{ "id": 8564056, "name": "STATE OF NORTH CAROLINA v. LINDSEY KEESTER CARVER", "name_abbreviation": "State v. Carver", "decision_date": "1974-11-26", "docket_number": "No. 103", "first_page": "179", "last_page": "184", "citations": [ { "type": "official", "cite": "286 N.C. 179" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "207 S.E. 2d 299", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": -1 }, { "cite": "22 N.C. App. 674", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11312037 ], "opinion_index": -1, "case_paths": [ "/nc-app/22/0674-01" ] }, { "cite": "113 S.E. 617", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "184 N.C. 637", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11271909 ], "opinion_index": 0, "case_paths": [ "/nc/184/0637-01" ] }, { "cite": "17 S.E. 2d 658", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "220 N.C. 530", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11306271 ], "opinion_index": 0, "case_paths": [ "/nc/220/0530-01" ] }, { "cite": "28 S.E. 2d 519", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "223 N.C. 770", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8617272 ], "opinion_index": 0, "case_paths": [ "/nc/223/0770-01" ] }, { "cite": "108 S.E. 2d 892", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "250 N.C. 595", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8625339 ], "opinion_index": 0, "case_paths": [ "/nc/250/0595-01" ] }, { "cite": "171 S.E. 2d 447", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "276 N.C. 157", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560458 ], "opinion_index": 0, "case_paths": [ "/nc/276/0157-01" ] }, { "cite": "185 S.E. 2d 874", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "280 N.C. 366", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572031 ], "opinion_index": 0, "case_paths": [ "/nc/280/0366-01" ] }, { "cite": "154 S.E. 604", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "199 N.C. 278", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8599333 ], "opinion_index": 0, "case_paths": [ "/nc/199/0278-01" ] }, { "cite": "44 S.E. 2d 725", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "228 N.C. 153", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8624639 ], "opinion_index": 0, "case_paths": [ "/nc/228/0153-01" ] }, { "cite": "25 L.Ed. 2d 665", "category": "reporters:federal", "reporter": "L. Ed. 2d", "opinion_index": 0 }, { "cite": "90 S.Ct. 1387", "category": "reporters:federal", "reporter": "S. Ct.", "opinion_index": 0 }, { "cite": "397 U.S. 1050", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12105856, 12105921, 12106051, 12105892, 12106029, 12105905, 12105937, 12105885, 12106011, 12105981 ], "opinion_index": 0, "case_paths": [ "/us/397/1050-01", "/us/397/1050-05", "/us/397/1050-10", "/us/397/1050-03", "/us/397/1050-09", "/us/397/1050-04", "/us/397/1050-06", "/us/397/1050-02", "/us/397/1050-08", "/us/397/1050-07" ] }, { "cite": "169 S.E. 2d 875", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "275 N.C. 550", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559188 ], "opinion_index": 0, "case_paths": [ "/nc/275/0550-01" ] }, { "cite": "172 S.E. 2d 50", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "276 N.C. 482", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561802 ], "opinion_index": 0, "case_paths": [ "/nc/276/0482-01" ] } ], "analysis": { "cardinality": 615, "char_count": 11759, "ocr_confidence": 0.608, "pagerank": { "raw": 1.802513092868917e-07, "percentile": 0.7166276875601628 }, "sha256": "a4c6beac0e3326142b6a7541a1d54a8928387804676d0c1a8329271cfcbac8fe", "simhash": "1:e55bb67dce1d67ed", "word_count": 1946 }, "last_updated": "2023-07-14T20:24:13.966890+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "STATE OF NORTH CAROLINA v. LINDSEY KEESTER CARVER" ], "opinions": [ { "text": "BRANCH, Justice.\n[t] Defendant contends that the trial judge erred by allowing the solicitor to cross-examine defendant concerning his. failure to subpoena certain witnesses.\nIn this connection, the record discloses the following exchange between the solicitor and defendant:\n\u201cQ. Did you ever make any effort to find any witnesses who could verify your side of the case other than these two gentlemen you have brought into court?\nObjection Overruled.\nException.\n\u201cA. Yes, sir. I contacted Roy Paylor and William Pointer, the man that told Leon [the deceased] to go home.\n\u201cQ. Did you subpoena them to come to Court today?\nObjection.\nObjection Overruled.\nException.\n\u201cA. No, I had not. They did not testify for me at the preliminary hearing.\u201d\nThe Court of Appeals held that the scope of cross-examination is largely within the trial judge\u2019s discretion and that \u201cthere was no manifest abuse of such discretion in this case which could be considered to be prejudicial.\u201d\nThe scope of cross-examination rests largely in the trial judge\u2019s discretion, and his ruling thereon will not be held as reversible error unless it is shown that the verdict was improperly influenced thereby. State v. McPherson, 276 N.C. 482, 172 S.E. 2d 50; State v. Ross, 275 N.C. 550, 169 S.E. 2d 875, cert. denied, 397 U.S. 1050, 90 S.Ct. 1387, 25 L.Ed. 2d 665; State v. Edwards, 228 N.C. 153, 44 S.E. 2d 725; and State v. Beal, 199 N.C. 278, 154 S.E. 604.\nDefendant relies on the case of State v. Gainey, 280 N.C. 366, 185 S.E. 2d 874, to support his contention that the above-quoted testimony was erroneously admitted to his prejudice. In Gainey, the defendant had testified without objection that one Willie Ray could have supported his defense of alibi but was not in court. When the solicitor asked defendant if he had subpoenaed Ray, the defendant answered that Ray \u201cdidn\u2019t want to come to court.\u201d The solicitor then asked, \u201cHe didn\u2019t want to go on the stand and prejure himself, did he?\u201d There was no objection to the latter question, which defendant answered by saying, \u201cHe didn\u2019t have no reason to tell no lie.\u201d There Justice Sharp, speaking for the Court, stated: \u201cThe solicitor\u2019s question with reference to Ray\u2019s motives was objectionable. However, it is inconceivable that it affected the outcome of the case, and under all the circumstances, it cannot be held prejudicial error. [Citations omitted.]\u201d (Emphasis supplied.)\nHere, there was testimony that Roy Paylor and William Pointer were on the premises when the shooting occurred. There was also testimony by defendant that, after the shooting, a \u201ccrowd\u201d approached him and Clay\u2019s body. Defendant did not subpoena a person from the \u201ccrowd\u201d and in particular failed to subpoena Roy Paylor and William Pointer, who were shown to have been on the premises. The only witnesses to the., shooting offered by defendant were his half brother, Larry Ramsey; Samuel David Little, defendant\u2019s friend, who apparently helped to precipitate the altercation; and defendant himself.\nUnder these circumstances we think that this evidence was correctly admitted as tending to impeach defendant\u2019s testimony. Even if we were to hold the admission of this evidence to be erroneous, we do not believe that its admission would, have affected the outcome of the trial.\nDefendant\u2019s Assignment of Error Number 17, directed to the court\u2019s charge, presents a more serious question.' In his final mandate to the jury in the original charge, the trial, judge instructed the jury:\n\u201cIf you do not find the defendant guilty of second degree murder, you must consider whether or not he is guilty of voluntary manslaughter. If you find from the evidence beyond a reasonable doubt that on or about September 17th, 1972, Lindsey Keester Carver intentionally shot Leon Clay with a pistol, a deadly weapon, thereby proximately causing Leon Clay\u2019s death, but are satisfied that the defendant killed without malice in the heat of sudden passion, nothing else appearing, or being the agres-sor without murderous intent in bringing on the confrontation with Leon Clay, or using excessive force in exercising a right of self-defense, it would be your duty to return a verdict of guilty of voluntary manslaughter.\nExceptions 18 & 20.\u201d\nAfter beginning its deliberations, the jury returned to the courtroom and requested that the court \u201cclarify to us or give to us again the verdicts, one of which we are supposed, .to bring back.\u201d The court then stated the possible verdicts and inquired whether this statement answered the question posed. The foreman responded: \u201cNo sir, it isn\u2019t quite clear in our minds yet the differences of the charges.\u201d Thereupon, after briefly and correctly charging as to first-degree murder and second-degree murder, the court stated:\n\u201cIn order to reduce the crime to manslaughter, the defendant must prove, not beyond a reasonable doubt, but simply to your satisfaction that he acted in self-defense.\nException No. 22.\u201d (Emphasis supplied.)\nThe court thereafter correctly charged both on self-defense and as to how malice might be negated so as to reduce the homicide from second-degree murder to manslaughter.\nThe Court of Appeals held that while the charge above-quoted was obvious error, it amounted to a mere lapsus linguae and was harmless error beyond a reasonable doubt. We agree with the decision of the Court of Appeals that the challenged portion of the charge was obvious error, but we are unable to concur in its holding that the error was not prejudicial.\nIt is well recognized in this jurisdiction that when there are conflicting instructions upon a material point, there must be a new trial since the jury is not supposed to be able to distinguish between a correct and incorrect charge. State v. Jennings, 276 N.C. 157, 171 S.E. 2d 447; State v. Fowler, 250 N.C. 595, 108 S.E. 2d 892; State v. Ellerbe, 223 N.C. 770, 28 S.E. 2d 519; State v. Floyd, 220 N.C. 530, 17 S.E. 2d 658; State v. Johnson, 184 N.C. 637, 113 S.E. 617.\n. In State v Ellerbe, supra, we find the following pertinent statement:\n\u201c. . . An erroneous instruction upon a material aspect of the case is not cured by the fact that in other portions of the charge the law is correctly stated. This is especially applicable in the instant case, because the jury was instructed that, in order for the defendant to have the benefit of the principle of law, that is, of self-defense, he must show certain things, some of which he was not required to show under the facts and circumstances disclosed on this record, in order to have the jury consider his evidence on the plea of self-defense. It is impossible to determine on which of the instructions the jury acted. [Citations omitted.] \u201d\nIn instant case, defendant did not controvert the fact that he intentionally shot Leon Clay with a deadly weapon,' thereby proximately causing his death. He relied on self-defense for an acquittal. Thus, the challenged portion of the charge is material since it, in effect, instructs the jurors to return a verdict of voluntary manslaughter if they find that defendant did act in self-defense.\nIt is apparent that the able trial judge had full knowledge of the pertinent principles of law; however, in the original charge, through lapsus linguae or error in transcription of the record, we find language that might well have confused the jury. The questions asked by the foreman when the jury returned dispel any doubt that confusion existed among the jurors as to the elements of the possible verdicts submitted to them. This confusion must have been magnified by the inadvertent, erroneous instruction that in order to reduce the crime to manslaughter, the defendant must prove to the jury\u2019s satisfaction that he acted in self-defense. Further, we note that although the trial judge, in another part of the charge, instructed correctly, he did not retract the erroneous instruction and substitute the correct one in its place.\nSince we are unable to determine whether the jury acted on the correct instructions or on the incorrect instructions, we hold that there was prejudicial error in the court\u2019s charge.\nWe do not deem it necessary to discuss defendant\u2019s other assignments of error since the questions there presented may not arise at another trial.\nThe decision of the Court of Appeals is reversed, and this cause is remanded to that Court with direction that it be remanded to the Superior Court of Person County for a new trial.\nReversed and remanded.", "type": "majority", "author": "BRANCH, Justice." } ], "attorneys": [ "Attorney General James H. Carson, Jr., by Assistant Attorney General George W. Boylan, for the State.", "Ramsey, Jackson, Hubbard & Galloway, by Mark Galloway, for defendant appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. LINDSEY KEESTER CARVER\nNo. 103\n(Filed 26 November 1974)\n1. Criminal Law \u00a7 88 \u2014 failure to subpoena witnesses '\u2014 cross-examination proper\nThe trial court did not err in allowing the solicitor to cross-examine defendant concerning his failure to subpoena witnesses who were on the premises when the shooting occurred or witnesses from the crowd which gathered after the shooting where such evidence tended to impeach defendant\u2019s testimony.\n2. Criminal Law \u00a7 111 \u2014 conflicting instructions on material point \u2014 new trial\n. When there are conflicting instructions upon a material point, there must be a new trial since the jury is not supposed to be able to distinguish between a correct and an incorrect charge.\n3. Homicide \u00a7 27 \u2014 reduction of crime to manslaughter \u2014 instructions erroneous\nDefendant in this first degree murder case is entitled to a new trial where the trial court\u2019s original instruction was confusing and where the court, upon a request by the jury for clarification of the possible verdicts, instructed that in order to reduce the crime to manslaughter, the defendant must prove to the jury\u2019s satisfaction that he acted in self-defense.\nOn certiorari to review decision of the Court of Appeals reported in 22 N.C. App. 674, 207 S.E. 2d 299, finding no error\u2019in the trial of defendant before McLelland, /., 22 October 1973 Session of Person Superior Court.\nDefendant was tried upon a bill of indictment charging him with the first-degree murder of Leon Clay. Through his counsel he entered a plea of not guilty.\nThe State offered evidence tending to show that on 17 September 1972 Leon Clay, the deceased, engaged in a fist fight with defendant\u2019s friend, Sam Little, in the yard of Ray Paylor\u2019s Entertainment Center. Clay left the scene and returned with a shotgun which he held on Sam Little. Thereupon, defendant obtained a pistol, which he pointed at the head of deceased, and obtained the shotgun from deceased. Defendant then took two or three steps backward and fired one shot, striking Clay in the head and fatally injuring him.\nDefendant\u2019s evidence, in brief summary, tended to show that after obtaining the shotgun, the deceased Leon Clay threatened the lives of defendant, his half brother Larry Ramsey, and Sam Little. Defendant then obtained a pistol, pointed it at deceased, and wrestled the shotgun from him. Defendant then saw the deceased in the act of taking a pistol from his clothing, and at that point shot the deceased. Defendant stated: \u201cI had no doubt at the time that I shot that he [deceased] would have shot me.\u201d Defendant also offered evidence to the effect that the deceased, Leon Clay, had a reputation for \u201cbeing a man of violence.\u201d\n. The jury returned a verdict of guilty of voluntary manslaughter, and the court imposed j udgment sentencing defendant to imprisonment for a term of not less than twelve years nor more than fifteen years.\nDefendant appealed to the North Carolina Court of. Appeals, and that court found no error in the trial below. We allowed defendant\u2019s petition for writ of certiorari to the North Carolina Court of Appeals on 24 September 1974.\nAttorney General James H. Carson, Jr., by Assistant Attorney General George W. Boylan, for the State.\nRamsey, Jackson, Hubbard & Galloway, by Mark Galloway, for defendant appellant." }, "file_name": "0179-01", "first_page_order": 199, "last_page_order": 204 }