State v. Perry

172 S.E.2d 541 (1970) 276 N.C. 339

STATE of North Carolina
v.
Ernest Ray PERRY.

No. 13.

Supreme Court of North Carolina.

March 11, 1970.

Robert Morgan, Atty. Gen., Ralph Moody, Deputy Atty. Gen., for the State.

Russell W. DeMent, Jr., Raleigh, for defendant.

HIGGINS, Justice.

The defendant argues here that the trial court committed four prejudicial and reversible errors. He contends: (1) Dr. Pate, the Pathologist who performed the autopsy on the body of George Edward Kitchen, was permitted to testify as to the cause of death, necessarily basing his opinion in part on facts not within his personal knowledge, which should have been the subject of a hypothetical question; (2) The defendant's motion for mistrial should have been allowed when Detective Johnson testified before the jury that at the time he arrested the defendant, he had two warrants, each of which charged assault with a deadly weapon; (3) The witness Pierce was permitted, over objection, to repeat to the jury certain admissions the defendant made while both were prisoners in the Wake County Jail; (4) The court should have withdrawn the charge of murder in the first degree because of the failure of the State to offer sufficient evidence of premeditation and deliberation.

Dr. Sparrow, who first treated the victim of the assault, actually traced the channel made by the bullet beginning at the left lower lip, through the teeth, through the tongue, and into the right tonsil, where the projectile was imbedded. He removed a lead bullet from the tonsil by means of forceps without the necessity of any cutting operation. He did not discover any damage beyond the tonsil wall. Only a complete blockage of the artery would have been discoverable at the time and by the type of examination he made.

Dr. Pate, who qualified as a pathology expert, performed the autopsy. He traced the channel left by a projectile beginning at the left lower lip, through the teeth, tongue, and into the right tonsil. He dissected the artery just behind the tonsil and found that pressure had built up in front of the projectile which made the channel and had damaged the wall of the carotid artery, causing a blood clot within the artery. A part of the clot was carried to the brain, causing paralysis and death. The damage was revealed only by the autopsy. Dr. Pate testified: "If I excluded everything from my consideration except what I saw upon my examination, I would say with medical certainty that whatever projectile had entered the channel that I observed caused the death of the deceased. I can say this because of what I was able to find at the time of autopsy." In non-medical terms, the autopsy told him all he needed to know as to the cause of death. As an expert in his field, Dr. Pate was qualified to testify as he did. State v. Feaganes, 272 N.C. 246, 158 S.E.2d 89; State v. Porth, 269 N.C. 329, 153 S.E.2d 10; State v. Rhodes, 252 N.C. 438, 113 S.E.2d 917; State v. Knight, 247 N.C. 754, 102 S. E.2d 259; State v. Mays, 225 N.C. 486, 35 S.E.2d 494. The challenge to the testimony of Dr. Pate is not sustained.

During the course of the trial, the arresting officer in this case apparently had in his possession a warrant for the arrest of the defendant charging a felonious assault on Mr. Kitchen. This warrant was issued after the assault and before Kitchen's death. Apparently the officer also had a warrant for the defendant on another assault charge. When the solicitor asked the witness the question whether he had a warrant for the defendant's arrest, he volunteered the information that he had two warrants charging assault. After objection, Judge Carr instructed the jury to disregard the statement there was a second warrant. Any harmful effect of the officer's inadvertence, if error, was corrected by the court's instruction to the jury not to consider the testimony there was a second warrant. State v. Battle, 269 N.C. 292, 152 S.E.2d 191; State v. Bruce, 268 N.C. 174, 150 S.E.2d 216; State v. Goldberg, 261 N.C. 181, 134 S.E.2d 334; State v. Lane, 166 N.C. 333, 81 S.E. 620. The objection on the ground the trial court committed error in denying the motion for a mistrial is not sustained.

As his third ground of challenge, the defendant contends the court committed error in permitting the witness Pierce to testify the defendant admitted he had shot Kitchen and his reasons for the shooting. Specifically, the defendant contends the court should have conducted a voir dire examination to determine whether the admissions to Pierce were freely and voluntarily made.

The defendant misinterprets the necessity for the voir dire examination to determine the voluntariness of his admissions to his jailmate Pierce. As a general rule, voluntary admissions of guilt are admissible in evidence in a trial. To render them inadmissible, incriminating statements must be made under some sort of pressure. Here we quote from the Supreme Court of the United States in Hoffa v. United States, 385 U.S. 293, 87 S.Ct. 408, 17 L. Ed.2d 374: "Neither this Court nor any member of it has ever expressed the view that the Fourth Amendment protects a wrongdoer's misplaced belief that a person to whom he voluntarily confides his wrongdoing will not reveal it. * * * ``The risk of being overheard by an eavesdropper or betrayed by an informer or deceived as to the identity of one with whom one deals is probably inherent in the conditions of human society. It is the kind of risk we necessarily assume whenever we speak.' * * * (A)ll have agreed that a necessary element of compulsory self-incrimination is some kind of compulsion." The court did not commit error in permitting the witness Pierce to repeat the incriminating admissions the defendant voluntarily made to him while both were prisoners.

The fourth ground of objection to the trial (sufficiency of the evidence of premeditation and deliberation) is somewhat more troublesome than the three objections already discussed. The court, in a clear, concise and accurate charge (to which there is no objection) instructed the jury under what circumstances it should return one of these possible verdicts: (1) Guilty of murder in the first degree; (2) Guilty of murder in the first degree with the recommendation that punishment be imprisonment for life in the State's prison; (3) Guilty of murder in the second degree; (4) Guilty of manslaughter; (5) Not guilty.

The court's instruction and the jury's verdict must be supported by evidence which permits the jury to find beyond a reasonable doubt that the defendant, with malice, after premeditation and deliberation, intentionally shot and killed George Edward Kitchen. In this case, malice may be presumed from evidence which satisfies the jury beyond a reasonable doubt that Kitchen's death proximately resulted from a pistol shot intentionally fired at him by the defendant. The finding would warrant a verdict of murder in the second degree. To sustain a verdict of murder in the first degree, the evidence must be sufficient to support a finding the fatal shot was fired after premeditation and deliberation. The courts define premeditation as "thought beforehand for some length of time, however short". Strong's N.C. Index 2d., Vol. 4, p. 196; State v. Walters, 275 N.C. 615, 170 S.E.2d 484; State v. Benson, 183 N.C. 795, 796, 111 S.E. 869. "Deliberation means * * * an intention to kill, executed by the defendant in a cool state of blood, in furtherance of a fixed design * * * or to accomplish some unlawful purpose, and not under the influence of a violent passion, suddenly aroused by some lawful or just cause or legal provocation." State v. Faust, 254 N.C. 101, 118 S.E.2d 769, 96 A.L.R.2d 1422.

On a motion to dismiss a count in the indictment charging murder in the first degree, the trial court must determine the preliminary question whether the evidence in its light most favorable to the State is sufficient to permit the jury to make a legitimate inference and finding that the defendant, after premeditation and deliberation, formed a fixed purpose to kill and thereafter accomplished the purpose. "No fixed length of time is required for the mental processes of premeditation and deliberation constituting an element of the offense of murder in the first degree, and it is sufficient if these processes occur prior to, and not simultaneously with, the killing." Strong's N.C. Index, supra.

"Premeditation and deliberation are not usually susceptible of direct proof, and are therefore susceptible of proof by circumstances * * *." State v. Walters, supra. The court determines as a matter of law what is evidence. The jury must find from that evidence, beyond a reasonable doubt, that premeditation and deliberation anticeded the fatal shot.

The evidence as to what actually occurred before, at the time of, and following the killing comes from Stallings, brother-in-law of the defendant, and from Wilson, his companion and friend. Neither claimed the deceased started the difficulty. Both said that Stallings, driving the light colored automobile, overtook the deceased, and that discussion occurred between the defendant and the deceased as the vehicles were side by side. All the evidence disclosed the deceased admonished the defendant's party to go home and behave themselves. Nothing else is claimed to have come from the deceased.

The evidence disclosed the defendant fired three shots at a defenseless man who was at a place where he had a right to be and doing that which he had a right to do. Want of provocation, absence of excuse or justification, the number of shots fired, and the request of the defendant that they go back so he could finish the job permit a legitimate inference of premeditation and deliberation. This evidence was sufficient to go to the jury and be considered by it on the issue of murder in the first degree. State v. Faust, supra; State v. Lamm, 232 N.C. 402, 61 S.E.2d 188.

The defendant did not offer evidence.

We conclude the evidence permitted and will support a finding that the defendant, with malice, premeditation and deliberation, shot and killed George Edward Kitchen. In the verdict and judgment, we find

No error.