STATE of North Carolina
v.
Glenn Wood FORD.
No. 59.
Supreme Court of North Carolina.
April 20, 1979.*17 Atty. Gen. Rufus L. Edmisten and Asst. Atty. Gen. Isham B. Hudson, Jr., Raleigh, for the State.
Richard W. Gabriel, Greensboro, for defendant.
SHARP, Chief Justice.
Defendant's first assignment of error is that the court's denial of his motion "for disclosure of impeaching information" constituted a denial of his constitutional rights of due process. In this motion defendant requested that the State be ordered to disclose (1) all prosecutions, investigations or possible prosecutions which had been brought or which were pending against the State's prosecuting witness Larry Lee Smith; (2) "all records and information revealing felony convictions attributed to this witness"; and (3) "all records and information showing prior misconduct or bad acts committed by this witness."
We note first that North Carolina law does not grant defendant the right to discover the criminal record of a State's witness. This right did not exist at common law and G.S. 15A-903 does not grant the defendant the right to discover the names, addresses, or criminal records of the State's witnesses. See State v. Smith, 291 N.C. 505, 523, 231 S.E.2d 663, 674-5 (1976). The only issue, therefore, is whether the information which defendant sought from the prosecution was of such significance that the prosecutor's failure to disclose it resulted in the denial of the defendant's due process right to a fair trial. United States v. Agurs, 427 U.S. 97, 96 S. Ct. 2392, 49 L. Ed. 2d 342 (1976). The answer is most certainly No.
To establish a denial of due process defendant would have had to show (1) that Smith had a significant record of degrading or criminal conduct; (2) that the impeaching information sought was withheld by the prosecution; and (3) that its disclosure considered in light of all the evidence would have created a reasonable doubt of his guilt which would not otherwise exist. United States v. Agurs, supra at 112, 96 S.Ct. at 2401-2, 49 L.Ed.2d at 354-55. In this case, the defendant failed to show that the State knew of any criminal convictions against its witness Smith or that Smith, in fact, had any criminal record. Indeed, during his cross-examination of Smith defense counsel did not once ask him if he had ever been convicted of a violation of the law. Such an inquiry of course, would have been a proper subject for cross-examination. State v. Foster, 293 N.C. 674, 684-685, 239 S.E.2d 449, 456-7 (1977). Defendant's first assignment of error is overruled.
*18 Defendant's eighth assignment is that the court erred in overruling defendant's motion for judgment as of nonsuit made at the close of all the evidence. In his brief defendant "maintains" that no evidence in this case "can reasonably be construed to show an intentional killing with a deadly weapon." This assertion sets at naught the testimony of Larry Lee Smith, Connie Boykin, and Charles Lee Williams, which tended to show:
En route from The Paradise to the Clapp Street party defendant made an extremely obscene remark about the deceased Enoch, who was then sitting in the back seat of Smith's automobile with Connie Boykin. At the party defendant again expressed resentment toward Enoch when he ordered "a guy" who was disputing with Connie "not to be arguing with my woman." In consequence, Smith intervened to prevent a fight between Enoch and defendant. A few minutes later, Boykin and Williams saw defendant strike the drunken Enoch, who immediately slumped over a Plymouth automobile. When Smith went to investigate he found Enoch slumped against the car and defendant standing in front of him. In his hand defendant held an open knife with a blade three or four inches long. Defendant, who helped Smith put the bleeding Enoch in Smith's car, urged him to drive fast to the hospital because, he said, he had cut Enoch twice. In the emergency room, after it became apparent that Enoch's condition was serious, defendant said to Smith, "Look, man, don't say nothing."
This evidence was clearly sufficient to take the issue of defendant's guilt of second degree murder to the jury. The credibility of the State's and defendant's witnesses was for the jury and their decision was to accept the State's version of the knifing on Clapp Street. Defendant's eighth assignment of error is overruled.
We next examine defendant's 13th assignment of error, that the trial judge erred in denying defendant's motion for a recess to locate an allegedly newly discovered witness. Just prior to the judge's charge, after defendant had rested his case, he requested the court to grant a recess for the purpose of allowing him to locate Ricky Johnson. Defense counsel said that Ricky Johnson "is alleged to have been the occupant of the apartment on Clapp Street at which the party was held and in which the defense is informed was an eyewitness to this matter."
A motion to recess is addressed to the sound discretion of the trial judge, and nothing in the record of the case suggests that the judge abused his discretion in denying defendant's motion. The record shows that the defense attorney had been appointed six months before the trial. No subpoena had been issued for Ricky Johnson, whose presence at the party was well known to defendant's main witness, Kenneth Eugene Street, who testified that it was Ricky who broke up Connie Boykin's first argument after she arrived at the party. He did not, however, mention his presence in the street when he testified he saw Smith stab Enoch. It is hardly plausible that Street would have overlooked a witness who would have corroborated his testimony had one been available. Assignment No. 13 is overruled.
Defendant's assignment No. 14 challenges the court's failure to instruct the jury on the lesser included offense of voluntary manslaughter.
A trial judge's duty to instruct the jury as to a lesser included offense of the crime charged arises only when there is evidence from which the jury could find that the defendant committed the lesser offense. When there is no such evidence the court should refuse to charge on the unsupported lesser offense. State v. Hampton, 294 N.C. 242, 239 S.E.2d 835 (1978). In this case all the evidence tends to show that the person who stabbed Enoch intentionally assaulted him with a deadly weapon, the use of which proximately caused his death. This evidence was sufficient to raise the inference that the killing was unlawful and done with malice. State v. Berry, 295 N.C. 534, 246 S.E.2d 758 (1978); State v. Price, 271 N.C. 521, 157 S.E.2d 127 (1967). The record is devoid of any evidence tending to *19 show a killing in the heat of passion or the use of excessive force in the exercise of the right of self-defense. Defendant's evidence was to the effect that he never assaulted the deceased, but that the witness, Larry Lee Smith, was the killer. This evidence did not tend to raise the issue of malice or unlawfulness but to show that defendant was not the killer and thus not guilty of any crime. We hold, therefore, that there was no evidence to support the lesser included offense of manslaughter. See State v. Hampton, supra.
Defendant's remaining assignments disclose no prejudicial error and merit no discussion. We find no cause to disturb the jury's verdict.
No Error.
BROCK, J., did not participate in the decision of this case.