State v. Shutt

• Decision Date: 15 December 1971
• Docket Number: No. 13,13
• Parties: STATE of North Carolina v. Kenneth SHUTT.
• Court: North Carolina Supreme Court

Page 206

185 S.E.2d 206

279 N.C. 689

STATE of North Carolina v. Kenneth SHUTT.

No. 13.

Supreme Court of North Carolina.

Dec. 15, 1971.

Atty. Gen. Robert Morgan, Deputy Atty. Gen. Ralph Moody and Staff Atty. Charles A. Lloyd, Raleigh, for the State.

Wallace C. Harrelson, Greensboro, for defendant.

LAKE, Justice.

The defendant assigns as error the denial of his motion for judgment of nonsuit. There is no merit in this assignment of error. Upon such motion, all of the evidence for the State which is admitted, whether competent or incompetent and whether admitted over objection or otherwise, is considered, is taken to be true and is considered in the light most favorable to the State. State v. Roseman, N.C. 184 S.E.2d 289, decided November 10, 1971, and cases there cited. So considered, the evidence is clearly sufficient to support a finding that the offense charged in the bill of indictment was committed and that the defendant was the person who committed it.

After the State rested and after the solicitor had made his argument to the jury, but prior to the argument by counsel for the defendant, the State was permitted, over objection, to recall one of its witnesses, Sergeant Johnson, to testify that the Sandy Ridge Prison Camp is a unit for prisoners assigned to the Work Release Program and that the bus upon which prisoners returned to the camp after their work day stopped in front of the building where the alleged assault occurred. Again, after the conclusion of all arguments and the charge to the jury and after the jury had retired and commenced its deliberations, over objection, the State was permitted to reopen its case once more and to introduce in evidence the books of photographs and the picture of the defendant selected therefrom by Mrs. Henderson, which exhibits had previously been identified. Nothing in the record indicates that the jury was recalled to the courtroom or that these exhibits were ever exhibited to it. It is well settled that it is within the discretion of the trial judge to reopen a case and to admit additional evidence after both parties have rested and even after the jury has retired for its deliberations. State v. Jackson, 265 N.C. 558, 144 S.E.2d 584; State v. Perry, 231 N.C. 467, 57 S.E.2d 774; State v. Page, 215 N.C. 333, 1 S.E.2d 887; State v. Noblett, 47 N.C. 418; Stansbury, North Carolina Evidence, 2d Ed., § 24.

The defendant's Assignments of Error 10 through 14 relate to excerpts from the charge of the court to the jury. There is no merit in any of these and a detailed discussion of them would serve no useful purpose. Two of them are directed to the court's review of the evidence. Nothing in the record indicates that any error therein was called to the attention of the judge before the jury retired. They do not, as the defendant contends, constitute expressions of opinion by the court. The following statement by Justice Barnhill, later Chief Justice, in State v. Jessup, 219 N.C. 620, 14 S.E.2d 668, is pertinent to these assignments:

'The defendant complains, first, that the court, in detailing the evidence, expressed an opinion that certain facts were fully proven. This contention cannot be sustained. In reviewing the evidence the court clearly indicated that it was so doing by making reference to the witness and then detailing the substance of his testimony. A careful examination of the charge discloses that when it is considered as a whole the court below carefully followed the requirements of C.S. § 564 (GS 1--180), in stating the evidence in a plain and correct manner. The defendant is not permitted to segregate clauses or sentences thereof which, when considered alone, unrelated to the charge as a whole, make it appear that the judge was indicating his own personal opinion in respect to the weight and sufficiency of the evidence.'

Assignment of Error 13 is that the court erred in charging the jury:

'. . . at any time during the assault he had the intent to have sexual relations or intercourse with the prosecuting witness forcibly and against her will, although before the act of intercourse the prosecuting witness might have consented, or if he abandoned that intent by reason of her resistance.'

In his brief the defendant says in support of this assignment of error:

'The trial court defined intent as 'intent to have sexual relations or intercourse with the prosecuting witness forcibly and against her will . . ..' Such a charge as this ignores the required disregard of the victim's resistance and is insufficient, State v. Moore (Moose), 267 N.C. 97, 147 S.E.2d 521.'

The portion of the charge immediately preceding the sentence thus partially quoted by the defendant reads as follows:

'To convict one charged with an assault with intent to commit rape, the evidence must show beyond a reasonable doubt not only an assault, as I have just defined, but an intent upon the part of the defendant to have sexual intercourse with the prosecuting witness, Notwithstanding any resistance that she might make. Any intent short of this is not an assault with intent to commit rape.' (Emphasis added.)

Not only did the trial judge instruct the jury in the immediate context of the statement assigned as error precisely as the defendant says he should have done, but at least three times thereafter he repeated this instruction and it was the final instruction to the jury on that point. The defendant's statement of this assignment of error and his argument in support thereof cannot be deemed consistent with the duty of counsel to this Court to state fairly and correctly the charge given by the trial judge.

Turning to the content of the evidence which the court permitted the State to introduce after it had originally rested, we find no error in admitting the testimony that prisoners, returning to the Sandy Ridge Camp at the end of their day on work release jobs, were picked up by a bus stopping at the building where the alleged assault occurred. Nor was there error in admitting the earlier testimony that the defendant was an inmate of the camp and a participant in the Work Release Program.

This testimony was relevant upon the question of whether this defendant was the perpetrator of the assault, for it tended to place him at the scene of the assault at the approximate time that it is alleged to have occurred. With reference to the admissibility of evidence tending to show the defendant in a criminal action has committed other offenses, Professor Stansbury has correctly stated the rule as follows:

'This is commonly supposed to be a somewhat difficult and complex field, marked out by a general rule of exclusion and a series of exceptions. It is submitted, however, that the rule is in fact a simple one which, when accurately stated, is subject to no exceptions: Evidence of other offenses is inadmissible if its only relevancy is to show the character of the accused or his disposition to commit an offense of the nature of the one charged; but if it tends to prove any other relevant fact it will not be excluded merely because it also shows him to have been guilty of an independent crime.' Stansbury, North Carolina Evidence, 2d Ed., § 91.

As to the admission into evidence of the books of photographs shown to Mrs. Henderson and the photograph of the defendant selected by her therefrom, it is sufficient to note that nothing in the record indicates that the jury ever saw the photograph of the defendant or the other contents of the books. On the contrary, it appears from the record that these were introduced in evidence while the jury was out of the courtroom engaged in its deliberations, the offer and introduction of this evidence being purely formal. The books and the photograph of the defendant selected therefrom had previously been identified by witnesses in the presence of the jury. Therefore, it is apparent that the jury did observe in the hand of the witness, or of counsel, the outsides of the books and the sheet of paper bearing the photograph, but nothing indicates that the picture, itself, was ever in a position to be observed by the jury. The defendant was not prejudiced and the State was not benefited in any way by the actual introduction of these documents into evidence.

Again, there was no error in admitting, over objection, the testimony of Mrs. Henderson to the effect that, immediately after the alleged assault, the police officers, who came in response to the janitor's request, took her to an office on the first floor and that there she examined two books of photographs, from the second of which she selected a photograph identified by the officers as that of the defendant.

There is nothing whatever in the record to indicate that the collection of photographs, so shown to Mrs. Henderson within a very few moments after she was assaulted, or that the manner in which they were exhibited to her was unduly suggestive or contributed impermissibly to her selection of the photograph of the defendant as a picture of her assailant. With reference to identification of a criminal suspect by the selection of his photograph from amongst those of...