State v. Collins

PHILLIPS, Judge.

Though defendant’s appeal is subject to dismissal because his brief did not link the various points argued to his assignments of error, as required by Rule 28(b)(3) of Rules of Appellate Procedure, making it necessary, in each instance, for us to check the entire collection of assignments, of which there is a great number, because of the gravity of the case we choose to dispose of it on the merits. In doing so, however, it is not necessary to discuss all of defendant’s many contentions of error, none of which have merit.

Defendant’s hopes for an acquittal were largely based upon the defense of accident or misadventure — not because the evidence so clearly or strongly supported that defense, however, but because the nature and extent of the evidence marshalled against him left him with little else to rely upon. In instructing the jury concerning the death of Calvin Freeman and defendant’s indictment for second-degree murder, the court also charged on the subordinate offenses of voluntary manslaughter and involuntary manslaughter. Immediately after instructing the jury on second-degree murder, voluntary manslaughter, and involuntary manslaughter, in that order, the court charged on accident and misadventure. Defendant contends that the sequence and content of the instructions led the jury to believe that his defense of accident or misadventure applied only to the offense of involuntary manslaughter. The instruction was as follows:

Now, members of the jury, the defendant contends and the State denies that the defendant in this instance acted in such a way that the deceased, Calvin Freeman, died by accident or by misadventure, and if Calvin Freeman died by accident or misadventure, that is, without wrongful purpose or criminal negligence on the part of the defendant, Nathaniel Collins, the defendant Collins would not be guilty.

The burden of proving accident is not on the defendant. His assertion of accident is merely a denial that he has committed any crime. The burden remains on the State to prove the defendant’s guilt beyond a reasonable doubt.

We think it most unlikely that the jury was confused by this instruction. It contains no implication that the defense of accident or misadventure was limited in application; instead, it states quite plainly that the defense denied that defendant had committed “any crime” at all. The instruction as a whole can only mean, we think, that if Calvin Freeman died without any wrongful purpose or criminal negligence on defendant’s part, the defendant was not guilty of any crime in connection therewith. No doubt the jury would have so understood it, even if the instruction had stood alone; that they had just been told earlier in the charge that each of the crimes that defendant was being tried for involved wrongful purpose or criminal negligence could not have caused the jury to believe otherwise. In cases very similar to this one the instruction has been approved as both legally sufficient and non-confusing. State v. Walker, 31 N.C. App. 199, 228 S.E. 2d 772 (1976); State v. McLamb, 20 N.C. App. 164, 200 S.E. 2d 838 (1973).

Defendant also contends that he was erroneously deprived of the benefit of two other defenses that were available to him — that defendant killed Freeman while defending his wife from attack, and that the killing occurred in the “heat of passion” upon adequate provocation — by the trial judge either failing to charge or by charging inadequately or incorrectly. Though the defenses were somewhat contradictory to each other, as well as to the defense of accident and misadventure, if they were raised by the evidence, the defendant was entitled to have them charged on if he so desired. Consistency, though usually an advantageous course in litigation, is generally not required of those being tried for crime. 22 C.J.S. Criminal Law § 54.

But the evidence did not give rise to the defending another defense, and the trial judge did not err in refusing to charge on it. State v. Shepherd, 220 N.C. 377, 17 S.E. 2d 469 (1941). Although defendant testified that he busted into the motel room because his wife sounded frightened, the rest of his testimony on the matter was that: After he got in the room, his wife and Freeman ran into the bathroom, a gun was pointed at him through a crack in the door, someone said, “Shoot the S.O.B.,” and he began struggling for the gun; and that he “couldn’t say” whether he thought his wife was in danger after she and Freeman ran into the bathroom. Had the defendant aided his wife in any way, even after the shooting, his contention at trial and now that he was rescuing her from danger would be more colorable; but he left the premises with her lying on the floor wounded and bleeding.

The judge did instruct on “heat of passion,” however, defendant’s objection being that discovered adultery was not specifically referred to therein as an adequate provocation. In giving this instruction, the judge said: “Adequate provocation may consist of anything which has a natural tendency to produce such passion in a person of average mind and disposition. . . .” In our view, this instruction encompassed adultery, the only possible heat of passion basis raised by the evidence, and, no doubt, was so understood by the jury. Indeed, it may not have been necessary to charge on heat of passion at all, since there was scarcely any evidence as to defendant’s heat of passion after seeing indications of adultery upon entering the motel room, the only time a legally sanctioned heat of passion could have developed. His testimony concerning the developments that occurred after he entered the room was about struggling for the gun and trying to avoid being shot; being overcome by anger was not mentioned. In all events, the court’s failure to charge more pointedly on heat of passion did defendant no legal detriment.

In a warrantless search of defendant’s house, shortly after the crime when there was good reason to think that he was concealed therein with a gun, the police found a pair of bloodstained blue jeans lying on the bed, which were exhibited during the trial. Though defendant’s motion to suppress, denied by the court, raises some interesting search and seizure questions, they are immaterial to the appeal and need not be discussed, since the State was unable to tie the jeans to the crime, and defendant was admittedly in the bloodstained room in close proximity to the bleeding victims. If defendant’s presence at the scene of the homicide had been disputed, the exhibit certainly could have prejudicially affected the verdict and we would determine whether the search and seizure complied with Fourth Amendment requirements; but under the circumstances that existed the exhibit could not have affected the verdict, prejudicially or otherwise, and determining whether the search and seizure was valid would avail nothing.

If defendant’s explanation as to how he happened to stop by the Airport Hilton and find his wife and Freeman in Room 310 seemed at all plausible to the jury, which is unlikely, the State’s rebuttal evidence probably made it seem less so. Deputy Sheriff Willis, who participated in the initial investigation of the crime and saw Mrs. Collins’ car in the lot shortly after the victims were discovered, testified that: It was more than 400 feet from the road to the edge of the parking lot; the parking lot was lower than the road and surrounded by a chain link fence; at the time involved the view from the road of the part of the lot where her car was parked was obstructed at different points by either a service station, a wooded area, a steak house, or a small church building. He also testified that a few months after the shooting all the trees in the wooded area between the service station and the steak house were cut down, but the stumps were still there, and except for that change the entire area looked substantially as it did almost exactly a year earlier when Freeman was killed. Over defendant’s objection, several photographs of the motel parking lot, taken the day before from different points in the road, were received into evidence to illustrate the witness’s testimony. The photographs showed the service station, the stumps in the area where the trees had been, the steak house, the church, and different parts of the chain link fence and parking lot. The principal basis for defendant’s objection to admitting the photographs was the changes that occurred in the area between the time when defendant says he saw the car and a year later when the pictures were taken. The witness testified that except for the woods that had covered the space between the service station and the steak house the scene depicted by the photographs fairly illustrated the way the area looked the day the crime was committed. This was basis enough, in our opinion, for the photographs being received as illustrative evidence. Illustrative evidence, being just that, does not have to be exact. 1 Brandis N.C. Evidence § 34 (2d rev. ed. 1982). The changes, not being significant enough to deprive the pictures of their illustrative value, affected the evidence’s weight, rather than its admissibility. State v. Shepherd, 220 N.C. 377, 17 S.E. 2d 469 (1941). Furthermore, the changes apparently increased, rather than decreased, the visibility of the parking lot from the road, and thus could not have prejudiced the defendant, who testified that his wife’s parked car was visible and recognizable as he drove along the road.

In our opinion, the defendant received a fair trial and was skillfully represented by able counsel. But cases are governed by their circumstances, and the mold of this case was irrevocably cast when defendant voluntarily placed himself in a situation that all but established his guilt as charged; and the mold, if anything, was hardened by the rather unlikely explanation that he gave of his presence and participation.

No error.

Judges ARNOLD and Becton concur.