{ "id": 8565214, "name": "STATE OF NORTH CAROLINA v. LAUNA IONIA HARGETT GREENE and DOUGLAS DONALD DONNELL", "name_abbreviation": "State v. Greene", "decision_date": "1974-07-01", "docket_number": "No. 90", "first_page": "482", "last_page": "496", "citations": [ { "type": "official", "cite": "285 N.C. 482" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "185 S.E. 2d 677", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "280 N.C. 273", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571097 ], "opinion_index": 0, "case_paths": [ "/nc/280/0273-01" ] }, { "cite": "189 S.E. 2d 145", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "281 N.C. 447", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575301 ], "opinion_index": 0, "case_paths": [ "/nc/281/0447-01" ] }, { "cite": "196 S.E. 2d 516", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "283 N.C. 570", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559413 ], "opinion_index": 0, "case_paths": [ "/nc/283/0570-01" ] }, { "cite": "375 U.S. 85", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11717703 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/us/375/0085-01" ] }, { "cite": "124 S.E. 2d 873", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "256 N.C. 652", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574385 ], "opinion_index": 0, "case_paths": [ "/nc/256/0652-01" ] }, { "cite": "145 S.E. 2d 6", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "265 N.C. 730", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8577118 ], "opinion_index": 0, "case_paths": [ "/nc/265/0730-01" ] }, { "cite": "146 S.E. 2d 492", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "266 N.C. 440", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561099 ], "opinion_index": 0, "case_paths": [ "/nc/266/0440-01" ] }, { "cite": "82 S.E. 2d 762", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "240 N.C. 516", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8603731 ], "opinion_index": 0, "case_paths": [ "/nc/240/0516-01" ] }, { "cite": "30 S.E. 2d 230", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "224 N.C. 329", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8601357 ], "opinion_index": 0, "case_paths": [ "/nc/224/0329-01" ] }, { "cite": "61 S.E. 2d 107", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "232 N.C. 374", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8601837 ], "opinion_index": 0, "case_paths": [ "/nc/232/0374-01" ] }, { "cite": "111 S.E. 2d 1", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "251 N.C. 177", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8624134 ], "opinion_index": 0, "case_paths": [ "/nc/251/0177-01" ] }, { "cite": "129 S.E. 2d 894", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "259 N.C. 138", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559508 ], "opinion_index": 0, "case_paths": [ "/nc/259/0138-01" ] }, { "cite": "158 S.E. 2d 95", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1948, "opinion_index": 0 }, { "cite": "272 N.C. 239", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572379 ], "year": 1948, "opinion_index": 0, "case_paths": [ "/nc/272/0239-01" ] }, { "cite": "128 S.E. 2d 251", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "258 N.C. 188", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559986 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/nc/258/0188-01" ] }, { "cite": "144 S.E. 2d 6", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "265 N.C. 277", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575036 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/nc/265/0277-01" ] }, { "cite": "180 S.E. 2d 5", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "278 N.C. 502", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560782 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/nc/278/0502-01" ] }, { "cite": "186 S.E. 2d 384", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "280 N.C. 435", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572439 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/nc/280/0435-01" ] }, { "cite": "319 F. 2d 590", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 158147 ], "year": 1973, "opinion_index": 0, "case_paths": [ "/f2d/319/0590-01" ] }, { "cite": "74 S.E. 587", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1973, "opinion_index": 0 }, { "cite": "158 N.C. 641", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8656254 ], "year": 1973, "opinion_index": 0, "case_paths": [ "/nc/158/0641-01" ] }, { "cite": "65 S.E. 2d 9", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "233 N.C. 581", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8613655 ], "opinion_index": 0, "case_paths": [ "/nc/233/0581-01" ] }, { "cite": "65 S.E. 2d 508", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "233 N.C. 691", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8615953 ], "opinion_index": 0, "case_paths": [ "/nc/233/0691-01" ] }, { "cite": "118 S.E. 2d 769", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "254 N.C. 101", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8624570 ], "opinion_index": 0, "case_paths": [ "/nc/254/0101-01" ] }, { "cite": "151 S.E. 2d 606", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "268 N.C. 690", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564954 ], "opinion_index": 0, "case_paths": [ "/nc/268/0690-01" ] }, { "cite": "36 S.E. 2d 704", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "226 N.C. 97", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8613471 ], "opinion_index": 0, "case_paths": [ "/nc/226/0097-01" ] }, { "cite": "111 S.E. 2d 912", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "251 N.C. 630", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626770 ], "opinion_index": 0, "case_paths": [ "/nc/251/0630-01" ] }, { "cite": "163 S.E. 2d 897", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "274 N.C. 380", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560392 ], "opinion_index": 0, "case_paths": [ "/nc/274/0380-01" ] }, { "cite": "180 S.E. 2d 128", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "278 N.C. 458", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560650 ], "opinion_index": 0, "case_paths": [ "/nc/278/0458-01" ] }, { "cite": "185 F. 2d 629", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1231875 ], "opinion_index": 0, "case_paths": [ "/f2d/185/0629-01" ] }, { "cite": "92 S.E. 2d 180", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "243 N.C. 779", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8627320 ], "opinion_index": 0, "case_paths": [ "/nc/243/0779-01" ] }, { "cite": "163 S.E. 2d 376", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "274 N.C. 295", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560020 ], "opinion_index": 0, "case_paths": [ "/nc/274/0295-01" ] }, { "cite": "150 S.E. 2d 412", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "268 N.C. 267", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561247 ], "opinion_index": 0, "case_paths": [ "/nc/268/0267-01" ] }, { "cite": "150 S.E. 2d 481", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "268 N.C. 320", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561746 ], "opinion_index": 0, "case_paths": [ "/nc/268/0320-01" ] }, { "cite": "56 S.E. 855", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "144 N.C. 184", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8659322 ], "opinion_index": 0, "case_paths": [ "/nc/144/0184-01" ] }, { "cite": "156 S.E. 2d 740", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "271 N.C. 323", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8563824 ], "opinion_index": 0, "case_paths": [ "/nc/271/0323-01" ] }, { "cite": "185 S.E. 2d 633", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "280 N.C. 220", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570924 ], "opinion_index": 0, "case_paths": [ "/nc/280/0220-01" ] }, { "cite": "192 S.E. 2d 320", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "282 N.C. 189", "category": "reporters:state", 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"batch": "2018" }, "casebody": { "judges": [], "parties": [ "STATE OF NORTH CAROLINA v. LAUNA IONIA HARGETT GREENE and DOUGLAS DONALD DONNELL" ], "opinions": [ { "text": "BRANCH, Justice.\nDefendants assign as error the denial of their motions for preliminary hearings upon warrants and bills of indictment charging each of them with kidnapping, conspiracy to commit murder and murder.\nWhether an accused is entitled to a preliminary hearing as a matter of right was considered in the case of State v. Hargett, 255 N.C. 412, 121 S.E. 2d 589. There, Justice Moore speaking for the Court stated:\n\u201c . . . A preliminary hearing is not an essential prerequisite to the finding of an indictment in this jurisdiction. \u2018We have no statute requiring a preliminary hearing, nor does the State .Constitution require it. It was proper to try the petitioner upon a bill of indictment without a preliminary hearing.\u2019 State v. Hackney, 240 N.C. 230, 237, 81 S.E. 2d 778. See also State v. Doughtie, 238 N.C. 228, 232, 77 S.E. 2d 642; State v. Cale, 150 N.C. 805, 808, 63 S.E. 958. If defendant was at a disadvantage in preparing for trial through ignorance of the nature of the evidence against him, ample remedies were available to him. He might have obtained a hearing at any time by petition for habeas corpus. In fact, he requested and obtained a bill of particulars. The ruling on the motion was proper.\u201d\nThis Court has consistently adhered to the principles stated in Hargett. State v. Harrington, 283 N.C. 527, 196 S.E. 2d 742; State v. Foster, 282 N.C. 189, 192 S.E. 2d 320; State v. Howard, 280 N.C. 220, 185 S.E. 2d 633; Gasque v. State, 271 N.C. 323, 156 S.E. 2d 740.\nWe have carefully considered defendants\u2019 arguments that ,we should change this well recognized rule because it contravenes modern notions of due process and fair trial. We do not agree. There are ample provisions in our system of criminal procedure and practice to enable an accused to prepare for his defense without aid of a preliminary hearing. Further, defendants fail to show that they were taken by surprise or that their defense was prejudiced by the Court\u2019s ruling.\nThis assignment of error is overruled.\nBy Assignments of Error Numbers 3, 4 and 12 defendants contend that the trial judge violated the provisions of G.S. 1-180 by expressing opinions and by unduly restricting their right of cross-examination.\nG.S. 1-180, provides:\n\u201cJudge to explain law, but give no opinion on facts.\u2014 No judge, in giving a charge to the petit jury in a criminal action, shall give an opinion whether a fact is fully or sufficiently proven, that being the true office and province of the jury, but he shall declare and explain the law arising on the evidence given in the case. He shall not be required to state such evidence except to the extent necessary to explain the application of the law thereto; provided the judge shall give equal stress to the State and defendant in a criminal action.\u201d\nThe duty of the trial judge to abide by the provisions of former \u00a7 535 Revisal of 1905, now substantially codified as G.S. 1-180, was eloquently stated by Justice Walker in the case of Withers v. Lane, 144 N.C. 184, 56 S.E. 855:\n\u201c . . . The judge should be the embodiment of even and exact justice. He should at all times be on the alert, lest, in an unguarded moment, something be incautiously said or done to shake the wavering balance which, as a minister of justice, he is supposed, figuratively speaking, to hold in his hands. Every suitor is entitled by the law to have his cause considered with the \u2018cold neutrality of the impartial judge,\u2019 and the equally unbiased mind of a properly instructed jury. This right can neither be denied nor abridged. . . . \u201d\nThe provisions of G.S. 1-180 may be violated at any stage of the trial by comments of the testimony of a witness, by remarks which tend to discredit a witness, by imbalancing the evidence in the charge to the jury or by any other means which intimates an opinion of the trial judge in a manner which would deprive an accused of a fair and impartial trial before the jury. State v. Belk, 268 N.C. 320, 150 S.E. 2d 481; State v. Douglas, 268 N.C. 267, 150 S.E. 2d 412. However, in the exercise of his duty to supervise and control the course of a trial so as to insure justice for all parties, the Court may interrogate a witness for the purpose of clarifying his testimony, State v. Colson, 274 N.C. 295, 163 S.E. 2d 376; Andrews v. Andrews, 243 N.C. 779, 92 S.E. 2d 180, and it is the duty of the trial judge to control the examination and cross-examination of witnesses. United States v. Coplon, 185 F. 2d 629; State v. Frazier, 278 N.C. 458, 180 S.E. 2d 128; State v. Wright, 274 N.C. 380, 163 S.E. 2d 897; Greer v. Whittington, 251 N.C. 630, 111 S.E. 2d 912, and State v. Stone, 226 N.C. 97, 36 S.E. 2d 704.\nAn accused is not entitled to a new trial because of remarks of the trial judge unless they tend to prejudice defendant in light of the circumstances in which they were made, and the burden of showing that he had been deprived of a fair trial by such remarks is upon the defendant. State v. Green, 268 N.C. 690, 151 S.E. 2d 606; State v. Faust, 254 N.C. 101, 118 S.E. 2d 769; State v. Gibson, 233 N.C. 691, 65 S.E. 2d 508; State v. Carter, 233 N.C. 581, 65 S.E. 2d 9.\nWe consider these assignments of error in light of the above stated principles of law.\nDuring the course of his cross-examination the witness Danny Cobb admitted that he had been convicted of the \u201cmarijuana tax\u201d in 1958 and that in 1970 he was convicted of possession of methadone. Defense counsel thereupon asked the witness what methadone was, and the trial judge sustained the State\u2019s objection. Thereafter the witness admitted that he had been convicted of felonious possession of a firearm. When defense counsel inquired as to what other felonies the witness had been convicted of, the trial judge observed that counsel was getting into the field of law and that he should restrict this line of questioning to the crimes of which the witness had been convicted. When defense counsel again pursued his cross-examination concerning prior convictions, the witness professed to be puzzled by the meaning of the word \u201cconvicted.\u201d At this point Judge Copeland said:\n\u201cJust a minute. The District Attorney has stated that he would stipulate to everything that this witness has been convicted or pled guilty to, or of which he has knowledge.\u201d\nAn assistant prosecuting attorney then stated that to his knowledge the witness had been convicted of felonious possession of a hand gun, possession of heroin and that both of these cases were on appeal. Also on appeal was another case in Cumberland County for possession of heroin.\nDefendants' strenuously argue that by these statements and rulings, the trial judge improperly limited and frustrated their right to cross-examination and expressed an opinion detrimental to them.\nConsidering the witness\u2019 prior admission that it was a crime to possess methadone, we see no relevancy or purpose in allowing defendants\u2019 counsel to elicit evidence as to the other characteristics of the drug.\nIt was also reasonable and proper for the trial judge, in the exercise of his duty to control the course of the trial, to restrict that portion of the cross-examination which sought to have an untrained witness distinguish between felonies and misdemeanors. Neither do we discern that prejudicial error resulted because Judge Copeland allowed an Assistant Solicitor to relate Cobb\u2019s additional convictions in light of the facts that the witness was a prisoner at the time that he testified and that he had already admitted to extensive criminal activities.\nThe witness was fully revealed to the jury as a repeated criminal offender, and defense counsel\u2019s attempts to discredit and impeach the witness were not frustrated by the remarks and rulings of the trial judge.\nWe hold that defendant has failed to carry the burden of showing prejudice in these rulings and statements of the trial judge.\nBy Assignment of Error Number 12 defendant again contends that the trial judge made a comment amounting to an expression of opinion which denied him a fair trial.\nDefendant Donnell, testifying in his own behalf, stated that on 9 April 1973 he went to the home of Danny Edward Cobb\u2019s parents to collect a debt, and while there he was shot in the leg by Danny Cobb. Defendants introduced into evidence the pants which Donnell was allegedly wearing when he was shot and Donnell pointed out the hole in the clothing which he stated was caused by the shot.\nOn cross-examination, the District Attorney inquired about the severity of the wound, and the following exchange occurred:\nDonnell: \u201cI didn\u2019t say how bad I was shot. The pants speak for themselves.\nQ. Tell the jury where the blood is.\nA. In my leg.\nCourt: Listen, you don\u2019t have to talk like that.\u201d\nAside from a ruling on the admission of evidence, the words complained of in this Assignment of Error were the only utterances made by the trial judge during Donnell\u2019s direct examination and cross-examination. The words appear to be simply an admonishment to the witness to give serious and responsive answers to questions put to him. Such comment was made pursuant to the trial judge\u2019s duty to insure proper decorum in the courtroom and an orderly trial. There was nothing in the Judge\u2019s statement which reflected upon the credibility of the witness or which amounted to an expression of opinion as to the weight of the evidence.\nThis assignment of error is overruled.\nDefendants next contend that prejudicial error resulted from the trial judge\u2019s rulings permitting the Solicitor to interrogate- two State\u2019s witnesses by asking questions which they contend were leading.\nIt is generally recognized that an examining counsel should not ask his own witness leading questions on direct examination. A leading question has been defined as one which suggests the answer desired and is a question which may often be answered by yes or no. State v. Price, 158 N.C. 641, 74 S.E. 587; 1 Stansbury\u2019s North Carolina Evidence \u00a7 31 (Brandis Revision 1973) ; 58 Am. Jur. Witnesses, \u00a7 569 (1948) ; McCormick\u2019s Handbook of the Law of Evidence \u00a7 6 (2d ed. 1972) ; 2 Wharton\u2019s Criminal Evidence \u00a7 411 (13th ed. Charles E. Torc\u00eda 1972). The rule prohibiting leading questions is not based on a' technical distinction between direct examination or cross-examination, but on the alleged friendliness existing between counsel and his witness. It is said that this relationship would allow the examiner to provide a false memory to the witness by suggesting the desired reply to his question. United States v. Durham, 319 F. 2d 590; 1 Stansbury\u2019s North Carolina Evidence \u00a7 31 (Brandis Revision 1973) ; 98 C.J.S. Witnesses \u00a7\u00a7 329, 330 (1957). However, it is firmly entrenched in the law of this State that it is within the sound discretion of the trial judge to determine wheth\u00e9r counsel shall be permitted to ask leading questions, and in the absence of abuse the exercise of such discretion will not be disturbed on appeal. State v. Bass, 280 N.C. 435, 186 S.E. 2d 384; State v. Clanton, 278 N.C. 502, 180 S.E. 2d 5; State v. Painter, 265 N.C. 277, 144 S.E. 2d 6; State v. Pearson, 258 N.C. 188, 128 S.E. 2d 251; 2 Wharton\u2019s Criminal Evidence \u00a7 411 (13th ed. Charles E. Torc\u00eda 1972).\nThe trial judge in ruling on leading questions is aided by certain guidelines which have evolved over the years to the effect that counsel should be allowed to lead his witness on direct examination when the witness is: (1) hostile or unwilling to testify, (2) has difficulty in understanding the question because of immaturity, age, infirmity or ignorance or where (3) the inquiry is into a subject of delicate nature such as sexual matters, (4) the witness is called to contradict the testimony of prior witnesses, (5) the examiner seeks to aid the witness\u2019 recollection or refresh his memory when the witness has exhausted his memory without stating the particular matters required, (6) the questions are asked for securing preliminary or introductory testimony, (7) the examiner directs attention to the subject matter at hand without suggesting answers and (8) the mode of questioning is best calculated to elicit the truth. State v. Johnson, 272 N.C. 239, 158 S.E. 2d 95; State v. Pearson, supra; 58 Am. Jur. Witnesses, \u00a7 570 (1948) ; 1 Stansbury\u2019s North Carolina Evidence \u00a7 31 (Brandis Revision 1973) ; 98 C.J.S. Witnesses \u00a7 331 (1957) ; 2 Wharton\u2019s Criminal Evidence \u00a7 412 (13th ed. Charles E. Torc\u00eda). .\nExamination of the challenged rulings does not convince us that this questioning falls within the traditional abuse of suggesting answers or asking questions designed to secure a yes or no answer. It could just as easily be said that the District Attorney sought to direct the witness\u2019 attention to the matters at hand in a manner best calculated to elicit truth and expedite the trial. Furthermore, in deciding these questions, we must be advertent to the fact that because of his opportunity to observe the witnesses and because of his knowledge of the circumstances of the particular case, the trial judge is in better position than an appellate court to decide the proper course of a trial so as to establish the truth and protect the rights of an accused. State v. Pearson, supra.\nWe cannot say from our examination of this record that the trial judge abused his discretion or deprived defendants of a fair trial by the rulings here challenged.\nDefendants assign as error the failure of the trial judge to timely sustain objections to questions addressed to the witness Lindsay and to, ex mero motu, instruct the jury to disregard the questions posed to witnesses Lindsay and McMillan. On redirect examination of the witness Lindsay by the District Attorney the following occurred:\n\u201cQ. Now, I want \u2014 there\u2019s been right many questions put to you on cross-examination about narcotics traffic and Danny Cobb, and I want to ask you what, if anything, you know about Launa Hargett Greene\u2019s relationship to Danny Cobb and the dope traffic ?\nMr. Cqj\u00fcer: I object.\nCourt: Come up here a minute. (Conference at the bench.)\nCourt: Objection Sustained for the time being.\u201d\nThereafter the witness Lindsay was recalled and the following colloquy took place:\n\u201cRedirect Examination (By Mr. Albright)\nQ. Mrs. Lindsay, what occasion, if any, have you had to purchase narcotic drugs from the defendant, Launa Har-gett Greene?\nMr. Comer: Objection.\nCourt : Step up here a minute.\n(Conference at the bench.)\nCourt: The objection is Sustained.\u201d\nOn rebuttal the District Attorney questioned Detective Nor-wood McMillan concerning the character and reputation of the defendant Greene, and the witness started to answer in a non-responsive manner. At that point the record reveals the following:\n\u201cMr. Comer: Objection.\nCourt: Did you say you knew her reputation?\nWitness: Yes.\nCourt: Your answer will be good, bad, or you don\u2019t know, and if you need to, you can explain your answer.\nA. (By the Witness) It\u2019s bad.\nQ. In what respect?\nMr. Comer: Objection.\nCourt: Sustained.\u201d\nThe general rule is that the State cannot show bad character by specific acts, State v. Davis, 259 N.C. 138, 129 S.E. 2d 894; State v. Grundler, 251 N.C. 177, 111 S.E. 2d 1; State v. Bowman, 232 N.C. 374, 61 S.E. 2d 107; State v. King, 224 N.C. 329, 30 S.E. 2d 230, and the District Attorney may not place before the jury incompetent or prejudicial matters not legally admissible in evidence by the use of insinuating questions. State v. Phillips, 240 N.C. 516, 82 S.E. 2d 762. Defendants argue that the District Attorney sought to offer specific acts of misconduct by cross-examination in order to show the bad character of defendant Greene and that after sustaining the. objections of the defense counsel, the trial judge should have instructed the jury to disregard the questions asked by the District Attorney.\nThe question here considered is similar to the one presented by an unresponsive answer in the case of Moore v. Insurance Company, 266 N.C. 440, 146 S.E. 2d 492. There the witness unresponsively answered a question proper in form, and the Court allowed defense counsel\u2019s Motion to Strike. Finding the non-responsive answer to be nonprejudicial the Court speaking through Justice Lake stated:\n\u201cAlthough the proper procedure, upon allowing a motion to strike an answer not responsive to the question, is for the court immediately to instruct the jury not to consider the answer, we think that the failure to do so in this instance, in view of the court\u2019s prompt allowance of the motion to strike, is not prejudicial error. The jury could only have interpreted the ruling of the court as meaning that the answer given by the witness was not to be regarded as evidence in the case.\u201d\nDefendants, relying heavily on State v. Phillips, supra, contend that the posing of the questions resulted in prejudicial error. In Phillips, the Court found prejudicial error in the cross-examination by the Solicitor upon a factual situation in which the Solicitor asked defendant at least 32 questions which contained improprieties ranging from assuming defendant\u2019s guilt of collateral offenses by insinuation to framing questions which in advance asserted the untruth of defendant\u2019s subsequent denials. In Phillips the Solicitor capped his cross-examination by, in effect, personally vouching for the truth of the State\u2019s allegations.\nThe facts in instant case are a far cry from those in Phillips. Here not more than three questions were directed to State\u2019s witnesses concerning defendant Greene\u2019s complicity in the drug traffic. Defense counsel\u2019s objections were sustained as to each question in the presence of the jury so that the jury must have known that the questions were not for their consideration. There was no harassment or vilification of defendant or her witnesses.\nThereafter evidence of like import to that which the District Attorney apparently sought to elicit was admitted, without objection, when the witness Maxwell stated:\n\u201c . . . I met Launa Hargett Greene at Douglas Donnell\u2019s house. Diane told me Launa wanted to see me \u2014 she figured she knew where I could get drugs....\u201d\nThe admission of testimony over objection is ordinarily harmless when testimony of like import is thereafter introduced without objection. State v. Creech, 265 N.C. 730, 145 S.E. 2d 6; State v. Gaskill, 256 N.C. 652, 124 S.E. 2d 873. Certainly the subsequent admission of testimony, without objection, obviously of like import to that which the District Attorney unsuccessfully sought to elicit from the witnesses would render harmless any prejudice which might have arisen because the jury heard the unanswered questions.\nWe do not deem it necessary to further discuss defendants\u2019 contentions concerning the testimony of the witness McMillan. Suffice it to say that Judge Copeland\u2019s ruling was correct and for reasons stated above his failure to instruct the jury concerning the Solicitor\u2019s further inquiry was not prejudicial error.\nEven had there been error in these challenged evidentiary rulings, we are of the opinion that the State\u2019s evidence was so convincing that there is no reasonable possibility that the matters here complained of might have contributed to defendants\u2019 conviction. Fahy v. Connecticut, 375 U.S. 85, 11 L.Ed. 2d 171, 84 S.Ct. 229; State v. Humphrey, 283 N.C. 570, 196 S.E. 2d 516; State v. Thacker, 281 N.C. 447, 189 S.E. 2d 145; State v. Taylor, 280 N.C. 273, 185 S.E. 2d 677. This complicated and vigorously contested case consumed five days of trial time. In such cases it is a real and accepted fact that an accused cannot be guaranteed a perfect trial. He is guaranteed a fair trial.\nOur examination of this entire record discloses that defendants received a fair trial, free from prejudicial error.\nNo error.", "type": "majority", "author": "BRANCH, Justice." } ], "attorneys": [ "Attorney General Robert Morgan by Assistant Attorney General Thomas B. Wood for the State.", "Comer and Dailey by John T. Comer for defendant appellants." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. LAUNA IONIA HARGETT GREENE and DOUGLAS DONALD DONNELL\nNo. 90\n(Filed 1 July 1974)\n1. Criminal Law \u00a7 21\u2014 preliminary hearing \u2014 necessity\nA preliminary hearing is not an essential prerequisite to the finding- of an indictment in this jurisdiction.\n2. Criminal Law \u00a7 99\u2014 expression of opinion by trial judge\nThe provisions of G.S. 1-180 may be violated at any stage of the trial by comments on the testimony of a witness, by remarks which tend to discredit a witness, by imbalancing the evidence in the charge to the jury or by any other means which intimate an opinion of the trial judge in a manner which would deprive an accused of a fair and impartial trial before the jury; however, in the exercise of his duty to supervise and control the course of a trial so as to insure justice for all parties, the court may interrogate a witness for the purpose of clarifying his testimony, and it is the duty of the trial judge to control the examination and cross-examination of witnesses.\n3. Criminal Law \u00a7 99\u2014 remarks of trial judge \u2014 burden of showing prejudice\nAn accused is not entitled to a new trial because of remarks of the trial judge unless they tend to prejudice defendant in light of the circumstances in which they were made, and the burden of showing that he has been deprived of a fair trial by such remarks is upon defendant.\n4. Criminal Law \u00a7 88\u2014 scope of cross-examination \u2014 restriction proper\nDefendant was not prejudiced where the trial judge restricted that portion of the cross-examination which sought to have an untrained witness distinguish between felonies and misdemeanors, or where the judge allowed an assistant solicitor to relate a witness\u2019s additional convictions, since the witness was a prisoner at the time he testified and he had already admitted to extensive criminal activities.\n5. Criminal Law \u00a7 99\u2014 admonition by trial judge to witness \u2014 no expression of opinion\nWhere the trial judge told a witness, \u201cListen, you don\u2019t have to talk like that,\u201d the remark was simply an admonition to the witness to give serious and responsive answers to questions put to him, and it did not reflect on the witness\u2019s credibility or amount to an expression of opinion as to the weight of the evidence.\n6. Criminal Law \u00a7 87\u2014 leading question \u2014 definition\nA leading question is one which suggests the answer desired and is a question which may often be answered by yes or no.\n7. Criminal Law \u00a7 87\u2014 leading questions \u2014 discretion of trial court\nIt is generally recognized that an examining counsel should not ask his own witness leading questions on direct examination; however, it is firmly entrenched in the law of this State that it is within the sound discretion of the trial judge to determine whether counsel shall be permitted to ask leading questions, and in the absence of abuse the exercise of such discretion will not be disturbed on appeal.\n8. Criminal Law \u00a7 87\u2014 leading questions \u2014 guidelines for allowance\nCounsel should be allowed to lead his witness on direct examination when the witness (1) is hostile or unwilling to testify, (2) has difficulty in understanding the question because of immaturity, age, infirmity or ignorance, or where (3) the inquiry is into a subject of delicate nature such as sexual matters, (4) the witness is called to contradict the testimony of prior witnesses, (5) the examiner seeks to aid the witness\u2019s recollection or refresh his memory when the witness has exhausted his memory without stating the particular matters required, (6) the questions are asked for securing preliminary or introductory testimony, (7) the examiner directs attention to the subject matter at hand without suggesting answers, and (8) the mode of questioning is best calculated to elicit the truth.\n9. Criminal Law \u00a7 87\u2014 leading questions allowed \u2014 no abuse of discretion\nThe trial court did not abuse its discretion in allowing the solicitor to ask leading questions of two State\u2019s witnesses.\n10. Criminal Law \u00a7 89\u2014 bad character \u2014 showing by specific acts improper\nThe general rule is that the State cannot show bad character by specific acts, and the solicitor may not place before the jury incompetent or prejudicial matters not legally admissible in evidence by the use of insinuating questions.\n11. Criminal Law \u00a7\u00a7 96, 169\u2014 improper questions \u2014 objections sustained \u2014 evidence of like import subsequently admitted\nWhere not more than three questions were directed to State\u2019s witnesses concerning one defendant\u2019s complicity in the drug traffic and defense counsel\u2019s objections were sustained as to each question in the presence of the jury so that the jury must have known that the questions were not for their consideration, defendant was not prejudiced by the trial court\u2019s failure to instruct the jury to disregard the questions asked by the solicitor; furthermore, any prejudice which might have arisen because the jury heard the unanswered questions was rendered harmless by the subsequent admission without objection of evidence of like import to that which the solicitor had apparently sought to elicit.\nAppeal by defendants Launa Ionia Hargett Greene and Douglas Donald Donnell from Copeland, S.J., 5 November 1973 Session of Guilford Superior Court.\nDefendants were originally charged upon warrants issued by the District Court Division with the crimes of murder, conspiracy to murder and kidnapping. A nol pros with leave was taken as to each defendant, over his objection, as to the charges contained in the warrants, and bills of indictment charging the same crimes were returned by the grand jury.\nEach defendant was charged in separate indictments, proper in form, with murder, kidnapping and conspiracy to commit murder.\nUpon arraignment, the District Attorney announced in open court that he would not seek a conviction of murder, but would seek a conviction of the offense of accessory before the fact to murder.\nEach defendant entered a plea of not guilty to the charges c\u00f3ntained in the respective bills of indictment.\n' The State\u2019s motions to join the defendants and consolidate the cases for trial were allowed over the objections of both defendants. .\nThe evidence for the State, in summary, tends to show:\n^ Danny Edward.Cobb (hereafter referred to as Cobb) testified that on 9 April 1973 he was at the Guilford County Courthouse awaiting the call of a case in which he was involved. He was approached by Launa Hargett Greene (hereafter referred to as Greene) and Douglas Donald Donnell (hereafter referred to' as Donnell) .\u2022 Mrs. Greene questioned Cobb about his alleged indebtedness to her for some $1,500 worth of merchandise taken out of her house by his son-in-law. After a scuffle Greene and Donnell left.\nA short time later Cobb and Bernadett Means (hereafter referred to as Means) were attempting to start Cobb\u2019s automobile when Donnell appeared armed with a pistol. Donnell accused Cobb of \u201csnitching\u201d to the police about his dealings in narcotics, and at gunpoint forced Cobb and Means into Cobb\u2019s automobile. Pursuant to Donnell\u2019s orders, they proceeded to an isolated area outsid\u00e9 Greensboro. Greene followed in her automobile. There, Donnell demanded the $1,500 and fired a shot near Cobb. Mrs. Greene also fired a shot in the air with a .45 Colt pistol. Greene and Donnell consented to take Cobb to his mother\u2019s> home - when he stated that he could there obtain the money. Upon arrival Cobb obtained and confronted Donnell with a pistol. A struggle ensued during which several shots were fired. Cobb secured the pistol and shot Donnell in the leg. Donnell was also \u201cgrazed\u201d on the head by a bullet as he and Greene fled.\n\u25a0 \u25a0 Shortly after this incident' Cobb began serving an active prison sentence for an unrelated crime.\n, : Brenda Diane Isley Lindsay (hereafter referred to as Lindsay) testified that she was the sister of Douglas Donnell. She stated that she visited her brother in the hospital where he was recovering from the bullet wound inflicted by Cobb. Donnell wanted to \u201cget Cobb,\u201d and she mentioned that she knew a man named Dwayne Maxwell who could help out. In Greene\u2019s presence Donnell gave her $100 to pay Maxwell to kill Cobb. She gave Maxwell $80 of the money. On the following day both defendants asked her if she had contacted Maxwell. Shortly thereafter they learned that Cobb had been imprisoned, and Mrs. Lindsay testified that she was present when Greene and Donnell discussed killing Cobb\u2019s mother in order to kill Cobb when he attended her funeral. Mrs. Greene gave her an additional $200 to hire Maxwell to kill Mrs. Cobb. She thereafter saw Greene gave Maxwell a gun to be used in killing Mrs. Cobb.\nDwayne Maxwell testified that he shot Mrs. Cobb. He stated that he was approached by Mrs. Lindsay who offered him a job which he believed to involve the sale of narcotic drugs. He accepted, and she gave him $80. Subsequently Mrs. Lindsay introduced him to Greene and Donnell at which time Greene gave him an additional $100 and told him she would let him know about the job. Later in Donnell\u2019s presence, Greene told him that she wanted him to kill Cobb because Cobb had shot Donnell. Maxwell declined, and Greene demanded return of the money that she had paid him. Maxwell could not refund the money, and Greene gave him a gun, informing him that Cobb would be in court on that day. Maxwell went to court, but Cobb did not appear. The next day Maxwell met with Greene who told him she wanted him to kill Cobb\u2019s mother so Cobb would come to his mother\u2019s funeral. The following day Lindsay showed Maxwell where Mrs. Cobb lived.\nMaxwell, armed with a knife, went to Mrs. Cobb\u2019s home on the pretext of inquiring about her son. He left because he could not bring himself to cut her. He then went to Donnell\u2019s house, and Donnell gave him a .38 pistol. Maxwell then returned to Mrs. Cobb\u2019s residence and shot Mrs. Cobb with the pistol. The next morning he approached Greene and Donnell for more money and received $25 from Donnell and $35 from Greene.\nAfter the shooting he again met with Greene and Donnell, and further plans were made to kill Cobb when he attended his mother\u2019s funeral. Greene pointed out a bridge from which he could do the shooting, and Donnell gave him a rifle with a telescopic sight. However, on the day of the funeral he did not attempt to kill Cobb and did not approach the cemetery. He shot Mrs. Cobb because he was afraid he would be killed if he didn\u2019t kill her.\nDr. W. W. Forrest, an expert pathologist, testified that Mrs. Cobb died from a gunshot wound which pierced her left lung.\nAt the close of the State\u2019s evidence each defendant moved for dismissal of all charges. The motions were denied.\nDefendant Greene presented twenty-five witnesses who testified as to her good character.\nDefendant Greene testified that on the afternoon of 9 April 1973 Donnell called her to pick him up at Cobb\u2019s mother\u2019s residence. When she arrived there Donnell tried to wave her off but she managed to pick him up. Cobb shot into her windshield before she was able to get away. Donnell told her that Cobb had shot him. She took Donnell to his sister\u2019s house and left. She testified that she did not kidnap Cobb and that she had not procured, counseled or paid any money to Dwayne Maxwell or any other person to kill Danny Edward Cobb or Nellie Marie Cobb.\nDefendant Donnell testified in his own behalf. He stated that on 9 April 1973 he spoke to Cobb in the Guilford County Courthouse about the $1,500 Cobb allegedly owed Donnell\u2019s sister. He subsequently went with Cobb and Means to Cobb\u2019s mother\u2019s residence to receive this money. There Cobb confronted him with a gun and they began wrestling over it. During the struggle he fell, and Cobb shot him. He tried to run and Cobb shot again and the bullet glanced off his head. Mrs. Greene drove up and he got in her car. Cobb shot at her, but the bullet hit the hood and glanced off the car window. Greene took him to his sister\u2019s house and he later went to the hospital. He admitted telling his sister that if he were paralyzed he would kill Danny Cobb, but that he was no longer angry when he was able to leave the hospital. He did not know Dwayne Maxwell; he never gave his sister money for a gun or any other purpose; he did not take part in any plan to kill Danny Edward Cobb; and he did not kidnap Cobb or Means. He further testified that he never saw Mrs. Greene give Maxwell a gun or money.\nMrs. Gertrude Donnell Isley, the mother of Douglas Donnell, testified that on the night Mrs. Cobb was shot her son did not leave the house between the hours of 6:00 p.m. and 10:20 p.m. Maxwell did not come to see her son during that time.\nOn rebuttal the State introduced the testimony of three Greensboro police officers to the effect that Mrs. Greene's character and reputation were bad.\nThe jury returned a verdict of not guilty as to the kidnap-ning charges.\nThe jury found both defendants guilty of accessory before the fact to murder and conspiracy to murder.\nDefendant Greene appealed from sentences of imprisonment for the term of her natural life for the offense of accessory before the fact to murder, and imprisonment for a term of ten years for the offense of conspiracy to murder.\nDefendant Donnell appealed from sentences of imprisonment for the term of his natural life for the offense of accessory before the fact to murder, and imprisonment for the term of not less than five years nor more than seven years for the offense of conspiracy to murder.\nWe allowed motion to bypass the Court of Appeals on the charges of conspiracy to commit murder.\nAttorney General Robert Morgan by Assistant Attorney General Thomas B. Wood for the State.\nComer and Dailey by John T. Comer for defendant appellants." }, "file_name": "0482-01", "first_page_order": 514, "last_page_order": 528 }