State v. Anderson

26 N.C. App. 422 | N.C. Ct. App. | 1975

ARNOLD, Judge.

Defendant initially contends that the trial court erred in denying his motion for a bill of particulars. As explained in State v. Cameron, 283 N.C. 191, 194, 195 S.E. 2d 481, 483 (1973) :

“G.S. 15-143 provides that when further information not required to be set out in the bill of indictment is desirable for the better defense of the accused, the court upon motion may in its discretion require the solicitor to furnish a bill of particulars. The function of a bill of particulars is to inform the defendant- of the nature of the evidence which the State proposes to offer. State v. Overman, 269 N.C. 453, 153 S.E. 2d 44 (1967). The- granting or denial of motions for a bill of particulars is within the discretion of the court and not subject to review except for palpable and gross abuse thereof State v. Spence, 271 N.C. 23, 155. S.E. 2d 802 (1967) ; State v. Porth, 269 N.C. 329, 153 S.E. 2d 10 (1966) ; State v. Overman, supra; State v. Lippard, 223 N.C. 167, 25 S.E. 2d 594 (1943).”

Accord, State v. Martin, 21 N.C. App. 645, 205 S.E. 2d 583 (1974). In the case at bar, defendant was well aware of the circumstances surrounding the shooting and the theory of the State’s case against him. By his motion he sought extensive discovery to which he was not entitled. See State v. Davis, 282 N.C. 107, 191 S.E. 2d 664 (1972). It was properly denied.

Defendant has raised a number of contentions with respect to his attempts to present evidence that Dean Miller was a violent and dangerous man. These contentions are without merit. While evidence of decedent’s character is admissible for the purpose of showing provocation and justification, it is limited to evidence of specific acts of violence known to defendant or to decedent’s reputation as a ferocious, violent, and dangerous man. See State v. Johnson, 270 N.C. 215, 154 S.E. 2d 48 (1967) ; Nance v. Fike, 244 N.C. 368, 93 S.E. 2d 443 (1956). See generally 1 Stansbury, N. C. Evidence (Brandis rev.) § 106; Some of the proffered testimony was entirely unrelated to character for violence and therefore inadmissible. As for the rest, the exclusion of evidence cannot be prejudicial when the witness later testifies to the same facts or the evidence is merely cumulative of other testimony. State v. Tyson, 242 N.C. 574, 89 S.E. 2d 138 (1955) ; State v. Werst, 232 N.C. 330, 59 S.E. 2d 835 (1950); State v. Elder, 217 N.C. 111, 6 S.E. 2d 840 (1940). Several witnesses testified that Dean Miller’s automobile bumped the automobile driven by defendant, causing it to leave the road. Juanita Miller testified that she was frightened of her husband and had told defendant that Dean Miller had purchased a gun. Defendant stated that he was afraid because Miller had sent word he was going to kill him. The excluded portions of testimony would have added nothing to the foregoing evidence, which was before the jury.

Equally without merit are defendant’s contentions concerning his attempts to impeach the testimony of the SBI agent who investigated the shooting and to contradict the testimony of decedent’s father-in-law. In both instances, defendant’s questions were highly speculative and of little probative value. Answers to them were properly excluded.

Defendant contends that the court struck his testimony that “ [Dean Miller said] T am going to kill you’ and he started for his pocket and I kept telling him to stop and I had no choice.” As we read the record, the court sustained the State’s objection only as to the last phrase, a self-serving declaration, and admitted the rest as competent on the issue of defendant’s apprehension. See State v. Crump, 277 N.C. 573, 178 S.E. 2d 366 (1971). Defendant’s contention is overruled.

Defendant also contends that the court erred in refusing to admit, as part of the res gestae, evidence of statements and actions contemporaneous with the shooting. We note first that some of the statements were not offered for the truth of the matter asserted, and therefore they were not objectionable as hearsay. See 1 Stansbury, supra § 141. The record indicates, however, that the court, after first sustaining the State’s objection, later admitted testimony that after defendant shot Dean Miller he asked Juanita, “Is he shot?” and she said, “He is dying.” The exclusion therefore was not prejudicial. See State v. Tyson, supra. The res gestae exception to the hearsay rule does apply to the testimony that just after the shooting defendant said he “did it for her trying to protect her.” See Coley v. Phillips, 224 N.C. 618, 31 S.E. 2d 757 (1944) ; 1 Stansbury, supra § 158. Nevertheless, for reasons given below with respect to the verdict and the charge, we believe error in the exclusion was not prejudicial.

Finally, defendant contends that it was error to refuse to instruct the jury on defense of family and others in one’s presence. Ordinarily the court must instruct on self-defense and defense of others when such defenses are raised by the evidence. See State v. Deck, 285 N.C. 209, 203 S.E. 2d 830 (1974) ; State v. Todd, 264 N.C. 524, 142 S.E. 2d 154 (1965). Nevertheless, we are unable to see how the instructions given in this case, which dealt only with self-defense, could have been prejudicial to defendant.- By their verdict the jury found from all the evidence that it was not actually necessary or apparently necessary for defendant to kill in order to save himself from death or great bodily harm. The evidence showed that decedent confronted defendant behind the automobile while the others remained inside with the right front door locked. It follows that the jury could not have found that defendant was justified in killing to protect others who were less immediately threatened.

Defendant has received a fair trial free from prejudicial error.

No error.

Judges Martin and Clark concur.