41 N.C. App. 213 | N.C. Ct. App. | 1979
In his brief, defendant brings forward six arguments out of 20 assignments of error. The remaining assignments of error are deemed abandoned. Rule 28, North Carolina Rules of Appellate Procedure.
It is essential in understanding the arguments presented by defendant on appeal to note the theories of the State and the defendant at trial: The State apparently proceeded on the theory that the defendant shot the deceased at approximately 8:00 p.m. on the evening of 24 April 1978 inside the home of Geneva Ar-rington or upon the front porch; that defendant and Geneva Arrington thereafter waited until approximately 10:00 p.m. and placed the body of the deceased in the yard of her home, fired the pistol of deceased and then arranged his body and the pistol in a manner calculated to give the appearance that the killing had been committed in self defense. Defendant contended that he and Geneva Arrington arrived at her home by foot at approximately 10:45 p.m. on 24 April 1978 and that, upon approaching the front porch of the dwelling, they were surprised by the deceased who had been hiding behind a wood pile and that the deceased rushed toward them firing a pistol requiring defendant to fire upon the deceased in self defense. Defendant’s arguments on appeal evolve primarily around testimony of witnesses tending to establish the time of death.
Q. Do you have an opinion as to whether or not the blood spots you described were fresh or otherwise?
Mr. Norris: Objection.
The Court: Overruled. If he has an opinion.
A. Yes, sir, I have the opinion that it was fresh blood that it curdled. I wouldn’t say how fresh, I would say within one to three hours, maybe.
Defendant argues that the sheriff’s answer could not reasonably have been expected to be reliable or trustworthy and was a “mere surmise based upon insufficient knowledge and experience.”
We believe the sheriff’s answer to be a mere shorthand statement of fact. Our Supreme Court has held that a witness may testify as to whether a substance he observed was blood. State v. Jones, 291 N.C. 681, 231 S.E. 2d 252 (1977). We do not believe it too great an extension of the rule to allow the witness to go further and state that the blood appeared fresh or otherwise. In State v. Jones, supra, 291 N.C. at 685, 231 S.E. 2d 254, the Supreme Court stated:
The average layman is familiar with bloodstains; they are a part of common experience and knowledge. When a witness says he saw blood he states an opinion based on his observations, and most likely it would be exceedingly difficult for him to describe the details which lead him to conclude that the stains were blood. When he testifies they looked like blood to him he has stated his conception. “This Court has long held that a witness may state the ‘instantaneous conclusions of the mind as to the appearance, condition, or mental or physical state of persons, animals, and things, derived from observation of a variety of facts presented to the senses at one and the same time.’ Such statements are usually referred to as shorthand statements of facts.” State*220 v. Spaulding, 288 N.C. 397, 411, 219 S.E. 2d 178, 187 (1975). See 1 Stansbury, N. C. Evidence, § 125 (Brandis rev. ed. 1973).
Moreover, defendant has shown no prejudice by the admission of this testimony. The sheriff’s statement that the blood was fresh “within one to three hours, maybe” is as consistent with the defendant’s contentions as it is with the contentions of the State. The sheriff did not arrive on the scene until 11:28 p.m. and defendant contended the shooting took place sometime after 10:00 p.m. This assignment of error is overruled.
Defendant next contends that the trial court committed prejudicial error in allowing inconsistent testimony by Sheriff Ponder. The sheriff initially stated that the defendant was first seen by him at the Blankenship home and that he “don’t recall much about him. He looked much as he does now.” Immediately thereafter this exchange took place:
Q. Was his clothing wet or dry, Sheriff Ponder?
A. I was soaked and I don’t recall his clothes. I believe they were dry, that’s what I would say if I had to say anything, it was pouring the rain and I don’t recall myself.
Defendant argues that this contradictory testimony was prejudicial because the time of the shooting was a critical issue of fact. We do not agree.
While this witness was obviously uncertain as to the correct answer, we do not believe that, taken contextually, his answer could have any prejudicial effect on the jury. In the first place, the witness clearly indicated that he was not certain whether the defendant’s clothes were wet or dry when he observed him. His uncertainty was apparent to the jury and surely affected the probative value of the testimony. In essence, the witness impeached his own testimony. We note also that defendant elected not to challenge the sheriffs testimony in this respect on cross-examination.
Defendant next contends that the trial court erred in permitting the State’s witness, Dr. Biggers, to testify as to the blood alcohol content of the deceased. He argues that there was no evidence to establish the chain of custody of the blood sample
Not every erroneous ruling on the admissibility of evidence will result in a new trial being ordered. 1 Stansbury, N.C. Evidence, § 9, p. 20 (Brandis rev. ed. 1973). “[T]he burden is on the appellant not only to show error but to enable the court to see that he was prejudiced or the vedict of the jury probably influenced thereby.” Collins v. Lamb, 215 N.C. 719, 720, 2 S.E. 2d 863, 864 (1939). In the present case, defendant has failed to show any possible prejudicial error resulting from the admission of this testimony. Two witnesses had testified that they smelled a moderate odor of alcohol about the body of the deceased. However, the record discloses no issue being made over the matter of consumption of alcohol by the deceased. There was other testimony that no alcohol was found in the area. The record is barren of any theory in which the consumption of alcohol by the deceased contributed to his death nor is there any indication of any attempt made to establish that alcohol played a role in the death of the deceased. Contextually, this testimony appears to be, at most, irrelevant and harmless.
Defendant also contends that the trial court erred in permitting the State to propound certain questions on cross-examination of the defendant and his witness, Geneva Arrington, which insinuated supposed facts for which there was no evidence at the trial. Defendant cites the rule of law which forbids the prosecuting attorney to inject into the trial of a cause to the prejudice of the accused by argument or insinuating questions supposed facts of which there is no evidence. State v. Phillips, 240 N.C. 516, 82 S.E. 2d 762 (1954).
We have carefully reviewed each of the questions by the State cited under this assignment of error. Suffice it to say that, with respect to each question, the record discloses at least some evidence to provide a factual basis for the questions asked on
Defendant’s final contention is that the trial court committed prejudicial error in permitting the State’s witness, Charlie Shook, to testify as to statements made by the defendant without first determining whether the statements were made before or after the shooting. We do not agree.
The substance of Shook’s testimony was that the defendant gave Shook two conflicting accounts of how the shooting occurred. Defendant first told Shook that he shot the decedent inside Geneva Arrington’s home. He later told Shook that he shot the decedent in Geneva Arrington’s yard. Defendant argues that the witness appeared unsure as to when the statements were made and that the timing of the statements is critical as the distinction between a threat or statement of intention made prior to an incident and the admission of an accused made after the commission of an alleged crime is a dramatic one.
The witness’s testimony on direct examination indicates that the statements were made after the shooting. The witness testified as to the time of his conversations with the defendant saying, “I believe it was after he had been released from jail on bond. I would say it was weeks afterwards.” On cross-examination, the witness testified that he believed the conversation occurred in April, which could have placed the conversation either before or after the shooting, as the incident occurred on 24 April.
While the witness’s cross-examination testimony could conceivably be susceptible to two differing interpretations, we do not feel that it is contradictory when considered in conjunction with the witness’s testimony on direct examination. Moreover, even if the witness’s total testimony did convey an uncertainty as to whether the conversations occurred prior or subsequent to the shooting, such uncertainty goes to the credibility and weight of the testimony. It is well established that the credibility, probative force, and weight of testimony are matters for the jury to decide.
We have reviewed the defendant’s remaining assignments of error and are impelled to conclude that they are without merit. The defendant received a fair trial, free from prejudicial error. In the trial below, we find
No error.