State v. Rathbone, 8524SC268

• Decision Date: 03 December 1985
• Docket Number: No. 8524SC268,8524SC268
• Citation: 336 S.E.2d 702,78 N.C.App. 58
• Parties: STATE of North Carolina v. Clyde RATHBONE.
• Court: North Carolina Court of Appeals

Page 702

336 S.E.2d 702

78 N.C.App. 58

STATE of North Carolina v. Clyde RATHBONE.

No. 8524SC268.

Court of Appeals of North Carolina.

Dec. 3, 1985.

Atty. Gen. Lacy H. Thornburg by Asst. Atty. Gen. Walter M. Smith, Raleigh, for the State.

Appellate Defender Adam Stein by Asst. Appellate Defender Gordon Widenhouse, Raleigh, for defendant-appellant.

MARTIN, Judge.

Defendant brings forward assignments of error relating to the sufficiency of the evidence, the admission of evidence, the jury instructions and the sentence. For the reasons stated herein, we find no prejudicial error.

In his first assignment of error defendant argues that his motion to dismiss should have been allowed because the uncontradicted evidence showed, as a matter of law, that defendant killed Charles Rathbone in the exercise of his right of self-defense or defense of his wife. A thorough review of the evidence compels us to reject this contention.

Upon a defendant's motion to dismiss, the question before the court is whether there is substantial evidence of each essential element of the offense charged, and that defendant was the perpetrator of the offense. State v. Powell, 299 N.C. 95, 261 S.E.2d 114 (1980). The evidence must be considered in the light most favorable to the State and the State is entitled to every reasonable inference arising from the evidence. Id. When the State's evidence and defendant's evidence tend only to show that defendant acted in self-defense, then defendant's motion for nonsuit should be allowed. State v. Johnson, 261 N.C. 727, 136 S.E.2d 84 (1964). Similarly, the motion for nonsuit should be allowed when the uncontradicted evidence shows that defendant killed the decedent in defense of a family member. State v. Carter, 254 N.C. 475, 119 S.E.2d 461 (1961). However, the right to kill in defense of one's self or family member is not absolute. When one uses excessive force in the exercise of his right of self-defense, he loses the benefit of perfect self-defense and is guilty at least of voluntary manslaughter. State v. Norris, 303 N.C. 526, 279 S.E.2d 570 (1981). Where the evidence is conflicting with respect to the issue of whether the force used by a defendant was excessive under the circumstances, the question is properly submitted to the jury. State v. Clark, 65 N.C.App. 286, 308 S.E.2d 913 (1983), disc. rev. denied, 310 N.C. 627, 315 S.E.2d 693 (1984).

In the instant case, while defendant's testimony was to the effect that he fired three times at Charles after Christine had fallen to the floor, the State offered evidence that defendant had fired four shots and that two bullets had been shot through the bedroom door. Powder burns on the outside of the door indicated that the shots had been fired from the hallway into the bedroom through the closed door. Charles was found dead in the bedroom with an empty pistol; he had been shot four times, once in the back. This evidence permits an inference that defendant shot Charles in the back as he was retreating with an empty pistol and twice more through the closed door; the evidence is therefore sufficient to carry the case to the jury on the question of whether defendant used excessive force in self-defense. In addition, defendant's statement to Boyd Norton that he had shot Charles because "He came in and tried to take over" is inconsistent with defendant's claim of self-defense. We therefore hold that the court did not err in denying defendant's motion to dismiss.

By his second assignment of error defendant contends that the trial court erred in permitting the prosecutor to question defendant about the facts of a prior assault conviction. On direct examination, defendant testified that he had been convicted of assault in Utah. On cross-examination, the following exchange occurred:

Q. That conviction of assault, did that involve a shooting?

Mr. Huff: Objection.

THE COURT: Overruled.

Q. Did it involve you shooting someone?

A. Yes.

Q. You spent time in prison for it?

A. Six months in jail.

For purposes of impeachment, a witness, including a defendant, may be cross-examined with respect to prior convictions. G.S. 8C-1, Rule 609(a); State v. Finch, 293 N.C. 132, 235 S.E.2d 819 (1977). Where the conviction is established, there may be further inquiry into the time and place of the conviction and the punishment imposed. Id. This Court has held that inquiry into prior convictions which exceeds the limitations established in Finch is reversible error. State v. Greenhill, 66 N.C.App. 719, 311 S.E.2d 641 (1984) (prosecutor inquired into weapons used and gender of victims in thirteen prior assaults); State v. Bryant, 56 N.C.App. 734, 289 S.E.2d 630 (1982) (defendant admitted conviction for larceny, prosecutor proceeded with questions concerning details of theft of police radio from police station and defendant's use of the radio thereafter).

In the instant case, defendant testified on direct examination that he had been convicted of assault. The prosecutor's question as to whether the assault involved a shooting was basically no more than an inquiry into whether the conviction was, in reality, one for a more serious offense, i.e., assault with a deadly weapon. Once defendant admitted that it was, the prosecutor did not press for the details and merely inquired as to punishment, as permitted by Finch. Even if the inquiry transcended the bounds of Finch, we do not believe the error to be of such magnitude as to require a new trial under the test of prejudicial error contained in G.S. 15A-1443(a). Under the circumstances of this case, it is highly improbable that the evidence tended, as defendant asserts, "to lead the jury to convict defendant because he was prone to assault others by shooting them."

In his third assignment of error defendant argues that the trial court erred in overruling defendant's objections to questions concerning his assault on Delbert Reed. Defendant contends that this testimony was irrelevant and highly prejudicial. Defendant, however, testified to the same incident on direct examination. When evidence is admitted over objection and the same evidence has already been admitted, or is subsequently admitted without objection, the benefit of the objection is lost. State v. Tysor, 307 N.C. 679, 300 S.E.2d 366 (1983); 1 H. Brandis, Brandis on North Carolina Evidence § 30 (2d rev. ed. 1982).

Defendant next contends that the trial court erred in instructing the jury that defendant was not entitled to the benefit of self-defense if he was the aggressor or if he used excessive force. We first note that defendant failed to object to the instruction at trial, as required to preserve this issue for appellate review. N.C.R.App.P. 10(b)(2). Defendant contends, nevertheless, that the instruction was plain error and is reviewable on appeal even in the absence of timely objection. The plain error rule, adopted by our Supreme Court in State v. Odom, 307 N.C. 655, 300 S.E.2d 375 (1983), defines plain error as follows:

[T]he plain error rule ... is always to be applied cautiously and only in the exceptional case where, after reviewing the entire record, it can be said the claimed error is a "fundamental error, something so basic, so prejudicial, so lacking in its elements that justice cannot have been done," or "where [the error] is grave error which amounts to a denial of a fundamental right of the accused," or the error has " 'resulted in a miscarriage of justice or in the denial to appellant of a fair trial' " or where the error is such as to "seriously affect the fairness, integrity or public reputation of judicial proceedings" or where it can be fairly said "the instructional mistake had a probable impact on the jury's finding that the defendant was guilty."

Id. at 660, 300 S.E.2d at 378, (quoting United States v. McCaskill, 676 F.2d 995, 1002 (4th Cir.), cert. denied, 459 U.S. 1018, 103 S.Ct. 381, 74 L.Ed.2d 513 (1982) (footnotes omitted)). In short, this rule waives Rule 10(b)(2) and allows review of fundamental errors or defects in jury instructions affecting substantial rights, which were not brought to the attention of the trial court. See also State v. Brown, 312 N.C. 237, 321...