{
  "id": 8551747,
  "name": "STATE OF NORTH CAROLINA v. CARL HUBERT ALSTON, JR.",
  "name_abbreviation": "State v. Alston",
  "decision_date": "1978-04-04",
  "docket_number": "No. 7718SC884",
  "first_page": "691",
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    "judges": [
      "Judge BRITT concurs.",
      "Judge WEBB dissents."
    ],
    "parties": [
      "STATE OF NORTH CAROLINA v. CARL HUBERT ALSTON, JR."
    ],
    "opinions": [
      {
        "text": "HEDRICK, Judge.\nIn his first assignment of error the defendant contends that the trial court erred in \u201cfailing to find facts upon which to base its conclusions after conducting three voir dire examinations.\u201d The first voir dire hearing to which the defendant refers was conducted upon the defendant\u2019s objection to the admission of testimony recounting the incriminating statements made by defendant as he entered the hospital with his wife.\nIt is a firmly established rule that when the defendant objects to the introduction of an in-custody confession, \u201cthe trial judge must conduct a voir dire hearing to determine whether the confession was voluntarily made and whether the requirements of the Miranda decision have been met.\u201d State v. Biggs, 289 N.C. 522, 529-30, 223 S.E. 2d 371, 376 (1976). At the conclusion of the hearing the trial judge must make specific findings of fact if there are any material conflicts in the evidence. State v. Siler, 292 N.C. 543, 234 S.E. 2d 733 (1977).\nThe first statement by the defendant to which Officer Joyner testified was made when the defendant brought his wife to the emergency room. Officer Joyner who happened to be at the hospital for another matter observed the defendant walk in and heard him state \u201cthat a man had cut his wife and that he had stabbed him and stabbed him and left him out there.\u201d A few minutes later as Officer Joyner was talking on the telephone he overheard the defendant state to the desk clerk \u201cthat a man that would do something like that deserved killing, and he was going back out there.\u201d The record clearly and affirmatively demonstrates that the defendant was not in the custody of the police officer when he made the incriminating statements. Thus, the cases cited by the defendant and relied upon in his brief are not controlling in the present case.\nIn State v. Perry, 276 N.C. 339, 172 S.E. 2d 541 (1970), the defendant argued that the trial court erred in failing to conduct a voir dire hearing upon his objections to the admission of statements made to a fellow inmate. Justice Higgins, speaking for the Supreme Court, rejected the defendant\u2019s argument as follows:\nThe defendant misinterprets the necessity for the voir dire examination to determine the voluntariness of his admissions to his jailmate Pierce. As a general rule, voluntary admissions of guilt are admissible in evidence in a trial. To render them inadmissible, incriminating statements must be made under some sort of pressure.\nState v. Perry, supra at 345, 172 S.E. 2d at 546. In the present case, as in Perry, the defendant volunteered the incriminating statements free from any threat or compulsion. Thus, the trial judge was not required to conduct a voir dire hearing. And when, in his discretion, he sent the jury from the room and held a hearing to determine the admissibility of the statements, he was not then required to support his determination with specific findings of fact.\nThe second and third voir dire hearings were held to determine the admissibility of State Exhibits consisting of photographs of the deceased and the interior of the automobile which the defendant drove to the hospital and a knife found in the automobile. Following the hearings the photographs were admitted by the trial court for illustrative purposes, but the knife was excluded. The defendant apparently argues that because of some \u201cconfusion\u201d surrounding the admission of the photographs the trial court was required to make specific findings of fact at the conclusion of the hearings. We are unaware of any rule requiring the trial judge to make findings of fact upon the admission of illustrative evidence and we see no reason to impose such a burden. This assignment of error is overruled.\nBy his second assignment of error the defendant contends that the trial court erred in failing to grant defendant\u2019s motions for judgment as of nonsuit at the close of the State\u2019s evidence. While there is no direct evidence identifying the defendant as the person who killed the deceased, there is evidence that there was an altercation between the defendant and the deceased after which the defendant pursued the deceased from the Carlotta Club parking lot; that a trail of blood led from the parking lot to the site of the killing; that a man was stabbing another man on Market Street near the Carlotta Club; and that the defendant admitted to stabbing a man who had cut his wife. Viewed in the light most favorable to the State, State v. McNeil, 280 N.C. 159, 185 S.E. 2d 156 (1971), this evidence is sufficient to require submission of the case to the jury and to support the verdict.\nIn his third assignment of error the defendant contends that the trial court erred in its instructions to the jury regarding the defendant\u2019s right \u201cnot to offer evidence.\u201d At the close of the State\u2019s evidence the trial judge directed the jury to go to lunch explaining that \u201c[t]he defendant has elected not to put on any evidence which is the privilege of the defendant, of course.\u201d Thereafter in his charge, the trial judge fully instructed the jury with respect to the defendant\u2019s failure to testify or offer evidence. The defendant, without citing any authority, argues that the prior statement by the trial judge with respect to the defendant\u2019s right not to testify was inadequate to explain the law and was not cured by the subsequent full instruction. The trial judge\u2019s instruction satisfies the standards of G.S. 8-54, conforms to instructions approved by our Supreme Court, State v. Covington, 290 N.C. 313, 226 S.E. 2d 629 (1976), and was almost identical to that suggested by the defendant. Any prejudice resulting from the trial judge\u2019s prior statement was cured by his instruction. This assignment of error is overruled.\nBy his fourth assignment of error the defendant contends that the trial court erred in its instruction to the jury relative to its consideration of circumstantial evidence. The trial judge charged in pertinent part as follows:\nCircumstantial evidence is recognized and accepted proof in a court of law. However, before you may rely upon the evidence to find the defendant guilty, you must be satisfied beyond a reasonable doubt that not only is the circumstantial evidence relied upon by the State consistent with the defendant being guilty but that it is inconsistent with his being innocent.\nIn the absence of special request by the defendant the trial judge is not required to instruct on circumstantial evidence. State v. Davis, 25 N.C. App. 181, 212 S.E. 2d 516 (1975). The record in this case does not show that any such request was tendered by the defendant.\nIn any event, it has been held that no set form of words is necessary to explain to the jury the intensity of proof required for conviction on the basis of circumstantial evidence. State v. Westbrook, 279 N.C. 18, 181 S.E. 2d 572 (1971). We think the instruction in the present case, measured by standards formulated by the Supreme Court, is adequate to convey the substance of the law that in order to justify conviction all circumstances proved must be \u201cconsistent with the hypothesis of guilt and inconsistent with every other reasonable hypothesis.\u201d State v. Westbrook, supra at 42, 181 S.E. 2d at 586. We are aware that the instruction found deficient in State v. Lowther, 265 N.C. 315, 144 S.E. 2d 64 (1965), is similar to that challenged in the present case. While we do not project the instruction in the present case as a model, we do think that it is sufficiently explicit to escape the infirmities of the Lowther instruction. Accordingly, we find no error in the challenged instruction.\nThe defendant next contends that the trial court erred in its instruction to the jury regarding illustrative evidence. When the photographs of the deceased were admitted into evidence the trial judge instructed the jury that \u201cyou may consider these photographs only for the purpose of illustrating the testimony of this witness, if you do so find that they illustrate her testimony, and for no other purpose.\u201d When the photograph of the interior of the defendant\u2019s automobile was admitted the trial judge instructed to the same effect. These instructions which were apparently overlooked by the defendant in his argument were clearly adequate to explain the law, and the trial judge was not required to instruct further. State v. Sparks, 285 N.C. 631, 207 S.E. 2d 712 (1974); 1 Stansbury \u00a7 34 (Brandis Rev. 1973).\nNext, the defendant argues that the trial court erred in failing to instruct on the law of defense of family. A person has the right to kill in defense of self or family. State v. Carter, 254 N.C. 475, 119 S.E. 2d 461 (1961). And if there is evidence tending to raise such a defense then it becomes a substantial feature of the case and the defendant is entitled to an instruction thereon. State v. Dooley, 285 N.C. 158, 203 S.E. 2d 815 (1974). In the present case the record is devoid of any evidence that the defendant in stabbing the deceased was acting to save his wife from death or great bodily harm. To the contrary, the evidence tends to show that the defendant chased the deceased from the Carlotta Club parking lot to a spot one hundred yards away where the stabbing occurred. The defendant\u2019s statement that he had stabbed the man who cut his wife was not sufficient, standing alone, to raise an issue of defense of family. State v. Davis, 289 N.C. 500, 223 S.E. 2d 296 (1976).\nIn his seventh assignment of error the defendant contends that the trial court erred in failing to \u201cexplain to the jury that second degree murder and voluntary manslaughter are intentional killings.\u201d The exception on which this assignment is based refers to the following definitions included in the judge\u2019s charge:\nSecond degree murder is the unlawful killing of a human being with malice.\nVoluntary manslaughter is the unlawful killing of a human being without malice and without premeditation and deliberation.\nLater in his charge the judge instructed that in order to find the defendant guilty of second degree murder the jury must find \u201cthat the defendant intentionally and with malice stabbed\u201d the deceased; and that in order to find the defendant guilty of voluntary manslaughter the jury must find that the defendant \u201cintentionally and without justification or excuse, stabbed\u201d the deceased. The defendant argues that the subsequent instructions failed to cure the deficiencies of the earlier definitions.\nAs a general rule, the judge\u2019s charge must be considered as a whole \u201c \u2018and isolated portions of it will not be held prejudicial when the charge as a whole is correct.\u2019 \u201d State v. Bailey, 280 N.C. 264, 267, 185 S.E. 2d 683, 686 (1972). The omission of an element of the offense in one portion of the judge\u2019s charge will not be deemed prejudicial when he fully sets forth all elements in another portion. State v. Richards, 15 N.C. App. 163, 189 S.E. 2d 577 (1972).\nWith respect to the judge\u2019s charge on voluntary manslaughter, we find that the first definition provided by the judge was adequate in itself. State v. Thompson, 226 N.C. 651, 39 S.E. 2d 823 (1946). Assuming, however, that the first definition of second degree murder was inadequate standing alone, the charge as a whole reflects that all elements of the offense were fully explained to the jury. This assignment of error has no merit.\nThe defendant also assigns as error the trial court\u2019s instruction regarding the presumptions raised by the use of a deadly weapon in a homicide. The court\u2019s instruction was substantially similar to one recently approved by the Supreme Court in State v. Biggs, 292 N.C. 328, 233 S.E. 2d 512 (1977). And it is now settled that the presumptions of unlawfulness and malice which arise on evidence of an intentional killing with a deadly weapon are constitutional. State v. Lester, 289 N.C. 239, 221 S.E. 2d 268 (1976). This assignment of error is clearly without merit.\nThe defendant, in his final assignments of error, attacks the trial court\u2019s instructions with respect to provocation and burden of proof. The defendant points out several references by the judge in his charge to \u201cadequate provocation\u201d and argues in effect that the phrase was left \u201cundefined.\u201d The defendant ignores that portion of the charge fully explaining the legal concept of provocation. The charge also reveals that the trial judge fully instructed on the State\u2019s burden of proof as to each element. These assignments border on the frivolous.\nThe defendant received a fair trial free from prejudicial error.\nNo error.\nJudge BRITT concurs.\nJudge WEBB dissents.",
        "type": "majority",
        "author": "HEDRICK, Judge."
      },
      {
        "text": "Judge WEBB\ndissenting.\nI dissent on the ground that the instructions on circumstantial evidence violate the rule of State v. Lowther, 265 N.C. 315, 144 S.E. 2d 64 (1965). The judge in his charge followed almost verbatim the Pattern Jury Instructions, NCPI \u2014Crim. 104.06. I am aware that the instructions on circumstantial evidence were recently changed to the form in which Judge Collier gave them. I do not understand why they were changed. As I read Lowther, no set form of words is required, but the jury must be told in substance that the circumstantial evidence must point unerringly to guilt and exclude to a moral certainty every other reasonable hypothesis except that of guilt. I do not believe the instructions in this case did so.\nThe majority relies on State v. Westbrook, 279 N.C. 18, 181 S.E. 2d 572 (1971). In that case, the judge instructed the jury that one of the theories upon which the State was proceeding was that the defendant was acting in concert with another person and that community of purpose could be shown by circumstances as well as by direct evidence. The court instructed the jury that they must be satisfied beyond a reasonable doubt that the defendant was acting as a part of a common plan. The Supreme Court held this to be sufficient. In this case, the judge charged the jury as to circumstantial evidence that they must be satisfied \u201cbeyond a reasonable doubt that not only is the circumstantial evidence . . . consistent with the defendant being guilty but that it is inconsistent with his being innocent.\u201d I believe this was error, and I vote to reverse.",
        "type": "dissent",
        "author": "Judge WEBB"
      }
    ],
    "attorneys": [
      "Attorney General Edmisten, by Associate Attorney Thomas H. Davis, Jr., for the State.",
      "Assistant Public Defender D. Lamar Dowda for the defendant appellant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. CARL HUBERT ALSTON, JR.\nNo. 7718SC884\n(Filed 4 April 1978)\n1. Criminal Law \u00a7 75.9\u2014 volunteered incriminating statements \u2014 no voir dire required\nThe trial court was not required to conduct a voir dire hearing to determine the admissibility of defendant\u2019s volunteered statements, nor was the judge, when he held a hearing in his discretion, required to support his determination with specific findings of fact, since the evidence tended to show that defendant\u2019s incriminating statements were made in a hospital within the hearing of a police officer; defendant was not in custody at the time he made the statements; and the statements were not the result of any threats or compulsion.\n2. Criminal Law \u00a7 43\u2014 illustrative evidence \u2014 no findings of fact required\nA trial judge is not required to make findings of fact upon the admission of illustrative evidence.\n3. Homicide \u00a7 21.7\u2014 murder by stabbing \u2014 sufficiency of evidence\nEvidence in a murder prosecution was sufficient to be submitted to the jury, though there was no direct evidence identifying defendant as the person who killed the deceased, since there was evidence of an altercation between the defendant and the deceased after which defendant pursued deceased from the scene of the altercation; a trail of blood led from that scene to the site of the killing; a man was seen stabbing another man near the scene of the altercation between defendant and deceased; and defendant admitted stabbing a man who had cut his wife.\n4. Criminal Law \u00a7 116\u2014 defendant\u2019s failure to testify \u2014 instruction not prejudicial\nWhere the trial judge, at the close of the State\u2019s evidence, directed the jury to go to lunch explaining that \u201cthe defendant has elected not to put on any evidence which is the privilege of the defendant, of course,\u201d any error was cured by the court\u2019s subsequent full instruction with respect to defendant\u2019s failure to testify or offer evidence.\n5. Criminal Law \u00a7 112.4\u2014 circumstantial evidence \u2014 jury instructions proper\nThe trial court\u2019s instruction on circumstantial evidence which stated that \u201cyou must be satisfied beyond a reasonable doubt that not only is the circumstantial evidence relied upon by the State consistent with the defendant being guilty but that it is inconsistent with his being innocent\u201d was sufficient to explain to the jury the intensity of proof required for conviction on the basis of circumstantial evidence.\n6. Homicide \u00a7 28.5\u2014 defense of family \u2014 instruction not required\nIn a prosecution for murder, defendant\u2019s statement that he had stabbed a man who cut his wife was not sufficient to raise an issue of defense of family, since the evidence did not show that defendant, in stabbing deceased, was acting to save his wife from death or great bodily harm but instead tended to show that defendant pursued deceased some 100 yards from the scene of an altercation between them to the place where the stabbing occurred.\n7. Homicide \u00a7 23.1\u2014 second degree murder and voluntary manslaughter \u2014 intentional crimes \u2014 instructions proper\nThe trial court properly instructed the jury that second degree murder and voluntary manslaughter were intentional killings.\nJudge Webb dissenting.\nAPPEAL by defendant from Collier, Judge. Judgment entered 2 June 1977 in Superior Court, GUILFORD County. Heard in the Court of Appeals 28 February 1978.\nThe defendant was charged in a proper bill of indictment with the murder of Alexander Barnhardt. Upon his plea of not guilty, the State presented evidence tending to show the following:\nOn 16 January 1977 the defendant and the deceased, Alexander Barnhardt, were at the Carlotta Club in Greensboro, North Carolina. After Barnhardt and the defendant\u2019s wife finished dancing, a fight erupted between Barnhardt and the defendant. The fight continued outside in the parking lot where the defendant struck Barnhardt several times. The defendant\u2019s wife \u201cgrabbed herself,\u201d and Barnhardt fled with the defendant following in pursuit. Two women driving by on Market Street in the vicinity of the Carlotta Club saw one man crouched over another man, stabbing him repeatedly.\nA short time after midnight on the same night the defendant arrived at the emergency room of Moses Cone Hospital in Greensboro accompanying his wife who was bleeding from a cut on her face. He was quite upset and told a police officer that a man had cut his wife and that he had stabbed the man. He then stated in a loud voice to the desk clerk that the man \u201cdeserved killing\u201d and he was going to find him. The police officer notified headquarters that a stabbing had taken place and then followed the defendant to his automobile. When the defendant attempted to start his car the officer grabbed his keys and asked him to get out of the car. The officer found several knives in the car, one of which appeared to have blood on it.\nBarnhardt was found dead lying beside Market Street with knife wounds in his chest, face, arms and neck. A trail of blood led from his body to the parking lot of the Carlotta Club.\nThe defendant offered no evidence. The jury found the defendant guilty of second degree murder. From a judgment imposing a 35 to 40 year prison sentence, the defendant appealed.\nAttorney General Edmisten, by Associate Attorney Thomas H. Davis, Jr., for the State.\nAssistant Public Defender D. Lamar Dowda for the defendant appellant."
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  "file_name": "0691-01",
  "first_page_order": 719,
  "last_page_order": 727
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