State v. Atkinson, No. 2

• Decision Date: 10 March 1971
• Docket Number: No. 2
• Citation: 278 N.C. 168,179 S.E.2d 410
• Parties: STATE of North Carolina v. Dee D. ATKINSON.
• Court: North Carolina Supreme Court

Page 410

179 S.E.2d 410

278 N.C. 168

STATE of North Carolina v. Dee D. ATKINSON.

No. 2.

Supreme Court of North Carolina.

March 10, 1971.

Robert A. Spence, Smithfield, for defendant appellant.

Robert Morgan, Atty. Gen., Andrew A. Vanore, Jr., Asst. Atty. Gen., and Charles A. Lloyd, Staff Atty., Raleigh, for the State.

HUSKINS, Justice:

Appellant first contends that the trial court erred in allowing the State to successfully challenge for cause certain prospective jurors because of their stated views on capital punishment.

The law with regard to this issue is well established. '(A) sentence of death cannot be carried out if the jury that imposed or recommended it was chosen by excluding veniremen for cause simply because they voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction.' Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). See State v. Spence, 274 N.C. 536, 164 S.E.2d 593 (1968). On the other hand, as the United States Supreme Court said in Witherspoon, footnote 21: 'The most that can be demanded of a venireman in this regard is that he be willing to Consider all of the penalties provided by state law, and that he not be irrevocably committed, before the trial has begun, to vote against the penalty of death regardless of the facts and circumstances that might emerge in the course of the proceedings. If the voir dire testimony in a given case indicates that veniremen were excluded on any broader basis than this, the death sentence cannot be carried out. * * *' Accord, Boulden v. Holman, 394 U.S. 478, 89 S.Ct. 1138, 22 L.Ed.2d 433 (1969).

On the record before us seven jurors were excused for cause because of their objections to the death penalty, and one challenge by the State based on such objection was disallowed. In each instance where the challenge was sustained the prospective juror testified on voir dire in substance that there were no circumstances under which he or she could conscientiously return a verdict which would result in a death penalty. A fair appraisal of the statements of each venireman successfully challenged points unerringly to the conclusion that he or she was irrevocably committed before the trial began to vote against the death penalty regardless of the facts and circumstances which might be revealed by the evidence. Such irrevocable commitment is valid cause for challenge in accord with both the letter and the spirit of Witherspoon. This assignment of error is accordingly overruled.

Appellant next contends that the trial court erred in departing from the customary procedure for the selection of jurors in a capital case by requiring that a panel of twelve be passed on by the State before any jurors were tendered to the defense. Such procedure was recently considered and approved by this Court in State v. Perry, 277 N.C. 174, 176 S.E.2d 729 (1970). There, Justice Higgins, for the Court, wrote: 'Each defendant is entitled to full opportunity to face the prospective jurors, make diligent inquiry into their fitness to serve, and to exercise his right to challenge those who are objectionable to him. The actual conduct of the trial must be left largely to the sound discretion of the trial judge so long as the defendant's rights are scrupulously afforded him.' The procedure followed here meets this standard. See Braswell, Voir Dire--Use and Abuse, 7 Wake Forest Law Review 49 (1970) for an informative discussion on voir dire examination of jurors and witnesses. This assignment of error is without merit.

For his third assignment defendant contends that the trial court erred in admitting into evidence his purported confession as related by Officer Emerson and corroborated by Officer Crocker.

When the testimony of Emerson was challenged at the trial a voir dire examination was conducted in the absence of the jury following which the trial judge found that defendant had been warned of his constitutional rights as outlined in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and was thoroughly aware of them at all times when interrogation took place. The judge concluded that defendant freely, voluntarily and understandingly waived his right to remain silent and his right to have counsel present during interrogation. Officer Emerson's testimony of the confession was accordingly admitted and thereafter the testimony of Officer Crocker, who was not examined on the voir dire, was admitted over objection without a further voir dire.

All the evidence on the voir dire is to the effect that the defendant, while subject to custodial interrogation, was fully warned of his rights each time he was questioned. He appeared to be coherent and to understand the proceedings. Indeed, there is no suggestion in the record of any coercion whatsoever. Defendant did not take the stand during the voir dire and offered no evidence from any source to rebut the testimony of the officers that the confession was completely voluntary and was knowingly and understandingly made. The record shows, therefore, that the State carried its burden of proof and demonstrated with undisputed evidence that defendant's confession was freely and voluntarily obtained. See State v. Thope, 274 N.C. 457, 164 S.E.2d 171 (1968). The findings of the judge are supported by all the evidence adduced on the voir dire, and those findings will not be disturbed. State v. Gray, 268 N.C. 69, 150 S.E.2d 1 (1966).

The testimony of Officer Crocker, who was present while defendant was questioned by Emerson, is corroborative of Emerson's testimony and therefore admissible. Stansbury, N.C. Evidence (2d Ed., 1963), § 50. No second voir dire on the voluntariness of defendant's confession was required for admission of Crocker's testimony.

Defendant contends various exhibits of the State, admitted over objection, were inflammatory and prejudicial. Included among the exhibits were clothes worn by the victim, the bloody washcloth, photographs of the victim in the morgue, and the map drawn by defendant to guide the officers to the place where the body was buried. Authentication of the items admitted into evidence is not questioned.

Garments worn by the victim of a rape and murder showing the location of a wound upon the person of the deceased, or which otherwise corroborate the State's theory of the case, are competent. State v. Speller, 230 N.C. 345, 53 S.E.2d 294 (1949); State v. Fleming, 202 N.C. 512, 163 S.E. 453 (1932). When relevant, articles of clothing identified as worn by the victim at the time the crime was committed are always competent evidence, and their admission has been approved in many decisions of this Court. State v. Rogers, 275 N.C. 411, 168 S.E.2d 345 (1969); State v. Peele, 274 N.C. 106, 161 S.E.2d 568 (1968). See Stansbury, N.C. Evidence (2d Ed., 1963), § 118.

Photographs are admissible in this State to illustrate the testimony of a witness. State v. Gardner, 228 N.C. 567, 46 S.E.2d 824 (1948); State v. Hatcher, 277 N.C. 380, 177 S.E.2d 892 (1970). See generally, Stansbury, supra, § 34. Here, the jury was properly instructed to consider the photographs in question for illustrative purposes only. Their admission was not error. State v. Norris, 242 N.C. 47, 86 S.E.2d 916 (1955); State v. Perry, 212 N.C. 533, 193 S.E. 727 (1937).

That a photograph might inflame the passions of the jurors does not render it inadmissible. 'The fact that a photograph depicts a horrible, gruesome and revolting scene, indicating a vicious, calculated act of cruelty, malice or lust, does not render the photograph incompetent in evidence, when properly authenticated as a correct portrayal of conditions observed by and related by the witness who uses the photograph to illustrate his testimony.' State v. Atkinson, 275 N.C. 288, 167 S.E.2d 241 (1969). Accord, State v. Porth, 269 N.C. 329, 153 S.E.2d 10 (1967). Furthermore, the fact that photographs are in color does not affect their admissibility. State v. Hill 272 N.C. 439, 158 S.E.2d 329 (1968). Thus the color photographs depicting the condition of the child's body when examined by Dr. Pate were competent for the purpose of illustrating the doctor's testimony.

The officers testified that defendant drew the map to which defendant objects and that they followed it to the scene where defendant had buried the victim's body. Obviously, the map was admissible to illustrate their testimony. Stansbury, supra, § 34.

The washcloth was properly admitted in evidence over defendant's objection. Decisions of this Court establish the rule that objects which have a relevant connection with the case are admissible in evidence in both civil and criminal trials. State v. Mordecai, 68 N.C. 207 (1873); State v. Wall, 205 N.C. 659, 172 S.E. 216 (1934); State v. Harris, 222 N.C. 157, 22 S.E.2d 229 (1942); Stansbury, supra, § 118.

Appellant's fifth assignment of error concerns the testimony of the Pathologist, Dr. Pate, who examined the victim at the morgue and testified at the trial with respect to the condition of Kathy Carr's body. Appellant contends the doctor was allowed to testify regarding the very question the jury was required to answer, I.e., whether the victim had been raped, citing State v. Hightower, 187 N.C. 300, 121 S.E. 616 (1924). There is no factual basis for this contention. The record shows that the pathologist testified only that the victim had been penetrated and that the injuries could have been caused by a male organ. He did not testify that the defendant or anyone else raped Kathy Carr, a subject on which he obviously had no information. His testimony was properly admitted. State v. Mays, 225 N.C. 486, 35 S.E.2d 494 (1945); State v. Perry, 250 N.C. 119, 108 S.E.2d 447 (1959); Stansbury, supra, § 135; State v. Atkinson, supra.

In several instances during the trial witnesses alluded to the fact that the victim was dead. The solicitor argued as much to the jury. Here, with defend...