State v. Wills

429 S.E.2d 376, 110 N.C. App. 206, 1993 N.C. App. LEXIS 433

• Court: Court of Appeals of North Carolina
• Decided: May 18, 1993
• Docket: No. 916SC1019
• Status: Published

Opinion

EAGLES, Judge.

Defendant brings forward six assignments of error. After a careful review of the record, transcripts, and briefs, we find no error. Defendant’s assignments of error, Nos. 1, 2, 3, 5, 8, 11, and 12, are not brought forward and are deemed abandoned. N.C.R. App. P. 28(b)(5).

I.

First, defendant contends that the trial court erred in refusing to instruct the jury on self-defense. We disagree.

In State v. Kinney, 92 N.C. App. 671, 675-76, 375 S.E.2d 692, 695 (1989), this Court stated:

A defendant may use deadly force to repel a felonious assault only if it reasonably appears necessary to protect himself from death or great bodily harm. State v. Hunter, 315 N.C. 371, 338 S.E.2d 99 (1986). However, a defendant may not use deadly force to protect himself from mere bodily harm or offensive physical contact and use of deadly force to prevent harm other than death or great bodily harm is excessive as a matter of law. Id. An assault with intent to kill is justified under self-defense if a defendant is in actual or apparent danger of death or great bodily harm. State v. Dial, 38 N.C. App. 529, 248 S.E.2d 366 (1978).

A self-defense instruction is required if any evidence is presented from which it can be determined that it was necessary or reasonably appeared necessary for a defendant to kill the victim to protect himself from death or great bodily harm. State v. Bush, 307 N.C. 152, 297 S.E.2d 563 (1982). It is for the trial court to determine in the first instance whether as a matter of law there is evidence to require a self-defense instruction. Id. The court must consider the evidence in the light most favorable to the defendant and where there is evidence of self-defense, the court must give the instruction even if there are discrepancies or contradictions in the evidence. State v. Blackmon, 38 N.C. App. 620, 248 S.E.2d 456 (1978), disc. rev. denied, 296 N.C. 412, 251 S.E.2d 471 (1979); State v. Dooley, 285 N.C. 158, 203 S.E.2d 815 (1974).

To merit a self-defense instruction, two questions must be answered in the affirmative: “(1) Is there evidence that the defendant in fact formed a belief that it was necessary to kill his adversary in order to protect himself from death or great bodily harm, and (2) if so, was the belief reasonable?” Bush, 307 N.C. at 160, 297 S.E.2d at 569. (Emphasis added.) If the answer to either question is “no” then a self-defense instruction is not required. Id.

The facts and circumstances surrounding the assault and not a defendant’s stated belief are the determinative factors as to whether a defendant acted as an aggressor or in his own defense. State v. Randolph, 228 N.C. 228, 45 S.E.2d 132 (1947).

Here, the facts and circumstances do not warrant a self-defense instruction because there is no evidence “from which it can be determined that it was necessary or reasonably appeared necessary for [this] defendant to kill the victim [Mr. Whitaker] to protect himself from death or great bodily harm.” Kinney, 92 N.C. App. at 675, 375 S.E.2d at 695. Defendant’s own testimony taken in the light most favorable to him indicates only that Mr. Whitaker “walk[ed]” towards him immediately prior to the shooting. No other witness testified that Mr. Whitaker moved towards defendant. The State’s evidence presented at trial tended to show that at the time Mr. Whitaker was shot, Mr. Whitaker did not have a weapon and had not attempted to strike defendant, who was approximately six feet away. Upon cross-examination, defendant admitted that he had never seen Mr. Whitaker with a weapon of any type at any time. Defendant admitted that he (defendant) “could have kept walking up [Highway] 301” and could have avoided the scene of the Whitakers’ argument where he eventually shot Mr. Whitaker. “In order for a defendant to be free from fault in causing the attack, he must not have provoked the affray by seeking out his victim.” State v. Lovell, 93 N.C. App. 726, 728, 379 S.E.2d 101, 103 (1989) (citing State v. Spaulding, 298 N.C. 149, 257 S.E.2d 391 (1979) and State v. Brooks, 37 N.C. App. 206, 245 S.E.2d 564 (1978)). The evidence also showed that defendant shot Mr. Whitaker at least five or six times and continued to shoot Mr. Whitaker even after he had fallen to the ground after the first two shots.

Defendant’s evidence that Mr. Whitaker had punched defendant two days earlier and had threatened to assault defendant earlier during the day of the shooting is not sufficient “to show that at the time of the shooting defendant was in actual or apparent danger of death or great bodily harm.” Kinney, 92 N.C. App. at 676, 375 S.E.2d at 695 (victim’s past physical abuse of defendant and victim’s threat to beat defendant thirty minutes before shooting not sufficient to warrant self-defense instruction); Hunter, 315 N.C. 371, 338 S.E.2d 99 (1986). Nor are defendant’s self-serving statements that he “was scared” and “was afraid that he [Mr. Whitaker] would try to do something to me” an adequate basis for an instruction on self-defense. “[T]hese self-serving statements do no more than indicate merely some vague and unspecified nervousness or fear; they do not amount to evidence that the defendant had formed any subjective belief that it was necessary to kill the [victim] in order to save himself from death or great bodily harm.” Bush, 307 N.C. 152, 159-60, 297 S.E.2d 563, 568 (1982) (emphasis in original). This assignment of error fails.

II.

In his next three assignments of error, defendant argues that he was “deprived of his right to a fair trial by the trial court’s failure to prevent cross-examination of the defendant and his witness [Mr. Pittman] designed to suggest that the defendant was a person of bad character and by the prosecutor’s persistence in posing questions that implied prejudicial facts without regard to the witness’ answers.” We find no error.

Defendant contends that the State’s cross-examination of defendant and his witness, Mr. Pittman, regarding “[t]he events surrounding the defendant’s gunshot wound .... was clearly an improper attempt to impeach both the defendant and Pittman as persons of bad, violent character” in violation of N.C.R. Evid. 608(b). We disagree. Through the testimony of two witnesses, defendant introduced evidence of the gunshot wound he had suffered two weeks earlier during an incident at which Mr. Pittman was present. In his brief, defendant admits that this evidence was introduced in an attempt to show “why he was in fear of serious bodily injury from Stephen Whitaker at the time of the shooting [of Mr. Whitaker].” Our Supreme Court has stated:

[T]he law wisely permits evidence not otherwise admissible to be offered to explain or rebut evidence elicited by the defendant himself. Where one party introduces evidence as to a particular fact or transaction, the other party is entitled to introduce evidence in explanation or rebuttal thereof, even though such latter evidence would be incompetent or irrelevant had it been offered initially.

State v. Leroux, 326 N.C. 368, 383, 390 S.E.2d 314, 324, cert. denied, 498 U.S. 871, 112 L.Ed.2d 155 (1990) (quoting State v. Albert, 303 N.C. 173, 177, 277 S.E.2d 439, 441 (1981)). Accordingly, by introducing evidence of his own gunshot wound in his attempt to establish self-defense, defendant opened the door for the State’s cross-examination concerning the events immediately surrounding defendant’s gunshot wound.

The State’s inquiry regarding the prior shooting of defendant was a proper attempt to explain, explore, or rebut defendant’s proffered evidence. Leroux, 326 N.C. 368, 390 S.E.2d 314. During the State’s cross-examination, defendant admitted inter alia he carried a revolver because of his fear of the man (not Mr. Whitaker) who shot him two weeks earlier. This admission helped to negate defendant’s assertion of self-defense by rebutting defendant’s earlier claim that he carried a revolver because of his fear of Mr. Whitaker. Even if the trial court may have erred by not sustaining defendant’s objections to the form of the State’s questions or to the admission of the subsequent testimony, it was harmless error. The evidence against the defendant is so overwhelming that we are not convinced that “had the error in question not been committed, a different result would have been reached at the trial.” G.S. 15A-1443(a).

III.

Defendant contends that the trial court’s instruction defining reasonable doubt was improper and warrants a new trial. We disagree.

Defendant requested the pattern jury instruction for reasonable doubt, N.C.P.I. —Crim. 101.10, and additional language from State v. Riera, 276 N.C. 361, 367, 172 S.E.2d 535, 539 (1970). The trial court denied defendant’s request and gave the jury the following charge:

Now a reasonable doubt, members of the jury, means exactly what it says. It’s not a mere, possible, academic, or a forced doubt because there are few things in human experience which are beyond a shadow of a doubt or beyond all doubt, nor is it a doubt suggested by the ingenuity of counsel, or even by your ingenuity of mind not legitimately warranted by the evidence and the testimony here in this case.

Your reason and your common sense should tell you that a doubt wouldn’t be reasonable if it were founded upon or suggested by any of these type of considerations. A reasonable doubt is a sane sensible doubt, an honest substantial misgiving, one based on reason and common sense reasonably arising out of some or all of the evidence that has been presented or the lack of'or insufficiency of that evidence as the case may be. Proof beyond a reasonable doubt is such proof that fully satisfies or entirely convinces you of the defendant’s guilt.

Defendant argues that the above instruction constituted reversible error, thus entitling him to a new trial based upon the United States Supreme Court’s decision in Cage v. Louisiana, 498 U.S. 39, 112 L.Ed.2d 339 (1990). In Cage, 498 U.S. at 40-41, 112 L.Ed.2d at 341-42, the United States Supreme Court noted the Louisiana trial court’s instruction and commented as follows:

The instruction provided in relevant part:

“If you entertain a reasonable doubt as to any fact or element necessary to constitute the defendant’s guilt, it is your duty to give him the benefit of that doubt and return a verdict of not guilty. Even where the evidence demonstrates a probability of guilt, if it does not establish such guilt beyond a reasonable doubt, you must acquit the accused. This doubt, however must be a reasonable one; that is one that is founded upon a real tangible substantial basis and not upon mere caprice and conjecture. It must be such doubt as would give rise to a grave uncertainty, raised in your mind by reasons of the unsatisfactory character of the evidence or lack thereof. A reasonable doubt is not a mere possible doubt. It is an actual substantial doubt. It is a doubt that a reasonable man can seriously entertain. What is required is not an absolute or mathematical certainty, but a moral certainty. State v. Cage, 554 So 2d 39, 41 (La 1989) (emphasis added).

. . . The charge did at one point instruct that to convict, guilt must be found beyond a reasonable doubt; but it then equated a reasonable doubt with a “grave uncertainty” and an “actual substantial doubt,” and stated that what was required was a “moral certainty” that the defendant was guilty. It is plain to us that the words “substantial” and “grave,” as they are commonly understood, suggest a higher degree of doubt than is required for acquittal under the reasonable doubt standard. When those statements are then considered with the reference to “moral certainty,” rather than eviden-tiary certainty, it becomes clear that a reasonable juror could have interpreted the instruction to allow a finding of guilt based on a degree of proof below that required by the Due Process Clause.

We find that the charge given in Cage, supra, is sufficiently distinguishable from the charge given here so as not to justify a new trial. See Hudson, 331 N.C. 122, 142, 415 S.E.2d 732, 742, cert. denied, — U.S. —, 122 L.Ed.2d 136, rehr’g denied, — U.S. —, 122 L.Ed.2d 776 (1992) (holding that trial court did not err in giving instruction that used the term “honest, substantial misgiving” but did not use “the combination of the terms found offensive by the Cage Court”); State v. Montgomery, 331 N.C. 559, 572, 417 S.E.2d 742, 749 (1992) (discussing the holding in Hudson, 331 N.C. 122, 415 S.E.2d 732, and stating that the instruction in Hudson “did not equate reasonable doubt with a ‘moral certainty’ ”); Estelle v. McGuire, 502 U.S. —, —, 116 L.Ed.2d 385, 399 & n.4 (1991) (setting forth the standard of review as being “ ‘whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way’ that violates the Constitution.”). In the present case, reasonable doubt was not equated with a “grave uncertainty” or “actual substantial doubt” as in Cage, supra. In fact, here the trial court told the jury that “reasonable doubt . . . means exactly what it says.” “[W]e repeat what this Court has said a number of times, ‘The words “reasonable doubt” in themselves, are about as near self-explanatory as any explanation that can be made of them.’ State v. Wilcox, 132 N.C. 1120, 1137, 44 S.E. 625, 631 (1903); State v. Phillip, 261 N.C. 263, 269, 134 (1964).” State v. Ward, 286 N.C. 304, 310, 210 S.E.2d 407, 412 (1974), death sentence vacated, 428 U.S. 903, 49 L.Ed.2d 1207 (1976).

Here, the trial court instructed the jury regarding the requirement of finding defendant’s guilt based upon an evidentiary certainty rather than by a mere “moral certainty” as in Cage, supra. See Montgomery, 331 at 573, 417 S.E.2d at 750 (holding that trial court’s reasonable doubt instruction violated the requirements of the Due Process Clause as interpreted in Cage where the trial court “joined its definition of a reasonable doubt as an ‘honest, substantial misgiving’ with a requirement that to convict the jury must be convinced to a ‘moral certainty,’ rather than to evidentiary certainty”). Furthermore, here the trial court stated that reasonable doubt was “one based on reason and common sense reasonably arising out of some or all of the evidence that has been presented or the lack of or insufficiency of that evidence as the case may be.” (Emphasis added.) Accordingly, this assignment of error is overruled. Even so, we recommend the use of the pattern jury instruction on reasonable doubt. N.C.P.I. —Crim. 101.10. See State v. Rogers, 316 N.C. 203, 218, 341 S.E.2d 713, 722 (1986), overruled on other grounds, State v. Vandiver, 321 N.C. 570, 364 S.E.2d 373 (1988) (the North Carolina Pattern Jury Instructions for Criminal Cases adopt “the definition [of reasonable doubt] developed in our case law”).

IV.

Finally, defendant contends that “the trial court erred in failing to find a statutory mitigating factor established by uncontradicted evidence.” We find no error.

Defendant contends that the trial court erred by not finding as a statutory mitigating factor pursuant to G.S. § 15A-1340.4(a)(2)(i) that “defendant acted under strong provocation, or the relationship between the defendant and the victim was otherwise extenuating, based on the evidence at trial of Whitaker’s prior confrontations with the defendant and his prior assault of the defendant at a time when he knew that the defendant was injured and still recovering from a gunshot wound.” “The trial court’s failure to find a mitigating factor will not be overturned on appeal unless the evidence in support of the factor is uncontradicted, substantial, and there is no reason to doubt its credibility.” State v. Foster, 101 N.C. App. 153, 159, 398 S.E.2d 664, 668 (1990) (citing State v. Lane, 77 N.C. App. 741, 336 S.E.2d 410 (1985)). Given the lapse of time between the previous encounter between defendant and Mr. Whitaker and the time of the shooting and given the absence of any weapon on Mr. Whitaker’s person at the time of the shooting, we conclude that uncontradicted evidence of strong provocation does not exist. See State v. Highsmith, 74 N.C. App. 96, 327 S.E.2d 628, disc. review denied, 314 N.C. 119, 332 S.E.2d 486 (1985). Accordingly, this assignment of error fails.

V.

For the reasons stated, we find no error.

No error.

Judges ORR and WYNN concur.