State v. Clark

419 S.E.2d 188, 107 N.C. App. 184, 1992 N.C. App. LEXIS 663
CourtCourt of Appeals of North Carolina
DecidedAugust 4, 1992
DocketNo. 9225SC91
StatusPublished
Cited by2 cases

This text of 419 S.E.2d 188 (State v. Clark) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Clark, 419 S.E.2d 188, 107 N.C. App. 184, 1992 N.C. App. LEXIS 663 (N.C. Ct. App. 1992).

Opinion

WYNN, Judge.

Defendant was charged by indictments with first degree murder, assault with a deadly weapon with intent to kill inflicting serious injury, first degree burglary, and assault with a deadly weapon with intent to kill.

The State’s evidence tended to show that defendant shot and killed his estranged wife’s boyfriend with a .357 magnum pistol, shot and wounded his wife’s brother with the same pistol, forced his way into an apartment where his wife had taken refuge, and pulled the trigger of the pistol at one of the residents of the apartment, but the gun did not discharge.

Defendant asserted that the shootings were in self-defense because the deceased had picked up a baseball bat and threatened to knock defendant’s “brains out” if defendant took the wife and her child with him.

Defendant was found guilty of voluntary manslaughter, assault with a deadly weapon with intent to kill, assault with a deadly weapon with intent to kill inflicting serious injury, and misdemeanor breaking and entering. He was sentenced to the maximum prison terms for each offense.

Defendant contends the trial court erred by excluding the testimony of a clinical psychologist that defendant suffered from three diagnosable psychological conditions at the time of the offenses: (1) child abuse syndrome; (2) acute depersonalization reaction; and (3) impaired mental faculties caused by a blow to the jaw with a baseball bat. Defendant argues that the testimony was relevant and admissible on the issue of self-defense as to the reasonableness of defendant’s belief that it was necessary to use deadly force in order to save himself from death or great bodily harm.

A trial court may exclude expert testimony if it determines that the probative value of the evidence, even if relevant, is substantially outweighed by the danger of unfair prejudice, confusion of [188]*188the issues, or misleading the jury. State v. Knox, 78 N.C. App. 493, 337 S.E.2d 154 (1985). The determination of the admissibility of expert testimony is within the discretion of the trial judge, who has wide latitude. State v. Bullard, 312 N.C. 129, 322 S.E.2d 370 (1984). During voir dire on the admissibility of his testimony, the psychologist conceded that he could not render a specific diagnosis regarding the impact of the blow to the head with a baseball bat and that only the depersonalization disorder constituted a formally recognized diagnosis. The psychologist testified that defendant’s symptoms were the same as what an ordinary person experiences. The trial court thus properly could find the probative value of the evidence was weak and that it would not be of significant assistance to the jury. We conclude the trial court did not abuse its discretion in excluding this evidence.

Defendant further contends the trial court erred by admitting testimony of the deceased’s brother regarding statements made to him by the deceased. He argues that the court should not have admitted these hearsay statements because the court failed to make the full inquiry required by the catchall exceptions of Rules 803(24) and 804(b)(5) of the Rules of Evidence. The court, however, did not admit the testimony under the catchall exceptions, but under Rule 803(3) as a statement of the declarant’s then existing state of mind as showing the mental condition of the decedent as one of passivity, as well as an intent not to meet the defendant. Such testimony is admissible under the state-of-mind exception to the hearsay rule to show the relationship between the victim and the defendant. See State v. Lynch, 327 N.C. 210, 393 S.E.2d 811 (1990). This assignment of error is overruled.

Defendant next contends that the trial court erred by instructing the jury on the principle of self-defense, specifically that defendant would be guilty of voluntary manslaughter if he was the aggressor. He argues that this instruction was error because there is no evidence in the record that defendant was the aggressor. Defendant, however, did not object to this instruction and therefore must show plain error. State v. Odom, 307 N.C. 655, 300 S.E.2d 375 (1983). In such instances, the burden is on the defendant to show that plain error exists. He has not carried this burden.

Defendant also assigns error to the trial court’s refusal of his request for an instruction on the offense of assault by pointing a gun as a lesser offense of the charge of assault with a deadly [189]*189weapon with intent to kill. He argues submission of this instruction was required by uncontroverted evidence that defendant pointed the pistol at the resident of the apartment where his wife took refuge.

Submission of a lesser included offense is required when and only when there is evidence from which the jury could find the defendant committed the lesser offense. State v. Hall, 305 N.C. 77, 286 S.E.2d 552 (1982), overruled on other grounds by State v. Diaz, 317 N.C. 545, 346 S.E.2d 488 (1986). The court is not required to submit the lesser offense if the State’s evidence is positive as to each element of the crime charged and there is no conflicting evidence as to any element. Id. at 84, 286 S.E.2d at 556. The court also is not required to submit the lesser offense when there is merely a possibility the jury might accept the State’s uncontradicted evidence in part and reject it in part. State v. Hicks, 241 N.C. 156, 84 S.E.2d 545 (1954). Here, the uncontroverted evidence shows that defendant did more than merely point the gun —he brought the pistol within six inches of the resident’s stomach and pulled the trigger in the midst of a struggle with the resident, but the gun did not discharge. This occurred after the gun had discharged during the course of the same struggle. The court therefore properly declined to submit the requested instruction.

Finally, the defendant assigns error to his sentencing. As the sole factor in aggravation of each conviction, the trial court found that defendant had a record of prior convictions punishable by more than sixty days confinement. The trial court found the same six statutory factors in mitigation of each conviction. It determined that the aggravating factor outweighed the mitigating factors.

Defendant contends the trial court abused its discretion by finding the aggravating factor outweighed the six mitigating factors. We disagree. The weighing of aggravating and mitigating factors is not a simple matter of mathematics, and the balance struck by the sentencing judge will not be disturbed on appeal if there is any support in the record for the judge’s determination. State v. Davis, 58 N.C. App. 330, 293 S.E.2d 658, disc. rev. denied, 306 N.C. 745, 295 S.E.2d 482 (1982). We do not find an abuse of discretion.

Defendant next contends the court erred by failing to tailor its findings of aggravating and mitigating factors to each offense. We agree. The relevant statute, N.C. Gen. Stat. § 15A-1340.4(b), states:

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Cite This Page — Counsel Stack

Bluebook (online)
419 S.E.2d 188, 107 N.C. App. 184, 1992 N.C. App. LEXIS 663, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-clark-ncctapp-1992.