{ "id": 8570231, "name": "STATE OF NORTH CAROLINA v. GILBERT PURCELL", "name_abbreviation": "State v. Purcell", "decision_date": "1979-03-16", "docket_number": "No. 83", "first_page": "728", "last_page": "734", "citations": [ { "type": "official", "cite": "296 N.C. 728" } ], "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 168", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "opinion_index": 0 }, { "cite": "279 N.C. 716", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572102 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/nc/279/0716-01" ] }, { "cite": "185 S.E. 2d 874", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "280 N.C. 366", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572031 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/nc/280/0366-01" ] }, { "cite": "285 S.W. 17", "category": "reporters:state_regional", "reporter": "S.W.", "year": 1926, "pin_cites": [ { "page": "18" } ], "opinion_index": 0 }, { "cite": "171 Ark. 536", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1369493 ], "year": 1926, "pin_cites": [ { "page": "537" } ], "opinion_index": 0, "case_paths": [ "/ark/171/0536-01" ] }, { "cite": "248 S.E. 2d 241", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1978, "pin_cites": [ { "page": "247" } ], "opinion_index": 0 }, { "cite": "295 N.C. 584", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566359 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/nc/295/0584-01" ] }, { "cite": "193 S.E. 2d 71", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "pin_cites": [ { "parenthetical": "date and specific nature of criminal activity mentioned" } ], "opinion_index": 0 }, { "cite": "282 N.C. 334", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565099 ], "year": 1972, "pin_cites": [ { "parenthetical": "date and specific nature of criminal activity mentioned" } ], "opinion_index": 0, "case_paths": [ "/nc/282/0334-01" ] }, { "cite": "196 S.E. 2d 225", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1973, "pin_cites": [ { "parenthetical": "manner of assault and names of victims included in question" } ], "opinion_index": 0 }, { "cite": "283 N.C. 344", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8558806 ], "year": 1973, "pin_cites": [ { "parenthetical": "manner of assault and names of victims included in question" } ], "opinion_index": 0, "case_paths": [ "/nc/283/0344-01" ] }, { "cite": "432 U.S. 233", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6178254 ], "year": 1977, "pin_cites": [ { "parenthetical": "manner of assault, ie., shooting, specified" } ], "opinion_index": 0, "case_paths": [ "/us/432/0233-01" ] }, { "cite": "220 S.E. 2d 575", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "opinion_index": 0 }, { "cite": "288 N.C. 632", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570479 ], "year": 1975, "opinion_index": 0, "case_paths": [ "/nc/288/0632-01" ] }, { "cite": "185 S.E. 2d 174", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1971, "opinion_index": 0 }, { "cite": "279 N.C. 663", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571959 ], "weight": 2, "year": 1971, "opinion_index": 0, "case_paths": [ "/nc/279/0663-01" ] }, { "cite": "200 S.E. 2d 782", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1973, "opinion_index": 0 }, { "cite": "284 N.C. 259", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561660 ], "year": 1973, "opinion_index": 0, "case_paths": [ "/nc/284/0259-01" ] } ], "analysis": { "cardinality": 618, "char_count": 13026, "ocr_confidence": 0.835, "pagerank": { "raw": 2.7510741654566045e-07, "percentile": 0.8327356150879839 }, "sha256": "a36db02707cfa60bf6b50c37401b871e687f7c794f751458ba4cce8591980463", "simhash": "1:a1303c527067a66a", "word_count": 2164 }, "last_updated": "2023-07-14T21:17:53.962359+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Justices Britt and BROCK did not participate in the consideration or decision of this case." ], "parties": [ "STATE OF NORTH CAROLINA v. GILBERT PURCELL" ], "opinions": [ { "text": "EXUM, Justice.\nDefendant contends the trial court committed prejudicial error in refusing to sustain his objections to two questions asked him on cross-examination by the prosecutor. These questions were \u201cYou have killed somebody haven\u2019t you, Mr. Purcell?\u201d and \u201cWell, it was known all around town that you killed somebody weren\u2019t it?\u201d We agree with defendant that these questions, in the form in which they were asked, fall outside the scope of our rule allowing cross-examination for purposes of impeachment as to prior specific acts of degrading conduct. We therefore order that defendant receive a new trial.\nFor some time prior to 31 March 1975, there had been bad feelings between defendant and George Willie Carroll over defendant\u2019s alleged relationship with Carroll\u2019s estranged wife. On 31 March Carroll went to defendant\u2019s house and confronted him, using abusive language and threatening him. Defendant tried to get Carroll to leave. Carroll would not. Defendant then got up and left the room, returning with a pistol tucked in the waistband of his pants. Witnesses for the state testified that the argument continued after defendant returned, and shortly thereafter he shot and killed Carroll. They stated that there was no weapon on George Carroll\u2019s person either before or after the killing and that he made no movement indicating he was reaching for a weapon. Witnesses for defendant testified that Carroll made a movement toward the inside of his jacket just prior to the shooting. Defendant himself stated, \u201cGeorge Carroll reached down in his belt and at that time I spied a black handle pistol, and when he went for it I shot him.\u201d Investigating officers found a .32 caliber pistol on Carroll\u2019s body.\nIn the course of the prosector\u2019s cross-examination of defendant, the following exchanges took place:\n\u201cQ. You have killed somebody haven\u2019t you, Mr. Purcell?\nMR. STEWART: Object, your Honor.\nA. I haven\u2019t never been found guilty of murder.\nCOURT: Overruled.\nQ. I didn\u2019t ask you that?\nMR. STEWART: Your Honor, we submit he can ask him what he has been tried and convicted of.\nCOURT: He asked him a direct question \u2018If he killed somebody\u2019 that is a proper question.\nQ. Have you ever killed anybody, Gilbert?\nMr. Stewart: Object.\nCOURT: Overruled.\nA. (pause)\nQ. Yes or no?\nA. Yes, sir.\nException No. 1\nQ. Well, it was known all around town that you killed somebody weren\u2019t it?\nMr. STEWART: Objection to what is known all around town.\nCOURT: Overruled.\nQ. What?\nA. Sir?\nQ. Did you hear my question?\nA. No, I didn\u2019t.\nMr. STEWART: Object to arguing with the witness, your Honor.\nCOURT: Overruled.\nQ. It was known all around town that you had killed somebody weren\u2019t it?\nMr. Stewart: Object.\nCOURT: Overruled.\nA. Yes, sir. They\u2019ve said I\u2019ve killed somebody. I wasn\u2019t found guilty of \u2014 I wasn\u2019t found guilty of murder.\nQ. This is the second person you have killed?\nMr. Stewart: Object.\nCOURT: Overruled.\nA. Sir?\nQ. This is the second person you have killed?\nA. That is the second person I\u2019ve been charged with.\nException no. 2.\u201d\nDefendant has assigned as error the trial judge\u2019s overruling of his objections in each of these instances.\nDefendant\u2019s character had not been put in issue. These questions were thus proper, if at all, for the purpose of impeaching defendant\u2019s credibility as a witness. There is no indication in the record that defendant was ever convicted for the act about which the prosecutor questioned him. This case therefore concerns the manner in which a criminal defendant can be cross-examined for the purpose of impeaching his credibility by questions about prior bad acts that did not result in criminal convictions.\nIn State v. Foster, 284 N.C. 259, 200 S.E. 2d 782 (1973), the prosecutor was permitted to ask a criminal defendant on cross-examination whether he had committed certain other crimes for which he had not been tried and convicted. This Court held such inquiries to be proper, stating the rule as follows, id. at 275, 200 S.E. 2d at 794:\n\u201cWhen a defendant elects to testify in his own behalf, he surrenders his privilege against self-incrimination and knows he will be subject to impeachment by questions relating to specific acts of criminal and degrading conduct. Such \u2018cross-examination for the purpose of impeachment is not limited to conviction of crimes. Any act of the witness which tends to impeach his character may be inquired about or proven by cross-examination.\u2019 \u201d (Emphasis added.) (Citations omitted.)\nIn State v. Williams, 279 N.C. 663, 185 S.E. 2d 174 (1971), defendant was being tried for armed robbery. On cross-examination he was asked whether he was under indictment in three other towns for armed robbery. This Court, speaking through Chief Justice Bobbitt, found such an inquiry improper, holding that a defendant cannot for purposes of impeachment be cross-examined as to whether he has been indicted for criminal offenses unrelated to the one for which he is standing trial. The Court went on to say, id. at 672, 185 S.E. 2d at 180:\n\u201c[F]or purposes of impeachment, a witness, including the defendant in a criminal case, may not be cross-examined as to whether he had been accused, either informally or by affidavit on which a warrant is issued, of a criminal offense unrelated to the case on trial, nor cross-examined as to whether he has been arrested for such unrelated criminal offense.\u201d (Emphasis original.)\nThe Court in Williams concluded by distinguishing between the kinds of questions it disapproved and proper inquiries about prior bad acts used to discredit a criminal defendant\u2019s testimony, id. at 675, 185 S.E. 2d at 181:\n\u201cIt is permissible, for purposes of impeachment, to cross-examine a witness, including the defendant in a criminal case, by asking disparaging questions concerning collateral matters relating to his criminal and degrading conduct. Such questions relate to matters within the knowledge of the witness, not to accusations of any kind made by others. We do not undertake here to mark the limits of such cross-examination except to say generally (1) the scope thereof is subject to the discretion of the trial judge, and (2) the questions must be asked in good faith.\u201d (Citations omitted.) (Emphasis original.)\nThus a criminal defendant who takes the stand may be cross-examined for purposes of impeachment concerning any prior specific acts of criminal and degrading conduct on his part. Such acts need not have resulted in a criminal conviction in order to be appropriate subjects for inquiry. The scope of inquiry about particular acts is, however, within the discretion of the trial judge, and questions concerning them must be asked in good faith. It is not permissible to inquire for purposes of impeachment as to whether a defendant has previously been arrested or indicted for or accused of some unrelated criminal or degrading act.\nHere the prosecutor asked defendant, \u201cYou have killed somebody haven\u2019t you, Mr. Purcell?\u201d We think this question was improper because it did not inquire about some identifiable specific act on defendant\u2019s part. The question does not refer to the time or the place or the victim or any of the circumstances of defendant\u2019s alleged prior misconduct. Compare, State v. Hankerson, 288 N.C. 632, 220 S.E. 2d 575 (1975), rev\u2019d on other grounds, 432 U.S. 233 (1977) (manner of assault, ie., shooting, specified); State v. Black, 283 N.C. 344, 196 S.E. 2d 225 (1973) (manner of assault and names of victims included in question); State v. Mack, 282 N.C. 334, 193 S.E. 2d 71 (1972) (date and specific nature of criminal activity mentioned). It is instead almost categorical in nature, as is illustrated by the way the prosecutor rephrased it: \u201cHave you ever killed anybody, Gilbert?\u201d We specifically disapproved of this type of question in State v. Mason, 295 N.C. 584, 248 S.E. 2d 241 (1978). There defendant sought to cross-examine a witness for the prosecution by asking him, \u201cWere you involved in what you call street gang operations in New York?\u201d The trial court sustained an objection to this question and we affirmed, noting that it did not \u201cconcern a particular act of misconduct.\u201d Id. at 593, 248 S.E. 2d at 247. (Emphasis original.)\nThe purpose of permitting inquiry into specific acts of criminal or degrading conduct is to allow the jury to consider these acts in weighing the credibility of a witness who has committed them. For this purpose to be fulfilled, the questions put to the witness must enlighten the jury in some degree as to the nature of the witness\u2019 act. Questions so loosely phrased as the one here give the jury no clear indication about the witness\u2019 credibility. Under our law and the mores of our society, killing is not categorically wrong. As the Arkansas Supreme Court said when confronted with a similar issue in Stanley v. State, 171 Ark. 536, 537, 285 S.W. 17, 18 (1926): \u201cA homicide is not necessarily a crime. The killing may have been an accident or entirely justifiable.\u201d Indeed, a soldier who kills the enemy in war may be thought a hero. When a question is put to a witness about some prior act for the purpose of impeaching his credibility, and the question does not show by its phrasing that the act was wrongful, an objection to it should be sustained.\nDefendant\u2019s second assignment of error relates to his being required to answer over objection the question, \u201cIt was known all around town that you killed somebody weren\u2019t it?\u201d In essence this question asked defendant to repeat informal accusations that had been made against him in the community. It was clearly an improper question under State v. Williams, supra, 279 N.C. 663, 185 S.E. 2d 174, and defendant\u2019s objection to it should have been sustained.\nGiven that the overruling of defendant\u2019s objections was error, we must now determine if it was prejudicial. State v. Gainey, 280 N.C. 366, 185 S.E. 2d 874 (1972). On this point, we find the present case indistinguishable from State v. Stimpson, 279 N.C. 716, 185 S.E. 2d 168 (1971). Defendant in Stimpson was charged with murder and convicted of involuntary manslaughter. While on the stand he was asked on cross-examination whether he had been indicted for murder in New York. Over objection defendant was required to answer and replied that he had been indicted for murder in New York in 1964 but \u201cwasn\u2019t found guilty\u201d and \u201cwasn\u2019t sentenced for it.\u201d This Court found the failure to sustain his objection prejudicial error. It said, 279 N.C. at 725, 185 S.E. 2d at 173:\n\u201cDefendant, on trial for murder, offered evidence and contended that the discharge of the pistol was accidental and not intentional. Under these circumstances, the admission of the testimony, for the purposes of impeachment, to the effect that he had been indicted in New York State in 1964 for murder was prejudicial.\u201d\nWe reach the same conclusion here.\nFor the reasons stated, we order that defendant receive a\nNew trial.\nJustices Britt and BROCK did not participate in the consideration or decision of this case.\n. The question was obviously put to defendant in the form of whether he had \u201ckilled somebody,\u201d not whether he had been criminally convicted for a homicide. Defendant admitted doing the act but later said he was found not guilty of criminal charges brought in connection with it. Defendant contends in his brief that the killing occurred in 1958 and that defendant was acquitted of the charges against him on grounds of self-defense. There is no showing in the record to this effect.", "type": "majority", "author": "EXUM, Justice." } ], "attorneys": [ "Rufus L. Edmisten, Attorney General, by John R. B. Matthis, Special Deputy Attorney General, for the State.", "DeMent, Redwine & Askew, by Russell W. DeMent, Jr., Attorneys for defendant appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. GILBERT PURCELL\nNo. 83\n(Filed 16 March 1979)\nCriminal Law \u00a7 86.5\u2014 impeachment of defendant \u2014 prior act \u2014 informal accusations \u2014 questions improper\nThe prosecutor\u2019s questions, \u201cYou have killed somebody haven\u2019t you, Mr. Purcell?\u201d and \u201cWell, it was known all around town that you killed somebody weren\u2019t it?\u201d which were asked of defendant on cross-examination fell outside the scope of the rule allowing cross-examination for purposes of impeachment as to prior specific acts of degrading conduct, since the first question did not ask about some identifiable specific act on defendant\u2019s part and did not show by its phrasing that the act was wrongful, and since the second question asked defendant to report informal accusations that had been made against him in the community and was clearly improper.\nJustices Britt and Brock did not participate in the consideration or decision of this case.\nOn petition for discretionary review of a decision of the Court of Appeals, rendered in an unpublished opinion by Judge Vaughn with Judges Britt and Arnold concurring, finding no error in defendant\u2019s conviction for manslaughter at the 18 August 1975 Session of Harnett Superior Court before Judge Brewer. Defendant was sentenced to serve not less than 12 nor more than 15 years in prison. This case was docketed and argued as No. 94 at the Spring Term 1978.\nRufus L. Edmisten, Attorney General, by John R. B. Matthis, Special Deputy Attorney General, for the State.\nDeMent, Redwine & Askew, by Russell W. DeMent, Jr., Attorneys for defendant appellant." }, "file_name": "0728-01", "first_page_order": 752, "last_page_order": 758 }