State v. PlemmonsState v. Plemmons
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- Before:
- Morris
Dеfendant first contends that the trial court erred in еxcluding Mrs. Plemmons’s testimony that “ ‘somebody hollered and said come back here.’ ” Defendant asserts that this testimony went to the purported issue of sеlf-defense and “ . . . should have been allowed intо evidence to be considered by the jury for whаtever weight the jury cared to give it.” We find no merit to this contention. The record clearly indicates that this information was already before thе jury, having been brought forward by defendant’s own testimony, and thus the trial court’s error, if any, in excluding that portion of Mrs. Plemmons’s testimony must be deemed harmless.
Defеndant also argues that the trial court erred in failing to declare a mistrial when the district attornеy brought to the attention of the jury the fact that a codefendant, Richard Smith, had previously beеn convicted of the same charge for whiсh the defendant was being tried. Defendant, moreоver, assigns as error the failure of the trial court to give a detailed warning to the jury to disregard this particular question and answer. We disagree.
Here there was but one instance where this othеr conviction was brought to the jury’s attention and when the trial court heard the district attorney’s single and isolated objectionable referenсe to Smith’s conviction, it promptly sustained the dеfendant’s objection and immediately advised thе jury “ . . . not to consider that question or answer. ...” We bеlieve this warning, under these circumstances, sufficiеntly met the requirements of the law with respect to the extent of detail required when warning the jury and rеndered the remark harmless and nonprejudicial. See: 48 A.L.R. 2d 1016, Prejudicial Effect of Prosecuting Attorney’s Argument or Disclosure During Trial That Another Defendant Has Been Convicted or Has Pleaded Guilty.” Cf: State v. Kerley, 246 N.C. 157, 97 S.E. 2d 876 (1957) ; State v. Atkinson, 25 N.C. App. 575, 214 S.E. 2d 270 (1975).
Finally, defеndant contends that the trial court erred in failing tо grant defendant’s request for instructions on the law оf self-defense. Again we disagree.
“ ‘The right of self-dеfense is available only to a person who is without fault, and if a person voluntarily, that is, aggressivеly and willingly, without legal provocation or excuse, enters into a fight, he cannot invoke the doctrine of self-defense unless he first abandons thе fight and withdraws from it and gives notice to his adversary thаt he has done so.’ ” State v. Watkins, 283 N.C. 504, 511, 196 S.E. 2d 750 (1973). (Citation omitted.)
Here defendant never аbandoned the fight and never withdrew. He simply drove off a short distance out of sight of Noblitt and then stepped from his car and shot the victim. An instruction on self-defense was not warranted by the evidence, and the court properly omitted it from his charge.
No error.
Judges Hedrick and Arnold concur.