An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

NO. COA05-1509


Filed: 21 November 2006


     v .                             Cleveland County
                                    Nos. 02 CRS 57241-42

    Appeal by defendant from judgments entered 22 July 2004 by Judge Timothy L. Patti in Cleveland County Superior Court. Heard in the Court of Appeals 10 October 2006.

    Attorney General Roy Cooper, by Assistant Attorney General Joan M. Cunningham, for the State.

    Richard B. Glazier for defendant appellant.

    McCULLOUGH, Judge.

    Defendant appeals from judgments entered after the jury returned a verdict of guilty on two charges of first-degree murder. We find no prejudicial error.

    On 14 October 2002, a grand jury sitting in Cleveland County indicted Travis James Lattimore (hereinafter “defendant”) on two charges of first-degree murder. The State proceeded to trial against defendant on 12 July 2004, and the evidence presented at trial tended to show the following:
    On 29 September 2002, Arthur Eaves (hereinafter “Eaves”) and several others, including Reginald Walls (hereinafter “Walls”) and defendant, gathered at the home of Eaves at 2102 Elizabeth Avenuein Shelby, North Carolina. Eaves' girlfriend Denise Marble (hereinafter “Marble”) and Holly Edwards (hereinafter “Edwards”) also both attended the gathering at Eaves' house that night. An altercation began between Eaves and defendant after Marble observed defendant, who had been drinking, hit “Pork Chop,” an elderly man whom Eaves looked after, with a beer can. Marble then sent Walls to check on defendant and Eaves since it sounded like the two were arguing.
    Edwards stated that after the argument, Eaves and Walls came into the living room and were sitting down when defendant came in the door with a gun in his hand. Edwards heard gunshots and ran to the bathroom where she remained until she no longer heard shots. Around the same time, Marble had gone to the bedroom to check on her daughter when she heard gunshots. After she heard the shots, Eaves walked into the room, leaned over the nightstand and said, “I think I been hit.” Defendant then entered the bedroom where Marble, her daughter and Eaves were, and began firing the gun. When defendant stopped shooting, she took her daughter and left out the backdoor while Eaves lay on the bedroom floor bleeding.
    When Edwards emerged from the bathroom she observed Walls lying on the floor and he appeared to have been shot in the eye. At this time, Walls was still alive and attempting to talk to Edwards. Marble decided to return to the house to help Eaves and upon her return observed Edwards kneeling beside Walls who appeared to her to have been shot in the eye and found Eaves lying on the floor near the dresser. Defendant then returned to the house andshot Walls again, then entered the bedroom stood directly over Eaves, shot him two more times and then left.
    On 1 October 2002, Dr. Mark Whalen performed an autopsy on Arthur Eaves. He determined that Eaves sustained three gunshot wounds, two to the head and one to the right lower abdomen. He determined that either shot to the head would have been lethal but that the shot to the abdomen was non-lethal. On 30 September 2002, Phillip Leone performed on autopsy on Reginald Walls. The autopsy revealed that Walls sustained multiple gunshot wounds to his body: one wound to the head above the right eye, a wound in the front left shoulder, one wound to the right shoulder, four wounds in the right arm, two wounds in the chest, and multiple wounds to the leg. He further determined that the two wounds to the chest area were the fatal wounds.
    Defendant testified on his own behalf at the conclusion of the State's evidence. Defendant stated that he and Eaves had a business relationship in which they sold drugs and liquor together; that he had occasion to see Walls and Eaves in possession of a number of firearms; and that Walls oftentimes kept a firearm at his side.
    Defendant testified that on 29 September 2002 he attended a party at Eaves' house where liquor was being sold. Defendant drank several beers and cups of liquor during the evening. Throughout the night, defendant was talking to several of the women at the party including Edwards and Marble. At some point during the night Edwards advised defendant to move away from her because Walls would be jealous. Defendant testified that during the night he askedEaves for more liquor, and Eaves and Walls went into the bedroom where the liquor was kept and shut the door. When they emerged from the bedroom, Eaves asked defendant to step outside with him. Once they were outside, Eaves grabbed defendant by the collar and asked him why he had been “hollering at my damn old lady.” Defendant denied the accusations after Eaves continued to issue profanities at him. The two decided to go inside to straighten things out.
    Once inside, Walls joined in the argument and accused defendant of pursuing Marble as well. Walls then reached behind his back, pulled out his gun and began hitting defendant in the face with the gun. The two began to fight over the gun, and as defendant grabbed the gun, it went off, shooting Eaves in the leg. At that time Eaves was reaching into his dresser to get his gun while stating, “I'm going to kill you both.” When Eaves pulled the gun out of the dresser, defendant stated, “I can't let you shoot me,” closed his eyes and shot.
    After defendant shot Eaves, he went outside, only to return inside again when he heard Edwards attempting to take Walls' gun from him. Defendant then went to check on Eaves whom he found to be shaking and shivering. Defendant testified that while he lay in the bedroom with Eaves, Walls entered the bedroom and shot Eaves. Defendant then started shooting at Walls out of fear. It was at this point that defendant shot Walls in the head. Defendant then saw blue lights, grabbed his shirt, grabbed the gun out of Walls' hand and ran out the backdoor and proceeded to bury everything in a field. Defendant attempted to present testimony that Walls hadpreviously informed him that he had killed another individual to support his theory of self-defense; however, the trial judge sustained the objection of the prosecution and excluded the admission of the evidence.
    Defendant also presented the testimony of Esther Walls, wife of the victim Walls, and Classy Martin. Esther Walls testified that Walls owned a gun. Classy Martin testified that she was at the party on the night of 29 September 2002; that she saw Walls in the living room with a gun on his side; that she saw Walls fire the first shot in the house and then the second shot; that she saw Walls point the gun at defendant when firing the gun; and that she ran after the gun was fired.
    At the close of all the evidence, defendant made a motion to dismiss which was denied by the trial judge and the case was sent to the jury. The jury found defendant guilty of two counts of first-degree murder.
    Defendant now appeals.
    Defendant first contends on appeal that the trial court erred in failing to remove a juror as it violated his right to a fair trial and due process of law. We disagree.
    Due process requires that a defendant have “a panel of impartial, 'indifferent' jurors.” Irvin v. Dowd, 366 U.S. 717, 722, 6 L. Ed. 2d 751, 755 (1961) (citation omitted). “It is the duty and responsibility of the trial judge to insure that the jurors remainimpartial and uninfluenced by outside forces.” State v. Rutherford, 70 N.C. App. 674, 677, 320 S.E.2d 916, 919 (1984), disc. review denied, 313 N.C. 335, 327 S.E.2d 897 (1985). The determination of whether a juror's impartiality has been affected and whether that juror should be excused due to alleged misconduct is a discretionary determination for the trial judge. Id.
The ruling by the trial judge as to whether a juror should be removed from the panel will not be disturbed absent a manifest abuse of discretion or a decision that is clearly erroneous. State v. Sneeden, 274 N.C. 498, 504, 164 S.E.2d 190, 195 (1968). Further, “'[t]he circumstances must be such as not merely to put suspicion on the verdict, because there was opportunity and a chance for misconduct, but that there was in fact misconduct. When there is merely matter of suspicion, it is purely a matter in the discretion of the presiding judge.'” Id. (citation omitted)
    In the instant case, when court was in recess, one of the jurors spoke to an investigator for the State and shook his hand. Immediately following the observance of this action, defendant motioned the court to make an inquiry into the contact. The trial judge called the investigator as well as the juror to the stand in order to inquire into the conversation held between the parties. The investigator testified that his only contact with defendant's case involved serving subpoenas, that the conversation between him and the juror consisted of, “How you doing, Mr. Harper?” and “I'm fine[,]” and that he knew the juror years ago but could not recall his name. The juror testified that he knew the investigator fromprevious sports teams; that he had not seen the investigator in about a year; and that he did not know where or by whom the investigator was employed. It was further adduced that there was no discussion regarding defendant's case during the conversation between the investigator and the juror.
    After conducting an inquiry into the conversation between the investigator and the juror, the trial court made the following finding:
            I find for the record that the juror has stated that although he knows Mr. Hopper (sic), that he did not know where he is employed. There's testimony from Mr. Hopper (sic), the DA's investigator, that he recognized the juror. That the juror spoke to him on the way out of the courtroom. That they shook hands. And the Court finds that this contact between the juror and the investigator was incidental, does not relate to the case and I'm going to DENY the defendant's request.

    It cannot be said that the judge abused his discretion where he made a thorough inquiry into the situation and determined that the contact was merely incidental and in no way related to the case. Further, defendant has not shown any misconduct by either party to the conversation, and we therefore must defer to the ruling of the trial judge.
    This assignment of error is overruled.
    Next defendant contends that the trial court committed reversible error in admitting certain prejudicial and inflammatory evidentiary exhibits over the objection of defendant at trial. We disagree.    During the State's case-in-chief, Sergeant Mackie Latham gave testimony regarding the crime scene and the subsequent investigation. During his testimony and the testimony of the medical examiners, the State attempted to introduce photographic evidence depicting the crime scene and autopsies to which defendant objected. Defendant specifically contends that the trial court erred in admitting 23 photographs of the victims' bodies, publishing those photographs on a projector screen in the courtroom and then republishing them to the jury during jury deliberations.     The admissibility of evidence, including photographic evidence, is governed by Rule 403 of the North Carolina Rules of Evidence, which states: “Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” N.C. Gen. Stat. § 8C-1, Rule 403 (2005). Evidence has the danger of unfair prejudice if it has an undue tendency to suggest a decision on an improper basis, usually an emotional one. See State v. Mason, 315 N.C. 724, 731, 340 S.E.2d 430, 435 (1986).
    In general, photographs are deemed competent evidence when used to explain or illustrate a witness's testimony. See State v. Holden, 321 N.C. 125, 362 S.E.2d 513 (1987), cert. denied, 486 U.S. 1061, 100 L. Ed. 2d 935 (1988). Thus, photographs may be used to illustrate testimony as to the cause of death and may also be introduced to illustrate the manner of killing as to provecircumstantially the elements of first-degree murder. State v. Williams, 308 N.C. 47, 61-62, 301 S.E.2d 335, 345, cert. denied, 464 U.S. 865, 78 L. Ed. 2d 177 (1983); State v. Lester, 294 N.C. 220, 228, 240 S.E.2d 391, 398 (1978). Further, photographs of a homicide victim may be introduced even if they are gory, gruesome, horrible or revolting, so long as they are used for illustrative purposes and so long as their excessive or repetitious use is not aimed solely at arousing the passions of the jury. State v. Murphy, 321 N.C. 738, 741, 365 S.E.2d 615, 617 (1988).
    The decision to exclude evidence is within the sound discretion of the trial court and such decision will not be disturbed absent a showing of a manifest abuse of discretion or a decision which is arbitrary and wholly unsupported by reason. State v. Hennis, 323 N.C. 279, 285, 372 S.E.2d 523, 527 (1988). The Court in State v. Hennis set forth certain factors which a trial court must examine in order to determine whether, under the totality of the circumstances, the content and presentation of the photographs is more probative than prejudicial. Id. The factors include: “What a photograph depicts, its level of detail and scale, whether it is color or black and white, a slide or a print, where and how it is projected or presented, the scope and clarity of the testimony it accompanies[,]” and “the relevance of the scene depicted” in order to ensure that its irrelevant portions do not obscure those elements that are pertinent to the proffered testimony. Id.
    In the instant case, the State was allowed to admit 23 photographs of the crime scene and autopsy. However, it isimportant to note that in the instant case there were two victims, Walls and Eaves, and the photos represent the crime scene and autopsy with relation to each separate victim. Further, the trial judge viewed the photographs objected to by defendant and found that they depicted something different about the crime scene or wounds suffered by the victims. In fact, the trial judge excluded certain photographs that he found to be repetitive or unduly prejudicial. The State did present the photographs to the jury by use of a projector and a 3-by-4-foot screen; however, the trial judge noted for the record, that while the screen may have been that size, the “size of the exhibit portrayed on the screen is far smaller” and “did not take up even half of the screen.”
    It is clear from a review of the record that the trial judge carefully considered each photograph and weighed the probative value of each against the potential for unfair prejudice. Therefore, it cannot be said that he abused his discretion in admitting certain photographs, excluding others, and allowing the presentation of the photographs to the jury to be effectuated by the use of a projector and screen. Viewing the totality of the circumstances, it cannot be said that the presentation of such evidence was more prejudicial than probative.
    At the close of the evidentiary part of the trial, the jurors were sent to deliberate on the merits of the case and did so for one hour. When they returned the next day, the jurors requested to see certain evidence, including the photographs introduced at trial. N.C. Gen. Stat. § 15A-1233 permits the trial judge, in hisdiscretion, to allow the jurors to review certain requested materials admitted into evidence in open court for the purpose of jury deliberations. N.C. Gen. Stat. § 15A-1233(a)(2005). The allowance of republication of the photographs to the jury upon their request cannot be said to have been so arbitrary that it is devoid of reasoning.
    Therefore, this assignment of error is overruled.
    Lastly, defendant contends on appeal that the trial court committed reversible error in excluding defendant's testimony regarding statements made by the deceased. Even if the trial court committed error in excluding the purported statement of the victim, we deem any error to be a harmless one.
    Specifically, defendant contends that the trial court erred in refusing to allow him to present evidence that one of the victims, Reginald Walls, had previously told defendant that he killed another individual. Defendant admitted to shooting the two victims in this case, however, he contended that the shooting was only done in self-defense.
    “Where defendant argues he acted in self-defense, evidence of the victim's character may be admissible for two reasons: 'to show defendant's fear or apprehension was reasonable or to show the victim was the aggressor.'” State v. Ray, 125 N.C. App. 721, 725, 482 S.E.2d 755, 758 (1997) (citation omitted). However, defendant must demonstrate that he was prejudiced by the exclusion of such evidence by showing that “had the error in question not beencommitted, a different result would have been reached at the trial out of which the appeal arises.” N.C. Gen. Stat. § 15A-1443(a) (2005). Further, “'no prejudice arises from the erroneous exclusion of evidence when the same or substantially the same testimony is subsequently admitted into evidence.'” State v. Cabe, 136 N.C. App. 510, 514, 524 S.E.2d 828, 831, appeal dismissed, disc. review denied, 351 N.C. 475, 543 S.E.2d 496 (2000) (citation omitted).
    In the instant case, defendant presented evidence through his own testimony to support his theory of self-defense including: that Walls had held a gun to his head during a previous robbery attempt, Walls struck defendant in the face with a gun on the night in question, that defendant was lying beside Eaves when Walls shot Eaves, and that defendant feared for his life. Defendant further presented evidence that on the night of 29 September, Walls had a gun on his right side, that Walls fired the first shot, and that Walls was aiming at defendant when he fired.
    Defendant has failed to show that had he been allowed to present testimony regarding Walls' previous statement, the outcome of the trial would have been different. The transcript is replete with evidence presented by defendant concerning his fear of Walls and the events of the night; moreover, defendant argued the theory of self-defense to the jury and the jury was further instructed by the trial judge. Where prejudice cannot be shown, this assignment of error is overruled.
    Accordingly, we hold that the trial court did not commit any prejudicial error in finding the contact between the juror and theinvestigator to be incidental and harmless; in admitting 23 photographs depicting the two victims, the crime scene, and autopsies; in permitting the projection of photographs onto a screen; in republishing the photos to the jury during deliberations in open court; or in excluding the purported statement made by Walls to defendant that he had previously killed someone.
    No prejudicial error.
    Judges WYNN and McGEE concur.
    Report per Rule 30(e).

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