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State v. Golphin8/25/2000
in 1993, he was sprayed with stream pepper spray, rather than foam pepper spray, directly in his eyes. Trooper Battle indicated the prior spraying had been incapacitating and that it had taken approximately twenty-five minutes before he could see well enough to function.
Trooper Toler then testified to his reaction. He indicated that he felt an intense burning sensation when the spray hit his left eye, and he closed his eye. He stated he could still use his right eye and felt no burning sensation in the right eye. In 1993, Trooper Toler was sprayed in both eyes, and it had taken approximately twenty to twenty-five minutes for him to recover. Trooper Toler then stated that if he had been sprayed in both eyes, as he was in 1993, he would not have been able to walk to his chair unassisted as he was able to do following the instant demonstration. Trooper Toler also indicated that in 1993, a lot of pepper spray had gotten into his nose causing "material" to come out of his nose; however, during the instant demonstration, only a little spray got into his nose which caused him to have only a minor "sniffle." Following the State's demonstration, both defendants were given an opportunity to present additional witnesses to be sprayed with pepper spray and then to testify about their reaction. Neither defendant chose to present evidence in response to the State's demonstration.
We hold the evidence at issue here was a demonstration. In arguing for the pepper spray demonstration, the State contended that "at this point all we're trying to do is, first of all, explain to this jury what this stuff is. It's not some fancy compound. It's just, uh, cayenne peppers," and that the jury "needs to have some reality to this issue." The presentation by the State was to illustrate or explain to the jury the effects of pepper spray by practical application. See Allen, 323 N.C. at 225, 372 S.E.2d at 865.
The evidence of the pepper spray demonstration was relevant as Kevin had made the effects of pepper spray an issue in the instant case. See N.C.G.S. § 8C-1, Rule 401. During the State's presentation of evidence, Kevin repeatedly asked witnesses on cross-examination questions pertaining to pepper spray. On cross-examination of Sergeant Jimmie Turbeville of the State Highway Patrol, Kevin asked what the effects of being sprayed in the face with pepper spray would be, and Sgt. Turbeville responded that it was very painful and irritating to the eyes. On cross-examination of Sergeant Danny Williams of the Harnett County Sheriff's Department, Kevin asked about the use of pepper spray and the varying reactions people with different sensitivities can have to being sprayed. Sgt. Williams also indicated that if someone was not sprayed in the eyes, the person might experience mild burning depending on the sensitivity of the individual's skin. On cross-examination of Trooper Vincent Terry of the State Highway Patrol, Kevin asked whether Trooper Terry himself had been sprayed and whether he had ever used pepper spray on anyone else. Trooper Terry stated that when he was sprayed, he experienced a burning sensation in his eyes; and when he sprayed someone during a traffic stop, the person began crying and screaming, and he assumed she was feeling pain from being sprayed.
In addition, Kevin's entire presentation of evidence related to the use of pepper spray. The sole focus of Kevin's opening statement was pepper spray. Kevin's counsel read the warning label from the container of pepper spray as well as instructions for use of the product. Thereafter, Kevin offered a pepper spray demonstration by a private investigator and then called Sergeant William Ellis of the Cumberland County Sheriff's Department to testif
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