State v. Johnson

• Decision Date: 06 June 1978
• Docket Number: No. 46,46
• Citation: 295 N.C. 227,244 S.E.2d 391
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Paul Wilfred JOHNSON.

Page 391

244 S.E.2d 391

295 N.C. 227

STATE of North Carolina v. Paul Wilfred JOHNSON.

No. 46.

Supreme Court of North Carolina.

June 6, 1978.

Rufus L. Edmisten, Atty. Gen., by Thomas H. Davis, Jr., Associate Atty. Gen., Raleigh, for the State of North Carolina.

Van Winkle, Buck, Wall, Starnes, Hyde & Davis, Herbert L. Hyde and G. Edison Hill, Asheville, for defendant-appellant.

HUSKINS, Justice:

We first consider defendant's assignment of error which challenges the following excerpt from the charge:

"If you find from the evidence beyond a reasonable doubt that on or about January 15, 1977, Paul Wilfred Johnson intentionally and without justification or excuse, fired a .22 caliber shot into the body of Clyde Junior Tabor with the rifle offered and received into evidence as State's Exhibit 9 thereby proximately causing Clyde Junior Tabor's death, but the State has failed to satisfy you beyond a reasonable doubt that the defendant killed with malice because of the heat of sudden passion, or while exercising the right of self defense he used excessive force, it would be your duty to return a verdict of guilty of voluntary manslaughter."

When properly analyzed, this excerpt from the charge says: (1) If, due to the State's failure to carry its burden of proof, the jury has a reasonable doubt that defendant killed his victim "with malice because of the heat of passion," defendant should be convicted of voluntary manslaughter; or (2) if the State has failed to satisfy the jury beyond a reasonable doubt that defendant used excessive force while exercising his right of self-defense, defendant should be convicted of voluntary manslaughter. The first portion of the excerpt is ambiguous and subject to various interpretations some permissible, others not. The second portion is manifestly erroneous. In view of the fact that defendant was convicted of voluntary manslaughter, a new trial is mandatory. State v. Carver, 286 N.C. 179, 209 S.E.2d 785 (1974). Compare State v. Freeman, 275 N.C. 662, 170 S.E.2d 461 (1969).

We are inclined to think that the confusing instruction attributed to the able trial judge was erroneously transcribed. Even so, the record imports verity and we are bound by the record as certified. Foods, Inc. v. Super Markets, 288 N.C. 213, 217 S.E.2d 566 (1975); Rogers v. Rogers, 265 N.C. 386, 144 S.E.2d 48 (1965).

One remaining assignment merits discussion at this time.

Defendant assigns as error the denial of his motion for a new trial based upon the alleged misconduct of the jury officer in commenting to the jury after it had retired to deliberate on its verdict, in substance, "that he was proud or glad that the district attorney for the State in his argument to the jury stood up for the law enforcement officers of Swain County."

While courts are zealous in protecting litigants against improper influences exerted by court officers and other persons who are strangers to the litigation, "the rule sustained by the great weight of authority is that a verdict will not be disturbed because of a conversation between a juror and a stranger when it does not appear that such conversation was prompted by a party, or that any injustice was done to the person complaining, and he is not shown to have been prejudiced thereby, and this is true of applications for a new trial by the accused in a criminal case as well as of applications made in civil actions. Clearly, a conversation between a juror and a third person which is of a harmless character, unrelated to the matter in issue, and not tending to influence or prejudice the jury in their verdict, will not afford cause for a new trial. . . . (A)nd if a trial is clearly fair and proper, it should not be set aside because of mere suspicion or appearance of irregularity which is shown to have done no actual injury. Generally speaking, neither the common law nor statutes contemplate as ground for a new trial a conversation between a juror and a third person unless it is of such a character as is calculated to impress the case upon the mind of the juror in a different aspect than was presented by the evidence in the courtroom, or is of such a nature as is calculated to result in harm to a party on trial. The matter is one resting largely within the discretion of the trial judge." (Emphasis added.) 58 Am.Jur.2d, New Trial, § 109 (1971). This statement is quoted with approval in Stone v. Baking Co., 257 N.C. 103, 125 S.E.2d 363 (1962), and is quoted and applied to the conduct of an erring bailiff in State v. Sneeden, 274 N.C. 498, 164 S.E.2d 190 (1968).

Ordinarily, motions for a new trial based on misconduct affecting the jury are addressed to the discretion of the trial court, and unless its rulings thereon are clearly erroneous or amount to a manifest abuse of discretion, they will not...