State v. Couch , 35 N.C. App. 202 ( 1978 )

241 S.E.2d 105 (1978) 35 N.C. App. 202

STATE of North Carolina
v.
Roscoe Roan COUCH, Jr.

No. 7721SC689.

Court of Appeals of North Carolina.

February 7, 1978.

Atty. Gen. Rufus L. Edmisten by Associate Atty. Ben G. Irons, II, Raleigh, for the State.

Pettyjohn & Molitoris by H. Glenn Pettyjohn and Theodore M. Molitoris, Winston-Salem, for defendant-appellant.

CLARK, Judge.

Was defendant's evidence that someone else committed the crime admissible? The defendant attempted to offer evidence particularly in cross-examination of Detective Grindstaff, that there had been a shootout between rival motorcycle gangs, that Grant Koontz (neighbor of James Cecil) was a member of one of the gangs, that on the night of the shooting a red-headed man named Sam was in the vicinity inquiring about the residence of Grant Koontz, and that Koontz thought that the man who shot James intended to kill him (Koontz).

The admissibility of evidence which tends to prove that another committed the crime for which the accused is being tried is governed by relevancy—whether it proves or disproves, or tends to prove or disprove the crime charged or any fact material to the issues. 1 Stansbury's N.C.Evidence (Brandis Rev.) § 93.

An examination of the cases in North Carolina reveals that the defendant has had little success in offering evidence tending to incriminate others. The courts have ruled that the evidence was inadmissible because it did not point directly to the guilt of a third party, but only raised an inference or conjecture of another's guilt. State v. Shinn, 238 N.C. 535, 78 S.E.2d 388 (1953) (evidence that others in the community were known to deal in liquor where defendant was charged with illegal possession); State v. Smith, 211 N.C. 93, 189 S.E. 175 (1937) (evidence that another was near the scene of the crime when the burglary was perpetrated); State v. Stewart, 189 N.C. 340, 127 S.E. 260 (1925) (evidence that officers had a warrant for someone other than defendants charged with murder); State v. Ashburn, 187 N.C. 717, 122 S.E. 833 (1924) (evidence that another had been seen frequently with the mother, a codefendant charged with the murder of her infant); State v. Wiggins, 171 N.C. 813, 89 S.E. 58 (1916) (evidence that two other men were seen the evening before near the spot where deceased was shot); State v. Lane, 166 N.C. 333, 81 S.E. 620 (1914) (evidence of statements made by another person that he had killed the deceased). But in State v. Mitchell, 209 N.C. 1, 182 S.E. 695 (1935) and State v. Blackwell, 193 N.C. 313, 136 S.E. 868 (1927), it was held error to exclude the dying declaration that another person did the killing.

In the case sub judice we find the evidence offered by the defendant, to the effect that deceased's neighbor was a member of a motorcycle gang which was at war with another gang, was speculative, did not point directly to others, and was thus not relevant to the issue of guilt. The trial court did not err in excluding this evidence.

The defendant assigns as error the exclusion of evidence during cross-examination of Detective Grindstaff about alleged prior inconsistent statements appearing in a newspaper article which speculated about the murder resulting from motorcycle gang warfare. The evidence was entirely speculative and not relevant on the issue of defendant's guilt. Nor was it admissible as a prior inconsistent statement. The testimony of the witness at trial based on personal observation was not inconsistent with the possibility that after the shooting and before defendant's confession, a period of 11 months, he had other possible theories. Since the witness had not given testimony with which the purported statements were inconsistent, the court properly excluded the purported statements. See State v. Pearce, 268 N.C. 707, 151 S.E.2d 571 (1966).

The defendant contends that the trial court erred in failing to charge on manslaughter and also drunkenness as a defense. The State's case was based on defendant's confession, which included defendant's statement that he was upset when the husband (deceased) returned. It is understandable that the unexpected return of the husband, which interrupted defendant's tryst with deceased's wife and forced him to jump out of a window nine feet above the ground, would upset the defendant, but this alone was not sufficient to require a charge on manslaughter in view of defendant's statement that he went to his car and got a shotgun, returned to a neighbor's yard, and shot deceased when he walked out on the porch. The trial court is not required to charge the jury upon the question of defendant's guilt of lesser degrees of the crime charged in the indictment where there is no evidence to sustain a verdict of defendant's guilt of such lesser degrees. 4 Strong's N.C.Index, 3rd ed., Criminal Law, § 115.

The only evidence of drunkenness was defendant's statement in his confession to Detective Grindstaff to the effect that he was in a drunken condition and did not remember what happened after the shooting. Defendant was convicted of second-degree murder. Voluntary drunkenness is no defense to murder in the second degree. It is a defense to the charge of first-degree murder to the extent that it precludes the mental processes of premeditation and deliberation. State v. Wilson, 280 N.C. 674, 187 S.E.2d 22 (1972).

We have examined defendant's other assignments of error but find them to be without merit.

No error.

MORRIS and MITCHELL, JJ., concur.