{ "id": 8521117, "name": "STATE OF NORTH CAROLINA v. ROGER ERVIN HARRISON", "name_abbreviation": "State v. Harrison", "decision_date": "1982-03-16", "docket_number": "No. 8125SC905", "first_page": "368", "last_page": "374", "citations": [ { "type": "official", "cite": "56 N.C. App. 368" } ], "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": "63 S.E. 2d 151", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1951, "opinion_index": 0 }, { "cite": "233 N.C. 225", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8602339 ], "year": 1951, "opinion_index": 0, "case_paths": [ "/nc/233/0225-01" ] }, { "cite": "221 S.E. 2d 375", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "pin_cites": [ { "page": "377", "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "28 N.C. App. 376", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8549334 ], "year": 1976, "pin_cites": [ { "page": "379", "parenthetical": "emphasis added" } ], "opinion_index": 0, "case_paths": [ "/nc-app/28/0376-01" ] }, { "cite": "275 S.E. 2d 528", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "531" } ], "opinion_index": 0 }, { "cite": "50 N.C. App. 224", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 2675038 ], "year": 1981, "pin_cites": [ { "page": "228" } ], "opinion_index": 0, "case_paths": [ "/nc-app/50/0224-01" ] }, { "cite": "230 S.E. 2d 588", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1976, "pin_cites": [ { "page": "678" }, { "page": "592" } ], "opinion_index": 0 }, { "cite": "31 N.C. App. 673", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8552002 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/nc-app/31/0673-01" ] }, { "cite": "35 S.E. 2d 645", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1945, "pin_cites": [ { "page": "646" } ], "opinion_index": 0 }, { "cite": "225 N.C. 540", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8612806 ], "year": 1945, "pin_cites": [ { "page": "543" } ], "opinion_index": 0, "case_paths": [ "/nc/225/0540-01" ] }, { "cite": "233 S.E. 2d 521", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "292 N.C. 344", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569735 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/nc/292/0344-01" ] }, { "cite": "264 S.E. 2d 40", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1980, "pin_cites": [ { "page": "43" }, { "page": "43" } ], "opinion_index": 0 }, { "cite": "299 N.C. 707", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575806 ], "year": 1980, "pin_cites": [ { "page": "710-11" } ], "opinion_index": 0, "case_paths": [ "/nc/299/0707-01" ] } ], "analysis": { "cardinality": 609, "char_count": 12012, "ocr_confidence": 0.786, "pagerank": { "raw": 2.3728075846420702e-07, "percentile": 0.7958801845204103 }, "sha256": "383f413043038b9cee4aaacd024135f1abbbd902046d48b2707277f97d87dc74", "simhash": "1:437df662784fa0d7", "word_count": 1981 }, "last_updated": "2023-07-14T17:44:21.707745+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges Hedrick and BECTON concur." ], "parties": [ "STATE OF NORTH CAROLINA v. ROGER ERVIN HARRISON" ], "opinions": [ { "text": "HILL, Judge.\nThe State\u2019s evidence tended to show that on 29 September 1980, defendant, Edna Davis, Marvin Edwards, Danny Carswell, Steve Huffman, and Larry Roper were present at 111 Tate Street in Morganton. About three or four o\u2019clock that afternoon, all the parties were in the house and drinking liquor. Steve Huffman testified that at one point, he saw defendant in the bathroom, where defendant stated that Roper \u201cwas messing with Edna.\u201d Huffman then saw defendant pull a knife out of his sock and say, \u201cLarry better leave Edna alone.\u201d By dark, Roper had passed out; he had been irritated and was \u201cpicking on Edna.\u201d Roper woke up, \u201cstarted smart mouthing everybody,\u201d and passed out again in the living room. When he woke up, Roper grabbed Davis, called her a \u201cslut,\u201d swung at her and hit her. Carswell testified that defendant \u201ccame in from where he was standing at the other end of the couch and came across, reached over and stabbed Larry Roper in the back,\u201d twice.\nDefendant\u2019s evidence tended to show that his reputation in the community is good and that Roper\u2019s reputation in the community was that he was violent when drinking. Defendant testified that Roper woke up about ten o\u2019clock on the evening of 29 September. After Roper called Davis names and hit her, defendant said, \u201cI got up off the couch and Larry took a step towards me like he was going to get me. Larry grabbed me and said, \u2018I\u2019ll throw you in the fireplace.\u2019 \u201d Roper went for the knife on the end table, but defendant got it first and stabbed Roper.\nDefendant brings forward six arguments which we will address seriatim. In his first argument, defendant contends that the trial judge erred in allowing into evidence five photographs of Roper\u2019s body, which were gruesome and excessive, depicting essentially the same scene, thereby inflaming the jurors.\n\u201cThe rule is that even though photographs may be gory and gruesome, they may nevertheless be used, when properly authenticated, to illustrate a witness\u2019 testimony so long as excessive numbers of photographs are not used solely to arouse the passions of the jury and thus deny the defendant a fair trial.\u201d State v. King, 299 N.C. 707, 710-11, 264 S.E. 2d 40, 43 (1980). See 1 Stansbury\u2019s N.C. Evidence (Brandis rev. 1973) \u00a7 34, p. 93. Where photographs are used to illustrate a witness\u2019s testimony \u201cas to the location, position and condition of the body at the scene and regarding the nature and extent of the wounds to the body,\u201d they are relevant and material. State v. King, supra at 711, 264 S.E. 2d at 43. The photographs are not excessive in number when they portray \u201csomewhat different scenes.\u201d Id. Accord State v. Dollar, 292 N.C. 344, 233 S.E. 2d 521 (1977).\nIn the case sub judice, the five photographs admitted into evidence portrayed various views of the room in which Roper\u2019s body was found and the body itself. One photograph, taken at the morgue, shows the wounds on Roper\u2019s body. Thus, under the rules stated above, the trial judge did not err in allowing into evidence these photographs; they are admissible to illustrate the witness\u2019s testimony as to the location, position, and condition of the body at the scene. This assignment of error is overruled.\nDefendant\u2019s second argument assigns error to the trial judge\u2019s restriction of his cross-examination of Officer Ronnie Hudson concerning bloodstains he found in the Tate Street house only to those found on 29 September 1980, excluding bloodstains found at a later date. However, our review of the record reveals the following testimony by Officer Hudson:\nI found blood on the mantle [sic] the night of the stabbing as well as on the mirror. Some time later I found blood underneath the end table on the molding next to the wall I did not look behind the sofa for blood the next day. I did not find any blood on the wall on September 29th or 30th.\n(Emphasis added.) This evidence indicates that defendant\u2019s cross-examination of Officer Hudson was not restricted, as he argues, to bloodstains found only on 29 September.\nAlthough defendant excepts to the exclusion of certain photographs which purportedly would illustrate the bloodstains found \u201c[sjome time later,\u201d he presents no argument to show error in such exclusion. \u201cQuestions raised by assignments of error in appeals from trial tribunals but not then presented and discussed in a party\u2019s brief, are deemed abandoned.\u201d N.C. App. Proc. Rule 28(a). This assignment of error is overruled.\nIn his third argument, defendant contends that the trial judge erred in allowing the jury to read a statement written by David Wakefield, a neighbor, which summarized events occurring on the night of 29 September 1980, including a conversation with defendant. The last sentence in this statement contained Wakefield\u2019s opinion that \u201cI myself think this traget [sic] thing happened over the love he [defendant] had for this woman \u2014 Edna.\u201d\nBy allowing the jury to read the statement in its entirety, without deleting the last sentence, the trial judge improperly admitted the opinion of a lay witness as to the ultimate issue in the case, defendant\u2019s mental state at the time of the stabbing. Of course, \u201c[i]t is the province of the jury to decide what inferences and conclusions are warranted by the testimony. State v. Peterson, 225 N.C. 540, 543, 35 S.E. 2d 645, 646 (1945). See generally, 1 Stansbury\u2019s N.C. Evidence (Brandis rev. 1973) \u00a7 126, p. 393.\nNevertheless, in view of all the evidence, this error is harmless. Wakefield\u2019s testimony on direct examination suggested that defendant told Wakefield that the killing was done in self-defense. On cross-examination, Wakefield was impeached with his prior inconsistent statement which suggested that defendant told Wakefield that he, defendant, was not defending himself. Considering Wakefield\u2019s testimony and other portions of his impeaching statement, we do not believe the last sentence in the statement was prejudicial. Moreover, the facts that defendant had a knife inside his sock and stated that \u201cLarry better leave Edna alone;\u201d that Roper called Davis a \u201cslut;\u201d and that Roper \u201cmessed\u201d with Davis as well as struck her, were sufficient to establish defendant\u2019s mental state at the time of the stabbing.\nIn light of this and other compelling evidence, defendant has not persuaded us that the result of this trial would have been different had Wakefield\u2019s statement not been shown to the jury. He has not shown prejudicial error as required by G.S. 15A-1443(a). This argument is without merit.\nDefendant\u2019s fourth and fifth arguments concern the trial judge\u2019s failure specifically to charge the jury on Roper\u2019s previous acts of violence and his reputation for violence when intoxicated with the judge\u2019s charges on self-defense and the defense of others. The trial judge\u2019s charges on these issues included the following:\nIt is for you, the jury, to determine the reasonableness of the defendant\u2019s belief [that it was necessary to kill Roper] from the circumstances as they appeared to him at the time. In making this determination you should consider the circumstances as you find them to have existed from the evidence, including . . . the reputation, if any, of the deceased, Larry Roper, for danger and violence . . ..\nEmphasis added.)\nIn State v. Cole, 31 N.C. App. 673, 230 S.E. 2d 588 (1976), defendant Cole requested the trial judge to charge the jury as did defendant sub judice. The judge did not honor the request, but fully charged the jury on the question of self-defense and added language identical to that emphasized above. This Court held, \u201cWe do not believe that the judge\u2019s failure to instruct the jury as requested, standing alone, constitutes reversible error, especially since the trial judge otherwise fully charged on the issue of self-defense.\u201d Id. at 678, 230 S.E. 2d at 592.\nEven so, \u201c[considering the totality of the evidence presented, and the paucity of evidence tending to show self-defense, we do not believe \u2018there is a reasonable possibility that, had the error in question not been committed, a different result would have been reached at the trial . . ..\u2019 \u201d State v. Powell, 50 N.C. App. 224, 228, 275 S.E. 2d 528, 531 (1981), quoting G.S. 15A-1443(a).\nHere, the trial judge fully charged the jury upon the issues of self-defense and defense of others, and there is a \u201cpaucity of evidence tending to show self-defense\u201d and defense of others. Under these circumstances, we are bound by Cole and Powell. These assignments of error therefore are overruled.\nIn his final argument, defendant assigns as error the trial judge\u2019s failure to instruct the jury that \u201ca person upon whom an assault is made is not obligated to retreat when he is assaulted in his dwelling house.\u201d\n\u201c[A] person is not obliged to retreat when he is assaulted while in his dwelling house or within the curtilage thereof, whether the assailant be an intruder or another lawful occupant of the premises.\u201d State v. Browning, 28 N.C. App. 376, 379, 221 S.E. 2d 375, 377 (1976) (emphasis added). See State v. Sally, 233 N.C. 225, 63 S.E. 2d 151 (1951). The evidence sub judice shows only that Marvin Edwards, Steve Huffman, and Danny Carswell paid to rent the Tate Street house. Defendant testified that \u201cSteve Huffman invited Edna and me to 111 Tate Street about three or four days before the stabbing took place.\u201d This evidence is insufficient to indicate that defendant was in a place from which he had no duty to retreat, \u201chis dwelling house.\u201d Thus, the trial judge did not err in failing to give the requested instructions.\nFor these reasons, we find defendant received a fair trial free of prejudicial error.\nNo error.\nJudges Hedrick and BECTON concur.", "type": "majority", "author": "HILL, Judge." } ], "attorneys": [ "Attorney General Edmisten, by Assistant Attorney General Marilyn R. Rich, for the State.", "Martin & Poovey, by Mark N. Poovey, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. ROGER ERVIN HARRISON\nNo. 8125SC905\n(Filed 16 March 1982)\n1. Homicide \u00a7 20.1\u2014 photographs of victim\u2019s body \u2014 properly admitted\nIn a prosecution for second degree murder, five photographs which portrayed various views of the room in which a victim\u2019s body was found and the body itself were admissible to illustrate the witness\u2019s testimony as to the location, position, and condition of the body at the scene.\n2. Criminal Law \u00a7 167; Homicide \u00a7 20.1\u2014 exclusion of photographs \u2014 no argument to show error\nUnder App. R. 28(a), defendant\u2019s exceptions to the exclusion of certain photographs were deemed abandoned when he presented no argument to show error in the exclusion.\n3. Homicide \u00a7 15.2\u2014 admission of opinion concerning defendant\u2019s mental state \u2014 harmless error\nThe admission of a sentence in a witness\u2019s written statement which stated \u201cI myself think this traget [sic] thing happened over the love he [defendant] had for this woman\u201d was harmless error in view of all the evidence. G.S. 15A-1443(a).\n4. Homicide \u00a7 28\u2014 victim\u2019s propensity towards violence \u2014 instructions concerning\nIn a prosecution for second degree murder, where the trial judge, instructing on self-defense, instructed that the jury \u201cshould consider the circumstances as you find them to have existed from the evidence, including . . . the reputation, if any of the deceased . . . for danger and violence,\u201d the trial court did not commit prejudicial error in failing to give defendant\u2019s requested instructions on deceased\u2019s previous acts of violence and his reputation for violence when intoxicated.\n5. Homicide \u00a7 28.4\u2014 self-defense \u2014 no duty to retreat \u2014 failure to instruct proper\nIn a prosecution for second degree murder in which defendant claimed self-defense, where the evidence was insufficient to indicate that defendant was in a place from which he had no duty to retreat, the trial judge did not err in failing to give the requested instruction.\nAppeal by defendant from Owens, Judge. Judgment entered 5 February 1981 in Superior Court, Burke County. Heard in the Court of Appeals 4 February 1982.\nDefendant was indicted and convicted of second degree murder. He appeals from a judgment of imprisonment.\nAttorney General Edmisten, by Assistant Attorney General Marilyn R. Rich, for the State.\nMartin & Poovey, by Mark N. Poovey, for defendant-appellant." }, "file_name": "0368-01", "first_page_order": 400, "last_page_order": 406 }