{
  "id": 8525998,
  "name": "STATE OF NORTH CAROLINA v. ERNEST McLEOD",
  "name_abbreviation": "State v. McLeod",
  "decision_date": "1984-03-06",
  "docket_number": "No. 8315SC727",
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  "analysis": {
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  "last_updated": "2023-07-14T17:10:21.361774+00:00",
  "provenance": {
    "date_added": "2019-08-29",
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  "casebody": {
    "judges": [
      "Judges Arnold and Becton concur."
    ],
    "parties": [
      "STATE OF NORTH CAROLINA v. ERNEST McLEOD"
    ],
    "opinions": [
      {
        "text": "WHICHARD, Judge.\nGuilt Phase\nOn voir dire, three witnesses testified for defendant that one Jerry Rogers had told them, or they had overheard him say, that he had cut a \u201cwhite dude\u201d on the night of the assault with which defendant was charged. Rogers, however, denied making these statements, and stated that he had never seen the victim prior to trial.\nDefendant requested that Rogers, who was to be his next witness, be declared hostile. The court denied the request, and refused to allow defendant to impeach Rogers. Rogers then, before the jury, denied that he cut the victim or made any statements that he had cut a \u201cwhite dude.\u201d\nDefendant contends the court erred in denying his request and refusing to allow him to impeach Rogers\u2019 testimony. Generally, a defendant in a criminal case in this jurisdiction cannot impeach his own witness. State v. Austin, 299 N.C. 537, 263 S.E. 2d 574 (1980). A \u201crecognized exception\u201d allows impeachment \u201c \u2018where the party calling the witness has been misled and surprised or entrapped to his prejudice.\u2019 \u201d Id. at 539-40, 263 S.E. 2d at 575, citing State v. Pope, 287 N.C. 505, 512-13, 215 S.E. 2d 139, 145 (1975).\nWhether to allow defendant to impeach the witness was in the court\u2019s discretion. Austin, supra; Pope, supra. Here, as in Austin, defendant was not misled and surprised or entrapped to his prejudice. He had examined the witness in the absence of the jury, and he thus knew what the witness would say before he presented him. Under these circumstances the court did not abuse its discretion in denying defendant\u2019s request. Austin, supra.\nDefendant cites and relies on Chambers v. Mississippi, 410 U.S. 284, 35 L.Ed. 2d 297, 93 S.Ct. 1038 (1973). There, another person had confessed orally to three different people on three separate occasions that he had committed the murder with which defendant was charged. He also had made, but later repudiated, a written confession. The Court held that exclusion, as hearsay, of the testimony of persons to whom the oral confessions were made \u2014 together with refusal, on the ground that a party may not impeach his own witness, to permit defendant to cross examine the person whom these witnesses said had confessed \u2014 deprived defendant of a fair trial.\nIn Chambers, the other person had confessed to the specific crime with which the defendant was charged. Here, Rogers was alleged to have said only that he had cut a \u201cwhite dude,\u201d not the specific victim. In Chambers, all of the witnesses who would have testified to the other person\u2019s statements were close acquaintances of that other person. Here, two of the witnesses were defendant\u2019s brothers, and the third testified only that he was \u201cacquainted with . . . Rogers.\u201d In Chambers, each confession was corroborated by other evidence. Here, no corroborating evidence appears.\nIn our view these and other factual differences render Chambers distinguishable and defendant\u2019s reliance thereon misplaced. This assignment of error is therefore overruled.\nSentencing Phase\nDefendant contends the court erred in not finding his good character and reputation in the community as a mitigating factor. The only evidence in this regard was the testimony of defendant\u2019s father that\nhe is in contact with [defendant] on a continuous basis and ... to his knowledge [defendant] does not hang around on the street, that he stays home with his wife, that [he] is not involved in violence, that [he] has been working at landscaping when work is available and that he supports his wife.\nWhile uncontradicted, this testimony was from a member of defendant\u2019s family and, under decisions of our Supreme Court, was less than manifestly credible. Further, it did not rise to the level which would entitle defendant to a finding in mitigation that he was a person of \u201cgood character\u201d or that he had a \u201cgood reputation.\u201d It was thus within the trial court\u2019s prerogative to accept or reject it. See State v. Benbow, 309 N.C. 538, 547-48, 308 S.E. 2d 647, 652-53 (1983); State v. Taylor, 309 N.C. 570, 575-78, 308 S.E. 2d 302, 306-08 (1983).\nNo error.\nJudges Arnold and Becton concur.",
        "type": "majority",
        "author": "WHICHARD, Judge."
      }
    ],
    "attorneys": [
      "Attorney General Edmisten, by Assistant Attorney General Francis W. Crawley, for the State.",
      "Winston, Blue & Rooks, by David M. Rooks, III, for defendant appellant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. ERNEST McLEOD\nNo. 8315SC727\n(Filed 6 March 1984)\n1. Criminal Law \u00a7 90\u2014 failure to declare witness to be hostile\nIn a prosecution for assault with a deadly weapon inflicting serious injury in which three defense witnesses testified on voir dire that they had overheard a third person say he had cut a \u201cwhite dude\u201d on the night in question, and the third person denied on voir dire that he had cut the victim or made any statements that he had cut a \u201cwhite dude,\u201d the trial court did not abuse its discretion in refusing to declare the third person a hostile witness and to permit defendant to impeach him since defendant had examined the witness in the absence of the jury, knew what the witness would testify, and thus was not misled and surprised or entrapped to his prejudice.\n2. Criminal Law \u00a7 138\u2014 mitigating factor \u2014 good character and reputation \u2014 insufficient evidence\nTestimony by defendant\u2019s father did not require the trial court to find as a mitigating factor that defendant was a person of good character or that he had a good reputation.\nAPPEAL by defendant from Barnette, Judge. Judgment entered 9 February 1983 in Superior Court, ORANGE County. Heard in the Court of Appeals 19 January 1984.\nDefendant appeals from a judgment of imprisonment entered upon his conviction of assault with a deadly weapon inflicting serious injury.\nAttorney General Edmisten, by Assistant Attorney General Francis W. Crawley, for the State.\nWinston, Blue & Rooks, by David M. Rooks, III, for defendant appellant."
  },
  "file_name": "0186-01",
  "first_page_order": 218,
  "last_page_order": 221
}