{ "id": 8575705, "name": "STATE OF NORTH CAROLINA v. ALVIN DEXTER LOVETTE", "name_abbreviation": "State v. Lovette", "decision_date": "1980-04-01", "docket_number": "No. 14", "first_page": "642", "last_page": "652", "citations": [ { "type": "official", "cite": "299 N.C. 642" } ], "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": "240 S.E. 2d 794", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "294 N.C. 320", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572801 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/nc/294/0320-01" ] }, { "cite": "187 S.E. 785", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1936, "pin_cites": [ { "parenthetical": "shotgun found in defendant's room admitted where there was evidence that it was like one defendant possessed on the night of the shooting" } ], "opinion_index": 0 }, { "cite": "210 N.C. 496", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8627328 ], "year": 1936, "pin_cites": [ { "parenthetical": "shotgun found in defendant's room admitted where there was evidence that it was like one defendant possessed on the night of the shooting" } ], "opinion_index": 0, "case_paths": [ "/nc/210/0496-01" ] }, { "cite": "175 S.E. 2d 561", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1970, "pin_cites": [ { "parenthetical": "a case of murder and robbery in which a pistol which \"looked like\" the one used in the crime was admitted" } ], "opinion_index": 0 }, { "cite": "277 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561677 ], "year": 1970, "pin_cites": [ { "parenthetical": "a case of murder and robbery in which a pistol which \"looked like\" the one used in the crime was admitted" } ], "opinion_index": 0, "case_paths": [ "/nc/277/0001-01" ] }, { "cite": "119 S.E. 2d 907", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1961, "opinion_index": 0 }, { "cite": "254 N.C. 765", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8628142 ], "year": 1961, "opinion_index": 0, "case_paths": [ "/nc/254/0765-01" ] }, { "cite": "141 S.E. 2d 506", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1965, "opinion_index": 0 }, { "cite": "264 N.C. 277", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572632 ], "year": 1965, "opinion_index": 0, "case_paths": [ "/nc/264/0277-01" ] }, { "cite": "82 S.E. 2d 762", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1954, "opinion_index": 0 }, { "cite": "240 N.C. 516", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8603731 ], "year": 1954, "opinion_index": 0, "case_paths": [ "/nc/240/0516-01" ] }, { "cite": "221 S.E. 2d 247", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "opinion_index": 0 }, { "cite": "289 N.C. 143", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567392 ], "weight": 2, "year": 1976, "pin_cites": [ { "page": "158" } ], "opinion_index": 0, "case_paths": [ "/nc/289/0143-01" ] }, { "cite": "195 S.E. 2d 561", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1973, "opinion_index": 0 }, { "cite": "283 N.C. 218", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8558331 ], "weight": 2, "year": 1973, "pin_cites": [ { "page": "226" } ], "opinion_index": 0, "case_paths": [ "/nc/283/0218-01" ] }, { "cite": "215 S.E. 2d 139", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "opinion_index": 0 }, { "cite": "287 N.C. 505", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564055 ], "weight": 4, "year": 1975, "pin_cites": [ { "page": "513" }, { "page": "514" }, { "page": "514" } ], "opinion_index": 0, "case_paths": [ "/nc/287/0505-01" ] } ], "analysis": { "cardinality": 855, "char_count": 20867, "ocr_confidence": 0.813, "pagerank": { "raw": 6.324068776441673e-08, "percentile": 0.38881127818648886 }, "sha256": "97c276fb62ef2274645f0119457265530fe17b5e6be2c56533569c1f7cd6f135", "simhash": "1:e7ab103ef6fe975e", "word_count": 3555 }, "last_updated": "2023-07-14T21:53:45.777487+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "STATE OF NORTH CAROLINA v. ALVIN DEXTER LOVETTE" ], "opinions": [ { "text": "HUSKINS, Justice.\nDefendant contends the trial court erred in allowing the district attorney to impeach the testimony of State\u2019s witness Clifford Johnson. This constitutes his first assignment of error.\nClifford Johnson testified he knew defendant Lovette, saw him and talked with him during the nighttime hours of 28 February 1979. However, Johnson claimed that defendant Lovette did not in that conversation discuss with him the incidents that had occurred that night. At this point, the prosecutor, claiming he had been surprised, moved the court to declare Johnson a hostile witness. After a voir dire examination, the court granted the motion and permitted the prosecutor to cross-examine State\u2019s witness Clifford Johnson as a hostile witness. This witness had made a pretrial statement to investigating officers Sink and Finch concerning statements made by defendant Lovette to him and concerning statements made in his presence by and between Sharon McDuffie, Minnie Morrison and defendant. These statements were tape-recorded and transcribed. The prosecutor, over consistent objections timely made, was allowed, in the presence of the jury, to read from Johnson\u2019s pretrial statement in formulating his questions and then ask not only about statements made to him by defendant but also about accusatory statements made to defendant by Sharon McDuffie and Minnie Morrison. The following are representative:\n\u201cQ. Did Sharon McDuffie ever make any statements to you in front of Alvin Lovette?\nA. She mentioned something in front of him.\nQ. What did she say to Alvin Lovette in your presence?\nA. Well, she just said, \u2018Lovette you just \u2014 you hit the man.\u2019 That\u2019s all she said.\nQ. And when she said, \u2018Lovette, you hit that man.\u2019 What did he say or do?\nA. He didn\u2019t say nothing.\u201d\nAfter additional voir dire the State\u2019s examination continued:\n\u201cQ. Mr. Johnson, you recall the statement you gave to the police officers on March 12th, 1979; is that correct?\nA. Yeah.\nQ. Mr. Johnson, didn\u2019t you tell Detective Finch that Alvin Lovette told you that Sharon McDuffie hit the man in the head with her shoe? Didn\u2019t you tell him that?\nA. Yeah.\nQ. Didn\u2019t you tell him that when Sharon McDuffie confronted Alvin Lovette that she got up into his face and Sharon McDuffie said, \u2018Duck, you know that ain\u2019t the man you saw. You\u2019re the one that beat that man up.\u2019 She said, \u2018Ya\u2019ll the one that runned him down.\u2019 Didn\u2019t you tell Detective Sink that that\u2019s what Sharon McDuffie said to Alvin Lovette?\nA. I ain\u2019t said he run him down. I said he beat him up.\nQ. In fact, Sharon McDuffie did say that in front of Alvin Lovette, didn\u2019t she?\nA. Yeah.\nQ. And what did Alvin Lovette do when Sharon McDuffie said that?\nA. Nothing.\nQ. Did he say anything?\nA. Nope.\nQ. Did you hear Sharon McDuffie say anything else to Alvin Lovette?\nA. No.\nQ. Isn\u2019t it a fact, Mr. Johnson, that you told the police officers that Sharon McDuffie also said, \u2018Duck, you know \u2014 know you hit the man in the head with them shoes.\u2019 Said, \u2018You\u2019re the one that beat the man up.\u2019\nA. No.\nQ. Answer my question. Didn\u2019t you tell the police officers that?\nA. Yeah. Uh-huh.\u201d\n* * * *\n\u201cQ. Did Alvin Lovette or anybody \u2014 did Sharon McDuffie or Minnie Morrison in Alvin Lovette\u2019s presence, did you hear them say anything about having to chase a man down?\nA. No.\nQ. Didn\u2019t you tell the police officers on March 12, 1979, what they said was that they had to chase him? Did you tell the police officers that?\nA. I told them that, but they didn\u2019t tell me that they chased anybody.\nQ. You told the police officers that, didn\u2019t you?\u201d\n* * * *\n\u201cQ. Now, I believe that you had all three of the people \u2014 in your car on the 28th?\nA. Yep.\nQ. And they made certain statements to you in your car on the 28th, is that correct?\nA. They weren\u2019t talking to me in my car.\u201d\n\u201cQ. Isn\u2019t it a fact that you told police officers on March 12, 1979, that one of them made the statement that when they started beating him up, the man said, T ain\u2019t got no money. I gave it to my partner. The other dude got the money.\u2019 Didn\u2019t you tell the police officers that?\nA. Yep.\u201d\n* * * *\n\u201cQ. Mr. Johnson . . . was it said in Alvin Lovette\u2019s presence by Alvin Lovette or Minnie Morrison or Sharon McDuf-fie about what they did to the man after he told them that he didn\u2019t have any money? Do you recall any of them saying that?\nA. No.\nQ. You didn\u2019t tell the police officers on March 12, 1979, in response to the question . . . \u2018And what did they say they did?\u2019 And you said, \u2018They went on and beat him up.\u2019 Didn\u2019t you tell the police officers that?\nA. I probably did.\u201d\nAlbeit with some criticism, it is the rule in criminal cases in North Carolina that the district attorney may not impeach a State\u2019s witness by evidence that his character is bad or that he has made prior statements inconsistent with or contradictory to his testimony. State v. Pope, 287 N.C. 505, 215 S.E. 2d 139 (1975); State v. Anderson, 283 N.C. 218, 195 S.E. 2d 561 (1973); 1 Stansbury\u2019s North Carolina Evidence \u00a7 40 (Brandis rev. 1973). Even so, when the State is genuinely surprised, ie., taken unawares, by its own witnesses, the trial judge in his discretion may allow the prosecutor to cross-examine the hostile or unwilling witness for the purpose of refreshing his recollection or awakening his conscience, thus enabling him to testify correctly. State v. Smith, 289 N.C. 143, 221 S.E. 2d 247 (1976); State v. Pope, supra; State v. Anderson, supra. In doing so, the prosecutor may call the attention of the hostile witness directly to prior statements made by the witness which are inconsistent with or contradictory to his \u201csurprise\u201d testimony at trial. State v. Pope, supra; State v. Anderson, supra.\nWhere a witness treacherously induces the State to call him by representing that he will testify favorable to the State\u2019s contentions and then surprises the prosecutor with testimony contra, cross-examination is unlikely to refresh his memory or awaken his conscience. In such circumstances, cross-examination of the hostile witness by prior inconsistent statements is permitted in order to allow the State to show that it was induced to call the witness by a previous statement of the witness \u201c \u2018made under such circumstances as to warrant a reasonable belief that the witness would repeat the statement when called to testify.\u2019 \u201d State v. Pope, supra, quoting 58 Am. Jur., Witnesses, \u00a7 799 (1948). However, before granting the prosecutor\u2019s motion to treat his witness as hostile or unwilling and to cross-examine him, \u201cthe court must be satisfied that the State\u2019s attorney has been misled and surprised by the witness, whose testimony as to a material fact is contrary to what the State had a right to expect. ... If the trial judge finds that the State should be allowed to offer prior inconsistent statements, his findings should also specify the extent to which such statements may be offered.\u201d State v. Pope, supra, 287 N.C. at 513.\nWe further held in Pope that where the prosecuting attorney \u201cknows at the time the witness is called that he has retracted or disavowed his statement, or has reason to believe that he will do so if called upon to testify, he will not be permitted to impeach the witness. He must first show that he has been genuinely \u2018surprised or taken unawares\u2019 by testimony which differed in material respects from the witness\u2019s prior statements, which he had no reason to assume the witness would repudiate.\u201d 287 N.C. at 514.\nApplying the foregoing principles to the case at hand, we hold that the prosecuting attorney was not genuinely surprised or taken unawares. Officer Sink, testifying on voir dire in the absence of the jury, stated that three weeks after Clifford Johnson made his statement on 12 March 1979, he came to the police department and informed Officer Sink that the statement he had given on March 17 was true \u201cbut that he did not want to testify due to the fact that it might get the three people some time and he did not want to be responsible for that. . . . He came back the next day, at which time he along with myself and Sergeant Finch had a meeting with the district attorney, Mr. Kimel.\u201d At the trial of this case, after four witnesses had been examined, Clifford Johnson was called and took the stand. After giving his name and place of residence, he testified he knew defendant, had a conversation with him on the night of February 28, but said defendant \u201cdid not discuss with me the incident that has been discussed here today.\u201d At that point the prosecutor said: \u201cAt this time the State has a motion to make outside the presence of the jury.\u201d The jury was excused and a lengthy voir dire conducted, finally resulting in a finding that Johnson was a hostile witness and the State entitled to cross-examine him based on surprise. It thus appears that prior to calling the witness Johnson, the district attorney had substantial reason to believe that Johnson would likely repudiate his pretrial statement if called upon to testify. The record strongly suggests that the prosecutor could not have been genuinely surprised or taken unawares by the testimony of Johnson. To the contrary, he knew, or had every reason to believe, that Johnson would not testify consistent with his pretrial statement. Under these circumstances the district attorney was not entitled to impeach his own witness and the court erred to defendant\u2019s prejudice in permitting him to do so. See State v. Pope, supra; State v. Anderson, supra.\nBut if we assume arguendo that the prosecution was genuinely surprised, Johnson\u2019s testimony as to what the girls said to defendant would still be incompetent on the issue of defendant\u2019s guilt or innocence. Testimony tending to show a witness\u2019s prior inconsistent statement \u201cis admitted only to show that the State was surprised by his testimony and to explain why the witness was called. Such statements \u2018are not probative evidence on the merits and are not to be treated as having any substantive or independent testimonial value.\u2019 [Citations omitted.] Their only effect is to impeach the credibility of the witness.\u201d State v. Pope, supra, 287 N.C. at 514. Accord, 1 Stansbury\u2019s North Carolina Evidence \u00a7 46 (Brandis rev. 1973). Thus, neither the recording nor the typewritten transcript of Johnson\u2019s statement could be used against defendant to prove an implied admission or as substantive evidence for any purpose. In fact, neither was offered for any purpose, yet the prosecutor\u2019s questions unmistakably placed both before the jury and the jury was permitted to consider the accusatory statements of Minnie Morrison and Sharon McDuffie on the question of defendant\u2019s guilt or innocence. In effect, the prosecutor\u2019s cross-examination of Johnson was calculated not only to impeach him but also to prove the contents and the truth of his prior inconsistent statement to Officers Sink and Finch on 12 March 1979. This violated the rule which forbids a prosecutor to place before the jury incompetent and prejudicial matters not legally admissible in evidence. State v. Smith, supra, 289 N.C. at 158; State v. Anderson, supra, 283 N.C. at 226; State v. Phillips, 240 N.C. 516, 82 S.E. 2d 762 (1954). In any event, since the prosecutor was not entitled to impeach his own witness on the facts revealed by the record here, the evidence elicited from Johnson by the improper cross-examination was not competent for any purpose. This requires a new trial. Defendant\u2019s first and third assignments of error are sustained.\nDefendant\u2019s second and fourth assignments address insignificant items of evidence, and both are overruled without discussion.\nDefendant\u2019s fifth and final assignment of error relates to the introduction, over objection, of the stick (State\u2019s Exhibit 3) found in the creek near the body of James B. Wilson on the morning of 1 March 1979. Defendant contends the stick was not properly identified and had no relevant connection with this case. He further contends the State concealed its existence when defendant sought to inspect tangible objects in the possession of the State which the State intended to use as evidence at his trial.\nVarious State\u2019s witnesses testified that State\u2019s Exhibit 3 \u201clooked about like\u201d the stick defendant had in his hand when the victim was first assaulted on the porch at the home of Dorothy Medley. Dorothy Medley said it \u201ccould be the stick.\u201d\nUnder many decisions of this Court, \u201cevery circumstance that is calculated to throw any light upon the supposed crime is admissible.\u201d State v. Hamilton, 264 N.C. 277, 141 S.E. 2d 506 (1965). Articles shown by the evidence to have been used in connection with the crime charged are competent and properly admitted in evidence. State v. Stroud, 254 N.C. 765, 119 S.E. 2d 907 (1961). \u201cSo far as the North Carolina decisions go, any object which has a relevant connection with the case is admissible in evidence, in both civil and criminal trials. Thus, weapons may be admitted where there is evidence tending to show that they were used in the commission of a crime or in defense against an assault.\u201d 1 Stansbury, supra, \u00a7 118. See, e.g., State v. Fox, 277 N.C. 1, 175 S.E. 2d 561 (1970) (a case of murder and robbery in which a pistol which \u201clooked like\u201d the one used in the crime was admitted); State v. Macklin, 210 N.C. 496, 187 S.E. 785 (1936) (shotgun found in defendant\u2019s room admitted where there was evidence that it was like one defendant possessed on the night of the shooting). Accordingly, we conclude that State\u2019s Exhibit 3 was properly admitted in evidence.\nThe record does not disclose why the district attorney failed to allow defense counsel to inspect the stick or why he failed to inform defense counsel the State had such an object which it intended to offer into evidence. There being no evidence of bad faith on the part of the State, and considering defendant\u2019s failure to indicate surprise and move for alternate sanctions under G.S. 15A-910, we hold that the trial court was within its discretion in overruling defendant\u2019s general objection and allowing the stick to be offered in evidence. State v. Hill, 294 N.C. 320, 240 S.E. 2d 794 (1978). In any event, since there must be a new trial on other grounds, this assignment no longer has any significance. It is overruled.\nDefendant is entitled to a new trial on both charges.\nNew trial.", "type": "majority", "author": "HUSKINS, Justice." } ], "attorneys": [ "Rufus L. Edmisten, Attorney General, by James E. Magner, Jr., Assistant Attorney General, for the State.", "Charles L. Cromer, attorney for defendant appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. ALVIN DEXTER LOVETTE\nNo. 14\n(Filed 1 April 1980)\n1. Criminal Law \u00a7 90\u2014 witness\u2019s pretrial statement repudiated \u2014 prosecution not surprised \u2014 impeachment of witness improper\nWhere a State\u2019s witness made a pretrial statement to investigating officers concerning statements made by defendant to him and concerning statements made in his presence by and between defendant and witnesses to an altercation between defendant and the victim, but three weeks later the witness informed investigating officers and the district attorney that he did not want to testify because he did not want to be responsible for people being imprisoned, the prosecuting attorney was not genuinely surprised or taken unawares by the witness\u2019s repudiation of his pretrial statement, and the trial court erred in permitting the prosecuting attorney to impeach his own witness; even if the prosecution was genuinely surprised, the witness\u2019s testimony as to what the eyewitnesses said to defendant would still be incompetent on the issue of defendant\u2019s guilt or innocence, since testimony tending to show the witness\u2019s prior inconsistent statement was admissible only to show that the State was surprised by his testimony and to explain why the witness was called, and such testimony was not to be used as substantive evidence for any purpose.\n2. Homicide \u00a7 20\u2014 stick near deceased\u2019s body \u2014 admissibility\nThe trial court in a homicide prosecution did not err in admitting into evidence a stick found in a creek near deceased\u2019s body, since various State witnesses testified that it \u201clooked about like\u201d the stick defendant had in his hand when the victim was first assaulted.\nDEFENDANT appeals from judgments of Davis, J., 25 June 1979 Criminal Session, GUILFORD Superior Court.\nDefendant was tried upon separate bills of indictment charging him with first degree murder and armed robbery of James Banner Wilson on 28 February 1979. In the murder case, defendant was arraigned on the charge of second degree murder only or lesser included offense as the jury might find. In the robbery case, the district attorney sought a verdict of guilty of attempted armed robbery. Defendant pled not guilty in each case.\nThe State offered evidence tending to show that on the evening of 28 February 1979 defendant, accompanied by Minnie Morrison and Sharon McDuffie, arrived about 7 p.m. at the home of Dorothy Medley at 508 Wise Street in High Point. Soon thereafter two white men, one of whom was James B. Wilson, came to the house. Wilson sat in a chair and Sharon McDuffie sat on the arm of Wilson\u2019s chair. She kept asking him to go home with her and kept trying to \u201cgo into his back pockets.\u201d At this time defendant and Minnie Morrison were playing cards with other people at a table across the room.\nAround 8 p.m. defendant and James B. Wilson left the house accompanied by the two women, Morrison and McDuffie. Mary Medley and Linda Hampton testified they then heard a \u201cbump\u201d on the front porch like somebody falling, looked out and saw Wilson lying on the porch floor while the two women were stooped over him going through his pockets. Defendant was standing near Wilson\u2019s head holding a stick and \u201ckind of\u201d kicked Wilson in the stomach and hit him once on the head with the stick. James Froneyberger, who had been playing cards inside the house, then came out and told defendant he \u201ccouldn\u2019t do that in this yard.\u201d Froneyberger asked Wilson twice about his condition and Wilson said he was all right. Defendant and the two girls were standing across the street and defendant still had the stick in his hand when Wilson arose and walked up Wise Street toward Park Street. Wilson \u201cstaggered some but walked pretty good.\u201d Defendant and the two girls walked down the street to the \u201cPlayer\u2019s Lounge\u201d where they met Clifford Johnson.\nThe State\u2019s evidence further tends to show that a little after 7 a.m. the next morning Minnie McFayden, who lived on Park Street, two and one-half blocks south of Wise Street, saw Wilson\u2019s body beside a rock in a creek that runs just south of her house. Where Park- Street crosses the creek there is a bridge without a railing with large rocks under the bridge and along the edge of the creek. A search of the creek from Park Street to where the body was found yielded two black shoes, one upper denture plate, a shirt, a sweater, and a stick (State\u2019s Exhibit 3). Wilson\u2019s car was found parked near Dorothy Medley\u2019s home on Wise Street.\nAn autopsy revealed many injuries on Wilson\u2019s body, including hemorrhages, cuts, bruises, abrasions, seventeen broken ribs, and fractures of four vertebrae in the spine. It was Dr. Morton\u2019s opinion that Wilson died of severe blunt trauma.\nDefendant Lovette did not testify but offered the testimony of James McFayden and Richard Cox. McFayden said he arrived at the house of Minnie McFayden, the woman who first spotted Wilson\u2019s body, at about 7:30 p.m. on the evening of 28 February 1979. When he drove up he saw \u201ctwo white girls and a white boy\u201d in her yard near the creek and saw the \u201cboys\u201d go down into the creek.\nRichard Cox, a self-employed private detective, testified that he made measurements of the area; that it is 235 feet from 508 Wise Street to its intersection with Park Street; that it is 507 feet from that intersection to the creek bed; that it is 152 feet from the bridge over the creek to where Wilson\u2019s body was found; and the height of the bridge over the creek is about ten feet. This witness testified that he went to the evidence room at the High Point Police Department to view all of the physical evidence the State had at that time. He viewed Mr. Wilson\u2019s clothing and shoes and was informed that the only other physical evidence available was photographs and a diagram. He was never shown the stick identified as State\u2019s Exhibit No. 3.\nAdditional evidence necessary to understand the various assignments of error will be narrated in the discussion of the assignment to which the evidence relates.\nThe jury convicted defendant of second degree murder and attempted robbery with a dangerous weapon. He was sentenced to life imprisonment for the murder and not less than twenty nor more than forty years for the attempted armed robbery. He appealed to the Supreme Court in the murder case, and we allowed motion to bypass the Court of Appeals in the robbery case. Both cases are now before this Court for initial appellate review.\nRufus L. Edmisten, Attorney General, by James E. Magner, Jr., Assistant Attorney General, for the State.\nCharles L. Cromer, attorney for defendant appellant." }, "file_name": "0642-01", "first_page_order": 666, "last_page_order": 676 }