State v. Hamilton, 8520SC185

• Decision Date: 29 October 1985
• Docket Number: No. 8520SC185,8520SC185
• Citation: 77 N.C.App. 506,335 S.E.2d 506
• Court: North Carolina Court of Appeals
• Parties: STATE of North Carolina v. Kenneth Preslar HAMILTON.

Page 506

335 S.E.2d 506

77 N.C.App. 506

STATE of North Carolina v. Kenneth Preslar HAMILTON.

No. 8520SC185.

Court of Appeals of North Carolina.

Oct. 29, 1985.

Atty. Gen. Lacy H. Thornburg by Asst. Attys. Gen. Steven F. Bryant and Karen E. Long, Raleigh, for the State.

Henry T. Drake, Wadesboro, for defendant-appellant.

EAGLES, Judge.

Defendant argues six questions. We have examined them carefully but have found no prejudicial error.

I

The State presented an assistant State medical examiner who examined Smith's body. At the conclusion of the medical examiner's testimony on direct examination, the prosecutor asked his opinion as to the cause of Smith's death. Defendant entered a general objection, which was overruled, and is the basis for his first assignment of error.

We note initially that a general objection, if overruled, is ordinarily not effective on appeal. G.S. 8C-1, R. Ev. 103(a); 1 H. Brandis, N.C. Evidence Section 27 (1982). In the absence of a special request to qualify a witness as an expert, a general objection to specific opinion testimony will not suffice to preserve the question of the expert's qualifications, even on ultimate issues. State v. Hunt, 305 N.C. 238, 287 S.E.2d 818 (1982). If the witness' evidence indicates that he is in fact qualified to give the challenged opinion, even a timely specific objection will not likely be sustained on appeal. See Id.; State v. Hill, 32 N.C.App. 261, 231 S.E.2d 682 (1977). While the record does not contain an extensive review of this witness' qualifications, his position as assistant medical examiner and his testimony regarding the number of other cases he had seen indicate sufficient expertise to allow us to conclude that the trial court did not err in admitting his opinion of the cause of death. See G.S. 130A-380.

Defendant also attempts to argue under this assignment that the State failed to prove that any wounds received by Smith in this incident actually caused his death, implying that death may have resulted from other unknown causes. The State need not prove that the defendant's acts were the sole and immediate cause of death. State v. Alford Jones, 290 N.C. 292, 225 S.E.2d 549 (1976) (intervening negligence no excuse); State v. Luther, 285 N.C. 570, 206 S.E.2d 238 (1974) (assault precipitated heart attack). Further, the State need not exclude every other possible hypothesis inconsistent with defendant's guilt. State v. Freddie Jones, 303 N.C. 500, 279 S.E.2d 835 (1981). Here the State's evidence showed that Smith was active and alive during the incident, that he received gunshot wounds to his upper body from extremely close range which made him go limp and fall to the sidewalk, that an ambulance had to be summoned, and that six hours later Smith was dead of gunshot wounds to his upper body roughly equal in number to the number of shots fired during the incident. We think this evidence sufficed to go to the jury on the issue of whether the shots fired during the incident caused Smith's death. We note in response to defendant's speculations on appeal about other possible causes of death, that it was not obligatory for the State to disprove every other conjectured cause of death. Id. The assignment is therefore overruled.

II

Defendant was arrested in the afternoon following the incident. While he was being fingerprinted, but before his rights were read to him, defendant made several comments. At one point he said, "It's not against the law to kill a nigger in Anson County." Following voir dire, the court found as fact, inter alia, that no officer asked defendant any questions and that the statements were "completely voluntary." Defendant now assigns error to their admission.

Defendant made no exceptions to any of the findings of fact. Accordingly they are binding here. State v. Colbert, 65 N.C.App. 762, 310 S.E.2d 145, rev'd on other grounds, 311 N.C. 283, 316 S.E.2d 79 (1984). The findings of fact establish that the statements were entirely voluntary and that there was no constitutional barrier to their admission. Even if the findings were not conclusive, this record contains no evidence of police conduct that the officers should have known was reasonably likely to elicit the incriminating statements. See Rhode Island v. Innis, 446 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980); State v. Ladd, 308 N.C. 272, 302 S.E.2d 164 (1983). The mere fact that defendant was in custody does not make his statements ipso facto inadmissible. There must be some interrogation. Id. Here, there was no interrogation. Defendant's constitutional arguments are without merit.

Defendant also attacks the admission of these statements on the grounds that their inflammatory effect outweighed their relevance. Evidence traditionally has been considered relevant in a criminal prosecution if it has "any logical tendency, however slight, to prove a fact in issue." 1 H. Brandis, N.C. Evidence Section 77 at 285 (1982). The new Rules of Evidence did not substantially alter this liberal definition of relevancy. G.S. 8C-1, R.Ev. 401. Malice is one of the elements of murder. State v. Fleming, 296 N.C. 559, 251 S.E.2d 430 (1979). Malice is inter alia a state of mind which prompts one person to take the life of another without just cause, excuse or justification. State v. Love, 296 N.C. 194, 250 S.E.2d 220 (1978). Statements by defendant that he believed the law in Anson County did not prevent the killing of blacks clearly tended to prove malice.

Regardless of a statement's relevancy, the court retains discretionary authority to exclude it if its probative value is substantially outweighed by its unfairly inflammatory effect. G.S. 8C-1, R.Ev. 403; 1 H. Brandis, N.C. Evidence Section 80 (1982). Generally, however, courts have excluded such evidence only when it served exclusively to inflame. See e.g., State v. Simpson, 297 N.C. 399, 255 S.E.2d 147 (1979) (murder case, error to admit evidence of unrelated sodomy). If the evidence is relevant, however, the Simpson opinion's logic does not apply. See State v. Richards, 294 N.C. 474, 242 S.E.2d 844 (1978) (admitted evidence highly prejudicial for the same reason that it was relevant; no error). While the disputed evidence may have tended to evoke emotional responses, it was also highly relevant for the same reasons, as discussed above. The court did not abuse its discretion in refusing to exclude the statements. The assignment is overruled.

III

Defendant's next argument combines three separate assignments of error, regarding (1) the denial of defendant's motion to dismiss and (2) the court's instructions on who was the aggressor. Defendant has ignored the mandate of Rules of Appellate Procedure that "[e]ach question shall be separately stated." App.R. 28(b)(5). Nevertheless, despite the Rule violation we address those aspects of this argument which are properly before us.

A

Whether there is sufficient evidence to go to the jury can be one of the most difficult questions a court faces in a criminal case. State v. Bell, 65 N.C.App. 234, 309 S.E.2d 464 (1983), aff'd, 311 N.C. 299, 316 S.E.2d 72 (1984) (per curiam). Upon a timely motion to dismiss, the evidence must be considered in the light most favorable to the State, with all favorable and reasonable intendments and inferences. State v. Earnhardt, 307 N.C. 62, 296 S.E.2d 649 (1982). Once substantial evidence is before the jury, any conflicts and discrepancies are for the jury to resolve and do not supply basis for dismissal. State v. Greene, 278 N.C. 649, 180 S.E.2d 789 (1971); see State v. Bolin, 281 N.C. 415, 189 S.E.2d 235 (1972). This applies even where defendant presents no evidence. Id. If defendant does present evidence, it is disregarded on his motion to dismiss except to the extent that it is favorable to the State. Earnhardt, supra. In "borderline" or close cases, our courts have consistently expressed a preference for submitting issues to the jury, both in reliance on the common sense and fairness of the twelve and to avoid unnecessary appeals. State v. Vestal, 283 N.C. 249, 195 S.E.2d 297, cert. denied, 414 U.S. 874, 94 S.Ct. 157, 38 L.Ed.2d 114 (1973); State v. Holt, 90 N.C. 749 (1884); Cunningham v. Brown, 62 N.C.App. 239, 302 S.E.2d 822, disc. rev. denied, 308 N.C. 675, 304 S.E.2d 754 (1983). With these considerations in mind, we conclude that the court properly denied defendant's motions to dismiss and submitted the case to the jury.

There was sufficient evidence of premeditation and deliberation in defendant's repeated statements that he was going to kill Smith, his requests for his second gun and in his immediate attempt to get his second gun or in unholstering his first gun when physically separated from Smith. See State v. Potter, 295 N.C. 126, 244 S.E.2d 397 (1978). There was sufficient evidence of malice in defendant's voluntary statement following arrest and the fact that he fired his gun several times at Smith at extremely close range (until there were no bullets left). See State v. Fleming, supra. Of the three elements of murder and voluntary manslaughter, see Id., only the unlawfulness of the killing is seriously disputed here. Defendant's contention is that the killing was justified as a matter of law by self-defense and that all the evidence showed that Smith was at all times the aggressor.

B

A person who kills another is not guilty of murder if the killing was an act of self-defense. State v. Deck, 285 N.C. 209, 203 S.E.2d 830 (1974). The right to kill another in self-defense may be forfeited not only by physical aggression on the accused's part but by conduct provoking the fatal encounter. State v. Sanders, 303 N.C. 608, 281 S.E.2d 7, cert. denied, 454 U.S. 973, 102 S.Ct. 523, 70 L.Ed.2d 392 (1981). In Sanders, defendant could properly be found the "aggressor" even though he was imprisoned, since defendant taunted the deceased jailer to enter his cell with vile names and verbal abuse. See State v. Baldwin, 184 N.C. 789, 114 S.E. 837 (...