State v. Craig, 257A82

• Decision Date: 31 May 1983
• Docket Number: No. 257A82,257A82
• Citation: 302 S.E.2d 740,308 N.C. 446
• Parties: STATE of North Carolina v. Andrew Weddington CRAIG, Francis Marion Anthony.
• Court: North Carolina Supreme Court

Page 740

302 S.E.2d 740

308 N.C. 446

STATE of North Carolina v. Andrew Weddington CRAIG, Francis Marion Anthony.

No. 257A82.

Supreme Court of North Carolina.

May 31, 1983.

Rufus L. Edmisten, Atty. Gen. by Asst. Atty. Gen. Charles M. Hensey, Raleigh, for the State.

W. Erwin Spainhour, Concord, for defendant-appellant Andrew Weddington Craig.

James C. Johnson, Jr., Concord, for defendant-appellant Francis Marion Anthony.

COPELAND, Justice.

GUILT PHASE--CRAIG

I.

In his first argument the defendant, Craig, contends that the trial court erred by denying his motion for a polygraph examination to be conducted by the State Bureau of Investigation at the expense of the State. The defendant maintains that by refusing his request the trial court denied him a valuable tool which could have bolstered his credibility at trial and would have aided his attorney's preparation of his defense. The defendant has failed to demonstrate how the trial court's denial of his motion was error.

In the first instance the defendant's credibility was never in issue at trial because he did not testify. In addition the results of a polygraph test could not have been admitted into evidence for any purpose absent a stipulated agreement between the defendant and the State. State v. Milano, 297 N.C. 485, 256 S.E.2d 154 (1979). Neither the record nor the briefs indicate that a stipulation was entered into concerning the admissibility of polygraph test results. Therefore the polygraph test results, even if available and helpful, would not have been admissible to bolster the defendant's credibility. Secondly, the defendant, in requesting the polygraph test results for the purpose of preparing his defense, is asserting that he, as an indigent, is entitled to state financed expert assistance. In State v. Gray, 292 N.C. 270, 233 S.E.2d 905 (1977), we held that expert assistance need only be provided by the State when the defendant can show that it is probable that he will not receive a fair trial without the requested assistance. The defendant fails to explain and we do not see how the polygraph test would have aided the preparation of his defense. We, therefore, find no error. We note that the trial in this case took place prior to our decision in State v. Grier, 307 N.C. 628, 300 S.E.2d 351 (1983), in which we held that polygraph evidence was no longer admissible at trial in any case, and thus would be of no assistance to him upon retrial.

II.

During the jury selection process after the first twelve jurors were seated the trial judge made some introductory remarks including the following:

The defendant, Andrew Weddington had (sic) also come into Court and has entered a plea of guilty to a charge that on July 8, 1981, he did commit Common Law Robbery in that he did, with force, assault Seab Albert Ritch, put him in fear, and that he did then unlawfully and feloniously take and carry Mr. Ritch's property valued at $14.00, being a man's wallet with $4.25 in currency.

The defendant Craig contends that this statement by the trial judge was an expressed opinion as to the defendant's guilt since he had in fact pleaded not guilty to the charge of common law robbery. We find the trial court's statement to be merely a lapsus linguae not constituting prejudicial error. State v. Poole, 305 N.C. 308, 289 S.E.2d 335 (1982). Although the above statement was part of an introductory comment by the trial judge, it should be considered within the context of all the introductory remarks. This is the method for reviewing jury charges, State v. Poole, supra, and should be applicable to opening remarks. In reviewing the entire statement made to the prospective jurors we find that prior to this unfortunate slip of the tongue the judge told the jurors that both defendants pleaded not guilty to all charges. In addition, at the end of his opening remarks the trial judge reminded the prospective jurors that each defendant is presumed innocent as a result of his pleas of not guilty. The reference to defendant Craig's plea of guilty was not repeated and appears from the record to be totally accidental. In fact defense counsel did not attempt to have this remark corrected and this lapus linguae might very well have gone unnoticed until counsel began preparing his record on appeal. We, therefore, find no prejudice to the defendant and overrule this assignment of error.

III.

Defendant Craig next assigns as error the trial court's decision to sustain the State's challenge for cause of prospective juror Mrs. Forrester. The defendant maintains that although Mrs. Forrester unequivocally stated that she would not impose the death penalty she could not be properly challenged for cause because the prosecutor and the court led her to that conclusion. In reviewing Mrs. Forrester's responses in their entirety, it appears that her initial response that she did not think she could vote for the death penalty would have been sufficient to sustain a challenge for cause. State v. Williams, 305 N.C. 656, 292 S.E.2d 243 (1982), cert. denied, 459 U.S. 1056, 103 S.Ct. 474, 74 L.Ed.2d 622 (1982). As noted in our recent decision of State v. Kirkley, 308 N.C. 196, 302 S.E.2d 144 (1983), the trial judge must view the juror's demeanor and responses in determining the degree of conviction in the prospective juror's answers. The trial judge in this case, through an abundance of caution, wanted the juror to give a clear "yes" or "no" answer. Not once throughout her examination did Mrs. Forrester indicate that she might vote for the death sentence under any circumstance. We find no violation of the rule established by the Supreme Court of the United States in Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). This assignment of error is overruled.

IV.

During the State's case in chief, Betty Jean Howie testified to the facts and circumstances surrounding her involvement in and the defendants' participation in the robbing of Seab Ritch and the stabbing of his wife Edith Ritch. In corroboration of Betty Howie's testimony the State offered as evidence a statement given to Special Agent Barry M. Lea of the State Bureau of Investigation by Betty Howie on 24 August 1981, approximately six weeks after the alleged incidents. The statement was read to the jury by Mr. Lea. The defendant objected to the statement "Sonny said, 'Let's rob the mother ________' " on the grounds that it did not corroborate Betty Howie's testimony. The trial judge sustained the objection and instructed the jury to strike that statement from their recollection of the evidence. The defendant assigns as error the trial judge's denial of his motion for a mistrial on the grounds that the statement was so prejudicial that it prevented him from receiving a fair trial. A motion for mistrial is addressed to the sound discretion of the trial judge and those rulings will not be reversed on appeal absent an abuse of discretion. G.S. 15A-1061; State v. Smith, 301 N.C. 695, 272 S.E.2d 852 (1981). "[W]hen the court withdraws incompetent evidence and instructs the jury not to consider it, any prejudice is ordinarily cured." State v. Smith, 301 N.C. at 697, 272 S.E.2d at 855. The trial judge's instructions in the case sub judice cured any possible prejudice which could have only been slight in the light of all the testimony. This assignment of error is overruled.

V.

The defendant Craig also maintains that he was denied a fair trial when the prosecutor argued to the jury that they should compare a picture of the circular wounds on the victim's body and the soles of the defendant's shoes in order to reach the conclusion that the wounds were caused by the defendant's shoes when that conclusion was not supported by expert testimony. The defendant contends that through this argument the prosecutor improperly placed before the jury incompetent and prejudicial matters based on his own beliefs not supported by the evidence. State v. Covington, 290 N.C. 313, 226 S.E.2d 629 (1976); State v. Britt, 288 N.C. 699, 220 S.E.2d 283 (1975). However, trial counsel is allowed wide latitude in his argument to the jury and "may argue the law and the facts in evidence and all reasonable inferences drawn from them...." State v. Kirkley, 308 N.C. 196, 302 S.E.2d 144 (1983); State v. Monk, 286 N.C. 509, 212 S.E.2d 125 (1975).

The defendant failed to object to the closing argument and therefore may now only assert that the trial judge should have corrected the argument ex mero motu. In a case where the defendant fails to object to the State's closing argument the standard of review is one of gross impropriety. State v. Kirkley, 308 N.C. 196, 302 S.E.2d 144 (1983); State v. Johnson, 298 N.C. 355, 259 S.E.2d 752 (1979).

The defendant's basis for this assignment of error is that one of the State's own expert witnesses was unable to testify that shoes belonging to the defendant had any relation to the murder. As a result the defendant contends that the prosecutor should not have argued to the jury that the physical evidence supported the conclusion that the defendant's shoes made a mark on the deceased victim's neck. The record reveals that the expert witness to which the defendant refers was qualified only as an expert in fingerprint identification. The fact that a fingerprint expert was unable to connect the shoes to the murder does not preclude the conclusion that the prosecutor argued to the jury. The evidence presented, including the testimony of the State Medical Examiner, supports the inference that the defendant's shoes could have caused the circular impressions left on the neck of the deceased. The fact that no expert was called to establish this connection merely goes to the weight of the evidence. We find no error in the State's argument and therefore no gross impropriety which would require the trial judge to act ex mero motu. This assignment of error is overruled.

VI.

The defendant Craig next asserts that the trial court...