{ "id": 8525189, "name": "STATE OF NORTH CAROLINA v. GEORGE WILLS", "name_abbreviation": "State v. Wills", "decision_date": "1993-05-18", "docket_number": "No. 916SC1019", "first_page": "206", "last_page": "217", "citations": [ { "type": "official", "cite": "110 N.C. App. 206" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "55 ALR3d 1000", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "opinion_index": -1 }, { "cite": "49 ALR3d 128", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "opinion_index": -1 }, { "cite": "13 ALR4th 796", "category": "reporters:specialty", "reporter": "A.L.R. 4th", "opinion_index": -1 }, { "cite": "73 ALR4th 993", "category": "reporters:specialty", "reporter": "A.L.R. 4th", "opinion_index": -1 }, { "cite": "332 S.E.2d 486", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "314 N.C. 119", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4694561, 4688998, 4696056, 4689758, 4693599 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc/314/0119-05", "/nc/314/0119-04", "/nc/314/0119-01", "/nc/314/0119-03", "/nc/314/0119-02" ] }, { "cite": "327 S.E.2d 628", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "74 N.C. App. 96", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522971 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc-app/74/0096-01" ] }, { "cite": "336 S.E.2d 410", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "77 N.C. App. 741", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525213 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc-app/77/0741-01" ] }, { "cite": "398 S.E.2d 664", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "668", "parenthetical": "citing State v. Lane, 77 N.C. App. 741, 336 S.E.2d 410 (1985)" } ], "opinion_index": 0 }, { "cite": "101 N.C. App. 153", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527395 ], "year": 1990, "pin_cites": [ { "page": "159", "parenthetical": "citing State v. Lane, 77 N.C. App. 741, 336 S.E.2d 410 (1985)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/101/0153-01" ] }, { "cite": "364 S.E.2d 373", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "parenthetical": "the North Carolina Pattern Jury Instructions for Criminal Cases adopt \"the definition [of reasonable doubt] developed in our case law\"" } ], "opinion_index": 0 }, { "cite": "321 N.C. 570", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2569559 ], "year": 1988, "pin_cites": [ { "parenthetical": "the North Carolina Pattern Jury Instructions for Criminal Cases adopt \"the definition [of reasonable doubt] developed in our case law\"" } ], "opinion_index": 0, "case_paths": [ "/nc/321/0570-01" ] }, { "cite": "341 S.E.2d 713", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "722" } ], "opinion_index": 0 }, { "cite": "316 N.C. 203", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4694780 ], "year": 1986, "pin_cites": [ { "page": "218" } ], "opinion_index": 0, "case_paths": [ "/nc/316/0203-01" ] }, { "cite": "49 L.Ed.2d 1207", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1976, "opinion_index": 0 }, { "cite": "428 U.S. 903", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6183298, 6181252, 6182756, 6183146, 6182571, 6181805, 6182223, 6181423, 6181585, 6182964, 6182388, 6181945, 6182076 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/us/428/0903-13", "/us/428/0903-01", "/us/428/0903-10", "/us/428/0903-12", "/us/428/0903-09", "/us/428/0903-04", "/us/428/0903-07", "/us/428/0903-02", "/us/428/0903-03", "/us/428/0903-11", "/us/428/0903-08", "/us/428/0903-05", "/us/428/0903-06" ] }, { "cite": "210 S.E.2d 407", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1974, "pin_cites": [ { "page": "412" } ], "opinion_index": 0 }, { "cite": "286 N.C. 304", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565329 ], "year": 1974, "pin_cites": [ { "page": "310" } ], "opinion_index": 0, "case_paths": [ "/nc/286/0304-01" ] }, { "cite": "134 S.E.2d 386", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1964, "pin_cites": [ { "page": "391" } ], "opinion_index": 0 }, { "cite": "261 N.C. 263", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572845 ], "year": 1964, "pin_cites": [ { "page": "269" } ], "opinion_index": 0, "case_paths": [ "/nc/261/0263-01" ] }, { "cite": "44 S.E. 625", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1903, "pin_cites": [ { "page": "631" } ], "opinion_index": 0 }, { "cite": "132 N.C. 1120", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8663019 ], "year": 1903, "pin_cites": [ { "page": "1137" } ], "opinion_index": 0, "case_paths": [ "/nc/132/1120-01" ] }, { "cite": "116 L.Ed.2d 385", "category": "reporters:federal", "reporter": "L. Ed. 2d", "case_ids": [ 6218248 ], "year": 1991, "pin_cites": [ { "parenthetical": "setting forth the standard of review as being \" 'whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way' that violates the Constitution.\"" } ], "opinion_index": 0, "case_paths": [ "/us/502/0062-01" ] }, { "cite": "417 S.E.2d 742", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1992, "pin_cites": [ { "page": "749", "parenthetical": "discussing the holding in Hudson, 331 N.C. 122, 415 S.E.2d 732, and stating that the instruction in Hudson \"did not equate reasonable doubt with a 'moral certainty' \"" }, { "page": "750" } ], "opinion_index": 0 }, { "cite": "331 N.C. 559", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2501748 ], "year": 1992, "pin_cites": [ { "page": "572", "parenthetical": "discussing the holding in Hudson, 331 N.C. 122, 415 S.E.2d 732, and stating that the instruction in Hudson \"did not equate reasonable doubt with a 'moral certainty' \"" } ], "opinion_index": 0, "case_paths": [ "/nc/331/0559-01" ] }, { "cite": "122 L.Ed.2d 776", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1992, "pin_cites": [ { "parenthetical": "holding that trial court did not err in giving instruction that used the term \"honest, substantial misgiving\" but did not use \"the combination of the terms found offensive by the Cage Court\"" } ], "opinion_index": 0 }, { "cite": "122 L.Ed.2d 136", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1992, "pin_cites": [ { "parenthetical": "holding that trial court did not err in giving instruction that used the term \"honest, substantial misgiving\" but did not use \"the combination of the terms found offensive by the Cage Court\"" } ], "opinion_index": 0 }, { "cite": "415 S.E.2d 732", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1992, "pin_cites": [ { "page": "742", "parenthetical": "holding that trial court did not err in giving instruction that used the term \"honest, substantial misgiving\" but did not use \"the combination of the terms found offensive by the Cage Court\"" } ], "opinion_index": 0 }, { "cite": "331 N.C. 122", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2498297 ], "weight": 2, "year": 1992, "pin_cites": [ { "page": "142" } ], "opinion_index": 0, "case_paths": [ "/nc/331/0122-01" ] }, { "cite": "554 So 2d 39", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 7512640 ], "year": 1989, "pin_cites": [ { "page": "41", "parenthetical": "emphasis added" } ], "opinion_index": 0, "case_paths": [ "/so2d/554/0039-01" ] }, { "cite": "498 U.S. 39", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6217574 ], "weight": 3, "year": 1990, "pin_cites": [ { "page": "40-41" } ], "opinion_index": 0, "case_paths": [ "/us/498/0039-01" ] }, { "cite": "172 S.E.2d 535", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1970, "pin_cites": [ { "page": "539" } ], "opinion_index": 0 }, { "cite": "276 N.C. 361", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561421 ], "year": 1970, "pin_cites": [ { "page": "367" } ], "opinion_index": 0, "case_paths": [ "/nc/276/0361-01" ] }, { "cite": "277 S.E.2d 439", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "441" } ], "opinion_index": 0 }, { "cite": "303 N.C. 173", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571816 ], "year": 1981, "pin_cites": [ { "page": "177" } ], "opinion_index": 0, "case_paths": [ "/nc/303/0173-01" ] }, { "cite": "112 L.Ed.2d 155", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1990, "pin_cites": [ { "parenthetical": "quoting State v. Albert, 303 N.C. 173, 177, 277 S.E.2d 439, 441 (1981)" } ], "opinion_index": 0 }, { "cite": "498 U.S. 871", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6430082, 6430886, 6431174, 6431528, 6430379, 6431086, 6430160, 6431409, 6431282, 6430613, 6430750, 6430970, 6431708, 6430270 ], "year": 1990, "pin_cites": [ { "parenthetical": "quoting State v. Albert, 303 N.C. 173, 177, 277 S.E.2d 439, 441 (1981)" } ], "opinion_index": 0, "case_paths": [ "/us/498/0871-01", "/us/498/0871-07", "/us/498/0871-10", "/us/498/0871-13", "/us/498/0871-04", "/us/498/0871-09", "/us/498/0871-02", "/us/498/0871-12", "/us/498/0871-11", "/us/498/0871-05", "/us/498/0871-06", "/us/498/0871-08", "/us/498/0871-14", "/us/498/0871-03" ] }, { "cite": "390 S.E.2d 314", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1990, "pin_cites": [ { "page": "324", "parenthetical": "quoting State v. Albert, 303 N.C. 173, 177, 277 S.E.2d 439, 441 (1981)" } ], "opinion_index": 0 }, { "cite": "326 N.C. 368", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5309751 ], "weight": 2, "year": 1990, "pin_cites": [ { "page": "383", "parenthetical": "quoting State v. Albert, 303 N.C. 173, 177, 277 S.E.2d 439, 441 (1981)" } ], "opinion_index": 0, "case_paths": [ "/nc/326/0368-01" ] }, { "cite": "245 S.E.2d 564", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "37 N.C. App. 206", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8551611 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/nc-app/37/0206-01" ] }, { "cite": "257 S.E.2d 391", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "298 N.C. 149", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568697 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/nc/298/0149-01" ] }, { "cite": "379 S.E.2d 101", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "103", "parenthetical": "citing State v. Spaulding, 298 N.C. 149, 257 S.E.2d 391 (1979) and State v. Brooks, 37 N.C. App. 206, 245 S.E.2d 564 (1978)" } ], "opinion_index": 0 }, { "cite": "93 N.C. App. 726", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8528654 ], "year": 1989, "pin_cites": [ { "page": "728", "parenthetical": "citing State v. Spaulding, 298 N.C. 149, 257 S.E.2d 391 (1979) and State v. Brooks, 37 N.C. App. 206, 245 S.E.2d 564 (1978)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/93/0726-01" ] }, { "cite": "45 S.E.2d 132", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1947, "opinion_index": 0 }, { "cite": "228 N.C. 228", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8625474 ], "year": 1947, "opinion_index": 0, "case_paths": [ "/nc/228/0228-01" ] }, { "cite": "203 S.E.2d 815", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1974, "opinion_index": 0 }, { "cite": "285 N.C. 158", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562638 ], "year": 1974, "opinion_index": 0, "case_paths": [ "/nc/285/0158-01" ] }, { "cite": "251 S.E.2d 471", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "296 N.C. 412", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566850, 8566924, 8566892, 8566959, 8567003 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/nc/296/0412-01", "/nc/296/0412-03", "/nc/296/0412-02", "/nc/296/0412-04", "/nc/296/0412-05" ] }, { "cite": "248 S.E.2d 456", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "38 N.C. App. 620", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8555451 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/nc-app/38/0620-01" ] }, { "cite": "297 S.E.2d 563", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 1982, "pin_cites": [ { "page": "569" }, { "page": "568", "parenthetical": "emphasis in original" } ], "opinion_index": 0 }, { "cite": "307 N.C. 152", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561161 ], "weight": 3, "year": 1982, "pin_cites": [ { "page": "160" }, { "page": "159-60", "parenthetical": "emphasis in original" } ], "opinion_index": 0, "case_paths": [ "/nc/307/0152-01" ] }, { "cite": "248 S.E.2d 366", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "38 N.C. App. 529", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8554877 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/nc-app/38/0529-01" ] }, { "cite": "338 S.E.2d 99", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1986, "opinion_index": 0 }, { "cite": "315 N.C. 371", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4717740 ], "weight": 2, "year": 1986, "opinion_index": 0, "case_paths": [ "/nc/315/0371-01" ] }, { "cite": "375 S.E.2d 692", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1989, "pin_cites": [ { "page": "695" }, { "page": "695" }, { "page": "695", "parenthetical": "victim's past physical abuse of defendant and victim's threat to beat defendant thirty minutes before shooting not sufficient to warrant self-defense instruction" } ], "opinion_index": 0 }, { "cite": "92 N.C. App. 671", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527498 ], "weight": 3, "year": 1989, "pin_cites": [ { "page": "675-76" }, { "page": "675" }, { "page": "676" } ], "opinion_index": 0, "case_paths": [ "/nc-app/92/0671-01" ] } ], "analysis": { "cardinality": 1051, "char_count": 24679, "ocr_confidence": 0.766, "pagerank": { "raw": 2.1618190013584228e-07, "percentile": 0.7699790605552679 }, "sha256": "919a81491b53f98375be01397484db1b7a91615fb6c8f9efa6fd44b59afd440a", "simhash": "1:03f7042a5cab009c", "word_count": 4120 }, "last_updated": "2023-07-14T20:46:54.224272+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges ORR and WYNN concur." ], "parties": [ "STATE OF NORTH CAROLINA v. GEORGE WILLS" ], "opinions": [ { "text": "EAGLES, Judge.\nDefendant brings forward six assignments of error. After a careful review of the record, transcripts, and briefs, we find no error. Defendant\u2019s assignments of error, Nos. 1, 2, 3, 5, 8, 11, and 12, are not brought forward and are deemed abandoned. N.C.R. App. P. 28(b)(5).\nI.\nFirst, defendant contends that the trial court erred in refusing to instruct the jury on self-defense. We disagree.\nIn State v. Kinney, 92 N.C. App. 671, 675-76, 375 S.E.2d 692, 695 (1989), this Court stated:\nA defendant may use deadly force to repel a felonious assault only if it reasonably appears necessary to protect himself from death or great bodily harm. State v. Hunter, 315 N.C. 371, 338 S.E.2d 99 (1986). However, a defendant may not use deadly force to protect himself from mere bodily harm or offensive physical contact and use of deadly force to prevent harm other than death or great bodily harm is excessive as a matter of law. Id. An assault with intent to kill is justified under self-defense if a defendant is in actual or apparent danger of death or great bodily harm. State v. Dial, 38 N.C. App. 529, 248 S.E.2d 366 (1978).\nA self-defense instruction is required if any evidence is presented from which it can be determined that it was necessary or reasonably appeared necessary for a defendant to kill the victim to protect himself from death or great bodily harm. State v. Bush, 307 N.C. 152, 297 S.E.2d 563 (1982). It is for the trial court to determine in the first instance whether as a matter of law there is evidence to require a self-defense instruction. Id. The court must consider the evidence in the light most favorable to the defendant and where there is evidence of self-defense, the court must give the instruction even if there are discrepancies or contradictions in the evidence. State v. Blackmon, 38 N.C. App. 620, 248 S.E.2d 456 (1978), disc. rev. denied, 296 N.C. 412, 251 S.E.2d 471 (1979); State v. Dooley, 285 N.C. 158, 203 S.E.2d 815 (1974).\nTo merit a self-defense instruction, two questions must be answered in the affirmative: \u201c(1) Is there evidence that the defendant in fact formed a belief that it was necessary to kill his adversary in order to protect himself from death or great bodily harm, and (2) if so, was the belief reasonable?\u201d Bush, 307 N.C. at 160, 297 S.E.2d at 569. (Emphasis added.) If the answer to either question is \u201cno\u201d then a self-defense instruction is not required. Id.\nThe facts and circumstances surrounding the assault and not a defendant\u2019s stated belief are the determinative factors as to whether a defendant acted as an aggressor or in his own defense. State v. Randolph, 228 N.C. 228, 45 S.E.2d 132 (1947).\nHere, the facts and circumstances do not warrant a self-defense instruction because there is no evidence \u201cfrom which it can be determined that it was necessary or reasonably appeared necessary for [this] defendant to kill the victim [Mr. Whitaker] to protect himself from death or great bodily harm.\u201d Kinney, 92 N.C. App. at 675, 375 S.E.2d at 695. Defendant\u2019s own testimony taken in the light most favorable to him indicates only that Mr. Whitaker \u201cwalk[ed]\u201d towards him immediately prior to the shooting. No other witness testified that Mr. Whitaker moved towards defendant. The State\u2019s evidence presented at trial tended to show that at the time Mr. Whitaker was shot, Mr. Whitaker did not have a weapon and had not attempted to strike defendant, who was approximately six feet away. Upon cross-examination, defendant admitted that he had never seen Mr. Whitaker with a weapon of any type at any time. Defendant admitted that he (defendant) \u201ccould have kept walking up [Highway] 301\u201d and could have avoided the scene of the Whitakers\u2019 argument where he eventually shot Mr. Whitaker. \u201cIn order for a defendant to be free from fault in causing the attack, he must not have provoked the affray by seeking out his victim.\u201d State v. Lovell, 93 N.C. App. 726, 728, 379 S.E.2d 101, 103 (1989) (citing State v. Spaulding, 298 N.C. 149, 257 S.E.2d 391 (1979) and State v. Brooks, 37 N.C. App. 206, 245 S.E.2d 564 (1978)). The evidence also showed that defendant shot Mr. Whitaker at least five or six times and continued to shoot Mr. Whitaker even after he had fallen to the ground after the first two shots.\nDefendant\u2019s evidence that Mr. Whitaker had punched defendant two days earlier and had threatened to assault defendant earlier during the day of the shooting is not sufficient \u201cto show that at the time of the shooting defendant was in actual or apparent danger of death or great bodily harm.\u201d Kinney, 92 N.C. App. at 676, 375 S.E.2d at 695 (victim\u2019s past physical abuse of defendant and victim\u2019s threat to beat defendant thirty minutes before shooting not sufficient to warrant self-defense instruction); Hunter, 315 N.C. 371, 338 S.E.2d 99 (1986). Nor are defendant\u2019s self-serving statements that he \u201cwas scared\u201d and \u201cwas afraid that he [Mr. Whitaker] would try to do something to me\u201d an adequate basis for an instruction on self-defense. \u201c[T]hese self-serving statements do no more than indicate merely some vague and unspecified nervousness or fear; they do not amount to evidence that the defendant had formed any subjective belief that it was necessary to kill the [victim] in order to save himself from death or great bodily harm.\u201d Bush, 307 N.C. 152, 159-60, 297 S.E.2d 563, 568 (1982) (emphasis in original). This assignment of error fails.\nII.\nIn his next three assignments of error, defendant argues that he was \u201cdeprived of his right to a fair trial by the trial court\u2019s failure to prevent cross-examination of the defendant and his witness [Mr. Pittman] designed to suggest that the defendant was a person of bad character and by the prosecutor\u2019s persistence in posing questions that implied prejudicial facts without regard to the witness\u2019 answers.\u201d We find no error.\nDefendant contends that the State\u2019s cross-examination of defendant and his witness, Mr. Pittman, regarding \u201c[t]he events surrounding the defendant\u2019s gunshot wound .... was clearly an improper attempt to impeach both the defendant and Pittman as persons of bad, violent character\u201d in violation of N.C.R. Evid. 608(b). We disagree. Through the testimony of two witnesses, defendant introduced evidence of the gunshot wound he had suffered two weeks earlier during an incident at which Mr. Pittman was present. In his brief, defendant admits that this evidence was introduced in an attempt to show \u201cwhy he was in fear of serious bodily injury from Stephen Whitaker at the time of the shooting [of Mr. Whitaker].\u201d Our Supreme Court has stated:\n[T]he law wisely permits evidence not otherwise admissible to be offered to explain or rebut evidence elicited by the defendant himself. Where one party introduces evidence as to a particular fact or transaction, the other party is entitled to introduce evidence in explanation or rebuttal thereof, even though such latter evidence would be incompetent or irrelevant had it been offered initially.\nState v. Leroux, 326 N.C. 368, 383, 390 S.E.2d 314, 324, cert. denied, 498 U.S. 871, 112 L.Ed.2d 155 (1990) (quoting State v. Albert, 303 N.C. 173, 177, 277 S.E.2d 439, 441 (1981)). Accordingly, by introducing evidence of his own gunshot wound in his attempt to establish self-defense, defendant opened the door for the State\u2019s cross-examination concerning the events immediately surrounding defendant\u2019s gunshot wound.\nThe State\u2019s inquiry regarding the prior shooting of defendant was a proper attempt to explain, explore, or rebut defendant\u2019s proffered evidence. Leroux, 326 N.C. 368, 390 S.E.2d 314. During the State\u2019s cross-examination, defendant admitted inter alia he carried a revolver because of his fear of the man (not Mr. Whitaker) who shot him two weeks earlier. This admission helped to negate defendant\u2019s assertion of self-defense by rebutting defendant\u2019s earlier claim that he carried a revolver because of his fear of Mr. Whitaker. Even if the trial court may have erred by not sustaining defendant\u2019s objections to the form of the State\u2019s questions or to the admission of the subsequent testimony, it was harmless error. The evidence against the defendant is so overwhelming that we are not convinced that \u201chad the error in question not been committed, a different result would have been reached at the trial.\u201d G.S. 15A-1443(a).\nIII.\nDefendant contends that the trial court\u2019s instruction defining reasonable doubt was improper and warrants a new trial. We disagree.\nDefendant requested the pattern jury instruction for reasonable doubt, N.C.P.I. \u2014Crim. 101.10, and additional language from State v. Riera, 276 N.C. 361, 367, 172 S.E.2d 535, 539 (1970). The trial court denied defendant\u2019s request and gave the jury the following charge:\nNow a reasonable doubt, members of the jury, means exactly what it says. It\u2019s not a mere, possible, academic, or a forced doubt because there are few things in human experience which are beyond a shadow of a doubt or beyond all doubt, nor is it a doubt suggested by the ingenuity of counsel, or even by your ingenuity of mind not legitimately warranted by the evidence and the testimony here in this case.\nYour reason and your common sense should tell you that a doubt wouldn\u2019t be reasonable if it were founded upon or suggested by any of these type of considerations. A reasonable doubt is a sane sensible doubt, an honest substantial misgiving, one based on reason and common sense reasonably arising out of some or all of the evidence that has been presented or the lack of'or insufficiency of that evidence as the case may be. Proof beyond a reasonable doubt is such proof that fully satisfies or entirely convinces you of the defendant\u2019s guilt.\nDefendant argues that the above instruction constituted reversible error, thus entitling him to a new trial based upon the United States Supreme Court\u2019s decision in Cage v. Louisiana, 498 U.S. 39, 112 L.Ed.2d 339 (1990). In Cage, 498 U.S. at 40-41, 112 L.Ed.2d at 341-42, the United States Supreme Court noted the Louisiana trial court\u2019s instruction and commented as follows:\nThe instruction provided in relevant part:\n\u201cIf you entertain a reasonable doubt as to any fact or element necessary to constitute the defendant\u2019s guilt, it is your duty to give him the benefit of that doubt and return a verdict of not guilty. Even where the evidence demonstrates a probability of guilt, if it does not establish such guilt beyond a reasonable doubt, you must acquit the accused. This doubt, however must be a reasonable one; that is one that is founded upon a real tangible substantial basis and not upon mere caprice and conjecture. It must be such doubt as would give rise to a grave uncertainty, raised in your mind by reasons of the unsatisfactory character of the evidence or lack thereof. A reasonable doubt is not a mere possible doubt. It is an actual substantial doubt. It is a doubt that a reasonable man can seriously entertain. What is required is not an absolute or mathematical certainty, but a moral certainty. State v. Cage, 554 So 2d 39, 41 (La 1989) (emphasis added).\n. . . The charge did at one point instruct that to convict, guilt must be found beyond a reasonable doubt; but it then equated a reasonable doubt with a \u201cgrave uncertainty\u201d and an \u201cactual substantial doubt,\u201d and stated that what was required was a \u201cmoral certainty\u201d that the defendant was guilty. It is plain to us that the words \u201csubstantial\u201d and \u201cgrave,\u201d as they are commonly understood, suggest a higher degree of doubt than is required for acquittal under the reasonable doubt standard. When those statements are then considered with the reference to \u201cmoral certainty,\u201d rather than eviden-tiary certainty, it becomes clear that a reasonable juror could have interpreted the instruction to allow a finding of guilt based on a degree of proof below that required by the Due Process Clause.\nWe find that the charge given in Cage, supra, is sufficiently distinguishable from the charge given here so as not to justify a new trial. See Hudson, 331 N.C. 122, 142, 415 S.E.2d 732, 742, cert. denied, \u2014 U.S. \u2014, 122 L.Ed.2d 136, rehr\u2019g denied, \u2014 U.S. \u2014, 122 L.Ed.2d 776 (1992) (holding that trial court did not err in giving instruction that used the term \u201chonest, substantial misgiving\u201d but did not use \u201cthe combination of the terms found offensive by the Cage Court\u201d); State v. Montgomery, 331 N.C. 559, 572, 417 S.E.2d 742, 749 (1992) (discussing the holding in Hudson, 331 N.C. 122, 415 S.E.2d 732, and stating that the instruction in Hudson \u201cdid not equate reasonable doubt with a \u2018moral certainty\u2019 \u201d); Estelle v. McGuire, 502 U.S. \u2014, \u2014, 116 L.Ed.2d 385, 399 & n.4 (1991) (setting forth the standard of review as being \u201c \u2018whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way\u2019 that violates the Constitution.\u201d). In the present case, reasonable doubt was not equated with a \u201cgrave uncertainty\u201d or \u201cactual substantial doubt\u201d as in Cage, supra. In fact, here the trial court told the jury that \u201creasonable doubt . . . means exactly what it says.\u201d \u201c[W]e repeat what this Court has said a number of times, \u2018The words \u201creasonable doubt\u201d in themselves, are about as near self-explanatory as any explanation that can be made of them.\u2019 State v. Wilcox, 132 N.C. 1120, 1137, 44 S.E. 625, 631 (1903); State v. Phillip, 261 N.C. 263, 269, 134 S.E.2d 386, 391 (1964).\u201d State v. Ward, 286 N.C. 304, 310, 210 S.E.2d 407, 412 (1974), death sentence vacated, 428 U.S. 903, 49 L.Ed.2d 1207 (1976).\nHere, the trial court instructed the jury regarding the requirement of finding defendant\u2019s guilt based upon an evidentiary certainty rather than by a mere \u201cmoral certainty\u201d as in Cage, supra. See Montgomery, 331 at 573, 417 S.E.2d at 750 (holding that trial court\u2019s reasonable doubt instruction violated the requirements of the Due Process Clause as interpreted in Cage where the trial court \u201cjoined its definition of a reasonable doubt as an \u2018honest, substantial misgiving\u2019 with a requirement that to convict the jury must be convinced to a \u2018moral certainty,\u2019 rather than to evidentiary certainty\u201d). Furthermore, here the trial court stated that reasonable doubt was \u201cone based on reason and common sense reasonably arising out of some or all of the evidence that has been presented or the lack of or insufficiency of that evidence as the case may be.\u201d (Emphasis added.) Accordingly, this assignment of error is overruled. Even so, we recommend the use of the pattern jury instruction on reasonable doubt. N.C.P.I. \u2014Crim. 101.10. See State v. Rogers, 316 N.C. 203, 218, 341 S.E.2d 713, 722 (1986), overruled on other grounds, State v. Vandiver, 321 N.C. 570, 364 S.E.2d 373 (1988) (the North Carolina Pattern Jury Instructions for Criminal Cases adopt \u201cthe definition [of reasonable doubt] developed in our case law\u201d).\nIV.\nFinally, defendant contends that \u201cthe trial court erred in failing to find a statutory mitigating factor established by uncontradicted evidence.\u201d We find no error.\nDefendant contends that the trial court erred by not finding as a statutory mitigating factor pursuant to G.S. \u00a7 15A-1340.4(a)(2)(i) that \u201cdefendant acted under strong provocation, or the relationship between the defendant and the victim was otherwise extenuating, based on the evidence at trial of Whitaker\u2019s prior confrontations with the defendant and his prior assault of the defendant at a time when he knew that the defendant was injured and still recovering from a gunshot wound.\u201d \u201cThe trial court\u2019s failure to find a mitigating factor will not be overturned on appeal unless the evidence in support of the factor is uncontradicted, substantial, and there is no reason to doubt its credibility.\u201d State v. Foster, 101 N.C. App. 153, 159, 398 S.E.2d 664, 668 (1990) (citing State v. Lane, 77 N.C. App. 741, 336 S.E.2d 410 (1985)). Given the lapse of time between the previous encounter between defendant and Mr. Whitaker and the time of the shooting and given the absence of any weapon on Mr. Whitaker\u2019s person at the time of the shooting, we conclude that uncontradicted evidence of strong provocation does not exist. See State v. Highsmith, 74 N.C. App. 96, 327 S.E.2d 628, disc. review denied, 314 N.C. 119, 332 S.E.2d 486 (1985). Accordingly, this assignment of error fails.\nV.\nFor the reasons stated, we find no error.\nNo error.\nJudges ORR and WYNN concur.", "type": "majority", "author": "EAGLES, Judge." } ], "attorneys": [ "Attorney General Lacy H. Thornburg, by Assistant Attorney General Melissa L. Trippe, for the State.", "Hux, Livermon & Armstrong, by James S. Livermon, Jr., for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. GEORGE WILLS\nNo. 916SC1019\n(Filed 18 May 1993)\n1. Assault and Battery \u00a7 100 (NCI4th|\u2014 self-defense \u2014 insufficiency of evidence\nIn a prosecution of defendant for assault with a deadly weapon with intent to kill inflicting serious injury, the trial court did not err in refusing to instruct the jury on self-defense where the evidence tended to show that the unarmed victim, who was six feet from defendant, walked toward defendant immediately prior to- the shooting; defendant admitted that he had never seen the victim with a weapon of any kind and that he could have avoided the scene of the crime by continuing to walk along the highway; defendant shot the victim at least five or six times even after he had fallen to the ground after the first two shots; and evidence that the victim had punched defendant two days earlier and had threatened to assault defendant earlier during the day of the shooting was not sufficient to show that at the time of the shooting defendant was in actual or apparent danger of death or great bodily harm.\nAm Jur 2d, Assault and Battery \u00a7\u00a7 100, 195.\nStandard for determination of reasonableness of criminal defendant\u2019s belief, for purposes of self-defense claim, that physical force is necessary \u2014 modern cases. 73 ALR4th 993.\n2. Evidence and Witnesses \u00a7 2917 (NCI4th)\u2014 prior shooting of defendant \u2014evidence offered by defendant \u2014 State\u2019s cross-examination proper\nThere was no merit to defendant\u2019s contention that the State\u2019s cross-examination of him and his witness regarding the events surrounding defendant\u2019s gunshot wound from two weeks earlier was an attempt to impeach both defendant and his witness as persons of bad, violent character in violation of N.C.R. Evid. 608(b), since, by introducing evidence of his own gunshot wound in his attempt to establish self-defense, defendant opened the door for the State\u2019s cross-examination concerning the events immediately surrounding defendant\u2019s gunshot wound, and the State\u2019s inquiry was a proper attempt to explain, explore, or rebut defendant\u2019s proffered evidence.\nAm Jur 2d, Witnesses \u00a7\u00a7 808, 835, 838, 865.\nCross-examination of character witness for accused with reference to particular acts or crimes \u2014modern cases. 13 ALR4th 796.\n3. Criminal Law \u00a7 756 (NCI4th)\u2014 reasonable doubt \u2014 instructions proper\nThe trial court\u2019s instructions on reasonable doubt that it \u201cmeans exactly what it says\u201d and that reasonable doubt was \u201cone based on reason and common sense reasonably arising out of some or all of the evidence that has been presented or the lack of or insufficiency of that evidence as the case may be\u201d was proper, even though the better practice is to follow the pattern jury instructions on reasonable doubt.\nAm Jur 2d, Evidence \u00a7 1171; Trial \u00a7\u00a7 1168-1175, 1371.\nConstruction of statutes or rules making mandatory the use of pattern or uniform approved jury instructions. 49 ALR3d 128.\n4. Criminal Law \u00a7 1242 (NCI4th)\u2014 strong provocation \u2014mitigating factor not established by uncontradicted evidence\nIn a prosecution of defendant for assault with a deadly weapon with intent to kill inflicting serious injury, the trial court did not err in failing to find as a statutory mitigating factor that defendant acted under strong provocation, since there was a lapse of time between the previous encounter between defendant and the victim and this shooting, there was no weapon on the victim\u2019s person at the time of the shooting, and uncontradicted evidence of strong provocation therefore did not exist. N.C.G.S. \u00a7 15A-1340.4(a)(2)i.\nAm Jur 2d, Assault and Battery \u00a7\u00a7 61, 77, 96.\nWithdrawal, after provocation of conflict, as reviving right of self-defense. 55 ALR3d 1000.\nAppeal by defendant from judgment signed 9 May 1991 by Judge Howard R. Greeson, Jr., in Halifax County Superior Court. Heard in the Court of Appeals 12 January 1993.\nOn 9 May 1991, defendant was sentenced to the maximum term of twenty years imprisonment after a jury found him guilty of assault with a deadly weapon with intent to kill inflicting serious injury. G.S. 14-32(a). Defendant admitted shooting the victim, Stephen Whitaker, but asserted the defense of self-defense. Defendant appeals.\nThe State\u2019s evidence tended to show the following: On 25 September 1990 at approximately 5:00 p.m., Mr. Whitaker and his wife, Yvette Whitaker, were arguing. Mrs. Whitaker drove away in her car. Mr. Whitaker followed in a separate car and eventually drove in front of Mrs. Whitaker\u2019s car, causing her to stop. Mr. Whitaker walked over to her car and they continued their argument. Defendant and Dalerick \u201cCakey\u201d Pittman approached the Whitakers on foot. Defendant then pulled a H & R .22 caliber nine shot revolver from his pants. Mr. Whitaker did not have a weapon. Mrs. Whitaker saw defendant and stated, \u201cGeorge, no.\u201d Standing approximately six feet from Mr. Whitaker, defendant shot Mr. Whitaker several times and then threw the revolver into some bushes as he ran away.\nOn 27 September 1990, defendant was taken into custody. Defendant gave a statement in which he stated that he (defendant) had been shot in the neck during an argument with another man approximately two weeks before he shot Mr. Whitaker. Additionally, defendant\u2019s statement read as follows:\nI have had about four encounters with Yvette\u2019s husband, Steve Whitaker, recently. The latest one was Tuesday, September the 25th, 1990 about 2 p.m. Steve [Mr. Whitaker] passed me on [sic] a car as I walked up 301 Highway. He [Mr. Whitaker] yelled, \u201cI\u2019m going to beat your ass if I see you up the street.\u201d The Sunday before this Steve [Mr. Whitaker] had hit me several times with his fist. I didn\u2019t try to fight. Dalerick Pittman who was with me then got him off of me.\nLater Tuesday afternoon, September the 25th, 1990 I saw Steve [Mr. Whitaker] chasing Yvette [Mrs. Whitaker] on [sic] his car. He slid his car in front of Yvette\u2019s so she would have to stop. H\u00e9 got out of his car and walked up to Yvette\u2019s car window. When they passed me it was at Bell and McDaniel Streets. By the time he could stop her they were one block west of me at Bell and Railroad Street. Dalerick \u201cCakey\u201d Pittman was walking with me. We had just bought some food at SKATS Restaurant. Cakey and I ran up the street toward Steve [Mr. Whitaker]. I handed Cakey a bag with my food in it. I then pulled out a .22 caliber nine shot pistol from my pants. I walked up to Steve Whitaker and asked him why had he done this to me. He said, \u201cBecause I will do what I want to do.\u201d I raised the pistol and fired at least nine times at Steve Whitaker. I knew I hit him because he fell back against the car and then to the ground.\nDefendant\u2019s evidence tended to show the following: Mr. Pittman testified inter alia that a \u201cfew days before\u201d the 25 September 1990 shooting, a fight between the two men started when Mr. Whitaker told defendant that he (defendant) had been warned about \u201cmessing\u201d with his (Mr. Whitaker\u2019s) wife and that he (Mr. Whitaker) was going to \u201ckick [defendant\u2019s] tail.\u201d At trial, defendant testified that around noon on the day of the offense charged (25 September 1990), Mr. Whitaker drove by defendant and threatened to beat him (defendant) if he was seen on the street. Defendant testified that later that afternoon after he (defendant) pulled the revolver from his pants Mr. Whitaker stated, \u201c T see the gun and you better use it or else.\u2019 \u201d Defendant testified that Mr. Whitaker stated that he fought defendant previously because he (Mr. Whitaker) wanted to and because he (Mr. Whitaker) was \u201cgrown.\u201d Defendant testified that he only intended to \u201cscare\u201d Mr. Whitaker with the revolver \u201cso he [Mr. Whitaker] would leave\u201d but that he (defendant) \u201cjust panicked because I was afraid of what he would do to me\u201d and began shooting. Defendant testified that he was afraid of Mr. Whitaker because Mr. Whitaker was bigger than he and because Mr. Whitaker had already beaten him once before. Defendant further testified that he carried the revolver \u201cfor protection\u201d because he did not think that he could defend himself considering his physical condition, having been shot by another man two weeks earlier.\nAttorney General Lacy H. Thornburg, by Assistant Attorney General Melissa L. Trippe, for the State.\nHux, Livermon & Armstrong, by James S. Livermon, Jr., for defendant-appellant." }, "file_name": "0206-01", "first_page_order": 236, "last_page_order": 247 }