Dealing with State statutes which are marked by a deficiency similar to that in the Massachusetts death penalty statute, the United States Supreme Court has granted certiorari in the following cases, and then, relying in whole or in part on the Jackson principle, reversed the judgments in so far as they imposed the death sentence, and remanded for further proceedings: Orders at 403 U.S. 948 (1971), State v. Forcella, 52 N.J. 263 (1968), sub nom. Funicello v. New Jersey; State v. Childs, 269 N.C. 307 (1967); State v. Atkinson, 275 N.C. 288 (1969); State v. Hill, 276 N.C. 1 (1969); State v. Roseboro, 276 N.C. 185 (1970); State v. Williams, 276 N.C. 703 (1970); State v. Sanders, 276 N.C. 598 (1970); State v. Atkinson, 278 N.C. 168 (1971). The General Court may not authorize the imposition of the death penalty in a way which needlessly chills defendants' art. 12 rights.
State v. Galloway, 304 N.C. 485, 489, 284 S.E.2d 509, 512 (1981). See State v. Hunter, 299 N.C. 29, 261 S.E.2d 189 (1980); State v. Atkinson, 278 N.C. 168, 179 S.E.2d 410, death sentence vacated, 403 U.S. 948 (1971). In his brief, the defendant admits that the evidence tended to show, through Dr. Wiegand and Special Agent Taub, that vaginal swabs indicated the presence of semen and sperm inside as well as outside the vaginal area. Defendant also concedes that "[i]t is clear from the evidence the jury could determine that the victim had been penetrated" and "that the victim's vagina had been injured by an object which was larger than her vaginal opening.
Compare State v. Roseboro, 276 N.C. 185, 171 S.E.2d 886 (1970), rev'd as to death penalty, 403 U.S. 948, 29 L.Ed.2d 860, 91 S.Ct. 2289 (1971), with State v. Perry, supra. Here, the jury was selected in the manner previously approved by this Court in various cases, including State v. Dawson, 281 N.C. 645, 190 S.E.2d 196 (1972); State v. Cutshall, 281 N.C. 588, 189 S.E.2d 176 (1972); State v. Atkinson, 278 N.C. 168, 179 S.E.2d 410, rev'd as to death penalty, 403 U.S. 948, 29 L.Ed.2d 861, 91 S.Ct. 2292 (1971); State v. Perry, supra; State v. McNeil, 277 N.C. 162, 176 S.E.2d 732 (1970), cert. denied 401 U.S. 962, 28 L.Ed.2d 245, 91 S.Ct. 967 (1971). Accordingly, there was no abuse of discretion in denying defendant's motion to sequester prospective jurors.
Defendants excepts and assigns as error this portion of the charge. Defense counsel in his brief states: "It is recognized that the court considered somewhat stronger language by the same trial judge in State v. Atkinson, 278 N.C. 168, and found no error. For this reason, it would seem to be an exercise in futility to bring this particular question forward.
Dr. Harmon's use of the word "could" is significantly weaker than a "probably" with respect to a penis being the cause of Selena's injuries. State v. Atkinson, 278 N.C. 168, 179 S.E.2d 410, death sentence vacated, 403 U.S. 948 (1971). He did not testify that the child had been raped, nor that defendant raped her. He did offer the quite proper opinion that she had been penetrated and that her internal injuries had been caused thereby.
It is well settled that a physician who is properly qualified as an expert may offer an opinion as to whether the victim in a rape prosecution has been penetrated and whether internal injuries have been caused thereby. State v. Starnes, 308 N.C. 720, 304 S.E.2d 226 (1983); State v. Galloway, 304 N.C. 485, 284 S.E.2d 509 (1981); State v. Atkinson, 278 N.C. 168, 179 S.E.2d 410, death sentence vacated, 403 U.S. 948 (1971). Dr. Berger's opinion with regard to vaginal penetration was entirely proper.
"It is settled law in this State that a witness may use a photograph to illustrate his testimony and make it more intelligible to the court and jury; and if a photograph accurately depicts that which it purports to show and is relevant and material, the fact that it is gory or gruesome, or otherwise may tend to arouse prejudice, does not render it inadmissible." 1 Stansbury's North Carolina Evidence (Brandis rev. 1973) 34; State v. Frazier, 280 N.C. 181, 185 S.E.2d 652 (1972); State v. Doss, 279 N.C. 413, 183 S.E.2d 671 (1971); State v. Atkinson, 278 N.C. 168, 179 S.E.2d 410 (1971); State v. Barrow, 276 N.C. 381, 172 S.E.2d 512 (1970). 291 N.C. at 570-71, 231 S.E.2d at 582.
A physician who is properly qualified as an expert may offer an opinion as to whether the victim in a rape prosecution had been penetrated and whether internal injuries had been caused thereby. State v. Atkinson, 278 N.C. 168, 176, 179 S.E.2d 410, 415, death sentence vacated, 403 U.S. 948 (1971). Testimony that an examination revealed evidence of traumatic and forcible penetration consistent with an alleged rape is a proper expression for an expert witness to establish whether the victim had been penetrated by force.
"It is settled law in this State that a witness may use a photograph to illustrate his testimony and make it more intelligible to the court and jury; and if a photograph accurately depicts that which it purports to show and is relevant and material, the fact that it is gory or gruesome, or otherwise may tend to arouse prejudice, does not render it inadmissible." State v. Young, 291 N.C. 562, 570, 231 S.E.2d 577 (1977), citing 1 Stansbury's North Carolina Evidence (Brandis rev. 1973) 34; State v. Frazier, 280 N.C. 181, 185 S.E.2d 652 (1972); State v. Doss, 279 N.C. 413, 183 S.E.2d 671 (1971); State v. Atkinson, 278 N.C. 168, 179 S.E.2d 410 (1971); State v. Barrow, 276 N.C. 381, 172 S.E.2d 512 (1970). While defendant recognizes the quoted principle of law, he argues that the number of photographs and other evidence relating to the victim's injuries admitted in this case was excessive; therefore, the rule stated in State v. Foust, 258 N.C. 453, 460, 128 S.E.2d 889, 894 (1963), and restated in State v. Mercer, 275 N.C. 108, 165 S.E.2d 328 (1969), is applicable.
A physician who is properly qualified as an expert may offer an opinion as to whether the victim in a rape prosecution had been penetrated and whether internal injuries had been caused thereby. State v. Atkinson, 278 N.C. 168, 179 S.E.2d 410, death sentence vacated, 403 U.S. 948, 29 L.Ed.2d 861, 91 S.Ct. 2292 (1971). Insofar as Dr. Hagan testified as to the fact of penetration and the consequential injuries suffered by the prosecutrix, the testimony was competent under the rule of State v. Atkinson., supra Compare, State v. Monk 291 N.C. 37, 229 S.E.2d 163 (1976).