422 S.E.2d 730 (N.C. 1992), 218A91, State v. Greene

Docket Nº:218A91.
Citation:422 S.E.2d 730, 332 N.C. 565
Party Name:STATE of North Carolina v. Karl Noel GREENE.
Case Date:November 19, 1992
Court:Supreme Court of North Carolina
 
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422 S.E.2d 730 (N.C. 1992)

332 N.C. 565

STATE of North Carolina

v.

Karl Noel GREENE.

No. 218A91.

Supreme Court of North Carolina.

November 19, 1992

Lacy H. Thornburg, Atty. Gen. by Jane R. Garvey, Asst. Atty. Gen., Raleigh, for the State.

Heidi G. Chapman, Chapel Hill, for the defendant appellant.

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WEBB, Justice.

The defendant's first assignment of error deals with his trial counsel's final argument to the jury. The defendant contends that his trial counsel, without the defendant's consent or authorization, argued that the jury should find the defendant guilty of involuntary manslaughter, thus depriving the defendant of his constitutional right to the effective assistance of counsel. Trial counsel argued, in part, as follows:

Karl Greene didn't have anything to do with me being here. Don't use what I've said and done against him. Wouldn't be right. I've done my best. I've plowed the field. And in my opinion, you probably won't turn him free--find him not guilty. And you very easily, I can see, that that slap was negligent and harder than it ought to have been and at that time, it was reckless disregard, and the judge will charge you on that at the end of those four--involuntary manslaughter. I don't say you should find that, but I concede--sitting on this jury--but I contend, ladies and gentlemen, there's no premeditation and deliberation.

At the close of trial counsel's argument, the district attorney approached the bench and expressed his concern that defense counsel's argument may have been improper. Although the trial judge expressed a similar concern, he stated that it was his recollection[332 N.C. 571] that "[defense counsel] argued that they might find the lesser offense of involuntary manslaughter or voluntary manslaughter, but that he didn't think they would find that." The judge then asked the defendant if he would like for defense counsel to be given "the opportunity to argue further on--that you're innocent of all charges." The defendant said that he would like for the court to allow his counsel to so argue. The defendant contends that his counsel's additional argument was similarly improper. Counsel argued as follows:

Now, again, coming to the close, the defendant contends there is no evidence to find him guilty of first degree murder--that is, got to find all six or five--no premeditation, nobody--nothing showing he even, for a blink of a minute, thought about killing somebody. No deliberation going through his mind. Now is the time to kill him. No malice. No hatred. No deliberately, like a baseball bat as they illustrated in other things. No malice. In fact, all love before and after. All love.

As to voluntary manslaughter, no intent down there. No intent to murder. No reckless disregard of life. Again, all love except the blows and the reflex motion, and it was too hard.

But we don't contend--he didn't know it was going to be too hard. I argue and contend that he didn't know it was going to be too hard. He didn't know what he was doing.

Most of us, up before this, didn't know that a slap on the face could kill anybody. I mean, even a young child. Busted his lip, he may.

Now, it's been some people with nursing training and all, I'm sure. Those are not supposed to be a lot of training, but even involuntary manslaughter.

We contend that Karl ought to leave here a free man....

The defendant contends that his attorney argued to the jury, without the defendant's consent, that the jury should find him guilty of involuntary manslaughter and this was ineffective assistance of counsel, requiring a new trial pursuant to State v. Harbison, 315 N.C. 175, 337 S.E.2d 504 (1985), cert. denied, 476 U.S. 1123, 106 S.Ct. 1992, 90 L.Ed.2d 672 (1986). We cannot hold that the defendant's attorney so argued. In his first argument the attorney said that in his opinion the jury would not find the defendant not guilty [332 N.C. 572] and that it could easily find that the "slap was negligent," "harder than it ought to have been," and "it was reckless disregard." Nevertheless, he further argued that, "I don't say you should find that." We believe the argument was that the defendant was innocent of all charges but if he were to be found guilty of any of the charges it should be involuntary manslaughter because the evidence came closer to proving that crime

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than any of the other crimes charged. This is not the equivalent of asking the jury to find the defendant guilty of involuntary manslaughter and the rule of Harbison does not apply.

As to the second argument, the defendant contends that his counsel in one breath argued that the defendant was guilty of involuntary manslaughter and in the next breath asked the jury to find the defendant not guilty. The defendant also says that in his second argument the defendant's counsel appeared to be telling the jury that he believed that the defendant was guilty of involuntary manslaughter, but the defendant wanted him to argue that he should go free.

We disagree with the defendant's characterizations of the second argument. We do not find anything in it that approaches an admission of guilt. The clear and unequivocal argument was that the defendant was innocent of all charges. Although the defendant's counsel admitted, as did the defendant in his testimony, that the defendant slapped the victim, he argued that this was not a sufficient basis upon which to find the defendant guilty of any charge.

This assignment of error is overruled.

The defendant next contends it was error to submit to the jury the charge of first degree murder on the theory of premeditation and deliberation. He says there is no evidence that he planned to kill the child. Premeditation and deliberation are often not provable by direct evidence and must be proved by circumstantial evidence. State v. Buchanan, 287 N.C. 408, 215 S.E.2d 80 (1975). In this case, there was evidence that the victim, a five year old child, was brutally beaten during which time the defendant delivered several hard blows to the victim's head. A reasonable man would know that this would very likely cause the death of the child.

In the light most favorable to the State, the jury could have found that, knowing what these hard blows to the head would likely do to the child, the defendant intended the natural result [332 N.C. 573] of his action. They could have found that the defendant intended to kill the child. When they found the defendant intended to kill the child they could have found he formed this intent some period of time, however short, before delivering the lethal blows. The jury could have found there was not a sufficient legal provocation to cause the defendant to be under the influence of a violent passion which would keep him from being in a cool state of blood. This would satisfy the State's burden to prove that the defendant killed the child intentionally with premeditation and deliberation. State v. Perdue, 320 N.C. 51, 357 S.E.2d 345 (1987). This assignment of error is overruled.

The defendant's third assignment of error deals with testimony elicited to corroborate the testimony of a witness for the State. Kenneth Wayne Gardner testified for the State that he was an inmate in the Taylorsville Correctional Facility. He testified further that he was at one time in the Dorothea Dix Hospital with the defendant and discussed the defendant's case with him.

Gardner testified that the defendant told him that he "smacked the kid" and the child hit a table "across the forehead." He then "hit the kid a couple of times in the face." Gardner testified further that the defendant told him that he hated the child and the child's father and that he would have killed the child's sister if she had been there.

The State called William C. Lane...

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