State v. Plemmons, 223 S.E.2d 549 (NC Ct. App. 1976)



No. 7529SC973


29 N.C. App. 159; 223 S.E.2d 549; 1976 N.C. App. LEXIS 2401


March 17, 1976, Heard in the Court of Appeals

April 7, 1976, Filed



Attorney General Edmisten, by Associate Attorney Norma S. Harrell, for the State.

Dameron and Burgin, by Charles E. Burgin, for defendant appellant.


JUDGES: Morris, Judge.  Judges Hedrick and Arnold concur.





Defendant first contends that the trial court erred in excluding Mrs. Plemmons’s testimony that “‘somebody hollered and said come back here.'” Defendant asserts that this testimony went to the purported issue of self-defense and “. . . should have been allowed into evidence to be considered by the jury for whatever weight the jury cared to give it.” We find no merit to this contention.  The record clearly indicates that this information was already before the jury, having been brought forward by defendant’s own testimony, and thus the trial court’s  error, if any, in excluding that portion of Mrs. Plemmons’s testimony must be deemed harmless.

Defendant also argues that the trial court erred in failing to declare a mistrial when the district attorney brought to the attention of the jury the fact that a codefendant, Richard Smith, had previously been convicted of the same charge for which the defendant was being tried.  Defendant, moreover, assigns as error the failure of the trial court to give a detailed warning to the jury to disregard this particular question and answer.  We disagree.

Here there was but one instance where this other conviction was brought to the jury’s attention and when the trial court heard the district attorney’s single and isolated objectionable reference to Smith’s conviction, it promptly sustained the defendant’s objection and immediately advised the jury “. . . not to consider that question or answer. . . .” We believe this warning, under these circumstances, sufficiently met the requirements of the law with respect to the extent of detail required when warning the jury and rendered the remark harmless and nonprejudicial. See: 48 A.L.R. 2d 1016, Prejudicial Effect of Prosecuting Attorney’s Argument or Disclosure During Trial That Another Defendant Has Been Convicted or Has Pleaded Guilty.” Cf: State v. Kerley, 246 N.C. 157, 97 S.E. 2d 876 (1957); State v. Atkinson, 25 N.C. App. 575, 214 S.E. 2d 270 (1975).

Finally, defendant contends that the trial court erred in failing to grant defendant’s request for instructions on the law of self-defense. Again we disagree.

“‘The right of self-defense is available only to a person who is without fault, and if a person voluntarily, that is, aggressively and willingly, without legal provocation or excuse, enters into a fight, he cannot invoke the doctrine of self-defense unless he first abandons the fight and withdraws from it and gives notice to his adversary that he has done so.'” State v. Watkins, 283 N.C. 504, 511, 196 S.E. 2d 750 (1973). (Citation omitted.)

Here defendant never abandoned the fight and never withdrew. He simply drove off a short distance out of sight of Noblitt and then stepped from his car and shot the victim.  An instruction on self-defense was not warranted by the evidence, and the court properly omitted it from his charge.

No error.

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