State v. Sledge

• Decision Date: 17 May 1979
• Docket Number: No. 34,34
• Citation: 297 N.C. 227,254 S.E.2d 579
• Parties: STATE of North Carolina v. Joseph SLEDGE, Jr.
• Court: North Carolina Supreme Court

Page 579

254 S.E.2d 579

297 N.C. 227

STATE of North Carolina v. Joseph SLEDGE, Jr.

No. 34.

Supreme Court of North Carolina.

May 17, 1979.

Rufus L. Edmisten, Atty. Gen. by Lester V. Chalmers, Jr., Sp. Deputy Atty. Gen., Raleigh, for the State.

Reuben L. Moore, Jr., Elizabethtown, for defendant-appellant.

HUSKINS, Justice:

Pursuant to G.S. 15A-903 defendant filed a pretrial motion "for information necessary to receive a fair trial" and a motion to inspect, examine, and test physical evidence. By his first assignment of error defendant asserts the trial court erred (a) in denying his motion for the names of other prison inmates who would testify to incriminating statements defendant had allegedly made to them; and (b) in failing to require the prosecution to furnish to defendant, prior to trial, photographic slides of the bodies of the two victims.

We find no merit in this assignment. Defendant, in compliance with G.S. 15A-903(a)(2), was advised by the prosecution that incriminating statements he had made to other unnamed inmates would be used against him at trial. Moreover, during the first trial of this case Donald L. Sutton and Herman Baker, Jr., inmates of the North Carolina Department of Corrections, testified for the State and gave substantially the same testimony as they gave in this trial. Each of these witnesses was cross-examined at length. Defendant therefore had their names as well as a copy of their prior recorded testimony. In any event, G.S. 15A-903 affords an accused no right to discover the names and addresses of the State's witnesses and does not require the State to furnish the accused a list of the witnesses who will be called to testify against him. State v. Smith, 291 N.C. 505, 231 S.E.2d 663 (1977).

With respect to the motion to inspect the physical evidence, we note the trial court, after a hearing, allowed defendant to examine and inspect all photographs taken by the State in the investigation of the accusations against him. This included State's Exhibits Nos. 13-A, through 13-D and 14-A through 14-E. These exhibits were photographic slides of the bodies of the two deceased women. Defendant complains the slides were not furnished to him prior to trial. Yet the record discloses that Dr. Reavis testified at the first trial and illustrated his testimony by the use of these exhibits. Defendant viewed the slides at the first trial and his counsel cross-examined Dr. Reavis concerning them. Thus defendant had examined the slides and had the benefit of the doctor's prior recorded testimony during his preparation for this trial. We perceive nothing prejudicial by the failure to produce these slides prior to trial. Defendant's first assignment of error is overruled.

Defendant's second assignment of error is grounded on the contention that State's Exhibits Nos. 13-A through 13-D and 14-A [297 N.C. 231] through 14-E, photographic slides of the bodies of Josephine Davis and Aileen Davis, respectively, were grossly inflammatory and their introduction denied defendant a fair and impartial trial.

We note that the photographs, four of one body and five of the other, were made 9 November 1976 after the bodies had been exhumed by the State for the second autopsy. The photographs generally illustrate the various knife wounds inflicted upon the bodies of the two victims. Admittedly, the slight decomposition of the bodies since the date of death 6 September 1976 made the photographs in question somewhat more gory and gruesome than would otherwise have been true. Even so, the murder scene itself was a gory sight. There were pools of blood beneath and around the bodies. Each body bore stab wounds about the face and neck with heavy concentrations of blood in the wound areas. The wall and floor and a nearby refrigerator bore heavy spatterings of blood. Normal human revulsion could be accentuated but little by viewing the photographs under attack.

It is settled law that the unnecessary use of inflammatory photographs in excessive numbers solely for the purpose of arousing the passions of the jurors may deny defendant a fair and impartial trial. State v. Mercer, 275 N.C. 108, 165 S.E.2d 328 (1969); State v. Foust, 258 N.C. 453, 128 S.E.2d 889 (1963). It is equally well settled that photographs are admissible to illustrate the testimony of a witness and their admission for that purpose under proper limiting instructions is not error. 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 (1976); State v. Cutshall, 278 N.C. 334, 180 S.E.2d 745 (1971). See generally 1 Stansbury, N. C. Evidence § 34 (Brandis Rev.1973). The fact that a photograph depicts a horrible, gruesome or revolting scene does not render it incompetent. When properly authenticated as a correct portrayal of what it purports to show, a photograph may be used by the witness to illustrate his testimony, and its admission for that purpose is not error. State v. Duncan, 282 N.C. 412, 193 S.E.2d 65 (1972); State v. Atkinson, 275 N.C. 288, 167 S.E.2d 241 (1969).

Applying the foregoing principles to the photographs challenged by this assignment, we perceive no prejudicial error, although the State likely could have illustrated the medical testimony fully as well with fewer pictures. Excessive use of photographs is not favored. "What constitutes an excessive number of photographs must be left largely to the discretion of the trial court in the light of their respective illustrative values. The photographs in the present case were not merely repetitious. They portrayed somewhat different scenes and we find in the use of the total number no abuse of discretion." State v. Dollar, 292 N.C. 344, 233 S.E.2d 521 (1977). So it is here. This assignment is overruled.

The two victims were killed on 6 September 1976 and their bodies were exhumed and examined by Dr. Reavis on 9 November 1976 incident to the second autopsy. Dr. Reavis was then permitted, over objection, to testify concerning the second autopsy he performed and to give his opinion as to the cause of death. Defendant contends that evidence concerning the second autopsy, performed sixty-four days after burial, was too remote to have any probative value and was erroneously admitted.

Phillip Little, an investigator with the Bladen County Sheriff's Department, was permitted to testify, over objection, that on 6 September 1976, while investigating the murders, he first saw a can of black pepper lying on the floor in the hall that leads to the rear exit of the Davis home. He attached no particular significance to it until Herman Baker, Jr., told him in February 1978 that defendant Sledge said he escaped from the White Lake Prison Unit, stabbed two women, and "sprinkled black pepper around the back door so that the she-devils' spirits could not follow him." Officer Little further testified that the pepper can thereupon became a part of his official file and that it was in the same condition at trial as it was when he found it. Defendant contends that evidence concerning the pepper can was too remote to have any probative value and was erroneously admitted. Admission of evidence concerning the second autopsy and evidence concerning the pepper can constitute defendant's third assignment of error.

In State v. Porth, 269 N.C. 329, 153 S.E.2d 10 (1967), we held that a medical expert may testify from his autopsy, even though the autopsy was made five months after the death of the deceased, and give his opinion as to the cause of death. The delay in making the autopsy goes to the weight of the testimony rather than its competency.

Defendant also complains that the trial court erred in refusing to allow him to cross-examine Dr. Reavis regarding the first autopsy. Defendant had a right to such cross-examination and the court erred in refusing to allow it, but we cannot know whether the ruling was Prejudicial because defendant failed to place in the record the answers the witness would have given had he been permitted to do so. "The record does not show what the State's witnesses . . . would have said had they been permitted to answer the questions. Therefore we cannot know whether the rulings were prejudicial. The burden is on appellant not only to show error but to show Prejudicial error. State v. Kirby, 276 N.C. 123, 171 S.E.2d 416; State v. Jones, 249 N.C. 134, 105 S.E.2d 513; State v. Poolos, 241 N.C. 382, 85 S.E.2d 342." State v. Robinson, 280 N.C. 718, 187 S.E.2d 20 (1972). Moreover, there is no reason to believe that the excluded cross-examination concerning the first autopsy would have produced a different result. Unless a different result likely would have ensued had the evidence been admitted, its exclusion must be regarded as harmless. G.S. 15A-1443(a); State v. Barbour, 278 N.C. 449, 180 S.E.2d 115 (1971), Cert. denied, 404 U.S. 1023, 92 S.Ct. 699, 30 L.Ed.2d 673 (1972); State v. Williams, 275 N.C. 77, 165 S.E.2d 481 (1969).

With respect to the admission of the pepper can and the testimony concerning it, the general rule is that any object which has a relevant connection with the case is ordinarily admissible in evidence. "Any evidence which is relevant to the trial of a criminal action is admissible." State v. Winford, 279 N.C. 58, 181 S.E.2d 423 (1971). Accord, State v. Bass, 280 N.C. 435, 186 S.E.2d 384 (1972); State v. Johnson, 280 N.C. 281, 185 S.E.2d 698 (1972); State v. Perry, 275 N.C. 565, 169 S.E.2d 839 (1969). See generally 1 Stansbury, N. C. Evidence § 118 (Brandis Rev.1973). The relevancy of evidence concerning the pepper can is quite apparent in light of defendant's statement to the witness Baker that he sprinkled pepper around the back door. Officer Little testified that the can had been in his care, custody and control from the time he found it on 6 September 1976 until he brought it into court at the first trial in May and that it was "in the same condition now as it was at the time" he found it. Such...