State v. Watkins , 45 N.C. App. 661 ( 1980 )

263 S.E.2d 846 (1980)

STATE of North Carolina
v.
Annie Kate WATKINS.

No. 7917SC709.

Court of Appeals of North Carolina.

March 18, 1980.

Atty. Gen. Rufus L. Edmisten, by Associate Atty. T. Michael Todd, Raleigh, for the State.

White & Crumpler, by Fred G. Crumpler, Jr., V. Edward Jennings, Jr., G. Edgar Parker, Harrell Powell, Jr., Edward L. Powell, Jr., and Frank J. Yeager, Winston-Salem, for defendant appellant.

MORRIS, Chief Judge.

There are fourteen assignments of error in the record. However, only four are brought forward and argued in defendant's brief. We consider only those assignments.

Defendant first contends that the trial court erred by admitting into evidence the alleged murder bullet over defendant's objection without establishing chain of custody. A medical doctor from the office of the Chief Medical Examiner in Chapel Hill, North Carolina, testified that he recovered a bullet which had been lodged in deceased's arm as a result of the shooting. The doctor was given a cellophane bag with the alleged bullet in it, which he identified as the bullet he had taken from deceased's arm. Regarding the bullet, he testified further:

This is a large caliber lead bullet which is pointed on one side due to the fact in its course through the body it passed through one of the ribs and also it struck the right upper arm bone. It is badly mutilated as a result of passing through the bones.

There is nothing in the record which indicates who had possession of the bullet from the time it was extracted from deceased's body to the time it was introduced into evidence at trial. In this regard, we express no opinion as to whether the doctor's in-court identification of the bullet was sufficient to establish chain of custody of that evidence. However, assuming arguendo, that chain of custody was not properly established, we find little prejudice in the testimony concerning this exhibit. As seen above, the doctor merely explained the shape of the bullet and traced its passage through the body. He expressed no opinion as to whether the bullet was fired from the gun found at the murder scene. Furthermore, the exhibit was relevant to the issue of cause of death and was consistent with the other exhibits admitted without objection. Defendant's assignment of error is overruled.

Defendant's next assignment of error is that the court improperly failed to charge the jury on self-defense or the burden of proof for self-defense. Defendant argues that there was clear evidence supporting an instruction on the doctrine of self-defense in that defendant stated that she "did not mean to shoot" her husband; that the shooting was "accidental"; and that deceased had previously threatened her. Upon review we find no merit in defendant's contention. The applicable rule is stated as follows:

[T]here must be evidence . . . that the party assaulted believed at the time that it was necessary to kill his adversary to prevent death or great bodily harm, before he may seek refuge in the principle of self-defense, and have the jury pass upon the reasonableness of such belief.

State v. Rawley, 237 N.C. 233, 237, 74 S.E.2d 620, 623 (1953). See also State v. Allmond, 27 N.C.App. 29, 217 S.E.2d 734 (1975). Upon review, we find no construction of the evidence which would support such an instruction. Nothing in the evidence indicates defendant believed she was in real or apparent danger of death or serious bodily injury. Further, defendant stated in her statement to the police that, although he had threatened her on prior occasions, her husband had not threatened her on the day of the shooting. This assignment of error is, therefore, overruled.

Defendant also assigns error to the trial court's denial of defendant's motion to dismiss the charge of murder in the second degree at the close of the State's evidence and at the close of all the evidence. In this case, defendant offered evidence, thereby waiving the motion for nonsuit made at the close of the State's evidence. State v. Mosley, 33 N.C.App. 337, 235 S.E.2d 261, cert. denied, 293 N.C. 162, 236 S.E.2d 706 (1977). We, therefore, consider only the motion lodged at the close of all the evidence.

In ruling on a motion to dismiss, the court is concerned only with the sufficiency of the evidence and not its weight. State v. McNeil, 280 N.C. 159, 185 S.E.2d 156 (1971). The evidence must be considered in the light most favorable to the State, and the State is entitled to every reasonable inference to be drawn therefrom. State v. Bell, 285 N.C. 746, 208 S.E.2d 506 (1974).

If the trial court determines that a reasonable inference of the defendant's guilt may be drawn from the evidence, it must deny the defendant's motion and send the case to the jury even though the evidence may also support reasonable inferences of the defendant's innocence.

State v. Smith, 40 N.C.App. 72, 78, 252 S.E.2d 535, 540 (1979); State v. Bell, supra.

When taken in a light most favorable to the State, we find the evidence sufficient to go to the jury on the charge of second degree murder. "Murder in the second degree is the unlawful killing of a human being with malice, but without premeditation and deliberation." State v. Cates, 293 N.C. 462, 466, 238 S.E.2d 465, 468 (1977). These elements may be presumed present where the State carries its burden of satisfying the jury from the evidence beyond a reasonable doubt that the defendant intentionally used a deadly weapon and inflicted wounds proximately resulting in the death of another. State v. Drake, 8 N.C.App. 214, 174 S.E.2d 132, cert. denied, 277 N.C. 114 (1970). Here, there was some evidence to indicate that defendant intentionally shot deceased during a domestic quarrel. We, therefore, conclude that the evidence before the court, although contradicted by defendant's evidence, provided a reasonable basis upon which the jury could find that defendant had committed the crime charged. It was then for the jury to determine whether the facts taken singly or in combination satisfied them beyond a reasonable doubt that defendant was in fact guilty. See State v. Barbour, 43 N.C.App. 143, 258 S.E.2d 475 (1979); State v. Smith, supra.

Defendant finally assigns error to the trial court's denial of her motion for "judgment notwithstanding the verdict". We note that G.S. 15A-1414 and G.S. 15A-1415 set out some of the errors of law committed by the trial judge which may be the subject of a post-trial motion for appropriate relief. However, regardless of the name given the motion by defendant, it was properly denied. The evidence was supportive of the verdict returned by the jury. Disposition of such post-trial motions is within the discretion of the trial court and the refusal to grant them is not error absent a showing of abuse of that discretion. See State v. McKenna, 289 N.C. 668, 224 S.E.2d 537, death penalty vacated, 429 U.S. 912, 97 S.Ct. 301, 50 L.Ed.2d 278 (1976). We find none here. This assignment of error is overruled.

The defendant received a fair trial free from prejudicial error.

No error.

PARKER and HILL, JJ., concur.