State v. Wilkerson
| Citation | 247 S.E.2d 905,295 N.C. 559 |
| Decision Date | 17 October 1978 |
| Docket Number | No. 84,84 |
| Court | United States State Supreme Court of North Carolina |
| Parties | , 98 A.L.R.3d 285 STATE of North Carolina v. Kenneth D. WILKERSON. |
Rufus L. Edmisten, Atty. Gen., by Roy A. Giles, Jr., Asst. Atty. Gen., Raleigh, for the state.
William Wicker and Deno G. Economou, Asst. Public Defender, Fayetteville, for defendant.
The homicide victim in this tragic affair was Kessler Wilkerson, the two-year-old son of defendant and his wife, Nancy. The state's evidence tended to show, and the jury apparently believed, that the child's death was the result of physical abuse inflicted upon him by his father. On his appeal defendant contends the trial court erred in (1) admitting into evidence expert medical opinion having to do with the "battered child" syndrome; (2) permitting cross-examination of defendant's mother as to acts of misconduct earlier committed by defendant; and (3) improperly instructing the jury, principally by failing properly to define the crimes of second degree murder, voluntary manslaughter and involuntary manslaughter. With regard to the first contention, we find no error. We agree with defendant that the cross-examination of his mother was improper; but we also conclude under the circumstances that no prejudice resulted. As to the third contention the error committed was favorable to defendant.
The state's evidence, in summary, is as follows: On 16 October 1976 around 10:30 a. m., neighbors heard loud sounds "like something was being throwed inside the trailer" coming from the Wilkersons' mobile home, the voice of a little boy crying, and defendant shouting at him to shut up. Mrs. Wilkerson appeared at the door of the trailer, said, "Hurry up, Kenny, hurry up," and slammed the door closed. Pursuant to a call an ambulance arrived at the Wilkerson trailer at 12:42 p. m. Defendant delivered the child's limp body to ambulance attendants and told them he had choked on some cereal, swallowed some water, and stopped breathing. Cardiopulmonary resuscitation was applied unsuccessfully en route to the hospital. The child was dead on arrival there. The emergency room physician who examined the child found no fluid in his lungs or other signs of drowning. Bruises were present on his chest, shoulders, upper arm and forearm. Upon being informed that his son was dead, defendant appeared "quite calm and told his wife something to the effect that it's done, it's over, there's nothing we can do about it now." An autopsy revealed, externally, multiple bruises all over the child's body and, internally, significant bleeding and a deep laceration of the liver. Cause of death was abdominal hemorrhage from a ruptured liver.
Other evidence for the state, consisting of defendant's pre-trial statement made to investigating officers and the testimony of other witnesses who had observed defendant in his relationship with his son, tended to show the kind of disciplinary methods defendant customarily used with the child. According to this evidence defendant frequently kicked the child and on occasion made him stand "spread eagle" against a wall for long periods of time. One such occasion was 14 October 1976, two days before the boy died. Defendant at that time kicked him with such force that his chest hit the wall. One witness testified that defendant had said the little boy had no manners and that he was determined to teach him some manners and bring him up to be a man the way that "his (defendant's) mother has raised him, that his mother put him through hell." When asked why he wanted to repeat his mother's treatment, defendant "said that he didn't really approve of it or like it but it made him a man, and that's the way his son was going to be."
Defendant testified that his relationship with his son had been close. Although admitting disciplining his son and occasionally spanking him with a belt, defendant denied ever hitting or kicking him. He also denied that he was punished excessively as a child or that he ever talked with state's witnesses about his childhood. He said that on the morning of October 16 the child had wet himself on the floor. Defendant spanked him with his wife's belt and then ran some water in a tub and made him get in whereupon the child began "gasping for air and choking." Defendant searched his throat for possible obstructions, patted him on his back, and applied mouth-to-mouth resuscitation, all without any success. On cross-examination defendant admitted spanking his son on 16 October "hard enough to make him cry as long as I beat him."
Several witnesses testified that the relationship between defendant and his son was good and that they had never seen defendant abuse the child in any way. Defendant's mother testified that defendant treated his younger brothers and sisters in a kind manner while growing up in Philadelphia and that she had never beaten defendant severely or seen him abuse any child.
Defendant first assigns as error the testimony of two medical witnesses Dr. Casey John Jason, a pediatrician who first examined the child at the emergency room of Womack Army Hospital, and Dr. John Edward Grauerholz, who performed the autopsy. Specifically, defendant complains of Dr. Jason's testimony that the bruises he observed on the child were not "the typical bruising pattern that is normally sustained by children in (their) normal day-to-day life." Defendant likewise complains of the testimony of Dr. Grauerholz, a pathologist, who after describing at some length his findings on autopsy testified in part as follows:
EXCEPTION. THIS CONSTITUTES DEFENDANT'S EXCEPTION NO. 2.
EXCEPTION. THIS CONSTITUTES DEFENDANT'S EXCEPTION NO. 3.
EXCEPTION. THIS CONSTITUTES DEFENDANT'S EXCEPTION NO. 4.
EXCEPTION. THIS CONSTITUTES DEFENDANT'S EXCEPTION NO. 6.
EXCEPTION. THIS CONSTITUTES DEFENDANT'S EXCEPTION NO. 7.
DR. GRAUERHOLZ: I am talking about punishment in the sense that one might spank a child for misbehaving. In that sort of situation. A question of corporal punishment. In these cases the punishment is excessive in its result if not necessarily in its intent."
Defendant contends that to permit Dr. Grauerholz to give an opinion that the child was a victim of the battered child syndrome, to explain what this syndrome means, and "to theorize . . . that the child was killed by a parent, a guardian or caretaker who used more force than was called for in a disciplinary...
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...death. This Court has previously approved the admission of expert testimony with respect to battered child syndrome. State v. Wilkerson, 295 N.C. 559, 247 S.E.2d 905 (1978). Evidence demonstrating battered child syndrome "`simply indicates that a child found with [certain injuries] has not ......
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