State v. Forrest, 705A86

• Decision Date: 02 December 1987
• Docket Number: No. 705A86,705A86
• Citation: 362 S.E.2d 252,321 N.C. 186
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. John FORREST.

Page 252

362 S.E.2d 252

321 N.C. 186

STATE of North Carolina v. John FORREST.

No. 705A86.

Supreme Court of North Carolina.

Dec. 2, 1987.

Lacy H. Thornburg, Atty. Gen. by William P. Hart, Asst. Atty. Gen., Raleigh, for the State.

Van Camp, Gill, Bryan & Webb, P.A. by James R. Van Camp, Pinehurst, for defendant-appellant.

MEYER, Justice.

Defendant was convicted of the first-degree murder of his father, Clyde Forrest. The State having stipulated before trial to the absence of any statutory aggravating factors under N.C.G.S. § 15A-2000, the case was tried as a noncapital case, and defendant was sentenced accordingly to life imprisonment. In his appeal to this Court, defendant brings forward three assignments of error relative to the guilt-innocence phase of his trial. Having considered the entire record and each of these assignments in turn, we find no error in defendant's trial. We therefore leave undisturbed defendant's conviction and life sentence.

The facts of this case are essentially uncontested, and the evidence presented at trial tended to show the following series of events. On 22 December 1985, defendant John Forrest admitted his critically ill father, Clyde Forrest, Sr., to Moore Memorial Hospital. Defendant's father, who had previously been hospitalized, was suffering from numerous serious ailments, including severe heart disease, hypertension, a thoracic aneurysm, numerous pulmonary emboli, and a peptic ulcer. By the morning of 23 December 1985, his medical condition was determined to be untreatable and terminal. Accordingly, he was classified as "No Code," meaning that no extraordinary measures would be used to save his life, and he was moved to a more comfortable room.

On 24 December 1985, defendant went to the hospital to visit his ailing father. No other family members were present in his father's room when he arrived. While one of the nurse's assistants was tending to his father, defendant told her, "There is no need in doing that. He's dying." She responded "Well, I think he's better." The nurse's assistant noticed that defendant was sniffing as though crying and that he kept his hand in his pocket during their conversation. She subsequently went to get the nurse.

When the nurse's assistant returned with the nurse, defendant once again stated his belief that his father was dying. The nurse tried to comfort defendant, telling him, "I don't think your father is as sick as you think he is." Defendant, very upset, responded, "Go to hell. I've been taking care of him for years. I'll take care of him." Defendant was then left alone in the room with his father.

Alone at his father's bedside, defendant began to cry and to tell his father how much he loved him. His father began to cough, emitting a gurgling and rattling noise. Extremely upset, defendant pulled a small pistol from his pants pocket, put it to his father's temple, and fired. He subsequently fired three more times and walked out into the hospital corridor, dropping the gun to the floor just outside his father's room.

Following the shooting, defendant, who was crying and upset, neither ran nor threatened anyone. Moreover, he never denied shooting his father and talked openly with law enforcement officials. Specifically, defendant made the following oral statements: "You can't do anything to him now. He's out of his suffering." "I killed my daddy." "He won't have to suffer anymore." "I know they can burn me for it, but my dad will not have to suffer anymore." "I know the doctors couldn't do it, but I could." "I promised my dad I wouldn't let him suffer."

Defendant's father was found in his hospital bed, with several raised spots and blood on the right side of his head. Blood and brain tissue were found on the bed, the floor, and the wall. Though defendant's father had been near death as a result of his medical condition, the exact cause of the deceased's death was determined to be the four point-blank bullet wounds to his head. Defendant's pistol was a single-action .22-calibre five-shot revolver. The weapon, which had to be cocked each time it was fired, contained four empty shells and one live round.

At the close of the evidence, defendant's case was submitted to the jury for one of four possible verdicts: first-degree murder, second-degree murder, voluntary manslaughter, or not guilty. After a lengthy deliberation, the jury found defendant guilty of first-degree murder. Judge Cornelius accordingly sentenced defendant to the mandatory life term.

Defendant assigns three specific errors relative to his conviction at trial: first, that the trial court committed reversible error in its instruction to the jury concerning the issue of malice; second, that the trial court committed reversible error in its submission of the first-degree murder charge to the jury because there was insufficient evidence of premeditation and deliberation; third and finally, that the trial court committed reversible error when, during jury deliberation, it inquired into the jury's numerical division and subsequently instructed the jury about deliberating toward a verdict. We deal with each assignment of error in turn.

I.

In his first assignment of error, defendant asserts that the trial court committed reversible error in its instruction to the jury concerning the issue of malice. Defendant makes three specific arguments in support of his position on this assignment of error. First, states defendant, the instruction permitting an inference of malice from the use of a deadly weapon on these particular facts constituted an impermissible shift of the burden of persuasion on the issue of malice to defendant. Second, continues defendant, the trial court erred in giving incomplete instructions on the element of malice and in thereby improperly suggesting that the mitigating evidence presented at trial neither negated malice nor showed heat of passion. Third, concludes defendant, the trial court erred more generally in giving instructions on malice which were simply erroneous and misleading. We find each of defendant's arguments unpersuasive, and we therefore overrule this assignment of error.

On the issue of malice, the trial court consistently instructed the jury as follows:

Malice means not only hatred, ill-will or spite, as it is ordinarily understood; to be sure that's malice. But it also means that condition of the mind that prompts a person to take the life of another intentionally, or to intentionally inflict serious bodily harm which proximately results in his death without just cause, excuse or justification.

If the State proves beyond a reasonable doubt that the defendant killed the victim with a deadly weapon, or intentionally inflicted a wound upon the victim with a deadly weapon that proximatley [sic] caused the victim's death you may infer, first, that the killing was unlawful. Second, that it was done with malice. But you are not compelled to do so. You may consider this, along with all other facts and circumstances in determining whether the killing was unlawful and whether it was done with malice.

I charge that it is not a legal defense to the offense of murder if the defendant, John Forrest, at the time of the shooting believed his father, Clyde Forrest, to be terminally ill or in danger of immediate death. But you may consider such belief in determining whether the killing was done with malice.

It is this instruction to which defendant now assigns error.

Defendant first argues that, on the particular facts of this case, the trial court's instruction permitting an inference of malice from the use of a deadly weapon improperly shifted the burden of persuasion on the issue of malice to defendant. Here, claims defendant, where the facts presented tended to show a distraught son who wanted merely to end his father's suffering, the evidence in fact negated the element of malice. According to defendant, there was no rational connection here between the fact proved (intentional use of a dangerous weapon) and the fact inferred (malice). Therefore, concludes defendant, use of an inference under these circumstances was tantamount to shifting the burden of persuasion to defendant, because first, the jury was encouraged to draw the inference regardless of any other evidence presented, and second, it was told, in effect, that the inference could not be overcome--that the direct evidence was not a "legal defense." We cannot agree.

The instruction employed by the trial court is in accord with the North Carolina Pattern Jury Instructions and with extensive North Carolina case law. See State v. Reynolds, 307 N.C. 184, 297 S.E.2d 532 (1982); State v. Patterson, 297 N.C. 247, 254 S.E.2d 604 (1979). Significantly, the trial court did not instruct the jury that malice should be presumed. On the contrary, the trial court instructed the jury that it "may infer " that the killing was unlawful and committed with malice, but that it was not compelled to do so. The trial court properly instructed the jury that it should consider this permissive inference along with all the other facts and circumstances, including defendant's belief that his father was terminally ill or in danger of immediate death, in deciding whether the State had proven malice beyond a reasonable doubt. Defendant's first argument therefore lacks merit.

Defendant argues second that the trial court erred in giving incomplete instructions on the issue of malice, thereby improperly suggesting that any mitigating evidence presented did not negate malice or show heat of passion. While conceding that the instruction here was technically correct, defendant claims that it was nevertheless inadequate and misleading in that it failed to define what was meant by the phrase "just cause, excuse or justification." According to defendant, there is abundant evidence in the record that, upon seeing his father at the hospital, he was overwhelmed by the futile, horrible suffering before him and...