{ "id": 8571326, "name": "STATE OF NORTH CAROLINA v. RICKY DALE BROCK", "name_abbreviation": "State v. Brock", "decision_date": "1982-05-04", "docket_number": "No. 47A81", "first_page": "532", "last_page": "544", "citations": [ { "type": "official", "cite": "305 N.C. 532" } ], "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": "442 U.S. 510", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1531962 ], "weight": 3, "year": 1979, "opinion_index": 0, "case_paths": [ "/us/442/0510-01" ] }, { "cite": "268 S.E. 2d 481", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "300 N.C. 494", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562770 ], "year": 1980, "pin_cites": [ { "page": "507" } ], "opinion_index": 0, "case_paths": [ "/nc/300/0494-01" ] }, { "cite": "432 U.S. 233", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6178254 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/us/432/0233-01" ] }, { "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 ], "weight": 2, "year": 1975, "pin_cites": [ { "page": "649" } ], "opinion_index": 0, "case_paths": [ "/nc/288/0632-01" ] }, { "cite": "254 S.E. 2d 604", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "297 N.C. 247", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568581 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/nc/297/0247-01" ] }, { "cite": "279 S.E. 2d 542", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "303 N.C. 439", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573967 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/nc/303/0439-01" ] }, { "cite": "40 A.L.R. 2d 908", "category": "reporters:specialty", "reporter": "A.L.R. 2d", "year": 1955, "opinion_index": 0 }, { "cite": "11 S.E. 525", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1890, "opinion_index": 0 }, { "cite": "106 N.C. 722", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8652082 ], "weight": 2, "year": 1890, "pin_cites": [ { "page": "726" } ], "opinion_index": 0, "case_paths": [ "/nc/106/0722-01" ] }, { "cite": "219 S.E. 2d 228", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "opinion_index": 0 }, { "cite": "27 N.C. App. 354", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8553699 ], "weight": 2, "year": 1975, "pin_cites": [ { "page": "357" } ], "opinion_index": 0, "case_paths": [ "/nc-app/27/0354-01" ] }, { "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": "118 S.E. 2d 769", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1961, "opinion_index": 0 }, { "cite": "254 N.C. 101", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8624570 ], "year": 1961, "opinion_index": 0, "case_paths": [ "/nc/254/0101-01" ] }, { "cite": "266 S.E. 2d 586", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "300 N.C. 363", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561256 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/nc/300/0363-01" ] }, { "cite": "203 S.E. 2d 815", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1974, "opinion_index": 0 }, { "cite": "285 N.C. 158", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562638 ], "year": 1974, "opinion_index": 0, "case_paths": [ "/nc/285/0158-01" ] }, { "cite": "265 S.E. 2d 210", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "300 N.C. 157", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559952 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/nc/300/0157-01" ] }, { "cite": "68 S.E. 2d 844", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1952, "opinion_index": 0 }, { "cite": "234 N.C. 716", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8625810 ], "year": 1952, "opinion_index": 0, "case_paths": [ "/nc/234/0716-01" ] }, { "cite": "206 S.E. 2d 238", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1974, "opinion_index": 0 }, { "cite": "285 N.C. 570", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565454 ], "year": 1974, "opinion_index": 0, "case_paths": [ "/nc/285/0570-01" ] }, { "cite": "259 S.E. 2d 858", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "298 N.C. 673", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573885 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/nc/298/0673-01" ] }, { "cite": "426 U.S. 610", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6181032 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/us/426/0610-01" ] }, { "cite": "212 S.E. 2d 125", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "opinion_index": 0 }, { "cite": "286 N.C. 509", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569066 ], "year": 1975, "opinion_index": 0, "case_paths": [ "/nc/286/0509-01" ] }, { "cite": "226 S.E. 2d 629", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "opinion_index": 0 }, { "cite": "290 N.C. 313", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561442 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/nc/290/0313-01" ] }, { "cite": "259 S.E. 2d 752", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1979, "opinion_index": 0 }, { "cite": "298 N.C. 355", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572408 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/nc/298/0355-01" ] }, { "cite": "174 S.E. 2d 503", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1970, "opinion_index": 0 }, { "cite": "276 N.C. 703", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8563378 ], "year": 1970, "opinion_index": 0, "case_paths": [ "/nc/276/0703-01" ] }, { "cite": "241 S.E. 2d 674", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "294 N.C. 365", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573193 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/nc/294/0365-01" ] }, { "cite": "239 S.E. 2d 465", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "293 N.C. 713", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567106 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/nc/293/0713-01" ] }, { "cite": "264 S.E. 2d 40", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "299 N.C. 707", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575806 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/nc/299/0707-01" ] } ], "analysis": { "cardinality": 1111, "char_count": 28036, "ocr_confidence": 0.774, "pagerank": { "raw": 4.355973173599158e-07, "percentile": 0.9185043220666533 }, "sha256": "3fe97bc902eac4e7ab6f5347091fe1ff79d8d4076cdd36fd167bb5f96f15522a", "simhash": "1:fb74902a167c94d8", "word_count": 4747 }, "last_updated": "2023-07-14T14:52:50.465071+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "STATE OF NORTH CAROLINA v. RICKY DALE BROCK" ], "opinions": [ { "text": "BRITT, Justice.\nAll of defendant\u2019s assignments of error relate to the prosecutor\u2019s jury argument and the trial court\u2019s jury instructions. We find no merit in any of the assignments and leave undisturbed the judgment of the trial court.\nDefendant contends first that the prosecutor violated his rights guaranteed by Article I, Section 23, of the state constitution, and the fifth and fourteenth amendments to the federal constitution \u201cby arguing to the jury that evidence of defendant\u2019s post-arrest silence was evidence of his guilt of the crimes charged.\u201d\nDefendant testified that while he was present at the murder scene, he was not the perpetrator and participated only because of coercion. On direct examination, he made no reference to any statement made at the time of his arrest. On cross examination defendant testified that on the date of the offense he was living with his girlfriend; that when the officers came to his apartment and informed him of the murder charges against him, his girlfriend hugged his neck and said, \u201cYou didn\u2019t do this, did you?\u201d; that he replied \u201cNo.\u201d; and that he believed Officers Lowder, Almond and Covington were present at the time he made the answer to his girlfriend.\nAlso on cross examination defendant testified that at the time the officers came to his home and served the murder warrant on him, he told Sheriff McSwain that he did not commit the murder; and that he further told Mr. McSwain after he was brought to the courthouse that he did not do it.\nOn rebuttal, Deputy Sheriff Lowder was called as a witness by the state. He testified that he was one of the officers that went to the defendant\u2019s home for the purpose of serving the murder warrant on him; that he read the allegations in the warrant to defendant; that defendant\u2019s girlfriend was present at the time; that immediately thereafter she said, \u201cRicky, tell me you didn\u2019t do it.\u201d; that she made this statement two or three times; and that defendant made no response to her.\nAt defendant\u2019s request, the trial court agreed to instruct the jury that defendant\u2019s post-arrest silence could not be considered as evidence of his guilt; and that the evidence of defendant\u2019s silence would be admitted only to contradict and impeach the testimony of defendant that he did not remain silent when arrested. The court instructed the prosecutor that he was not to argue to the jury or imply that defendant\u2019s silence was an admission of guilt, but that he could argue the discrepancy in defendant\u2019s testimony and Mr. Lowder\u2019s testimony for impeachment purposes.\nUnder this assignment of error, defendant complains about the following portions of the prosecutor\u2019s argument to the jury:\nYou can\u2019t believe what this defendant said. He has changed his story several times \u2014 didn\u2019t tell or wouldn\u2019t tell the story to start with. (Emphasis added.) Rp 146.\n* * *\nFirst of all, let\u2019s go back before that, and look how the defendant reacted when he was arrested. This is for you to consider. He said that he responded to his girlfriend and said, no, he didn\u2019t do it. What did Roger Lowder say \u2014he said he was right there \u2014 false testimony. Roger Lowder has no interest in the outcome of this case. Trying to get the truth. His own girlfriend \u2014 his own girlfriend \u2014 tell me you didn\u2019t do it \u2014 tell me you didn\u2019t do it. Has she testified? Think about it \u2014 think about it. Dwight Farmer \u2014many days later \u2014 many days later. Then by this time he had his story, he thought, put together. . . . Rp. 180. And would you expect him to tell one bit of the truth \u2014 a man who acts like this \u2014 a man who never told a story until many days or weeks later. R pp 183-184.\nIt is well-settled in this jurisdiction that control of the arguments of counsel rests primarily in the discretion of the presiding judge. State v. King, 299 N.C. 707, 264 S.E. 2d 40 (1980). State v. Thompson, 293 N.C. 713, 239 S.E. 2d 465 (1977). Ordinarily, objection to the prosecuting attorney\u2019s jury argument must be made prior to the verdict for the alleged impropriety to be reversible on appeal. State v. Smith, 294 N.C. 365, 241 S.E. 2d 674 (1978); State v. Williams, 276 N.C. 703, 174 S.E. 2d 503 (1970). Failure to object waives the alleged error. Id.\nAn exception to this rule is found in capital cases where, because of the severity of the death sentence, this court will review alleged improprieties in the prosecutor\u2019s jury argument despite defendant\u2019s failure to timely object. State v. Johnson, 298 N.C. 355, 259 S.E. 2d 752 (1979). However, even in death cases the impropriety must be extreme for this court to find that the trial judge abused his discretion in not recognizing and correcting ex mero motu an argument that defense counsel failed to find prejudicial when he heard it. Id. In the case at bar, since defendant received a sentence of life imprisonment the general rule and not the exception applies.\nThe record reveals that defendant had no objection to these remarks of the prosecutor when they were made at trial. He has thus waived any impropriety and will not be allowed to raise these objections for the first time on appeal.\nOne comment by the district attorney, of the same nature as the above arguments, did drawn an objection from defendant.\nThe defendant gets arrested \u2014 doesn\u2019t deny to his girlfriend that he\u2019s guilty \u2014 does not deny it. He even knows she was trying to persuade him to say it isn\u2019t so \u2014 that\u2019s strong language, folks \u2014strong evidence\u2014 '. . . . R p 184.\nFollowing this objection the court asked counsel to approach the bench. While the court did not rule on the objection, the prosecutor in resuming his summation changed his line of argument. Defense counsel did not request a curative instruction.\nThis court has consistently held that the prosecutor may argue to the jury the relevant law, facts in evidence and all reasonable inferences to be drawn therefrom. State v. Covington, 290 N.C. 313, 226 S.E. 2d 629 (1976); State v. Monk, 286 N.C. 509, 212 S.E. 2d 125 (1975). Defendant testified that he denied his guilt when confronted by his girlfriend at the time of his arrest; In rebuttal, the state presented evidence that defendant made no such denial but in fact remained silent. The rebuttal evidence was properly admissible, but only for purposes of challenging defendant\u2019s earlier exculpatory statement. See Doyle v. Ohio, 426 U.S. 610 (1976). Although he could not argue defendant\u2019s silence as substantive evidence of defendant\u2019s guilt, the prosecutor was entitled to comment on this contradictory evidence in his final argument as grounds for disbelief of defendant\u2019s story. Reviewing the prosecutor\u2019s comment in context, we find that the argument was not so prejudicial as to deny defendant a fair trial. The prosecutor\u2019s argument was cut short by defendant\u2019s objection before it reached the level of reversible error. Failure of defense counsel to seek curative instructions indicates that he was satisfied that no prejudice had accrued at that point.\nFinally, with regard to all the above portions of the prosecutor\u2019s closing argument now objected to by defendant, we note that any prejudice to defendant was negated by the court\u2019s thorough instructions to the jury that defendant had a right to be and remain silent and that defendant\u2019s silence was not to be considered in any manner to be an admission of his guilt or as evidence of his guilt.\nThe assignment of error is overruled.\nIn his second assignment of error, defendant takes exception to numerous other comments made by the prosecutor during his final argument. We find it unnecessary to set forth these remarks now excepted to on appeal as none were objected to at trial. Defendant has waived those alleged errors. Further, it is well-established that counsel is allowed wide latitude in arguing hotly contested cases. State v. Johnson, supra; State v. Covington, supra. The prosecuting attorney has the duty to use every legitimate means to bring about a just conviction and to make an earnest and vigorous presentation of the state\u2019s case. State v. King, supra; State v. Monk, supra. We perceive no abuse of discretion by the court in its control of counsel\u2019s closing arguments.\nDefendant\u2019s next assignment of error concerns the court\u2019s instructions on the elements of first-degree murder. He contends that the court committed reversible error by failing to explicitly instruct the jury that they must find defendant\u2019s acts caused the victim\u2019s death in order to convict him of first-degree murder.\nThe portions of the charge excepted to required that in order for the jury to find defendant guilty of first-degree murder on the basis of malice, premeditation and deliberation, the state must prove first \u201cthat the defendant intentionally and with malice hit or shot Bobby Clyde Gardner, Sr. with a deadly weapon\u201d and second \u201cthat the hitting and shooting was a proximate cause of Gardner\u2019s death.\u201d (Emphasis added.)\nDefendant\u2019s contention is based on conclusions he submits the jury could have drawn from the evidence presented. The state\u2019s evidence, through the testimony of Caudle, established defendant as the sole perpetrator of the murder. Defendant, on the other hand, testified that at gunpoint he assisted Caudle in disposing of the body and cleaning up the gore in the garage. He further testified that he never hit or shot Gardner. Defendant asserts that from this evidence the jury might have found that defendant participated in the crime to a greater degree than he admitted to and, that he, in fact, inflicted one or more of the wounds on Gardner. Should the jury have so found, he argues, then under the instruction referred to above the jury could have convicted him of first-degree murder without finding that his act or acts inflicted the fatal wounds. Defendant\u2019s argument is without merit.\nA person is criminally responsible for a homicide only if his act caused or directly contributed to the death of the victim. State v. Atkinson, 298 N.C. 673, 259 S.E. 2d 858 (1979); State v. Luther, 285 N.C. 570, 206 S.E. 2d 238 (1974). The state must establish that the accused\u2019s act was a proximate cause of the death in order to obtain a conviction for murder. State v. Minton, 234 N.C. 716, 68 S.E. 2d 844 (1952).\nA reading of the entire charge to the jury shows that the jury could not have returned a verdict of guilty of first-degree murder based on premeditation and deliberation without an express finding that defendant\u2019s act or acts were a proximate cause of Gardner\u2019s death.\nSpecifically, Judge DeRamus instructed\nSo I charge that if you find from the evidence beyond a reasonable doubt that on or about November 12, 1980, Ricky Dale Brock intentionally shot Bobby Clyde Gardner, Sr., with a .44 caliber revolver, a .22 caliber Derringer, or a .20 guage shotgun, or hit Gardner with a hammer or metal tool, and that such hammer or such metal tool was a deadly weapon, and that this or any combination of such shooting and hitting proximately caused Gardner\u2019s death, and that Ricky Dale Brock intended to kill Garnder and that he acted with malice after premeditation and with deliberation, it would be your duty to return a verdict of guilty of first degree murder. R p 197.\nWe hold that this instruction was a correct and proper statement of the law on proximate cause. Clearly under the instructions given, the jury was required to find that defendant inflicted an injury or injuries on the victim and that such injury or injuries proximately resulted in death.\nBy his fourth assignment of error, defendant contends that the court committed reversible error by failing to instruct the jury on the defense of duress.\nIt is the duty of the court to instruct the jury on all the substantive features of a case raised by the evidence, State v. Ferrell, 300 N.C. 157, 265 S.E. 2d 210 (1980); State v. Dooley, 285 N.C. 158, 203 S.E. 2d 815 (1974); and all defenses arising from the evidence constitute substantive features of a case. State v. Jones, 300 N.C. 363, 266 S.E. 2d 586 (1980); State v. Faust, 254 N.C. 101, 118 S.E. 2d 769 (1961).\nNorth Carolina recognizes the common law doctrine of duress as a defense to certain prosecutions. See State v. Sherian, 234 N.C. 30, 65 S.E. 2d 331 (1951); State v. Kearns, 27 N.C. App. 354, 219 S.E. 2d 228 (1975). In Sherian, defendants insisted that they had no part in committing the felonious assault; however, they admitted that they aided a person who committed the assault in their presence to escape and avoid arrest and punishment. They contended that they acted under compulsion and through fear of death or great bodily harm at the hands of the person who committed the assault. In view of that evidence, this court held that the trial court erred in not giving the jury specific instructions on the defense of duress or compulsion.\nThe common law rule does not, however, recognize any duress, even the threat of imminent death, as sufficient to excuse the intentional killing of an innocent human being. Perkins, Criminal Law, p. 951 (2d ed. 1969). This principle was explicitly followed by this court in State v. Powell, 106 N.C. 722, 11 S.E. 525 (1890). In that case this court stated\n\u201cAnd, therefore, though a man may be violently assaulted, and hath no other possible means of escaping death but by killing an innocent person, this fear and force shall not acquit him of murder, for he ought rather to die himself than escape by the murder of an innocent.\u201d\n106 N.C. at 726.\nIn State v. Kearns, supra, the Court of Appeals said:\nIt is the general rule that in order to constitute a defense to a criminal charge other than taking the life of an innocent person, the coercion or duress must be present, imminent or impending, and of such a nature as to induce a well-grounded apprehension of death or serious bodily harm if the act is not done. Furthermore, the doctrine of coercion cannot be invoked as an excuse by one who had a reasonable opportunity to avoid doing the act without undue exposure to death or serious bodily harm. Annot. 40 A.L.R. 2d 908 (1955). (Emphasis added.)\n27 N.C. App. at 357.\nIn no view of the evidence in the case at hand was defendant entitled to an instruction on duress. If defendant was the actual killer of Garnder, as the jury found, clearly the doctrine does not apply. If defendant assisted Caudle in killing Gardner, clearly the doctrine does not apply. And, if defendant had a \u201creasonable opportunity to avoid doing the act without undue exposure to death or serious bodily harm\u201d, he was not entitled to invoke the doctrine. Defendant testified:\nWe heard Larry McMahon pulling around to the front of the building and heard him stop. Mr. Caudle said to go see what he wanted. Then Tracy started toward the door there and he stopped right about the side door there. He said for me to go see what Larry wanted. He told me if I said anything to Larry about what had happened that he would kill me and whoever was out there. I then walked to the door and went outside. I saw Larry\u2019s wife and his little girl, Tonya, with Larry. I told Larry that I thought Gene was with him. Larry asked me if I wanted Gene. I told him that I did not I just thought that Gene was with him. Then Larry asked me something about what I was doing out there and then he said that he would see me later. I walked back in the door to the garage.\nLarry pulled on up a little bit further and stopped. Tracy told me that he had stopped again. That\u2019s when I went out the first bay door to my right and talked to Larry. He was still in his truck, and I went out there and he asked me if I needed any help. Larry was about ten or fifteen feet from the door at that time. The door was still open and cracked. I told Larry I believed that I did not need any help and that someone was there. I walked back in the door and went back over to the wash pit area. (Emphasis added.)\nThus it appears that defendant had a reasonable opportunity to run away from the building and avoid any further aid to Caudle without \u201cundue exposure to death or serious bodily harm.\u201d\nBy his last assignment of error, defendant contends that the court\u2019s instructions on malice and unlawfulness were improper because they created a mandatory conclusive presumption as to those elements and thus denied defendant his constitutional right to trial by jury.\nThe instruction objected to by defendant reads:\nIf the State proves beyond a reasonable doubt that the defendant intentionally killed Bobby Clyde Gardner, Sr., with a deadly weapon or intentionally inflicted a wound upon Gardner with a deadly weapon that proximately caused his death, the law implies first, that the killing was unlwful; and second, that it was done with malice.\nDefendant argues'that the instruction was erroneous because at no point in the charge was the jury told that the presumptions of malice and unlawfulness could be rebutted. Defendant\u2019s argument has no merit in view of the contentions and evidence in this case.\nThe legal presumption set forth in the above instruction has been approved by this court on many occasions. See State v. Simpson, 303 N.C. 439, 279 S.E. 2d 542 (1981); State v. Patterson, 297 N.C. 247, 254 S.E. 2d 604 (1979); State v. Hankerson, 288 N.C. 632, 220 S.E. 2d 575 (1975), rev\u2019d on other grounds, 432 U.S. 233 (1977).\nSpeaking for the court in Hankerson, supra, Justice Exum stated\nThe 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. (Citations.) Neither, by reason of Mullaney, is it unconstitutional to make the presumptions mandatory in the absence of contrary evidence. . . .\n288 N.C. at 649.\nOur review of the record shows that use of the presumption in the instant case in no way relieved the state of its burden of proving beyond a reasonable doubt the existence of every element of first-degree murder. The record is void of any lawful excuse for the killing of Gardner. Defendant\u2019s testimony that Caudle alone committed all the acts in perpetration of the murder did not raise any issue of self-defense or heat of passion upon sudden provocation. Likewise, we rejected defendant\u2019s claim of a right to the defense of duress in the previous assignment of error. \u201cThe state is not required to prove malice and unlawfulness unless there is some evidence of their non-existence . . . State v. Simpson, supra, at 451; State v. Hankerson, supra, at 650. Further, \u201cIn the absence of any rebutting evidence, however, no issue is raised as to the non-existence of the elemental facts and the jury may be directed to find the elemental facts if it finds the basic facts to exist beyond a reasonable doubt.\u201d State v. White, 300 N.C. 494, 507, 268 S.E. 2d 481 (1980).\nConsidering the total absence of any evidence to rebut the existence of malice and unlawfulness, we hold that the instruction given did not create an impermissible presumption.\nWe conclude that defendant received a fair trial, free from prejudicial error.\nNo error.\n. Defendant testified that when McMahon drove up outside the garage, Gardner was still alive, \u201cmoving and hollering or talking\u201d; that \u201cTracy grabbed a piece of plastic and he had one leg and I had the other and we pulled Mr. Gardner behind the wash pit there.\u201d\n. Defendant\u2019s reliance on Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed. 2d 39 (1979), is completely misplaced. In that case defendant admitted killing the victim but contended that he did not do so purposely or knowingly and was, therefore, not guilty of deliberate homicide but of a lesser crime. In view of defendant\u2019s contention, and evidence presented in support thereof, the U.S. Supreme Court held that a jury instruction to the effect that the \u201claw presumes that a person intends the ordinary consequences of his voluntary acts\u201d violates the fourteenth amendment due process requirement that the state prove every element of a criminal offense beyond a reasonable doubt.", "type": "majority", "author": "BRITT, Justice." } ], "attorneys": [ "Attorney General Rufus L. Edmisten by Assistant Attorney General J. Michael Carpenter and Assoicate Attorney Daniel C. Higgins for the State.", "Malcolm, R. Hunter, Jr., Assistant Appellate Defender, for defendant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. RICKY DALE BROCK\nNo. 47A81\n(Filed 4 May 1982)\n1. Criminal Law \u00a7 165\u2014 necessity for objection to prosecutor\u2019s jury argument\nWhile the appellate court will review alleged improprieties in the prosecutor\u2019s jury argument in a capital case despite defendant\u2019s failure timely to object, the general rule that objection to the prosecutor\u2019s jury argument must be made prior to the verdict for the alleged impropriety to be reversible on appeal applies in a first degree murder case in which defendant received a sentence of life imprisonment.\n2. Criminal Law \u00a7\u00a7 48, 102.10\u2014 defendant\u2019s post-arrest silence \u2014 purpose for which admissible\nIn a first degree murder case in which defendant testified that he denied his guilt when confronted by his girlfriend at the time of his arrest and the State presented rebuttal evidence that defendant made no such denial but remained silent, the rebuttal evidence was properly admissible only for purposes of challenging defendant\u2019s earlier exculpatory statement, and although the prosecutor could not argue defendant\u2019s silence as substantive evidence of defendant\u2019s guilt, he was entitled to comment on this contradictory evidence in his final argument as a ground for disbelief of defendant\u2019s story.\n3. Criminal Law \u00a7\u00a7 48, 102.6\u2014 argument about defendant\u2019s post-arrest silence \u2014waiver of objection \u2014absence of prejudice\nDefendant waived objection to two comments by the prosecutor in his jury argument concerning defendant\u2019s post-arrest silence by failing to object thereto at the trial. Another comment by the prosecutor about defendant\u2019s failure to deny his guilt when confronted by his girlfriend at the time of his arrest, to which defendant did object, was not so prejudicial as to deny defendant a fair trial. In any event, any prejudice to defendant by the prosecutor\u2019s comments about his post-arrest silence was negated by the court\u2019s instruction to the jury that defendant had a right to be and remain silent and that defendant\u2019s silence was not to be considered in any manner to be an admission of his guilt or as evidence of his guilt.\n4. Homicide \u00a7 25\u2014 first degree murder \u2014 instructions on proximate cause of death\nThe trial court\u2019s instructions that in order for the jury to find defendant guilty of first degree murder on the basis of premeditation and deliberation the State must prove first \u201cthat the defendant intentionally and with malice hit or shot [deceased] with a deadly weapon\u201d and second \u201cthat the hitting and shooting was a proximate cause of [deceased\u2019s] death\u201d did not permit the jury to convict defendant of first degree murder without finding that his act or acts inflicted the fatal wounds. Rather, a reading of the entire charge to the jury shows that the jury could not have returned a verdict of guilty of first degree murder based on premeditation and deliberation without an express finding that defendant\u2019s act or acts were a proximate cause of deceased\u2019s death.\n5. Criminal Law \u00a7 7.5\u2014 doctrine of duress \u2014 instruction not required\nThe common law doctrine of duress does not recognize any duress, even the threat of imminent death, as sufficient to excuse the intentional killing of an innocent human being and does not apply if defendant had a reasonable opportunity to avoid doing the act without undue exposure to death or serious bodily harm. Therefore, defendant was not entitled to an instruction on duress in a prosecution for first degree murder where all the evidence tended to show that defendant was either the actual killer of the victim or that he assisted another in killing the victim and where the evidence also showed that defendant had a reasonable opportunity to run away from the building in which the killing occurred and avoid any further aid to the other person involved in the killing without undue exposure to death or serious bodily harm when he left the building to talk with the driver of a vehicle which had driven up outside the building.\n6. Homicide \u00a7 24.1\u2014 presumptions of malice and unlawfulness \u2014 instructions not improper\nThe trial court\u2019s instructions in a first degree murder case did not create impermissible presumptions of malice and unlawfulness in light of the total absence of any evidence to rebut the existence of malice and unlawfulness.\nAPPEAL by defendant from judgment entered by DeRamus, Judge, at the 2 February 1981 Criminal Session of STANLY Superior Court.\nDefendant was tried on bills of indictment charging him with (1) armed robbery and (2) murder. Bobby Clyde Gardner was the alleged victim of both offenses.\nEvidence presented by the state, including key testimony by Melvin Tracy Caudle, is summarized in pertinent part as follows:\nDefendant asked Caudle to help him sell some counterfeit money to Gardner. On the evening of 12 November 1980 defendant, Caudle and Gardner went to defendant\u2019s garage. After arriving there, defendant began shooting Gardner and then beat him on his head with a hammer. Thereafter, defendant removed a Derringer and a roll of money from Gardner\u2019s pockets and shot him again. Gardner continued to live and defendant hit him several more times with the hammer. At this point, a vehicle drove up outside of the garage and defendant went out to speak to the driver, McMahon.\nWhen defendant reentered the garage, he wrapped the victim\u2019s legs with tire chains and put the body in the back of a station wagon. Defendant told Caudle to clean up the garage while he disposed of the body. When defendant returned, he gave Caudle the weapons used in the murder and instructed Caudle to get rid of them. Caudle cooperated only because he was afraid defendant would kill him.\nCaudle left the garage, went to his girlfriend\u2019s home, and told her what had happened. He then went to v/ork and told his supervisor what had happened. Upon the advice of the supervisor, Caudle went to the sheriff and told his story. He showed the police where he had hidden the weapons. Gardner\u2019s body was found in a creek not far from the garage.\nEvidence presented by defendant is summarized in pertinent part as follows:\nWhen defendant arrived at the garage on the evening in question, he found Gardner lying on the floor with Caudle standing over him. Caudle shot at defendant, forced him to assist with loading the body and threatened to kill him if he told anyone. Caudle had told several people prior to the shooting that something big was going to happen in Norwood and that they would read about it. McMahon, the person who drove up and talked with defendant during the killing, testified that he noticed no blood on defendant, this testimony conflicting with Caudle\u2019s statement that defendant had blood all over him. Defendant attempted to offer into evidence the testimony of I. B. Nichols, a licensed poly-graphist, who stated on voir dire that he had tested defendant and the results indicated that defendant was being completely truthful when he stated that he did not shoot Gardner but that Caudle did. The trial judge ruled this evidence inadmissible.\nOther evidence pertinent to the questions raised on appeal will be alluded to in the opinion.\nWith respect to the murder charge, the court submitted the case to the jury on first-degree murder, second-degree murder, or not guilty. The jury returned a verdict finding defendant guilty of first-degree murder based on malice, premeditation and deliberation.\nFrom judgment imposing a life sentence, defendant appealed.\nAttorney General Rufus L. Edmisten by Assistant Attorney General J. Michael Carpenter and Assoicate Attorney Daniel C. Higgins for the State.\nMalcolm, R. Hunter, Jr., Assistant Appellate Defender, for defendant.\n. The jury returned a verdict of not guilty on the armed robbery charge.\n. The state\u2019s brief indicates that a hearing to determine punishment was conducted pursuant to 6.S. 15A-2000 et seq. and that the jury recommended a sentence of life imprisonment." }, "file_name": "0532-01", "first_page_order": 564, "last_page_order": 576 }