State v. Ray

• Citation: 299 N.C. 151,261 S.E.2d 789
• Decision Date: 01 February 1980
• Docket Number: No. 19,19
• Court: United States State Supreme Court of North Carolina
• Parties: , 19 A.L.R.4th 841 STATE of North Carolina v. Jimmy Darrell RAY.

Page 789

261 S.E.2d 789

299 N.C. 151, 19 A.L.R.4th 841

STATE of North Carolina v. Jimmy Darrell RAY.

No. 19.

Supreme Court of North Carolina.

Feb. 1, 1980.

Rufus L. Edmisten, Atty. Gen., by Jo Anne Sanford, Asst. Atty. Gen., Raleigh, for the state.

George R. Barrett, Raleigh, Attorney for defendant appellant.

EXUM, Justice.

Defendant was tried on an indictment charging him with the first degree murder of Larry Caudle. At trial Judge Canaday at the close of all the evidence dismissed the charge of first degree murder and submitted to the jury alternative verdicts of second degree murder, manslaughter, involuntary manslaughter, not guilty, and not guilty by reason of self-defense and defense of another. All the evidence, including defendant's own testimony, demonstrated that defendant intentionally shot Caudle and the wound so inflicted caused Caudle's death. The defense rested entirely on the theory that defendant's shooting of Caudle was justified on the grounds of self-defense and defense of defendant's brother, Donald Ray.

The only question properly presented to us ¹ is whether it was error prejudicial to defendant to submit an alternative verdict of involuntary manslaughter. We conclude that under the circumstances of this case it was. The Court of Appeals relied on the general rule that submission of a lesser included offense not supported by the evidence is error nonprejudicial to a defendant. It therefore upheld defendant's conviction. We recognize the general rule but conclude that it has no application to the situation here presented. The decision of the Court of Appeals is reversed; the judgment of the trial court is vacated; and the defendant is ordered discharged.

The only witnesses to this homicide were defendant and his brother. The state called defendant's brother. It also offered defendant's out-of-court statements to investigating law officers. Defendant testified in his own behalf.

Defendant's brother, Donald Ray, testified essentially as follows: On 31 March 1975 at approximately 2:00 a. m. defendant arrived at Donald's trailer on the "outskirts of Wake Forest." Defendant asked Donald to accompany him to 713 North Main Street in Wake Forest where defendant lived with his and Donald's father. Donald agreed. When they arrived, defendant asked Donald to go in the house and get his pistol. Donald did and returned the pistol to defendant who was still sitting in the car. ² Defendant then told Donald that "someone was coming to kill him (defendant)" and that Donald should go in the house. Donald returned to the house. Three or four minutes later Caudle drove up, got out of his car with a shotgun in his hand, went to defendant's car and told defendant he was going to "blow his brains out." Donald, still in the house, hollered at Caudle, "Leave my brother alone." Caudle replied, "If I don't kill him, I'll kill you." Caudle put down the shotgun and approached the house with a pistol in his hand. Donald closed the door. Caudle shot twice through the door. One shot wounded Donald in the left hand. Then a third shot came through the window. Donald ran back to his father's bedroom. He heard one or two more shots and then heard the defendant holler. Donald and his father, Jessie Ray, went outside to defendant and all three traveled in defendant's car to the police station where an ambulance was summoned for Donald.

Willis Rogers, a Wake Forest policeman at the time of the incident, testified for the state that when defendant came to the police station defendant stated that Caudle had shot his brother in the hand. Rogers stated, "I asked Jimmy Ray where Larry Caudle was and he said he didn't know. He said he emptied his gun when he was crossing the highway. Didn't know whether he hit him or not, but hoped goddamit he killed him." Rogers went to defendant's residence to investigate the incident. He found Caudle's body lying between two vehicles across the highway from defendant's residence and also found blood on the porch and in the yard. He was able "to track" the blood from across the highway back to the house. Defendant returned to the scene and offered no resistance when he was taken into custody.

The pathologist who performed the autopsy on Caudle testified for the state that he found several bullet wounds but that the cause of death was "internal bleeding into the chest as a result of a through and through bullet wound in the left chest. Entrance was from the back." He said the deceased could have run the 256 feet from the house to where his body was found, even after the fatal wound was inflicted, "as the heart was not damaged and the deceased could walk, run, or do some activity in a period of a number of seconds." The deceased's blood alcohol content was 240 milligrams or .24 grams percent.

The state also offered in evidence the written, signed out-of-court statement made by defendant to investigating officers. According to this statement defendant and Caudle had been close friends for many years and had never had any trouble with each other. Defendant and Caudle had been together earlier in the evening on the day in question. An incident occurred which made defendant angry with Caudle and they separated. Later they got in touch with each other on their automobile citizens' band radios. Caudle began to curse and defendant told him "to come up to my house and let's talk." The statement then continued:

"Larry said he would be there in a few minutes. Got there. Came out of car with shotgun and pointed it at my head. My brother called to him and then he started shooting at my brother. Shot into my house and hit my brother. Then called him and shot him and did not think I hit him then.

I thought he was going to shoot me so I shot him two more times. Then he ran across road. When he ran off I shot his car in the front. Shot car so he could not leave on his car. Larry was wild, Had never seen him act that way. Been close friends many years. Never no trouble before. Wish he had shot me for I have nothing to lose and he has wife and three kids. Knew he carried the .25 caliber always."

Albert Caudle, the deceased's father, testified for the state that on the evening in question his son woke him up getting a shotgun from the house. He said that his son "went out and didn't speak a word . . . . I guess he was mad. I didn't try to stop him. I just asked him what the trouble was and followed him to the car. . . . I figured it was trouble when he got his gun. . . . His wife was trying to stop him but he never spoke to her. He did knock her down. She tried to stop him but she got hold of the gun and he whirled around and she fell backwards. She was trying to stop him . . . . I figured my son and Jimmy Ray to be good friends. I never know them to have any harsh words. My son had a CB radio and Jimmy Ray had a CB radio and they talked back and forth on the radio before. Larry started to tell me something but a voice came over the CB radio, and said, you son-of-a-bitch, ain't you coming over here. Then Larry said, I'll be there in a minute or two."

At the close of the state's evidence defendant moved for dismissal on the ground that all the evidence showed that he shot Caudle in defense of himself and his brother. The motion was denied.

Defendant testified that on the evening in question at approximately 11:00 p. m. he was driving on Main Street in Wake Forest when he met Caudle who got into defendant's car. Caudle had been drinking. They went to Rudy Horton's, "a beer joint," where Caudle went in. After 15 to 20 minutes Caudle returned with two men who were not known to defendant. The three of them got into defendant's car and they all rode to the Community Grocery in Wake Forest. There Caudle got out and did not return. After 10 minutes defendant told the two men that he was going to leave. One tried to stop him but defendant left anyway. At their request defendant returned the men to Horton's. On his way home defendant heard Caudle speaking on the CB radio. Defendant broke in and asked Caudle where he had gone at the Community Store. Caudle didn't answer. Defendant asked why Caudle got out of the car and "left me like that." He told Caudle he wanted to see him. Caudle became angry, started cursing, and threatened defendant. Caudle was "cussing on the radio, something I never heard him do and I knew he was mad and that he carried a gun." Defendant then drove to his brother's house.

Defendant and his brother then returned to defendant's residence. Defendant said, "I was getting my wheelchair out to get out of the car when Bubba (defendant's brother) brought me the gun. My wheelchair was setting on the ground. I had not put my pulley in yet. I was getting ready to get in the wheelchair when Larry Caudle came up. He slid into the yard sideways. He got out of his car with a shotgun and squatted down behind his door and was aiming the shotgun toward me and then he got up and came over to my car and stuck the gun in the window right in my face and told me he was gonna blow my damn head off.

"Bubba was standing in the door with the door partially opened. He told Larry to leave me alone. Larry set the shotgun down and leaned up against my car and ran over there with his pistol. He took his pistol out of his pocket and told Bubba he would take care of him first. He ran up on the porch. Bubba slammed the door and Larry ran against the door and tried to go in the house, I reckon.

"Larry shot through the door and I heard my brother holler. I called Larry's name with my gun in my hand. He didn't pay me no mind. He shot again. Then I shot at him. I aimed down low the first time because I knowed it would kill him if I shot him higher. After I shot him he turned toward me. He still had his gun in his hand. As soon as he turned in my direction I fired twice. After I fired he ran in front of my car, crossed the street and the last time I ever saw him was over at the corner of the building at the...