{ "id": 8560935, "name": "STATE OF NORTH CAROLINA v. BOYD STRICKLAND", "name_abbreviation": "State v. Strickland", "decision_date": "1970-01-30", "docket_number": "No. 24", "first_page": "253", "last_page": "263", "citations": [ { "type": "official", "cite": "276 N.C. 253" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "5 N.C. App. 338", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8550002 ], "opinion_index": -1, "case_paths": [ "/nc-app/5/0338-01" ] }, { "cite": "378 U.S. 478", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6166688 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/us/378/0478-01" ] }, { "cite": "384 U.S. 436", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12046400 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/us/384/0436-01" ] }, { "cite": "148 S.E. 2d 569", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "267 N.C. 618", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560079 ], "opinion_index": 0, "case_paths": [ "/nc/267/0618-01" ] }, { "cite": "150 S.E. 2d 1", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "268 N.C. 69", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560152 ], "opinion_index": 0, "case_paths": [ "/nc/268/0069-01" ] }, { "cite": "166 S.E. 2d 53", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "275 N.C. 141", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8558175 ], "opinion_index": 0, "case_paths": [ "/nc/275/0141-01" ] }, { "cite": "171 S.E. 2d 398", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "276 N.C. 86", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560195, 8560213, 8560254 ], "opinion_index": 0, "case_paths": [ "/nc/276/0086-01", "/nc/276/0086-02", "/nc/276/0086-03" ] }, { "cite": "132 S.E. 2d 354", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "260 N.C. 186", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573591 ], "opinion_index": 0, "case_paths": [ "/nc/260/0186-01" ] }, { "cite": "124 S.E. 2d 873", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "256 N.C. 652", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574385 ], "opinion_index": 0, "case_paths": [ "/nc/256/0652-01" ] }, { "cite": "153 S.E. 2d 343", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "269 N.C. 642", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565380 ], "opinion_index": 0, "case_paths": [ "/nc/269/0642-01" ] }, { "cite": "80 S.E. 2d 387", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "239 N.C. 453", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8627305 ], "pin_cites": [ { "page": "458" } ], "opinion_index": 0, "case_paths": [ "/nc/239/0453-01" ] }, { "cite": "64 S.E. 2d 572", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "233 N.C. 390", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8608863 ], "weight": 2, "pin_cites": [ { "page": "399" } ], "opinion_index": 0, "case_paths": [ "/nc/233/0390-01" ] }, { "cite": "117 S.E. 2d 749", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "253 N.C. 795", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8627255 ], "opinion_index": 0, "case_paths": [ "/nc/253/0795-01" ] }, { "cite": "159 Colo. 36", "category": "reporters:state", "reporter": "Colo.", "case_ids": [ 5317015 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/colo/159/0036-01" ] }, { "cite": "225 S.W. 2d 417", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 10199184 ], "opinion_index": 0, "case_paths": [ "/sw2d/225/0417-01" ] }, { "cite": "238 N.E. 2d 766", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "435 P. 2d 191", "category": "reporters:state_regional", "reporter": "P.2d", "case_ids": [ 10586727 ], "opinion_index": 0, "case_paths": [ "/p2d/435/0191-01" ] }, { "cite": "419 P. 2d 176", "category": "reporters:state_regional", "reporter": "P.2d", "opinion_index": 0 }, { "cite": "404 P. 2d 46", "category": "reporters:state_regional", "reporter": "P.2d", "case_ids": [ 10581273 ], "opinion_index": 0, "case_paths": [ "/p2d/404/0046-01" ] }, { "cite": "62 A.L.R. 2d 686", "category": "reporters:specialty", "reporter": "A.L.R. 2d", "opinion_index": 0 }, { "cite": "197 P. 2d 1", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1948, "pin_cites": [ { "parenthetical": "sound pictures of re-enactment by defendants of a crime" } ], "opinion_index": 0 }, { "cite": "32 Cal. 2d 491", "category": "reporters:state", "reporter": "Cal. 2d", "case_ids": [ 4394367 ], "year": 1948, "pin_cites": [ { "parenthetical": "sound pictures of re-enactment by defendants of a crime" } ], "opinion_index": 0, "case_paths": [ "/cal-2d/32/0491-01" ] }, { "cite": "71 P. 2d 321", "category": "reporters:state_regional", "reporter": "P.2d", "case_ids": [ 2428214 ], "year": 1937, "pin_cites": [ { "parenthetical": "sound motion picture of confession held admissible" } ], "opinion_index": 0, "case_paths": [ "/or/157/0172-01" ] }, { "cite": "21 Cal. App. 2d 320", "category": "reporters:state", "reporter": "Cal. App. 2d", "case_ids": [ 4442251 ], "year": 1937, "pin_cites": [ { "parenthetical": "sound motion picture of confession held admissible" } ], "opinion_index": 0, "case_paths": [ "/cal-app-2d/21/0320-01" ] }, { "cite": "83 So. 2d 453", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 9899027 ], "year": 1955, "pin_cites": [ { "parenthetical": "motion picture admissible to show condition of a person, place, object, or activity" } ], "opinion_index": 0, "case_paths": [ "/so2d/83/0453-01" ] }, { "cite": "27 N.E. 2d 289", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1940, "pin_cites": [ { "parenthetical": "motion pictures admissible to discredit the testimony of a personal injury claimant by showing activity inconsistent with alleged injury" } ], "opinion_index": 0 }, { "cite": "305 Ill. App. 458", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 3266985 ], "year": 1940, "pin_cites": [ { "parenthetical": "motion pictures admissible to discredit the testimony of a personal injury claimant by showing activity inconsistent with alleged injury" } ], "opinion_index": 0, "case_paths": [ "/ill-app/305/0458-01" ] }, { "cite": "2 Cal. Rptr. 279", "category": "reporters:state", "reporter": "Cal. Rptr.", "year": 1960, "pin_cites": [ { "parenthetical": "motion picture depicting condition of personal injury victim" } ], "opinion_index": 0 }, { "cite": "348 P. 2d 887", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1960, "pin_cites": [ { "parenthetical": "motion picture depicting condition of personal injury victim" } ], "opinion_index": 0 }, { "cite": "53 Cal. 2d 544", "category": "reporters:state", "reporter": "Cal. 2d", "case_ids": [ 4384774 ], "year": 1960, "pin_cites": [ { "parenthetical": "motion picture depicting condition of personal injury victim" } ], "opinion_index": 0, "case_paths": [ "/cal-2d/53/0544-01" ] }, { "cite": "218 U.S. 245", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 8286703 ], "weight": 6, "pin_cites": [ { "page": "262-253" }, { "page": "1030" } ], "opinion_index": 0, "case_paths": [ "/us/218/0245-01" ] }, { "cite": "384 U.S. 757", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12047531 ], "weight": 5, "opinion_index": 0, "case_paths": [ "/us/384/0757-01" ] } ], "analysis": { "cardinality": 977, "char_count": 23849, "ocr_confidence": 0.562, "pagerank": { "raw": 5.166844302487379e-07, "percentile": 0.9396659805262778 }, "sha256": "3575a912f821572b35a8c828ca2335148d2330d0a7eb09ca8d8d4996e896c34c", "simhash": "1:0f8f8c0225e5804b", "word_count": 3889 }, "last_updated": "2023-07-14T17:14:31.974326+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Moore, J., did not participate in the consideration or decision of this case." ], "parties": [ "STATE OF NORTH CAROLINA v. BOYD STRICKLAND" ], "opinions": [ { "text": "BRANCH, J.\nThe question presented for decision by this appeal is whether the North Carolina Court of Appeals erred in holding that sound motion pictures, taken of defendant approximately two hours after he was alleged to have operated an automobile upon the public highways of North Carolina while under the influence of intoxicating liquor, were properly admitted into evidence.\nDefendant contends that the use of the sound moving pictures violated his 'Fifth Amendment privilege guaranteeing that a person cannot be \u201ccompelled in a criminal case to be a witness against himself\u201d and the guarantee of Article I, Section 11 of the North Carolina Constitution that a person shall \u201cnot be compelled to give self-incriminating evidence.\u201d\nThe Federal courts have recognized that the Fifth Amendment privilege against self-incrimination relates only to testimonial or communicative acts of the person seeking to exercise the privilege and does not apply to acts not communicative in nature. Schmerber v. California, 384 U.S. 757, 86 S. Ct. 1826, 16 L. Ed. 2d 908; Holt v. United States, 218 U.S. 245, 31 S. Ct. 2, 54 L. Ed. 1021.\nIn the case of Schmerber v. California, supra, a physician withdrew blood from the defendant at the direction of a State officer, over objection of the accused, and in a State prosecution for driving an automobile while under the influence of intoxicating liquor offered in evidence an analysis of the blood so taken for the purpose of showing intoxication of accused. The defendant objected to the introduction of this evidence, contending that this violated his Fifth Amendment privilege against self-incrimination. Holding the blood test evidence competent because it was not his testimony or his communicative act, the United States Supreme Court stated:\n\u201c(B)oth federal and state courts have usually held that it (Fifth Amendment) offers no protection against compulsion to submit to fingerprinting, photographing, or measurements, to write or speak for identification, to appear in court, to stand, to assume a stance, to walk, or to make a particular gesture. The distinction which has emerged, often expressed in different ways, is that the privilege is a bar against compelling 'communications\u2019 or \u2018testimony,\u2019 but that compulsion which makes a suspect or accused the source of 'real or physical evidence\u2019 does not violate it.\u201d\nAnother leading case in the federal court structure is Holt v. United States, supra, in which there was evidence that prior to the trial the accused, over his objection, was compelled to put on a blouse that \u201cfitted\u201d him. Mr. Justice Holmes, speaking for the Court, rejected the argument that this was a violation of Holt\u2019s right against self-incrimination as \u201cbased upon an extravagent extension of the Fifth Amendment,\u201d and went on to say:\n\u201c(T)he prohibition of compelling a man in a criminal court to be witness against himself is a prohibition of the use of physical or moral compulsion to extort communications from him, not an exclusion of his body as evidence when it may be material. The objection in principle would forbid a jury to look at a prisoner and compare his features with a photograph in proof.\u201d 218 U.S. at 262-253, 54 L. Ed. at 1030.\nGenerally, the basic principles which govern the admissibility of photographs apply to motion pictures, and where they are relevant and have been properly authenticated, they are admissible in evidence. They have been used in both criminal and civil trials for many purposes, e. g., civil cases: Lehmuth v. Long Beach Unified School Dist., 53 Cal. 2d 544, 348 P. 2d 887, 2 Cal. Rptr. 279 (1960) (motion picture depicting condition of personal injury victim); McGoorty v. Benhart, 305 Ill. App. 458, 27 N.E. 2d 289 (1940) (motion pictures admissible to discredit the testimony of a personal injury claimant by showing activity inconsistent with alleged injury); Sparks v. Employers Mnt. Liab. Ins. Co. of Wis., 83 So. 2d 453 (La. Ct. App. 1955) (motion picture admissible to show condition of a person, place, object, or activity). E. G., Criminal cases: People v. Hayes, 21 Cal. App. 2d 320, 71 P. 2d 321 (1937) (sound motion picture of confession held admissible); People v. Dabb, 32 Cal. 2d 491, 197 P. 2d 1 (1948) (sound pictures of re-enactment by defendants of a crime). 41 Notre Dame Lawyer, 1009, 1010, n. 6 (1965-66); Scott, Photographic Evidence, \u00a7 624; 62 A.L.R. 2d 686. However, there is very little authority on the precise question of using moving pictures in cases in whieh a person is charged with driving on the public highways while under the influence of intoxicating liquor and asserts his constitutional right against self-incrimination. According to our research only one jurisdiction, Oklahoma, has adopted the view supporting defendant\u2019s position.\nIn Spencer v. State, Okla. Cr., 404 P. 2d 46, defendant appealed from a conviction of operating a motor vehicle while under the influence of intoxicating liquor, contending that films of coordination tests performed by him at police direction and without his knowledge violated his constitutional right against self-incrimination. Holding that defendant\u2019s constitutional rights were violated, the Court said:\n\u201cBefore it can be said that defendant waived his constitutional rights against self-incrimination, it must be shown that the defendant \u2014 of his own volition, freely and voluntarily \u2014 posed for the pictures after being advised that the tests were optional; and that films were being taken of his actions; and advised as to his rights against self-incrimination.\n\u201cIn absence of such a showing, the pictures admitted in evidence at the trial over objections of defendant, would constitute reversible error.\u201d\nAccord: Ritchie v. State, Okla. Cr., 419 P. 2d 176; Stewart v. State, Okla. Cr., 435 P. 2d 191.\nIt is noted that there was evidence in the instant record, both in the testimony of patrolman Ballard' and in the moving picture itself, that defendant had been warned of his constitutional rights and that he understood them.\nA view contrary to that adopted by the court in the State of Oklahoma has been expressed in the states of Colorado, Texas and Ohio. In Piqua v. Hinger, 15 Ohio State 2d 110, 238 N.E. 2d 766, defendant was arrested and subsequently charged with operating a motor vehicle while under the influence of intoxicating liquor. He was taken to the police station, where he was ordered to perform certain physical tests. Unknown to him, motion pictures were made of the tests. After the tests he was advised of his constitutional rights. The films were offered into evidence at his trial. Defendant was convicted and appealed, contending that the films should have been suppressed by authority -of - Miranda v. Arizona, supra. The Court rejected this contention and, holding that Schmerber v. California, supra, was dispositive of the issue, stated:\n\u201cThe evidence introduced in the trial of the instant case, in respect to the physical tests made and filmed, did not constitute matter communicated by the accused from his knowledge of the offense. On the contrary, it was real or physical evidence of the kind designated in Schmerb\u00e9r as unprotected by the Constitution. Such evidence is constitutionally admissible, even if compelled, and irrespective of whether the warnings, required by Miranda are given.\u201d\nThe case of Housewright v. State (Texas), 154 Cr. 101, 225 S.W. 2d 417, is an appeal from conviction' of operating a motor vehicle while under the influence of \u2019 intoxicating liquori The defendant, contending that admission of moving pictures of a scene at the jail while defendant was being booked .and taken without his consent, was violative of his constitutional protection against self-incrimination. The court held that the moving pictures when properly identified were admissible, and declared:\n\u201cEvidently the witnesses could delineate the peculiarities of appellant at the scene of the alleged offense and his demeanor and actions in order to give a basis of their opinion as to his intoxicated condition and it seems to us to be but a clearer delineation of what they saw and described to the jury if such a scene could thus be shown by a series of pictures taken immediately after his apprehension instead of the eyewitnesses testifying only from memory.\u201d\nIn Lanford v. People, 159 Colo. 36, 409 P. 2d 829, defendant was convicted of operating a motor vehicle while under the influence of intoxicating liquor. Sound moving pictures were taken shortly after his arrest which showed, among other things, his refusal to take sobriety and coordination tests. Over his objection, the sound moving pictures were introduced into evidence at his trial. The court held the sound movies to be admissible, but that at defendant\u2019s request the court must caution the jury as to the limiting purpose of the evidence and, upon request, instruct the jury as to its limiting purpose.\nNorth Carolina has long recognized the distinction between compulsory testimonial evidence and compulsory physical disclosure. The North Carolina view is summarized in State v. Paschal, 253 N.C. 795, 117 S.E. 2d 749, by Bobbitt, J. (now C.J.) as follows:\n\u201cThe established rule in this jurisdiction is that \u2018(I) he scope of the privilege against self-incrimination, in history and in principle, includes only the process of testifying by word of mouth or in writing, i.e., the process of disclosure by utterance. It has no application to such physical evidential circumstances as may exist on the accused\u2019s body or about his person.\u2019 S. v. Rogers, 233 N.C. 390, 399, 64 S.E. 2d 572, where Ervin, J., reviews prior decisions of this Court. See also S. v. Grayson, 239 N.C. 453, 458, 80 S.E. 2d 387, opinion by Parker, J., and cases cited. ' \u25a0 v !\n\u201cWhere this rule applies, it is held that the admission of evidence of a defendant\u2019s refusal to submit to a chemical test designed to measure the alcoholic content of his blood does not violate his constitutional right against self-incrimination.\u201d\nSee also Branch v. State, 269 N.C. 642, 153 S.E. 2d 343; State v. Gaskill, 256 N.C. 652, 124 S.E. 2d 873.\nBoth better reasoning and the prevailing weight of authority lead us to follow the views adopted by Colorado, Texas and Ohio.\nBrock, J., speaking for the Court of Appeals, correctly and concisely stated:\n\u201cTalking motion pictures of an accused in a criminal action are not per se testimonial in nature, and, where they are properly used to illustrate competent and relevant testimony of a witness, their use does not violate accused\u2019s privilege against self-incrimination.\u201d\nHowever, the State cannot introduce substantive evidence or add to the testimony of a witness under the guise of using a moving picture to illustrate the testimony of the witness. Nevertheless, if the testimony of a witness is generally consistent with the illustrative evidence, a slight variation only affects the credibility of the evidence. State v. Brooks, 260 N.C. 186, 132 S.E. 2d 354.\nThe burden here was upon the State to prove that defendant operated his motor vehicle upon the public highways or streets while he was under the influence of intoxicating liquor. Defendant admitted that he had been drinking, but denied that he was operating his automobile when it was wrecked. He also defended upon the ground that even if the jury should find that he was the operator of the motor vehicle, his intoxication resulted from consuming alcoholic beverages in the two-hour period which elapsed between the wreck and the time when the sound moving pictures were made.\nIn the instant case the moving picture not only depicted defendant\u2019s physical condition and his ability (or inability) to coordinate his movements; its sound track recorded the following incriminating statement' \u2014 -\u201ccommunicated by the accused from his knowledge of the offense\u201d: \u201cQ. Have you had anything to drink since they stopped you? A. No, sir.\u201d\nThis question and answer presented testimony from defendant which tended to show not only that he was driving the motor vehicle but that he was under the influence of intoxicating liquor at that time. It placed him at the scene of the wreck and completely destroyed his contention that his intoxication resulted from drinking subsequent to the wreck. The statement was clearly substantive evidence, competent as an admission if competent at all. It certainly did not illustrate the testimony of any other witness.\nIt is the law in this state \u201cthat in-custody statements attributed to a defendant, when offered by the State and objected to by the defendant, are inadmissible for any purpose unless, after a voir dire hearing in the absence of the jury, the court, based upon sufficient evidence, makes factual findings that such statements were voluntarily and understandingly made by the defendant after he had been fully advised as to his constitutional rights.\u201d State v. Catrett, 276 N.C. 86, 171 S.E. 2d 398, filed 6 January 1970. Accord: State v. Moore, 275 N.C. 141, 166 S.E. 2d 53; State v. Gray, 268 N.C. 69, 150 S.E. 2d 1; State v. Conyers, 267 N.C. 618, 148 S.E. 2d 569; and State v. Rogers, 233 N.C. 390, 64 S.E. 2d 572. This statement from Catrett was made with reference to the defendant\u2019s in-custody statements which were offered for impeachment purposes. A fortiori, it is applicable to the statement which defendant made in consequence of the interrogation quoted above.\nThe Oklahoma case of Stewart v. State, supra, cited as being contrary to the view adopted by this Court, is in partial accord with this decision, in that it holds that sound motion pictures taken of a defendant are inadmissible in evidence without a showing that prior to the taking he was advised of his right to counsel and given the admonitions required by Miranda v. State of Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694, and Escobedo v. State of Illinois, 378 U.S. 478, 84 S. Ct. 1758, 12 L. Ed. 2d 977.\nIn the instant case, since no voir dire was held, there must be a new trial.\nAside from the constitutional and procedural questions here presented, we think it appropriate to observe that the use of properly authenticated moving pictures to illustrate a witness\u2019 testimony may be of invaluable aid in the jury\u2019s search for a verdict that speaks the truth. However, the powerful impact of this type of evidence requires the trial judge to examine carefully into its authenticity, relevancy, and competency, and \u2014 if he finds it to be competent \u2014 to give the jury proper limiting instructions at the time it is introduced. When a moving picture is offered into evidence, upon defendant\u2019s request the trial judge should allow defendant\u2019s counsel to preview it so that he can intelligently enter objections to those portions which he may deem uncorroborative or otherwise objectionable. Furthermore, when the sound motion picture contains incriminating statements by the defendant \u2014 made \u201cfrom his knowledge of the offense\u201d \u2014 upon defendant\u2019s objection, the judge must conduct a voir dire to determine the admissibility of the in-custody statements or admissions contained in the sound picture.\nWe find no fallacy in the reasoning of the North Carolina Court of Appeals to the effect that G.S. 114-19 did not create a new rule of evidence. Even a cursory reading of this statute in connection with the chapter and article in which it is found leads to the conclusion that the statute is concerned with the compilation and preservation of statistics and records rather than the creation of a new rule of evidence.\nFor reasons stated, the decision of the. Court of Appeals is reversed, and the cause is remanded to that Court with direction to award a new trial, to be conducted in accordance with the principles herein set forth.\nReversed and remanded.\nMoore, J., did not participate in the consideration or decision of this case.", "type": "majority", "author": "BRANCH, J." } ], "attorneys": [ "Attorney General Morgan and Staff Attorney Giles for the State.", "White, Crumpler and Pfefferkorn for defendant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. BOYD STRICKLAND\nNo. 24\n(Filed 30 January 1970)\n1. Constitutional Law \u00a7 33\u2014 self-incrimination\nThe privilege against self-incrimination relates only to testimonial or communicative acts of the person seeking to exercise the privilege and does not apply to acts not communicative in nature.\n2. Criminal Law \u00a7 43\u2014 admissibility of motion pictures\nGenerally, the basic principles which govern the admissibility of photographs apply to motion pictures, and where they are relevant and have been properly authenticated, they are admissible in evidence.\n3. Constitutional Law \u00a7 33; Criminal Law \u00a7 43\u2014 self-incrimination \u2014 sound motion pictures of defendant\nTalking motion pictures of an accused in a criminal prosecution are not per se testimonial in nature, and where they are properly used to illustrate competent and relevant testimony of a witness, their use does not violate an accused\u2019s privilege against self-incrimination.\n4. Criminal Law \u00a7 43\u2014 admissibility of illustrative motion pictures \u2014 slight variation\nThe State cannot introduce substantive evidence or add to the testimony of a witness under the guise of using a moving picture to illustrate the testimony of the witness, but if the testimony of the witness is generally consistent with the illustrative moving picture, a slight variation only affects the credibility of the evidence.\n5. Criminal Law \u00a7\u00a7 43, 76\u2014 motion pictures containing in-custody statement \u2014 necessity for voir dire\nIn this prosecution for operating a motor vehicle upon the public highways while under the influence of intoxicating liquor, defendant\u2019s automobile having wrecked and the driver having left the scene, the trial court erred in the admission, over defendant\u2019s objection, of sound motion pictures containing an in-eustody statement by defendant which placed defendant at the scene of the wreck and destroyed his contention that his intoxication resulted from drinking subsequent to the wreck, where the trial court did not conduct a voir dire hearing in the absence of the jury to determine whether defendant\u2019s statement contained in the sound pictures was voluntarily and understandingly made after he had been fully advised of his constitutional rights.\n6. Criminal Law \u00a7 76\u2014 in-custody statements \u2014 admissibility \u2014 necessity for voir dire hearing\nIn-eustody statements attributed to a defendant, when offered by the State and objected to by the defendant, are inadmissible for any purpose' unless, after a voir dire hearing in the absence of the jury, the court, based upon sufficient evidence, makes factual findings that such statements were voluntarily and understandingly made by the defendant after he had been fully advised of his constitutional rights.\n7. Criminal Law \u00a7 43\u2014 admissibility of illustrative motion pictures \u2014 duties of trial judge\nThe trial judge is required to examine carefully into the authenticity, relevancy and competency of a motion picture offered to illustrate a witness\u2019 testimony, and if he finds it to be competent, to give the jury proper-limiting instructions at the time it is introduced.\n8. Criminal Law \u00a7 43\u2014 admission of motion picture \u2014 preview by defense counsel\nWhen a moving picture is offered into evidence, upon defendant\u2019s request the trial judge should allow defendant\u2019s \u25a0 counsel to preview it so-that he can intelligently enter objections to those portions which he may deem uncorroborative or otherwise objectionable.\n9. Criminal Law \u00a7\u00a7 43, 76\u2014 sound motion picture containing incriminating statement by defendant \u2014 necessity for voir dire\nWhen a sound motion picture offered into evidence contains incriminating statements made by defendant from his knowledge of the offense, upon defendant\u2019s objection the trial judge must \"conduct \u25a0 a voir dire to-determine the admissibility of the in-custody statements or admissions, contained in the sound picture.\n10. Criminal Law \u00a7 43\u2014 photographs and motion pictures of misde-meanants \u2014 G.S. 114-19\nG.S. 114-19 does not prohibit the admission of photographs or motion pictures of a defendant charged with a misdemeanor, the statute being concerned with the compilation and preservation of statistics and records rather than the creation of a new rule of evidence.\nMoore, J., did not participate in the consideration or decision of this case.\nAppeal by defendant pursuant to G.S. 7A-30(1) from decision of the Court of Appeals (5 N.C. App. 338), which found no error in his trial before Seay, J., at 3 March 1969 Criminal Session of Foesyth Superior Court.\nDefendant was charged with the offense of operating a motor vehicle upon the public highways while under the influence of intoxicating liquor. He entered a plea of not guilty.\nThe State offered evidence which tended to show:\nOn the night of 1 December, 1967, at approximately 7:00 o\u2019clock, Deputy Sheriff John Taylor, who was off-duty, saw an automobile run off the road, cross an embankment, and strike a tree. He asked the driver to step out of the car. He smelled the odor of alcohol on the driver, who told the Deputy that he had drunk two beers. Deputy Taylor directed the driver to sit down on the embankment and noticed that he staggered when he walked. The Deputy had someone call the Highway Patrol and began to direct traffic because of a \"live\u201d power line lying in the road. He later noted that the driver had left the scene.\nWhen Patrolman W. A. Ballard arrived, it was determined that the automobile was registered in defendant\u2019s name. Patrolman Ballard then proceeded to defendant\u2019s home, and upon his arrival at about 8:15 he found defendant in a \u201cvery intoxicated condition.\u201d Defendant voluntarily went to the scene of the accident with the officer, and went'from there to the Clerk\u2019s office. On the way to the Clerk\u2019s office Patrolman Ballard advised defendant that if an eyewitness identified him as the driver of the wrecked car, he would be charged with driving under the influence. The officer also testified: \u201cI at that time, advised him of his rights.\u201d Defendant was identified by Deputy Sheriff Taylor as being the driver of the wrecked automobile and defendant was thereupon placed under arrest.\nPatrolman Ballard further testified:\n\u201cI read the warrant to him and offered him a test. At that time his speech was rambling, mumbled. I have his speech marked on my report here. I have \u2018mumbled\u2019 and \u2018slurred\u201d marked.\n\u201cAs to Mr. Strickland\u2019s balance, he needed support. When he was walking, he was stumbling. Several times I had to take hold of him to support him. I only gave Mr. Strickland the balance, the walking test. I asked him. I gave him the finger-to-nose test. He completely missed with both hands. Coins: he fumbled with them. . . .\n\u201cA movie was made of the defendant at the station there. I saw the movie some time in December of \u201967, before this case came up in Traffic Court. I haven\u2019t seen it since. To the best of my remembrance of the movie, it fairly represents the defendant at that time it was taken.\u201d\nThe Solicitor offered the sound moving picture of defendant, made at the station approximately two hours after the wreck, \u201cto illustrate the testimony of Officer Ballard.\u201d\nDefendant entered an \u201cobjection to the movie.\u201d After a brief recess, the court overruled the objection and instructed the jury as follows: \u201c. . . you are to consider these motion pictures that are going to be shown, solely for the purpose of illustrating and explaining the testimony of this witness, and you are not to receive the pictures or view these motion pictures as substantive evidence.\u201d\nDefendant offered evidence which tended to show that he was not the driver of the automobile when it was wrecked; that Patrolman Ballard arrested him at his home at about 10:00 o\u2019clock P.M., and that he had been drinking beer at that time. He also offered evidence of his good reputation.\nThe jury returned a verdict of guilty as charged in the warrant. Defendant appealed.\nAttorney General Morgan and Staff Attorney Giles for the State.\nWhite, Crumpler and Pfefferkorn for defendant." }, "file_name": "0253-01", "first_page_order": 279, "last_page_order": 289 }