{ "id": 4717560, "name": "STATE OF NORTH CAROLINA v. TONY MITCHELL SIDDEN and ANTHONY RAY BLANKENSHIP", "name_abbreviation": "State v. Sidden", "decision_date": "1986-02-18", "docket_number": "No. 487A84", "first_page": "539", "last_page": "556", "citations": [ { "type": "official", "cite": "315 N.C. 539" } ], "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": "255 S.E. 2d 390", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "pin_cites": [ { "page": "395" } ], "opinion_index": 0 }, { "cite": "297 N.C. 349", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570297 ], "year": 1979, "pin_cites": [ { "page": "357" } ], "opinion_index": 0, "case_paths": [ "/nc/297/0349-01" ] }, { "cite": "233 S.E. 2d 574", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "292 N.C. 357", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569762 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/nc/292/0357-01" ] }, { "cite": "60 L.Ed. 2d 657", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1979, "opinion_index": 0 }, { "cite": "441 U.S. 929", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1780096, 1780311, 1780273, 1779959, 1779866 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/us/441/0929-05", "/us/441/0929-02", "/us/441/0929-01", "/us/441/0929-04", "/us/441/0929-03" ] }, { "cite": "245 S.E. 2d 663", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1978, "pin_cites": [ { "page": "672" } ], "opinion_index": 0 }, { "cite": "295 N.C. 327", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8563082 ], "weight": 2, "year": 1978, "pin_cites": [ { "page": "342" } ], "opinion_index": 0, "case_paths": [ "/nc/295/0327-01" ] }, { "cite": "391 U.S. 123", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1767670 ], "weight": 3, "year": 1968, "opinion_index": 0, "case_paths": [ "/us/391/0123-01" ] }, { "cite": "141 S.E. 883", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1928, "opinion_index": 0 }, { "cite": "195 N.C. 327", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8629138 ], "year": 1928, "opinion_index": 0, "case_paths": [ "/nc/195/0327-01" ] }, { "cite": "69 S.E. 2d 313", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1952, "opinion_index": 0 }, { "cite": "235 N.C. 226", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8622634 ], "year": 1952, "opinion_index": 0, "case_paths": [ "/nc/235/0226-01" ] }, { "cite": "195 S.E. 2d 352", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1973, "opinion_index": 0 }, { "cite": "17 N.C. App. 664", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8556654 ], "year": 1973, "opinion_index": 0, "case_paths": [ "/nc-app/17/0664-01" ] }, { "cite": "201 S.E. 2d 100", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1973, "opinion_index": 0 }, { "cite": "20 N.C. App. 137", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8549981 ], "year": 1973, "opinion_index": 0, "case_paths": [ "/nc-app/20/0137-01" ] }, { "cite": "117 S.E. 793", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1923, "opinion_index": 0 }, { "cite": "185 N.C. 768", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8658169 ], "year": 1923, "opinion_index": 0, "case_paths": [ "/nc/185/0768-01" ] }, { "cite": "244 S.E. 2d 373", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "295 N.C. 147", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561881 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/nc/295/0147-01" ] }, { "cite": "157 S.E. 851", "category": "reporters:state_regional", "reporter": "S.E.", "weight": 4, "year": 1931, "pin_cites": [ { "page": "852" }, { "page": "852" } ], "opinion_index": 0 }, { "cite": "200 N.C. 539", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8624412 ], "weight": 4, "year": 1931, "pin_cites": [ { "page": "540-41" }, { "page": "541" } ], "opinion_index": 0, "case_paths": [ "/nc/200/0539-01" ] }, { "cite": "194 S.E. 2d 787", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1973, "pin_cites": [ { "page": "794" }, { "page": "794" } ], "opinion_index": 0 }, { "cite": "283 N.C. 57", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8557660 ], "weight": 4, "year": 1973, "pin_cites": [ { "page": "67" }, { "page": "67" } ], "opinion_index": 0, "case_paths": [ "/nc/283/0057-01" ] }, { "cite": "328 S.E. 2d 249", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "313 N.C. 266", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4723320 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc/313/0266-01" ] }, { "cite": "362 U.S. 917", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6177710, 6177582, 6177457, 6177203, 6177331, 6177852 ], "year": 1960, "opinion_index": 0, "case_paths": [ "/us/362/0657-05", "/us/362/0657-04", "/us/362/0657-03", "/us/362/0657-01", "/us/362/0657-02", "/us/362/0657-06" ] }, { "cite": "111 S.E. 2d 1", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1959, "opinion_index": 0 }, { "cite": "251 N.C. 177", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8624134 ], "year": 1959, "opinion_index": 0, "case_paths": [ "/nc/251/0177-01" ] }, { "cite": "277 S.E. 2d 376", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "303 N.C. 75", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571418 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/nc/303/0075-01" ] }, { "cite": "308 S.E. 2d 302", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "309 N.C. 570", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4763381 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/nc/309/0570-01" ] }, { "cite": "316 S.E. 2d 55", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "58" } ], "opinion_index": 0 }, { "cite": "311 N.C. 277", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4686635 ], "year": 1984, "pin_cites": [ { "page": "280-81" } ], "opinion_index": 0, "case_paths": [ "/nc/311/0277-01" ] } ], "analysis": { "cardinality": 1218, "char_count": 37349, "ocr_confidence": 0.811, "pagerank": { "raw": 1.150041236984705e-07, "percentile": 0.5811889032912729 }, "sha256": "230df1da7256958e7b7b125b710c3eb2ebebae048152cdaecb4abc3ff06d83f8", "simhash": "1:877c04a64711944e", "word_count": 6112 }, "last_updated": "2023-07-14T15:13:08.433452+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "STATE OF NORTH CAROLINA v. TONY MITCHELL SIDDEN and ANTHONY RAY BLANKENSHIP" ], "opinions": [ { "text": "BILLINGS, Justice.\nDefendants Blankenship and Sidden\nThe defendants jointly argue three assignments of error. Two of these assignments concern testimony by prosecution witnesses regarding Claude Johnson\u2019s reputation in the community, and the third assignment relates to testimony offered by SBI Agent Kenneth Sneed as to the reputation of George Torrealba, one of the defendants\u2019 alibi witnesses.\nThe defendants first argue that the trial court erred by permitting Earl Gambill to testify concerning Claude Johnson\u2019s reputation. The defendants object to Gambill\u2019s testimony on the ground that it was based upon personal opinion rather than a knowledge of Johnson\u2019s reputation.\nThe defendants correctly state the rule of law applicable to this issue. As this Court\u2019s recent decision in Holiday v. Cutchin, 311 N.C. 277, 280-81, 316 S.E. 2d 55, 58 (1984) makes clear:\n[W]hen character is only collaterally in issue, as it is when offered either to impeach or rehabilitate a witness, proof by witnesses other than the person whose character is in question may only be by evidence of reputation. State v. Taylor, 309 N.C. 570, 308 S.E. 2d 302 (1983); State v. Cox, 303 N.C. 75, 277 S.E. 2d 376 (1981); State v. Grundler, 251 N.C. 177, 111 S.E. 2d 1 (1959), cert. denied, 362 U.S. 917 (1960). Unlike proof of character when character is directly in issue, proof of character to impeach or rehabilitate may not be by opinion evidence or evidence of specific acts of the person whose character is in question. See 1 Brandis on North Carolina Evidence, \u00a7 113 at 419.20 (2d ed. 1982). Where character testimony is offered to prove another person\u2019s credibility as a witness, the testimony must be limited to that person\u2019s reputation.\nSee also State v. Peek, 313 N.C. 266, 328 S.E. 2d 249 (1985); State v. McEachern, 283 N.C. 57, 194 S.E. 2d 787 (1973); State v. Hicks, 200 N.C. 539, 157 S.E. 851 (1931).\nWith respect to the defendants\u2019 objections to Earl Gambill\u2019s testimony, we find that the record does not support their argument that Gambill was expressing a personal opinion about Claude Johnson\u2019s character. Gambill testified on direct examination that \u201cif anybody knows [Claude Johnson\u2019s reputation in the community], I should know it.\u201d He further testified that Johnson\u2019s general character and reputation in Hays was \u201cgood.\u201d It is true that during cross-examination by defendant Blankenship\u2019s attorney Gambill made statements to the effect that it was \u201cimmaterial\u201d to him what others said about Claude Johnson and that he didn\u2019t \u201chave to have nobody to give his character.\u201d When questioned by the trial judge about the basis for his testimony regarding Johnson\u2019s character, Gambill responded that it was based upon his \u201copinion.\u201d While taken in isolation this comment might seem to require the exclusion of Gambill\u2019s testimony as violative of the North Carolina rule prohibiting proof of character based upon personal opinion rather than reputation, we note the following testimony which the defendants did not quote in their briefs. The trial court also asked Gambill whether his testimony was \u201cbased in any way upon what you say you may have heard other people say?\u201d Gambill responded: \u201cI have never heard nobody say anything about him having a bad reputation. The only thing I have ever heard of Seb\u00f3n Johnson doing in my life is taking a little drink of beer or something, and just about anybody has done that. I ain\u2019t never known him to do anything out of the way to nobody.\u201d Furthermore, Gambill testified as follows during cross-examination by defendant Sidden\u2019s counsel:\nQ: You say you have never heard anybody discuss his general character and reputation at all?\nA: I\u2019ve heard people talking about him up there, but not\u2014 I\u2019ve never heard nobody give him no bad character.\nQ: Have you ever heard anybody give any good character either, have you?\nA: Oh, yes, quite a few.\nQ: Where did you hear them give good character references?\nA: I\u2019ve heard it up around there at my brother\u2019s store \u2014in the community up there.\nWe think that considering Gambill\u2019s testimony in its entirety, it is plain that Gambill was familiar with Claude Johnson\u2019s reputation in the community and that his testimony as to Johnson\u2019s character was based upon this reputation. We therefore hold that the trial judge correctly overruled defendants\u2019 objection to Gambill\u2019s testimony.\nBy this same assignment of error, the defendants attack the reputation testimony offered by prosecution witness Thurman Holloway. Mr. Holloway testified, in pertinent part, as follows:\nQ: Mr. Holloway, do you know Claude Junior Johnson, or Seb\u00f3n Johnson?\nA: Yes, I do.\nQ: How long have you known him?\nA: Well, I\u2019ve known him all of his life.\nQ: And do you know his general character and reputation in the community in which he\u2019s lived or worked?\nA: Yes.\nQ: What is it?\nA: Well, he worked for me quite a bit . . .\nMr. Gray: Move to strike.\nCOURT: Overruled.\nQ: Go ahead.\nA: And I found him dependable.\nMr. Gray: Move to strike.\nCOURT: Motion denied.\nQ: Go ahead, sir.\nA: And he\u2019s truthful.\nMr. Gray: Move to strike.\nCOURT: Motion denied.\nQ: Go ahead, sir.\nA: And that\u2019s the better part of it.\nMr. Gray: Object. Move to strike.\nMr. Whitley: Objection. Move to strike.\nCOURT: I didn\u2019t understand the last statement.\nWITNESS: I said that was the better part of it. He\u2019s truthful and honest.\nCOURT: Motion denied.\nMr. ASHBURN: No further questions.\nThe defendants here argue that the trial judge erred in overruling their objections to this. testimony because the proper method of qualifying character witnesses proffered to give reputation evidence was not followed. They argue that Holloway should not have been permitted to specifically describe Johnson\u2019s character traits without first stating categorically what Johnson\u2019s reputation was.\nWe acknowledge that the defendants\u2019 argument is technically correct. Established case law provides that\nwhen an impeaching or sustaining character witness is called, he should first be asked whether he knows the general reputation and character of the witness or party about which he proposes to testify. This is a preliminary qualifying question which should be answered yes or no. If the witness answer it in the negative, he should be stood aside without further examination. If he reply in the affirmative, thus qualifying himself to speak on the subject of general reputation and character, counsel may then ask him to state what it is. This he may do categorically, i.e., simply saying that it is good or bad, without more, or he may, of his own volition, but without suggestion from counsel offering the witness, amplify or qualify his testimony, by adding that it is good for certain virtues or bad for certain vices.\nState v. Hicks, 200 N.C. 539, 540-41, 157 S.E. 851, 852 (1931). See also State v. McEachern, 283 N.C. 57, 194 S.E. 2d 787 (1973); State v. Abernathy, 295 N.C. 147, 244 S.E. 2d 373 (1978).\nWhile we agree with defendants that Holloway should have been required to state that Johnson\u2019s reputation was \u201cgood\u201d before proceeding to enumerate the character traits which accounted for Johnson\u2019s good reputation, we are convinced that no reversible error was here committed by the failure to follow this procedure. It is clear from Holloway\u2019s assessment of Johnson\u2019s character that he thought Johnson\u2019s reputation in the community was \u201cgood.\u201d Furthermore, we note that no less than 13 witnesses testified as to Johnson\u2019s \u201cgood\u201d reputation in the Hays Community. The jury therefore heard time and again testimony of the same import as that offered by Thurman Holloway from witnesses who were, in fact, properly examined in accordance with the Hicks rule. We therefore hold that despite technical merit in defendants\u2019 contention, this assignment of error is overruled.\nThe defendants\u2019 next argument concerns the testimony offered by Thelma Garwood and Herbert Gambill as to Claude Johnson\u2019s good character. The basis of this assignment of error is that the trial judge erred in denying motions to strike their testimony because \u201cneither had sufficient knowledge of Johnson\u2019s present reputation upon which to rest an opinion.\u201d\nIn State v. McEachern, 283 N.C. 57, 67, 194 S.E. 2d 787, 794 (1973), this Court held that before a witness may testify as to another person\u2019s reputation, it must be demonstrated that \u201cthe testifying witness [has] sufficient contact with that community or society to qualify him as knowing the general reputation of the person sought to be attacked or supported.\u201d\nThelma Garwood\u2019s testimony on direct examination reveals that she was born and raised in Wilkes County and that she has known Claude Johnson \u201calmost all of [her] life.\u201d She further stated that she knew \u201cthe general character and reputation of Claude Junior Johnson\u201d in the Hays Community and that it was \u201cvery good.\u201d On cross-examination, defense counsel elicited from Mrs. Garwood that she had lived in Winston-Salem since 1934. She testified, however, that she \u201cstill [owns] property up there\u201d and that she \u201c[goes] back there quite often.\u201d Significantly, she also stated that on her frequent visits to Wilkes County she always asks about Johnson. In our estimation, this testimony established that Mrs. Garwood had \u201csufficient contact\u201d with the Hays Community to afford her \u201can adequate basis upon which to form [an] opinion\u201d concerning Johnson\u2019s general reputation. McEachern, 283 N.C. at 67, 194 S.E. 2d at 794.\nThe defendants also object to the testimony of Herbert Gambill on the basis that Gambill\u2019s contacts with Wilkes County were too remote in time to permit his testimony regarding Claude Johnson\u2019s present reputation in that area. Mr. Gambill was asked:\nQ: Do you know the general character and reputation of Claude Junior Johnson, or Seb\u00f3n, in the community where he has either lived or worked?\nA: Well, I do for the times that I have lived there. I\u2019ve been away quite a while.\nQ: And, what was it?\nA: It was good.\n(Emphasis added.)\nNo objection was made, and the witness was cross-examined.\nWhen on cross-examination Herbert Gambill indicated he had not lived in the Hays Community since 1961, the defendants moved to strike the character evidence given on direct. However, we rule that defendants waived any error in the admission of Gambill\u2019s reputation testimony by their failure to object on direct examination when it became clear that Gambill\u2019s testimony was not based on an assessment of Johnson\u2019s present reputation.\nBefore stating any opinion regarding Johnson\u2019s reputation, Gambill said that it had been quite a while since he had lived in the community. The defendants were required to object as soon as the witness\u2019s inability to testify as to Johnson\u2019s present reputation became known. See 1 Brandis on North Carolina Evidence \u00a7 27 (1982) and cases cited therein. By failing to do so, defendants waived appellate review of the admissibility of this evidence.\nThe defendants\u2019 third assignment of error is that the trial judge erred by allowing SBI Agent Kenneth Sneed, on rebuttal, to testify that defense witness George Torrealba was known as \u201ca large dealer in controlled substances, including marijuana and cocaine.\u201d The defendants object to this testimony on two grounds: (1) that the State failed to present evidence that Sneed had sufficient contacts with Wagram, North Carolina, the community in which Torrealba lived, to qualify him as knowing the general reputation of Torrealba in that community; and (2) that through the admission of this testimony, the State was allowed to introduce extrinsic evidence of specific bad acts, i.e., drug dealing, by \u201cdressing it up as reputation evidence.\u201d\nAs to the defendants\u2019 first objection to Sneed\u2019s testimony, our review of the transcript convinces us that the witness was qualified under the McEackern standard to offer testimony regarding Torrealba\u2019s reputation in Wagram. Sneed explained on direct examination that he was a Special Agent with the North Carolina State Bureau of Investigation. He stated that he was assigned to Richmond and Scotland Counties. Wagram is located in Scotland County. Sneed further testified that he has known George Torrealba for \u201capproximately seventeen or eighteen years\u201d and that he was familiar with \u201cthe general character and reputation of George Torrealba in the community in which he lives.\u201d While the record is silent as to whether Sneed himself lived in Wagram, it is not essential that the witness have acquired knowledge of a person\u2019s reputation in the course of his own residence in the community. We have held that a stranger who has investigated a person\u2019s reputation in a recognized community or group may testify to the result of the investigation. State v. Steen, 185 N.C. 768, 117 S.E. 793 (1923). See also State v. Cole, 20 N.C. App. 137, 201 S.E. 2d 100 (1973); State v. Moles, 17 N.C. App. 664, 195 S.E. 2d 352 (1973).\nWe likewise find no merit in the defendants\u2019 argument that the trial court erred in allowing Agent Sneed spontaneously to explain his conclusion that Torrealba had a bad reputation because \u201che is known as a large [drug] dealer.\u201d The Hicks rule, which was discussed previously in this opinion, permits the impeaching witness, after he has given a categorical answer regarding reputation, of his own volition to describe in what respect a person\u2019s reputation is good or bad. Hicks, 200 N.C. at 541, 157 S.E. at 852. This is precisely what happened in the instant case; Sneed stated that Torrealba had a bad reputation and then, without prompting by the prosecutor, offered testimony of his reputation for dealing in controlled substances. Sneed\u2019s testimony describing Torrealba\u2019s bad reputation is similar to reputation evidence approved by this Court in State v. Mills, 235 N.C. 226, 69 S.E. 2d 313 (1952) and State v. McLawhorn, 195 N.C. 327, 141 S.E. 883 (1928). In those cases, no error was found in the admission of volunteered testimony by character witnesses that another person\u2019s reputation was bad for making and selling whiskey.\nWe hold that the trial judge correctly permitted Agent Sneed to testify that George Torrealba had a bad reputation in Wagram and that he was known as \u201ca large dealer in controlled substances.\u201d\nDefendant Sidden\nWe next consider the defendant Sidden\u2019s argument that he was denied a fair trial by the State\u2019s failure during pretrial discovery to attribute the statement \u201cLet\u2019s go Blondie, I think we\u2019ve got him now\u201d to the defendant Blankenship rather than to the defendant Sidden.\nIt is difficult to determine from the defendant Sidden\u2019s brief the precise basis of his argument on this point. It appears, however, that defendant Sidden filed a post-verdict motion for appropriate relief in which he argued that if in its compliance with the discovery order the State had attributed the statement to the defendant Blankenship, the defendant Sidden would have been entitled to severance under N.C.G.S. \u00a7 15A-927(c)(l). That statute requires the prosecutor to select one of three courses of action (one of which is to try the defendants separately) \u201c[w]hen a defendant objects to joinder of charges against two or more defendants for trial because an out-of-court statement of a codefendant makes reference to him but is not admissible against him.\" (Emphasis added.) Judge Long denied the defendant Sidden\u2019s motion for appropriate relief, ruling that \u201ceven if the State had been able to identify who may have made the statement, and if it had been identified as a statement of the defendant Blankenship, that the defense of either defendant would not have been entitled to sanitize that statement, it being a part of the res gestae and not a part of any out of court confession or declaration against interest which tends to implicate a co-defendant.\u201d\nWe note initially that in his pretrial statement Claude Johnson did not specifically attribute the statement to either defendant. Johnson simply stated that during the scuffle which took place outside the tool shed on the evening of 21 July 1982, he heard someone say, \u201cLet\u2019s go Blondie, I think we\u2019ve got him now.\u201d In that same statement, however, Johnson referred to the defendant Blankenship as \u201cBlondie.\u201d It was therefore reasonable for both defense counsel and the State to assume at that point that defendant Sidden was the individual who made the statement. At trial, however, Johnson testified that defendant Sidden was known by those in the Hays Community as \u201cBlondie.\u201d Although Johnson still did not specifically attribute the statement to either defendant, it then appeared, at least inferentially, that defendant Blankenship had been the one who shouted this statement outside Johnson\u2019s window on the evening of 21 July.\nBe that as it may, we agree with Judge Long that defendant\u2019s argument is without merit because the statement would have been admissible against the defendant Sidden even had he been tried separately from defendant Blankenship. The provisions of N.C.G.S. \u00a7 15A-927 are intended to protect a defendant\u2019s sixth amendment right of confrontation and cross-examination which, because of the privilege against self-incrimination, may be lost when a co-defendant\u2019s statement, inadmissible against but implicating the defendant, is admitted into evidence against the co-defendant at a joint trial. See Bruton v. United States, 391 U.S. 123, 20 L.Ed. 2d 476 (1968). These considerations do not apply to the instant case, however, as the statement would have been admissible at the defendant Sidden\u2019s trial if he had been tried separately. Johnson\u2019s statement that he heard one of the perpetrators of the crime say \u201cLet\u2019s go Blondie, I think we\u2019ve got him now\u201d is not hearsay because it does not contain an assertion by a person other than the testifying witness, Johnson, which was offered to prove the truth of the matter asserted. See 1 Brandis on North Carolina Evidence \u00a7 138 (1982) and cases cited therein. Rather, Johnson\u2019s statement is his description of the \u201coral statements attending and connected with the transaction in question,\u201d id. at \u00a7 158, and thus is a part of the res gestae.\nEven if we construed the statement to be hearsay because it was an assertion that the name of the person accompanying the declarant was Blondie, this Court has held that a hearsay statement which is part of the res gestae is admissible as an exception to the hearsay rule. In State v. Connley, 295 N.C. 327, 245 S.E. 2d 663 (1978), judgment vacated on other grounds, 441 U.S. 929, 60 L.Ed. 2d 657 (1979) we quoted with approval the following statement of the concept of res gestae from Underhill\u2019s Criminal Evidence \u00a7 266, p. 664 (5th ed. 1956):\nCircumstances constituting a criminal transaction which is being investigated by the jury, and which are so interwoven with other circumstances and with the principal facts which are at issue that they cannot be very well separated from the principal facts without depriving the jury of proof which is necessary for it to have in order to reach a direct conclusion on the evidence, may be regarded as res gestae.\nThese facts include declarations which grow out of the main fact, shed light upon it, and which are unpremeditated, spontaneous, and made at a time so near, either prior or subsequent to the main act, as to exclude the idea of deliberation or fabrication. A statement made as part of res gestae does not narrate a past event, but it is the event speaking through the person and therefore is not excluded as hearsay, and precludes the idea of design.\nConnley, 295 N.C. at 342, 245 S.E. 2d at 672.\nThe statement therefore would have been admissible against both defendant Sidden and defendant Blankenship had they been tried separately, and the trial judge correctly denied defendant\u2019s motion for appropriate relief on the stated basis.\nDefendant Sidden raises several additional issues in which he alleges error in various evidentiary rulings and instructions given by the trial judge. He argues that the testimony offered by prosecution witnesses Doreatha Walker and Johnny Wiles regarding Claude Johnson\u2019s reputation was improperly received. The basis of the defendant\u2019s objection to Doreatha Walker\u2019s testimony is that the prosecutor improperly invited her to amplify her statement that Johnson\u2019s reputation in the Hays Community was \u201cgood.\u201d We have reviewed the prosecutor\u2019s direct examination of Mrs. Walker and we find no support in the transcript for the defendant\u2019s argument.\nDefendant Sidden\u2019s objection to Johnny Wiles\u2019 testimony regarding Claude Johnson\u2019s good reputation on the ground that it was based upon personal opinion rather than reputation is also without merit. The defendant\u2019s challenge is directed to the following portion of Wiles\u2019 testimony on direct examination:\nQ: How long have you known Claude Junior Johnson?\nA: I\u2019ve known him, I guess, for 25 years.\nQ: Do you know his general character and reputation in the community, or in the community where he\u2019s worked?\nA: I knew him myself, and I never heard anything bad about Seb\u00f3n.\nMr. Gray: Move to strike.\nCOURT: On what grounds?\nMr. Gray: It\u2019s not responsive, and it calls for a conclusion.\nCOURT: Overruled. It appears to be relevant.\nQ: The question, and listen to my question, do you know the general character and reputation of Claude Junior Johnson in the community there where he lived?\nA: Yeah, it was good.\nThe district attorney was careful to elicit from the witness the categorical conclusion as to Johnson\u2019s reputation required by Hicks, 200 N.C. 539, 157 S.E. 851. Wiles\u2019 testimony respecting Johnson\u2019s reputation was therefore unobjectionable. Furthermore, testimony by a witness in a position to have heard discussions of a person\u2019s reputation that he has never heard anything bad about the person is testimony of good reputation and is admissible. See 1 Brandis on North Carolina Evidence \u00a7 110 (1982). This assignment is dismissed.\nDefendant Sidden next argues that the trial court erred in permitting the State to offer rebuttal evidence relating to Johnson\u2019s good reputation in the community. Again, we find no error. The defense attacked Claude Johnson\u2019s character by introducing evidence which tended to show that Johnson had a reputation in Hays for being a drunkard. Russell Walker testified that he had seen Johnson drunk on several occasions and that he appeared drunk on 21 July 1982. The State is always entitled to offer rebuttal evidence to impeach defendant\u2019s witnesses or to explain, modify, or contradict defendant\u2019s evidence. State v. Stanfield, 292 N.C. 357, 233 S.E. 2d 574 (1977). See also N.C.G.S. \u00a7 15A-1226 (1983) (\u201cEach party has the right to introduce rebuttal evidence concerning matters elicited in the evidence in chief of another party.\u201d). The trial judge therefore did not err in allowing the State to present, during rebuttal, additional evidence of Johnson\u2019s good character.\nThe defendant Sidden\u2019s next assignment of error is directed to the testimony of Vernon Holloway. Holloway was called by the State during rebuttal to offer impeaching testimony as to the reputation of Russell Walker, the defense witness who testified that Claude Johnson was often drunk and appeared inebriated on the day of the murder. The defendant\u2019s objection seems to be that Holloway was allowed to testify that Walker \u201chas quite a bit of drinking problems and he is not real truthful\u201d without being required to state categorically that Walker\u2019s reputation was \u201cbad.\u201d\nWe have earlier engaged in a lengthy discussion of the Hicks rule which requires that a character witness first proffer a categorical answer regarding an individual\u2019s reputation before the witness may proceed to volunteer the specifics of that individual\u2019s \u201cgood\u201d or \u201cbad\u201d reputation. Admittedly, the district attorney did not follow this rule when he questioned Vernon Holloway regarding Russell Walker\u2019s reputation. We find, however, that no reversible error was committed by his failure to do so. While it is true that Holloway did not proffer the magical language that Walker\u2019s reputation was \u201cbad,\u201d he was clearly familiar with Walker\u2019s reputation, and his description of it leads to no conclusion but that he thought it was \u201cbad.\u201d Furthermore, evidence of Russell Walker\u2019s drinking habits also came in through the testimony of another witness. Arlena Sidden testified without objection that Walker was drunk on the day of the murder. Under these circumstances, we hold that the failure of the district attorney to question Holloway in strict conformity with the Hicks rule does not constitute prejudicial error.\nDefendant Sidden\u2019s next assignment of error requires little discussion. Sidden contends that the evidence adduced at trial was insufficient to support a theory that he acted in concert with defendant Blankenship in committing the crime charged, and therefore the trial judge erred in instructing the jury that they could convict Sidden of first degree murder on that theory. We have held that\n[i]t is not . . . necessary for a defendant to do any particular act constituting at least part of a crime in order to be convicted of that crime under the concerted action principle so long as he is present at the scene of the crime and the evidence is sufficient to show he is acting together with another who does the acts necessary to constitute the crime pursuant to a common plan or purpose to commit the crime.\nState v. Joyner, 297 N.C. 349, 357, 255 S.E. 2d 390, 395 (1979). Suffice it to say that Claude Johnson\u2019s testimony placed defendant Sidden at the scene of the crime on the night of 21 July 1982, and his testimony further established that Sidden was \u201cacting together\u201d with Blankenship \u201cpursuant to a common plan\u201d to murder Gary Sidden.\nFinally, we address defendant\u2019s contention that the trial court erred in failing to instruct the jury that not guilty was a possible verdict when he responded to the jury\u2019s request \u201cto hear about first and second degree [murder] again.\u201d This argument is totally unsupported by the record. Before proceeding to define again the elements of first and second degree murder, the judge explained as follows:\nMembers of the jury, the Defendants have each been accused of First Degree Murder. Under the law, and the evidence in this case, it is your duty to return one of the following verdicts as to each Defendant: either guilty of First Degree Murder, or guilty of Second Degree Murder, or not guilty.\n(Emphasis added.)\nWe have examined carefully defendant Sidden\u2019s remaining assignments of error. We have not undertaken a written evaluation of each of them because they either lack a factual basis of support in the record or are utterly without merit in law.\nWe therefore hold that defendants Sidden and Blankenship each received a fair trial, free of prejudicial error.\nNo error.\n. The new North Carolina Rules of Evidence, which apply to actions and proceedings commenced after 1 July 1984, did not govern the trial of these defendants which began on 2 April 1984. 1983 N.C. Sess. Laws Ch. 701, \u00a7 3. We note, however, that Rule 405 effects a change in the permissible methods of proving character. Rule 405(a) provides that proof of character \u201cmay be made by testimony as to reputation or by testimony in the form of an opinion.\u201d N.C. R. Evid. 405(a). See also N.C. R. Evid. 608(a).\n. But see N.C. R. Evid. 404, 405 and 608 (effective 1 July 1984).\n. Again, we refer the reader to the North Carolina Rules of Evidence which were inapplicable to the trial of this action. Rule 608 provides, in part, that:\n(a) Opinion and reputation evidence of character. \u2014 The credibility of a witness may be attacked or supported by evidence in the form of reputation or opinion as provided in Rule 405(a), but subject to these limitations: (1) the evidence may refer only to character for truthfulness or untruthfulness, and (2) evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise.\n(b) Specific instances of conduct. \u2014 Specific instances of the conduct of a witness, for the purpose of attacking or supporting his credibility, other than conviction of crime as provided in Rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning his character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified.\nN.C. R. Evid. 608.", "type": "majority", "author": "BILLINGS, Justice." } ], "attorneys": [ "Lacy H. Thornburg, Attorney General, by Dennis P. Myers, Assistant Attorney General, for the State.", "William C. Gray, Jr., for defendant Sidden.", "Adam Stein, Appellate Defender, by Malcolm Ray Hunter, Jr., First Assistant Appellate Defender, for defendant Blankenship." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. TONY MITCHELL SIDDEN and ANTHONY RAY BLANKENSHIP\nNo. 487A84\n(Filed 18 February 1986)\n1. Criminal Law \u00a7 89.1\u2014 character witness \u2014 knowledge or reputation\nThe trial court in a first degree murder case did not err in permitting a witness to testify concerning an eyewitness\u2019s reputation, since the witness was familiar with the eyewitness\u2019s reputation in the community, and his testimony as to the eyewitness\u2019s character was based upon this reputation rather than upon the witness\u2019s opinion.\n2. Criminal Law \u00a7 89.1\u2014 character witness \u2014 statement of general reputation required first\nThough a witness in a first degree murder case should have been required to state that an eyewitness\u2019s reputation was \u201cgood\u201d before proceeding to enumerate the character traits which accounted for the eyewitness\u2019s good reputation, no reversible error was committed by failure to follow this procedure.\n3. Criminal Law \u00a7 89.1\u2014 character witness \u2014sufficiency of knowledge of present reputation\nThere was no merit to defendants\u2019 contention that the trial court erred in denying motions to strike testimony of two witnesses concerning an eyewitness\u2019s good character because neither witness had sufficient knowledge of the eyewitness\u2019s present reputation upon which to rest an opinion, since testimony revealed that one witness did have sufficient contact with the community to afford her an adequate basis upon which to form an opinion, and defendants waived any error in the admission of the second witness\u2019s testimony by their failure to object on direct examination when it became clear that his testimony was not based on an assessment of the eyewitness\u2019s present reputation.\n4. Criminal Law \u00a7 89.1\u2014 character witness \u2014statement about general reputation \u2014 testimony as to specific incidents of misconduct volunteered\nThe trial court did not err in allowing an SBI agent to testify that one of the defense witnesses was known as \u201ca large dealer in controlled substances, including marijuana and cocaine,\u201d since the agent was assigned to the county where the defense witness lived; the agent testified that he had known the defense witness for 17 or 18 years and that he was familiar with the general character and reputation of the defense witness in the community in which he lived; and the agent could, after giving a categorical answer regarding reputation, of his own volition and without prompting from the prosecutor describe in what respect the defense witness\u2019s reputation was bad.\n5. Criminal Law 8 79.1\u2014 statement of codefendant \u2014 admissibility as part of res gestae\nThere was no merit to one defendant\u2019s argument that he was denied a fair trial by the State\u2019s failure during pretrial discovery to attribute to the other defendant a statement made at the crime scene because, had the statement been attributed to the other defendant, the first defendant would have been entitled to severance, since the statement in question would be admissible in the trial of either defendant as part of the res gestae. N.C.G.S. \u00a7 15A-927(c)(l).\n6. Criminal Law 8 89.1\u2014 testimony about witness\u2019s reputation\nTestimony by a witness in a position to have heard discussions of a person\u2019s reputation that he has never heard anything bad about the person is testimony of good reputation and is admissible.\n7. Criminal Law 8 89.1\u2014 character witness \u2014 failure to state general reputation first \u2014 no prejudice\nThough it was error to allow a character witness to testify that another witness had \u201cdrinking problems\u201d and was \u201cnot real truthful\u201d without requiring him first to state categorically that the witness\u2019s reputation was \u201cbad,\u201d such error was not reversible where it was clear that the character witness was familiar with the witness\u2019s reputation and his description of it leads to no conclusion but that he thought it was \u201cbad\u201d; furthermore, evidence of the witness\u2019s drinking habits came in through testimony of another witness.\nTHE defendants were indicted on 15 November 1982 by the WILKES County Grand Jury for first degree murder. Venue for the trial was changed to Yadkin County and the defendants were tried jointly before Judge James M. Long and a jury at the 2 April 1984 Criminal Session of YADKIN County Superior Court. Each defendant was convicted of first degree murder. Following a sentencing hearing pursuant to N.C.G.S. \u00a7 15A-2000(b), the trial judge, upon the jury\u2019s recommendation, sentenced the defendants to life imprisonment. The defendants appealed to this Court as a matter of right pursuant to N.C.G.S. \u00a7 7A-27(a).\nThe State\u2019s evidence tended to show that the deceased, Gary Sidden, was murdered a few yards from his mobile home in the community of Hays, Wilkes County, North Carolina sometime between 10:00 p.m. and midnight on the evening of 21 July 1982. Dr. Modesto Scharyj, the pathologist who performed an autopsy upon Sidden\u2019s body on 22 July, stated that his examination revealed that the deceased had received two shotgun wounds, a contact wound to the neck and pellet wounds to the back from a distant shot. Dr. Scharyj further stated that either wound would have caused death within one minute.\nThe State\u2019s principal witness was Claude Junior Johnson. Johnson lived in a tool shed on Gary Sidden\u2019s property about fifty feet from Sidden\u2019s mobile home. Johnson had been working at Sidden\u2019s produce stand for four months prior to Sidden\u2019s death. Johnson received no pay; in exchange for his work he was given free room and board, cigarettes and an occasional beer.\nJohnson testified that on 21 July 1982 he retired for the evening at approximately 10:00 p.m. He stated that shortly after he went to bed in the tool shed he was awakened by what sounded like a shotgun blast. The area around the tool shed was well illuminated by several outdoor lights, but when Johnson first looked out the window he could not see anyone. About three or four minutes later, however, he saw defendant Blankenship run out of Gary Sidden\u2019s trailer holding what appeared to be a shotgun. A moment later Gary Sidden and defendant Tony Sidden ran out of the trailer. Johnson testified that he heard Gary Sid-den begging for his life. Defendant Tony Sidden and Gary Sidden then wrestled on the ground next to the trailer for a few minutes. Gary eventually broke free and began to run toward the shed. Johnson said that defendant Blankenship then jerked up his gun and shot at Gary Sidden. For the next three to five minutes, the three men were out of Johnson\u2019s view. Johnson soon heard a third gunshot, and then he heard a voice say, \u201cLet\u2019s go, Blondie. I think we\u2019ve got him now.\u201d Johnson testified that Tony Sidden used to be called \u201cBlondie.\u201d\nThe next morning Johnson reported to Ricky Sidden and Phil Allen, who were selling produce at Gary Sidden\u2019s stand, that Gary had been murdered the night before. Johnson testified that he waited until morning to tell anyone about the shooting because he was so frightened by what he had seen and heard that he hid under a rocker in the tool shed throughout the night.\nThe defendants introduced alibi evidence tending to show that they were not in Wilkes County on the night of 21 July 1982. Norma Jean Alexander, George Torrealba, Renee Torrealba, Charles Smith, Jean Ockert and Regina Hudson testified that the defendants were with them at a party in Wagram, North Carolina on the evening of 21 July 1982 through the early morning hours of the next day. Defense witnesses estimated that it is approximately 200 miles from the Hays Community in Wilkes County to Wagram in Scotland County.\nThe defendant Blankenship testified in his own behalf. Blankenship stated that he and the defendant Tony Sidden, who was married to Blankenship\u2019s mother, left Wilkes County at about 7:00 p.m. on 20 July to go on vacation. They traveled to Wagram to meet Blankenship\u2019s mother and arrived at about 11:00 p.m. Blankenship testified that he and his family stayed with friends in Wagram for several days. Blankenship recalled seeing a news story while watching television there, during which Wilkes County Sheriff Kyle Gentry announced that murder warrants had been issued for Blankenship and Sidden. Blankenship, who was fourteen years old at the time of the murder, testified that he was frightened and that he convinced Tony Sidden not to return to Wilkes County. Thereafter, the defendants traveled to several states and finally settled in Kansas under assumed names. Blankenship and Sidden voluntarily returned to Wilkes County and surrendered to authorities on 11 September 1983.\nLacy H. Thornburg, Attorney General, by Dennis P. Myers, Assistant Attorney General, for the State.\nWilliam C. Gray, Jr., for defendant Sidden.\nAdam Stein, Appellate Defender, by Malcolm Ray Hunter, Jr., First Assistant Appellate Defender, for defendant Blankenship." }, "file_name": "0539-01", "first_page_order": 567, "last_page_order": 584 }