State v. Mitchell
| Decision Date | 01 June 1973 |
| Docket Number | No. 87,87 |
| Citation | 196 S.E.2d 736,283 N.C. 462 |
| Parties | STATE of North Carolina v. James Louis MITCHELL. |
| Court | North Carolina Supreme Court |
Atty. Gen. Robert Morgan, and Asst. Attys. Gen. Eugene Hafer, and Donald A. Davis, for the State.
Robert W. Smith, Tharrington, Smith & Hargrove, Raleigh, for defendant-appellant.
Defendant first assigns as error the trial court's failure to allow defendant's motion for a change in venue or, in the alternative for a special venire from another county. G.S. § 1--84; G.S. § 9--12.
The motion is supported by an affidavit of defendant's attorney which states that because of publicity received as a result of the mistrial granted in the first trial defendant could not receive a fair and impartial trial. In addition, defendant offered as exhibits three newspaper articles, two of which were published in the News and Observer on page 5 and on page 50 on October 26 and October 27, 1972, respectively, and the other of which appeared in the Raleigh Times on October 27, 1972. These articles were a factual report of what transpired at the first trial when the motion for mistrial was allowed. The record does not indicate that any prospective juror had read the newspaper articles or had seen or heard any other news releases pertaining to these cases. Nothing in the record shows that any juror had been influenced in any manner by this publicity.
In State v. Allen, 222 N.C. 145, 22 S.E.2d 233 (1942), a murder case in which this Court held that the defendant's motion for a change of vanue based upon newspaper articles was in the discretion of the trial court, Justice Denny (later Chief Justice) said:
'. . . A motion for change of venue or for a special venire, may be granted or denied in the discretion of the trial Judge, and his decision in the exercise of such discretion is not reviewable here unless gross abuse is shown. . . .'
To prevail on this assignment, defendant would have to show an abuse of discretion. State v. Blackmon, 280 N.C. 42, 185 S.E.2d 123 (1971); State v. Brinson, 277 N.C. 286, 177 S.E.2d 398 (1970); State v. Porth, 269 N.C. 329, 153 S.E.2d 10 (1966); State v. Scales, 242 N.C. 400, 87 S.E.2d 916 (1955). No such abuse of discretion has been shown. This assignment is overruled.
The prosecuting witness Cynthia Wortham testified that at the request of Detective R. B. Tant she viewed ten or fifteen photographs and from those she selected the photograph of the person who assaulted her. Detective Tant testified that the group of eleven pictures marked as State's Exhibit 4 were the photographs from which Mrs. Wortham selected the photograph of the person who assaulted her. All the photographs, including that of defendant, were introduced in evidence. The solicitor then requested permission of the court to hand defendant's photograph to the jury. Defendant objected and requested that all the photographs be passed at one time. This objection was overruled Defendant in his brief, citing State v. Miller, 219 N.C. 514, 14 S.E.2d 522 (1941), admits it was proper to allow the jury to see the photographs, but contends that all the photographs should have been passed to the jury at the same time so the jurors could get an accurate view of the appearance of the photograph selected as being that of the defendant as compared to the appearance of the other photographs. As a result of defendant's objection, the trial judge stated to the jury:
and the photograph which had been identified as that of defendant was given to the jury; thereafter the remaining ten photographs were passed to the jury.
No juror requested to seel all the photographs at one time. This assignment is without merit.
Defendant next contends that the court erred when, over objection, the witness W. M. Parker was allowed to testify as to his opinion respecting fingerprint comparisons when the witness had been neither tendered as nor found to be an expert.
In State v. Perry, 275 N.C. 565, 169 S.E.2d 839 (1969), there was an assignment of error based on the failure of the trial court to make a finding that a doctor was an expert and qualified to give an opinion regarding recent sexual intercourse by the prosecuting witness in a rape trial. In the opinion Justice Lake pointed out that the better practice is for the solicitor to formally tender the witness as an expert and for the trial judge so to rule in a formal manner. However, the assignment of error was overruled, and Justice Lake stated:
'In the absence of a request by the appellant for a finding by the trial court as to the qualification of a witness as an expert, it is not essential that the record show an express finding on this matter, the finding, one way or the other, being deemed implicit in the ruling admitting or rejecting the opinion testimony of the witness. . . .'
Accord, State v. DeMai, 227 N.C. 657, 44 S.E.2d 218 (1947).
In the present case Parker had just testified that he had tweny-two years' experience in police identification work, including fingerprint identification; had supervised five other identification technicians; had attended training sessions and had read identification manuals; had compared over ten thousand fingerprints; and had testified on numerous occasions as an expert witness in fingerprint identification. As in State v. Perry, supra, defendant did not request a finding by the trial court concerning Parker's qualifications as an expert. The essential question in determining the admissibility of opinion evidence is whether the witness, through study or experience, has acquired such skill that he is better qualified than the jury to form an opinion on the subject matter to which his testimony applies. State v. Hairston and State v. Howard and State v. McIntyre, 280 N.C. 220, 185 S.E.2d 633 (1972); Cogdill v. Highway Commission and Westfeldt v. Highway Commission, 279 N.C. 313, 182 S.E.2d 373 (1971); State v. Vestal, 278 N.C. 561, 180 S.E.2d 755 (1971); 1 Stansbury, North Carolina Evidence (Brandis Rev.) § 133, p. 431. The evidence in the present case clearly indicates that the witness Parker through both study and experience had acquired such skill. This assignment is overruled.
At the close of the State's evidence the court informed the jury that the solicitor
for the State and counsel for defendant had entered into a stipulation:
After the jury retired and deliberated for some period of time, they returned and the following occurred:
'You are required to accept that stipulation as the truth. You may not debate about it.
EXCEPTION
'I will read it to you.
'You must accept as true this statement: That Dr. Dewey Pate examined the slides of smears taken by Dr. Jones from the vagina of Cynthia Wortham on July 14, 1972, and that the examination revealed the presence of sperm, but that Dr. Pate could not tell when the sperm were deposited in her vagina. They could have been deposited there at any time between an hour and two weeks earlier than the time the smears were taken.
'If any person on the jury would like me to read it over to you again, I will be glad to do so.'
Defendant contends the court erred in instructing the jury that they must accept that stipulation as the truth and that they could not debate about it.
No proof of stipulated facts is required. The stipulation is substituted for proof and dispenses with the need for evidence. In State v. McWilliams, 277 N.C. 680, 178 S.E.2d 476 (1970), the defendant had stipulated the death of Bloss Manning was caused by a blow to the head. Evidence at the trial indicated that defendant struck a blow upon Manning's head. Justice Huskins for the Court stated:
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