State v. Wilkins

• Decision Date: 17 May 1979
• Docket Number: No. 49,49
• Citation: 254 S.E.2d 598,297 N.C. 237
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Horace WILKINS.

Page 598

254 S.E.2d 598

297 N.C. 237

STATE of North Carolina v. Horace WILKINS.

No. 49.

Supreme Court of North Carolina.

May 17, 1979.

Asst. Public Defender Frederick G. Lind, High Point, for defendant-appellant.

BRITT, Justice.

By his first assignment of error, defendant contends the trial court erred in not allowing his motion for a new trial because of the admission of certain testimony. We find no merit in this assignment.

The testimony complained of was given by Special S.B.I. Agent S. T. Carpenter who was stipulated to be an expert in the field of firearms identification. The witness was shown the shotgun found in defendant's car and was asked to explain the way the gun operated. Included in a detailed description of the weapon and how it functioned, Mr. Carpenter stated that if there was a round of ammunition in the chamber, the gun could then be fired by pulling the trigger; that to pull the trigger "it requires seven and one-quarter pounds of force to make the weapon fire".

Defendant argues that he was given no pretrial notice that a trigger-pull test was conducted on the gun and that the state would offer evidence relating thereto; that in April before the trial in September, pursuant to G.S. 15A-902, he had requested the district attorney to provide him with a copy of, or to permit him to inspect and copy or photograph, results or reports of tests or experiments made in connection with the case; and that the admission of evidence relating to the trigger-pull test was very prejudicial to his plea of accident.

We note that defendant did not object to the challenged testimony when it was presented or make a motion to have it stricken; that in his post-judgment motions for a new trial and to set the verdict aside, he did not mention the testimony; and that the first time he complained about the testimony was in his motion for appropriate relief which was filed seven days after judgment was passed.

"It is well settled that with the exception of evidence precluded by statute in furtherance of public policy (which exception does not apply to this case), the failure to object to the introduction of the evidence is a waiver of the right to do so, and its admission, even if incompetent, is not a proper basis for appeal." 4 Strong's N.C. Index 3d, Criminal Law § 162, p. 825; State v. Lowery, 286 N.C. 698, 213 S.E.2d 255 (1975), death sentence vacated, 428 U.S. 902, 96 S.Ct. 3203, 49 L.Ed.2d 1206 (1976); State v. Gurley, 283 N.C. 541, 196 S.E.2d 725 (1973). See also : Rule 10, Rules of Appellate Procedure, 287 N.C. 671, 698. While recognizing the quoted rule, defendant argues that by virtue of G.S. 15A-1446(b) this court is authorized to consider his exception to the challenged testimony in the interest of justice "if it determines it appropriate to do so".

We do not think the ends of justice require us to honor defendant's belated exception to the testimony in question. Since the testimony was included in a lengthy description of the weapon and its operation, it is very doubtful that the jury gave the statement complained of any significance. In fact, defendant's counsel admitted on oral argument in this court that the statement escaped his attention until after the trial. That admission would indicate that the trigger-pull test evidence was not argued to the jury. We perceive no prejudice to defendant.

By his second assignment of error, defendant contends the trial court erred in admitting as corroborating evidence a statement allegedly made by Mrs. Little to the police for the reason that the statement materially differed from the trial testimony of Mrs. Little. This assignment has no merit.

In the statement Mrs. Little told about the four of them going to a certain house and the men carrying the television set; that someone at the house offered $75 for the set; that defendant and his wife talked about it and she said she was not going to accept $75 for it. The statement then reads in pertinent part (defendant being referred to by his nickname "Goodtime"):

"Goodtime and his wife began arguing and we all began walking towards the car. When we got to the car, he told her to hush, he was doing this. We all got into the car and left. The argument continued in the car. When we almost got to Green Street, he stopped the car and said don't do this to me, don't do this to me, I'll kill you.

"He then got out of the car and went to the trunk. He unlocked the trunk, got out the shotgun and came back to the car on the driver's side. The door to the car was still open. He pointed the shotgun at her, his wife head, and said I'll kill you. She said you see me.

"I started screaming and said don't play with the gun, don't play with the gun. The gun went off. I heard her screaming. Then I started hollering to Eddie to let me out. Eddie opened the passenger door and we both got out of the car."

In her testimony Mrs. Little stated that as defendant stopped the car he said, "Don't do this to me, don't do this to me". The record then reveals:

"Then he came back with a gun and stuck it into the car in this position (indicating) and says I'll shoot you. She said you see me. Then he said I'll shoot you and well, she didn't ever say nothing else. And she grabbed at the gun once, but it didn't go off right then. But just in a second then it went off.

"Well, about all I heard him say was I'll shoot you, because I was screaming so bad at the time he stuck the gun in the car."

[2,3] "Where proper instructions are given, slight variances in corroborating testimony, including such variances between a witness' testimony and his prior statement, do not render the corroborating testimony inadmissible, but go only to its credibility and weight, it being for the jury to determine whether or not the testimony does in fact corroborate the witness. And a discrepancy in minor details between testimony of the prosecuting witness and testimony offered in corroboration thereof does not warrant a new trial." 4 Strong's N.C. Index 3d, Criminal Law § 89.5, pp. 427-28.

The only variation we observe between the alleged statement of the witness and her testimony at trial that approaches significance is that in the statement she quoted defendant as telling his wife that he would Kill her and at trial she quoted him as saying that he would Shoot her. Certainly this is not a material variation, particularly in view of the fact that the weapon was a .12 gauge shotgun. The trial judge properly instructed the jury with respect to corroborating evidence. We perceive no error.

By his third assignment of error defendant contends the trial court in its charge to the jury on second-degree murder erred in giving the following instruction:

"If the State proves beyond a reasonable doubt Or it is admitted that the defendant intentionally killed Marian Wilkens with a deadly weapon or intentionally inflicted a wound upon Marian Wilkens with a deadly weapon or intentionally inflicted a wound upon Marian Wilkens with a deadly weapon that proximately caused her death, the law implies, first, that the killing was unlawful; and second, that it was done with malice; and if nothing else appears, the defendant would be guilty of second degree murder." (Emphasis added.)

Defendant argues that the instruction suggests that he admitted intentionally killing his wife, that there was no evidence that he made such an admission, and that charging the jury on a principle of law not supported by the evidence was prejudicial to him. We do not find this argument persuasive.

It has long been the law in this state that in instructing the jury the trial judge must declare and explain the law arising on the evidence and that he must not express an opinion on the evidence. G.S. 15A-1232 (formerly G.S. 1-180). The primary purpose of the jury charge is to give clear instructions which apply the law to the evidence in such manner as to assist the jury in understanding the case and in reaching a correct verdict. State v. Williams, 280 N.C. 132, 184 S.E.2d 875 (1971).

While there was no evidentiary basis for the trial judge to include the clause "or it is admitted" in the quoted instruction, and the instruction would have been more accurate without it, we perceive no prejudice to defendant. The court in effect was stating a well established principle of law and we believe defendant's conviction was brought about primarily by the strong and direct...