State v. Barrow

170 S.E.2d 563, 6 N.C. App. 475, 1969 N.C. App. LEXIS 1213
CourtCourt of Appeals of North Carolina
DecidedNovember 19, 1969
Docket6926SC497
StatusPublished
Cited by4 cases

This text of 170 S.E.2d 563 (State v. Barrow) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Barrow, 170 S.E.2d 563, 6 N.C. App. 475, 1969 N.C. App. LEXIS 1213 (N.C. Ct. App. 1969).

Opinions

Beitt, J.

Defendant assigns as error the refusal of the trial judge to grant defendant’s motion to sequester the State’s witnesses. In State v. Love, 269 N.C. 691, 153 S.E. 2d 381, in a per curiam opinion, our Supreme Court said: “The appellant’s first assignment of error challenges the Court’s refusal to sequester the witnesses upon the appellant’s motion. The refusal was in the Court’s discretion and not reviewable. State v. Spencer, 239 N.C. 604, 80 S.E. 2d 670.” The assignment of error is overruled.

Defendant next assigns as error the admission as evidence for purpose of illustrating certain testimony a photograph taken [478]*478very soon after the shooting showing deceased’s body as it lay in the doorway of the rooming house. Defendant contends that the photograph was not relevant and material and that its only purpose was to inflame the jury.

In State v. Atkinson, 275 N.C. 288, 167 S.E. 2d 241, at page 311, our Supreme Court, in an opinion by Lake, J., said:

“In the present case, the jury was properly instructed that the photographs in question were allowed in evidence for the sole purpose of illustrating the testimony of witnesses and not as substantive evidence. See: State v. Norris, 242 N.C. 47, 86 S.E. 2d 916; State v. Perry, 212 N.C. 533, 193 S.E. 727. The fact that a photograph depicts a horrible, gruesome and revolting scene, indicating a vicious, calculated act of cruelty, malice or lust,' does not render the photograph incompetent in evidence, when properly authenticated as a correct portrayal of conditions observed by and related by the witness who uses the photograph to illustrate his testimony. [Citation]
‘Ordinarily, photographs are competent to be used by a witness to explain or illustrate anything it is competent for him to describe in words.’ [Citation] * * * Thus, in a prosecution for homicide, photographs showing the condition of the body when found, the location where found and the surrounding conditions at the time the body was found are not rendered incompetent by their portrayal of the gruesome spectacle and horrifying events which the witness testifies they accurately portray. State v. Stanley, 227 N.C. 650, 44 S.E. 2d 196; State v. Cade, 215 N.C. 393, 2 S.E. 2d 7.”

In the case before us the jury was properly instructed that the photograph complained of was admitted in evidence for the sole purpose of illustrating the testimony of the witness Walter Smith and not as substantive evidence. Testimony regarding the location of the body was relevant and material; defendant contended the deceased was advancing on him at the time of the shooting while the State contended ■ the deceased, after the first shot was fired, was entering the house in an effort to get away from the defendant. The testimony of Walter Smith supported the State’s contention and he was able to use the photograph to illustrate his testimony. The assignment of error is overruled.

Defendant’s assignments of error Nos. 10 and 11 (based on exceptions 10 and 11) are stated in his brief as follows: “The court committed error in allowing the solicitor to cross-examine the de[479]*479fendant in regard to an allegedly incriminating statement made to Detective Fesperman of the Charlotte Police Department while the defendant was in custody without previously having determined in a hearing outside the presence of the jury that the defendant was warned of his constitutional rights and voluntarily waived them.”

At the top of page 32, the record on appeal discloses that defendant on cross-examination and without objection testified to the following:

“I talked to Mr. Fesperman about this case, I said some things to him. I talked to him about the case and signed a written statement, but it wasn’t too many words. I suppose I told Mr. Fesperman that I got three shells, one of which I put in the chamber of the shotgun and the other two I put in my pockets. I know I told him this,- I had three shells. One of them was in the chamber of this shotgun and the other two were in my pocket. * * *”

Near the bottom of page 32 and on page 33, a continuation of defendant’s cross-examination, the record on appeal discloses the following:

“* ■* * The only time I knowed anything about shooting him three times is when they said I shot him three times. Mr. Fes-perman said that. He investigated the case. I don’t remember telling Mr. Fesperman at 9:30 that night, which was within a hundred and twenty minutes after it happened, that after I shot him the first time I reloaded my gun, went on the porch, and shot him while he was lying down in the front door.
MR. ODOM: Objection. It appears the Solicitor is reading from a statement and trying to get in the back door what he couldn’t get in the front door.
THE COURT: Objection overruled.
(DEFENDANT’S EXCEPTION #10)
I don’t remember telling Mr. Fesperman that two hours after it happened. I don’t remember whether I told Mr. Fesperman at the Charlotte Police Department that I had shot the man with this single-barreled shotgun the first time and then reloaded it and shot him a second time. I know I told him I shot the deceased one time. But this signature which I looked at a few minutes ago says William Norman Barrow. That’s what I signed. This statement contains a sentence to the effect that after I had shot the man the first time, that I then reloaded the [480]*480shotgun and shot him the ' second time, I suppose, because I was still scared. * * * T was scared and too angry I suppose to remember shooting the man the third time. * * * I don’t remember anything about shooting the man the third time. I don’t remember whether I told Mr. Fesperman at the police station at 9:30 on the night of May 8, 1969, that I shot the man the third time.”

Immediately thereafter, with further reference to defendant’s cross-examination, the record on appeal reveals the following:

“Q. Well, let me show you this paperwriting and ask you whether or not it refreshes your recollection?
A. I know I —
MR. ODOM: I’m going to object to the paperwriting, your Honor, and move to strike.
THE COURT: Well, objection sustained.
MR. SCHWARTZ: Your Honor, we want to show if he made any prior inconsistent statements about this.
THE COURT: He said he didn’t remember.
MR. SCHWARTZ: Well, I would like to see if I could refresh his recollection.
THE COURT: I’ll let you ask him if it refreshes his recollection.
MR. SCHWARTZ: Yes, sir.
Q. (By Mr. Schwartz): This statement here with your signature on it at the bottom, do these last few lines on this statement refresh your recollection about it, starting right here? I then, and from there on.
MR. ODOM: I object again to the reference to the statement used by the Solicitor.
THE COURT: Overruled.
MR. ODOM: Exception.
A. These phrases here was supposed to be made what first happened.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

State v. Gunther
248 S.E.2d 97 (Court of Appeals of North Carolina, 1978)
State v. Zimmerman
209 S.E.2d 350 (Court of Appeals of North Carolina, 1974)
State v. Coleman
193 S.E.2d 395 (Court of Appeals of North Carolina, 1972)
State v. Barrow
170 S.E.2d 563 (Court of Appeals of North Carolina, 1969)

Cite This Page — Counsel Stack

Bluebook (online)
170 S.E.2d 563, 6 N.C. App. 475, 1969 N.C. App. LEXIS 1213, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-barrow-ncctapp-1969.