State v. Smith

• Decision Date: 06 May 1980
• Docket Number: No. 46,46
• Citation: 300 N.C. 71,265 S.E.2d 164
• Parties: STATE of North Carolina v. Larry Donnell SMITH.
• Court: North Carolina Supreme Court

Page 164

265 S.E.2d 164

300 N.C. 71

STATE of North Carolina v. Larry Donnell SMITH.

No. 46.

Supreme Court of North Carolina.

May 6, 1980.

Atty. Gen. Rufus L. Edmisten by Sp. Deputy Atty. Gen. David S. Crump, Raleigh, for the state.

W. Leslie Johnson, Jr., Elizabethtown, for defendant-appellant.

BRITT, Justice.

At the outset we note that this appeal should have been filed in the Court of Appeals since the minimum sentence imposed is less than life imprisonment. State v. Ferrell, --- N.C. ---, 265 S.E.2d 210 (No. 66, Spring Term 1980). Even so, we treat the papers filed by defendant in this court as a motion to bypass the Court of Appeals, allow the motion, and consider the case on the merits. G.S. 7A-31.

Defendant contends first that the trial court erred in proceeding to try him without first having conducted a formal arraignment. This contention has no merit.

The conducting of arraignments is dictated by Article 51 of Chapter 15A of the North Carolina General Statutes. An arraignment is a proceeding whereby a defendant is brought before a judge having jurisdiction to try the offense so that the defendant may be formally apprised of the charges pending against him and directed to plead to them. G.S. § 15A-941 (1978). If a defendant fails to plead after the prosecutor has read the charges or otherwise fairly summarized them, the court must record that fact, and defendant must be tried as if he had entered a plea of not guilty. Id. Where there is no doubt that a defendant is fully aware of the charge against him, or is in no way prejudiced by the omission of a formal arraignment, it is not reversible error for the trial court to fail to conduct a formal arraignment proceeding. State v. McCotter, 288 N.C. 227, 217 S.E.2d 525 (1975).

In the present case the record reflects that the assistant district attorney called the cases of defendant, Wayne McKiever, and Curtis Leon McKoy and made a motion to consolidate. With the consent of the three defendants, the motion was allowed. After granting the motion, the court inquired, "(T)he plea is not guilty?" Defense counsel replied affirmatively. The court thereupon told the venire at the beginning of jury selection that the defendants had entered pleas of not guilty. In his instructions to the jury, the trial judge stated that defendants had pled not guilty; he further instructed that an indictment is not evidence of guilt and that the burden of proof was on the state to prove the guilt of each defendant beyond a reasonable doubt.

While it is clear that defendant was not formally arraigned, his counsel did indicate to the court that the plea was not guilty. Furthermore, the trial was conducted throughout as an adversary proceeding. There is no indication whatsoever that defendant was unaware of the nature of the charge. While it is the better practice to conduct a formal arraignment proceeding, defendant has failed to establish that his right to a fair trial was prejudiced by its absence in this case. We perceive no prejudicial error.

During the state's case-in-chief, Larry Nunnery, the owner and operator of a convenience store near Elizabethtown that defendant allegedly had attempted to rob, testified that a black man entered his store wearing a dark jacket; that the man came up to him as he was behind the counter which held a cash register; and that the man had a gun in his jacket. Nunnery went on to describe the gun as being covered by a glove or sock as it was pointed at him. At that point, the following exchange took place.

Q. Would you describe the gun, please.

A. The gun was a dark metal gun, and it looked to me like it was probably about the caliber of a .38. It was not a big gun.

MR. JOHNSON: Objection and motion to strike.

COURT: Read back what he said after 'a .38.'

REPORTER: . . . about the caliber of a .38. It was not a big gun.

COURT: Overruled. Motion denied.

Defendant argues that allowing the witness to testify as to the caliber of the gun was inflammatory and prejudicial. We reject this argument.

Opinion evidence is inadmissible whenever the witness can relate the facts so that the jury will have an adequate understanding of them, and the jury is as well qualified as the witness to draw inferences and conclusions from the facts. See generally 1 Stansbury's North Carolina Evidence § 124 (Brandis Rev.1973). However, it is well settled that opinion evidence is always admissible when the facts on which the opinion or conclusion is based cannot be so described that the jury will understand them sufficiently to be able to draw their own inferences. E. g., State v. Watson, 287 N.C. 147, 214 S.E.2d 85 (1975); see also 1 Stansbury's North Carolina Evidence § 125 (Brandis Rev.1973). Implicit in the rule is the recognition that the limitations of the language may make it difficult or impractical for a witness to describe the facts in detail. Tyndall v. Harvey C. Hines Co., 226 N.C. 620, 39 S.E.2d 828 (1946); State v. Dills, 204 N.C. 33, 167 S.E. 459 (1933).

Nunnery's description of the gun was competent. He had the opportunity to observe the weapon during the course of the attempted armed robbery. The record indicates that his observation was made from a distance of only about three feet. It is a matter of common knowledge that the size of the bore of a gun barrel depends upon the caliber of the weapon. It cannot be doubted that, with the weapon pointed at him at close range, Nunnery's attention was fixed immutably upon it. It would have been unreasonable to have required him to describe in elaborate detail all of the gun's characteristics in light of the circumstances which surrounded his observation. There was no error.

Nor was it error for the court to allow the state to introduce a photograph of the interior of Nunnery's store during his testimony. Defendant objects not only to the admission of the photograph but also to the trial judge asking the witness whether the photograph accurately portrayed the way the store looked. Neither contention is meritorious.

A witness may use a photograph to illustrate his testimony to make it more intelligible to the court and jury. E. g., State v. Fulcher, 294 N.C. 503, 243 S.E.2d 338 (1978); see generally 1 Stansbury's North Carolina Evidence § 34 (Brandis Rev.1973). A photograph of the scene of a crime may be admitted into evidence if it is identified as portraying the locale with sufficient accuracy. State v. Johnson, 280 N.C 281, 185 S.E.2d 698 (1972). So long as the witness is able to testify that the photograph is a fair and accurate representation of the scene, it is irrelevant that the witness did not take the photograph. State v. Atkinson, 275 N.C. 288, 167 S.E.2d 241 (1969), death sentence vacated, 403 U.S. 948, 91 S.Ct. 2292, 29 L.Ed.2d 861 (1971). Nor is it necessary that the photograph be made at the time of the events to which it relates. State v. Lester, 289 N.C. 239, 221 S.E.2d 268 (1976); State v. Johnson, supra.

In the case at bar, the witness Nunnery testified that the photograph was a fair and accurate representation of his store as it appeared at approximately 2:00 p. m. on 6 June 1978, the time and date of the alleged attempted robbery. The threshold test of fair and accurate representation was clearly and properly met. Furthermore, at the time the photograph was received, the trial judge correctly instructed the jury that the photograph was not substantive evidence but was admitted for the limited purpose of illustrating Nunnery's testimony. State v. Robinson, 283 N.C. 71, 194 S.E.2d 811 (1973); State v. Frazier, 280 N.C. 181, 185 S.E. 652, death sentence vacated, 409 U.S. 1004, 93 S.Ct. 453, 34 L.Ed.2d 295 (1972). There was no error.

Defendant further objects to the conduct of the judge in receiving the photograph into evidence. After the photograph of the interior of the store was received, the court asked the witness if it portrayed the way the store actually looked. Upon receiving an affirmative answer, the judge directed that the photograph be passed to the jury for their inspection. In directing the witness Nunnery to pass the photograph to the jury, the court further instructed him that he was not to say anything to them.

While a judge should proceed with caution in propounding questions to a witness, Andrews v. Andrews, 243 N.C. 779, 92 S.E.2d 180 (1956); In re Bartlett's Will, 235 N.C. 489, 70 S.E.2d 482 (1952), we perceive no error in this instance. A judge who is presiding over a trial is a responsible participant in an organized pursuit of the truth. While it is improper for a judge to manifest partisanship in any way in his handling of the cause before him, he is under a concurrent obligation to insure that the established rules of evidence and the substantive criminal law are followed to the end that a defendant's right to have a fair trial free from prejudicial error is safeguarded. At the time that the witness was questioned by the judge, he had just been instructed by the district attorney to show the photograph to the jury. On his own motion, the judge instructed the district attorney that he was not to lead his own witness in a description of the interior of the store as it was represented to be by the photograph. Nunnery was evidently confused by the exchange in that he asked the judge if he was to show the picture to the jury. It was at this point that the judge questioned the witness about the sufficiency of the representation. It was only after satisfying himself as to this threshold requirement that the judge allowed the photograph to be circulated among the jury. In directing the witness to take the picture to the jury for their inspection, the court instructed him that he was to say nothing to them. In no way can it be said that the judge expressed any opinion or otherwise emphasized the importance of the exhibit that was tendered. There was no error.

During its case-in-chief, the state presented Robert Kinlaw, who was a passerby at the time of...