{ "id": 8575751, "name": "STATE OF NORTH CAROLINA v. CARL RAY BOONE", "name_abbreviation": "State v. Boone", "decision_date": "1980-04-01", "docket_number": "No. 81", "first_page": "681", "last_page": "690", "citations": [ { "type": "official", "cite": "299 N.C. 681" } ], "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": "170 S.E. 2d 461", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1969, "opinion_index": 0 }, { "cite": "275 N.C. 662", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559824 ], "year": 1969, "opinion_index": 0, "case_paths": [ "/nc/275/0662-01" ] }, { "cite": "259 S.E. 2d 870", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "298 N.C. 743", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574045 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/nc/298/0743-01" ] }, { "cite": "244 S.E. 2d 397", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "pin_cites": [ { "page": "408-409" } ], "opinion_index": 0 }, { "cite": "295 N.C. 126", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561834 ], "year": 1978, "pin_cites": [ { "page": "144" } ], "opinion_index": 0, "case_paths": [ "/nc/295/0126-01" ] }, { "cite": "43 U.S.L.W. 3392", "category": "reporters:specialty", "reporter": "U.S.L.W.", "year": 1974, "pin_cites": [ { "parenthetical": "No. 669" } ], "opinion_index": 0 }, { "cite": "207 S.E. 2d 712", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1974, "opinion_index": 0 }, { "cite": "285 N.C. 631", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567357 ], "year": 1974, "opinion_index": 0, "case_paths": [ "/nc/285/0631-01" ] }, { "cite": "220 S.E. 2d 558", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "opinion_index": 0 }, { "cite": "288 N.C. 680", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570581 ], "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", "weight": 2, "year": 1975, "opinion_index": 0 }, { "cite": "288 N.C. 632", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570479 ], "weight": 2, "year": 1975, "pin_cites": [ { "page": "649-50" } ], "opinion_index": 0, "case_paths": [ "/nc/288/0632-01" ] }, { "cite": "148 S.E. 2d 599", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1966, "opinion_index": 0 }, { "cite": "267 N.C. 513", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559766 ], "year": 1966, "opinion_index": 0, "case_paths": [ "/nc/267/0513-01" ] }, { "cite": "213 S.E. 2d 717", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "opinion_index": 0 }, { "cite": "287 N.C. 243", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561457 ], "year": 1975, "opinion_index": 0, "case_paths": [ "/nc/287/0243-01" ] } ], "analysis": { "cardinality": 761, "char_count": 19993, "ocr_confidence": 0.801, "pagerank": { "raw": 8.271934456645822e-08, "percentile": 0.47869296626946206 }, "sha256": "8b3245bc7cfb99cd91abf1c54bc50ac49865350d47d418dd4513cda8ffc9ea04", "simhash": "1:d703fc22a80494f9", "word_count": 3347 }, "last_updated": "2023-07-14T21:53:45.777487+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "STATE OF NORTH CAROLINA v. CARL RAY BOONE" ], "opinions": [ { "text": "EXUM, Justice.\nDefendant assigns as error: (1) the admission of certain testimony; (2) denial of his motion for dismissal for insufficiency of the evidence; (3) certain aspects of the trial court\u2019s jury instructions; and (4) denial of his motion to set aside the verdict as being contrary to the greater weight of the evidence. We find no merit in any of these assignments and no prejudicial error in the trial.\nThe state\u2019s evidence tended to show as follows:\nOn 4 July 1978 the deceased, Ervin Cross, came to the home of Virginia Cross in the Boonetown Community in Gates County. He had earlier repaired a window in the Virginia Cross home. He was there on the occasion in question to determine if the window was working properly. Defendant entered the house through the back door. He said to Virginia Cross, who was also present, \u201cMove, [I am] going to shoot.\u201d Defendant pushed Virginia Cross against the refrigerator. She then observed defendant pull a pistol out of his pants\u2019 pocket. Virginia Cross ran out on the porch and \u201cfroze.\u201d She heard a pistol go off in the house. She then observed defendant and the deceased running across a field heading toward Vandell Cross\u2019 house. Defendant was running behind Ervin Cross. As he ran defendant shot the pistol three times. Both Ervin Cross and the defendant entered Vandell Cross\u2019 back door.\nEssie Brown was present in Vandell Cross\u2019 residence when the deceased and defendant entered. Being scared, Essie Brown locked herself in the bathroom. She heard shots \u201cthat sounded like they were coming from the backyard of Vandell\u2019s house.\u201d She stayed in the bathroom for two or three minutes. She then left the bathroom and ran out of the house through the living room. When she ran by the kitchen door she saw Ervin Cross lying on the floor.\nVandell Cross, who was in the area at the time, observed the deceased and defendant run toward his house. When he arrived at his house he went in the kitchen. He observed the deceased lying on the floor. Defendant \u201cwas going back the same direction that he came, down across my yard, and Virginia\u2019s yard, on back around by the hog pasture.\u201d The deceased, Vandell Cross testified, was \u201claying there dead with a butcher knife in his hand. I never saw Carl Ray [defendant] with anything in his hand. I was getting out of my truck and heard one shot that sounded like it came from my back door. I didn\u2019t see anybody else but Carl Ray and I didn\u2019t say anything to him nor did he speak to me.\u201d Vandell Cross testified that the knife he observed in the deceased\u2019s hand had been placed on the kitchen table \u201cwhere I left it . . . that morning . . . .\u201d\nThe coroner testified that the deceased died from a bullet wound to his chest which pierced his heart, esophagus, aorta, and left lung. The bullet itself was identified by a firearms expert as being a .32 caliber bullet. Efforts by investigators to recover the weapon were unsuccessful.\nDefendant offered no evidence.\nThe trial judge instructed the jury that they might return verdicts of guilty of second degree murder, manslaughter, not guilty, and not guilty by reason of self-defense. The jury returned a verdict of guilty of second degree murder. Defendant was sentenced to life imprisonment.\nDefendant first assigns error to the admission of certain testimony.\nDuring the examination of state\u2019s witness Virginia Cross, she gave the following testimony:\n\u201cI also had occasion to see Carl Ray Boone at my house on the morning of July 4, 1978. I have known Carl Ray ever since I have been living here in Boonetown.\nQ. Does Carl Ray live in that community, or not?\nA. Not in the community we do, off from where we do.\nQ. Had he been living there around July 4th, or somewhere else?\nA. I think he was in New York or Philadelphia, or some place.\nObjection to what she \u2018thinks.\u2019\nOverruled.\u201d\nAssuming arguendo that Virginia Cross should not have been permitted to testify regarding her beliefs or thoughts as to defendant\u2019s residence, nevertheless we find no prejudicial error in this incident. Defendant\u2019s proper response to the witness\u2019 objectionable answer was a motion to strike. Failure to make such a motion precludes defendant from relying on the objectionable answer on appeal. State v. Grace, 287 N.C. 243, 213 S.E. 2d 717 (1975); State v. Battle, 267 N.C. 513, 148 S.E. 2d 599 (1966). Furthermore we are satisfied that this answer, even if improperly admitted, did not prejudice defendant. Defendant argues that the evidence put him in the position of an \u201coutsider\u201d and thereby prejudiced him in the eyes of the jury. This argument falls, however, inasmuch as Virginia Cross also testified that she had \u201cknown Carl Ray ever since I have been living here in Boonetown.\u201d She consistently referred to him in her testimony as \u201cCarl Ray\u201d indicating that defendant was familiar to her. Both Essie Brown and Vandell Cross also referred to the defendant as \u201cCarl Ray\u201d indicating that he was likewise familiar to them. G.S. 15A-1443(a) provides, \u201cA defendant is prejudiced by errors relating to rights arising other than under the Constitution of the United States when there is a reasonable possibility that, had the error in question not been committed, a different result would have been reached at the trial out of which the appeal arises.\u201d We are satisfied that there is no reasonable possibility that a different result would have been reached at this trial had the complained of testimony been excluded.\nAnother incident complained of by the defendant also occurred during the testimony of Virginia Cross:\n\u201cQ. Can you describe what you observed Carl Ray doing as he was running behind Ervin?\nObjection.\nOverruled.\nA. He was shooting that pistol, he shot that pistol three times running across the path.\nQ. Carl Ray did?\nA. Yes, three times.\nQ. Can you describe how Carl Ray was holding the pistol?\nA. Not exactly, but he must have been shooting like this (indicating with hand), because he was running, and Ervin was running.\nObjection And Motion To Strike.\nMotion To Strike Denied. Objection Overruled.\nQ. Could you see the pistol at that time?\nA. No, I heard the pistol.\u201d\nAgain, defendant complains of Virginia Cross\u2019 testimony that \u201che must have been shooting like this (indicating with hand)\u201d inasmuch as this seems to be an impermissible conclusion on the part of the witness. Suffice it to say that the crux of this testimony was that defendant was running behind the deceased shooting a pistol. The manner in which he was shooting is of little moment. Assuming the testimony was incompetent and should have been stricken, we are satisfied defendant was not prejudiced by it. G.S. 15A-1443(a).\nInvestigating SBI Agent Eugene Bryant testified, without objection, that his investigation of the scene of the shooting revealed a bullet hole in the top door of one of the kitchen cabinets, several broken dishes, a projectile, and fragments of lead lying inside the cabinet. During the redirect examination of Vandell Cross the following occurred:\n\u201cQ. Now this hole that you described in the cabinet, had that been there, had that hole been there before this day?\nA. No-\nObjection.\nA. It was shot in there that morning.\nOverruled.\nQ. Would you repeat that?\nA. I said that was shot in there that morning.\nObjection.\nOverruled.\u201d\nDefendant assigns as error the admission of this testimony. It was, of course, proper for Vandell Cross to testify that the hole had not been in the cabinet before the day of the shooting. Assuming the statements as to when it was \u201cshot in there\u201d were inadmissible since the witness did not actually see the shooting, defendant\u2019s assignment of error insofar as it is based on this incident must nevertheless fail. Defendant did not move to strike the testimony. Again, we are satisfied that there is no reasonable possibility that had this testimony been excluded a different result would have been reached. The hole not having been in the cabinet before the day in question and being discovered there immediately after the incident, the conclusion is inescapable that the hole was \u201cshot in there\u201d during the incident under investigation.\nDefendant next assigns as error the denial of his motion for dismissal at the close of the evidence. Defendant argues that the motion should have been allowed because the state failed to prove beyond a reasonable doubt that defendant did not act in self-defense. The state must prove that a defendant did not act in self-defense only when there is some evidence of self-defense in the case. State v. Hankerson, 288 N.C. 632, 220 S.E. 2d 575 (1975). We said in Hankerson, 288 N.C. at 649-50, 220 S.E. 2d at 588:\n\u201cThe Mullaney ruling does not, however, preclude all use of our traditional presumptions of malice and unlawfulness. It precludes only utilizing them in such a way as to relieve the state of the burden of proof on these elements when the issue of their existence is raised by the evidence. The presumptions themselves, standing alone, are valid and, we believe, constitutional. State v. Williams, 288 N.C. 680, 220 S.E. 2d 558 (1975); State v. Sparks, 285 N.C. 631, 207 S.E. 2d 712 (1974), pet. for cert. filed, 43 U.S.L.W. 3392 (U.S. Nov. 29, 1974) (No. 669). Neither, by reason of Mullaney, is it unconstitutional to make the presumptions mandatory in the absence of contrary evidence nor to permit the logical inferences arising from facts proved (killing by intentional use of deadly weapon), State v. Williams, supra, to remain and be weighed against contrary evidence if it is produced. The effect of making the presumptions mandatory in the absence of any contrary evidence is simply to impose upon the defendant a burden to go forward with or produce some evidence of all elements of self-defense or heat of passion on sudden provocation, or rely on such evidence as may be present in the State\u2019s case. The mandatory presumption is simply a way of stating our legal rule that in the absence of evidence of mitigating or justifying factors all killings accomplished through the intentional use of a deadly weapon are deemed to be malicious and unlawful.\u201d\nIn this case there is no evidence of a killing in self-defense. The evidence is that defendant, unprovoked, first accosted the deceased with a deadly weapon in the home of Virginia Cross. He then, while continuing to fire the weapon, chased the deceased to the home of Vandell Cross. While inside the home of Vandell Cross the weapon was heard to fire. Shortly thereafter the deceased was found dead of a bullet wound on the floor of Vandell Cross\u2019 kitchen with a butcher knife in his hand. There is no evidence of precisely what happened in the kitchen. Defendant, however, if he desires to rely on the defense of self-defense has the burden to go forward with or produce some evidence of it in the absence of its production by the state. State v. Hankerson, supra. This he failed to do. There was, consequently, no burden on the state to prove the nonexistence of self-defense in this case. This assignment of error is overruled.\nDefendant next assigns as error the following instruction of the trial judge:\n\u201cDuring the course of my instructions to you I may use the term \u2018involuntary manslaughter.\u2019 I instruct you now that if I use the term \u2018involuntary manslaughter\u2019 it has the same meaning as manslaughter, and for the purposes of this trial the two interchangeable.\u201d\nObviously by this instruction the trial court was guarding against a possible later lapsus linguae. The trial court never submitted involuntary manslaughter as an alternative verdict. Neither did he commit the slip of the tongue which he attempted to guard against by the introductory instruction complained of. Defendant does not argue that involuntary manslaughter should have been submitted as an alternative verdict. He argues, rather, that the instruction in question created \u201cconfusion as to the lesser degrees of homicide\u201d and prejudiced him \u201cby virtualy removing manslaughter from the list of understandable verdicts which the jury might return.\u201d We find no merit in this argument. The instruction is clearly precautionary and designed to prevent confusion in the jury\u2019s mind should the trial judge inadvertently use the term \u201cinvoluntary manslaughter\u201d in his further instructions. This assignment of error is overruled.\nDefendant assigns error to the following instruction:\n\u201cIf the State proved by the evidence beyond a reasonable doubt that the defendant, while acting in self-defense, used excessive force, or was the aggressor in bringing on the dispute with Ervin Cross, and shot Ervin Cross with a .32 caliber firearm, thereby proximately causing the death of Ervin Cross, the defendant may not avail himself of the claim of self-defense and be lawfully justified or excused of the homicide, and it would be your duty to return a verdict of guilty of manslaughter.\u201d\nDefendant argues that by using the words \u201cor was the aggressor in bringing on the dispute\u201d the trial judge inadvertently expressed an opinion in light of the fact that there was no evidence of any \u201cdispute\u201d between defendant and his victim. Defendant\u2019s argument points up the real error of the instruction, but it is error in favor of the defendant. The instruction is designed to permit the jury to find defendant guilty of manslaughter on the theory that he shot the deceased in the exercise of an imperfect right of self-defense. The theory presented by this instruction is that although defendant was the aggressor in the matter, at the time he shot defendant he did so in order to save himself from death or great bodily harm. See State v. Potter, 295 N.C. 126, 144, 244 S.E. 2d 397, 408-409 (1978). There being, however, no evidence of a dispute which gave rise to the shooting and no evidence of self-defense, defendant was not entitled to an instruction giving him the benefit of the doctrine of self-defense, perfect or imperfect. When a defendant in a homicide case is not entitled to an instruction on the lesser offense of voluntary manslaughter because there is no evidence supporting it, any error in such an instruction is not prejudicial as a matter of law. State v. Wetmore, 298 N.C. 743, 259 S.E. 2d 870 (1979). This assignment is overruled.\nDefendant next assigns as error the following instruction:\n\u201cNow I will further attempt to explain those definitions to you, but before doing so I will, in the course of my instructions, refer to the term \u2018self-defense,\u2019 which I will define for you later.\nI will also be referring to the term \u2018without lawful justification or excuse.\u2019 When I use the phrase, \u2018without lawful justification or excuse,\u2019 in this trial, I am referring to the term \u2018self-defense.\u2019 \u201d\nDefendant argues that the charge was incorrect in that the trial judge intimated \u201cthat the right of self-defense is an act done \u2018without lawful justification or excuse\u2019 rather than an act done \u2018with lawful justification or excuse.\u2019 \u201d Inasmuch as defendant was not entitled to an instruction on self-defense, this statement of the trial judge could not have prejudiced him. State v. Freeman, 275 N.C. 662, 170 S.E. 2d 461 (1969). It is, moreover, clear to us that the trial judge intended to convey to the jury the notion that \u201cjustification or excuse\u201d referred to the doctrine of \u201cself-defense.\u201d He was not attempting to define at this point in his instructions the doctrine. He did correctly define it at other places in his instructions. While it would have been preferable for the judge to have told the jury that the phrase \u201clawful justification or excuse\u201d referred to the doctrine of self-defense, we don\u2019t believe the jury was misled by the instruction as given. This assignment of error is overruled.\nDefendant next assigns as error the failure of the trial court to set aside the verdict as being contrary to the weight of the evidence \u201csince the State relied solely upon circumstantial evidence of a conjectural nature.\u201d Suffice it to say that we find the circumstantial evidence utilized by the state in this case rather overwhelming against defendant. There was no error in the trial judge\u2019s failure to set aside the verdict as being contrary to the weight of the evidence.\nIn defendant\u2019s trial we find\nNo error.", "type": "majority", "author": "EXUM, Justice." } ], "attorneys": [ "Rufus L. Edmisten, Attorney General, by W. A. Raney, Jr., Special Deputy Attorney General, for the state.", "Philip P. Godwin, Attorney for defendant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. CARL RAY BOONE\nNo. 81\n(Filed 1 April 1980)\n1. Homicide \u00a7 15; Criminal Law \u00a7 162\u2014 what witness believed or thought \u2014 no motion to strike\u2014 defendant not prejudiced\nDefendant was not prejudiced by a witness\u2019s testimony regarding her beliefs or thoughts as to defendant\u2019s residence, since defendant made no motion to strike, and since a different result probably would not have been reached at trial had the complained of testimony been excluded.\n2. Homicide \u00a7 15\u2014 manner of shooting gun \u2014 admissibility of evidence\nDefendant in a second degree murder prosecution was not prejudiced by a witness\u2019s testimony concerning the manner in which defendant was shooting a gun, since the crux of the testimony was that defendant was running behind the deceased shooting a pistol, and the manner in which he was shooting it was of little moment.\n3. Homicide \u00a7 15; Criminal Law \u00a7 162\u2014 evidence of builet hole \u2014 no motion to strike \u2014 defendant not prejudiced\nDefendant was not prejudiced by testimony that a bullet hole in a cabinet at the crime scene \u201cwas shot in there that morning,\u201d meaning at the time of the incident in question, since defendant did not move to strike the testimony, and there was no reasonable possibility that, had the testimony been excluded, a different result would have been reached.\n4. Homicide \u00a7 14.6\u2014 self-defense \u2014 burden of proof not on State\nThere was no burden on the State in a second degree murder prosecution to prove the non-existence of self-defense where the evidence tended to show that defendant, unprovoked, first accosted deceased with a deadly weapon in a third person\u2019s home; then, while continuing to fire the weapon, he chased deceased to the home of another person; witnesses heard the firing of the weapon while defendant and deceased were in the second house; shortly thereafter deceased was found on the kitchen floor, dead of a bullet wound and holding a butcher knife in his hand; and there was no evidence of precisely what happened in the kitchen.\n5. Homicide \u00a7 27\u2014 involuntary manslaughter and manslaughter interchangeable terms \u2014 instruction not prejudicial\nDefendant in a second degree murder case was not prejudiced by the trial judge\u2019s instruction that the terms \u201cinvoluntary manslaughter\u201d and \u201cmanslaughter\u201d had the same meaning for purposes of the trial and were interchangeable, since the instruction was clearly precautionary and designed to prevent confusion in the minds of the jurors should the trial judge inadvertently use the term \u201cinvoluntary manslaughter\u201d in his further instructions.\n6. Homicide \u00a7 28\u2014 self-defense \u2014 defendant not entitled to instruction \u2014 instruction not prejudicial\nThe trial court\u2019s instruction designed to permit the jury to find defendant guilty of manslaughter on the theory that he shot deceased in the exercise of an imperfect right of self-defense was not prejudicial to defendant, since he was not entitled to an instruction on self-defense, perfect or imperfect.\n7. Homicide \u00a7 28\u2014 self-defense \u2014 instruction not misleading\nThe jury was not misled by the trial judge's instruction that he was referring to self-defense when he used the phrase \u201cwithout lawful justification or excuse,\u201d since the judge intended to convey to the jury the notion that \u201cjustification or excuse\u201d referred to the doctrine of \u201cself-defense,\u201d and the judge properly defined self-defense elsewhere in his charge.\nBEFORE Judge Small at the 27 November 1978 Session of GATES Superior Court defendant was convicted by a jury of murder in the second degree. He was sentenced to life imprisonment. He appeals pursuant to G.S. 7A-27(a). This case was argued as No. 25 at the Fall Term 1979.\nRufus L. Edmisten, Attorney General, by W. A. Raney, Jr., Special Deputy Attorney General, for the state.\nPhilip P. Godwin, Attorney for defendant." }, "file_name": "0681-01", "first_page_order": 705, "last_page_order": 714 }