Appellant first contends that he was denied due process of law when the trial court overruled his motion to have the blood stains found on his clothing and the bullets taken from him and the decedent examined by an expert selected by him.
Prior to trial appellant filed a nine-part discovery motion pursuant to which the trial court allowed him to inspect his clothing, the bullet taken from his hand, the bullets and weapons taken from and around the pony keg, and the results of all ballistic, fingerprint and paraffin tests made on behalf of the state.
Appellant did not request the right to subject to scion
The trial court permitted appellant to inspect the results of the state’s ballistic tests. The photomicrographs of the bullet removed from appellant’s hand and the bullet removed from the decedent were made available to him. Sufficient information was given to appellant which could have been transmitted to an expert of his own choosing. He presented no such ballistics expert, nor did he request that one be provided him.
Considering counsel’s comprehensive cross-examination of the state’s expert witnesses and his failure to show how appellant was prejudiced in light of the evidence which was made available to him, we can find no clear abuse of that sound discretion which rests in the trial court in determining a defense motion for discovery. State v. Laskey (1970),
As to the composition of the jury, appellant contends that: (A) one venireman was improperly excused for cause contrary to Witherspoon v. Illinois (1968),
(A) In State v. Watson (1971),
“In selecting the members of a jury, unless a venireman states unambiguously that he would automatically vote against the imposition of capital punishment no matter what the trial might reveal, it cannot be assumed that this is his position.”
On examination by both the state and the defense,
“Q. After that consideration, I think you indicated to me that there would be a circumstance in which you would vote for the death penalty?
“A. No, sir, I don’t think so.
“Q. That could not happen even after you listened to the particular case?
“A. No, sir.”
Thereupon, appellant’s counsel asked her the following question: “Is there anything about the nature of this case that would keep you from listening on the question of the death penalty?” Her answer was: “I could listen.”
That logical reply was in response to a question not designed to elicit an “unambiguous response,” called for by Witherspoon, but falling outside the “sufficient latitude” granted counsel during the voir dire examination of prospective jurors in a capital case. State v. Anderson (1972),
Although the venireman indicated that she might be able to listen on the death penalty question, her prior unambiguous responses showed that she was irrevocably committed before the trial began to vote against the death penalty regardless of the facts and circumstances that might emerge in the course of the proceedings.
Thus, there was no error in the trial court’s sustaining of the state’s challenge for cause.
(B) The record shows that although two prospective jurors indicated doubt as to the innocence of appellant in view of the indictment returned against him, each demonstrated that they could act fairly and impartially. See State v. Elliott (1971),
(C) Swain v. Alabama (1965),
In view of his failure to specify the nature of the statements or remarks referred to or the manner in which he claims they prejudiced his conviction, we are unable to agree that his constitutional rights were infringed. Cf. State v. Tims (1967),
Appellant claims that the trial court erred in allowing in evidence an extrajudicial oral statement of appellant given to a nurse in charge of the emergency room at the hospital. He contends that the statement was given while under sedation, in police custody and without being advised of his constitutional rights.
The fact is that when the nurse came in contact with him, appellant inquired of her, “Is he dead?” to which she replied, “Is who dead?” Appellant replied, “The man who was kneeling.”
Custodial interrogation as defined in Miranda v. Arizona (1966),
Appellant has claimed a number of other errors. However, a careful examination of the record reveals them to be without merit for the following reasons :
1. The admission in evidence of photographs of an
2. The restraint of an accused by leg-irons while seated in a sheriff’s patrol car during the viewing of the scene of the crime by the jury cannot be the predicate for reversal of a conviction where an objection is not made until the trial has been resumed in the courtroom and the record fails to demonstrate that the jury was ever aware that the accused was so restrained.
3. Where the accused, as here, voluntarily submits himself to a public hospital’s emergency facilities for care, the bullet and blood removed from his person as well as his clothing and other effects are not subject to the protection of tbe Fourteenth Amendment of the United States Constitution. See Schmerber v. California (1966),
4. The control of redirect examination is committed to the discretion of the trial judge and a reversal upon that ground can be predicated upon nothing less than a clear abuse thereof.
5. Statements of counsel, even though highly irregular and prejudicial if heard by a jury, cannot be the subject of a reversal of a conviction unless the record reasonably shows that the statements were in fact heard by the jury.
6. A reversal of a conviction cannot be predicated upon improper inferences from the evidence made by a prosecutor in argument, where an objection is sustained and the jury is adequately warned to disregard the inferences.
7. The Supreme Court will not weigh evidence.
The judgment of the Court of Appeals is affirmed.
Judgment affirmed.