State v. Murphy

365 S.E.2d 615 (1988)

STATE of North Carolina v. Daniel Cornelius MURPHY.

No. 325A87.

Supreme Court of North Carolina.

March 9, 1988.

*616 Lacy H. Thornburg, Atty. Gen. by Charles M. Hensey, Sp. Deputy Atty. Gen., Wilmington, for State.

Arnold Smith, Wilmington, for defendant appellant.

WEBB, Justice.

In his first assignment of error, defendant contends the trial court erred in denying his motion to sequester the prospective jurors during the selection of the jury. Defendant argues that the denial of this motion prejudiced him because of certain remarks by prospective jurors, to wit, by prospective juror number four who said, "but I believe [the death penalty] has some basis both in historical fact and in the Bible references;" by prospective juror number ten who said, "I agree exactly with what he said, again, the Biblical reference;" and by prospective juror number seven who said, "If someone has been convicted of First Degree Murder and found guilty, a life imprisonment sentence does not mean that they will be in there for life and they are capable of committing this crime again."

N.C.G.S. § 15A-1214(j) provides: "In capital cases the trial judge for good cause shown may direct that jurors be selected *617 one at a time, in which case each juror must first be passed by the State. These jurors may be sequestered before and after selection." This statute gives neither party an absolute right to such a procedure. "The decision of whether to grant sequestration and individual voir dire of prospective jurors rests in the sound discretion of the trial court, and its ruling will not be disturbed absent a showing of an abuse of discretion." State v. Barts, 316 N.C. 666, 678-9, 343 S.E.2d 828, 837 (1986). Defendant has not shown, nor can we find, any abuse of discretion by the trial court in the present case. It was defense counsel's question that elicited the remark by prospective juror number seven about life imprisonment. This prospective juror and prospective jurors four and ten were excused and never sat on the case. Furthermore, since defendant did receive a life sentence, these remarks could not have been prejudicial to him. Defendant's assignment of error has no merit.

Defendant next contends the trial court erred in denying his motion to limit the State's photographic evidence of the victim's body. This evidence included four photographs depicting all or part of the victim's body, and a videotape of the crime scene which included the body. Defendant argues that "the magnitude of the photographic evidence" depicting the victim's body tended to "repulse the sensibilities and to arouse the sympathy and passion of the jury."

Properly authenticated photographs of a homicide victim may be introduced into evidence even if they are gory, gruesome, horrible or revolting, so long as they are used by a witness to illustrate his testimony and so long as an excessive number of photographs are not used solely to arouse the passions of the jury. State v. Holden, 321 N.C. 125, 362 S.E.2d 513 (1987); State v. King, 299 N.C. 707, 264 S.E.2d 40 (1980). In the present case, the photographs and the videotape were used to illustrate testimony as to the location and condition of the victim's body. Each photograph showed something different, none was especially inflammatory, and the total amount of photographic evidence was not excessive. Furthermore, in light of the overwhelming evidence of defendant's guilt, and in light of his receiving a sentence of life imprisonment, the minimum sentence for first degree murder, we cannot find that the admission of this photographic evidence prejudiced defendant. This assignment of error is overruled.

NO ERROR.