State v. See

271 S.E.2d 282 (1980)

STATE of North Carolina v. Edward Allen SEE a/k/a David Penny.

No. 56.

Supreme Court of North Carolina.

November 4, 1980.

*283 Atty. Gen. Rufus L. Edmisten by Spec. Deputy Atty. Gen. Isham B. Hudson, Jr., Raleigh, for the state.

Robert D. Jacobson, Lumberton, for defendant-appellant.

BRITT, Justice.

Defendant first contends that the trial court prejudicially erred by allowing the assistant district attorney to display a .22 caliber pistol before the jury. Two of the state's witnesses testified that the gun which was displayed was similar to the gun which allegedly had been used by defendant on the night the crimes in question were committed. There is no merit in this contention.

Mr. Bayne Prevatte, assistant manager of the McDonald's Restaurant, and Mr. Hammonds were both present when defendant *284 purportedly entered the restaurant and brandished a small revolver. During the direct examination of Mr. Prevatte, the assistant district attorney presented him with a .22 caliber pistol which had been marked as state's Exhibit 1. The gun was also shown to Mr. Hammonds. Both witnesses testified that the gun which was exhibited to them was similar to the gun which their assailant had employed on the evening of 16 October 1979. At no time did the state make a formal tender of the exhibit. During his charge, the trial judge instructed the jury that the exhibit was not substantive evidence but that it could be considered by them as illustrative of the testimony of Mr. Prevatte and Mr. Hammonds.

In their testimony, both witnesses fully described the kind of weapon that had been employed in their presence at the restaurant by the robber. Both men testified that state's Exhibit 1 was similar to the gun they had seen on the evening of 16 October 1979. It is an established principle of the law of evidence that a model of a place or a person or an object may be employed to illustrate the testimony of a witness so as to make it more intelligible to the court and to the jury. Britt v. Carolina N. R. R., 148 N.C. 37, 61 S.E. 601 (1908); see 1 Stansbury's North Carolina Evidence § 34 (Brandis Rev. 1973); compare McCormick's Handbook on the Law of Evidence § 213 (2d ed. 1972). Furthermore, we are unable to perceive there to have been prejudice to defendant in the exhibition of the gun during the testimony of Mr. Prevatte because Mr. Hammonds was allowed to testify that the exhibit in question was about the same size as the gun he had seen in the possession of defendant at the restaurant. Defendant made no objection to that testimony. Such an absence waives the benefit of his prior objection during the testimony of Mr. Prevatte. E. g., State v. Hunter, 290 N.C. 556, 227 S.E.2d 535 (1976), cert. denied, 429 U.S. 1093, 97 S. Ct. 1106, 51 L. Ed. 2d 539 (1977).

Nor was it error for the trial court to allow Miss Douglas to testify that defendant "raped me" and in permitting Detective Franklin Lovette of the Lumberton Police Department to testify that Miss Douglas had told him that defendant had "raped her." Defendant argues that allowing this testimony to be received into evidence invaded the province of the jury. We disagree.

The record reveals that when Miss Douglas testified that defendant raped her, defendant objected and moved to strike her testimony in that regard. The trial judge sustained the objection but did not instruct the jury not to consider the answer of the witness in their deliberations. The failure of the court to so instruct was not error in that defendant failed to request the appropriate instruction. State v. Willard, 293 N.C. 394, 238 S.E.2d 509 (1977). Even so, had there been a proper request for instructions, defendant cannot complain about the testimony of Miss Douglas as it was competent as a shorthand statement of fact. State v. Sneeden, 274 N.C. 498, 164 S.E.2d 190 (1968).

As to the testimony of Detective Lovette, he was merely relating what Miss Douglas had told him in an interview he conducted with her on the afternoon of 22 October 1979. The court instructed the jury at the time the testimony was given that it was to be received by them only for the purpose of corroborating the earlier testimony of Miss Douglas. It was competent for this purpose in that it embodied a prior consistent statement of the prosecutrix. E. g., State v. Medley, 295 N.C. 75, 243 S.E.2d 374 (1978).

Defendant next contends that the trial court erred in admitting what he alleges was irrelevant, immaterial and incompetent evidence. This contention is without merit.

Defendant initially directs the attention of this court to the testimony of Mr. Prevatte to the effect that he had the hobby of reloading firearms and that he did some target shooting on occasion. During his testimony, the state elicited evidence from the witness which served to describe the gun which had been employed during the incident at the restaurant. The testimony of Mr. Prevatte concerning his hobby was competent to enable the state to lay an *285 adequate foundation for his subsequent testimony concerning the characteristics of state's Exhibit 1 and the similarity which it bore to the weapon defendant is alleged to have used during the robbery at the McDonald's restaurant.

Nor was it error for the trial court to allow Miss Douglas to testify that defendant told her that he had previously kidnapped another girl. An essential element of the crime of rape is that it is committed against the will of the victim. State v. Taylor, 301 N.C. 164, 270 S.E.2d 409 (1980). Since subjugation of Miss Douglas' will is a material fact in issue, defendant's statement tends to show that her will had been overcome by her fears for her safety. State v. Taylor, supra.

Defendant further contends that the trial court erred in allowing Detective Lovette to testify that at approximately 2:15 a. m. on 17 October 1979 (some two hours after the alleged offenses had been committed) he saw Miss Douglas lying on an examination table at Southeastern General Hospital and that she "appeared to be very emotional, upset." The record clearly indicates that defendant's objection was sustained and that his motion to strike was allowed. There is no indication in the record that defendant requested an instruction to the jury that it disregard the testimony. Therefore, there is no basis for his complaint against this evidence. State v. Willard, supra.

Similarly there is no merit in defendant's contention that the trial court erred in permitting the district attorney to ask Miss Douglas a leading question as to why she had submitted to engage in particular acts with defendant. Over defendant's objection, the court permitted her to testify that she had consented because she felt that she had no choice in the matter. It is the general rule in this jurisdiction that it is within the sound discretion of the trial judge to allow the use of leading questions on direction examination. See generally 1 Stansbury's North Carolina Evidence § 31 (Brandis Rev. 1973). The exercise of this discretion ought not to be disturbed when the testimony relates to matters of a delicate nature such as sexual conduct. See State v. Greene, 285 N.C. 482, 206 S.E.2d 229 (1974). We perceive no abuse of discretion.

Defendant contends next that the trial court committed prejudicial error in denying his pro se motions for a change of venue and for a psychiatric examination. This contention is without merit.

G.S. 15A-957 provides that "if, upon motion of the defendant, the court determines that there exists in the county in which the prosecution is pending so great a prejudice against the defendant that he cannot obtain a fair and impartial trial, the court must either: (1) [t]ransfer the proceeding to another county in the judicial district or to another county in an adjoining judicial district, or (2) [o]rder a special venire under the terms of G.S. 15A-958." We have held that the burden of showing "so great a prejudice against the defendant that he cannot obtain a fair and impartial trial" falls on the defendant. State v. Boykin, 291 N.C. 264, 229 S.E.2d 914 (1976). A motion for change of venue is addressed to the sound discretion of the trial judge, and abuse of discretion must be shown before there is any error. State v. Boykin, supra. Defendant did not show that he could not obtain a fair and impartial trial in Robeson County, and we perceive no abuse of discretion on the part of the trial judge in denying his motion.

With respect to defendant's motion for a psychiatric examination, this court has held that a defendant does not have an automatic right to a pretrial psychiatric examination and that the resolution of this matter is within the trial court's discretion. State v. Washington, 283 N.C. 175, 195 S.E.2d 534 (1973), cert. denied, 414 U.S. 1132, 94 S. Ct. 873, 38 L. Ed. 2d 757 (1974); see generally G.S. 15A-1002(b). Defendant failed to show in this case that he was entitled to a psychiatric examination and the trial court did not abuse its discretion in denying the motion.

*286 There is no merit in defendant's contention that the trial court erred in denying his motion for a mistrial. This motion was based on the assertion that the court erred in permitting Exhibit 1, a pistol, to be displayed in the presence of the jury. Having held above that the court did not err in permitting the pistol to be displayed in the presence of the jury, it follows that the court did not err in denying the motion for mistrial.

Defendant's contention that the trial court erred in denying his motions for directed verdict has no merit. The evidence against defendant on all charges was substantial and unequivocal.

We have considered defendant's other contentions and conclude that they too are without merit. We hold that defendant received a fair trial, free from prejudicial error.

No error.

BROCK, J., took no part in the consideration or determination of this case.