State v. Hankerson

• Decision Date: 17 December 1975
• Docket Number: No. 56,56
• Citation: 220 S.E.2d 575,288 N.C. 632
• Parties: STATE of North Carolina v. Johnnie B. HANKERSON.
• Court: North Carolina Supreme Court

Page 575

220 S.E.2d 575

288 N.C. 632

STATE of North Carolina v. Johnnie B. HANKERSON.

No. 56.

Supreme Court of North Carolina.

Dec. 17, 1975.

Rufus L. Edmisten, Atty. Gen. by Claude W. Harris, Asst. Atty. Gen., Raleigh, for the State.

L. G. Diedrick, Rocky Mount, W. O. Rosser, Whitakers, and Roland Braswell, Goldsboro, for defendant-appellant.

EXUM, Justice.

I

Defendant assigns as error the denial of his motions for judgment as of nonsuit. Judge Arnold's dissent was on the basis that nonsuit should have been allowed. Reviewing this assignment, we consider all of the evidence actually admitted, whether from the State or defendant, in the light most favorable to the State, resolve any contradictions and discrepancies therein in the State's favor, and give the State the benefit of all reasonable inferences from the evidence. State v. Cutler, 271 N.C. 379, 382, 156 S.E.2d 679, 681 (1967). Defendant more specifically urges that this case comes within the rule that, '(w)hen the State introduces in evidence exculpatory statements of the defendant which are not contradicted or shown to be false by any other facts or circumstances in evidence, the State is bound by these statements. While the intentional killing of another with a deadly weapon raises the presumption that the killing was unlawful and done with malice, this rule of law does not mean that the burden of showing an unlawful killing does not rest with the State. When the State's evidence and that of the defendant is to the same effect and tend only to exculpate the defendant, motion for nonsuit should be allowed. State v. Carter, 254 N.C. 475, 119 S.E.2d 461.' State v. Johnson, 261 N.C. 727, 730, 136 S.E.2d 84, 86 (1964).

In State v. Johnson, supra, a murder prosecution, the State's only evidence that defendant committed a homicide was a confession that established a perfect self-defense. Circumstantial evidence corroborated the confession. Defendant's evidence at trial was to the same effect. In this context we held defendant entitled to a nonsuit and reversed a conviction for manslaughter. State v. Carter, supra, presented basically the same situation. There was no evidence which tended to contradict or impeach defendant's confession or testimony at trial that she acted lawfully in the defense of another.

The State contends, however, and we agree that this case falls more squarely within the rule that the State is not bound by the exculpatory portions of a confession which it introduces, if there is 'other evidence tending to throw a different light on the circumstances of the homicide.' State v. Bright, 237 N.C. 475, 477, 75 S.E.2d 407, 408 (1953); see also State v. Bolin, 281 N.C. 415, 189 S.E.2d 235 (1972) and State v. Cooper, 273 N.C. 51, 159 S.E.2d 305 (1968). In State v. Bright, supra, the State introduced defendant's statement that he killed his wife accidently while they were scuffling on the bed. We held, however, that evidence 'such as the absence of powder burns, the location and direction of the fatal wound (and), the conduct of the defendant . . .' was sufficient to survive a motion for nonsuit, and we affirmed a manslaughter conviction.

We hold that nonsuit in this case was properly denied in view of evidence which casts doubt on defendant's version of the incident. This evidence is to the effect that: (1) defendant fled the scene at a great rate of speed; (2) defendant originally lied about the gun and decided to tell the truth about it after his wife had turned it in to the police; (3) the deceased had no grease on his hands although defendant claimed the grease spot on his shirt was from being grabbed by the deceased; (4) the deceased was found with a cigarette in one hand, although defendant claims the deceased used two hands against him; (5) the deceased was right-handed although defendant claims that deceased wielded the knife with his left hand; (6) defendant says he was stopped by two persons while the State's evidence was that the deceased, when last seen alive moments before the shooting, was alone; (7) the deceased had never been seen with a knife in his possession similar to the one recovered from defendant's vehicle.

While none of these circumstances taken individually flatly contradicts defendant's statement, taken together they are sufficient to 'throw a different light on the circumstances of the homicide' and to impeach the defendant's version of the incident. The State is not bound, therefore, by the exculpatory portions of defendant's statement. The case is for the jury.

II

On cross-examination of the defendant by the district attorney the following occurred:

'Q How many people have you ever shot before?

OBJECTION: OVERRULED: EXCEPTION

DEFENDANT'S EXCEPTION NO. 3.

Q Go ahead and tell us exactly how many?

A I have shot one.

Q Is that all?

A Two.

Q Is that all?

A Yes.'

As the cross-examination continued without further objection defendant admitted having been 'convicted of whiskey' and 'convicted one time of escaping from prison . . .. I have not been convicted of anything else. I have been up once before in North Carolina for assault; this is the second time. That was for shooting. It was in self-defense. I came clear of that.' On recross-examination the defendant testified: 'I have not been previously convicted of assault. They kept me in jail three or four nights the time the man was hitting me with a stick. Years back a fellow whacked me with a knife and he was shot in the leg but I didn't go to jail for it. I just paid his hospital bill.' Apparently with reference to this testimony the trial judge, summarizing the evidence, stated to the jury that the defendant 'testified that he had once been conviced of escape and once he was convicted of assault, and you will recall the things he said he had been convicted for.'

Defendant now assigns as error: first, the overruling of his objection to the district attorney's question, 'How many people have you ever shot before?'; second, failure of the court to strike 'defendant's testimony as to any prior arrests that did not result in a conviction'; and third, the statement of the trial judge hereinabove set out recapitulating the testimony of the defendant.

With regard to the district attorney's question defendant properly concedes the right of the State to cross-examine defendant as to specific acts of misconduct, State v. Gainey, 280 N.C. 366, 185 S.E.2d 874 (1972), and properly concedes that unlawfully shooting other people would be such misconduct. Defendant contends, however, that the question was patently asked in bad faith since the district attorney must have been aware that the defendant was acquitted of that charge. Defendant, however, testified that he had shot people on Two other occasions only one of which resulted in an acquittal by reason of self-defense. There is no showing in the record that the district attorney in fact knew the official outcome of these assaults. Apparently one of them never came to trial.

As to the trial judge's failure to strike defendant's testimony regarding prior arrests which did not result in convictions, suffice it to say there was no motion to strike any of this testimony. Apparently defendant was satisfied at trial with his full explanation before the jury of the outcome of the two shooting incidents. The trial judge was nto required, Sua sponte, to strike this testimony. State v. Battle, 267 N.C. 513, 148 S.E.2d 599 (1966).

Although defendant admitted he paid hospital bills for one of his victims, he said also that he 'didn't go to jail for it' and that he had 'not previously been convicted of assault.' The trial judge did it seems inaccurately recapitulate the defendant's testimony on this point. The misstatement is understandable. Nevertheless 'inaccurate statements of this character are not ground for a new trial unless called to the court's attention with request that correction be made before the case is submitted to the jury.' State v. Revis, 253 N.C. 50, 53, 116 S.E.2d 171, 174 (1960). In State v. Cantrell, 230 N.C. 46, 51 S.E.2d 887 (1949) relied on by defendant on this point, defendant was tried on a charge of carnally knowing his ten year old child. In dictum this Court volunteered the observation that it would have been error for the trial judge to say, in recapitulating the evidence, that defendant 'admitted . . . he had been tried and convicted of an assault with intent to commit rape on his daughter Dorline Shelton' unless such an admission appeared in the record. (It does not appear in the opinion but the record reveals that Dorline Shelton was not the prosecutrix, but another daughter of the defendant.) Noting that no exception was taken or assignment of error directed to this portion of the charge, this Court recognized that the defendant may indeed have made such an admission although none appeared in the record. Assuming he correctness of this dictum, the supposed misstatement there considered is clearly distinguishable from the one here. In prosecutions for various kinds of illicit sexual activity, our decisions have been characterized as being 'markedly liberal in holding evidence of similar sex offenses admissible' on the question of guilt. 1 Stansbury's North Carolina Evidence 299 (Brandis Rev.1973). It might then be considered that the assumed misstatement in Cantrell was one of a fact bearing directly on defendant's guilt. This Court has said that 'a statement of a material fact not shown in the evidence constitutes reversible error' whether or not called to the trial court's attention. State v. McCoy, 236 N.C. 121, 124, 71 S.E.2d 921, 923 (1952). The misstatement here complained of was clearly upon a collateral matter.

These assignments of error are, consequently, overruled.

III

In his final mandate the trial judge failed to reiterate and specify that self-defense was a possible theory of acquittal. Defendant contends that under State v. Dooley, 285 N.C. 158, 203 S.E.2d 815 (1974)...