{ "id": 8567764, "name": "STATE OF NORTH CAROLINA v. MICHAEL ALLEN LESTER", "name_abbreviation": "State v. Lester", "decision_date": "1976-01-29", "docket_number": "No. 57", "first_page": "239", "last_page": "245", "citations": [ { "type": "official", "cite": "289 N.C. 239" } ], "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": "421 U.S. 684", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 541415 ], "opinion_index": -1, "case_paths": [ "/us/421/0684-01" ] }, { "cite": "220 S.E. 2d 600", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "opinion_index": 0 }, { "cite": "288 N.C. 553", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570287 ], "year": 1975, "opinion_index": 0, "case_paths": [ "/nc/288/0553-01" ] }, { "cite": "185 S.E. 2d 874", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "280 N.C. 366", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572031 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/nc/280/0366-01" ] }, { "cite": "405 U.S. 473", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11722782 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/us/405/0473-01" ] }, { "cite": "407 U.S. 25", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9136521 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/us/407/0025-01" ] }, { "cite": "185 S.E. 2d 174", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "opinion_index": 0 }, { "cite": "279 N.C. 663", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571959 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/nc/279/0663-01" ] }, { "cite": "185 S.E. 2d 698", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "pin_cites": [ { "page": "701" } ], "opinion_index": 0 }, { "cite": "280 N.C. 281", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571127 ], "year": 1972, "pin_cites": [ { "page": "286" } ], "opinion_index": 0, "case_paths": [ "/nc/280/0281-01" ] }, { "cite": "197 S.E. 2d 513", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1973, "pin_cites": [ { "page": "518" } ], "opinion_index": 0 }, { "cite": "283 N.C. 617", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559688 ], "year": 1973, "pin_cites": [ { "page": "624" } ], "opinion_index": 0, "case_paths": [ "/nc/283/0617-01" ] }, { "cite": "196 S.E. 2d 697", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1973, "opinion_index": 0 }, { "cite": "283 N.C. 520", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559299 ], "year": 1973, "opinion_index": 0, "case_paths": [ "/nc/283/0520-01" ] }, { "cite": "187 S.E. 2d 93", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "pin_cites": [ { "page": "97" } ], "opinion_index": 0 }, { "cite": "280 N.C. 665", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573255 ], "year": 1972, "pin_cites": [ { "page": "672" } ], "opinion_index": 0, "case_paths": [ "/nc/280/0665-01" ] }, { "cite": "181 S.E. 2d 423", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "opinion_index": 0 }, { "cite": "279 N.C. 58", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565626 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/nc/279/0058-01" ] }, { "cite": "85 S.E. 2d 322", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1955, "pin_cites": [ { "page": "324" } ], "opinion_index": 0 }, { "cite": "241 N.C. 356", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8610424 ], "year": 1955, "pin_cites": [ { "page": "358" } ], "opinion_index": 0, "case_paths": [ "/nc/241/0356-01" ] }, { "cite": "220 S.E. 2d 558", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1975, "opinion_index": 0 }, { "cite": "288 N.C. 680", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570581 ], "weight": 2, "year": 1975, "opinion_index": 0, "case_paths": [ "/nc/288/0680-01" ] }, { "cite": "220 S.E. 2d 575", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "opinion_index": 0 }, { "cite": "288 N.C. 632", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570479 ], "year": 1975, "opinion_index": 0, "case_paths": [ "/nc/288/0632-01" ] }, { "cite": "421 U.S. 684", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 541415 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/us/421/0684-01" ] } ], "analysis": { "cardinality": 695, "char_count": 15337, "ocr_confidence": 0.65, "pagerank": { "raw": 1.8906086813640258e-07, "percentile": 0.7289467455438522 }, "sha256": "3bf9559c9e9720c06cfbbdf7dd134c7c5bf9312790e55aff7502ed7eef1780f1", "simhash": "1:a2ce602a34249df6", "word_count": 2528 }, "last_updated": "2023-07-14T21:21:01.191113+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "STATE OF NORTH CAROLINA v. MICHAEL ALLEN LESTER" ], "opinions": [ { "text": "EXUM, Justice.\nDefendant assigns as error the denial of his motion for judgment as of nonsuit. However his argument on this point is limited to the statement, \u201cThis is a formal assignment of error and is brought forward to preserve the record.\u201d This assignment is abandoned. Rule 28, Rules of Practice in the Supreme Court of North Carolina. Suffice it to say that there was plenary evidence that defendant murdered Robert Waller.\nWe deem it unnecessary to set out the facts in detail. In brief, evidence for the State tended to show: Defendant picked up two hitchhikers, Kent Wells and Robert' Waller, on his way to Greensboro from Danville, Virginia. Wells and Waller were early for a concert at the Greensboro Coliseum so they rode around with defendant, sharing his marijuana cigarettes, and trying to find defendant\u2019s \u201cgirl friend\u201d Linda. In the course of the episode at the end of a dirt road defendant held up Wells and Waller with a gun and knife, demanding money and submission to homosexual acts. A fight ensued. Waller was stabbed and shot and died as a result of these wounds. Wells escaped. Evidence for defendant tended to show: At the scene of the incident Wells grabbed a bag of defendant\u2019s marijuana which precipitated heated discussion and a general fist fight. Waller pulled out a knife, threatened defendant with death, and demanded his money. Defendant stabbed Waller with his own knife and shot him solely for his own protection. The evidence for the defendant tended to show self-defense. Synthesizing the two accounts the jury could also have found that defendant, although not acting lawfully, nevertheless killed in the heat of passion on sudden provocation or used excessive force in an otherwise proper self-defense.\nDefendant assigns as error the charge of the court relative to the presumptions of malice and unlawfulness and the burden of proof as to heat of passion on sudden provocation and burden of proof on self-defense contending that it violates Fourteenth Amendment Due Process as interpreted in Mullaney v. Wilbur, 421 U.S. 684 (1975). In his charge the trial judge placed upon the State the burden of proving beyond a reasonable doubt that defendant \u201cintentionally and without justification or excuse [i.e., unlawfully] and with malice stabbed and shot Robert Waller with a deadly weapon.\u201d However the trial judge also instructed that \u201c[i]f the State proves beyond a reasonable doubt that the defendant intentionally killed Robert Waller with a deadly weapon or intentionally inflicted a wound upon Robert Waller with a deadly weapon that proximately caused his death, the law raises two presumptions: First, that the killing was unlawful; and second, that it was done with malice.\u201d The court also charged that \u201c[i]n order to reduce the crime from second degree murder to manslaughter, the defendant must prove not beyond a reasonable doubt but simply to your satisfaction that there was no malice on his part. And in order to excuse his act altogether on the ground of self-defense, the defendant must prove not beyond a reasonable doubt but simply to your satisfaction that he acted in self-defense.\u201d The constitutionality of this type of charge has been considered at length in State v. Hankerson, 288 N.C. 632, 220 S.E. 2d 575 (1975) and State v. Williams, 288 N.C. 680, 220 S.E. 2d 558 (1975). In these cases we held that the presumptions of unlawfulness and malice arising from an intentional assault with a deadly weapon proximately resulting in death are constitutional. In State v. Hanker-son, supra, we held that although the charge in its entirety unconstitutionally relieved the State of proving malice, i.e., absence of heat of passion, and unlawfulness beyond a reasonable doubt when those issues were raised by the evidence, the decision in Mullaney v. Wilbur, supra, was not to be applied retroactively to trials conducted before the date of that decision, June 9, 1975. In this case defendant was tried during the second week of the March 31, 1975 Criminal Session of Guilford County Superior Court. Judgment was entered April 11, 1975. This assignment of error is overruled.\nDefendant contends that the court erred in instructing that second degree murder differs from first degree murder, inter alia, in that a specific intent to kill is not an element of second degree murder. \u201cA specific intent to kill ... is not an element of second degree murder or manslaughter.\u201d State v. Gordon, 241 N.C. 356, 358, 85 S.E. 2d 322, 324 (1955). Compare State v. Williams, 288 N.C. 680, 220 S.E. 2d 558 (1975) with State v. Winford, 279 N.C. 58, 181 S.E. 2d 423 (1971). This contention is consequently without merit.\nDefendant next argues that the court erred in admitting evidence of flight and in failing to instruct the jury, without request, on the weight to be accorded this evidence. The defendant was arrested at his home some days after the crime with his car fully loaded with clothing and cooking utensils. The car was impounded. A witness for the State was allowed to testify to numerous articles found in the back seat and trunk of the automobile and photographs were admitted which illustrated his testimony. This testimony was clearly admissible and competent to be considered by the jury in passing upon defendant\u2019s guilt. State v. Self, 280 N.C. 665, 672, 187 S.E. 2d 93, 97 (1972); accord, State v. Lampkins, 283 N.C. 520, 196 S.E. 2d 697 (1973); 2 Stansbury\u2019s North Carolina Evidence \u00a7 178 (Brandis Rev. 1973).\nThat the testimony was admissible does not require the judge, without a request therefor, to instruct the jury as to the weight to be given this evidence. In the absence of a special request the trial judge is not required to instruct the jury on subordinate features of a case. \u201c [I] nstructions as to the significance of evidence which do not relate to the elements of the crime itself or defendant\u2019s criminal responsibility therefor have been considered subordinate features of the case.\u201d State v. Hunt, 283 N.C. 617, 624, 197 S.E. 2d 513, 518 (1973). Flight is not an element of the State\u2019s case nor is its absence a defense. It is merely a circumstance to be considered by the jury in determining a general mens rea in a criminal case. State v. Lampkins, supra.\nSeveral photographs were admitted into evidence of the crime scene although the witness who identified the photographs had been at the scene at night and the photographs had been taken during the daytime. Defendant contends this was error. This contention was squarely rejected in State v. Johnson, 280 N.C. 281, 286, 185 S.E. 2d 698, 701 (1972) where we said:\nThe admissibility of the photographs for the limited purpose did not depend on the degree or the source of the illumination at the time they were made. The photographs were admissible for the purpose of illustrating the testimony to the end that the court and jury might better evaluate it.\nWe, likewise, reject it here.\nDefendant raises the question whether the trial judge erred in allowing cross-examination of defendant as to prior criminal charges against him. If this had been done it would, of course, have been error. We held in State v. Williams, 279 N.C. 663, 185 S.E. 2d 174 (1971) that it is improper to cross-examine a witness as to indictments, warrants or arrests which may have been made against him. There are several reasons why Williams is inapplicable here. First, the District Attorney repeatedly asked defendant what he had been convicted of, not what he had been charged with. It was defendant who unresponsively volunteered information as to charges. Second, defendant\u2019s motion to strike all this testimony was allowed and the judge instructed the jury to disregard all of it. The general rule is that if \u201cevidence erroneously admitted is later excluded or withdrawn and the jury instructed to disregard it, ordinarily the error in admitting it will be regarded as harmless.\u201d 1 Stansbury\u2019s North Carolina Evidence \u00a7 28 (Brandis Rev. 1973). Third, it appears from his testimony that in fact defendant was convicted of the crime about which the District Attorney inquired \u2014 an assault and battery tried April 4, 1972, in Corporation Court in Danville, Virginia, but that in that case he noted an appeal and was not represented by an attorney. From the record, the most likely reason the trial judge struck the testimony and instructed the jury to disregard it was not that he considered it merely a charge but that he was afraid it would be a violation of due process to impeach defendant by proof of prior convictions which were void because defendant was not represented by counsel. Compare Argersinger v. Hamlin, 407 U.S. 25 (1972) with Loper v. Beto, 405 U.S. 473 (1972).\nDefendant next contends that the court erred in allowing cross-examination of defendant concerning the circumstances of his undesirable discharge from military service. It would serve no useful purpose to consider each question and objection. Suffice it to say that no error was committed. It is settled in this State than an accused person who testifies as a witness may be cross-examined regarding prior acts of misconduct. State v. Gainey, 280 N.C. 366, 185 S.E. 2d 874 (1972).\nDefendant complains that certain questions on cross-examination violated his privilege against self-incrimination. At one point defendant was asked if he had ever told a law enforcement officer that he had been the victim of an attempted robbery by Wells and Waller. After objection and a bench conference the question was withdrawn. At another point he was required to answer the question, \u201cWhen, if ever, Mr. Lester, did you turn yourself in to the police?\u201d Defendant had already testified that he had \u201creturned from Lexington to Greensboro because I did not want to run.\u201d It was entirely proper thereafter for the State to show that he had not voluntarily turned himself in. A testifying defendant is subject to impeachment by cross-examination, generally to the same extent as any other witness. 1 Stansbury\u2019s North Carolina Evidence \u00a7\u00a7 39, 56 (Brandis Rev. 1973). There was already abundant evidence in the record of the fact and circumstances of defendant\u2019s arrest. Assignments of error to which this argument is directed are overruled.\nDefendant argues that the trial court erred in allowing testimony for corroborative purposes which was not in fact corroborative. The witness Wells testified without objection that defendant had said he had \u201cgood connections\u201d in Richmond. An objection was then sustained to the question, \u201cWhat, if anything, did you take that to mean?\u201d The witness Knight testified for the purpose of corroborating Wells\u2019 testimony that Wells had hold him (Knight) that defendant said he had \u201csome type of connections in Richmond.\u201d An objection (not a motion to strike) was lodged to this answer. The overruling of the objection is assigned as error. We are of the opinion that the testimony did corroborate the earlier testimony of Wells which had been admitted without objection. There is no merit to this argument. See State v. Patterson, 288 N.C. 553, 220 S.E. 2d 600 (1975).\nWe have carefully examined all defendant\u2019s assignments of error and find them to be without merit.\nIn the trial we find\nNo error.", "type": "majority", "author": "EXUM, Justice." } ], "attorneys": [ "Rufus L. Edmisten, Attorney General, by Roy A. Giles, Jr., Assistant Attorney General, for the State.", "Wallace C. Harrelson, Public Defender, Eighteenth Judicial District, for defendant appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. MICHAEL ALLEN LESTER\nNo. 57\n(Filed 29 January 1976)\n1. Homicide \u00a7 21\u2014 killing of hitchhiker \u2014 sufficiency of evidence\nEvidence was sufficient to be submitted to the jury in a murder prosecution where it tended to show that' defendant picked up two hitchhikers, he subsequently held them up with a gun and knife, demanded money and submission to homosexual acts, a fight ensued, and one of the hitchhikers was stabbed and shot and died as a result of these wounds.\n2. Homicide \u00a7 14\u2014 unlawfulness and malice \u2014 constitutionality of presumptions\nThe presumptions of unlawfulness and malice arising from an intentional assault with a deadly weapon proximately resulting in death are constitutional.\n3. Homicide \u00a7 24 \u2014 heat of passion on sudden provocation \u2014 self-defense \u2014 burden of proof \u2014 jury instructions\nTrial court\u2019s instructions which placed upon defendant the burden of proving that there was no malice on his part in order to reduce the crime from second degree murder to manslaughter and the burden of proving self-defense in order to excuse his act altogether were not invalidated by Mullaney v. Wilbur, 421 U.S. 684, since that decision applied only to trials conducted on or after 9 June 1975, and defendant was tried in March, 1975.\n4. Homicide \u00a7 26 \u2014 second degree murder \u2014 intent to kill \u2014 jury instructions\nThe trial court did not err in instructing that second degree murder differs from first degree murder, inter alia, in that a specific intent to kill is not an element of second degree murder.\n5. Criminal Law \u00a7 46 \u2014 flight of defendant \u2014 admissibility of evidence\nThe trial court in a murder prosecution did not err in admitting evidence of flight consisting of testimony that defendant was arrested at his home some days after the crime with his car fully loaded with clothing and cooking utensils, nor did the court err in failing to instruct the jury, without request, on the weight to be accorded this evidence.\n6. Criminal Law \u00a7 43 \u2014 photographs of crime scene \u2014 admissibility\nThe trial court did not err in admitting into evidence several photographs of the crime scene although the witness who identified the photographs had been at the scene at night and the photographs had been taken during the daytime.\n7. Criminal Law \u00a7\u00a7 34, 169 \u2014 defendant\u2019s guilt of other offense \u2014 evidence not prejudicial\nDefendant was not prejudiced by the district attorney\u2019s cross-examination of him concerning prior convictions where defendant unresponsively volunteered information as to charges against him, and the trial court allowed defendant\u2019s motion to strike all the testimony and instructed the jury to disregard it.\n8. Criminal Law \u00a7 86 \u2014 defendant\u2019s undesirable military discharge \u2014 admissibility\nThe trial court did not err in allowing cross-examination of defendant concerning the circumstances of his undesirable discharge from military service.\n9. Criminal Law \u00a7 86 \u2014 impeachment of defendant\nThe trial court did not err in allowing the State to show for purposes of impeachment that defendant did not voluntarily turn himself in to police officers where defendant had already testified that he \u201cdid not want to run\u201d and where there was already abundant evidence of the circumstances of defendant\u2019s arrest.\nAppeal as of right by defendant pursuant to General Statute 7A-27 (a).\nBy an indictment- drawn under General Statute 15-144 defendant was charged with the murder on December 29, 1974, of Robert Abram Waller III. On his plea of not guilty he was tried by Baley, S.J., during the second week of the March 31, 1975 Session of Guilford Superior Court. Possible verdicts of murder in the first degree on the theories of felony murder and of a premeditated and deliberate murder, murder in the second degree, manslaughter and not guilty were submitted to the jury. The jury returned a verdict of guilty of second degree murder. Defendant was sentenced to life imprisonment.\nRufus L. Edmisten, Attorney General, by Roy A. Giles, Jr., Assistant Attorney General, for the State.\nWallace C. Harrelson, Public Defender, Eighteenth Judicial District, for defendant appellant." }, "file_name": "0239-01", "first_page_order": 259, "last_page_order": 265 }