State v. Marshall

• Decision Date: 06 October 1981
• Docket Number: No. 12,12
• Citation: 304 N.C. 167,282 S.E.2d 422
• Parties: STATE of North Carolina v. Clinton MARSHALL.
• Court: North Carolina Supreme Court

Page 422

282 S.E.2d 422

304 N.C. 167

STATE of North Carolina v. Clinton MARSHALL.

No. 12.

Supreme Court of North Carolina.

Oct. 6, 1981.

Atty. Gen. Rufus L. Edmisten by Sp. Deputy Atty. Gen. M. Ann Reed, Raleigh, for the State.

Russell J. Hollers, Troy, for defendant-appellant.

BRITT, Justice.

Defendant's assignments of error numbers 1, 2, 3, 5 and 14 all relate to the sentencing phase of the trial. Since the jury at that phase returned a verdict favorable to defendant, the questions which he attempts to raise are moot and will not be decided. Jamison v. Kyles, 271 N.C. 722, 157 S.E.2d 550 (1967). We will consider and pass upon only those assignments relating to the guilt determination phase of the trial.

Defendant has consolidated his assignments of error 5, 6, and 7 into one argument. He contends that the trial court abused its discretion in denying his motions for change of venue, for a special venire, and for sequestration of the state's witnesses. There is no merit in these assignments.

It is well-settled, and defendant concedes, that the court's ruling on each of the questions raised by these assignments is addressed to the sound discretion of the trial court and that its ruling will not be disturbed on appeal absent a showing of abuse of discretion. State v. Hamilton, 298 N.C. 238, 258 S.E.2d 350 (1979) (change of venue); State v. Boykin, 291 N.C. 264, 229 S.E.2d 914 (1976) (special venire panel); and G.S. § 15A-1225 (exclusion of witnesses from courtroom). Defendant has failed to show any abuse of discretion.

By his assignment of error number 8, defendant contends that the trial court erred in denying his motion "for individual voir dire." The record reveals that this motion was made and denied at a pretrial hearing on 13 October 1980 and again when the case was called for trial on 3 November 1980. However, the record does not disclose the text of the motion or any explanation about it only the words above quoted. That being true, we can only speculate as to the nature of the motion. This we will not do. It is encumbent on the defendant to show error and also to show that the error was prejudicial to him. State v. Sanders, 280 N.C. 67, 185 S.E.2d 137 (1971). The assignment is overruled.

By his eleventh and twelfth assignments of error, defendant contends the trial court erred in admitting into evidence certain photographs of the victim's body and of the service station where the alleged homicide took place. These assignments have no merit.

It is axiomatic that a witness may use photographs to illustrate his testimony and make it more intelligible to the court and jury. 1 Stansbury's N.C. Evidence (Brandis Rev.) § 34. "If a photograph is relevant and material, the fact that it is gory or gruesome ... will not alone render it inadmissible." Ibid. See also State v. Sledge, 297 N.C. 227, 254 S.E.2d 579 (1979).

The record reveals that the photographs complained of were used to illustrate the testimony of witnesses. The court instructed the jury that the photographs would be considered for that purpose only and not as substantive evidence. The photographs were not sent to this court as part of the record on appeal, therefore, we are not in position to determine how gory or gruesome they are. We conclude that defendant has failed to show error.

By his assignments of error 9 and 12, defendant contends the trial court erred in denying his motions to dismiss, particularly as to first-degree murder, made at the conclusion of the state's evidence and at the close of all of the evidence. These assignments have no merit.

The evidence presented by the state, and reasonable inferences arising therefrom, is summarized in pertinent part as follows:

On 12 August 1980 Billy Simmons was operating a service station and grill on U. S. Highway 220 several miles south of Candor, North Carolina. Defendant lived in a house which was located immediately across the highway from Simmons' place of business. On the morning of said date, Simmons discovered two bullet holes in a front window of his building. Early that evening defendant went to Simmons' place and an argument arose between them regarding the bullet holes. Defendant denied knowing anything about them.

The argument was followed by a scuffle in front of the station between defendant and Simmons after which defendant went to his home. Simmons entered his station, told his wife to call the sheriff's department, and put a small pistol in his hip pocket. Shortly thereafter defendant returned to the Simmons' premises carrying a rifle. Simmons went to his front door and stood there while defendant proceeded to use profane and indecent language. Simmons asked defendant several times to "go back across the road". Simmons continued to stand in his doorway with his arms crossed. He told defendant that the "law" had been called and would soon come and "settle all of this".

Several rifle shots were fired and Simmons fell to the floor. Defendant left the scene. An ambulance was called but before it arrived, a highway patrolman arrived on the scene. The patrolman found Simmons lying on his right side in the doorway of his service station. Simmons was unconscious but the officer determined that he was still alive. An ambulance arrived some five minutes later, carried Simmons to the hospital in Troy, but he was pronounced dead on arrival at the hospital. Immediately thereafter a small pistol was found "buried" in a rear pocket of Simmons' pants.

An autopsy revealed gunshot wounds to Simmons' leg, body and head. One bullet entered his forehead on the right side, passed through his head and lodged in the bone on the left side. Death resulted from the shot to his head.

At around 9:00 p.m. on said date, defendant went to the home of his sister, Judy Marshall. He gave her a .22 caliber automatic rifle which she later delivered to the police. Defendant told his sister that Simmons had slapped him and "he shot him".

Defendant's evidence, including his own testimony, is summarized in pertinent part as follows:

On the date in question defendant was 22 years old. He left school when he was 16. The entire time he was enrolled he attended special education classes. Defendant could not read. He had moved into the house across the highway from Simmons' place of business some two years prior to the shooting incident. His girlfriend lived with him and they had a 10-month-old baby. He had worked for Simmons at intervals over a period of several years.

Some two weeks prior to the day of the shooting, defendant was working for Simmons in a peach orchard. On that occasion, he and Simmons got into an argument when Simmons complained about some of his tools being missing. Simmons accused defendant of knowing about people taking his tools and breaking into his station but not telling Simmons about it. When defendant denied knowing anything about these matters, Simmons called him a liar. After further conversation Simmons drew his pistol and pointed it at defendant. Defendant grabbed a hatchet and Simmons "backed off".

On the evening in question, defendant went to Simmons' station to purchase some items. Simmons proceeded to talk to him regarding the two bullet holes in the window. When defendant insisted that he knew nothing with respect to who shot the holes, Simmons called him a liar. Defendant then called Simmons a liar. After that Simmons grabbed him and slapped him to the ground. "He slapped me three times in the face." Defendant called Simmons a s. o. b. and ran across the road to his home where he obtained his rifle.

Defendant returned to the station, crying and mad. Simmons told him he slapped him because he called Simmons a damn liar. After they exchanged words with each other, defendant saw...