State v. Jones, 14

• Decision Date: 06 May 1975
• Docket Number: No. 14,14
• Citation: 287 N.C. 84,214 S.E.2d 24
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Mack Edward JONES.

Page 24

214 S.E.2d 24

287 N.C. 84

STATE of North Carolina v. Mack Edward JONES.

No. 14.

Supreme Court of North Carolina.

May 6, 1975.

Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. T. Buie Costen and Associate Atty. Thomas M. Ringer, Jr., Raleigh, for the State.

Clarence E. Horton, Jr., Concord, for appellant.

BRANCH, Justice.

Defendant assigns as error the trial court's denial of his motion to suppress evidence of certain experiments conducted with the pistol which inflicted the fatal wound. His objection was predicated upon the grounds (1) that the experiments were not performed under conditions substantially similar to the conditions prevailing at the time of the fatal incident and (2) that there was no evidence to indicate that the weapon was in substantially the same condition at the time of the experiments as it was at the time of the shooting.

The evidence with regard to the experiments tends to show the following facts:

C. D. Eggers, a member of the Sheriff's Department of Cabarrus County, testified that he first saw the .32 caliber Colt pistol in question lying on the table in the den portion of defendant's premises on the night of the alleged murder. Defendant acknowledged to the officer that the gun was his and that it was the weapon which had shot his wife. Eggers produced a photograph which showed the gun lying on the table in the den.

Glenn Mauer, a firearms identification specialist stipulated to be an expert in the field of firearms identification and ballistics, testified that Officer Eggers delivered the weapon to him in Richmond, Virginia, on 3 August 1971, some 17 days after the alleged murder. On 5 August, Mauer conducted the tests in question. On cross-examination, Mauer stated that he was unable to say whether the gun was in substantially the same condition on 3 August as on 17 July. After testifying that the pistol had both a thumb-level safety and a grip safety, he testified that he dropped the gun from heights of six inches, twelve inches, and up through forty-two inches, respectively, onto a wooden floor approximately one half to three quarters of an inch thick. The pistol would not fire. The witness stated that he did not know the kind of surface upon which the gun had dropped at the time of the shooting. After conducting these initial tests, he then placed tape around the grip safety of the firearm so as to make the safety ineffective and observed that it did not fire when dropped from a distance of twelve inches, but that it did fire when dropped from a height of eighteen inches. At the time he dropped the gun onto the wooden surface, there was only one bullet in the pistol, and he conceded that the gun might have been somewhat heavier if it had been fully loaded.

Mr. Eggers, recalled, testified that an Officer Ward, who at the time of the trial was an unavailable witness, delivered the pistol to him at the time of the fatal occurrence and that he did not, at that time, perform any tests on the bullet or the gun.

One of the best statements by this Court on the question of admissibility of experimental evidence is found in State v. Phillips, 228 N.C. 595, 46 S.E.2d 720. In that case, the prosecution, over the defendant's objection, introduced evidence of experiments with the death pistol, which was fired at close range to determine whether there would be resulting powder burns. This Court approved the trial judge's ruling admitting this evidence and, speaking through Chief Justice Stacy, stated:

'The competency of experimental evidence depends upon its trustworthiness to aid in the proper solution of the problem in hand. (Citations omitted.) When the experiment is carried out under substantially similar circumstances to those which surrounded the original transaction, and in such a manner as to shed light on that transaction, the results may be received in evidence, although such experiment may not have been performed under Precisely similar conditions as attended the original occurrence. The want of exact similarity would not perforce exclude the evidence, but would go to its weight with the jury. (Citation omitted.) Whether the circumstances and conditions are sufficiently similar to render the results of the experiment competent is of course a preliminary question for the court, and unless too wide of the mark, the ruling thereon will be upheld on appeal. (Citations omitted.)

"The general rule as to the admissibility of the result of experiments is, if the evidence would tend to enlighten the jury and to enable them to more intelligently consider the issues presented and arrive at the truth, it is admissible. The experiment should be under circumstances similar to those prevailing at the time of the occurrence involved in the controversy. They need not be identical, but a reasonable or substantial similarity is sufficient.' Edwards, J., in Shepherd v. State, 51 Okl.Cr. 209, 300 P. 421, 423.

'True it is, unless the requirement of substantial similarity exist, or be duly observed, the experimental evidence should be rejected. (Citations omitted.) This is largely a matter to be decided in the light of all the attendant facts and circumstances. The measure of permissible variation in the conditions of the experiment from those of the occurrence is usually determined by whether such variation would tend to confuse or to mislead the jury. The object of every trial is to find the truth of the matter in controversy. If the experimental evidence contribute to this end, it is admissible; otherwise it should be excluded. (Citation omitted.)'

Accord: State v. Atwood, 250 N.C. 141, 108 S.E.2d 219.

In State v. Holland, 216 N.C. 610, 6 S.E.2d 217, the defendant was charged with murder of his three-year-old stepson, whose body was found floating in a nearby millpond. The trial judge permitted a witness to testify, over defendant's objection, as to an experiment with two boards which were thrown in the pond to determine the drift of the stream while the mill was in operation. There was no motion to strike this testimony.

The Court, holding that the failure to move to strike was a waiver of the defendant's exception, nevertheless stated:

'. . . Such experiments and evidence as to the result thereof are relevant. (Citations omitted.) 'Whether or not evidence of experiments is admissible is, under the circumstances of each case, a preliminary question for the determination of the court, in the exercise of its discretion, which will not be interfered with by an appellate tribunal unless an abuse is made clearly to appear . . .' (Citations omitted.) If the evidence became irrelevant upon the later showing through the defendant that the mill was not in operation on the date of the alleged homicide, defendant's failure to move to strike was, in effect, a waiver of the exception.'

The defendant was charged with secret assault and a battery with a deadly weapon in State v. McLamb, 203 N.C. 442, 166 S.E. 507. His defense was alibi. The prosecuting witness testified that he saw defendant when he appeared suddenly at night at a window of the prosecuting witness's home and shot him. The State offered other witnesses who testified, over objection, that, when sitting at the place where the prosecuting witness was sitting, they were able to identify people appearing at night outside under lighting conditions similar to those in effect on the night of the alleged crime. Defendant assigned as error the admission of this testimony. The Court overruled this assignment of error and stated:

'Speaking to the subject, we find the following in 22 C.J. p. 755, § 842(1): 'The conditions of a relevant occurrence may be artifically created in an experiment, and where the material facts bearing on the particular issue are precisely duplicated in the experiment, the result may be received in evidence. Such evidence is appropriate where the question to be determined relates to such matters as whether an object in a certain position can be seen from a given height above a designated spot, or from a given distance,' etc. Section 843(3) at p. 756: 'Whether or not evidence of experiments is admissible is, under the circumstances of each case, a preliminary question for the determination of the court, in the exercise of its discretion, which will not be interfered with by an appellate tribunal unless an abuse is made clearly to appear.' (Citations omitted.)'

In State v. Hedgepeth, 230 N.C. 33, 51 S.E.2d 914, defendant was charged with assault on a child with intent to commit rape. At trial, he offered witnesses to the effect that the day before the trial 'was kind a cloudy, drizzly day, the whole sky was overcast.' Defendant's witnesses, had they been permitted to testify, would have said that they went to the home of the girl on that day and were unable to look through the window and distinguish any object in the room while standing at distances varying from one to ten feet from the window. Mrs. Bowden, the principal witness for the State, testified that on the day of the alleged crime she looked into the room from the outside and saw defendant with the child in a position consistent with the commission of the crime. Defendant had elicited testimony that the day of the alleged crime was a hazy, cloudy, overcast day. Mrs. Bowden, however, testified that although a hurricane was approaching, the sky was clear on the day of the alleged crime. The trial judge excluded the testimony of the three witnesses, and this Court, holding this ruling to be error, stated:

'While the similarity of the circumstances and conditions is a preliminary question for the court, we are of the opinion that its ruling here was a bit 'too wide of the mark.' The only evidence of guilt is contained in the testimony of Mrs. Bowden. Whether she could see through the window is a material factor in determining the truth of her statements. The testimony developed through the experiments tends sharply to impeach her testimony and assail...