State v. Ruof

• Decision Date: 16 March 1979
• Docket Number: No. 15,15
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Edgar Curtis RUOF.

Page 720

252 S.E.2d 720

296 N.C. 623

STATE of North Carolina v. Edgar Curtis RUOF.

No. 15.

Supreme Court of North Carolina.

March 16, 1979.

Michael S. Scofield, Scofield & Stroud, Charlotte, for defendant appellant.

BRANCH, Justice.

Defendant assigns as error the failure of the trial judge to grant his motion in limine. The thrust of the motion was to prohibit any comment regarding defendant's association with "The Outlaws" motorcycle club. The trial judge considered the written motion and stated that he would rule on it "at the appropriate time during the course of the trial."

Generally, a motion in limine seeks to secure in advance of trial the exclusion of prejudicial matter. North Carolina has no statutory provisions for such a motion, and it is rarely if ever used in this State. In those jurisdictions which recognize the motion, however, the uniform rule appears to be that the decision whether to grant the motion is addressed to the trial judge's discretion. See, Annot., 63 A.L.R.3d 311 (1975).

In instant case, we discern no prejudice resulting from the trial judge's failure to grant defendant's motion in limine. The trial judge was not in a position prior to trial to know the context in which the matter defendant sought to exclude would be presented. Defendant retained his right to object to such testimony when it was offered at trial. We, therefore, hold that the trial judge properly denied defendant's motion.

Defendant argues that the trial judge committed prejudicial error by admitting a photograph of deceased into evidence. We do not agree.

During the testimony of Dr. Wood, an expert in pathology, he was shown a photograph which he stated fairly and accurately portrayed the head of Roger Dale Bartee. The witness then used this photograph to illustrate the entry and exit of the bullet which caused Bartee's death. When the photograph was offered into evidence, defense counsel objected but did not request a limiting instruction as to the use of the photograph. Judge Thornburg overruled defendant's objection and admitted the photograph into evidence.

It is well settled that photographs are admissible into evidence to illustrate the testimony of a witness. State v. Crowder, 285 N.C. 42, 203 S.E.2d 38 (1974), Death sentence vacated, 428 U.S. 903, 96 S.Ct. 3205, 49 L.Ed.2d 1207; State v. Cutshall, 278 N.C. 334, 180 S.E.2d 745 (1971). Such photograph must, of course, be properly authenticated as a correct portrayal of the conditions observed and related by the witness who uses it to illustrate his testimony. State v. Thomas, 294 N.C. 105, 240 S.E.2d 426 (1978). It is the rule in this jurisdiction that photographs are not substantive evidence and may be used only to illustrate or explain the testimony of a witness, and a party is entitled to an instruction to this effect If he makes a timely request therefor. 1 Stansbury's North Carolina Evidence (Brandis Rev.), Witnesses, Section 34, pages 99-100, and cases there cited.

Defendant relies upon State v. Mercer, 275 N.C. 108, 165 S.E.2d 328 (1969), to support his argument. Mercer is distinguishable from instant case. The rationale of Mercer was that the trial judge erred because he admitted an excessive number of gruesome photographs which added nothing of probative value. Here, defendant contended that his pistol accidentally discharged when he struck Bartee on the head. Thus, the Single photograph as used by Dr. Wood related to the angle of entry and exit of the fatal bullet which bore on the plausibility of defendant's defense of accident. Obviously, this evidence was relevant and of strong probative value.

Neither do we find merit in defendant's contention that the trial judge committed prejudicial error in admitting into evidence a photograph of defendant as he appeared in October, 1975.

When defendant entered his plea of not guilty, he placed upon the State the burden of proving beyond a reasonable doubt each and every element of the crime of murder in the first degree and that defendant was the person who perpetrated the crime. State v. Jones, 280 N.C. 60, 184 S.E.2d 862 (1971). Thus, it was incumbent upon the State to prove that it was Edgar Curtis Ruof who committed the crime. The State was not required to speculate as to what evidence or admissions defendant might later place before the jury. The photograph of defendant admitted as the State's Exhibit 5 was authenticated as portraying defendant's appearance on the date of the shooting and was used by the witnesses to explain their testimony relating to identification. The eyewitnesses who observed defendant at the time of the shooting described him as a very heavy man who wore a full beard and had very long reddish brown hair. At trial, defendant was slender, clean-shaven, and had short hair. By using the photograph to illustrate their testimony, the witnesses were able to remove any confusion as to defendant's identity which might have arisen because of the variance in the witnesses' verbal descriptions of defendant on the night of the shooting as compared to defendant's appearance at trial.

Defendant contends that the trial judge erred in allowing testimony relating to defendant's association with "The Outlaws" motorcycle gang because such evidence was irrelevant and was introduced solely to prejudice the jury. We do not agree. Relevant evidence will not be excluded simply because it may tend to prejudice the jury or excite its sympathy. State v. Hairston, 280 N.C. 220, 185 S.E.2d 633 (1972), Cert. denied, 409 U.S. 888, 93 S.Ct. 194, 34 L.Ed.2d 145. The witnesses who identified defendant testified that they had seen him at "The Hut" prior to the night in question dressed in "Outlaw" clothes and in the company of other "Outlaws." This testimony was relevant and admissible for the purpose of identifying defendant.

Moreover, the State contends that defendant's association with "The Outlaws" is evidence of his motive for shooting Bartee. The State argues in this regard that "The Hut" was the "home turf" of "The Outlaws" and defendant shot Bartee because he dared to encroach upon their territory. Our cases hold that it is competent to show motive for the commission of a crime though motive does not constitute an element of the offense charged. State v. Adams, 245 N.C. 344, 95 S.E.2d 902 (1957); State v. Coffey, 228 N.C. 119, 44 S.E.2d 886 (1947). In light of the relevance of the challenged testimony, its admission did not constitute error.

Defendant assigns as error the ruling of the trial judge admitting into evidence a knife found among Bartee's personal effects.

Prior to trial, defense counsel made a request for discovery pursuant to G.S. 15A-910 which provides:

Regulation of discovery failure to comply. If at any time during the course of the proceedings the court determines that a party has failed to comply with this Article or with an order issued pursuant to this Article, the court in addition to exercising its contempt powers may

(1) Order the party to permit the discovery or inspection, or

(2) Grant a continuance or recess, or

(3) Prohibit the party from introducing evidence not disclosed, or

(4) Enter other appropriate orders.

It is defendant's position that the failure of the State to produce the knife before trial resulted in prejudicial error.

The trial judge found that the State discovered the knife during the trial on the afternoon of 19 June 1978 and advised defense counsel of its existence at 11:00 a. m. on the following day.

In State v. Shaw, 293 N.C. 616, 239 S.E.2d 439 (1977), the defendant was charged with rape and taking indecent liberties with a child. Over defendant's objection, the State offered evidence of a foreign pubic hair found about the private parts of the victim which an expert witness concluded could have come from the body of the defendant. The State did not become aware of this evidence until the trial was in progress, and as soon as the evidence came to the attention of the district attorney, he informed defense counsel of its existence. In finding no error, this Court, speaking through Justice Lake, stated:

By its express terms, this statute authorizes, but does not require, the trial court to prohibit the party offering nondisclosed evidence from introducing it. This is left to the discretion of the trial court and, under the circumstances disclosed by this record, we perceive no indication of abuse of such discretion. The defendant did not, as he might have done, request a continuance in order to permit him to prepare for cross-examination of these witnesses with reference to this matter.

In the case Sub judice, defense counsel did not object to the introduction of the knife. He did not request a continuance. Even so, the trial judge without request took a recess to the end that defense counsel could make such use of the knife as he saw fit. Under these circumstances, we see no error in the trial judge's ruling. Even had there been error in the court's ruling, we fail to discern any prejudice to defendant in the introduction of the knife. It was his position that he struck the deceased because he thought the deceased was knifing his friend. The introduction of the knife into evidence appears to bolster rather than weaken defendant's position.

This assignment of error is overruled.

Defendant next contends that the trial judge erred in allowing improper and prejudicial cross-examination of defendant. More specifically, defendant argues that the district attorney cross-examined defendant in bad faith with regard to prior criminal activity or acts of misconduct. Prior to cross-examination, the jury was excused after a brief bench conference and the district attorney indicated that he did not intend to ask any questions in bad faith concerning prior criminal activity or acts of misconduct which to his knowledge were terminated in defendant's favor. Defense counsel requested that the district attorney be allowed to ask defendant, in the...