The defendant raises several assignments of error. Both parties agree, however, that the dispositive and crucial issue
The trial of Vonnie Ray Bullard was complicated. Eighty-one witnesses testified, and more than half of them possessed the surname Bullard. Exhibits in excess of 1,000 were also introduced into evidence. The testimony revolved around the sequence of events during the evening of 25 August 1981. The events during that evening occurred within the Beaverdam Community and were concentrated primarily within a three-mile stretch of State Road 210, where the defendant and Pedro Hales lived. The majority of this testimony concerned the location of Pedro Hales (the decedent), Vonnie Ray Bullard (the defendant) and defendant's truck during various times on 25 and 26 August 1981. The evidence, which is mostly circumstantial, is summarized as follows:
Pedro Hales and the defendant were neighbors in the community of Beaverdam in Cumberland County, which clusters around the intersection of State Roads 210 and 242. In October 1978, Pedro Hales had shot and wounded the defendant's son and was found not guilty by a jury on the basis of self-defense. Since that time, Vonnie Ray Bullard had made threatening statements about Pedro Hales to several witnesses. Defendant had specifically stated during 1978 or 1979 that he intended to kill Pedro Hales. During April 1981, the defendant continued to threaten that he would get Pedro and that every time he saw Pedro he thought about shooting him.
At approximately 8:30 p.m. on 25 August 1981, the defendant and Pedro were seen riding in Pedro's truck and talking at a local store. Several witnesses stated that they observed the defendant addressing Pedro in a loud and angry voice but could not determine what was being said. Later that evening, prior to Pedro's disappearance, the defendant was seen with a small pistol in his watch pocket. Defendant acknowledged that he owned a .22 caliber pistol, but claimed he had lost it several days before Pedro's death. The defendant was not wearing shoes when he was seen during this time.
Pedro was last seen alive without apparent injuries at approximately 11:00 p.m. on 25 August 1981. A local neighbor, who had seen Pedro on the side of the road and suspected he was drunk, went to Pedro's mother's house to tell Pedro's brother, Carson Hales, about Pedro. The neighbor and Carson both observed the defendant's red truck going by as they stood on Carson Hales' porch at approximately 11:05 p.m. Immediately thereafter, they went back to where Pedro had last been seen but could not find him. Fruitlessly, they began to search in the general area for Pedro. Carson Hales and his mother also went to defendant's home at approximately 11:30 p.m. to inquire whether the defendant had seen Pedro, since the defendant had driven earlier in the general direction where Pedro was last seen. However, no one was home and defendant's red truck was not there.
Meanwhile, at approximately the same time of 11:30 p.m., two witnesses observed a vehicle stopped on Melvin's Bridge, located approximately four miles from where Pedro was last seen. These witnesses pulled over on the side of the road as they approached the bridge. After about forty-five seconds, the vehicle drove away from the bridge, toward the two witnesses, who described the vehicle as the distinctive red truck owned by the defendant. The witnesses could not see who was driving the truck.
The defendant's truck was next observed at approximately 12 midnight, traveling at
The following day, 26 August 1981, a large amount of blood, a .22 bullet, glass, bloody bare footprints, a bare footprint in sand, tire tracks, and a piece of red plastic safety belt assembly were found on Melvin's Bridge. During a search of defendant's truck that same day, a blood smear matching the victim's, but different from the defendant's, was found on the floor board. The back window on defendant's truck was broken. The safety belt assembly on the passenger's side was missing. Scientific comparisons of the glass found at the crime scene and the glass from defendant's truck showed the glass was of a common origin. The sections of the seat belt assembly still present in the passenger's side of the truck revealed a small hole at approximately the head level of a passenger. The particles in the hole were found to be lead which is consistent with a lead bullet passing through the seat belt assembly. Also, the safety belt assembly found at the scene was identical to the seat belt assembly in defendant's truck.
A detective from the Sampson County Sheriff's Department testified that he took a series of photographs with a 35mm camera at varying shutter speeds of a bloody bare footprint on the asphalt and another bare footprint in sand. He also testified that he had brushed some sand away from the bloody footprint before he photographed it. This same footprint was later sprayed with luminol reagent, which enhances the footprint and illuminates the bloody areas. Photographs of the luminol-enhanced footprint were also taken. Additionally, the detective testified that as he was trying to remove the piece of asphalt with the bloody footprint, the asphalt broke primarily in the heel region of the footprint.
A supervisor of the latent evidence section of the SBI laboratory testified that he took ink and latex paint impressions of the defendant's feet and that he gave the impressions and copies of the photographs of the unknown footprint (both natural light and luminol enhanced) to Dr. Louise Robbins. He also testified that he observed no ridge details on the unknown footprints found on the bridge and could not make a comparison with known footprints of the defendant. He also testified he would not make an identification of the footprints based on shape alone.
Dr. Louise Robbins, a physical anthopologist employed at the University of North Carolina at Greensboro, testified, over objection and after a lengthy voir dire hearing, about her background, qualifications, and independent studies in bare footprint comparisons. She explained her methodology for comparing known and unknown bare footprints by size and shape, without relying on ridge detail in the bare footprints. She testified that in her opinion a bloody bare footprint found on Melvin's Bridge was that of the defendant.
Pedro's body was found several days later in the South River. An autopsy revealed he had been stabbed seventeen times and shot three times. A .22 bullet was removed from his body. The first bullet had entered the left side of the head exiting at the center of the back. The second bullet had entered the right side of the back near the shoulder, and there was no exit wound. A .22 caliber bullet was found in this back wound. The third bullet entered in the left shoulder and exited a short distance later. Basically, the wounds were inflicted in a left to right direction.
During the search for Pedro's body, the defendant stated, "Do you think he deserved to live after he shot my son?" He also made the statement, "What would you do if someone had shot your young'un and the law had turned him loose?" The defendant, when questioned by authorities,
Defendant denied killing Pedro and stated that they were friends. Defendant admitted he was with Pedro earlier on the evening of 25 August 1981. He also stated that no one else used his truck during the entire evening. Evidence was presented that three people went over Melvin's Bridge earlier during the morning of 26 August 1981 and no blood was observed by these three people. A deputy with the Cumberland County Sheriff's Department did observe the blood on the north side of Melvin's Bridge at approximately 10:30 a.m. that same morning. Several character witnesses testified on behalf of the defendant. The defense also presented testimony of Professors Cartmill and Robertson of the Duke University Medical School, Department of Anatomy, who stated that Dr. Louise Robbins' method of footprint analysis was inaccurrate and that the unknown footprints did not, in their opinion, belong to the defendant.
We first consider defendant's challenge to the introduction of the testimony of Dr. Louise Robbins, a physical anthropologist.
The first three contentions by defendant primarily deal with the application of a technique utilized by Dr. Robbins which is allegedly unprecedented in North Carolina and the United States.
Dr. Robbins testified during voir dire and on direct examination about her qualifications and achievements in the field of physical anthropology.
The method of comparison employed by Dr. Robbins does not involve ridge detail as does traditional fingerprint analysis. Instead, she relies upon a technique of comparison pertaining to the size and shape of the footprint in four areas: namely, the heel, arch, ball, and toe regions. The footprint size and shape reflect the size and shape of the internal bone structure of the foot, so the bones indirectly play a major part in the analysis of the footprint, according to Dr. Robbins. Dr. Robbins explains that since each person's foot size and shape are unique, she can identify a footprint represented by a clearly definable print of whatever part of the foot touches the ground. By examining the sides, front, and rear ends of each region of the foot, Dr. Robbins explains that she can compare known footprints with unknown footprints and determine if they are made by the same person.
At the time of the trial Dr. Robbins stated that she had testified as an expert in Oklahoma, California, Pennsylvania, and Florida.
Initially, we will address defendant's fourth assignment of error. In determining whether Dr. Robbins was properly allowed to testify as an expert and give her opinion, it is important to consider certain legal fundamentals in the area of expert testimony. It is undisputed that expert testimony is properly admissible when such testimony can assist the jury to draw certain inferences from facts because the expert is better qualified. Cogdill v. Highway Commission, 279 N.C. 313, 182 S.E.2d 373 (1971). G.S. 8-58.13 (1981) further provides:
It is not necessary that an expert be experienced with the identical subject area in a particular case or that the expert be a specialist, licensed, or even engaged in a specific profession. State v. Phifer, 290 N.C. 203, 225 S.E.2d 786 (1976), cert. denied, 492 U.S. 1123, 97 S.Ct. 1160, 51 L.Ed.2d 573 (1977); Shaw v. Sylvester, 253 N.C. 176, 116 S.E.2d 351 (1960). Furthermore, the trial judge is afforded wide latitude of discretion when making a determination about the admissibility of expert testimony. Justice Moore stated in State v. King, 287 N.C. 645, 215 S.E.2d 540 (1975), death sentence vacated, 428 U.S. 903, 96 S.Ct. 3208, 49 L.Ed.2d 1209 (1976):
Id. at 658, 215 S.E.2d at 548-49; accord State v. Combs, 200 N.C. 671, 158 S.E. 252 (1931); see, e.g., 1 Brandis on North Carolina Evidence, § 133 (2d rev. ed. 1982).
Dr. Robbins was clearly in a superior position and better qualified to compare the bloody bare footprint found on the bridge with those of the defendants. The expertise to make the comparisons involved a certain knowledge which was beyond the realm of that of the average juror. Her testimony indicated that there were unusual and distinct features observed by Dr. Robbins when she examined the photograph of the bloodstained footprint on the
Finally, the trial judge, in his discretion, chose to overrule defense counsel's objection to the State's offer of Dr. Robbins as an expert in the comparison of footprint impressions. During voir dire the following dialogue took place:
Afterwards, defense counsel did not specifically request the court to make specific findings concerning the qualifications of Dr. Robbins. This Court has stated:
And in State v. Moore, 245 N.C. 158, 95 S.E.2d 548 (1956) the Court stated: "Regardless of the professional label, it is for the court to say whether the witness is qualified to testify as one skilled in the matter at issue, and his finding will not be disturbed when there is evidence to support it, and the discretion has not been abused." Id. at 164, 95 S.E.2d at 552; accord Cogdill, 279 N.C. 313, 182 S.E.2d 373; Apex Tire and Rubber Company v. Merritt Tire Company, 270 N.C. 50, 153 S.E.2d 737 (1967). Without a specific objection, the court was not required to make specific findings of fact concerning Dr. Robbins' qualifications in bare footprint comparison. Furthermore, there was evidence to support the trial judge's finding that she was qualified to testify about the subject footprints. See note 3 supra. Therefore, the judge in his discretion chose not to disqualify Dr. Robbins, and it does not appear that he abused this discretion. The trial judge properly concluded, absent a specific finding of facts, that Dr. Robbins' field of expertise was a proper subject for expert testimony and defendant's fourth assignment of error is rejected.
We will now discuss defendant's first three assignments of error, which can be condensed into one issue: Whether scientific evidence which tends to identify an accused by bare footprint comparison is admissible where the expert relies upon methods other than ridge detail in making such comparison. This is an issue of first impression in this jurisdiction. Counsel for the defense strenuously argues that to allow the expert testimony of Dr. Robbins would require the jury to make a "leap of faith," blindly accepting at face value the ultimate opinion of a person who professes to be the only one skilled in a particular subject area. Defendant argues that the fundamental differences between the method of identification used in existing case law and that which was propounded by the State in this case necessitates an independent determination by this Court that the method used by Dr. Robbins is itself reliable and sufficiently established to have gained general acceptance in its field.
The single fact that the application of the method employed by Dr. Robbins suffers a dearth of recognition does not per se prevent the admissibility of her testimony. This general proposition was implicitly acknowledged by this Court in State v. Rogers, 233 N.C. 390, 64 S.E.2d 572 (1951). In that case the comparison of a bare footprint was made with that of the defendant's. See generally, Annot., 28 A.L.R.2d 1104 (1953) (citing this case and others in a discussion of the admissibility of bare footprint marks). An S.B.I. agent testified about his study of the science of taking and comparing footprints and fingerprints of human beings at various schools and of his practical experience. He also testified that footprints yield identifiable characteristics just as fingerprints do. The court found the agent to be an expert in footprint analysis.
The Court took judicial notice of the fact that fingerprinting was sufficiently established and since the technique involved in comparing the bare footprint was essentially the same as identifying fingerprints, then the footprint evidence should also be admissible. However, in this case defendant counters with the argument that the identification process in Rogers was based upon ridge detail of the print, as is also true in fingerprint analysis. In the case sub judice, Dr. Robbins does not use ridge detail to make her comparisons. Ipso facto, defendant contends that this distinction alone should bar the admissibility of this particular method of footprint analysis.
The salient kernel to be gleaned from Rogers is that this Court in 1951 was faced with a technique which was in its infancy, as is Dr. Robbins' technique. The expert in Rogers analyzed the bare footprints by studying enlarged photographs of a bare footprint that was imprinted on the front page of a newspaper left at the crime scene. The expert witness testified that he compared these enlarged photographs with those of the defendant's. Because he also testified that he analyzed ridge detail, which was the same technique employed in identifying fingerprints, the court accepted his testimony based on this similarity to the established technique of fingerprinting analysis.
Ultimately, this Court admitted expert testimony that a photograph of a barefoot imprint on newspaper was identical to that of the defendant's when the two prints were compared. This testimony was admitted without the Court conducting a head count to determine if the method was recognized. Similarly, we have here the development of a scientific method that is in its infancy. Admittedly, the method utilized by Dr. Robbins has not been cited in any reported decision. Justice Ervin noted in Rogers that "[d]iligent search has failed to uncover a single decision in any jurisdiction involving the admissibility of this precise type of footprint evidence." Id. at 397, 64 S.E.2d at 577. However, that fact alone did not prevent the Rogers court from accepting the expert testimony.
In varying degrees all courts have sometimes been reluctant to admit unique scientific testimony. In fact, the use of fingerprinting as a means of identification, which
Id. at 548, 96 N.E. at 1082.
As with most scientific phenomena, the passage of time can serve, as it has in fingerprinting, to demonstrate the reliability and acceptance of a once speculative and unproved premise. Thus, the novelty of a chosen technique does not justify rejecting its admissibility into evidence.
Defendant in this case further argues that this Court has adopted a test that would prevent Dr. Robbins' scientific testimony because it is unreliable and not generally accepted. The courts of this nation, including our own, have struggled to enunciate a formula for ruling on the admission of new and untested scientific principles. See McCormick, Scientific Evidence: Defining a New Approach to Admissibility, 67 Iowa L.Rev. 879 (1982); Gianelli, The Admissibility of Novel Scientific Evidence: Frye v. United States, A Half Century Later, 80 Col.L.Rev. 1197 (1980). Defendant contends that the Frye
In Temple, however, the Court stated a general rule for admitting new scientific methods:
1 Brandis on North Carolina Evidence, § 86, at 323 (footnote citations omitted).
We will examine the law in this area, beginning with Temple, in an effort to synthesize the significant factors relied upon by the courts when evaluating whether a scientific method in its infancy is reliable and whether it should be adopted or rejected. In Temple, the admission of bite mark identification was a question of first impression also. The expert witness had prepared plaster casts and overlays of the impressions of the defendant's teeth and matched these overlays with a bite mark on the upper left chest area of the victim. He testified to various identifiable areas of dentition between the bite mark and the overlays. The court relied upon People v. Marx,
Temple, 302 N.C. at 11, 273 S.E.2d at 280, (quoting Marx, 54 Cal.App.3d at 111, 126 Cal.Rptr. at 356).
This Court in Temple determined that the expert had utilized established techniques in dentistry and photography to solve a novel problem. The expert made visual comparisons, as did Dr. Robbins in this case, of physical items of evidence. Furthermore, the expert testified that he had, over the years in practice, examined thousands of persons' teeth and concluded that each had unique dentition. This Court concluded that "the expert testimony in this case was based upon established scientific methods, and is admissible as an instrument which aids justice in the ascertainment of the truth." Id., 302 N.C., at 13, 273 S.E.2d at 280.
There was no conclusion or explanation within Temple concerning whether and by whom these scientific methods had become established, recognized or generally accepted. See Note, Criminal Law—Expert Testimony on Bite Marks—State v. Temple, 302 N.C. 1, 273 S.E.2d 273 (1981), 4 Campbell L.Rev. 179 (1981). Instead, the Court in Temple focused on the "reliability" of the test, rather than its "establishment and recognition."
A year after Temple was decided, this Court in State v. Green, 305 N.C. 463, 290 S.E.2d 625 (1982) again accepted the expert's testimony alone to substantiate the reliability of bite mark identification, further expanding the method employed in Temple. The expert in Green made his comparisons by using photographs of the victim's bite wound rather than making his comparisons with the actual bite wounds on the victim's body, as was performed by the expert in Temple the year before. In Green, the Court rejected defendant's argument that the distinction between the two methods of comparison, one using photographs of the wound and the other the actual wound itself, precluded the admissibility of the expert's testimony. The Court briefly reviewed how the expert used photographs made to approximate scale of the victim's wound to identify points of identification in his visual comparison of the two. The Court concluded that there was "no reason to suspect that the methodology employed by this expert was anything less than scientifically sound and reliable." Id. at 471, 290 S.E.2d at 630. The Court also mentioned, without elaborating, that the methodology had been approved recently in three other jurisdictions. Id. at 471-72, 290 S.E.2d at 630.
An earlier North Carolina case, State v. Crowder, 285 N.C. 42, 203 S.E.2d 38 (1974) also reviewed a novel scientific method. The defendant argued that an expert who conducted a gunshot residue test utilizing flameless atomic absorption spectrophotometry should not have been allowed to testify because such method was "speculative and highly unreliable." Id. at 53, 203 S.E.2d at 45. In determining the reliability of this test, the Court considered the expert's professed experience in that field, the fact that the expert had presented technical papers on the subject to various associations of forensic scientists, and his independent research. These facts rendered this expert's testimony both reliable and competent as viewed by this Court.
In matching threads among the cases and analogizing them to the present one, we determine that the method employed by Dr. Robbins is reliable. As in Temple and Marx, the expert in this case used scientifically established measurement techniques relied upon in the established field of physical anthropology to make her measurements. The Court in Crowder reviewed the professional background and involvement of the expert in forensic science and determined that his testimony was reliable. Certainly, the extensive professional achievements and endeavors of Dr. Robbins should render her testimony reliable as was the expert's in Crowder. Additionally, the experts in Temple and Green used photographs, models, slides and overlays that were before the court and verifiable by the jury. So, too, did Dr. Robbins. She did not ask the jury to sacrifice its independence by accepting her scientific hypotheses on faith. Rather, she explained in detail to the jury the basis of her measurements and the interrelationships of the various portions of the foot and how her visual comparisons enabled her to identify unknown footprints and compare them with known footprints.
She explained the number of footprints she had collected to justify why she believed each footprint is unique, just as the expert in Temple explained how he had examined the teeth of thousands of people and believed that each person possessed an individual and unique dentition. All of the foregoing factors relative to an expert's testimony based on a novel scientific method have been accepted by this Court as
The technique utilized here is not comparable to the art of hypnosis, recently rejected by this Court as an unreliable scientific process when used to elicit testimony from a witness. State v. Peoples, 311 N.C. 515, 319 S.E.2d 177. Therefore, our decision in Peoples does not command a similar conclusion herein. In reviewing the state of the art of hypnosis in Peoples, this Court recognized inherent problems in such a process, "such as the enhanced suggestability of the subject, his tendency to confabulate when there are gaps in his recollection, his increased confidence in the truthfulness and accuracy of his post-hypnotic recall which may preclude effective cross-examination, and the inability of either experts or the subject to distinguish between memory and confabulation...." Peoples, 311 N.C. at 532, 319 S.E.2d at 187. All of these factors made such hypnotically induced testimony unreliable. Justice Exum, after acknowledging that the State has not adopted the Frye formula, explained that the theory underlying the formula has been utilized in this State when the courts rendered inadmissible the results of polygraph examinations. State v. Foye, 254 N.C. 704, 120 S.E.2d 169 (1961); accord, State v. Brunson, 287 N.C. 436, 215 S.E.2d 94 (1975).
In the polygraph cases, this Court stressed the fact that the polygraph "had not yet attained scientific acceptance as a reliable and accurate means of ascertaining the truth or deception." Foye, 254 N.C. at 708, 120 S.E.2d at 172; Brunson, 287 N.C. at 445, 215 S.E.2d at 100. This "lack of general scientific recognition" was a major factor in excluding polygraph results. However, the polygraph, unlike the method involved in bite mark and barefoot print analyses, does not employ visual comparisons that are comprehensible to a jury. In fact, the expert's use of mechanical equipment in polygraph testing distinguishes that method from one in which visual comparisons are made by an expert who does not rely on a machine in rendering an opinion. Indeed, a similar distinction among the types of scientific evidence and their admissibility has also been espoused by reputable legal scholars:
McCormick On Evidence, § 203, at 606 (3d ed. 1984) (citing State v. Catanese, 368 So.2d 975, 981 (La.1979) (dealing with the admission of polygraph results). Hypnosis, like the polygraph, is related to "attempts to prove the workings of the mind and human behavior." Id. at 622, n. 4. These areas involve matters concerned with particularly sensitive areas. Id. at 633. This same premise was acknowledged in Peoples when the Court stated, "Yet there is a `scientific' aura which is associated with hypnosis that may be so well-entrenched in the minds of potential jurors that they may assign undue credibility to hypnotically refreshed testimony." 311 N.C. at 526, 319 S.E.2d at 184. (citations omitted.)
A similar distinction between polygraph and handprint analyses was recognized by the court in People v. Columbo, 118 Ill.App.3d 882, 74 Ill.Dec. 304, 455 N.E.2d 733 (1983), cert. denied, ___ U.S. ___, 104 S.Ct. 2394, 81 L.Ed.2d 351 (1984). The expert in that case had compared gloved handprints that had been placed on the fender and trunk of a car with the handprint of the defendant who was missing his left index finger. The expert found the prints comparable. The technique employed by the expert was novel because the handprint itself had been made while the person was wearing a pair of gloves, thus leaving no ridge detail. However, the expert testified that based upon his specialized knowledge of
The defendant in Columbo, in an attempt to challenge the admissibility of the method of identifying the gloved handprint, cited as authority a case that had rejected the results of polygraph testing. People v. Monigan, 72 Ill.App.3d 87, 28 Ill.Dec. 395, 390 N.E.2d 562 (1979). The Columbo court rebuffed the defendant's analogy and instead compared the expert's analysis of the gloved handprints with the analysis made of bite mark impressions, both involving a visual comparison. In distinguishing the handprint analysis from polygraph evidence, the court stated that "Monigan (polygraph machine) ... concern(s) the admissibility of evidence derived from the interpretation of mechanical data rather than visual comparisons." Columbo, 118 Ill.App.3d at 937, 74 Ill.Dec. at 359, 455 N.E.2d at 788 (citation omitted).
Therefore, unlike the methods of hypnosis and polygraph testing employed by the experts in the North Carolina cases of Peoples, Foye, and Brunson, the Court here is dealing with a scientific method which can be considered reliable based on the testimony of the expert while displaying to the jury visual aids used in making observable visual comparisons. Dr. Robbins did rely upon established techniques in physical anthropology, according to her own testimony. Furthermore, she did not engage a polygraph machine or perform hypnosis, techniques that possess a scientific aura and that sweep broadly into sensitive areas. Nor is there any effort by Dr. Robbins to explore the workings of the mind, as do experts in hypnosis and polygraph testing. For these reasons, we reject any argument that the expert testimony before this Court should be inadmissible because the method of analysis is comparable to hypnosis or polygraph testing.
After determining that this evidence is sufficiently reliable, the next question is whether it is also relevant. Relevant evidence is admissible if it "has any logical tendency however slight to prove the fact at issue in the case." State v. Pratt, 306 N.C. 673, 678, 295 S.E.2d 462, 466 (1982). In that case Chief Justice Branch, writing for the majority, admitted evidence of the similarity of shoe prints found at the crime scene with the shoes of the defendant. He stated that "[e]vidence of shoe prints at the scene of the crime corresponding to those of the accused may always be admitted as tending more or less strongly to connect the accused with the crime." Id. at 677-78, 295 S.E.2d at 465.
It is also true in this case that defendant introduced the testimony of two witnesses who contradicted the testimony of Dr. Robbins by stating that they did not agree that defendant's footprint matched the footprint at the crime scene.
EVIDENCE OF WEAPON POSSESSION
Defendant contends that the trial court erred in allowing into evidence testimony that the defendant possessed a five-inch pocket knife a year before the victim's death and that the defendant possessed and shot a small pistol near a mentally retarded boy approximately three months before the victim's death. We find no error regarding this evidence because the evidence concerning the knife was stricken from the record, the possession of the small pistol was relevant, and the details of the shooting incident were admitted only after the defendant "opened the door" during re-direct examination of the defense witness.
The State sought to introduce evidence that about a year prior to the victim's death the defendant had threatened a witness with a five-inch pocket knife. Before admitting any testimony about the alleged threat by the defendant, there was an in-chambers proceeding to determine whether the witness would be allowed to testify about the incident. During the proceeding in chambers, the State cited to the court State v. Stanfield, 292 N.C. 357, 233 S.E.2d 574 (1977) where this Court held it was not error for the trial court, in a murder prosecution where the deceased was killed with a shotgun, to allow into testimony that one month earlier the defendant had threatened and assaulted his landlord's son with a shotgun. In Stanfield, these threats were made approximately one month prior to the victim's death. In the instant case, the trial judge, citing State v. McClain, 240 N.C. 171, 81 S.E.2d 364 (1954), specifically denied the State's request to allow any testimony about the threats made a year prior to the victim's death. The only testimony allowed was that which established that the defendant was seen with a pocket knife in his pocket a year earlier and that the witness saw the defendant take it out and open it.
During direct examination by the State, the witness testified only that he had seen the defendant a year earlier in possession of a five-inch pocket knife, within the perimeters of the judge's instructions. On cross-examination, defense counsel asked the witness the following:
After asking several other questions concerning when the witness observed the knife in defendant's possession, defense counsel made a motion to strike the witness's testimony, which was granted. The court stated: "Don't consider the testimony of the witness concerning whether he saw a knife in the possession of the defendant."
Generally, an error in admission of evidence is cured when the jury is instructed to disregard stricken evidence and such evidence is withdrawn from the jury's consideration. State v. Craig and Anthony, 308 N.C. 446, 302 S.E.2d 740 (1983). Furthermore, the defendant was not prejudiced by the initial admission of this evidence in view of the fact that defense counsel effectively
The court likewise committed no error in allowing certain evidence concerning the alleged use and possession by the defendant of a small pistol less than three months before the victim's death. During cross-examination of defense witness, Thelwyn Bullard, the defendant's first cousin, the State elicited, without objection, that the defendant pulled a pistol from his pocket and shot it into the ground when the witness, the defendant, and other people were in a squash field. Generally, defendant's failure to enter a timely objection to evidence results in a waiver of his right to assert the alleged error on appeal. N.C. Gen.Stat. § 15A-1446(b) (1978); State v. McDougall, 308 N.C. 1, 301 S.E.2d 308 (1983). In reviewing the testimony challenged by the defendant, we find no plain error in the trial court's allowing such evidence. Even if defendant had made a timely objection, this evidence is relevant and competent to contradict the defendant's testimony that he kept the little pistol in his truck before the pistol was lost and did not generally carry the pistol on his person.
On re-direct of this same witness, the defendant endeavored to minimize the effect of the testimony about the defendant carrying the gun and shooting it into the ground three months earlier. Defense counsel sought to accomplish this by asking the witness a series of questions concerning how many people carry guns on racks in their pickup trucks and in their glove compartments. On re-cross, the State, without objection, asked the following questions:
On redirect, the defendant then asked the witness the following:
After defense counsel's attempt to suggest to the jury that no one was shot at or scared and that the defendant was shooting at snakes, the State in re-cross brought out that the defendant had shot in the direction of a mentally retarded boy whom the defendant or the defendant's son had been teasing and that when the shot was fired the defendant was standing within seven or eight steps of the boy. Thus, during redirect examination of this witness, the defendant "opened the door" to the introduction of the State's evidence about the details of the shooting. State v. Small, 301 N.C. 407, 272 S.E.2d 128 (1980). Therefore, the introduction of this evidence also does not constitute reversible error.
The next assignment of error, admittedly minor as conceded by defense counsel, challenges the propriety of venue being in Sampson County rather than in Bladen County. During one of the pre-trial motions to dismiss, the issue of proper venue was heard by Judge Henry Stevens during the 20 November 1981 session of Sampson County Superior Court. Judge Stevens found, on the basis of the evidence presented, that the South River forms the boundary between Bladen and Sampson Counties in the area where Melvin's Bridge crosses the river, that the victim was found floating
When a defendant makes a motion to dismiss for improper venue, the burden is on the State to prove by a preponderance of the evidence that the offense occurred in the county named in the indictment. State v. Loucheim, 296 N.C. 314, 250 S.E.2d 630, cert. denied, 444 U.S. 836, 100 S.Ct. 71, 62 L.Ed.2d 47 (1979). G.S. 15-129 (1975) is controlling on the issue of venue when a crime is committed on a watercourse, which forms a county boundary. This statute reads as follows:
This statute has been interpreted by this Court to allow venue to lie in either county bordering the waterway, regardless of where on the watercourse the crime took place and regardless of whether the midpoint of the river or its shoreline formed the county boundary. Martin County v. Trust Company, 178 N.C. 26, 100 S.E. 134 (1919); see, e.g., Coates, Crime is Local, 14 N.C.L.Rev. 313 (1936).
All the evidence indicates that at least a portion of the murder took place on Melvin's Bridge which spans the South River between Sampson and Bladen Counties. G.S. 15-129 and the cases interpreting it indicate that there is no legal significance to the fact that the crime committed on Melvin's Bridge was somewhat closer to the Bladen County than the Sampson County side of the river. Since the crime apparently took place over the boundary watercourse, either Bladen or Sampson County was a proper location for venue for the trial of this case. Accordingly, defendant's assignment of error is without merit and overruled because the judge could find by a preponderance of the evidence that the offense did occur in the county named in the indictment.
MOTION TO DISMISS
Finally, defendant contends that the trial court erred when it refused to grant the defendant's motion to dismiss at the end of the State's evidence and again at the end of all of the evidence. Because the defendant introduced evidence on his own behalf, he waived his right to argue on appeal the motion for the directed verdict at the end of the State's case. N.C.Gen. Stat. § 15-173 (1983); State v. Leonard, 300 N.C. 223, 266 S.E.2d 631, cert. denied, 449 U.S. 960, 101 S.Ct. 372, 66 L.Ed.2d 227 (1980). Therefore, the sufficiency of the evidence at the conclusion of both parties' evidence is the sole issue before this Court.
When a defendant moves for dismissal, the trial court must determine whether there is substantial evidence of each essential element of the offense charged (or of a lesser offense included therein), and of the defendant's being the one who committed the crime. If that evidence is present, the motion to dismiss is properly denied. State v. Earnhardt, 307 N.C. 62, 296 S.E.2d 649 (1982); State v. Powell, 299 N.C. 95, 261 S.E.2d 114 (1980). "Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." State v. Smith, 300 N.C. 71, 78-79, 265 S.E.2d 164, 169 (1980) (citation omitted).
In ruling on a motion to dismiss, the evidence must be considered by the court in the light most favorable to the State, and the State is entitled to every
The defendant in this case was charged with and convicted of first degree murder. First degree murder is the unlawful killing of a human being with malice and with premeditation and deliberation. State v. Judge, 308 N.C. 658, 303 S.E.2d 817 (1983); State v. Fleming, 296 N.C. 559, 251 S.E.2d 430 (1979). The intentional use of a deadly weapon gives rise to a presumption that the killing was unlawful and that it was done with malice. State v. Judge, 308 N.C. 658, 303 S.E.2d 817. A pistol is a deadly weapon per se. State v. Powell, 238 N.C. 527, 78 S.E.2d 248 (1953). A knife can be a deadly weapon if, under the circumstances of its use, it is likely to produce death or great bodily harm. State v. Randolph, 228 N.C. 228, 45 S.E.2d 132 (1947). Premeditation and deliberation must ordinarily be proved by circumstantial evidence. Among the circumstances to be considered are: (1) want of provocation on the part of the deceased, (2) conduct and statements of the defendant before and after the killing, (3) threats made against the victim by the defendant, ill will or previous difficulty between the parties, and (4) evidence that the killing was done in a brutal manner. State v. Calloway, 305 N.C. 747, 291 S.E.2d 622 (1982). The nature and number of the victim's wounds is certainly a circumstance from which an inference of premeditation and deliberation can be drawn. State v. Brown, 306 N.C. 151, 293 S.E.2d 569, cert. denied, 459 U.S. 1080, 103 S.Ct. 503, 74 L.Ed.2d 642 (1982).
In applying the foregoing principles of law to the facts in this case, this Court does not find error in the trial court's refusal to dismiss at the end of all the evidence. Viewed in the light most favorable to the State and acknowledging that the State is entitled to every reasonable inference, the evidence tends to prove the necessary elements of first degree murder and that defendant perpetrated the crime. This evidence can be summarized thusly:
The defendant and Pedro Hales had previously experienced ill will resulting from Pedro's shooting and wounding defendant's son. Defendant had repeatedly threatened Pedro's life. This evidence clearly tends to prove that defendant had a motive to kill Pedro. Defendant and Pedro were seen together earlier in the evening of 25 August 1981, the last night Pedro was seen alive; and defendant was observed angrily addressing Pedro. At this time, defendant was observed with a .22 caliber gun. Admittedly, defendant had an opportunity to kill Pedro. Later witnesses saw defendant in the same general vicinity where Pedro was last seen alive, and defendant's truck was also observed on Melvin's Bridge, the scene of the crime, during the evening of 25 August 1981. Defendant admitted that no one else had possession of his truck, except himself, the entire evening. The wounds were basically inflicted in a left to right direction, an angle consistent with shots fired from the driver's seat toward a passenger. The seat belt assembly in defendant's truck contained a small bullet hole at head level. This evidence circumstantially links the defendant and his truck to the crime scene, Melvin's Bridge.
All of the physical evidence was identified as originating from defendant or his truck. The type and number of wounds received by Pedro, the hostile comments made by defendant when Pedro was missing, coupled with the prior threats and lack of evidence tending to show any provocation by Pedro are all facts tending to prove the elements of unlawfulness, malice, premeditation
Accordingly, this assignment of error is overruled. In the defendant's trial, we find