{ "id": 4706770, "name": "STATE OF NORTH CAROLINA v. JIMMY GRIFFIN", "name_abbreviation": "State v. Griffin", "decision_date": "1983-05-03", "docket_number": "No. 413A82", "first_page": "303", "last_page": "317", "citations": [ { "type": "official", "cite": "308 N.C. 303" } ], "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": "140 S.E. 2d 305", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1965, "pin_cites": [ { "page": "309" } ], "opinion_index": 0 }, { "cite": "263 N.C. 730", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572769 ], "year": 1965, "pin_cites": [ { "page": "734" } ], "opinion_index": 0, "case_paths": [ "/nc/263/0730-01" ] }, { "cite": "243 S.E. 2d 118", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1978, "pin_cites": [ { "page": "125" }, { "page": "125" } ], "opinion_index": 0 }, { "cite": "294 N.C. 642", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574188 ], "weight": 2, "year": 1978, "pin_cites": [ { "page": "653" }, { "page": "653" } ], "opinion_index": 0, "case_paths": [ "/nc/294/0642-01" ] }, { "cite": "50 L.Ed. 2d 301", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1976, "opinion_index": 0 }, { "cite": "97 S.Ct. 339", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1976, "opinion_index": 0 }, { "cite": "429 U.S. 932", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 7686, 5955, 6294, 7343 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/us/429/0932-03", "/us/429/0932-04", "/us/429/0932-01", "/us/429/0932-02" ] }, { "cite": "226 S.E. 2d 10", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "pin_cites": [ { "page": "20-22" } ], "opinion_index": 0 }, { "cite": "290 N.C. 148", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560710 ], "year": 1976, "pin_cites": [ { "page": "165-68" } ], "opinion_index": 0, "case_paths": [ "/nc/290/0148-01" ] }, { "cite": "235 S.E. 2d 787", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "292 N.C. 733", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573347, 8573326, 8573262, 8573302, 8573279 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/nc/292/0733-05", "/nc/292/0733-04", "/nc/292/0733-01", "/nc/292/0733-03", "/nc/292/0733-02" ] }, { "cite": "233 S.E. 2d 662", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "32 N.C. App. 770", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8553896 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/nc-app/32/0770-01" ] }, { "cite": "220 S.E. 2d 558", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "pin_cites": [ { "page": "571" } ], "opinion_index": 0 }, { "cite": "288 N.C. 680", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570581 ], "year": 1975, "pin_cites": [ { "page": "699" } ], "opinion_index": 0, "case_paths": [ "/nc/288/0680-01" ] }, { "cite": "158 S.E. 2d 638", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1968, "pin_cites": [ { "page": "641" } ], "opinion_index": 0 }, { "cite": "272 N.C. 327", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572884 ], "year": 1968, "pin_cites": [ { "page": "331" } ], "opinion_index": 0, "case_paths": [ "/nc/272/0327-01" ] }, { "cite": "96 S.E. 2d 39", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1957, "pin_cites": [ { "page": "45" }, { "page": "45" } ], "opinion_index": 0 }, { "cite": "245 N.C. 323", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8610604 ], "weight": 2, "year": 1957, "pin_cites": [ { "page": "330-31" } ], "opinion_index": 0, "case_paths": [ "/nc/245/0323-01" ] }, { "cite": "11 L.Ed. 2d 622", "category": "reporters:federal", "reporter": "L. Ed. 2d", "weight": 3, "year": 1964, "opinion_index": 0 }, { "cite": "84 S.Ct. 691", "category": "reporters:federal", "reporter": "S. Ct.", "weight": 2, "year": 1964, "opinion_index": 0 }, { "cite": "376 U.S. 927", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 379491, 379206, 379272, 379689, 379529, 379182, 379838, 379612, 379870, 379487 ], "weight": 2, "year": 1964, "opinion_index": 0, "case_paths": [ "/us/376/0927-08", "/us/376/0927-10", "/us/376/0927-02", "/us/376/0927-04", "/us/376/0927-07", "/us/376/0927-03", "/us/376/0927-06", "/us/376/0927-05", "/us/376/0927-09", "/us/376/0927-01" ] }, { "cite": "122 S.E. 2d 805", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1961, "pin_cites": [ { "page": "807" }, { "page": "807" } ], "opinion_index": 0 }, { "cite": "256 N.C. 99", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571257 ], "weight": 2, "year": 1961, "pin_cites": [ { "page": "102" }, { "page": "102" } ], "opinion_index": 0, "case_paths": [ "/nc/256/0099-01" ] }, { "cite": "44 S.E. 2d 218", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1947, "pin_cites": [ { "page": "221", "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "227 N.C. 657", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8627128 ], "weight": 3, "year": 1947, "opinion_index": 0, "case_paths": [ "/nc/227/0657-01" ] }, { "cite": "58 A.L.R. 2d 1024", "category": "reporters:specialty", "reporter": "A.L.R. 2d", "year": 1967, "opinion_index": 0 }, { "cite": "229 S.E. 2d 233", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "opinion_index": 0 }, { "cite": "31 N.C. App. 368", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8549571 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/nc-app/31/0368-01" ] }, { "cite": "181 S.E. 2d 561", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1971, "pin_cites": [ { "page": "571" } ], "opinion_index": 0 }, { "cite": "279 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565516 ], "weight": 3, "year": 1971, "pin_cites": [ { "page": "17" } ], "opinion_index": 0, "case_paths": [ "/nc/279/0001-01" ] }, { "cite": "297 S.E. 2d 563", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "opinion_index": 0 }, { "cite": "307 N.C. 152", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561161 ], "weight": 2, "year": 1982, "pin_cites": [ { "page": "160" } ], "opinion_index": 0, "case_paths": [ "/nc/307/0152-01" ] }, { "cite": "287 N.C. 669", "category": "reporters:state", "reporter": "N.C.", "year": 1975, "pin_cites": [ { "page": "699" } ], "opinion_index": 0 }, { "cite": "303 N.C. 713", "category": "reporters:state", "reporter": "N.C.", "year": 1981, "pin_cites": [ { "page": "716-17", "parenthetical": "amending 287 N.C. 669, 699 (1975)" } ], "opinion_index": 0 }, { "cite": "18 L.Ed. 2d 1362", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1967, "opinion_index": 0 }, { "cite": "87 S.Ct. 2137", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1967, "opinion_index": 0 }, { "cite": "388 U.S. 918", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6184480, 6184072, 6183550, 6184843, 6184671, 6183699, 6183891, 6183388, 6184286, 6185023 ], "year": 1967, "opinion_index": 0, "case_paths": [ "/us/388/0918-07", "/us/388/0918-05", "/us/388/0918-02", "/us/388/0918-09", "/us/388/0918-08", "/us/388/0918-03", "/us/388/0918-04", "/us/388/0918-01", "/us/388/0918-06", "/us/388/0918-10" ] }, { "cite": "152 S.E. 2d 317", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1967, "pin_cites": [ { "page": "322-23" } ], "opinion_index": 0 }, { "cite": "269 N.C. 68", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561844 ], "year": 1967, "pin_cites": [ { "page": "74-76" } ], "opinion_index": 0, "case_paths": [ "/nc/269/0068-01" ] }, { "cite": "49 L.Ed. 2d 1206", "category": "reporters:federal", "reporter": "L. 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Ct.", "year": 1976, "opinion_index": 0 }, { "cite": "428 U.S. 903", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6183298, 6181252, 6182756, 6183146, 6182571, 6181805, 6182223, 6181423, 6181585, 6182964, 6182388, 6181945, 6182076 ], "weight": 2, "year": 1976, "opinion_index": 0, "case_paths": [ "/us/428/0903-13", "/us/428/0903-01", "/us/428/0903-10", "/us/428/0903-12", "/us/428/0903-09", "/us/428/0903-04", "/us/428/0903-07", "/us/428/0903-02", "/us/428/0903-03", "/us/428/0903-11", "/us/428/0903-08", "/us/428/0903-05", "/us/428/0903-06" ] }, { "cite": "214 S.E. 2d 756", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "pin_cites": [ { "page": "760" } ], "opinion_index": 0 }, { "cite": "287 N.C. 483", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8563982 ], "year": 1975, "pin_cites": [ { "page": "487-88" } ], "opinion_index": 0, "case_paths": [ "/nc/287/0483-01" ] }, { "cite": "297 S.E. 2d 532", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "538" } ], "opinion_index": 0 }, { "cite": "307 N.C. 184", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561231 ], "year": 1982, "pin_cites": [ { "page": "194" } ], "opinion_index": 0, "case_paths": [ "/nc/307/0184-01" ] }, { "cite": "297 S.E. 2d 574", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "579-80" } ], "opinion_index": 0 }, { "cite": "307 N.C. 213", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561289 ], "year": 1982, "pin_cites": [ { "page": "222" } ], "opinion_index": 0, "case_paths": [ "/nc/307/0213-01" ] }, { "cite": "247 S.E. 2d 898", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "295 N.C. 629", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566612 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/nc/295/0629-01" ] }, { "cite": "249 S.E. 2d 371", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "296 N.C. 66", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564608 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/nc/296/0066-01" ] }, { "cite": "214 S.E. 2d 24", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1975, "pin_cites": [ { "page": "35" }, { "page": "100" }, { "page": "35", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "287 N.C. 84", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561084 ], "weight": 2, "year": 1975, "pin_cites": [ { "page": "100" } ], "opinion_index": 0, "case_paths": [ "/nc/287/0084-01" ] }, { "cite": "295 S.E. 2d 449", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "451", "parenthetical": "judgment is arrested where fatal defect appears on the face of the record" } ], "opinion_index": 0 }, { "cite": "306 N.C. 699", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573508 ], "year": 1982, "pin_cites": [ { "page": "702", "parenthetical": "judgment is arrested where fatal defect appears on the face of the record" } ], "opinion_index": 0, "case_paths": [ "/nc/306/0699-01" ] }, { "cite": "290 S.E. 2d 574", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "588" } ], "opinion_index": 0 }, { "cite": "305 N.C. 400", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570930 ], "year": 1982, "pin_cites": [ { "page": "422" } ], "opinion_index": 0, "case_paths": [ "/nc/305/0400-01" ] }, { "cite": "297 S.E. 2d 540", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1982, "pin_cites": [ { "page": "552" } ], "opinion_index": 0 }, { "cite": "307 N.C. 130", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561131 ], "weight": 2, "year": 1982, "pin_cites": [ { "page": "149" } ], "opinion_index": 0, "case_paths": [ "/nc/307/0130-01" ] } ], "analysis": { "cardinality": 1105, "char_count": 32540, "ocr_confidence": 0.808, "pagerank": { "raw": 1.1668992623208281e-07, "percentile": 0.585361154260345 }, "sha256": "24c81c65ca86cc6daeb407850c7791ca00bbb5e6ffb8f2f90d6cfe8f11a1a7a4", "simhash": "1:b71f503d576e1dfc", "word_count": 5581 }, "last_updated": "2023-07-14T18:17:55.702489+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "STATE OF NORTH CAROLINA v. JIMMY GRIFFIN" ], "opinions": [ { "text": "FRYE, Justice.\nThe defendant was charged with the first-degree murder of Elbert \u201cRed\u201d Strickland. The State\u2019s evidence tended to show the following:\nAbout 11 a.m. on 21 December 1981 Linda Jacobs, the victim\u2019s sister-in-law, left her car parked at the back door of the furniture store where her brother-in-law worked. Upon returning to her car with Mr. Strickland, Ms. Jacobs saw defendant coming out of the car with her purse. Defendant ran and Strickland chased him. While defendant was running away, the strap on the pocketbook broke and the purse fell to the ground. Defendant shot and killed Strickland during the chase.\nDefendant did not testify or present any witnesses at trial.\nDefendant was found guilty of murder in the second degree and murder in the second degree while in the perpetration of a felony.\nI.\nWe note at the outset that defendant contends in his thirteenth assignment of error that the trial court erred in denying his motion to set aside the verdict of murder in the second degree while in the perpetration of a felony \u201cas being contrary to the weight of the evidence in that the felony had been completed prior to the homicide.\u201d We agree that it was error for the trial court to fail to set aside the verdict, but not for the reason advanced by defense counsel. Instead, we hold that the verdict should have been set aside because there is no offense of felony murder in the second degree in North Carolina. State v. Chamberlain, 307 N.C. 130, 149, 297 S.E. 2d 540, 552 (1982); State v. Davis, 305 N.C. 400, 422, 290 S.E. 2d 574, 588 (1982). The doctrine of felony murder is only applicable to murder in the first degree. N.C.G.S. 14-17 (1981). We must, therefore, arrest judgment on the conviction of felony murder in the second degree. See State v. McGaha, 306 N.C. 699, 702, 295 S.E. 2d 449, 451 (1982) (judgment is arrested where fatal defect appears on the face of the record).\nDefendant is not entitled to a new trial, however. In addition to the erroneous verdict as to \u201cfelony murder in the second degree,\u201d the jury returned a verdict of guilty of murder in the second degree. The conviction of murder in the second degree was proper. The trial court correctly instructed the jury as to the elements of that offense and there is sufficient evidence to support the verdict as will be shown below.\nMurder in the second degree is the unlawful killing of a person with malice. State v. Jones, 287 N.C. 84, 100, 214 S.E. 2d 24, 35 (1975). In his charge to the jury on murder in the second degree, the trial judge correctly stated:\nSecond-degree murder differs from first degree murder in that neither specific intent to kill, premeditation, nor deliberation are necessary elements. In order for you to find the defendant guilty of second degree murder, the State must prove beyond a reasonable doubt that the defendant intentionally and with malice shot Red Strickland with a deadly weapon thereby proximately causing his death.\nAs this Court noted in State v. Jones, 287 N.C. 84, 214 S.E. 2d 24 (1975):\nIf the State satisfies the jury beyond a reasonable doubt or if it is admitted that a defendant intentionally assaulted another with a deadly weapon, thereby proximately causing his death, two presumptions arise: (1) that the killing was unlawful and (2) that it was done with malice. Nothing else appearing, the person who perpetrated such assault would be guilty of murder in the second degree.\nId. at 100, 214 S.E. 2d at 35 (citation omitted).\nIn the case at bar, Ms. Jacobs testified that she saw defendant take her purse and flee and while her brother-in-law was chasing defendant he was shot. When she ran to her brother-in-law\u2019s aid he said to her, \u201cLinda, he\u2019s got me.\u201d Another witness, Ricky Grady, testified that he saw defendant shooting a man during that chase. There is, therefore, sufficient evidence of murder in the second degree. E.g., State v. Hodges, 296 N.C. 66, 249 S.E. 2d 371 (1978); State v. Alston, 295 N.C. 629, 247 S.E. 2d 898 (1978).\nAlthough the conviction of murder in the second degree is valid, we find, nevertheless, that we must remand the case for resentencing. In its instructions to the jury, the trial court stated that defendant could be found guilty of murder under two theories \u2014 murder in the second degree while in the perpetration of a felony \u201cand/or\u201d murder in the second degree. The jury indicated on its verdict sheet that defendant was guilty of murder in the second degree and guilty of second-degree murder while in the perpetration of a felony. The trial court then indicated on its felony judgment and commitment sheet that defendant was found guilty of two separate offenses \u2014\u201cSecond-degree murder\u201d and \u201cSecond-degree murder while in the perpetration of the felony of breaking or entering a motor vehicle with the intent to commit larceny.\u201d The trial court also indicated that the maximum prison term allowed for each offense was life imprisonment. Because it is unclear whether for sentencing purposes the trial court treated defendant\u2019s conviction of murder in the second degree as a single conviction under two theories or as two separate convictions, we must remand the case to Superior Court, Columbus County, for resentencing on the valid second degree murder conviction. Cf., State v. Chamberlain, 307 N.C. 130, 297 S.E. 2d 540 (1982). In Chamberlain, the defendant was convicted of only one offense-murder in the second degree \u2014under two theories, one of which was invalid (second-degree felony-murder theory). Resentencing was unnecessary since it was clear that the trial court sentenced the defendant for only one conviction. Id.\nII.\nWe turn now to defendant\u2019s thirteen other assignments of error, all of which are overruled for the reasons given below.\nDefendant claims in his first assignment of error that the trial court erred in failing to mention to the prospective jurors during its initial statement to them that they could find defendant not guilty. The trial court stated to the prospective jurors, \u201cat this time your only duty is to concern yourselves with the determination of whether the defendant is guilty of the crime charged, or any lesser included offense, about which you are instructed.\u201d Defendant contends that the trial court should have either explicitly stated to the prospective jurors that they could find defendant not guilty or rephrased its initial statement to them by saying that their duty was to determine whether \u201cor not\u201d defendant was guilty. In failing to do so, defendant contends that this initial statement amounted to an expression of opinion as to defendant\u2019s guilt on the part of the judge in violation of N.C.G.S. 15A-1222 (1978) and N.C.G.S. 15A-1213 (1978). We disagree. Although the better practice would be to explicitly state to prospective jurors that their duty is to determine whether defendant was guilty or not guilty, we do not feel that a failure to do so at this stage of the proceedings was error. In any event, the judge explicitly stated several times in his final instructions to the jury that they could find defendant not guilty, thereby clearing up any possible misunderstanding he may have created in his statements to the jurors before they were impaneled. See State v. Woods, 307 N.C. 213, 222, 297 S.E. 2d 574, 579-80 (1982); State v. Reynolds, 307 N.C. 184, 194, 297 S.E. 2d 532, 538 (1982).\nDefendant next contends that the trial court erred in failing to grant a motion for mistrial on grounds the prosecutor referred to Griffin in the presence of the jury three times as the defendant before Griffin was identified as such. We cannot agree that a motion for mistrial should have been granted here. In the first two instances in which the prosecutor referred to Griffin as the defendant, defense counsel objected, the trial court sustained the objection, and the prosecutor rephrased his question. When it happened a third time, Judge Preston asked the jurors to leave the courtroom after sustaining defense counsel\u2019s objection and then admonished the prosecutor at length about referring to Griffin as the defendant before he had been identified as such. We hold that the trial court\u2019s scrupulous handling of the prosecutor\u2019s inappropriate references to Griffin as the defendant cured the improprieties. See, e.g., State v. Robbins, 287 N.C. 483, 487-88, 214 S.E. 2d 756, 760 (1975), death penalty vacated, 428 U.S. 903, 96 S.Ct. 3208, 49 L.Ed. 2d 1208-09 (1976); State v. Jarrette, 284 N.C. 625, 645-46, 202 S.E. 2d 721, 734-35 (1974), death penalty vacated, 428 U.S. 903, 96 S.Ct. 3205, 49 L.Ed. 2d 1206-07 (1976). There is, therefore, no error here.\nIn his third assignment of error defendant contends that the trial court erred \u201cin ordering a State\u2019s witness to testify against the defendant.\u201d We have reviewed the transcript and find no error here. After being called to testify, William Vereen repeatedly claimed, while under oath, to have nothing to say about the case. In the course of questioning Vereen out of the presence of the jury about a statement he had made to the District Attorney\u2019s office concerning the Strickland murder, the prosecutor asked, \u201cWell you were in jail at the time [you made the statement] weren\u2019t you?\u201d At that point the trial judge stated, \u201cAll right Mr. Witness, I order you to answer the question. I specifically order you to answer the question.\u201d Vereen then stated, \u201cYes, I was in jail at the time.\u201d We find no error in a trial court ordering a hostile witness to answer a question within his knowledge. The trial judge\u2019s conduct here was entirely proper; indeed, we note that a trial court has the power to hold a witness in criminal contempt for willfully refusing to answer a proper question. N.C.G.S. 5A-11(a)(4) (1981); In re Williams, 269 N.C. 68, 74-76, 152 S.E. 2d 317, 322-23 (1967), cert. denied, 388 U.S. 918, 87 S.Ct. 2137, 18 L.Ed. 2d 1362 (1967). In any event, since this exchange occurred out of the presence of the jury, it could not have prejudiced defendant.\nFourth, defendant contends that the trial court erred in not charging the jury on the issue of self-defense. We note, first that defendant did not adhere to Rule 10(b)(2) of the North Carolina Rules of Appellate Procedure, 303 N.C. 713, 716-17 (1981) (amending 287 N.C. 669, 699 (1975)), because he failed to object to the jury charge, as it stood, before the jury retired to consider its verdict. Rule 10(b)(2) requires such an objection before a party may assign as error any portion of the jury charge or omission therefrom. Nevertheless, we have determined that this assignment of error is without merit for the reasons discussed below.\nIn State v. Bush, 307 N.C. 152, 297 S.E. 2d 563 (1982), this Court articulated the elements of imperfect and perfect self-defense and held that before a defendant is entitled to an instruction on self-defense, the trial court must answer two questions in the affirmative.\n(1) Is there evidence that the defendant in fact formed a belief that it was necessary to kill his adversary in order to protect himself from death or great bodily harm, and\n(2) if so, was that belief reasonable? If both queries are answered in the affirmative, then an instruction on self-defense must be given.\nId. at 160, 297 S.E. 2d at 569. The Court stated that if \u201cthe evidence requires a negative response to either question, a self-defense instruction should not be given.\u201d Id. at 160-61, 297 S.E. 2d at 569.\nIn applying the foregoing rule, the Court in Bush reasoned as follows:\nThe record before us is void of any evidence tending to show that the defendant in fact believed it necessary to kill the deceased in order to save himself from death or great bodily harm. The defendant\u2019s own testimony taken in the light most favorable to him indicates clearly that Marshburn [the victim], at worst, pushed the defendant and told him to get out of the Marshburn home. The defendant clearly testified that Marshburn \u201chad not threatened to use a weapon\u201d against the defendant and had not attempted even to strike the defendant other than by placing his hands upon him and pushing him. There is absolutely no evidence tending to indicate that Marshburn was so large or powerful as to cause the defendant to be unduly alarmed by such conduct. To the contrary, the evidence shows that Marshburn was a 65 year old man and the defendant was a 20 year old member of the United States Marine Corps. Nor are the defendant\u2019s self-serving statements that he was \u201cnervous\u201d and \u201cafraid\u201d and that he thought he was \u201cprotecting myself\u201d an adequate basis for an instruction on self-defense. Even these self-serving statements do no more than indicate merely some vague and unspecified nervousness or fear; they do not amount to evidence that the defendant had formed any subjective belief that it was necessary to kill the deceased in order to save himself from death or great bodily harm. Instead, all of the evidence tends to indicate that the defendant had not formed a belief that it was necessary to kill Kirby Marshburn in order to save himself from death or great bodily harm. It is even more apparent, if that is possible, that any fear by the defendant of death or great bodily harm was not reasonable. The circumstances as the defendant testified that they appeared to him at the time were totally insufficient to create any such belief in the mind of a person of ordinary firmness.\nId. at 159-60, 297 S.E. 2d at 568-69 (emphasis added).\nIn the case at bar, the only evidence remotely connected to the issue of self-defense is evidence that: (1) the defendant made a broad statement while in prison to the effect that he had to kill the victim or else the victim would have killed him, and (2) the victim had grabbed defendant\u2019s arm in trying to apprehend him for having snatched Ms. Jacob\u2019s purse. There is no evidence that the fifty-three year old victim was armed or had threatened defendant in any way. The evidence in this case, therefore, is not sufficient to justify an instruction to the jury on the issue of self-defense because it does not amount to \u201cevidence that the defendant in fact formed a belief that it was necessary to kill his adversary in order to protect himself from death or great bodily harm,\u201d State v. Bush, 307 N.C. at 160, 297 S.E. 2d at 569.\nFifth, defendant contends that the trial court erred \u201cin permitting the prosecution to play before the jury only portions of a tape recorded statement of the defendant in that this amounts to a deletion contrary to case law.\u201d Defendant cites only two cases in support of his argument: State v. Lynch, 279 N.C. 1, 181 S.E. 2d 561 (1971); and State v. Harmon, 31 N.C. App. 368, 229 S.E. 2d 233 (1976). Both of these cases set forth the requirements which must be met before a defendant\u2019s tape recorded statement is admitted into evidence. In Lynch this Court held:\nTo lay a proper foundation for the admission of a defendant\u2019s recorded confession or incriminating statement, courts are in general agreement that the State must show to the trial court\u2019s satisfaction (1) that the recorded testimony was legally obtained and otherwise competent; (2) that the mechanical device was capable of recording testimony and that it was operating properly at the time the statement was recorded; (3) that the operator was competent and operated the machine properly; (4) the identity of the recorded voices; (5) the accuracy and authenticity of the recording; (6) that defendant\u2019s entire statement was recorded and no changes, additions, or deletions have since been made; and (7) the custody and manner in which the recording has been preserved since it was made. Annot., 58 A.L.R. 2d 1024 \u00a7\u00a7 4 and 8 and cases therein cited; 29 Am. Jur. 2d Evidence \u00a7 436 (1967).\n279 N.C. at 17, 181 S.E. 2d at 571.\nWe have examined the trial transcript and determined that the trial court found that a proper foundation had been laid in this case. State v. Lynch, 279 N.C. 1, 181 S.E. 2d 561 (1971).\nAlthough defendant\u2019s brief refers to the tape recorded statement as \u201ca tape recorded statement of the defendant,\u201d the transcript shows that this recorded statement was not from defendant, but rather from one of the prosecution\u2019s witnesses. The State wanted the tape recording admitted into evidence for corroborative purposes. The trial court determined that most of the statement was corroborative but ordered that an end portion of the tape not be played to the jury because it was not corroborative. Defendant has not shown, and we did not find, any evidence that the deleted portion was relevant to the case. Clearly, the exclusion of an incompetent portion of a statement is not erroneous and does not amount to an improper \u201cdeletion\u201d of a recorded statement. To hold otherwise would mean that either an entire statement must be admitted even though it contains incompetent material or that an entire statement must be excluded if it contains any incompetent material. The assignment of error is overruled.\nSixth, defendant contends that the trial court erred in denying his motion \u201cto dismiss first-degree murder charges against him at the close of the State\u2019s evidence and at the close of all of the evidence,\u201d because there was not sufficient evidence of premeditation and deliberation.\nIn State v. DeMai, 227 N.C. 657, 44 S.E. 2d 218 (1947), this Court held that a defendant convicted of murder in the second degree is not entitled to a new trial for any errors committed in the trial court\u2019s instructions to the jury on murder in the first degree \u201cin the absence of showing that the verdict of second degree murder was thereby affected.\u201d Id. at 662, 44 S.E. 2d at 221 (emphasis added). In relying on DeMai, this Court reached a similar result in State v. Casper, 256 N.C. 99, 102, 122 S.E. 2d 805, 807 (1961), cert. denied, 376 U.S. 927, 84 S.Ct. 691, 11 L.Ed. 2d 622 (1964) where a defendant contended it was error for the trial court to refuse to instruct the jury that in no event could it return a verdict of guilty of murder in the first degree. The Court held that because the jury convicted the defendant of murder in the second degree, the conviction on the lesser offense \u201crendered harmless any error with respect to a higher offense.\u201d Id., citing State v. DeMai, 227 N.C. 657, 44 S.E. 2d 218 (1947). The Court also applied the DeMai reasoning in State v. Mangum, 245 N.C. 323, 330-31, 96 S.E. 2d 39, 45 (1957), in holding that the trial court\u2019s denial of defendant\u2019s motion to instruct the jury to disregard the charge of murder in the second degree was \u201cimmaterial\u201d when defendant was convicted of the lesser offense of manslaughter.\nIn the case at bar, defendant contends that there was not sufficient evidence of premeditation and deliberation. We note that the difference between murder in the first degree and murder in the second degree is that premeditation and deliberation are essential elements of only murder in the first degree. See, e.g., State v. Meadows, 272 N.C. 327, 331, 158 S.E. 2d 638, 641 (1968). Because the jury convicted defendant of murder in the second degree, thereby impliedly finding that the killing was without premeditation and deliberation, and in the absence of any showing that the verdict of murder in the second degree was thereby affected, we hold that any error the trial court may have committed in submitting the charge of murder in the first degree to the jury was not prejudicial. State v. Williams, 288 N.C. 680, 699, 220 S.E. 2d 558, 571 (1975); State v. Casper, 256 N.C. 99, 102, 122 S.E. 2d 805, 807 (1961), cert. denied, 376 U.S. 927, 84 S.Ct. 691, 11 L.Ed. 2d 622 (1964); State v. Mangum, 245 N.C. 323, 96 S.E. 2d 39, 45 (1957); State v. DeMai, 227 N.C. 657, 44 S.E. 2d 218 (1947).\nSeventh, defendant contends that the prosecutor\u2019s statements to the jury in his closing argument constitute reversible error. We hold that they do not. At one point the prosecutor remarked that defense counsel \u201cwill have the last argument because they did not put on any evidence. . . .\u201d We agree with the Court of Appeals\u2019 decision in State v. Miller, 32 N.C. App. 770, 233 S.E. 2d 662, cert. denied, 292 N.C. 733, 235 S.E. 2d 787 (1977), that such a remark is not prejudicial error. Defendant also complains about the following: in his closing argument the prosecutor discussed portions of the evidence and noted that particular pieces of evidence had not been contradicted. We held in State v. Smith, 290 N.C. 148, 165-68, 226 S.E. 2d 10, 20-22, cert. denied, 429 U.S. 932, 97 S.Ct. 339, 50 L.Ed. 2d 301-02 (1976), that this was not improper.\nEighth, defendant contends that the trial court erred in failing to instruct the jury that they could find defendant not guilty. We note that the trial court did instruct the jury that they could find defendant not guilty. The trial court stated, \u201cat this time your only concern is to determine whether the defendant is guilty of the crime charged or any lesser included offense about which you are instructed.\u201d Immediately thereafter he stated at least four times in various portions of the jury instructions themselves that one of the possible verdicts the jury could return was not guilty. Indeed, we note that the verdict of \u201cnot guilty\u201d was an option printed on the verdict sheet submitted to the jury. As this Court has stated many times before, jury instructions must be construed contextually in determining whether prejudicial error has been committed. E.g., State v. Jones, 294 N.C. 642, 653, 243 S.E. 2d 118, 125 (1978); State v. Cook, 263 N.C. 730, 734, 140 S.E. 2d 305, 309 (1965). We find no error here.\nDefendant contends in his next three assignments of error that the following statements which the trial court made to the jury were erroneous: (1) after defining the first element of \u201csecond degree murder while in the perpetration of a felony\u201d the trial court said, \u201c. . . and so you\u2019ve got that verdict\u201d before explaining the second element; (2) suggesting that the jurors \u201cstart at the top of the verdict sheet and move down\u201d in their deliberations; and (3) telling the jurors before their sequestration that \u201cIt is best not even to think about this case between now and in the morning.\u201d It suffices to say that we have examined the transcript and find that the first statement is not erroneous when read in context. E.g., State v. Jones, 294 N.C. 642, 653, 243 S.E. 2d 118, 125 (1978). The second statement suggesting that the jurors \u201cstart at the top of the verdict sheet and move down\u201d was entirely appropriate. The third statement admonishing the jurors not to think about the case was entirely appropriate under N.C.G.S. 15A-1236(a)(1)-(5) (Cum. Supp. 1981). The trial court is required, at appropriate times, to admonish jurors that they are not allowed, among other things, to discuss the case with others or form an opinion as to defendant\u2019s guilt or innocence prior to retiring to deliberate on their verdict.\nDefendant also contends that the trial court erred in stating to the jury after over ten hours of deliberation, \u201cAll right, I\u2019m going to leave you in there for ten minutes. Let the jury go back to the jury room for ten minutes.\u201d Defendant claims this statement amounted to coercion of a jury verdict. We cannot agree. We note the trial court\u2019s statement was made after the jury foreman was unable to tell the judge whether she felt the jury would be able to reach a unanimous verdict. The colloquy was as follows:\nCOURT: O.K. Madame Foreman, will you please rise. I want to ask you a series of questions again, and I want a yes or no answer, if you would please. First, are you making any progress? Yes or no, to the best you know.\nForeman: Yes.\nCOURT: Second, has the verdict changed in any way in the last hour and a half?\nForeman: No.\nCOURT: So, you\u2019re (sic) answer is no?\nFOREMAN: Since we got that paper, no, not since we got that paper.\nCOURT: So I take it your vote count is the same?\nForeman: Yes.\nCOURT: Now you have been deliberating for almost eleven hours. Do you feel that you will be able to reach a unanimous verdict? Or, it\u2019s hard to say?\nFOREMAN: Hard to say.\nCOURT: I sort of put you on the spot and for that I apologize. I sorta (sic) need to know.\nForeman: Pardon?\nCOURT: I sort of need to know the answer.\nForeman: Yes.\nCOURT: All right, I\u2019m going to leave you in there for ten minutes. Let the jury go back to the jury room for ten minutes.\nWhen the trial judge\u2019s statement is read in context, it appears that he was sending the jurors back to the jury room for ten minutes so that they could decide if they felt that at some point they could reach a unanimous verdict. Instead of determining if they would be able to reach a verdict, the jurors reached a verdict. There is no error here.\nFinally, defendant contends that the trial court erred in considering as an aggravating factor, under N.C.G.S. 15A-1340.4(a)(1) (c) (Cum. Supp. 1981), that the murder was committed \u201cfor pecuniary gain\u201d because there is no evidence to support this finding. This argument is without merit. There is ample evidence that defendant snatched a purse and was running away when he shot the victim. Although defendant dropped the purse before he shot the victim, his entire course of conduct clearly was \u201cfor pecuniary gain.\u201d In addition, defendant complains that this aggravating factor cannot be used for a second reason: it is an essential element of the \u201csecond-degree felony-murder\u201d conviction. We need not address this argument because we are arresting judgment on that conviction.\nIn conclusion, therefore, we find no error in the determination of guilt on the charge of murder in the second degree. We must, however, vacate defendant\u2019s sentence and remand the case to the Superior Court of Columbus County for resentencing.\nThe result is:\n(1) The guilty verdict of felony murder in the second degree is set aside and the judgment thereon is\nArrested.\n(2) No error in the guilt phase on the charge of murder in the second degree.\n(3) Sentence vacated and case\nRemanded for new sentencing hearing upon the conviction of murder in the second degree.", "type": "majority", "author": "FRYE, Justice." } ], "attorneys": [ "Rufus L. Edmisten, Attorney General, by Richard H. Carlton, Assistant Attorney General, for the State.", "William J. Williamson of Whiteville for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. JIMMY GRIFFIN\nNo. 413A82\n(Filed 3 May 1983)\n1. Homicide \u00a7\u00a7 5, 21.7\u2014 second degree murder in perpetration of felony \u2014 no such offense \u2014 sufficient evidence of second degree murder\nThe jury\u2019s verdict of guilty of murder in the second degree in the perpetration of a felony must be set aside since there is no offense of felony murder in the second degree in North Carolina. However, the jury\u2019s verdict also finding defendant guilty of murder in the second degree was supported by evidence tending to show that the victim was shot by defendant while chasing defendant after defendant had stolen a purse from a car.\n2. Homicide \u00a7 31.7\u2014 remand for proper sentence for second degree murder\nWhere the jury found defendant guilty of murder in the second degree and guilty of second degree murder in the perpetration of a felony, the trial court indicated on its judgment and commitment sheet that defendant was found guilty of two separate offenses, the verdict of guilty of second degree murder in the perpetration of a felony must be set aside since no such offense is recognized in North Carolina, and where it is unclear whether for sentencing purposes the trial court treated defendant\u2019s conviction of murder in the second degree as a single conviction under two theories or as two separate convictions, the case must be remanded to the superior court for resentencing on the valid second degree murder conviction.\n3. Criminal Law \u00a7 111.1\u2014 initial instruction to prospective jurors \u2014 failure to mention not guilty verdict\nThe trial court did not express an opinion in violation of G.S. 15A-1222 or G.S. 15A-1213 in its initial statement to prospective jurors that it was their duty to determine \u201cwhether the defendant is guilty of the crime charged, or any lesser included offense, about which you are instructed\u201d and in failing to mention that they could find defendant not guilty, although it would be the better practice to state explicitly to prospective jurors that it is their duty to determine whether defendant is guilty or not guilty.\n4. Criminal Law \u00a7 102.5\u2014 improper questions by prosecutor \u2014cure of impropriety\nImpropriety in the prosecutor\u2019s reference to the subject as the defendant on three occasions when the subject had not been identified as the defendant by the witness was cured when the court sustained defendant\u2019s objection on all three occasions and on the third occasion admonished the prosecutor in the absence of the jury.\n5. Criminal Law \u00a7 99.7\u2014 ordering hostile witness to testify\nThe trial court did not err in ordering a hostile witness to answer a question within his knowledge.\n6. Homicide \u00a7 28.1\u2014 self-defense \u2014 no duty to instruct\nThe trial court in a homicide case did not err in failing to instruct the jury on self-defense where the only evidence remotely connected to the issue of self-defense was evidence that the victim had grabbed defendant\u2019s arm in trying to apprehend him for having snatched a purse and that the defendant had made a broad statement while in prison to the effect that he had to kill the victim or else the victim would have killed him, and where there was no evidence that the 53-year-old victim was armed or had threatened defendant in any way.\n7. Criminal Law \u00a7 70\u2014 tape recording \u2014 deletion of incompetent portion\nThe trial court did not err in the deletion of an incompetent portion of a prosecution witness\u2019s tape recorded statement which was admitted for corroborative purposes.\n8. Homicide \u00a7 32.1\u2014 submission of first degree murder \u2014 error cured by second degree verdict\nAny error in the trial court\u2019s submission of an issue as to defendant\u2019s guilt of first degree murder because the evidence was insufficient to show premeditation and deliberation was not prejudicial where the jury convicted defendant of second degree murder, thereby impliedly finding that the killing was without premeditation and deliberation, and where there was no showing that the verdict of second degree murder was affected by such error.\n9. Criminal Law \u00a7 102.6\u2014 jury argument \u2014 last argument by defense counsel \u2014 uncontradicted evidence\nThe prosecutor\u2019s statements in his closing jury argument that defense counsel \u201cwill have the last argument because they did not put on any evidence\u201d and that particular pieces of evidence had not been contradicted were not improper.\n10. Criminal Law \u00a7 111.1\u2014 propriety of certain instructions\nThe trial court in a homicide case did not err in suggesting that the jurors \u201cstart at the top of the verdict sheet and move down\u201d in their deliberations or in telling the jurors before their sequestration that \u201cIt is best not even to think about this case between now and in the morning.\u201d G.S. 15A-1236(a)(l)-(5).\n11. Criminal Law \u00a7 122.2\u2014 sending jury back to jury room for 10 minutes \u2014 no coercion of verdict\nThe trial court did not coerce a verdict in stating to the jury after over 10 hours of deliberation, \u201cAll right, I\u2019m going to leave you in there for 10 minutes. Let the jury go back to the jury room for 10 minutes,\u201d where the statement was made after the jury foreman was unable to tell the court whether she felt the jury would be able to reach a unanimous verdict, it appears that the court was sending the jurors back to the jury room for 10 minutes so that they could decide if they felt that at some point they could reach a unanimous verdict, and instead of determining if they would be able to reach a verdict, the jurors reached a verdict within such time.\n12. Criminal Law \u00a7 138\u2014 sentence for second degree murder \u2014 pecuniary gain aggravating factor\nIn imposing a sentence for second degree murder, the evidence was sufficient to support the trial court\u2019s finding as an aggravating factor that the murder was committed for pecuniary gain where it tended to show that defendant snatched a purse and was running away when he shot the victim, although defendant had dropped the purse before he shot the victim. G.S. 15A-1340.4(a)(l)(c).\nDEFENDANT was convicted during the 15 March 1982 criminal session of Superior Court, COLUMBUS County, of murder in the second degree and murder in the second degree while in the perpetration of a felony. Judge Edwin S. Preston, Jr. ordered that defendant be imprisoned for life for the two convictions. Defendant appeals to this Court as a matter of right under G.S. 7A-27(a) (1981).\nRufus L. Edmisten, Attorney General, by Richard H. Carlton, Assistant Attorney General, for the State.\nWilliam J. Williamson of Whiteville for defendant-appellant." }, "file_name": "0303-01", "first_page_order": 339, "last_page_order": 353 }