Court of Appeals of North Carolina, Opinion
STATE OF NORTH CAROLINA v. RONNIE LEE
(Filed 3 October 2000)
against interest--accomplice's self-inculpatory
statements--statements implicating defendant already admitted
The trial court did not err in a first-degree murder case by
allowing into evidence under N.C.G.S. § 8C-1, Rule 804(b)(3) a
nontestifying accomplice's statements against the accomplice's penal
interest, and statements both against the accomplice's penal
interest and inculpating defendant, because: (1) testimony of only
self-inculpatory statements by the accomplice are classic statements
against interest that fall within a firmly-rooted hearsay exception;
(2) even assuming the testimony of both the accomplice's self-inculpatory
statements and statements that implicated defendant was error, such
error was not prejudicial when the State presented overwhelming
evidence that defendant committed the murder and that the evidence
was properly admitted through other witnesses; and (3) collateral
remarks inculpating defendant are not required to be redacted from
an out-of-court statement that also contains self-inculpating
remarks in order to admit the statement under N.C.G.S. § 8C-1, Rule
offered for truth of matter asserted
The trial court did not err in a first-degree murder case by
admitting various statements of the victim inquiring why the agent
for an insurance company needed health information for a cancer
insurance policy, and inquiring about the value of the policy once
the victim found out that it was a life insurance policy, because:
(1) the statements were offered to establish that the victim's
husband had submitted the victim's life insurance application
without her knowledge; and (2) the statements were not offered for
the truth of the matters asserted.
of mind exception
Even though the victim's statements contained descriptions of
factual events, the trial court did not err in a first-degree murder
case by admitting her statements under N.C.G.S. § 8C- 1, Rule 803(3)
that the victim's husband took out a life insurance policy without
her knowledge, that her husband was not the man she married and had
been acting differently, and that she was afraid she would not wake
up in the morning since her husband slept with a gun underneath his
pillow, because: (1) the statements were admissible to show the
victim's state of mind; and (2) it was not necessary for the victim
to state explicitly to each witness that she was afraid as long as
the scope of the conversation related directly to her existing state
of mind and emotional condition.
preserved for review--objectionable questions
The trial court did not commit prejudicial error in a
first-degree murder case by sustaining the State's objections to
various questions during defendant's cross-examination of a
detective, because: (1) the record fails to demonstrate what the
detective's answers would have been had he been permitted to respond
to defendant's questions; and (2) the questions were objectionable
based on the fact that they were repetitive, argumentative, or
called for speculation and conjecture.
The trial court did not abuse its discretion in a first-degree
murder case by sustaining theState's objections to v arious
questions put to defendant on direct examination on the grounds that
the questions were leading, because: (1) defendant had an
opportunity to deny the charges against him; and (2) the questions
matter--no prejudicial error
The trial court did not commit prejudicial error in a
first-degree murder case even though it allowed the State to
question defendant during cross-examination on a collateral matter
regarding three photographs of a woman found in defendant's cell to
contradict defendant's statement that he holds nothing secret from
his wife, because: (1) the subject was collateral to the issues
before the jury and any error was thus unlikely to have impacted the
outcome of the trial; (2) the inquiry by the State was extremely
brief and was terminated by a sustained objection and an instruction
to disregard the question; and (3) defendant had already testified
that his wife had filed for divorce, significantly decreasing the
potential for prejudice resulting from any implication of
defendant's interest in another woman.
of prior insurance fraud--probative of truthfulness
The trial court did not abuse its discretion in a first-degree
murder case by allowing the State to question defendant regarding
allegations that his brother and his parents had committed insurance
fraud, because: (1) the possibility that defendant was aware of, and
therefore conspired in, an insurance fraud scam undertaken by his
brother and parents is arguably probative of defendant's
truthfulness under N.C.G.S. § 8C-1, Rule 608(b); and (2) defendant
failed to show an abuse of discretion.
Appeal by defendant from judgment
entered 3 September 1998 by Judge C. Preston Cornelius in Guilford
County Criminal Superior Court. Heard in the Court of Appeals 15
Michael F. Easley,
Attorney General, by James C. Gulick, Special Deputy Attorney
General, for the State.
W. David Lloyd and John B. Hatfield,
Jr., for defendant- appellant.
Patricia Kimble (Patricia) was found dead in her home on 9
October 1995. An autopsy determined the cause of death was a gunshot
wound to the side of her head. Patricia's body and the area of the
house in which she was found had been burned. Investigators
concluded the fire had been caused by arson.
Defendant is the brother of Patricia's husband, Ted Kimble
(Ted). At trial, the State espoused the theory that Ted haddecided
to kill Patricia in order to collect the proceeds from her life
insurance. The State further contended that Ted had recruited
defendant to murder Patricia. The jury found defendant guilty of
first-degree murder, conspiracy to commit murder, and first-degree
first asserts the trial court erroneously allowed in evidence
statements by Ted, a co-defendant in the crime who was tried
separately. Defendant asserts the admission of these statements
violated both North Carolina law, as well as defendant's Sixth
Amendment right to confront and cross-examine an adverse witness.
Defendant's argument is without merit.
During defendant's trial, Ted invoked his Fifth Amendment
privilege not to testify. Statements Ted made were then offered in
evidence through the testimony of two witnesses, both of whom had
been involved with Ted in a theft ring. All of the statements
implicated Ted in the murder; some of the statements also implicated
defendant in the murder. After conducting a voir dire hearing,
the trial court admitted the statements pursuant to N.C.G.S. § 8C-1,
Rule 804(b)(3) (1999) (statements against interest) (Rule 804(b)(3))
and N.C.G.S. § 8C-1, Rule 801(d)(E) (1999) (statement by
co-conspirator in furtherance of conspiracy).
The first of these two witnesses, Robert Nicholes (Nicholes),
testified that Ted told Nicholes the following: (1) Ted had been
involved in Patricia's death but had not killed her; (2) Ted had
attempted to take out a life insurance policy on Patricia and had
forged her signature on the application; and (3) Ted was angry
because the life insurance policy was not valid because Patricia had
not taken a required physical examination. Notably, Nicholes did not
testify that Ted had stated that defendant had been involved in the
murder; Nicholes testified only to self-inculpatory statements made
The second of these two witnesses, Patrick Pardee (Pardee),
testified that Ted had told him the following: (1) defendant had
gone to Ted's house, had shot Patricia in the head with Ted's
pistol, and had then poured gasoline on her body and set it afire;
(2) Ted had taken a second job to establish an alibi for himself;
(3) the murder was committed to collect life insurance proceeds; (4)
Ted realized he would be unable to collect on the life insurance
policy because it was not in effect; and (5) Ted believed the police
were closing in on him.
The State properly concedes “there is little basis for arguing
that the statements were made during the course and in furtherance
of the defendant's conspiracy with Ted to murder Patricia for her
life insurance” as the conspiracy had ended. The issue on appeal,
then, is limited to whether the statements were properly admitted
under Rule 804(b)(3).
An out-of-court statement
by an unavailable witness may be admissible if the statement
satisfies the definition of a “statement against interest,” which is
defined by Rule 804(b)(3) as
[a] statement which was at the time of its making so far
contrary to the declarant's pecuniary or proprietary interest, or so
far tended to subject him to civil or criminal liability . . . that
a reasonable man in his position would not have made the statement
unless he believed it to be true. A statement tending to expose the
declarant to criminal liability is not admissible in a criminal case
unless corroborating circumstances clearly indicate the
trustworthiness of the statement.
G.S. § 8C-1, Rule 804(b)(3).
Our Supreme Court has held that Rule 804(b)(3) requires a two-
pronged analysis. See State v. Wilson,
322 N.C. 117, 134, 367 S.E.2d 589, 599 (1988). First, the statement
must be “deemed to be against the declarant's penal interest.”
Id. Second, “the
trial judge must be satisfied that corroborating circumstances
clearly indicate the trustworthiness of the statement if it exposes
the declarant to criminal liability.” Id.
The corroborating circumstances required by the second prong may
include other evidence presented at trial. See id.
(corroborating circumstances properly included fact that statement
by unavailable witness accurately identified location of stolen
However, the analysis required in the case at bar is further
complicated by a second hurdle. In addition to satisfying Rule
804(b)(3), the evidence also must satisfy the requirements of the
Confrontation Clause of the Sixth Amendment. U.S. Const. amend. VI.
In the recent case of Lilly v. Virginia, 527 U.S. 116, 144 L.
Ed. 2d 117 (1999), the United States Supreme Court considered the
issue of whether a criminal defendant's Sixth Amendment rights are
violated by admitting in evidence a non-testifying accomplice's
statement which contains both statements against the accomplice's
penal interest and statements inculpating the defendant.
The four-Justice plurality in Lilly began by setting
forth the fundamental principle that when the government seeks to
offer an unavailable declarant's out-of-court statements against a
criminaldefendant, the court must decide whether the Confrontation
Clause permits the government to deny the defendant an opportunity
to cross-examine the declarant. Id.
at 124, 144 L. Ed. 2d at 126. The plurality then reiterated the
holding in Ohio v. Roberts, 448 U.S. 56, 65 L. Ed. 2d 597
(1980), that such statements may be admissible when
(1) “the evidence falls within a firmly rooted hearsay
exception” or (2) it contains “particularized guarantees of
trustworthiness” such that adversarial testing would be expected to
add little, if anything, to the statements' reliability.
Lilly, 527 U.S. at 124-25, 144 L. Ed. 2d at 127 (quoting
Roberts, 448 U.S. at 66, 65 L. Ed. 2d at 608).
The plurality then explained that the categorization of an
out-of-court statement as a “statement against penal interest” does
not necessarily place the statement within a “firmly rooted hearsay
exception” under the Roberts test because the label
“statement against penal interest” defines too broad a class.
Id. at 127, 144 L. Ed.
2d at 128. The plurality then defined three different categories of
“statements against penal interest,” id., only one of which
is pertinent here. The third category (statements offered as
evidence by the prosecution to establish the guilt of an accomplice)
encompasses the kind of “statements against interest” found in
Lilly, i.e., those statements that inculpate both a declarant
and a defendant. Id.
at 130, 144 L. Ed. 2d at 130. Such dual-inculpatory statements are
inherently unreliable and untrustworthy as the accomplice often
stands to gain by inculpating another defendant.
Id. at 131, 144 L. Ed. 2d
at 131. The plurality concluded by stating: “[t]he decisive fact,
which we make explicit today, is that accomplices' confessions that
inculpate a criminal defendant are not within a firmly rooted
exception to the hearsay rule.” Id.
at 134, 144 L. Ed. 2d at 133.
In light of this framework,
the substantive differences between the testimony of Pardee and of
Nicholes become extremely significant. While Pardee testified as to
a conversation in which Ted made both self-inculpatory statements
and statements that implicated defendant, Nicholes testified only to
self-inculpatory statements by Ted. Such purely self-inculpatory
statements, unlike the dual-inculpatory statements in Lilly,
are classic “statements against interest” and thus fall within a
firmly-rooted hearsay exception. See id. at 131-32, 144 L.
Ed. 2d at 131-32.
Having concluded that the admission of Nicholes' testimony did
not violate defendant's Sixth Amendment rights, we now proceed to
analyze Nicholes' testimony to determine whether it was properly
admitted under Rule 804(b)(3). Applying the two-part test set forth
in Wilson, we
first note that the challenged statements unquestionably were
against Ted's penal interests at the time they were made, and, thus,
“a reasonable man in his position would not have made the
statement[s] unless he believed [them] to be true.” G.S. § 8C-1,
Rule 804(b)(3). The statements, therefore, satisfy the first prong
of the analysis.
Furthermore, sufficient corroborating evidence was admitted at
trial to indicate the trustworthiness of the statements. Such
evidence included: (1) Ted's efforts to take out additional life
insurance policies on Patricia shortly before her murder, without
her knowledge; (2) Patricia's statements to various friends shortly
before her murder, conveying her fear, based on Ted's conduct and
behavior, that Ted might be planning on killing her; and (3)
testimony of Mitch Whidden (Whidden) regarding defendant's
statements that provided the same portrayal of Ted's involvement in
the murder as Ted's own statements. Thus, the second prong of the
analysis is also satisfied. The trial court, therefore, did not err
in admitting Nicholes' testimony.
however, presents precisely the kind of situation addressed in
Lilly, in which the prosecution offers in evidence statements of
an accomplice that inculpate both the accomplice and the criminal
defendant. Because such dual- inculpatory statements are inherently
unreliable, in that the declarant often stands to gain by
inculpating another, Lilly, 527 U.S. at 131, 144 L. Ed. 2d at
131, such statements do not fall within a firmly-rooted exception to
the hearsay rule, id. at 134, 144 L. Ed. 2d at 133. Thus, as
to Pardee's testimony, the constitutional issue becomes whether the
statements contain “particularized guarantees of trustworthiness.”
Id. at 135, 144
L. Ed. 2d at 133-34 (quoting Roberts, 448 U.S. at 66, 65 L.
Ed. 2d at 608).
Whether the statements at issue satisfy this standard requires
an analysis for which only a few guidelines have been set by the
Supreme Court. For example, the reliability of the statements must
be established by the inherent trustworthiness of the statements
themselves and cannot be established by an effort to “bootstrap on”
the trustworthiness of other evidence at trial.
Id. at 138, 144 L. Ed. 2d
In the instant case, we find it unnecessary to determine whether
the statements offered through the testimony of Pardee contain
“particularized guarantees of trustworthiness.” Assuming arguendo
that the statements fail to meet this constitutional standard, and
that admission of such statements was error, we believe such error
was not prejudicial.
“A violation of the defendant's rights under the Constitution of
the United States is prejudicial unless the appellate court finds
that it was harmless beyond a reasonable doubt.” N.C.G.S. §
15A-1443(b) (1999). In the case at bar, we believe the State has
successfully met this burden for two reasons. First, the State
presented overwhelming evidence that defendant committed the murder
even without the admission of Pardee's testimony. Second, the facts
established through Pardee's testimony were properly admitted in
evidence through other witnesses.
Whidden, an ordained Baptist minister and a personal friend of
defendant, testified that in 1997 defendant visited Whidden at his
home and stayed with Whidden and his family overnight. Whidden
testified that during this visit defendant confessed to Whidden that
he had killed Patricia at Ted's request and that he was to receive
payment from Ted in return. Whidden testified that afterdefendant
left his home, Whidden spoke with the Reverend Jerry Falwell (Falwell)
to ask his advice about defendant's confession. After meeting with
Falwell and Falwell's son, an attorney, Whidden checked into a hotel
with his family because he was afraid that defendant might return to
Thereafter, Whidden went to see defendant in an attempt to
persuade him to turn himself in. When defendant refused to do so,
Whidden returned home, met with another attorney, Frank Yeatts (Yeatts),
and gave a statement to the State Bureau of Investigation (SBI). He
then left his job and moved himself and his family out of state for
six months until defendant was in prison because he feared for the
safety of his family. Various elements of Whidden's testimony were
corroborated by the testimony of Falwell, Yeatts, Whidden's wife,
and an agent with the SBI.
Whidden's testimony demonstrates the strength of the State's
case against defendant. In addition, much of the evidence
established through Pardee's testimony was properly admitted through
Whidden's testimony. Where evidence is properly admitted through one
witness, the defendant will not be heard to complain that the same
evidence, improperly admitted through a different witness, was
prejudicial error. See, e.g., State v. Washington, 131 N.C.
App. 156, 163-64, 506 S.E.2d 283, 288 (1998) (trial court's error
was harmless beyond a reasonable doubt where improperly admitted
hearsay testimony was almost entirely repetitive of the properly
admitted testimony of other witnesses at trial). Given these
considerations, we conclude any constitutional error was harmless
beyond all doubt.
As for the Rule 804(b)(3) analysis, our Supreme Court does not
require that collateral remarks inculpating the defendant be
redacted from an out-of-court statement that also contains self-
inculpating remarks in order to admit the statement under Rule
804(b)(3). See Wilson, 322 N.C. at 133, 367 S.E.2d at 598
(“The fact that [the challenged statements] have dual inculpatory
aspects does not take the statements outside the range of Rule
804(b)(3).”). The statements offered by Pardee contain the same
self-inculpatory remarks as the statements offered by Nicholes.
Accordingly, the statements offered by Pardee satisfy Rule 804(b)(3)
for the same reasons as the statements offered by Nicholes, and the
collateral remarks that inculpate defendant need not be redacted
from the statements in order for the statements to be admissible.
This assignment of error is overruled.
next alleges the trial court erred in admitting in evidence various
statements by the victim, Patricia. The State called five witnesses
to offer testimony regarding statements Patricia made at various
times prior to her death. We find no error in the admission of these
The first of these five witnesses, William Jarrell (Jarrell), an
agent for a life insurance company, testified that: (1) Ted
requested a $200,000 life insurance policy for Patricia; (2) Ted
provided Jarrell with an insurance application allegedly signed by
Patricia; (3) Jarrell called Patricia in order to obtain
requiredhealth information; (4) during this phone call, when
Patricia inquired as to why such information was necessary for a
cancer insurance policy, Jarrell informed her the policy was for
life insurance; and (5) when she further inquired about the value of
the life insurance policy, Jarrell informed her it was for $200,000,
at which point Patricia “slammed the phone down.”
Defendant contends such statements constitute hearsay and were
improperly admitted. “'Hearsay' is a statement, other than one made
by the declarant while testifying at the trial or hearing, offered
in evidence to prove the truth of the matter asserted.” N.C.G.S. §
8C-1, Rule 801(c) (1999). We find no error in the admission of
Jarrell's testimony, as the statements made by Patricia (“Why do you
need this information for a cancer insurance?” and “How much life
insurance?”) were offered merely to establish that Ted had submitted
Patricia's life insurance application to Jarrell without Patricia's
knowledge. The statements were not offered for the truth of the
matters asserted and, therefore, do not constitute hearsay.
second of the five witnesses was Linda Cherry (Cherry), a friend of
Patricia. Cherry testified that Patricia told her the following
shortly before her death: (1) she was concerned about the state of
her marriage, and she believed Ted did not want to spend time with
her anymore; (2) Ted had been acting differently, he had been
getting agitated easily, and he had started to use profanity; (3)
she did not like the fact that Ted had gotten a second job because
she felt that they did not need the extra money.
The third of the five witnesses was Cara Dudley (Dudley), a
close friend of Patricia. Dudley testified that Patricia told her
the following shortly before her death: (1) in case anything strange
ever happened to her, she wanted Dudley to know that she had
discovered by accident that Ted had taken out a large insurance
policy on her; (2) she did not know why Ted wanted so much
additional life insurance because she already had one life insurance
policy; and (3) Ted must have signed her name on the application
because she had not signed her own name. Dudley also testified that
Patricia was very upset, her voice was shaky during this
conversation, and she was trying not to cry.
The fourth of these five witnesses was Rose Lyles (Rose),
another friend of Patricia. Rose testified that Patricia told her:
(1) she had found a life insurance application on which Ted had
forged her signature; (2) Ted was not the man she married; (3) Ted
slept with a gun underneath his pillow and when she went to sleep
she feared that she might not wake up in the morning. Rose also
testified that Patricia cried during the conversation and that Rose
had never heard so much fear in anybody's voice.
The final of these five witnesses was Gary Lyles (Gary), Rose's
husband and also a friend of Patricia. Gary testified that Patricia
told him: (1) she had found a life insurance policy that Ted had
taken out without her knowledge; (2) Ted had forged her signature on
the application; (3) Ted was not the man she married; and (4) Ted
slept with a gun underneath his pillow. Defendant contends these
statements were erroneously admitted under the hearsay exception
provided by N.C.G.S. § 8C-1, Rule 803(3) (1999) (Rule 803(3)). Rule
803(3) allows the admission of hearsay testimony in evidence if it
tends to show the victim's then existing state of mind or “emotion,
sensation, or physical condition (such as intent, plan, motive,
design, mental feeling, pain, and bodily health), but not including
a statement of memory or belief to prove the fact remembered or
believed.” G.S. § 8C-1, Rule 803(3).
This Court was recently faced with a strikingly similar set of
facts in State v. Wilds, 133 N.C. App. 195, 515 S.E.2d 466
(1999). In Wilds, the defendant Curtis Wilds was accused of
the first- degree murder of his wife, Tonya Wilds (Tonya). At trial,
the State offered testimony from multiple witnesses regarding
statements made by Tonya within a few weeks before her murder.
at 203-04, 515 S.E.2d at 473-74. Testimony offered by the witnesses
included the following statements by Tonya: (1) her husband had
attempted to change her life insurance policy to designate himself
as the named beneficiary; (2) she had once woken up in her bed
during the night to discover her husband pouring gasoline on her
nightgown; (3) she had an unhappy marriage filled with physical and
emotional abuse; and (4) she was afraid her husband would try to
kill her. Id.
Many of the witnesses specifically testified that Tonya was shaking
and tearful when she made such statements. Id.
The Wilds Court stated: [a]lthough statements that
relate only factual events do not fall within the Rule 803(3)
exception, statements relating factual events which tend to show the
victim's state of mind, emotion, sensation, or physical condition
when the victim made the statements are not excluded if the facts
related by the victim serve to demonstrate the basis for the
victim's state of mind, emotions, sensations, or physical condition.
Id. at 204-05,
515 S.E.2d at 474 (citations omitted).
The Court in Wilds therefore held that the statements
were admissible to show Tonya's state of mind, despite the fact that
the statements also contained descriptions of factual events.
Id. at 205, 515 S.E.2d
at 475. Similarly, we hold in the instant case that Patricia's prior
statements were properly admitted to show her state of mind.
Furthermore, as in Wilds, “it was not necessary for
[Patricia] to state explicitly to each witness that she was afraid,
as long as the 'scope of the conversation . . . related directly to
[her] existing state of mind and emotional condition.'” Id.
at 206, 515 S.E.2d at 475 (quoting State v. Mixion,
110 N.C. App. 138, 148, 429 S.E.2d 363, 368, disc. review denied,
334 N.C. 437, 433 S.E.2d 183 (1993)).
Defendant argues that the case of State v. Hardy, 339
N.C. 207, 451 S.E.2d 600 (1994), “is directly on point” with the
case at bar, and cites to Hardy for the proposition that
“[s]tatements of fact, even those which might explain why the
declarant was frightened or angry are not admissible.” One searches
in vain for such a proposition in Hardy.
In Hardy, our Supreme Court held that statements from the
victim's diary describing the defendant's violent conduct, which
“expresse[d] no emotion and seem[ed] to have been written in a calm
and detached manner,” id. at 229, 451 S.E.2d at 613, were not
admissible under Rule 803(3) because they did not constitute
statements of the victim's state of mind, and merely amounted to “a
recitation of facts which describe various events,” id. at
228, 451 S.E.2d at 612. The notion that the result in Hardy
may be expanded beyond the particular facts in that case has
previously been foreclosed by this Court. As we stated in Wilds,
[t]his case is distinguishable from Hardy in that the
statements in Hardy were taken from the victim's diary and
contained descriptions of assaults and threats against the victim
before she died but did not reveal the victim's state of mind
or contain statements of the victim's fear of defendant.
Wilds, 133 N.C. App. at 205, 515 S.E.2d at 475 (emphasis
added). This assignment of error is overruled.
next contends the trial court erred in sustaining the State's
objections to various questions put to Detective James Church
(Detective Church) during cross-examination by defendant. “It is
well established that an exception to the exclusion of evidence
cannot be sustained where the record fails to show what the witness'
testimony would have been had he been permitted to testify.”
State v. Simpson, 314 N.C. 359, 370, 334 S.E.2d 53, 60 (1985).
It is undisputed that the record fails to demonstrate what
Detective Church's answers would have been had he been permitted to
respond to defendant's questions. “By failing to preserve
evidencefor review, defendant deprives the Court of the necessary
record from which to ascertain if the alleged error is prejudicial.”
State v. Locklear, 349 N.C. 118, 150, 505 S.E.2d 277, 296
(1998), cert. denied, 526 U.S. 1075, 143 L. Ed. 2d 559
(1999). Thus, defendant cannot show that the trial court's ruling
with respect to the exclusion of this testimony was prejudicial.
Furthermore, even if we assume arguendo that the
assignment of error is properly before us on appeal, and even if we
assume, as defendant asks of us, that “Detective Church would have
answered as the questions led,” we find no error in the exclusion of
this testimony. We agree with the State that the questions were
objectionable because they were repetitive, argumentative, or called
for speculation and conjecture.
See Wilson, 322 N.C. at
135, 367 S.E.2d at 600. This assignment of error is overruled.
next contends the trial court erred in sustaining the State's
objections, on the grounds of leading, to six specific questions put
to defendant on direct examination. The most significant of these
questions was the following:
Q: Did your brother, Ted, ever tell you that he
would pay you money if you would assist him in eliminating
“A leading question is generally defined as one which suggests
the desired response and may frequently be answered yes or no.”
State v. Britt, 291 N.C. 528, 539, 231 S.E.2d 644, 652 (1977)
(citations omitted). “Leading questions should not be used on the
direct examination of a witness except as may be necessary todevelop
his testimony.” N.C.G.S. § 8C-1, Rule 611(c) (1999).
Defendant argues that in sustaining the State's objections, the
trial court deprived defendant of an opportunity to “deny to the
jury the fundamental charge against him--that his brother offered
him money to kill his wife.” Defendant is correct in asserting that
each of the six questions at issue, to varying degrees, were efforts
at rebutting the State's underlying theory that defendant conspired
with Ted to murder Patricia. However, at the time of the sustained
objections, defendant had already been provided ample opportunity to
deny the State's charges against him. For example, a portion of the
direct examination of defendant transpired as follows:
Q: Mr Kimble, last night, right before we broke, I asked
you if you killed Patricia, and you said you did not.
A: Yes, sir.
Q: Did your brother ever ask you to do anything like
Q: Did Ted ever tell you he was looking for a hit man?
Q: Did you have any knowledge whatsoever of Ted's and
Patricia's life insurance arrangements?
“Rulings by the trial judge on the use of leading questions are
discretionary and reversible only for an abuse of discretion.”
State v. Smith, 290 N.C. 148, 160, 226 S.E.2d 10, 18, cert.
denied, 429 U.S. 932, 50 L. Ed. 2d 301 (1976) (citations
omitted). “A trial court may be reversed for abuse of discretion
only upon a showing that its [ruling was] manifestly unsupported by
reason.” White v. White, 312 N.C. 770, 777, 324 S.E.2d 829,
833 (1985). Because defendant had had an opportunity to deny the
charges against him, it was unnecessary to employ leading questions
during the direct examination. Furthermore, the questions were
repetitious. We find no abuse of discretion by the trial court in
sustaining the State's objections. This assignment of error is
next asserts the trial court erred in allowing the State to question
defendant during cross-examination regarding three photographs of a
woman named Janet Smith. We find no prejudicial error.
The State elicited the following statement from defendant on
cross-examination: “I don't know of many things that my wife -- I
don't know of anything that I -- that my wife does not know today,
that I hold in secret from her in any way. I think she knows
everything there is to know about me.” The State then sought to
impeach defendant using three photographs of Janet Smith that had
been seized from defendant's cell. Defendant objected, but after a
voir dire hearing on the matter the trial court allowed the
following inquiry by the State:
Q: And showing you then State's Exhibit 139- A, B and C,
what are those?
A: These are pictures of Janet Smith.
Q: Were those in the book at the time it was taken?
A: I don't know if they were or not.
Q: Were those pictures in your possession on that day?
Q: Did you tell your wife about those pictures?
MR. LLOYD: Well, objection, Your Honor. &nbs
p; A: Yes, I --
THE COURT: Sustained. Don't answer it.
MR. LLOYD: Move to strike, Your Honor.
THE COURT: Disregard the question, members of the jury.
The credibility of a witness may be impeached on cross-
examination by questioning the witness regarding evidence that
appears to be inconsistent with the testimony of the witness. See
1 Henry Brandis, Jr.,
Brandis on North Carolina Evidence
§ 47 (3d ed. 1988). “However, contradiction of collateral facts by
other evidence is not permitted, as its only effect would be to show
that the witness is capable of error on immaterial points, and to
allow it would confuse the issues and unduly prolong the trial.”
As a general rule, “collateral matters” are those that are
irrelevant to the issues in the case. See
State v. Najewicz, 112 N.C. App. 280, 289,
436 S.E.2d 132, 138 (1993), disc. review denied, 335 N.C.
563, 441 S.E.2d 130 (1994). In the case at bar, whether defendant
told his wife about photographs of another woman found in his cell
is clearly a collateral matter to the murder of his brother's wife.
In seeking to contradict defendant's statement that he holds nothing
secret from his wife, the State should have been limited to asking
defendant to acknowledge the existence of the photographs, and then
asking defendant whether he had told his wife about the photographs.
Defendant's answers would have been conclusive on the matter, and
the State would have been prohibited from offering extrinsic
evidence to contradict the defendant.
However, we conclude the error does not require reversal.
Reversible error exists where “there is a reasonable possibilitythat,
had the error in question not been committed, a different result
would have been reached at the trial.” N.C.G.S. § 15A-1443(a)
(1999). Here, the subject was collateral to the issues before the
jury and any error was thus unlikely to have impacted the outcome of
the trial. Furthermore, the inquiry by the State was extremely
brief, and was terminated by a sustained objection and an
instruction to disregard the question. In addition, the defendant
had already testified that his wife had filed for divorce,
significantly decreasing the potential for prejudice resulting from
any implication of defendant's interest in another woman. This
assignment of error is overruled.
lastly asserts the trial court erred in allowing the State to
question defendant regarding allegations that his brother and his
parents had committed insurance fraud. Over defendant's objection,
the trial court allowed the State to briefly inquire into the
matter. In response to the State's questions, defendant stated that
no fraud had been committed and that until he read the discovery
documents in the case he had no knowledge that such allegations even
It is well-established that a defendant may be cross-examined,
for impeachment purposes, concerning prior acts of misconduct, if
such prior acts are probative of truthfulness or untruthfulness.
N.C.G.S. § 8C-1, Rule 608(b) (1999). The possibility that defendant
was aware of, and therefore conspired in, an insurance fraud scam
undertaken by his brother and his parents is arguably probative of
defendant's truthfulness. The propriety or unfairness of
cross-examination rests largely in the trial judge's discretion, and
“[h]is ruling thereon will not be disturbed without a showing of
gross abuse of discretion.” State v. Foster, 293 N.C. 674,
685, 239 S.E.2d 449, 457 (1977) (citations omitted). Defendant has
shown no abuse of discretion here. We hold there was no error in
allowing the State to briefly cross-examine defendant concerning
allegations of insurance fraud. This assignment of error is
Judges GREENE and EDMUNDS concur.