Opinion
No. 82
Filed 29 August 1978
1. Criminal Law 84 — cross-examination of defendant — earlier search — exclusion of evidence on constitutional grounds not shown In a prosecution for possession with intent to sell and sale of MDA, defendant's contention that his cross-examination concerning various illegal drugs found in his home in a prior unrelated search was improper because the search leading to the discovery of those drugs was subsequently declared unlawful in district court is without merit, since the exclusionary rule concerning the inadmissibility for impeachment purposes of evidence unconstitutionally obtained applies, if at all, only where a search and seizure has been declared illegal for constitutional reasons, and defendant failed to offer evidence of the lower court's disposition of the case against him stemming from the earlier search and thereby failed to show that the evidence seized was excluded on constitutional grounds.
2. Criminal Law 88.4 — impeachment of defendant — prior crimes and degrading conduct — cross-examination proper Cross-examination for impeachment purposes of a defendant as to his prior unrelated convictions and acts of misconduct does not place an unreasonable burden on defendant's right to testify, and therefore does not violate the Due Process Clause of the U.S. or N.C. Constitutions.
ON defendant's appeal pursuant to G.S. 7A-30(1), and defendant's petition for discretionary review of the decision of the Court of Appeals, reported in 35 N.C. App. 98, 239 S.E.2d 843, which found no error in the trial before Friday, J., at the 7 March 1977 Schedule "C" Criminal Session of MECKLENBURG Superior Court.
Attorney General Rufus L. Edmisten and Associate Attorney Jane Rankin Thompson for the State.
Rodney W. Seaford and Paul L. Whitfield for defendant appellant.
Justice EXUM dissenting.
Chief Justice SHARP and Justice LAKE join in the dissenting opinion.
Defendant was tried and convicted of the possession with intent to sell methylenedioxy amphetamine (MDA), a controlled substance, and of the sale and delivery of MDA on 27 February 1975. From sentences imposed, defendant appealed to the Court of Appeals. That court found no error in the trial.
The State's evidence tended to show that on the night of 27 February 1975, R. T. Guerette, an undercover police officer, went to defendant's home in Charlotte and made a previously arranged purchase from defendant of two plastic bags containing MDA for $65.
Defendant testified and offered evidence by family members and employees of Carolina Fire Equipment Sales Service, Inc., his place of employment. This testimony tended to show that on 26 February 1975 defendant was called by his father, the president of Carolina Fire Equipment Sales Service, Inc., to come to Southport, North Carolina, to wire and hook up a burglar alarm system under a contract involving a nuclear power generating station. On 26 February defendant spent the night in a Wilmington motel. He checked out of the motel on the 27th and went to the Southport job site. Defendant testified that he worked at the site all day, and after completing his work drove back to Charlotte, arriving there sometime after daybreak on the 28th of February.
Other facts necessary to the decision of this case will be discussed in the opinion.
Under his first assignment of error defendant argues that the trial court erred in allowing the district attorney to cross-examine him regarding drugs found in his home during a prior unrelated search by the police subsequently held to be unlawful. At trial defendant testified in his own behalf. On cross-examination the prosecutor asked defendant if "on the 3rd day of January, 1975 . . . you did not have in your possession in your house in your room a zip-locked bag containing a total of 145 milligrams of white powder, that being cocaine?" Counsel for defendant immediately objected, and his objection was overruled. Defendant then answered in the negative. Several pages of transcript follow, wherein the defendant was asked numerous questions regarding various forms of narcotics found in his home on 3 January 1975. Throughout this testimony the defendant indicated that he was not at home when the contraband was found and that if it was found, it did not belong to him. Defendant finally admitted that he had "found out that something was found in my house" but that he "didn't find out where it was." On redirect examination defendant testified that he had been prosecuted for the drugs found in his home on 3 January 1975, but that a district court judge "ruled that the search of my house was unlawful."
Defendant now insists, citing Walder v. United States, 347 U.S. 62, 98 L.Ed. 503, 74 S.Ct. 354 (1954), and Agnello v. United States, 269 U.S. 20, 70 L.Ed. 145, 46 S.Ct. 4 (1925), that the admission of this evidence was a violation of the Fourth Amendment exclusionary rule. Defendant did not raise this specific objection at trial; instead, he did little more than enter general objections to the prosecutor's questions. Likewise, the defendant did not argue this particular constitutional objection before the Court of Appeals. Ordinarily the Supreme Court will not pass upon a constitutional question which was not raised and passed upon in the court below. State v. Dorsett, 272 N.C. 227, 158 S.E.2d 15 (1967). We will, however, further consider defendant's argument for the purpose of noting additional defects in his appeal.
It is well established in this State that in the trial of every person charged with a crime, if the accused takes the stand in his own behalf he "shall be subject to cross-examination as other witnesses." G.S. 8-54. Any witness in a criminal case, including the defendant who testifies in his own behalf, may be cross-examined for purposes of impeachment with respect to prior convictions of crimes. State v. Monk 286 N.C. 509, 212 S.E.2d 125 (1975), and cases cited therein at p. 517. Cross-examination for purposes of impeachment is not, however, limited to questions concerning prior convictions, but also extends to questions relating to specific acts of criminal and degrading conduct for which there has been no conviction. State v. Monk, supra, State v. Foster, 284 N.C. 259, 200 S.E.2d 782 (1973); State v. Williams, 279 N.C. 663, 185 S.E.2d 174 (1971). The scope of such cross-examination is normally subject to the discretion of the trial judge, and the questions must be asked in good faith. State v. Williams, supra. The purpose of this rule permitting such a wide scope for impeachment is that such evidence is a proper and relevant means of aiding the jury in assessing and weighing the credibility of the defendant.
Defendant now contends that his cross-examination concerning various illegal drugs found in his home was improper since the search leading to the discovery of those drugs was subsequently declared unlawful in district court. In Agnello v. United States, supra, the United States Supreme Court held that evidence unconstitutionally seized is not admissible in rebuttal of a defendant's testimony, where the defendant did not testify concerning such evidence on his direct examination and denied knowledge of it in answer to a question propounded on cross-examination over his objection. The Agnello rule was subsequently tempered somewhat in Walder v. United States, supra, where the highest court held that a defendant's assertion on direct examination that he never possessed any narcotics opens the door, solely for purposes of attacking his credibility, to evidence of narcotics unlawfully seized in connection with an earlier proceeding. The defendant argues that the exclusionary rule set forth in Agnello, and made applicable to the states in Mapp v. Ohio 367 U.S. 643, 6 L.Ed.2d 1081, 81 S.Ct. 1684 (1961), applies in this instance since the defendant made no reference to his use or possession of drugs on his direct examination.
Since the Supreme Court's decision in Harris v. New York 401 U.S. 222, 28 L.Ed.2d 1, 91 S.Ct. 643 (1971), the continued efficacy and scope of the exclusionary rule set forth in Agnello and Walder has been questioned. Cf. Dershowitz and Ely, "Harris v. New York: Some Anxious Observations on the Candor and Logic of the Emerging Nixon Majority," 80 Yale Law Journal 1198 (1971). The Supreme Court's subsequent decisions in United States v. Calandra, 414 U.S. 338, 38 L.Ed.2d 561, 94 S.Ct. 613 (1974), United States v. Janis, 428 U.S. 433, 49 L.Ed.2d 1046, 96 S.Ct. 3021 (1976), and Stone v. Powell, 428 U.S. 465, 49 L.Ed.2d 1067, 96 S.Ct. 3037 (1976), have further limited the scope of the exclusionary rule in certain Fourth Amendment cases.
The question of the applicability of the exclusionary rule does not, however, concern us in the present case, for there is nothing in the record to show that the prior unrelated search of defendant's home was declared unlawful for constitutional reasons. The only mention in the record of the outcome of the prior proceeding in district court is defendant's assertion on redirect examination that a district court judge "ruled that the search of my house was unlawful," and the prosecutor's infelicitous assertion, overruled by the court, that the search was ruled illegal "because an officer put his hand on the door knob and twisted it too soon, even though he had a valid search warrant. . . ."
The Agnello-Walder exclusionary rule concerning the inadmissibility for impeachment purposes of evidence unconstitutionally obtained applies, if at all, only where a search and seizure has been declared illegal for constitutional reasons. The rule would not apply in those instances where there has been a violation of the statutory procedures regulating searches and seizures contained in Chapter 15A of the General Statutes, unless there has been a "substantial violation" of the statutory provisions under G.S. 15A-974. The record in present case gives no indication of the nature of the alleged illegality involved in the search of defendant's home in January 1975. It is the duty of the appellant to see that the record is properly made up and transmitted. State v. Atkinson, 275 N.C. 288, 167 S.E.2d 241 (1969). Where the defendant does not include in the record any matter tending to support his ground for objection, he has failed to carry the burden of showing error and has failed to make irregularity manifest. State v. Duncan, 270 N.C. 241, 154 S.E.2d 53 (1967). An assignment of error based on matters outside the record is improper and must be disregarded on appeal. State v. Hilton, 271 N.C. 456, 156 S.E.2d 833 (1967); State v. Duncan, supra, State v. DeJournette, 214 N.C. 575, 199 S.E. 920 (1938).
In the case at bar competent evidence of the lower court's disposition of the case against defendant stemming from the January 1975 search of his home is essential for review. Since the defendant has not included such evidence in the record, we cannot sustain his assignment of error concerning the admissibility of this impeachment evidence. This assignment is overruled.
The defendant next contends that this Court should declare unconstitutional the cross-examination for impeachment purposes of a defendant as to his prior unrelated convictions and acts of misconduct. He argues that such cross-examination places an unreasonable burden on the defendant's right to testify, and therefore violates the Due Process Clause of the Constitution of the United States and the Constitution of North Carolina. The United States Supreme Court has held in McGautha v. California, 402 U.S. 183, 28 L.Ed.2d 711, 91 S.Ct. 1454 (1971); Spencer v. Texas, 385 U.S. 554, 17 L.Ed.2d 606, 87 S.Ct. 648 (1967); and Michelson v. United States, 335 U.S. 469, 93 L.Ed. 168, 69 S.Ct. 213 (1948), that introduction of evidence of prior crimes of a defendant for various purposes does not violate the Fifth or Fourteenth Amendment, so long as the jury is instructed to limit consideration of the evidence to its proper function.
This Court has declined similar requests to revise its rule regarding impeachment in State v. McKenna, 289 N.C. 668, 224 S.E.2d 537 (1976); State v. Foster, supra, and State v. Mack, 282 N.C. 334, 193 S.E.2d 71 (1972). In State v. Foster, supra, the Court said, in justification of the rule, "The rule is necessary to enable the State to sift the witness and impeach, if it can, the credibility of a defendant's self-serving testimony. . . ." Such continued support for the rule stems from the recognition that evidence of a witness's repeated violations of the law is relevant to the trustworthiness and credibility to be afforded him by the jury. Lack of trustworthiness may be evidenced by a witness's repeated and abiding contempt for the laws which he is legally and morally bound to obey. Cf. State v. Duke, 100 N.H. 292, 123 A.2d 745 (1956). The probative value of evidence of prior crimes seems all the more relevant in the case of the witness who is also a defendant, for he, unlike a witness not on trial, has a direct interest in the outcome of the case, and there are therefore more substantial reasons for calling his credibility into account.
To be sure, a defendant with a prior record is put to a dilemma in deciding whether he should testify in his own defense. But the likelihood of undue prejudice accruing from the attempted impeachment of his testimony does not outweigh the court's substantial interest in arriving at the truth. Sufficient protection from undue prejudice is afforded by the court's instructions limiting consideration of the evidence of prior offenses to the matter of the defendant's credibility as a witness. Due process does not require more. Cf. Spencer v. Texas, supra. This assignment is overruled.
We have examined the entire record and find no prejudicial error. Hence the verdicts and judgment will be upheld.
No error.