State v. Southern

322 S.E.2d 617 (1984)

STATE of North Carolina v. James Robert (Dick) SOUTHERN.

No. 8317SC1291.

Court of Appeals of North Carolina.

December 4, 1984.

*619 Atty. Gen. Rufus L. Edmisten by Associate Atty. Michael Smith, Raleigh, for the State.

George B. Daniel, Yanceyville and by Ronald M. Price, Madison, for defendant-appellant.

ARNOLD, Judge.

Defendant contends that the trial court erred in improperly sentencing him, in misstating the law when instructing the jury on self-defense, in failing to reinstruct the jury on self-defense, and in admitting evidence of defendant's statements over objection and without a proper voir dire. We find no error in the guilt phase of the trial. We find, however, that in the sentencing phase the trial court did err, and that defendant is therefore entitled to a new sentencing hearing.

Defendant contends that the trial court's reliance on prior convictions where prayer for judgment had been continued to find an aggravating circumstance pursuant to G.S. 15A-1340.4(a)(1)(o) amounted to a denial of due process and a fair sentencing hearing. We agree.

The trial court found the statutory element of aggravation under G.S. 15A-1340.4(a)(1)(o): "[t]he defendant has a prior conviction or convictions for criminal offenses punishable by more than 60 days confinement." The definition of "prior conviction" appears in G.S. 15A-1340.2(4):

A person has received a prior conviction when he has been adjudged guilty of or has entered a plea of guilty or no contest to a criminal charge, and judgment has been entered thereon and the time for appeal has expired, or the conviction has been finally upheld on direct appeal. (Emphasis added.)

Thus, an offense is a "prior conviction" under the Fair Sentencing Act only if the judgment has been entered and the time for appeal has expired, or the conviction has been upheld on appeal. When an accused is convicted with prayer for judgment continued, no judgment is entered, see State v. Thompson, 267 N.C. 653, 148 S.E.2d 613 (1966), and no appeal is possible (until judgment is entered). Such a conviction therefore may not support a finding of an aggravating circumstance under G.S. 15A-1340.4(a)(1)(o).

In the present case, the trial judge sentenced defendant to eight years in prison, rather than to the presumptive six years. He found one statutory aggravating circumstance, pursuant to G.S. 15A-1340.4(a)(1)(o), and no mitigating circumstances. His finding of the aggravating circumstance was based on two convictions where prayer for judgment was continued, a charge where the State entered a nolle prosequi (where there was no trial or conviction), and a conviction for a non-tax paid liquor violation, a non-violent offense for which defendant was placed on probation. Had the judge not considered the convictions where prayer for judgment was continued, he would have been left with the charge nolle prosequi and the non-tax paid liquor conviction. Further, had the judge considered only these two offenses (and, we note, the charge nolle prosequi involves no conviction), the outcome of the sentencing hearing might have been materially altered. The trial court's consideration of the two offenses where prayer for judgment was continued was improper and in the circumstances of this case denied the *620 defendant a fair sentencing hearing. A new sentencing hearing is in order.

The defendant contends further that the trial court erred in its instructions to the jury on the defendant's entitlement to a plea of self-defense. Defense counsel failed to object at trial to the court's instructions, despite ample opportunity to do so, and his claims now are therefore barred by Rule 10(b)(2) of the North Carolina Rules of Appellate Procedure. The defendant urges that we order a new trial, Rule 10(b)(2) notwithstanding, on the basis of the "plain error" doctrine, recently adopted into North Carolina law. See State v. Odom, 307 N.C. 655, 300 S.E.2d 375 (1983). Defendant argues that the court's instructions so confused the jury on the legal elements that must be proved by the State to defeat his claim of self-defense as to prejudice him in making his case for self-defense. While we agree that there is some potential for confusion in the Pattern Jury Instructions, on which the judge relied, we believe that he so clarified their meaning that no "plain error" occurred.

The trial judge's instructions read in pertinent part:

Further, the defendant is not entitled to the benefit of self-defense if he was the aggressor with the intent to kill or if he inflicted serious bodily harm upon the deceased. EXCEPTION NO. 19 (instruction should be deleted after word "or"). Therefore, in order for you to find the defendant guilty of murder in the second-degree, the State must prove beyond a reasonable doubt, among other things, that the defendant did not act in self-defense; or failing in this, the State must prove that the defendant, and prove beyond a reasonable doubt, that the defendant was the aggressor with the intent to kill or that he inflicted serious bodily injury upon the deceased. If the State fails to prove either that the defendant did not act in self-defense or was the aggressor with the intent to kill or inflict serious bodily harm, you may not convict the defendant of second-degree murder; but you may convict the defendant of voluntary manslaughter if the State proves that the defendant was simply the aggressor without murderous intent in bringing on the fight in which the deceased was killed .... (Emphasis added.)

In his final mandate to the jury, the judge stated:

Third, the State must prove to you beyond a reasonable doubt that the defendant did not act in self-defense, that the defendant was the aggressor in bringing on the fight with the intent to kill or inflict serious bodily harm upon the deceased, Milton Lee Long. (Emphasis added.)

While the judge originally misstated the law by saying that the defendant did not act in self-defense "if he inflicted serious bodily harm upon the deceased" (this comes from the Pattern Jury Instructions), he stated the law correctly in concluding his initial instruction and in making his final summary of law for the jury. In both these latter instances, he properly stated that the defendant did not act in self-defense if he was "the aggressor with the intent to kill or inflict serious bodily harm." After considering the entire charge, we believe that the trial judge left the jury with an accurate view of the law of self-defense. Even if a proper objection had been made, the judge's errors would have been questionable grounds for reversal. See State v. McCall, 31 N.C.App. 543, 546-47, 230 S.E.2d 195, 197-98 (1976). Moreover, our review of the entire record does not persuade us that the judge's misstatements, even if they did create some confusion, were so grave, and so manifestly unjust, that they were "plain error," causing a "probable impact" on the jury's finding that the defendant was guilty of voluntary manslaughter. See Odom, 307 N.C. at 660, 300 S.E.2d 375.

We reject defendant's third contention that the trial judge should have reinstructed the jury on self-defense, once he had reinstructed on malice. Whether a *621 judge reinstructs the jury as requested by counsel is a matter in his discretion, G.S. 15A-1234. In this case, the judge's decision not to reinstruct on self-defense, because the jury requested only additional instructions on malice and because his giving additional instructions on self-defense might unduly influence them, was no abuse of discretion.

We also reject defendant's contentions that a proper voir dire to determine the voluntariness of defendant's statements was not held and that defendant's statements were involuntary and inadmissible. The record indicates that after a police officer, Maynard Smith, described at trial the circumstances in which he overheard the defendant make incriminating statements, the defense counsel objected. The trial judge immediately cleared the courtroom, and the defense counsel then explained his objection. He expressed concern about the reliability of the testimony, in light of the police officer's physical distance from the defendant and the fact that several people were talking at once. The court then asked, "Are you saying that it was not a voluntary statement?" The defense counsel replied, "Yes, sir." The defense counsel apparently dropped his objection concerning reliability when the judge suggested the problem of voluntariness. The judge then heard arguments of opposing counsel on the voluntariness of the defendant's statements. The judge gave the defense counsel opportunity to make additional arguments or to raise further questions on the admissibility of the evidence, but he declined. Although additional evidence was not offered during the hearing, we find that it was essentially a proper voir dire, in that the judge cleared the courtroom and heard arguments of opposing counsel, based on the police officer's testimony prior to the objection. See State v. Fox, 277 N.C. 1, 24, 175 S.E.2d 561, 575 (1970).

The findings by the trial court after the voir dire, that the defendant's statements were voluntary, "are conclusive and binding upon appellate courts if supported by competent evidence in the record ... even though the evidence is conflicting." State v. Corley, 310 N.C. 40, 52, 311 S.E.2d 540, 547 (1984). Our task on review is to determine whether the "totality of the circumstances" provide competent evidence that the defendant's statements were voluntary. Corley, 310 N.C. at 47-48, 311 S.E.2d 540. We find that they do.

The record shows that when the police arrived at the defendant's residence, they found a group of people standing in the yard. Officer Smith walked up to defendant and asked him what happened. He replied that Smith should talk to Milton Long, who was leaning against an automobile. Smith asked Long three times what had happened, and he replied each time that he had fallen off a truck. Smith testified that while he was talking to Long, the defendant, who was at the other end of the station wagon from Long, talking with other people around him, stated, among other things, that he had knocked the hell out of Milton Long. The defendant was not in the custody of the police. The police did not know that he had hit Milton Long until he made this statement. The only question put to defendant was what had happened, and his answer diverted the attention of the police to Milton Long. In light of these circumstances, we find that defendant's utterances were spontaneous and voluntary.

Although the defense counsel originally raised the question of reliability, he effectively dropped it when he accepted the judge's suggestion that his objection involved voluntariness. The judge invited him in the voir dire to make additional claims or arguments, but he declined. If the judge committed any error in recasting the defense objection, the defense counsel by his acquiescence waived any exception. The defendant's statements were admissible under the res gestae exceptions, since they were made within fifteen minutes of his striking Milton Long. We find no grounds for a new trial, but remand for a new sentencing hearing.

*622 No error in the trial;

Remand for resentencing.

WELLS and HILL, JJ., concur.