State v. FreemanAnnotate this Case
244 S.E.2d 680 (1978)
295 N.C. 210
STATE of North Carolina v. Sebrina Davis FREEMAN.
Supreme Court of North Carolina.
June 6, 1978.
*685 Atty. Gen. Rufus L. Edmisten and Sp. Deputy Atty. Gen. William F. O'Connell, Raleigh, for the State.
Franklin B. Johnston, Washington, D. C., for defendant-appellant.
SHARP, Chief Justice.
In appellant's brief counsel has grouped seventy-four assignments of error within the framework of eight questions. Of these questions we will consider only three. The other five encompass assignments which are either patently without merit or challenge miniscule errors which are harmless beyond a reasonable doubt. Any discussion of these questions would necessarily be (1) a mere repetition of the well-established rules regarding the sound discretion of the trial judge as to the allowance of leading questions and the scope of cross-examination, and (2) a wordy demonstration that the testimony challenged as "opinion evidence" is actually a "shorthand statement of fact," and that the statements alleged to be hearsay are in fact spontaneous utterances, declarations accompanying an act, or a part of the res gestae. In this case, we have decided not to add to the surplusage of such discussions already in the books.
We first consider the questions challenging the trial judge's rulings admitting in evidence defendant's incriminating statements which Officer Satterthwaite testified were made to him at the scene of the fire and which Captain Smith testified defendant made to him at the police department. When defendant objected to the introduction of these statements Judge Small properly conducted a voir dire at which he heard the testimony of both the officers and defendant.
The testimony which Satterthwaite gave before the jury with reference to defendant's statement to him, and the circumstances under which it was made, is set out in our preliminary statement of the evidence. His testimony on voir dire was substantially the same. Defendant, however, testified that she had no recollection of making any statement to Satterthwaite except a request that he take her to the *686 hospital. Judge Small, however, found the facts in accordance with Satterthwaite's testimony and permitted him to relate to the jury what defendant said to him when he encountered her at the scene of the fire. See State v. Harris, 290 N.C. 681, 693-94, 228 S.E.2d 437, 444 (1976).
Defendant's statements to Satterthwaite at the scene of the fire were clearly admissible. She was not in custody when she approached Satterthwaite and volunteered the statements in question. Therefore, neither Miranda warnings nor the correlative waiver of rights were necessary prerequisites to admissibility. State v. Strickland, 290 N.C. 169, 184, 225 S.E.2d 531, 542 (1976). Further, "volunteered and spontaneous statements made by a defendant to police officers without any interrogation on the part of the officers are not barred by any theory of our law." State v. Biggs, 292 N.C. 328, 334, 233 S.E.2d 512, 515 (1977). Accord, State v. Bell, 279 N.C. 173, 181 S.E.2d 461 (1971). Nor did Satterthwaite's request for an explanation as to "what she meant by that statement," transform the situation into an interrogation necessitating warnings or waivers. State v. McZorn, 288 N.C. 417, 432-33, 219 S.E.2d 201, 211 (1975), death sentence vacated, 428 U.S. 904, 96 S. Ct. 3210, 49 L. Ed. 2d 1210 (1976); State v. Haddock, 281 N.C. 675, 682, 190 S.E.2d 208, 212 (1972).
As to the statements which Captain Smith testified defendant made to him at the police station, she denied only that she told him she hit Donnie twice with the axe. She insisted she told Smith that after Donnie had beaten her head against the bed and the wall she hit him once with the axe.
Upon direct examination on voir dire defendant testified, "the first thing he [Captain Smith] did was to read my Miranda rights." She also testified, "I told Officer Smith that I wanted to make a statement to him but I did not understand that I had a right to have an attorney present at that time." Notwithstanding, on cross-examination, she testified, "I understood that I did not have to say anything if I did not want to. . . . I knew that I could have a lawyer. I told Officer Smith I guess I understand my rights. As far as I can remember, I guess I agreed to make these statements without the presence of an attorney."
Captain Smith also testified on voir dire that before asking defendant any questions he read her the Miranda warning and then asked her if she understood each of her rights. She said that she did, but requested him to "repeat the number six item." Accordingly, he said to her again, "[I]f you decide to answer questions now without a lawyer present you still have the right to stop answering at any time. You also have the right to stop answering at any time until you talk to a lawyer." Smith then asked her once more if she understood. She said she did understand, and upon being asked whether she wished to make a statement without her attorney being present, she replied, "Yes, sir." In response to a specific inquiry Smith said, "I did not promise her anything or threaten or coerce her in any way to make a statement."
At the completion of the voir dire, Judge Small rejected defendant's contention that she was obviously "scared and confused and any statements made by her to police officers without the aid and counsel of any attorney should have been suppressed." He found that prior to interrogation Smith had fully advised defendant of her constitutional rights as required by the Miranda decision and that she fully understood her rights; that no officer offered her any inducement to talk or made any threat or show of violence. His conclusion that "defendant intentionally, freely, voluntarily, knowingly and understandingly waived each of her constitutional rights prior to making a statement to Captain Smith . . on 9 January 1977" is supported by plenary competent evidence. His findings and conclusions are, therefore, binding upon this Court. State v. Williams, 289 N.C. 439, 443, 222 S.E.2d 242, 245, death sentence vacated, 429 U.S. 809, 97 S. Ct. 45, 50 L. Ed. 2d 69 (1976); State v. Simmons, 286 N.C. 681, 692, 213 S.E.2d 280, 288 (1975), death sentence vacated, 428 U.S. 903, 96 S. Ct. 3207, 49 L. Ed. 1208 (1976).
*687 We next consider defendant's assignment that the court erred in refusing to grant her motion for a directed verdict of not guilty at the close of all the evidence. To this assignment we apply the long-established rule that in a criminal case upon a motion for nonsuit or directed verdict, the evidence is to be considered in the light most favorable to the State, which is entitled to the benefit of every reasonable inference of fact deducible from the evidence. State v. Hall, 293 N.C. 559, 561, 238 S.E.2d 473, 474-75 (1977). The court is not concerned with the weight of the testimony but only with its sufficiency to sustain the indictment. Thus, if there is any evidence from which the jury could find that the defendant committed the offense charged, the motion should be overruled. The test of the sufficiency of the evidence to withstand a motion for a directed verdict is the same whether the evidence is direct, circumstantial, or both. State v. McNeil, 280 N.C. 159, 162, 185 S.E.2d 156, 157 (1971).
Relating these principles to the evidence before us, we hold that the trial judge correctly denied defendant's motion for a directed verdict. The evidence adduced is sufficient to show the following facts:
On the afternoon of 9 January 1978, after a fight in the bedroom with deceased, Donnie Freeman, during which he beat her head against the bed and wall of their bedroom and threatened to kill her, defendant hit him twice with an axe. The blows broke deceased's right jaw, knocked out several teeth, and loosened several others. Thereafter, attracted by smoke coming from defendant's house, James Spencer peered into the bedroom window and saw Donnie lying in bed on his back surrounded by fire. Both Donnie and the bed were burning. Donnie was mumbling and defendant was looking at him as she stood against the wall by the door, her baby on her hip. In the room only the area by the bed was burning. Upon seeing this sight, Spencer ran into the house. Observing a "foot tub" half full of water by the door, he told defendant to pour the water on Donnie and he would go call the fire department. She made no reply. Spencer left the house and told a neighbor to call the fire department. He then returned to the house. Spencer's sister, Mrs. Clayton, who had not gone into the house with him the first time he entered, came in after he had returned from the neighbor's. This time he went to the door but did not go into the bedroom because there was too much smoke.
When Mrs. Clayton entered the house she saw Donnie lying on his back in the bed, his clothes burning. Although afraid to enter the room because of the smoke, she called to Donnie to "crawl out," and when he started to get up she left the house. Mrs. Clayton never saw defendant in the house, but when she left the house she did see her in the yard.
Officer Satterthwaite arrived at the Freeman residence three minutes after receiving the report of the fire. At that time he observed Donnie crawling from the doorway. He immediately sent him to the hospital, where Donnie arrived semiconscious and severely burned over 80% of his body.
Other testimony from State's witnesses also tended to show that in the early stages of the fire the area by the bed on which Donnie was lying was the only portion of the room on fire, the most extensive burning then being on the bed; that the top layers of the mattress were badly burned; and that there was no sign of burning on the floor around the heater or the wall behind it.
The State's theory of this case is that defendant intentionally, unlawfully and maliciously struck her husband about the head with an axe, thereby inflicting serious injuries upon him; that while he lay stunned or unconscious on the bed she set him on fire after having poured kerosene on his clothing and on the bed; that, in consequence, he received the extensive burns which caused his death.
Defendant's statements to Officers Satterthwaite and Smith, as well as her own testimony, are pertinent to an evaluation of the State's evidence and its theory of the prosecution. Inter alia, she told Satterthwaite that as Donnie lay unconscious on the *688 floor, his clothes burning, she tried to drag him from the burning room. He was too heavy for her to move, however, and she could persuade no one to go into the burning room to help her. She told Captain Smith that during the struggle in which she hit Donnie with the axe "one or the other knocked the jug over and kerosene spilled on the floor and started blazing." (Italics ours.) She also stated to him that she ran out leaving Donnie on the floor with his shirt on fire after she and an unknown man had tried unsuccessfully to get him out of the house "but could not because Donnie was on fire."
All the evidence tends to show that immediately before and at the time the fire started defendant and Donnie were the only persons, except for defendant's small baby, in the house. Moreover defendant concedes: (1) that she struck Donnie with an axe at a time when there was nothing to keep her from running out the door into the public street except that she was "scared"; (2) that after she struck Donnie he was lying face down, helpless on the floor, his clothes on fire, and at that time the only fire in the room was on Donnie and the floor; (3) that she did not use available water to extinguish the fire which was burning Donnie and his clothes; and (4) that she did not drag him approximately nine feet into the hall because he was "too heavy." She denies that at the time James Spencer and his sister came into the house Donnie was lying on the bed and insists that the last time she saw him he was lying on the floor.
The State's evidence, however, tends to show: (1) that Donnie was on his back on the burning bed in the room where defendant struck him and where she said he fell unconscious to the floor; (2) that defendant was standing just inside the bedroom looking at him as he lay on the bed in flames; (3) that when all the fire was extinguished the mattress was "burned about half way down from the top"; and (4) that the floor where defendant said Donnie fell and was lying in flames was not burned, the only evidence of fire at that spot being cinders which had fallen from the ceiling.
From the foregoing it is clear that both circumstantial evidence and the direct testimony of State's witnesses contradicted the exculpatory assertions contained in defendant's statements to the officer. Contrary to defendant's contentions, therefore, the introduction of these statements did not preclude the State from showing that facts concerning the crime charged were different from defendant's version. The rule is that "the introduction by the State of an exculpatory statement made by a defendant does not preclude the State from showing the facts concerning the crime to be different, and does not necessitate a nonsuit if the State contradicts or rebuts defendant's exculpatory statement." State v. May, 292 N.C. 644, 658, 235 S.E.2d 178, 187 (1977), cert. denied, 434 U.S. 928, 98 S. Ct. 414, 54 L. Ed. 2d 288 (1977).
The State's evidence, taken as true, is sufficient to negate defendant's contention that Donnie fell on the floor by the heaters when she struck him; that his fall accidently upset a jug of kerosene which was nearby; that the kerosene was ignited from the wick of the oil heater; and that Donnie was burned as he lay there on the floor. Circumstantial evidence will also support a finding that Donnie's clothing was ignited on the bed where Spencer and Mrs. Clayton saw him lying in flames and that defendant, as the only other occupant of the house at the time, started that fire.
We hold that the evidence in this case was sufficient to sustain defendant's conviction of murder in the second degree. State v. Hankerson, 288 N.C. 632, 220 S.E.2d 575 (1975), rev'd on other grounds, 432 U.S. 233, 97 S. Ct. 2339, 53 L. Ed. 2d 306 (1977); State v. Woods, 278 N.C. 210, 179 S.E.2d 358 (1971).
Finally, we consider defendant's two assignments of error relating to the court's instructions to the jury. The first, "that the trial court committed reversible error . . . by failing to adequately define proximate cause to the jury," is a "broadside" which ignores the following requirement of N.C.App.R. 10(b)(2): "An exception *689 to the failure to give particular instructions to the jury . . . which was not specifically requested of the trial judge shall identify the omitted instruction. . . by setting out its substance immediately following the instructions given. . .." We interpret this rule to mean that when an appellant excepts to the inadequacy of the court's instruction on a particular point, in contrast to the court's failure to give any charge on the subject, appellant must set out the substance of the inadequacy, that is, substantially supply the omission which he contends rendered the charge insufficient. Notwithstanding defendant's failure to comply with this rule, we have carefully examined the charge and we find it to be entirely adequate on proximate cause.
At the beginning of his charge the judge correctly defined proximate cause as "a real cause, a cause without which Donnie Freeman's death would not have resulted." Thereafter, in his mandate with reference to second degree murder (the crime of which defendant was convicted), the judge instructed the jury as follows: "[I]f you find from the evidence beyond a reasonable doubt that on or about January 9, 1977 the defendant, Sebrina Davis Freeman, struck her husband with an axe and thereafter set him and his clothing on fire with malice and without lawful justification and excuse, as I have defined that term to you, thereby proximately causing the death of Donnie Freeman, it would be your duty to return a verdict of guilty of second degree murder. However, if you do not so find or if you have a reasonable doubt as to one or more of these things, you will not return a verdict of guilty of second degree murder." In his mandates on first degree murder and manslaughter, the other offenses included in the indictment drawn under G.S. 15-144, the judge gave practically identical charges with reference to proximate cause.
It is inconceivable that the jurors did not fully understand that before they could convict defendant of any degree of murder or of voluntary manslaughter, they first had to be satisfied beyond a reasonable doubt that Donnie died as the result of burns which defendant had intentionally and unlawfully inflicted upon him. In view of the stipulation that the burns which Donnie received on 9 January 1977 "were the direct and proximate cause" of his death, the crucial question in the case was whether defendant intentionally and unlawfully caused the burns.
Defendant's other objection directed to the judge's instruction is set out in her assignment No. 63. In stating the State's contentions the judge incorrectly stated that the State contended James Spencer and Mrs. Clayton, after looking into the window and seeing Donnie lying in flames on the cot, went into the house where they saw defendant holding her baby and standing in the room where her husband lay burning. In fact, the State did not contend that both Spencer and Mrs. Clayton saw defendant standing in the room. Spencer testified that his sister, Mrs. Clayton, was not with him when he looked into the window and went in the house the first time; that she was in the house after he went to call the fire department. Mrs. Clayton testified that when she looked in the window and after she went into the house she saw the man lying on the bed burning; she said she had no recollection of ever seeing defendant in the house. Upon leaving the house she then saw defendant outside in the yard.
Notwithstanding, under the circumstances here disclosed, the court's inaccurate statement of the State's contention with reference to Mrs. Clayton's testimony cannot be regarded as of sufficient consequence to have affected the verdict. This must also have been defense counsel's view of the inaccuracy since he did not call the judge's attention to the misstatement at the time it was made. See State v. McAllister, 287 N.C. 178, 185, 214 S.E.2d 75, 81 (1975); State v. Tart, 280 N.C. 172, 184 S.E.2d 842 (1971); State v. Cornelius, 265 N.C. 452, 144 S.E.2d 203 (1965). Before the inadvertent misstatement occurred the judge had made it quite clear that he was stating contentions. Further, at the conclusion of the *690 charge, he told the jurors that his references to the testimony had not been made for the purpose of refreshing their recollections, and it was their duty to recall all the evidence. As Justice Lake noted with reference to a similar situation in State v. Thomas, 292 N.C. 527, 540, 234 S.E.2d 615, 623 (1977): "We do not think that this variance between the evidence and the judge's summary of it was of any substantial consequence, but, in any event, it is sufficient to note that neither defendant called this error to the attention of the court before the jury retired to consider its verdict. Their failure to do so renders this assignment of error of no avail."
When the charge is read as a whole, it is clear that the trial judge gave defendant the benefit of every defense and principle of law to which she was entitled. He fully stated and correctly applied the law to the evidence tending to sustain her contentions that she struck her husband with the axe in lawful self defense; that he did not die from that blow, which felled him, but from burns accidently received thereafter; that in falling he had upset a jug from which kerosene was accidently ignited by the burning wick of a portable heater; that deceased's clothing then caught fire but, because of his weight, and the fire and smoke in the room, she was unable either to extinguish the fire on him or to pull him from the burning room.
Finally, in his charge, the judge emphasized the fact that before the jury could convict defendant of any crime encompassed by the indictment the State must have satisfied each juror beyond a reasonable doubt of every element of that crime, and by the same token the State must have negated beyond a reasonable doubt every defense upon which defendant had relied. He also charged as follows with reference to accident: "If Donnie Freeman died by accident or misadventure, that is, without wrongful purpose or criminal negligence on the part of the defendant, the defendant would not be guilty. The burden of proving accident is not on the defendant. Her assertion of accident is merely a denial that she had committed any crime. The burden remains on the State of North Carolina to prove defendant's guilt beyond a reasonable doubt."
From our examination of the record we conclude that defendant has received a fair trial, free from prejudicial error. Her conviction of second degree murder is therefore sustained.