{ "id": 8560647, "name": "STATE OF NORTH CAROLINA v. JOHNNIE SPARKS", "name_abbreviation": "State v. Sparks", "decision_date": "1982-11-03", "docket_number": "No. 210A82", "first_page": "71", "last_page": "79", "citations": [ { "type": "official", "cite": "307 N.C. 71" } ], "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": 1972, "opinion_index": 0 }, { "cite": "279 N.C. 716", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572102 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/nc/279/0716-01" ] }, { "cite": "220 S.E. 2d 283", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1975, "pin_cites": [ { "page": "291" } ], "opinion_index": 0 }, { "cite": "288 N.C. 699", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570646 ], "weight": 2, "year": 1975, "pin_cites": [ { "page": "711" } ], "opinion_index": 0, "case_paths": [ "/nc/288/0699-01" ] }, { "cite": "212 S.E. 2d 125", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "pin_cites": [ { "page": "131" } ], "opinion_index": 0 }, { "cite": "286 N.C. 509", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569066 ], "year": 1975, "pin_cites": [ { "page": "516" } ], "opinion_index": 0, "case_paths": [ "/nc/286/0509-01" ] }, { "cite": "193 S.E. 2d 71", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "pin_cites": [ { "parenthetical": "dates and specific criminal activities mentioned" } ], "opinion_index": 0 }, { "cite": "282 N.C. 334", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565099 ], "year": 1972, "pin_cites": [ { "parenthetical": "dates and specific criminal activities 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 victim's name specified" } ], "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 victim's name specified" } ], "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", "year": 1971, "pin_cites": [ { "page": "181" } ], "opinion_index": 0 }, { "cite": "279 N.C. 663", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571959 ], "year": 1971, "pin_cites": [ { "page": "675" } ], "opinion_index": 0, "case_paths": [ "/nc/279/0663-01" ] }, { "cite": "259 S.E. 2d 263", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "pin_cites": [ { "page": "270" } ], "opinion_index": 0 }, { "cite": "298 N.C. 441", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572690 ], "year": 1979, "pin_cites": [ { "page": "451" } ], "opinion_index": 0, "case_paths": [ "/nc/298/0441-01" ] }, { "cite": "440 U.S. 984", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6391168, 6390656, 6390370, 6391013, 6391685, 6390058, 6391562, 6389934, 6390513, 6390196, 6391383, 6390844 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/us/440/0984-09", "/us/440/0984-06", "/us/440/0984-04", "/us/440/0984-08", "/us/440/0984-12", "/us/440/0984-02", "/us/440/0984-11", "/us/440/0984-01", "/us/440/0984-05", "/us/440/0984-03", "/us/440/0984-10", "/us/440/0984-07" ] }, { "cite": "248 S.E. 2d 241", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1978, "pin_cites": [ { "page": "247" }, { "page": "247", "parenthetical": "emphasis original" } ], "opinion_index": 0 }, { "cite": "295 N.C. 584", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566359 ], "weight": 2, "year": 1978, "pin_cites": [ { "page": "592" } ], "opinion_index": 0, "case_paths": [ "/nc/295/0584-01" ] }, { "cite": "285 S.E. 2d 813", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1982, "pin_cites": [ { "page": "817" } ], "opinion_index": 0 }, { "cite": "304 N.C. 643", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570316 ], "weight": 3, "year": 1982, "pin_cites": [ { "page": "649" }, { "page": "651-52" } ], "opinion_index": 0, "case_paths": [ "/nc/304/0643-01" ] }, { "cite": "252 S.E. 2d 772", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 7, "year": 1979, "pin_cites": [ { "page": "775" }, { "page": "775" }, { "page": "773" }, { "page": "775" }, { "page": "775-76" } ], "opinion_index": 0 }, { "cite": "296 N.C. 728", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570231 ], "weight": 4, "year": 1979, "pin_cites": [ { "page": "732" }, { "page": "732-33" }, { "page": "729-30" }, { "page": "734" } ], "opinion_index": 0, "case_paths": [ "/nc/296/0728-01" ] } ], "analysis": { "cardinality": 731, "char_count": 15652, "ocr_confidence": 0.803, "pagerank": { "raw": 8.171812559485759e-08, "percentile": 0.4751406356123465 }, "sha256": "617e6b59f000222df08fa6c830556b53398fc08cce69e7d41a197d43e8904aa8", "simhash": "1:e301314b603f851c", "word_count": 2603 }, "last_updated": "2023-07-14T20:07:32.557624+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "STATE OF NORTH CAROLINA v. JOHNNIE SPARKS" ], "opinions": [ { "text": "EXUM, Justice.\nDefendant contends the trial court committed prejudicial error in refusing to sustain his objections to a question asked him on cross-examination by the prosecutor, and to the prosecutor\u2019s argument to the jury based on information in the question even though defendant had answered it negatively. The question asked of defendant was: \u201cNow, isn\u2019t it a fact, Mr. Sparks, that during the period of time that you were incarcerated that you became acquainted with the use of anal intercourse as a manner of sexual release for men in prison?\u201d Defendant answered, after his objection was overruled: \u201cNo, sir.\u201d The prosecutor went on to argue to the jury that defendant had been exposed to acts of consensual anal intercourse in prison. We agree with defendant that this question was an improper attempt to impeach defendant, argument based on the question should not have been permitted, and the combined effect of the question and argument was highly prejudicial. We order, therefore, that defendant receive a new trial.\nDwayne Thomas, defendant\u2019s eight-year-old son, was the key witness for the state. He testified that while defendant was living with Dwayne\u2019s mother in 1981, defendant had forcible anal intercourse with him. This occurred at least twice while his mother was at work; Dwayne did not tell his mother because he was afraid she might punish him. The last time the anal intercourse allegedly occurred was the day before the family moved to Dwayne\u2019s grandmother\u2019s house, 25 June 1981.\nSubsequently, on a family vacation, Dwayne told his aunt about his father\u2019s actions. His aunt, Sonja Jean Simmons, corroborated Dwayne\u2019s testimony, and testified that she relayed to Dwayne\u2019s mother, her sister, what Dwayne had told her.\nDwayne was examined by a physician on 21 July 1981. The assistant district attorney and defendant\u2019s attorney stipulated that the doctor\u2019s \u201cexamination did not reveal any evidence of anal entry although it is his medical opinion that due to the length of time between the alleged incident and his examination that he could not say whether or not there had been anal entry.\u201d\nThe other witnesses for the state, Dwayne\u2019s mother and the investigating detective, essentially corroborated Dwayne\u2019s testimony.\nDefendant testified in his own defense. He denied ever having anal intercourse with Dwayne. Defendant testified Dwayne knew he was his real father, and they seemed to get along well together.\nDefendant admitted he had been convicted of breaking and entering, felonious larceny, and unlawful possession of mail. He served eighteen months in federal prison in Lompoc, California, and had been in the custody of the Berkeley, California, jail and the North Carolina Department of Correction.\nIn the course of the assistant district attorney\u2019s cross-examination of defendant, the following exchanges took place:\nQ. Now, on three separate occasions then, it would be your testimony that you have been incarcerated in Berkeley, California, in the North Carolina Department of Correction, and in the federal penitentiary in Lompoc, California, is that correct?\nA. Yes, sir.\nQ. Now, isn\u2019t it a fact, Mr. Sparks, that during the period of time that you were incarcerated that you became acquainted with the use of anal intercourse as a manner of sexual release for men in prison?\nMr. LIND: Objection.\nTHE Court: Overruled.\nA. No, sir.\nQ. Isn\u2019t it a fact \u2014\nMR. LIND: Motion to strike and motion for mistrial.\nThe COURT: Motion to strike is denied. The objection is overruled.\nMr. LIND: Motion for mistrial too, Judge.\nTHE Court: Denied.\nException No. 8\nIn closing arguments, the prosecutor went on to argue as follows:\nNow, I argue to you that the defendant served time in prisons in California, in North Carolina, and I argue to you that a form of sexual relief in prison for men \u2014\nMr. LIND: Objection to this line of argument.\nTHE Court: Overruled.\nMr. COMAN: These are acts of consensual anal intercourse and even though it may be \u2014\nMR. Lind: Move to strike.\nThe Court: Denied.\nMR. COMAN: Even though it may be repugnant to all of us, it is a fact of life.\nI argue and I contend to you that during those periods of time he was exposed to that, and I argue and I contend to you-\nMr. Lind: Objection.\nTHE Court: Overruled.\nException No. 11\nMr. COMAN: I argue and I contend to you that when he came to Greensboro in 1980 in December of that year, he had the opportunity to do it with his son and he did it with his son, and I think when you take all the evidence and draw it together, it certainly points to that as abominable as it may appear to all of us.\nDefendant has assigned as error the trial judge\u2019s overruling of his objections in each of these instances.\nIn State v. Purcell, 296 N.C. 728, 732, 252 S.E. 2d 772, 775 (1979), the Court summarized this jurisdiction\u2019s rules regarding impeachment of a criminal defendant:\n[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.\n(Emphasis added.) See also State v. Shane, 304 N.C. 643, 285 S.E. 2d 813 (1982); State v. Mason, 295 N.C. 584, 248 S.E. 2d 241 (1978), cert. denied, 440 U.S. 984 (1979); 1 Brandis on N.C. Evidence \u00a7\u00a7 111-12 (2d rev. ed. of Stansbury\u2019s N.C. Evidence 1982).\nThus, the first test of the permissibility of a question asked on cross-examination for impeachment purposes is whether it identifies a specific instance of criminal or degrading conduct on the part of the defendant. This Court has repeatedly held questions that fail to pinpoint a specific act of misconduct by the defendant to be improper. Most recently, in State v. Shane, supra, 304 N.C. at 649, 285 S.E. 2d at 817, the following exchange was reviewed:\nQ. You resigned from the intelligence unit because of sexual improprieties, didn\u2019t you?\nWITNESS: I resigned from the intelligence police department because a prostitute downtown made allegations against me; and for the betterment of the department and myself, I resigned.\nMr. RAND: In resigning, you told [police officer] Mr. Bill Johnson, did you not, about this incident?\nMr. RAND: You told Mr. Johnson, did you not, about this matter; that you just weren\u2019t thinking; that all you were doing was getting a shot of cock, didn\u2019t you?\nWITNESS: I did not sir.\nThis Court held that the prosecutor\u2019s query about sexual improprieties failed to identify a specific act of misconduct. The Court stated, 304 N.C. at 651-52, 285 S.E. 2d at 818-19:\nA legitimate inference of foul play does not invariably arise from the mere act of resigning from employment. Moreover, the term \u2018improprieties\u2019 is overly broad because an improper act does not necessarily connote a breach of moral or legal mores, and the plural form of the word suggests the commission of several acts without particularizing a single, specific event for the jury to consider in evaluating credibility. See State v. Purcell, supra; State v. Mason, supra. Defendant Shane was never asked outright whether he had engaged in an earlier sexual misdeed with a prostitute. Instead, Shane was interrogated about his prior conversations with another police officer about the incident and his knowledge of the content of the prostitute\u2019s allegations. Thus, we conclude that the prosecutor\u2019s cross-examination of Shane was not competently tailored to elicit his affirmance or denial of \u2018some identifiable specific act\u2019 by means of a detailed reference to \u2018the time or the place or the victim or any of the circumstances of defendant\u2019s alleged prior misconduct.\u2019 State v. Purcell, supra, 296 N.C. at 732-33, 252 S.E. 2d at 775; see State v. Herbin, 298 N.C. 441, 451, 259 S.E. 2d 263, 270 (1979).\nIn State v. Purcell, supra, 296 N.C. at 729-30, 252 S.E. 2d at 773, the prosecutor asked the defendant, over objection, these 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 The first question was held to be improper \u201cbecause it did not inquire about some identifiable specific act on defendant\u2019s part.\u201d Id. at 732, 252 S.E. 2d at 775. The Court stated, id. at 733, 252 S.E. 2d at 775:\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.\nThe second question was held to be improper because it essentially required the \u201cdefendant to repeat informal accusations that had been made against him in the community.\u201d Id. A question so framed had been disapproved in State v. Williams, 279 N.C. 663, 675, 185 S.E. 2d 174, 181 (1971), in which the Court emphasized that questions relating to criminal or degrading conduct must \u201crelate to matters within the knowledge of the witness, not to accusations of any kind made by others.\u201d (Emphasis original.)\nIn State v. Mason, supra, 295 N.C. at 592, 248 S.E. 2d at 247, the defendant assigned error to the trial court\u2019s sustaining the prosecutor\u2019s objection to a question asked during cross-examination of one of its witnesses. Defense counsel asked the witness, for impeachment purposes \u201cWere you involved in what you call street gang operations in New York?\u201d This Court held the state\u2019s objection to be properly sustained because this question did not \u201cconcern a particular act of misconduct, but rather is a general and oblique allusion to a class of activities.\u201d Id. at 593, 248 S.E. 2d at 247 (emphasis original).\nIn light of this precedent, it is clear that the question to which defendant objected in the instant case was improper. The prosecutor asked: \u201cNow isn\u2019t it a fact, Mr. Sparks, that during the period of time that you were incarcerated that you became acquainted with the use of anal intercourse as a manner of sexual release for men in prison?\u201d The prosecutor clearly implies that defendant personally engaged in anal intercourse for his sexual release while in prison. But this question does not refer to a specific act of misconduct on defendant\u2019s part; it fails to state the specific time, place or victim of any alleged 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 victim\u2019s name specified); State v. Mack, 282 N.C. 334, 193 S.E. 2d 71 (1972) (dates and specific criminal activities mentioned).\nIndeed, this question is broader than any of those previously condemned by this Court in State v. Shane, supra, State v. Purcell, supra, and State v. Mason, supra. It does not ask if defendant had ever engaged in anal intercourse in prison, or even if he had witnessed such activities between other prisoners. Rather, he was asked whether he became \u201cacquainted with,\u201d ie., gained \u201cknowledge of\u201d or became \u201cfamiliar with,\u201d such activities while in prison. See Webster\u2019s Third New International Dictionary 18 (1976). This inquiry could in no way give the jury a basis for judging defendant\u2019s credibility \u2014 the purpose for which impeachment through questions about prior misconduct is permitted. The trial court clearly erred in not sustaining defendant\u2019s objection to the question and not allowing his motion to strike.\nThe prosecutor\u2019s argument to the jury that defendant had been exposed to anal intercourse in prison should not have been made because there was no evidence to support it. As stated in State v. Monk, 286 N.C. 509, 516, 212 S.E. 2d 125, 131 (1975), G.S. 84-14 permits counsel to \u201cargue to the jury \u2018the whole case as well of law as of fact.\u2019 Even so, argument is not without its limitations. The trial court has a duty, upon objection, to censor remarks not warranted by either the evidence or the law, or remarks calculated to mislead or prejudice the jury. [Citations omitted.]\u201d Furthermore, \u201ccounsel may not, by argument or cross-examination, place before the jury incompetent and prejudicial matters by injecting his own knowledge, beliefs, and personal opinions not supported by the evidence.\u201d State v. Britt, 288 N.C. 699, 711, 220 S.E. 2d 283, 291 (1975). Defendant\u2019s objections to this line of argument by the prosecutor should have been sustained.\nWe conclude the errors made, when taken together, warrant a new trial. The jury in this case was essentially asked to compare the weight and credibility of Dwayne\u2019s testimony with that of defendant\u2019s. Although the state put on several witnesses, their testimony served only to corroborate Dwayne\u2019s testimony at trial. The examining physician could not offer an opinion on whether there had been any anal entry of Dwayne. Because the case essentially turned on whether the jury believed Dwayne or defendant, any inferences the jury might have drawn from the prosecutor\u2019s improper question and argument weighed heavily against defendant. We conclude that \u201cthere is a reasonable possibility\u201d that had these errors not been made \u201ca different result would have been reached\u201d at trial. G.S. 15A-1443. Thus the failure to sustain defendant\u2019s objection to the prosecutor\u2019s question and argument was reversible error. See, e.g., State v. Purcell, supra, 296 N.C. at 734, 252 S.E. 2d at 775-76; State v. Britt, supra, 288 N.C. 699, 220 S.E. 2d 283; State v. Stimpson, 279 N.C. 716, 185 S.E. 2d 168 (1972).\nWe do not address defendant\u2019s other assignments of error because they are unlikely to arise upon retrial.\nNew trial.", "type": "majority", "author": "EXUM, Justice." } ], "attorneys": [ "Rufus L. Edmisten, Attorney General, by T. Buie Costen, Special Deputy Attorney General, for the State.", "Wallace C. Harrelson, Public Defender, and Frederick G. Lind, Assistant Public Defender, for defendant appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. JOHNNIE SPARKS\nNo. 210A82\n(Filed 3 November 1982)\nCriminal Law \u00a7 86.5\u2014 impeachment of defendant \u2014 prior misconduct \u2014 improper questions\nIn a prosecution for a first degree sexual offense, the prosecutor erred in asking defendant: \u201cNow isn\u2019t it a fact, Mr. Sparks, that during the period of time that you were incarcerated that you became acquainted with the use of anal intercourse as a manner of sexual release for men in prison?\u201d Although the question implies that defendant personally engaged in anal intercourse for his sexual release while in prison, it does not refer to a specific act of misconduct on defendant\u2019s part and it fails to state the specific time, place or victim of any alleged misconduct. Further, the prosecutor\u2019s argument to the jury that defendant had been exposed to anal intercourse in prison should not have been made because there was no evidence to support it. The combined errors, the questions and the argument, when taken together, warranted a new trial.\nDefendant was found guilty of first degree sex offense before Judge Lane and a jury at the 7 December 1981 Criminal Session of GUILFORD Superior Court. He was sentenced to a term of life imprisonment. He appeals pursuant to G.S. 7A-27(a).\nRufus L. Edmisten, Attorney General, by T. Buie Costen, Special Deputy Attorney General, for the State.\nWallace C. Harrelson, Public Defender, and Frederick G. Lind, Assistant Public Defender, for defendant appellant." }, "file_name": "0071-01", "first_page_order": 99, "last_page_order": 107 }