Appeal by defendant from Owens, Judge. Judgment entered 5 February 1981 in Superior Court, Burke County. Heard in the Court of Appeals 4 February 1982.
Hill, Judge. Judges Hedrick and Becton concur.
The State's evidence tended to show that on 29 September 1980, defendant, Edna Davis, Marvin Edwards, Danny Carswell, Steve Huffman, and Larry Roper were present at 111 Tate Street in Morganton. About three or four o'clock that afternoon, all the parties were in the house and drinking liquor. Steve Huffman testified that at one point, he saw defendant in the bathroom, where defendant stated that Roper "was messing with Edna." Huffman then saw defendant pull a knife out of his sock and say, "Larry better leave Edna alone." By dark, Roper had passed out;
he had been irritated and was "picking on Edna." Roper woke up, "started smart mouthing everybody," and passed out again in the living room. When he woke up, Roper grabbed Davis, called her a "slut," swung at her and hit her. Carswell testified that defendant "came in from where he was standing at the other end of the couch and came across, reached over and stabbed Larry Roper in the back," twice.
Defendant's evidence tended to show that his reputation in the community is good and that Roper's reputation in the community was that he was violent when drinking. Defendant testified that Roper woke up about ten o'clock on the evening of 29 September. After Roper called Davis names and hit her, defendant said, "I got up off the couch and Larry took a step towards me like he was going to get me. Larry grabbed me and said, 'I'll throw you in the fireplace.'" Roper went for the knife on the end table, but defendant got it first and stabbed Roper.
Defendant brings forward six arguments which we will address seriatim. In his first argument, defendant contends that the trial judge erred in allowing into evidence five photographs of Roper's body, which were gruesome and excessive, depicting essentially the same scene, thereby inflaming the jurors.
"The rule is that even though photographs may be gory and gruesome, they may nevertheless be used, when properly authenticated, to illustrate a witness' testimony so long as excessive numbers of photographs are not used solely to arouse the passions of the jury and thus deny the defendant a fair trial." State v. King, 299 N.C. 707, 710-11, 264 S.E.2d 40, 43 (1980). See 1 Stansbury's N.C. Evidence (Brandis rev. 1973) § 34, p. 93. Where photographs are used to illustrate a witness's testimony "as to the location, position and condition of the body at the scene and regarding the nature and extent of the wounds to the body," they are relevant and material. State v. King, supra at 711, 264 S.E.2d at 43. The photographs are not excessive in number when they portray "somewhat different scenes." Id. Accord State v. Dollar, 292 N.C. 344, 233 S.E.2d 521 (1977).
In the case sub judice, the five photographs admitted into evidence portrayed various views of the room in which Roper's body was found and the body itself. One photograph, taken at the morgue, shows the wounds on Roper's body. Thus, under the
rules stated above, the trial judge did not err in allowing into evidence these photographs; they are admissible to illustrate the witness's testimony as to the location, position, and condition of the body at the scene. This assignment of error is overruled.
Defendant's second argument assigns error to the trial judge's restriction of his cross-examination of Officer Ronnie Hudson concerning bloodstains he found in the Tate Street house only to those found on 29 September 1980, excluding bloodstains found at a later date. However, our review of the record reveals the following testimony by Officer Hudson:
I found blood on the mantle [sic] the night of the stabbing as well as on the mirror. Some time later I found blood underneath the end table on the molding next to the wall. I did not look behind the sofa for blood the next day. I ...