State v. Pate

302 S.E.2d 286 (1983)

STATE of North Carolina v. Ralph PATE.

No. 8220SC888.

Court of Appeals of North Carolina.

May 3, 1983.

*287 Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. William F. Briley, Raleigh, for the State.

Haynes, Baucom, Chandler, Claytor & Benton by W.J. Chandler, Charlotte, for defendant-appellant.

EAGLES, Judge.

Defendant has assigned error to several evidentiary rulings. He argues that the trial judge erred in excluding evidence pertaining to prior confrontations between the Pates and the Flowes. Since defendant has failed to include in the record what the witnesses would have testified to in this regard, we are precluded from any review on appeal. State v. Misenheimer, 304 N.C. 108, 282 S.E.2d 791 (1981). For the same reason we also do not reach defendant's argument concerning prejudice in the exclusion of certain testimony by the witness Dale Pate. Id.

*288 Defendant next objects to the form of certain questions propounded by the State which he contends assumed facts not in evidence and called for conclusions. He does not argue that any answers elicited by these questions were prejudicial nor do we find them to be prejudicial. Upon examining the challenged questions, we find no basis to believe that there is a reasonable possibility that a different result would have been reached at trial had the alleged error in question not been committed. G.S. 15A-1443(a); State v. Corbett and State v. Rhone, 307 N.C. 169, 297 S.E.2d 553 (1982). The question propounded to Officer Rollins concerning his previous experience in arresting suspects, while irrelevant, did not amount to prejudicial error. Id.

We find no merit in defendant's contention that there was error in allowing the arresting officer to testify as to a statement made by defendant while in custody concerning the whereabouts of the murder weapon. Evidence of the same import was thereafter elicited by defense counsel on cross-examination of this same witness. "When evidence is admitted over objection and the same evidence has been previously admitted or is later admitted without objection, the benefit of the objection is lost." Id. at p. 179, 297 S.E.2d at 560. Similarly, there is no error in the overruling of defendant's objections to statements by police officers regarding the demeanor of defendant's daughter on the night of the arrest since this evidence was brought out during other testimony without objection. Id.

In his final assignment of error defendant contends the trial judge erred in failing to instruct the jury on self-defense. A defendant is entitled to an instruction on self-defense if there is evidence in the record to establish that it was necessary or that it reasonably appeared to the defendant to be necessary to kill the victim in order to protect himself from death or great bodily harm. State v. Spaulding, 298 N.C. 149, 257 S.E.2d 391 (1979). However, if the court determines as a matter of law that there is insufficient evidence in the record from which a jury could determine that the defendant reasonably could have formed such a belief, then the issue should not be submitted for consideration. State v. Bush, 307 N.C. 152, 297 S.E.2d 563 (1982). The evidence in the record before us does not necessitate the submission of a self-defense instruction to the jury. Although defendant stated that he had a reasonable apprehension of harm to himself when he heard the shouted words "got a gun," the undisputed evidence is that he shot an unarmed man in his own yard from a moving car. There is no evidence in the record that defendant thought he saw a weapon in the possession of the deceased or that the deceased was close enough to him to do him great bodily harm. This assignment of error is overruled.

We find that the defendant received a fair trial free of prejudicial error.

No error.

VAUGHN, C.J., concurs.

WEBB, J., dissents.

WEBB, Judge, dissenting:

I dissent from the majority. I believe there was sufficient evidence of self-defense that it should have been submitted to the jury.