State v. Herbin

259 S.E.2d 263, 298 N.C. 441, 1979 N.C. LEXIS 1380
CourtSupreme Court of North Carolina
DecidedNovember 6, 1979
Docket35
StatusPublished
Cited by41 cases

This text of 259 S.E.2d 263 (State v. Herbin) is published on Counsel Stack Legal Research, covering Supreme Court 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. Herbin, 259 S.E.2d 263, 298 N.C. 441, 1979 N.C. LEXIS 1380 (N.C. 1979).

Opinions

COPELAND, Justice.

Defendant assigns as error the trial judge’s denial of his motions for directed verdict at the close of the State’s evidence and at the close of all the evidence. Defendant’s brief sets out no reason or argument and cites no authority in support of this assignment of error; therefore, it is deemed abandoned. Rule 28(a), (b)(3), Rules of Appellate Procedure; State v. Anderson, 281 N.C. 261, 188 S.E. 2d 336 (1972).

In any event, due to the seriousness of the charge and conviction in this case, we have examined the record carefully and find that there is ample evidence, when considered in the light most favorable to the State, to support a conviction of second degree murder. The State’s evidence tends to show that the defendant approached the deceased and shot him at close range after the defendant had fired a shot through the window of the Center and [445]*445deceased had yelled to him that he could get hurt playing around like that. There is evidence in the record that the deceased never raised the bottle he was holding and never approached the defendant as if he were going to harm him. Therefore, defendant’s motions for directed verdict were properly denied.

Defendant raises two contentions concerning the following portion of the trial judge’s charge to the jury on the definition of self-defense: “and third, that the defendant was not the aggressor if the defendant voluntarily and without provocation entered the fight. He was the aggressor.”

First, defendant contends that in making the above statement the trial judge was impermissibly placing the burden of proving self-defense on the defendant. However, it is clear that at that point in his charge the trial judge was defining self-defense. Immediately after defining self-defense, the trial judge then charged with respect to the burden of proof on the self-defense issue as follows: “Now, members of the jury, the burden is on the State to prove beyond a reasonable doubt that the defendant did not act in self-defense.”

In State v. Potter, 295 N.C. 126, 244 S.E. 2d 397 (1978), we held that it was error to tell the jury that it must find beyond a reasonable doubt that the defendant was not the aggressor. The burden is upon the State to prove beyond a reasonable doubt that the defendant did not act in self-defense when there is some evidence in the case that he did. State v. Hankerson, 288 N.C. 632, 220 S.E. 2d 575 (1975), rev’d on other grounds, 432 U.S. 233 (1977).

However, we also held in Potter that,
“It would have been proper ... to tell the jury that the killing . . . would be excused altogether as being in self-defense if:
(1) it appeared to defendant and he believed it to be necessary to shoot [the deceased] in order to save himself from death or great bodily harm . . . ; and
(2) defendant’s belief was reasonable in that the circumstances as they appeared to him at the time were suffi[446]*446cient to create such a belief in the mind of a person of ordinary firmness . . . ; and
(3) defendant was not the aggressor in bringing on the affray, defining what is meant by this term . . . ; and
(4) defendant did not use excessive force, defining what is meant by this term. . . State v. Potter, supra at 142-43, 244 S.E. 2d at 408. (Citations omitted.) (Emphasis added.)

When charging on self-defense, a trial judge must correctly define the term self-defense, State v. Potter, supra; State v. Wynn, 278 N.C. 513, 180 S.E. 2d 135 (1971), and must place the burden on the State to disprove self-defense beyond a reasonable doubt, State v. Hankerson, supra. In the instant case, the trial judge performed both tasks in compliance with our decision in Potter and we find no merit in this assignment or error.

Second, the defendant contends that the trial judge expressed an opinion in stating that, “He was the aggressor.” In essence the defendant is alleging error in the court reporter’s punctuation of the judge’s charge. Such an allegation, standing alone, is not sufficient to warrant a new trial. State v. Jarrette, 284 N.C. 625, 202 S.E. 2d 721 (1974), death sentence vacated, 428 U.S. 903 (1976).

The State has moved to amend the record as follows: “and third, that the defendant was not the aggressor. If the defendant voluntarily and without provocation entered the fight, he was the aggressor.”

We held in Potter that when the jury is instructed that the third requirement of self-defense is that the defendant not be the aggressor, the jury should have the term “aggressor” defined for them. In this connection, the pattern jury instructions provide the following definition: “If he voluntarily and without provocation entered the fight, he was the aggressor.” NC.P.L —Crim. 206.10, Page 7. In the instant case, the trial judge used those exact words in his charge to the jury. Obviously, the punctuation of the court reporter was in error. Therefore, the State’s motion to amend the record is allowed so that the above sentence is punctuated the same as the pattern jury instructions.

A trial judge cannot express an opinion on the evidence in the presence of the jury at any stage of the trial. G.S. 15A-1222; [447]*447G.S. 15A-1232. Those two provisions repealed and replaced G.S. 1-180 effective 1 July 1978. The new provisions restate the substance of G.S. 1-180 and the law remains essentially unchanged. State v. Hewett, 295 N.C. 640, 247 S.E. 2d 886 (1978). At this point in the charge it is obvious that the trial judge expressed no opinion. He was defining the term “aggressor” for the jury as he should have done and committed no error in doing so.

Defendant assigns as error the following portion of the trial judge’s charge on self-defense:

“If the State has failed to satisfy you behind [sic] a reasonable doubt that the defendant did not reasonably believe under the circumstances as they existed at the time of the killing that he was about to suffer death or serious bodily harm or bodily injury at the hands of Johnny Conwell, or that the defendant used more force than reasonably appeared to him to be necessary, and third, that the defendant was the aggressor then the killing of Johnny Conwell by the defendant would be justified on the grounds of self-defense then it would be your duty to return a verdict of not guilty.” (Emphasis added.)

Defendant contends that use of the phrase “as they existed” rather than “as they appeared” denied him the full benefit of a jury instruction that he had the right to defend himself under circumstances of apparent necessity as well as real or actual necessity.

It is true, as defendant contends, that in the exercise of his lawful right of self-defense, an accused may use such force as is necessary or apparently necessary to protect himself from death or serious bodily harm. State v. Davis, 289 N.C. 500, 223 S.E. 2d 296, death sentence vacated, 429 U.S. 809 (1976); State v. Fowler, 250 N.C. 595, 108 S.E. 2d 892 (1959).

Free access — add to your briefcase to read the full text and ask questions with AI

Related

State v. Allison
Supreme Court of North Carolina, 2025
State v. Harkey
Court of Appeals of North Carolina, 2025
State v. Madonna
806 S.E.2d 356 (Court of Appeals of North Carolina, 2017)
State v. Sellers
776 S.E.2d 898 (Court of Appeals of North Carolina, 2015)
State v. Herrin
711 S.E.2d 802 (Court of Appeals of North Carolina, 2011)
State v. Gilreath
454 S.E.2d 871 (Court of Appeals of North Carolina, 1995)
State v. Scott
413 S.E.2d 787 (Supreme Court of North Carolina, 1992)
State v. Wooten
408 S.E.2d 202 (Court of Appeals of North Carolina, 1991)
State v. Moxley
338 S.E.2d 122 (Court of Appeals of North Carolina, 1985)
State v. Hamilton
335 S.E.2d 506 (Court of Appeals of North Carolina, 1985)
State v. Williams
328 S.E.2d 799 (Court of Appeals of North Carolina, 1985)
State v. Gardner
319 S.E.2d 591 (Supreme Court of North Carolina, 1984)
State v. Jean
311 S.E.2d 266 (Supreme Court of North Carolina, 1984)
State v. Ward
300 S.E.2d 855 (Court of Appeals of North Carolina, 1983)
State v. Sparks
296 S.E.2d 451 (Supreme Court of North Carolina, 1982)
State v. Shane
285 S.E.2d 813 (Supreme Court of North Carolina, 1982)
State v. Galloway
284 S.E.2d 509 (Supreme Court of North Carolina, 1981)
State v. Oxendine
278 S.E.2d 200 (Supreme Court of North Carolina, 1981)

Cite This Page — Counsel Stack

Bluebook (online)
259 S.E.2d 263, 298 N.C. 441, 1979 N.C. LEXIS 1380, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-herbin-nc-1979.