State v. Golphin8/25/2000
d discretion to determine if the conditions are sufficiently similar. See id.; State v. Bondurant, 309 N.C. 674, 686, 309 S.E.2d 170, 178 (1983).
A demonstration on the other hand is "`an illustration or explanation, as of a theory or product, by exemplification or practical application.'" Allen, 323 N.C. at 225, 372 S.E.2d at 865 (quoting Hunt, 80 N.C. App. at 193, 341 S.E.2d at 353). The test for admissibility of evidence regarding a demonstration is whether, if relevant, the probative value of the evidence "is substantially outweighed by the danger of unfair prejudice, confusion of the issues or misleading the jury." Id.; see also N.C.G.S. § 8C-1, Rules 401, 403 (1999). In general, we note that all evidence offered by the State will have a prejudicial effect on a defendant; however, the prejudicial effect will vary in degree. See State v. Hedgepeth, 350 N.C. 776, 785, 517 S.E.2d 605, 611 (1999), cert. denied, ___ U.S. ___, ___ L. Ed. 2d ___, 68 U.S.L.W. 3565 (2000); State v. Wilson, 345 N.C. 119, 127, 478 S.E.2d 507, 512-13 (1996); State v. Weathers, 339 N.C. 441, 449, 451 S.E.2d 266, 270 (1994). The determination of whether relevant evidence should be excluded pursuant to Rule 403 "is a matter left to the sound discretion of the trial court, and the trial court can be reversed only upon a showing of abuse of discretion." Wallace, 351 N.C. at 523, 528 S.E.2d at 352-53; see also State v. Pierce, 346 N.C. 471, 490, 488 S.E.2d 576, 587 (1997).
This issue originated when the prosecutor asked First Sergeant George Williamson, a training officer with the North Carolina State Highway Patrol, to spray the prosecutor's arms with pepper spray. Kevin objected to the prosecutor being the subject of the demonstration because he would become a witness. Thereafter, during a lengthy discussion on the issue and after the trial court had indicated a willingness to allow the pepper spray demonstration with witnesses other than the prosecutor, Kevin again voiced an objection based on the use of law enforcement officers who have experience being sprayed with pepper spray because " hat would skew the results, unless the demonstration -- or the sample is sufficiently large that you would find some of these variable reactions in there." The trial court overruled that objection. Kevin modified his objection and moved "that whoever the state uses to spray be a person who does not have prior experience with being sprayed." The trial court overruled the objection and stated it would not limit either side as to who is sprayed because the opposing side could point out the prior experience to the jury during cross-examination. The trial court further limited the testimony to the subject's reaction to being sprayed.
When the State presented six possible witnesses to be sprayed, Kevin objected to all six as they were all trained law enforcement officers and objected to the "demonstration in total as being inappropriate, improper and not a valid sampling of the general population as to the effects of pepper spray." The trial court sustained the objection as to two Cumberland County sheriff's deputies who had provided security to the jury, but overruled the objection as to four members of the State Highway Patrol.
Thereafter, Sgt. Williamson sprayed Troopers Raymond Battle and Curtis Toler with foam pepper spray. The State asked Sgt. Williamson to spray Trooper Battle in a manner so that some of the spray got on his face and in his ear but not in his eye. The State then asked Sgt. Williamson to spray Trooper Toler in a manner so that some spray got on his face, in his ear, and in his eye. Trooper Battle then testified that he felt no burning sensation on his face or in his ear. He further testified that
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