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  "name": "STATE OF NORTH CAROLINA v. JAMES BARRY HAITH",
  "name_abbreviation": "State v. Haith",
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    "judges": [
      "Chief Judge Morris and Judge Erwin concur."
    ],
    "parties": [
      "STATE OF NORTH CAROLINA v. JAMES BARRY HAITH"
    ],
    "opinions": [
      {
        "text": "CLARK, Judge.\nDefendant\u2019s first assignment of error is that the court erred in failing to charge the jury that they could find the defendant guilty of involuntary manslaughter. In State v. Wrenn, 279 N.C. 676, 681, 185 S.E. 2d 129, 132 (1971), Mr. Justice Huskins, writing for the Court, explained:\n\u201cWhere, under the bill of indictment, it is permissible to convict defendant of a lesser degree of the crime charged, and there is evidence to support a milder verdict, defendant is entitled to have the different permissible verdicts arising on the evidence presented to the jury under proper instructions. [Citations omitted.] Erroneous failure to submit the question of defendant\u2019s guilt of lesser degrees of the same crime is not cured by a verdict of guilty of the offense charged because, in such case, it cannot be known whether the jury would have convicted of a lesser degree if the different permissible degrees arising on the evidence had been correctly presented in the court\u2019s charge. ...\u201d\nOur task, then, is to determine whether the evidence would support a charge on involuntary manslaughter. \u201cInvoluntary manslaughter is the unlawful killing of a human being without malice, without premeditation and deliberation, and without intention to kill or inflict serious bodily injury.\u201d State v. Wrenn, supra, 279 N.C. at 682, 185 S.E. 2d at 182. \u201c[0]ne who points a loaded gun at another, though without intention of discharging it, if the gun goes off accidentally and kills,\u201d commits involuntary manslaughter. State v. Coble, 177 N.C. 588, 591, 99 S.E. 339, 341 (1919); State v. Boldin, 227 N.C. 594, 42 S.E. 2d 897 (1947). Similarly, \u201c\u2018[wjhere one engages in an unlawful and dangerous act, such as \u201cfooling with an old gun,\u201d i.e., using a loaded pistol in a careless and reckless manner, or pointing it at another, and kills the other by accident, he would be guilty of an unlawful homicide or manslaughter. (Citations omitted)\u2019\u201d State v. Stimpson, 279 N.C. 716, 724, 185 S.E. 2d 168, 173 (1971).\nDefendant cites the following testimony by defendant as evidence that the firing of the gun by defendant was without intention to kill or without intention to inflict serious bodily injury:\n\u201cI got a weapon because I was going back over to get my fiancee.\u201d\n\u201cWell, as I clicked it, he must have realized I had it because he tried to run back and that\u2019s when he slipped and the revolver went off.\u201d\n\u201cI fired this gun because I was scared for my life. I did not have any intention of killing Johnny Shoffner. I fired the shot downward.\u201d\n\u201cI am telling this Court and this jury that I was afraid of Johnny Shoffner. I didn\u2019t stay home because I went to get my fiancee.\u201d\n\u201cWhen I got outside I intended to go over to Deedee\u2019s. I didn\u2019t go because he was coming at me.\u201d\n\u201cNo, I didn\u2019t aim right at him. I aimed downward. It was done more or less at his legs and the concrete.\u201d\nThe State, on the other hand, argues that, by taking excerpts from the defendant\u2019s testimony out of context, the defendant attempts to establish that there is evidence to show that the defendant did not intentionally pull the trigger, that it was an accident, or that he did not aim at the victim. The State argues that the defendant\u2019s own evidence shows that he intentionally pulled the trigger of the revolver and at the very least he aimed the revolver at the victim\u2019s legs thereby intending to inflict serious bodily injury. In addition, the State emphasizes the following testimony by defendant:\n\u201cI did not shoot the man after he had turned and was leaving and running from me. I shot him, and he was coming towards me when he slipped on the ice. He was still in pursuit of coming to me. Yes, he was in pursuit of coming to me. Yes, coming right at me. He fell down, fell forward. And that\u2019s when I shot him. I tried to shoot him the first time when he was about four steps from my door. I am telling this Court and this jury that I shot and killed Johnny Shoff-ner about a half door down in front of my front door. ...\u201d (Emphasis supplied.)\nEarlier in his testimony, defendant also stated:\n\u201cWhen he got about five or steps away, at that position, he was more or less left and off balance because he couldn\u2019t get his foot \u2014. At the time he was going to get me, that\u2019s when I took out the revolver. I took out the revolver. The revolver was pointed down where \u2014 it was at a level of my waist. I had pulled it out and I had it right up in here. I clicked it twice. Well, as I clicked it, he must have realized 1 had it because he tried to run back and that\u2019s when he slipped and the revolver went off. I pulled the revolver three times. To show His Honor and the members of the jury what position he was in at the time I fired the third shot when it went off, he was more or less \u2014 he was trying to turn but he slipped on the ice. ...\u201d [Emphasis supplied.]\nWe agree with the State. In this case there is no evidence that the defendant did not intend to pull the trigger. In fact, he intended to pull the trigger three times. Furthermore, defendant deliberately pointed the gun at the deceased, at the very least, in the direction of deceased\u2019s legs. This is not the case where, for example, the gun went off while the defendant and victim were fumbling with the gun, State v. Davis, 15 N.C. App. 395, 190 S.E. 2d 434 (1972); where the gun went off when the deceased grabbed a gun lying across defendant\u2019s knees, State v. Foust, 258 N.C. 453, 128 S.E. 2d 889 (1963); where the defendant threw up a gun and it went off, State v. Graham, 38 N.C. App. 86, 247 S.E. 2d 300 (1978); or where the defendant \u201cfired his pistol away from\u201d the deceased and did not intend to \u201cshoot at, near, or in the direction of the deceased,\u201d State v. Ward, 300 N.C. 150, 155-56, 266 S.E. 2d 581, 585 (1980). (Emphasis added in second quotation.) This assignment of error is overruled.\nDefendant\u2019s next argument is that the trial court erred in allowing the District Attorney to cross-examine him concerning a bag of marijuana allegedly found on defendant\u2019s person at the time of his arrest. We do not agree. \u201cA defendant who elects to testify in his own behalf surrenders his privilege against self-incrimination and knows he is subject to impeachment by questions relating to specific acts of criminal and degrading conduct. Such cross-examination for impeachment purposes is not limited to conviction of crimes but encompasses any act of the witness which tends to impeach his character. (Citations omitted.)\u201d State v. McKenna, 289 N.C. 668, 684, 224 S.E. 2d 537, 548 (1976). The marijuana was properly introduced for impeachment purposes.\nThe defendant next contends that the trial court erred in allowing testimony for corroborative purposes when it did not corroborate the witnesses or their testimony and was highly prejudicial. In this argument defendant refers to the testimony of Officer Hutchins that related to an out-of-court statement by a previous State witness, George Foust. In particular, defendant objects to the officer\u2019s statement that Mr. Foust told him that he heard the gun click three times, and that the deceased threw his hands up in the air and said, \u201cYou\u2019ve got me, man, I don\u2019t have a gun.\u201d Officer Hutchins also stated that Foust had told him that \u201con the fourth time the gun clicked that it discharged.\u201d Assuming that this statement was not corroborative, we fail to see how this evidence was prej udicial to the defendant since the defendant himself said that he pulled the trigger three times, as did defendant\u2019s niece and Foust. Similarly, while it is true that Foust did not testify on direct examination as to what the deceased said when he threw up his hands, David Holt did so testify, and since Holt was impeached by defendant, the fact that Foust had repeated the same statement to Officer Hutchins would be corroborative of Holt\u2019s statement. Furthermore, given the strength of the State\u2019s case, with three eyewitnesses, we fail to see how the trial court\u2019s error, if any, would change the outcome of defendant\u2019s trial. N.C. Gen. Stat. \u00a7 15A-1433(a).\nThe final argument presented by defendant is that the trial court erred in allowing the District Attorney to cross-examine the defendant as to whether he told the officer, while making a statement in custody, that he was acting to protect himself from attack by the deceased. That statement by defendant provides in relevant part:\n\u201cJohnny came from around the corner saying he was going to get me. I then went into the house and got a .22 caliber pistol and came back out. He, Johnny, kept on running his mouth about he was going to get me, and he took off running and I shot at him one time and that was it. I then went back into the house. This statement is of my own free will and I have been advised of my rights, and I understand them. No pressure or coercion of any kind has been used against me.\u201d\nThis statement was prepared by Detective D.L. DeBerry, was witnessed by Officers DeBerry and Summers, and was initialed and signed by the defendant. At trial, while cross-examining the defendant, the prosecutor attempted to impeach defendant by asking the following questions concerning his statement:\n\u201cQ. Didn\u2019t say anything at all to the officers about calling out or going back over there because you were concerned about her welfare?\nMr. Harrelson: Objection.\nThe Court: Overruled.\nA. No, sir.\nQ. You didn\u2019t say a word about Johnny Shoffner coming at you, did you?\nA. I don\u2019t remember.\n* * * *\nQ. You never told either of these officers investigating this crime that you shot this man in self-defense while you were in fear for your life, did you?\nA. I don\u2019t remember.\u201d\nThere is no doubt that the questions submitted by the prosecutor do not violate the Fifth or Fourteenth Amendments to the United States Constitution. Very recently, in Jenkins v. Anderson, _ U.S. _ (No. 78-6809), (Filed 10 June 1980), 48 U.S.L.W. 4693, 4696, 40 C.C.H. S. Ct. Bull. B2837, B2847, the United States Supreme Court held that \u201c[t]he use of prearrest silence to impeach a defendant\u2019s credibility does not violate the Constitution.\u201d The majority opinion, however, explicitly noted that it did \u201cnot force any state court to allow impeachment through the use of prearrest silence.\u201d Id. We hold that under the facts of this case that the above questions proffered by the prosecutor also do not violate Article I, Sections 19 or 23 of the North Carolina Constitution. We note that defendant not only waived his right to remain silent by making a statement to the police officers while he was in custody and after he had been informed of his rights, but also chose to take the stand at trial and to testify in his behalf. We emphasize that we do not reach the determination of whether the North Carolina Constitution would permit questioning as to prearrest silence in the fact situation presented in Jenkins, supra. See, e.g., State v. McCall, 286 N.C. 472, 482-487, 212 S.E. 2d 132, 138-141 (1975), and State v. Castor, 285 N.C. 286, 204 S.E. 2d 848 (1974). Similarly, for the reasons expressed by the dissents of Mr. Justice Marshall and Mr. Justice Brennan in Jenkins, supra, 48 U.S.L.W. at 4697, we expressly refuse to hold that the North Carolina Constitution will permit, under all circumstances, that a criminal defendant who testifies in his own behalf may be impeached by some form of his prearrest silence.\nNo error.\nChief Judge Morris and Judge Erwin concur.",
        "type": "majority",
        "author": "CLARK, Judge."
      }
    ],
    "attorneys": [
      "Attorney General Edmisten by Special Deputy Attorney General Charles J. Murray for the State.",
      "Public Defender Wallace C. Harrelson for defendant appellant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. JAMES BARRY HAITH\nNo. 8018SC105\n(Filed 19 August 1980)\n1. Homicide \u00a7 30.3- failure to instruct on involuntary manslaughter\nThe trial court in a murder prosecution did not err in failing to instruct the jury on involuntary manslaughter where all the evidence showed that defendant deliberately pointed a gun toward decedent or at least in the direction of decedent\u2019s feet and that defendant intended to pull the trigger when he shot deceased.\n2. Criminal Law \u00a7 86.5- impeachment of defendant - cross-examination about marijuana found on his person\nThe trial court in a homicide case did not err in permitting the district attorney to cross-examine defendant for impeachment purposes concerning a bag of marijuana found on defendant\u2019s person at the time of his arrest.\n3. Criminal Law \u00a7 89.2- uncorroborative testimony - no prejudice\nEven if an officer\u2019s testimony as to certain statements made to him by a witness did not actually corroborate the witness, defendant was not prejudiced thereby where defendant and other witnesses testified to the same information contained in the statements and where the statements corroborated the testimony of a second witness.\n4. Constitutional Law \u00a7 74; Criminal Law \u00a7 48- impeachment of defendant - failure to tell officers he acted in self-defense\nThe prosecutor\u2019s impeachment of defendant by cross-examining defendant about his failure to tell officers, while making an in-custody statement, that he was acting to protect himself from attack by deceased when he shot deceased did not violate defendant\u2019s rights under the Fifth or Fourteenth Amendments to the U.S. Constitution or Art. I, \u00a7\u00a7 19 or 23 of the N.C. Constitution.\nAppeal by defendant from Seay, Judge. Judgment entered 30 August 1979 in Superior Court, Guilford County. Heard in the Court of Appeals 4 June 1980.\nDefendant James Barry Haith was indicted for first-degree murder of Johnny A. Shoffner on 10 February 1979. The jury returned a verdict of second-degree murder. Defendant was sentenced to not less than twenty-five (25) nor more than thirty (30) years in the State prison.\nState\u2019s Evidence\nAt trial the State first presented the testimony of Denise Haith, aged 25, defendant\u2019s sister and the deceased\u2019s girl friend. She testified that on 10 February 1979, she was living with Johnny Shoffner, the deceased, at the Bethel Apartments in Gibsonville. On the evening of said date she and deceased were physically fighting in the upstairs bedroom, and she had deceased down on the floor by his hair. Lisa Summers came upstairs and Denise let go of Johnny\u2019s hair. Denise went downstairs but later went back up and hid in the bathroom. She heard defendant, her brother, call her name from the foot of the stairs but she did not respond because she was afraid. Defendant then left, and she and the deceased went downstairs. While they were sitting on the couch and no longer arguing, defendant came in again. Defendant was mad and asked deceased why he was beating on her. Ms. Haith then saw her other brother, Walter Lee Haith (hereinafter Lee), coming into the front door with a shotgun. She and a friend pushed him out the door, and the gun went off. Defendant then got the shotgun from Lee, left the apartment and fired it towards the air. She could not see the object at which he was shooting. Lee then retrieved the gun. On cross-examination Ms. Haith testified that on 10 February 1979 the deceased and several friends started drinking alcohol at 10:00 a.m. and drank for an hour. Deceased then went to bed until 4:00 p.m. and started drinking again with his relative, Brian, from 7:30 p.m. until 10:30 p.m. She further testified that she never heard defendant threaten the deceased and that she never saw defendant with a pistol. The deceased, however, had beaten her a number of times, and on that evening she pulled a knife on him in the kitchen, because she knew he was mad and had an \u201cattitude.\u201d Deceased had broken a lamp while chasing her and thereby frightened the Summers girls who were in the apartment. She did not invite either of her brothers to her apartment that day.\nLisa Summers, aged 16, testified that she lives at the Bethel Apartments. At 8:00 p.m. on 10 February 1979, she visited Ms. Haith\u2019s apartment. While she was there, Ms. Haith and deceased started fighting; the deceased called her a \u201cm_f_b_,\u201d and the deceased threatened to kill her several times. They had a \u201cscuffle\u201d over a knife that Ms. Haith had wrapped in a towel. Ashtrays, a lamp, and a chair were broken. Ms. Summers then went home and saw the defendant at her house. She told defendant that his sister and the deceased were fighting. Defendant then walked over to his sister\u2019s house and called her. He then left and returned about 10 minutes later with his brother Lee. She helped Ms. Haith shove Lee out the door when he tried to enter with a shotgun. When they pushed him, the gun went off. Defendant appeared completely sober on said evening.\nJill Summers, aged 19, testified that she was at Ms. Haith\u2019s apartment when defendant and Lee entered. She heard a gun go off outside and told deceased to leave by way of the back door. She then saw defendant enter and exit through the front door with the shotgun. She then heard the shotgun a second time. On cross-examination she testified that defendant was never in the deceased\u2019s presence in the apartment with a shotgun because the deceased had left with no shirt on. Defendant never threatened the deceased.\nDavid Holt, a resident of Bethel Apartments, testified that on the evening of 10 February 1979 he heard a gunshot, looked out his window but didn\u2019t see anything; he put on his clothes, walked out the front door, and, after a few minutes, he saw the defendant run in and out of his brother\u2019s house. When defendant came out, the deceased started running toward the road. The defendant started running behind him. The deceased slipped twice and then fell down. One of deceased\u2019s shoes came off. The deceased then held his hand up and said, \u201cMan, you got me. I ain\u2019t got nothing.\u201d The defendant pointed the gun at deceased\u2019s back and clicked the gun twice. The third time he clicked the gun, it went off. The defendant then returned to his apartment.\nGeorge Foust testified that he lives close to the apartments. On the night in question he also saw the defendant shoot the deceased as the deceased was running from him. Deceased \u201cthrew up his arms, kneeled down and then he fell back in the snow.\u201d\nOfficer Bruce Hutchins of the Gibsonville Police Department testified that he arrived at the apartments at 8:20 p.m. on 10 February 1979. He observed the deceased lying on his back in the street. At the scene Foust told him that defendant had shot the deceased after the gun had clicked three times.\nDr. Bruce Alexander, a pathologist, testified that he performed an autopsy on deceased on 11 February 1979. In his opinion deceased died from a .22 caliber bullet which pierced his heart and lungs. Deceased\u2019s blood alcohol content was equivalent to a .30 reading on a breathalyzer.\nSandra Kay Haith, defendant\u2019s niece, aged 15, testified that on the night of 10 February 1979 she was at her grandmother\u2019s (defendant\u2019s mother) house. Defendant rushed into the house, knocked her 16-year-old brother down, went upstairs, came back down, and rushed out the door. She then saw the deceased about two or three apartments down. The deceased saw defendant and then ran. Defendant started running toward the deceased. The deceased slipped and fell. Defendant then shot deceased after the gun clicked twice. The deceased was on his hands trying to get up and was \u201csideways\u201d to the defendant when the defendant shot him. The gun was pointed in a downward direction when it went off.\nDefendant\u2019s Evidence\nDefendant testified that on the evening in question he went to his sister\u2019s apartment and asked deceased why he was beating on his sister. The deceased came towards him muttering. Lee then entered the apartment with a shotgun, and deceased left. Defendant then left the apartment and started walking towards his own apartment. The deceased started running towards him and threatening to get him. Defendant ran into his apartment, obtained a revolver and then left his apartment to \u201cget his fiancee\u201d who was at another apartment. When he exited his apartment, he saw deceased at least two apartments down. The deceased stated, \u201cI\u2019m going to get you.\u201d He then started coming towards defendant. Defendant pulled his revolver out, clicked it twice and then fired downward as deceased was attempting to get up from the icy street about five steps away. The deceased had been coming towards him and was trying to turn but had slipped when the shot was fired. Defendant fired the gun because he was \u201cscared\u201d for his life; he had no intent to kill decedent. Later in the evening defendant was arrested and gave a written statement to the police.\nDefendant also presented the testimony of eight people who testified as to defendant\u2019s excellent character and reputation in the community.\nOther necessary facts will be stated in the opinion.\nAttorney General Edmisten by Special Deputy Attorney General Charles J. Murray for the State.\nPublic Defender Wallace C. Harrelson for defendant appellant."
  },
  "file_name": "0319-01",
  "first_page_order": 347,
  "last_page_order": 357
}
