State v. King

272 S.E.2d 26, 49 N.C. App. 499, 1980 N.C. App. LEXIS 3423
CourtCourt of Appeals of North Carolina
DecidedNovember 18, 1980
DocketNo. 8019SC514
StatusPublished
Cited by3 cases

This text of 272 S.E.2d 26 (State v. King) 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. King, 272 S.E.2d 26, 49 N.C. App. 499, 1980 N.C. App. LEXIS 3423 (N.C. Ct. App. 1980).

Opinion

MARTIN (Harry C.), Judge.

Defendant’s first assignment of error is that the trial court erred in admitting into evidence a statement made by King on the way to the station house. He argues that the court committed prejudicial error by failing to find specific facts that support the conclusions of law which allowed King’s confession into evidence.

The record reveals that a voir dire hearing was conducted, upon defendant’s objection to testimony, to determine the admissibility of the statement. Officer Rollins, who had transported King to the station, testified as to the circumstances surrounding King’s statement. Defendant offered no evidence at the voir dire. The court found the facts “to be as all the. evidence tends to show.” The court concluded as a matter of law that the statement was not the result of any custodial interrogation; rather, defendant made the statement freely and volun[502]*502tarily without duress, coercion, or inducement; that the officer did not question defendant nor in any way induce his confession; and that the Miranda rule was not applicable to the statement in question.

It is correct that the general rule is that a trial court judge should make findings of fact to show the basis of his rulings concerning the admissibility of a confession. State v. Silver, 286 N.C. 709, 213 S.E. 2d 247 (1975); State v. Moore, 275 N.C. 141, 166 S.E. 2d 53 (1969). In State v. Lynch, 279 N.C. 1, 15, 181 S.E. 2d 561, 570 (1971), the Supreme Court noted that it is “always the better practice for the court to find the facts upon which it concludes any confession is admissible.” But where “no conflicting testimony is offered on voir dire, it is not error for the judge to admit the confession without making specific findings of fact.” State v. Simmons, 286 N.C. 681, 692, 213 S.E. 2d 280, 288 (1975), death pen. vac., 428 U.S. 903, 49 L. Ed. 2d 1208 (1976). Accord, State v. Lynch, supra; State v. Bishop, 272 N.C. 283, 158 S.E. 2d 511 (1968); State v. Keith, 266 N.C. 263, 145 S.E. 2d 841 (1966). Although defendant King later testified that he did not remember what he said going to the police station, that he blacked out, there is no evidence that the confession was involuntary or in any way unconstitutional. Despite the fact that the trial judge’s findings are non-specific, there is ample evidence to support his conclusions and ruling which admitted the statement into evidence. This assignment of error is overruled.

Defendant’s second assignment of error deals with Judge Albright’s charge to the jury. Defendant objects to the portion of the instruction regarding self-defense:

Now, Members of the Jury, the Court further charges you that if the defendant reasonably believed that a murderous assault was being made upon him in his own home, he was not required to retreat, but to stand his ground and use whatever force he reasonably believed to be necessary to save himself from death or great bodily harm. It is for you, the jury, to determine the reasonableness of the defendant’s belief from the circumstances as they appeared to him at the time.

Defendant argues that it was error to instruct the jury that defendant could use reasonable force to defend himself if he [503]*503reasonably believed that a “murderous assault” was being made upon him because the defense applies to felonious assaults as well as those in which it appears that the assailant had the intent to kill. Defendant relies on the decision in State v. Mosley, 213 N.C. 304, 195 S.E. 830 (1938), in which the trial judge charged the jury that “[a] man must in good faith believe he is going to be killed,” in order to have the right to use such force as he believes necessary to protect himself. The Supreme Court held it was erroneous to have omitted any reference to “the apprehension of great bodily harm,” and ordered a new trial. In the disputed charge in the present case, however, the judge referred to the applicability of the defense with regard to “great bodily harm” in the same sentence, as well as in other portions of the charge. It is a well-familiar rule that “[t]he charge of the court will be construed contextually and segregated portions will not be held prejudicial error when the charge as a whole is free from objection.” 4 Strong’s N.C. Index 3d Criminal Law § 168 (1976). Accord, State v. Bailey, 280 N.C. 264, 185 S.E. 2d 683, cert. denied, 409 U.S. 948, 34 L. Ed. 2d 218 (1972); State v. McWilliams, 277 N.C. 680, 178 S.E. 2d 476 (1971). The trial judge clearly set out and explained the principle that defendant must have reasonably believed that he needed to save himself from death or great bodily harm to establish self-defense. Defendant’s testimony regarding the circumstances at the time of the shooting were summarized. The instruction on self-defense, taken in context and as a whole, was not erroneous.

Defendant contends that Comer became a trespasser when he was told to leave and refused to do so, and that defense of habitation became available to defendant at that time, and implies that the court erred in failing to so instruct the jury. Defendant relies on State v. Kelly, 24 N.C. App. 670, 211 S.E. 2d 854 (1975), in which Judge Clark held: “One who remains in a home after being directed to leave is guilty of a wrongful entry and becomes a trespasser, even though the original entry was peaceful and authorized, and a householder may use such force as reasonably necessary to eject him.” Id. at 672, 211 S.E. 2d at 856. The defendant in Kelly was granted a new trial because of the trial court’s failure to instruct on defense of habitation, despite a proper charge on self-defense, where the evidence tended to show that defendant had requested deceased to leave several times before shooting him.

[504]*504The Kelly decision has been effectively overruled, however. In State v. McCombs, 297 N.C. 151, 253 S.E. 2d 906 (1979), the Supreme Court limited right to an instruction on the defense of habitation to those rare occurrences in which a defendant acts to prevent a forcible entry into his home. Justice Branch (now Chief Justice) reviewed the applicable rules of law regarding this defense to distinguish between the defense of habitation and ordinary self-defense, which “has become somewhat blurred due to the varied factual situations in which these defenses arise.” Id. at 154, 253 S.E. 2d at 909. He concluded that defense of habitation is available only “to prevent a forcible entry into the habitation under such circumstances ... that the occupant reasonably apprehends death or great bodily harm to himself or other occupants at the hands of the assailant or believes that the assailant intends to commit a felony.” Id. at 156-57, 253 S.E. 2d at 910.

Once the assailant has gained entry, however, the usual rules of self-defense replace the rules governing defense of habitation, with the exception that there is no duty to retreat. ...
... [I]t is well settled that a person is entitled to defend his property by the use of reasonable force, subject to the qualification that, in the absence of a felonious use of force on the part of the aggressor, human life must not be endangered or great bodily harm inflicted.

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Related

State v. Clegg
542 S.E.2d 269 (Court of Appeals of North Carolina, 2001)
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293 S.E.2d 205 (Court of Appeals of North Carolina, 1982)

Cite This Page — Counsel Stack

Bluebook (online)
272 S.E.2d 26, 49 N.C. App. 499, 1980 N.C. App. LEXIS 3423, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-king-ncctapp-1980.