State v. Britt

• Decision Date: 31 January 1977
• Docket Number: No. 151,151
• Citation: 231 S.E.2d 644,291 N.C. 528
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. James Edward (Jimmy) BRITT.

Page 644

231 S.E.2d 644

291 N.C. 528

STATE of North Carolina v. James Edward (Jimmy) BRITT.

No. 151.

Supreme Court of North Carolina.

Jan. 31, 1977.

Atty. Gen. Rufus L. Edmisten and Asst. Atty. Gen. Archie W. Anders, Raleigh, for the State.

William S. McLean, Lumberton, for defendant-appellant.

MOORE, Justice.

Defendant first contends that the trial court erred in failing to allow into evidence the blood alcohol level of the deceased. Defendant admits that the autopsy report and related reports (including a toxicology report) identified by Dr. Marvin Thompson, an expert in pathology, were not offered into evidence at trial by either the State or defendant. Defendant only assigns as error the failure of the court to allow the oral testimony of Dr. Thompson relating to the blood alcohol level of the deceased.

As stated in Robinson v. Insurance Co., 255 N.C. 669, 672, 674, 122 S.E.2d 801, 803, 804 (1961):

'(A)s to whether or not a blood alcohol test is admissible depends upon a showing of compliance with conditions as to relevancy in point of time, tracing and identification of specimen, accuracy of analysis, and qualification of the witness as an expert in the field. In other words, a foundation must be laid before this type of evidence is admissible. State v. Willard, supra (241 N.C. 259, 84 S.E.2d 899 (1954)). Moreover, it should be made to appear that the blood was taken from the body of the deceased before any extraneous matter had been injected into it. McGowan v. City of Los Angeles, 100 Cal.App.2d 386, 223 P.2d 862, 21 A.L.R.2d 1206.

'. . . '(I)t is generally held that the party offering such specimen is required to establish, at least as far as practicable, a complete chain of evidence, tracing possession from the time the specimen is taken from the human body to the final custodian by whom it is analyzed. Joyner v. Utterback, 196 Iowa 1040, 195 N.W. 594. As stated in Rodgers v. Commonwealth, 197 Va. 527, 90 S.E.2d 257, 260, 'Where the substance analyzed has passed through several hands the evidence must not leave it to conjecture as to who had it and what was done with it between the taking and the analysis. "' See also State v. Mobley, 273 N.C. 471, 160 S.E.2d 334 (1968).

In performing the autopsy, Dr. Thompson took a sample of deceased's blood and placed it in a container addressed to the State medical examiner's laboratory in Chapel Hill. He then placed the container in a rack to be mailed. He did not know whether it was sent by U.S. mail or, if so, whether it was sent as first, second, or third class mail. He did not perform any tests upon the blood and did not know who had performed the tests or what procedure was used in examining it. He was able only to testify that a few days after placing the blood in the rack to be mailed he received a report with the name Clarence Blackwell on it stating the result of the laboratory work which detected the presence of ethanol in the blood.

The exclusion of the testimony of Dr. Thompson regarding the result of the laboratory test, under the facts of this case, was proper. There was no evidence that would lay a sufficient foundation for the introduction of Dr. Thompson's testimony, and the documents themselves were not offered into evidence. Further, since there was no evidence tending to show self-defense, we question whether the alcohol content of the victim's blood was material. Since neither the toxicology report nor the autopsy report was offered into evidence, we do not pass upon their admissibility. This assignment is overruled.

When the State called Alvin Mitchell Register to testify, defendant objected on the ground that Register was not included in a witness list furnished to defense counsel during jury Voir dire. The trial judge overruled this objection and permitted Register to testify. In State v. Hoffman, 281 N.C. 727, 190 S.E.2d 842 (1972), we held that in the absence of a statute requiring it, defendant has no right to a list of the witnesses which the State may call. In this jurisdiction, we have no such statute. In fact, the General Assembly, in the passage of G.S. 15A--903 (which defines certain information which is subject to discovery by a defendant), expressly deleted such a provision from the proposed draft of the statute. See Thompson, Subchapter IX Pretrial Procedure, 10 Wake Forest L.Rev. 499, 502--04 (1974). The action of the trial judge in permitting a witness to testify is not reviewable on appeal in the absence of an abuse of discretion. State v. Anderson, 281 N.C. 261, 188 S.E.2d 336 (1972). See also State v. Carter, 289 N.C. 35, 220 S.E.2d 313 (1975); State v. Spaulding, 288 N.C. 397, 219 S.E.2d 178 (1975); State v. Lampkins, 286 N.C. 497, 212 S.E.2d 106 (1975).

In instant case, we find no abuse of discretion in the trial judge's ruling which permitted Register to testify. If defendant was unable to proceed, he could have moved for a continuance. State v. Hoffman, supra. While it would have been better practice to question the members of the jury as to any relationship with Register at the time he was called to testify, we do not feel that under the facts of this case defendant suffered any prejudice from the omission of this inquiry nor in the admission of the testimony. As was stated in State v. Hoffman, supra, 281 N.C. at 735, 190 S.E.2d at 848, 'a defendant is not legally prejudiced merely because the State proves its case against him.' This assignment is overruled.

Witness Register testified that he had known defendant and Carolyn Blackwell for a number of years and that on several occasions prior to 3 May 1973 defendant had called Carolyn from a telephone located in his place of business. On 3 May 1973, at approximately 3:00 p.m., defendant came to his place of business and again called Carolyn. Register testified that he heard defendant tell Carolyn that 'he was going to kill somebody if he kept his mess up.' Register further testified that he knew who defendant was talking about, and that he told defendant that he was going to get himself into more trouble than he could get out of. Defendant replied, 'I'll get out of it.'

After Register's testimony, James E. Shaw, a State investigator, testified that subsequent to 3 May 1973 he talked with the witness Register. At that time, Register stated that he had overheard the conversation defendant had with Carolyn Blackwell on 3 May 1973. Register further told Shaw that in the conversation defendant stated to Carolyn that he was going to kill Clarence Blackwell. Defendant objected to this testimony. The court overruled the objection, but instructed the jury: '. . . I instruct you that this answer now to be given by the witness is not substantive or direct evidence. It is received for the purpose of corroboration of the witness Mitchell Register. It is for you, alone, to determine if it does so. To corroborate means to strengthen or support.'

Defendant contends that the admission of the testimony of witness Shaw for the purpose of corroborating the testimony of Register was error because Shaw's testimony did not corroborate that of Register.

The admissibility of prior consistent statements of the witness to strengthen his credibility has been reaffirmed by this Court in many cases. 1 Stansbury, N.C. Evidence § 51 (Brandis rev. 1973), and cases cited therein. In Lorbacher v. Talley, 256 N.C. 258, 260, 123 S.E.2d 477, 479 (1962), Justice Bobbitt (later Chief Justice) quoted with approval:

'As stated by Smith, C.J., in Jones v. Jones, 80 N.C. 246, 250: 'In whatever way the credit of the witness may be impaired, it may be restored or strengthened by this (proof of prior consistent statements) or any other proper evidence tending to insure confidence in his veracity and in the truthfulness of his testimony.' Bowman v. Blankenship, 165 N.C. 519, 81 S.E. 746; Brown v. Loftis, 226 N.C. 762, 764, 40 S.E.2d 421; Stansbury, Op. cit. § 50. . . .'

Such previously consistent statements, however, are admissible only when they are in fact consistent with the witness's testimony. State v. Patterson, 288 N.C. 553, 220 S.E.2d 600 (1975); State v. Bagley, 229 N.C. 723, 51 S.E.2d 298 (1949); State v. Melvin, 194 N.C. 394, 139 S.E. 762 (1927); 1 Stansbury, N.C. Evidence § 52 (Brandis rev. 1973).

If the previous statements offered in corroboration are generally consistent with the witness's testimony, slight variations between them will not render the statements inadmissible. Such variations affect only the credibility of the evidence which is always for the jury. State v. Patterson, supra; State v. Bryant, 282 N.C. 92, 191 S.E.2d 745 (1972); State v. Norris, 264 N.C. 470, 141 S.E.2d 869 (1965); State v. Case, 253 N.C. 130, 116 S.E.2d 429 (1960). Further, broadside objections to corroborative testimony will not generally be sustained if any portion of such testimony is competent. Rather, it is the duty of the objecting party to call to the attention of the trial court the objectionable part. State v. Tinsley,283 N.C. 564, 196 S.E.2d 746 (1973); State v. Brooks, 260 N.C. 186, 132 S.E.2d 354 (1963).

Applying these principles to the evidence in this case, we hold that it was not prejudicial error to overrule defendant's objections to the testimony of the witness Shaw. Register testified, in substance, that he heard defendant tell Carolyn that he was going to kill somebody and that he knew who defendant was talking about. Shaw testified that Register told him that he heard defendant tell Carolyn that he was going to kill Clarence Blackwell. The testimony of Shaw tended to corroborate that of Register, showing that defendant intended to kill someone. It in no way contradicts the testimony of Register and, at least, partially corroborates it. As instructed by the trial judge, it was for the jury to determine if it did corroborate and if it did strengthen or support the testimony of Register. This assignment is overruled.

The action of the trial court in allowing the testimony of ...