State v. Baker

MARTIN, Judge.

Defendant first assigns as error the action of the court in allowing the introduction of a particular photograph into evidence. He contends the photograph does not illustrate the testimony of the doctor and is prejudicial because it depicts a man covered with blood. The photograph illustrates the doctor’s previous testimony concerning the cause of death of the deceased, and according to the doctor’s testimony, it correctly and accurately depicts the entrance wound into the face of the deceased. If a photograph is relevant and material, the fact that it is gory or gruesome, or otherwise may tend to arouse prejudice, will not alone render it inadmissible. 1 Stansbury, N. C. Evidence 2d, § 34, pp. 96-97 (Brandis Revision). Testimony and photographs illustrating the cause of death of the deceased is clearly relevant and this assignment of error is overruled.

Defendant next contends the court committed prejudicial error in not allowing him to request a limiting instruction regarding the admission of photographs. The record indicates that after the photograph had been ruled admissible counsel for defendant renewed his objection as to admissibility but did not attempt to request limiting instructions. Defendant was in no way prevented from requesting such instructions at that time. This assignment of error is without merit and is overruled.

Next, defendant assigns as error the action of the'court in allowing testimony regarding defendant’s silence when questioned. Officer Whisnant testified that defendant remained silent when questioned by the authorities after the incident. Immedi*607ately after the admission of this testimony, the court allowed defendant’s motion to strike, and then instructed the jury that:

“Members of the Jury, you will not consider any portion of the witness’ answer relating to the failure of the defendant, Baker, to make any statement to him, and the Court instructs you as a matter of law that the defendant had a perfect right to remain silent if he chose to do so, and that you may not at any time in your deliberations consider against this defendant the fact that he gave no statement to this or any other officer of law.”

Defendant relies on the recent cases of State v. Castor, 285 N.C. 286, 204 S.E. 2d 848 (1974) and State v. McCall, 286 N.C. 472, 212 S.E. 2d 182 (1975) and argues that his in-custody silence may not be used against him after he was properly warned of his right to remain silent. In the case at bar, the trial court instructed the jury that defendant’s silence was proper and should not be held against him in any way. This was a correct statement of the law and cured any error that may have occurred by admission of the testimony. Unlike Castor and McCall, no error prejudicial to defendant has resulted in the present case.

We have carefully reviewed defendant’s remaining assignments of error and find them to be without merit. .

We hold that defendant had a fair trial free from prejudicial error.

No error.

Judges Clark and Arnold concur.