STATE v. ADCOCK

BRANCH, Chief Justice.

Defendant assigns as error the failure of the trial judge to quash the indictment charging him with murder and to quash the petit jury panel. He contends that the grand and petit jurors were selected in a discriminatory manner and did not represent a cross section of the community. By this assignment of error he also argues that the trial judge erred by refusing to order at State's expense an update analysis of Durham County jury panel and master jury list.

In support of the first portion of this assignment of error, defendant relies upon Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975), for the proposition that the sixth amendment guarantees that an accused must be tried by a jury composed of individuals who reflect a cross section of the community in which the crime was committed.

The defendant must carry the burden of showing a prima facie violation of this requirement by demonstrating that a distinctive group was clearly underrepresented as a result of the jury selection process. Duren v. Missouri, 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979). A person who seeks to carry this burden does not need to be a member of the discriminated class to assert his rights to a representative petit jury. Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690. When a defendant establishes such a prima facie case, the burden shifts to the State to rebut the established prima facie case. State v. Hardy, 293 N.C. 105, 235 S.E.2d 828 (1977).

In order to establish a prima facie case of violation of the fair cross section principle a defendant must show that: (1) the group alleged to have been excluded is a distinctive group; (2) the representation of the group in question within the venire is not fair and reasonable with respect to the number of such persons in the community; and (3) this underrepresentation is due to systematic exclusion of the group in the jury selection process. State v. Price, 301 N.C. 437, 272 S.E.2d 103 (1980); State v. Avery, 299 N.C. 126, 261 S.E.2d 803 (1980); State v. Cornell, 281 N.C. 20, 187 S.E.2d 768 (1972); see also Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965). In Price, we held that a fourteen percent absolute disparity, standing alone, was not sufficient to show that black citizens were not fairly reflected in the jury pool. In Cornell, we found that purposeful discrimination based on race was not shown by evidence of underrepresentation of blacks on the jury panel by as much as ten percent. Swain v. Alabama, supra, held likewise.

Evidence of underrepresentation requires a comparison of the proportion of the identifiable group in the total population to the population called for jury service. State v. Hough, 299 N.C. 245, 262 S.E.2d 268 (1980).

In instant case, defendant, a white man tried by an all white jury, relied solely upon data prepared by Mr. James O'Reilly, of the Duke University Sociology Department, which tended to show an absolute disparity of 7.8 percent of underrepresentation of black citizens in Durham County on the jury panel. We therefore conclude that defendant has failed to offer evidence tending to show that the representation of the group in question within the venire was not fair and reasonable with respect to the number of such persons in the community; furthermore, defendant has offered no evidence to show that there was any systematic exclusion of the group in the jury selection process. He has therefore failed to establish a prima facie case showing violation of the fair cross section principle set forth in Price, Avery, and Cornell.

Neither do we find merit in defendant's contention that the trial judge erred in denying his motion for a fee for Mr. O'Reilly to update his data as to Durham County from 1979 to the date of the trial.

In State v. Gray, 292 N.C. 270, 233 S.E.2d 905 (1977), we in part stated:

292 N.C. at 278, 233 S.E.2d at 911. (emphasis in original).

We glean from our search of the transcript that defense counsel was of the opinion that he could establish a ten percent absolute disparity of underrepresentation of black citizens on the jury in Durham County if Mr. O'Reilly were paid for two days additional work. Assuming this to be true, we hereinabove have demonstrated that such evidence would not aid in establishing the prima facie case which defendant sought to raise. Further, defendant has failed to show a reasonable likelihood that Mr. O'Reilly's additional services would have materially assisted defendant in his defense or that without such evidence he probably would not have received a fair trial.

This assignment of error is overruled.

By his second assignment of error defendant contends that the jury selection procedures at trial deprived him of a fair and impartial trial in violation of the Sixth and Fourteenth Amendments to the United States Constitution.

In support of his position defendant first avers that the trial court erred by denying his motion to prohibit death qualification of jurors.

This Court has consistently rejected this argument. State v. Fincher, 309 N.C. 1, 305 S.E.2d 685 (1983); State v. Taylor, 304 N.C. 249, 283 S.E.2d 761 (1981); State v. Avery, 299 N.C. 126, 261 S.E.2d 803 (1980); State v. Cherry, 298 N.C. 86, 257 S.E.2d 551 (1979); State v. Montgomery, 291 N.C. 235, 229 S.E.2d 904 (1976). Defendant cites no precedent or argument which would persuade us to overrule this well-established line of authority.

We further find no merit in defendant's contention that the trial judge erred by denying his motion to limit the questions asked of jurors concerning their views on capital punishment.

It is well recognized in this jurisdiction that both the State and defendant have a right to question prospective jurors about their views on the death penalty so as to insure a fair and impartial verdict. State v. Crowder, 285 N.C. 42, 203 S.E.2d 38 (1974), modified, 428 U.S. 903, 96 S.Ct. 3205, 49 L.Ed.2d 1207 (1976). The extent and manner of inquiry into prospective jurors' qualifications in a capital case is a matter that rests largely in the trial judge's discretion and his rulings will not be disturbed absent a showing of an abuse of that discretion. State v. Bryant, 282 N.C. 92,191 S.E.2d 745 (1972), cert, denied 410 U.S. 987, 93 S.Ct. 1516, 36 L.Ed.2d 184 (1973). Here defendant has failed to show any abuse of discretion on the part of the trial judge.

Under this assignment of error defendant next contends that the trial judge erred by denying his motion for individual voir dire of prospective petit jurors.

In support of this position defendant cites State v. Taylor, 298 N.C. 405, 259 S.E.2d 502 (1979); State v. Thomas, 294 N.C. 105, 240 S.E.2d 426 (1978). Both of these cited cases stand for the proposition that a motion to examine prospective jurors individually is directed to the trial judge's sound discretion and his ruling will not be disturbed absent a showing of abuse of that discretion. Accord State v. Jackson, 309 N.C. 26, 305 S.E.2d 703 (1983); State v. Brown, 306 N.C. 151, 293 S.E.2d 569, cert, denied, ___ U.S. ___, 103 S.Ct. 503, 74 L.Ed.2d 642 (1982). Again, defendant has shown no abuse of discretion on the part of the trial judge in instant case.

Defendant filed a pretrial motion requesting the trial judge to instruct each juror prior to his voir dire examination as follows:

Defendant cites no authority to support this motion and our research discloses none. Again, defendant seeks to invade the discretionary power of the trial judge's duty to supervise and control the course of the trial. We find no abuse of discretion in the denial of this motion. Neither do we find error of omission or commission in the court's instructions to the jury concerning their duties in the trial of this case.

This assignment of error including subsections a through d is overruled.

Defendant's third assignment of error is two-fold. He argues first that the trial judge abused his discretion in denying defendant's motion to sequester the jury. Defendant premised his motion on his contention that pretrial and trial publicity were unfairly prejudicial to the trial of his case. Defendant concedes that the decision to sequester an impanelled jury is ordinarily left to the sound discretion of the trial court. State v. Davis, 290 N.C. 511, 227 S.E.2d 97 (1976); State v. Hamilton, 264 N.C. 277, 141 S.E.2d 506 (1965), cert, denied, 384 U.S. 1020, 86 S.Ct. 1936, 16 L.Ed.2d 1044 (1966). A careful examination of defendant's exhibits, consisting of several newspaper articles primarily dealing with his hospitalization for mental illness, reveals that they are non-inflammatory and fall far short of tending to establish unfair prejudice. Defendant has failed to show an abuse of the court's discretion.

Second, defendant argues that the trial court erred in denying his motion to prohibit the "exhibition" of deceased's family members to the jury. Defendant contends that the family members "positioned themselves at the courtroom door so that the jury would have to walk past them every morning upon entering the court." This "exhibition," according to defendant, denied him a fair and impartial trial because it inflamed the jury and caused them to render a guilty verdict. This contention is without merit. No evidence in the record suggests any impropriety on the part of any member of the victim's family and defendant has not only failed to show an abuse of discretion, he has failed to show in the first instance any adequate grounds for the exercise of discretion. Compare State v. Stafford, 203 N.C. 601, 166 S.E. 734 (1932).

Defendant's third assignment is overruled.

Defendant next contends, again in multi-faceted fashion, that he was denied a fair trial by the court's failure to dismiss jurors who expressed doubts about the insanity defense and also by the court's permitting the State to express during voir dire an inaccurate description of the burden of proof.

Defendant's first contention fails in that he has not demonstrated that if there were error, it was prejudicial. Defendant challenged for cause the jurors who allegedly expressed doubts about the insanity defense. Upon the trial court's denial of the challenges for cause, defendant exercised his peremptory challenges. Defendant concedes there was no showing of prejudice under our well-settled rule that "a defendant, in order to preserve his exception to the court's denial of a challenge for cause, must (1) exhaust his peremptory challenges and (2) thereafter assert his right to challenge peremptorily an additional juror." State v. Allred, 275 N.C. 554, 563, 169 S.E.2d 833, 838 (1969) (emphasis in original). Defendant failed here to assert an additional peremptory challenge.

Defendant secondly argues within this assignment that the State presented an inaccurate description of the burden of proof during one of its questions to a prospective juror. In questioning a prospective juror, Dr. Bill L. Gunn, the following exchange occurred:

Defendant's objection to the prosecutor's last statement was overruled. Defendant argues that the statement was incorrect because it did not set forth all the essential elements of murder. Thus, defendant argues, the statement mislead the jurors concerning the State's burden of proof. We disagree.

It is the duty of the trial court "to see that a competent, fair and impartial jury is impaneled...." State v. Johnson, 298 N.C. 355, 362, 259 S.E.2d 752, 757 (1979). However, the court's rulings will not be reversed absent a showing of abuse of discretion. State v. Phillips, 300 N.C. 678, 268 S.E.2d 452 (1980). In light of the extensive voir dire in this case, the proper instructions on the law by the judge, and defendant's inability in the first instance to demonstrate the clear prejudicial error in the State's question, we are not inclined to hold that the trial judge abused his discretion in overruling defendant's objection.

In his fifth assignment, defendant challenges the admission of certain testimony concerning statements made by him to witnesses. He first contends that the court erred in finding that his statements to Betty Jane Denton and Kenny Glenn were not subject to discovery under G.S. 15A-904(a). Defendant apparently acknowledges that under our rule in State v. Crews, 296 N.C. 607, 252 S.E.2d 745 (1979), he is only entitled to discover statements "made by him to persons acting on behalf of the State." Id. at 620, 252 S.E.2d at 754 (emphasis added). Nevertheless, defendant relies on State v. Hardy, 293 N.C. 105, 235 S.E.2d 828 (1977), and asserts that such statements should have been discoverable at trial. Defendant's reliance upon Hardy is misplaced. Hardy dealt with the required disclosure of material at trial which is "favorable and material to the defense." Id. at 127, 235 S.E.2d at 841. In the instant case, we are not concerned with matters favorable to defendant which are being suppressed by the prosecution. Here we are dealing with statements, made by defendant to witnesses, which are inculpatory in nature and which the State offered into evidence at trial against defendant. The statements were not discoverable under G.S. 15A-904(a); nor were they subject to required disclosure under the Hardy rule.

Defendant also contends that the court erred in admitting the testimony of Deputy Kenneth Wilson. Initially, the trial court ruled Deputy Wilson's testimony inadmissible due to the prosecution's failure to provide it to defendant pursuant to requested discovery. Later, the trial judge reversed his decision and allowed the testimony.

Defendant here contends that the deputy's testimony was extremely prejudicial and that its admission was error pursuant to our rule that one superior court judge may not overrule another superior court judge. See Davis v. Jenkins, 239 N.C. 533, 80 S.E.2d 257 (1954). Defendant, by analogy, argues that such a rule precludes a judge from reversing himself during the course of a trial. We disagree. It is not error for a judge to change his ruling on the admissibility of evidence. 1 Brandis, N.C. Evidence, § 28 (2d rev. ed. 1982). Furthermore, a trial judge who determines that he has committed error during the course of a trial certainly should take whatever steps necessary to cure or correct a detected error. Curative action often precludes unnecessary and prolonged review by the appellate courts. This assignment is without merit.

Defendant next contends that the trial court erred in refusing to allow the introduction of testimony by Shirley Lloyd. Ms. Lloyd, defendant's sister, testified regarding her contacts and communications with defendant following his arrest. During a portion of defendant's examination of this witness, the following took place:

Defendant contends that the purpose of the questions posed was to elicit testimony that defendant was not aware of his wife's death or of the charges brought against him. Defendant argues that the excluded evidence was admissible and was relevant to rebut the State's cross-examination of the witness which tended to show that defendant's attitude and depression were normal responses for a person whose wife was dead and who had been charged with murder. We disagree.

It is elementary in the law of evidence that ordinarily a witness may only testify concerning matters within his own personal knowledge. Robbins v. Trading Post, 251 N.C. 663, 111 S.E.2d 884 (1960). In the instant case, the fact of defendant's own awareness or lack of awareness of his wife's death was beyond the realm of the witness's personal knowledge and she was therefore not competent to testify concerning that matter. Id. Furthermore, regarding the defendant's awareness, or lack thereof, of charges having been brought, the witness testified unequivocally that she did not know whether he was aware or not. There was no error in the trial court's exclusion of the witness's testimony.

Defendant's next assignment relates to the admission of testimony of State's witnesses Betty Glenn, Wayne Joyner, Debbie Starnes, Carolyn Neely and Shirley Lloyd.

Considering defendant's contentions seriatim, we turn first to the challenged testimony of Ms. Glenn. Ms. Glenn, a co-worker of decedent, testified concerning her knowledge of the events which transpired on 5 August 1980. She recalled the victim's having asked her to "stay close enough by her that if anything happened that I could get her some help." Ms. Glenn then testified that she followed decedent out of the parking lot onto the highway at which point the witness saw a light blue Volkswagon square-back pull over behind them. Ms. Glenn went on to recount the events which she witnessed prior to and surrounding defendant's shooting of his wife. The State then introduced a prior statement made by Ms. Glenn for purposes of corroboration. Defendant objected to the introduction of the statement and now maintains that it was erroneously admitted for corroborative purposes since it did not, in fact, corroborate her testimony. Ms. Glenn's written statement included statements made to her by the victim which were not contained in Ms. Glenn's testimony. For example, according to the written statements, the victim had mentioned to Ms. Glenn that she and defendant had separated and also that he had shot at her the day before. Defendant contends these statements were noncorroborative and highly prejudicial since they tended to establish premeditation and deliberation. We disagree.

It is well settled in this jurisdiction that prior consistent statements are admissible as corroboration to strengthen the credibility of a witness. See generally 1 Brandis, supra § 51 (2d rev. ed. 1982) and cases cited therein. However, such statements are admissible only if they do, in fact, corroborate the witness. State v. Patterson, 288 N.C. 553, 220 S.E.2d 600 (1975), death sentence vacated, 428 U.S. 904, 96 S.Ct. 3211, 49 L.Ed.2d 1211 (1976); State v. Bagley, 229 N.C. 723, 51 S.E.2d 298 (1949).

State v. Britt, 291 N.C. 528, 535, 231 S.E.2d 644, 650 (1977). In the instant case, most of the variations noted by defendant are slight. None of the variations contradicted the witness's testimony. See State v. Britt, 291 N.C. 528, 231 S.E.2d 644, 650 (1977). Assuming, arguendo, that the reference to the defendant's having shot at the decedent amounted to more than a slight variation from the witness's testimony, its admissibility was not prejudicial error. First, the trial court gave a limiting instruction to the jury to consider the written statement only if and to the extent it corroborated her testimony. Id. Second, there was other evidence in the record of defendant's having shot at the decedent on the day before the killing, as well as other substantial evidence tending to show premeditation and deliberation. We cannot perceive how the admission of this one reference, if error, could possibly amount to error sufficiently prejudicial to warrant a new trial. Furthermore, defendant made only a broadside objection and did not specify which portions he deemed objectionable. Since it is "the duty of the objecting party to call to the attention of the trial court the objectionable part," broadside objections to corroborative testimony "will not generally be sustained if any portion of such testimony is competent." Id. at 536, 231 S.E.2d at 650.

Defendant next challenges the admission of the following testimony of Wayne Joyner, his brother-in-law:

Defendant contends that this evidence had no relevance to any issue in the case and only served to prejudice him "by depicting him as a person who takes and spends charity money raised by school kids." We note at the outset that defendant made only a general objection to the evidence, and it is well settled that "[a] general objection, if overruled, is ordinarily no good, unless, on the face of the evidence, there is no purpose whatever for which it could have been admissible." 1 Brandis, supra § 27. It is not the responsibility of the trial court to predict the grounds of every objection made to testimony. It is the duty of counsel claiming error to "demonstrate not only that the ruling was in fact incorrect, but also that he provided the judge with a timely and specifically defined opportunity to rule correctly." Id. This the defendant has not done. The witness had previously testified, without objection, that defendant had borrowed sums of money from him on several occasions. There is nothing on the face of the above-stated question which indicates its objectionability. Apparently, it was the witness's response to which defendant registers objection, rather than the form of the question. Even so, as pointed out, defendant gave no grounds for objection. Furthermore, he made no motion to strike the response. When the question does not indicate the inadmissibility of the answer, defendant should move to strike as soon as the inadmissibility becomes known. Failure to so move constitutes a waiver. State v. Battle, 267 N.C. 513, 148 S.E.2d 599 (1966).

Defendant next challenges the admissibility of the testimony of Debbie Starnes, and of Carolyn Neely. We have carefully reviewed the evidence of both of these witnesses. We note at the outset that defendant here, as with the Witness Joyner, made only general objections which were overruled; thus he did not effectively preserve the alleged errors for review. 1 Brandis, supra. Furthermore, our review of the challenged testimony reveals nothing which, if error at all, would permit us to hold that there is a "reasonable possibility" that, absent the alleged error, "a different result would have been reached at trial." G.S. 15A-1443.

Defendant finally submits that the court erred in permitting the following question asked by the prosecutor in cross-examining the witness Shirley Lloyd:

Defendant argues that the court erred in permitting the prosecutor to elicit opinion testimony from a lay witness. Assuming that there was error, we can find no prejudice.

First and foremost, the witness never answered the question. Second, the prosecutor had already asked virtually the same question two or three times without objection. Thus the defendant may be deemed to have waived his objection. See 1 Brandis, supra § 30.

This assignment, including sub-parts A, B (which itself included three different legal questions) and C is overruled.

Defendant's eighth assignment concerns the prosecutor's closing argument to the jury. Defendant challenges the following statement made by the district attorney:

Upon objection, the trial court immediately sustained the objection and instructed the jury to disregard the statement.

It is well settled that "argument of counsel must be left largely to the control and discretion of the presiding judge and that counsel must be allowed wide latitude in the argument of hotly contested cases." State v. Monk, 286 N.C. 509, 515, 212 S.E.2d 125, 131 (1975). Even so, the arguments of counsel are not without limitations, and the "trial court has a duty, upon objection, to censor remarks not warranted by either the evidence of the law, or remarks calculated to mislead or prejudice the jury." Id. at 516, 212 S.E.2d at 131. In the instant case, the statements were clearly improper; nevertheless, the court promptly sustained defendant's objection and instructed the jury to disregard the statements. The impropriety of the prosecutor's remarks were therefore cured. State v. Pruitt, 301 N.C. 683, 273 S.E.2d 264 (1981); State v. Sparrow, 276 N.C. 499, 173 S.E.2d 897 (1970), cert, denied, 403 U.S. 940, 91 S.Ct. 2258, 29 L.Ed.2d 719 (1971).

By his ninth assignment of error, the defendant contends that the trial judge erred in charging the jury to consider evidence on the issue of insanity only after finding that the State had proven all of the elements of the crime charged. While we have indicated that the better practice in a case such as this would be to submit the issue of insanity first, we have also specifically held that, nothing else appearing, it does not constitute reversible error first to submit the elements of the crime and to submit the issue of insanity last. State v. Cooper, 286 N.C. 549, 213 S.E.2d 305 (1975).

Even so, defendant sets forth several grounds for his assertion that the inverse order of the charge confused the jury as to the relationship between the instruction on insanity as a complete defense and the following instruction, given in connection with the charge on first-degree murder, on insanity as a mental condition tending to negate premeditation and deliberation:

The above-quoted instruction amounts to an instruction on diminished capacity. See State v. Cooper, 286 N.C. 549, 213 S.E.2d 305. This Court has consistently held that a defendant is not entitled to such an instruction e.g., State v. Jerrett, 309 N.C. 239, 307 S.E.2d 339 (1983); and, in fact, here the defendant does not challenge the inclusion per se of the instruction, since the inclusion was favorable to him. Despite, however, its favorable inclusion, defendant claims that the trial judge did not adequately distinguish between insanity as a complete defense and insanity as a diminished capacity defense. We disagree. Our reading of the charge reveals that the diminished capacity instruction was clearly related to the charge on premeditation and deliberation, and the charge on insanity as a complete defense came much later. The distinction between the two defenses was clear, and we cannot perceive in what way the jury could have been confused by the order of the instructions. This assignment is overruled.

By his tenth assignment, defendant challenges the trial judge's instruction regarding the consequences of a verdict of not guilty by reason of insanity. Defendant contends that the instruction given led the jury to believe that upon a verdict of acquittal due to insanity, defendant would be released without any commitment proceeding. Thus, he argues, fear on the part of jurors that he would be set free prompted them to render a verdict of guilty.

The challenged portion of the charge is as follows:

Defendant contends that the use of the word "may", as underscored, left the impression that the possibility of commitment proceedings was tenuous and thus the instruction "only reinforced the idea that the insanity defense is a loophole." Defendant relies on State v. Hammonds, 290 N.C. 1, 224 S.E.2d 595 (1976), in which the Court addressed this identical issue and stated:

Id. at 15, 224 S.E.2d at 604.

The Court elaborated further in State v. Bundridge, 294 N.C. 45, 239 S.E.2d 811 (1978):

Id. at 53, 239 S.E.2d at 817.

Defendant places particular emphasis on the use of the word "shall" in the above-quoted statement. He essentially maintains that the court should have used "shall" in the instant case. We disagree. Notably, the statute upon which the Bundridge language rested, G.S. 122-84.1, used the word "shall" in setting out the procedure for conducting commitment hearings when a defendant is acquitted on grounds of mental illness. That statute, repealed in 1977, (c. 711, s. 33, effective 1 July 1978), provided as follows:

In State v. Harris, 306 N.C. 724, 295 S.E.2d 391 (1982), Justice Martin, speaking for the Court, further construed the requirement of Hammonds:

Id. at 727, 295 S.E.2d at 393.

In addition to the holding in State v. Harris that substantial compliance is sufficient to meet the requirements of Hammonds, we note that, upon repeal of G.S. 122-84.1, the legislature in 1977 enacted G.S. 15A-1321 to govern procedures following acquittal by reason of insanity. Significantly, the 1977 statute used the word "may," instead of "shall." 1 The trial judge in this case instructed the jury in almost the precise language of the applicable statute, which is also the form of the Pattern Jury Instruction. The trial court accurately and adequately charged the jury regarding procedures upon acquittal on the ground of insanity. This assignment is without merit.

Defendant also argues under this assignment that the following instruction was erroneous:

Defendant contends that this instruction, concededly in accord with the North Carolina Pattern Jury Instruction, improperly raised his burden of "satisfying" the jury as to his insanity to that of removing from their minds all doubt as to his sanity. While we must admit that the words used by the trial judge are arguably susceptible of different interpretations, we are constrained to hold that there was no prejudicial error in this portion of the charge as given.

First, the trial court amply and accurately charged the jury that the defendant's burden of proving insanity was only to "satisfy" them; the judge made it plain that the State's burden of proving the elements of the crime was "beyond a reasonable doubt," a standard of proof much more stringent than that placed upon defendant. Read contextually, then, assuming the challenged portion was ambiguous, it could not have so confused or mislead the jury as to warrant the giving of a new trial in this case. State v. Harris, 223 N.C. 697, 28 S.E.2d 232 (1943); State v. Smith, 221 N.C. 400, 20 S.E.2d 360 (1942).

Secondly, we believe, when read contextually, the trial judge's statement is a correct statement of the law. It is well settled in this State that, in order to prove the elements of the crime charged, the prosecution is entitled to rely upon the presumption of sanity. State v. Harris, 223 N.C. 697, 28 S.E.2d 232. Nothing else appearing, then, and assuming that proof is made out of the other elements of the crime, the defendant would be guilty. The burden of proving to the jury his insanity rests on the defendant and he must prove insanity to the satisfaction of the jury. Id. If they are not "satisfied," he has not met his burden and the presumption prevails. Id. As stated in State v. Creech, 229 N.C. 662, 51 S.E.2d 348 (1949):

Id. at 674, 51 S.E.2d at 357. (emphasis added). State v. Caddell, 287 N.C. 266, 215 S.E.2d 348 (1975).

Obviously, the phrase "in doubt" as used in the Pattern Jury Instruction and here in the trial judge's charge originated in the above-quoted language, later quoted with approval in State v. Caddell. "In doubt," as so used, in our opinion, means essentially the same as "uncertain," see Webster's Third New International Dictionary, 679 (1976), or in this case, "not satisfied." As used, and especially in the context of the trial judge's ample explanation of the defendant's lesser burden, we do not believe that the use of the phrase "in doubt" conveyed to the jury the message that defendant's burden had suddenly been raised to that of "beyond a reasonable doubt."

We believe, however, that in the future the better practice would be to substitute the term "not satisfied" in lieu of "in doubt." The former phrase comports with the established terminology in this area of the law and certainly erases any hint of ambiguity concerning defendant's burden of proving his insanity.

By his assignment of error No. 11 defendant contends that the trial judge erred by failing to instruct the jury on the weight to be given circumstantial evidence.

Defendant in apt time, in writing, requested the following instruction:

"Direct evidence is that which is immediately applied to the fact to be proved, while circumstantial evidence is that which is indirectly applied by means of circumstances from which the existence of the principal fact may reasonably be deduced or inferred." 1 Brandis, supra, § 76, p. 284.

In 2 Brandis, supra, § 210, p. 155, we find the following language:

(footnotes omitted).

The above-quoted statement from Brandis is as accurate a statement as could be made of this unsettled area of the law. Unquestionably circumstantial evidence is "essential and, when properly understood and applied, highly satisfactory in matters of the gravest moment." Id. State v. Cash, 219 N.C. 818, 15 S.E.2d 277 (1941). In our opinion the language that a conviction cannot be based upon this type of evidence "unless the circumstances point to guilt and exclude to a moral certainty every reasonable hypothesis except that of guilt" is merely another way of saying that the jurors must be convinced of the defendant's guilt beyond a reasonable doubt. The quoted language sets forth the same measure of proof as contained in our recognized and approved instruction on reasonable doubt. However, whether the trial judge is required to give the "moral certainty" or "reasonable hypothesis" instruction when aptly requested is a beclouded area of the law in this jurisdiction. We find cases which hold that in criminal cases in which the State relies wholly or in part on circumstantial evidence it is sufficient to give the approved reasonable doubt charge. State v. Adams, 138 N.C. 688, 50 S.E. 765 (1905). Conversely, we find authority which tends to support defendant's position that it is error for the trial judge to refuse to give the "moral certainty" instruction when the State relies on circumstantial evidence and defendant aptly requests such instruction. State v. Johnson, 294 N.C. 288, 239 S.E.2d 829 (1978); State v. Branch, 288 N.C. 514, 220 S.E.2d 495 (1975), cert, denied, 433 U.S. 907, 97 S.Ct. 2971, 53 L.Ed.2d 1091 (1977); State v. Willoughby, 180 N.C. 676, 103 S.E. 903 (1920). We therefore deem it necessary to review these conflicting lines of authority.

In State v. Adams, 138 N.C. 688, 50 S.E. 765 (1905), the defendant was charged with first-degree murder. At trial, defendant, inter alia, requested the court to give the following instruction:

Id. at 691-92, 50 S.E. at 766.

The trial judge declined to give the instruction and his failure to do so was one of defendant's assignments of error. This Court, finding no error in the trial judge's rulings, stated:

Id. at 696-97, 50 S.E. at 767-68.

In State v. Ewing, 227 N.C. 535, 42 S.E.2d 676 (1947), we find the following statements:

Id. at 540, 42 S.E.2d at 679. (citations omitted).

In State v. Shook, 224 N.C. 728, 32 S.E.2d 329 (1944), the trial court instructed with respect to circumstantial evidence as follows:

Id. at 730, 32 S.E.2d at 330. Finding these instructions to be adequate, this Court reasoned:

Id. at 731, 32 S.E.2d at 331. Accord State v. Wall, 218 N.C. 566, 11 S.E.2d 880 (1940); State v. Frady, 172 N.C. 978, 90 S.E. 802 (1916); State v. Lane, 166 N.C. 333, 81 S.E. 620 (1914); State v. Neville, 157 N.C. 591, 72 S.E. 798 (1911).

Beginning with State v. Willoughby, 180 N.C. 676, 103 S.E. 903 (1920), this Court without explanation or discussion began to use language which seems to modify the rule announced in Adams and its progeny by engrafting a rule that if defendant aptly requested it the court should instruct on the "moral certainty" or "reasonable hypothesis" rule. In Willoughby, we find this terse statement by Allen, J., speaking for the Court:

Id. at 678, 103 S.E. at 904. (emphasis added).

Defendant was charged with conspiracy to commit larceny in State v. Bennett, 237 N.C. 749, 76 S.E.2d 42 (1953). One of his assignments was the failure of the trial judge to charge on circumstantial evidence. Justice Ervin disposed of this assignment of error as follows:

Id. at 753, 76 S.E.2d at 44. (emphasis added) (citations omitted).

Defendants were convicted of larceny and receiving stolen property in State v. Warren, 228 N.C. 22, 44 S.E.2d 207 (1947). One of their assignments was the failure of the judge to define circumstantial evidence and to instruct the jury on this question. Justice Denny, speaking for the Court, stated:

Id. at 24, 44 S.E.2d at 209 (emphasis added).

In State v. Branch, 288 N.C. 514, 220 S.E.2d 495 (1975), cert, denied, 433 U.S. 907, 97 S.Ct. 2971, 53 L.Ed.2d 1091 (1977), defendants were convicted of being accessories before the fact to murder and for conspiracy to commit murder. The Court rejected Defendant Branch's challenge to the charge on circumstantial evidence and held that the charge was sufficient. The Court reiterated the Willoughby holding: "In the absence of a prior specific request for the charge now submitted by defendant, it is manifest that no reversible error was committed." Id. at 540, 220 S.E.2d at 512-13.

In State v. Johnson, 294 N.C. 288, 239 S.E.2d 829 (1978), defendant was convicted of first-degree murder and on appeal one of his assignments of error was based on the failure of the court to specially instruct on the quantum of proof to be used in reviewing circumstantial evidence. There the Court stated:

It is of interest to note that there is not a positive statement in any of these latter cases to the effect that the judge must give the moral certainty charge when requested to do so or that his failure to give the charge would result in prejudicial error. Neither do we find a case where the court granted a new trial because of the failure to so charge.

Our research discloses that both state and federal courts are increasingly abandoning the requirement that there be special instructions on proof of guilt by circumstantial evidence.

The United States Supreme Court considered this question in Holland v. United States, 348 U.S. 121, 75 S.Ct. 127, 99 L.Ed. 150 (1954). There the defendant was convicted of income tax evasion solely upon circumstantial evidence. On appeal he assigned as error the court's failure to instruct specifically on circumstantial evidence. Finding no error the Court speaking through Justice Clark, in part stated:

Id. at 139-40, 75 S.Ct. at 137.

The federal circuit courts have consistently followed the Holland rule. United States v. Becker, 62 F.2d 1007 (2d Cir.1933); United States v. Austin-Bagley Corp., 31 F.2d 229 (2d Cir.1929), cert, denied, 279 U.S. 863, 49 S.Ct. 479, 73 L.Ed. 1002 (1929); Taglianetti v. United States, 398 F.2d 558 (1st Cir.1968), aff'd per curiam, 394 U.S. 316, 89 S.Ct. 1099, 22 L.Ed.2d 302 (1969); United States v. Warren, 453 F.2d 738 (2d Cir. 1972), cert, denied, 406 U.S. 944, 92 S.Ct. 2040, 32 L.Ed.2d 331 (1972); United States v. Evans, 239 F.Supp. 554 (E.D.Pa.1965), aff'd., 359 F.2d 776 (3d Cir.1966), cert, denied, 385 U.S. 863, 87 S.Ct. 120, 17 L.Ed.2d 90 (1966); United States v. Johnson, 337 F.2d 180 (4th Cir.1964), cert, denied, 385 U.S. 846, 87 S.Ct. 44, 17 L.Ed.2d 77 (1966); Sowers v. United States, 255 F.2d 239 (5th Cir.1958); Continental Baking Company v. United States, 281 F.2d 137 (6th Cir.1960); United States v. Atnip, 374 F.2d 720 (7th Cir.1967); United States v. Francisco, 410 F.2d 1283 (8th Cir.1969); Urban v. United States, 237 F.2d 379 (9th Cir.1956); United States v. Martine, 442 F.2d 1022 (10th Cir. 1971); Davis v. United States, 433 F.2d 1222, 1226 at n. 5 (D.C.Cir.1970).

We think the language of Judge Learned Hand in United States v. Becker, 62 F.2d 1007, is persuasive. We quote from that opinion:

Id. at 1010.

Many of our sister states have likewise abandoned the rule requiring a special charge on circumstantial evidence and adopted the Holland rationale. Allen v. State, 420 P.2d 465 (Alaska 1966); State v. Harvill, 106 Ariz. 386, 476 P.2d 841 (1970); Murray v. State, 249 Ark. 887, 462 S.W.2d 438 (1971); People v. Bennett, 183 Colo. 125, 515 P.2d 466 (1973); Henry v. State, 298 A.2d 327 (Del.Supr.1972); State v. Wilkins, 215 Kan. 145, 523 P.2d 728 (1974); Wolf v. Commonwealth, 214 Ky. 544, 283 S.W. 385 (1926); State v. Jackson, 331 A.2d 361 (Me. 1975); Metz v. State, 9 Md.App. 15, 262 A.2d 331 (1970); Anderson v. State, 86 Nev. 829, 477 P.2d 595 (1970); State v. Ray, 43 N.J. 19, 202 A.2d 425 (1964); and State v. Murphy, 113 R.I. 565, 323 A.2d 561 (1974).

In his treatise on evidence Professor Wigmore discussed the probative value of direct and circumstantial evidence as follows:

1A Wigmore on Evidence § 26 (Tillers rev. 1983).

In instant case the trial judge correctly and fully charged on the theory of reasonable doubt and the jurors were told that if they had a reasonable doubt as to defendant's guilt they would return a verdict of not guilty. We are of the opinion that the reasonable doubt instruction and the "moral certainty" circumstantial evidence instruction encompass the same measure of proof. Therefore, recognizing that the purpose of a charge to the jury is to clarify the issues and apply the law to the evidence, we conclude that the giving of the "moral certainty" or the "reasonable hypothesis" instruction in addition to the reasonable doubt instruction would tend to confuse the jury by requiring them to engage in an unnecessary and repetitious application of the same measures of proof to the evidence in the case.

We hold that an instruction on circumstantial evidence to the effect that a conviction may not be based upon it unless the circumstances point to guilt and exclude to moral certainty every reasonable hypothesis except that of guilt is unnecessary when a correct instruction on reasonable doubt is given. We therefore expressly overrule any decisions of this Court to the extent they hold otherwise.

For the benefit of the bench and bar we would suggest that in any case based in part or wholly on circumstantial evidence that the following language be included in the charge:

1 E. Devitt & C. Blackmar, Federal Jury Practice and Instructions § 15.02 (3d ed. 1977).

For reasons stated, we hold that the trial judge correctly refused to give the defendant's tendered instructions on circumstantial evidence.

As a part of this assignment of error the defendant also argues that the trial judge failed to sufficiently summarize his evidence. We do not believe that this assignment of error merits extended discussion. Suffice it to say that our examination of this record reveals that the trial judge, without expressing an opinion as to whether any fact had been proved, fully stated the contentions of defendant and the State so as to declare and explain the law arising on the evidence. G.S. 15A-1232.

Defendant finally assigns as error the trial judge's ruling sustaining the State's objection to the introduction of an affidavit of Carolyn Neely at a post-conviction hearing for appropriate relief. Defendant's motion for appropriate relief was based in part on grounds of newly discovered evidence, and the affidavit was offered in support of those grounds.

In an evidentiary hearing for appropriate relief where the judge sits without a jury the moving party has the burden of proving by the preponderance of the evidence every fact to support his motion. G.S. 15A-1420(c)(5). The court must make findings of fact in support of its ruling. G.S. 15A-1420(c)(4). In hearings before a judge sitting without a jury "adherence to the rudimentary rules of evidence is desirable even in preliminary voir dire hearings. Such adherence invites confidence in the trial judge's findings." State v. Davis, 290 N.C. 511, 542, 227 S.E.2d 97, 116 (1976).

The affidavit of Carolyn Neely offered by defendant was clearly hearsay and inadmissible. State v. Spillars, 280 N.C. 341, 185 S.E.2d 881 (1972).

We note that even had the trial judge erred in his ruling on the basis that the evidence was hearsay, the affidavit would not have furnished a basis for a new trial on the theory of newly discovered evidence.

This court has held that the prerequisites for a new trial on the grounds of newly discovered evidence include the following:

State v. Cronin, 299 N.C. 229, 243, 262 S.E.2d 277, 286 (1980). Defendant failed to comply with either of these prerequisites.

This assignment of error is without merit.

From our examination of this entire record, we conclude that defendant received a fair trial free from prejudicial error.

NO ERROR.

EXUM, Justice, dissenting.

The nub of this case is the question of defendant's insanity. Insanity constitutes his entire defense. It is a close question on this record. Defendant's evidence of insanity is substantial as is the state's rebuttal. Errors, therefore, relating to this defense must be carefully examined.

I believe it was reversible error for the trial court to instruct the jury over defendant's objection regarding the permissive, but not mandated, commitment procedures which may have followed an acquittal on the grounds of insanity. As the majority correctly notes, the former statute required the trial judge to hold further hearings to determine whether an insanity acquittee should nevertheless be committed. The statute in effect when this case was tried permitted the court to conduct such a hearing but did not require it.

Defendant requested that these instructions on the permissive commitment procedures not be given. The trial court denied the request. I think it should have been honored. Even with the mandatory commitment procedure statute which previously existed, our rule was that a defendant who raised an insanity defense was entitled to have the jury instructed in accordance with the substance of the statute upon his request. State v. Bundridge, 294 N.C. 45, 239 S.E.2d 811 (1978); State v. Hammonds, 290 N.C. 1, 224 S.E.2d 595 (1976). In Hammonds this Court considered at length the rule in other jurisdictions regarding this kind of instruction. We noted that only one state required the instructions in the absence of defendant's request. Several states adopted the rule that defendant, upon request, was entitled to the instruction. One jurisdiction had held that a defendant was entitled to the instruction "unless it affirmatively appears that defendant does not want such an instruction." Hammonds, 290 N.C. at 14, 224 S.E.2d at 603 (emphasis original). So far as is revealed in Hammonds, no jurisdiction says the instruction ought to be given over the express objection of the defendant. Indeed, a majority of jurisdictions prohibit this kind of instruction altogether. Note, 13 Wake Forest L.Rev. 201 (1977). We have held that in the absence of a request or objection it is not error to tell the jury that a commitment hearing will be held if a defendant is acquitted by reason of insanity. State v. Harris, 306 N.C. 724, 295 S.E.2d 391 (1982).

Under the former statute, a commitment hearing was required. The purpose of so instructing the jury was to advise them that an acquittal on the ground of insanity did not necessarily mean that defendant would be released altogether and that a hearing to determine this question would inevitably be held. Hammonds, 290 N.C. at 15, 224 S.E.2d at 603-04. Under the statute governing this case, it was discretionary with the trial judge as to whether a commitment hearing following an insanity acquittal would even be held. This statute provided much less assurance to the jury that defendant would be otherwise committed, even if he was acquitted on the ground of insanity, than did the former statute. It is understandable why a defendant, like defendant here, might not wish the jury to be instructed regarding permissive, as opposed to mandatory, commitment procedures.

I think it is reversible error to instruct on these procedures if defendant requests, as he did here, that this instruction not be given.

I also believe it was reversible error for the trial court to instruct the jury on the insanity issue as follows:

The burden is on defendant simply "to satisfy" the jury of his insanity. We have said that "to satisfy" the jury is "a standard no greater and at the same time one not significantly less than persuasion by a preponderance of the evidence." State v. Hankerson, 288 N.C. 632, 648, 220 S.E.2d 575, 587 (1975), rev'd on other grounds, 432 U.S. 233, 97 S.Ct. 2339, 53 L.Ed.2d 306 (1977). The defendant's burden of persuasion on an insanity issue is no greater, therefore, than a civil litigant's burden in a civil case would be, i.e., to persuade the jury by a preponderance of, or greater weight of, the evidence. Under this standard, a litigant is only required to "tip the scales" in the litigant's favor. The litigant with this burden must persuade the jury only that it is "more likely than not" that the facts in his favor are true. N.C. Pattern Jury Instructions — Civil 101.10. Thus a defendant claiming an insanity defense need satisfy the jury only that it is more likely than not that he is insane. A jury could be so satisfied and yet have some "doubt" about the question. Essentially the jury is dealing in probabilities, not certainties. The jury could believe it more probable, or more likely, than not that defendant was insane and yet still have a doubt about it.