{ "id": 8523896, "name": "STATE OF NORTH CAROLINA v. KENNETH PRESLAR HAMILTON", "name_abbreviation": "State v. Hamilton", "decision_date": "1985-10-29", "docket_number": "No. 8520SC185", "first_page": "506", "last_page": "516", "citations": [ { "type": "official", "cite": "77 N.C. App. 506" } ], "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": "414 U.S. 874", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11762922, 11762669, 11762557, 11763119, 11762751, 11762997, 11763196, 11762845, 11762495 ], "year": 1973, "opinion_index": 0, "case_paths": [ "/us/414/0874-06", "/us/414/0874-03", "/us/414/0874-02", "/us/414/0874-08", "/us/414/0874-04", "/us/414/0874-07", "/us/414/0874-09", "/us/414/0874-05", "/us/414/0874-01" ] }, { "cite": "326 S.E. 2d 84", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "73 N.C. App. 465", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524610 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc-app/73/0465-01" ] }, { "cite": "309 S.E. 2d 188", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "parenthetical": "defendant and deceased scuffled; defendant had made threats, shot victim repeatedly" } ], "opinion_index": 0 }, { "cite": "309 N.C. 771", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4763094 ], "year": 1983, "pin_cites": [ { "parenthetical": "defendant and deceased scuffled; defendant had made threats, shot victim repeatedly" } ], "opinion_index": 0, "case_paths": [ "/nc/309/0771-01" ] }, { "cite": "261 S.E. 2d 789", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "parenthetical": "self-defense raised; defendant admitted firing toward deceased but not trying to hit him" } ], "opinion_index": 0 }, { "cite": "299 N.C. 151", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574152 ], "year": 1980, "pin_cites": [ { "parenthetical": "self-defense raised; defendant admitted firing toward deceased but not trying to hit him" } ], "opinion_index": 0, "case_paths": [ "/nc/299/0151-01" ] }, { "cite": "230 S.E. 2d 152", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "pin_cites": [ { "page": "153" } ], "opinion_index": 0 }, { "cite": "291 N.C. 319", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8558004 ], "year": 1976, "pin_cites": [ { "page": "321" } ], "opinion_index": 0, "case_paths": [ "/nc/291/0319-01" ] }, { "cite": "311 S.E. 2d 311", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "opinion_index": 0 }, { "cite": "66 N.C. App. 334", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524776 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/nc-app/66/0334-01" ] }, { "cite": "300 S.E. 2d 375", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "307 N.C. 655", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565416 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/nc/307/0655-01" ] }, { "cite": "320 S.E. 2d 405", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "parenthetical": "per curiam" } ], "opinion_index": 0 }, { "cite": "312 N.C. 79", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4755749 ], "year": 1984, "pin_cites": [ { "parenthetical": "per curiam" } ], "opinion_index": 0, "case_paths": [ "/nc/312/0079-01" ] }, { "cite": "313 S.E. 2d 196", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "parenthetical": "per curiam" } ], "opinion_index": 0 }, { "cite": "67 N.C. App. 512", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526757 ], "year": 1984, "pin_cites": [ { "parenthetical": "per curiam" } ], "opinion_index": 0, "case_paths": [ "/nc-app/67/0512-01" ] }, { "cite": "311 S.E. 2d 26", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "parenthetical": "similar facts and result" } ], "opinion_index": 0 }, { "cite": "66 N.C. App. 92", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523112 ], "year": 1984, "pin_cites": [ { "parenthetical": "similar facts and result" } ], "opinion_index": 0, "case_paths": [ "/nc-app/66/0092-01" ] }, { "cite": "310 S.E. 2d 795", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "opinion_index": 0 }, { "cite": "66 N.C. App. 104", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523173 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/nc-app/66/0104-01" ] }, { "cite": "100 S.Ct. 195", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1979, "opinion_index": 0 }, { "cite": "62 L.Ed. 2d 126", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1979, "opinion_index": 0 }, { "cite": "444 U.S. 890", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11378056, 11377949, 11377893, 11378007 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/us/444/0890-04", "/us/444/0890-02", "/us/444/0890-01", "/us/444/0890-03" ] }, { "cite": "443 U.S. 307", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6182418 ], "weight": 3, "year": 1979, "opinion_index": 0, "case_paths": [ "/us/443/0307-01" ] }, { "cite": "259 S.E. 2d 263", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "298 N.C. 441", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572690 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/nc/298/0441-01" ] }, { "cite": "196 S.E. 2d 750", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1973, "pin_cites": [ { "parenthetical": "deceased lunged at defendant after defendant sought out deceased and approached him brandishing shotgun; no self-defense" } ], "opinion_index": 0 }, { "cite": "283 N.C. 504", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559274 ], "year": 1973, "pin_cites": [ { "parenthetical": "deceased lunged at defendant after defendant sought out deceased and approached him brandishing shotgun; no self-defense" } ], "opinion_index": 0, "case_paths": [ "/nc/283/0504-01" ] }, { "cite": "171 S.E. 2d 447", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1970, "pin_cites": [ { "parenthetical": "analyzing circumstances under which adulterous conduct might affect right of self-defense" } ], "opinion_index": 0 }, { "cite": "276 N.C. 157", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560458 ], "year": 1970, "pin_cites": [ { "parenthetical": "analyzing circumstances under which adulterous conduct might affect right of self-defense" } ], "opinion_index": 0, "case_paths": [ "/nc/276/0157-01" ] }, { "cite": "114 S.E. 837", "category": "reporters:state_regional", "reporter": "S.E.", "case_ids": [ 1975392 ], "year": 1922, "pin_cites": [ { "parenthetical": "defendant provoked fatal encounter with language calculated to start fight; jury could properly find him aggressor, even though deceased advanced on him with loaded pistol" } ], "opinion_index": 0, "case_paths": [ "/sc/122/0029-01" ] }, { "cite": "184 N.C. 789", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11272400 ], "year": 1922, "pin_cites": [ { "parenthetical": "defendant provoked fatal encounter with language calculated to start fight; jury could properly find him aggressor, even though deceased advanced on him with loaded pistol" } ], "opinion_index": 0, "case_paths": [ "/nc/184/0789-01" ] }, { "cite": "102 S.Ct. 523", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1981, "opinion_index": 0 }, { "cite": "70 L.Ed. 2d 392", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1981, "opinion_index": 0 }, { "cite": "454 U.S. 973", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6449733, 6449926, 6450121, 6449578, 6449417, 6449328, 6449490, 6449656, 6450011, 6449245, 6449822 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/us/454/0973-07", "/us/454/0973-09", "/us/454/0973-11", "/us/454/0973-05", "/us/454/0973-03", "/us/454/0973-02", "/us/454/0973-04", "/us/454/0973-06", "/us/454/0973-10", "/us/454/0973-01", "/us/454/0973-08" ] }, { "cite": "281 S.E. 2d 7", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "303 N.C. 608", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575033 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/nc/303/0608-01" ] }, { "cite": "203 S.E. 2d 830", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1974, "opinion_index": 0 }, { "cite": "285 N.C. 209", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562949 ], "year": 1974, "opinion_index": 0, "case_paths": [ "/nc/285/0209-01" ] }, { "cite": "244 S.E. 2d 397", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "295 N.C. 126", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561834 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/nc/295/0126-01" ] }, { "cite": "304 S.E. 2d 754", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "308 N.C. 675", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4704355, 4704805, 4710377, 4706352, 4704729 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/nc/308/0675-05", "/nc/308/0675-04", "/nc/308/0675-02", "/nc/308/0675-03", "/nc/308/0675-01" ] }, { "cite": "302 S.E. 2d 822", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "62 N.C. App. 239", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521551 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/nc-app/62/0239-01" ] }, { "cite": "90 N.C. 749", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8698800 ], "year": 1884, "opinion_index": 0, "case_paths": [ "/nc/90/0749-01" ] }, { "cite": "94 S.Ct. 157", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1973, "opinion_index": 0 }, { "cite": "38 L.Ed. 2d 114", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1973, "opinion_index": 0 }, { "cite": "195 S.E. 2d 297", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1973, "opinion_index": 0 }, { "cite": "283 N.C. 249", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8558380 ], "year": 1973, "opinion_index": 0, "case_paths": [ "/nc/283/0249-01" ] }, { "cite": "189 S.E. 2d 235", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1972, "opinion_index": 0 }, { "cite": "281 N.C. 415", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575271 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/nc/281/0415-01" ] }, { "cite": "180 S.E. 2d 789", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "opinion_index": 0 }, { "cite": "278 N.C. 649", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561269 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/nc/278/0649-01" ] }, { "cite": "296 S.E. 2d 649", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "opinion_index": 0 }, { "cite": "307 N.C. 62", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560587 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/nc/307/0062-01" ] }, { "cite": "316 S.E. 2d 72", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "parenthetical": "per curiam" } ], "opinion_index": 0 }, { "cite": "311 N.C. 299", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4683956 ], "year": 1984, "pin_cites": [ { "parenthetical": "per curiam" } ], "opinion_index": 0, "case_paths": [ "/nc/311/0299-01" ] }, { "cite": "309 S.E. 2d 464", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "65 N.C. App. 234", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523250 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/nc-app/65/0234-01" ] }, { "cite": "242 S.E. 2d 844", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "pin_cites": [ { "parenthetical": "admitted evidence highly prejudicial for the same reason that it was relevant; no error" } ], "opinion_index": 0 }, { "cite": "294 N.C. 474", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574012 ], "year": 1978, "pin_cites": [ { "parenthetical": "admitted evidence highly prejudicial for the same reason that it was relevant; no error" } ], "opinion_index": 0, "case_paths": [ "/nc/294/0474-01" ] }, { "cite": "255 S.E. 2d 147", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "pin_cites": [ { "parenthetical": "murder case, error to admit evidence of unrelated sodomy" } ], "opinion_index": 0 }, { "cite": "297 N.C. 399", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570500 ], "year": 1979, "pin_cites": [ { "parenthetical": "murder case, error to admit evidence of unrelated sodomy" } ], "opinion_index": 0, "case_paths": [ "/nc/297/0399-01" ] }, { "cite": "250 S.E. 2d 220", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "296 N.C. 194", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565410 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/nc/296/0194-01" ] }, { "cite": "251 S.E. 2d 430", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "296 N.C. 559", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568184 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/nc/296/0559-01" ] }, { "cite": "302 S.E. 2d 164", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1983, "opinion_index": 0 }, { "cite": "308 N.C. 272", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4707923 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/nc/308/0272-01" ] }, { "cite": "446 U.S. 291", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6182222 ], "weight": 3, "year": 1980, "opinion_index": 0, "case_paths": [ "/us/446/0291-01" ] }, { "cite": "316 S.E. 2d 79", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "opinion_index": 0 }, { "cite": "311 N.C. 283", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4682240 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/nc/311/0283-01" ] }, { "cite": "310 S.E. 2d 145", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "opinion_index": 0 }, { "cite": "65 N.C. App. 762", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525804 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/nc-app/65/0762-01" ] }, { "cite": "279 S.E. 2d 835", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1981, "opinion_index": 0 }, { "cite": "303 N.C. 500", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574086 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/nc/303/0500-01" ] }, { "cite": "206 S.E. 2d 238", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1974, "pin_cites": [ { "parenthetical": "assault precipitated heart attack" } ], "opinion_index": 0 }, { "cite": "285 N.C. 570", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565454 ], "year": 1974, "pin_cites": [ { "parenthetical": "assault precipitated heart attack" } ], "opinion_index": 0, "case_paths": [ "/nc/285/0570-01" ] }, { "cite": "225 S.E. 2d 549", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "pin_cites": [ { "parenthetical": "intervening negligence no excuse" } ], "opinion_index": 0 }, { "cite": "290 N.C. 292", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560978 ], "year": 1976, "pin_cites": [ { "parenthetical": "intervening negligence no excuse" } ], "opinion_index": 0, "case_paths": [ "/nc/290/0292-01" ] }, { "cite": "231 S.E. 2d 682", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "32 N.C. App. 261", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8549884 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/nc-app/32/0261-01" ] }, { "cite": "287 S.E. 2d 818", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "opinion_index": 0 }, { "cite": "305 N.C. 238", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567356 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/nc/305/0238-01" ] } ], "analysis": { "cardinality": 1081, "char_count": 24896, "ocr_confidence": 0.762, "pagerank": { "raw": 6.098652172571478e-07, "percentile": 0.9556035892440061 }, "sha256": "ebdc6153ee61c83d44ad7357930447489e8e8884a0d1bb6732bcfe1a61153dab", "simhash": "1:d2b9e4fa463ccc5b", "word_count": 4105 }, "last_updated": "2023-07-14T21:22:01.691260+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges WHICHARD and Cozort concur." ], "parties": [ "STATE OF NORTH CAROLINA v. KENNETH PRESLAR HAMILTON" ], "opinions": [ { "text": "EAGLES, Judge.\nDefendant argues six questions. We have examined them carefully but have found no prejudicial error.\nI\nThe State presented an assistant State medical examiner who examined Smith\u2019s body. At the conclusion of the medical examiner\u2019s testimony on direct examination, the prosecutor asked his opinion as to the cause of Smith\u2019s death. Defendant entered a general objection, which was overruled, and is the basis for his first assignment of error.\nWe note initially that a general objection, if overruled, is ordinarily not effective on appeal. G.S. 8C-1, R. Ev. 103(a); 1 H. Brandis, N.C. Evidence Section 27 (1982). In the absence of a special request to qualify a witness as an expert, a general objection to specific opinion testimony will not suffice to preserve the question of the expert\u2019s qualifications, even on ultimate issues. State v. Hunt, 305 N.C. 238, 287 S.E. 2d 818 (1982). If the witness\u2019 evidence indicates that he is in fact qualified to give the challenged opinion, even a timely specific objection will not likely be sustained on appeal. See Id.; State v. Hill, 32 N.C. App. 261, 231 S.E. 2d 682 (1977). While the record does not contain an extensive review of this witness\u2019 qualifications, his position as assistant medical examiner and his testimony regarding the number of other cases he had seen indicate sufficient expertise to allow us to conclude that the trial court did not err in admitting his opinion of the cause of death. See G.S. 130A-380.\nDefendant also attempts to argue under this assignment that the State failed to prove that any wounds received by Smith in this incident actually caused his death, implying that death may have resulted from other unknown causes. The State need not prove that the defendant\u2019s acts were the sole and immediate cause of death. State v. Alford Jones, 290 N.C. 292, 225 S.E. 2d 549 (1976) (intervening negligence no excuse); State v. Luther, 285 N.C. 570, 206 S.E. 2d 238 (1974) (assault precipitated heart attack). Further, the State need not exclude every other possible hypothesis inconsistent with defendant\u2019s guilt. State v. Freddie Jones, 303 N.C. 500, 279 S.E. 2d 835 (1981). Here the State\u2019s evidence showed that Smith was active and alive during the incident, that he received gunshot wounds to his upper body from extremely close range which made him go limp and fall to the sidewalk, that an ambulance had to be summoned, and that six hours later Smith was dead of gunshot wounds to his upper body roughly equal in number to the number of shots fired during the incident. We think this evidence sufficed to go to the jury on the issue of whether the shots fired during the incident caused Smith\u2019s death. We note in response to defendant\u2019s speculations on appeal about other possible causes of death, that it was not obligatory for the State to disprove every other conjectured cause of death. Id. The assignment is therefore overruled.\nII\nDefendant was arrested in the afternoon following the incident. While he was being fingerprinted, but before his rights were read to him, defendant made several comments. At one point he said, \u201cIt\u2019s not against the law to kill a nigger in Anson County.\u201d Following voir dire, the court found as fact, inter alia, that no officer asked defendant any questions and that the statements were \u201ccompletely voluntary.\u201d Defendant now assigns error to their admission.\nDefendant made no exceptions to any of the findings of fact. Accordingly they are binding here. State v. Colbert, 65 N.C. App. 762, 310 S.E. 2d 145, rev\u2019d on other grounds, 311 N.C. 283, 316 S.E. 2d 79 (1984). The findings of fact establish that the statements were entirely voluntary and that there was no constitutional barrier to their admission. Even if the findings were not conclusive, this record contains no evidence of police conduct that the officers should have known was reasonably likely to elicit the incriminating statements. See Rhode Island v. Innis, 446 U.S. 291, 64 L.Ed. 2d 297, 100 S.Ct. 1682 (1980); State v. Ladd, 308 N.C. 272, 302 S.E. 2d 164 (1983). The mere fact that defendant was in custody does not make his statements ipso facto inadmissible. There must be some interrogation. Id. Here, there was no interrogation. Defendant\u2019s constitutional arguments are without merit.\nDefendant also attacks the admission of these statements on the grounds that their inflammatory effect outweighed their relevance. Evidence traditionally has been considered relevant in a criminal prosecution if it has \u201cany logical tendency, however slight, to prove a fact in issue.\u201d 1 H. Brandis, N.C. Evidence Section 77 at 285 (1982). The new Rules of Evidence did not substantially alter this liberal definition of relevancy. G.S. 8C-1, R. Ev. 401. Malice is one of the elements of murder. State v. Fleming, 296 N.C. 559, 251 S.E. 2d 430 (1979). Malice is inter alia a state of mind which prompts one person to take the life of another without just cause, excuse or justification. State v. Love, 296 N.C. 194, 250 S.E. 2d 220 (1978). Statements by defendant that he believed the law in Anson County did not prevent the killing of blacks clearly tended to prove malice.\nRegardless of a statement\u2019s relevancy, the court retains discretionary authority to exclude it if its probative value is substantially outweighed by its unfairly inflammatory effect. G.S. 8C-1, R. Ev. 403; 1 H. Brandis, N.C. Evidence Section 80 (1982). Generally, however, courts have excluded such evidence only when it served exclusively to inflame. See e.g., State v. Simpson, 297 N.C. 399, 255 S.E. 2d 147 (1979) (murder case, error to admit evidence of unrelated sodomy). If the evidence is relevant, however, the Simpson opinion\u2019s logic does not apply. See State v. Richards, 294 N.C. 474, 242 S.E. 2d 844 (1978) (admitted evidence highly prejudicial for the same reason that it was relevant; no error). While the disputed evidence may have tended to evoke emotional responses, it was also highly relevant for the same reasons, as discussed above. The court did not abuse its discretion in refusing to exclude the statements. The assignment is overruled.\nIII\nDefendant\u2019s next argument combines three separate assignments of error, regarding (1) the denial of defendant\u2019s motion to dismiss and (2) the court\u2019s instructions on who was the aggressor. Defendant has ignored the mandate of Rules of Appellate Procedure that \u201c[e]ach question shall be separately stated.\u201d App. R. 28(b)(5). Nevertheless, despite the Rule violation we address those aspects of this argument which are properly before us.\nA\nWhether there is sufficient evidence to go to the jury can be one of the most difficult questions a court faces in a criminal case. State v. Bell, 65 N.C. App. 234, 309 S.E. 2d 464 (1983), aff\u2019d, 311 N.C. 299, 316 S.E. 2d 72 (1984) (per curiam). Upon a timely motion to dismiss, the evidence must be considered in the light most favorable to the State, with all favorable and reasonable intendments and inferences. State v. Earnhardt, 307 N.C. 62, 296 S.E. 2d 649 (1982). Once substantial evidence is before the jury, any conflicts and discrepancies are for the jury to resolve and do not supply basis for dismissal. State v. Greene, 278 N.C. 649, 180 S.E. 2d 789 (1971); see State v. Bolin, 281 N.C. 415, 189 S.E. 2d 235 (1972). This applies even where defendant presents no evidence. Id. If defendant does present evidence, it is disregarded on his motion to dismiss except to the extent that it is favorable to the State. Earnhardt, supra. In \u201cborderline\u201d or close cases, our courts have consistently expressed a preference for submitting issues to the jury, both in reliance on the common sense and fairness of the twelve and to avoid unnecessary appeals. State v. Vestal, 283 N.C. 249, 195 S.E. 2d 297, cert. denied, 414 U.S. 874, 38 L.Ed. 2d 114, 94 S.Ct. 157 (1973); State v. Holt, 90 N.C. 749 (1884); Cunningham v. Brown, 62 N.C. App. 239, 302 S.E. 2d 822, disc. rev. denied, 308 N.C. 675, 304 S.E. 2d 754 (1983). With these considerations in mind, we conclude that the court properly denied defendant\u2019s motions to dismiss and submitted the case to the jury.\nThere was sufficient evidence of premeditation and deliberation in defendant\u2019s repeated statements that he was going to kill Smith, his requests for his second gun and in his immediate attempt to get his second gun or in unholstering his first gun when physically separated from Smith. See State v. Potter, 295 N.C. 126, 244 S.E. 2d 397 (1978). There was sufficient evidence of malice in defendant\u2019s voluntary statement following arrest and the fact that he fired his gun several times at Smith at extremely close range (until there were no bullets left). See State v. Fleming, supra. Of the three elements of murder and voluntary manslaughter, see Id., only the unlawfulness of the killing is seriously disputed here. Defendant\u2019s contention is that the killing was justified as a matter of law by self-defense and that all the evidence showed that Smith was at all times the aggressor.\nB\nA person who kills another is not guilty of murder if the killing was an act of self-defense. State v. Deck, 285 N.C. 209, 203 S.E. 2d 830 (1974). The right to kill another in self-defense may be forfeited not only by physical aggression on the accused\u2019s part but by conduct provoking the fatal encounter. State v. Sanders, 303 N.C. 608, 281 S.E. 2d 7, cert. denied, 454 U.S. 973, 70 L.Ed. 2d 392, 102 S.Ct. 523 (1981). In Sanders, defendant could properly be found the \u201caggressor\u201d even though he was imprisoned, since defendant taunted the deceased jailer to enter his cell with vile names and verbal abuse. See State v. Baldwin, 184 N.C. 789, 114 S.E. 837 (1922) (defendant provoked fatal encounter with language calculated to start fight; jury could properly find him aggressor, even though deceased advanced on him with loaded pistol); see also State v. Jennings, 276 N.C. 157, 171 S.E. 2d 447 (1970) (analyzing circumstances under which adulterous conduct might affect right of self-defense). The fact that the deceased initiated physical contact does not automatically excuse aggressive conduct on defendant\u2019s part. See State v. Watkins, 283 N.C. 504, 196 S.E. 2d 750 (1973) (deceased lunged at defendant after defendant sought out deceased and approached him brandishing shotgun; no self-defense).\nThe State bears the burden of proving that defendant did not act in self-defense. State v. Herbin, 298 N.C. 441, 259 S.E. 2d 263 (1979). To survive a motion to dismiss, the State must therefore present sufficient substantial evidence which, when taken in the light most favorable to the State, is sufficient to convince a rational trier of fact that defendant did not act in self-defense. State v. Earnhardt, supra; Jackson v. Virginia, 443 U.S. 307, 61 L.Ed. 2d 560, 99 S.Ct. 2781, reh\u2019g denied, 444 U.S. 890, 62 L.Ed. 2d 126, 100 S.Ct. 195 (1979).\nHere there was evidence that defendant and Smith had been physically separated with a law enforcement officer positioned between them. The original struggle had been broken up and stopped. Defendant then repeated his intention to kill Smith- and either pulled out a pistol or suddenly reached for the box where a second pistol was known by the victim to be located, provoking the fatal encounter. This evidence sufficed to go to the jury on the question of whether defendant was the \u201caggressor.\u201d Defendant relies heavily on the evidence that Smith reached into his truck in the first instance and then jumped back in on top of him after the two had been separated. At best, this evidence presented a conflict in the State\u2019s evidence, which was for the jury to resolve. State v. Bolin, supra.\nOur decision in State v. Haight, 66 N.C. App. 104, 310 S.E. 2d 795 (1984), supports this conclusion. There deceased roughed up one of defendant\u2019s companions, abused and threatened defendant, and seemed intent on a violent confrontation. As deceased came toward defendant, defendant fired the fatal shot. Even though mortally wounded, deceased then chased and assaulted defendant. In Haight, however, there was evidence that deceased had committed no overt act at the time the shot was fired. We held that there was sufficient evidence to go to the jury on the question whether or not defendant was the aggressor. See also State v. McConnaughey, 66 N.C. App. 92, 311 S.E. 2d 26 (1984) (similar facts and result). We likewise hold that in the instant case there was sufficient evidence to go to the jury.\nC\nDefendant requested an instruction \u201c[t]hat the Court instruct the Jury that Ken Hamilton was not the aggressor, and that Smith was the aggressor.\u201d The court declined to give the requested instruction, which appears to be a peremptory instruction requiring the jury to accept as established a crucial and controverted fact. Peremptory instructions are only rarely proper in criminal cases. Only when uncontradicted evidence clearly establishes a fact beyond a reasonable doubt is a peremptory instruction appropriate. State v. Bowen, 67 N.C. App. 512, 313 S.E. 2d 196, appeal dismissed, 312 N.C. 79, 320 S.E. 2d 405 (1984) (per curiam). That was not the situation here and the court correctly refused to give the requested instruction.\nD\nDefendant also argues under this assignment that the court\u2019s instructions defining and applying the law of aggression were erroneous. Defendant did not specifically request any instructions on the subject (other than the one discussed above), and in response to the court\u2019s inquiry following the charge he indicated that he had no corrections or additions other than those previously requested. Defendant therefore cannot assign error to the instructions given. App. R. 10(b)(2). We have reviewed the complained of instructions and do not find \u201cplain error\u201d warranting a new trial. See State v. Odom, 307 N.C. 655, 300 S.E. 2d 375 (1983).\nIV\nDefendant next assigns error to the court\u2019s refusal to instruct on involuntary manslaughter. The court must instruct on all substantial features of the case arising upon the evidence. State v. Davis, 66 N.C. App. 334, 311 S.E. 2d 311 (1984). Involuntary manslaugher is \u201cthe unintentional killing of a human being without malice, proximately caused by (1) an unlawful act not amounting to a felony nor naturally dangerous to human life, or (2) a culpably negligent act or omission.\u201d State v. Redfern, 291 N.C. 319, 321, 230 S.E. 2d 152, 153 (1976). Defendant grounds his contention on his testimony, otherwise unsupported, that Smith grabbed the gun and that it accidentally discharged during the struggle over it. We do not think this evidence sufficed to support an instruction on involuntary manslaughter, in view of defendant\u2019s repeatedly stated intention to kill Smith, his action in drawing the gun after the two men were physically separated, his testimony elsewhere that Smith fired the first shot, and the fact that Smith was shot a number of times at close range.\nThe appellate courts of this State have consistently held that it would be error to instruct on involuntary manslaughter on similar fa\u00e9ts when the only evidence of accident has been oral assertions by the defendant, especially where the defense has relied on self-defense. See State v. Ray, 299 N.C. 151, 261 S.E. 2d 789 (1980) (self-defense raised; defendant admitted firing toward deceased but not trying to hit him); State v. Redfern, supra (defendant\u2019s acts naturally dangerous to human life); State v. Robbins, 309 N.C. 771, 309 S.E. 2d 188 (1983) (defendant and deceased scuffled; defendant had made threats, shot victim repeatedly); State v. Davis, supra (intentional brandishing of knife naturally dangerous, fatal consequences in scuffle probable). Accordingly, we conclude that no error occurred here. We note that this Court recently held that involuntary manslaughter is not a lesser included offense of murder. State v. Fournier, 73 N.C. App. 465, 326 S.E. 2d 84 (1985).\nV\nIn his last two questions, defendant assigns error to various jury instructions on excessive force, burden of proof, and accident. In disregard of the rules, defendant has not presented his questions separately, App. R. 28(b)(5), and failed to object at trial to the errors now alleged. App. R. 10(b)(2). These questions are accordingly not properly before us. Nevertheless, we have reviewed the instructions and find no \u201cplain error.\u201d State v. Odom, supra. These assignments are overruled.\nVI\nFor the foregoing reasons, we conclude that defendant has failed to show that he received other than a fair trial, free from prejudicial error.\nNo error.\nJudges WHICHARD and Cozort concur.", "type": "majority", "author": "EAGLES, Judge." } ], "attorneys": [ "Attorney General Thornburg, by Assistant Attorneys General Steven F. Bryant and Karen E. Long, for the State.", "Henry T. Drake for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. KENNETH PRESLAR HAMILTON\nNo. 8520SC185\n(Filed 29 October 1985)\n1. Criminal Law 8 53.1\u2014 homicide \u2014 expert testimony as to cause of death \u2014 properly admitted\nThe State did not err in a prosecution for murder by admitting over a general objection the testimony of an assistant medical examiner regarding the cause of death. A general objection to specific opinion testimony will not suffice to preserve the question of the expert\u2019s qualifications in the absence of a special request to qualify the witness as an expert. Moreover, the witness\u2019s qualifications, position as assistant medical examiner, and testimony regarding the number of cases he had seen indicated sufficient expertise. G.S. 8C-1, R. Ev. 103(a), G.S. 130A-380.\n2. Homicide 8 21.3\u2014 evidence that defendant caused death \u2014 sufficient\nThe evidence in a murder prosecution was sufficient to go to the jury on whether shots fired during an incident caused the victim\u2019s death where the victim was alive and active during the incident, received gunshot wounds to his upper body from extremely close range which made him go limp and fall to the sidewalk, an ambulance had to be summoned, and six hours later the victim was dead of gunshot wounds to his upper body roughly equal in number to the shots fired during the incident.\n3. Criminal Law 88 33.4, 75.9\u2014 homicide \u2014 custodial statement \u2014 inflammatory\u2014 relevant to malice\nThe trial court did not err in the murder prosecution of an off-duty police officer for the killing of a black man by admitting custodial statements by the police officer that he believed the law in Anson County did not prevent the killing of blacks. The court found after a voir dire that no officer asked defendant any questions and that the statements were completely voluntary, the record contains no evidence of police conduct that the officers should have known was reasonably likely to elicit incriminating statements, defendant\u2019s statements clearly tended to prove malice, and while the statements may have tended to invoke emotional responses, G.S. 8C-1, R. Ev. 403, they were also relevant for the same reasons.\n4. Homicide 8 18.1\u2014 fight between victim and defendant \u2014 evidence of premeditation-sufficient\nThere was sufficient evidence to submit murder to the jury in a case arising out of a struggle between an off-duty police officer and a man with a history of violent paranoid schizophrenia who approached the defendant\u2019s truck and began struggling with defendant where there was evidence of premeditation and deliberation in defendant\u2019s repeated statements that he was going to kill the victim, defendant\u2019s request for his second gun, defendant\u2019s immediate attempt to get his second gun, and defendant\u2019s unholstering of his first gun when physically separated from the victim, and where there was evidence of malice in defendant\u2019s volunteered statements following arrest and the fact that defendant fired his gun at close range until there were no bullets left.\n5. Homicide 8 21.8\u2014 self-defense \u2014 evidence sufficient to go to jury\nThere was sufficient evidence in a murder prosecution to go to the jury on the question of whether defendant was the aggressor and did not act in self-defense, and the court did not err by refusing to give a peremptory instruction for defendant on self-defense, where defendant and the victim had been physically separated by a law officer positioned between them and the original struggle broken up, defendant then repeated his intention to kill the victim, and defendant either pulled out a pistol or suddenly reached for a box where a second pistol was known by the victim to be located, provoking the fatal encounter.\n6. Criminal Law 8 163\u2014 assignment of error to jury instruction \u2014 no plain error\nDefendant could not assign error to the court\u2019s instruction defining and applying the law of aggression in a murder prosecution where defendant did not specifically request any instructions on the subject other than a peremptory instruction and, in response to the court\u2019s inquiry following the charge, defendant indicated that he had no corrections or additions other than those previously requested. Moreover, there was no plain error in the court\u2019s instructions warranting a new trial. App. Rule 10(b)(2).\n7. Homicide 8 30.3\u2014 murder \u2014 failure to instruct on involuntary manslaughter-no error\nThe trial court did not err in a murder prosecution by refusing to instruct on involuntary manslaughter where defendant repeatedly stated his intention to kill the victim, defendant drew his gun after the two men were physically separated, defendant testified elsewhere that the victim fired the first shot, and the victim was shot a number of times at close range.\n8. Criminal Law 8 163\u2014 homicide \u2014 assignment of error to instructions \u2014 no plain error\nDefendant did not properly raise on appeal in a murder case questions as to the jury instructions on excessive force, burden of proof, and accident where defendant did not present his questions separately and failed to object at trial; nevertheless, there was no plain error in the instructions.\nAPPEAL by defendant from Helms, Judge. Judgment entered 14 September 1984 in Superior Court, Anson County. Heard in the Court of Appeals 25 September 1985.\nDefendant was tried on an indictment, proper in form, for the murder of Roswell Smith. The State\u2019s evidence tended to show:\nIn the early morning of 4 May 1984 defendant, a white male off-duty police officer, parked his pickup truck near a convenience store in Morven, North Carolina. Smith, a black man with a history of severe, violent paranoid schizophrenia, customarily stood during the day near the spot where defendant parked. For reasons unknown, Smith came around to defendant\u2019s driver\u2019s side window, reached in, and began struggling with defendant. They struggled over defendant\u2019s gun which he had in a holster on the seat. The storekeeper and others came over and defendant shouted for them to get his other gun which was in a box. Defendant said he was going to kill Smith. Defendant repeated this statement in the ensuing minutes.\nThe storekeeper tried to separate the two men but could not. He called the sheriffs department and a deputy arrived shortly. Both men still held onto the holstered gun. The deputy asked them to let go of it, but neither one released the gun. The deputy wrestled with them and separated Smith from defendant, positioning himself in between. Defendant still had his gun.\nAt this point, one State\u2019s witness testified that defendant stepped out of his truck and pulled his gun out of its holster. He cocked the gun, repeating that he would kill Smith. Another State\u2019s witness testified that defendant reached for the box with the second gun in it as soon as the deputy got Smith away from him.\nSmith jumped around the deputy, grabbed the gun being held by defendant and the two fell back into the truck, with the deputy on top of them trying to separate them. Shots went off. The deputy was hit in the face by something and ducked away. Smith received several gunshot wounds and died as a result.\nDefendant\u2019s evidence tended to show that he had begged onlookers to help him while he was struggling with Smith, but no one did and that Smith attempted to shoot defendant with defendant\u2019s gun and fired first, after which defendant turned the gun on Smith and fired until no bullets were left. Smith was very muscular and had an extensive history of violent behavior, including verbally abusing passing motorists and attempting to enter their stopped vehicles. Defendant also presented extensive evidence of his good character.\nThe jury was charged on murder in the first and second degree, voluntary manslaughter, and acquittal. Defendant requested, but did not receive, instructions on involuntary manslaughter. Upon a verdict of guilty of voluntary manslaughter, which carries a presumptive sentence of six years, the court sentenced defendant to four years. The court found in mitigation that defendant acted under strong provocation and that he was a person of good character or reputation. The court allowed defendant to post bond pending this appeal.\nAttorney General Thornburg, by Assistant Attorneys General Steven F. Bryant and Karen E. Long, for the State.\nHenry T. Drake for defendant-appellant." }, "file_name": "0506-01", "first_page_order": 538, "last_page_order": 548 }