State v. Sallie, 7112SC694

• Decision Date: 23 February 1972
• Docket Number: No. 7112SC694,7112SC694
• Citation: 186 S.E.2d 667,13 N.C.App. 499
• Parties: STATE of North Carolina v. Danny L. SALLIE.
• Court: North Carolina Court of Appeals

Page 667

186 S.E.2d 667

13 N.C.App. 499

STATE of North Carolina v. Danny L. SALLIE.

No. 7112SC694.

Court of Appeals of North Carolina.

Feb. 23, 1972.

Atty. Gen. Robert Morgan by Asst. Atty. Gen. Millard R. Rich, Jr. for the State.

Gary E. Conn and Asst. Public Defender William S. Geimer, for defendant appellant.

PARKER, Judge.

Appellant assigns error to the denial of his motions for nonsuit. By introducing evidence, defendant waived his first motion, which was made at the close of the State's evidence. G.S. § 15--173; State v. McWilliams, 277 N.C. 680, 178 S.E.2d 476. On this appeal, therefore, we consider only defendant's second motion, made at the close of all the evidence. This brings in question the sufficiency of all the evidence to take the case to the jury. In determining this question, we apply the well-established rules that on motion for nonsuit in a criminal case the evidence must be considered in the light most favorable to the State, the State is entitled to every reasonable inference which may legitimately be drawn from the evidence, and defendant's evidence, unless favorable to the State, is not to be considered. However, when not in conflict with the State's evidence, defendant's evidence may be used to explain or clarify the evidence offered by the State. State v. Jones, 380 N.C. 60, 184 S.E.2d 862. 'Contradictions and discrepancies, even in the state's evidence, are for the jury to resolve, and do not warrant nonsuit.' 2 Strong, N.C. Index 2d, Criminal Law, § 104, p. 649.

When viewed in the light most favorable to the State, the evidence in this case would establish the following: Pamela LeGros, a frail little three-year-old girl, died on 17 July 1970 as result of receiving a severe blow on her abdomen. The blow was of such force as to cause an immediate and simultaneous repture of her heart and liver. The blow was received at a time when Pamela and defendant, a grown man in military service, were alone together in a house trailer which had been jointly rented by defendant and Pamela's mother. The only real question for the jury was whether defendant struck the blow, as the State contends, or the blow resulted from an accidental fall, as defendant contends. In our opinion the evidence, when viewed in accordance with the rules above set forth, was sufficient to support a jury finding that defendant struck the blow.

There was evidence that the blow which caused death was the same blow which left a semicircular bruise mark on the child's abdomen; the pathologist testified that in his opinion this was so. The size and shape of this semicircular bruise mark closely approximated the size and shape of the heel of a men's boot. There were numerous other bruise marks distributed over the child's entire body, some of which were of very recent origin. The pathologist testified that the distribution of these bruises showed 'a kick mark on the head and the majority of it.' There was a fresh cut on the back of the head, which occurred very close to or at the time of death. There were pinch-type bruises, described by the pathologist as 'a human bite mark,' on the child's arm. There was evidence from which the jury could find that the child had been horribly abused over a period of time prior to death. There was evidence that this abuse did not commence until about the time defendant started living in the trailer with Pamela's mother.

While it is difficult to comprehend how any man, however brutal, could commit acts of such unrestrained savagery upon a frail and helpless child as the evidence in this case indicates, the nature and extent of the multiple injuries inflicted on little Pamela's body at or about the time she received the blow which caused her death were not such as would normally have resulted from a single accidental fall occurring while she played in the living room of her mother's house trailer. Rather, her wounds furnish mute but eloquent testimony that they may have been caused by a sustained, savage, and intentional attack, during the course of which the death blow was delivered. When all circumstances warranted by the evidence are considered together and when the State is given the benefit of all legitimate inferences which may reasonably be drawn thereform, we find in this case substantial evidence of every essential element of the crime of second-degree murder of which defendant was found guilty. This was all that was required to justify submitting the case to the jury. State v. Stephens, 244 N.C. 380, 93 S.E.2d 431. It was for the jury to determine whether guilt was established beyond a reasonable doubt.

Defendant contends that in any event there was no evidence of premeditation and deliberation and therefore it was error to submit an issue as to his guilt of first-degree murder. While the elements of premeditation and deliberation necessary for first-degree murder may be inferred in some cases from evidence of the vicious and brutal nature of a homicide, State v. Duboise, 279 N.C. 73, 181 S.E.2d 393, it is not necessary for us to decide whether the circumstances disclosed by the evidence in the present case were sufficient for that purpose. Here, the jury acquitted defendant of the capital felony. Conviction of murder in the second degree rendered harmless any error, if any was committed in submitting to the jury the question of defendant's guilt of the more serious offense, at least absent some showing that the verdict of guilty of the lesser offense was affected thereby. State v. Casper, 256 N.C. 99, 122 S.E.2d 805; State v. DeMai, 227 N.C. 657, 44 S.E.2d 218; State v. Keyes, 8 N.C.App. 677, 175 S.E.2d 357. Defendant has not shown that his conviction was affected in any way by the jury's consideration of his possible guilt of the more serious charge.

During the testimony of the pathologist, the witness identified fourteen color photographs as correctly and accurately representing the body of Pamela LeGros as it appeared on 18 July 1970 when he performed the autopsy. The court excluded one of these, but over defendant's objection permitted the jury to see the remaining thirteen. In this there was no error. Defendant does not contend the photographs are inaccurate or were not properly taken and authenticated, and he admits that some of them were relevant. His contention is that others were irrelevant because 'completely unrelated' to the cause of death and that the trial judge abused his discretion by permitting the jury to see so many inflammatory and gruesome pictures. We do not agree. While the immediate cause of death may have been the result of a single severe blow to the child's abdomen, as the pathologist testified was his opinion, the condition of the child's entire body was relevant to the only real question before the jury, namely, under what circumstances and by what means did the child receive the fatal blow. 'Ordinarily, a witness may use photographs to explain or illustrate anything which it is competent for him to describe in words, State v. Atkinson, Supra (275 N.C. 288, 167 S.E.2d 241); State v. Gardner, 228 N.C. 567, 46 S.E.2d 824, and if a photograph is relevant and material, the fact that it is gory or gruesome will not alone render it inadmissible.' State v. Chance, 279 N.C. 643, 654, 185 S.E.2d 227, 234. In the present case the photographs were used by the pathologist to illustrate his testimony. They served to make that testimony more intelligible to the jury. The trial judge instructed the jury that they were for purposes of illustration and were not substantive evidence. Each picture which the jury viewed was relevant and served a useful and proper purpose. There was no error in permitting the jury to see them.

The record discloses that during the direct examination of the pathologist and immediately after the witness had described the semicircular bruise on the child's abdomen, the following occurred:

'Q. Can you determine the cause of the bruise that you described there, Doctor?

A. I can't specifically, but it is reminiscent of a heel mark.

Objection by Attorney Geimer, with motion to strike.

Court: Well, are you testifying out of your own personal experience or are you just sort of making a surmise?

A. Well, it looks like a heel mark but that is purely a surmise.

Court: All right, Ladies and Gentlemen, you may disregard what caused the bruise.'

Defendant noted...