{ "id": 8561475, "name": "STATE OF NORTH CAROLINA v. WILLIAM NORMAN BARROW", "name_abbreviation": "State v. Barrow", "decision_date": "1970-03-11", "docket_number": "No. 3", "first_page": "381", "last_page": "390", "citations": [ { "type": "official", "cite": "276 N.C. 381" } ], "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": "170 S.E. 2d 563", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": -1 }, { "cite": "6 N.C. App. 475", "category": "reporters:state", "reporter": "N.C. 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WILLIAM NORMAN BARROW" ], "opinions": [ { "text": "HusKiNS, J.\nAt the commencement of the trial defendant moved to sequester the State\u2019s witnesses and assigns as error the denial of his motion.\nIt is the general rule in North Carolina, in both civil and criminal cases, to separate witnesses and send them out of the hearing of the court when requested. But this is discretionary with the trial judge and may not be claimed as a matter of right. Stansbury, N. C. Evidence \u00a7 20 (2d ed. 1963); State v. Manuel, 64 N.C. 601 (1870); State v. Spencer, 239 N.C. 604, 80 S.E. 2d 670; State v. Love, 269 N.C. 691, 153 S.E. 2d 381. \u201cA judge\u2019s refusal to sequester the State\u2019s witnesses is not reviewable unless an abuse of discretion is shown.\u201d State v. Clayton, 272 N.C. 377, 158 S.E. 2d 557. Accord, State v. Spence, 271 N.C. 23, 155 S.E. 2d 802; State v. Hamilton, 264 N.C. 277, 141 S.E. 2d 506, cert. den. 384 U.S. 1020, 16 L. ed 2d 1044, 86 S. Ct. 1936; 2 Strong, N. C. Index 2d, Criminal Law \u00a7 98 (1967). This is in accord with the great majority of jurisdictions. \u201cReasons for the majority view are the rule that trials should be open to the public, the fact that witnesses have an interest in the course of the litigation, and the danger that the rule might be used to unnecessarily delay and obstruct trials. It has been said that the discretion to exclude witnesses is a sound judicial discretion, and that courts should not arbitrarily refuse to enforce the rule, nor should litigants or lawyers be permitted to require it arbitrarily.\u201d 53 Am. Jur., Trial \u00a7 31 (1945). The record discloses no reason for sequestration of the witnesses, and no abuse of discretion has been shown. This assignment of error has no merit and is overruled.\nDefendant\u2019s second assignment of error is to the admission for illustrative purposes of a photograph showing the body of deceased as it lay in the doorway of the rooming house.\nWe note that inaccuracy of the photograph in any particular is not claimed. It was used to illustrate the testimony of the witness Walter Smith with respect to the position of the body, and the blood surrounding it, as it lay face down in the doorway after having been shot the third time. It was relevant and material and therefore competent for that purpose. \u201cIf a photograph is relevant and material, the fact that it is gory or gruesome, and thus may tend to arouse prejudice, will not alone render it inadmissible.\u201d Stansbury, N. C. Evidence \u00a7 34 (2d ed. 1963); State v. Atkinson, 275 N.C. 288, 167 S.E. 2d 241; State v. Porth, 269 N.C. 329, 153 S.E. 2d 10; State v. Rogers, 233 N.C. 390, 64 S.E. 2d 572; State v. Gardner, 228 N.C. 567, 46 S.E. 2d 824. The holdings of this Court in that respect are in accord with authorities from other jurisdictions. See Annotation, Evidence- \u2014 -Photograph of Corpse, 73 A.L.R. 2d 769. Defendant\u2019s second assignment of error is overruled.\nAn examination of the record is necessary to bring defendant\u2019s next assignment of error into proper focus.\nDuring the presentation of the State\u2019s case, no evidence was elicited from Detective Fesperman concerning a statement made by defendant following his arrest. Although Fesperman testified with respect to his investigation of the crime, the State\u2019s case was developed largely by the testimony of two eyewitnesses. Then defendant, testifying in his own behalf, stated that he went upstairs, got the gun, came back down and went around the house into the front yard; that he shot the deceased when he \u201cjumped out of the chair and went for his pocket.\u201d On cross examination, without objection, defendant stated that he talked to Mr. Fesperman about the case and \u201csigned a written statement, but it wasn\u2019t 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. . . . The first time I shot the man, he was on the porch and I was on the walkway at the steps.\u201d Defendant denied all recollection of shooting the deceased more than\" once. Thereupon the following cross examination took place:\n\u201cQ. But when you (the defendant) talked with Mr. Fes-perman at 9:30 that night, which was within a hundred and twenty minutes after it happened, did you or did you not tell him that after you 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?\nMR. ODOM: Objection. It appears the Solicitor is reading from a statement and trying to get in the back door what he couldn\u2019t get in the front door.\nTHE COURT: Objection overruled.\u201d\nDEFENDANT\u2019S EXCEPTION #10 (R p 33)\n\u201cQ. When you (the defendant) talked with Mr. Fesperman at the police station at 9:30 on the night of May 8, 1969, you did tell him that you shot the man the third time, didn\u2019t you?\nA. I don\u2019t remember whether I did or not.\nQ. Well, let me show you this paperwriting and ask you whether or not it refreshes your recollection?\nA. I know I \u2014\nMR. ODOM: I\u2019m going to object to the paperwriting, your Honor, and move to strike.\nTHE COURT: Well, objection sustained.\nMR. SCHWARTZ: Your Honor, we want to show if he made any prior inconsistent statements about this.\nTHE COURT: He said he didn\u2019t remember.\nMR. SCHWARTZ: Well, I would like to see if I could refresh his recollection.\nTHE COURT: I\u2019ll let you ask him if it refreshes his recollection.\nMR. SCHWARTZ: Yes, sir.\nQ. (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.\nMR. ODOM: I object again to the reference to the statement used by the Solicitor.\nTHE COURT: Overruled.\nMR. ODOM: Exception.\nA. These phrases here was supposed to be made what first . happened.\nTHE COURT: Objection sustained.\nQ. (BY MR. SCHWARTZ) Well, did you tell Mr. Fesper-man then that \u2014\nTHE COURT: Wait just a minute. Now, members of the jury, you will not consider any statements that the defendant has made about the paperwriting, whether it refreshes his memory or whether it doesn\u2019t.\nQ. (BY MR. SCHWARTZ) Well, what did you tell Mr. Fesperman the night that this happened at the police station, Mr. Barrow?\nA. He told me that I didn\u2019t have to make any statements if I didn\u2019t want to, you know. I remember his telling me that. And he asked me some details on it, and I told him a few things. He asked me if I could think of any more to tell and I said no.\nQ. What were those few things that you told him?\nA. I told him when he first came up there \u2014\nTHE COURT: Objection. The Court on its own motion sustains the objection and orders it stricken from the record, anything about that examination as to what\u2019s on that paper. Ladies and gentlemen of the jury, you will not consider any of the examination at all about what\u2019s on that paper.\u201d\nDEFENDANT\u2019S EXCEPTION #11 (R pp 34, 35)\nDefendant contends the court.erred in allowing the solicitor, over objection, to cross examine him regarding an incriminating statement he allegedly made to Detective Fesperman while in custody without previously having determined on voir dire that he had been warned of his constitutional rights and had voluntarily, knowingly and intelligently waived them, relying on Miranda v. Arizona, 384 U.S. 436, 16 L. ed 2d 694, 86 S. Ct. 1602 (1966); Jackson v. Denno, 378 U.S. 368, 12 L. ed 2d 908, 84 S. Ct. 1774 (1964); and State v. Edwards, 274 N.C. 431, 163 S.E. 2d 767 (1968).\nWe decline to pass upon the constitutional question posed by this assignment. The court finally sustained defendant\u2019s objection, ordered all testimony with reference to defendant\u2019s alleged statement stricken from the record, and instructed the jury not to consider \u201cany of the examination at all about what\u2019s on that paper.\u201d Our decisions hold that where the court sustains objection to questions asked by the solicitor, no prejudice results. State v. Butler, 269 N.C. 483, 153 S.E. 2d 70. Ordinarily, merely asking the question will not be held prejudicial. State v. Williams, 255 N.C. 82, 120 S.E. 2d 442; State v. Hoover, 252 N.C. 133, 113 S.E. 2d 281. Compare State v. Phillips, 240 N.C. 516, 82 S.E. 2d 762.\nFurthermore, when all evidence of a particular character is stricken and the jury instructed not to consider it, any prejudice is ordinarily cured, State v. Burton, 256 N.C. 464, 124 S.E. 2d 108; State v. Hamer, 240 N.C. 85, 81 S.E. 2d 193; State v. Perry, 226 N.C. 530, 39 S.E. 2d 460, unless the evidence stricken was so highly prejudicial that its effect cannot be erased from the minds of the jurors \u2014 in which event error in its admission is not cured by its withdrawal and instructions not to consider. State v. Poye, 254 N.C. 704, 120 S.E. 2d 169; State v. Frizzelle, 254 N.C. 457, 119 S.E. 2d 176; State v. Aldridge, 254 N.C. 297, 118 S.E. 2d 766; State v. Choate, 228 N.C. 491, 46 S.E. 2d 476. The evidence stricken here was not highly prejudicial. In fact, it was not prejudicial at all. Two eyewitnesses had already testified that defendant shot deceased three times. Defendant himself had already testified on both direct and cross examination that he shot deceased once and didn\u2019t recall shooting a second or third time. The stricken evidence at most could only serve to impeach defendant\u2019s professed loss of memory about the second and third shots. This was relatively unimportant because there was abundant evidence to support the main contentions of the .State. The admission of evidence, even though technically incompetent, will not be held prejudicial unless it is made to appear that defendant was prejudiced thereby and that a different result would have likely ensued had the evidence been excluded. State v. Williams, 275 N.C. 77, 165 S.E. 2d 481; Gasque v. State, 271 N.C. 323, 156 S.E. 2d 740; State v. Temple, 269 N.C. 57, 152 S.E.-2d 206; State v. Rowland, 263 N.C. 353, 139 S.E. 2d 661; State v. Norris, 242 N.C. 47, 86 S.E. 2d 916; State v. Bennett, 237 N.C. 749, 76 S.E. 2d 42. \u201cThe burden is on defendant to show not only that there was error but also that the error affected the result adversely to him.\u201d State v. Rowland, supra. No such showing is made here; therefore, this assignment, based on Exceptions 10 and 11, is overruled.\nDefendant\u2019s fourth and fifth assignments relate to various errors allegedly committed in the charge. Referring to defendant\u2019s testimony, the court charged: \u201cMembers of the jury, when you come to consider his evidence, the Court instructs you that it is your duty to. carefully consider and scrutinize his testimony, he having gone upon the witness stand and testified in his own' behalf. So you, the jury, ought to take into consideration the interest which the defendant, William Norman Barrow, has in the result of this action and in your verdict in the case. But the Court instructs you that the \u2022law requiring you to scrutinize his testimony does not require that you impeach such evidence or that you reject it, because if you find, after considering the testimony of the defendant in this case, that he has told you the truth, then you will give .the same weight and credibility to his testimony as you would to any unbiased or disinterested witness. . . .\u201d Defendant says this charge focused attention upon his veracity and was prejudicial.\nThe challenged instruction finds approval in the decisions of this Court. State v. Turner, 253 N.C. 37, 116 S.E. 2d 194; State v. Worrell, 232 N.C. 493, 61 S.E. 2d 254; State v. Parsons, 231 N.C. 599, 58 S.E. 2d 114; State v. Hightower, 226 N.C. 62, 36 S.E. 2d 649; State v. Redfern, 223 N.C. 561, 27 S.E. 2d 441; State v. McKinnon, 223 N.C. 160, 25 S.E. 2d 606; State v. Holland, 216 N.C. 610, 6 S.E. 2d 217; State v. Davis, 209 N.C. 242, 183 S.E. 420; State v. Anderson, 208 N.C. 771, 182 S.E. 643; State v. Deal, 207 N.C. 448, 177 S.E. 332.\nDefendant excepts to the following portion of the charge: \u201cIf you find from the evidence and beyond a reasonable doubt that the defendant William Barrow intentionally killed the deceased with a deadly weapon, and the Court instructs you that the shotgun described in evidence in this case is a deadly weapon, the law raises two presumptions against the defendant. First, that the killing is unlawful, and, second, that it was done with malice, and an unlawful killing with malice is murder in the second degree, and the defendant would be guilty of murder in the second degree unless he can satisfy you, the jury, of the truth or fact which justifies his act or mitigates it to manslaughter. The burden in that event would be on the defendant to establish such facts to the satisfaction of you, the jury; now, not beyond a reasonable doubt, nor by the greater weight of the evidence, but to the satisfaction of the jury, unless they arise out of the evidence against him; that is, if he would rebut the presumption arising from such showing, he must establish to the satisfaction of the jury the legal provocation which will take from the crime the element of malice and thus reduce it to manslaughter or which will excuse it altogether on the grounds of self-defense, and this, ladies and gentlemen, may arise out of the evidence offered against him.\u201d Defendant says this charge placed a burden of proof upon him which should legally be placed upon the State and was thus prejudicial.\nWhen the State satisfies the jury from the evidence beyond a reasonable doubt that defendant intentionally shot the deceased and thereby proximately caused his death, the law raises two presumptions against him: First, that the killing was unlawful; and, second, that it was done with malice; and an unlawful killing with malice is murder in the second degree. State v. Cooper, 273 N.C. 51, 159 S.E. 2d 305; State v. Todd, 264 N.C. 524, 142 S.E. 2d 154; State v. Phillips, 264 N.C. 508, 142 S.E. 2d 337; State v. Johnson, 261 N.C. 727, 136 S.E. 2d 84; State v. Carter, 254 N.C. 475, 119 S.E. 2d 461; State v. Downey, 253 N.C. 348, 117 S.E. 2d 39; State v. Revis, 253 N.C. 50, 116 S.E. 2d 171. \u201cThe law then casts upon the defendant the burden of showing to the satisfaction of the jury, if he can do so \u2014 not by the greater weight of the evidence nor beyond a reasonable doubt, but simply to the satisfaction of the jury \u2014 from all the evidence, facts and circumstances, the legal provocation that will rob the crime of malice and thus reduce it to manslaughter, or that will excuse it altogether upon the ground of self-defense. . . . The legal provocation that will rob the crime of malice and thus reduce it to manslaughter, and self-defense, are affirmative pleas, with the burden of satisfaction cast upon the defendant.\u201d State v. Todd, supra. Thus the challenged instruction is supported by our decisions, and defendant\u2019s exception thereto is overruled. See State v. Gordon, 241 N.C. 356, 85 S.E. 2d 322.\nThe remaining assignments relating to the charge are equally devoid of merit. The charge as a whole is free from prejudicial error.\nThe record discloses a senseless, unprovoked killing. There is little evidence to support a plea of self-defense. In fact, defendant\u2019s own testimony is sufficient to carry the case to the jury and support a conviction of murder in the second degree.\nThe decision of the Court of Appeals upholding the verdict and judgment is\nAffirmed.", "type": "majority", "author": "HusKiNS, J." } ], "attorneys": [ "Weinstein, Waggoner, Sturges & Odom, by T. LaFontine Odom and Wallace C. Tyser, Jr., Attorneys 'for defendant appellant.", "Robert Morgan, Attorney General, by James F. Bullock, Deputy Attorney General, and (Mrs.) Christine Y. Denson, Staff Attorney, for the State." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. WILLIAM NORMAN BARROW\nNo. 3\n(Filed 11 March 1970)\n1. Criminal Law \u00a7 98; Trial \u00a7 5\u2014 sequestration of witnesses \u2014 discretionary with court\nIt is the general rule in this State, in both civil and criminal cases, to separate witnesses and send them out of the hearing of the Court when requested, but this practice is discretionary with the trial judge and may not be claimed as a matter of right.\n2. Criminal Law \u00a7 98\u2014 motion to sequester \u2014 review\nA judge\u2019s refusal to sequester the State\u2019s witnesses is not reviewable unless an abuse of discretion is shown.\n3. Criminal Law \u00a7 43; Homicide \u00a7 20\u2014 photograph of the deceased \u2014 admissibility\nIn a prosecution for homicide, the trial court properly admitted the photograph used by a State\u2019s witness to illustrate his testimony relating to the position and appearance of the deceased\u2019s body.\n4. Criminal Law \u00a7 43\u2014 gruesome photographs \u2014 admissibility\nIf a photograph is relevant and material, the fact that it is gory or gruesome, and thus may tend to arouse prejudice, will not alone render it inadmissible.\n.5. Criminal Law \u00a7\u00a7 75, 86, 89\u2014 impeachment of defendant \u2014 use of statement not previously admitted in evidence \u2014 harmless error\nIn a homicide prosecution in which the State offered eyewitness testimony that the defendant shot the deceased three times and the defendant on direct examination denied any recollection that he shot the deceased more than once, the defendant was not prejudiced by the solicitor\u2019s attempt to cross examine him with regard to his purported in-custody statement, not previously introduced, that he had shot the deceased three times, where the trial court, upon defendant\u2019s objection, struck all reference to the purported statement and instructed the jury not to consider it.\n6. Criminal haw \u00a7 169\u2014 questions of solicitor \u2014 objection \u2014 prejudice\nWhere the court sustains objection to questions asked by the solicitor, no prejudice results.\n7. Criminal Law \u00a7 169\u2014 striking of evidence \u2014 effect on jury\nWhen all evidence of a particular character is stricken and the jury instructed not to consider it, any prejudice is ordinarily cured, unless the evidence stricken was so highly prejudicial that its effect cannot be erased from the minds of the jurors.\n8. Criminal Law \u00a7 169\u2014 admission of technically incompetent evidence \u2014 harmless error\nThe admission of evidence, even though technically incompetent, will not be held prejudicial unless it is made to appear that defendant was prejudiced thereby and that a different result would have likely ensued had the evidence been excluded.\n9. Criminal Law \u00a7 117\u2014 instructions \u2014 scrutiny of defendant\u2019s testimony\nThe trial court may properly instruct the jury to scrutinize carefully the testimony of defendant and to take into consideration the interest which he has in the verdict, but that if after such scrutiny the jury finds he was telling the truth, to give his testimony the same weight and credibility as that of any disinterested witness.\n10. Homicide \u00a7 24\u2014 instructions \u2014 presumptions arising from intentional use of deadly weapon \u2014 proof of mitigation or excuse\nIn a second-degree murder prosecution, the trial court properly instructed the jury that if they found from the evidence and beyond a reasonable doubt that the defendant killed the deceased with a deadly weapon, then the presumptions arise that the killing was unlawful and that it was done with malice, thereby constituting murder in the second degree unless the defendant proved to the satisfaction of the jury the facts which would justify his act or mitigate it to manslaughter.\nAppeal by defendant from decision of the Court of Appeals upholding judgment of Beal, S.J., at the 2 June 1969 Regular Schedule\u201cD\u201d Session of Mecklenburg Superior Court.\nCriminal action upon a bill of indictment charging defendant with the murder of John Smith on 8 May 1969. The solicitor sought only a verdict of guilty of murder in the second degree or manslaughter,, as the evidence might disclose.\nThe State\u2019s evidence tends to show that defendant and others lived in a two-story rooming house at 204 North McDowell Street in the City of Charlotte. The deceased, John Smith, lived next door. On 8 May 1969 about 7:30 p.m. defendant and John Smith were sitting on the front porch of the rooming house drinking spiked Kool-Aid from the same jar and talking. After consuming the contents of that jar, defendant mixed Kool-Aid with grain alcohol in another jar and the two men continued to drink. There was no quarrel, disturbance or confusion between them. They were just sitting there talking and drinking when defendant arose, entered the rooming house, went upstairs to his room, obtained a single-barreled shotgun, returned downstairs, exited through a side door, went to the front of the house and advanced to a point within a few feet of John Smith who was still in a chair on the porch. Then, taking his time, defendant aimed the gun at John Smith and shot him. Smith arose from his chair, tried to enter the front door but was unable to get it open, and fell to the floor. Defendant then reloaded his gun, walked upon the porch to a point closer to Smith, and shot him again. Defendant then went around the house, re-entered at the side door, went upstairs, and returned immediately to the front porch where he shot John Smith a third time as he lay on the floor in the doorway. Smith died where he lay as a result of the gunshot wounds. No knife, gun or. other weapon of any kind was found on or about his person.\nAs a witness in his own behalf, defendant testified that John Smith had never been to the rooming house before this day; that he was sitting on the porch drinking Kool-Aid mixed with grain alcohol when John Smith came up, asked for a drink and was given one. Defendant testified that Smith then wanted to borrow some money and, upon refusal, said \u201cI\u2019ll take my knife and cut off your head if you don\u2019t give it to me.\u201d Smith then pulled his knife, according to defendant, threatened defendant with it and stated he would cut off defendant\u2019s head if he didn\u2019t let him have the money. Smith was called away to answer a telephone but said he would be back. He returned within five minutes, took a chair on the porch beside defendant and asked for -more of the spiked Kool-Aid. Defendant refused to give him another drink whereupon Smith -again threatened him about the money. Defendant then arose, went upstairs and got the gun, and came back \u201cto scare him off the porch.\u201d When defendant came around to the front yard with the gun, John Smith jumped out of his chair and \u201cwent for his pocket.\u201d He started his hand in his pocket but \u201cnever got nothing out of his pocket. That is when I shot him. I was standing about four feet from the first step when I shot him. John Smith was standing up by the chair, that white chair ... on the right hand side of the porch. He didn\u2019t say anything to me. ... I never had any fusses or fights with him before.\u201d Defendant further testified that he remembered shooting Smith one time on the front porch but did not remember shooting him a second or third time.\nThe jury returned a verdict of guilty of murder in the second degree and the court imposed a prison sentence of thirty years. Defendant appealed to the Court of Appeals where the judgment was upheld, Brock, J., dissenting. See 6 N.C. App. 475, 170 S.E. 2d 563. Defendant, pursuant to G.S. 7A-30(2), appealed as of right to the Supreme Court assigning errors noted in the opinion.\nWeinstein, Waggoner, Sturges & Odom, by T. LaFontine Odom and Wallace C. Tyser, Jr., Attorneys 'for defendant appellant.\nRobert Morgan, Attorney General, by James F. Bullock, Deputy Attorney General, and (Mrs.) Christine Y. Denson, Staff Attorney, for the State." }, "file_name": "0381-01", "first_page_order": 407, "last_page_order": 416 }