STATE of North Carolina
v.
Elwood GOODSON, Jr.
No. 157A94.
Supreme Court of North Carolina.
September 8, 1995.*742 Michael F. Easley, Attorney General by Charles M. Hensey, Special Deputy Attorney General, for the State.
Knox, Knox, Freeman & Brotherton by H. Edward Knox, Charlotte; Duke & Brown by John E. Duke; Jonathan S. Williams; and Adrian M. Lapas, Goldsboro, for defendant-appellant.
WEBB, Justice.
In his first assignment of error, the defendant argues two questions pertaining to evidence. He first says it was error for the court to exclude testimony as to the victim's reputation for violence.
The defendant contended that the killing in this case resulted from an accident. In State v. Winfrey, 298 N.C. 260, 258 S.E.2d 346 (1979), we held that evidence of a victim's violent character is irrelevant in a homicide case when the defense of accident is raised. The character of the deceased in such a case is not at issue. See also State v. McCray, 312 N.C. 519, 324 S.E.2d 606 (1985).
The Evidence Code, chapter 8C of the North Carolina General Statutes, became effective on 1 July 1984, after the trials of the *743 above two cases. N.C.G.S. § 8C-1, Rule 404 provides in part:
(a) Character evidence generally.Evidence of a person's character or a trait of his character is not admissible for the purpose of proving that he acted in conformity therewith on a particular occasion, except:
....
(2) Character of victim.Evidence of a pertinent trait of character of the victim of the crime offered by an accused....
N.C.G.S. § 8C-1, Rule 404 (Supp.1994). We do not believe this rule changes the law. We required before the rule was adopted that a character trait must be pertinent to be admissible. The rule does not define "pertinent," and we believe it left intact our rule which holds that the deceased's character is not pertinent in this case. It was not error to exclude this testimony.
The defendant next argues that it was error not to allow him or a highway patrolman to testify about the details of the victim's arrest for driving while impaired approximately two weeks before she was killed. He offered this evidence to rebut the State's evidence that there was ill will between him and his wife. The defendant was allowed to testify that he procured his wife's release and brought her home after she had been taken to jail for driving while impaired. This was the crucial testimony for defendant to prove he had good will toward his wife. The details as to how she was arrested were peripheral to what he was trying to prove. It was not error to exclude this testimony.
This assignment of error is overruled.
The defendant next assigns error to the court's definition of reasonable doubt in its preliminary instructions and in its charge to the jury. The defendant takes exception to the following instruction: "[A] reasonable doubt is not a vain or fanciful doubt.... Proof beyond a reasonable doubt is proof that fully satisfies or entirely convinces you of the defendant's guilt." The defendant, relying on Cage v. Louisiana, 498 U.S. 39, 111 S.Ct. 328, 112 L.Ed.2d 339 (1990), overruled by Victor v. Nebraska, 511 U.S. ___, 114 S.Ct. 1239, 127 L.Ed.2d 583 (1994), argues that this language lowers the standard for the State's burden of proof.
We find no error in these instructions. "Vain" is defined in Webster's Ninth New Collegiate Dictionary as "having no real value." Webster's Ninth New Collegiate Dictionary 1301 (1991). "Fanciful" is defined as "marked by fancy or unrestrained imagination rather than by reason and experience." Id. at 448. The court, by using the two adjectives to demonstrate what is not a reasonable doubt, did not increase the strength of the evidence necessary to create a reasonable doubt. "Fully" is defined in Webster's Ninth New Collegiate Dictionary as "in a full manner or degree; completely." Id. at 497. "Entirely" is defined as "to the full or entire extent; completely." Id. at 415. We do not believe the use of adverbs that mean the juror must be totally, wholly, and completely satisfied lowers the burden of proof to less than a reasonable doubt.
This assignment of error is overruled.
The defendant next assigns error to the charge of the court on accident. The court charged on accident immediately prior to giving its final mandate. At the end of the final mandate, the court charged that if the jury found the death was an accident, it should find the defendant not guilty. The defendant, relying on State v. Dooley, 285 N.C. 158, 203 S.E.2d 815 (1974), says that nearly two pages of the transcript are occupied by the final mandate as to the various degrees of homicide of which he could be found guilty, while there was only a passing reference to a verdict of not guilty by reason of accident. He says this was error.
The court correctly charged on accident immediately before giving the final mandate. It then referred to the defense of accident in the final mandate. We believe the jury must have understood the defense of accident. Dooley does not govern this case. In that case, the court did not charge in the final mandate that the jury should find the defendant not guilty if it found the defendant acted in self-defense. Dooley, 285 N.C. at 166, 203 S.E.2d at 820. We said, without a self-defense charge, the jury could have assumed a verdict of not guilty by reason of *744 self-defense was not a permissible verdict. Dooley, 285 N.C. at 166, 203 S.E.2d at 820. In this case, the jury was told in the final mandate that if the jury believed the death of the victim was caused by an accident, it would find the defendant not guilty.
This assignment of error is overruled.
The defendant next argues that he should have a new trial because of an improper jury argument by the prosecuting attorney. He concedes no objection was interposed when the argument was made, but he contends it was so egregious that the court should have intervened ex mero motu. State v. Howell, 335 N.C. 457, 439 S.E.2d 116 (1994).
The defendant says the prosecuting attorney asked the jurors to imagine themselves in the role of the victim, which was improper. He concedes there are no cases which so hold in this jurisdiction but cites cases from other jurisdictions. State v. White, 246 S.C. 502, 144 S.E.2d 481 (1965); McReynolds v. Commonwealth, 177 Va. 933, 15 S.E.2d 70 (1941).
The argument to which the defendant objects was as follows:
If you look at the facts, it is very hard to believe anything the defendant said. He doesn't mention anything at all to anybody about the gun being to her head in any fashion until he took the stand and then he tried to explain it away but you look at the facts and it is very hard to reconcile what the physical facts are in his version. They just don't fit. What it does fit, what the physical facts do fit is with some one [sic] being a driver, pulling out a gun and someone sitting up in an almost upright position and having the gun stuck to the left side of your head and someone to your left pulling the trigger twice and blowing a hole through your head all the way out the window.
(Emphasis added.) The defendant argues that the prosecuting attorney, by using the terms "your head" and "your left," asked the jurors to put themselves in the place of the victim.
Assuming the defendant is right in his contention that a prosecuting attorney may not ask jurors to place themselves in the position of the victim, we do not believe it was error for the court not to intervene ex mero motu. Nothing in the argument indicates that the prosecuting attorney sought to personalize the experience by assuming the role of the victim. The use of the word "your" could not have misled the jury. At worst, it was a lapsus linguae that did no harm.
State v. Williams, 317 N.C. 474, 346 S.E.2d 405 (1986), upon which the defendant relies, is not helpful to him. In that case, the prosecutor's argument was not based on the evidence, which is not so in this case.
This assignment of error is overruled.
The defendant also contends the prosecutor improperly utilized photographs introduced solely for the purpose of illustrating the medical examiner's testimony. The defendant asserts that during arguments, these photographs were employed to inflame the passions and prejudices of the jury.
The portion of the argument to which the defendant objects included:
Now what do the facts show. The facts show clearly, particularly when you look at the autopsy pictures, that and you look at the overall picture where on the left side of her head was the entrance wound which the doctor described as a contact wound. It comes out on the right side, which is depicted by this picture and you see a little bit more clearly in this picture where the bullet comes in a little bit over the ear, comes out over here a little bit above her ear on the right side and keeps going through the window which would indicate I would argue to you someone sitting up in the pickup truck, someone to your left with a gun that's pointed on the left side of their head and sticking it and pulling the trigger as he said twice.
"A prosecutor in a criminal case is entitled to argue vigorously all of the facts in evidence, any reasonable inference that can be drawn from those facts and the law that is relevant to the issues raised by the testimony." State v. Maynard, 311 N.C. 1, 14-15, 316 S.E.2d 197, 205, cert. denied, 469 U.S. 963, 105 S.Ct. 363, 83 L.Ed.2d 299 (1984); accord State v. *745 Quesinberry, 325 N.C. 125, 140, 381 S.E.2d 681, 691 (1989), sentence vacated, 494 U.S. 1022, 110 S.Ct. 1465, 108 L.Ed.2d 603 (1990), on remand, 328 N.C. 288, 401 S.E.2d 632 (1991). The photographs were admitted into evidence for illustrative purposes, and the medical examiner utilized them in describing how the bullet entered and exited the victim's skull. The prosecutor used the photographs for the same purpose and drew a reasonable inference as to the projectile's path based on this evidence. We find no error and certainly no error arising to the level of gross impropriety.
This assignment of error is overruled.
The defendant next assigns error to the failure of the court to strike the testimony of George Ratcher, a deputy sheriff who investigated the case. Deputy Ratcher testified that the defendant told him that after his wife was shot, he cradled her head as he drove her to the police station. The following colloquy then occurred:
Q. Now what do you recall Mr. Goodson saying concerning this shooting incident, sir?
A. ... It was noted that Goodson, although he said he craddled [sic] his wife, there was no significant amount of blood on his shirt.
Q. What do you mean no significant amount of blood?
A. ... In my professional opinion if he had held her or craddled [sic] her, I would think there would be quite a bit of blood on his shirt.
The defendant argues that this was improper testimony designed to impeach him by saying he was lying. He says that Deputy Ratcher had no personal knowledge upon which to make the statement and that Ratcher's "professional opinion" was based on nothing. This testimony by Deputy Ratcher was peripheral at best to the contested issues in the case. He recited only a truism which the jurors undoubtedly knew, that if the defendant cradled his wife's bloody head, he would have had blood on his shirt. Perhaps Deputy Ratcher should not have used the expression "in my professional opinion," but we are confident this expression had no effect on the jury.
This assignment of error is overruled.
The defendant's last assignment of error is to the denial of his motion to dismiss made at the close of the evidence and his motion to set aside the verdict. He says there was not sufficient evidence to support findings of premeditation and deliberation. If we were to hold there is not sufficient evidence of premeditation and deliberation, the defendant would not be entitled to have the case dismissed. He would be guilty of second-degree murder. State v. Fleming, 296 N.C. 559, 251 S.E.2d 430 (1979).
The defendant concedes there was sufficient evidence of an intent to kill. He says that the parties had been quarreling all night, and the only inference that can be drawn is that he shot his wife under a violent passion aroused by sufficient provocation. We do not believe there is any evidence in the case which shows sufficient provocation to arouse the passion of the defendant so that he could not form the intent to kill over some period of time, however short, or that he was not in a cool state of blood. The defendant was upset with his wife but not justifiably to the extent to excuse him of first-degree murder. State v. Patterson, 335 N.C. 437, 439 S.E.2d 578 (1994).
This assignment of error is overruled.
NO ERROR.