State v. Bush, 6PA82

• Citation: 307 N.C. 152,297 S.E.2d 563
• Decision Date: 07 December 1982
• Docket Number: No. 6PA82,6PA82
• Parties: STATE of North Carolina v. James A. BUSH.
• Court: United States State Supreme Court of North Carolina

Page 563

297 S.E.2d 563

307 N.C. 152

STATE of North Carolina v. James A. BUSH.

No. 6PA82.

Supreme Court of North Carolina.

Dec. 7, 1982.

Rufus L. Edmisten, Atty. Gen., by Lester V. Chalmers, Jr., Sp. Deputy Atty. Gen. and Donald W. Stephens, Asst. Atty. Gen., Raleigh, for the State.

Richard E. Giroux, Durham, and Richard A. Rosen, Chapel Hill, for defendant-appellant.

MITCHELL, Justice.

The primary issue presented in this case is whether the trial court committed prejudicial and reversible error during the defendant's original trial for murder in the first degree by instructing the jury that the defendant had the burden of proving self-defense and absence of malice. For reasons set forth herein, we find no reversible error in this regard and affirm the 21 April 1981 Order of the Superior Court denying the defendant's Motion for Appropriate Relief.

The defendant was tried before Judge George M. Fountain and a jury and convicted during the 19 May 1975 Session of Superior Court, Onslow County, for the murder in the first degree of Kirby W. Marshburn. ¹ He was sentenced to death and appealed. This Court found no error in the conviction or sentence, 289 N.C. 159, 221 S.E.2d 333 (1976). The Supreme Court of the United States later vacated the sentence of death against the defendant, 429 U.S. 809, 97 S.Ct. 46, 50 L.Ed.2d 69 (1976). On remand a life sentence was imposed in Superior Court, Onslow County, on 30 November 1976.

On 14 April 1981, the defendant filed a Motion for Appropriate Relief pursuant to G.S. 15A-1411 et seq. alleging that the trial court improperly placed the burden upon him to prove self-defense and absence of malice and denied him due process of law in violation of the requirements of the Fifth and Fourteenth Amendments to the Constitution of the United States, Article I, Section 19 of the Constitution of North Carolina and the constitutional mandate of Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975). The defendant further alleged that the failure of his court appointed attorneys to raise the due process issues of Mullaney relative to the burden of proof on self-defense and absence of malice deprived him of his right to effective assistance of counsel, due process of law and equal protection of the law guaranteed by the Sixth and Fourteenth Amendments to the Constitution of the United States and Article I, Sections 19 and 23 of the Constitution of North Carolina. By Order dated 21 April 1981, the Superior Court denied the defendant's Motion for Appropriate Relief. We allowed the defendant's petition for writ of certiorari to review that Order on 12 January 1982.

A complete recitation or review of the evidence offered during the original trial on behalf of the State and the defendant would serve no useful purpose. A more complete statement of facts in this regard is to be found in the opinion rendered by this Court upon the defendant's direct appeal of his trial and conviction, 289 N.C. 159, 221 S.E.2d 333 (1976). Our review of the evidence for the State and the defendant and the instructions of the trial court during the original trial is limited to those matters pertinent to our consideration of the propriety of the 21 April 1981 Order of the Superior Court denying the defendant's Motion for Appropriate Relief.

Sometime during the early evening hours of 18 November 1974, the defendant took an automobile which was parked outside a bar near Camp Lejeune, a base operated by the United States Marine Corps near Jacksonville, North Carolina. The defendant, a 20 year old marine, had been drinking beer and lost control of the car and drove it into a ditch. He then walked to the trailer home of Kirby W. Marshburn, the deceased, and Mrs. Marshburn. There the defendant asked for and received permission to enter the Marshburn home to use the telephone. The defendant's testimony in his own behalf during his trial indicated in substance that the following events then occurred:

After I was unable to reach the person I was calling, I had a conversation with the man in the house and as far as I knew there was nobody in the house except me and the man. We were standing in the kitchen having our conversation. Up until that time our relationship had been good and we had just been talking. There were no ill words between us at that time. I asked him for a drink of water and he gave me a glass full of water and we stood there and talked. I was standing inside the kitchen by the sink and the man was standing near me and the door was on the other side of him. The man was talking about some person down the road that owned a wrecker and he said something about there being a "colored boy" down the road who owned a wrecker. Before he got all the words out I corrected him and I said "colored boy?" and I asked him what color the person was. The man did not make any immediate response, it was kind of a delayed response and he stopped for a second and then all of a sudden he started pushing me and telling me to get out. At that time I was standing in front of the sink and the sink was to my back. Mr. Marshburn was standing in front of me and the door that I entered was behind him. I must have been six or seven inches from the sink when he pushed me and I backed into the sink. He never struck me and he did not have a weapon in his hand.

I believe he repeated three or four times for me to get out of the trailer and all the time he was between me and the door. There were dishes around the kitchen but I do not recall if there was any food on the table. There was a counter top by the sink and I saw a knife laying there (State's Exhibit 4) and I picked it up. I picked up the knife because I was nervous and I thought I was protecting myself and I was afraid for my safety.

As far as I knew the only way out of the trailer was the door that I entered as I had never been there before and I did not know who was there when I went there. After picking up the knife, I stabbed the man to get him off of me and at that time I did not have any intention of stealing anything from him or from his house. When I went into the house earlier I did not have any intention of stealing anything.

.... Earlier in my testimony I did say that I picked up a knife on the counter and I did pick it up intentionally. I stabbed Kirby Marshburn knowing what I was doing and I stabbed him to get him away from me. I had backed up as far as I could back up and the only way I knew out of the trailer was through the door that I entered. I was afraid for my safety at that time and I now realize that I probably used more force than was necessary. Prior to using the force that resulted in the man's death, I did not intend on doing anybody any harm or taking anything from the trailer.

....

The thought of robbery never entered my mind when I went to the Marshburn house. Mr. Marshburn pushed me towards the sink and we were facing each other at that time. My body hit the sink and I looked back behind me and saw the knife. I was in another man's house and I knew that he wanted me to get out of his house. I do not know what kept me from walking past this 65 year old man and I guess I probably could have done that. At that time I thought I had a reason for picking up the knife as I was looking out for myself and my safety. I do not know what made me afraid of this 65 year old man. I realize he was much older than me and he did not have a weapon. He had not threatened to use a weapon on me and he allowed me to come into his house and use his phone and he had given me a drink of water. I did think it was necessary to pick up a knife and stab him at that time.

I do not remember where I stabbed him the first time and I do not remember how many times I stabbed him. Mr. Marshburn had nothing behind him and I had the sink behind me. There was nothing behind and I could have hit him in the face but I grabbed the knife and stabbed him instead. I don't know how many times I stabbed him before he fell but I did not stab him after he fell on the floor. If the man was stabbed six times with the knife then he was stabbed six times standing up. I cannot explain the abrasions about Mr. Marshburn's face because I did not hit him in the face. I did not stomp him with my boots after he was on the floor and I do not know how he got those abrasions on his face. I was no more than an arm's length away from him. He wasn't exactly struggling at that time and I don't remember exactly what he was doing. I did stab him six times before he fell.

The evidence additionally revealed that the deceased died of the knife wounds inflicted by the defendant. Mrs. Eva Marshburn returned to the home shortly after the events described by the defendant in his testimony and found it ransacked with her husband, Kirby W. Marshburn, lying on the floor in a pool of blood. One of the Marshburns' steak knives and Mr. Marshburn's billfold were on the floor near his body. When Mrs. Marshburn looked up from her husband's body she saw the defendant standing near her. The defendant took three dollars from Mrs. Marshburn and told her that he was not going to harm her. The defendant then tied her up, took her car keys and a gun and left the home.

On certiorari to this Court, the defendant assigns as error the denial of his Motion for Appropriate Relief and reasserts his contention that the instructions of the trial court during his original trial erroneously placed the burden upon him to prove self-defense and absence of malice to the satisfaction of the jury. We consider first the erroneous instructions ² of the trial court on the issue of self-defense. We find that the evidence before the trial court did not justify any instruction on the law of self-defense and that any instruction on self-defense was error favorable to the defendant and harmless beyond a reasonable doubt.

Perfect self-defense excuses a killing altogether and is established when it is shown that, at the time of...