State v. Harrill

• Decision Date: 29 January 1976
• Docket Number: No. 94,94
• Citation: 289 N.C. 186,221 S.E.2d 325
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. James Douglas HARRILL.

Page 325

221 S.E.2d 325

289 N.C. 186

STATE of North Carolina v. James Douglas HARRILL.

No. 94.

Supreme Court of North Carolina.

Jan. 29, 1976.

Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. James E. Magner, Jr., Raleigh, for the State.

J. H. Burwell, Jr., Rutherfordton and George R. Morrow, Forest City, for defendant appellant.

COPELAND, Justice.

The defendant first contends that the court erred in denying his motion for continuance and, thus, in violation of the Federal and State Constitutions deprived him of an opportunity fairly to prepare and present his defense. The reasons given for making the motion were that he did not receive a copy of the very complicated autopsy report of the victim until 6 May 1975 and that defendant was not discharged from Dorothea Dix Hospital in Raleigh, North Carolina, until 21 April 1975, after being confined there for the previous month.

Since the motion for continuance was based on a right guaranteed by the Federal and State Constitutions, the decision of the trial judge is reviewable as a question of law without a prior determination that there has been a gross abuse of discretion. State v. Smathers, 287 N.C. 226, 214 S.E.2d 112 (1975). The defendant relies heavily on Smathers, but the facts are obviously distinguishable. In Smathers the defendant had reasonable grounds to believe that he was only charged with a misdemeanor until the day of the trial when he found out he was charged with a felony which could lead to imprisonment for life. We do not have that type of situation here. The defendant was properly charged with 1st degree murder in a warrant and later by bill of indictment. A new trial will be awarded because of a denial of a motion for continuance only if the defendant shows that there was error in the denial and that the defendant was prejudiced thereby. State v. Robinson, 283 N.C. 71, 194 S.E.2d 811 (1973); State v. Phillip, 261 N.C. 263, 134 S.E.2d 386 (1964).

A careful examination of the record indicates that there was neither error nor prejudicial error. Counsel for the defendant was appointed in February, 1975, shortly after the arrest of the defendant for murder on 31 January 1975. The defendant was indicted on 10 March 1975, his case was initially called for trial on 17 March 1975, and by his own motion an order was obtained delaying the trial and committing the defendant to Dorothea Dix from 21 March to 21 April 1975 to determine his mental competency to stand trial. The record indicates that the court session began 12 May 1975, this case was called and this motion heard on 13 May 1975, and the jury was empaneled on 14 May 1975. Thus, the defendant had access to the autopsy report for seven days prior to the time this motion was heard, and counsel had approximately three months to prepare for trial and consult with the defendant. Although he contends that the autopsy report was too complicated to permit adequate preparation during this period, he failed to put the autopsy report into evidence. Furthermore, the testimony admitted as to the cause of death indicated there was ample time for preparation. Certainly, under these circumstances there was no error shown.

The defendant's contention that the denial of the continuance was erroneous for the reason that the trial judge did not exercise his discretion in making his ruling is without merit. Although the court was mistaken in its belief that at the time of this trial there was a statutory deadline for making the motion for continuance and that it had not been satisfied, the court's later statements plainly indicated that it would consider the motion under its discretionary power independently of the requirement of the statutory deadline and that it did properly exercise its discretion after hearing the arguments of counsel.

Additionally, the defendant has failed to show that he has been prejudiced by the denial of the continuance. The evidence of the State is overwhelming, and there is no evidentiary support for the defendant's theory that he would have been able to show that the victim was not killed as the result of the gunshot wound if the continuance had been granted.

For the above reasons this assignment of error is without merit and overruled.

The defendant assigns as error the denial of his motion for a change of venue or for a special venire from another county. This motion was based on the ground that the prominence of the victim and the inflammatory publicity from local news media, as well as discussions from church pulpits, would prevent a fair trial.

The defendant's motion is addressed to the second discretion of the trial judge, and an abuse of discretion must be shown before there is any error. State v. Blackmon, 280 N.C. 42, 185 S.E.2d 123 (1971).

The defendant's contention that the denial of his motion was an abuse of discretion for the reason that the trial judge did not properly exercise his discretion in making his ruling is without merit. The record plainly discloses that the judge indicated he would consider the motion under his discretionary power independently of the statutory deadline for making the motion which he mistakenly believed to exist. The judge heard the arguments of counsel and pointed out that on his own motion he had ordered special jurors and that the arguments advanced by the defendant could be taken care of on voir dire examination of prospective jurors. The accounts carried by the local news media do not appear to have been beyond the bounds of propriety or to have been inflammatory. The prominence of the victim does not seem to have unfairly affected the trial. Since the defendant failed to include in the record the voir dire examination of the jury, the record does not disclose that the defendant exhausted his peremptory challenges, that he had to accept any juror objectionable to him, or even that any juror had prior knowledge or opinion as to this case. Under these circumstances, no abuse of discretion has been shown. State v. Thompson, 287 N.C. 303, 214 S.E.2d 742 (1975). This assignment of error is overruled.

Next the defendant complains that the court erred in refusing to allow him to cross-examine Dr. Bass as to the cause or causes of the decedent's death.

'One of the most jealously guarded rights in the administration of justice is that of cross-examining an adversary's witnesses'. 1 Stansbury's North Carolina Evidence § 35, at 100 (Brandis Rev.1973); Accord, Barnes v. Highway Commission, 250 N.C. 378, 394, 109 S.E.2d 219, 232 (1959). See also State v. Hightower, 187 N.C. 300, 121 S.E. 616 (1924). The appellant has the burden of showing not only error but also prejudicial error. State v. Robinson, 280 N.C. 718, 187 S.E.2d 20 (1972).

The doctor had testified on direct examination that the actual final event that caused the decedent's death was massive hemorrhage due to multiple ulcers of the stomach, referred to as stress ulcers, brought on by the combination of severe trauma and multiple episodes of shock, resulting from a penetration wound of the abdomen apparently caused by gunshot.

On cross-examination the doctor described stress ulcers as usually being a result of 'sudden traumatic or sudden onset of injuries.' He indicated that the victim did have emphyzema at the time, that he had never heard of a case of stress ulcers as the result of emphyzema, but that it could happen and nothing was beyond the realm of possibility.

The record indicates that the defendant then asked a series of questions to determine if the victim had an ulcer prior to sustaining the traumatic injury from the gunshot wound to such an extent that it might have been the cause of decedent's death rather than the ulcers resulting from the gunshot wound. Although numerous objections of the State were sustained, no prejudice has been shown since the defendant failed to have answers to these questions placed in the record and Dr. Bass elsewhere during cross-examination substantially answered the defendant's inquiry. Dr. Bass testified that he had never seen the decedent before this incident and there were no ulcers at the holes where he observed the gunshot wounds when he operated on 22 January 1975, nine days before the death of the deceased. The doctor stated that he was not able to determine whether there were any ulcers before the injuries resulting from the gunshot wounds since he did not examine the stomach other than the holes. He concluded that the man's death resulted from a series of events which were initiated by the gunshot wound. This assignment of error is overruled.

The defendant contends that during the voir dire examination to determine the admissibility of the confession that the defendant purportedly made approximately two hours after the alleged crime, the court erred in sustaining the State's objections to questions asked Dr. James Groce and in striking his opinions. Dr. Groce, who was accepted by the court as an expert in psychiatry, had examined the defendant from 21 March (58 days after the shooting) to 21 April 1975 at Dorothea Dix Hospital.

The record discloses that the court allowed a single motion to strike an expert opinion given by Dr. Groce. Otherwise, no answers of Dr. Groce to questions to which the State's objections had been sustained were placed in the record for purposes of appellate review except insofar as the court later permitted answers to similar questions to be admitted into evidence for purposes of this voir dire examination. Furthermore, the court later during this voir dire examination received into evidence substantially the same opinion that was stricken. Under these circumstances no prejudicial error has been shown. This assignment of error is overruled.

Next, the defendant complains that the trial court erred in overruling his objection to a question by the State which interrupted the testimony of Dr. Groce while being cross-examined by the State during the same voir dire examination discussed above....