irene the change. They returned to the Crouch home to find defendant (Mr. Crouch\u2019s nephew) standing at the door. They entered the trailer and continued to drink intoxicating beverages until Irene sat on defendant\u2019s lap and stated, \u201cShuford [deceased], this is our favorite nephew.\u201d Without warning, Marlow jumped up and pushed the table over on defendant, knocking him backward out of his chair onto the floor. A scuffle ensued between deceased and defendant. Rayford and Irene Crouch separated the two. Marlow apologized several times, defendant accepted the apologies, and they shook hands. Marlow went outside, and everyone thought he had gone home. Rayford saw the parking lights on Marlow\u2019s car come on at one point. A loud banging was heard at the door a few minutes later, and Marlow was standing there. He said, \u201cArie one of your [S.O.B.\u2019s] come out here and I\u2019m going to kill you.\u201d Rayford Crouch told Marlow that no one was mad at him and that he should come back into the house and spend the night. Marlow said, \u201cBy God, I\u2019m going home.\u201d Mr. and Mrs. Crouch and defendant talked a few minutes longer. Then, defendant left to go home.\nA commotion was heard outside, and Rayford Crouch found both men lying in the yard facing each other. Defendant was cutting Marlow. Rayford Crouch told him to stop and that he was killing Marlow. Defendant stopped. Rayford Crouch tried to pick up Marlow, but found he had blood all over his arm. He then went into the house. He heard a car crank up and thought defendant was taking Marlow to the hospital. Later, he found Marlow\u2019s body in the yard.\nDependant\u2019s Evidence\nDefendant\u2019s evidence tended to show that he visited the Crouch home on 28 December, just as the State\u2019s evidence tended to show. Events inside the trailer were substantially similar to those described by Rayford and Irene Crouch. Defendant denied saying that there had never been a man whom he could not cut when he took out his knife, and he denied that Marlow had told him to put the knife away. He had shown everyone the knife, because it was a collector\u2019s item, and he had just bought it. He carried it with him, because he used it in his work to open cardboard boxes. After he left the trailer, he saw that Marlow was leaning into the passenger side of Marlow\u2019s car parked behind his car in the driveway. Defendant asked Marlow to move his car so that he could go home. Marlow came running around the car and swung a hammer at defendant, saying that he was going to kill defendant. Defendant ducked, and the hammer struck a glancing blow off the side of his head. Defendant moved closer to Marlow, trying to avoid further blows, and the two fell to the ground. Marlow continued to try to hit him, and defendant feared for his life. He got out his knife while holding onto Marlow with one hand and began cutting Marlow on the back of his leg. That did no good, so he began cutting Marlow on the back of his head. Marlow continued to hit him. Defendant went home and later returned to Crouch\u2019s trailer, found Marlow\u2019s body, and called the sheriff.\nAttorney General Edmisten, by Assistant Attorney General Ben G. Irons II, for the State.\nEdward L. Hedrick, for defendant appellant."
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