State v. Stone

409 S.E.2d 719 (1991) 104 N.C. App. 448

STATE of North Carolina
v.
Michael Edward STONE aka Roy Eugene Tedder.

No. 905SC1296.

Court of Appeals of North Carolina.

November 5, 1991.

Attorney Gen. Lacy H. Thornburg by Asst. Atty. Gen. Mabel Y. Bullock, Raleigh, for the State.

Yow, Culbreth & Fox by Stephen E. Culbreth; and Nora Henry Hargrove, Wilmington, for defendant-appellant.

WELLS, Judge.

Defendant brings forth nine assignments of error for our review. He does not address his first, second, third, fifth and seventh assignments of error in his brief, and they are therefore deemed abandoned. N.C.R.App.P., Rule 28. Defendant moved to have the record on appeal amended pursuant to N.C.R.App.P., Rule 9(b)(5) to include a tenth assignment of error. This motion was denied by a prior panel and we are bound by that decision not to consider this assignment of error. In his remaining assignments, defendant contends the trial court erred in not instructing the jury on self-defense, admitting unauthenticated documents as evidence during the sentencing phase of the trial, and finding an aggravating factor of prior convictions which was not supported by the evidence. We find no error.

Defendant first assigns error to the trial court's failure to instruct the jury on the theory of self-defense. He contends the evidence offered at trial is sufficient to support an instruction on self-defense. To be entitled to an instruction on self-defense, defendant must present evidence tending to show: (1) he was free from fault in the matter, and (2) it was necessary, or reasonably appeared to be necessary, to kill in order to protect himself from death or great bodily harm. State v. Spaulding, 298 N.C. 149, 257 S.E.2d 391 (1979). A person is entitled under the law of self-defense to harm another only if he is "without fault in provoking, or engaging in, or continuing a difficulty with another." State v. Hunter, 315 N.C. 371, 338 S.E.2d 99 (1986). The right of a person to kill another in self-defense arises when the killing is or reasonably appears to be necessary in order to save himself from death or great bodily harm. State v. Deck, 285 N.C. 209, 203 S.E.2d 830 (1974).

If, however, there is no evidence from which the jury reasonably could find that defendant in fact believed that it was necessary to kill his adversary to protect himself from death or great bodily harm, defendant is not entitled to have the jury instructed on self-defense. State v. Bush, 307 N.C. 152, 297 S.E.2d 563 (1982). It is for the court to determine in the first instance as a matter of law whether there is any evidence upon which defendant reasonably believed it to be necessary to kill his adversary in order to protect himself from death or great bodily harm. State v. Johnson, 166 N.C. 392, 81 S.E. 941 (1914). If there is no evidence upon which the defendant in fact could form such a reasonable belief, then there is no evidence of self-defense and the issue should not be submitted to or considered by the jury. State v. Spaulding, supra.

The evidence presented by defendant concerning the events of 4 August 1989 neither established he entered the fight without fault nor showed he reasonably believed it was necessary to kill the victim. Defendant voluntarily joined the original fight in the bar and continued the fight outside the bar. Mr. Grewal's testimony indicated defendant prevented the victim from reentering the bar during the fight and that defendant hit the victim with a barstool as he lay bleeding on the floor.

Defendant was heard by several witnesses to say he stabbed the victim in the heart. Defendant did not testify and presented absolutely no evidence, either circumstantial or direct, which would establish the necessity of his killing the victim. Rather, defendant relied on permissible inferences from testimony elicited on cross-examination of the State's witnesses. State v. Spaulding, supra, and its progeny of cases require a defendant to either present evidence showing he was free from fault in the matter or that it appeared necessary to use deadly force. The evidence in this case established that defendant, at some point, introduced a knife into the fight and stabbed the victim. We conclude that the trial court's decision not to give an instruction on self-defense was proper in light of the evidence presented at trial. We therefore overrule this assignment of error.

The trial court sentenced defendant in excess of the presumptive sentence based upon a finding of an aggravating factor of prior convictions. Defendant assigns as error the trial court's allowing the introduction of an F.B.I. fingerprint record bearing the name of Roy Eugene Tedder during the sentencing phase of the trial. He contends this document introduced by the State was unauthenticated and unduly relied upon by the trial court to find an aggravating factor of prior convictions. Defendant further contends this record does not comply with the requirements of N.C.Gen.Stat. § 15A-1340.4(e) on proving a prior conviction. The State contends the F.B.I. fingerprint record was used solely for the purpose of establishing the identity of defendant with that of Roy Eugene Tedder. We agree.

The State introduced this document through the testimony of an expert witness concerning defendant's fingerprints. This witness testified that the fingerprints taken of defendant on the night of 4 August matched the fingerprints on the F.B.I. card. Further, the State presented evidence by a Wilmington police officer who was familiar with defendant's family. This witness testified she had spoken with defendant's parents and they informed her that defendant's true identity was Roy Eugene Tedder.

The trial court, having not relied on this document to support an aggravating factor, did not admit evidence which fails the criteria of N.C.Gen.Stat. § 15A-1340.4(e). Therefore, defendant's reliance on this argument is misplaced. Trial judges in North Carolina are allowed wide latitude in conducting sentencing hearings and are encouraged to seek all relevant information which may be of assistance in determining an appropriate sentence. State v. Midyette, 87 N.C.App. 199, 360 S.E.2d 507 (1987). The formal rules of evidence do not apply. N.C.Gen.Stat. § 15A-1334(b).

A judgment will not be disturbed because of sentencing procedures unless there is a showing of abuse of discretion, procedural conduct prejudicial to defendant, circumstances which manifest inherent unfairness and injustice, or conduct which offends the public sense of fair play. State v. Jackson, 302 N.C. 101, 273 S.E.2d 666 (1981). The trial court's reliance on the F.B.I. fingerprint record to establish the identity of defendant was not prejudicial to him. This assignment of error is also overruled.

In defendant's final assignment of error he contends the trial court erred in finding an aggravating factor of prior convictions which was not supported by the evidence. N.C.Gen.Stat. § 15A-1340.4(e) states:

A prior conviction may be proved by stipulation of the parties or by the original or a certified copy of the court record of the prior conviction. The original or certified copy of the court record, bearing the same name as that by which the defendant is charged, shall be prima facie evidence that the defendant named therein is the same as the defendant before the court and shall be prima facie evidence of the facts set out therein.... The language of N.C.Gen.Stat. § 15A-1340.4(e) is permissive rather than mandatory respecting methods of proof. It provides that prior convictions "may" be proved by stipulation or by original certified copy of the court record, not that they must be. The statute does not preclude other methods of proof. State v. Thompson, 309 N.C. 421, 307 S.E.2d 156 (1983).

Having established the identity of defendant as Roy Eugene Tedder, the State introduced several certified court records from the State of Delaware bearing the name of Roy Eugene Tedder. These records showed convictions in excess of 60 days as required by N.C.Gen.Stat. § 15A-1340.4(a)(1)(o) to support the finding of this aggravating factor. This is a statutorily approved method of proving a prior conviction; therefore, defendant's final assignment of error is overruled.

For the reasons stated we find

No error.

PARKER and WYNN, JJ., concur.