State v. McNeil, s. 78CRS9656

• Decision Date: 06 May 1980
• Docket Number: 78CRS9349,78CRS9358,78CRS9351,78CRS9657,Nos. 78CRS9656,s. 78CRS9656
• Citation: 46 N.C.App. 533,265 S.E.2d 416
• Court: North Carolina Court of Appeals
• Parties: STATE of North Carolina v. Jesse Everett McNEIL and Robert Earl McNeil.

Page 416

265 S.E.2d 416

46 N.C.App. 533

STATE of North Carolina v. Jesse Everett McNEIL and Robert Earl McNeil.

Nos. 78CRS9656, 78CRS9657, 78CRS9351, 78CRS9358, 78CRS9349.

Court of Appeals of North Carolina.

May 6, 1980.

Atty. Gen. Rufus L. Edmisten by Deputy Atty. Gen. William W. Melvin, Asst. Atty. Gen. Mary I. Murrill, and Associate Atty. Gen. Jane P. Gray, Raleigh, for the State.

Farris, Thomas & Farris by Robert A. Farris, Wilson, for defendants-appellants.

HILL, Judge.

The defendants contend the trial judge erred in his instructions to the jury during the trial of the case. Soon after the trial of the case began, the court instructed jurors not to take notes during the trial of the case. Neither party objected at that time. G.S. 15A-1228 provides that, "(j)urors may make notes and take them into the jury room during their deliberations. Upon objection of any party, the judge must instruct the jurors that notes may not be taken."

This statute does not limit the authority of the trial judge to control the taking of notes by the jury during the course of the trial in the absence of objection by counsel. Our Supreme Court has long recognized the authority of the trial judge to control the action of the jury with respect to taking notes. State v. Shedd, 274 N.C. 95, 161 S.E.2d 477 (1968); State v. Goldberg, 261 N.C. 181, 134 S.E.2d 334 (1964); Cowles v. Hayes, 71 N.C. 230 (1874).

It is well established that the function of a trial judge is to guide the progress of the trial to insure all parties a fair and impartial presentation of the evidence. Therefore, we hold the trial judge had authority to instruct the jury not to take notes.

Next, the defendants contend the court erred in its instruction to the jury regarding the weight and effect of corroborative evidence during the trial. The court allowed two witnesses to testify regarding conversations they had with the prosecuting witness. The defendants asked for instructions, and the court instructed the jury that:

(E)vidence has been received as corroboration tending to show that at an earlier time the witness, Miss Ann Berkeley, made a statement consistent with her testimony at this trial. You must not consider such earlier statement as evidence of the truth of what was said at that earlier time, because it was not made under oath at this trial. If you believe that such earlier statement was made and that it is consistent with the testimony of Miss Ann Berkeley at this trial, then you may consider this together with all other facts and circumstances bearing upon the witness Miss Ann Berkeley's truthfulness in deciding whether you will believe or disbelieve her testimony at this trial.

Defendants contend that although the instructions were taken from the standard form, they did not adequately prepare the jury to receive and properly consider the statements which were allowed for corroboration. We do not agree. The language is plain.

The admission of corroborative evidence rests largely in the discretion of the trial court to keep its scope and volume within reasonable bounds. Gibson v. Whitton, 239 N.C. 11, 17, 79 S.E.2d 196 (1953). The defendants requested the trial court to instruct the jury regarding the limited scope of the evidence presented for corroboration. The trial judge complied by reciting the standard instructions. See N.C.P.I.-Crim. 105.05. The assignment of error is without merit.

Defendants contend the trial judge erred by refusing testimony from each defendant to the effect that each had taken a polygraph examination, the results of which would have shown that each defendant was truthful in denying that he was guilty of the crimes charged. In North Carolina it is well settled that, absent a valid stipulation of admissibility between the parties, results of polygraph examinations are inadmissible in state court proceedings. State v. Foye, 254 N.C. 704, 707, 120 S.E.2d 169 (1961); State v. Brunson, 287 N.C. 436, 445, 215 S.E.2d 94 (1975); State v. Jackson, 287 N.C. 470, 480, 215 S.E.2d 123 (1975). Even where there is a valid stipulation of admissibility, the results of polygraph examinations are admissible only in the discretion of the trial judge. State v. Milano, 297 N.C. 485, 499, 256 S.E.2d 154 (1979). Our rule on polygraph evidence is in substantial accord with most other states; see Annot., 53 A.L.R.3d 1005 (1973); and with the position the federal courts that have examined the issue have taken. See United States v. Grant, 473 F.Supp. 720, 723 (D.S.C.1979); Annot., 43 A.L.R.Fed. 68 (1979).

We do not propose in this case to examine the reliability of polygraph machines, but we must note that the Eighth Circuit in United States v. Alexander, 526 F.2d 161, 166 (8th Cir. 1975), stated, "(t)here is an insufficient degree of assurance that polygraph machines and operators are capable of discovering and controlling the many subtle abnormalities and factors which affect test results." The defendants went before the jury and offered testimony denying their involvement in the crimes charged. We believe the jury is still the better forum, when presented with the facts, to determine guilt or innocence. It is well known that the polygraph popularly known as a lie detector does not detect lies, but merely records physiological phenomena which are assumed to be related to conscious deception, all of which must yet be interpreted by the operator. The assignment of error is overruled.

During trial, defendant Jesse McNeil was permitted to introduce into evidence a photostat of a personnel registry indicating that he signed in at Fort Benning, Georgia, on 11 September 1978 at 3:30 p. m. Jesse McNeil also introduced a photostat of a bus ticket providing for passage from Wilson to Columbus, Georgia, allegedly purchased by him and dated 9 September 1978 (but sold on 10 September 1978). Both photostats were admitted for illustrative purposes only.

Jesse McNeil testified the photostat was of the ticket used for the trip and contends that he should have been permitted to introduce the copies of the bus ticket and personnel registry as substantive (real) evidence. Defendant contends that failure to permit the introduction of the copies of the bus ticket and personnel registry was tantamount to suppression by the prosecution of evidence, which was requested by the accused and favorable to him, and that such withholding violated his right to due process. Defendant contends the withholding materially affected his assurance of a fair trial and cites Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), as authority. We do not agree.

The defendant testified in his own behalf, contending that he rode the bus from Wilson, leaving at 7:40 p. m., and arriving in Columbus, Georgia, the following day at 2:50 p. m. Jesse McNeil stated he personally signed in at Fort Benning at 3:30 p. m. It is undisputed that defendant purchased the ticket and signed the registry sheet. He illustrated these facts with photostats of the bus ticket and the personnel registry. Such records were before the jury. In fact, the records were obtained by the State and delivered to the defendant. Defen...