Appeal by defendant from Herring, Judge. Judgment entered 13 March 1981, in Superior Court, Durham County. Heard in the Court of Appeals 13 January 1982.
Arnold, Judge. Judges Clark and Whichard concur.
Defendant brings forward eleven assignments of error for our consideration. First, he contends that the trial court erred in permitting the State to ask the firearms identification expert the following two questions:
Q. If you have a .22 caliber pistol and a .22 caliber rifle, both using the same type, the same type of manufactured ammunition, both being fired from the same distance at the same target, what consequence would be the greater velocity that you testified the rifle would have, what consequence would that have in terms of striking the target?
Q. Would you tell the jury, please, how the characteristics of .25 caliber ammunition compare with that of .22 caliber long rifle ammunition?
One of defendant's arguments about these questions is that they were hypothetical questions requiring the State to incorporate into the questions relevant facts in evidence in the case. We disagree with this contention.
Under well-established law in our jurisdiction, an expert witness may be permitted to render his opinion based on facts not within the expert's personal knowledge. 1 Stansbury's North Carolina Evidence § 136 (Brandis Rev. 1973). If the expert is basing his opinion on facts not within his personal knowledge, the facts upon which he grounds his opinion must be set before the jury in a proper manner, leaving to the jury the duty to find the facts. Todd v. Watts, 269 N.C. 417, 152 S.E.2d 448 (1967). If the facts upon which the expert bases his opinion are within his own knowledge, he may be permitted to state positively his opinion on the matter. 1 Stansbury's, supra § 136.
In the present case, we find that the two questions were based on the expert's own personal knowledge and that a hypothetical
question was not necessary. The State did not ask the witness' opinion as to who fired the shot which was fatal to Courtney Rorie; nor did it ask his opinion as to what type of gun fired the fatal shot. In either of these cases, a hypothetical question incorporating facts the jury might find would have been necessary. As the questions were posed, however, the expert witness had only to compare velocities and characteristics of weapons and ammunition, a comparison based solely on his own expert knowledge.
Defendant argues further that these two questions were improper because there was no evidence to support the State's inference that the pistol used by "James" was of a .22 or .25 caliber type. From the evidence as it is set forth in the record, the identity of "James" as well as of the type of pistol he used were unknown. While we agree with the defendant that the State apparently wanted the jury to find that James' pistol was of a .22 or .25 caliber type and was, because of the distance of "James" from Courtney Rorie, less likely to have caused the fatal wound, we cannot hold this to be error. The defendant had every opportunity on cross-examination to emphasize the fact that the caliber of "James'" pistol was unknown, that there was a possibility that its caliber was much higher, and that a pistol of higher caliber might have caused the fatal wound.
Defendant next assigns as error the trial court's admission into evidence of nine exhibits (Numbers 3, 4, 16, 17 and 18-22), including the rifle obtained from defendant's counsel, the only bullet found in the victim's body, and cartridge cases found in the driveway at 319 Chadwick Road. Defendant's contention that these items were not relevant is absurd and is rejected. The test, which is clearly met in this case, is that real evidence is relevant if it sheds any light on the circumstances of the crime. See 1 Stansbury's, supra, § 118.
Furthermore, we reject defendant's argument that the State failed to establish chain of custody of the rifle between the time of the alleged murder and 29 September, three days later, when it was turned over to the State by defense counsel. The remote possibility that the rifle was switched while in the possession of defendant's attorney was ruled out by the testimony of the firearms identification expert who positively determined that two of the cartridges found in the driveway of 319 Chadwick Road had been fired from that particular rifle.
Defendant's further contention concerning the introduction of real evidence is that the State failed to establish that the items introduced into evidence were involved in the incident giving rise to the trial.
In State v. Harbison, 293 N.C. 474, 238 S.E.2d 449 (1977), the Supreme Court noted that there are no simple standards for determining whether an object offered in evidence has been adequately identified as being the same object involved in the incident giving rise to the trial and shown to have been unchanged in any material respect. As a result, the trial judge must exercise sound discretion in determining the standard of certainty required to show that the item offered into evidence is the same as that involved in the incident. Id. In the case before us, we find that the trial court did exercise sound discretion in allowing the State to introduce the several items of real evidence.
The record reveals that the evidence was held under lock and key by the Property Officer of the Durham Police Department. He checked the items out twice, once to his supervisor, the firearms identification expert, and once to a laboratory technician. Both of these men testified. Michael Jennings, the laboratory technician, identified the fired cartridges (Exhibits 18-22), the small lead particles (Exhibit 16), and the bullet (Exhibit 17) from the victim's body as the ones either found at the scene of the shooting or retrieved from the medical examiner. Curtis, the firearms expert, positively identified the rifle (Exhibit 3), and cartridges and a cartridge case (Exhibit 4). Furthermore, Louis Danford, formerly of the Durham County Sheriff's Department, testified that the rifle (Exhibit 3) introduced into evidence was the one he received from defendant's counsel and that, further, the nine live rounds of ammunition (Exhibit 4) were removed from that rifle. Based on the foregoing, we find no merit to defendant's contention that the State failed to identify these objects as being connected to the incident.
As his third assignment of error, defendant contends that the trial court erred in failing to dismiss the case at the close of the State's evidence and at the close of all of the evidence and in denying defendant's motion to set aside the jury verdict. The basis of all three of defendant's motions was that there was insufficient evidence to support his conviction for any degree of homicide.
Upon a motion to dismiss in a criminal action, all of the evidence favorable to the State must be deemed true; discrepancies and contradictions therein are disregarded, and the State is entitled to every favorable inference of fact reasonably deduced from the evidence. State v. Witherspoon, 293 N.C. 321, 237 S.E.2d 822 (1977). Based on this principle, this Court can find no error in the trial court's denials of defendant's motion. A reading of the facts set forth in this opinion shows that there was substantial evidence from which a jury might conclude that the defendant fired the shot which caused Rorie's death. The fact that there was some evidence that another man was firing a pistol at the deceased does not negate, for purposes of defendant's motions, the evidence implicating defendant.
Defendant's fourth assignment of error pertains to the exclusion of certain evidence he sought to introduce in order to show the character of the deceased as being that of a dangerous and violent person. The excluded evidence, elicited from Rachel Jones, defendant's wife, was to the effect that Courtney Rorie, at some point in the past, had shot up the window of Rachel Jones' house and, when she had attempted to go call the sheriff, the deceased had driven up behind her and had shot the tires of her automobile; that Rorie had once gone into Gracey Rorie's house and destroyed many of its furnishings; that, upon Rorie's return to Durham, he threatened to remove all the furniture from the house; that defendant's wife and others in her family had gone to a lawyer and then to law enforcement officials, including a district court judge, to stop Rorie's threatened efforts; and that a warrant for Rorie's arrest on earlier charges had been drawn.
In a prosecution for homicide or for assault and battery, where there is evidence tending to raise the issue of self-defense, evidence of the character of the deceased as a violent and dangerous fighting man is admissible if (1) such character was known to the accused or (2) the evidence is wholly circumstantial or the nature of the event is in doubt. 1 Stansbury's, supra, § 106. In the instant case, we are concerned only with the question of whether the particular acts of Courtney Rorie's violence, related by Rachel Jones, were known to the defendant. While it is hard to find that defendant did not know of ...