State v. McKethan, 679

• Decision Date: 02 January 1967
• Docket Number: No. 679,679
• Citation: 269 N.C. 81,152 S.E.2d 341
• Court: North Carolina Supreme Court
• Parties: STATE, v. David McKETHAN.

Page 341

152 S.E.2d 341

269 N.C. 81

STATE, v. David McKETHAN.

No. 679.

Supreme Court of North Carolina.

Jan. 2, 1967.

T. W. Bruton, Atty. Gen., Millard R. Rich, Jr., Asst. Atty. Gen., for the State.

Bobby G. Deaver, Fayetteville, for defendant appellant.

HIGGINS, Justice.

The appellant's assignments of error on the appeal present three questions of law: (1) Did the court commit error by denying the motion for a change of venue? (2) Did the court commit error by denying defendant's motions for a new trial for that (a) Police Officer Studer stated the photograph by which the prosecuting witness identified the defendant was taken from the group section designated, 'Rape'; and (b) Deputy Sheriff Snipes, in answer to a question by defense attorney, said, 'Yes, sir, I have had David for other sex offenses?' (3) Did the court commit error by admitting the incriminating statement given to Officer Snipes by the defendant after his arrest?

The defendant's motion for a change of venue on the ground of unfavorable publicity was addressed to the sound discretion of the court. The court made inquiry and concluded no reason was made to appear why a fair jury could not be selected from Cumberland County. Careful instructions were given the jury not to read or hear accounts of the trial. A motion for a change of venue or for a special venire from another county, upon the ground of unfavorable publicity, is addressed to the sound discretion of the trial court. State v. Scales, 242 N.C. 400, 87 S.E.2d 916; State v. Godwin, 216 N.C. 49, 3 S.E.2d 347; State v. Lea, 203 N.C. 13, 164 S.E. 737.

A challenge to the poll (to each prospective juror) may be peremptory within the limits allowed by law, or for cause without limit if cause is shown. The record fails to disclose that the defendant had exhausted his peremptory challenges, or that any juror was accepted to which he had legal objection upon any ground. State v. Rorie, 258 N.C. 162, 128 S.E.2d 229; State v. Corl, 250 N.C. 258, 108 S.E.2d 615. A defendant on trial has the right to reject any juror for cause or within the limits of his peremptory challenges before the panel is completed. State v. Walls, 211 N.C. 487, 191 S.E. 232; appeal dismissed, 302 U.S. 635, 58 S.Ct. 18, 82 L.Ed. 494.

The defendant has assigned as error the court's refusal to withdraw a juror and order a mistrial because of two occurrences during the presentation of the State's case. After Miss Fendall had identified the photograph of the defendant from the police files, the solicitor asked the officer what designation in the police files the photograph came from. There was neither objection to the question nor to the source of the photographs. The officer answered, 'Rape.' Counsel then objected and the court sustained the objection. Defense counsel did not object until after the question had been asked and the answer was in. He did not move to strike. The solicitor's question was improper. The court sustained the objection as soon as the court had opportunity, and without waiting for a motion. Ordinarily failure to object in apt time to incompetent testimony will be regarded as waiver of objection and its admission is not assignable as error unless the evidence is forbidden by statute. State v. Warren, 236 N.C. 358, 72 S.E.2d 763 (citing many cases). If the testimony is incompetent, objection thereto should have been interposed to the question at the time it was asked as well as to the answer when given. Objection not taken in apt time is waived. State v. Hunt, 223 N.C. 173, 25 S.E.2d 598; State v. Merrick, 172 N.C. 870, 90 S.E. 257. The court had no opportunity to rule on the motion to strike because no such motion was made.

As a second ground for a mistrial, defendant cites the defense counsel's question and Officer Studer's answer as here given: Question: Did you know David McKethan prior * * * to this incident? The officer answered, 'Yes, sir. I have had David for other sex offenses.' Defense counsel moved to strike and that the jury be instructed to disregard the statement. The court excused the jury and in its absence made inquiry of the officer as to what he meant by the statement. The officer said he had made an investigation of the complaint against the defendant but that the parents of the child and the father of the defendant settled the dispute without any criminal charge against the defendant. The court offered to permit defense counsel to have the witness give the foregoing explanation. Counsel elected not to offer the explanation; whereupon the judge recalled the jury and gave the charge heretofore quoted.

The final assignment of error involves the admissibility of the confession signed, sworn to, and admitted in evidence over the defendant's objection. When the statement was offered and challenged, the court excused the jury and in its absence followed the procedure approved in this state, heard evidence, both for the defendant and for the State, involving the circumstances under which the statement was made. State v. Walker, 266 N.C. 269, 145 S.E.2d 833; State v. Keith, 266 N.C. 263, 145 S.E.2d 841; State v. Barnes, 264 N.C. 517, 142 S.E.2d 344.

The defendant testified on the Voir dire (and later before the jury) that he spent the entire night of September 14--15 in the home of his aunt. According to his testimony he was not involved in any attack on Miss Fendall; that he was not advised of any constitutional rights. He further testified the officers took his clothes and continued the interrogation while he put on other clothes which the officers furnished him. He signed a one-page paper which provided for a lie detector test and a head examination; that he can read and has a tenth grade education.

The officers testified they found the defendant in bed at the home of his aunt early on the morning of September 15. The bottoms of his trousers and his shoes were wet. He was taken to the interrogation room, fully advised of all his...