State v. Herbin

• Decision Date: 06 November 1979
• Docket Number: No. 35,35
• Citation: 259 S.E.2d 263,298 N.C. 441
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Joe Mark HERBIN.

Page 263

259 S.E.2d 263

298 N.C. 441

STATE of North Carolina v. Joe Mark HERBIN.

No. 35.

Supreme Court of North Carolina.

Nov. 6, 1979.

Public Defender Wallace C. Harrelson, Greensboro, for defendant.

Atty. Gen. Rufus L. Edmisten by Asst. Attys. Gen. Marvin Schiller, Elizabeth C. Bunting, Raleigh, for the State.

COPELAND, Justice.

Defendant assigns as error the trial judge's denial of his motions for directed verdict at the close of the State's evidence and at the close of all the evidence. Defendant's brief sets out no reason or argument and cites no authority in support of this assignment of error; therefore, it is deemed abandoned. Rule 28(a), (b)(3), Rules of Appellate Procedure; State v. Anderson, 281 N.C. 261, 188 S.E.2d 336 (1972).

In any event, due to the seriousness of the charge and conviction in this case, we have examined the record carefully and find that there is ample evidence, when considered in the light most favorable to the State, to support a conviction of second degree murder. The State's evidence tends to show that the defendant approached the deceased and shot him at close range after the defendant had fired a shot through the window of the Center and deceased had yelled to him that he could get hurt playing around like that. There is evidence in the record that the deceased never raised the bottle he was holding and never approached the defendant as if he were going to harm him. Therefore, defendant's motions for directed verdict were properly denied.

Defendant raises two contentions concerning the following portion of the trial judge's charge to the jury on the definition of self-defense: "and third, that the defendant was not the aggressor if the defendant voluntarily and without provocation entered the fight. He was the aggressor."

First, defendant contends that in making the above statement the trial judge was impermissibly placing the burden of proving self-defense on the defendant. However, it is clear that at that point in his charge the trial judge was Defining self-defense. Immediately after defining self-defense, the trial judge Then charged with respect to the burden of proof on the self-defense issue as follows: "Now, members of the jury, the burden is on the State to prove beyond a reasonable doubt that the defendant did not act in self-defense."

In State v. Potter, 295 N.C. 126, 244 S.E.2d 397 (1978), we held that it was error to tell the jury that it must find beyond a reasonable doubt that the defendant was not the aggressor. The burden is upon the State to prove beyond a reasonable doubt that the defendant did not act in self-defense when there is some evidence in the case that he did. State v. Hankerson,288 N.C. 632, 220 S.E.2d 575 (1975), Rev'd on other grounds, 432 U.S. 233, 97 S.Ct. 2339, 53 L.Ed.2d 306 (1977).

However, we also held in Potter that,

"It would have been proper . . . to tell the jury that the killing . . . would be excused altogether as being in self-defense if:

(1) it appeared to defendant and he believed it to be necessary to shoot (the deceased) in order to save himself from death or great bodily harm . . . ; And

(2) defendant's belief was reasonable in that the circumstances as they appeared to him at the time were sufficient to create such a belief in the mind of a person of ordinary firmness . . . ; And

(3) Defendant was not the aggressor in bringing on the affray, defining what is meant by this term . . . ; And

(4) defendant did not use excessive force, defining what is meant by this term. . . . " State v. Potter, supra at 142-43, 244 S.E.2d at 408. (Citations omitted.) (Emphasis added.)

When charging on self-defense, a trial judge must correctly define the term self-defense, State v. Potter, supra; State v. Wynn, 278 N.C. 513, 180 S.E.2d 135 (1971), and must place the burden on the State to disprove self-defense beyond a reasonable doubt, State v. Hankerson, supra. In the instant case, the trial judge performed both tasks in compliance with our decision in Potter and we find no merit in this assignment of error.

Second, the defendant contends that the trial judge expressed an opinion in stating that, "He was the aggressor." In essence the defendant is alleging error in the court reporter's punctuation of the judge's charge. Such an allegation, standing alone, is not sufficient to warrant a new trial. State v. Jarrette, 284 N.C. 625, 202 S.E.2d 721 (1974), Death sentence vacated, 428 U.S. 903, 96 S.Ct. 3205, 49 L.Ed.2d 1206 (1976).

The State has moved to amend the record as follows: "and third, that the defendant was not the aggressor. If the defendant voluntarily and without provocation entered the fight, he was the aggressor."

We held in Potter that when the jury is instructed that the third requirement of self-defense is that the defendant not be the aggressor, the jury should have the term "aggressor" defined for them. In this connection, the pattern jury instructions provide the following definition: "If he voluntarily and without provocation entered the fight, he was the aggressor." N.C.P.I. Crim. 206.10, Page 7. In the instant case, the trial judge used those exact words in his charge to the jury. Obviously, the punctuation of the court reporter was in error. Therefore, the State's motion to amend the record is allowed so that the above sentence is punctuated the same as the pattern jury instructions.

A trial judge cannot express an opinion on the evidence in the presence of the jury at any stage of the trial. G.S. 15A-1222; G.S. 15A-1232. Those two provisions repealed and replaced G.S. 1-180 effective 1 July 1978. The new provisions restate the substance of G.S. 1-180 and the law remains essentially unchanged. State v. Hewett, 295 N.C. 640, 247 S.E.2d 886 (1978). At this point in the charge it is obvious that the trial judge expressed no opinion. He was defining the term "aggressor" for the jury as he should have done and committed no error in doing so.

Defendant assigns as error the following portion of the trial judge's charge on self-defense:

"If the State has failed to satisfy you behind (sic) a reasonable doubt that the defendant did not reasonably believe under the circumstances As they existed at the time of the killing that he was about to suffer death or serious bodily harm or bodily injury at the hands of Johnny Conwell, or that the defendant used more force than reasonably appeared to him to be necessary, and third, that the defendant was the aggressor then the killing of Johnny Conwell by the defendant would be justified on the grounds of self-defense then it would be your duty to return a verdict of not guilty." (Emphasis added.)

Defendant contends that use of the phrase "as they existed" rather than "as they appeared" denied him the full benefit of a jury instruction that he had the right to defend himself under circumstances of apparent necessity as well as real or actual necessity.

It is true, as defendant contends, that in the exercise of his lawful right of self-defense, an accused may use such force as is necessary or apparently necessary to protect himself from death or serious bodily harm. State v. Davis, 289 N.C. 500, 223 S.E.2d 296, Death sentence vacated, 429 U.S. 809, 97 S.Ct. 45, 50 L.Ed.2d 69 (1976); State v. Fowler, 250 N.C. 595, 108 S.E.2d 892 (1959). The doctrine of apparent necessity means that a person may kill if he reasonably believes it to be necessary to do so in order to avoid death or serious bodily harm, even though it is not actually necessary to kill. State v. Goode, 249 N.C. 632, 107 S.E.2d 70 (1959); State v. Rawley, 237 N.C. 233, 74 S.E.2d 620 (1953). The reasonableness of his belief is to be determined by the jury from the facts and circumstances as they appeared to the defendant at the time of the killing. State v. Marsh, 293 N.C. 353, 237 S.E.2d 745 (1977); State v. Kirby, 273 N.C. 306, 160 S.E.2d 24 (1968).

Elsewhere in his charge, the trial judge instructed the jury as follows:

"Now, members of the jury, a killing would be excused entirely on the ground of self-defense. First, if it appeared to the defendant and he believed it to be necessary to shoot Johnny Conwell in order (to) save himself from death or great bodily harm; and second, the circumstances as they appear (sic) to the defendant at the time were sufficient to create such a belief in the mind of a person of ordinary firmness. It is for you, members of the jury, to determine the reasonableness of the defendant's belief from the circumstances as they appeared to him at the time. In making this determination you should consider the circumstances as you find them to have existed from the evidence that the fierceness of the assault, if there was any upon the defendant, and whether or not Johnny Conwell had any sort of weapon in his possession. . . ."

This instruction is in accord with the law and afforded the defendant the full benefit of the doctrine of apparent necessity. State v. Jackson,284 N.C. 383, 200 S.E.2d 596 (1973); State v. Gladden, 279 N.C. 566, 184 S.E.2d 249 (1971). Under the same circumstances, Justice Huskins, quoting former Chief Justice Bobbitt, said that defendant's contention "relates more to semantics than to substance." State v. Jackson, supra at 391, 200 S.E.2d at 601, Quoting State v. Gladden, supra at 572, 184 S.E.2d at 253. Thus, this assignment of error is overruled.

The defendant contends that the trial judge impermissibly expressed an opinion concerning the credibility of the defendant's testimony and the testimony of Mr. Robert Gray, a defense witness. At several points during defendant's testimony, the trial judge admonished the defendant to answer the questions asked by the district attorney, to not talk back, and to refrain from arguing with the district attorney. At one point in Gray's testimony, the trial judge instructed him to answer the question and not to argue with the district attorney.

The rule against the expression of opinions by the trial judge in...