State v. Boone, 81

• Decision Date: 01 April 1980
• Docket Number: No. 81,81
• Citation: 263 S.E.2d 758,299 N.C. 681
• Parties: STATE of North Carolina v. Carl Ray BOONE.
• Court: North Carolina Supreme Court

Page 758

263 S.E.2d 758

299 N.C. 681

STATE of North Carolina v. Carl Ray BOONE.

No. 81.

Supreme Court of North Carolina.

April 1, 1980.

Rufus L. Edmisten, Atty. Gen., by W. A. Raney, Jr., Sp. Deputy Atty. Gen., Raleigh, for the state.

Philip P. Godwin, Gatesville, for defendant.

EXUM, Justice.

Defendant assigns as error: (1) the admission of certain testimony; (2) denial of his motion for dismissal for insufficiency of the evidence; (3) certain aspects of the trial court's jury instructions; and (4) denial of his motion to set aside the verdict as being contrary to the greater weight of the evidence. We find no merit in any of these assignments and no prejudicial error in the trial.

The state's evidence tended to show as follows:

On 4 July 1978 the deceased, Ervin Cross, came to the home of Virginia Cross in the Boonetown Community in Gates County. He had earlier repaired a window in the Virginia Cross home. He was there on the occasion in question to determine if the window was working properly. Defendant entered the house through the back door. He said to Virginia Cross, who was also present, "Move, (I am) going to shoot." Defendant pushed Virginia Cross against the refrigerator. She then observed defendant pull a pistol out of his pants' pocket. Virginia Cross ran out on the porch and "froze." She heard a pistol go off in the house. She then observed defendant and the deceased running across a field heading toward Vandell Cross' house. Defendant was running behind Ervin Cross. As he ran defendant shot the pistol three times. Both Ervin Cross and the defendant entered Vandell Cross' back door.

Essie Brown was present in Vandell Cross' residence when the deceased and defendant entered. Being scared, Essie Brown locked herself in the bathroom. She heard shots "that sounded like they were coming from the back yard of Vandell's house." She stayed in the bathroom for two or three minutes. She then left the bathroom and ran out of the house through the living room. When she ran by the kitchen door she saw Ervin Cross lying on the floor.

Vandell Cross, who was in the area at the time, observed the deceased and defendant run toward his house. When he arrived at his house he went in the kitchen. He observed the deceased lying on the floor. Defendant "was going back the same direction that he came, down across my yard, and Virginia's yard, on back around by the hog pasture." The deceased, Vandell Cross testified, was "laying there dead with a butcher knife in his hand. I never saw Carl Ray (defendant) with anything in his hand. I was getting out of my truck and heard one shot that sounded like it came from my back door. I didn't see anybody else but Carl Ray and I didn't say anything to him nor did he speak to me." Vandell Cross testified that the knife he observed in the deceased's hand had been placed on the kitchen table "where I left it . . . that morning . . . ."

The coroner testified that the deceased died from a bullet wound to his chest which pierced his heart, esophagus, aorta, and left lung. The bullet itself was identified by a firearms expert as being a .32 caliber bullet. Efforts by investigators to recover the weapon were unsuccessful.

Defendant offered no evidence.

The trial judge instructed the jury that they might return verdicts of guilty of second degree murder, manslaughter, not guilty, and not guilty by reason of self-defense. The jury returned a verdict of guilty of second degree murder. Defendant was sentenced to life imprisonment.

Defendant first assigns error to the admission of certain testimony.

During the examination of state's witness Virginia Cross, she gave the following testimony:

"I also had occasion to see Carl Ray Boone at my house on the morning of July 4, 1978. I have known Carl Ray ever since I have been living here in Boonetown.

Q. Does Carl Ray live in that community, or not?

A. Not in the community we do, off from where we do.

Q. Had he been living there around July 4th, or somewhere else?

A. I think he was in New York or Philadelphia, or some place.

OBJECTION to what she 'thinks.'

OVERRULED."

Assuming arguendo that Virginia Cross should not have been permitted to testify regarding her beliefs or thoughts as to defendant's residence, nevertheless we find no prejudicial error in this incident. Defendant's proper response to the witness' objectionable answer was a motion to strike. Failure to make such a motion precludes defendant from relying on the objectionable answer on appeal. State v. Grace, 287 N.C. 243, 213 S.E.2d 717 (1975); State v. Battle, 267 N.C. 513, 148 S.E.2d 599 (1966). Furthermore we are satisfied that this answer, even if improperly admitted, did not prejudice defendant. Defendant argues that the evidence put him in the position of an "outsider" and thereby prejudiced him in the eyes of the jury. This argument falls, however, inasmuch as Virginia Cross also testified that she had "known Carl Ray ever since I have been living here in Boonetown." She consistently referred to him in her testimony as "Carl Ray" indicating that defendant was familiar to her. Both Essie Brown and Vandell Cross also referred to the defendant as "Carl Ray" indicating that he was likewise familiar to them. G.S. 15A-1443(a) provides, "A defendant is prejudiced by errors relating to rights arising other than under the Constitution of the United States when there is a reasonable possibility that, had the error in question not been committed, a different result would have been reached at the trial out of which the appeal arises." We are satisfied that there is no reasonable possibility that a different result would have been reached at this trial had the complained of testimony been excluded.

Another incident complained of by the defendant also occurred during the testimony of Virginia Cross:

"Q. Can you describe what you observed Carl Ray doing as he was running behind Ervin?

OBJECTION.

OVERRULED.

A. He was shooting that pistol, he shot that pistol three times running across the path.

Q. Carl Ray did?

A. Yes, three times.

Q. Can you describe how Carl Ray was holding the pistol?

A. Not exactly, but he must have been shooting like this (indicating with hand), because he was running, and Ervin was running.

OBJECTION AND MOTION TO STRIKE.

MOTION TO STRIKE DENIED. OBJECTION OVERRULED.

Q. Could you see the pistol at that time?

A. No, I heard the pistol."

Again, defendant complains of Virginia Cross' testimony that "he must have been shooting like this (indicating with hand)" inasmuch as this seems to be an impermissible conclusion on the part of the witness. Suffice it to say that the crux of this testimony was that defendant was running behind the deceased shooting a pistol. The manner in which he was shooting is of little moment. Assuming the testimony was incompetent and should have been stricken, we are satisfied defendant was not prejudiced by it. G.S. 15A-1443(a).

Investigating SBI Agent Eugene Bryant testified, without objection, that his investigation of the scene of the shooting revealed a bullet hole in the top door of one of the kitchen cabinets, several broken dishes, a projectile, and fragments of lead lying inside the cabinet. During the redirect examination of Vandell Cross the following occurred:

"Q. Now this hole that you described in the cabinet, had that been there, had that hole been there before this day?

A. No

OBJECTION.

A. It was shot in there that morning."

OVERRULED.

Q. Would you repeat that?

A. I said that was shot in there that morning.

OBJECTION.

OVERRULED.

Defendant assigns as error the admission of this testimony. It was, of course, proper for Vandell Cross to testify that the hole had not been in the cabinet before the day of the shooting. Assuming the statements as to when it was "shot in there" were inadmissible since the witness did not actually see the shooting, defendant's assignment of error insofar as it is based on this incident must nevertheless fail. Defendant did not move to strike the testimony. Again, we are satisfied that there is no reasonable possibility that had this testimony been excluded a different result would have been reached. The hole not having been in the cabinet before the day in question and being discovered there immediately after the incident, the conclusion is inescapable that the hole was "shot in there" during the incident under investigation.

Defendant next assigns as error the denial of his motion for dismissal at the close of the evidence. Defendant argues that the motion should have been allowed because the state failed to prove beyond a reasonable doubt that defendant did not act in self-defense. The state must prove that a defendant did not act in self-defense only when there is some evidence of self-defense in the case. State v. Hankerson, 288 N.C. 632, 220 S.E.2d 575 (1975). We said in Hankerson, 288 N.C. at 649-50, 220 S.E.2d at 588:

"The Mullaney (v. Wilber, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508) ruling does not, however, preclude all use of our traditional presumptions of malice and unlawfulness. It precludes only utilizing them in such a way as to relieve the state of the burden of proof on these elements when the issue of their existence is raised by the evidence. The presumptions themselves, standing alone, are valid and, we believe, constitutional. State v. Williams, 288 N.C. 680, 220 S.E.2d 558 (1975); State v. Sparks, 285 N.C. 631, 207 S.E.2d 712 (1974), pet. for cert. filed, 43 U.S.L.W. 3392 (U.S. Nov. 29, 1974)(No. 669). Neither, by reason of Mullaney, is it unconstitutional to make the presumptions mandatory in the absence of contrary evidence nor to permit the logical inferences arising from facts proved (killing by intentional use of deadly weapon), State v. Williams, supra (286 N.C. 422, 212 S.E.2d 113), to remain and be weighed against contrary evidence if it is produced. The effect of making the presumptions mandatory in the absence of any...