{ "id": 8561675, "name": "STATE OF NORTH CAROLINA v. ALBERT CROWDER, JR.", "name_abbreviation": "State v. Crowder", "decision_date": "1974-03-13", "docket_number": "No. 7", "first_page": "42", "last_page": "56", "citations": [ { "type": "official", "cite": "285 N.C. 42" } ], "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": "194 S.E. 2d 19", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1973, "opinion_index": 0 }, { "cite": "282 N.C. 431", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566644 ], "year": 1973, "opinion_index": 0, "case_paths": [ "/nc/282/0431-01" ] }, { "cite": "202 S.E. 2d 721", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1974, "pin_cites": [ { "page": "747" } ], "opinion_index": 0 }, { "cite": "284 N.C. 625", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564742 ], "weight": 2, "year": 1974, "pin_cites": [ { "page": "666" } ], "opinion_index": 0, "case_paths": [ "/nc/284/0625-01" ] }, { "cite": "385 U.S. 942", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11399971, 11399689, 11399786, 11399883, 11400015, 11399925, 11399832, 11399737 ], "year": 1966, "opinion_index": 0, "case_paths": [ "/us/385/0942-07", "/us/385/0942-01", "/us/385/0942-03", "/us/385/0942-05", "/us/385/0942-08", "/us/385/0942-06", "/us/385/0942-04", "/us/385/0942-02" ] }, { "cite": "218 Tenn. 259", "category": "reporters:state", "reporter": "Tenn.", "case_ids": [ 8528252 ], "weight": 2, "year": 1966, "opinion_index": 0, "case_paths": [ "/tenn/218/0259-01" ] }, { "cite": "379 U.S. 1000", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11810346, 11810058, 11810410, 11810259, 11810196, 11810135, 11809979 ], "year": 1965, "opinion_index": 0, "case_paths": [ "/us/379/1000-06", "/us/379/1000-02", "/us/379/1000-07", "/us/379/1000-05", "/us/379/1000-04", "/us/379/1000-03", "/us/379/1000-01" ] }, { "cite": "397 P. 2d 924", "category": "reporters:state_regional", "reporter": "P.2d", "case_ids": [ 10579783 ], "year": 1964, "opinion_index": 0, "case_paths": [ "/p2d/397/0924-01" ] }, { "cite": "139 Colo. 388", "category": "reporters:state", "reporter": "Colo.", "case_ids": [ 78694 ], "weight": 2, "year": 1959, "opinion_index": 0, "case_paths": [ "/colo/139/0388-01" ] }, { "cite": "153 S.E. 2d 10", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1967, "opinion_index": 0 }, { "cite": "269 N.C. 329", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8563543 ], "year": 1967, "opinion_index": 0, "case_paths": [ "/nc/269/0329-01" ] }, { "cite": "167 S.E. 2d 241", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1969, "opinion_index": 0 }, { "cite": "275 N.C. 288", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8558608 ], "year": 1969, "opinion_index": 0, "case_paths": [ "/nc/275/0288-01" ] }, { "cite": "46 S.E. 2d 824", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1948, "opinion_index": 0 }, { "cite": "228 N.C. 567", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8627518 ], "year": 1948, "opinion_index": 0, "case_paths": [ "/nc/228/0567-01" ] }, { "cite": "179 S.E. 2d 410", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "opinion_index": 0 }, { "cite": "278 N.C. 168", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559899 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/nc/278/0168-01" ] }, { "cite": "180 S.E. 2d 745", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "opinion_index": 0 }, { "cite": "278 N.C. 334", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560474 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/nc/278/0334-01" ] }, { "cite": "193 S.E. 2d 65", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "282 N.C. 412", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565449 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/nc/282/0412-01" ] }, { "cite": "187 S.E. 2d 93", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "280 N.C. 665", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573255 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/nc/280/0665-01" ] }, { "cite": "171 S.E. 2d 453", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1970, "opinion_index": 0 }, { "cite": "276 N.C. 142", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560417 ], "year": 1970, "opinion_index": 0, "case_paths": [ "/nc/276/0142-01" ] }, { "cite": "194 S.E. 482", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1938, "opinion_index": 0 }, { "cite": "212 N.C. 725", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8619002 ], "year": 1938, "opinion_index": 0, "case_paths": [ "/nc/212/0725-01" ] }, { "cite": "49 S.E. 2d 469", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1948, "opinion_index": 0 }, { "cite": "229 N.C. 201", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 12165227 ], "year": 1948, "opinion_index": 0, "case_paths": [ "/nc/229/0201-01" ] }, { "cite": "42 S.E. 2d 686", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1947, "opinion_index": 0 }, { "cite": "227 N.C. 475", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626157 ], "year": 1947, "opinion_index": 0, "case_paths": [ "/nc/227/0475-01" ] }, { "cite": "154 S.E. 2d 59", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1967, "opinion_index": 0 }, { "cite": "270 N.C. 270", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567155 ], "year": 1967, "opinion_index": 0, "case_paths": [ "/nc/270/0270-01" ] }, { "cite": "164 S.E. 2d 190", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1968, "opinion_index": 0 }, { "cite": "274 N.C. 498", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560773 ], "year": 1968, "opinion_index": 0, "case_paths": [ "/nc/274/0498-01" ] }, { "cite": "187 S.E. 2d 22", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "280 N.C. 674", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573282 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/nc/280/0674-01" ] }, { "cite": "161 S.E. 2d 568", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1968, "opinion_index": 0 }, { "cite": "274 N.C. 106", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559459 ], "year": 1968, "opinion_index": 0, "case_paths": [ "/nc/274/0106-01" ] }, { "cite": "165 S.E. 2d 481", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1969, "opinion_index": 0 }, { "cite": "275 N.C. 77", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8557806 ], "year": 1969, "opinion_index": 0, "case_paths": [ "/nc/275/0077-01" ] }, { "cite": "174 S.E. 2d 487", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1970, "opinion_index": 0 }, { "cite": "276 N.C. 598", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8563091 ], "year": 1970, "opinion_index": 0, "case_paths": [ "/nc/276/0598-01" ] }, { "cite": "183 S.E. 2d 671", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "opinion_index": 0 }, { "cite": "279 N.C. 413", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569338 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/nc/279/0413-01" ] }, { "cite": "185 S.E. 2d 652", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "280 N.C. 181", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570781 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/nc/280/0181-01" ] }, { "cite": "195 S.E. 2d 534", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1973, "opinion_index": 0 }, { "cite": "283 N.C. 175", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8558286 ], "year": 1973, "opinion_index": 0, "case_paths": [ "/nc/283/0175-01" ] }, { "cite": "391 U.S. 510", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1767501 ], "weight": 3, "year": 1968, "opinion_index": 0, "case_paths": [ "/us/391/0510-01" ] } ], "analysis": { "cardinality": 1378, "char_count": 33598, "ocr_confidence": 0.59, "pagerank": { "raw": 5.006520203094261e-07, "percentile": 0.936200913644 }, "sha256": "9137ac0870056b2233bda9c0a393aad0c58a54d9b48c1a383c616de7a554aeb7", "simhash": "1:b00bc2f29626747c", "word_count": 5555 }, "last_updated": "2023-07-14T22:42:08.335271+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Chief Justice Bobbitt, Justice Higgins and Justice Sharp dissent as to death sentence and vote to remand for imposition of a sentence of life imprisonment for the reasons stated in the dissenting opinion of Chief Justice Bobbitt in State v. Jarrette, 284 N.C. 625, 666, 202 S.E. 2d 721, 747 (1974)." ], "parties": [ "STATE OF NORTH CAROLINA v. ALBERT CROWDER, JR." ], "opinions": [ { "text": "HUSKINS, Justice.\nOver defendant\u2019s objection the solicitor was permitted to ask each prospective juror the following question: \u201cDo you have any moral or religious scruples or beliefs against capital punishment?\u201d Ten jurors answered no, one answered yes but said that after hearing all the evidence and listening to the case she could consider a verdict of guilty in a capital case, and one said it would depend upon the circumstances. The record shows that no juror was excused for cause by either the solicitor or defense counsel. Defendant contends the trial court erred in allowing the jurors to be questioned concerning their views on capital punishment. This constitutes defendant\u2019s first assignment of error.\nWith respect to jury selections in capital cases, Witherspoon v. Illinois, 391 U.S. 510, 20 L.Ed. 2d 776, 88 S.Ct. 1770 (1968), establishes two things: (1) veniremen may not be challenged for cause simply because they voice general objections to the death penalty or express conscientious or religious scruples against its infliction; and (2) veniremen who are unwilling to consider all of the penalties provided by law and who are irrevocably committed, before the trial has begun, to vote against the death penalty regardless of the facts and circumstances that might emerge in the course of the trial may be challenged for cause on that ground.\nSince the decision in Witherspoon this Court has held in many cases that prospective jurors in a capital case may be asked whether they have moral or religious scruples against capital punishment; if so, whether they are willing to consider all of the penalties provided by law, or are irrevocably committed to vote against the death penalty regardless of the facts and circumstances that might be revealed by the evidence. See e.g., State v. Washington, 283 N.C. 175, 195 S.E. 2d 534 (1973) ; State v. Frazier, 280 N.C. 181, 185 S.E. 2d 652 (1972) ; State v. Doss, 279 N.C. 413, 183 S.E. 2d 671 (1971) ; State v. Sanders, 276 N.C. 598, 174 S.E. 2d 487 (1970) ; State v. Williams, 275 N.C. 77, 165 S.E. 2d 481 (1969); State v. Peele, 274 N.C. 106, 161 S.E. 2d 568 (1968).\nIn order to insure a fair trial before an unbiased jury, it is entirely proper in a capital case for both the State and the defendant to make appropriate inquiry concerning a prospective juror\u2019s moral or religious scruples, beliefs, and attitudes toward capital punishment. Defendant\u2019s first assignment of error is overruled.\nA .38 Smith and Wesson pistol was identified as State\u2019s Exhibit 2 and admitted into evidence over defendant\u2019s objection. Defendant contends the pistol was improperly admitted since it was never identified as the murder weapon. This constitutes defendant\u2019s second assignment of error.\nAs a general rule weapons may be admitted in evidence \u201cwhere there is evidence tending to show that they were used in the commission of a crime.\u201d State v. Wilson, 280 N.C. 674, 187 S.E. 2d 22 (1972). Any article shown by the evidence to have been used in connection with the commission of the crime charged is competent and properly admitted into evidence. State v. Sneeden, 274 N.C. 498, 164 S.E. 2d 190 (1968). \u201cSo far as the North Carolina decisions go, any object which has a relevant connection with the case is admissible in evidence, in both civil and criminal trials. Thus, weapons may be admitted where there is evidence tending to show that they were used in the commission of a crime or in defense against an assault.\u201d 1 Stans-bury\u2019s North Carolina Evidence \u00a7 118 (Brandis rev. 1973).\nApplying these legal principles to the evidence in this case, we hold that State\u2019s Exhibit 2 was properly admitted. Sergeant Hinton identified State\u2019s Exhibit 2 as the pistol he found in the parking lot at King\u2019s Lounge about one and one-half hours after the shooting. Officer Holder testified that the entire parking area was not searched immediately after the shooting due to crowd control problems and the large number of vehicles in the area. The pistol, which contained four full rounds and one empty cartridge, was found approximately four to six parking spaces from the spot where the deceased was shot. Milton Hunter, an eyewitness to the shooting, testified that defendant told deceased he had \u201ca .38\u201d for her just before the shot was fired; that he didn\u2019t see what happened to the gun afterwards; and that State\u2019s Exhibit 2 resembles the gun he saw defendant use. Deborah Bryant, when shown State\u2019s Exhibit 2, testified: \u201cI have seen defendant Albert Crowder with a pistol before. It was similar to that one over at his house one night. It looked like that one to me. It was about a week before March 4.\u201d All this evidence tends to show a relevant connection between State\u2019s Exhibit 2 and the murder of Peggy Ann Bryant. The weapon was properly admitted. Defendant\u2019s second assignment of error is overruled.\nJacquelyn Otelie Bryant, sister of the deceased, testified that defendant had been dating the deceased from July or August 1972 until the date she was shot. The solicitor then asked the witness if she knew of her own knowledge where defendant and deceased met. Defendant\u2019s objection to that question was overruled and the witness replied: \u201cShe met him in Caledonia in prison.\u201d Objection was then sustained and the jury was instructed not to consider the answer. At defendant\u2019s request the jury was excused and defendant moved for mistrial on the ground that the answer was so highly prejudicial the error could not be cured by the court\u2019s instructions. Denial of this motion constitutes defendant\u2019s third assignment of error.\nDefendant relies on State v. Aycoth, 270 N.C. 270, 154 S.E. 2d 59 (1967), in support of his motion for mistrial. There, Aycoth and his co-defendant John Shadrick were on trial for armed robbery. Deputy Sheriff Fowler was asked if he knew who owned the automobile which was in Aycoth\u2019s possession at the time of his arrest. The deputy replied that at the time Aycoth had been arrested on another charge he had said it was his car, and then added: \u201cHis wife asked me to go search the car and see if I could find some articles that was left in the car sitting in the yard when he was indicted for murder.\u201d (Emphasis added.) Defendant\u2019s objection and motion to strike were allowed, and the court instructed the jury not to consider what defendant\u2019s wife had said. Defendant\u2019s motion for a mistrial was denied. This Court awarded a new trial, saying: \u201cThe unresponsive statement of Fowler informed the jury that Aycoth had been indicted for murder. . . . Subsequent incidents tend to emphasize rather than dispel the prejudicial effect of Fowler\u2019s testimony. Shadrick testified the arresting officer answered his inquiry as to why he was being arrested by saying, \u2018Running around with Aycoth is enough.\u2019 Too, the solicitor, in cross-ex-aming Shadrick, asked (1) whether Shadrick had become acquainted with Aycoth in prison, and (2) whether Shadrick knew Aycoth while Shadrick was in prison. . . . Being of the opinion the incompetent evidence to the effect Aycoth had been or was under indictment for murder was of such serious nature that its prejudicial effect was not erased by the court\u2019s quoted instruction, we are constrained to hold that Aycoth\u2019s motion for a mistrial should have been granted.\u201d (Emphasis added.)\nOrdinarily, where objectionable evidence is withdrawn and the jury instructed not to consider it no error is committed. State v. Davenport, 227 N.C. 475, 42 S.E. 2d 686 (1947). The rule is aptly stated in State v. Strickland, 229 N.C. 201, 49 S.E. 2d 469 (1948), as follows: \u201cIn appraising the effect of incompetent evidence once admitted and afterwards withdrawn, the Court will look to the nature of the evidence and its probable influence upon the minds of the jury in reaching a verdict. In some instances because of the serious character and gravity of the incompetent evidence and the obvious difficulty in erasing it from the mind, the court has held to the opinion that a subsequent withdrawal did not cure the error. But in other cases the trial courts have freely exercised the privilege, which is not only a matter of custom but almost a matter of necessity in the supervision of a lengthy trial. Ordinarily where the evidence is withdrawn no error is committed.\u201d (Citations omitted.)\nIt is readily apparent that substantial differences distinguish this case from Aycoth. In the latter, the objectionable statement was that Aycoth had been indicted for murder. Here, the statement was only that defendant had met deceased in Caledonia in prison. While the statement does suggest that defendant may have been in prison, it has other connotations as well: Who was in prison \u2014 defendant, deceased, or both? Furthermore, no subsequent events tended to emphasize this aspect of the matter. In fact, the subject was not mentioned again. This evidence, therefore, may not be deemed so inherently prejudicial that its initial impact could not be erased by the judge\u2019s prompt instruction: \u201cLadies and gentlemen of the jury, do not consider the answer to that question.\u201d\n\u201c[0]ur system for the administration of justice through trial by jury is based upon the assumption that the trial jurors are men of character and sufficient intelligence to fully understand and comply with the instructions of the court, and are presumed to have done so.\u201d State v. Ray, 212 N.C. 725, 194 S.E. 482 (1938). We hold that the prejudicial effect, if any, of the evidence under discussion was removed when that evidence was withdrawn and the jury instructed not to consider it. This accords with recent decisions of this Court, including State v. Moore, 276 N.C. 142, 171 S.E. 2d 453 (1970), and State v. Self, 280 N.C. 665, 187 S.E. 2d 93 (1972). Moreover, the properly admitted evidence of guilt is so overwhelming, and the prejudicial effect of the stricken evidence is so insignificant by comparison, that the occurrence complained of in this assignment was harmless beyond a reasonable doubt. Defendant\u2019s third assignment of error is overruled.\nA photograph of the nude body of deceased taken in the morgue was admitted over objection to illustrate the testimony of Officer Holder of the City-County Identification Bureau. Defendant contends this photograph was inflammatory and prejudicial, and its admission constitutes his fourth assignment of error.\nPhotographs are admissible in this State to illustrate the testimony of a witness, and their admission for that purpose under proper limiting instructions is not error. State v. Duncan, 282 N.C. 412, 193 S.E. 2d 65 (1972) ; State v. Cutshall, 278 N.C. 334, 180 S.E. 2d 745 (1971) ; State v. Atkinson, 278 N.C. 168, 179 S.E. 2d 410 (1971) ; State v. Gardner, 228 N.C. 567, 46 S.E. 2d 824 (1948). See generally 1 Stansbury\u2019s North Carolina Evidence \u00a7 34 (Brandis rev. 1973).\nThe fact that a photograph may depict a horrible, gruesome or revolting scene, indicating a vicious, calculated act of cruelty, malice or lust, does not render it incompetent. When such photograph is properly authenticated as a correct portrayal of conditions observed and related by the witness who uses it to illustrate his testimony, it is admissible for that purpose. State v. Atkinson, 275 N.C. 288, 167 S.E. 2d 241 (1969) ; State v. Porth, 269 N.C. 329, 153 S.E. 2d 10 (1967). The photograph having been used in accordance with the rule, defendant\u2019s fourth assignment is without merit and is overruled.\nDefendant\u2019s fifth, sixth and seventh assignments of error are addressed to evidence concerning gunshot wipings and the gunshot residue test based thereon. The fifth assignment presents the question whether SBI Agent Sampson, who secured the wipings, was qualified to take them.\nLee Edward Sampson, a Special Agent with the State Bureau of Investigation, took gunshot wipings from defendant\u2019s hands during the early morning hours of 5 March 1973. This agent testified that in taking the wipings he used the kit supplied by the SBI Chemical Laboratory and followed the instructions and the procedures contained in that kit.\nThe record shows that Agent Sampson had two years of college training, had worked for the Federal Bureau of Investigation in its Fingerprint Identification Division for one year and had been an agent with the State Bureau of Investigation for two years and five months at the time he took the wipings. He had been personally instructed in the procedure to be followed by R. D. Cone, the SBI chemist who wrote the instructions contained in all gunshot residue wiping kits used by the SBI.\nThe procedure for taking the wipings is not \u201chighly technical\u201d as defendant contends. It is a relatively simple matter to follow the instructions, take the wipings, and turn them over to a qualified chemist for analysis and testing. That is all Agent Sampson did, and he was qualified by training and experience to perform that simple task. His background in technical police investigatory work and his personal instruction by a chemist who was expert in the field of gunshot residue tests insured the exercise on Agent Sampson\u2019s part of the utmost care in taking the wipings. Defendant\u2019s fifth assignment is without merit.\nDefendant\u2019s sixth assignment asserts error by the court in accepting into evidence an instruction sheet contained in a gunshot wiping kit without evidence that it was in fact the same sheet used by Agent Sampson in taking the wipings from defendant\u2019s hands. R. D. Cone, a forensic chemist for the SBI Chemical Laboratory with a Bachelor of Science Degree from North Carolina State University and a Master of Science Degree from Michigan State University, and with fifty semester hours of chemistry with major emphasis of study in the area of microbiology and biochemistry, testified that he authored the instructions placed in all SBI gunshot residue wiping kits. After outlining the procedure followed in taking a wiping, he identified a document as an accurate copy of the instructions contained in the kits. Then, over objection, he read the instructions to the jury. Defendant contends there was no evidence that it was the same instruction sheet used by Agent Sampson in taking the wipings and, under the best evidence rule, it was error to allow its introduction into evidence.\nThe instructions, in pertinent part, read as follows:\n\u201cInstructions for collecting gunshot residue. North Carolina State Bureau of Investigation, Raleigh, North Carolina. The following procedure should be used to swab surfaces suspected of containing gunshot residue with the kit supplied by the North Carolina State Bureau of Investigation Chemical Laboratory.\nNumber 1. Thoroughly wash your hands with soap and water and dry them with a clean towel prior to doing the wiping for gunshot residue.\nNumber 2. Remove one of the cotton swabs from the plastic zip-lock bag and moisten it with four drops of two percent hydrochloric acid.\nNumber 3. Use the moistened swab and thoroughly swab the back of the left hand including the back of the fingers.\nNumber 4. Place the used swab into one of the clean zip-lock plastic bags. Seal the bag and label it in the following manner: a. Location of wiping (left back, right palm, etc.) b. Name of suspect, c. Date of wiping, d. Your identification mark.\nNumber 5. Using three additional swabs, moisten each one individually as in Step 2 and swab the left palm, right back, and right palm, respectively as in Step 3. These swabs should be placed in separate zip-lock bags and treated as in Step 4.\nNote: If at any time during the wiping procedure the hand of the wiper should come in contact with the cottopv end of the swab or the suspect\u2019s hands, the hands should be thoroughly washed in soap and water before the next swab is used. In cases where the same person is wiping the hands of more than one suspect, it is necessary to wash your hands between doing each person.\nNumber 6. Moisten one of the swabs with four drops of two percent hydrochloric acid and immediately place it in a separate zip-lock plastic bag. This bag should be labeled \u2018control\u2019 as the swab will be analyzed to determine the purity of the materials used to collect the gunshot residue.\nNumber 7. Swab the inside of the cartridge casing (if available) with a cotton swab moistened with four drops of two percent hydrochloric acid and. handle it as in Step 4. This step is particularly important since some types of ammunition do not contain antimony in their primer.\nNote: It is advisable not to handle the cartridge casing until the other wipings have been completed. And there is an asterisk for the footnote below this.\nWhen weapons and/or fired cartridge casings are being submitted to the firearms laboratory, do not follow Step 7. In these cases, the chemical laboratory will make a cartridge case wiping in the firearms laboratory. Indicate on the evidence sheet when this evidence has been submitted to the firearms laboratory.\nItem Number 8. Fill out the attached evidence sheets completely and enclose them in the mailing envelope with the wipings. The information on these sheets should include the type of weapon involved, the caliber and manufacturer of the ammunition, the condition of the weapon, and the amount of time elapsed between the firing of the weapon and the wiping of the suspect\u2019s hands.\nNine. Seal all of the plastic bags used in the self-addressed envelope and mail them by first class mail. The envelope should be marked on the outside \u2018Attention Chemical Laboratory \u2014 Gunshot Residue.\u2019\nNumber 10. An official report will be mailed to the requesting officer within a reasonable period of time. If rush results are needed, this should be indicated by a personal telephone call to the chemical laboratory.\u201d\nThe procedure Agent Sampson testified he followed in taking the wipings and the procedure contained in the instruction sheet read to the jury by SBI Chemist Cone are essentially the same. Under these circumstances we need not decide whether defendant\u2019s technical objection to the introduction of the instruction sheet is sound. The record clearly demonstrates that defendant was not prejudiced in the slightest by the introduction of the instruction sheet into evidence and for that reason his sixth assignment of error is overruled.\nDefendant contends that scientific tests conducted on gunshot residue wipings are speculative and highly unreliable and that the court erred in allowing R. D. Cone to testify concerning such tests. This constitutes defendant\u2019s seventh assignment of error.\nSBI Chemist Cone testified that, using flameless atomic absorption spectrophotometry, he personally analyzed the gunshot residue wipings taken by Agent Sampson from defendant\u2019s hands to determine whether' they contained barium, antimony and lead. This analysis showed \u201csignificant concentrations\u201d of all three elements in the wipings taken from the back of defendant\u2019s right hand and the palm of his left hand. Based on these test results, Mr. Cone testified that in his opinion \u201cthe subject could have handled and fired a gun.\u201d\nScientific tests of this nature are competent only when shown to be reliable. The record shows that Mr. Cone is a man experienced in the field of gunshot residue tests and has, on several occasions, presented technical papers on the subject to various associations of forensic scientists. He testified that only in \u201cvery rare circumstances\u201d was it possible for all three of the test elements to be found together in situations in which no gunshot was involved; and that in those rare circumstances the concentrations would be the highest on the palms of the hands. Mr. Cone further noted that in tests performed in his laboratory he found that when these elements appeared on the hands of persons who had not fired or handled a gun, \u201cthey were always present in concentrations which were different than what you would normally expect to find on the hand of a person who has fired a gun.\u201d With respect to the tests that were performed on the wipings taken from defendant\u2019s hands, Mr. Cone testified that the concentrations of barium, antimony and lead were highest on the back of defendant\u2019s right hand and were about \u201c[a]verage or middle for a person who has fired a .38 caliber weapon.\u201d\nIndependent research on gunshot residue tests verifies the reliability of this type of test. In a series of tests performed on persons involved in occupations where occupational contamination of the hands might cause interference with the test procedure, researchers have found that \u201c[n]o false tests were obtained nor failure of tests to detect antimony, barium, and lead were encountered because of occupational contamination of the hands.\u201d Harrison and Gilroy, Firearms Discharge Residues, 4 J. For. Sci. 184, 198 (1959). Although chemical reagents were used in the Harrison and Gilroy experiments to test for the presence of firearm discharge residue rather than flameless atomic absorption spectrophotometry, as in this case, the difference does not appear significant. Flameless atomic absorption spectrophotometry appears to be an improvement over the use of chemical reagents because chemical reagents detect only the presence of significant concentrations of the three, test elements whereas spectrophotometry can also determine the weight of the elements deposited on the subject\u2019s hands.\nThe crucial concern with tests of this type is that the test could indicate that a subject had fired a handgun when in fact he had not. It was for this reason that many courts rejected the dermal nitrate (paraffin) test. See Brooke v. People, 139 Colo. 388, 339 P. 2d 993 (1959) ; Born v. State, 397 P. 2d 924 (Okla. Crim. 1964), cert. denied, 379 U.S. 1000 (1965) ; Clarke v. State, 218 Tenn. 259, 402 S.W. 2d 863, cert. denied, 385 U.S. 942 (1966). This test proved unreliable because it could not distinguish between nitrates deposited on the hand from the firing of a handgun and nitrates deposited on the hands of persons who had come in contact with such common substances as explosives, fireworks, fertilizers, pharmaceuticals, leguminous plants (peas, beans, alfalfa), and burning tobacco products such as cigarettes. 5 Am. Jur. Proof of Facts, Firearms Identification 119-20 (1960). Apparently because of this fact, participating experts in the 1963 seminar on the scientific aspects of police work conducted by the International Criminal Police unanimously rejected the dermal nitrate test as being without value. Moenssens, Moses and Inbeau, Scientific Evidence in Criminal Cases \u00a7 4.12 (1973).\nAccording to the testimony of Mr. Cone, antimony, barium and lead will in \u201crare circumstances\u201d be found on the hands of persons who have not fired a handgun. Even so, by reason of the location and the level of concentrations of the test elements on the subject\u2019s hands he is able to determine the probability, great or small as the case may be, whether the test substances came from the discharge residues of a handgun or from some other source. In our view, the test employed by Mr. Cone in this case avoids the pitfalls inherent in the dermal nitrate test and demonstrably possesses the degree of reliability required to render it competent. We hold that evidence of the results of the test was properly admitted. The mere fact that such evidence does not exclude every remote possibility of error does not render it incompetent. Moreover, defendant has not been prejudiced by the introduction of the results of the gunshot residue test since an eyewitness to the shooting testified that defendant fired a pistol pointed at the victim\u2019s face. Defendant\u2019s seventh assignment of error is overruled.\nAssignments of error 8, 9, 10 and 11 are based on exceptions to the trial judge\u2019s charge to the jury. Defendant asserts in these assignments: (1) that the court violated G.S. 1-180 when it characterized as \u201cboresome\u201d the recapitulation of the evidence; (2) that the court erred in defining deliberation and erroneously instructed with respect to proof thereof; (3) that the charge on the elements of first degree murder was erroneous and confusing; and (4) that the court erroneously invaded the province of the jury in that portion of the charge dealing with the jury\u2019s deliberations.\nThese assignments require no discussion and are overruled. Their total lack of merit is revealed by careful examination of the entire charge.\nDefendant contends the death penalty imposed in this case is legally unauthorized and constitutes a cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments to the Constitution of the United States. This constitutes his twelfth and final assignment of error.\nIn an excellent brief, similar in many respects to the amicus curiae brief filed by the NAACP Legal and Educational Fund, Inc., in State v. Jarrette, 284 N.C. 625, 202 S.E. 2d 721 (1974), we are urged to reconsider our decision in State v. Waddell, 282 N.C. 431, 194 S.E. 2d 19 (1973), and hold that life imprisonment is the sole penalty, for the four previously capital crimes in this State \u2014 murder, arson, burglary and rape \u2014 until the Legislature acts to revise the present statutes dealing with those crimes.\nAll arguments here, attacking the soundness of our decision in Waddell and urging the unconstitutionality of the death penalty under the Eighth and Fourteenth Amendments, were fully considered in State v. Jarrette, supra. Our decision in Jarrette reaffirms the holding in Waddell and is controlling here. In this jurisdiction the penalty for murder in the first degree committed after 18 January 1973 is death. That penalty is neither cruel nor inhuman in a constitutional sense. Defendant\u2019s twelfth assignment of -error is overruled.\nAll the evidence tends to show a senseless, vicious, calculated murder without mitigating circumstances. Having received a fair trial free from prejudicial error, the verdict and judgment must be upheld.\nNo error.\nChief Justice Bobbitt, Justice Higgins and Justice Sharp dissent as to death sentence and vote to remand for imposition of a sentence of life imprisonment for the reasons stated in the dissenting opinion of Chief Justice Bobbitt in State v. Jarrette, 284 N.C. 625, 666, 202 S.E. 2d 721, 747 (1974).", "type": "majority", "author": "HUSKINS, Justice." } ], "attorneys": [ "Robert Morgan, Attorney General; T. Bide Costen and Raf-ford E. Jones, Assistant Attorneys General, for the State of North Carolina.", "Gerald L. Bass, attorney for defendant appellant; David E. Kendall of the NAACP Legal Defense Fund, attorney for defendant appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. ALBERT CROWDER, JR.\nNo. 7\n(Filed 13 March 1974)\n1. Constitutional Law \u00a7 29; Jury \u00a7 7; Criminal Law \u00a7 135\u2014 selection of jury \u2014 inquiries as to death penalty views\nProspective jurors in a capital case may be asked whether they have moral or religious scruples against capital punishment and, if so, whether they are willing to consider all of the penalties provided by law or are irrevocably committed to vote against the death penalty regardless of the facts and circumstances that might be revealed by the evidence.\n2. Criminal Law \u00a7 42\u2014 .38 caliber pistol \u2014 admissibility in murder case\nThe trial court properly allowed a .38 caliber pistol into evidence in a first degree murder prosecution where the evidence tended to show that the victim was shot, the defendant told the victim he had \u201ca .38\u201d for her just before the shot was fired, an eyewitness testified that the pistol resembled the one he saw defendant use, and the pistol, which contained four full rounds and one empty cartridge, was found 1% hours after the shooting some four to six parking spaces from the spot where deceased was shot.\n3. Criminal Law \u00a7 96\u2014 evidence withdrawn from jury consideration \u2014 no prejudice\nWhere the sister of the victim in a first degree murder case testified that deceased met defendant in Caledonia in prison, prejudice, if any, in admission of the evidence was removed when the evidence was withdrawn and the jury instructed not to consider it.\n4. Criminal Law \u00a7 43; Homicide \u00a7 20\u2014 photograph of murder victim\u2019s body \u2014 admissibility\nA photograph of the nude body of deceased taken in the morgue was properly admitted in a first degree murder case to illustrate the testimony of an officer of the City-County Identification Bureau.\n5. Criminal Law \u00a7 57\u2014 gunshot residue wipings \u2014 qualification of SB1 agent to take\nAn SBI agent was qualified to take gunshot wipings from defendant\u2019s hands where the procedure was not \u201chighly technical,\u201d the agent\u2019s background included technical police investigatory work and the agent had been given personal instruction by a chemist who was expert in the field of gunshot residue tests.\n6. Criminal Law \u00a7 57\u2014 gunshot residue wiping tests \u2014 competency of evidence\nWhere the procedure that an SBI agent testified he followed in taking gunshot wipings from defendant\u2019s hands was essentially the same as the procedure contained in the instruction sheet from a wiping kit which was read to the jury by an SBI chemist who wrote the instructions, defendant was not prejudiced, though the instruction sheet accepted into evidence may not have been the same sheet used by the agent in taking wipings from defendant\u2019s hands.\n7. Criminal Law \u00a7 57\u2014 gunshot residue wiping tests \u2014 reliability \u2014 admissibility\nGunshot residue wiping tests which used flameless atomic absorption spectrophotometry produced results which were sufficiently reliable to be admitted into evidence in defendant\u2019s first degree murder prosecution.\n8. Constitutional Law \u00a7 36; Criminal Law \u00a7 135; Homicide \u00a7 31\u2014 first degree murder \u2014 death penalty proper\nIn this jurisdiction the penalty for murder in the first degree committed after 18 January 1973 is death, and that penalty is neither cruel nor inhuman in a constitutional sense.\nChief Justice Bobbitt and Justices Higgins and Sharp dissenting as to death sentence.\nDefendant appeals from Judgment of Martin, J., First July, 1973 Assigned Criminal Session, Wake Superior Court.\nDefendant was tried upon a bill of indictment, proper in form, charging that on 4 March 1973, with malice aforethought, he did kill and murder Peggy Ann Bryant.\nThe State offered evidence tending to show that on the night of 4 March 1973 defendant was at King\u2019s Lounge, a Raleigh tavern. The deceased Peggy Ann Bryant, defendant\u2019s girl friend, arrived in an auto with her two sisters and two other girls. Peggy called defendant to the car where an argument ensued following which defendant went back into the tavern. Shortly thereafter defendant came out of King\u2019s Lounge, called Peggy, and they went around the comer of the building. They returned in a few minutes and defendant reentered the lounge while Peggy talked to the other girls at the car in the parking lot. When defendant came out of King\u2019s Lounge the second time, Peggy left the car and again followed defendant to the side of the tavern. What then occurred is described by Milton Hunter, an eyewitness, in the following paragraph.\nHunter had parked his car in a parking space at the corner of King\u2019s Lounge and thus could see down two sides of the building and was seated on the hood of his car drinking beer and talking with an acquaintance, a soldier named Edward Patterson. He observed defendant and Peggy Ann Bryant beside the building. He heard defendant call Peggy a vulgar name' and say: \u201cI got something for you, I have got your goddamn birthday present right here.\u201d Peggy said: \u201cWhat is it?\u201d Defendant replied: \u201cThis .38 here.\u201d According to the witness Hunter, the pistol was not in defendant\u2019s hand at the time. \u201cHe reached up this way and got up beside of his stomach and got it.\u201d Defendant then shot Peggy Ann Bryant in the face, began hitting the hood of the car next to Hunter\u2019s car, and yelled for an ambulance, saying \u201csomeone from the highway over there shot my girl friend.\u201d Peggy Ann Bryant was taken by ambulance to the hospital where she died as a result of extensive injury to the brain caused by a bullet which had entered directly above the left eye and penetrated the brain. An autopsy was performed and two lead fragments lodged in the back of the head were removed.\nNumerous other witnesses testified that they saw Peggy Ann Bryant accompanying the defendant to the side of the building and then heard a shot.\nOfficer Hinton testified that the death weapon was not immediately found but approximately an hour and a half later, after returning from the hospital, he made a thorough search of the parking lot and found a .38 caliber Smith and Wesson revolver with a two-inch barrel approximately four to six parking spaces from where Peggy Ann Bryant was lying. The pistol was loaded at the time and contained four full rounds and one spent round.\nGunshot wipings taken from the back of defendant\u2019s right hand and the palm of his left hand showed significant concentrations of barium, antimony and lead, particularly on the back of the right hand between the thumb and forefinger. This indicated that he had recently fired a gun according to the testimony of R. D. Cone, a forensic chemist and an expert in the taking and interpretation of gunshot residue tests.\nGlen Glesne, a laboratory analyst in the field of chemisty, blood and body fluids, did an analysis of the blood of Peggy Ann Bryant and determined that it belonged to Group A. Reddish colored stains on the shoes and trousers of defendant were analyzed and found to be blood of human origin which demonstrated the A blood grouping factor.\nDefendant offered no evidence. The jury convicted defendant of murder in the first degree and he was sentenced to death. His appeal to this Court presents for review the assignments of error discussed in the opinion.\nRobert Morgan, Attorney General; T. Bide Costen and Raf-ford E. Jones, Assistant Attorneys General, for the State of North Carolina.\nGerald L. Bass, attorney for defendant appellant; David E. Kendall of the NAACP Legal Defense Fund, attorney for defendant appellant." }, "file_name": "0042-01", "first_page_order": 74, "last_page_order": 88 }