State v. Lester, 57

• Decision Date: 29 January 1976
• Docket Number: No. 57,57
• Citation: 289 N.C. 239,221 S.E.2d 268
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Michael Allen LESTER.

Page 268

221 S.E.2d 268

289 N.C. 239

STATE of North Carolina v. Michael Allen LESTER.

No. 57.

Supreme Court of North Carolina.

Jan. 29, 1976.

Rufus L. Edmisten, Atty. Gen., by Roy A. Giles, Jr., Asst. Atty. Gen., Raleigh, for the State.

Wallace C. Harrelson, Public Defender, Eighteenth Judicial Dist., Greensboro, for defendant-appellant.

EXUM, Justice.

Defendant assigns as error the denial of his motion for judgment as of nonsuit. However his argument on this point is limited to the statement, 'This is a formal assignment of error and is brought forward to preserve the record.' This assignment is abandoned. Rule 28, Rules of Practice in the Supreme Court of North Carolina. Suffice it to say that there was plenary evidence that defendant murdered Robert Waller.

We deem it unnecessary to set out the facts in detail. In brief, evidence for the State tended to show: Defendant picked up two hitchhikers, Kent Wells and Robert Waller, on his way to Greensboro from Danville, Virginia. Wells and Waller were early for a concert at the Greensboro Coliseum so they rode around with defendant, sharing his marijuana cigarettes, and trying to find defendant's 'girl friend' Linda. In the course of the episode at the end of a dirt road defendant held up Wells and Waller with a gun and knife, demanded money and submission to homosexual acts. A fight ensued. Waller was stabbed and shot and died as a result of these wound. Wells escaped. Evidence for defendant tended to show: At the scene of the incident Wells grabbed a bag of defendant's marijuana which precipitated heated discussion and a general fist fight. Waller pulled out a knife, threatened defendant with death, and demanded his money. Defendant stabbed Waller with his own knife and shot him solely for his own protection. The evidence for the defendant tended to show self-defense. Synthesizing the two accounts the jury could also have found that defendant, although not acting lawfully, nevertheless killed in the heat of passion on sudden provocation or used excessive force in an otherwise proper self-defense.

Defendant assigns as error the charge of the court relative to the presumptions of malice and unlawfulness and the burden of proof as to heat of passion on sudden provocation and burden of proof on self-defense contending that it violates Fourteenth Amendment Due Process as interpreted in Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975). In his charge the trial judge placed upon the State the burden of proving beyond a reasonable doubt that defendant 'intentionally and without justification or excuse (i.e., unlawfully) and with malice stabbed and shot Robert Waller with a deadly weapon.' However the trial judge also instructed that '(i)f the State proves beyond a reasonable doubt that the defendant intentionally killed Robert Waller with a deadly weapon or intentionally inflicted a wound upon Robert Waller with a deadly weapon that proximately caused his death, the law raises two presumptions: First, that the killing was unlawful; and second, that it was done with malice.' The court also charged that '(i)n order to reduce the crime from second degree murder to manslaughter, the defendant must prove not beyond a reasonable doubt but simply to your satisfaction that there was no malice on his part. And in order to excuse his act altogether on the ground of self-defense, the defendant must prove not beyond a reasonable doubt but simply to your satisfaction that he acted in self-defense.' The constitutionality of this type of charge has been considered at length in State v. Hankerson, 288 N.C. 632, 220 S.E.2d 575 (1975) and State v. Williams, 286 N.C. 422, 212 S.E.2d 113 (1975). In these cases we held that the presumptions of unlawfulness and malice arising from an intentional assault with a deadly weapon proximately resulting in death are constitutional. In State v. Hankerson, supra, we held that although the charge in its entirety unconstitutionally relieved the State of proving malice, i.e., absence of heat of passion, and unlawfulness beyond a reasonable doubt when those issues were raised by the evidence, the decision in Mullaney v. Wilbur, supra, was not to be applied retroactively to trials conducted before the date of that decision, June 9, 1975. In this case defendant was tried during the second week of the March 31, 1975 Criminal Session of Guilford County Superior Court. Judgment was entered April 11, 1975. This assignment of error is overruled.

Defendant contends that the court erred in instructing that second degree murder differs from first degree murder, Inter alia, in that a specific intent to kill is not an element of second degree murder. 'A specific intent to kill . . . is not an element of second degree murder or manslaughter.' State v. Gordon, 241 N.C. 356, 358, 85 S.E.2d 322, 324 (1955). Compare State v. Williams, 286 N.C. 422, 212 S.E.2d 113 (1975) With State v. Winford, 279 N.C. 58, 181 S.E.2d 423 (1971). This contention is consequently without merit.

Defendant next argues that the court erred in admitting evidence of flight and in failing to instruct the jury, without request, on the weight to be accorded this evidence. The defendant was arrested at his home some days after the crime with his car fully loaded with clothing and cooking utensils. The car was impounded. A witness for the State was allowed to testify to numerous articles found in the back seat and trunk of the automobile and photographs were admitted which illustrated his testimony. This testimony was clearly admissible and competent to be considered by the jury in passing upon defendant's guilt. State v. Self, 280 N.C. 665, 672, 187 S.E.2d 93, 97 (1972); Accord, State v. Lampkins, 283 N.C. 520, 196 S.E.2d 697 (1973), 2 Stansbury's North Carolina Evidence § 178 (Brandis Rev.1973).

That the testimony was admissible does not require the judge, without a request therefor, to instruct the jury as to the weight to be given this evidence. In the absence of a special request the trial judge is not required to instruct the jury on subordinate features of a case. '(I)nstructions as to the significance of evidence which do not relate to the elements of the crime itself or defendant's criminal responsibility therefor have been considered subordinate features of the case.' State v. Hunt, 283 N.C. 617, 624, 197 S.E.2d 513, 518 (1973). Flight is not an element of the State's case nor is its absence a defense. It is merely a circumstance to be considered by the jury in determining a general Mens rea in a criminal case. State v. Lampkins, supra.

Several photographs were admitted into evidence of the crime scene although the witness who identified the photographs had been at the scene at night and the photographs had been taken during the daytime. Defendant contends this was error. This contention was squarely rejected in State v. Johnson, 280 N.C. 281, 286, 185 S.E.2d 698, 701 (1972) where we said:

The admissibility of the photographs for the limited purpose did not depend on the degree or the source of the illumination at the time they...