Appeal by defendant from Martin (John C.), J., 22 January 1979 Session Superior Court Alamance County.
By his first assignment of error, defendant contends the trial court committed reversible error by instructing prospective jurors that he was charged with first-degree murder and that, if he was found guilty, he could receive the death penalty, when in fact the death penalty was not applicable to this case. This assignment has no merit.
When this case was called for trial, the court instructed the prospective jurors that defendant was charged with murder in the first degree; and that if he was convicted of that charge the court would then conduct a separate sentencing proceeding to determine if the sentence would be death or life imprisonment. After a conference at the bench with counsel, the court then instructed the prospective jurors that his statement that defendant's punishment might be death was erroneous; that the alleged offense occurred on 28 May 1977 and at that time there was no death penalty in effect in North Carolina; that the death penalty would be of no consideration in this case; and that they would disregard the previous remarks of the court about the death penalty.
Defendant argues that the erroneous instruction had the effect of emphasizing that the charge against defendant was very serious; that this prejudiced defendant in the eyes of the jury; and that the prejudice could not be removed by curative instructions. This argument is not persuasive.
While counsel has not cited, and we have not found, precedent directly in point with the question raised, we think a valid analogy can be drawn from other situations in which curative instructions are held to be sufficient to overcome error.
In 4 Strong's N.C. Index, Criminal Law § 96, we find: "Where the court properly withdraws incompetent evidence from the consideration of the jury and instructs the jury not to consider it, error in its admission is cured in all but exceptional circumstances, and there is a presumption on appeal that the jury followed such instruction unless prejudice appears or is shown by appellant. . . ." In like manner, a trial judge by appropriate instructions may correct an erroneous recapitulation of the evidence or a misstatement of the contentions of the parties. Id. § 113.9.
"Ordinarily, where objectionable evidence is withdrawn and the jury instructed not to consider it no error is committed because under our system of trial by jury we assume that jurors are people of character and sufficient intelligence to fully understand and comply with the court's instructions and they are presumed to have done so. (Citations.)"
Defendant's reliance upon State v. Manning, 251 N.C. 1, 110 S.E.2d 474 (1959), is misplaced. In that case, the solicitor, in passing on the jury, commented: ". . . as far as the State is concerned, the sole purpose of this trial is to send the defendant . . . to his death in the gas chamber. . . ." The jury in Manning found defendant guilty of first-degree murder without a recommendation of mercy. This court granted a new trial on the ground that the remarks of the solicitor were inflammatory and prejudicial to the defendant and that the curative instructions of the presiding judge were not sufficient to erase the prejudice. It is clear that the statements of the trial judge in this case do not compare with the vicious remarks of the solicitor in Manning. The remarks in Manning were calculated not to inform the jury of the role they were to play in the trial but were, instead, directed at prejudicing defendant's right to an unbiased jury. This is to be contrasted with the present case. The remarks of the trial judge were in no way inflammatory. Rather, it is apparent that they were designed and delivered so as to educate members of the jury as to the nature of the proceeding in which they were then engaged. Furthermore, since Manning received the death penalty, every error in his trial was subject to close scrutiny. In the present case, however, defendant was not even convicted of first-degree murder but of the lesser included offense of second-degree murder.
By his second assignment of error, defendant contends that the trial court erred by allowing the state to introduce into evidence a photograph of the body of the deceased. This assignment has no merit.
During the testimony of Officer Thomas R. Overman, the state offered into evidence a photograph which depicted the body of decedent as it was found in a stream, face up. Before the district attorney offered the photograph into evidence, Officer Overman testified that it "fairly and accurately" depicted the scene as he found it to be on 9 June 1977. Counsel for defendant objected. After conducting a voir dire, the trial judge overruled the objection. Before the photograph was passed among the jury, the court instructed the jury that:
[T]he photograph is admitted into evidence for the sole purpose of illustrating the witness' testimony if the jury
finds that it does. Members of the jury, you will remember the instructions concerning the use of the photograph and you will not use it as substantive evidence in the case, but may use it only as you find that it does illustrate this witness' testimony.
If a photograph is relevant and material, the fact that it is gory or gruesome will not, by itself, render it inadmissible. State v. Dollar, 292 N.C. 344, 233 S.E.2d 521 (1977); State v. Miley, 291 N.C. 431, 230 S.E.2d 537 (1976); State v. Hunter, 290 N.C. 556, 227 S.E.2d 535 (1976), cert. denied, 429 U.S. 1093, 51 L. Ed. 2d 539, 97 S. Ct. 1106 (1977). See generally 1 Stansbury's North Carolina Evidence § 34 (Brandis Rev. 1973). It is unquestioned that the photograph in this case was gruesome. It depicted the body of Payne in an advanced state of decomposition. The photograph was offered into evidence during the direct examination of Officer Overman, one of the officers who had been called to the scene after the body had been discovered. At the time of the offer, Officer Overman had just completed testifying as to the location and position of the body when it was found as well as how it was clothed. The photograph was properly ...