{ "id": 8563625, "name": "STATE OF NORTH CAROLINA v. MARK AUBREY TEMPLE", "name_abbreviation": "State v. Temple", "decision_date": "1981-01-06", "docket_number": "No. 96", "first_page": "1", "last_page": "14", "citations": [ { "type": "official", "cite": "302 N.C. 1" } ], "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": "44 S.E. 625", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1903, "opinion_index": 0 }, { "cite": "132 N.C. 1120", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8663019 ], "year": 1903, "opinion_index": 0, "case_paths": [ "/nc/132/1120-01" ] }, { "cite": "165 S.E. 2d 328", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1969, "pin_cites": [ { "page": "337" } ], "opinion_index": 0 }, { "cite": "275 N.C. 108", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8557876 ], "year": 1969, "pin_cites": [ { "page": "120" } ], "opinion_index": 0, "case_paths": [ "/nc/275/0108-01" ] }, { "cite": "128 S.E. 2d 889", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1963, "opinion_index": 0 }, { "cite": "258 N.C. 453", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561130 ], "year": 1963, "opinion_index": 0, "case_paths": [ "/nc/258/0453-01" ] }, { "cite": "231 S.E. 2d 577", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "291 N.C. 562", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8558792 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/nc/291/0562-01" ] }, { "cite": "261 S.E. 2d 872", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "299 N.C. 284", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574364 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/nc/299/0284-01" ] }, { "cite": "263 S.E. 2d 745", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "299 N.C. 690", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575769 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/nc/299/0690-01" ] }, { "cite": "509 S. W. 2d 857", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 10139604 ], "year": 1974, "opinion_index": 0, "case_paths": [ "/sw2d/509/0857-01" ] }, { "cite": "143 Cal. Rptr. 61", "category": "reporters:state", "reporter": "Cal. Rptr.", "year": 1978, "opinion_index": 0 }, { "cite": "76 Cal. App. 3d 611", "category": "reporters:state", "reporter": "Cal. App. 3d", "case_ids": [ 2040559 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/cal-app-3d/76/0611-01" ] }, { "cite": "359 N.E. 2d 513", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "265 Ind. 655", "category": "reporters:state", "reporter": "Ind.", "case_ids": [ 1812903 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/ind/265/0655-01" ] }, { "cite": "95 Okla. Crim. 60", "category": "reporters:state", "reporter": "Okla. Crim.", "case_ids": [ 1514929 ], "weight": 2, "year": 1952, "pin_cites": [ { "page": "69" }, { "page": "821" } ], "opinion_index": 0, "case_paths": [ "/okla-crim/95/0060-01" ] }, { "cite": "140 S.E. 2d 705", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1965, "pin_cites": [ { "page": "706" } ], "opinion_index": 0 }, { "cite": "264 N.C. 73", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570756 ], "year": 1965, "pin_cites": [ { "page": "74" } ], "opinion_index": 0, "case_paths": [ "/nc/264/0073-01" ] }, { "cite": "126 Cal. Rptr. 350", "category": "reporters:state", "reporter": "Cal. Rptr.", "weight": 2, "year": 1975, "pin_cites": [ { "page": "356" } ], "opinion_index": 0 }, { "cite": "54 Cal. App. 3d 100", "category": "reporters:state", "reporter": "Cal. App. 3d", "case_ids": [ 4477099 ], "weight": 2, "year": 1975, "pin_cites": [ { "page": "111" } ], "opinion_index": 0, "case_paths": [ "/cal-app-3d/54/0100-01" ] }, { "cite": "77 A.L.R. 3d 1122", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "year": 1977, "opinion_index": 0 }, { "cite": "231 S.E. 2d 833", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "291 N.C. 480", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8558733 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/nc/291/0480-01" ] }, { "cite": "259 S.E. 2d 843", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "298 N.C. 380", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572489 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/nc/298/0380-01" ] }, { "cite": "16 L.Ed. 2d 1029", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1966, "opinion_index": 0 }, { "cite": "86 S.Ct. 1972", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1966, "opinion_index": 0 }, { "cite": "384 U.S. 1024", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12096323, 12096272, 12096434, 12096374, 12096407, 12096538, 12096573, 12096478 ], "year": 1966, "opinion_index": 0, "case_paths": [ "/us/384/1024-02", "/us/384/1024-01", "/us/384/1024-05", "/us/384/1024-03", "/us/384/1024-04", "/us/384/1024-07", "/us/384/1024-08", "/us/384/1024-06" ] }, { "cite": "144 S.E. 2d 646", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1965, "opinion_index": 0 }, { "cite": "265 N.C. 584", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8576400 ], "year": 1965, "opinion_index": 0, "case_paths": [ "/nc/265/0584-01" ] }, { "cite": "242 S.E. 2d 814", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "294 N.C. 623", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574161 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/nc/294/0623-01" ] }, { "cite": "261 S.E. 2d 839", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "299 N.C. 319", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574426 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/nc/299/0319-01" ] }, { "cite": "240 S.E. 2d 794", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "294 N.C. 320", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572801 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/nc/294/0320-01" ] }, { "cite": "230 S.E. 2d 506", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "pin_cites": [ { "page": "514" } ], "opinion_index": 0 }, { "cite": "291 N.C. 399", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8558351 ], "year": 1976, "pin_cites": [ { "page": "411" } ], "opinion_index": 0, "case_paths": [ "/nc/291/0399-01" ] }, { "cite": "423 U.S. 96", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6175104 ], "weight": 6, "year": 1975, "pin_cites": [ { "page": "104" }, { "page": "326" }, { "page": "321" } ], "opinion_index": 0, "case_paths": [ "/us/423/0096-01" ] }, { "cite": "384 U.S. 436", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12046400 ], "weight": 6, "year": 1966, "pin_cites": [ { "page": "473-74" }, { "page": "1627-28" }, { "page": "723" } ], "opinion_index": 0, "case_paths": [ "/us/384/0436-01" ] }, { "cite": "93 S.E. 2d 63", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1956, "opinion_index": 0 }, { "cite": "244 N.C. 212", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2219465 ], "year": 1956, "opinion_index": 0, "case_paths": [ "/nc/244/0212-01" ] }, { "cite": "192 S.E.2d 283", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "282 N.C. 220", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564078 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/nc/282/0220-01" ] }, { "cite": "231 S.E. 2d 252", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "291 N.C. 681", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8558933 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/nc/291/0681-01" ] }, { "cite": "231 S.E. 2d 644", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "291 N.C. 528", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8558765 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/nc/291/0528-01" ] }, { "cite": "29 L.Ed. 2d 860", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1971, "opinion_index": 0 }, { "cite": "91 S.Ct. 2290", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1971, "opinion_index": 0 }, { "cite": "403 U.S. 948", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12043280, 12043226 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/us/403/0948-02", "/us/403/0948-01" ] }, { "cite": "174 S.E. 2d 503", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1970, "opinion_index": 0 }, { "cite": "276 N.C. 703", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8563378 ], "year": 1970, "opinion_index": 0, "case_paths": [ "/nc/276/0703-01" ] } ], "analysis": { "cardinality": 1219, "char_count": 33448, "ocr_confidence": 0.784, "pagerank": { "raw": 3.196607067086192e-07, "percentile": 0.8656056781688817 }, "sha256": "4c9b00f50dcebb2b80557343056a735d03fe3f212c6b6a4f32be0fed1357d535", "simhash": "1:27ab3127fcecd9b5", "word_count": 5475 }, "last_updated": "2023-07-14T17:25:15.704346+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Justice Brock did not participate in the consideration or decision of this case." ], "parties": [ "STATE OF NORTH CAROLINA v. MARK AUBREY TEMPLE" ], "opinions": [ { "text": "COPELAND, Justice.\nDefendant argues six assignments of error on appeal. We have carefully considered each assignment and conclude that the trial court committed no error which would entitle defendant to a new trial.\nDefendant first contends that the trial court erred in requiring him to present his evidence before the State put on its evidence during the hearing on his motion to suppress. Among the items of evidence that defendant sought to suppress was the confession taken from him at 3:45 p.m. on 10 July 1979. It is the State\u2019s burden to prove the voluntariness of a confession. State v. Williams, 276 N.C. 703, 174 S.E. 2d 503 (1970), Rev\u2019d on other grounds, 403 U.S. 948, 91 S.Ct. 2290, 29 L.Ed. 2d 860 (1971). Defendant argues that by requiring him to present his evidence first, the court erroneously shifted the burden of proving the voluntariness of the confession to defendant. We disagree.\nAlthough the party who has the burden of proof is generally the party who first puts on evidence, the order of presentation at trial is a rule of practice, not of law, and it may be departed from whenever the court, in its discretion, considers it necessary to promote justice. State v. Britt, 291 N.C. 528, 231 S.E. 2d 644 (1977); State v. Jones, 291 N.C. 681, 231 S.E. 2d 252 (1977); State v. Knight, 282 N.C. 220, 192 S.E.2d 283 (1972); State v. Thomas, 244 N.C. 212, 93 S.E. 2d 63 (1956). Since the order of proof in a criminal trial is largely within the discretion of the trial judge, inversion of the order is not grounds for reversal unless the court abuses its discretion and defendant establishes that he was prejudiced thereby. 75 Am. Jur. 2d Trials \u00a7 158 (1974). We find that the trial court in this case did not abuse its discretion or commit prejudicial error in requiring defendant to present his evidence first.\nDefendant\u2019s contention that the inversion of the order of proof results in a shift of the burden of proof is without merit. The order of proof has no effect on the burden of proof or the burden of going forward with the evidence, since the order of proof is merely a matter of practice without legal effect. State v. Britt, supra; State v. Knight, supra. Both burdens remained on the State in this case and there is nothing in the trial court\u2019s order denying defendant\u2019s motion to suppress to indicate that the trial judge believed otherwise. 2 Stansbury\u2019s N.C. Evidence \u00a7 203 (Brandis Rev. 1973). Defendant\u2019s argument that he was prejudiced by the order of proof because it resulted in his having to call the Chief of Police, one of the State\u2019s principal witnesses, as his own is also meritless. Defendant complains that this denied him the opportunity to cross-examine the State\u2019s witness and placed the State in a position to cross-examine its own witness. We have carefully reviewed the testimony of the Chief of Police at the hearing and find that there is nothing in the record to indicate that the State was allowed to ask any question of this witness that it would not have been in a position to ask if he had been called by the State. Nor is there any indication that defendant was denied permission to ask any question on direct examination that he would have been allowed to ask on cross-examination. The record reveals that defendant was given the opportunity to fully examine the witness and was not prejudiced by calling the witness as his own.\nBy his second assignment of error, defendant alleges that the trial court erred in denying defendant\u2019s motion to suppress the statements he made to police officers while he was being interrogated prior to his arrest. Specifically, defendant argues that his statements in the nature of a confession were obtained in violation of his constitutional rights as set forth in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed. 2d 694 (1966), in that the confession occurred during questioning by police after he had thrice informed them of his wish to exercise his right to remain silent.\nAfter the hearing on defendant\u2019s motion to suppress evidence, the trial judge made the following findings of fact: Between 1:30 and 1:45 p.m. on 10 July 1979 defendant and his brother went to the Elizabeth City Police Department. As defendant approached the station he was met by Officer Frank Kotzian, who informed defendant that he wished to talk with him and advised defendant of his Miranda rights. Defendant stated that he understood his rights and was willing to answer questions without the presence of a lawyer. He was then taken to the office of the Chief of Police where, in the presence of Officer W. G. Williams, Jr., Officer Kotzian again advised defendant of his Miranda rights and defendant again responded that he understood his rights and would answer questions without an attorney present. Defendant then gave an exculpatory statement concerning his whereabouts on the night of Miss Jones\u2019 murder. This interrogation lasted about fifteen minutes.\nWhile defendant was being questioned by Officers Kotzian and Williams, Officer Mervin Raby was talking to defendant\u2019s brother, who stated that defendant had admitted to him that he thought he remembered killing Miss Jones. Defendant\u2019s brother repeated this statement to the Chief of Police, W. C. Owens. Defendant was brought into Chief Owens\u2019 office at 3:27 p.m. and advised of his brother\u2019s statement. Chief Owens also read defendant his constitutional rights, after which defendant stated that he did not want to answer any questions. Defendant and his brother were taken to another room and allowed to talk privately. At 3:45 p.m. they returned to the Chief\u2019s office, where defendant was once more advised of his Miranda rights and he again declared that he did not wish to answer any questions. Defendant was not interrogated further, but Chief Owens proceeded to show defendant certain items of evidence recovered from the scene of the crime, including the cement block used as the murder weapon. At the Chief\u2019s request, Officer Williams recounted his observations of defendant on the streets of Elizabeth City on the night of the murder. Defendant was once more advised of his right to remain silent, and defendant indicated that he intended to remain silent at this time. Officer Kotzian then took defendant and his brother to another room. As Officer Kotzian was closing the door, defendant ordered his brother to leave. The brother left and Officer Kotzian again began to close the door in order to leave defendant alone in the room. Before he completed closing the door, defendant started crying and stated, \u201cWhy, why!\u201d The officer opened the door and again repeated defendant\u2019s constitutional rights. Defendant answered that he understood his rights and was now willing to make a statement without the presence of an attorney. He told Officer'Kotzian that he remembered hitting the victim with a cement block and cutting her with a small object.\nDefendant alleges that by continuing to interrogate him after he indicated that he did not wish to answer any questions, the officers violated his constitutional rights as set forth in Miranda. The United States Supreme Court stated in that case:\n\u201cOnce warnings have been given, the subsequent procedure is clear. If the individual indicates in any manner, at any tim ? prior to or during questioning, that he wishes to remain silent, the interrogation must cease. At this point he has shown that he intends to exercise his Fifth Amendment privilege; any statement taken after the person invokes his privilege cannot be other than the product of compulsion, subtle or otherwise. Without the right to \u25a0 cut off questioning, the setting of in-custody interroga-don operates on the individual to overcome free choice in j/\"oducing a statement after the privilege has been once invoked.\u201d 384 U.S. at 473-74,86 S.Ct. at 1627-28,16 L.Ed. 2d at 723.\nThis language was later interpreted in Michigan v. Mosley, 423 U.S. 96, 96 S.Ct. 321, 46 L.Ed. 2d 313 (1975), where the Court explained that the passage should not be interpreted literally to mean that once a person has invoked his right to remain silent, he can never again be interrogated by any officer at any time or place. The admissibility of statements obtained after a person states that he wishes to remain silent depends upon whether his \u201cright to cut off questioning\u201d was \u201cscrupulously honored.\u201d 423 U.S. at 104, 96 S.Ct. at 326, 46 L.Ed. 2d at 321. This Court, relying on Miranda and Mosley, held in another Pasquotank County case, State v. Riddick, 291 N.C. 399, 411, 230 S.E. 2d 506, 514, (1976):\n\u201c... The Miranda rule that in custody interrogation of a defendant must cease when the defendant indicates he wishes to remain silent or wishes to consult counsel, or both, does not bar a subsequent statement by a defendant who, after having been fully advised of his constitutional rights, freely and voluntarily waives his right to remain silent and his right to counsel and invites the officer to resume talks with him.\u201d\nSee also State v. Hill, 294 N.C. 320, 240 S.E. 2d 794 (1978).\nWe hold that the evidence before the trial court was sufficient to support its conclusion that defendant\u2019s confession was obtained without violation of his constitutional rights. On each occasion that defendant invoked his right to remain silent, the police honored his right by cutting off their interrogation for some period of time, as required by the holding in Mosley. Defendant had been informed of his constitutional rights, including his right to remain silent, on six occasions prior to his confession, including one repetition of his rights immediately before he gave his incriminating statement. The evidence supports the trial court\u2019s finding that defendant understood his rights and affirmatively, voluntarily agreed to waive them. Since the trial court\u2019s finding is supported by substantial evidence, it is binding upon this Court on appeal. State v. Saults, 299 N.C. 319, 261 S.E. 2d 839 (1980); State v. Hill, supra. Defendant\u2019s contention that the officers coerced his statement by confronting him with evidence recovered from the scene of the crime, after he indicated that he did not wish to answer questions, is without merit. This Court has held that to present a person in custody with evidence recovered from the scene of the crime is not \u201cinterrogation\u201d within the meaning of the Miranda decision. State v. McLean, 294 N.C. 623, 242 S.E. 2d 814 (1978). Nor was the presentation of evidence in this case the type of \u201csubtle coercion\u201d prohibited under the holding in Miranda. The mere fact that a confession is made after a defendant is confronted with circumstances normally calling for an explanation is insufficient to render the confession incompetent. State v. Mitchell, 265 N.C. 584, 144 S.E. 2d 646 (1965), cert. denied, 384 U.S. 1024, 86 S.Ct. 1972, 16 L.Ed. 2d 1029 (1966). The officers restated defendant\u2019s constitutional rights immediately prior to showing him the evidence. When defendant refused to make a statement, the officers ceased all questioning or confrontation with evidence and led defendant to another room where he could talk privately with his brother. When defendant said \u201cwhy, why!\u201d before the officer closed the door to this other room, he invited the officer to resume his questioning. We find that defendant freely and voluntarily waived his right to remain silent and his right to the presence of counsel. Defendant\u2019s second assignment of error is overruled.\nDefendant next alleges that the trial court erred in denying his motion for suppression of the evidence obtained as a result of the nontestimonial identification order, because the record fails to show that he waived his right to have counsel present during the nontestimonial identification procedure.\nDefendant concedes that Article 14 of Chapter 15A of the General Statutes, which sets forth the procedures to be followed in obtaining nontestimonial identification, does not apply to an accused person such as defendant who has been held in custody. State v. Reynolds, 298 N.C. 380, 259 S.E. 2d 843 (1979); State v. Irick, 291 N.C. 480, 231 S.E. 2d 833 (1977). Nevertheless, defendant contends that the provisions of that article are applicable in this case because by having a nontestimonial identification order issued, the State elected to proceed under the procedures set forth in that article, and it should be bound by this election. Defendant maintains that these statutory provisions were violated when nontestimonial identification was obtained without the presence of counsel representing the defendant or an express waiver by defendant of his right to have counsel present.\nAssuming arguendo that Article 14, Chapter 15A is applicable in the case subjudice, we hold that the State fully complied with the procedures set forth therein. G.S. 15A-278 provides that a nontes-timonial identification order must state: \u201c(5) That the person is entitled to be represented by counsel at the procedure, and to the appointment of counsel if he cannot afford to retain one . . . .\u201d The order in this case did state these rights. G.S. 15A-279(d) further provides:\n\u201cAny such person is entitled to have counsel present and must be advised prior to being subjected to any non-testimonial identification procedures of his right to have counsel present during any nontestimonial identification procedure and to the appointment of counsel if he cannot afford to retain counsel. No statement made during non-testimonial identification procedures by the subject of the procedures shall be admissible in any criminal proceeding against him, unless his counsel was present at the time the statement was made.\u201d\nThe State here stipulated that nothing defendant said during the procedure would be offered into evidence. The record reveals that defendant was fully advised of his constitutional right to the presence of counsel. In addition to the statement of his rights appearing in the nontestimonial identification order, defendant had been verbally informed of his rights six times prior to being taken to the hospital. Article 14 does not require an express waiver of the right to have counsel present at the nontestimonial identification procedure, therefore the State was not in violation of any provision thereunder by not procuring an express waiver from defendant. The trial court\u2019s denial of defendant\u2019s motion to suppress nontesti-monial identification evidence was without error.\nBy his fourth assignment of error defendant contends that the trial court erred in allowing expert witnesses to testify that bite marks appearing on the victim\u2019s body were made by defendant\u2019s teeth. The State called as an expert witness Dr. William P. Webster, a dentist employed by the University of North Carolina School of Dentisty and a consultant to the Chief Medical Examiner in Chapel Hill, North Carolina in matters concerning forensic odontology. Dr. Webster testified that based on his experience of examining the teeth of thousands of individuals for over twenty years, he believed that each individual has an unique and distinctive dentition. After examining defendant\u2019s teeth, making impressions of his upper and lower teeth, and preparing plaster casts and overlays from the impressions, Dr. Webster stated that defendant\u2019s dentition was unusual and distinctive in that there was a malalignment causing the front teeth, or central incisors, to point backwards toward the back of the head, and causing the lateral incisors to point outward. He further testified that he matched the overlays of defendant\u2019s teeth with the bite mark on the left upper chest area of Miss Jones\u2019 body and found eight points of identification between the overlays and the bite mark. Based on this evidence, Dr. Webster stated that in his opinion the bite mark on Miss Jones\u2019 chest was made from the dentition of defendant. The State also called Dr. Page Hudson, a forensic pathologist and Chief Medical Examiner for the State of North Carolina, as an expert witness. Dr. Hudson testified that he had called in Dr. Webster, an expert in forensic odontology, to perform the comparative examination of defendant\u2019s dentition and the bite marks on the victim\u2019s skin. After observing Dr. Webster\u2019s work, Dr. Hudson stated that in his opinion the bite marks on the victim\u2019s skin were caused by defendant\u2019s teeth.\nDefendant maintains that Dr. Webster\u2019s testimony should have been excluded because it was based on the results of a test which was not scientifically proven for reliability. He argues that Dr. Webster\u2019s opinion was formed from unproven hypotheses and mathematical probability. Defendant further alleges that Dr. Hudson should not have been allowed to express an opinion identifying the bite marks as being made by defendant\u2019s teeth because he was not qualified as an expert in forensic odontology.\nThe question of the admissibility of evidence tending to identify an accused by his own bite marks is an issue of first impression in this jurisdiction. Although there is little authority on the subject from other jurisdictions, those courts which have dealt with the question have all permitted such identification testimony. See Annot., 77 A.L.R. 3d 1122 (1977).\nThe leading case on identification through bite mark analysis is People v. Marx, 54 Cal. App. 3d 100, 126 Cal. Rptr. 350 (1975). The victim in Marx had been killed by manual strangulation, but had also sustained a bite wound on her nose. The body of the victim was exhumed fifty-one days after death and a cast of the wound on the nose was made. Three dentists were allowed to testify that after comparing impressions taken of defendant\u2019s teeth and the cast of the victim\u2019s nose, they believed that the bite mark was made by defendant\u2019s teeth. It appeared that the State supplemented the expert\u2019s testimony by showing models, photographs, x-rays, and slides of the victim\u2019s wound and defendant\u2019s teeth. In affirming the trial court\u2019s decision to admit the expert testimony into evidence, the California court reasoned as follows:\n\u201c. . . [T]he basic data on which the experts based their conclusions were verifiable by the court. Further, in making their painstaking comparisons and reaching their conclusions, the experts did not rely on untested methods, unproved hypotheses, intuition or revelation. Rather, they applied scientifically and professionally established techniques \u2014 x-rays, models, microscopy, photography \u2014 to the solution of a particular problem which, though novel, was well within the capability of those techniques. In short, in admitting the evidence, the court did not have to sacrifice its independence and common sense in evaluating it.\u201d 54 Cal. App. 3d at 111, 126 Cal. Rptr. at 356.\nIn like manner, we hold that the trial court properly admitted the testimony of Drs. Webster and Hudson which tended to identify the bite marks on Miss Jones\u2019 skin as being made by defendant\u2019s teeth. The general rule in North Carolina regarding the admissibility of new methods and types of scientific evidence was stated by the Court in State v. Powell, 264 N.C. 73, 74, 140 S.E. 2d 705, 706 (1965), quoting from Toms v. State, 95 Okla. Crim. 60, 69, 239 P. 2d 812, 821 (1952):\n\u201cThis court is of the opinion, that we should favor the adoption of scientific methods of crime detection, where the demonstrated accuracy and reliability has become established and recognized. Justice is truth in action, and any instrumentality, which aids justice in the ascertainment of truth, should be embraced without delay.\u201d\nContrary to defendant\u2019s allegations, the expert witnesses in this case did not rely on untested methods or unproved hypotheses. They applied scientifically established techniques of dentistry and photography to the solution of a particular novel problem. The method of bite mark identification employed in this case is simply a matter of comparing items of physical evidence. Although the method of comparison requires the services of skilled experts, the experts used models and measurements procured by standardized procedures. Niehaus v. State, 265 Ind. 655, 359 N.E. 2d 513 (1977). Photographs of the wound and models used by the experts in reaching their conclusion were presented at trial as evidence and were verifiable by the court. We reject defendant\u2019s argument that the comparison technique in this case is inherently unreliable because it was based in part upon Dr. Webster\u2019s studies of the mathematical probability that each person has a unique dentition. Dr. Webster\u2019s statement that after examining the teeth of thousands of persons over a twenty year period he believed that each individual had a unique dentition was simply an attempt to explain his scientific method in response to defendant\u2019s question whether any other person could possibly have made the same marks on the victim\u2019s skin. Dr. Webster expressly stated that he had never undertaken any mathematical studies in this area. See People v. Slone, 76 Cal. App. 3d 611, 143 Cal. Rptr. 61 (1978).\nWe also reject defendant\u2019s contention that Dr. Hudson\u2019s testimony regarding the bite marks should have been excluded because he was not qualified as an expert in the field of forensic odontology. Dr. Hudson called in Dr. Webster as an expert in forensic odontology and the two worked together in seeking to determine whether defendant\u2019s teeth made the bite mark on the body. Dr. Hudson\u2019s testimony was proper as the opinion of the Chief Medical Examiner of the State, arrived at after consulting with an expert whose aid he had requested. In any event, considering the extensive bite mark identification testimony given by Dr. Webster, Dr. Hudson\u2019s statement of his opinion was not prejudicial to defendant.\nWe therefore find that the expert testimony in this case was based upon established scientific methods, and is admissible as an instrumentality which aids justice in the ascertainment of the truth. Any objection to this testimony goes to the credibility to be attributed to the evidence, not to its admissibility. Patterson v. State, 509 S. W. 2d 857 (Texas Crim. App. 1974). Defendant\u2019s fourth assignment of error is overruled.\nDefendant next maintains that the trial court erred in allowing the jury to be shown certain photographs of the exhumed body of Miss Jones. These photographs were presented to the jury by means of color slides projected on a screen and were introduced to illustrate the testimony of Drs. Hudson and Webster. Defendant specifically complains that the photographs of the victim\u2019s body \u2022 lying in her casket were without probative value, serving only to arouse the prejudices of the jury.\nDefendant concedes that photographs are admissible in this jurisdiction to illustrate the testimony of a witness, and the fact that the photograph may depict a gory, gruesome scene or tend to arouse prejudice in the jury does not render it incompetent if it is otherwise relevant and material. State v. Horton, 299 N.C. 690, 263 S.E. 2d 745 (1980); State v. Matthews, 299 N.C. 284, 261 S.E. 2d 872 (1980); State v. Young, 291 N.C. 562, 231 S.E. 2d 577 (1977); 1 Stansbury\u2019s N.C. Evidence \u00a7 34 (Brandis Rev. 1973). However, defendant contends that the State\u2019s use of photographs in this case falls within the rule set forth in State v. Foust, 258 N.C. 453, 128 S.E. 2d 889 (1963), and restated as follows in State v. Mercer, 275 N.C. 108, 120, 165 S.E. 2d 328, 337 (1969):\n\u201c. . . the admission of an excessive number of photographs depicting substantially the same scene may be sufficient ground for a new trial when the additional photographs add nothing in the way of probative value but tend solely to inflame the jurors.\u201d\nWe find that many of the photographs presented by the State were relevant as illustrations of Dr. Hudson\u2019s and Dr. Webster\u2019s testimony. However, several of the photographs, particularly those taken of the body lying in the casket, add nothing to the State\u2019s case and would have been better left unpresented. Nevertheless, in view of the overwhelming evidence of defendant\u2019s guilt, we hold that the photographs were harmless error beyond a reasonable doubt, and therefore defendant\u2019s assignment of error is overruled.\nSince we have held that the trial judge committed no prejudicial error in this case, we also reject defendant\u2019s argument that the trial court erred in denying defendant\u2019s motion for a mistrial.\nThis was a very gruesome murder, for which the State established no motive. The reason for the killing will remain shrouded in mystery, as was the reason for the untimely death of Nell Cropsey in a case from the same county near the turn of the century. State v. Wilcox, 132 N.C. 1120, 44 S.E. 625 (1903).\nDefendant received a fair trial free from prejudicial error and we find\nNo error.\nJustice Brock did not participate in the consideration or decision of this case.", "type": "majority", "author": "COPELAND, Justice." } ], "attorneys": [ "C. Glenn Austin for defendant.", "Attorney General Rufus L. Edmisten by Assistant Attorney General Roy A. Giles, Jr., for the State." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. MARK AUBREY TEMPLE\nNo. 96\n(Filed 6 January 1981)\n1. Criminal Law \u00a7 93\u2014 order of proof \u2014 no prejudice\nThe trial court did not err in requiring defendant to present his evidence before the State put on its evidence during a hearing on defendant\u2019s motion to suppress, and there was no merit to defendant\u2019s contention that the inversion of the order of proof resulted in a shift of the burden of proof, since the order of proof is merely a matter of practice without legal effect; there was nothing in the trial court\u2019s order denying defendant\u2019s motion to suppress to indicate that the trial judge believed otherwise; and defendant was not prejudiced by the order of proof because it resulted in his having to call one of the State\u2019s principal witnesses as his own.\n2. Criminal Law \u00a7\u00a7 75.3,75.8\u2014 indication of wish to remain silent \u2014 admissibility of subsequent confession \u2014 presenting defendant with evidence of crime \u2014 no compulsion\nThere was no merit to defendant\u2019s contention that, by continuing to interrogate him after he indicated that he did not wish to answer any questions, officers violated his constitutional rights, since on each occasion that defendant invoked his right to remain silent the police honored his right by cutting off their interrogation for some period of time; defendant had been informed of his constitutional rights, including his right to remain silent, on six occasions prior to his confession, including one repetition of his rights immediately before he gave his incriminating statement; and defendant understood his rights and affirmatively, voluntarily agreed to waive them. Moreover, there was no merit to defendant\u2019s contention that officers coerced his statement by confronting him with evidence recovered from the scene of the crime after he indicated that he did not wish to answer questions, since to present a person in custody with evidence recovered from the scene of the crime is not interrogation; the presentation of evidence in this case did not amount to subtle coercion; officers restated defendant\u2019s constitutional rights immediately prior to showing him the evidence; and when defendant refused to make a statement, the officer ceased all questioning or confrontation with evidence, and defendant subsequently invited the officer to resume his questioning.\n3. Criminal Law \u00a7 68\u2014 nontestimonial identification order \u2014 constitutional rights not violated\nThe trial court\u2019s denial of defendant\u2019s motion to suppress nontestimonial identification evidence was withouterror where, pursuantto an order of the trial court, fingernail scrapings, samples of defendant\u2019s head and pubic hair, saliva samples, blood samples, and photographs of any wounds on defendant\u2019s body were taken; the order stated defendant\u2019s rightto counsel; the State stipulated that nothing defendant said during the procedure would be offered into evidence; defendant was fully advised of his constitutional right to the presence of counsel; and the State was not in violation of any provisions under G.S. Ch. 15 A, Art. 14 by not procuring an express waiver from defendant, as the statute does not require an express waiver of the right to have counsel present at a nontestimonial identification procedure.\n4. Criminal Law \u00a7 68\u2014 bite marks on victim\u2019s body \u2014 expert testimony that defendant\u2019s teeth caused marks\nIn a prosecution for first degree murder, the trial court did not err in allowing an expert witness to testify that bite marks appearing on the victim\u2019s body were made by defendant\u2019s teeth, since the expert witness did not rely on untested methods or unproved hypotheses but applied scientifically established techniques of dentistry and photography to determine whether the bite marks were caused by defendant\u2019s teeth.\n5. Homicide \u00a7 20.1\u2014 photographs of victim in casket\u2014 admission as harmless error\nThe trial court\u2019s error in a first degree murder case in allowing the jury to be shown certain photographs of the victim\u2019s body lying in a casket was harmless beyond a reasonable doubt in view of the overwhelming evidence of defendant\u2019s guilt.\nJustice Brock did not participate in the consideration or decision of this case.\nDefendant appeals from judgement of Brown, J., entered at the 14 January 1980 Criminal Session of Superior Court, PASQUO-TANK County.\nDefendant was tried upon an indictment, proper in form, charging him with first degree murder. The jury found defendant guilty of first degree murder and recommended that a sentence of life imprisonment be imposed. From the trial court\u2019s judgment sentencing defendant to imprisonment for the term of his natural life, defendant appeals as a matter of right pursuant to G.S. 7A-27(a).\nThe State\u2019s evidence tended to show that at approximately 11:40 p.m. on 6 July 1979 Annette Ruth Jones, age 16, returned to her residence at 108 Persse Street in Elizabeth City, North Carolina. She announced her return to her grandfather and went upstairs to her bedroom. From about 12:15 to 12:45 a.m. on 7 July 1979 she had a telephone conversation with a girlfriend, Wanda Tadlock. There was an exit from Miss Jones\u2019 bedroom to the outside, consisting of a stairway on the back side of the house. No one heard Miss Jones leave the house that night at any time after her return at 11:40 p.m.\nAt approximately 7:30 a.m. on 7 July 1979 Miss Jones\u2019 nude body was discovered beside a building at 203 West Church Street in Elizabeth City. Defendant\u2019s uncle then lived in an apartment at that address, and it was he who discovered the body. Dr. Jerry Pickrel, a pathologist, and Dr. Page Hudson, State Medical Examiner, testified that Miss Jones was killed by a blow to the head with a heavy blunt object. A number of small lacerations and several bite marks were found on various parts of her body. There were cuts and abrasions in and about her vagina, but no evidence of sexual intercourse. A blood test revealed that Miss Jones had been drinking, to the extent that a breathalyzer test would have shown a .12 level of alcohol or a mild intoxication. A cement block with blood on it was found in a clump of bushes 87 feet from the body. Several bloodstained sticks were also found in the bushes.\nPolice officers observed defendant walking on the downtown streets of Elizabeth City at approximately 12:30 a.m. on 7 July 1979. the officers were located on the roof of a building and were keeping the area under surveillance for an unrelated matter. Defendant was last observed at 12:45 to 12:50 a.m. on Main Street, an area a few blocks from Miss Jones\u2019 residence.\nDefendant was sought for questioning on 10 July 1979. After being informed by his brother that the police were looking for him, defendant voluntarily went to the Elizabeth City Police Department at 2:00 p.m. on that date. He was met outside the station by several officers, one of whom read him his Miranda rights, before he was interrogated in any way. When questioned as to his whereabouts on the evening of 6 July and early morning of 7 July, defendant at that time gave a non-incriminating statement. Officers then questioned defendant\u2019s brother, who related that defendant had said he thought he remembered killing the victim with a cement block. At 3:30 p.m. defendant was given his Miranda warning again, informed of his brother\u2019s statement, and asked if he wished to make any further comments. Defendant refused to make a statement. At 3:45 p.m. he was again read his rights and shown several items of evidence taken from the scene of the crime, including the bloodstained cinderblock. At this time defendant agreed to make a statement and confessed that he remembered hitting the girl with a block three or four times and cutting her with a small object. Defendant was then arrested for the murder.\nPursuant to a nontestimonial identification order, defendant was taken to Albemarle Hospital in Elizabeth City at 8:00 p.m. on 10 July 1979, at which time fingernail scrapings, samples of defendant\u2019s head and pubic hair, saliva samples, blood samples, and photographs of any wounds on defendant\u2019s body were taken. Defendant was also given a dental examination pursuant to an order on 11 July 1979, during which impressions were made of his teeth. The State presented medical testimony tending to indicate that the bite marks on the victim\u2019s body could be identified as having been made by defendant\u2019s teeth.\nDefendant presented no evidence at trial.\nAdditional facts relevant to the decision are set forth in the opinion below.\nC. Glenn Austin for defendant.\nAttorney General Rufus L. Edmisten by Assistant Attorney General Roy A. Giles, Jr., for the State." }, "file_name": "0001-01", "first_page_order": 33, "last_page_order": 46 }