STATE of North Carolina
v.
Buddy Ray MATTHEWS and Robert Eugene Snow.
No. 108.
Supreme Court of North Carolina.
February 1, 1980.*876 Atty. Gen. Rufus L. Edmisten, by Sp. Deputy Atty. Gen. John R. B. Matthis and Associate Atty. Gen. Rebecca R. Bevacqua, Raleigh, for the state.
Public Defender Wallace C. Harrelson and Asst. Public Defender A. Wayland Cooke, Raleigh, for defendant-appellant Buddy Ray Matthews.
Walter E. Clark, Jr., Greensboro, for defendant-appellant Robert Eugene Snow.
BRITT, Justice.
We find no merit in any assignment of error brought forward by either defendant.
DEFENDANT SNOW'S APPEAL
By his first assignment of error defendant Snow contends the trial court erred in allowing the state to challenge two jurors after the state had accepted them. There is no merit in the assignment.
After the state had passed on a panel of jurors, the court allowed the state to use one of its peremptory challenges and excuse Mrs. Loman after she told defense counsel that she did not want to sit on the case, "that she did not want this matter on her conscience". The court also allowed the state to challenge for cause Mrs. Galloway who had been passed by the state before a noon recess. It was brought to the court's attention after lunch that defendant Snow's mother, who worked at the same place where Mrs. Galloway worked, spoke to Mrs. Galloway about her son during the recess. The jury had not been impaneled at the time Mrs. Loman and Mrs. Galloway were excused.
In State v. McKenna, 289 N.C. 668, 224 S.E.2d 537, death sentence vacated, 429 U.S. 912, 97 S. Ct. 301, 50 L. Ed. 2d 278 (1976), this court held that neither the case law nor G.S. 9-21(b) "prohibits the trial court, in the exercise of its discretion before the jury is impaneled, from allowing the State to challenge peremptorily or for cause a prospective juror previously accepted by the State and tendered to the defendant." Id. at 680, 224 S.E.2d at 545. Although G.S. 9-21(b) has been substantially altered by Article 72 of Chapter 15A, the new statutes do not change the principle laid down in McKenna. See State v. Matthews, 295 N.C. 265, 245 S.E.2d 727 (1978).
*877 By his second assignment of error, defendant Snow contends the court erred in permitting the state to introduce numerous photographs and excessive testimony relating to the victim and his injuries.
"It is settled law in this State that a witness may use a photograph to illustrate his testimony and make it more intelligible to the court and jury; and if a photograph accurately depicts that which it purports to show and is relevant and material, the fact that it is gory or gruesome, or otherwise may tend to arouse prejudice, does not render it inadmissible." State v. Young, 291 N.C. 562, 570, 231 S.E.2d 577, 582 (1977), citing 1 Stansbury's North Carolina Evidence (Brandis rev. 1973) § 34; State v. Frazier, 280 N.C. 181, 185 S.E.2d 652 (1972); State v. Doss, 279 N.C. 413, 183 S.E.2d 671 (1971); State v. Atkinson, 278 N.C. 168, 179 S.E.2d 410 (1971); State v. Barrow, 276 N.C. 381, 172 S.E.2d 512 (1970).
While defendant recognizes the quoted principle of law, he argues that the number of photographs and other evidence relating to the victim's injuries admitted in this case was excessive; therefore, the rule stated in State v. Foust, 258 N.C. 453, 460, 128 S.E.2d 889, 894 (1963), and restated in State v. Mercer, 275 N.C. 108, 165 S.E.2d 328 (1969), is applicable.
Considering all of the evidence in this case, we hold that the trial court did not err in admitting the photographs and other evidence complained of.
By his third assignment of error, defendant Snow contends the court erred in denying his motion to strike the testimony of the witness Driver relating to the amount of money that was missing from the store. The record discloses that defendant Snow did not object to, or move to strike, Driver's testimony that $99.17 was missing. That being true, the question which defendant Snow attempts to raise is not presented for review. Rule 10, Rules of Appellate Procedure.
Furthermore, defendant was not prejudiced by the testimony complained of in view of the other evidence, including that of defendants themselves, that money was taken from the store. The exact amount taken was relatively unimportant. "The burden is on defendant not only to show error but also to show that the error complained of affected the result adversely to him . . . ." 4 Strong's N.C. Index 3d, Criminal Law § 167.
There is no merit in defendant Snow's fourth assignment of error wherein he contends the trial court erred in failing to strike the in-court identification testimony of Teresa Jones. Defendant argues that her testimony was inherently incredible, hence the principle followed in State v. Miller, 270 N.C. 726, 154 S.E.2d 902 (1967), should have been applied to Jones' testimony. We disagree.
In Miller the sole identification evidence against the defendant who was charged with breaking and entering was the testimony of one Melton, 16 years old. His testimony showed that he was never closer than 286 feet from the man whom he saw running in the nighttime along the side of the burglarized building; that he saw the man run once in each direction, stop at the front of the building, "peep" around it and look in the witness' direction; and that he did not know the man. This court observed that the witness saw Miller some six hours later in a police lineup "so arranged that the identification of Miller with the man seen earlier would naturally be suggested to the witness". This court held that the evidence did not have sufficient probative force to establish the identity of the defendant.
While the record before us does not disclose the distance from Church Street on which witness Jones was travelling and the entrance to the Little General Store, there is every indication that it was considerably less than 286 feet. Police Officer Rudd testified that he was driving on Church Street at approximately 12:55 a. m., that he observed the Little General Store, and that he recognized Mr. Suddreth who was standing behind the counter inside the store. All the evidence indicated that the store and the area in front of it were well lighted. *878 Mrs. Jones testified that she was employed by a detective agency, that as she passed the store she saw three men struggling, that she slowed momentarily, that she was able to observe the faces of the three men, and that she could positively identify defendant Snow as one of those men.
We hold that the witness' testimony was not inherently incredible and that its weight was a question for the jury. We also point out that there was considerable other testimony, including that of defendant himself, placing defendant at the scene of the crimes.
We find no merit in defendant Snow's sixth assignment of error in which he contends the trial court expressed an opinion on the evidence in violation of G.S. 15A-1222.
Defendant submits that the court, in charging the jury with respect to the evidence of robbery with a dangerous weapon, a butcher knife, said:
". . . the manner in which Robert Eugene Snow used it or threatened to use it, and the size and strength of Robert Eugene Snow as compared to Eugene Suddreth;"
Also, that the court in giving the final mandate to the jury concerning the guilt or innocence of defendant Matthews on the charge of robbery with a dangerous weapon, said, "by aiding and abetting Robert Eugene Snow, as he committed robbery with a dangerous weapon".
Defendant argues that in view of his plea of not guilty, and his testimony that he had nothing to do with the robbery and killing of Suddreth, the court suggested that it was an established fact that he had the butcher knife in his possession at the time of the robbery and that he actually committed the robbery. We disagree.
It is settled that the jury charge of the court must be construed contextually, and segregated portions will not be held prejudicial error when the charge as a whole is free from objection. State v. Bailey, 280 N.C. 264, 185 S.E.2d 683 (1972), cert. denied, 409 U.S. 948, 93 S. Ct. 293, 34 L. Ed. 2d 218. A reading of the portions of the charge in question preceding and following the portions complained of disclose that the court had carefully instructed the jury on the state's burden of proof; that the state had to prove beyond a reasonable doubt that defendant Snow had a dangerous weapon in his possession. The jury had been made fully aware that if the state had proven beyond a reasonable doubt that defendant in fact did possess the weapon, then the jury would determine by the nature of the weapon and the way it was used whether it was a dangerous weapon. By the time the second statement found objectionable by defendant Snow was made, the court had reiterated several times the state's burden of proving beyond a reasonable doubt each and every element of the crimes charged.
We hold that the court did not express an opinion on the evidence.
There is no merit in defendant Snow's seventh assignment of error in which he contends the trial court erred in instructing the jury on conspiracy. While defendants were not charged with conspiracy, some of the elements of that crime are found in "aiding and abetting" and "acting in concert". The state contended, and its evidence tended to show, that defendants aided and abetted each other and acted in concert in the robbery of Suddreth, hence we perceive no error in the instruction complained of. As the state's brief suggests, the challenged instruction is very similar to one approved by this court in State v. Westbrook, 279 N.C. 18, 181 S.E.2d 572 (1971), vacated on other grounds, 408 U.S. 939, 92 S. Ct. 2873, 33 L. Ed. 2d 761 (1972).
In his eighth assignment of error defendant Snow contends the trial court erred in its instructions on aiding and abetting. He argues that his evidence as well as evidence presented by the state showed that he was not present at the crime scene, therefore, the court should have submitted his guilt or innocence solely on the basis of his being constructively, rather than actually, present. This argument is not persuasive.
*879 In the first place, evidence was presentedthat of Teresa Jones and defendant Matthewstending to show that defendant was actually present at the time the crimes were committed. His own evidence showed that he was constructively present. More importantly, however, is the fact that one who is actually or constructively present when the crime is committed and aids or abets another in its commission is a principal in the second degree and is equally guilty with one who is a principal in the first degree. State v. Keller, 268 N.C. 522, 151 S.E.2d 56 (1966); State v. Minton, 234 N.C. 716, 68 S.E.2d 844 (1952). See also State v. Mitchell, 24 N.C.App. 484, 211 S.E.2d 645 (1975).
Finally, by his ninth assignment of error defendant contends the court erred in giving the following jury instruction:
"If the State proved beyond a reasonable doubt or it is admitted that the defendant intentionally killed Eugene Suddreth with a deadly weapon or intentionally inflicted a wound upon Eugene Suddreth with a deadly weapon that proximately caused his death, the law implies first, that the stabbing was unlawful, and, second, that it was done with malice; and if nothing else appears the defendant would be guilty of second degree murder."
We disagree with defendant that the quoted instruction is contrary to the principles set forth in Mullaney v. Wilbur, 421 U.S. 684, 44 L. Ed. 2d 508, 95 S. Ct. 1881 (1975), and State v. Hankerson, 288 N.C. 632, 220 S.E.2d 575 (1975), rev'd on other grounds sub nom., 432 U.S. 233, 97 S. Ct. 2339, 53 L. Ed. 2d 306 (1977). The instruction is very similar to the one this court approved in State v. Hammonds, 290 N.C. 1, 224 S.E.2d 595 (1976). See also State v. Williams, 288 N.C. 680, 220 S.E.2d 558 (1975).
Clearly, the court did not err in failing to charge on voluntary manslaughter as there was no evidence to support such charge. State v. Griffin, 280 N.C. 142, 185 S.E.2d 149 (1971).
* * * * * *
DEFENDANT MATTHEWS' APPEAL
First, defendant Matthews contends the trial court erred in its jury charge relating to him in telling the jury that the court would not repeat the elements of the crime of robbery with a dangerous weapon or the definitions and elements of second-degree murder but the jury would recall the instructions given in defendant Snow's case.
Defendant's reliance on State v. Forrest, 262 N.C. 625, 138 S.E.2d 284 (1964), is misplaced as that case is easily distinguishable from the case at hand. In Forrest, the defendant was tried for driving an automobile while under the influence of intoxicants. No other case was tried with his. In charging the jury on the elements of the offense, the court merely referred to instructions given in other cases and charged the jury to take those instructions into consideration in arriving at their verdict in the case against Forrest. In awarding a new trial, this court held that the charge must be complete within itself and that the defendant and his counsel are entitled to hear the instructions and to have them for review upon appeal.
In the case at hand defendants Matthews and Snow were tried together. After reviewing the evidence, the court gave the jury instructions relating to the charges against defendant Snow, definitions and elements of the offenses and the application of the law to the evidence. The court then told the jury it would not repeat the definitions and elements of the offenses, referred the jury to the definitions and elements given as to defendant Snow, and applied the law to the evidence in defendant Matthews case.
Clearly, the reason for granting a new trial in Forrest does not exist in this case. The jury, defendant and his counsel heard the instructions given and they are before this court for review. The assignment is overruled.
Defendant Matthews contends next that the court erred in instructing the jury on "acting in concert" and "aiding and *880 abetting". He argues that there was no evidence of aiding and abetting. We reject this contention.
In 4 Strong's N.C. Index 3d, Criminal Law § 113.7, we find:
If the defendant is present with another and with a common purpose does some act which forms a part of the offense charged, the trial judge must explain and apply the law of "acting in concert"; if the defendant was actively or constructively present and did no act necessary to constitute the crime but aided and abetted another in the commission thereof, the trial judge must explain and apply the law of "aiding and abetting. . ."
Under the state's version of the evidence in this case, defendant Matthews was either a principal in the first degree or was acting in concert with defendant Snow in committing the crimes. Under defendant Matthews' testimony, he was at most an aider and abetter. Therefore, the trial court properly instructed the jury on the principles of acting in concert and aiding and abetting.
Defendant Matthews contends that the trial court erred by not giving jury instructions requested by him with respect to the law on (1) aiding and abetting and (2) statements against penal interests.
Regarding (1), following the close of the evidence, defendant Matthews requested special instructions to the effect that the mere presence of a person at the scene of a crime at the time of its commission does not make him a principal, and that to render one who does not actually participate in the commission of a crime guilty of the offense committed, there must be evidence tending to show that he, by word or deed, gave active encouragement to the perpetrator of the crime, or by his conduct made it known to such perpetrator that he was standing by to lend assistance when and if it should become necessary, citing State v. Aycoth, 272 N.C. 48, 157 S.E.2d 655 (1967); and that even though the jury might find that defendants were friends, the presence of defendant Matthews standing alone would not be sufficient to make him an aider or abettor in the commission of the crimes, citing State v. Banks, 242 N.C. 304, 87 S.E.2d 558 (1955). A review of the charge discloses that the court gave instructions substantially in accord with defendant's request. (R. pp. 264, 266). The law does not require that the charge be given exactly in the words of the tendered request or instructions. State v. Beach, 283 N.C. 261, 196 S.E.2d 214 (1973); State v. Howard, 274 N.C. 186, 162 S.E.2d 495 (1968).
Regarding (2), after the close of the evidence, arguments of counsel and the court's charge to the jury, defendant Matthews requested special instructions on statements against penal interests. The request was refused. He argues that defendant Snow told at least one other person that he (Snow) was the sole perpetrator of the crimes; that this constituted a statement against penal interests and is entitled to be given greater weight by the trier of fact; and that the court should have given his requested instructions on that principle of law.
Assuming, arguendo, that defendant's requested instructions were supported by the evidence, they should have been requested immediately after the close of the evidence. G.S. 15A-1231; State v. Boyd, 278 N.C. 682, 180 S.E.2d 794 (1971); State v. Broome, 268 N.C. 298, 150 S.E.2d 416 (1966). Since the instructions were not timely requested, whether they should have been given was in the discretion of the trial judge. State v. Broome, supra. We perceive no abuse of discretion.
Defendant Matthews contends the trial court erred in denying his motion to suppress the testimony of state's witness James A. Rayburn. He argues that he filed a motion for disclosure of evidence pursuant to G.S. 15A-903(a)(1), that the state failed to provide him with any information regarding testimony of witness Rayburn, and that his constitutional rights of due process were violated by the admission of the evidence. He further argues that the court should have imposed sanctions as provided by G.S. 15A-910.
*881 Mr. Rayburn was submitted by the state as, and found by the court to be, an expert in the field of analytical chemistry. When defendant Matthews moved to suppress his testimony, the assistant district attorney stated that the witness had filed no reports with the district attorney and that he (the assistant district attorney) had not even talked with the witness until about an hour before the witness was called to testify.
The witness stated that he made an analysis of spots found on a pair of pants previously introduced into evidence and allegedly worn by defendant Matthews at the time of the crimes; and that in his opinion the spots or stains were "dye stuff".
In the first place, we do not think there was a violation of G.S. 15A-903 or G.S. 15A-910. More importantly, we cannot perceive how defendant Matthews was prejudiced by Rayburn's testimony. As we view the record, the state was attempting to show that the pants worn by defendant Matthews on the occasion in question had blood on them following the robbery and killing; and the testimony of Rayburn tended to disprove that contention.[1] We hold that the court did not err in admitting Rayburn's testimony. It is incumbent on defendant not only to show error but that the error complained of was prejudicial to him. State v. Paige, 272 N.C. 417, 158 S.E.2d 522 (1967).
Defendant Matthews assigns as error the admission into evidence of numerous photographs of the victim and his injuries and testimony relating thereto, contending that the evidence was inflammatory. Defendant Snow raised the same question in his second assignment of error. For the same reasons set forth above in the discussion of defendant Snow's second assignment, we find no merit in defendant Matthews' assignment relating to the same question.
Finally, defendant Matthews contends the trial court erred in striking certain questions propounded by his counsel and answers thereto. This contention relates to the cross examination of state's witness G. F. Minor, a Greensboro police officer, who testified that he went with Sammie Collie, Sr., to a wooded area and recovered the clothing allegedly worn by defendant Matthews at the time the crimes were committed.
On cross examination, counsel for defendant Matthews elicited from Minor testimony to the effect that before going to look for the clothing, Minor obtained a search warrant based upon information given to him by Collie; and that he set out in the application for the search warrant that on 2 December 1978 Collie and defendant Snow drove to a deserted area on Henry Street in Greensboro and deposited the blood stained brown trousers, blue shirt and a butcher knife in the wooded area. On redirect examination of Minor, the court allowed the witness to read from the search warrant. Thereupon, counsel for defendant Snow objected and moved to strike all of Minor's testimony relating to the search warrant and the court allowed the motion. The state then moved that the evidence elicited by counsel for defendant Matthews relating to the search warrant be stricken and the court allowed that motion.
On recross-examination by counsel for defendant Matthews, Minor testified:
I talked with Sammie Earle Collie, Sr. on or about December 28, 1978, and, in addition to other things, he said that he took them out there and then he later saw Robert Snow, and he and Robert Snow went to that wooded area and located the pants and the shirt, and Mr. Snow took some money out of the pants, and they left them out there in the woods; but Mr. Collie stated originally that he took the pants, knife, and shirt and put them in the woods. Originally he did not say Robert Snow went along.
Defendant Matthews argues that striking the testimony of Minor deprived him of his right of cross examination to discredit the *882 testimony of the witness Collie by showing inconsistencies therein. This argument is not persuasive in view of the fact that counsel on recross-examination was able to elicit and get before the jury substantially the same testimony that the court had ordered stricken. Again defendant Matthews has failed to show that the alleged error was prejudicial to him. State v. Paige, supra.
* * * * * *
In the trial of defendants and the judgments appealed from, we find
No error.
NOTES
[1] It is also noted that defendant Matthews admitted that he had blood on his pants following the killing. (R. p. 158)