1. Evidence — hearsay — synopsis of defendant's statement — recorded recollection
A detective's synopsis of defendant's statement was correctly excluded from an assault prosecution where there was no showing that defendant had the required insufficient recollection, that the statement was necessary to refresh the officer's memory, or that the statement was inconsistent with testimony. N.C.G.S. § 8C-1, Rule 803(5).
A detective's synopsis of a nontestifying defendant's statement was not required to be admitted as the whole of the part after a detective testified about the same subject matter. The officer's testimony was based on his personal observations and no part of defendant's statement was offered as evidence.
A nontestifying defendant claiming self-defense was not deprived of the right to present his defense by the proper exclusion of a detective's synopsis of his statement to officers.
A defendant is not required to present evidence to be entitled to an instruction on self-defense, but the error in not instructing on self-defense in this voluntary manslaughter prosecution was not prejudicial because defendant was convicted of involuntary manslaughter, which does not involve intent and which is therefore not excused by self-defense.
A motion to dismiss a voluntary manslaughter charge (with an involuntary manslaughter conviction) was properly denied where the evidence, in the light most favorable to the State, showed that defendant shot the victim in the back as he was running away and immediately left with no regard to the victim.
A trial transcript was not corrected where it erroneously showed a conviction for voluntary manslaughter rather than involuntary manslaughter, but the verdict sheet and judgment were correct. Those are considered the official record, and a clerical error in the trial transcript will not prejudice defendant.
Judge GEER concurring.
Judge HUNTER dissenting.
EAGLES, Chief Judge.
Defendant Willard Alston was convicted of involuntary manslaughter and sentenced to 25 to 30 months of incarceration. On appeal, defendant argues that the trial court erred by (1) failing to admit a police detective's synopsis of defendant's statement into evidence; (2) failing to instruct the jury on the law of self-defense; and (3) denying defendant's motion to dismiss. Defendant also requests that the trial transcript be corrected to reflect that he was convicted of involuntary manslaughter instead of voluntary manslaughter. After careful consideration of the transcript, record and briefs, we find no prejudicial error.
The evidence presented tends to show the following. Eric "E" Newton dated Muriel "Poo Poo" Horne for approximately three years before his death. Newton had been released from the IMPACT drug rehabilitation program in November 2000 and moved in with his grandfather and uncle. As a condition of his probation, Newton was confined to his home between the hours of 7 p.m. and 7 a.m. during the week and 3 p.m. until 9 a.m. on weekends.
Newton and Horne continued their romantic relationship after Newton returned from the IMPACT program in November 2000 until some time after Christmas 2000. Horne stated that the romantic relationship ended because Newton was violent towards her. Horne continued to see Newton several times each week even after they stopped dating. Horne habitually set her alarm clock for 8 a.m. because Newton normally came to visit her when his house arrest ended in the morning. Horne became romantically involved with defendant in January 2001.
On 10 February 2001, Newton invited Horne to his home to spend the evening. Newton called Horne on the telephone to ensure that Horne was coming to visit him. Horne told Newton during the phone call that she did not have a babysitter for her children and did not know if she would be able to visit him. On the evening of 10 February, Horne dropped off her children at their father's home and went out on a date with defendant. Horne received a message from Newton on her answering machine when she returned from her date with defendant. Newton did not identify himself in the message, but Horne recognized his voice. Newton asked in his message why Horne "lied so much" and sounded upset. On 10 February 2001, defendant stayed overnight at Horne's house.
Shortly after 9 a.m. on 11 February 2001, Horne and defendant were awakened by Newton who was beating on Horne's front door. Horne had forgotten to set her alarm clock for 8 a.m. before she went to sleep the evening before. Horne got out of bed when she heard Newton hitting the door and put on some clothes. Horne told Newton that she had company and that Newton could not come in. Newton began kicking Horne's front door and knocked the door down. Newton saw defendant sitting on Horne's bed. Defendant was not dressed when Newton entered the house. Newton jumped on defendant and the two men began struggling on Horne's bed. Horne testified that she did not see either of the men holding a gun before they began fighting.
Horne backed away from the bedroom where defendant and Newton were fighting. Horne heard three shots fired in the bedroom. The men continued to struggle, then Newton ran out of Horne's house. Newton said something to Horne as he passed by her, but continued to run out of the house and did not stop. Horne did not know what Newton said to her. Horne did not see any blood on Newton or other evidence of an injury. Defendant got dressed and Horne drove him to a local convenience store. Horne commented that defendant had not been shot. As Horne and defendant left her house, Horne's neighbor, Marvin Rogers asked them if they shot Newton. Defendant replied that everything was alright.
Rogers testified that he was outside on the morning of 11 February walking his puppy. Rogers saw Newton knocking on Horne's door and heard her tell Newton he could not come in because she had company. Rogers observed Newton kick Horne's door down. Rogers heard yelling inside Horne's home, heard three shots and saw Newton run out of Horne's home. Rogers testified that when Newton emerged from Horne's house Newton was "drooped over." When defendant and Horne came out of Horne's house a few minutes later, Rogers asked them, "[y]'all shoot that boy?" Defendant replied, "[h]e will be all right." Defendant put on his shirt and left with Horne in Horne's car. When Horne returned home a few minutes later, defendant was not with her. Horne asked Rogers to look for Newton because Newton's van was still parked outside her home. Rogers found Newton dead approximately three houses away from Rogers's home. Newton had gunshot wounds in his right arm and chest area. A medical expert testified that the chest wound was the most probable cause of death.
Defendant's aunt gave Wilson police officers a handgun on the afternoon of 11 February 2001 and stated that it had been used in the shooting that morning. Later that evening, defendant turned himself in to police at his grandmother's house. Defendant was indicted for voluntary manslaughter. The jury convicted defendant of involuntary manslaughter. He was sentenced to a term of imprisonment from 25 to 30 months. Defendant appeals.
Defendant first argues that the trial court violated defendant's right to present a defense. Specifically, defendant contends that the trial court's refusal to admit a synopsis of defendant's statement given to police officers was reversible error. We disagree.
Hearsay is defined as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." G.S. § 8C-1, Rule 801(c) (2001). Here, defendant's statement regarding the confrontation with Newton given to Officer Hendricks outside of court was clearly hearsay. However, defendant argues that the statement to Hendricks falls within the recorded recollection exception to the hearsay rule, as described in G.S. § 8C-1, Rule 803(5):
A memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable him to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in his memory and to reflect that knowledge correctly. If admitted, the memorandum or record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party.
G.S. § 8C-1, Rule 803(5) (2001).
Use of an earlier recorded statement or memorandum is also appropriate if necessary to refresh the witness's recollection or if the prior statement is used to impeach courtroom testimony that is inconsistent with the earlier statement. See State v. Demery, 113 N.C. App. 58, 437 S.E.2d 704 (1993). Here, however, there was no showing that defendant had an insufficient recollection of events to testify as required by Rule 803(5) so that his statement could be used as substantive evidence. In addition, there was no evidence or argument presented during trial that the proffered statement was necessary to refresh the testifying officer's memory or that the statement was inconsistent with the officer's testimony or any other witness's testimony in court. The synopsis of defendant's statement was not admissible to impeach or corroborate defendant's in-court testimony, because defendant did not testify.
Defendant argues that the State may not admit part of defendant's statement without admitting the whole statement into evidence. See State v. Davis, 289 N.C. 500, 223 S.E.2d 296, vacated on other grounds, 429 U.S. 809, 50 L. Ed. 2d 69 (1976). However, in this case, the State did not offer any part of defendant's statement as evidence. The State's witness, Officer Hendricks, testified regarding the events and observations he made during his investigation. These observations necessarily concerned the same subject matter as the defendant's statement, but were based upon the officer's personal observations and therefore unrelated to the statement.
Defendant contends that the trial court's refusal to admit the officer's synopsis of defendant's statement denied defendant's right to present a defense. This argument is unpersuasive. The trial court does not deprive a criminal defendant of the right to present a defense by requiring that defendant follow the North Carolina Rules of Evidence. Here, nothing in the record or transcript indicates that the trial court prevented defendant from testifying on his own behalf or offering other witnesses or evidence. This assignment of error is overruled.
Defendant further assigns error to the trial court's failure to instruct the jury on the law of self-defense. Defendant argues that the trial court incorrectly reasoned that defendant was not entitled to the instruction because he had not presented evidence. Defendant contends that requiring a defendant to testify or otherwise present evidence before the jury may be instructed on self-defense violates a defendant's right to be free from compulsory self-incrimination. We agree that the reasons given by the trial court for refusing the instruction on self-defense were incorrect. However, in this case, the failure to give the self-defense instruction to the jury did not create prejudicial error.
A defendant does not have to testify or offer evidence in order for the jury to be instructed on the law of self-defense:
A defendant is entitled to an instruction on self-defense if there is any evidence in the record from which it can be determined that it was necessary or reasonably appeared to be necessary for him to kill his adversary in order to protect himself from death or great bodily harm. If, however, there is no evidence from which the jury reasonably could find that the defendant in fact believed that it was necessary to kill his adversary to protect himself from death or great bodily harm, the defendant is not entitled to have the jury instructed on self-defense.State v. Bush, 307 N.C. 152, 160, 297 S.E.2d 563, 569 (1982) (internal citations omitted). Therefore, if defendant does not present evidence, but based upon the State's evidence, the jury reasonably could find that the defendant in fact reasonably believed it necessary to kill his adversary to protect himself from death, the jury instruction on self-defense should be given. Here, the trial court's reasoning that the self-defense instruction should not be given because defendant failed to present any evidence was erroneous.
However, defendant was not prejudiced by the trial court's error. North Carolina law defines four different types of homicide as follows:
Murder in the first degree is the unlawful killing of a human being with malice and with premeditation and deliberation.
Murder in the second degree is the unlawful killing of a human being with malice but without premeditation and deliberation.
Voluntary manslaughter is the unlawful killing of a human being without malice and without premeditation and deliberation. . . .
Involuntary manslaughter is the unlawful killing of a human being without malice, without premeditation and deliberation, and without intention to kill or inflict serious bodily injury.State v. Norris, 303 N.C. 526, 529, 279 S.E.2d 570, 572 (1981) (citations omitted). Here, defendant was indicted for voluntary manslaughter. Voluntary manslaughter is considered an intentional crime in that the act that causes death required some degree of intent. See State v. Ray, 299 N.C. 151, 164, 261 S.E.2d 789, 797 (1980). Generally, a defendant may be convicted of voluntary manslaughter if (1) a killing occurs by reason of sudden anger or "heat of passion" that temporarily removes reason and malice or (2) a premeditated and deliberated first-degree murder or second-degree murder for which the defendant has an imperfect right to self-defense. See Norris, 303 N.C. at 529, 279 S.E.2d at 572. A defendant has the defense of perfect self-defense to voluntary manslaughter, first-degree murder or second-degree murder when all four of the following elements existed at the time of the killing:
(1) it appeared to defendant and he believed it to be necessary to kill the deceased in order to save himself from death or great bodily harm; and
(2) defendant's belief was reasonable in that the circumstances as they appeared to him at the time were sufficient to create such a belief in the mind of a person of ordinary firmness; and
(3) defendant was not the aggressor in bringing on the affray, i.e., he did not aggressively and willingly enter into the fight without legal excuse or provocation; and
(4) defendant did not use excessive force, i.e., did not use more force than was necessary or reasonably appeared to him to be necessary under the circumstances to protect himself from death or great bodily harm.Norris, 303 N.C. at 530, 279 S.E.2d at 572-73. If a defendant was the aggressor or used excessive force, the defendant would have the defense of imperfect self-defense. Norris, 303 N.C. at 530, 279 S.E.2d at 572-73. When a defendant is indicted for an intentional first or second-degree murder, after applying the imperfect right of self-defense, the defendant is still guilty of at least voluntary manslaughter. Norris, 303 N.C. at 530, 279 S.E.2d at 573. Our Supreme Court has held that self-defense instructions are not appropriate in all cases:
When asserted in response to a charge of intentional homicide such as second degree murder or voluntary manslaughter, a plea of self-defense is a plea of confession and avoidance. By it a defendant admits, for example, that he intentionally shot his assailant but that he did so justifiably to protect himself from death or great bodily harm.Ray, 299 N.C. at 164, 261 S.E.2d at 797. The Ray court went on to explain that a self-defense instruction was appropriate when the defendant had been charged with second-degree murder or voluntary manslaughter, but was not appropriate for involuntary manslaughter. See id. Here, the trial court should have granted defendant's request for a jury instruction on the law of self-defense related to the charge of voluntary manslaughter. However, the absence of a self-defense instruction on the voluntary manslaughter charge did not prejudice defendant because he was not convicted of voluntary manslaughter.
The trial court also instructed the jury on the lesser-included offense of involuntary manslaughter. The State presented evidence tending to show that defendant and Newton struggled in a bedroom with no other witnesses present in the bedroom. Horne testified that she did not observe that either of the men appeared to have a gun before they began fighting. Newton was wearing a coat when he entered Horne's house. Defendant was not wearing any clothes and in bed immediately before the struggle with Newton began. Horne also testified that she kept a gun in the bedroom where defendant and Newton struggled, but that she stored the gun behind the dresser. However, Horne's gun was still in place after the shooting occurred. Horne and Rogers both heard shots fired after the two men began struggling. Newton died from a gunshot wound, while defendant only suffered from scratches on his neck. From all the evidence, a reasonable juror could have concluded that Newton introduced a gun during the struggle with defendant and that defendant at some time handled that gun and shot Newton. Also, viewing all of this evidence, a jury could have reasonably concluded that defendant shot Newton in a criminally negligent or reckless manner during the struggle without forming the intent to assault or to kill Newton. However, self-defense, as an intentional act, could not serve as an excuse for the negligence or recklessness required for a conviction of involuntary manslaughter and no instruction on self-defense was required. Since defendant was convicted of the lesser-included offense of involuntary manslaughter, rather than the charged offense of voluntary manslaughter, the absence of an instruction on self-defense was not prejudicial error. This assignment of error is overruled.
Defendant also assigns error to the trial court's denial of defendant's motion to dismiss at the close of all evidence. Defendant argues that the State failed to prove all elements of voluntary or involuntary manslaughter. Defendant contends that the evidence presented the complete defense of self-defense, which excused any crime committed by defendant. We disagree.
Upon a motion to dismiss, the trial court must view the evidence in the light most favorable to the State. See State v. Earnhardt, 307 N.C. 62, 296 S.E.2d 649 (1982). In this light, the evidence shows that defendant shot Newton in the back as he was running away from defendant. Defendant left the scene of the shooting immediately, with no regard for an injured Newton. The evidence in the light most favorable to the State does not give rise to a claim of self-defense for the voluntary manslaughter charge. Therefore, it was within the trial court's discretion to deny defendant's motion to dismiss. This assignment of error is overruled.
Defendant's final argument is that the trial transcript must be corrected. The transcript incorrectly reflects that defendant was convicted of voluntary manslaughter, while the judgment and verdict sheet correctly indicate that defendant was convicted of involuntary manslaughter. Defendant argues that this discrepancy may cause some prejudice to defendant during his incarceration or in the future when defendant's prior record level is calculated. We disagree. The judgment and commitment sheet are considered the official record of defendant's conviction. The information on the judgment is used for calculating defendant's prior record level or period of incarceration. If the judgment and commitment sheet contains the correct information, as it does here, defendant will suffer no prejudice from any clerical error in the trial transcript. Defendant's request to amend the trial transcript is denied.
For the reasons stated, we find no prejudicial error.
No prejudicial error.
Judge GEER concurs in the result with a separate opinion.
Judge HUNTER dissents.
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