State v. Watkins

• Citation: 196 S.E.2d 750,283 N.C. 504
• Decision Date: 01 June 1973
• Docket Number: No. 53,53
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Harold Legusta WATKINS.

Page 750

196 S.E.2d 750

283 N.C. 504

STATE of North Carolina v. Harold Legusta WATKINS.

No. 53.

Supreme Court of North Carolina.

June 1, 1973.

Joseph G. Davis, Jr., Rockingham, for defendant appellant.

Robert Morgan, Atty. Gen., and Howard P. Satisky, Asst. Atty. Gen., for the State of North Carolina.

HUSKINS, Justice:

The failure of the trial judge to inform the jury that a conviction of murder in the first degree would result in a mandatory sentence of death constitutes defendant's first assignment of error.

The jury returned a verdict of guilty of murder in the first degree with recommendation of mercy. Defendant contends that had the jury known a sentence of death would be pronounced notwithstanding the mercy recommendation it would not have convicted him of murder in the first degree.

For reasons hereinafter stated, the death sentence pronounced in this case must be vacated and a life sentence pronounced in lieu thereof. In light of that fact, this assignment is overruled without discussion.

The propriety of informing the jury of the amount of punishment which a verdict of guilty will empower or require the judge to impose was explored in depth by Justice Sharp, writing for the Court, in State v. Rhodes, 275 N.C. 584, 169 S.E.2d 846 (1969). The rule is stated in the following quotation from that case:

'In this jurisdiction, except in one class of cases, the presiding judge fixes the punishment for a convicted defendant within the limits provided by the applicable statute. The exception is capital cases in which the jury may reduce the penalty from death to life imprisonment. G.S. 14--17 (murder in the first degree); G.S. 14--21 (rape); G.S. 14--52 (burglary in the first degree); G.S. 14--58 (arson). In all other instances, the jury has performed its function and discharged its duty when it returns its verdict of guilty or not guilty. (Citations omitted)

'The amount of punishment which a verdict of guilty will empower the judge to impose is totally irrelevant to the issue of a defendant's guilt. It is, therefore, no concern of the jurors.'

Since 18 January 1973, the law enunciated in Rhodes has become, and is now, applicable in all cases without exception, including capital cases because juries in this State no longer have the discretionary power to reduce the penalty in capital cases from death to life imprisonment. State v. Waddell, 282 N.C. 431, 194 S.E.2d 19 (decided 18 January 1973).

Defendant contends the court erred in allowing the solicitor to propound leading questions. His second assignment is based on exceptions to the following questions:

1. 'Did you see the defendant, Harold Legusta Watkins, about that time?'

2. 'Was Ingram doing anything at all to Watkins at this time?'

3. 'At the time he shot Lee Edward Ingram, was Lee Edward Ingram doing anything at all to Watkins?'

4. 'Did you see him load it again?'

These questions do not necessarily suggest the answer desired although all of them could be answered yes or no. Be that as it may, '(t)he allowance of leading questions is a matter entirely within the discretion of the trial judge, and his rulings will not be reviewed on appeal, at least in the absence of a showing of abuse of discretion.' Stansbury, N.C. Evidence § 31 (2d ed. 1963); State v. Frazier, 280 N.C. 181, 185 S.E.2d 652 (1972); State v. Harris, 222 N.C. 157, 22 S.E.2d 229 (1942); State v. Buck, 191 N.C. 528, 132 S.E. 151 (1926). No abuse of discretion is shown and no prejudice to defendant is discernible. Defendant's second assignment is therefore overruled.

Defendant's third assignment of error is grounded on the failure of the court to instruct the jury on the right of self-defense.

Where the evidence is insufficient to invoke the doctrine of self-defense, the trial judge is not required to instruct the jury thereon. State v. Freeman, 275 N.C. 662, 170 S.E.2d 461 (1969); State v. McLawhorn, 270 N.C. 622, 155 S.E.2d 198 (1967); State v. Chavis, 80 N.C. 353 (1879). Indeed, it would be error to do so. State v. Johnson, 278 N.C. 252, 179 S.E.2d 429 (1971).

On the other hand, where defendant's evidence is sufficient to warrant a charge on self-defense, the instruction must be given even though the State's evidence is contradictory. State v. Hipp, 245 N.C. 205, 95 S.E.2d 452 (1956); State v. Greer, 218 N.C. 660, 12 S.E.2d 238 (1940). In resolving this question the facts are to be interpreted in the light most favorable to defendant. State v. Finch, 177 N.C. 599, 99 S.E. 409 (1919). No special prayer for the instruction need be given. State v. Todd, 264 N.C. 524, 142 S.E.2d 154 (1965); State v. Wagoner, 249 N.C. 637, 107 S.E.2d 83 (1959).

Applying the foregoing principles, we hold that the evidence when considered in the light most favorable to defendant did not warrant an instruction on self-defense. In essence, defendant testified that he went after the shotgun so he could discuss the apparent enmity of deceased toward him on an equal basis and without fearing for his own safety. 'I figured if I had a gun, I would have a better chance to talk with him and tell him to leave me alone, than without it.' He alighted from the truck with gun in hand and crossed the street to the sidewalk on the other side with the gun pointed toward the ground. He saw deceased, walked toward him, stopped five or six feet from him, and called his name. Deceased turned and faced defendant. Defendant said, 'Mule why do you and Herman want to fight me, man?' Deceased then started walking toward defendant with his hands in his back pockets. He threw up his arms and said, 'Man I don't mean no harm--we don't mean no harm.' Immediately after making that statement he lunged at defendant with arms outstretched. At that moment the shotgun was still pointed toward the ground, but after the lunge, 'I throwed the gun up . . . and it shot. I don't know for sure if I pulled the trigger, I didn't mean to pull the trigger, I meant to scare him to keep him back off of me.' Defendant saw no weapon in possession of the deceased and none was found upon his body.

At most, defendant's testimony makes out a non-felonious assault upon defendant by deceased. Assuming the truth of such evidence, it afforded defendant no legal basis for the intentional use of deadly force under the guise of self-defense. The law does not sanction the use of deadly force to repel simple assaults. State v. Ellerbe, 223 N.C. 770, 28 S.E.2d 519 (1944); State v. Dills, 196 N.C. 457, 146 S.E. 1 (1929).

Nor does the State's evidence show self-defense. The State's witness Staton testified that defendant walked up to the deceased, said 'Say what you said before,' then raised the gun and shot him before Ingram said anything else. The State's witness Mrs. McDonald testified that 'the defendant came up. Ingram was getting ready to turn around when the defendant says, 'Say it now what you said before,' and Ingram got out of the car, and he was turning around; and he out his hand up and said, 'Hold it, man, hold it,' and the defendant shot him.'

Thus, the State's evidence shows defendant shot deceased in cold blood, without provocation, under circumstances in which no reasonable man would have felt any apprehension of great bodily harm. Such evidence affords no basis whatsoever for an instruction on self-defense. See State v Johnson, supra (278 N.C. 252, 179 S.E.2d 429).

One who is an aggressor, or one who enters a fight voluntarily without lawful excuse, may not plead self-defense when he slays his adversary. State v. Randolph, 228 N.C. 228, 45 S.E.2d 132 (194...