State v. Sparks

• Decision Date: 30 August 1974
• Docket Number: No. 26,26
• Citation: 207 S.E.2d 712,285 N.C. 631
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Kelly Dean SPARKS.

Page 712

207 S.E.2d 712

285 N.C. 631

STATE of North Carolina v. Kelly Dean SPARKS.

No. 26.

Supreme Court of North Carolina.

Aug. 30, 1974.

Atty. Gen. Robert Morgan and Asst. Atty. Gen. Thomas B. Wood, Raleigh, for the State.

Smith, Carrington, Patterson, Follin & Curtis by Norman B. Smith, Greensboro, for defendant-appellant.

MOORE, Justice.

Defendant first contends that the court erred in excusing prospective jurors for cause due to their scruples against capital punishment.

The parties stipulated:

'Seven jurors were challenged by the State and excused by the Court for cause upon the grounds that they possessed conscientious scruples against the imposition of capital punishment and because of these views would not consider any verdict that would involve the death penalty, would not under any circumstances return a verdict that would involve the death penalty regardless of what the facts of the case showed or what the evidence might reveal, and were irrevocably committed to vote against any verdict that would involve the death penalty regardless of what the circumstances were or how aggravated the case was.'

Since Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), this Court has consistently held that if a prospective juror states that under no circumstances could he vote for a verdict that would result in the imposition of the death penalty no matter how aggravated the case and regardless of the evidence shown, the trial court can properly dismiss the juror upon a challenge for cause. State v. Fowler, 285 N.C. 90, 203 S.E.2d 803 (1974); State v. Noell, 284 N.C. 670, 202 S.E.2d 750 (1974); State v. Anderson, 281 N.C. 261, 188 S.E.2d 336 (1972); State v. Watson, 281 N.C. 221, 188 S.E.2d 289 (1972); State v. Cook, 280 N.C. 642, 187 S.E.2d 104 (1972); State v. Westbrook, 279 N.C. 18, 181 S.E.2d 572 (1971); State v. Dickens, 278 N.C. 537, 180 S.E.2d 844 (1971); State v. Atkinson, 275 N.C. 288, 167 S.E.2d 241 (1969).

In view of the stipulation entered into by the parties, the seven jurors were properly excused for cause. This assignment of error is overruled.

Defendant next contends that the court erred in permitting the State to introduce in evidence the bloody shirt which Chief Lashley was wearing when shot, and State's Exhibit No. 18, a photograph of the deceased made on an ambulance stretcher.

Defendant by his plea of not guilty denied that he fired the lethal weapon or directed its aim. The evidence of the bloodstained shirt and the photograph of the body of the deceased corroborated the testimony of the State's witnesses already in the record. The location of the blood upon the victim's shirt and the photograph of the body and the wound would indicate the angle of the bullet which struck the victim and the direction from which it was fired. These also indicated an overhead shot from the opposite side of the car from where the victim was standing, and corroborated the witnesses' testimony that such was the location of defendant at the time the pistol was fired.

"* * * In cases of homicide or other crimes against the person, clothing worn by the defendant or by the victim is admissible if its appearance throws any light on the circumstances of the crime * * *.' Stansbury, North Carolina Evidence, 2d Ed., § 118; State v. Rogers, 275 N.C. 411, 430, 168 S.E.2d 345; State v. Atkinson, 275 N.C. 288, 310, 167 S.E.2d 241; State v. Speller, 230 N.C. 345, 53 S.E.2d 294; State v. Petry, 226 N.C. 78, 36 S.E.2d 653.' State v. Felton, 283 N.C. 368, 196 S.E.2d 239 (1973).

The court properly instructed the jury that the photograph was admitted solely for the purpose of illustrating and explaining the testimony of the witnesses and not as substantive evidence. Under such circumstances, the fact that the photograph depicts a gruesome or gory spectacle does not render it inadmissible. State v. Robinson, 283 N.C. 71, 194 S.E.2d 811 (1973); State v. Frazier, 280 N.C. 181, 185 S.E.2d 652 (1972); State v. Chance,279 N.C. 643, 185 S.E.2d 227 (1971); State v. Atkinson, supra. See 2 Strong, N.C. Index 2d, Criminal Law §§ 42, 43 (1967).

Defendant next contends that it was error to permit an expert chemist to testify for the State that defendant 'could have' fired the pistol instead of limiting the witness's testimony to whether defendant probably discharged the weapon.

Mr. R. D. Cone, who was qualified as an expert forensic chemist specialized in the field of physical evidence, testified that from the tests he had conducted on defendant's left hand there were indications that defendant 'could have' fired a gun. Defendant contends that this statement does not meet the tests as set out in Lockwood v. McCaskill, 262 N.C. 663, 138 S.E.2d 541 (1964), and that the opinion of the expert witness should have been to the effect that it was 'reasonably probable' that the defendant fired the gun.

In Apel v. Coach Co., 267 N.C. 25, 147 S.E.2d 566 (1966), this Court approved questions where expert witnesses were asked their opinion as to whether the accident which was the subject of the suit 'could or might have' resulted in the type of disability alleged by the plaintiff.

In Mann v. Transportation Co. and Tillett v. Transportation Co., 283 N.C. 734, 747, 198 S.E.2d 558, 567 (1973), a mechanic, testifying as to a defect in a bus, stated that this defect 'could or might have caused the steering system to fail when Gibbs attempted to steer the bus around the left curve.' Justice Sharp in commenting on this testimony stated:

'It is apparent that, in phrasing the hypothetical question which elicited the foregoing opinion from Jeffries, counsel was observing the rule stated in 1 Stansbury, North Carolina Evidence § 137, at 453 (Brandis rev. 1973), that if the question relates to cause and effect an expert witness 'should be asked whether in his opinion a particular event or condition, Could or Might have produced the result in question, not whether it Did produce such result.' This form of question clearly invited the argument, which Coach Company makes, that Could or Might have in Jeffries' answers amounts to nothing more than his speculation as to possibilities. The situation here produced demonstrates the validity of Professor Henry Brandis' comment that an expert witness should be allowed 'to make a positive assertion of causation when that conforms to his true opinion, reserving 'could' and 'might' for occasions when he feels less certainty'; that if the expert witness, 'though holding a more positive opinion, is forced to adopt the 'could' or 'might' formula, then the result is patently unjust, unless the more positive opinion may be said to be inherently incredible.' 1 Stansbury, North Carolina Evidence § 137, at 455 & n. 97 (Brandis rev. 1973). See also the comment of Justice Higgins in Apel v. Coach Co., 267 N.C. 25, 30, 147 S.E.2d 566, 569--570 (1966). Cf. Service Co. v. Sales Co., 259 N.C. 400, 414, 131 S.E.2d 9, 20 (1963).'

Although in this case the witness Cone should have been allowed to give a more positive opinion, if he had one, it was not error to allow this expert witness to testify that the defendant 'could have fired a gun with his left hand.'

During the course of the argument by the district attorney, the following proceedings were had:

'THE COURT: The Court Reporter is present, and at this time let the record show that the District Attorney proposes to argue the case to the jury about his contention about the evidence in the case by way of having the handcuffs which are in evidence and identified as State's Exhibit 9 placed on his hands and that he proposes to demonstrate to the jury the manner in which the State of North Carolina contends the alleged murder took place. To this demonstration, counsel for the defendant objects and excepts to the demonstration. The objection is overruled, with this admonition to the jury:

'That you will take the evidence from the witnesses on the stand and the evidence that was offered here in this courtroom, as you recall it, as it came from the witnesses on the stand and the evidence that was offered and shown to you. Both the District Attorney and counsel for the defendant have a right under the law to argue their contentions about what evidence tends to show. You will bear that in mind at all times as to this demonstration about to be given, and all other arguments that the District Attorney makes and all arguments that counsel for the defendant makes.

'Proceed.'

Defendant contends that the court committed reversible error by allowing the district attorney to demonstrate the firing of the weapon with his hands handcuffed behind him to illustrate how the defendant allegedly killed the deceased, for the reason that this demonstration amounted to experimental evidence which was given by argument of counsel and not through a witness under oath.

Defendant cites State v. Williams, 168 N.C. 191, 83 S.E. 714 (1914), and State v. Eagle, 233 N.C. 218, 63 S.E.2d 170 (1951), in support of his contention that the solicitor's argument was improper. In Williams counsel for defendant 'proposed to take some disinterested person in the courtroom, and demonstrate before the jury on that person the positions that defendant and the deceased were in at the time of the shooting, as testified to by defendant, in order to show that the wounds would have been inflicted in the body of the deceased at the place, and would have had the range or direction, which they had as testified to by the doctors.' The defendant, while on the stand as a witness in his own behalf, demonstrated before the jury the position he, the defendant, was in and the position the deceased was in and the way the deceased had hold of him when he fired the shots. This court stated that it could not see how defendant had been deprived of any of his substantial rights by the trial court's refusal to allow defendant's counsel to make the suggested demonstration. The Court then stated:

'The defendant was...