{ "id": 867674, "name": "STATE OF NORTH CAROLINA v. JOE CEPHUS JOHNSTON, JR.", "name_abbreviation": "State v. Johnston", "decision_date": "1996-10-11", "docket_number": "No. 200A89-2", "first_page": "596", "last_page": "611", "citations": [ { "type": "official", "cite": "344 N.C. 596" } ], "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": "39 ALR4th 742", "category": "reporters:specialty", "reporter": "A.L.R. 4th", "opinion_index": -1 }, { "cite": "13 ALR4th 796", "category": "reporters:specialty", "reporter": "A.L.R. 4th", "opinion_index": -1 }, { "cite": "70 ALR2d 559", "category": "reporters:specialty", "reporter": "A.L.R. 2d", "opinion_index": -1 }, { "cite": "34 ALR2d 451", "category": "reporters:specialty", "reporter": "A.L.R. 2d", "opinion_index": -1 }, { "cite": "76 ALR Fed. 700", "category": "reporters:federal", "reporter": "A.L.R. Fed.", "opinion_index": -1 }, { "cite": "65 ALR3d 283", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "weight": 2, "opinion_index": -1 }, { "cite": "73 ALR2d 769", "category": "reporters:specialty", "reporter": "A.L.R. 2d", "opinion_index": -1 }, { "cite": "19 ALR4th 861", "category": "reporters:specialty", "reporter": "A.L.R. 4th", "opinion_index": -1 }, { "cite": "130 L. Ed. 2d 162", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1994, "opinion_index": 0 }, { "cite": "439 S.E.2d 547", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "559" } ], "opinion_index": 0 }, { "cite": "335 N.C. 244", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2530932 ], "year": 1994, "pin_cites": [ { "page": "268" } ], "opinion_index": 0, "case_paths": [ "/nc/335/0244-01" ] }, { "cite": "130 L. Ed. 2d 547", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1994, "opinion_index": 0 }, { "cite": "443 S.E.2d 14", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "27" } ], "opinion_index": 0 }, { "cite": "336 N.C. 142", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2538239 ], "year": 1994, "pin_cites": [ { "page": "164" } ], "opinion_index": 0, "case_paths": [ "/nc/336/0142-01" ] }, { "cite": "49 L. Ed. 2d 1210", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1976, "opinion_index": 0 }, { "cite": "428 U.S. 904", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6184738, 6185094, 6184392, 6185357, 6183598, 6183984, 6185553, 6184594, 6184179, 6183446, 6184922, 6183803 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/us/428/0904-08", "/us/428/0904-10", "/us/428/0904-06", "/us/428/0904-11", "/us/428/0904-02", "/us/428/0904-04", "/us/428/0904-12", "/us/428/0904-07", "/us/428/0904-05", "/us/428/0904-01", "/us/428/0904-09", "/us/428/0904-03" ] }, { "cite": "109 S.E. 71", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1921, "pin_cites": [ { "page": "72" } ], "opinion_index": 0 }, { "cite": "182 N.C. 844", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8659240 ], "year": 1921, "pin_cites": [ { "page": "845-46" } ], "opinion_index": 0, "case_paths": [ "/nc/182/0844-01" ] }, { "cite": "219 S.E.2d 178", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "pin_cites": [ { "page": "187", "parenthetical": "quoting State v. Skeen, 182 N.C. 844, 845-46, 109 S.E. 71, 72 (1921)" } ], "opinion_index": 0 }, { "cite": "288 N.C. 397", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569503 ], "year": 1975, "pin_cites": [ { "page": "411", "parenthetical": "quoting State v. Skeen, 182 N.C. 844, 845-46, 109 S.E. 71, 72 (1921)" } ], "opinion_index": 0, "case_paths": [ "/nc/288/0397-01" ] }, { "cite": "352 S.E.2d 428", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1987, "pin_cites": [ { "page": "432" }, { "page": "432" } ], "opinion_index": 0 }, { "cite": "319 N.C. 73", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4748383 ], "weight": 2, "year": 1987, "pin_cites": [ { "page": "78" }, { "page": "78" } ], "opinion_index": 0, "case_paths": [ "/nc/319/0073-01" ] }, { "cite": "403 S.E.2d 474", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "opinion_index": 0 }, { "cite": "328 N.C. 668", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2541546 ], "year": 1991, "opinion_index": 0, "case_paths": [ "/nc/328/0668-01" ] }, { "cite": "233 S.E.2d 574", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1977, "opinion_index": 0 }, { "cite": "292 N.C. 357", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569762 ], "weight": 2, "year": 1977, "opinion_index": 0, "case_paths": [ "/nc/292/0357-01" ] }, { "cite": "432 S.E.2d 349", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1993, "opinion_index": 0 }, { "cite": "334 N.C. 402", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2532283 ], "weight": 2, "year": 1993, "opinion_index": 0, "case_paths": [ "/nc/334/0402-01" ] }, { "cite": "277 S.E.2d 439", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "303 N.C. 173", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571816 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/nc/303/0173-01" ] }, { "cite": "134 L. 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Ed. 2d", "year": 1996, "opinion_index": 0 }, { "cite": "461 S.E.2d 687", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1995, "opinion_index": 0 }, { "cite": "341 N.C. 198", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 793223 ], "weight": 3, "year": 1995, "opinion_index": 0, "case_paths": [ "/nc/341/0198-01" ] }, { "cite": "243 S.E.2d 380", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "295 N.C. 66", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560988 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/nc/295/0066-01" ] }, { "cite": "453 S.E.2d 512", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1995, "pin_cites": [ { "page": "515" } ], "opinion_index": 0 }, { "cite": "339 N.C. 562", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2558420 ], "weight": 2, "year": 1995, "pin_cites": [ { "page": "569" } ], "opinion_index": 0, "case_paths": [ "/nc/339/0562-01" ] }, { "cite": "419 S.E.2d 545", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "pin_cites": [ { "page": "554" } ], "opinion_index": 0 }, { "cite": "331 N.C. 515", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2500856 ], "year": 1992, "pin_cites": [ { "page": "532" } ], "opinion_index": 0, "case_paths": [ "/nc/331/0515-01" ] }, { "cite": "440 S.E.2d 559", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "562" } ], "opinion_index": 0 }, { "cite": "335 N.C. 729", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2530965 ], "year": 1994, "pin_cites": [ { "page": "735" } ], "opinion_index": 0, "case_paths": [ "/nc/335/0729-01" ] }, { "cite": "372 S.E.2d 523", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "526" } ], "opinion_index": 0 }, { "cite": "323 N.C. 279", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2562603 ], "year": 1988, "pin_cites": [ { "page": "284" } ], "opinion_index": 0, "case_paths": [ "/nc/323/0279-01" ] }, { "cite": "456 S.E.2d 785", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "page": "787-88" } ], "opinion_index": 0 }, { "cite": "340 N.C. 236", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 790118 ], "year": 1995, "pin_cites": [ { "page": "239-40" } ], "opinion_index": 0, "case_paths": [ "/nc/340/0236-01" ] }, { "cite": "417 S.E.2d 228", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "opinion_index": 0 }, { "cite": "331 N.C. 680", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2500375 ], "year": 1992, "opinion_index": 0, "case_paths": [ "/nc/331/0680-01" ] } ], "analysis": { "cardinality": 1077, "char_count": 33172, "ocr_confidence": 0.739, "pagerank": { "raw": 8.49100759010399e-08, "percentile": 0.4862538317871042 }, "sha256": "1ab37c8cb8e6385f932c77cd3eec1eb3e3265ff319eb9f56adca4c1161ea8269", "simhash": "1:5f086a2272560372", "word_count": 5366 }, "last_updated": "2023-07-14T22:15:37.608853+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "STATE OF NORTH CAROLINA v. JOE CEPHUS JOHNSTON, JR." ], "opinions": [ { "text": "PARKER, Justice.\nAt defendant\u2019s first trial on an indictment charging him with the murder of Ralph Reese Bryant, defendant and codefendant Morris Wayne Johnson were found guilty of first-degree murder; and the trial court entered judgments sentencing defendant to death and Johnson to life imprisonment. This Court vacated the verdicts and judgments and remanded both defendant\u2019s case and Johnson\u2019s case for new trial. State v. Johnston, 331 N.C. 680, 417 S.E.2d 228 (1992). On remand defendant was tried separately and capitally on the indictment charging him with the victim\u2019s murder. The jury returned a verdict finding defendant guilty of first-degree murder. During a capital sentencing proceeding, the jury was unable to unanimously agree as to its sentencing recommendation; and the trial court imposed a mandatory sentence of life imprisonment. For the reasons discussed herein, we conclude that defendant\u2019s trial was free of prejudicial error and uphold his conviction and sentence.\nAt trial the State\u2019s evidence tended to show that on 20 February 1988, Jackie Jamerson (now Jackie Cutchin), Cindy Davis (now Cindy Griffin), and Bryant went to a nightclub in Roanoke Rapids, North Carolina. As Cutchin, Griffin, and Bryant left the nightclub, a group of people, including defendant, began making comments to Cutchin and Griffin. Cutchin and Griffin got into the car. Charlie Johnston brushed up against Bryant as Bryant was getting into the car, and the two exchanged words. Johnston then walked to a nearby hill where he joined defendant and his friends. One of the men in the group challenged Bryant to come across a fence located on the hill and fight. Bryant took off his boots and jumped to the other side of the fence, but no one in defendant\u2019s group approached him. Griffin got out of the car and suggested to Bryant that they leave, and Griffin and Bryant went back to the car.\nAs Bryant and the women drove away, Michael Ennis Smith, Jr. began chasing their car. Bryant stopped the car, caught Smith, and knocked him onto the pavement. Bryant told Smith that he wanted Smith\u2019s group to leave Bryant and the two women alone. After Bryant let Smith get up, Smith went back and joined his friends.\nDefendant and approximately fifteen men then walked down the hill in Bryant\u2019s direction. Defendant said to Bryant, \u201cIf you want to f\u2014 with somebody, you f\u2014 with me.\u201d A fight ensued involving primarily Bryant, defendant, and Morris Johnson. Defendant pulled a knife from his pocket and began stabbing Bryant. Johnson also pulled something out of his pocket and began to strike Bryant in the back. Someone yelled \u201che\u2019s been hurt bad,\u201d and everyone scattered. Bryant was fatally wounded during the course of the altercation.\nPhillip Lee Ricks, Jr., an emergency medical technician, responded to an emergency call from the Roanoke Rapids Police Department during the early morning hours of 21 February 1988. When Ricks arrived at the crime scene, the victim showed no signs of life. Ricks testified that he found a box cutter about ten or twelve feet from the victim\u2019s body. A fingerprint on the box cutter was later identified as belonging to Morris Johnson.\nPathologist Robert Patrick Dorion performed an autopsy on the body of the victim. Dr. Dorion testified that there were twenty-four different wounds on the victim\u2019s body, which cumulatively caused the victim\u2019s death. Dr. Dorion could not say which of the two weapons, the knife or the box cutter, caused the majority of the victim\u2019s wounds. Dr. Dorion did specifically opine that one of the lethal wounds was consistent with a wound which would have been inflicted by a knife, rather than a box cutter.\nDefendant testified on his own behalf. Defendant stated that after leaving the nightclub the morning of 21 February, he saw Bryant fighting with Morris Johnson. Defendant testified that he reached down to pull Bryant off Johnson and Bryant spun around and kicked him in the head. Defendant claimed that Bryant\u2019s actions stunned him and that he \u201cjust lost it\u201d and started fighting. Defendant stated that he never intended to do anything but break up the fight and that he did not recall taking his knife out of his pocket.\nIn his first assignment of error, defendant contends that the trial court erred by refusing to instruct the jury on voluntary manslaughter. The record in this case shows that the trial court instructed the jury that it could find defendant (i) guilty of first-degree murder on the basis of premeditation and deliberation, (ii) guilty of second-degree murder, or (iii) not guilty. The jury having returned a verdict finding defendant guilty of murder in the first degree, any error in failing to instruct the jury on voluntary manslaughter could not have prejudiced defendant. State v. Leach, 340 N.C. 236, 239-40, 456 S.E.2d 785, 787-88 (1995). This assignment of error is overruled.\nIn his next assignment of error, defendant contends that the trial court erred by permitting the prosecutor to use photographs of the victim to cross-examine defendant. During cross-examination of defendant, the prosecutor showed defendant two photographs of the deceased victim at the scene and asked defendant whether he recognized the victim. The trial court overruled defendant\u2019s objection, and defendant stated that he did not recognize the victim. The prosecutor then showed defendant five autopsy photographs and asked defendant to \u201c[p]oint out what, if any, wounds on the body of that person that you inflicted.\u201d Over objection defendant responded that he did not know whether he inflicted any of the wounds depicted in the photographs. Defendant argues that the prosecutor\u2019s use of the photographs during his cross-examination was inflammatory, unfairly prejudicial, and in violation of the Rules of Evidence.\n\u201cPhotographs of a homicide victim may be introduced even if they are gory, gruesome, horrible or revolting, so long as they are used for illustrative purposes and so long as their excessive or repetitious use is not aimed solely at arousing the passions of the jury.\u201d State v. Hennis, 323 N.C. 279, 284, 372 S.E.2d 523, 526 (1988). The photographs used by the prosecutor to cross-examine defendant had been admitted into evidence and published to the jury to illustrate the testimony of the pathologist and various other State\u2019s witnesses. During cross-examination the prosecutor asked defendant a limited number of questions requiring defendant to examine the photographs, and the photographs were not republished to the jury at that time. We conclude that the manner in which the photographs were used to cross-examine defendant was not aimed solely at arousing the passions of the jury and did not result in any unfair prejudice to defendant. This assignment of error is overruled.\nIn his next assignment of error, defendant contends that the trial court erred by permitting testimony describing defendant\u2019s use of a knife to skin a deer. Defendant argues that this testimony was irrelevant and that any probative value was substantially outweighed by the danger of unfair prejudice, confusion of issues, or misleading the jury.\nEvidence is relevant if it has \u201cany tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.\u201d N.C.G.S. \u00a7 8C-1, Rule 401 (1992). Generally, all relevant evidence is admissible. N.C.G.S. \u00a7 8C-1, Rule 402 (1992). This Court has consistently stated that \u201cin a criminal case every circumstance calculated to throw any light upon the supposed crime is admissible and permissible.\u201d State v. Collins, 335 N.C. 729, 735, 440 S.E.2d 559, 562 (1994).\nRelevant evidence may, however, be excluded \u201cif its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.\u201d N.C.G.S. \u00a7 8C-1, Rule 403 (1992). \u201cWhether to exclude relevant but prejudicial evidence under Rule 403 is a matter left to the sound discretion of the trial court.\u201d State v. Handy, 331 N.C. 515, 532, 419 S.E.2d 545, 554 (1992).\nAt trial Melody Sherrod, defendant\u2019s girlfriend, examined a knife which the State had previously introduced into evidence and testified that she had seen defendant wash blood off this knife shortly after the killing. Sherrod further testified that she had seen defendant sharpen the knife and use the knife to \u201cclean deer\u201d prior to the killing. Over defendant\u2019s objection Sherrod explained the process of cleaning a deer: \u201cWell, you string \u2014 they string the deer up and then you cut it and skin it and then cut the guts out of it and pull the skin off and cut the head off.\u201d\nEven if we assume arguendo that the detailed description of the deer-cleaning process was not relevant, the error in admitting this testimony was harmless. The evidence of defendant\u2019s guilt was overwhelming. Eyewitness testimony established that defendant brutally stabbed the victim to death. Defendant has not shown that, had the witness not been permitted to describe defendant\u2019s use of his knife to skin a deer, a different result would have been reached at trial. See N.C.G.S. \u00a7 15A-1443(a) (1988). This assignment of error is overruled.\nIn defendant\u2019s next assignment of error, he contends the trial court erred in allowing the State to introduce evidence of the victim\u2019s character for peacefulness, before his character was put in issue, in violation of N.C.G.S. \u00a7 8C-1, Rule 404(a). Rule 404(a) prohibits the admission of evidence of a person\u2019s character, or a trait of his character, for the purpose of proving conduct in conformity, except in certain limited circumstances. N.C.G.S. \u00a7 8C-1, Rule 404(a) (Supp. 1995). Rule 404(a)(2) allows the admission of evidence of a victim\u2019s peaceful character to rebut defense evidence that the victim was the first aggressor. N.C.G.S. \u00a7 8C-1, Rule 404(a)(2). During the direct examination of Jackie Cutchin, Cutchin testified that she had never known the victim to carry any type of weapon and that to her knowledge, the victim was not carrying a weapon on the night of his murder. Defendant contends that this testimony was inadmissible character evidence pursuant to N.C.G.S. \u00a7 8C-1, Rule 404(a)(2). Defendant\u2019s contention has no merit.\nCutchin\u2019s testimony was relevant and admissible to show that the victim was unarmed when he was murdered. Evidence that a victim was peaceful and unarmed at the time of his murder is relevant to prove that the victim did not provoke the defendant and that the murder was committed with premeditation and deliberation. State v. Alford, 339 N.C. 562, 453 S.E.2d 512 (1995). Similarly, evidence which shows that a defendant continued to inflict deadly wounds on an unarmed victim, even after he is rendered helpless, is probative to show premeditation and deliberation. State v. Barbour, 295 N.C. 66, 243 S.E.2d 380 (1978). Any peripheral questioning about whether the victim carried a weapon in the past was not prejudicial. See Alford, 339 N.C. at 569, 453 S.E.2d at 515. Thus, admission of Cutchin\u2019s testimony was not error.\nDuring the cross-examination of Cindy Griffin, the victim\u2019s girlfriend, defense counsel asked Griffin whether the victim was under the influence of alcohol the night of the murder and whether the victim was aggressive that night. Griffin responded negatively to each question. Defense counsel then asked Griffin whether she and the victim \u201cwere wanting to fight that night.\u201d Griffin again responded in the negative. On redirect examination the prosecutor asked Griffin, over objection, whether she and the victim had ever been in a fight with anybody else or if the victim had ever been in a fight in her presence. Griffin answered in the negative to these questions as well. Defendant contends that this testimony was also inadmissible character evidence pursuant to N.C.G.S. \u00a7 8C-1, Rule 404(a)(2). Again, defendant\u2019s contention has no merit.\nThe State has the right to introduce evidence to rebut or explain evidence elicited by defendant although the evidence would otherwise be incompetent or irrelevant. State v. Alston, 341 N.C. 198, 461 S.E.2d 687 (1995), cert. denied,-U.S.-, 134 L. Ed. 2d 100 (1996); State v. Albert, 303 N.C. 173, 277 S.E.2d 439 (1981). Such evidence is admissible to dispel favorable inferences arising from defendant\u2019s cross-examination of a witness. Alston, 341 N.C. 198, 461 S.E.2d 687; State v. Lynch, 334 N.C. 402, 432 S.E.2d 349 (1993); State v. Stanfield, 292 N.C. 357, 233 S.E.2d 574 (1977). In the instant case defense counsel cross-examined Griffin in a manner suggesting that on the night of his murder, the victim was \u201clooking for a fight.\u201d In State v. McKinnon, 328 N.C. 668, 403 S.E.2d 474 (1991), this Court stated that although questions by defense counsel do not constitute evidence, they may suggest the fact sought to be propounded. Although Griffin responded on cross-examination that she and the victim were not looking for a fight, defense counsel suggested, through the language of his questions, the facts which he sought to elicit. Defendant having thereby opened the door, the State was entitled to introduce rebuttal evidence. Thus, admission of Griffin\u2019s testimony was not error.\nRegardless, defendant cannot show that he was prejudiced by the testimony of either Cutchin or Griffin. The evidence of defendant\u2019s guilt in the instant case was overwhelming. Defendant cannot show that there is a reasonable possibility that the outcome of his trial would have been different if the trial court had prohibited Cutchin from testifying that she had never seen the victim carrying a weapon or had prohibited Griffin from testifying that the victim had not engaged in a fight during the time she had known him. See N.C.G.S. \u00a7 15A-1443(a). This assignment of error is overruled.\nIn defendant\u2019s next assignment of error, he contends the trial court erred in not allowing defendant to elicit testimony from Jackie Cutchin that the victim was in an \u201caggressive posture\u201d the night he was murdered. During the cross-examination of Cutchin, the following occurred:\nQ. You said before Mr. Bryant went over the fence, he took his boots off?\nA. Yes, sir.\nQ. Why did he do that?\n[Prosecutor] : Obj ection.\nThe Court: Overruled. If you know, you may answer.\nA. I don\u2019t know.\nQ. Did Mr. Bryant know karate?\nA. Yes, I believe he did.\nQ. He took his boots off because he was getting ready to fight, was he not?\n[Prosecutor]: Objection.\nThe Court: Objection sustained.\nThe question at issue was asked during cross-examination, after Cutchin had testified to the victim\u2019s peacefulness. Defendant contends the question was propounded to rebut the State\u2019s evidence of the victim\u2019s peacefulness and to impeach this particular witness. Defendant further maintains that the fact that later witnesses testified that the victim was indeed in an aggressive posture does not make this alleged error harmless since \u201cthe impact did not have the same heft as it would have had [had] it been elicited from [the victim\u2019s] friends.\u201d\nThe trial court did not err in sustaining the State\u2019s objection to this question. Defense counsel asked Cutchin why defendant took his boots off, and Cutchin stated that she did not know. The question objected to by the State had already been asked and answered.\nFurthermore, evidence to the same effect came in through another witness. Defense counsel subsequently introduced testimony suggesting that defendant took off his boots in order to fight. During the cross-examination of Cindy Griffin, the following occurred:\nQ. Mr. Bryant took his boots off, didn\u2019t he?\nA. Yes, Sir.\nQ. Why did he take them off?\n[Prosecutor]: Objection.\nThe Court: Overruled, if you know.\nA. He was \u2014 he would have fought if somebody had come over to the other side of the fence.\nGriffin then testified that the victim knew karate and did not wear his shoes when he practiced karate. This assignment of error is overruled.\nIn defendant\u2019s next assignment of error, he contends the trial court erred in allowing Dr. Robert Patrick Dorion, the pathologist who performed the autopsy on the victim, \u201cto bolster his findings by the hearsay statements of two of his colleagues.\u201d Defendant maintains that the trial court\u2019s action violated the Rules of Evidence, precluded defendant from cross-examining these declarants, and unfairly prejudiced defendant.\nDuring the cross-examination of Dr. Dorion, the defense brought out the fact that Dr. Dorion had performed only three or four autopsies involving stab wounds at the time he did the autopsy in the instant case. The defense also elicited the fact that Dr. Dorion consulted with two of his colleagues before rendering an opinion in this case \u201c[b]ecause of the nature of the case and the multiplicity of wounds.\u201d On redirect examination of Dr. Dorion, the prosecutor asked Dr. Dorion which of his colleagues he had consulted. Dr. Dorion stated that he had consulted with Drs. Levy and Zipf, who were also pathologists. Over objection Dr. Dorion further stated that the two doctors had concurred with his opinions in this case. Defendant argues that the fact that the two doctors concurred with Dr. Dorion bolstered the State\u2019s argument that one of the most serious wounds inflicted on the victim was inflicted by defendant\u2019s knife.\nAs stated previously this Court permits the introduction of evidence to dispel favorable inferences arising from defendant\u2019s cross-examination of a witness. Alston, 341 N.C. 198, 461 S.E.2d 687; Lynch, 334 N.C. 402, 432 S.E.2d 349; Stanfield, 292 N.C. 357, 233 S.E.2d 574. In th\u00e9 instant case the defendant \u201copened the door\u201d to the introduction of any incompetent or irrelevant hearsay relative to Dr. Dorion\u2019s consultation with Drs. Levy and Zipf by creating an inference during Dr. Dorion\u2019s cross-examination that he lacked expertise, had little confidence in his findings, and sought help from his colleagues. By questioning Dr. Dorion about his consultation with his colleagues, defendant opened the door to the evidence testified to by Dr. Dorion on his redirect examination. This assignment of error is overruled.\nIn his next assignment of error, defendant contends that the trial court erred by allowing Cindy Griffin\u2019s testimony with respect to the victim\u2019s options in leaving the scene and with respect to defendant\u2019s intent at that time. Over defendant\u2019s objection Griffin testified on redirect examination that (i) the victim would have been crazy to turn his back on the crowd because defendant was \u201cgoing to do something\u201d; (ii) anyone could tell that defendant was \u201cgoing to do something\u201d; and (iii) there was no way Griffin, Cutchin, and the victim could have gotten in their car and driven off before defendant approached them. Defendant argues that this testimony was speculative, beyond Griffin\u2019s knowledge, and beyond the lay opinion permitted by N.C.G.S. \u00a7 8C-1, Rule 701.\nN.C.G.S. \u00a7 8C-1, Rule 701 provides:\nIf the witness is not testifying as an expert, his testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of his testimony or the determination of a fact in issue. 4.\nN.C.G.S. \u00a7 8C-1, Rule 701 (1992); accord State v. Williams, 319 N.C. 73, 78, 352 S.E.2d 428, 432 (1987). This rule permits evidence which can be characterized as a \u201cshorthand statement of fact.\u201d\nThis Court has long held that a witness may state the \u201cinstantaneous conclusions of the mind as to the appearance, condition, or mental or physical state of persons, animals, and things, derived from observation of a variety of facts presented to the senses at one and the same time.\u201d Such statements are usually referred to as shorthand statements of facts.\nState v. Spaulding, 288 N.C. 397, 411, 219 S.E.2d 178, 187 (1975) (quoting State v. Skeen, 182 N.C. 844, 845-46, 109 S.E. 71, 72 (1921)), death sentence vacated, 428 U.S. 904, 49 L. Ed. 2d 1210 (1976); accord Williams, 319 N.C. at 78, 352 S.E.2d at 432. Griffin\u2019s testimony that defendant was \u201cgoing to do something\u201d and that they did not have time to leave before defendant approached represented an instantaneous conclusion based on her observation of a variety of facts; and, as such, the testimony may be characterized as a \u201cshorthand statement of fact.\u201d This assignment of error is overruled.\nIn his final assignment of error, defendant contends the trial court erred by permitting the prosecutor to ask prospective jurors if the jurors understood that the State might call family members and associates of defendant as \u201chostile\u201d witnesses. The following colloquy is an example of the line of inquiry which defendant contends was improper:\nQ. We may call some family members and some associates of this defendant, people that hung out with him. Do you understand what I\u2019m saying.\nA. Yes.\nQ. Do you understand that we may call these people as what\u2019s known as hostile witnesses?\n[Defense Counsel]: Objection.\nThe Court: Overruled.\nQ. Do you understand we may call some of these people as hostile witnesses? Do you understand?\n[Defense Counsel]: Objection.\nThe Court: Overruled.\nA. Yes, sir.\nQ. Would you weigh their testimony \u2014 family members and associates of this defendant that we may call; would you weigh their testimony carefully?\nA. Yes, I would look at the family members. They could say anything, you know. Family likes \u2014 a lot of times takes up for these things.\nWe note that defendant assigned error to more than forty instances in which the prosecutor pursued a substantially similar line of inquiry. Defendant contends that referring to family and associates of defendant as \u201chostile\u201d witnesses improperly suggested that (i) witnesses who knew defendant were automatically hostile, (ii) the testimony of \u201chostile\u201d witnesses should be scrutinized more carefully than other witnesses, and (iii) testimony from \u201chostile\u201d witnesses could be discarded if it was not favorable to the State. Defendant argues that there was ho factual basis for suggesting that any witness would be \u201chostile\u201d and that referring to certain witnesses by that term created \u201cautomatic antipathy to and distrust of any friend or family member of the defendant.\u201d\n\u201cThe trial court has the duty to supervise the examination of prospective jurors. Regulation of the manner and the extent of inquiries on voir dire rests largely in the trial court\u2019s discretion.\u201d State v. Green, 336 N.C. 142, 164, 443 S.E.2d 14, 27, cert. denied,-U.S.-, 130 L. Ed. 2d 547 (1994). \u201cIn order for a defendant to show reversible error in the trial court\u2019s regulation of jury selection, a defendant must show that the court abused its discretion and that he was prejudiced thereby.\u201d State v. Lee, 335 N.C. 244, 268, 439 S.E.2d 547, 559, cert. denied,-U.S. \u2014, 130 L. Ed. 2d 162 (1994).\nAfter careful review of the transcript of jury voir dire, we conclude that the trial court did not abuse its discretion in permitting the prosecutor to ask prospective jurors whether they understood that he might call family and associates of defendant as \u201chostile\u201d witnesses. Defendant objected to these questions primarily on the basis that only the trial court has the discretion to declare a witness \u201chostile.\u201d The prosecutor\u2019s statements that family and associates of defendant might be called as \u201chostile\u201d witnesses did not suggest that testimony of these witnesses should be considered more carefully than other witnesses or that testimony by these witnesses unfavorable to the State could be discarded. We conclude that defendant has failed to show abuse of discretion or prejudice in the trial court\u2019s rulings on this issue. This assignment of error is overruled.\nWe conclude that defendant received a fair trial free from prejudicial error.\nNO ERROR.", "type": "majority", "author": "PARKER, Justice." } ], "attorneys": [ "Michael F. Easley, Attorney General, by Jill Ledford Cheek, Assistant Attorney General, for the State.", "Nora Henry Hargrove for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. JOE CEPHUS JOHNSTON, JR.\nNo. 200A89-2\n(Filed 11 October 1996)\n1. Homicide \u00a7 558 (NCI4th)\u2014 first-degree murder \u2014 no instruction on voluntary manslaughter \u2014 no error\nThere was no error in a capital first-degree murder prosecution which resulted in a life sentence where the court refused to instruct the jury on voluntary manslaughter. The jury was instructed that it could find defendant guilty of first-degree murder based on premeditation, second-degree murder, or not guilty, and the jury found defendant guilty of first-degree murder. Any error in failing to instruct on voluntary manslaughter could not have prejudiced defendant.\nAju Jur 2d, Homicide \u00a7\u00a7 56-69.\nPropriety of manslaughter conviction in prosecution for murder, absent proof of necessary elements of manslaughter. 19 ALR4th 861.\n2. Evidence and Witnesses \u00a7 1694 (NCI4th)\u2014 first-degree murder \u2014 photographs of victim \u2014 introduced to illustrate pathologist\u2019s testimony \u2014 used in cross-examination of defendant\nThe trial court did not err in a capital first-degree murder prosecution which resulted in a life sentence by permitting the prosecutor to use photographs of the victim to cross-examine defendant where the photographs had been admitted into evidence and published to the jury to illustrate the testimony of the pathologist and various other State\u2019s witnesses; the prosecutor asked defendant a limited number of questions requiring defendant to examine the photographs; and the photographs were not republished to the jury at that time. The manner in which the photographs were used to cross-examine defendant was not aimed solely at arousing the passions of the jury and did not result in any unfair prejudice.\nAm Jur 2d, Evidence \u00a7\u00a7 963, 964.\nAdmissibility of photograph of corpse in prosecution for homicide or civil action for causing death. 73 ALR2d 769.\nNecessity and effect, in homicide prosecution, of expert medical testimony as to cause of death. 65 ALR3d 283.\nEvidence offered by defendant at federal criminal trial as inadmissible, under Rule 403 of Federal Rules of Evidence, on ground that probative value is substantially outweighed by danger of unfair prejudice, confusion of issues, or misleading the jury. 76 ALR Fed. 700.\n3. Evidence and Witnesses \u00a7 728 (NCI4th)\u2014 murder \u2014 defendant\u2019s use of knife to skin deer \u2014 testimony not prejudicial error\nThere was no prejudicial error in a capital first-degree murder prosecution (with a life sentence) where the victim had been stabbed where the court permitted testimony describing defendant\u2019s use of a knife to skin a deer. Assuming that the detailed description of the deer-cleaning process was not relevant, the error was harmless because the evidence of defendant\u2019s guilt was overwhelming. Defendant has not shown that a different result would have been reached had the witness not been permitted to describe defendant\u2019s use of his knife to skin a deer.\nAm Jur 2d, Evidence \u00a7\u00a7 347, 348; Witnesses \u00a7 625.\n4. Evidence and Witnesses \u00a7 264 (NCI4th)\u2014 murder \u2014 testimony as to victim not carrying weapon \u2014 admissible\nThere was no prejudicial error in a capital prosecution for first-degree murder which resulted in a life sentence where the State introduced evidence of the victim\u2019s character for peacefulness before his character was put in issue. A witness who was with the victim at the time of the stabbing testified on direct examination that she had never known the victim to carry any type of weapon and that to her knowledge the victim was not carrying a weapon on the night of his murder. Testimony that the victim was unarmed and that a defendant continued to inflict deadly wounds on an unarmed victim, even after he is rendered helpless, is relevant to premeditation and peripheral questioning about whether the victim carried a weapon in the past was not prejudicial. Moreover, the evidence of defendant\u2019s guilt was overwhelming and defendant cannot show that there is a reasonable possibility that the outcome of the trial would have been different if the court had prohibited the testimony.\nAm Jur 2d, Evidence \u00a7 373; Homicide \u00a7 308.\nRight of prosecution, in homicide case, to introduce evidence in rebuttal to show good, quiet, and peaceable character of deceased. 34 ALR2d 451.\n5. Evidence and Witnesses \u00a7 2750.1 (NCI4th)\u2014 murder\u2014 cross-examination \u2014 suggestion of facts with questions\u2014 door opened\nThere was no prejudicial error in a capital prosecution for first-degree murder which resulted in a life sentence where defense counsel asked the victim\u2019s girlfriend whether the victim was under the influence of alcohol the night of the murder, whether the victim was aggressive, and whether she and the victim were wanting to fight that night, and the prosecutor asked on redirect whether the witness and the victim had ever been in a fight with anybody else or if the victim had ever been in a fight in her presence. Defense counsel cross-examined the witness in a manner suggesting that the victim was looking for a fight on the night of his murder; defendant having opened the door, the State was entitled to introduce rebuttal evidence. Regardless, the evidence of defendant\u2019s guilt was overwhelming and defendant cannot show prejudice.\nAm Jur 2d, Evidence \u00a7\u00a7 383, 388, 431; Homicide \u00a7 299.\nPrejudicial effect of prosecutor\u2019s comment on character or reputation of accused, where accused has presented character witnesses. 70 ALR2d 559.\nCross-examination of character witness for accused with reference to particular acts or crimes \u2014 modern state rules. 13 ALR4th 796.\n6. Evidence and Witnesses \u00a7\u00a7 788, 2913 (NCI4th)\u2014 murder\u2014 testimony as to victim\u2019s aggression excluded \u2014 other evidence\nThe trial court in a capital prosecution for first-degree murder which resulted in a life sentence did not err by not allowing defendant to elicit testimony from the victim\u2019s companion that the victim was in an aggressive posture the night he was murdered. The question objected to by the State had already been asked and answered and evidence to the same effect came in through another witness.\nAm Jur 2d, Evidence \u00a7 356; Trial \u00a7 1472.\n7. Evidence and Witnesses \u00a7 2750.1 (NCI4th)\u2014 murder\u2014 cross-examination \u2014 inference\u2014door opened\nThere was no error in a capital prosecution for first-degree murder which resulted in a life sentence where the defense brought out on cross-examination of the pathologist who performed the autopsy on the victim that the pathologist had performed only three or four autopsies involving stab wounds at the time he did this autopsy and that he had consulted with two of his colleagues; the prosecutor had asked on redirect which colleagues had been consulted; and the pathologist identified his colleagues and further stated that they had concurred with his opinions. Defendant opened the door by creating an inference on cross-examination that the pathologist lacked expertise, had little confidence in his findings, and sought help from his colleagues.\nAm Jur 2d, Trial \u00a7 564.\nNecessity and effect, in homicide prosecution, of expert medical testimony as to cause of death. 65 ALR3d 283.\nCross-examining expert witness regarding his status as professional witness. 39 ALR4th 742.\n8. Evidence and Witnesses \u00a7 2051 (NCI4th)\u2014 murder \u2014 testimony of victim\u2019s companion \u2014 no time to leave as defendant approached \u2014 instantaneous conclusion of mind\nThe trial court did not err in a capital prosecution for first-degree murder which resulted in a life sentence by allowing the victim\u2019s girlfriend to testify with respect to the victim\u2019s options in leaving the scene and with respect to defendant\u2019s intent at that time. The witness\u2019s testimony that defendant was \u201cgoing to do something\u201d and that they did not have time to leave before defendant approached represented an instantaneous conclusion based on her observation of a variety of facts; as such, the testimony may be characterized as a \u201cshorthand statement of fact.\u201d\nAm Jur 2d, Evidence \u00a7 558; Homicide \u00a7 163.\n9. Jury \u00a7 131 (NCI4th)\u2014 murder \u2014 jury selection \u2014 possibility of hostile witnesses\nThe trial court did not abuse its discretion in a capital prosecution for first-degree murder which resulted in a life sentence by permitting the prosecutor to ask prospective jurors if they understood that the State might call family members and associates of defendant as \u201chostile\u201d witnesses. Defendant objected to these questions primarily on the basis that only the trial court has the discretion to declare a witness hostile, but the prosecutor\u2019s statements that family and associates of defendant might be called as hostile witnesses did not suggest that testimony of these witnesses should be considered more carefully than other witnesses or that testimony by these witnesses unfavorable could be discarded. Defendant failed to show abuse of discretion or prejudice.\nAm Jur 2d, Judges \u00a7 171.\nAppeal as of right pursuant to N.C.G.S. \u00a7 7A-27(a) from a judgment imposing a sentence of life imprisonment entered by Herring, J., at the 11 July 1994 Criminal Session of Superior Court, Halifax County, upon a jury verdict of guilty of first-degree murder. Heard in the Supreme Court 16 May 1996.\nMichael F. Easley, Attorney General, by Jill Ledford Cheek, Assistant Attorney General, for the State.\nNora Henry Hargrove for defendant-appellant." }, "file_name": "0596-01", "first_page_order": 628, "last_page_order": 643 }