State v. Hamilton , 335 S.E.2d 506 ( 1985 )

335 S.E.2d 506 (1985)

STATE of North Carolina
v.
Kenneth Preslar HAMILTON.

No. 8520SC185.

Court of Appeals of North Carolina.

October 29, 1985.

Atty. Gen. Lacy H. Thornburg by Asst. Attys. Gen. Steven F. Bryant and Karen E. Long, Raleigh, for the State.

Henry T. Drake, Wadesboro, for defendant-appellant.

EAGLES, Judge.

Defendant argues six questions. We have examined them carefully but have found no prejudicial error.

I

The State presented an assistant State medical examiner who examined Smith's body. At the conclusion of the medical examiner's testimony on direct examination, the prosecutor asked his opinion as to the cause of Smith's death. Defendant entered a general objection, which was overruled, and is the basis for his first assignment of error.

We note initially that a general objection, if overruled, is ordinarily not effective on appeal. G.S. 8C-1, R. Ev. 103(a); 1 H. Brandis, N.C. Evidence Section 27 (1982). In the absence of a special request to qualify a witness as an expert, a general objection to specific opinion testimony will not suffice to preserve the question of the expert's qualifications, even on ultimate issues. State v. Hunt, 305 N.C. 238, 287 S.E.2d 818 (1982). If the witness' evidence indicates that he is in fact qualified to give the challenged opinion, even a timely specific objection will not likely be sustained on appeal. See Id.; State v. Hill, 32 N.C. App. 261, 231 S.E.2d 682 (1977). While the record does not contain an extensive review of this witness' qualifications, his position as assistant medical examiner and his testimony regarding the number of other cases he had seen indicate sufficient expertise to allow us to conclude that the trial court did not err in admitting his opinion of the cause of death. See G.S. 130A-380.

Defendant also attempts to argue under this assignment that the State failed to prove that any wounds received by Smith in this incident actually caused his death, implying that death may have resulted from other unknown causes. The State need not prove that the defendant's acts were the sole and immediate cause of death. State v. Alford Jones, 290 N.C. 292, 225 S.E.2d 549 (1976) (intervening negligence no excuse); State v. Luther, 285 N.C. 570, 206 S.E.2d 238 (1974) (assault precipitated heart attack). Further, the State need not exclude every other possible hypothesis inconsistent with defendant's guilt. State v. Freddie Jones, 303 N.C. 500, 279 S.E.2d 835 (1981). Here the State's evidence showed that Smith was active and alive during the incident, that he received gunshot wounds to his upper body from extremely close range which made him go limp and fall to the sidewalk, that an ambulance had to be summoned, and that six hours later Smith was dead of gunshot wounds to his upper body roughly equal in number to the number of shots fired during the incident. We think this evidence sufficed to go to the jury on the issue of whether the shots fired during the incident caused Smith's death. We note in response to defendant's speculations on appeal about other possible causes of death, that it was not obligatory for the State to disprove every other conjectured cause of death. Id. The assignment is therefore overruled.

II

Defendant was arrested in the afternoon following the incident. While he was being fingerprinted, but before his rights were read to him, defendant made several comments. At one point he said, "It's not against the law to kill a nigger in Anson County." Following voir dire, the court found as fact, inter alia, that no officer asked defendant any questions and that the statements were "completely voluntary." Defendant now assigns error to their admission.

Defendant made no exceptions to any of the findings of fact. Accordingly they are binding here. State v. Colbert, 65 N.C.App. 762, 310 S.E.2d 145, rev'd on other grounds, 311 N.C. 283, 316 S.E.2d 79 (1984). The findings of fact establish that the statements were entirely voluntary and that there was no constitutional barrier to their admission. Even if the findings were not conclusive, this record contains no evidence of police conduct that the officers should have known was reasonably likely to elicit the incriminating statements. See Rhode Island v. Innis, 446 U.S. 291, 100 S. Ct. 1682, 64 L. Ed. 2d 297 (1980); State v. Ladd, 308 N.C. 272, 302 S.E.2d 164 (1983). The mere fact that defendant was in custody does not make his statements ipso facto inadmissible. There must be some interrogation. Id. Here, there was no interrogation. Defendant's constitutional arguments are without merit.

Defendant also attacks the admission of these statements on the grounds that their inflammatory effect outweighed their relevance. Evidence traditionally has been considered relevant in a criminal prosecution if it has "any logical tendency, however slight, to prove a fact in issue." 1 H. Brandis, N.C. Evidence Section 77 at 285 (1982). The new Rules of Evidence did not substantially alter this liberal definition of relevancy. G.S. 8C-1, R.Ev. 401. Malice is one of the elements of murder. State v. Fleming, 296 N.C. 559, 251 S.E.2d 430 (1979). Malice is inter alia a state of mind which prompts one person to take the life of another without just cause, excuse or justification. State v. Love, 296 N.C. 194, 250 S.E.2d 220 (1978). Statements by defendant that he believed the law in Anson County did not prevent the killing of blacks clearly tended to prove malice.

Regardless of a statement's relevancy, the court retains discretionary authority to exclude it if its probative value is substantially outweighed by its unfairly inflammatory effect. G.S. 8C-1, R.Ev. 403; 1 H. Brandis, N.C. Evidence Section 80 (1982). Generally, however, courts have excluded such evidence only when it served exclusively to inflame. See e.g., State v. Simpson, 297 N.C. 399, 255 S.E.2d 147 (1979) (murder case, error to admit evidence of unrelated sodomy). If the evidence is relevant, however, the Simpson opinion's logic does not apply. See State v. Richards, 294 N.C. 474, 242 S.E.2d 844 (1978) (admitted evidence highly prejudicial for the same reason that it was relevant; no error). While the disputed evidence may have tended to evoke emotional responses, it was also highly relevant for the same reasons, as discussed above. The court did not abuse its discretion in refusing to exclude the statements. The assignment is overruled.

III

Defendant's next argument combines three separate assignments of error, regarding (1) the denial of defendant's motion to dismiss and (2) the court's instructions on who was the aggressor. Defendant has ignored the mandate of Rules of Appellate Procedure that "[e]ach question shall be separately stated." App.R. 28(b)(5). Nevertheless, despite the Rule violation we address those aspects of this argument which are properly before us.

A

Whether there is sufficient evidence to go to the jury can be one of the most difficult questions a court faces in a criminal case. State v. Bell, 65 N.C.App. 234, 309 S.E.2d 464 (1983), aff'd, 311 N.C. 299, 316 S.E.2d 72 (1984) (per curiam). Upon a timely motion to dismiss, the evidence must be considered in the light most favorable to the State, with all favorable and reasonable intendments and inferences. State v. Earnhardt, 307 N.C. 62, 296 S.E.2d 649 (1982). Once substantial evidence is before the jury, any conflicts and discrepancies are for the jury to resolve and do not supply basis for dismissal. State v. Greene, 278 N.C. 649, 180 S.E.2d 789 (1971); see State v. Bolin, 281 N.C. 415, 189 S.E.2d 235 (1972). This applies even where defendant presents no evidence. Id. If defendant does present evidence, it is disregarded on his motion to dismiss except to the extent that it is favorable to the State. Earnhardt, supra. In "borderline" or close cases, our courts have consistently expressed a preference for submitting issues to the jury, both in reliance on the common sense and fairness of the twelve and to avoid unnecessary appeals. State v. Vestal, 283 N.C. 249, 195 S.E.2d 297, cert. denied, 414 U.S. 874, 94 S. Ct. 157, 38 L. Ed. 2d 114 (1973); State v. Holt, 90 N.C. 749 (1884); Cunningham v. Brown, 62 N.C.App. 239, 302 S.E.2d 822, disc. rev. denied, 308 N.C. 675, 304 S.E.2d 754 (1983). With these considerations in mind, we conclude that the court properly denied defendant's motions to dismiss and submitted the case to the jury.

There was sufficient evidence of premeditation and deliberation in defendant's repeated statements that he was going to kill Smith, his requests for his second gun and in his immediate attempt to get his second gun or in unholstering his first gun when physically separated from Smith. See State v. Potter, 295 N.C. 126, 244 S.E.2d 397 (1978). There was sufficient evidence of malice in defendant's voluntary statement following arrest and the fact that he fired his gun several times at Smith at extremely close range (until there were no bullets left). See State v. Fleming, supra. Of the three elements of murder and voluntary manslaughter, see Id., only the unlawfulness of the killing is seriously disputed here. Defendant's contention is that the killing was justified as a matter of law by self-defense and that all the evidence showed that Smith was at all times the aggressor.

B

A person who kills another is not guilty of murder if the killing was an act of self-defense. State v. Deck, 285 N.C. 209, 203 S.E.2d 830 (1974). The right to kill another in self-defense may be forfeited not only by physical aggression on the accused's part but by conduct provoking the fatal encounter. State v. Sanders, 303 N.C. 608, 281 S.E.2d 7, cert. denied, 454 U.S. 973, 102 S. Ct. 523, 70 L. Ed. 2d 392 (1981). In Sanders, defendant could properly be found the "aggressor" even though he was imprisoned, since defendant taunted the deceased jailer to enter his cell with vile names and verbal abuse. See State v. Baldwin, 184 N.C. 789, 114 S.E. 837 (1922) (defendant provoked fatal encounter with language calculated to start fight; jury could properly find him aggressor, even though deceased advanced on him with loaded pistol) see also State v. Jennings, 276 N.C. 157, 171 S.E.2d 447 (1970) (analyzing circumstances under which adulterous conduct might affect right of self-defense). The fact that the deceased initiated physical contact does not automatically excuse aggressive conduct on defendant's part. See State v. Watkins, 283 N.C. 504, 196 S.E.2d 750 (1973) (deceased lunged at defendant after defendant sought out deceased and approached him brandishing shotgun; no self-defense).

The State bears the burden of proving that defendant did not act in self-defense. State v. Herbin, 298 N.C. 441, 259 S.E.2d 263 (1979). To survive a motion to dismiss, the State must therefore present sufficient substantial evidence which, when taken in the light most favorable to the State, is sufficient to convince a rational trier of fact that defendant did not act in self-defense. State v. Earnhardt, supra; Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560, reh'g denied, 444 U.S. 890, 100 S. Ct. 195, 62 L. Ed. 2d 126 (1979).

Here there was evidence that defendant and Smith had been physically separated with a law enforcement officer positioned between them. The original struggle had been broken up and stopped. Defendant then repeated his intention to kill Smith and either pulled out a pistol or suddenly reached for the box where a second pistol was known by the victim to be located, provoking the fatal encounter. This evidence sufficed to go to the jury on the question of whether defendant was the "aggressor." Defendant relies heavily on the evidence that Smith reached into his truck in the first instance and then jumped back in on top of him after the two had been separated. At best, this evidence presented a conflict in the State's evidence, which was for the jury to resolve. State v. Bolin, supra.

Our decision in State v. Haight, 66 N.C. App. 104, 310 S.E.2d 795 (1984), supports this conclusion. There deceased roughed up one of defendant's companions, abused and threatened defendant, and seemed intent on a violent confrontation. As deceased came toward defendant, defendant fired the fatal shot. Even though mortally wounded, deceased then chased and assaulted defendant. In Haight, however, there was evidence that deceased had committed no overt act at the time the shot was fired. We held that there was sufficient evidence to go to the jury on the question whether or not defendant was the aggressor. See also State v. McConnaughey, 66 N.C.App. 92, 311 S.E.2d 26 (1984) (similar facts and result). We likewise hold that in the instant case there was sufficient evidence to go to the jury.

C

Defendant requested an instruction "[t]hat the Court instruct the Jury that Ken Hamilton was not the aggressor, and that Smith was the aggressor." The court declined to give the requested instruction, which appears to be a peremptory instruction requiring the jury to accept as established a crucial and controverted fact. Peremptory instructions are only rarely proper in criminal cases. Only when uncontradicted evidence clearly establishes a fact beyond a reasonable doubt is a peremptory instruction appropriate. State v. Bowen, 67 N.C.App. 512, 313 S.E.2d 196, appeal dismissed, 312 N.C. 79, 320 S.E.2d 405 (1984) (per curiam). That was not the situation here and the court correctly refused to give the requested instruction.

D

Defendant also argues under this assignment that the court's instructions defining and applying the law of aggression were erroneous. Defendant did not specifically request any instructions on the subject (other than the one discussed above), and in response to the court's inquiry following the charge he indicated that he had no corrections or additions other than those previously requested. Defendant therefore cannot assign error to the instructions given. App.R. 10(b)(2). We have reviewed the complained of instructions and do not find "plain error" warranting a new trial. See State v. Odom, 307 N.C. 655, 300 S.E.2d 375 (1983).

IV

Defendant next assigns error to the court's refusal to instruct on involuntary manslaughter. The court must instruct on all substantial features of the case arising upon the evidence. State v. Davis, 66 N.C.App. 334, 311 S.E.2d 311 (1984). Involuntary manslaughter is "the unintentional killing of a human being without malice, proximately caused by (1) an unlawful act not amounting to a felony nor naturally dangerous to human life, or (2) a culpably negligent act or omission." State v. Redfern, 291 N.C. 319, 321, 230 S.E.2d 152, 153 (1976). Defendant grounds his contention on his testimony, otherwise unsupported, that Smith grabbed the gun and that it accidentally discharged during the struggle over it. We do not think this evidence sufficed to support an instruction on involuntary manslaughter, in view of defendant's repeatedly stated intention to kill Smith, his action in drawing the gun after the two men were physically separated, his testimony elsewhere that Smith fired the first shot, and the fact that Smith was shot a number of times at close range.

The appellate courts of this State have consistently held that it would be error to instruct on involuntary manslaughter on similar facts when the only evidence of accident has been oral assertions by the defendant, especially where the defense has relied on self-defense. See State v. Ray, 299 N.C. 151, 261 S.E.2d 789 (1980) (self-defense raised; defendant admitted firing toward deceased but not trying to hit him); State v. Redfern, supra (defendant's acts naturally dangerous to human life); State v. Robbins, 309 N.C. 771, 309 S.E.2d 188 (1983) (defendant and deceased scuffled; defendant had made threats, shot victim repeatedly); State v. Davis, supra (intentional brandishing of knife naturally dangerous, fatal consequences in scuffle probable). Accordingly, we conclude that no error occurred here. We note that this Court recently held that involuntary manslaughter is not a lesser included offense of murder. State v. Fournier, 73 N.C. App. 465, 326 S.E.2d 84 (1985).

V

In his last two questions, defendant assigns error to various jury instructions on excessive force, burden of proof, and accident. In disregard of the rules, defendant has not presented his questions separately, App.R. 28(b)(5), and failed to object at trial to the errors now alleged. App.R. 10(b)(2). These questions are accordingly not properly before us. Nevertheless, we have reviewed the instructions and find no "plain error." State v. Odom, supra. These assignments are overruled.

VI

For the foregoing reasons, we conclude that defendant has failed to show that he received other than a fair trial, free from prejudical error.

No error.

WHICHARD and COZORT, JJ., concur.