STATE of North Carolina
v.
James Barry HAITH.
No. 8018SC105
Court of Appeals of North Carolina.
August 19, 1980.*208 Atty. Gen. Rufus L. Edmisten by Sp. Deputy Atty. Gen. Charles J. Murray, Raleigh, for the State.
Public Defender Wallace C. Harrelson, Greensboro, for defendant-appellant.
CLARK, Judge.
Defendant's first assignment of error is that the court erred in failing to charge the jury that they could find the defendant guilty of involuntary manslaughter. In State v. Wrenn, 279 N.C. 676, 681, 185 S.E.2d 129, 132 (1971), Mr. Justice Huskins, writing for the Court, explained:
"Where, under the bill of indictment, it is permissible to convict defendant of a lesser degree of the crime charged, and there is evidence to support a milder verdict, defendant is entitled to have the different permissible verdicts arising on the evidence presented to the jury under proper instructions. [Citations omitted.] Erroneous failure to submit the question of defendant's guilt of lesser degrees of the same crime is not cured by a verdict of guilty of the offense charged because, in such case, it cannot be known whether the jury would have convicted of a lesser degree if the different permissible degrees *209 arising on the evidence had been correctly presented in the court's charge.. . ."
Our task, then, is to determine whether the evidence would support a charge on involuntary manslaughter. "Involuntary manslaughter is the unlawful killing of a human being without malice, without premeditation and deliberation, and without intention to kill or inflict serious bodily injury." State v. Wrenn, supra, 279 N.C. at 682, 185 S.E.2d at 182. "[O]ne who points a loaded gun at another, though without intention of discharging it, if the gun goes off accidentally and kills," commits involuntary manslaughter. State v. Coble, 177 N.C. 588, 591, 99 S.E. 339, 341 (1919); State v. Boldin, 227 N.C. 594, 42 S.E.2d 897 (1947). Similarly, "`[w]here one engages in an unlawful and dangerous act, such as "fooling with an old gun," i.e., using a loaded pistol in a careless and reckless manner, or pointing it at another, and kills the other by accident, he would be guilty of an unlawful homicide or manslaughter. (Citations omitted)'" State v. Stimpson, 279 N.C. 716, 724, 185 S.E.2d 168, 173 (1971).
Defendant cites the following testimony by defendant as evidence that the firing of the gun by defendant was without intention to kill or without intention to inflict serious bodily injury:
"I got a weapon because I was going back over to get my fiancee."
"Well, as I clicked it, he must have realized I had it because he tried to run back and that's when he slipped and the revolver went off."
"I fired this gun because I was scared for my life. I did not have any intention of killing Johnny Shoffner. I fired the shot downward."
"I am telling this Court and this jury that I was afraid of Johnny Shoffner. I didn't stay home because I went to get my fiancee."
"When I got outside I intended to go over to Deedee's. I didn't go because he was coming at me."
"No, I didn't aim right at him. I aimed downward. It was done more or less at his legs and the concrete."
The State, on the other hand, argues that, by taking excerpts from the defendant's testimony out of context, the defendant attempts to establish that there is evidence to show that the defendant did not intentionally pull the trigger, that it was an accident, or that he did not aim at the victim. The State argues that the defendant's own evidence shows that he intentionally pulled the trigger of the revolver and at the very least he aimed the revolver at the victim's legs thereby intending to inflict serious bodily injury. In addition, the State emphasizes the following testimony by defendant:
"I did not shoot the man after he had turned and was leaving and running from me. I shot him, and he was coming towards me when he slipped on the ice. He was still in pursuit of coming to me. Yes, he was in pursuit of coming to me. Yes, coming right at me. He fell down, fell forward. And that's when I shot him. I tried to shoot him the first time when he was about four steps from my door. I am telling this Court and this jury that I shot and killed Johnny Shoffner about a half door down in front of my front door.. . ." (Emphasis supplied.)
Earlier in his testimony, defendant also stated:
"When he got about five or steps away, at that position, he was more or less left and off balance because he couldn't get his foot. At the time he was going to get me, that's when I took out the revolver. I took out the revolver. The revolver was pointed down whereit was at a level of my waist. I had pulled it out and I had it right up in here. I clicked it twice. Well, as I clicked it, he must have realized I had it because he tried to run back and that's when he slipped and the revolver went off. I pulled the revolver three times. To show His Honor and the members of the jury what position he was in at the time I fired the third shot when it went off, he was more or lesshe was trying to turn but he had slipped on the ice. . . ." [Emphasis supplied.]
*210 We agree with the State. In this case there is no evidence that the defendant did not intend to pull the trigger. In fact, he intended to pull the trigger three times. Furthermore, defendant deliberately pointed the gun at the deceased, at the very least, in the direction of deceased's legs. This is not the case where, for example, the gun went off while the defendant and victim were fumbling with the gun, State v. Davis, 15 N.C.App. 395, 190 S.E.2d 434 (1972): where the gun went off when the deceased grabbed a gun lying across defendant's knees, State v. Foust, 258 N.C. 453, 128 S.E.2d 889 (1963); where the defendant threw up a gun and it went off, State v. Graham, 38 N.C.App. 86, 247 S.E.2d 300 (1978); or where the defendant "fired his pistol away from [the deceased]" and did not intend to "shoot at, near, or in the direction of the deceased," State v. Ward, 300 N.C. 150, 156, 266 S.E.2d 581, 585 (1980). This assignment of error is overruled.
Defendant's next argument is that the trial court erred in allowing the District Attorney to cross-examine him concerning a bag of marijuana allegedly found on defendant's person at the time of his arrest. We do not agree. "A defendant who elects to testify in his own behalf surrenders his privilege against self-incrimination and knows he is subject to impeachment by questions relating to specific acts of criminal and degrading conduct. Such cross-examination for impeachment purposes is not limited to conviction of crimes but encompasses any act of the witness which tends to impeach his character. (Citations omitted.)" State v. McKenna, 289 N.C. 668, 684, 224 S.E.2d 537, 548 (1976). The marijuana was properly introduced for impeachment purposes.
The defendant next contends that the trial court erred in allowing testimony for corroborative purposes when it did not corroborate the witnesses or their testimony and was highly prejudicial. In this argument defendant refers to the testimony of Officer Hutchins that related to an out-of-court statement by a previous State witness, George Foust. In particular, defendant objects to the officer's statement that Mr. Foust told him that he heard the gun click three times, and that the deceased threw his hands up in the air and said, "You've got me, man, I don't have a gun." Officer Hutchins also stated that Foust had told him that "on the fourth time the gun clicked that it discharged." Assuming that this statement was not corroborative, we fail to see how this evidence was prejudicial to the defendant since the defendant himself said that he pulled the trigger three times, as did defendant's niece and Foust. Similarly, while it is true that Foust did not testify on direct examination as to what the deceased said when he threw up his hands, David Holt did so testify, and since Holt was impeached by defendant, the fact that Foust had repeated the same statement to Officer Hutchins would be corroborative of Holt's statement. Furthermore, given the strength of the State's case, with three eyewitnesses, we fail to see how the trial court's error, if any, would change the outcome of defendant's trial. N.C.Gen.Stat. § 15A-1433(a).
The final argument presented by defendant is that the trial court erred in allowing the District Attorney to cross-examine the defendant as to whether he told the officer, while making a statement in custody, that he was acting to protect himself from attack by the deceased. That statement by defendant provides in relevant part:
"Johnny came from around the corner saying he was going to get me. I then went into the house and got a .22 caliber pistol and came back out. He, Johnny, kept on running his mouth about he was going to get me, and he took off running and I shot at him one time and that was it. I then went back into the house. This statement is of my own free will and I have been advised of my rights, and I understand them. No pressure or coercion of any kind has been used against me."
This statement was prepared by Detective D. L. DeBarry, was witnessed by Officers DeBarry and Summers, and was initialed and signed by the defendant. At trial, *211 while cross-examining the defendant, the prosecutor attempted to impeach defendant for asking the following questions concerning his statement:
"Q. Didn't say anything at all to the officers about calling out or going back over there because you were concerned about her welfare?
MR. HARRELSON: OBJECTION.
THE COURT: OVERRULED.
A. No, sir.
Q. You didn't say a word about Johnny Shoffner coming at you, did you?
A. I don't remember.
* * * * * *
Q. You never told either of these officers investigating this crime that you shot this man in self-defense while you were in fear for your life, did you?
A. I don't remember."
There is no doubt that the questions submitted by the prosecutor do not violate the Fifth or Fourteenth Amendments to the United States Constitution. Very recently, in Jenkins v. Anderson, ___ U.S. ___, ___, 100 S.Ct. 2124, 2130, 65 L.Ed.2d 86 (1980), the United States Supreme Court held that "[t]he use of prearrest silence to impeach a defendant's credibility does not violate the Constitution." The majority opinion, however, explicitly noted that it did "not force any state court to allow impeachment through the use of prearrest silence." Id. We hold that under the facts of this case that the above questions proffered by the prosecutor also do not violate Article 1, Sections 19 or 23 of the North Carolina Constitution. We note that defendant not only waived his right to remain silent by making a statement to the police officers while he was in custody and after he had been informed of his rights, but also chose to take the stand at trial and to testify in his behalf. We emphasize that we do not reach the determination of whether the North Carolina Constitution would permit questioning as to prearrest silence in the fact situation presented in Jenkins, supra. See, e.g., State v. McCall, 286 N.C. 472, 482-487, 212 S.E.2d 132, 138-141 (1975), and State v. Castor, 285 N.C. 286, 204 S.E.2d 848 (1974). Similarly, for the reasons expressed by the dissents of Mr. Justice Marshall and Mr. Justice Brennan in Jenkins, supra, ___ U.S. at ___, 100 S.Ct. at 2132, we expressly refuse to hold that the North Carolina Constitution will permit, under all circumstances, that a criminal defendant who testifies in his own behalf may be impeached by some form of his prearrest silence.
No error.
MORRIS, C. J., and ERWIN, J., concur.