Citation Codes

Equivalent Citations

citation codes

Docket Number

No. 7419SC405

Attorney(S)

Attorney General Robert Morgan by Associate Attorney Robert P. Gruber and Associate Attorney Norman Sloan for the State. S. H. McCall, Jr., by Carl W. Atkinson for defendant appellant.

See more information ...

Smart Summary

State of North Carolina v. Margie Butler, No. 7419SC405 (N.C. Ct. App. filed June 5, 1974)

Factual and Procedural Background

The defendant, Margie Butler, was indicted for assault with a deadly weapon with intent to kill, inflicting serious injury not resulting in death. The State's evidence described an incident on April 5, 1973, at Broadway's Grill in Troy, North Carolina, in which Carol Whitaker encountered the defendant, who allegedly pulled a knife, struck Mrs. Whitaker in the shoulder (resulting in bleeding), and the two struggled over the knife. Two men separated them after the struggle. The defendant's version was that Mrs. Whitaker approached with her hand in her sweater, the defendant pulled a knife in response, they struggled and the defendant was thrown to the floor, and the defendant then began using the knife.

At trial the defendant was convicted of assault with a deadly weapon inflicting serious injury and sentenced to three years' custody as a committed youthful offender. The defendant appealed from the verdict and sentence to the North Carolina Court of Appeals.

Legal Issues Presented

Whether testimony about prior threats was admissible under G.S. 14-33.1 when the defendant asserted self-defense, given that the offered testimony did not show the threats came from the alleged victim.
Whether the trial court erred by failing to charge the jury on communicated threats as they relate to apparent necessity and the amount of force a defendant might lawfully use in self-defense.
Whether the trial court erred by failing to instruct that a reasonable doubt may be based on a lack of evidence, in the absence of a particular qualifying definition of reasonable doubt.
Whether the trial court erred by failing to define the term "aggressor" when explaining the limitations of the self-defense excuse.

Arguments of the Parties

Defendant's Arguments

The defendant contended it was error to sustain the State's objection to her testimony regarding threats she claimed to have received, asserting that such prior threats were relevant under G.S. 14-33.1 to support a plea of self-defense.
The defendant argued the court erred by not charging the jury on communicated threats in relation to apparent necessity and the force which might lawfully be used to repel an assault by Mrs. Whitaker.
The defendant argued the reasonable-doubt instruction was inadequate because the court did not tell the jury that a reasonable doubt may be based on a lack of evidence.
The defendant argued the trial court erred by failing to define "aggressor" in its instructions concerning when self-defense is not available.

State's Arguments

The opinion does not contain a detailed account of the State's opposing legal arguments; the record as summarized focuses on the State's evidence at trial and the defendant's assigned errors on appeal.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
State v. Clontz, 6 N.C. App. 587, 170 S.E.2d 624 (1969)	The principle that G.S. 14-33.1 (admissibility of prior threats when self-defense is pleaded) applies only when evidence of the threats is properly presented and not hearsay.	The court relied on Clontz to hold the defendant's testimony about threats inadmissible because it was hearsay and there was no showing the alleged threats came from Mrs. Whitaker; therefore G.S. 14-33.1 did not authorize admission of that testimony as offered.
State v. Braxton, 230 N.C. 312, 52 S.E.2d 895 (1949)	The rule that when a trial court defines "a reasonable doubt" using the formulation "a doubt based upon reason and common sense and growing out of the evidence in the case," it must also instruct that such doubt may arise "from the lack of evidence or from its deficiency."	The court cited Braxton to explain that the limiting rule applies only when the quoted formulation is used; because the trial court did not use that formulation, there was no obligation to add the separate phrase about lack or deficiency of evidence.
State v. Bryant, 231 N.C. 106, 55 S.E.2d 922 (1949)	Authority for an alternative formulation of "reasonable doubt" as "not a vain, imaginary or fanciful doubt, but a sane, rational doubt" and that proof beyond a reasonable doubt requires the jury be fully satisfied or convinced to a moral certainty.	The court quoted the Bryant language when describing the trial court's reasonable-doubt charge and treated that charge as constitutionally and legally sufficient in the circumstances of this case.
State v. Jennings, 276 N.C. 157, 171 S.E.2d 447 (1970)	The principle that words of common usage (such as "aggressor") need not be specially defined in jury instructions in the absence of a request for special instructions.	The court applied Jennings to hold that the trial court did not err by failing to define "aggressor" in its self-defense charge because the term is of common usage and no special instruction was requested.

Court's Reasoning and Analysis

The court began by summarizing the conflicting testimony: the State's witnesses described the defendant pulling a knife and injuring Mrs. Whitaker, while the defendant described arming herself only after perceiving Mrs. Whitaker as reaching into a sweater and asserting self-defense.

On admissibility of testimony about prior threats, the court examined G.S. 14-33.1, which permits evidence of former threats by the person alleged to have been assaulted when the defendant pleads self-defense and the threats were communicated before the altercation. The challenged testimony was that the defendant "had received conversation" about accusations and that "she was going to shoot me" on the day in question. The court characterized this testimony as hearsay and emphasized the absence of any showing that the alleged threats came from Mrs. Whitaker. Relying on State v. Clontz, the court concluded G.S. 14-33.1 did not authorize admission of these statements because the statutory principle applies only after evidence of the threats has been properly presented. The court noted, however, that it had sustained the State's objection without striking the testimony or instructing the jury to disregard it, meaning the jury heard the testimony regardless.

Regarding the jury charge, the court observed that the defendant had not taken exceptions at trial nor specifically identified the portions of the charge she complained of on appeal, which would ordinarily forfeit review. The court nevertheless addressed the merits. The court concluded there was no error in declining to charge on communicated threats in relation to apparent necessity and permissible force because there was no competent evidence that Mrs. Whitaker had communicated threats to the defendant.

On the reasonable-doubt instruction, the court explained the controlling principle from State v. Braxton: a trial court that uses the particular formulation "a reasonable doubt is a doubt based upon reason and common sense and growing out of the evidence in the case" must add the language that a reasonable doubt may arise "from the lack of evidence or from its deficiency." Here the trial court did not use the Braxton formulation; instead, the charge described a reasonable doubt as "not a vain, imaginary or fanciful doubt, but a sane, rational doubt" and stated the prosecution must prove guilt beyond a reasonable doubt so the jury must be "fully satisfied, entirely convinced or satisfied to a moral certainty," quoting State v. Bryant. Because the Braxton trigger language was not used, the court held there was no requirement to add an instruction that a reasonable doubt may be based on lack of evidence, and thus no error occurred.

Finally, on the failure to define "aggressor," the court found the self-defense instructions themselves were correct. The court relied on the principle from State v. Jennings that common-usage words need not be defined in the absence of a request for special instructions, and therefore the trial court's omission to define "aggressor" was not erroneous.

The court noted it had considered other assignments of error raised by the defendant and found them without merit, concluding the defendant received a fair trial free from prejudicial error.

Holding and Implications

HOLDING: The Court of Appeals affirmed the trial court's judgment and held No error.

Direct implications:

The defendant's conviction for assault with a deadly weapon inflicting serious injury and the three-year sentence as a committed youthful offender stand.
The exclusion (sustaining of objection) of the defendant's hearsay testimony about prior threats was affirmed, because the testimony did not show the threats were made by the prosecuting witness and thus G.S. 14-33.1 did not apply.
No reversible error was found in the trial court's refusal to give an instruction on communicated threats (absent competent evidence), in the form of the reasonable-doubt instruction actually given, or in the failure to define the term "aggressor" when no special instruction was requested.

Broader implications: The opinion applies established North Carolina precedents and statutory construction (G.S. 14-33.1) without announcing new legal rules. The court reaffirmed that statutory admission of prior threats requires competent evidence connecting those threats to the alleged assailant, that the Braxton rule about expanding a reasonable-doubt definition is triggered only when the specific Braxton phrasing is used, and that common-usage terms in jury instructions need not be defined absent a request.

Show full summary ...

STATE OF NORTH CAROLINA v. MARGIE BUTLER

1. Assault and Battery 13 — self-defense pleaded — evidence of prior threats — inadmissibility The principle of G.S. 14-33.1 that prior threats are admissible in assault cases where the defendant claims self-defense did not apply in this case since there was no evidence that threats allegedly made to defendant were made by defendant's victim.

2. Assault and Battery 15 — failure to charge on communicated threats — no error The trial court did not err in failing to charge on communicated threats as they relate to apparent necessity and on the force defendant might lawfully have used to repel the alleged assault by the prosecuting witness, since there was no competent evidence of any communicated threats made by the prosecuting witness.

3. Criminal Law 112 — charge on reasonable doubt The trial court did not err in failing to charge that a reasonable doubt may be based on a lack of evidence since it is required that such instruction be given only in conjunction with the instruction that "a reasonable doubt is a doubt based upon reason and common sense and growing out of the evidence in the case."

4. Assault and Battery 15; Criminal Law 119 — failure to define the term aggressor in instructions — no error The trial court did not err in failing to define the term "aggressor" when he charged the jury that self-defense was only an excuse if the defendant was not the aggressor or if she voluntarily entered the fight but thereafter attempted to abandon the fight and gave notice to her opponent of her intention to abandon the fight, since "aggressor" is a word of common usage, and in the absence of a request for special instructions such words need not be defined.

Heard in the Court of Appeals 14 May 1974.

The defendant was charged in a bill of indictment with assault with a deadly weapon with the intent to kill, inflicting serious injury not resulting in death. The State's evidence tended to show that on 5 April 1973 one Carol Whitaker entered Broadway's Grill in Troy, North Carolina, to look for her nephew. On the way in, Mrs. Whitaker was warned that Margie Butler, who apparently had been seen with Mrs. Whitaker's husband in the past, was downstairs. When Mrs. Whitaker got downstairs, the defendant pulled something out of her chest and ran into Mrs. Whitaker. Mrs. Whitaker grabbed the defendant's wrist and noticed she had a knife and that blood was gushing from her [Mrs. Whitaker's] shoulder. The parties then struggled over the knife and fell to the floor with the defendant at one point saying, "Take it, bitch, if you can." and "I'll kill you." Two men in the grill then stopped the fight by pulling the parties apart.

The defendant's evidence tended to show that when Mrs. Whitaker came down the steps, she started across the room towards the defendant with her hand in her sweater. The defendant figured Mrs. Whitaker had something, so the defendant pulled her own knife. Mrs. Whitaker grabbed the defendant, they struggled and the defendant was thrown to the floor. It was then that the defendant began using the knife. From a verdict of guilty of assault with a deadly weapon inflicting serious injury and a sentence of three years in the custody of the Commissioner of Corrections as a committed youthful offender, the defendant appealed.

CAMPBELL, Judge.

The defendant contends that it was error for the trial court to sustain an objection to her testimony as to threats she had received. G.S. 14-33.1 provides:

"Evidence of former threats upon plea of self-defense. — In any case of assault, assault and battery, or affray in which the plea of the defendant is self-defense, evidence of former threats against the defendant by the person alleged to have been assaulted by him, if such threats shall have been communicated to the defendant before the altercation, shall be competent as bearing upon the reasonableness of the claim of apprehension by the defendant of bodily harm, and also as bearing upon the amount of force which reasonably appeared necessary to the defendant, under the circumstances, to repel his assailant."

The testimony in question was as follows:

"I had received conversation about the fact or accusations that I had been dating him. I have received threats. On that very day all that happened I had heard, right when I was getting off the school bus, that she was going to shoot me.

MR. ROBERTS: The State objects, your Honor.

THE COURT: Sustained."

The testimony of the defendant was hearsay. There was no showing that the alleged threats came from Mrs. Whitaker. The principle of G.S. 14-33.1 that prior threats are admissible in assault cases where the defendant claims self-defense does not apply until the evidence of threats is properly presented. State v. Clontz, 6 N.C. App. 587, 170 S.E.2d 624 (1969). We would point out that the trial court did not strike the objected to testimony or instruct the jury to disregard it, and thus defendant had the benefit of it anyway.

The defendant next assigns as error certain portions of the charge. No exceptions appear in the record and the defendant has not specifically identified those portions of the charge which she finds objectionable. This would be grounds for overruling defendant's assignments of error. 1 Strong, N.C. Index 2d, Appeal and Error, Sec. 31 (1967). However, we have decided to consider the merits. Defendant contends that it was error for the trial court to fail to charge on communicated threats as they relate to apparent necessity and what force defendant might lawfully have used to repel the alleged assault by Mrs. Whitaker. However, there was no competent evidence of any communicated threats made by the prosecuting witness and no charge on this point was warranted.

Defendant further contends that the trial court erred in its definition of "reasonable doubt" in that the court did not charge that a reasonable doubt may be based on a lack of evidence. No error was committed in the instant case for the judge did not charge "that a reasonable doubt is a doubt based upon reason and common sense and growing out of the evidence in the case." It is when those words are used that it is error not to go further and add "or the lack of evidence or from its deficiency." State v. Braxton, 230 N.C. 312, 314, 52 S.E.2d 895, 897 (1949). The trial court fully charged on reasonable doubt in this case as follows:

" . . . A reasonable doubt is not a vain, imaginary or fanciful doubt, but a sane, rational doubt. The proof beyond a reasonable doubt means that you must be fully satisfied, entirely convinced or satisfied to a moral certainty of the defendant's guilt." State v. Bryant, 231 N.C. 106, 55 S.E.2d 922 (1949).

Finally, the defendant assigns as error the failure of the trial court to define the term "aggressor" when he charged the jury that self-defense was only an excuse if the defendant was not the aggressor or if she voluntarily entered the fight but thereafter attempted to abandon the fight and gave notice to her opponent of her intention to abandon the fight. The trial court's charge on self-defense was correct. The use of the undefined term "aggressor" was not error as it is a word of common usage and in the absence of a request for special instructions such words need not be defined. State v. Jennings, 276 N.C. 157, 171 S.E.2d 447 (1970).

We have considered defendant's other assignments of error and find them without merit. Defendant had a fair trial free from prejudicial error.

No error.

Chief Judge BROCK and Judge BRITT concur.

STATE v. BUTLER