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North Carolina v. Wooten9/17/1991
I
Defendant first contends that the trial court erred in allowing the prosecution to inquire about the seven plastic bags containing cocaine residue and the $1,109.25 found in the defendant's possession when he was arrested. This contention is without merit.
At trial the defendant testified in his own behalf. During cross-examination by the district attorney the defendant testified as follows:
Q: Mr. Wooten, have you ever sold any cocaine, sir?
A: Have I ever sold any?
Q: Yes.
A: No. I haven't.
Q: Do you ever use any cocaine?
A: I don't even drink no liquor no more.
Q: Ever possessed any cocaine?
A: No, sir.
Upon further questioning the following exchange took place.
Q: And, at the time you were stopped, you were almost directly in front of Bellvoir Estates, weren't you?
A: I was -- I was almost to the store.
Q: Had you got to Bellvoir Estates yet?
A: When I was arrested?
Q: Uh-huh?
A: That's where they arrested me; at the store.
Q: At Bellvoir Estates?
A: Uh-Huh. No; at convenience store. That's where they arrested me at.
Q: And, in your car, Mr. Wooten, you had several bags --
Talton: Objection.
Q: -- cocaine residue?
Court: Overruled.
A: I told you those bags -- this guy, I picked him up that morning. He left that pouch in my car. . . .
This was proper impeachment.
t is well settled in this jurisdiction that when a defendant becomes a witness and testifies in his own behalf, he is subject to cross-examination like any other witness, G.S. § 8-54 (1981), and, for purposes of impeachment, he may be cross-examined by the district attorney concerning any specific acts of misconduct which tend to impeach his character.
State v. Galloway, 304 N.C. 485, 497, 284 S.E.2d 509, 517 (1981) (citing State v. Herbin, 298 N.C. 441, 259 S.E.2d 263 (1979) and State v. Purcell, 296 N.C. 728, 252 S.E.2d 772 (1979)). Further, "' ny act of the witness which tends to impeach his character may be inquired about or proven by cross-examination.'" State v. Poole, 289 N.C. 47, 52, 220 S.E.2d 320, 324 (1975) (citing State v. Sims, 213 N.C. 590, 197 S.E. 176 (1938)).
Here, the defendant first testified that he had never possessed any cocaine. It was then proper impeachment for the district attorney to ask the defendant about the bags containing cocaine residue found in the defendant's possession when he was arrested.
Defendant argues the testimony is not admissible under Rule 404(b) and relies on State v. Brady, 238 N.C. 404, 78 S.E.2d 126
(1953), and State v. Emery, 91 N.C. App. 24, 370 S.E.2d 456 (1988). Regardless of whether this testimony would otherwise be allowable under Rule 404(b), in this circumstance it is proper impeachment testimony and is therefore admissible.
Defendant also contends that it was error to permit the State to question the defendant as follows:
Q: And, you on that day had in your pocket over a thousand dollars in cash money --
Talton: Objection.
Q: -- didn't you?
Talton: Objection.
Court: Overruled.
Q:
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