State v. Feimster

205 S.E.2d 602 (1974)

21 N.C. App. 602

STATE of North Carolina v. Ronnie FEIMSTER.

No. 7422SC394.

Court of Appeals of North Carolina.

June 5, 1974.

Certiorari Denied September 3, 1974.

*604 Atty. Gen. Robert Morgan by William Woodward Webb, Associate Atty., Raleigh, for the State.

Collier, Harris, Homesley, Jones & Gaines by Wallace W. Dixon, Statesville, for defendant appellant.

Certiorari Denied by Supreme Court September 3, 1974.

VAUGHN, Judge.

Defendant contends that the court erred in consolidating his case with that of Wilford Walls who was also indicted for the homicide of Claude (Pete) Brown Sprinkle. Both defendants were indicted for an offense of the same class arising out of the same killing. Whether to consolidate the cases for trial rested within the court's sound discretion. State v. Bass, 280 N.C. 435, 186 S.E.2d 384; G. S. § 15-152. The exercise of that discretion will not be disturbed absent a showing of abuse. State v. Yoes and Hale v. State, 271 N.C. 616, 157 S.E.2d 386. No such showing has been made in the present case. The cases were properly consolidated. State v. Spencer, 239 N.C. 604, 80 S.E.2d 670.

Defendant next asserts that the court erred in denying his motion for a mistrial which was based on the fact that a local newspaper printed an article saying that a warrant had been issued for defendant for assaulting a police officer with a deadly weapon. The story allegedly appeared at approximately the same time the court recessed overnight after the jury had been selected but before the presentation of evidence. The court denied defendant's motion without examining the jurors regarding any possible prejudicial effect of the article on them. While our Supreme Court has suggested that it might be better practice to examine each juror on the effect of a potentially prejudicial article, see State v. McVay and State v. Simmons, 279 N.C. 428, 183 S.E.2d 652, the court's failure to so in this case is not prejudicial error since the record does not demonstrate that any of the jurors read the article or that they were adversely influenced by it. See State v. McVay and State v. Simmons, supra. Whether to grant defendant's motion for a mistrial involved a discretionary *605 decision which we decline to reverse where abuse has not been shown. See 3 Strong, N.C. Index 2d, Criminal Law, § 128, p. 49.

Defendant also contends the court erroneously admitted into evidence four spent cartridges found in the taxi cab, three bullets "similar" to those removed from the deceased, an envelope containing the bullets removed from the deceased and the pistol from which the bullets and cartridges were allegedly fired. Defendant's argument that no connection was shown between the gun and bullets and defendant is without merit. Defendant also argues that the envelope, bullets and casings were inadmissible because there was a break in the chain of possession of the evidence precipitated by the death of Sgt. Tate, one of the officers who investigated the crime. With respect to the cartridges, the evidence suggested the following chain of possession. On the night of 9 May, Captain Michael Courain of the Iredell Sheriff's Department found the casings and put them in an evidence bag under the control of Sgt. L. V. Tate, now deceased. On the morning of 10 May, SBI Agent Richard Lester received four cartridges from Sgt. Tate. Lester placed identifying marks on the cartridges. The casings were then given to Cleon Mauer for ballistics analysis. At trial, Lester positively identified the casings on the basis of the presence of his identifying marks. Mauer identified them from the fact they were still in sealed envelopes marked with his fingerprints. Courain said the cartridges were similar to those he found in the cab. Regarding the bullets removed from the deceased, Dr. Schnell testified he sealed them in an envelope which he signed, dated and labeled with the name of the deceased. He turned the envelope over to Sgt. Tate. Agent Lester received the envelope, apparently still sealed, and put identifying information on the envelope. He put each bullet in a separate box, labeled each box, sealed them and turned them over to Mauer. Mauer put identification marks on the bullets and sealed them in an envelope which was still sealed when offered at trial. We conclude that the chain of possession with respect to the bullets, casings and envelope was sufficiently definite to support the identification of these items. That Dr. Schnell was only able to state that the bullets presented at trial were "similar" to those he removed from the deceased did not render the bullets inadmissible. See State v. Bass, supra; State v. Jarrett, 271 N.C. 576, 157 S.E.2d 4; State v. Culbertson, 6 N.C.App. 327, 170 S.E.2d 125.

Defendant next maintains that the trial court erred "in allowing the State to go forward in its attempt to impeach its own witness, Vernon Tomlin, and erred by allowing the witness Lester to read the statements of Tomlin and the witness Patricia Redman." The defendant further contends that the trial court "erred in not restricting the offered testimony of Tomlin to the original codefendant Wilford Walls." Sgt. Lester was permitted to testify to the contents of statements given to him by Tomlin and Redman. The purpose of this testimony was not impeachment but rather corroboration. That prior consistent statements not otherwise admissible may be admitted for corroborative purposes is well settled in this jurisdiction. Any inconsistencies between the statements given to Lester and the testimony of Tomlin and Vernon at trial were either not substantial enough to warrant excluding the evidence, State v. Westbrook, 279 N.C. 18, 181 S.E.2d 572; State v. Thompson, 8 N.C.App. 313, 174 S.E.2d 130, or were properly excluded by the court when the defendant moved to strike. Tomlin's conversation with Walls regarding his pistol was relevant to the commission of the homicide with which defendant was charged, and it was unnecessary to restrict the testimony of Tomlin to the codefendant Wilford Walls.

Defendant objects to the fact that Lester was allowed to describe the results of an experiment involving the cab in which the deceased was found. Lester and *606 another officer drove the cab from 523 S. Tradd Street to the rural intersection where it had been found. Lester stated that the fare meter was set at zero at the Tradd Street address and registered $3.50 upon arrival at the intersection. Lester detailed the route followed. Before allowing this testimony, the court conducted a voir dire examination during which Lester stated in effect that he thought the route followed was the shortest direct route, that there was another way to go, that the "differences in the two mileages was not very much," and that he "just assumed we traveled the route [the deceased] took." This assumption appears to be the basis of defendant's objection to the admission of the experimental evidence. The general rule regarding the admissibility of experimental evidence has been stated as follows:

"Experimental evidence is competent when the experiment is carried out under circumstances substantially similar to those existing at the time of the occurrence in question and tends to shed light on it. It is not required that the conditions be precisely similar, the want of exact similarity going to the weight of the evidence with the jury."

State v. Brown, 280 N.C. 588, 187 S.E.2d 85. We conclude that the trial judge did not abuse his discretion in determining that Lester's testimony was competent under the above test. See State v. Hairston and State v. Howard and State v. McIntyre, 280 N.C. 220, 185 S.E.2d 633; State v. Brown, supra. In State v. Plyler, 153 N.C. 630, 69 S.E. 269, the court held it proper to permit a witness to testify that he had gone from one place to another in a certain length of time.

Defendant assigns error to the fact that when a dispatch ticket was admitted into evidence and exhibited to the jury other documents not introduced in evidence were attached to it. As soon as this was called to the attention of the court the other documents were removed. There is nothing in the record to indicate what the "other documents" were. Defendant has failed to show prejudice, and his contention that the judge should have declared a mistrial is without merit.

We have considered defendant's remaining assignments of error, including his objections to the charge and find no prejudicial error.

No error.

CAMPBELL and MORRIS, JJ., concur.