{ "id": 4762614, "name": "STATE OF NORTH CAROLINA v. WILLIAM ECTOR COPE, JR.", "name_abbreviation": "State v. Cope", "decision_date": "1983-08-09", "docket_number": "No. 127A81", "first_page": "47", "last_page": "63", "citations": [ { "type": "official", "cite": "309 N.C. 47" } ], "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": "287 N.C. 505", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564055 ], "year": 1975, "opinion_index": -1, "case_paths": [ "/nc/287/0505-01" ] }, { "cite": "240 S.E. 2d 440", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "pin_cites": [ { "parenthetical": "limiting instruction on impeaching evidence adduced by adverse party's cross-examination must be requested in order to complain on appeal of instruction's absence" } ], "opinion_index": 0 }, { "cite": "294 N.C. 159", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571155 ], "year": 1978, "pin_cites": [ { "parenthetical": "limiting instruction on impeaching evidence adduced by adverse party's cross-examination must be requested in order to complain on appeal of instruction's absence" } ], "opinion_index": 0, "case_paths": [ "/nc/294/0159-01" ] }, { "cite": "155 S.E. 2d 198", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1967, "pin_cites": [ { "page": "203", "parenthetical": "quoting 26 Am. Jur., Homicide \u00a7 22 (1940)" } ], "opinion_index": 0 }, { "cite": "270 N.C. 622", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569811 ], "year": 1967, "pin_cites": [ { "page": "628", "parenthetical": "quoting 26 Am. Jur., Homicide \u00a7 22 (1940)" } ], "opinion_index": 0, "case_paths": [ "/nc/270/0622-01" ] }, { "cite": "259 S.E. 2d 899", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "pin_cites": [ { "page": "903" } ], "opinion_index": 0 }, { "cite": "298 N.C. 752", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574062 ], "year": 1979, "pin_cites": [ { "page": "756-57" } ], "opinion_index": 0, "case_paths": [ "/nc/298/0752-01" ] }, { "cite": "185 S.E. 2d 129", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "279 N.C. 676", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571995 ], "opinion_index": 0, "case_paths": [ "/nc/279/0676-01" ] }, { "cite": "428 U.S. 903", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6183298, 6181252, 6182756, 6183146, 6182571, 6181805, 6182223, 6181423, 6181585, 6182964, 6182388, 6181945, 6182076 ], "weight": 2, "year": 1976, "opinion_index": 0, "case_paths": [ "/us/428/0903-13", "/us/428/0903-01", "/us/428/0903-10", "/us/428/0903-12", "/us/428/0903-09", "/us/428/0903-04", "/us/428/0903-07", "/us/428/0903-02", "/us/428/0903-03", "/us/428/0903-11", "/us/428/0903-08", "/us/428/0903-05", "/us/428/0903-06" ] }, { "cite": "210 S.E. 2d 407", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1974, "opinion_index": 0 }, { "cite": "286 N.C. 304", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565329 ], "weight": 2, "year": 1974, "opinion_index": 0, "case_paths": [ "/nc/286/0304-01" ] }, { "cite": "244 S.E. 2d 397", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "295 N.C. 126", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561834 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/nc/295/0126-01" ] }, { "cite": "247 S.E. 2d 905", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1978, "pin_cites": [ { "page": "916", "parenthetical": "emphasis added" }, { "page": "918" } ], "opinion_index": 0 }, { "cite": "295 N.C. 559", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566309 ], "year": 1978, "pin_cites": [ { "page": "579", "parenthetical": "emphasis added" } ], "opinion_index": 0, "case_paths": [ "/nc/295/0559-01" ] }, { "cite": "79 S.E. 2d 473", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1954, "pin_cites": [ { "page": "476" } ], "opinion_index": 0 }, { "cite": "239 N.C. 245", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626407 ], "year": 1954, "pin_cites": [ { "page": "249" } ], "opinion_index": 0, "case_paths": [ "/nc/239/0245-01" ] }, { "cite": "263 S.E. 2d 751", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 7, "year": 1980, "pin_cites": [ { "page": "754" }, { "page": "756" }, { "page": "756" }, { "page": "756" }, { "page": "756" } ], "opinion_index": 0 }, { "cite": "299 N.C. 642", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575705 ], "weight": 5, "year": 1980, "pin_cites": [ { "page": "650" }, { "page": "649" }, { "page": "650" } ], "opinion_index": 0, "case_paths": [ "/nc/299/0642-01" ] }, { "cite": "268 S.E. 2d 196", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1980, "pin_cites": [ { "page": "200" }, { "page": "200-01" } ], "opinion_index": 0 }, { "cite": "300 N.C. 694", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564496 ], "weight": 2, "year": 1980, "opinion_index": 0, "case_paths": [ "/nc/300/0694-01" ] }, { "cite": "221 S.E. 2d 247", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 7, "year": 1976, "pin_cites": [ { "page": "256", "parenthetical": "emphasis original" }, { "page": "252" }, { "page": "255" }, { "page": "256", "parenthetical": "emphasis original" }, { "page": "256" } ], "opinion_index": 0 }, { "cite": "289 N.C. 143", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567392 ], "weight": 4, "year": 1976, "pin_cites": [ { "page": "158", "parenthetical": "emphasis original" }, { "page": "152" }, { "page": "159" } ], "opinion_index": 0, "case_paths": [ "/nc/289/0143-01" ] }, { "cite": "215 S.E. 2d 139", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 9, "year": 1975, "pin_cites": [ { "page": "145", "parenthetical": "emphasis original" }, { "page": "145" }, { "page": "146" }, { "page": "145" }, { "page": "146" }, { "page": "145" }, { "page": "146" }, { "page": "146", "parenthetical": "trial court's giving limited instruction on impeaching evidence considered in deciding that error in admission of evidence was not reversible" } ], "opinion_index": 0 }, { "cite": "195 S.E. 2d 561", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1973, "pin_cites": [ { "page": "565" } ], "opinion_index": 0 }, { "cite": "283 N.C. 218", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8558331 ], "year": 1973, "pin_cites": [ { "page": "224-25" } ], "opinion_index": 0, "case_paths": [ "/nc/283/0218-01" ] }, { "cite": "287 N.C. 505", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564055 ], "weight": 6, "year": 1975, "pin_cites": [ { "page": "512-13" }, { "page": "514" }, { "page": "513" }, { "page": "514" }, { "page": "514" } ], "opinion_index": 0, "case_paths": [ "/nc/287/0505-01" ] } ], "analysis": { "cardinality": 1197, "char_count": 35990, "ocr_confidence": 0.838, "pagerank": { "raw": 1.761492235225042e-07, "percentile": 0.710108195497112 }, "sha256": "ccd3ec403f8e2acc2662d1b5593c29f42b1d3bf7b81d74d998c4dd668ae66b18", "simhash": "1:4302f1b66293287c", "word_count": 6165 }, "last_updated": "2023-07-14T18:05:00.577130+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Justices Martin and Frye did not participate in the consideration or decision of this case." ], "parties": [ "STATE OF NORTH CAROLINA v. WILLIAM ECTOR COPE, JR." ], "opinions": [ { "text": "EXUM, Justice.\nDefendant argues in his appeal that the trial court committed reversible error in permitting the state to impeach its own witness, in sustaining the state\u2019s objections to questions asked of a character witness for defendant, in failing to submit voluntary manslaughter as a possible verdict, and in omitting the proximate cause element from his instructions on involuntary manslaughter. We conclude defendant is entitled to a new trial on the ground the trial court erred in allowing the state to impeach its own witness.\nThe state\u2019s evidence at trial tended to show the following:\nBetween midnight and 2:30 a.m. on 1 January 1980, sixteen-year-old Henry Cotton was driving a pickup truck with three passengers on Liberty Street in Durham. The group was on its way home from celebrating New Year\u2019s Eve at a local discotheque when Cotton told the others, \u201cA car is right on my tail.\u201d One of the passengers noted a headlight on the following car was out. When the truck turned onto Hardee Street, a shot was fired; one of the passengers told the others to duck because someone was shooting at them. Other shots followed. The truck ran off the road and struck a tree. Investigating officers administered first aid to Cotton but could not feel a pulse. In the opinion of the forensic pathologist who performed an autopsy on Cotton, he died from a gunshot wound to the head. A specialist in firearms identification testified the bullet retrieved from Cotton\u2019s body was either a .38 caliber or .357 magnum bullet.\nNan Carr was traveling on Hardee Street on 1 January 1980 when she saw the pickup truck hit the tree. Before the truck wrecked she heard three loud noises, which she thought were caused by firecrackers because it was New Year\u2019s Eve. She saw a small station wagon with a very long antenna screech away from the intersection. She later saw the same car when it passed by after circling the block. The car had been wrecked and was missing a headlight. The driver of the car \u201chad a long face, very long hair, and a long beard.\u201d She saw a passenger in the front seat of the car but could not tell if the person was a man or a woman. Ms. Carr testified she had been hypnotized to help her recall details of the incident.\nJohnny Mason testified he was riding with Cathy Teasley and defendant, who was driving Teasley\u2019s automobile, in the early morning hours of 1 January 1980. Teasley\u2019s automobile was a brown Subaru station wagon that had a long antenna and one headlight burned out. They were leaving the \u201cMidnight Special,\u201d a nightspot in Durham. Defendant became angry when a pickup truck pulled in front of him and then made a turn without signaling. As the truck turned defendant rolled down his window; Mason ducked because he thought defendant was going to yell. He heard a shot from inside the car and then heard Teasley scream at defendant. They circled the block and defendant commented the truck had wrecked.\nCathy Teasley testified she was living with defendant in January 1980. They celebrated New Year\u2019s Eve at the Midnight Special, where defendant worked. Teasley and Johnny Mason left the Midnight Special with defendant about three or four in the morning. Defendant was driving Teasley\u2019s Subaru and Mason was a passenger in the back seat. Although Teasley sometimes had a .357 Magnum in the car, there were no guns in the car that night. Teasley testified that the group went to Randy Mason\u2019s house from the Midnight Special, via East Geer Street, and never went to Hardee Street. At that point in her testimony the prosecutor introduced, over defendant\u2019s objection, a prior inconsistent statement given to the police by Teasley in which she implicated defendant as the one who fired the fatal shot at Cotton. The rest of her testimony dealt with her relationship to defendant and her explanation of why her testimony at trial differed from her previous statements.\nNan Carr was reexamined, over defendant\u2019s objection, about conversations she had with Teasley regarding this case, including one in which Teasley said \u201cshe was in the car with the man who shot the deceased.\u201d Detective Parham of the Durham Police Department testified about statements regarding this case made by Teasley and Mason. Finally, members of Teasley\u2019s family testified about conversations they had with her regarding this case.\nDefendant\u2019s evidence at trial was primarily directed at establishing an alibi defense. Defendant denied any involvement in the shooting. He testified he worked as a bartender at the Midnight Special on New Year\u2019s Eve from approximately 8 p.m. until 4 a.m. He left the bar with Teasley and Johnny Mason and went directly to Randy Mason\u2019s house, where they stayed until 10 a.m. Nine other people who were either at the Midnight Special or Mason\u2019s home, or both, testified and corroborated defendant\u2019s testimony about where he was on New Year\u2019s Eve, 1979-80.\nThe most significant question presented by defendant\u2019s appeal is whether the trial court erred in permitting the state to impeach its witness Cathy Teasley by her prior inconsistent statements. We conclude the impeachment was impermissible and constitutes reversible error.\nIt is our general rule that the state may not impeach its own witness through the use of prior inconsistent statements or evidence that the witness\u2019s character is bad. State v. Anderson, 283 N.C. 218, 224-25, 195 S.E. 2d 561, 565 (1973); 1 Brandis, North Carolina Evidence \u00a7 40 (2d rev. ed. of Stansbury\u2019s N.C. Evidence 1982). An exception to this rule, recognized in State v. Pope, 287 N.C. 505, 215 S.E. 2d 139 (1975), allows the state to impeach its own witness when the prosecutor \u201chas 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.\u201d Id. at 513, 215 S.E. 2d at 145 (emphasis original). \u201cSurprise\u201d means more than \u201cmere disappointment\u201d; rather it means \u201ctaken unawares.\" State v. Smith, 289 N.C. 143, 158, 221 S.E. 2d 247, 256 (1976) (emphasis original).\nThe Court in Pope, in an opinion by then Chief Justice Sharp, suggested a procedure for invoking the \u201csurprise\u201d exception: (1) The state should move \u201cto be allowed to impeach its own witness by proof of his prior inconsistent statements\u201d; (2) the motion should be made as soon as the prosecutor is surprised; (3) the motion \u201cis addressed to the sound discretion of the trial court\u201d; (4) the preliminary questions of whether the prosecutor is surprised and misled as to the witness\u2019s expected testimony on a material fact is to be determined in a voir dire hearing in the absence of the jury; and (5) \u201c[i]f 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 287 N.C. at 512-13, 215 S.E. 2d at 145. The Court in Pope further noted that prior inconsistent statements are not substantive evidence and are only admitted to show the prosecutor was surprised by the witness\u2019s testimony at trial and to explain why the witness was called by the state. Id. at 514, 215 S.E. 2d at 146. Finally, in keeping with the limited purpose for which the prior inconsistent statements may be offered, Pope said only statements \u201cmade ... to the State\u2019s attorney or to some person whom he specifically instructed to communicate the statement to the attorney\u201d or statements taken in writing by official investigators and furnished to the state\u2019s attorney may be used to impeach the witness. Id. at 513, 215 S.E. 2d at 145.\nThe original record on appeal did not show whether the prosecutor, Michael Nifong, was surprised by Teasley\u2019s testimony at trial. The record sets forth the following exchange which occurred during Teasley\u2019s testimony:\nI came to the Midnight Special in my car that night. It was a brown Subaru station wagon. I am not exactly sure, but I believe the car was in a wrecked condition as of that night. The wreck damage would have been in the front of the car. I am not sure if I just had one headlight working that night or not. My father and I have discussed it and neither one of us can remember. I did not have a CB antenna on the car that night. I did have a radio antenna that comes up right over the front. When we left the Midnight Special that night, Billy was driving. I was in the passenger seat and Johnny Mason was in the backseat.\nI own a 22 caliber pistol that I got from my grandfather\u2019s estate when he died. I have never owned a 357 Magnum, but my father has owned one before. I used to take his 357 Magnum with me when I went out of town. I would put it in the car but it was not in the car on this night. I did not have my .22 pistol in the car that night either. There were no guns in the car.\nAfter we left the Midnight Special we went down East Geer Street to Randy Mason\u2019s house on Ferrell Road. We never went to Liberty Street or Hardee Street.\nMR. NlFONG: Ms. Teasley, you have talked with me about this case before, of course, haven\u2019t you?\nMs. TEASLEY: And I have told you a lot of stuff.\nMr. NlFONG: Have you always told me what you are telling me right now, ma\u2019am?\nMs. TEASLEY: I don\u2019t know what you mean.\nMr. NlFONG: Have you told me from the beginning exactly what you are telling me right now?\nMS. TEASLEY: No, sir, but I tried to, and you wouldn\u2019t talk to me about it.\nMr. NlFONG: Would you read the statement please, that you have in front of you marked State\u2019s Ex. No. 13.\nMS. TEASLEY: It says \u2018The following is a voluntary statement by Catherine Emma Teasley \u2014\nMr. MANSON: Object to reading the statement that she says is not now true.\nOverruled.\nException Number Three\nMr. NIFONG: Go ahead.\nTeasley then read a lengthy statement in which she placed defendant at the scene of the shooting and identified him as the one who fired the gun at the truck. After Teasley\u2019s examination was completed Nan Carr was recalled to testify about conversations she had had with Teasley. Teasley had stated on cross-examination that she knew the details in her original statement because Carr had told her what some witnesses had said about the case. It was not until the prosecutor attempted to question Carr about her conversations with Teasley that the following exchange was had out of the presence of the jury:\nMr. MANSON: Your Honor, please, I feel at this time that the State is attempting to impeach their own witness Cathy Teasley, who has already testified under direct examination. Miss Teasley gave a written statement which is now in the record, which we know what she said at one time and what she testified to. She testified that she had a great deal to lose by giving the testimony that she gave today, but that was the truth, and she was going to give it, and I don\u2019t believe that it is proper for the State to be allowed to impeach one of the State\u2019s witnesses who doesn\u2019t testify the way the State thinks she should testify. She also testified that she came to Mr. Nifong and tried to tell him what the situation was, but that he did not discuss it with her, and very basically instead of being redundant, I think they are impeaching their own witness, and we OBJECT to it.\nMr. NIFONG: The testimony of Miss Teasley was of more than one variety. She indicated that she had in fact made a statement earlier and read that statement into the record. She then also indicated that she was now saying that statement had been fabricated, that the information that she got from which to fabricate that statement came from this witness. I think that the jury has a right to hear evidence from which they can determine which of the statements made by Cathy Teasley is true and impeaching one\u2019s statement. We are giving credence to the other statement. Her testimony was in fact that she made the written statement earlier. She has made two statements in front of the jury. I think the State has a right to prove to the jury which one of these statements they should believe.\nMr. MANSON: May it please the Court, I would like to point out the statement says that \u2018The above statement is true and correct to the best of my knowledge,\u2019 and she signed it on the 13th of February, 1981, not notarized.\nCOURT: I hold on all of the evidence that is of record to this point that the State\u2019s witness, Catherine Emma Teasley, has today by her change of story on direct testimony to become a witness hostile to the State, and that the State had been genuinely surprised by her testimony today in court.\nGiven the facts and circumstances of this case, it is competent for this witness to now answer the last question which was asked by the State. . . .\n[It] is lawful under the Rules of Evidence to overrule the objection, and it is now Overruled and she may answer in the presence of the jury.\nException Number Four\nThus, insofar as the original record shows, the state did not move to have Teasley declared a hostile witness; no voir dire took place on the issue of the state\u2019s surprise; the trial judge failed to specify the extent to which the prior inconsistent statements could be offered; and the state used Teasley\u2019s prior statements to Nan Carr who was not an official investigator nor someone designated by the district attorney to take a statement. In short, the procedure suggested in Pope was not followed. Finally, we note that no limiting instructions were requested or given to inform the jury that the prior inconsistent statements could not be considered as substantive evidence of guilt.\nBecause of these omissions from the record, this Court, on motion of defendant for appropriate relief filed during the pendency of the appeal and in which the state acquiesced, ordered a hearing on the issue of whether \u201cthe prosecutor who tried this case was surprised at trial by the testimony of state\u2019s witness Cathy Teasley so as to be entitled under the rule of State v. Pope, supra, to impeach Teasley\u2019s trial testimony by offering evidence of prior inconsistent statements allegedly made by her.\u201d Judge D. M. McLelland conducted the hearing at which Mr. Nifong, two investigators for the state, defendant\u2019s trial counsel, and Teasley\u2019s counsel in a perjury charge arising out of this case testified.\nNifong testified that Teasley came to see him on the Thursday before trial was to begin on Monday. Teasley told Nifong, without being asked, that she had not been completely honest with him. When he asked her what she meant she responded, \u201cBilly didn\u2019t kill that boy.\u201d Nifong\u2019s first thought was that she was going to confess to the crime; if so, he did not want to become a witness to her confession. He called in an officer to question her further.\nThe detective, Steve Hall, testified he and another officer accompanying him could not get her to say anything other than that defendant did not kill Cotton, and that her statement was a lie. He told Nifong she had told him she lied about the whole statement. Detective Parham, the investigator assigned to the case, also arrived to question her. Teasley began crying when he walked in, and said something like: \u201cBilly didn\u2019t kill the boy, I made it up.\u201d He could not get her to change any other specific points in her statement. He also told Nifong he could not get her to say anything other than that defendant did not kill Cotton. Parham told Nifong he did not know what she would say at trial. Finally, Nifong questioned her in the presence of Parham but she would not respond when asked if she wanted to change her statement.\nNifong explained why he called Teasley as a witness even though he anticipated she might not testify that defendant fired the fatal shot. He anticipated an alibi defense in the case, with the defense offering eight or nine witnesses placing defendant somewhere other than at the scene of the shooting during the relevant time. He believed Teasley\u2019s testimony was important to the extent it established the material fact that she, defendant, and Johnny Mason were \u201cat the place where the killing occurred at the time that it happened.\u201d Nifong testified he was very surprised by her testimony indicating she and defendant and Mason had not gone near Liberty or Hardee Streets that night. He also testified a conference at the bench was held after Manson\u2019s objection in which the question of the state\u2019s surprise was discussed. He did not recall making a formal motion for the record to have Teasley declared a hostile witness. He did not recall exactly what was made known to the trial judge about the background of Teasley\u2019s change in her testimony but he knew that \u201cin general terms the Judge was apprised of what had occurred.\u201d\nWilliam Manson, defendant\u2019s attorney at trial, testified Teasley came to his office before she went to Nifong\u2019s. She told him she had made up the whole story. He advised her to go to Nifong and the police and tell them the truth. He did not know whether she had talked with Nifong or not when the trial began, but he assumed she had not when Nifong listed her among the state\u2019s witnesses.\nFinally, Thomas F. Loflin, III, who at the time he testified was defending Teasley with regard to a perjury charge brought against her arising from this case, stated that in the course of preparing Teasley\u2019s case he asked Nifong why he called her to the stand when she had told him \u201cBilly didn\u2019t shoot that man.\u201d Nifong said \u201che knew it was a gamble and taking a risk, but he hoped . . . that she would go back to the written statement that she had originally given Barry Parham, and which she had reiterated to Mr. Nifong.\u201d\nFrom the evidence presented at the hearing, Judge McLelland made the following findings:\n2. That on Thursday before trial on the following Monday, Teasley told Nifong that she had not been totally honest; that the \u2018defendant did not kill that boy\u2019; that Nifong then had police investigators Hall and Parham question Teasley, first advising her of her Constitutional rights, as he anticipated the possibility of her confessing that she had fired the shot.\n3. That Teasley told police investigators that defendant did not kill that boy, that she had made up the statement, and that the statement was a lie.\n4. That the investigators asked Teasley to go over the statement and to change what was not true, and that she declined to do so.\n5. That Nifong was told by Parham that he did not know what Teasley would say, that she would not tell him anything other than that the defendant did not kill that boy, that her statement was a lie, and that she had made it up.\n8. That Nifong, anticipating the defense of alibi, thereafter called Teasley, expecting her to corroborate Mason\u2019s testimony that the defendant was at the scene of the shooting, but to deny that defendant had fired the shot.\n9. That Teasley testified that she, defendant and Mason were not at the scene of the shooting.\n10. That upon defendant\u2019s objection to Nifong\u2019s request that Teasley read into evidence her pre-trial statement, the Trial Judge at a bench conference determined that Nifong was surprised and overruled the objection. [Emphases supplied.]\nFrom these findings Judge McLelland concluded: \u201c[T]he District Attorney was genuinely surprised by the testimony of the witness Teasley and was properly allowed to impeach her testimony by use of her pre-trial statement.\u201d\nThe prosecutor did testify that he expected Teasley to put defendant at the scene of the crime even if she would not say defendant fired the fatal shot. This testimony forms the basis of Judge McLelland\u2019s finding No. 8 and apparently his conclusion that the prosecutor was surprised. Our cases make it clear, however, that the test for prosecutorial surprise is not what the prosecutor actually anticipated; the test is what, under all the circumstances, the prosecutor should reasonably have anticipated.\nThe appropriate test for determining whether the prosecutor is surprised is whether \u201cthe prosecuting attorney knows at the time the witness is called that he has retracted or disavowed his statement, or has reason to believe he will do so if called upon to testify.\u201d State v. Pope, supra, 287 N.C. at 514, 215 S.E. 2d at 146. This test and subsequent applications of it in State v. Moore, 300 N.C. 694, 268 S.E. 2d 196 (1980); State v. Lovette, 299 N.C. 642, 263 S.E. 2d 751 (1980); and State v. Smith, supra, 289 N.C. 143, 221 S.E. 2d 247, compel the conclusion that Nifong was not surprised by Teasley\u2019s testimony and that Judge McLelland erred in concluding that he was.\nIn State v. Smith, supra, 289 N.C. at 152, 221 S.E. 2d at 252, the prosecutor called as a witness James Thomas, who had testified for the state at the defendant\u2019s first trial and who was serving time for an unrelated crime. The day before Thomas was scheduled to testify in the second trial, he told the district attorney he wanted his prison sentence reduced in exchange for his testimony. The district attorney told Thomas he could only write a letter to the Department of Corrections; Thomas at that point apparently became uncooperative. The prosecutor nevertheless called Thomas to the stand; when Thomas began changing his testimony from that given at the first trial the prosecutor asked the trial court to declare Thomas a hostile witness. The district attorney then asked Thomas a number of questions which caused this Court to conclude \u201cthat the State was seeking not only to impeach the credibility of its own witness but was also attempting to force the witness to give the jury the same account of events he had given at the first trial. Failing this, the prosecutor intended to accomplish his efforts at impeachment by placing the previous testimony of this witness before the jury.\u201d Id. at 157, 221 S.E. 2d at 255. Justice Huskins, writing for the Court, concluded:\nIn the instant case there can be no doubt that, sometime prior to calling the witness Thomas, the district attorney had substantial reason to believe that Thomas would repudiate or disavow his prior testimony if called upon to testify. This being so, the prosecutor could not have been genuinely surprised or taken unawares by the testimony of Thomas. To the contrary, he had every reason to believe that Thomas would retract his previous testimony or feign a loss of memory. Under these circumstances, the district attorney should have marked Thomas off the list of the State\u2019s witnesses.\nId. at 158-59, 221 S.E. 2d at 256 (emphasis original). The Court found the trial court\u2019s error in permitting the district attorney to impeach his own witness was sufficiently prejudicial to require a new trial of double murder charges against the defendants. Id.\nIn State v. Lovette, supra, 299 N.C. 642, 263 S.E. 2d 751, the Court was again confronted with the question whether the state should be allowed to impeach one of its witnesses, Clifford Johnson, in the defendant\u2019s trial on charges of second degree murder and attempted armed robbery. The state was allowed at trial, over defendant\u2019s objection, \u201cto read from Johnson\u2019s pretrial statement . . . and then ask not only about statements made to him by defendant but also about accusatory statements made to defendant by [two other people].\u201d Id. at 646, 263 S.E. 2d at 754. Three weeks after Clifford Johnson made his pretrial statement, he informed an officer \u201c \u2018that 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.\u2019 \u201d Id. at 649, 263 S.E. 2d at 756. Before trial Johnson met with the officer and the district attorney. Nevertheless, the district attorney called Johnson and moved to have him declared a hostile witness when Johnson testified, contrary to his pretrial statement, that he had not discussed the incident with the defendant. The trial court found, following a voir dire, that the state could cross-examine Johnson based on \u201csurprise.\u201d 299 N.C. at 650, 263 S.E. 2d at 756. Justice Huskins, writing for the Court, quoted the rule in Pope that before the prosecutor\u2019s motion to treat his witness as hostile is granted \u201c \u2018the 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.\u2019 \u201d 299 N.C. at 649, 263 S.E. 2d at 756 (quoting State v. Pope, supra, 287 N.C. at 513, 215 S.E. 2d at 145) (emphasis original). This Court concluded:\n[P]rior 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.\n299 N.C. at 650, 263 S.E. 2d at 756.\nFinally, in State v. Moore, supra, 300 N.C. 694, 268 S.E. 2d 196, an opinion written for the Court by Justice Copeland, defendant was charged with felonious burning of a dwelling house. Glenda Moore was called as a witness for the state. When she was called the trial judge stated the following for the record:\n\u2018|I]t is my understanding that the district attorney has been advised and the defense attorney is aware of the fact that there was a statement made by this witness to Captain Reams at some time following the fire. That there is some information in the possession of both the district attorney and the defense attorney that the witness intends to repudiate in whole or in part the statement which she made to Sheriff Reams . . . .\u2019\nId. at 699, 268 S.E. 2d at 200. Nevertheless, the trial court declared the witness to be hostile and allowed the state to impeach her. This Court concluded the state clearly \u201cwas not misled, surprised or entrapped by the witnesses] trial testimony and the witness was improperly declared to be a hostile witness in violation of the rule as set forth in Smith and Pope. \u201d Id. at 699, 268 S.E. 2d at 200-01.\nThe evidence before Judge McLelland tended to show and he found as facts that before trial: Teasley told the prosecutor \u201cdefendant did not kill that boy.\u201d Teasley told investigators she \u201chad made up\u201d her pretrial statement and \u201cthe statement was a lie.\u201d One investigator told the prosecutor \u201che did not know what Teasley would say\u201d and that Teasley had told him \u201cher statement was a lie, and that she had made it up.\u201d Armed with this information, the prosecutor clearly \u201chad reason to believe\u201d and should reasonably have anticipated that if Teasley were called she would disavow her pretrial statement. The prosecutor had no reasonable basis for anticipating that Teasley\u2019s trial testimony would place defendant at the scene of the crime, but would deny defendant fired the shot. The prosecutor, therefore, \u201ccould not have been genuinely surprised\u201d by Teasley\u2019s testimony, State v. Lovette, supra; accord, State v. Moore, supra. \u201cUnder these circumstances, the district attorney should have marked [Teasley] off the list of the State\u2019s witnesses.\u201d State v. Smith, supra, 289 N.C. at 159, 221 S.E. 2d at 256.\nFurther, the district attorney should not have been permitted to offer Nan Carr\u2019s testimony about prior statements Teasley made to Carr.\nThese errors entitle defendant to a new trial. The case against defendant is largely circumstantial. Even if the circumstances are considered to point strongly in the direction of his guilt, his alibi defense is likewise strong. Teasley\u2019s pretrial statements not only place defendant at the scene of the shooting, they unequivocally identify him as the one who fired the gun at the truck. Even if admissible, the statements could only be used for purposes of impeachment, not as substantive evidence against defendant. State v. Pope, supra, 287 N.C. at 514, 215 S.E. 2d at 146. The trial court, however, did not instruct the jury on the limited purpose for which these statements could be used. It is likely that in the absence of such instructions the jury accepted the statements as substantive evidence of what happened. We believe there is \u201ca reasonable possibility\u201d that had the error in admitting these statements not occurred a different result might have been reached at trial. G.S. 15A-1443(a) (1978). Therefore the error is reversible.\nWe decline, as the state urges, to abolish or modify our anti-impeachment rule. Although we recognize the rule has been criticized, it is \u201caccepted as sound law in this State,\u201d State v. Tilley, 239 N.C. 245, 249, 79 S.E. 2d 473, 476 (1954), and is not lightly to be altered. The rule has been recently applied in Moore, Lovette, and Smith. We need not now address whether Rule 607 of our newly enacted Code of Evidence, H.B. 96, 1983 N. C. Gen. Assem., ch. 701, \u00a7 1 (ratified July 7, 1983), will alter our present rules on this subject. Suffice it to say that the new Code does not take effect until 1 July 1984, id. at \u00a7 3, and has no application to this trial.\nDefendant presents several other questions for review but only one is likely to arise on retrial. Defendant argues the trial court erred in refusing to charge the jury on voluntary manslaughter as a permissible lesser-included offense of second degree murder. We conclude there is no evidence to support such an instruction. The distinction between murder and voluntary manslaughter was set forth in State v. Wilkerson, 295 N.C. 559, 579, 247 S.E. 2d 905, 916 (1978) (emphasis added):\nGenerally, voluntary manslaughter occurs when one kills intentionally but does so in the heat of passion suddenly aroused by adequate provocation or in the exercise of self-defense where excessive force under the circumstances is employed or where the defendant is the aggressor bringing on the affray. Although a killing under these circumstances is both unlawful and intentional, the circumstances themselves are said to displace malice and to reduce the offense from murder to manslaughter. See generally State v. Potter, 295 N.C. 126, 244 S.E. 2d 397 (1978); State v. Ward, 286 N.C. 304, 210 S.E. 2d 407 (1974), death penalty vacated, 428 U.S. 903 (1976); State v. Wrenn, supra, 279 N.C. 676, 185 S.E. 2d 129 (Sharp, J., now C.J., dissenting).\n\u201cAdequate provocation\u201d may be defined as provocation \u201cof such nature as the law would deem adequate to temporarily dethrone reason and displace malice.\u201d State v. Montague, 298 N.C. 752, 756-57, 259 S.E. 2d 899, 903 (1979); State v. Ward, 286 N.C. 304, 210 S.E. 2d 407 (1974), death sentence vacated, 428 U.S. 903 (1976).\nThe only evidence of provocation that defendant can point to is testimony about Cotton\u2019s pulling his truck out in front of the car defendant was driving and Cotton\u2019s failure to signal before turning. There is ample evidence that these acts made defendant angry. But neither act is of such a nature as \u201cwould naturally and reasonably arouse the passions of an ordinary man beyond his power of control.\u201d State v. McLawhorn, 270 N.C. 622, 628, 155 S.E. 2d 198, 203 (1967) (quoting 26 Am. Jur., Homicide \u00a7 22 (1940)). The refusal of the trial court to instruct on voluntary manslaughter was proper since there is no evidence to support such an instruction. State v. Wilkerson, supra, 295 N.C. at 583, 247 S.E. 2d at 918.\nFor the reasons given, the verdict and judgment of the superior court are vacated and the case is remanded for a\nNew trial.\nJustices Martin and Frye did not participate in the consideration or decision of this case.\n. Indeed, it appears that the prosecutor erroneously believed Teasley\u2019s prior inconsistent statements could be offered as substantive evidence of what actually happened, rather than merely to impeach Teasley\u2019s in-court testimony.\n. Had the pretrial statements been admissible for impeachment only, whether failure to so instruct the jury in the absence of a request would have been error is a question not now before us and one we do not now decide. See State v. Watson, 294 N.C. 159, 240 S.E. 2d 440 (1978) (limiting instruction on impeaching evidence adduced by adverse party\u2019s cross-examination must be requested in order to complain on appeal of instruction\u2019s absence). Since, however, it was error to admit the statements for any purpose, it is proper to consider the absence of limiting instructions in our assessment of the statement's probable impact on the jury. State v. Pope, supra, 287 N.C. at 514, 215 S.E. 2d at 146 (trial court\u2019s giving limited instruction on impeaching evidence considered in deciding that error in admission of evidence was not reversible).\n. The Rule provides: \"Who May Impeach. The credibility of a witness may be attacked by any party, including the party calling him.\" H.B. 96, 1983 N. C. Gen. Assem., ch. 701, \u00a7 1 (ratified July 7, 1983).", "type": "majority", "author": "EXUM, Justice." } ], "attorneys": [ "Rufus L. Edmisten, Attorney General, by Luden Capone III, Assistant Attorney General, for the state.", "Clayton & Myrick by Jerry B. Clayton, Ronald G. Coulter and Robert D. McClanahan, for defendant appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. WILLIAM ECTOR COPE, JR.\nNo. 127A81\n(Filed 9 August 1983)\n1. Criminal Law \u00a7 90\u2014 impeachment of State\u2019s witness through use of prior inconsistent statements \u2014 reversible error\nIn a prosecution for second degree murder, the trial court committed reversible error in allowing the State to impeach its own witness by use of her prior inconsistent statements. Insofar as the original record showed, the state did not move to have the witness declared a hostile witness; no voir dire took place on the issue of the state\u2019s surprise; the trial judge failed to specify the extent to which the prior inconsistent statements could be offered; and the state used the witness\u2019s prior statements to another witness who was not an official investigator nor someone designated by the district attorney to take a statement. Further, no limiting instructions were requested or given to inform the jury that the prior inconsistent statements could not be considered as substantive evidence of guilt. Because of these omissions from the record, the Court, on motion of defendant for appropriate relief, ordered a hearing on the issue of whether \u201cthe prosecutor who tried this case was surprised at trial by the testimony of state\u2019s witness so as to be entitled under the rule of State v. Pope, 287 N.C. 505 (1975) to impeach the witness\u2019s trial testimony by offering evidence of prior inconsistent statements allegedly made by her.\" The testimony at the hearing showed that the prosecutor \u201ccould not have been genuinely surprised\u201d by the witness\u2019s testimony. The court found \u201ca reasonable possibility\u201d that had the error in admitting the statements not occurred a different result might have been reached at trial. G.S. 15A-1443(a).\n2. Homicide \u00a7 30.2\u2014 failure to instruct on voluntary manslaughter proper\nIn a prosecution for second degree murder, the trial court properly failed to instruct on voluntary manslaughter where there was no evidence to support such an instruction.\nJustices Martin and Frye did not participate in the consideration or decision of this case.\nBEFORE Judge Maurice Braswell at the 18 May 1981 Criminal Session of DURHAM Superior Court defendant was found guilty of second degree murder and received a sentence of life imprisonment. Defendant appealed pursuant to G.S. 7A-27(a). During the pendency of this appeal defendant moved for appropriate relief, in which motion he asked this Court to remand the case to superior court for a hearing on the issue of the admissibility of certain pretrial statements made by a witness for the state. The state did not object to such proceedings, and we allowed the motion on 3 March 1982 pursuant to G.S. 15A-1453(b)(2). On 22 March 1982 Judge D. M. McLelland conducted the hearing and made findings and conclusions. A transcript of the hearing, Judge McLelland\u2019s order, and addenda to the briefs were subsequently filed with this Court.\nRufus L. Edmisten, Attorney General, by Luden Capone III, Assistant Attorney General, for the state.\nClayton & Myrick by Jerry B. Clayton, Ronald G. Coulter and Robert D. McClanahan, for defendant appellant." }, "file_name": "0047-01", "first_page_order": 75, "last_page_order": 91 }