State v. Smith

HEDRICK, Judge.

Defendant’s Assignment of Error Nos. 1-5 relate to the exclusion of testimony. Our examination of the exceptions on which these assignments of error are based reveals several instances in which defendant failed to offer any proof of the evidence excluded. In these instances, of course, we are unable to determine whether exclusion of the evidence in question was error. In other instances we note defendant’s exceptions are to rulings made prior to a voir dire, following which the evidence in question was admitted without objection. Despite such difficulties in identifying the precise judicial action now complained of, we have examined each exception upon which each assignment of error is based and find each to be without merit.

In Assignment of Error No. 6 the defendant challenges the exclusion of evidence “relative to the character for violence of the deceased, Rudolph Lanier.” It is true that in this State “[ejvidence of the deceased’s violent character ... is admissible in a homicide case where self-defense is in issue and the State’s evidence is wholly circumstantial or the nature of the transaction is in doubt in order to shed light on the question of which party was the first aggressor.” State v. Barbour, 295 N.C. 66, 73, 243 S.E. 2d 380, 384 (1978). In the instant case, however, the evidence was uncon-troverted as to which party was the aggressor, and this evidence was derived entirely from defendant’s own statement. The rule set forth in Barbour has no application in such circumstances, and the assignment of error is thus overruled.

By Assignment of Error Nos. 7 and 15 defendant raises the question of the sufficiency of the evidence to support his conviction of voluntary manslaughter. He contends evidence offered’by the State established as a matter of law that he acted in self-defense and that the victim was the aggressor. This argument, when considered in light of defendant’s own statement about the killing, borders on the frivolous. The assignments of error are meritless.

In Assignment of Error Nos. 9-12 and 14 defendant assigns error to various aspects of the court’s charge to the jury. We have carefully reviewed each exception upon which these assignments of error are based and feel that little would be gained by discussing in detail the arguments presented. We conclude that the challenged instructions are free from prejudicial error.

In Assignment of Error No. 13, defendant argues that the court erred in refusing to correct an instruction in which the court referred to defendant’s statement as a “confession.” While the instruction complained of is inartfully stated, we are unwilling to say that, considered in context of the entire charge, it is error. Assuming arguendo that the instruction is erroneous, we find that under these circumstances, where the evidence is overwhelming that the defendant intentionally and without provocation shot the deceased, any error was harmless beyond a reasonable doubt. “In addition to showing that an instruction was erroneously given, the defendant must show that the instructions as given materially prejudiced him.” State v. Tillman, 36 N.C. App. 141, 143, 242 S.E. 2d 898, 899 (1978).

Finally, defendant assigns error to the court’s imposition of the presumptive six year term, contending first that the judge was improperly influenced by “personal feelings” in imposing sentence. In this regard, he directs our attention to the following comments made by the trial judge at the sentencing hearing:

At this particular time, that time has passed and the body is cold, and it is not as bad as it appeared at the time; but this man executed that man. I don’t care how mean he was, he executed him. He shot him once in the jaw, and then he put that pistol to his head and pulled the trigger into his brain. If he had shot once, that would have been one thing; but an execution — that is exactly what it was. You know it — I know it — and these officers know it. We may not want to admit it.

You are dealing mighty close to murder one, for which they take your life; and the Jury was very kind to the Defendant in finding him guilty of voluntary manslaughter rather than second-degree; because, from all the evidence presented, he was certainly guilty of second-degree murder.

While the quoted statements could be characterized as inappropriate, we hardly think the judge can be said, under the circumstances, to have acted out of his “personal feelings” in imposing the presumptive sentence.

Defendant also assigns as error the court’s failure, in sentencing defendant, to find three of the mitigating factors set out in N.C. Gen. Stat. Sec. 15A-1340.4(a)(2). We hold that, based on the clear language of N.C. Gen. Stat. Sec. 15A-1340.4(b), the judge was not required to “make any findings regarding aggravating and mitigating factors . . . [since] he impose[d] the presumptive term.”

Defendant has brought forward and argued other assignments of error that are meritless beyond peradventure. We hold defendant had a fair trial, free from prejudicial error.

No error.

Judges Braswell and Eagles concur.