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North Carolina v. Cooke

Filed: June 2, 1982.

STATE OF NORTH CAROLINA
v.
TERRY FRANKLIN COOKE, SR.



Appeal by defendant from Helms, Judge, 21 September 1981 Criminal Session Forsyth Superior Court.

Britt, Justice.

Britt

By his first assignment of error defendant contends that the trial court erred in admitting into evidence certain testimony concerning blood and a photograph for the reason that the testimony and photograph had no substantive value and could only inflame and prejudice the jury against defendant. We find no merit in this assignment.

We are advised by the clerk of this court that the photograph complained of was not filed in this court as a part of the record on appeal. That being true, we will attempt to answer this assignment of error without viewing the photograph. "It is the duty of appellant to see that the record is properly made up and transmitted." 4 Strong's N.C. Index 3d, Criminal Law, § 154.

In State v. Young, 291 N.C. 562, 231 S.E.2d 577 (1977), this court, speaking through Justice Huskins, said:

"It is settled law in this State that a witness may use a photograph to illustrate his testimony and make it more intelligible to the court and jury; and if a photograph accurately depicts that which it purports to show and is relevant and material, the fact that it is gory or gruesome, or otherwise may tend to arouse prejudice, does not render it inadmissible." 1 Stansbury's North Carolina Evidence (Brandis rev. 1973) § 34; State v. Frazier, 280 N.C. 181, 185 S.E.2d 652 (1972); State v. Doss, 279 N.C. 413, 183 S.E.2d 671 (1971); State v. Atkinson, 278 N.C. 168, 179 S.E.2d 410 (1971); State v. Barrow, 276 N.C. 381, 172 S.E.2d 512 (1970).

291 N.C. at 570-71, 231 S.E.2d at 582.

The record discloses that the photograph in question was first shown to state's witness Devose who was describing the scene where the alleged offense occurred. He stated that the photograph showed Spring Street, the place where the fight took place, the place to which Young ran after he was stabbed, where he was when he died, and substantial blood on the ground. On the

record before us, we conclude that the photograph and evidence were relevant and that defendant has failed to show error.

By his second assignment of error defendant contends the trial court erred when it refused to allow defendant's counsel to cross examine Devose concerning Young's past criminal record and his reputation for being a violent and dangerous person. There is no merit in this assignment.

In State v. Winfrey, 298 N.C. 260, 258 S.E.2d 346 (1979), this court speaking through Chief Justice Branch, said:

Generally, evidence of a victim's violent character is irrelevant, but when the accused knows of the violent character of the victim, such evidence is relevant and admissible to show to the jury that defendant's apprehension of death and bodily harm was reasonable. State v. Johnson, 270 N.C. 215, 154 S.E.2d 48 (1967). Clearly, the reason for this exception is that, a "jury should, as far as is possible, be placed in defendant's situation and possess the same knowledge of danger and the necessity for action, in ...


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