A decision without a published opinion is authority only in the case in which such decision is rendered and should not be cited in any other case in any court for any other purpose, nor should any court consider any such decision for any purpose except in the case in which such decision is rendered. See Rule of Appellate Procedure 30 (e)(3).

NO. COA01-208

NORTH CAROLINA COURT OF APPEALS

Filed: 5 March 2002

STATE OF NORTH CAROLINA

        v .                      Currituck County
                             No. 99 CRS 257
NICHOLAS CARL BRYANT

    Appeal by defendant from judgment entered 10 April 2000 by Judge Jerry R. Tillett in Currituck County Superior Court. Heard in the Court of Appeals 9 January 2002.

    Attorney General Roy Cooper, by Assistant Attorney General Steven F. Bryant, for the State.

    McCotter, McAfee & Ashton, PLLC, by Rudolph A. Ashton, III, and Robert J. McAfee, for defendant-appellant.

    WALKER, Judge.

    Defendant was tried capitally and was found guilty of the first degree murder of David Michael Perez. The jury recommended life imprisonment and he was sentenced to life in prison without parole.
    Defendant made a pretrial motion to suppress oral and written statements he made to law enforcement officers. After hearing evidence and argument from counsel, the trial court found the following in part:
        5. The defendant was thereby in custody.

        6. Officer Pritchard provided the defendant with Miranda rights or advised him of the rights pursuant to Miranda decision. Those rights included but are not limited to theright to remain silent and right to have an attorney to be present during any questioning, if you cannot afford an attorney an attorney may be appointed. Also was an admonition included that statements could be used against him....

        7. The Court finds that the defendant answered yes when asked if he understood his rights and nodded in the affirmative.

        8. The Court also finds, therefore, that the defendant did understand his rights pursuant to the Miranda decision.

                        . . .

        12. The defendant seemed to pay close attention to his being advised of the rights.

        13. The defendant made a statement in the car upon questioning, interview or other statements that are substantially equivalent to interrogation to the effect that he felt guilty about killing Perez or felt terrible and was very sorry and wished he hadn't done it.

                        . . .

        16. Thereafter without undue delay the defendant was taken to the interview room in the police station.

                        . . .

        18. There is no evidence of any use or threatened use of weapon. There is no evidence of any threatened use of violence. There is no evidence of any unusual harassing, intimidating demeanor gesture or tone of voice by the officer. There is no evidence of coercion, physical or emotional, at this juncture.

        19. The defendant was again provided with both oral and written specific rights including those related to the Miranda decision.... This was a standard form used by the police department containing some space for the defendant's signature and blanks to include date and defendant's name.
                        . . .

        21. The defendant again was asked if he understood his rights. The defendant acknowledged he did.

                        . . .

        23. The defendant was also asked specifically whether he desired to waive those rights and give a statement. The defendant acknowledged and answered in the affirmative and also signed providing his written signature in the space provided for signature of interviewee.

        24. Thereafter interrogation took place. The interrogation was not unduly lengthy, consisting of approximately twenty minutes.

        25. The defendant at no time asked for a lawyer.

        26. The defendant at no time asked to stop the interview or indicated a desire to exercise of [sic] his right to remain silent.

                        . . .

        30. There is no evidence that the defendant was made any promises or offered anything in return for his statement.

        31. Any issues as to time of being advised are not deemed to be conclusive or determinative.

The trial court concluded the following in part:
        [T]hat the defendant was in custody; that the statement was freely, voluntarily and knowingly given and that there was a free, voluntary waiver of his rights prior to making any statements; and that the taking of the statements was not in violation of the defendant's constitutional rights under the United States or North Carolina Constitutions or otherwise his statutory rights under laws of this jurisdiction.

Then, the trial court denied defendant's motion to supress.    The State's evidence at trial tended to show the following: Jimmy Winslow owned a soybean field in Currituck County. The field was located in a deserted area and was mainly woodland and farmland. On 5 October 1998, he went out to his field, saw a “tramped down” area, and found a body which was later identified as David Michael Perez.
    Tracey Bryant was married to the defendant at the time. She testified for the State under subpoena and pursuant to a plea agreement. After a voir dire hearing on whether Ms. Bryant was being compelled to testify in violation of N.C. Gen. Stat. § 8-57(b)(1999), the trial court found she was competent to testify.
    Ms. Bryant testified that, in the fall of 1998, she and the defendant were living together in Virginia. One evening in early September 1998, after Ms. Bryant got off of work, the defendant, Dana Rose, and she were talking when the defendant said they should kill Mr. Perez “for shits and giggles.” The three left the house in Ms. Bryant's car and drove to Mr. Perez's house where they picked him up. The four of them then left Virginia and the defendant drove them across the state line to Currituck County.
    During the drive, Ms. Bryant testified that the defendant told Mr. Perez that they were taking him to North Carolina to kill him. She testified that when Mr. Perez asked her whether the defendant was serious, her “first response was no that Nick couldn't -- Mr. Bryant couldn't done anything like that. Then I took back that statement and that's when I thought about he hasn't -- Mr. Bryanthasn't been acting right, maybe -- I don't recall my exact words, but it was something along the lines of maybe he's lost it or maybe he's losing it.”
    Defendant drove them to a field, turned off the motor and told Ms. Bryant, Mr. Rose, and Mr. Perez to get out of the car. Ms. Bryant testified that she and Mr. Rose stood on the dirt road while the defendant took Mr. Perez into the field. She saw the defendant hold Mr. Perez and heard Mr. Perez yell, “Nick, you really did it.” When defendant returned, he insisted that she and Mr. Rose get in the car while he ran back into the field. Ms. Bryant also testified that she heard the defendant “asking Mr. Perez who he was. I didn't hear Mr. Perez's statement, but I heard [the defendant] saying call me God.”
    Defendant returned to the car holding a knife covered in blood. Ms. Bryant drove the defendant and Mr. Rose to a rest area where the defendant wrapped the knife in a paper bag and disposed of it. Mr. Rose corroborated Ms. Bryant's testimony of the events of that evening. Mr. Rose testified that the defendant told him “he slashed [Mr. Perez's] throat three (3) times and stabbed him in the back three (3) times.” Defendant then drove Ms. Bryant and Mr. Rose back to Virginia. After returning to Virginia, defendant burned the shirt he had been wearing and the identification cards of Mr. Perez.
    Defendant stipulated that the death of Mr. Perez “was caused by stab wounds to the trunk of David Perez's body.” He also stipulated that “the Defendant, Nicholas Bryant, inflicted thesewounds with a knife.” Defendant's sole defense was based on a lack of mental capacity to commit the crime because of his insanity at the time he killed Mr. Perez. He offered evidence of his mental condition through the testimony of George Patrick Corvin, M.D., a general and forensic psychiatrist, and through Claudia Coleman, a clinical psychologist in the area of forensic and neuropsychology. Based on the records available to him and interviews with the defendant, Dr. Corvin testified as follows in part:
        [A]t the time of his offense Mr. Bryant was suffering from symptoms of psychosis and that these psychotic symptoms stem from a history of Schizoaffective Disorder which is extremely well documented in his record. It furthers my opinion as the specific nature of his psychotic symptoms rendered a mental state in which Mr. Bryant did not for a brief period of time, but a critical period of time understand or believe that his acts were wrong. And that as a result of that, he would as statutorily defined meet the criteria for a verdict of not guilty by reason of insanity based on my medical evaluation.

Ms. Coleman testified “That [defendant's] mental illness, which is a combination of a thought disorder and a mood disorder, primarily described by Schizoaffective Disorder or Bipolar Disorder with psychotic features did prevent him from knowing right from wrong.”
    In rebuttal, the State presented Patricia Hahn, a licensed psychologist, and Peter N. Barboriak, M.D., a forensic psychiatrist. Ms. Hahn testified that, at the time of the incident, she “thought [defendant] was capable of distinguishing between right and wrong.” Dr. Barboriak testified that “just based on what Mr. Bryant told me, he would be considered responsible evenif he felt he was delusional and he thought there was a god when he actually did the stabs that killed Mr. Perez.”
    Defendant first assigns as error the denial of his motion to suppress his oral and written statements. After hearing evidence and arguments, the trial court made written findings and conclusions and determined that the statements of the defendant were admissible. It is well settled law that our review is limited to whether there is competent evidence to support the findings and whether those findings support the conclusions. State v. Buchanan, 353 N.C. 332, 336, 543 S.E.2d 823, 826 (2001); State v. Brewington, 352 N.C. 489, 498, 532 S.E.2d 496, 501 (2000), cert. denied, 531 U.S. 1165, 148 L. Ed. 2d 992 (2001); State v. Barnett, 307 N.C. 608, 613, 300 S.E.2d 340, 343 (1983).
    The trial court found that prior to custodial interrogation of the defendant in the car, the defendant was properly given his Miranda warnings. He indicated that he understood those warnings and the trial court found that he understood his rights. The trial court also found that there was no evidence of any threats, harassment, intimidation, promises or coercion on the part of law enforcement.
    At the police department, defendant was again advised of his rights, including his Miranda rights, both orally and in writing. Defendant acknowledged that he understood his rights and that he would like to waive his rights and give a statement. The trial court found the interrogation was not unduly lengthy. It also found that “[t]here is no evidence that the defendant was made anypromises or offered anything in return for his statement.” The defendant did not ask for an attorney and did not ask to stop the interview or to assert his right to remain silent. Based on these findings, the trial court concluded that the statements of the defendant were “freely, voluntarily and knowingly given and that there was a free, voluntary waiver of his rights prior to making any statements.”
    After a careful review of the record, we find there was competent evidence to support the findings and the findings support the trial court's conclusions that defendant's rights were not violated.
    Defendant next claims that the trial court erred by allowing into evidence two photographs of the crime scene. Defendant's objection is that they were irrelevant and solely for the purpose of inflaming the jury.
    Our Courts have held that photographs are not inadmissible simply because they are gruesome or tend to inflame the jury. State v. Harris, 323 N.C. 112, 126-27, 371 S.E.2d 689, 698 (1988). This is true “even where the photographs depict remains in an advanced state of decomposition, . . . and where the cause of death is uncontroverted.” Id. at 127, 371 S.E.2d at 698. The test is whether the prejudicial effect of the photographs outweighs their probative value. N.C. Gen. Stat. § 8C-1, Rule 403. The determination of whether the prejudicial effect outweighs the probative value of the evidence is within the sound discretion of the trial court.    Here, the State introduced the two photographs. One depicted the path where the body was found, which may have included a part of the victim's body, and the other depicted a t-shirt on human remains. We fail to see how two photographs would be excessive or inflammatory. Thus, we find it was not an abuse of discretion for the trial court to admit these photographs into evidence.
    Defendant also assigns error to the admission of a knife, which was offered as being similar to the knife used to kill Mr. Perez. Defendant had stipulated that a knife was used to stab Mr. Perez. Since there was testimony that “[t]he knife that was used was a little bit longer and I believe the handle was wider” than the one introduced for illustrative purposes, he argues that this knife was irrelevant.
    “[A] model of a place or a person or an object may be employed to illustrate the testimony of a witness so as to make it more intelligible to the court and to the jury.” State v. See, 301 N.C. 388, 391, 271 S.E.2d 282, 284 (1980). The evidence must show some connection between the illustrative object shown in court and the actual one. State v. Godley, 140 N.C. App. 15, 25, 535 S.E.2d 566, 574 (2000), disc. review denied, 353 N.C. 387, 547 S.E.2d 25 (2001).
    Here, Ms. Bryant testified to the similarities in the handle and the serrated blade and that it was a “similar type of knife.” Mr. Rose testified, without objection, that the knife in court was “exactly like the one” which was used on Mr. Perez. The trial court also gave the jury a limiting instruction that this knife wasto be considered for illustrative purposes only. We find there was ample evidence of a connection between the knife shown in court and the one actually used on Mr. Perez such that there was no prejudicial error admitting the knife for illustrative purposes.
    Defendant next claims that there was error in admitting the testimony of Ms. Bryant, the wife of the defendant. Pursuant to N.C. Gen. Stat. § 8-57(b), “The spouse of the defendant shall be competent but not compellable to testify for the State against the defendant in any criminal action or grand jury proceedings.” This is a privilege belonging to a spouse and not a defendant. Thus, a wife is competent to testify against her husband if she wishes; however, she cannot be compelled to do so.
    Here, Ms. Bryant testified on voir dire that she was testifying pursuant to a plea agreement. Although she was in court as a result of a subpoena, she was testifying of her own free will and would be testifying even if she had not entered into a plea agreement with the State. The trial court entered in the record its findings and conclusions as follows:
        [T]hat the witness has indicated that she is here voluntarily and willingly. That the witness would have testified regardless of any plea arrangement. The witness has indicated she was not -- believes she was not compelled to be here and testify. The Court finds that the testimony is therefore -- that the 857(b) [sic] is not controlling in that such provision only limits compulsion -- compulsions or compelled testimony and does not provide a prohibition as to the competency.

    The testimony of Ms. Bryant supports the trial court's findings which, in turn, support its conclusion that she was notcompelled to testify. Thus, the trial court did not err in allowing Ms. Bryant to testify against her husband.
    Defendant further contends that the trial court erred in denying his motion to dismiss the charge of first degree murder. To survive a motion to dismiss, the State must present substantial evidence of every element of the crime charged. State v. Bruton, 344 N.C. 381, 387, 474 S.E.2d 336, 341 (1996). Substantial evidence means "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." State v. Smith, 300 N.C. 71, 78-79, 265 S.E.2d 164, 169 (1980).
    “First-degree murder is the intentional and unlawful killing of a human being with malice and with premeditation and deliberation.” State v. Thomas, 350 N.C. 315, 346, 514 S.E.2d 486, 505, cert. denied, 528 U.S. 1006, 145 L. Ed. 2d 388 (1999). “An act is premeditated if it was thought over beforehand, but no particular length of time is required and the time can be quite short.... Deliberation is the 'intent to kill formed by defendant in a cool state of blood, and not as a result of a violent passion arising from legally sufficient provocation.'” State v. Farmer, 138 N.C. App. 127, 134, 530 S.E.2d 584, 589 (2000)(quoting State v. Taylor, 344 N.C. 31, 45, 473 S.E.2d 596, 604 (1996)).
    Defendant contends that he lacked the requisite specific intent to commit first degree murder due to his mental incapacity. Although there was conflicting evidence of defendant's ability to know right from wrong, it was for the jury to determine whetherdefendant possessed sufficient mental capacity to form premeditation and deliberation necessary for first degree murder.
    The State presented evidence of the intentional and premeditated actions of the defendant. Defendant admitted talking about killing Mr. Perez. Defendant also admitted “[Mr. Perez] begged me to take him to a hospital but I knew he'd tell and Jean would never let me see my son.” Furthermore, Ms. Bryant and Mr. Rose both testified that the defendant discussed with them, prior to picking up Mr. Perez, his suggestion to kill Mr. Perez. Defendant picked up Mr. Perez in Virginia, took him to an isolated field in Currituck County, stabbed him, and left the body in the field. After leaving the field, defendant disposed of the murder weapon by throwing it in the trash at a rest area. Upon returning to Virginia, defendant burned the shirt he had been wearing and the identification cards of Mr. Perez.
    We conclude there was substantial evidence of defendant's intent and premeditation to submit the charge of first degree murder to the jury. The trial court did not err in denying the defendant's motion to dismiss the first degree murder charge.
    Defendant next claims the trial court erred in allowing Dr. Barboriak to testify that, in his opinion, the defendant would be criminally responsible for his acts. Defendant contends Dr. Barboriak testified to a legal conclusion which invaded the province of the jury.
    When an expert's opinion evidence involves “a conclusion that a legal standard had or had not been met,” the evidence isinadmissible. State v. Myers, 123 N.C. App. 189, 197, 472 S.E.2d 598, 603 (1996)(quoting State v. Mash, 328 N.C. 61, 65-66, 399 S.E.2d 307, 310-11 (1991)). However, defendant's own expert testified at trial that defendant “would as statutorily defined meet the criteria for a verdict of not guilty by reason of insanity based on my medical evaluation.”
    As the defendant points out, the guiding principle of expert testimony is whether the expert's scientific, technical or other specialized knowledge would assist the trier-of-fact in understanding the evidence before it. N.C. Gen. Stat. § 8C-1, Rule 702. At the time Dr. Barboriak testified, Dr. Corvin and Ms. Coleman had both testified that the defendant could not distinguish right from wrong. Ms. Hahn testified that, in her expert opinion, the defendant could distinguish right from wrong. As a medical expert, Dr. Barboriak was asked “whether or not the Defendant knew or could distinguish between right and wrong at the pertinent time of [sic] this alleged murder was committed.” He responded that he believed the defendant “would be considered responsible even if he felt he was delusional.” Defendant concedes the trial court admitted a great deal of foundation testimony concerning Dr. Barboriak's interviews with the defendant. Dr. Barboriak was subjected to extensive cross-examination regarding his opinion. Thus, we conclude there was no prejudicial error in allowing the testimony of Dr. Barboriak.
    Defendant finally asserts that the trial court erred in denying the requested instruction on involuntary commitment. “Thetrial court has discretion in selecting the language used in its jury instructions; ... but '[i]f a request is made for a jury instruction which is correct in itself and supported by evidence, the trial court must give the instruction at least in substance.'” State v. Duncan, 136 N.C. App. 515, 517, 524 S.E.2d 808, 810 (2000) (citations omitted). “[U]pon request, a defendant who interposes a defense of insanity to a criminal charge is entitled to an instruction by the trial judge setting out in substance the commitment procedures outlined in [Part 7 of Article 5 of Chapter 122C of the General Statutes], applicable to acquittal by reason of mental illness.” State v. Hammonds, 290 N.C. 1, 15, 224 S.E.2d 595, 604 (1976).
    Here, defendant requested an instruction on the commitment procedures if he were to be found not guilty by reason of insanity. The trial court instructed on involuntary commitment as follows:
        If a Defendant is found not guilty by reason of insanity, he shall immediately be committed to a State mental facility. After the Defendant has been automatically committed, he shall be provided with a hearing within fifty (50) days. At this hearing the Defendant shall have the burden to prove by a preponderance of the evidence that he no longer has a mental illness or is no longer dangerous to others. If the Court is so satisfied it shall order the Defendant discharged and released. If the Court finds that the Defendant has not met his burden of proof, then it shall order that inpatient commitment continue for a period of time not to exceed ninety (90) days. This involuntary commitment will continue subject to periodic review until the Court finds the Defendant no long [sic] has a mental illness or is no longer dangerous to others.
Defendant's requested instruction included additional information regarding where the hearing would be held, that “evidence that defendant committed a homicide in the relevant past is prima facie evidence of dangerous,” and a definition of “dangerous to others.” Since the jury was not to determine the release of the defendant after an involuntary commitment, it would be irrelevant and confusing to the jury to further instruct as the defendant contends. Defendant was entitled to an instruction which, in substance, was as he proposed and was an accurate statement of the law applicable to the case. The trial court's instruction given regarding the commitment procedures was substantially the same as the one requested regarding the law of commitment. Thus, this assignment of error is overruled.
    In conclusion, we find no error in the trial and conviction of the defendant on the charge of first degree murder.
    No error.
    Judges McGEE and BIGGS concur.
    Report per Rule 30(e).

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