Summary
stating that when a challenged pattern instruction " correctly declared the law" and, when read in context with the entire charge to the jury, " was not so confusing as to mislead the jury or affect the verdict," the defendant was not entitled to a new trial, but suggesting that the instruction " might be reviewed by the Committee ... for possible clarification"
Summary of this case from State v. LocklearOpinion
No. 87
Filed 8 January 1980
1. Homicide 14.1, 21 — death by shooting — defendant as aggressor — sufficiency of evidence — presumption from use of deadly weapon Evidence that defendant walked over to a table in a bar where deceased was sitting and exchanged words with him concerning a woman, and both deceased and defendant then pulled out guns and started firing was sufficient evidence to permit, but not to require, the jury to infer that defendant aggressively and willingly, without legal provocation or excuse, entered into the fight; furthermore, the State was entitled to rely upon the inference of an unlawful killing when the evidence showed deceased's death was proximately caused by defendant's intentional use of a deadly weapon.
2. Homicide 28; Criminal Law 163 — self-defense — jury instructions on burden of proof — necessity for exception Where defendant failed to take exception to the specific portion of the jury instructions complained of, his assignment of error relating to the charge was not properly before the court on appeal; even had exception been properly taken, defendant was not prejudiced by the instruction on self-defense, since the court made it abundantly clear that the State must prove the absence of self-defense beyond a reasonable doubt, and the burden of proving self-defense was therefore not improperly shifted from the State to defendant.
3. Criminal Law 113; Homicide 28 — self-defense — jury instructions — application of law to evidence The trial court in a homicide prosecution did not violate G.S. 15A-1232 by failing to relate the evidence to the law of self-defense where the judge properly summarized the evidence presented by the State and defendant and subsequently explained the law of self-defense arising on the evidence and related the law to the facts of the case.
APPEAL by defendant from the decision of the North Carolina Court of Appeals pursuant to G.S. 7A-30(2), reported in 42 N.C. App. 228, 256 S.E.2d 279 (1979), which found no error in the trial before Bruce, J., at the 3 January 1979 Session of DAVIDSON Superior Court.
Rufus L. Edmisten, Attorney General, by Richard L. Kucharski, Associate Attorney, for the State.
Hutchins, Tyndall, Bell, Davis Pitt, by Fred S. Hutchins, Jr., and Richard D. Ramsey, for defendant appellant.
Justice EXUM dissenting.
Justices BROCK and CARLTON join in the dissenting opinion.
Defendant was charged in a bill of indictment proper in form with the first-degree murder of Robert Henry "Buck" Eller. Defendant enter a plea of not guilty.
The State's evidence tended to show that in the late evening on 27 October 1974, the deceased went to Dan's Place, a small private club in Davidson County, with Annabelle Ruff, Melvin Page, Paul DeLapp and Mildred Littlejohn. When this group entered the room, defendant was sitting at the bar talking with the proprietor, Dan Hulin. Mrs. Littlejohn stopped at the bar to talk with defendant for a few moments and then joined the rest of the group at a table. Defendant then walked over to the table and, standing behind Mrs. Littlejohn's chair, asked to speak with her privately. She refused, saying that "if you got anything to say to me, say it now." The deceased "Buck" Eller, who was sitting across the table from Mrs. Littlejohn, then asked defendant to leave the table. Defendant responded by asking Eller what he had to do with it and by inquiring of Mrs. Littlejohn "who she was with." Paul DeLapp answered that she was with him.
After an exchange of words, defendant and Eller each pulled out a gun and started shooting at each other. None of the State's witnesses could say who fired first, although Melvin Page did testify that he first saw defendant's gun in his hand and only noticed Eller's gun in his hand after the latter had fallen to the floor. A patron, Bobby Hayes, was killed by the gunfire, and Annabelle Ruff was wounded. Eller walked out of the bar and fell on the shoulder of the road. He was gasping for breath, bleeding in the center of his chest and the fingers on his right hand had been shot off. Eller died the next morning.
According to defendant's witnesses, defendant had done nothing to provoke Eller when the latter first pulled out his gun and started shooting. Defendant then fell to the floor behind the upturned table, pulled a gun out of his coat pocket and fired back. The proprietor testified that defendant was helping him run the club that night, and that defendant, while still at the bar, had told him that he was going over to ask Mrs. Littlejohn to dance. Defendant testified that Eller shot at him first, singeing his hair, and that defendant saw Eller pointing the gun at him. Defendant believed that he had to shoot to prevent Eller from killing him.
At the close of the State's evidence, defendant moved for nonsuit (now properly denominated a motion for dismissal; G.S. 15A-1227, effective 1 July 1978). The trial court allowed the motion as to first-degree murder but denied it as to the lesser included offenses of second-degree murder and voluntary manslaughter. Defendant renewed his motion for nonsuit at the close of all the evidence, and it was denied.
The jury returned a verdict finding defendant guilty of voluntary manslaughter. Defendant appealed from judgment imposing a sentence of imprisonment for a term of not less than five years nor more than twenty years. The Court of Appeals, in an opinion by Judge Webb, Judge Mitchell concurring, found no error. Judge Robert M. Martin dissented.
Defendant first contends that the trial court erred in denying defendant's motion for judgment as of nonsuit made at the close of the State's evidence and at the close of all the evidence. Defendant contends that all of the evidence tended only to exculpate him and, therefore, establish self-defense as a matter of law.
"One may kill in self-defense if he is without fault in bringing on the affray, and it is necessary or appears to him to be necessary to kill his adversary to save himself from death or great bodily harm, the reasonableness of his apprehension being for the jury to determine from the circumstances as they appeared to him." 6 Strong's N.C. Index 3d, Homicide, sec. 9 (1977). "One who is an aggressor, or one who enters a fight voluntarily without lawful excuse, may not plead self-defense when he slays his adversary. [Citations omitted.] `The right of self-defense is available only to a person who is without fault, and if a person voluntarily, that is, aggressively and willingly, without legal provocation or excuse, enters into a fight, he cannot invoke the doctrine of self-defense unless he first abandons the fight and withdraws from it and gives notice to his adversary that he has done so.' [Citations omitted.]" State v. Watkins, 283 N.C. 504, 196 S.E.2d 750 (1973). See also State v. Randolph, 228 N.C. 228, 45 S.E.2d 132 (1947).
A motion for judgment as of nonsuit requires the trial judge to consider all of the evidence actually admitted in the light most favorable to the State and to give the State the benefit of every reasonable inference to be drawn therefrom. State v. Strickland, 290 N.C. 169, 225 S.E.2d 531 (1976); State v. Scott, 289 N.C. 712, 224 S.E.2d 185 (1976). "Contradictions and discrepancies, even in the state's evidence, are for the jury to resolve, and do not warrant nonsuit. Only the evidence favorable to the state will be considered, and defendant's evidence relating to matters of defense, or defendant's evidence in conflict with that of the state, will not be considered." State v. Henderson, 276 N.C. 430, 173 S.E.2d 291 (1970); State v. Vincent, 278 N.C. 63, 178 S.E.2d 608 (1971).
A motion for nonsuit should be overruled if, when the evidence is viewed in the light most favorable to the State, there is evidence from which a jury could find that the offense charged has been committed and that defendant committed it. State v. McKenna, 289 N.C. 668, 224 S.E.2d 537, death sentence vacated, 429 U.S. 912, 97 S.Ct. 301, 50 L.Ed.2d 278 (1976). On the other hand, "when all the evidence, that of the State and that of the defendant, is to the same effect and tends only to exculpate the defendant, his motion for judgment as of nonsuit should be allowed." State v. McWilliams, 277 N.C. 680, 178 S.E.2d 476 (1971); State v. Atwood, 290 N.C. 266, 225 S.E.2d 543 (1976).
Upon applying these well-established principles of law to the evidence in the case sub judice, we conclude that there was sufficient evidence to permit, but not require, the jury to infer that defendant "aggressively and willingly, without legal provocation or excuse, entered into the fight." Thus, it was for the jury to determine whether defendant was the aggressor.
Under this assignment of error, defendant also contends that the Court of Appeals erred in stating that the State's evidence that defendant shot deceased was evidence "from which the jury could conclude it was an unlawful killing." In support of this conclusion, the court cited State v. Hammonds, 290 N.C. 1, 224 S.E.2d 595 (1976). In our opinion, Hammonds was cited by the Court of Appeals for the proposition that when the State proves or it is admitted that defendant intentionally inflicted a wound with a deadly weapon proximately causing death, nothing else appearing, the presumptions of malice and an unlawful killing arise. Defendant claims that since Hammonds involved a defense of insanity for which a defendant has the burden of proof, the application of the presumption of unlawfulness to the instant case involving self-defense violates the State's burden of proof under Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975). However, this Court has held that due process under Mullaney is not "violated by a rule which allows rational and natural presumptions or inferences to arise when certain facts are proved beyond a reasonable doubt by the State." State v. Williams, 288 N.C. 680, 220 S.E.2d 558 (1975). More specifically, the presumptions of malice and unlawfulness in homicide cases have also been held to be constitutional:
The [Mullaney] decision permits the state to rely on mandatory presumptions of malice and unlawfulness upon proof beyond a reasonable doubt that the defendant intentionally inflicted a wound upon the deceased with a deadly weapon which proximately resulted in death . . . . If there is evidence in the case of all the elements of self-defense, the mandatory presumption of unlawfulness disappears but the logical inferences from the facts proved may be weighed against this evidence. If upon considering all the evidence, including the inferences and evidence of self-defense, the jury is left with a reasonable doubt as to the existence of unlawfulness it must find the defendant not guilty.
State v. Hankerson, 288 N.C. 632, 651-52, 220 S.E.2d 575, 589 (1975), rev'd on other grounds, 432 U.S. 233, 97 S.Ct. 2339, 53 L.Ed.2d 306 (1977).
For the reasons stated, the State was entitled to rely upon the inference of an unlawful killing when the evidence showed deceased's death was proximately caused by defendant's intentional use of a deadly weapon. We hold that the trial judge correctly denied defendant's motion for judgment as of nonsuit.
By his second assignment of error, defendant contends that the trial court's charge on self-defense was confusing to the jury and impermissibly shifted the burden of proving self-defense from the State to defendant.
In this regard, defendant argues that the trial court, in defining the elements of self-defense, improperly shifted the burden of proof by stating that "[t]he third element of self-defense that must be proved" and "[t]he fourth element of self-defense that must be proved." Judge Robert M. Martin's dissent in the Court of Appeals, in part, stated that a new trial should be granted on this basis. However, defendant failed to take exception in the record to this portion of the court's instructions. Exceptions to the trial court's charge need not be entered at the trial and may be taken within the time allowed for the preparation of the case on appeal. State v. Lambe, 232 N.C. 570, 61 S.E.2d 608 (1950). Nevertheless, assignments of error relating to the charge and not predicated upon exceptions in the record set out as required by Rule 10(a) of the Rules of Appellate Procedure must be disregarded on appeal. State v. Gordon, 241 N.C. 356, 85 S.E.2d 322 (1955). Here, defendant failed to take exception to the specific portion of the charge complained of, and thus this portion of his second assignment of error is not properly before us. State v. Fowler, 285 N.C. 90, 203 S.E.2d 803 (1974), death sentence vacated, 428 U.S. 904, 96 S.Ct. 3212, 49 L.Ed.2d 1212 (1976). Even if exception had been properly taken, however, it is our opinion that reading the charge as a whole and considering it contextually, the court made it abundantly clear that the State must prove the absence of self-defense beyond a reasonable doubt.
On the other hand, defendant properly excepted to the court's final mandate concerning the State's burden of proving lack of self-defense. He argues that this instruction was unintelligible and confusing to the jury, thus constituting prejudicial error. After discussing the elements of self-defense, second-degree murder and voluntary manslaughter, the trial court gave the following charge to the jury:
Finally, if the State has failed to satisfy you beyond a reasonable doubt, first, that Leroy Benton, Jr. did not reasonably believe under the circumstances as they existed at the time of the killing that he was about to suffer death or serious bodily injury at the hands of Robert Henry Eller; and second, that Leroy Benton, Jr. used more force than reasonably appeared to him to be necessary; and third, that Leroy Benton, Jr. was the aggressor, then the killing of Robert Henry Eller by Leroy Benton, Jr. would be justified on the grounds of self-defense, and it would be your duty to return a verdict of not guilty.
This charge properly placed the burden on the State and correctly declared the law of self-defense. See State v. Herbin, 298 N.C. 441, 259 S.E.2d 263 (1979); State v. Potter, 295 N.C. 126, 244 S.E.2d 397 (1978). We are of the opinion and so hold that, when read in context with the entire charge, the challenged portion of the charge was not so confusing as to mislead the jury or affect the verdict reached by them. We note parenthetically that the challenged portion of the charge was taken verbatim from the Pattern Jury Instructions and might be reviewed by the Committee on Pattern Jury Instructions for possible clarification. See State v. Potter, supra
In his final assignment of error, defendant contends that the trial court violated G.S. 15A-1232 by failing to relate the evidence to the law of self-defense and thus failing to explain the law arising on the evidence.
Before the jury began its deliberations and after the trial judge completed his instructions, defendant requested that the judge relate the facts and contentions of both the State and defendant as they applied to the law. An assignment of error to the charge on the ground that the court failed to explain and apply the law to the evidence is a broadside exception and ineffectual. State v. Newton, 251 N.C. 151, 110 S.E.2d 810 (1959); State v. Britt, 225 N.C. 364, 34 S.E.2d 408 (1945). The assignment must, to conform with the rules of practice in this Court, point out specifically the part of the charge challenged. State v. Haddock 254 N.C. 162, 118 S.E.2d 411 (1961); N.C. Rules of Appellate Procedure, Rule 10(b)(2).
Although defendant in the case sub judice failed to specify by brackets or otherwise the portion of the charge complained of, this Court may still consider the supposed defect as argued in defendant's brief. State v. Webster, 218 N.C. 692, 12 S.E.2d 272 (1940); N.C. Rules of Appellate Procedure, Rule 2. Here, at the beginning of his instructions to the jury, the trial judge recapitulated the contentions and evidence of the State and then gave the following summary of defendant's evidence:
The defendant on the other hand has introduced evidence, or contends that the State has failed to prove his guilt by the evidence and beyond a reasonable doubt; and in support of the defendant's contentions the defendant has introduced evidence which in substance tends to show that he was working at Dan's Place; and that when the deceased, Mr. Eller, came in with his party he engaged a lady in conversation, and during the course of this conversation that suddenly and with no provocation on the part of the defendant the deceased Robert Henry Eller drew a pistol and fired past his head; that the defendant fell on the floor; and subsequently Robert Henry Eller fired his pistol again, and the defendant thereupon drew his pistol and fired four times at or toward some person he presumed to be Robert Henry Eller. That is what some of the defendant's evidence tends to show. What any of the evidence shows or tends to show is for you the Jury to determine.
I'm not attempting to recall or summarize all of the evidence in this case. . . . It is your duty to consider all the evidence, whether I have called it to your attention or not.
"The trial judge must, without special request, charge the law applicable to the substantive features of the case arising on the evidence and apply the law to the essential facts of the case." State v. Banks, 295 N.C. 399, 245 S.E.2d 743 (1978); State v. Ardrey, 232 N.C. 721, 62 S.E.2d 53 (1950). Specifically, G.S. 15A-1232 requires that "[i]n instructing the jury, the judge must declare and explain the law arising on the evidence. He is not required to state the evidence except to the extent necessary to explain the application of the law to the evidence." The requirements of G.S. 1-180, the antecedent of the present statute, were viewed broadly in State v. Friddle, 223 N.C. 258, 25 S.E.2d 751 (1943), in which Justice Barnhill (later Chief Justice) wrote that "[t]he judge should segregate the material facts of the case, array the facts on both sides, and apply the pertinent principles of law to each, so that the jury may decide the case according to the credibility of the witnesses and the weight of the evidence."
Nevertheless, this Court has since held that the statute requires nothing more "than a clear instruction which applies the law to the evidence and gives the position taken by the parties as to the essential features of the case." State v. Thompson, 226 N.C. 651, 39 S.E.2d 823 (1946). More recently, the applicable law has been further clarified in State v. Williams, 290 N.C. 770, 228 S.E.2d 241 (1976), in which this Court held:
Ordinarily, a statement of the applicable law and the contentions of the parties, without applying the law to the substantive features of the case arising on the evidence, is insufficient under the rule of G.S. 1-180. [Citations omitted.] However, where the evidence is simple, direct, and without equivocation and complication, an explanation of the law and a statement of the evidence in the form of contentions is a sufficient compliance with the statute. [Citations omitted.]
Id. at 773, 228 S.E.2d at 243. See also State v. Best, 265 N.C. 477, 144 S.E.2d 416 (1965); State v. Thompson, supra In that case, this Court overruled defendant's contention that the trial judge had failed to properly state the evidence and apply the law thereto.
In the instant case, as in Williams, there was direct eyewitness testimony that defendant shot and killed the deceased. Yet here the testimony permitted conflicting inferences as to who was the aggressor in the affray and thus bearing directly on defendant's claim of self-defense. Nonetheless, the case before us need not fall within the rule in Williams because here the trial judge did more than merely state the contentions of the parties and enunciate the pertinent law. Instead, the judge properly summarized the evidence presented by both the State and by defendant. He subsequently explained the law of self-defense arising on the evidence and related the law to the facts of the instant case. Although not a model charge, we hold that under the present set of facts it complies adequately with the requirements of G.S. 15A-1232.
We have carefully considered the entire record and find no error warranting a new trial.
No error.