State v. Brogden

VAUGHN, Judge.

Defendant argues that the court erred in excluding evidence that he contends implicates a State’s witness, Newman, as the killer. The excluded evidence tended, at best, to show that Newman and Thorpe had argued about cars and money on the evening preceding the shooting. The same witnesses said, however, that the two were not angry, that they were merely “carrying on.” The excluded testimony did not point to the guilt of another and was properly excluded. In a similar case, State v. Jones, 32 N.C. App. 408, 232 S.E. 2d 475 (1977), cert. den., 292 N.C. 643, 235 S.E. 2d 63, this Court held that it was not error to exclude evidence that another had a motive that the defendant did not. The Court pointed out that this was not evidence that the crime in quesiton was committed by another and was, therefore, not relevant to the question of defendant’s guilt.

Defendant also assigns as error the admission of a declaration made by the deceased to Keester Carver shortly after he was shot. Carver testified that Thorpe asked him to take him to the hospital. When asked how he was shot, Thorpe responded that Brogden had shot him. Defendant contends that this testimony was hearsay and did not fall within any recognized exception to the rule. The evidence was handled at trial as if it fell within the exception for dying declarations. “The admissibility of a declaration as a dying declaration is a question to be determined by the trial judge. When the trial judge admits the declaration, on appeal, the ruling of the trial judge is reviewable only to determine whether there is evidence tending to show facts essential to support the trial judge’s ruling.” State v. Brown, 263 N.C. 327, 333, 139 S.E. 2d 609, 612 (1965). The only supporting fact at issue is whether the court could infer from the evidence that the deceased had knowledge of his imminent death. Carver testified that he deceased questioned him about the severity of the wound and asked help in getting to a hospital. He was gasping for breath and seemed very nervous and concerned about his condition. Shortly after making the statement, he appeared to go into shock and began to bleed from the mouth. Considering the general knowledge of the seriousness of a gunshot wound to the torso and the other circumstances, we conclude that the court was justified in admitting the declaration into evidence.

On the authority of State v. Deck, 285 N.C. 209, 203 S.E. 2d 830 (1974), the statement would have been admissible as a “spontaneous utterance” even if it did not qualify as a “dying declaration.” In Deck, defendant was on trial for murder. A witness was permitted to testify that she saw decedent and another man running up the highway, that decedent told her that the other man had tried to rob him and that he had been stabbed. The Court said:

“We think the challenged statements were made in immediate response to the stimulus of the occurrence and without opportunity to reflect or fabricate. Further, decedent had no motive for fabrication. The time lapse between the completion of the alleged crime, the ensuing chase and the statements made to the witness was negligible.

In our opinion, the challenged statements were spontaneous utterances and were therefore correctly admitted by the trial judge.” 285 N.C. at 214, 203 S.E. 2d at 834.

The testimony in the case now under consideration meets the same standards and could have been admitted as a spontaneous utterance.

Defendant contends that the court erred in failing to instruct the jury that they could return a verdict of guilty of involuntary manslaughter. In a related assignment of error, he contends that the judge erred when he instructed the jury as follows:

“Now, if the State satisfies you from the evidence beyond a reasonable doubt that the defendant Brodgen intentionally shot the decedent Thorpe with a .25 caliber pistol, which was a deadly weapon inflicting a wound upon the person of Thorpe, which would proximately caused the death of Thorpe, then you may, but need not imply or infer, that the killing was unlawful and done with malice.”

Defendant contends that the instruction allows an impermissible use of a presumption and violates the principles of Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed. 2d 508 (1975). He concedes, nevertheless, that the instruction is consistent with the decisions of the Supreme Court of North Carolina in State v. Hankerson, 288 N.C. 632, 220 S.E. 2d 575 (1975), rev’d on other grounds, 432 U.S. 233, 97 S.Ct. 2339, 53 L.Ed. 2d 306 (1977) and State v. Williams, 288 N.C. 680, 220 S.E. 2d 558 (1975). In Hankerson, the Supreme Court said:

“Mullaney, then, as we have interpreted it, requires our trial judges in homicide cases to follow these principles in their jury instructions: the State must bear the burden throughout the trial of proving each element of the crime charged including, where applicable, malice and unlawfulness beyond a reasonable doubt. The decision permits the state to rely on mandatory presumptions of malice and unlawfulness upon proof beyond a reasonable doubt that the defendant intentionally inflicted a wound upon the deceased with a deadly weapon which proximately resulted in death. If, after the mandatory presumptions are raised, there is no evidence of a heat of passion killing on sudden provocation and no evidence that the killing was in self-defense, Mullaney permits and our law requires the jury to be instructed that defendant must be convicted of murder in the second degree.” 288 N.C. at 651, 220 S.E. 2d at 589.

The instructions given in the case now under consideration were in complete accord with the foregoing, both as to the possible verdicts and presumptions arising from the evidence.

We have considered defendant’s remaining assignments of error. We find no error that requires a new trial.

No error.

Judges Hedrick and Erwin concur.