{ "id": 8550983, "name": "STATE OF NOETH CAROLINA v. BENNIE BOYCE TESSENAR", "name_abbreviation": "State v. Tessenar", "decision_date": "1972-08-02", "docket_number": "No. 7226SC446", "first_page": "424", "last_page": "427", "citations": [ { "type": "official", "cite": "15 N.C. App. 424" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "183 S.E. 2d 652", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "279 N.C. 428", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569396 ], "opinion_index": 0, "case_paths": [ "/nc/279/0428-01" ] }, { "cite": "170 S.E. 2d 531", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "6 N.C. App. 558", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8549433 ], "opinion_index": 0, "case_paths": [ "/nc-app/6/0558-01" ] }, { "cite": "153 S.E. 2d 10", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "269 N.C. 329", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8563543 ], "opinion_index": 0, "case_paths": [ "/nc/269/0329-01" ] }, { "cite": "131 S.E. 743", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "191 N.C. 378", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8629365 ], "opinion_index": 0, "case_paths": [ "/nc/191/0378-01" ] }, { "cite": "46 S.E. 2d 824", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "228 N.C. 567", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8627518 ], "opinion_index": 0, "case_paths": [ "/nc/228/0567-01" ] }, { "cite": "129 S.E. 2d 507", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "511" } ], "opinion_index": 0 }, { "cite": "258 N.C. 759", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562719 ], "pin_cites": [ { "page": "764" } ], "opinion_index": 0, "case_paths": [ "/nc/258/0759-01" ] }, { "cite": "158 S.E. 2d 638", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "272 N.C. 327", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572884 ], "opinion_index": 0, "case_paths": [ "/nc/272/0327-01" ] }, { "cite": "181 S.E. 2d 405", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "279 N.C. 85", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565770 ], "opinion_index": 0, "case_paths": [ "/nc/279/0085-01" ] } ], "analysis": { "cardinality": 481, "char_count": 7966, "ocr_confidence": 0.535, "pagerank": { "raw": 1.0997720922370316e-07, "percentile": 0.5680277112681087 }, "sha256": "24af819f18db7378258ba46f790ebcb4cb1f17e4ddb4a31e65ea6b67373876d1", "simhash": "1:bb3e546fd436149e", "word_count": 1386 }, "last_updated": "2023-07-14T17:26:51.335715+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges Parker and Vaughn concur." ], "parties": [ "STATE OF NOETH CAROLINA v. BENNIE BOYCE TESSENAR" ], "opinions": [ { "text": "GRAHAM, Judge.\nDefendant\u2019s first assignment of error challenges the sufficiency of the State\u2019s evidence. This assignment of error is overruled.\nDefendant next contends the court erred in permitting Officer Lutrick to testify over objection that defendant told him, \u201cI am the man who did it.\u201d This contention is without merit. The record affirmatively shows that this statement was volunteered by defendant before he was taken into custody. \u201cMiranda warnings\u201d are required only where a defendant is being subjected to custodial interrogation. State v. Fletcher and State v. Arnold, 279 N.C. 85, 181 S.E. 2d 405; State v. Meadows, 272 N.C. 327, 158 S.E. 2d 638.\nDefendant objected to testimony by a witness as to his opinion with respect to the distance State\u2019s Exhibit #1 (defendant\u2019s shotgun) was from the deceased when it fired the shot which inflicted the fatal wound. The court did not enter a specific finding that the witness was an expert in the field of firearms and munitions. However, there was plenary evidence to show that the witness was fully experienced in this field, and also that he had test fired the gun in question. Under these circumstances, the court\u2019s failure to specifically find the witness to be an expert does not constitute reversible error. \u201c[T]he failure of the trial judge to specifically find that the witness is an expert before allowing him to give expert testimony will not sustain a general objection to his opinion evidence if it is in response to an otherwise competent question, and if there is evidence in the record on which the court could have based a finding that the witness had expert qualifications. In such a case, it will be assumed that the court found the witness to be an expert; otherwise, it would not have permitted him to answer the question.\u201d Teague v. Power Co., 258 N.C. 759, 764, 129 S.E. 2d 507, 511.\nDefendant\u2019s next assignment of error is directed to the admission of a photograph depicting the body of the deceased on the couch inside the trailer. The record clearly indicates that this photograph was admitted only for the purpose of illustrating the testimony of witnesses. It was competent for that purpose. State v. Gardner, 228 N.C. 567, 46 S.E. 2d 824; State v. Matthews, 191 N.C. 378, 131 S.E. 743. The fact the photograph is gory or gruesome does not render it incompetent. State v. Porth, 269 N.C. 329, 153 S.E. 2d 10; State v. McCain, 6 N.C. App. 558, 170 S.E. 2d 531.\nDefendant\u2019s final assignment of error is directed to an inquiry made by the judge to the jury at 7:00 p.m. as to whether they would be willing to return at 8:00 p.m., after supper, \u201cand work a while tonight.\u201d We find nothing in the judge\u2019s statement tending to suggest, as defendant contends, that the jury would be there all night if they did not agree upon a verdict. Nothing in the court\u2019s language tends in any way to coerce the jury or intimate an opinion as to what the verdicts should be. State v. McVay and State v. Simmons, 279 N.C. 428, 183 S.E. 2d 652. We note that defendant did not move for a mistrial nor object to the court\u2019s statement at the time it was made. The objection he makes now is overruled.\nAfter reviewing the entire record we conclude that defendant was afforded a fair trial free from prejudicial error.\nNo error.\nJudges Parker and Vaughn concur.", "type": "majority", "author": "GRAHAM, Judge." } ], "attorneys": [ "Attorney General Morgan by Associate Attorney Lloyd for the State.", "Jerry W. Whitley for defendant appellant." ], "corrections": "", "head_matter": "STATE OF NOETH CAROLINA v. BENNIE BOYCE TESSENAR\nNo. 7226SC446\n(Filed 2 August 1972)\n1. Criminal Law \u00a7 75\u2014 Miranda warnings \u2014 defendant not in custody\nIn a murder prosecution, defendant\u2019s volunteered statement made to an officer before he was taken into custody that he was \u201cthe man who did it\u201d was admissible, since \u201cMiranda warnings\u201d are required only where a defendant is being subjected to custodial interrogation.\n2. Criminal Law \u00a7 51\u2014 expert testimony \u2014 absence of finding by court\nThe trial court\u2019s failure specifically to find a witness an expert in the field of firearms and munitions before allowing the witness to give opinion testimony did not constitute reversible error where there was plenary evidence that the witness was fully experienced in his field and had test fired the gun with respect to which he testified.\n3. Homicide \u00a7 20\u2014 photograph of deceased\u2019s body \u2014 admissibility \u2014 illustration of testimony\nA photograph depicting the body of the deceased was competent for the purpose of illustrating the testimony of witnesses despite the fact that it was gory or gruesome.\n4. Criminal Law \u00a7 99\u2014 judge\u2019s expression of opinion\nThe judge\u2019s inquiry made to the jury as to whether they would return after supper \u201cand work a while tonight\u201d did not constitute coercion of the jury or an expression of opinion.\nAppeal by defendant from McLean, Judge, 17 January 1972 Schedule \u201cC\u201d Criminal Session of Superior Court held in Mecklenburg County.\nDefendant was charged in a bill of indictment, proper in form, with first degree murder. The solicitor elected in open court to seek a verdict of guilty of second degree murder, manslaughter \u201cor whatever the evidence might warrant.\u201d Defendant entered a plea of not guilty.\nMrs. Margaret Kirkland testified for the State that she and deceased, whom she was dating, were at defendant\u2019s trailer home on the night of 24 September 1971. All of them had been drinking. About midnight deceased and defendant got into an argument over Mrs. Kirkland but they stopped and shook hands. Later the two men started pushing each other. They were not fighting but just pushing. Mrs. Kirkland started to leave but was called back by deceased who assured her they would not fight anymore. Defendant then went to the back of his trailer and got his shotgun. Mrs. Kirkland described the events which followed: \u201cEdgar was standing right in front of the couch. Bennie went back, I think, in the bedroom and came back with a gun. I don\u2019t remember how he was carrying it, but he come back and pointed it towards Edgar and it frightened me. Edgar sat down on the couch. I begged Bennie not to kill him. I grabbed hold of the gun at the barrel and gripped it and he pushed me away and told me to get out of his damn way. He pushed me towards the bar. Bennie looked at Edgar and pointed the gun back towards him and he said, \u2018You have made me mad and I am going to kill you, you god-damned son-of-a-bitch,\u2019 and he cocked the gun and shot him. At this time Edgar was sitting on the couch. He did not stand up or attempt to stand up. Bennie was standing two or three feet from Edgar with the gun.\u201d\nPolice officer D. G. Lutrick went to the scene some time after 2:00 a.m. on the morning of 25 September 1971. As he pulled up to the trailer park, he asked two men whom he observed standing near defendant\u2019s trailer if they were having trouble there. Defendant, who was one of the two men, replied, \u201cI am the man that did it.\u201d Officer Lutrick entered the trailer. He observed the deceased leaning against the back of the couch. Deceased had a wound in the area of the face approximately an inch in diameter, and in the opinion of the officer, he was dead at that time. A shotgun, offered into evidence as State\u2019s Exhibit 1, was found inside the trailer.\nDefendant testified that his gun discharged accidentally as he jerked it from the closet in order to protect himself from deceased who was threatening him with a pistol. He stated he was from 12 to 14 feet from deceased at the time the gun discharged. Defendant also stated that after the shooting Mrs. Kirkland ran from the trailer with deceased\u2019s pistol.\nThe State offered rebuttal evidence tending to show that defendant\u2019s gun was discharged in close proximity to deceased and that defendant told a neighbor immediately after the killing that he shot deceased because deceased had a knife.\nThe jury returned a verdict of guilty of manslaughter. Defendant appeals from judgment entered on the verdict imposing an active prison sentence of from 15 to 20 years.\nAttorney General Morgan by Associate Attorney Lloyd for the State.\nJerry W. Whitley for defendant appellant." }, "file_name": "0424-01", "first_page_order": 448, "last_page_order": 451 }