STATE of North Carolina
v.
McKinley WILLIAMS.
No. 23.
Supreme Court of North Carolina.
March 2, 1976.*244 Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. George W. Boylan, and Associate Atty. William H. Boone, Raleigh, for the State.
W. Lunsford Crew, Roanoke Rapids, for defendant-appellant.
COPELAND, Justice.
The defendant raises several questions for our consideration.
1. Did the court err in admitting into evidence a photograph of the deceased, as well as some articles of clothing worn at the time of the homicide?
The defendant contends that he did not contest the cause of death and did not deny that he pulled the trigger of the shotgun. He argues that since he did not controvert the killing, then the photographs and clothing were admitted only to inflame and prejudice the jurors.
Despite defendant's contention, the burden was still on the State to prove its case beyond a reasonable doubt so as to convince the jury that there had been an unlawful killing with malice and that the circumstances of the killing justified a finding of premeditation, deliberation and a specific intent to kill. With regard to this photograph, the examining physician had testified that he had seen the body of Mr. Johnson at the desk and that this photograph accurately portrayed the desk, the office, and the body of the deceased as the doctor had seen them. Upon objection the trial judge admitted the photographs for the purpose of illustrating the testimony of the doctor. A photograph is admissible for the purpose indicated. State v. Young, 287 N.C. 377, 214 S.E.2d 763 (1975); State v. Crowder, 285 N.C. 42, 203 S.E.2d 38 (1974). Because a photograph depicts a gruesome scene does not render it incompetent. *245 State v. Crowder, supra; State v. Atkinson, 275 N.C. 288, 167 S.E.2d 241 (1969); State v. Porth, 269 N.C. 329, 153 S.E.2d 10 (1967). The defendant did not submit the contested photograph for examination by our Court. It is interesting to note that the able trial judge later in the trial sustained defendant's objection to the introduction of a photograph that showed the shotgun wound in more detail. The court held that this photograph was "unduly inflammatory." It can only be concluded that the contested photograph was not unduly inflammatory.
With regard to the clothing offered into evidence, our Courts have held that it is admissible if its appearance throws any light on the circumstances of the crime. 1 Stansbury's N.C. Evidence, § 118 (Brandis Rev. 1973). See e.g., State v. Cox, 280 N.C. 689, 187 S.E.2d 1 (1972), where the bloodstained clothes of a child rape victim were properly admitted. The clothing of the deceased worn at the time of the homicide was another circumstance showing the manner of the killing. The assignment of error is overruled.
2. Did the trial court commit error in admitting into evidence the defendant's statement made to the investigating officers?
The defendant contends that his statement was improperly admitted because at the time it was made he was so intoxicated he did not understand its contents or significance and neither could he have appreciated the full nature of his "Miranda" rights.
Upon objection having been made, the trial judge properly conducted a voir dire hearing and concluded that at the time of the interrogation:
"2. That the defendant was not under the influence of intoxicating liquor.
"3. That the defendant had sufficient mental capacity to understand and apprehend what he was saying.
"4. That the Miranda rights were read to the defendant and he understood them, and he thereafter signed a waiver of attorney in the presence of the officers agreeing to make a statement to the officers.
"5. That the statement made by the defendant to Investigator Warren was given freely with full understanding of his rights and that he was capable of giving a correct account of the matters which he had related to the officers, and after the statement was given it was re-read to the defendant and he expressed agreement with it."
In support of these conclusions the court had before it the evidence of the officer present when the defendant made the statement. The officer testified that the defendant was not under the influence of any intoxicating beverage when the statement was made.
Counsel for the defendant travels outside the voir dire hearing for evidence that the defendant was intoxicated to some extent before the killing. But counsel for the defendant in his brief is frank to admit that there was "evidence both ways."
Our Court speaking through Justice Sharp (now Chief Justice) has held:
"Unless a defendant's intoxication amounts to maniathat is, unless he is so drunk as to be unconscious of the meaning of his wordshis intoxication does not render inadmissible his confession of facts tending to incriminate him. The extent of his intoxication when the confession was made, however, is a relevant circumstance bearing upon its credibility, a question exclusively for the jury's determination." State v. Logner, 266 N.C. 238, 243, 145 S.E.2d 867, 871 (1966).
The trial court's findings upon voir dire are certainly supported by ample and competent evidence, and these must be considered final upon appeal. State v. Simmons, 286 N.C. 681, 213 S.E.2d 280 (1975); State v. McClure, 280 N.C. 288, 185 S.E.2d 693 (1972). The assignment of error is overruled.
*246 3. Did the trial court err in failing to instruct the jury to consider the extent of defendant's intoxication upon the weight to be accorded his statements made to the investigating officers?
In this case the trial judge had properly instructed the jury that they were the sole judges of the facts, that it was their duty to remember and consider all of the evidence whether it was called to their attention or not, and that they were to determine the credibility of all the evidence, (emphasis supplied) He instructed the jury, "you may believe all that a witness says, part of what he says, or nothing of what he says and that is entirely a question for you."
The trial judge also properly instructed the jury as to the effects of intoxication on premeditation and deliberation. He charged as follows:
"If as a result of intoxication, the defendant did not have sufficient intent to kill Mr. Johnson formed after premeditation and deliberation, he is not guilty of first degree murder; therefore, I charge you that if upon considering the evidence with respect to the defendant's intoxication, you have a reasonable doubt as to whether the defendant formulated the specific intent required for a conviction of first-degree murder, you would not return a verdict of guilty of first-degree murder."
Relating the multifarious factors that might affect the weight to be accorded a given piece of evidence, such as defendant's confession, concerns a subordinate feature of the case. State v. Lester, N.C., 221 S.E.2d 268 (1976); State v. Hunt, 283 N.C. 617, 197 S.E.2d 513 (1973). "[I]nstructions as to the significance of evidence which do not relate to the elements of the crime itself or defendant' criminal responsibility therefor have been considered subordinate features of the case." State v. Hunt, supra at 624, 197 S.E.2d at 518. Whether a request is made for an instruction on a subordinate feature of the case involves a tactical decision by the defendant. Giving an instruction on a particular subordinate feature of the case may so concentrate attention upon that subject "as to divert attention from unrelated weaknesses in the State's case." State v. Hunt, supra at 624, 197 S.E.2d at 518. "In the absence of a special request the trial judge is not required to instruct the jury on subordinate features of a case." State v. Lester, supra, 221 S.E.2d at 271 (1976). Accord, State v. Hunt, supra, 283 N.C. at 623, 197 S.E.2d at 517-18. No such special request was made in this instance. The assignment of error is overruled.
4. Did the court err in denying the motion of the defendant to set aside the verdict and judgment for that the death penalty is unconstitutional and unlawful?
Our Court has considered this question on many occasions and found it to be without merit. It would serve no purpose at this time to plow this ground again. State v. Griffin, 288 N.C. 437, 219 S.E.2d 48 (1975) and cases cited therein.
Because of the seriousness of this case, we have carefully examined the entire record. Our examination discloses that the record is free from prejudicial error. In the judgment rendered we find
No error.