State v. Parker

247 S.E.2d 786, 38 N.C. App. 316, 1978 N.C. App. LEXIS 2174
CourtCourt of Appeals of North Carolina
DecidedOctober 17, 1978
DocketNo. 7827SC423
StatusPublished

This text of 247 S.E.2d 786 (State v. Parker) 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. Parker, 247 S.E.2d 786, 38 N.C. App. 316, 1978 N.C. App. LEXIS 2174 (N.C. Ct. App. 1978).

Opinion

ERWIN, Judge.

The defendant brings forward two assignments of error, contending, first, that the trial court committed prejudicial error in failing to grant his motion for judgment as of nonsuit at the close of all of the evidence after the motion was denied at the close of the State’s case. We do not find error.

A motion for judgment as of nonsuit challenges the sufficiency of the evidence to go to the jury. State v. Wiley, 242 N.C. 114, 86 S.E. 2d 913 (1955). The trial judge is required “to consider the evidence in its light most favorable to the State, take it as true, and give the State the benefit of every reasonable inference to be drawn therefrom.” State v. Goines, 273 N.C. 509, 513, 160 S.E. 2d 469, 472 (1968). All admitted evidence which is favorable to the [318]*318State, whether competent or incompetent, must be taken into account and so considered by the trial court when ruling upon the motion. State v. Crump, 277 N.C. 573, 178 S.E. 2d 366 (1971); State v. Clyburn, 273 N.C. 284, 159 S.E. 2d 868 (1968); State v. Cutler, 271 N.C. 379, 156 S.E. 2d 679 (1967).

The State’s evidence tended to show that Russell Sidney Cor-rell and Mack Teal fought with John Burnette and Frank Wyatt at the King’s Mountain Men’s Club on the morning of 7 May 1977; John Hastings, an employee of the club, was present but was not involved in the fight; Burnette and Wyatt left and went to the clubhouse of the Brothers Motorcycle Club; other club members including the defendant arrived, and they all went looking for Correll and Teal; defendant, Burnette, Wyatt, and Bryant were in one car, and Badia, Nadulek, and Webber were in another car; defendant was armed with a .38 Colt Cobra, Wyatt with a 9 mm pistol and a .44 caliber pistol; Bryant and other occupants of the cars were also armed.

This group of men went to a motorcycle shop and were told to go to see John Hastings to find out why Correll and Teal had beaten up Wyatt and the Burnettes. They all drove to Hastings’ house.

Robert Frank Wyatt testified:

“[M]r Badia was walking alongwide [sic] me. When we got within about ten or fifteen feet of the porch, Mr. Badia asked John Hastings if he knew where he could find Max Teal or Sid Correll. When Mr. Badia asked John that question, as soon as he got it out of his mouth, John said, ‘If you are looking for trouble, you’re fucking up,’ and pulled his gun. At this time Mr. Parker was standing on the porch. Mr. Burnette had one foot on the porch and one foot on the ground. I moved to the left toward the Fire Station when Mr. Hastings came out with his gun from under his shirt. Seemed like simultaneously, when Mr. Hastings pulled his gun out, there was shot, and Mr. Burnette staggered. Burnette was on the porch, had one foot on the porch. He was spinning around, just toward the street, his face was.
In response to your question as to how long did Mr. Burnette spin or remain upright, it wasn’t long, not long at [319]*319all. He spun around and when he fell, he was laying on his back. His back was laying on the porch. His feet were dangling off the porch. At the time Mr. Burnette was spinning, Mr. Parker and Mr. Hastings were wrestling. It looked like more or less wrestling. He had John around the neck. Mr. Parker had John Hastings around the neck with his arm, his left arm. At that time I couldn’t see Mr. Parker’s right hand, but when they broke free from each other, Mr. Parker shot him in the side, right about here. It was right under your arm, right here in the rib cage toward your back. This side here.
In response to your question as to how many times did Mr. Parker fire the gun after I saw him fire into the left side of John Hastings, my answer is no more. He didn’t shoot any more times. After Mr. Parker left, John Hastings was lying on the porch. I tried to pick Mr. Burnette up. He was bleeding very bad out of his face. He had been shot in the face. I pulled him up with one arm, and that guy called Cody, he started helping me, and I picked Mr. Burnette up. Mr. Burnette’s pistol was laying underneath him. I picked his pistol up, a Browning 9 mm.”

Dr. Wilton M. Reavis, Jr. (pathologist in the Office of the Chief Medical Examiner in Chapel Hill, who performed an autopsy on the body of John Arthur Hastings) testified:

“[E]xterior examination of the body of John Hastings revealed three gunshot wounds present on the body; two gunshot wounds were present on the back of the head; and a third gunshot wound was present on the back near the left armpit.
Based upon my examination of the body of John Hastings in the course of my autopsy examination, I formed an opinion satisfactory to myself as to the cause of death of John Hastings, and that opinion is that John Hastings died as a result of three gunshot wounds.”

Dr. Reavis further testified that one of the head wounds was a “contact wound. That is, the muzzle of the weapon was against [320]*320the skin of the decedent at the time the weapon was fired.” He also opined that the wounds were larger than .22 caliber and smaller than .45 caliber.

Defendant testified:

“[N]o, sir, John wasn’t on the porch when I got out of the car and started walking up there. He came out right as we were approaching about five feet away from his steps. I said, ‘John, do you know where Sid or Max could be found. Eddie and Frank had a little dispute with him, and they thought they were friends, and they want to straighten it out.’ He said, no, he hadn’t seen Sid or Max. About this time Frank Wyatt and Tony Badia was coming right up the drive, right up the pathway in front of the steps. Tony Badia was in front of Frank Wyatt, and he said, ‘Hello, John, you know where Sid or Max is,’ and John said, ‘No, boy, but I want to tell you something, you came here looking for trouble you done fucked up.’ He pulled gun out and he fired.
Standing up and showing the jury where his gun was, he had his shirt open like this right here, he had the gun stuck right in here. He flipped the shirt like that, grabbed the gun and came out and fired right toward Mr. Badia. Then someone hollered, ‘Grab the gun.’ I grabbed towards the gun like this and John shot my arm and it hit against the wall like this, and as I was falling, I got my pistol out of my pocket and fired. I don’t know how many times I fired, my arm was hanging halfway off like this. I was panicky. I was in a state of shock. I thought the man was going to shoot me in the head. I thought he had done shot Asphalt. I seen Asphalt fall. The next thing I remember is getting up off the porch and going and getting in the car.”

Defendant contends that the State’s evidence affirmatively established the defendant’s “self-defense”; that the evidence of defendant seems only to “elucidate and add dimension to the evidence already introduced by the State. The appellant’s (defendant’s) evidence was entirely consistent with that of the State.” The defendant relies on State v. Atwood, 290 N.C. 266, 225 S.E. 2d 543 (1976), and State v. Bruton, 264 N.C. 488, 142 S.E. 2d 169 (1965). Again we disagree with defendant and find no merit in this assignment of error.

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Related

State v. Atwood
225 S.E.2d 543 (Supreme Court of North Carolina, 1976)
State v. Crump
178 S.E.2d 366 (Supreme Court of North Carolina, 1971)
State v. Goines
160 S.E.2d 469 (Supreme Court of North Carolina, 1968)
State v. Johnson
136 S.E.2d 84 (Supreme Court of North Carolina, 1964)
State v. Mason
183 S.E.2d 661 (Supreme Court of North Carolina, 1971)
State v. Cutler
156 S.E.2d 679 (Supreme Court of North Carolina, 1967)
State v. Bruton
142 S.E.2d 169 (Supreme Court of North Carolina, 1965)
State v. Clyburn
159 S.E.2d 868 (Supreme Court of North Carolina, 1968)
State v. Wiley
86 S.E.2d 913 (Supreme Court of North Carolina, 1955)
State v. Vick
213 S.E.2d 335 (Supreme Court of North Carolina, 1975)

Cite This Page — Counsel Stack

Bluebook (online)
247 S.E.2d 786, 38 N.C. App. 316, 1978 N.C. App. LEXIS 2174, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-parker-ncctapp-1978.