{ "id": 2643630, "name": "STATE OF NORTH CAROLINA v. WADE LEE POWELL", "name_abbreviation": "State v. Powell", "decision_date": "1981-03-17", "docket_number": "No. 8010SC990", "first_page": "224", "last_page": "228", "citations": [ { "type": "official", "cite": "51 N.C. App. 224" } ], "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": "176 S.E. 2d 872", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1970, "opinion_index": 0 }, { "cite": "9 N.C. App. 595", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8552877 ], "year": 1970, "opinion_index": 0, "case_paths": [ "/nc-app/9/0595-01" ] }, { "cite": "228 S.E. 2d 637", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "opinion_index": 0 }, { "cite": "31 N.C. App. 34", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8547283 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/nc-app/31/0034-01" ] }, { "cite": "45 S.E. 2d 366", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1947, "opinion_index": 0 }, { "cite": "228 N.C. 251", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8625655 ], "weight": 2, "year": 1947, "opinion_index": 0, "case_paths": [ "/nc/228/0251-01" ] }, { "cite": "185 S.E. 2d 221", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1971, "pin_cites": [ { "page": "224" }, { "page": "224" }, { "page": "224" } ], "opinion_index": 0 }, { "cite": "280 N.C. 51", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569769 ], "weight": 3, "year": 1971, "pin_cites": [ { "page": "54" }, { "page": "54-55" }, { "page": "55" } ], "opinion_index": 0, "case_paths": [ "/nc/280/0051-01" ] }, { "cite": "199 S.E. 2d 729", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1973, "opinion_index": 0 }, { "cite": "19 N.C. App. 663", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8555425 ], "year": 1973, "opinion_index": 0, "case_paths": [ "/nc-app/19/0663-01" ] }, { "cite": "154 S.E. 2d 48", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1967, "pin_cites": [ { "page": "52" }, { "page": "52" } ], "opinion_index": 0 }, { "cite": "270 N.C. 215", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566668 ], "weight": 3, "year": 1967, "pin_cites": [ { "page": "219" }, { "page": "219-220" } ], "opinion_index": 0, "case_paths": [ "/nc/270/0215-01" ] } ], "analysis": { "cardinality": 464, "char_count": 8887, "ocr_confidence": 0.732, "pagerank": { "raw": 7.682524327565528e-08, "percentile": 0.4530142490932869 }, "sha256": "3da32ba84e48f349357de55c2a431ffc553160a680e7b61bd6115c08dca6073b", "simhash": "1:8fe9dd766601c1f5", "word_count": 1508 }, "last_updated": "2023-07-14T20:24:29.581265+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Chief Judge Morris and Judge Martin (Robert M.) concur." ], "parties": [ "STATE OF NORTH CAROLINA v. WADE LEE POWELL" ], "opinions": [ { "text": "WHICHARD, Judge.\nBy his sole argument on appeal defendant contends the trial court erred in its instructions on self-defense. He argues that the court should have instructed the jury to consider, in determining the reasonableness of defendant\u2019s apprehension of death or great bodily harm, among other factors, the reputation of McKethan for danger and violence.\nIn prosecutions for homicide and assault, where the defendant pleads and offers evidence of self-defense, evidence of the character of the victim as a violent and dangerous fighting man is admissible if such character was known to the defendant. State v. Johnson, 270 N.C. 215, 154 S.E. 2d 48 (1967); see also State v. Mize, 19 N.C. App. 663, 199 S.E. 2d 729 (1973); 1 Stansbury\u2019s N.C. Evidence, \u00a7 106 (Brandis rev. 1973). Such evidence is relevant on the question of the defendant\u2019s reasonable apprehension of death or bodily harm in his confrontation with the victim, Johnson, 270 N.C. at 219, 154 S.E. 2d at 52; and it may include specific acts of violence by the deceased. As stated in Johnson:\nWe know of no better way to impart the knowledge of fear or apprenhension on the part of defendant than by giving the jury the benefit of specific incidents tending to show the dangerous and violent character of the deceased. It remains in the province of the jury to decide whether the incidents occurred or whether defendant\u2019s apprehension was a reasonable one.\n270 N.C. at 219-220, 154 S.E. 2d at 52.\nIt is also true that when such evidence is introduced by the defendant, the court, even in the absence of a request, should instruct the jury as to the bearing which this evidence might have on defendant\u2019s reasonable apprehension of death or great bodily harm from the attack to which his evidence pointed. State v. Rummage, 280 N.C. 51, 54, 185 S.E. 2d 221, 224 (1971); State v. Riddle, 228 N.C. 251, 45 S.E. 2d 366 (1947); State v. Hall, 31 N.C. App. 34, 228 S.E. 2d 637 (1976); State v. Covington, 9 N.C. App. 595, 176 S.E. 2d 872 (1970).\nIn this case the trial court instructed with respect to defendant\u2019s reasonable apprehension as follows:\nIf you find from the evidence beyond a reasonable doubt that defendant Wade Powell feloniously assaulted Harry McKethan with a firearm, a pistol, and shot him, that assault would be excused as being in self-defense, only if the circumstances at the time he acted were such as would create in the mind of a person with ordinary firmness a reasonable belief that such action was necessary or apparently necessary to protect himself from death or great bodily harm, and the circumstances did create such belief in the defendant\u2019s mind.\nIt is for you the jury to determine the reasonableness of Wade Powell\u2019s belief from the circumstances as they appear [sic] to him at the time. However, the force used by Wade Powell cannot have been excessive. This means that Wade Powell had the right to use only such force as reasonably appeared to him to be necessary under the circumstances, to protect himself from death or great bodily harm.\nIn making this determination you should consider the circumstances as you found them to have existed from the evidence, including the size, age, and strength of Wade Powell; as compared to size, age, and strength of Harry McKethan, the alleged victim; the fierceness of the assault if any upon the defendant by Harry McKethan; and whether or not Harry McKethan had a weapon in his possession.\nWe agree with the defendant that the court erred by failing to correlate the evidence of McKethan\u2019s previous assaults upon defendant, which indicated that McKethan was a dangerous and violent man, with the defendant\u2019s plea of self-defense. State v. Riddle, 228 N.C. 251, 45 S.E. 2d 366 (1947). It remains for us to determine whether defendant has sustained his burden of showing that this error was sufficiently prejudicial to warrant a new trial. G.S. 15A-1443(a).\nIn Rummage, our Supreme Court stated, per Justice (now Chief Justice) Branch:\nIn instant case there was plenary evidence that deceased was a dangerous and violent man when he was intoxicated. There was also evidence that he was intoxicated at the time he was fatally shot. The trial judge failed to charge as to the bearing the reputation of deceased as a violent man might have had on defendant\u2019s reasonable apprehension of death or great bodily harm at the time deceased allegedly attacked or threatened to attack defendant. This was error.\nNevertheless, we are reluctant to hold that this error, standing alone, constituted reversible error, since the trial judge had otherwise fully charged on self-defense.\n280 N.C. at 54-55, 185 S.E. 2d at 224. Here, too, the jury instructions as to self-defense were otherwise complete; and we are equally reluctant to hold that \u201cthis error, standing alone, constituted reversible error.\u201d Rummage, 280 N.C. at 55, 185 S.E. 2d at 224. Considering the totality of the evidence presented, and the paucity of evidence tending to show self-defense, we do not believe \u201cthere is a reasonable possibility that, had the error in question not been committed, a different result would have been reached at the trial.... \u201d G.S. 15A-1443(a). This is especially true in light of the fact that the evidence here established that defendant shot the victim twice. As to the second shooting defendant did not assert a defense of self-defense, but rather asserted that this shot hit the victim by accident.\nWe hold that, considering (1) the totality of the evidence presented, (2) the paucity of evidence tending to show self-defense, (3) the fact that the court\u2019s instructions to the jury as to self-defense were otherwise complete, and (4) the fact that the court adequately instructed the jury as to the defense of accident, defendant has failed to sustain the burden imposed on him by G.S. 15A-1443 of showing prejudice as a result of the court\u2019s error in failing to charge regarding the evidence that the victim was a violent and dangerous man.\nNo error.\nChief Judge Morris and Judge Martin (Robert M.) concur.", "type": "majority", "author": "WHICHARD, Judge." } ], "attorneys": [ "Attorney General Edmisten, by Special Deputy Attorney General Isham B. Hudson, Jr., for the State.", "Cyrus A. Holbrook for defendant appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. WADE LEE POWELL\nNo. 8010SC990\n(Filed 17 March 1981)\nAssault and Battery \u00a7 15.6\u2014 self-defense - failure to instruct on victim as violent and dangerous man\nIn a prosecution of defendant for assault with a deadly weapon with intent to kill inflicting serious inj ury, considering the totality of the evidence presented, the paucity of evidence tending to show self-defense, the fact that the court\u2019s instructions to the jury as to self-defense were otherwise complete, and the fact that the court adequately instructed the jury as to the defense of accident, defendant failed to sustain the burden imposed on him by G.S. 15A-1443 of showing prejudice as a result of the trial court\u2019s error in failing to charge regarding the evidence that the victim was a violent and dangerous man.\nAppeal by defendant from Braswell, Judge. Judgment entered 29 May 1980 in Superior Court, Wake County. Heard in the Court of Appeals 2 March 1981.\nDefendant was indicted for assault with a deadly weapon with intent to kill inflicting serious injuries. He pleaded not guilty and was tried before a jury.\nThe State presented Harry McKethan to testify. He testified that he was in charge of a grocery store on 1 December 1979 when defendant\u2019s brother Skip Powell entered and asked for a paper towel. He refused to give him the towel. Skip then went outside and talked with his brothers, Byron Powell and the defendant. Byron entered the store threatening to take McKethan\u2019s gun and kill him. He grabbed McKethan\u2019s arm, and defendant then entered the store and grabbed his other arm. McKethan was able to get his hand on his .38 caliber pistol under the grocery store counter, but Byron took the gun away and gave it to defendant. Defendant stood six or seven feet from McKethan and shot him in the stomach. Byron and defendant walked out of the store; but they returned after several minutes, and defendant shot McKethan in the right hand. McKethan denied ever pointing the gun at anyone.\nDefendant testified that he was outside the store when he saw McKethan pull the pistol and saw his brother Byron struggling with McKethan. He entered the store and tried to get the pistol from McKethan \u201cso no one would get hurt,\u201d but the gun went off during the struggle. Defendant took the gun and went outside. He opened the door of the store and fired in the air just as McKethan \u201cthrowed up his hands,\u201d and defendant \u201cguess[ed] that\u2019s about how he got his [sic] in the wrist.\u201d Defendant testified that he fired the second time to scare McKethan because McKethan had pulled a gun on him in 1975 and had shot him in the leg in 1973.\nDefendant was convicted as charged and sentenced to imprisonment. He appeals.\nAttorney General Edmisten, by Special Deputy Attorney General Isham B. Hudson, Jr., for the State.\nCyrus A. Holbrook for defendant appellant." }, "file_name": "0224-01", "first_page_order": 252, "last_page_order": 256 }