State v. Neagle

BRITT, Judge. Defendant assigns as error the admission of certain testimony by the witness Eddie Dean Smith on the ground that the testimony constituted an in-court identification of defendant without a voir dire determination of its admissibility. The assignment has no merit. Smith testified that on the night in question, at about 10:00 p.m., he went to Smitty’s Place where he observed a Ford LTD in the parking lot; that the lot was well lighted and he saw two people, one of whom was the defendant. He then proceeded to testify with respect to defendant raising the hatchet in the air, the two men shaking hands, going off in the car together, returning some ten minutes later, and defendant striking Mason in the face with the hatchet, dragging him out of the car and leaving him face up on the ground. While many cases can be cited to support our holding on this assignment, State v. Cox, 281 N.C. 275, 188 S.E. 2d 356 (1972), appears to be directly on point. In Cox, the Supreme Court held that the trial court did not err in denying defendant’s motion for a voir dire examination to determine the admissibility of a police officer’s in-court identification where no evi [311] dence indicated that the officer had previously identified the defendant in a pretrial lineup or confrontation. In the case at bar there was no evidence of any pretrial lineup or confrontation between the witness Smith and defendant. Defendant assigns as error the admission of evidence tending to show that he threatened Debra Tarlton if she did not give testimony that was favorable to him. We find no merit in this assignment. In State v. Minton, 234 N.C. 716, 723, 68 S.E. 2d 844, 849 (1952), cited by defendant, the court, speaking through Justice Ervin, said: “ . . . An attempt by an accused to induce a witness to testify falsely in his favor may be shown against him. Such conduct indicates a consciousness on his part that his cause cannot rest on its merits, and is in the nature of an admission that he is wrong in his contention before the court. (Citations.)” The assignment of error which defendant seems to stress most is that the trial court erred in not charging the jury on self-defense. We find this assignment without merit. Admittedly, G.S. 1-180 requires the trial court to “declare and explain the law arising on the evidence given in the case.” Failure of the court to instruct the jury on substantive features of the case arising on the evidence is prejudicial error, even in the absence of a request for special instructions. State v. Hornbuckle, 265 N.C. 312, 144 S.E. 2d 12 (1965). While recognizing these principles, we do not think there was sufficient evidence of self-defense in the instant case to require jury instructions on that question. The record discloses only three eyewitnesses to the killing— Eddie Dean Smith, Debra Tarlton, and defendant. Smith and Tarlton gave no testimony that tended to show self-defense and defendant’s testimony was that he was intoxicated and remembered nothing about the occurrence. It is true that Debra admitted she told investigating officers that Mason was swinging at defendant with a bottle, and that defendant acted in self-defense, but she completely repudiated that statement at trial, asserting that it resulted from defendant’s intimidation. In State v. Absher, 226 N.C. 656, 40 S.E. 2d 26 (1946), the court held that where defendant testified that he became so intoxicated that he had no recollection of anything that happened for some time prior and subsequent to the homicide, the trial judge was not required to submit to the jury the question [312] of self-defense, notwithstanding testimony on the part of the State’s witnesses that defendant knew what he was doing, since even the evidence that defendant knew what he was doing, standing alone, failed to lay the necessary predicate that defendant reasonably apprehended he was in danger of death or great bodily harm. Absher appears to present a stronger case for instructions on self-defense than the case sub judice. We have carefully considered the other assignments of error brought forward and argued in defendant’s brief but find them also to be without merit. We hold that defendant received a fair trial, free from prejudicial error. No error. Judges Vaughn and Arnold concur.