STATE of North Carolina
v.
Kermit SMITH, Jr.
No. 124A81.
Supreme Court of North Carolina.
June 2, 1982.*269 Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. Donald W. Stephens, Raleigh, for the State.
Dwight L. Cranford, Roanoke Rapids, for defendant-appellant.
COPELAND, Justice.
Defendant contends that various errors require either a new trial upon all of the charges or a new sentencing hearing. We disagree and affirm defendant's convictions and the sentences of death and imprisonment imposed upon him for the brutal murder, rape and robbery of Whelette Collins.
GUILT PHASE: IIV
I.
Prior to trial, defendant filed written motions requesting individual voir dire and sequestration of the jurors during voir dire and sequestration of the jury and the State's witnesses during the trial pursuant to G.S. 15A-1214(j), -1225, -1236(b). Judge Fountain denied these motions on the day of trial. In his brief, defendant concedes that these matters were addressed to the sound discretion of the presiding judge and that this record fails to disclose prejudicial error or an abuse of discretion in the *270 judge's rulings.[2] We agree. See, e.g., State v. Moore, 301 N.C. 262, 271 S.E.2d 242 (1980); State v. Johnson (I), 298 N.C. 355, 259 S.E.2d 752 (1979); State v. Barfield, 298 N.C. 306, 259 S.E.2d 510 (1979), cert. denied, 448 U.S. 907, 100 S. Ct. 3050, 65 L. Ed. 2d 1137 (1980).
Defendant nonetheless complains that the judge should have permitted oral argument by counsel before he ruled upon the motions. This complaint is neither well-founded nor timely. There is nothing in the record which suggests that Judge Fountain, either by word or deed, intended to prevent defense counsel from speaking in support of the written motions. To the contrary, the record generally shows that counsel did not have anything to say beyond that which was already fully stated in the motions themselves and elected not to utilize his opportunity to be heard.[3] If, however, as defendant now contends, vigorous oral argument upon these matters was truly desired, it would have been quite simple and most prudent to have informed the trial court of it by means of an express request to be heard. Defendant, however, stood silently by and did not object to the manner in which the court conducted its proceedings upon the discretionary motions. In these circumstances, defendant has waived whatever objection he may have had, and his belated complaint may not be "heard" on appeal. In any event, we seriously doubt that a mere refusal by the trial court to receive supportive oral argument would, in and of itself, demonstrate substantive, reversible error in the denials of discretionary motions under G.S. 15A-1214, -1225, -1236.[4] The assignment of error is overruled.
II.
Defendant was indicted for armed robbery. Upon his motion, however, the trial court reduced this charge to common law robbery at the conclusion of the State's evidence. Defendant assigns error to the trial court's subsequent failure to set aside the jury's verdict of guilty of the lesser offense upon the ground that the State's evidence was also insufficient to show his commission of that crime.
Common law robbery is the felonious, non-consensual taking of money or personal property from the person or presence of another by means of violence or fear. State v. Moore, 279 N.C. 455, 183 S.E.2d 546 (1971); State v. Lawrence, 262 N.C. 162, 136 S.E.2d 595 (1964). Defendant maintains that, although there was evidence to support an inference that he unlawfully took $7.00 and a ring belonging to Whelette Collins, there was absolutely no evidence to support a conclusion that he stole these items from her while she was alive through the use of force or fear. The record plainly refutes this contention.
All of the State's evidence, both direct and circumstantial, must be viewed in the light most favorable to the State with every reasonable intendment being made in its favor. See State v. Simpson, 303 N.C. 439, 279 S.E.2d 542 (1981); State v. Agnew, 294 N.C. 382, 241 S.E.2d 684, cert. denied, 439 U.S. 830, 99 S. Ct. 107, 58 L. Ed. 2d 124 (1978). The pertinent evidence in this respect has been set forth in the lengthy recital of the evidence at the beginning of this opinion, and easy reference can be made thereto. It suffices to say here that the State's evidence was certainly substantial enough to convince a rational trier of fact that defendant, who had gone to the college intending to steal money from students, took money from Whelette Collins as *271 he threatened her with what appeared to be a deadly weapon, soon after he kidnapped her and her two companions, at the nearby spot where he transferred the girls to his own car. This was long before he finally raped and killed her at the distant, deserted rock quarry. That being so, the instant case is clearly distinguishable from State v. Powell, 299 N.C. 95, 102, 261 S.E.2d 114, 119 (1980), where our Court held that a charge of armed robbery should have been dismissed because the evidence only indicated that the defendant had committed larceny by taking certain objects "as an afterthought once the victim had died." In contrast, the evidence before us now tends to show that defendant robbed the victim of what little money she had while she was with her companions and still very much alive and afraid. Consequently, we uphold defendant's conviction of common law robbery.
III.
Defendant argues that the trial judge did not fully state his "numerous" contentions concerning the charges against him and unfairly gave greater stress to the contentions of the State in his final instructions to the jury. The argument is without merit.
To start with, defendant waived any objection to the manner or length of the judge's statements of the contentions of either side by failing to make an appropriate challenge at trial before the jury retired. State v. Virgil, 276 N.C. 217, 172 S.E.2d 28 (1970); State v. Goines, 273 N.C. 509, 160 S.E.2d 469 (1968). However, even if defendant had properly preserved such an exception for our review, we would not find prejudicial error upon this record.
This is not a case in which the trial court utterly failed to state any of the defendant's contentions after reciting those of the State. See, e.g., State v. Hewett, 295 N.C. 640, 247 S.E.2d 886 (1978). Rather, Judge Fountain generally referred to defendant's contentions throughout his charge to the jury, as follows:
He contends ... from the evidence offered, that you should not be satisfied from that evidence and beyond a reasonable doubt that he is guilty of anything or that, if you find him guilty of anything, that you should find him guilty of only the least aggravating offense with which he is charged. But, actually, he contends, members of the jury, by his plea of not guilty, that he is innocent; that the State has failed to prove his guilt and that, under all the circumstances, you should acquit him of all charges.
....
... Of course, the defendant contends that you should have a reasonable doubt that he killed her. He contends that you should acquit him of the charge of murder in the first degree.
....
... If he did not take any money from her, he could not be guilty of common-law robbery....
As to that, the defendant contends that there is no evidence sufficient to justify you finding that he took any money from her or that, if he did, it resulted from violence or putting her in fear.... He contends that it didn't happen and that he did not put her in fear. Record at 63, 66 and 68.
It is true that defendant's contentions, as stated by the trial court, supra, seem sparse or brief in comparison to those presented in the State's behalf. However, the requirement that equal stress must be given to the contentions of both sides does not mean that the respective statements thereof must also be of corresponding lengths, consuming similar amounts of time. State v. Banks, 295 N.C. 399, 245 S.E.2d 743 (1978); State v. King, 256 N.C. 236, 123 S.E.2d 486 (1962); State v. Sparrow, 244 N.C. 81, 92 S.E.2d 448 (1956). In the case at bar, defendant did not offer independent evidence at the guilt phase, he only elicited minor evidence upon cross-examination which tended to detract from, and not substantively negate, the weight of the State's circumstantial evidence, and he did not specifically request further elaboration by the trial court upon any point of contention in *272 the case. Under these circumstances, the record as a whole convinces us that Judge Fountain adequately and fairly summarized defendant's essential contentions. See State v. Spicer, 299 N.C. 309, 261 S.E.2d 893 (1980); see also State v. Moore, 301 N.C. 262, 271 S.E.2d 242 (1980).
IV.
In the course of its instructions upon the premeditation and deliberation elements of first degree murder, the trial court told the jury that there was no evidence of "any just cause or legal provocation to kill" in the case. Defendant believes that the trial court thereby violated G.S. 15A-1222 which prohibits the expression of an opinion upon any question of fact to be decided by the jury. We hold that the isolated comment was not erroneous or prejudicial.
First, we do not believe that Judge Fountain's reference to the complete absence of certain evidence constituted an impermissible opinion upon a controverted fact. Rather, the contested statement was merely a legal recognition, correctly made upon the record, that the State's evidence had not disclosed the presence of just cause or adequate provocation to excuse the killing and that the defendant had not fulfilled his burden of going forward with or producing any such evidence either. Cf. State v. Boone, 299 N.C. 681, 263 S.E.2d 758 (1980); State v. Tate, 294 N.C. 189, 239 S.E.2d 821 (1978); State v. Hankerson, 288 N.C. 632, 220 S.E.2d 575 (1975), rev'd on other grounds, 432 U.S. 233, 97 S. Ct. 2339, 53 L. Ed. 2d 307 (1976). Two analogous decisions of this Court are instructive and implicitly supportive of the conclusion we reach here: State v. Byrd, 121 N.C. 684, 28 S.E. 353 (1897), and State v. Capps, 134 N.C. 622, 46 S.E. 730 (1904). In Byrd, the Court held that in the absence of "any evidence, even a scintilla, tending to show self-defense.... it was proper for the court to instruct the jury that there was no such evidence." 121 N.C. at 685, 28 S.E. at 353. In Capps, the Court also stated that "whether there is any evidence ... to rebut the implied malice [in a killing] is a question of law." 134 N.C. at 628, 46 S.E. at 732. In a similar vein, we are also persuaded that it is not error for the trial court simply to inform the jury as to whether or not specific evidence relevant to justification or mitigation has been introduced in a homicide prosecution. This is determined as a matter of law, not of fact. Such an instruction does not therefore invade or interfere with the exclusive province of the jury to decide and weigh the facts presented, and, in reality, it amounts to little more than a "summary" of the pertinent evidence upon a particular aspect of the case.
Secondly, there is no indication that Judge Fountain's statement wrongfully or absolutely withdrew from the jury's consideration any circumstances which might have tended to negate premeditation, deliberation or malice in the charged killing, or that it improperly removed from the State the burden of proving the existence of those elements beyond a reasonable doubt. See Record at 65-68. Simply put, there is no reason to believe that the jury was misled or confused by the trial court's remark; thus, we can perceive no ascertainable prejudice to defendant in any event.
PENALTY PHASE: VVIII
V.
At the sentencing hearing, two psychiatrists stated opinions that defendant suffered from the emotional disturbance of antisocial personality, and, as a result, his capacity to appreciate the criminality of his conduct and to conform his conduct to the requirements of the law was impaired at the time of the murder. The trial court accordingly submitted to the jury, inter alia, the corresponding factors of G.S. 15A-2000(f)(2) and (6) in mitigation of defendant's crime. The jury subsequently found that defendant had committed the murder under the influence of a mental or emotional disturbance, G.S. 15A-2000(f)(2); however, it did not find that defendant's capacity was also impaired at the time, G.S. 15A-2000(f)(6).
*273 Defendant contends that the trial court erred by failing to give a requested peremptory instruction concerning the impairment of his capacity in light of the "uncontradicted" expert opinions, supra, and by not explaining more fully or clearly the legal nature of that mitigating circumstance.[5]
Our analysis of defendant's contentions about the trial court's instructions regarding the mitigating circumstance of G.S. 15A-2000(f)(6) is governed by the standards set forth in our previous decision in State v. Johnson (I), 298 N.C. 47, 257 S.E.2d 597 (1979). In Johnson (I), the Court held that, although the defendant has the burden of proving the existence of a mitigating circumstance, upon a proper request "[w]here... all of the evidence in the case, if believed, tends to show that a particular mitigating circumstance does exist, the defendant is entitled to a peremptory instruction on that circumstance," but that such "[a] peremptory instruction is inappropriate when there is conflicting evidence on [that] issue." 298 N.C. at 76-77, 257 S.E.2d at 618. The trial court did not err in failing to give a peremptory instruction about the defendant's impairment under G.S. 15A-2000(f)(6) in Johnson (I) because there was lay testimony in the case which supported a finding contrary to that advanced by an expert who testified in defendant's behalf upon the issue. However, this Court was compelled to order a new sentencing hearing in Johnson (I) upon another ground: the trial court's inadequate treatment of the impairment issue in its substantive instructions to the jury. On this point, Justice Exum, speaking for the Court, said the following:
The trial court should have explained the difference between defendant's capacity to know right from wrong which defendant conceded he possessed, and the impairment of his capacity to appreciate the criminality of his conduct from which his evidence indicated and he contends he suffered. While defendant might have known that his conduct was wrong, he might not have been able to appreciate, i.e., to fully comprehend, or be fully sensible, of its wrongfulness. Further while his capacity to so appreciate the wrongfulness of his conduct might not have been totally obliterated, it might have been impaired, i.e., lessened or diminished. The trial court should also have more carefully explained that even if there was no impairment of defendant's capacity to appreciate the criminality of his conduct, the jury should nevertheless find the existence of this mitigating factor if it believed that defendant's capacity to conform his conduct to the law, i.e., his capacity to refrain from illegal conduct, was impaired. Again, this does not mean that defendant must wholly lack all capacity to conform. It means only that such capacity as he might otherwise have had in the absence of his mental defect is lessened or diminished because of the defect.
298 N.C. at 69-70, 257 S.E.2d at 614; see also State v. Johnson (II), 298 N.C. 355, 373-75, 259 S.E.2d 752, 763-65 (1979). Applying these principles to the case at bar, we hold that Judge Fountain's instructions upon G.S. 15A-2000(f)(6) were consistent with the evidence and sufficient under the law.
Ample evidence was introduced at the guilt phase of the trial which authorized a reasonable inference and conclusion by the jury that defendant had the capacity to appreciate the character of his conduct and the ability to conform it to legal requirements when he murdered Whelette Collins, despite the contrary opinions of the psychiatrists. For example, the testimony of Dawn Killen and Yolanda Woods, the surviving girls who were restrained by the defendant for over nine hours on the night in question, generally tended to show that, from the very beginning to its tragic end, defendant executed a deliberate and carefully *274 thought-out plan to fulfill certain criminal intents and satisfy his perverted lust, that he quickly recognized and adjusted to any new obstacles or barriers to his desired goals as such appeared, and that he was constantly aware of the legal implications of his various actions. In particular, these girls testified that, at several critical junctures in the evening's events, defendant calmly contemplated what he should do next and took special precautions against the possibility of being apprehended by the police, including the removal of his fingerprints from the victim's car, the transport of the girls to a secluded spot, and the evaluation of whether they had been able to see enough in the dark to identify him or his car. Record at 10, 11, 13 and 37. The additional facts demonstrated by the State concerning defendant's callous remark to the victim, after the rape, that he could put her out of her misery and his later attempt to conceal her body by "anchoring" it with a cinder block in the pond also conflicted with the psychiatrists' after-the-fact opinions that defendant was legally unaware of and lacked control over his actions as he effected a sordid scheme culminating in murder. We shall not belabor this further. In sum, there was plenary other evidence in the record which sufficiently, if not equally, suggested that defendant was in complete control of his faculties when he committed the capital crime, comparing it against the expert evidence showing the presence of a legal impairment, and it was the jury's duty to decide what to believe. As all of the evidence did not therefore support the existence of the mitigating circumstance of G.S. 15A-2000(f)(6), the trial court correctly refused to give defendant's requested peremptory instruction upon it. State v. Johnson (I), supra.
Judge Fountain also competently explained the difference between legal insanity totally excusing a crime and legal impairment merely mitigating the punishment for a crime and properly emphasized that defendant's capacity to appreciate the criminality of his conduct or to conform his conduct to the law only had to be "lessened or reduced" in order for this mitigating circumstance to exist. The able judge additionally reminded the jury that defendant was relying upon "the evidence of the doctors" and "his history of psychiatric problems" to establish his diminished or impaired capacity at the time of the murder. Record at 93-94. As a whole, these instructions complied fully with the essential dictates of Johnson (I) and (II), supra, as to the required extent and substance of a charge upon G.S. 15A-2000(f)(6). See also N.C.P.I.Crim. § 150.10, at 30-33 (1980).
VI.
The form of the sentencing issues submitted to the jury and their answers thereto were as follows:
ISSUE NO. ONE:
Do you unanimously find from the evidence beyond a reasonable doubt that one or more of the following aggravating circumstances existed at the time of the commission of the murder?
ANSWER: Yes.
1. Was the murder committed while the defendant was engaged in the commission of or attempt to commit rape of the deceased?
ANSWER: Yes.
2. Was the murder committed while the defendant was engaged in the commission of or attempt to commit robbery of the deceased?
ANSWER: Yes.
3. Was the murder committed while the defendant was engaged in the commission of or attempt to commit kidnapping of the deceased?
ANSWER: Yes.
4. Was the murder especially heinous, atrocious or cruel?
ANSWER: Yes.
ISSUE NO. TWO:
Do you find that one or more of the following mitigating circumstances exist?
1. The murder was committed while the defendant was under the influence of mental or emotional disturbance.
ANSWER: Yes.
*275 2. At the time of the murder, the capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law was impaired.
ANSWER: No.
3. The age of the defendant at the time of the crime.
ANSWER: No.
4. That the defendant has no significant history of prior criminal activity.
ANSWER: No.
5. Are there any other circumstances arising from the evidence which you, the jury, deem to have mitigating value?
ANSWER: No.
ISSUE NO. THREE:
Do you unanimously find from the evidence beyond a reasonable doubt that the aggravating circumstances are sufficient to outweigh the mitigating circumstances?
ANSWER: Yes.
ISSUE NO. FOUR:
Do you unanimously find from the evidence beyond a reasonable doubt that the aggravating circumstances found by you are sufficiently substantial to call for the imposition of the death penalty?
ANSWER: Yes.
Record at 100-01.
The trial court twice instructed the jury that it should proceed to issue four only after answering issues one and three affirmatively and, then if it also answered that final issue affirmatively, that it would have the "duty" to return a verdict of death against the defendant. Record at 96-99. Defendant argues that the trial court thereby erroneously impeded "a truly individualized assessment of the propriety of the death penalty" by the jury in contravention of the provisions of G.S. 15A-2000.
We upheld an identical instruction in State v. Pinch, also decided this date. We held there that the trial court had correctly advised the jury "that it had a duty to recommend a sentence of death if it made the three findings necessary to support such a sentence under G.S. 15A-2000(c)." [Issues one, three and four, supra, correspond to these necessary statutory findings.] Among other things, the Court reasoned that:
The jury had no such option to exercise unbridled discretion and return a sentencing verdict wholly inconsistent with the findings it made pursuant to G.S. 15A-2000(c). The jury may not arbitrarily or capriciously impose or reject a sentence of death. Instead, the jury may only exercise guided discretion in making the underlying findings required for a recommendation of the death penalty within the "carefully defined set of statutory criteria that allow them to take into account the nature of the crime and the character of the accused."
___ N.C. ___, ___, 292 S.E.2d 203, 227 (1982) (citations omitted).
We believe that this reasoning applies with even greater force in the instant case since Judge Fountain carefully explained to the jury that it should exercise its full and considered discretion in deciding issue four, supra:
That is for you to determine depending upon how you find from the case, from the issues you've answered. It is not something you would answer according to whim or caprice or guesswork, but you would weigh all the circumstances that you have found, if any, to be aggravating, those that you've found to be mitigating, and determine whether you find from the evidence and beyond a reasonable doubt that the aggravating circumstances found by you are sufficiently substantial; that is, sufficiently important to call for the imposition of the death penalty. If the State has satisfied you from the evidence and beyond a reasonable doubt that the aggravating circumstances found by you are sufficiently substantial to call for the imposition of the death penalty, you would answer that, Yes; otherwise, you would answer it, No. Record at 96-97.
It was only after this clear direction, which comports with the procedure contemplated in G.S. 15A-2000(b), that Judge Fountain *276 further told the jury that it had a duty to recommend capital punishment upon its affirmative answer to issue four.
We hold that Pinch, supra, constitutes sound and binding authority and is indistinguishable from the case at hand; consequently, we must overrule defendant's assignment of error. Accord State v. Williams, ___ N.C. ___, 292 S.E.2d 243 (filed this date); State v. Goodman, 298 N.C. 1, 257 S.E.2d 569 (1979); N.C.P.I.Crim. § 150.10 (1980).
VII.
Defendant contends that the trial court should have instructed the jury that the court would impose a life sentence if the jury could not unanimously agree on a recommendation of punishment. This contention is meritless. Our Court has previously decided that it is improper for the jury to consider what may or may not happen in the event it cannot reach a unanimous sentencing verdict. State v. Hutchins, 303 N.C. 321, 353, 279 S.E.2d 788, 807 (1981); State v. Johnson (II), 298 N.C. 355, 369-70, 259 S.E.2d 752, 761-62 (1979). We shall take this opportunity, however, to state our agreement with the observation made by the Virginia Supreme Court, in a case cited to us in the State's brief, that such an instruction would be tantamount to "an open invitation for the jury to avoid its responsibility and to disagree." Justus v. Commonwealth, 220 Va. 971, 979, 266 S.E.2d 87, 92 (1980); accord Houston v. State, 593 S.W.2d 267, 278 (Tenn.1980).
VIII.
Defendant finally makes a sweeping assertion, based upon all of his prior contentions, that the trial court should have set aside the jury's recommendation of death upon its own motion. Judge Fountain had no authority to do so after the jury had made the necessary findings to support imposition of the death penalty under G.S. 15A-2000(c). Our Court has previously stated that the trial court does not have "the power to overturn a death sentence" and that the lower court is "obligated to enter judgments consistent with the jury's unanimous recommendation that defendant be sentenced to death." State v. Hutchins, 303 N.C. 321, 356, 279 S.E.2d 788, 809 (1981); State v. Johnson (II), 298 N.C. 355, 371, 259 S.E.2d 752, 762 (1979).
IX.
Pursuant to the mandate of G.S. 15A-2000(d), this Court accords the greatest diligence and care in the review of a capital case. We have fully considered all of defendant's assignments of error in the record on appeal. We are convinced that defendant's trial and sentencing hearing upon the charged offenses were fairly conducted without the commission of prejudicial error.
The judgment of death was lawfully imposed. The evidence supported the submission of the aggravating circumstances of G.S. 15A-2000(e)(5), upon the separate theories of the rape, robbery and kidnapping of the deceased, and 15A-2000(e)(9), that the murder was especially heinous, atrocious or cruel. We find no indication in the record that the death penalty was recommended by the jury under the influence of passion or prejudice. Finally, we hold that the sentence of death for the intentional, deliberate and senseless murder of Whelette Collins was not excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant. See, e.g., State v. Pinch, ___ N.C. ___, 292 S.E.2d 203 (filed this date); State v. Williams, ___ N.C. ___, 292 S.E.2d 203 (filed this date); State v. Taylor, 304 N.C. 249, 283 S.E.2d 761 (1981). Defendant's criminal acts were certainly as reprehensible as those committed by the defendants in State v. Rook, 304 N.C. 201, 283 S.E.2d 732 (1981), cert. denied, ___ U.S. ___, 102 S. Ct. 1741, 72 L.Ed.2d ___ (1982), and State v. McDowell, 301 N.C. 279, 271 S.E.2d 286 (1980), cert. denied, 450 U.S. 1025, 101 S. Ct. 1731, 63 L. Ed. 2d 220 (1981). The State's evidence revealed that the nineteen year old victim suffered agonizing and humiliating torture at the merciless hands of the defendant who kidnapped her, raped her, cruelly mocked her as she stood naked *277 in the cold and finally beat her to death in a wanton, brutal manner using a cinder block. Mere words are insufficient vehicles to describe the tragic horror of what happened to this poor girl and not even capital punishment can fully repay the price of her inexplicable and needless suffering.
We find no error in the guilt or penalty phases of defendant's trial.
NO ERROR.
CARLTON, J., did not participate in the consideration or decision of the case.
EXUM, Justice, dissenting as to sentence.
For the reasons stated in Part I of my dissent in State v. Pinch, ___ N.C. ___, 292 S.E.2d 203 (filed this date), I disagree with the majority's conclusion in Part VI of its opinion. In my view it was prejudicial error for the trial judge to instruct the jury that it had a duty to recommend the death sentence if it answered certain issues favorably to the state. My vote, therefore, is to vacate the judgment imposing the death sentence and remand for a new sentencing hearing.
I concur in the majority's conclusion that there is no error in the guilt phase of the case.
NOTES
[2] Defendant does not challenge the jury which was subsequently empanelled to try him or contend that there was collusion among the witnesses who testified against him.
[3] Indeed, defendant has not apprised this Court of what else could have or would have been said in furtherance of the motions if the necessary opportunity, which he alleges was denied by the trial court, had instead been affirmatively provided to him and his counsel.
[4] We note that, although fundamental fairness would seem to require it, at least when a proper and timely request therefor is made, none of these statutes specifically mandates the receipt and consideration of oral arguments prior to the entry of final rulings by the trial court.
[5] At the outset, we note that the trial court also denied defendant's request for a peremptory instruction upon the mitigating circumstance of a mental or emotional disturbance. However, defendant did not assign error to this denial since it obviously did not "impair" the jury's ability to make a finding favorable to him upon the issue.