State v. Morgan

• Decision Date: 18 February 1986
• Docket Number: No. 711A84,711A84
• Citation: 340 S.E.2d 84,315 N.C. 626
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Bradley Eugene MORGAN.

Page 84

340 S.E.2d 84

315 N.C. 626

STATE of North Carolina v. Bradley Eugene MORGAN.

No. 711A84.

Supreme Court of North Carolina.

Feb. 18, 1986.

Lacy H. Thornburg, Atty. Gen. by Ralf F. Haskell, Sp. Deputy Atty. Gen., Raleigh, for the State.

Malcolm Ray Hunter, Jr., Appellate Defender by Louis D. Bilionis, Asst. Appellate Defender, Raleigh, for defendant-appellant.

MEYER, Justice.

Defendant brings forth three assignments of error. First, defendant contends that the trial court committed reversible error in allowing the prosecutor, over objection, to cross-examine the defendant concerning a specific instance of prior assaultive conduct that was not probative of truthfulness or veracity. Second, defendant contends that it was reversible error for the trial court to admit testimony concerning a hearsay statement by the decedent recorded in his hospital file that was not itself admissible under any exception to the hearsay rule. Third, defendant contends that the trial court committed "plain error" by failing to instruct the jury that with regard to his theory of self-defense, the defendant had a right to stand his ground and had no duty to retreat. For the reasons stated below, we find no reversible error.

The State's evidence tended to show that in the fall of 1983, defendant and the deceased, Austin Yates Harrell, entered into a partnership agreement for the operation of a produce business and "flea market" in Alexander, North Carolina. The business became known as "Geno's" and was operated in a building fronting on Highway 221-A. Defendant also lived in the building.

During the early evening hours of 4 July 1984, Harrell went into the Amoco station across the intersection from Geno's and told Betty Jo Grayhouse that he was "going to close the place [Geno's] down." That same evening, defendant walked over to the Amoco station and told Ms. Grayhouse that Mr. Harrell was going to close him down and that she would see his [defendant's] name in the headlines before midnight. After defendant left the Amoco station, Ms. Grayhouse heard a "bang." A few minutes later, she saw the defendant come over to the Amoco station and go into a telephone booth.

Mrs. Debra Tate and her family were sitting on their front porch on the evening of 4 July 1984. The Tate residence is just across the road from Geno's. At about 7:45 p.m., Mrs. Tate noticed Mr. Harrell out in front of Geno's fixing a bicycle. After he finished working on the bicycle, Mr. Harrell moved a metal table to a spot about four feet from the front door of Geno's and set up a folding metal chair near the table. As Mr. Harrell was bending down, about to sit down in the chair, defendant "threw open" the front door, aimed a shotgun at Mr. Harrell, and shot him. Mr. Harrell fell over backwards. Defendant reached back inside the door, put the shotgun away, and called across the street to Mr. Tate, saying, "Come here, you seen what I did." When Mr. Tate refused to go across the street, defendant walked over to the Amoco station. Law enforcement officers arrived shortly thereafter and arrested the defendant. Sonny Chapman of the Rutherford County Sheriff's Department saw Mr. Harrell's body on the ground outside Geno's with his feet some three to four feet from the front door.

An investigation of the scene produced a shotgun containing a spent cartridge leaning against a refrigerator inside the front door of the building. A hatchet was discovered underneath the sofa two to three feet from the wall, and a knife was found on a shelf next to the back door. What appeared to be bits of flesh were observed outside the building on a wooden brace nine feet from the edge of the front door, on the curb line, and on the center line of the highway in front of the building.

Dr. Michael Wheeler performed a post mortem examination of decedent's body and testified at trial that the fatal wound was caused by a shotgun slug which entered the left side of Mr. Harrell's neck and exited the right side. The doctor estimated that the shot was fired from one and one-half to two and one-half feet away. Dr. Wheeler noted that the decedent was 6'-3"' tall and weighed approximately 280 pounds. In his opinion, a person of decedent's size, if shot in the manner in which the State contends decedent was shot, would fall backwards from where he was standing; the force of the shotgun blast would cause the victim's torso to be forced back somewhat, but his feet would probably not have moved. Dr. Wheeler also testified that his analysis of a sample of the decedent's blood indicated that he was intoxicated at the time of his death: "The blood ethynol level was 160 millimeters percent."

The defendant, who is 5'-7"' tall and weighs approximately 155 pounds, testified on his own behalf and offered a very different account of the events leading up to Mr. Harrell's death. He testified that he and Mr. Harrell dissolved their partnership on 2 February 1984, when he paid Harrell $1,000 in cash for Harrell's interest in the business. He did not see Mr. Harrell again until 29 June 1984 when Harrell came by Geno's looking for a place to stay. Others who knew Mr. Harrell testified that he had not been in the area for some time. Defendant also testified that he allowed Mr. Harrell to stay with him at Geno's on the condition that he remain sober. Mr. Harrell did not comply with that condition, however, and drank continuously from the time he arrived on Sunday, rarely sleeping and sometimes acting belligerently. Finally, defendant asked Mr. Harrell to leave, and defendant left for Chesnee, South Carolina, hoping that Mr. Harrell would be gone when he returned.

However, after arriving in Chesnee, defendant testified that he ran into Mr. Harrell who caught a ride back to Alexander with him. The two argued on the way back about whether Mr. Harrell would continue to stay with the defendant. The argument continued after they arrived at Geno's and, according to the defendant, Mr. Harrell went into a rage and threw a hatchet through the front door at him. The hatchet came to rest underneath the sofa. Harrell then pursued the defendant to the back of the building with a butcher knife and when he exited the back door, defendant tried to lock him out. However, Mr. Harrell came around to the front door again and threw a school desk/chair at the defendant, but it landed instead on the store's canopy. When Harrell came at the defendant through the front door, defendant reached for Harrell's shotgun and told him, "Yates, don't come in here no more; I can't take it anymore." According to defendant, Mr. Harrell responded, "This is it ... I'm going to kill you." At that point, defendant fired the shotgun as Harrell came through the front door at him.

The defendant offered both lay and expert testimony to the effect that Mr. Harrell suffered from manic depressive psychiatric disorder and was taking prescription medications for treatment of that disorder. Defendant tendered the testimony of witnesses who had observed the decedent prior to the shooting behaving in odd and occasionally violent ways. Dr. William Westmoreland testified that he had treated Harrell at the Spindale Mental Health Center during 1983 and 1984. He described Harrell's mood swings as characteristic of persons suffering from manic depressive psychiatric disorder and discussed the effect of alcohol consumption during the various stages of the disorder. During Dr. Westmoreland's last visit with Harrell on 28 June 1984, Harrell's condition was described as "stable ... coming from a depressed state."

Defendant's theory of the case was that he had shot Harrell in self-defense; that he reasonably felt it necessary to shoot Harrell in order to protect himself from Mr. Harrell, a 6'-3"', 280-pound manic depressive who was coming at him through the doorway of his home and business threatening to kill him. Defendant admitted on cross-examination, however, that at the time he shot Harrell, Harrell did not have a weapon in his hand.

I.

During recross-examination of the defendant at trial, the following exchange took place:

Q. Mr. Morgan, do you recall that on April 26th, 1984, less than three months before this incident, that you assaulted Mike Hall with a deadly weapon, a shotgun, by pointing it at Mr. Hall and stating that you would cut him in two with the shotgun there at this same place of business, did you not do that did you not do that [sic] with Mike Hall?

MR. MITCHELL: Objection.

THE COURT: Objection Overruled.

A. Mike Hall followed me from the station and come into my sotre [sic], yes sir, I remember that.

Q. And then when Roger Poteat, the CHief [sic] of Police of Alexander Mills, came to serve the Warrant, did you not point the shotgun at Roger Poteat?

A. No sir, I did not. I showed Roger the gun and it wouldn't [sic] even loaded.

The trial judge thus allowed the prosecutor to question defendant on cross-examination about a prior act of assaultive conduct not charged in the indictment upon which he was being tried. Also referred to as "uncharged misconduct evidence," "prior bad acts," or "extrinsic conduct evidence," introduction of this type of evidence has the potential of raising problems under two sections of the Evidence Code, N.C.G.S. § 8C-1, Rules 404(b) and 608(b) (Cum.Supp.1985). Before analyzing the propriety of the trial judge's ruling here, we must be clear about what the transcript reveals.

This colloquy took place on recross-examination of the defendant by the prosecutor. The defendant had just testified on his own behalf and had admitted shooting Mr. Harrell but claimed he had done so in self-defense. Defendant testified that he would not have shot Mr. Harrell if he had not been afraid of him. During direct and redirect examination, defendant had testified as to Mr. Harrell's often violent behavior and his drinking during the days preceding his death. Apparently without having requested a ruling on admissibility prior to trial,...