STATE of North Carolina
v.
Frank James CARTER, Jr.
No. 47.
Supreme Court of North Carolina.
November 15, 1972.*280 Charles V. Bell and Patricia E. King, Charlotte, for defendant appellant.
Robert Morgan, Atty. Gen., and Russell G. Walker, Jr., Asst. Atty. Gen., for the State.
*281 HUSKINS, Justice:
The sole question for decision on this appeal is whether the trial judge erred in excluding defendant's experimental evidence.
The rule with us is accurately stated in State v. Phillips, 228 N.C. 595, 46 S.E.2d 720 (1948), as follows:
"The competency of experimental evidence depends upon its trustworthiness to aid in the proper solution of the problem in hand. [Citations omitted] When the experiment is carried out under substantially similar circumstances to those which surrounded the original transaction, and in such a manner as to shed light on that transaction, the results may be received in evidence, although such experiment may not have been performed under precisely similar conditions as attended the original occurrence. The want of exact similarity would not perforce exclude the evidence, but would go to its weight with the jury. [Citation omitted] Whether the circumstances and conditions are sufficiently similar to render the results of the experiment competent is of course a preliminary question for the court, and unless too wide of the mark, the ruling thereon will be upheld on appeal. [Citations omitted] * * * The measure of permissible variation in the conditions of the experiment from those of the occurrence is usually determined by whether such variation would tend to confuse or to mislead the jury. The object of every trial is to find the truth of the matter in controversy. If the experimental evidence contribute to this end, it is admissible; otherwise it should be excluded."
The general practice allows the trial court some, and more commonly a broad, latitude of discretion in the admission of such evidence, especially with reference to the similarity of conditions existing at the time of the crime and conditions existing at the time of the experiment. See Annotation: Admissibility of experimental evidence to show visibility or line of vision, 78 A.L.R. 2d 152, where many cases on the subject are collected and discussed.
Turning to the facts of this case, the following circumstances were established by the testimony of Linda B. Owens as having existed on the night of 19 December 1971 when she was attacked: (1) A street light in front of her house, about fifty feet away, was burning and the light from it shone through the living room curtains into the back bedroom where the rape occurred; (2) no lights were burning in her apartment and all the cotton unlined curtains were closed during the attack; (3) during the fifteen to thirty minutes the attacker was in her apartment, she made a special effort to look at him carefully and to remember how he looked; (4) the weather was clear; (5) her assailant was on top of her for five or six minutes and she observed him in such close proximity during that time; and (6) Officer Price took part in the investigation on the night of the crime and was in the apartment between 4 a.m. and 5 a.m. He turned all the lights off, yet was able to see other people in the room and to make out their features.
On the voir dire as to the circumstances surrounding the experiment on the night of 29 March 1972, the evidence adduced: (1) failed to establish that the street light was burning during the experiment; (2) conflicted as to weather conditions, two witnesses testifying it was clear and four witnesses testifying that it was cloudy and overcast; (3) conflicted as to whether the curtains in the living room were open or closed, two witnesses testifying that the curtains in the living room were not completely closed and one witness testifying that the living room curtains were closed when the group entered the apartment and opened prior to the experiment, and Officer Thompson testifying that the curtains in the living room had been changed and were not the same curtains that were there on the night of the crime; and (4) reveals that the participants in the experiment disagreed *282 on the degree of visibility during the experiment: Officer Thompson testified that he could read bold print in the newspaper, could distinguish racial identity in the living room and back bedroom, and could distinguish facial features in the back bedroom at close range; yet Solicitor Moore could not identify facial features at distances of six to eight feet and Officer Mobley, Linda Moore and Debra Black could not identify any person in the rooms except by silhouette.
At the conclusion of the voir dire the trial judge found as follows:
"In the absence of the jury, the court conducted a hearing as to the admissibility of testimony concerning a visit made to the residence of the prosecuting witness, Mrs. Linda Owens, between 11:00 p.m. and 11:30 p.m. on the night of March 29, 1972. The court, having heard the evidence, makes Findings of Facts as follows: (1) Between 11:00 p. m. and 11:30 p.m. on March 29, 1972, a group of persons, including counsel for the defendant, the solicitor of this District, police officers and persons chosen by defendant's counsel, went to the home of Mrs. Linda Owens at 2532 Weddington Avenue, with the permission of the court. (2) On the early morning of December 19, 1971, at approximately 3:00 a.m. the witness Mrs. Owens observed her alleged assailant for a period of approximately twenty minutes in the front bedroom of her home, in the back bedroom of her home and in the living room of her home, as the assailant walked from the kitchen across the living room to the front door. She observed him at close range, he being close enough to touch her with his moustache and having sexual intercourse while on top of her. (3) The weather in the early morning of December 19, 1971, was clear and cold. (4) The weather on the evening of March 29, 1972, was overcast and cloudy. (5) On the early morning of December 19, 1971, Mrs. Owens had been asleep since about 1:00 a.m. There were no lights in the house when she awakened. (6) On the evening of March 29, 1972, the persons present at the Owens' home entered the house when lights were turned on. The lights were thereafter switched off before observations were made. Other persons did not come closer to the witnesses during the time the room was darkened than approximately two feet and remained there only for short periods of time. (7) On the evening of March 29, 1972, no attempt was made to identify persons crossing from the kitchen of the Owens' home through the living room to the front door, as described in the testimony of Mrs. Owens.
"The conditions in the home of Mrs. Owens on the night of March 29, 1972, between 11:00 p.m. and 11:30 p.m. under which the witnesses attempted to make identifications were not shown to be substantially similar to the conditions of December 19, 1971, at about 3:00 a.m., as described in the testimony of Mrs. Owens.
"The court, therefore, concludes as a matter of law that testimony as to this experiment is not admissible. The State's objection to the testimony is sustained."
It is apparent that the crucial findings of fact are supported by the evidence offered on the voir dire. That evidence establishes only one circumstance as being similar on both nightsall lights in the Owens' apartment were turned off. As to other relevant circumstances the evidence is contradictory, and similarity is left in doubt. The variations in the conditions of the experiment from those of the occurrence are such as would tend to confuse and mislead rather than aid the jury in arriving at the truth. In holding that the conditions of the experiment were not shown to be sufficiently similar to render the evidence competent, the trial court was not "too wide of the mark" and his ruling thereon will be upheld. State v. Phillips, supra; State v. Brown, 280 N.C. 588, 187 *283 S.E.2d 85 (1972). Moreover, it has been said that "evidence of this kind is not favored by the courts, and great caution should be exercised in receiving it." 22A C.J.S. Criminal Law § 645(1).
No error.