State v. Tessenar

190 S.E.2d 313 (1972) 15 N.C. App. 424

STATE of North Carolina
v.
Bennie Boyce TESSENAR.

No. 7226SC446.

Court of Appeals of North Carolina.

August 2, 1972.

Atty. Gen. Robert Morgan by Associate Atty. Gen., Charles A. Lloyd for the State.

Jerry W. Whitley, Charlotte, for defendant appellant.

GRAHAM, Judge.

Defendant's first assignment of error challenges the sufficiency of the State's evidence. This assignment of error is overruled.

Defendant next contends the court erred in permitting Officer Lutrick to testify over objection that defendant told him, "I am the man who did it." This contention is without merit. The record affirmatively shows that this statement was volunteered by defendant before he was taken into custody. "Miranda warnings" are required only where a defendant is being subjected to custodial interrogation. State v. Fletcher and State v. Arnold, 279 N.C. 85, 181 S.E.2d 405; State v. Meadows, 272 N.C. 327, 158 S.E.2d 638.

Defendant objected to testimony by a witness as to his opinion with respect to the distance State's Exhibit #1 (defendant's shotgun) was from the deceased when it fired the shot which inflicted the fatal wound. The court did not enter a specific finding that the witness was an expert in the field of firearms and munitions. However, there was plenary evidence to show that the witness was fully experienced in this field, and also that he had test fired the gun in question. Under these circumstances, the court's failure to specifically find the witness to be an expert does not constitute reversible error. "[T]he failure of the trial judge to specifically find that the witness is an expert before allowing him to give expert testimony will not sustain a general objection to his opinion evidence if it is in response to an otherwise competent question, and if there is evidence in the record on which the court could have based a finding that the witness had expert qualifications. In such a case, it will be assumed that the court found the witness to be an expert; otherwise, it would not have permitted him to answer the question." Teague v. Duke Power Co., 258 N.C. 759, 764, 129 S.E.2d 507, 511.

Defendant's next assignment of error is directed to the admission of a photograph depicting the body of the deceased on the couch inside the trailer. The record clearly indicates that this photograph was admitted only for the purpose of illustrating the testimony of witnesses. It was competent for that purpose. State v. Gardner, 228 N.C. 567, 46 S.E.2d 824; State v. Matthews, 191 N.C. 378, 131 S.E. 743. The fact the photograph is gory or gruesome does not render it incompetent. State v. Porth, 269 N.C. 329, 153 S.E.2d 10; State v. McCain, 6 N.C.App. 558, 170 S.E.2d 531.

Defendant's final assignment of error is directed to an inquiry made by the judge to the jury at 7:00 p. m. as to whether they would be willing to return at 8:00 p. m., after supper, "and work a while tonight." We find nothing in the judge's statement tending to suggest, as defendant contends, that the jury would be there all night if they did not agree upon a verdict. Nothing in the court's language tends in any way to coerce the jury or intimate an opinion as to what the verdict should be. State v. McVay and State v. Simmons, 279 N.C. 428, 183 S.E.2d 652. We note that defendant did not move for a mistrial nor object to the court's statement at the time it was made. The objection he makes now is overruled.

After reviewing the entire record we conclude that defendant was afforded a fair trial free from prejudicial error.

No error.

PARKER and VAUGHN, JJ., concur.