State v. Rupard , 299 N.C. 515 ( 1980 )

263 S.E.2d 554 (1980)

STATE of North Carolina
v.
James William RUPARD.

No. 7.

Supreme Court of North Carolina.

March 5, 1980.

Rufus L. Edmisten, Atty. Gen. by Thomas H. Davis, Asst. Atty. Gen., Raleigh, for the State.

Hise & Harrison by Lloyd Hise, Jr., Spruce Pine, for defendant.

BRANCH, Chief Justice.

Defendant first assigns as error the admission into evidence of certain photographs of the dead bodies of Lester and Ruth Rupard. Defendant contends that the photographs had no probative value and served only to inflame the jury.

If a photograph is relevant and material, and is competent to illustrate the testimony of a witness, it is not rendered inadmissible solely because it is gory or gruesome or otherwise may tend to arouse prejudice. See generally 1 Stansbury's North Carolina Evidence, § 34 (Brandis Rev.1973). If, however, a photograph has no probative value but tends solely to inflame, it must be excluded. State v. Foust, 258 N.C. 453, 128 S.E.2d 889 (1963).

The photographs to which defendant objects were taken at the scene of the crime and at the Office of the Chief Medical Examiner in Chapel Hill, North Carolina. The photographs were introduced during the testimony of Dr. C. Bruce Alexander, Assistant Chief Medical Examiner for the State of North Carolina, and were in fact used by him to explain to the jury the nature of the entry and exit wounds which he found, the bullet fragments he recovered from the bodies, and the cause of death for each victim.

Defendant did not request an instruction limiting the use of the photographs for illustrative purposes; and, therefore, the trial judge's failure to give the instruction was not error. State v. Cade, 215 N.C. 393, 2 S.E.2d 7 (1939).

The photographs were properly authenticated and were relevant for the purpose of showing the cause of decedent's death. We hold that the photographs were properly admitted into evidence for the purpose of illustrating the testimony of Dr. Alexander.

Defendant next assigns as error the following statement, made by the District Attorney during his closing argument:

I feel like in this case that the State has evidence and has presented evidence that should convince you beyond a reasonable doubt, I like to call it a common sense doubt, beyond a reasonable doubt that the defendant is guilty as charged. The attorneys for the defendant, I would argue were tied to this story that the defendant told— Defendant objected to the statement, and the trial court sustained the objection. The court then instructed the jury to disregard the District Attorney's last remark. Defendant contends that the statement amounts to an accusation that defendant and his attorneys had conspired to present perjured testimony and to invent a defense. Defendant submits that the statement was highly prejudicial and warrants a new trial.

As a general rule, wide latitude is permitted counsel in their arguments to the jury. State v. Maynor, 272 N.C. 524, 158 S.E.2d 612 (1968); State v. Barefoot, 241 N.C. 650, 86 S.E.2d 424 (1955). The control of the arguments must be left largely to the discretion of the trial judge. Id. He "hears the argument, knows the atmosphere of the trial and has the duty to keep the argument within proper bounds." State v. Maynor, supra, 272 N.C. at 526, 158 S.E.2d at 613. An impropriety must be sufficiently grave to entitle defendant to a new trial. See State v. Seipel, 252 N.C. 335, 113 S.E.2d 432 (1960) (per curiam), and where, upon defendant's objection to an improper remark of the prosecutor, the court instructs the jury not to consider the statement, the impropriety is ordinarily cured. State v. Best, 265 N.C. 477, 144 S.E.2d 416 (1965).

We hold that the prosecutor's remarks were not sufficiently grave or prejudicial to warrant a new trial, and, in any event, any impropriety was cured by the trial court's instructions to the jury.

Defendant contends finally that the trial court erred in sentencing defendant to consecutive terms of life imprisonment without making a "no benefit" finding as required by G.S. 148-49.14. That statute in pertinent part provides that "if the court shall find that a person under 21 years of age should not obtain the benefit of release under G.S. 148-49.15, it shall make such `no benefit' finding on the record." It is uncontradicted here that defendant was seventeen years old. Defendant thus contends that the case must be remanded for resentencing. We agree. The statutory language is clear in its requirement of a "no benefit" finding, and the trial court erred in not making the finding.

We have considered all of defendant's assignments of error, and our careful consideration of the entire record discloses that defendant received a fair trial free from prejudicial error. However, because the court failed to enter a finding of "no benefit" as required by G.S. 148-49.14, the judgment is vacated and the cause is remanded to the Superior Court of Avery County for resentencing after a finding of record as to whether defendant should or should not obtain the benefit of release under G.S. 148-49.15.

NO ERROR IN TRIAL.

JUDGMENT VACATED AND REMANDED FOR RESENTENCING.