State v. BolinAnnotate this Case
189 S.E.2d 235 (1972)
281 N.C. 415
STATE of North Carolina v. William Harrison BOLIN.
Supreme Court of North Carolina.
June 16, 1972.
*241 Atty. Gen., Robert Morgan, and Associate Atty., William Lewis Sauls, Raleigh, for the State.
White, Crumpler & Pfefferkorn, by Fred G. Crumpler, Jr., Michael J. Lewis and G. Edgar Parker, Winston-Salem, for defendant appellant.
BOBBITT, Chief Justice.
Defendant assigns as error (1) the court's denial of his motion under G.S. § 15-173 for judgment as in case of nonsuit, (2) the court's denial of his motion as in case of nonsuit in respect of the charge of murder in the first degree, and (3) portions of the court's charge to the jury.
The applicable substantive law is well settled and need not be restated. For the elements of murder in the first degree, see State v. Reams, 277 N.C. 391, 401-402, 178 S.E.2d 65, 71 (1970), and cases cited. For the elements of murder in the second degree and of voluntary manslaughter, see State v. Duboise, 279 N.C. 73, 81-82, 181 S.E.2d 393, 398 (1971), and cases cited. For the legal principles applicable to the right of self-defense, see State v. Wynn, 278 N.C. 513, 519, 180 S.E.2d 135, 139 (1971), and cases cited. Consideration of the charge shows that Judge Long instructed the jury in substantial accord with our decisions.
The evidence, inclusive of the stipulation and of portions of defendant's written statement of September 12th, was sufficient to support a finding that defendant intentionally shot Wiles and thereby inflicted bullet wounds which proximately caused Wiles's death. If so, nothing else appearing, defendant would be guilty of murder in the second degree. State v. Duboise, 279 N.C. supra at 81-82, 181 S.E.2d at 398, and cases there cited. Defendant contends that this statement of September 12th discloses that he acted within his legal right of self-defense; and, having offered the statement in evidence, the State is bound by the portions thereof which are favorable to defendant.
On a motion for judgment as in case of nonsuit, the evidence must be considered in the light most favorable to the State. Contradictions and discrepancies, even in the State's evidence, are matters for the jury and do not warrant nonsuit. State v. Murphy, 280 N.C. 1, 7, 184 S.E.2d 845, 849 (1971), and cases cited.
"When the State introduces in evidence exculpatory statements of the defendant which are not contradicted or shown to be false by any other facts or circumstances in evidence, the State is bound by these statements." State v. Carter, 254 N.C. 475, 479, 119 S.E.2d 461, 464 (1961), and cases cited. Accord: State v. Gaines, 260 N.C. 228, 232, 132 S.E.2d 485, 487 (1963); State v. Bruton, 264 N.C. 488, 499, 142 S.E.2d 169, 176 (1965). The introduction in evidence by the State of a statement made by defendant which may tend to exculpate him, does not prevent the State from showing that the facts concerning the homicide were different from what *242 the defendant said about them. State v. Cooper, 273 N.C. 51, 57, 159 S.E.2d 305, 309 (1968), and cases cited.
If and when the jury found that defendant intentionally shot Wiles and thereby inflicted bullet wounds which proximately caused his death, it was incumbent on defendant to show to the satisfaction of the jury that he acted in self-defense and that in doing so he used no more force than was or reasonably appeared necessary under the circumstances to protect himself from death or great bodily harm. Standing alone, the facts stated in defendant's statement of September 12th are insufficient to show as a matter of law that defendant was entitled to complete exoneration on the ground of self-defense. Considered in the light most favorable to defendant, these facts were sufficient only to permit the jury to find to its satisfaction that defendant so acted. In any event, when the testimony of Allred, Scales, Huff, Teele and Cherry is considered, the court properly denied defendant's motion for judgment as in case of nonsuit. In this connection, we note that defendant's flight from the scene of the killing was competent for consideration by the jury in connection with other circumstances in passing upon whether defendant was guilty of unlawful homicide but was not admissible to prove premeditation and deliberation. State v. Payne, 213 N.C. 719, 723-724, 197 S.E. 573, 576 (1938), and cases cited.
Having concluded that the facts narrated in defendant's statement of September 12th did not establish as a matter of law that he acted in self-defense, we turn now to consider whether the State's evidence was sufficient to require submission of murder in the first degree as a permissible verdict. The answer to this question requires an analysis of the evidence offered by the State other than defendant's statement of September 12th, with emphasis upon those portions which are in conflict, expressly or impliedly, with defendant's explanatory statement.
Defendant's explanation of the incident in the poolroom when Wiles missed the shot and lost the bet and of his departure from Stadium Drive Lunch and his return is as follows: Wiles got awfully mad and was going to "jump all over" defendant until Gerrey spoke up and told Wiles he had heard what was going on and asked Wiles to leave defendant alone. Thereupon, Wiles "jumped on" Gerrey. Then, according to defendant's statement, "Wiles said, `If you people don't like what I do, I have got a forty-five and a thirty-two out in the car and I'll just blow your brains out.' Huff and Ted Gerrey heard Bill Wiles say this." Thereupon, "the dark-haired man" pushed Wiles out of the door and took him to his car. Defendant then walked up to the front, talked with one Charlie Cryner, and "was going to ask Harold Huff is he wanted a ride home." He told Gerrey to come on and he would take him home. Gerrey said that Wiles was going to do what he said. Accompanied by Gerrey, defendant left Stadium Drive Lunch, went by his own home and picked up his shotgun. Defendant and Gerrey returned to the Stadium Drive area, first stopping in front of Stadium Drive Lunch. Scales walked out the front door and defendant asked, "Is Huff still there?" Whereupon, Scales told him: "Look out, that fellow is still in there and you had better watch out. You had better not park here." Defendant then pulled down the street, and stopped on the Kashway parking lot.
The testimony of Scales and of Huff is in sharp conflict with the foregoing explanation of defendant. They testified that they did not hear Wiles say anything about having "a forty-five or thirty-two in his car" and did not hear him make threats of any kind. Too, they testified explicitly that defendant and Gerrey left Stadium *243 Drive Lunch first and that Wiles was the last customer to leave. Their testimony contains no reference to a departure by Wiles under escort of a "dark-haired man," prior to the departure of Cryner, Bolin and Gerrey. Nothing in defendant's explanation indicates that he in fact asked Huff if he wanted a ride home. Huff's testimony was that he planned for Scales to take him home as usual. No testimony of Scales or of Huff indicates that either of them saw defendant or Gerrey between the time defendant and Gerrey left in defendant's truck and the later time when Wiles left the Stadium Drive Lunch building.
Defendant's explanation as to what occurred after he parked his truck on the Kashway parking lot was as follows: Just as soon as defendant stopped, Wiles came "tearing out" of the side door and "came up the bank walking south" toward defendant's truck and said something like, "I'm going to teach you some manners." Wiles reached in his pocket and defendant thought Wiles "was going to get a knife or gun." Defendant thought "about leaving but . . . didn't know what [Wiles] was going to do." When Wiles was four or five feet away, defendant told Wiles he had "better stop" where he was. Wiles was on the left side of defendant's truck. Wiles did not stop but kept on coming, moving faster. When defendant first told Wiles to stop, defendant "stuck [his] gun out the window and told [Wiles] he had better look at what [defendant] had and stop," but Wiles "just put his hand in his pocket." Defendant "just cut loose when [Wiles] kept on coming and [Wiles] fell in front of [defendant's] truck." Defendant shot Wiles when Wiles was "about five feet away." Gerrey was in the truck when defendant shot Wiles, but Gerrey "jumped out of the truck and ran in the luncheon in the back door and told [defendant] to go on so [defendant] did."
Although Scales and Huff were present when Wiles left, nothing in the testimony of either suggests that Wiles went "tearing out" of Stadium Drive Lunch. Huff testified that when Wiles came out of the poolroom he had a Budweiser beer can in his hand. Allred testified that he found no weapon of any kind on or near Wiles's body but did find "a Budweiser beer can" near his right arm. The diagram, tending to show "the point of injury and the angle trajectory after the pellets entered the body," indicates the shot entered the right anterior wall of Wiles's chest and coursed downward. This evidence, defendant's statement that Wiles "came up the bank walking south," and Allred's testimony as to where Wiles's body was found, permitted the inference and a finding that Wiles was shot as he approached the top of the bank.
Defendant's statement that Wiles came from his left is in accord with Teele's testimony that the lights of the truck on the Kashway lot were burning and headed toward Stadium Drive. Defendant's statement that Wiles came "tearing out" of the Stadium Drive Lunch "[j]ust as soon" as he stopped on the Kashway parking lot is in conflict with Teele's testimony that defendant had been parked there when Teele passed, which was 10 or 15 minutes before Teele heard the radio broadcast "of a shooting at the Stadium Street Lunch."
Cherry testified that Gerrey told him that the statement made by defendant was correct. This included a statement that Gerrey was in the truck with defendant when defendant shot Wiles. Circumstances testified to by other witnesses permit contrary inferences. According to Huff, Gerrey was not in the Stadium Drive Lunch building when he left to go where Wiles's body was lying. The truck left during the brief interval between the firing of the shot and the times when Huff and Allred viewed Wiles's lifeless body. When Huff returned, he found Gerry inside the Stadium Drive Lunch building. Too, Allred testified that Gerrey and *244 Scales were in this building when he arrived upon the scene.
There was evidence that the left door of the Thunderbird was open and that the car keys were in the ignition. It may be inferred from this evidence that Wiles, upon leaving the Stadium Drive Lunch, had gone first to the Thunderbird. Whatever may have induced him to leave the Thunderbird and approach defendant's truck, the fact that he had no weapon of any kind (unless a Budweiser beer can can be considered a weapon) and that defendant had and exhibited his shotgun negates rather than supports an inference that Wiles approached defendant's truck in a threatening and menacing manner.
The foregoing evidence would permit and support jury findings that there was an argument in the poolroom of the Stadium Drive Lunch between defendant and Gerrey on the one hand and Wiles on the other; that Wiles did not threaten defendant or Gerrey with a deadly weapon of any kind and did not have such a weapon; that defendant and Gerrey left in defendant's truck, leaving Wiles inside the Stadium Drive Lunch building; that, instead of taking Gerrey home as originally planned, defendant drove to his own home, 2.2 miles away, and got his shotgun; that, armed with his shotgun, defendant and Gerrey returned to the Stadium Drive Lunch area and parked in the Kashway parking lot, with the truck headed toward the exit to Stadium Drive; that defendant returned to confront Wiles, not to offer Huff a ride; that defendant, with the shotgun in his lap, waited until Wiles emerged from the building; that Wiles, after first going to his Thunderbird car, was prompted or induced in some manner to approach defendant's truck; that, when he approached defendant's truck, Wiles had "a Budweiser beer can" in his hand and no weapon on his person; that, as Wiles walked up the slope of the grassy median toward defendant's truck, defendant shot him and immediately drove away; that Gerrey was not in the truck when defendant drove away but shortly thereafter showed up inside the Stadium Drive Lunch building. We conclude that the evidence tending to show these facts was sufficient to require submission of guilty of murder in the first degree as a permissible verdict and to support such verdict.
Since defendant was not a witness, there was no cross-examination as to what was said in his statement. True, when the State introduced his extra-judicial statement, it was bound by what he said except insofar as it was contradicted and shown to be false. It was contradicted in material respects. In determining its credibility in these respects, the jury no doubt considered the fact that defendant had had the opportunity to reflect for more than three days before he gave any explanation as to what had occurred.
We have considered carefully each of defendant's assignments of error to the court's charge. As indicated above, none discloses prejudicial error. Elaboration of well-settled principles would serve no useful purpose.
Defendant having failed to show prejudicial error, the verdict and judgment will not be disturbed.