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North Carolina v. Rogers

Filed: October 2, 1979.

STATE OF NORTH CAROLINA
v.
WILBERT JUNIOR ROGERS



Appeal by defendant from McLelland, Judge. Judgment entered 24 August 1978 in Superior Court, Alamance County. Heard in the Court of Appeals 6 April 1979.

Webb, Judge. Judge Martin (Robert M.) concurs. Judge Mitchell concurs in the result.

Webb

Defendant's first assignment of error deals with the court's denial of his motion that the jury be allowed to view the scene at the bridge. The trial judge has discretionary power to grant or refuse a request for a jury view of the premises. State v. Ross, 273 N.C. 498, 160 S.E.2d 465 (1968); State v. Smith, 13 N.C. App. 583, 186 S.E.2d 600 (1972). The defendant argues that the court abused its discretion in that the evidence showed the automobile was only eight feet from the end of the bridge when the deceased was thrown from the bridge and the evidence also showed the first 36 feet 3 inches of the bridge was over dry land. Since this was in evidence, the jury was able to make a judgment on this evidence without a view of the bridge. The defendant's first assignment of error is overruled.

The defendant next assigns as error the admission of the testimony of Daniel Qualls, a detective with the Alamance County Sheriff's Department, offered to corroborate other witnesses. Defendant contends it did not corroborate other witnesses. Defendant specifically objects to the following testimony of Mr. Qualls:

"[Robert Moore] relates this. Says that they stop the vehicle, that the defendant, Wilbert Rogers, gets out, goes around in front of the vehicle, opens the passenger's door on the car, takes the defendant -- correction, takes the victim, Talmadge Yancey, out, takes him over to the side of the bridge and throws him over. He hears the man hit the water, hears the splash."

Robert Moore actually testified as follows:

"Well, he -- he -- he pulled him out and went to the bridge with him. I heard Charlie say, 'Man,' say, 'don't throw that boy in that cold-ass water,' and about this time I heard the water splash."

We hold that this testimony of Mr. Qualls as to what Robert Moore told him was not so different from the testimony of Robert Moore that it could not be considered in corroboration of Robert Moore's testimony.

The defendant's next assignment of error deals with the sustaining of an objection to a question asked on cross-examination of Daniel Qualls. Mr. Qualls testified on cross-examination that Robert Moore told him everything that happened on the bridge consumed ten to fifteen seconds and that he heard Robert Moore testify in court that it took five seconds. The following colloquy then took place.

"Q. Is there -- has there been any other change in his statement like that?

Mr. Johnson: Objection, ...


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