State v. Hart

HILL, Judge.

Defendant first assigns as error the trial court’s refusal to allow his motion to dismiss. Defendant asserts that all of the State’s evidence was exculpatory, and for that reason the motion to dismiss should have been allowed. See State v. Johnson, 261 N.C. 727, 136 S.E. 2d 84 (1964). We agree with defendant’s analysis of Johnson, but find the facts in this case distinguishable.

Officer Villalobos testified that defendant exclaimed to him that he had shot and killed his wife; that he removed a .32 caliber pistol from defendant’s hand; that the bed in the room where the victim was killed was a pool of blood; that he saw the victim lying with her head away from the door; that he did not observe any scratches or stab wounds on defendant; and that at no time did he see a knife in the bedroom where Bessie Hart died. Officer Davis testified that defendant told him the deceased lunged at him and that the defendant jumped back, pulled his pistol, and shot his wife.

Lieutenant Hoell interviewed defendant the day of the shooting. Hoell testified that defendant told him he went outside the morning of the shooting to get his pistol. Defendant then entered the room where his wife was sleeping to kiss her goodbye. Defendant told him he saw the knife in his wife’s hand, but that defendant never did say Bessie Hart came at him with the knife.

Dr. Emerson Scarborough, the pathologist, testifying for the State, described Bessie Hart’s wounds. Dr. Scarborough conjectured that the wound in Bessie Hart’s hand and the superficial wound in her head were caused by the same bullet. The pathologist stated that it was possible that the wounded hand was in contact with the head, that the hand was close to the muzzle of the gun; and that the muzzle of the gun was very close to the hand if not actually touching it. The doctor further opined that the gun was “several inches” away from Bessie Hart when the wound near her eat and the fatal wound were inflicted.

Taken as a whole, the State’s evidence was inculpatory. Defendant’s first assignment of error is overruled.

Defendant asserts by his second assignment of error that the trial judge erred when, in his charge to the jury, he mentioned that defendant had filed pretrial notice that he might rely on the insanity defense. The judge told the jury that the defense had not been raised at trial and instructed them to disregard insanity as a defense in their deliberations. This assignment of error is also without merit and overruled.

G.S. 15A-959 requires pretrial notice by a defendant if he intends to raise the defense of insanity. Defendant filed such notice and, pursuant to G.S. 15A-1213, the judge informed prospective jurors of the possibility that defendant might rely on the affirmative defense of insanity. It was proper at the close of all the evidence for the trial judge to inform the jurors that the insanity defense indeed had not been presented in order to eliminate any idea the jury might have had that they were still to consider the defense.

Defendant relied on self-defense at trial. Therefore, the burden of disproving self-defense beyond a reasonable doubt was placed upon the State. Mullaney v. Wilbur, 421 U.S. 684, 44 L.Ed. 2d 508, 95 S.Ct. 1881 (1975); State v. McCoy, 34 N.C. App. 567, 239 S.E. 2d 300 (1977). The judge, in his instruction, stated that,

. . . where the question of self-defense arises in the case, the burden is upon the state to satisfy the jury from the evidence in the case that the killing was not justified on the grounds of self-defense.

We agree with defendant that the burden on the State is to prove beyond a reasonable doubt that the killing was not justified on the grounds of self-defense. Considering the charge as a whole, we find that it fairly and correctly presents the law and that there is no ground for reversal. See State v. Tomblin, 276 N.C. 273, 171 S.E. 2d 901 (1970). At the beginning of his charge, the judge told the jury that the State’s burden was to prove defendant’s guilt beyond a reasonable doubt. Furthermore, the jury was told that the defendant had no burden of proving self-defense. Finally, the judge instructed the jury that the State’s burden of proof in seeking a conviction for first-degree murder, second-degree murder, or manslaughter was to satisfy them beyond a reasonable doubt that the defendant committed the proscribed acts, with the requisite mens rea, and did not do so in defense of his own person. We find no prejudicial error in the judge’s charge.

Additionally, we find that the judge did not err in his explanation to the jury that the plea of self-defense is not available to an aggressor. The law was explained in light of the evidence in the particular case and not upon a set of hypothetical facts. G.S. 1-180, G.S. 15A-1232.

There was no error in the judge’s failure to define “altercation”, as contended by the appellant. It is a word of common usage, and no request for a special instruction was made. See State v. Jennings, 276 N.C. 157, 171 S.E. 2d 447 (1970).

For the reasons stated above, we find in the judgment below

No error.

Chief Judge MORRIS and Judge PARKER concur.