State v. Harris

264 S.E.2d 790 (1980)

STATE of North Carolina
v.
William Allen HARRIS.

No. 7915SC910.

Court of Appeals of North Carolina.

April 15, 1980.

Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. Jo Anne Sanford, Raleigh, for the State.

Gunn & Messick by Robert L. Gunn, Pittsboro, for defendant-appellant.

HARRY C. MARTIN, Judge.

Defendant contends his incriminating statements to the officers were incompetent. The evidence shows an officer advised defendant of his constitutional rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), and he signed a written waiver before making any statements. The defendant also made two inconsistent statements to another officer, Charles Hinton. Although Officer Hinton advised defendant and others who were present when he arrived at the scene of their rights, he did not ask defendant any questions. Defendant and others volunteered statements to the officer. Defendant first said he had dropped the gun and it fired. Later, he said he had bumped it against the stove and it went off.

The record is not entirely clear as to what part of the testimony concerning defendant's statements was out of the hearing of the jury. The court did not enter a formal order finding facts with conclusions of law concerning the voluntariness of defendant's statements. This, of course, is the best practice for a trial judge to follow. When, as in this case, no conflicting testimony is offered on voir dire, it is not error for the judge to admit defendant's incriminating statements without making specific findings. State v. Lynch, 279 N.C. 1, 181 S.E.2d 561 (1971). We find no prejudicial error in this assignment.

Defendant objected to testimony by the officers relating what the witnesses Ernest Lee, Elwood Taylor and Deborah Taylor told them. Judge Riddle properly instructed the jury in each instance that the evidence was only competent to corroborate the previous testimony of the witness, if indeed it did so corroborate. Such testimony is competent for this purpose. An unbroken line of cases beginning with Johnson v. Patterson, 9 N.C. 183 (1822), sustains this rule. Where defendant contends part of the testimony does not tend to corroborate the prior witness's testimony, he has a duty to point out to the court the objectionable part. State v. Brooks, 260 N.C. 186, 132 S.E.2d 354 (1963). This, defendant failed to do. The assignment is overruled.

Last, defendant argues the court erred in the following portion of the charge:

In North Carolina when a defendant enters a plea of not guilty, he is presumed to be innocent at the outset and all—at all stages of the trial until the State has shown you from the evidence and by its greater weight all of the essential elements of his guilt.

Clearly, this is error. The question is whether it was prejudicial to defendant in this case. The state's evidence as adopted by the jury is overwhelming proof of defendant's guilt of the crime charged.

The erroneous instruction was given at the very outset, in the third paragraph of the court's charge. It occurred in the preliminary portion of the charge, being the seventh sentence in the charge. Thereafter, the court summarized the evidence for four pages in the record, then turned to the explanation of the law in the case. Following are portions of these instructions:

I charge if you find the defendant guilty of second degree murder, the State must prove two things beyond a reasonable doubt.

If the State proves beyond a reasonable doubt that the defendant intentionally killed

The burden is on the State to prove beyond a reasonable doubt that the defendant did not act in the heat of passion

For you to find the defendant guilty of involuntary manslaughter, the State must prove two things beyond a reasonable doubt.

The burden remains on the State to prove the defendant's guilt beyond a reasonable doubt.

So I charge that if you find from the evidence beyond a reasonable doubt that on or about the 6th of January, 1979, the defendant intentionally and with malice and without justification or excuse shot the deceased with a deadly weapon,

However, if you do not so find or have a reasonable doubt as to one or more of these things,

If you find from the evidence beyond a reasonable doubt that on or about the 6th of January, 1979, the defendant intentionally and without justification or excuse shot

but the State has failed to satisfy you beyond a reasonable doubt that the defendant acted with malice

because it failed to satisfy you beyond a reasonable doubt

However, if you do not so find or if you have a reasonable doubt as to one or more of these things, you will not return a verdict of guilty of voluntary manslaughter.

If you find from the evidence beyond a reasonable doubt that on or about January 6, 1979, the defendant shot the deceased in a criminally negligent way

However, if you do not so find or if you have a reasonable doubt as to one or more of these things, it would be your duty to return a verdict of not guilty.

When the defendant asserts that the victim's death was the result of an accident, he is in effect denying the existence of those facts which the State must prove beyond a reasonable doubt in order to convict him.

The State must satisfy you beyond a reasonable doubt that the victim's death was not accidental before you return a verdict of guilty.

Fifteen different times the court properly told the jury that the state was required to satisfy them beyond a reasonable doubt before the defendant could be convicted. In the all-important mandate on each charge, the court's instructions were correct.

Three North Carolina cases are particularly instructive on this question. In State v. Johnson, 227 N.C. 587, 42 S.E.2d 685 (1947), the trial court twice gave the jury the incorrect quantum of proof, the second time occurring when the jury returned for further instructions after reporting they were "tied up on" an issue in the case. The Supreme Court held the errors required a new trial, even though the correct rule of proof had been given by the court at other times in the charge.

"[A]n erroneous instruction on the burden of proof is not ordinarily corrected by subsequent correct instructions upon the point." State v. Harris, 289 N.C. 275, 280, 221 S.E.2d 343, 347 (1976). This holding by the Supreme Court arose from an instruction by the trial judge that erroneously placed upon defendant the burden of proving accident as a defense to a murder charge.

As the Court stated, ordinarily a subsequent correct instruction will not correct an erroneous charge on burden of proof. An example of an exception to this rule is found in State v. Moore, 37 N.C.App. 248, 245 S.E.2d 898, cert. & disc. rev. denied, 295 N.C. 651, 248 S.E.2d 254, 255 (1978). In Moore, the trial judge in preliminary instructions to the prospective jurors told them that the state's burden of proof was by the greater weight of the evidence. Thereafter, in defendant Moore's trial the court properly instructed the impanelled jury that the burden was beyond a reasonable doubt. The Court held the prior instruction was without prejudice to defendant, concluding that the subsequent correct instruction was sufficient to overcome any possible prejudice caused by the incorrect statement.

Even as the Court in Moore providing the cutting edge for realistic appraisal of the effect of jury instructions, we now continue this effort toward realism in the examination of the relationship between instructions by the trial judge and the jury.

We hold, therefore, that here, as in Moore, the incorrect instruction was not prejudicial to defendant. The later fifteen instances in which the court properly charged the state's burden of proof were sufficient to remove any possible prejudice caused by the earlier single lapsus linguae. The charge as a whole presented the law of burden of proof to the jury in such a manner as to leave no reasonable cause to believe that the jury was misled. Gregory v. Lynch, 271 N.C. 198, 155 S.E.2d 488 (1967).

In defendant's trial we find no prejudicial error.

No error.

PARKER and HILL, JJ., concur.