State v. Burge , 1990 N.C. App. LEXIS 1128 ( 1990 )

PHILLIPS, Judge.

The first error defendant cites is the court’s refusal to permit Marcus Jerome Edwards to testify that based upon his personal knowledge of Roy Lee Clark, the State’s only eyewitness, he would not believe him under oath. Immediately before that evidence was offered, Edwards testified without objection that in his opinion Roy Lee Clark was a liar and that Clark had told him he would take a bribe to change his testimony. Thus, even if admissible, and we do not hold that it was, the refused evidence was cumulative and its rejection was not prejudicial.

Defendant’s next contention — that the State’s exclusion of six black panelists from the jury that tried the case was racially motivated and a violation of various constitutional provisions — has no support in the record. To prevail on such a contention it must be shown, among other things, that the circumstances of the exclusions raise an “inference of racist motivation,” State v. Sanders, 95 N.C. App. 494, 498, 383 S.E.2d 409, 412, disc. rev. denied, 325 N.C. 712, 388 S.E.2d 470 (1989), and this showing was not made. Instead, the record indicates that the State had sound grounds for excusing all six panelists:' Two had had brothers who had been charged with cocaine offenses; one knew two of defendant’s witnesses; two others knew defendant’s parents and one of his attorneys; and the last one knew defendant’s family and both of his attorneys.

The next error defendant cites is the court’s refusal to permit him to cross-examine Detective Flowers about the Kinston Police Department having used defendant as an informant. His purpose was to show by the evidence that defendant had credibility with the police department. But at that time only the State had presented evidence, defendant’s credibility had not been attacked, and he was not entitled to bolster it in advance.

Defendant’s contention that the evidence does not support his conviction of second-degree murder is refuted by the testimony of the eyewitness that after Coston begged him not to kill him, defendant said, “I’m going to kill you anyway” and proceeded to do so by deliberately firing a bullet through Coston’s skull.

Nor was it error to refuse to charge the jury on the lesser included offenses of voluntary and involuntary manslaughter, as there is no evidence that defendant was guilty of manslaughter. The State’s evidence indicates only a deliberate, intentional homicide, while defendant’s evidence was that he fled the scene before Coston was shot and killed by somebody else.

Defendant’s other contentions — that the court erred in refusing to permit him to cross-examine the State’s witnesses as to their knowledge that another person had been indicted for the murder; in refusing to permit both of his lawyers to cross-examine the same witnesses; and in charging the jury on the alleged untruthfulness of the State’s eyewitness — likewise devoid of legal basis are also overruled.

No error.

Chief Judge HEDRICK and Judge ARNOLD concur.