State v. Correll

38 N.C. App. 451 | N.C. Ct. App. | 1978

MITCHELL, Judge.

The defendant first assigns as error the admission into evidence of certain conclusory remarks by the State’s witnesses. In support of this assignment, the defendant contends the trial court erred in permitting a witness for the State to testify that the defendant and Teague were laughing immediately after the shooting of Nadulack and Payne. The witness’ statement that the two men were laughing was a shorthand statement of fact and a natural and instinctive inference drawn by the witness from his observations. As such, it was admissible. State v. Dawson, 278 N.C. 351, 180 S.E. 2d 140 (1971); 1 Stansbury, N.C. Evidence (Brandis Rev., 1973) § 125.

The defendant further contends that the admission of testimony by one of the State’s witnesses that he “witnessed murder of motorcycle rider and girl” was error. This statement of the witness’ opinion tended to invade the province of the jury and to embody a question of law, and its admission was error. However, the admission of this testimony was harmless beyond a reasonable doubt as the outcome of the case was clearly unaffected by the error. G.S. 15A-1443(a). By its verdicts of not guilty on one charge of murder and guilty of involuntary manslaughter on the other, the jury specifically rejected the witness’ opinion and found that no murder had been committed. As the witness’ expression of opinion was not accepted by the jury, the admission of that opinion into evidence was clearly harmless beyond all doubt and does not constitute reversible error. Schneble v. Florida, 405 U.S. 427, 31 L.Ed. 2d 340, 92 S.Ct. 1056 (1972); State v. Robbins, 287 N.C. 483, 214 S.E. 2d 756 (1975).

The defendant next assigns as error the denial by the trial court of his motions to dismiss which were made at the close of the State’s evidence and at the close of all of the evidence. As the defendant introduced evidence at trial, we need not consider the trial court’s denial of the first motion. G.S. 15-173. With regard to the denial of the defendant’s motion to dismiss made at the close of all of the evidence, we must determine whether the evidence considered in the light most favorable to the State was sufficient to support findings by the jury that the offense in question had been committed by the defendant. State v. Hines, 286 N.C. 377, 211 S.E. 2d 201 (1975). When considered in the light most favorable to the State, the evidence reveals that the defendant was carrying a pistol in his car when he encountered Nadulack and Payne riding a motorcycle. He fired at them five q$ six times with an automatic pistol and killed both. He then drove away laughing. This evidence was sufficient to support the trial court’s denial of the defendant’s motion to dismiss.

The defendant next assigns as error the trial court’s instructions to the jury that it could find the defendant guilty of involuntary manslaughter in the death of India Payne. Although the defendant was charged with the murder in the second degree of India Payne, the trial court was required to instruct the jury as to any included crime of lesser degree than that charged if there was evidence from which the jury could find that such included crime of lesser degree was committed. State v. Hicks, 241 N.C. 156, 84 S.E. 2d 545 (1954). Therefore, this assignment raises the issue of whether the record contains any evidence which would support a verdict of involuntary manslaughter in the death of India Payne. We think that it does.

Involuntary manslaughter is the unintentional killing of a human being without malice, proximately caused by either (1) an unlawful act not amounting to a felony or naturally dangerous to human life, or (2) a culpably negligent act or omission. State v. Redfern, 291 N.C. 319, 321, 230 S.E. 2d 152, 153 (1976). The defendant argues that, as the jury found he acted in self-defense in killing Nadulack, his firing of the pistol was lawful and would not support his conviction of the crime of involuntary manslaughter. This argument overlooks the second half of the definition of involuntary manslaughter.

Although we cannot know the basis for the jury’s verdict finding the defendant not guilty of the murder of Nadulack, we may assume for purposes of this appeal that the defendant is correct and the jury determined that his actions with regard to Nadulack constituted justifiable self-defense. The fact that a person’s intentional act of self-defense against one individual may be justifiable and lawful does not give him license to engage in such lawful act of self-defense in disregard of its consequences to others. Assuming that the defendant acted in self-defense in firing his pistol, he might, nonetheless, be guilty of involuntary manslaughter if he performed this otherwise lawful act in a culpably negligent manner which proximately resulted in the death of India Payne.

In order for an act to be culpably negligent, it “must be such reckless or careless behavior that the act imports a thoughtless disregard of the consequences of the act or the act shows a heedless indifference to the rights and safety of others.” State v. Everhart, 291 N.C. 700, 702, 231 S.E. 2d 604, 606 (1976). Here, one of the State’s witnesses testified that, “I saw Mr. Nadulack falling over the bike and the bike started leaning over and the bullets hit the girl and she started falling backwards.” The witness then observed the defendant drive off laughing. This testimony would have allowed the jury to find that the defendant negligently continued firing after Nadulack had fallen and the need for self-defense had passed.

Additionally, the defendant’s own testimony was that he saw Nadulack and Payne on the motorcycle beside his car and “I got the .45, ducked down as far as I could in the car and started shooting. I had my hand above the window ledge.” The defendant also testified that he did not intend to kill Payne. This evidence was sufficient to permit the jury to find that the defendant showed a heedless indifference to the rights and safety of others or a careless disregard of the consequences of his acts. It would also support a jury finding that the defendant unintentionally shot Payne resulting in her death. Therefore, there was evidence sufficient to support a verdict of guilty of involuntary manslaughter. The trial court did not err in instructing the jury with regard to involuntary manslaughter.

The defendant next assigns as error the trial court’s instructions to the jury concerning the doctrine of transferred intent. As the jury found the defendant not guilty of any crime having intent as an element, any error concerning the doctrine of transferred intent was clearly harmless beyond any doubt.

The defendant received a fair trial free from prejudicial error, and we find

No error.

Chief Judge BROCK and Judge HEDRICK concur.