State v. Allmond

217 S.E.2d 734 (1975)

27 N.C. App. 29

STATE of North Carolina v. Dexter Lane ALLMOND.

No. 7519SC344.

Court of Appeals of North Carolina.

September 3, 1975.

*736 Atty. Gen. Rufus L. Edmisten by Associate Atty. Gen. George J. Oliver, Raleigh, for the State.

William H. Heafner, and Bell, Ogburn & Redding by Deane F. Bell, Asheboro, for defendant appellant.

PARKER, Judge.

Defendant first contends the trial judge erred by not limiting the number of photographs of the deceased introduced into evidence by the State. Five photographs were used to illustrate the testimony of an expert medical witness as to the cause of death. We find no error in the trial judge's ruling. Photographs which are relevant and properly authenticated are admissible in evidence for the purpose of illustrating or explaining the testimony of a witness. State v. Atkinson, 275 N.C. 288, 167 S.E.2d 241 (1969). If the photograph is relevant and material, the fact that it is gory or gruesome will not alone render it inadmissible. State v. Chance, 279 N.C. 643, 185 S.E.2d 227 (1971). Here, all of the photographs were relevant, served a useful and proper purpose, and were properly admitted.

Defendant assigns as error the exclusion of evidence concerning threats made by Marsh against defendant, the specific act of violence by Marsh against defendant in pointing a gun at his head, the fact that Marsh had a gun hidden outside at the time of the shooting, and the reputation of Marsh as a vicious man. It is true that upon a proper showing that the accused in a homicide case may have acted in self-defense, the jury is entitled to hear and evaluate evidence of uncommunicated threats, State v. Goode, 249 N.C. 632, 107 S.E.2d 70 (1959); communicated threats, State v. Rice, 222 N.C. 634, 24 S.E.2d 483 (1943); specific acts of violence, State v. Johnson, 270 N.C. 215, 154 S.E.2d 48 (1967); and evidence of the general character of the deceased as a violent and dangerous man, State v. Johnson, supra. However, as a condition precedent to the admissibility of such evidence, the defendant must first present viable evidence of the necessity of self-defense. "[T]here must be evidence. . . that the party assailed believed at the time that it was necessary to kill his adversary to prevent death or great bodily harm, before he may seek refuge in the principle of self-defense, and have the jury pass upon the reasonableness of such belief." State v. Rawley, 237 N.C. 233, 237, 74 S.E.2d 620, 623 (1953). Defendant's evidence essentially established that although he had been previously threatened and was perhaps justified in his fear that Marsh might at some time attempt to kill him, he deliberately entered the building for the purpose of shooting Marsh and then proceeded to shoot and kill an unarmed man who was not then immediately attacking him or even in a position to do so. Clearly, at the time of the shooting the deceased was neither actually presenting any threat of imminent harm to the defendant nor did he appear to be doing so. "A defendant, when acting in his proper self-defense, may use such force only as is necessary, or as reasonably appears to him at the time of the fatal encounter to be necessary, to save himself from death or great bodily harm." *737 (Emphasis added.) State v. Fowler, 250 N.C. 595, 598, 108 S.E.2d 892, 894 (1959).

Although the excluded evidence was not admissible to show self-defense, some or all of it might have been competent as evidence of passion or heat of blood produced by reasonable provocation, which evidence may reduce a charge of second-degree murder to manslaughter. However, the jury found defendant guilty only of voluntary manslaughter even without the benefit of this excluded evidence. Thus any error in the exclusion of this evidence as it related to the degree of the crime was nonprejudicial.

Defendant also assigns as error the exclusion of testimony concerning the emotional state of defendant's father and the deceased when they were engaged in conversation on the night of the shooting. Clearly, this testimony was irrelevant to any issue properly in this case and there was no error in the exclusion of this evidence.

We find no error in defendant's trial. We note, however, that the prison sentence of thirty years imposed on defendant was excessive. The statutory punishment for the crime of voluntary manslaughter is imprisonment for not less than four months nor more than twenty years. G.S. § 14-18. Accordingly, the judgment is vacated and this case is remanded to the Superior Court in Randolph County for the purpose of entry of judgment imposing a sentence within statutory limits.

Remanded for judgment.

BROCK, C. J., and ARNOLD, J., concur.