{ "id": 8559928, "name": "STATE OF NORTH CAROLINA v. JERRY NORMAN WARD", "name_abbreviation": "State v. Ward", "decision_date": "1980-05-06", "docket_number": "No. 59", "first_page": "150", "last_page": "157", "citations": [ { "type": "official", "cite": "300 N.C. 150" } ], "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": "265 S.E. 2d 210", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "opinion_index": -1 }, { "cite": "300 N.C. 157", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559952 ], "year": 1980, "opinion_index": -1, "case_paths": [ "/nc/300/0157-01" ] }, { "cite": "246 S.E. 2d 11", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "295 N.C. 470", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564320, 8564294, 8564266, 8564369, 8564348 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/nc/295/0470-03", "/nc/295/0470-02", "/nc/295/0470-01", "/nc/295/0470-05", "/nc/295/0470-04" ] }, { "cite": "242 S.E. 2d 891", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "36 N.C. App. 126", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8551527 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/nc-app/36/0126-01" ] }, { "cite": "71 S.E. 2d 138", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1952, "opinion_index": 0 }, { "cite": "235 N.C. 752", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626889 ], "year": 1952, "opinion_index": 0, "case_paths": [ "/nc/235/0752-01" ] }, { "cite": "144 S.E. 2d 569", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1965, "opinion_index": 0 }, { "cite": "265 N.C. 524", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8576044 ], "year": 1965, "opinion_index": 0, "case_paths": [ "/nc/265/0524-01" ] }, { "cite": "125 S.E. 2d 920", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1962, "opinion_index": 0 }, { "cite": "257 N.C. 464", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568554 ], "year": 1962, "opinion_index": 0, "case_paths": [ "/nc/257/0464-01" ] }, { "cite": "65 S.E. 2d 331", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1951, "opinion_index": 0 }, { "cite": "234 N.C. 30", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8617054 ], "year": 1951, "opinion_index": 0, "case_paths": [ "/nc/234/0030-01" ] }, { "cite": "165 S.E. 2d 328", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1969, "opinion_index": 0 }, { "cite": "275 N.C. 108", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8557876 ], "year": 1969, "opinion_index": 0, "case_paths": [ "/nc/275/0108-01" ] }, { "cite": "261 S.E. 2d 789", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "794" } ], "opinion_index": 0 }, { "cite": "299 N.C. 151", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574152 ], "year": 1980, "pin_cites": [ { "page": "158" } ], "opinion_index": 0, "case_paths": [ "/nc/299/0151-01" ] }, { "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": "623" } ], "opinion_index": 0, "case_paths": [ "/nc/283/0617-01" ] }, { "cite": "88 S.E. 501", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1916, "opinion_index": 0 }, { "cite": "171 N.C. 788", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11272436 ], "year": 1916, "opinion_index": 0, "case_paths": [ "/nc/171/0788-01" ] }, { "cite": "199 S.E. 2d 409", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1973, "opinion_index": 0 }, { "cite": "284 N.C. 67", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559900 ], "year": 1973, "opinion_index": 0, "case_paths": [ "/nc/284/0067-01" ] }, { "cite": "25 S.E. 2d 751", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1943, "pin_cites": [ { "page": "753" } ], "opinion_index": 0 }, { "cite": "223 N.C. 258", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8605178 ], "year": 1943, "pin_cites": [ { "page": "261" } ], "opinion_index": 0, "case_paths": [ "/nc/223/0258-01" ] }, { "cite": "232 S.E. 2d 433", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "292 N.C. 132", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567601 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/nc/292/0132-01" ] }, { "cite": "428 U.S. 905", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6185736 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/us/428/0905-01" ] }, { "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": "138 S.E. 2d 541", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1964, "pin_cites": [ { "page": "545" } ], "opinion_index": 0 }, { "cite": "262 N.C. 663", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570996 ], "weight": 2, "year": 1964, "pin_cites": [ { "page": "669" } ], "opinion_index": 0, "case_paths": [ "/nc/262/0663-01" ] } ], "analysis": { "cardinality": 795, "char_count": 17091, "ocr_confidence": 0.807, "pagerank": { "raw": 3.6340742579543723e-07, "percentile": 0.8892786799539278 }, "sha256": "f05a2ac6dc1446581dc7d42dc36357dcb7749f42e7912fd1606b9076ad430c45", "simhash": "1:a5f4006396074771", "word_count": 3009 }, "last_updated": "2023-07-14T20:04:36.297481+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "STATE OF NORTH CAROLINA v. JERRY NORMAN WARD" ], "opinions": [ { "text": "EXUM, Justice.\nDefendant\u2019s assignments of error challenge the admissibility of certain testimony offered by a ballistics expert on behalf of the state and the sufficiency of the trial court\u2019s instructions to the jury. For errors in the jury instructions, we reverse and grant a new trial.\nThe state\u2019s evidence tended to show that on 29 March 1979, the deceased, Joe Eddy White, was at the home of his parents watching television with his mother. White\u2019s mother testified that around 9:30 p.m. she observed the lights of a vehicle pulling into the driveway and heard a horn blow. Joe Eddy went outside to investigate. A few moments later, the mother heard a shot and ran outside to see Joe Eddy walk back towards the house and then fall down on his knees. He said, \u201cMother, Jerry Ward has shot me\u201d and then collapsed. Joe Eddy died on the way to the hospital. An autopsy revealed the cause of death to be internal hemorrhage secondary to a .22 caliber gunshot wound.\nLaw enforcement officers took defendant into custody around 11:00 p.m. at the home of his sister. They then took him to the Law Enforcement Center in Whiteville. During the trip he was upset and crying and repeatedly made such statements as, \u201cI didn\u2019t mean to kill him. I just wanted to get him in the truck and take him down the road and beat the hell out of him.\u201d\nDefendant\u2019s evidence tended to show that before the fatal incident on 29 March, the deceased had been having a relationship with defendant\u2019s wife, Ida Marie. Ida Marie had left home on 24 February. Defendant next saw her sitting in a car with Joe Eddy on the evening of 4 March. After an emotional confrontation, defendant told Joe Eddy \u201cto just not let me see him no more\u201d and then left with his wife. Later that evening, defendant\u2019s wife was admitted to the mental ward of a hospital in Lumberton. On the afternoon of 15 March, while defendant\u2019s wife was still in the hospital, defendant in a telephone conversation warned Joe Eddy to stay away from his wife or risk a beating. Joe Eddy responded that he would pick the time and place for any fight, to which defendant replied, \u201cWell enough.\u201d On the evening of 29 March defendant received an anonymous telephone call from a man who told him Joe Eddy wanted to see him. Thinking that Joe .Eddy wanted to fight, defendant later drove to the Whites\u2019 residence, pulled in the driveway, and blew the horn. He remained seated in the cab of his pickup truck. Joe Eddy came out of the house with his right hand in his back pocket. Some words were exchanged, and Joe Eddy jerked his right hand out of his back pocket and pointed it at defendant. Fearing that Joe Eddy was about to shoot him, defendant dove for his .22 caliber pistol lying on the floorboard of his truck and fired the pistol out the window. An instant later he heard a rifle shot fired from the direction of the house. He then saw Joe Eddy \u201ccoming by me cussing and holding his side\u201d with his right hand placed under his left armpit. Defendant then left in the truck.\nThe pathologist who examined the body of the deceased testified that the fatal wound penetrated several inches below the left armpit on the left side, slightly to the rear of midline. The bullet\u2019s projectory was upwards. The bullet lodged beneath the sternum three to four inches higher than the point at which it entered the body. Defendant testified, however, that Joe Eddy had been facing him at all times up to and during the instant when defendant fired out the window. The bullet removed from Joe Eddy\u2019s body was too deformed for a positive determination that it was in fact fired from defendant\u2019s gun.\nDefendant\u2019s first assignment of error relates to the trial court\u2019s admission of certain testimony by state\u2019s witness Robert Cerwin, a ballistics and firearms expert, concerning State\u2019s Exhibit No. 5, the bullet removed from the deceased\u2019s body. Cerwin was allowed to testify on direct examination as follows:\n\u201cQ. Do you have an opinion satisfactory to yourself as to whether or not State\u2019s Exhibit No. 5 could have been fired from [defendant\u2019s pistol]?\nMr. HOOKS: Objection.\nCOURT: Overruled.\nA. Yes, sir. It could have been fired. This type of bullet can be discharged from this type of firearm due to the family that it is. In other words, it is a .22 caliber bullet. And in [defendant\u2019s pistol] the bullet can be chambered or discharged with a .22 caliber cartridge which holds a .22 caliber bullet.\u201d\nUpon cross-examination Mr. Cerwin stated that \u201cState\u2019s Exhibit No. 5 is too deformed for comparison. By that I mean I could not make a comparison between that and any other bullet fired from [defendant\u2019s pistol]. It could have been fired from any weapon in the same family of weapons.\u201d\nDefendant contends that the expert\u2019s answer that the fatal bullet \u201ccould have\u201d been fired from defendant\u2019s gun amounted to no more than mere speculation and therefore was inadmissible under the rule in Lockwood v. McCaskill, 262 N.C. 663, 138 S.E. 2d 541 (1964). Lockwood, however, requires only that an expert\u2019s opinion that a particular cause \u201cmight\u201d or \u201ccould\u201d have produced a particular result be based upon a reasonable probability \u201cthat the result is capable of proceeding from the particular cause as a scientific fact . . . .\u201d 262 N.C. at 669, 138 S.E. 2d at 545. (Emphasis supplied.) Considered contextually, witness Cerwin\u2019s testimony was to the effect that the fatal bullet, a .22 caliber slug, was capable of being discharged from defendant\u2019s .22 caliber pistol or from any other .22 caliber weapon. Although the witness could have been allowed to express a more positive opinion, if he had had one, as to the causal relationship between defendant\u2019s gun and the bullet removed from the deceased\u2019s body, see State v. Sparks, 285 N.C. 631, 207 S.E. 2d 712 (1974), death sentence vacated, 428 U.S. 905 (1976), there was no error in the admission of his testimony that the bullet \u201ccould have\u201d been fired from defendant\u2019s pistol. State v. Tilley, 292 N.C. 132, 232 S.E. 2d 433 (1977). That the testimony might have had little probative value goes to the question of its weight and sufficiency, not its admissibility. See generally 1 Stansbury\u2019s North Carolina Evidence \u00a7 137 n. 97 (Brandis rev. 1973 and 1979 Supplement).\nDefendant next argues that the trial court erred (a) in omitting a substantial feature of defendant\u2019s case in the recapitulation of the evidence to the jury and- (b) in failing to instruct the jury in the final mandate that if they were not satisfied beyond a reasonable doubt as to each essential element of the charge of second degree murder, then it would be their duty to return a verdict of not guilty of that charge. These contentions have merit.\nThe record reveals that portions of defendant\u2019s testimony, elicited on direct and cross-examination, described his 29 March confrontation with the deceased as follows:\n\u201cWhen I stopped my truck was about four or five feet in front of the back end of the porch. ... In just a minute Joe Eddy came out of the house. . . . He was then at the left front of my truck. I was. sitting in the truck. ... He came out of the house by the right side of my truck. He came in front of my truck and came around there and stepped out to the front of it. He did not ever come up beside my truck. . . . When he raised his hand it was pointing toward me. At that time he was about 15 or 18 feet from me and was kind of northeast from me. He was over at the left front fender of my pickup. ... I did not think that he had a pistol. ... It didn\u2019t hit my mind until he jerked his hand. ... He pointed his hand straight at me. . . .At that time I thought he had a pistol in his hand because of his actions. ... I fell to my right to get out of the way of a possible bullet and I reached for the pistol. I did not mean to point a pistol at Joe Eddy and kill him. I just shot out the window like that so I could get gone, so he wouldn\u2019t come on there to the truck. ... I pulled the pistol up in one motion and fired it out the window. ... I shot straight out my truck. I didn\u2019t shoot in the direction of Joe Eddy White. I did not. I did not shoot in the direction of Joe Eddy White because I did not want to hit nobody. I just wanted to get out of the yard and get gone. I am not testifying that I ever pointed the pistol at Joe Eddy White. I did not see Joe Eddy White at the time I fired the pistol. ... At the time I fired the gun Joe Eddy was about 15 feet from where I pointed the gun. ... I sure didn\u2019t want to kill him or anybody else. At the time he came by my truck he had his right hand under his left armpit. ... I figured he had been hit with a rifle bullet because I heard a rifle shot.\u201d (Emphasis supplied.)\nIn his recapitulation of the evidence, Judge Clark failed to mention to the jury that evidence offered by the defendant tended to show that defendant did not fire the pistol in the direction of the deceased. This was a material omission.\nGeneral Statute 15A-1232 (substantively the same as former G.S. 1-180) requires the trial judge to instruct the jury in such a way as to \u201cdeclare and explain the law arising on the evidence.\u201d Although the judge\u2019s charge need not, and indeed should not, encompass every fragment of evidence offered by the state and defendant, it is required to \u201csegregate the material facts of the case, array the facts on both sides, and apply the pertinent principles of law to each, so that the jury may decide the case according to the credibility of the witnesses and the weight of the evidence.\u201d State v. Friddle, 223 N.C. 258, 261, 25 S.E. 2d 751, 753 (1943). (Emphasis supplied.) Failure to instruct upon a substantive or \u201cmaterial\u201d feature of the evidence and the law applicable thereto will result in reversible error, even in the absence of a request for such an instruction. State v. Williams, 284 N.C. 67, 199 S.E. 2d 409 (1973); State v. Merrick, 171 N.C. 788, 88 S.E. 501 (1916). On the other hand, the judge is not required to instruct the jury as to evidentiary matters essentially \u201csubordinate,\u201d i.e., those which do not relate to the elements of the crime charged or to defendant\u2019s criminal responsibility. See State v. Hunt, 283 N.C. 617, 623, 197 S.E. 2d 513, 518 (1973) and cases cited therein.\nIn the instant case, defendant\u2019s testimony was to the effect that he fired his pistol away from Joe Eddy White, pointing the gun 15 feet from where the deceased was standing. This testimony was competent evidence which, if believed by the jury, would tend to establish either that the bullet from defendant\u2019s gun was not the one which struck and killed Joe Eddy White, or that even if defendant\u2019s gun fired the fatal bullet, the killing was not the result of an intentional assault. If the bullet fired from defendant\u2019s gun did not in fact strike the deceased, defendant would not be guilty of any homicide. If, on the other hand, defendant did fire the fatal shot, but did not do so intending to shoot at, near, or in the direction of the deceased, he would be guilty at most of involuntary manslaughter. In the first instance, defendant\u2019s evidence negates the essential element of causation. In the second, his testimony negates a finding of an intentional assault, an essential element of murder and voluntary manslaughter. See State v. Ray, 299 N.C. 151, 158, 261 S.E. 2d 789, 794 (1980). Under either view, then, defendant\u2019s evidence clearly relates to an essential feature of the intentional homicide for which he was indicted. This evidence therefore presented a material and substantial feature of his case. The trial court erred in failing to mention it anywhere in the charge. G.S. 15A-1232; see, e.g., State v. Williams, supra; State v. Mercer, 275 N.C. 108, 165 S.E. 2d 328 (1969); State v. Sherian, 234 N.C. 30, 65 S.E. 2d 331 (1951).\nThis error was compounded by a further omission in the trial court\u2019s mandate with reference to second degree murder. That portion of the judge\u2019s charge read:\n\u201cI therefore instruct you that if you find from the evidence, beyond a reasonable doubt, that on or about March 29, 1979, Jerry Norman Ward intentionally and with malice and without justification or excuse shot Joe Eddy White with a .22 caliber pistol, that being a deadly weapon, thereby proximately causing Joe Eddy White\u2019s death, it would be your duty to return a verdict of guilty of second degree murder.\nJudge Clark failed to complete this portion of the mandate with an instruction to the effect that if the jury did not find or had a reasonable doubt as to one or more of these facts, then it would be their duty to acquit the defendant of second degree murder. This omission was likewise error. State v. Overman, 257 N.C. 464, 125 S.E. 2d 920 (1962). By failing to give the converse or alternative view that acquittal should result if the jury were not satisfied beyond a reasonable doubt as to each and every stated element, the trial judge failed to provide even a general application of the law to the evidence raised by defendant\u2019s testimony.\nWe stress that our opinion today is not to be construed as imposing any new duty or burden upon the trial court beyond that traditionally required by the mandatory provisions of G.S. 15A-1232. Certainly the trial judge is not required to frame his instructions with any greater particularity than is necessary to enable the jury to understand and apply the law to the evidence bearing upon the elements of the crime charged. State v. Spratt, 265 N.C. 524, 144 S.E. 2d 569 (1965). See, e.g., State v. Williams, 235 N.C. 752, 71 S.E. 2d 138 (1952); State v. Jackson, 36 N.C. App. 126, 242 S.E. 2d 891, cert. denied, 295 N.C. 470, 246 S.E. 2d 11 (1978). In the instant case, however, the omission of any reference in the charge to defendant\u2019s statement that he did not shoot at or near the deceased, coupled with the omission in the mandate referred to above, combined to deprive defendant of the full benefit of his testimony. There must, therefore, be a\nNew trial.", "type": "majority", "author": "EXUM, Justice." } ], "attorneys": [ "Rufus L. Edmisten, Attorney General, by Thomas B. Wood, Assistant Attorney General, for the State.", "D. Jack Hooks and Ray H. Walton, Attorneys for defendant appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. JERRY NORMAN WARD\nNo. 59\n(Filed 6 May 1980)\n1. Criminal Law \u00a7 57\u2014 ballistics expert \u2014 testimony that bullet \u201ccould have\u201d been fired from defendant\u2019s pistol \u2014 reference to capability\nAn expert in ballistics and firearms was properly permitted to testify in a homicide case that the fatal bullet \u201ccould have\u201d been fired from defendant\u2019s pistol where, considered contextually, the witness was testifying in effect that the fatal bullet, a .22 caliber slug, was capable of being discharged from defendant\u2019s .22 caliber pistol or from any other .22 caliber weapon.\n2. Criminal Law \u00a7 113.2\u2014 failure to instruct on material feature of case\nWhile the trial judge is not required to instruct the jury as to evidentiary matters essentially \u201csubordinate,\u201d i.e., those which do not relate to the elements of the crime charged or to defendant\u2019s criminal responsibility, failure to instruct upon a substantive or \u201cmaterial\u201d feature of the evidence and the law applicable thereto will result in reversible error even in the absence of a request for such an instruction.\n3. Criminal Law \u00a7\u00a7 112, 113.2; Homicide \u00a7 23\u2014 failure to charge on defendant\u2019s material testimony \u2014 inadequate final mandate\nThe trial court in a second degree murder case erred in omitting any reference in the charge to defendant\u2019s testimony that he did not shoot at or near the deceased but fired his pistol away from deceased, since defendant\u2019s testimony related to a material and substantial feature of the case in that it tended to show either that he did not fire the fatal shot and was not guilty of any homicide or that, if he did fire the fatal shot, the killing was not the result of an intentional assault and he would be guilty at most of involuntary manslaughter; furthermore, such error was prejudicial to defendant when coupled with the court\u2019s further error in failing to instruct the jury in the final mandate that if the jurors were not satisfied beyond a reasonable doubt as to each essential element of the charge of second degree murder, then it would be their duty to return a verdict of not guilty of that charge.\nAPPEAL by defendant from a judgment rendered by Judge Clark at the 20 August 1979 Criminal Session of COLUMBUS Superior Court. Defendant was charged with first degree murder, convicted of murder in the second degree, and sentenced to not less than 30 years nor more than life imprisonment.\nRufus L. Edmisten, Attorney General, by Thomas B. Wood, Assistant Attorney General, for the State.\nD. Jack Hooks and Ray H. Walton, Attorneys for defendant appellant.\n. Since defendant did not receive a determinate sentence of life imprisonment, this appeal should have been to the Court of Appeals. G.S. 7A-27(a) and (b); State v. Ferrell, 300 N.C. 157, 265 S.E. 2d 210 (1980). Rather than remand the matter for determination by the Court of Appeals, we have determined to treat defendant\u2019s appeal as a petition for determination prior to decision by the Court of Appeals. We have allowed the petition in our discretion on the ground that, otherwise, \u201c[d]elay in final adjudication is likely to result . . . .\u201d G.S. 7A-31(b)(3)." }, "file_name": "0150-01", "first_page_order": 182, "last_page_order": 189 }