State v. Puckett

284 S.E.2d 326 (1981)

STATE of North Carolina
v.
Billie Gauther PUCKETT.

No. 8117SC511.

Court of Appeals of North Carolina.

November 17, 1981.

Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. Nonnie F. Midgette, Raleigh, for the State.

D. Leon Moore, Reidsville, for defendant-appellant.

ROBERT M. MARTIN, Judge.

Defendant's appeal is subject to dismissal for failure to comply with the North Carolina Rules of Appellate Procedure. Rule 28(b)(2) and (3) provides in pertinent part that the appellants' briefs shall contain:

(2) A concise statement of the case.

(3) An argument. This shall contain the contentions of the appellant with respect to each question presented together with citations of the authorities, statutes, and those portions of the record on appeal upon which he relies.

By application of this Rule, defendant has abandoned his entire appeal, as counsel for defendant did not present a concise statement of the case and did not cite a single authority or statute for the arguments in his brief. Although the questions presented by this case have persuaded us in the interests of justice and in our discretion, as permitted by Rule 2, N.C. Rules App.Proc., to waive the procedural errors present, we again emphasize to the practicing bar that the Rules of Appellate Procedure are mandatory upon all parties before this Court. A thorough understanding of the Rules is essential for competent representation of clients in the Appellate Courts.

The defendant assigns as error the failure of the trial court to allow Dr. Anthony Macri to testify about the result of the toxicologic analysis of the deceased's body. Dr. Macri testified as an expert in the field of pathology and he indicated that the toxicology examination was done by someone else not under his supervision. Dr. Macri was never qualified as an expert in the field of toxicology. "A finding by the trial judge that a witness is not qualified to testify as an expert as to a particular matter will ordinarily not be reversed on appeal, unless there is abuse of discretion or the ruling is based on an erroneous view of the law." State v. Peterson, 24 N.C.App. 404, 408, 210 S.E.2d 883, 885-86 (1975); 1 Stansbury's N.C. Evidence § 133 (Brandis Rev. 1973). We find no abuse of the trial court's discretion in excluding the testimony of Dr. Macri relating to drugs in the body of the deceased.

The defendant next assigns as error the failure of the trial court to allow the decedent's father to be questioned about the way in which the deceased treated the defendant. The trial court sustained the State's objection to these questions. When an objection to a specific question is sustained, this normally means that the answer the witness would have given should be made a part of the record. 1 Stansbury's N.C. Evidence § 26 (Brandis Rev.1973). An exception to the exclusion of evidence cannot be sustained when the record fails to disclose what the witness would have testified had he been permitted to answer. State v. Fletcher and State v. Arnold, 279 N.C. 85, 181 S.E.2d 405 (1971). Because the record fails to disclose what the witness's answers would have been, this assignment of error is without merit and is overruled.

The defendant's fourth assignment of error concerns the failure of the trial judge to permit questions of the investigating officer about statements made by the defendant at the scene. In her fifth assignment of error, defendant argues that the trial court should have allowed the decedent's first wife to be questioned about her previous relationship with the decedent. In both of these instances, the record does not disclose what the witnesses' answers would have been had they been allowed to testify. For the above stated reason, these assignments of error are without merit and are overruled.

The defendant further contends that the trial court erred in failing to permit Terry Stephen Johnson to testify concerning specific acts of violence of the deceased. We disagree.

Where there is evidence of self-defense, the general character of the deceased as a violent and dangerous man is competent. Evidence of specific acts of violence, however, which have no connection with the homicide is not admissible. State v. Morgan, 245 N.C. 215, 95 S.E.2d 507 (1956). In State v. Davis, 259 N.C. 138, 129 S.E.2d 894 (1963), the defendant was not allowed to introduce evidence that the deceased had assaulted certain persons in order to establish the dangerous and violent character of the deceased. Evidence of specific acts of violence may be admitted only when the defendant knew of them and when the point in issue is the reasonableness of the defendant's apprehension. Nance v. Fike, 244 N.C. 368, 93 S.E.2d 443 (1956).

Here there is no evidence in the record that the defendant knew of the incident which was excluded from evidence. Mr. Johnson testified about the dangerous and violent reputation of the deceased. His testimony regarding specific acts of violence was properly excluded.

The defendant also assigns as error the failure of the trial judge to charge the jury that Carol Cox was an interested witness. The judge gave a general instruction on witness credibility but failed to give the requested instruction that "Carol Cox is an interested witness, interested in the out-come of this case and that her testimony should be scrutinized accordingly."

An instruction to scrutinize the testimony of a witness on the grounds of interest or bias relates to a subordinate feature of a criminal case, and the trial court is not required to charge as to such matters in the absence of a request for special instructions. State v. Sealey, 41 N.C.App. 175, 254 S.E.2d 238 (1979). N.C.Gen.Stat. § 1-181 requires that a request for special instructions be in writing, signed by counsel submitting them and submitted to the trial court before the charge to the jury is begun. Although the defendant's motion misstated the record, she complied with the requirements of N.C. Gen.Stat. § 1-181.

The trial court is not required to give a requested instruction in the exact language of the request; however, when the request is correct in law and supported by the evidence in the case, the court must give the instructions in substance. State v. Monk, 291 N.C. 37, 229 S.E.2d 163 (1976). It is error for the court to change the sense or to so qualify the requested instruction as to weaken its force. Lloyd v. Bowen, 170 N.C. 216, 86 S.E. 797 (1915); Brink v. Black, 77 N.C. 59 (1877).

In this case Carol Cox testified that "I am aware that if Marie is convicted of anything, my child will not just share in the estate but receive all of it." Cox testified that the defendant had talked about killing her husband and that defendant thought she could do it without having to serve any time in prison. This testimony is damaging to the defendant.

While there is no error if the trial judge gives the requested instructions in substance, the general credibility instructions on the facts of this case are not substantially the same as the requested instructions. Carol Cox, through her minor son, had a substantial pecuniary interest in the outcome of this case and her testimony was harmful to the defendant.

As the Court stated in State v. Griffin, 280 N.C. 142, 144, 185 S.E.2d 149, 151 (1971) concerning jury instructions, "[t]here is no hard and fast form of expression, or consecrated formula, required, but the jury should be instructed that, as to the testimony of... parties interested in the case and defendants, that the jury should scrutinize their testimony in light of that fact; but if after such scrutiny, the jury should believe that the witness has told the truth, they should give him as full credit as if he were disinterested." (Citation omitted.)

The failure to give the requested instructions constituted prejudicial error. The defendant was convicted of voluntary manslaughter, which is an unlawful killing, done without malice and without premeditation or deliberation. Voluntary manslaughter is defined as an intentional killing. State v. Wilkerson, 295 N.C. 559, 247 S.E.2d 905 (1978). Carol Cox's testimony tends to show that defendant deliberately killed the deceased. Thus the court's failure to give the requested jury instruction constituted not only error, but prejudicial error, entitling the defendant to a new trial.

We do not consider defendant's remaining assignments of error because they may not recur on retrial.

New trial.

WEBB and WELLS, JJ., concur.