Appendix — Hankerson v. North Carolina
Supreme Court brief1977
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APPENDIX
Iu the Supreme Court of the Anited States
OctoBer TERM, 1976
No. 75-6568
JOHNNIE B. HANKERSON, PETITIONER,
Vv.
STATE OF NorRTH CAROLINA, RESPONDENT
ON WRIT OF CERTIORARI TO THE SUPREME COURT OF
NORTH CAROLINA
PETITION FOR CERTIORARI FILED APRIL 12, 1976
CERTIORARI GRANTED OCTOBER 4, 1976
Gu the Supreme Court of the Gnited States
Ocroser TERM, 1976
No. 75-6568
JOHNNIE B. HANKERSON, PETITIONER,
Vv.
STATE OF NORTH CAROLINA, RESPONDENT
ON WRIT OF CERTIORARI TO THE SUPREME COURT OF
NORTH CAROLINA
224-112—-76—-_1
a Ms a hed ain bb eee eheeeneds
Charge to the Jury in the Superior Court of Nash
ST dé cheb beedenuebetenedseseksenachecacss
Opinion of the Supreme Court of North Carolina, State
v. Hankerson, 288 NC 632 (1975)..............05.
Order of the Supreme Court of the United States Grant-
ing Motion for Leave to Proceed in forma pauperis and
Granting Petition for Writ of Certiorari............
am)
3
17
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2
DOCKET ENTRIES
1. District Court of Nash County, North Carolina, Septem-
ber 29, 1974, Warrant for Arrest of Petitioner charging
him with the unlawful, willful, and felonious murder of
Gregory Eugene Ashe with malice aforethought ci: the
29th day of September, 1974.
. Superior Court of Nash County, North Carolina—On No-
vember 20, 1974 Petitioner and his attorney W. O. Rosser
waived the finding and returning into Court of a bill of
indictment and agreed that the case be tried upon infor-
mation alleging that on or about the 29th day of Septem-
ber, 1974 in Nash County, Johnnie B. Hankerson unlaw-
fully and willfully did feloniousy and with malice by the
use of a deadiy weapon, to wit a pistol, kill and murder
Gregory Eugene Ashe contrary to the form of the Statute
in such case made and provided and against the peace and
dignity of the State.
. Superior Court of Nash County, North Carolina—At the
November 11, 1975, Session, upon his plea of not guilty,
Petitioner was tried and convicted of Second Degree Mur-
der. In the same Court on the 21st day of November, 1974
Presiding Judge John Webb ordered the Petitioner im-
prisoned for the term of not less than twenty nor more than
twenty-five years in the State’s Prison.
Superior Court of Nash County, North Carolina—In apt
time, Petitioner objected and excepted to the rulings and
Judgment of the trial court and gave Notice of Appeal to
the North Carolina Court of Appeals with further notice
being waived on November 21, 1974.
. Superior Court of Nash County, North Carolina—Order of
Assignment of Counsel, W. O. Rosser and L. G. Diedrick
to appeal Petitioner’s case to the appellate courts of North
Carolina, November 21, 1974.
6. North Carolina Court of Appeals, May 29, 1975—
Oral argument on Petitioner’s appeal.
(1)
“J
10.
11.
12.
13.
14.
2
. North Carolina Court of Appeals. July 16, 1975—Decision
upholding the Judgment of the trial court, Arnold, J., dis-
senting; decision certified July 28, 1975, reported in 26 NC
App. 575, 2178. E. 2d 9 (1975).
. Supreme Court of North Carolina, July 31, 1975—Peti-
tioner filed Notice of Appeal from the North Carolina
Court of Appeals to the Supreme Court of North Carolina
as a matter of right pursuant to North Carolina General
Statute 7A-30 (2).
Supreme Court of North Carolina, August 19, 1975—Peti-
tioner filed Motion to Amend the record to note additional
Exceptions and Assignments of Error which would raise
for review additional questions suggested by this Court in
Mullaney vs. Wilbur, 421 US 684 (1975), decided June
9, 1975.
Supreme Court of North Carolina, September 2, 1975—
Petitioner’s Motion to Amend the Record to note addi-
tional Exceptions and Assignments of Error allowed.
Supreme Court of North Carolina, September 10, 1975—
Oral argument on Petitioner’s appeal.
Supreme Court of North Carolina, December 17, 1975—
Decision filed denying Petitioner’s appeal, reported in 288
NC 632 (1975).
Supreme Court of the United States—Petitioner’s Applica-
tion for an Extension of Time In Which to File Petition
for Writ of Certiorari allowed extending said time to April
15, 1976 by Order of Chief Justice Burger, dated March 12.
1976.
Supreme Court of the United States, April 12, 1976, Peti-
tion for Writ of Certiorari docketed.
Supreme Court of the United States, October 4, 1976—
Petitioner's Motion For Leave to Proceed In Forma Pau-
peris and Petition for Writ of Certiorari granted.
3 Superior Court of Nash County
Strate or Nortu CAROLINA v. JOHNNIE B. HANKERSON
Charge to the Jury ;
[Printed in the Case and Record on Appeal in the Supreme
Court of North Carolina beginning at Page 52]
Ladies and Gentlemen, you have now heard all the evidence
in the case and the arguments of the lawyers, and it is now my
duty to charge you as to the law that arises on the evidence,
at the end of which time I will let you retire and render
your verdict.
This is a criminal action in which the defendant, Johnnie B.
Hankerson, has been charged on an Information that he did
commit second degree murder against Gregory Ashe. To this
charge the defendant has pled not guilty, and the fact that he
has been charged is no evidence that he is guilty. Under our
system, when a person is charged with a crime and he pleads
not guilty he does not have to prove that he is innocent, he is
presumed to be innocent, and the burden of proof is on the
State to prove beyond a reasonable doubt that he is guilty
before you can find him guilty.
When I speak of a reasonable doubt I don’t mean a vain,
a fanciful or an imaginary doubt, but I do mean a sane or a
rational doubt. If, after a consideration of all the evidence, you
are fully satisfied or entirely convinced to a moral certainty
that the defendant is guilty, then you would be satisfied be-
yond a reasonable doubt. On the other hand, if you have any
doubt based on reason and common sense, arising out of some
or all the evidence that has been presented, or lack of evidence
as the case may be, as to any fact necessary to constitute the
guilt of the defendant, then you would have a reasonable
doubt, and it would be your duty to give the defendant the
benefit of that doubt and find him not guilty.
I am going to recount for you some of the evidence that has
been presented in the case but in doing so I want to instruct you
(3)
4
I am not trying to tel! you what the evidence is or how I think
you should find the facts from the evidence. Indeed, I have
no opinion as to whether you should find the defendant
4 guilty or not guilty in this case. And if your recollection
of the evidence differs from my recollection, it would be
your duty to reject my recollection and use your own recollec-
tion, because you are the sole triers of fact in this case. My
sole purpose in recounting some of the evidence for you is so
that I can apply the law that arises on the evidence.
In this case the State has introduced first of all in the form
of testimony by Lorenzo Donaid Dancy, who testified that he
is sometimes called “Low,” that he is 18 years old and knew
Gregory Ashe, that he was a close frienu of his. He testified
that on September 29, 1974 he was with Gregory Ashe, that
he had met him that night at a place is Whitakers, North
Carolina, called Bandy’s Place; that he met him there some-
time around 10:30 or 11:00 o’clock P.M., and that Bandy’s was
mostly a dance hall, and that “Greg,” as he called the deceased
was with Wilbert Whitley and that they stayed there at
Bandy’s about 25 minutes; that he does not know Johnnie
Hankerson and did not see him that night; that he does know
that Johnnie Hankerson drives a black and yellow Plymovth
automobile. That he, Wilbert and Greg Ashe left Bandy’s in
Greg’s automobile, that they were going to a club and stopped
by a poolroom on the way, that they got out of the car, the pool-
room was locked and they couldn’t get in, and that they went
back to Greg’s car and Gregory Ashe couldn’t get the car started,
so all of three of them got out and started down a path and he
was on his way home; that Greg Ashe was walking with them
and then he, Gregory Ashe, turned and went back to his car,
and they walked a little way and then when they hadn’t walked
very far Wilbert was in front of him and he heard a shot and
that he heard Gregory Ashe holler that he had been shot. That
he then ran back to where he heard the shot from and he saw a
yellow and black Plymouth Satellite pull off, that it went
through an intersection at a fast rate of speed and drove out to
Highway 301 and turned on the highway and left. That he ran
to Alfonse Bellamy’s girl friend’s house and that he went inside;
that first of all he called Wilbert’s home from Alfonse
5 Bellamy’s girl friend’s house but he didn’t answer so
then he went to the store and found Wilbert and then
they went back to look for Greg; that at first they couldn’t find
i)
him but then they found him lying in a field flat on his face,
that some man who was there with them felt him to see if he
was still alive, and that about that time Gregory’s mother ar-
rived and the police arrived, and that when they found Gregory
Ashe’s body he had a cigarette in his hand that had been lit,
and that Gregory Ashe’s mother took the cigarette. He testified
that he had never seen Gregory Ashe with a knife like the one
introduced in evidence as one of the exhibits in this case. That
he did hear Gregory Ashe ask for a light just before he left him
that night and no one had a light, and that when they found
his body the cigarette had been lighted but it had gone out.
The State then introduced evidence in the form of testimony
by Wilbert Whitley, who testified that he is 24 years old, that
he lives in Witakers, North Carolina, that he knew Gregory
Ashe before Gregory Ashe died; that he had never seen Gregory
Ashe with a knife like the one introduced in evidence; that he
got up with Gregory Ashe that night at his own home, that is,
at Wilbert Whitley’s home, and they went to the “Cut” and
the first place they went was to Robert Earl Bandy’s in the
“Cut,” which is part of Whitakers, North Carolina; that Wil-
bert Whitley had not had anything to drink that night and he
could not tell if Gregory Ashe had; that they left Bandy’s
Place and went to a poolroom; that he saw the defendant that
night at the “Cut”; that when they left Bandy’s that Lorenzo
Dancy went with them, that they first of all went to a pool-
room which was closed and when they cut the car off Greg
couldn’t get the car started when they started to leave the pool-
room and that Wilbert Whitley told them that he was going
on home and that he walked on across the intersection and
while he was walking towards the intersection he saw a car
light coming from behind him and that there was nothing un-
usual about it, that he heard a gun go off, that he turned and
looked back and a yellow and black automobile was taking off
and cutting the corner and went out onto 301 and drove
6 off, and that it was a yellow and black Satellite, and that
he heard Lorenzo Dancy yell that Greg said he was shot;
that he ran back but they couldn’t find Greg; that they then
went to Evans Store and got some help and then they went back
and Lorenzo Dancy came up with Alfonse Bellamy and that
they found the body after hunting for it for about half an hour;
that he stayed there until about 4:00 A.M. himself. That earlier
that night Gregory Ashe had asked for a match but no one had
224-112—76—2
6
one; that Gregory Ashe had a cigarette when they did find
his body and the cigarette had been lit.
The State then introduced evidence in the form of testimony
by Alfonse William Bellamy, who testified that he lives in the
“Cut” in Whitakers, North Carolina, and that he knew Gregory
Ashe like a brother, that he had known him for about one year,
and he knew Gregory Ashe would never carry a knife like the
one introduced into evidence because it slips from the hand too
easily. That on the night of September 29, 1974, “Low” came
and told him that Greg had been shot, and that he went to
the place where he said he had been shot and that he got in
Greg’s car, that he knew how to start it, and after he was able
to start it he turned around and after some searching they
turned the lights into a certain direction and Gregory Ashe’s
body was under the headlights; that Gregory Ashe was lying
on his face, or the body of Gregory Ashe was, and that when
they turned him over that he had a cigarette in his hand; that
everyone including Gregory Ashe’s mother arrived at about
the same time.
The State then introduced evidence in the form of testimony
by Etheline Lyons, who testified that she was the mother of
Gregory Ashe and she lives in Bloomer Hill in Whitakers, North
Carolina; that at about 11:00 o’clock P.M. that night she heard
Gregory Ashe talking and then she heard his automobile start,
and that about 30 minutes later someone knocked on the door
and told her that her son had been shot; that she went out
looking for him and after looking for him for a while they found
his body on Bloomer Hill lying facedown, and when they turned
him over he had a cigarette in his hand.
The State then introduced evidence in the form of testimony
by M. M. Reams, who testified that he is a deputy sheriff with
the Nash County Sheriff’s Department; that he received
7 a radio message at about 12:05 A.M. on September 29,
1974; that he went to Bloomer Hill in Whitakers, North
Carolina, that night and when he arrived there he saw the body
of Gregory Ashe and he was lying facedown; that at about that
time he received a call and he left the scene and went to Battle-
boro and met a State Trooper and Lorenzo Dancy; that after
taking a statement from Dancy he checked on the registration
of the Satellite Plymouth and it belonged to the defendant;
that he then drove to the defendant’s home, he advised him of
his rights, and the defendant told him that he had shot at a
Te ge ee
7
person but he didn’t know whether he had hit him or not, and
he said that Mr. Hankerson told him that this person he had
shot at had grabbed him and tried to cut his throat; that he did
observe some blood on the automobile on the driver’s side. Mr.
Reams testified that after searching the car he found a knife in
the car that had some wood on it, and that the defendant showed
him a greasy spot on his sweater where he said a boy had
grabbed him; that Mr. Hankerson told him that he was in the
process of buying the gun that he had used and that he had
returned it to the person he was buying it from, and that was
the only statement he made to him about the gun; that he
then brought the defendant to Nashville and placed him in the
Nash County Jail and went back to the scene in Whitakers
where they had found the body and continued his investigation.
Mr. Reams testified on cross-examination that Johnnie Hank-
erson had told him that someone had tried to rob him, that he
was in his automobile that night and that someone had asked
for a light and he stopped the car and reached over and pushed
the cigarette lighter in and then handed the cigarette lighter to
the person who had asked for it, and when he put the cigarette
lighter back that the man had a knife at his throat and that he
had a gun on the seat beside him and he picked up the gun and
fired and didn’t know whether he had hit him or not.
That is some of the evidence for the State in the case. The
defendant has introduced evidence. He, first of all testified in
his own behalf, and he testified that his name is Johnnie Hank-
erson, that he lives in Battleboro, North Carolina, that he is 53
years old, that he now works for Koppers Lumber Company,
and that he worked for 11 years when he first came to Whitakers
from Elizabeth City for Stinson Lumber Company, then he
went to Tennessee for six months, then he came back to
8 Batt.eboro and has worked there since that time, or has
worked in North Carolina since that time. The he was
in Whitakers on the night of September 29, 1974; that he went
there by himself, that he first went to Bandy’s, left there and
then he went to the trailer of “Big Mama” and that he stayed
there for about five minutes, that he left “Big Mama’s” trailer
and he started driving back towards Highway 301; that there
were some water holes in the road and he was driving slowly
and he heard someone ask for a light; that he stopped his car
and put his car cigarette lighter in and that he saw two people
there and that when he got the lighter out and gave the person
8
a light and when he put it back in where it was supposed to go
that the person standing on the driver’s side of the car grabbed
him and he had a knife and he put the knife to his throat and
that he reached down and picked up a gun that he had on the |
seat and fired, and then he drove off and drove home and went
in the house and told his wife what had happened; that he
didn’t even look at his automobile when he got home, that he
was so frightened.
And he testified that the knife introduced into evidence in
this case was not his knife, and that he told his wife and son
what happened that night, and that the pistol introduced into
evidence was one which he was in the process of buying and that
the pistol was in his house when the law came but he did not
tell the deputy sheriff that the pistol was there; that at that
time he didn’t know whether he had hit the man he had shot at
or not, that he didn’t know until after the officers told him.
He testified on cross-examination that he shot two men
before and each time in self-defense, that he has been convicted
of whiskey some 20 years ago, and that he was convicted of
escaping from prison about 40 years ago. He testified on redi-
rect examination that he was protecting himself when he killed
Gregory Ashe.
The defendant then introduced evidence in the form of testi-
mony by Annie Hankerson, who testified that she is the wife
of Johnnie Hankerson and has been for 35 or 40 years, that
they have six children, that four of them are in the
9 courtroom with them today; that Johnnie Hankerson
never goes out of the house with soiled clothes on and
that the jacket which was introduced into evidence was clean
when he left the house that night; that the defendant came in
that night after having left and said, “Where is Mama?” and
that he talked to her and told her that he stopped to give some-
one a light and when he did that the boy was reaching around
him with a knife and that he shot, he didn’t know whether he
shot him but he shot at him, and he said maybe he ought tu go
back and tell the law, but he said, “If I shot someone, the law
will be here and let me know about it.” That she heard him
tell her son W. B. about it also. On cross-examination she testi-
fied that she had been working that day and when he left the
house that night he went to see someone about a hat, that the
hard hat he was wearing didn’t fit him right and he wanted
another one, and that he was gciie about two hours.
9
The defendant then introduced evidence in the form of testi-
mony by Webster Hankerson, who testified that he is the son
of the defendant, that he saw him when he went to his father’s
house that night, that his father came in and told him he had
shot someone, and his father then left the room and went and
talked to his mother; that his father as he went back with his
mother told Webster Hankerson that if the law came to let him
know. That sometime later the Sheriff came to the house and he
went and got his mother and got his father. He testified that
his father told him that he had shot at someone but did not
know if he had hit him.
The defendant then introduced evidence in the form of testi-
mony by Sonny Warner, who testified that he lives in Golds-
boro, North Carolina, that he has known the defendant since
1965 and that he has a good general character and reputation
in the community in which he lives.
The defendant then introduced evidence in the form of testi-
mony by W. H. Needham of Rocky Mount, North Caro-
10 lina, who testified that he has known the defendant since
1965 and that the defendant has a good character and
reputation.
The defendant also introduced evidence in the form of testi-
mony by Jerry Bullock, who testified that he has known the
defendant eight to ten years and that he has a good character
and reputation.
That is some of the evidence as presented in the case. As I
told you, you will recall what all the evidence is and you will
recall what all the evidence is and you will decide the facts
of the case from the evidence.
I charge you that under the law and evidence in this case it
is your_duty to return one of the following three verdicts. You
must either find the defendant guilty of second degree murder
or guilty of voluntary manslaughter or not guilty.
I charge that for you to find the defendant guilty of second
degree murder, the State must prove two things beyond a rea-
sonable doubt, first, that the defendant intentionally and with-
out justification or excuse and with malice shot Gregory Ashe
with a deadly weapon. Malice is not only hatred, ill-will or
spite, as it is ordinarily understood, to be sure that is malice,
but it always means that condition of mind which prompts a
person to take the life of another intentionally or to inten-
tionally inflict a wound with a deadly weapon upon another
10
which proximately results in his death without just cause,
excuse or justification. A pistol, a .38 caliber pistol a pistol
would be a deadly weapon. The second thing the State must
prove and prove to you beyond a reasonable doubt is that the
shooting was the proximate cause of Gregory Ashe’s death. A
proximate cause is a real cause, a cause without which Gregory
Ashe’s death would not have occurred. As I recall the evidence,
both the State and the defendant stipulated that the death
was caused by cerebral hemorrhage which resuled from a bullet
wound in the deceased’s heart. Nevertheless, you will have to
be satisfied from the evidence and beyond a reasonable doubt
that this shooting was the proximate cause of Gregory Ashe’s
death before you can find the defendant guilty in this case.
If the State proves beyond a reasonable doubt or it is ad-
mitted that the defendant intentionally killed Gregory
11 Ashe with a deadly weapon, or intentionally inflicted a
wound upon Gregory Ashe with a deadly weapon, that
proximately caused his death, the law raises two presumptions;
first, that the killing was unlawful, and second, that it was done
with malice. Then, nothing else appearing the defendant would
be guilty of second degree murder. In other words, if you are
satisfied from the evidence and beyond a reasonable doubt
that the defendant intentionally killed Gregory Ashe with a
deadly weapon, or that he intentionally inflicted a wound on
Gregory Ashe with a deadly weapon and that wound proxi-
mately caused Gregory Ashe’s death, then, as I told you, the
law would raise two presumptions, that the killing was unlaw-
ful and second, that it was done with malice. Then there will
be some other things I will charge you about, but, nothing else
appearing, if you are satisfied of those two things beyond a
reasonable doubt then you would find the defendant guilty
of second degree murder.
As I told you, you will have to either find the defendant
guilty of second degree murder or manslaughter or not guilty.
In order to reduce the crime from second degree murder to
manslaughter, the defendant must prove not beyond a reason-
able doubt but simply to your satisfaction that there was no
malice on his part. And in order to excuse his act altogether on
the grounds of self-defense, the defendant must prove not
beyond a reasonable doubt but simply to your satisfaction that
he acted in self-defense. And I will charge you on self-defense
in just a moment. But I do want to charge you that to negate
a A eR ee EOE Ee ee ar
11
malice and thereby reduce the crime to manslaughter, the
defendant must satisfy you of three things: first, that he shot
Gregory Ashe in the heat of a passion, and this does not mean
mere anger, it means that the defendant’s state of mind was at
the time so violent as to overcome his reason, so much so that
he could not think to the extent necessary to form a deliberate
purpose and control his actions. The second thing he must sat-
isfy you of is that this passion was provoked by acts of Gregory
Ashe which the law regards as adequate provocation. This
may consist of anything which has a natural tendency to pro-
duce such passion in a person of average mind and dis-
12 position. And thirdly, that the shooting took place so
soon after the provocation that the passion of a person
of average mind and disposition would not have cooled.
To excuse the killing entirely on the grounds of self-defense,
and the defendant contends that if you are satisfied beyond a
reasonable doubt that he intentionally shot Gregory Ashe
thereby proximately causing his death that he is excused in
this case because he was acting in self-defense, and I want to
instruct you that to excuse this killing entirely on the grounds
of self-defense the defendant must satisfy you of four things:
first, that it appeared to the defendant and he believed it to be
necessary to shoot Gregory Ashe in order to save himself from
death or great bodily harm. The defendant testified that at the
time he shot Gregory Ashe or shot at Gregory Ashe that
Gregory Ashe was holding a knife at his throat and had his arm
around him, and he contends that that should satisfy you that
he believed it was necessary to shoot him in order to save him-
self from death or great bodily harm. The second thing that you
must be satisfied of—excuse me—that the defendant must
satisfy you of is this, that the circumstances as they appeared
to him at the time were sufficient to create such belief in the
mind of a person of ordinary firmness, and it is for you, the
jury, to determine the reasonableness of the defendant’s belief
from the circumstances as they appeared to him at the time. In
making this determination you should consider the circum-
stances as you find them to have existed from the evidence,
including the size, age and strength of the defendant as com-
pared to Gregory Ashe, the fierceness of the assault, if any,
upon the defendant, whether or not Gregory Ashe had a
weapon in his possession. And the third thing the defendant
must satisfy you of is that he was not the aggressor. If he
12
voluntarily and without provocation entered into a fight with
Gregory Ashe, he was the aggressor, unless he thereafter at-
tempted to abandon the fight and gave notice to Gregory Ashe
that he was doing so. One enters a fight voluntarily if he uses
towards his opponent abusive language which considering all
the circumstances is calculated and intended to bring on a fight.
And the fourth thing that the defendant must satisfy you of is
that he did not use excessive force, that is, more force
13 than reasonably appeared to be necessary to the defend-
ant at the time. Again, it is for you, the jury, to deter-
mine the reasonableness of the force used by the defendant
under all the circumstances as they appeared to him at the time.
If you find that the defendant acted properly in self-defense,
he would not be guilty. However, if the defendant though other-
wise acting in self-defense used excessive force, the defendant
would be guilty of voluntary manslaughter.
In this case the defendant has introduced evidence that he is
a man of good character and reputation. I won’t recount all of
that again for you but you will recall the witnesses who testified
that the defendant was a man of good character and reputation.
I want to charge you that you can consider this evidence in two
ways, or you may consider it for two purposes. First, if you
believe all or any part of this evidence and find that it bears
upon the defendant’s truthfulness, you may consider it together
with all other facts or circumstances bearing upon his truth-
fulness in deciding whether you will believe or disbelieve his
testimony at this trial. And secondly, you may consider this
evidence, although good character or good reputation is not an
excuse for crime, the law recognizes that a person of good char-
acter may be less likely to commit a crime than one who lacks
that character. Therefore, if you believe from the evidence that
the defendant has a good character, you may consider this
fact in your determination of the d-fendant’s guilt or innocence
and give it such weight as you decide it should receive in con-
nection with all of the other evidence. There is also some evi-
dence in this case, and I won’t recount all of that again for you,
that the defendant some years ago has pled gui’*y to some
other crimes. He testified that he had once been convicted of
escape and once he was convicted of assault, and you will recall
the things he said he had been convicted for.
I want .o charee you that you may consider that evidence in
one way onlv #»~ «iat is considering the nature of the crimes
13
which the defendant testified he had been convicted of
14 or pled guilty to, if you think that that bears upon his
truthfulness then you may take that into account in
deciding whether you believe or disbelieve him as a witness.
But you may not consider that evidence in determining the
guilt of the defendant in this case; that is, do not find him
guilty in this case because he has pled guilty to another crime
or been found guilty of another crime at another time.
The State contends that the defendant ran from the scene
that night or drove away from the scene that night and did
not return, did not report it to the police, and the State con-
tends that that is evidence of flight by the defendant. Evidence
of flight, if you believe that evidence, may be considered by
you together with all other facts and circumstances in this case
in determining whether the combined circumstances amount
to an admission or show a conseiousness of guilt. However,
proof of this circumstance is not suffieient, in itself, to establish
the defendant’s guilt. So if you believe the evidence of flight,
I want to instruct you not to find the defendant guilty on that
evidence alone; you will have to consider that together with
all other evidence in the case in determining whether the State
has satisfied you beyond a reasonable doubt that the defendant
is guilty of either of the two crimes of which you may find
him guilty, if you do not find him not guilty.
COURT: Is there anything else you want charged, Mr.
Rosser?
MR. ROSSER: No, sir.
So I charge you, Ladies and Gentlemen, if you find from the
evidence and beyond a reasonable doubt that on or about
September 29, 1974, the defendant, Johnnie B. Hankerson, in-
tentionally and with malice and without justification or excuse,
shot Gregorv Ashe with a deadly weapon, thereby proximately
causing Gregory Ashe’s death, nothing else appearing, it would
be your duty to return a verdict of guilty of second degree
murder. However, if you do not so find, or have a reasonable
doubt as to one or more of these things, you will not return
a verdict of guilty of second degree mureler.
15 If you do not find the defendant guilty of second de-
gree murder, you must consider whether he is guilty of
voluntary manslaughter. And if you find from the evidence
beyond a reasonable doubt that on or ahout September 29,
1974, the defendant, Johnnie B. Hankerson, intentionally shot
224-112—76——3
14
Gregory Ashe with a deadly weapon, thereby proximately
causing Gregory Ashe’s death, but are satisfied that the defend-
ant killed without malice in the heat of sudden passion, nothing
else appearing, or used excessive force in exercising the right
of self-defense, it would be your duty to return a verdict of
guilty of voluntary manslaughter. However, if you do not find,
or have a reasonable doubt as to one or more of these things,
you would find the defendant not guilty.
I will let you retire in just a moment. I suggest that when
you do retire you appoint one of your members a foremai so
that he or she could poll you in the jury room and speak for
you when you return.
You will have to reach a unanimous verdict before you can
find the defendant either guilty of second degree murder or
manslaughter or not guilty.
If you want any further instructions, you are entitled to have
them. However, you will all have to come back to the court-
room to get them; you can’t send one person back to get them
for you and you can’t get the deputy sheriff to get them for you.
So at this time I instruct you, Ladies and Gentlemen, to
retire to your room and render a true and just verdict.
(JURY RETIRES AT 3:43 O'CLOCK P.M.)
(JURY RETURNS TO THE COURTROOM FOR FUR-
THER INSTRUCTIONS AT 4:32 O'CLOCK P.M. AND
THE FOLLOWING PROCEEDINGS ARE HAD.)
CLERK: Ladies and Gentlemen of the Jury, have you
agreed upon your verdict?
JURY FOREMAN: No. We would like to have the Judge
to clarify again the difference between manslaughter and
second degree murder.
COURT: All right. Excuse me. I thought you had reached a
verdict. Second degree murder is the intentional killing with-
out justification or excuse and with malice. Voluntary man-
slaughter is the intentional killing without justification and
excuse and without malice. In other words, the difference be-
tween second degree murder and manslaughter is the absence
of malice in manslaughter. I defined malice for you. I
16 will be glad to define it for you again if you want me to.
Also, i want to instruct you that the charge I gave you
as to self-defense would apply equally to manslaughter as it
would to second degree murder in that if you find the defend-
ant was justified or excused in the killing because he was acting
15
in self-defense then you would find him not guilty as to either
one. I explained to you a little bit more maybe than you asked,
but I thought you needed that clarified, perhaps. Is that
enough explanation or would you like further explanation?
Well, I will define malice for you. The difference between
second degree murder and manslaughter, as I told you, is that
it is not necessary for the State to prove malice in order for
you to find him guilty of manslaughter. As [ told you before,
malice is not only hatred, ill-will or spite, as it is ordinarily
understood, to be sure that is malice, but it also means that
condition of mind which prompts a person to take the life of
another intentionally, or to intentionally inflict a wound with
a deadly weapon upon another which proximately causes his
death without just cause, excuse or justification. That is the
legal definition of malice.
Unless you want further instructions, I will let you retire
and resume your deliberations. If you want any further in-
structions. don’t hesitate to come out and ask for them.
17 SUPREME COURT OF NORTH CAROLINA
STATE OF NORTH CAROLINA v. JOHNNIE B.
HANKERSON
No. 56
(Filed 17 December 1975)
1. Criminal Law § 90— State’s introduction of exculpatory
statements by defendant
The State is not bound by the exculpatory portions of a
confession which it introduces in a homicide case if there is
other evidence tending to throw a different light on the cir-
cumstances of the homicide.
2. Homicide § 2'— second degree murder—exculpatory state-
ments—sufficiency of evidence for jury
The State’s evidence was sufficient for the jury in this
prosecution for second degree murder, notwithstanding the
State introduced exculpatory statements by defendant that
he shot the victim while the victim was reaching into de-
fendant’s car with a knife at defendant’s throat and a hand
on his chest, where the State’s evidence cast doubt on de-
fendant’s version by tending to show that (1) defendant fled
the scene at a great rate of speed; (2) defendant originally
lied about the gun used in the shooting and told the truth
about it after his wife turned it in to the police; (3) deceased
had no grease on his hands although defendant claimed a
grease spot on his shirt was from being grabbed by the
victim; (4) the victim was found with a cigarette in one
hand although defendant contended the victim used two
hands against him; (5) the victim was right handed and
defendant claimed the victim wielded the knife with his left
hand; (6) defendant said he was stopped by two persons
while the State’s evidence was that the victim was alone;
and (7) the victim had never been seen with a knife similar
to one recovered from defendant’s vehicle.
(16)
17
3. Criminal Law § 86— prior misconduct — question is good
faith
Defendant failed to show that the district attorney’s
question to him on cross-examination as to how many peo-
ple he had shot before was asked in bad faith.
4, Criminal Law § 162—failure to strike testimony—absence
motion to strike
The trial court did not err in failing to strike defendant’s
testimony regarding prior arrests which did not result in
conviction where there was no motion to strike such
testimony.
18 5. Criminal Law § 113—recapitulation of evidence—
misstatement—collateral matter
The trial court’s inaccurate statement during recapitula-
tion of the evidence in a homicide case that defendant testi-
fied he had been convicted of assault was a misstatement
upon a collateral matter and not a ground for a new trial
since no request for correction was made before the case was
submitted to the jury.
6. Homicide § 28— final mandate — absence of acquittal by
self-defense — additional instructions
In this homicide prosecution, the trial court’s error in fail-
ing to include in its final mandate the theory of acquittal by
reason of self-defense was cured by additional instructions
given by the court after the jury had begun its deliberations.
7. Homicide §§ 14, 24— absence of malice — self-defense —
burden of proof on defendant — unconstitutionality — non-
retroactivity
Under the decision of Mullaney v. Wilbur, 421 U.S. 684
(1975), the Due Process Clause of the Fourteenth Amend-
ment prehibits the use of our long-standing rules in homi-
cide cases that, in order to rebut the presumption of malice,
defendant must prove to the satisfaction of the jury that he
killed in the heat of a sudden passion, and in order to rebut
the presumption of unlawfulness, defendant must prove to
the satisfaction of the jury that he killed in self-defense.
However, the Mullaney decision is not retroactive and ap-
plies only to trials conducted on or after 9 June 1975.
8. Homicide §§ 14, 24— presumption of malice and unlawful-
ness — constitutionality
The Mullaney decision does not preclude use of the pre-
sumptions of malice and unlawfulness upon proof beyond
18
a reasonable doubt of a killing by the intentional use of a
deadly weapon; nor does it prohibit making the presump-
tions mandatory in the absence of contrary evidence or per-
mitting the logical inferences from facts proved to remain
and be weighed against contrary evidence if it is produced.
Justice LAKE concurring in result.
Appga. by defendant pursuant to N. C. Gen. Stat. 7A-30(2)
to review the decision of the Court of Appeals reported in 26
N.C. App. 575, 217 S.E. 2d 9 (1975), which found no error,
Arnold J., dissenting, in the trial before Webb, J., at the No-
vember 21, 1974 Session of Nasu County Superior Court.
After the appeal was filed in this Court on July 31, 1975,
defendant moved to amend the record on August 19, 1975, to
note additional exceptions and assignments of error which
would raise for review additional questions suggested by Mul-
laney v. Wilbur, 421 U.S. 684, decided on June 9, 1975. This mo-
tion was allowed on September 2, 1975, and the case argued
on September 10, 1975.
19 Defendant was charged with the second degree murder
of Gregory Ashe and entered a plea of not guilty. It was
stipulated that had Dr. D. E. Scarborough, who performed the
postmortem examination, been present at trial he would have
testified that Gregory Ashe died on September 29, 1974, as a
result of massive hemorrhage resulting from a gunshot wound
to the heart.
Evidence for the State tended to show that on the night of
September 29, 1974, Lorenzo Dancy, Wilbert Whitley, and the
deceased, Gregory Ashe, left a dance hall and drove to a pool-
room in Whitakers. Ashe was driving his car. Upon arrival at
the poolroom, they discovered that it was closed. Ashe was un-
able then to restart his car. Ashe asked Dancy and Whitley for
a match to light a cigarette. Neither had a match. Whitley an-
nounced that he was going to his home, one block away, and
began walking. Dancy and Ashe were also walking away from
the car when Ashe said that he was going back to “crank” the
car. Dancy indicated that he was going on with Whitley. Dancy
testified that he yelled for Whitley to wait and then proceeded
to walk after Whitley. When last seen alive by Dancy, Ashe was
seen walking alone back towards his car.
Moments later Dancy and Whitley each heard a gun fire.
Dancy heard Ashe exclaim that he was shot and hollered this
information to Whitley. A yellow and black Plymouth “Satel-
19
lite” was observed pulling away at a fast rate of speed. It did
not stop when it reached the nearby intersection of U.S. 301.
Dancy and Whitley had differing accounts of whether the car
left before or after Dancy hollered.
The shooting had occurred some time after 11:00 o 'elock.
Because of the darkness it was difficult to find Ashe. Around
12:00 o’clock, Ashe was discovered lying face down in a field
about thirty feet from the road. A cigarette, which had been lit
but which was now out, was in Ashe’s hand. The body was re-
moved at 4:00 or 5:00 o’clock that morning.
After determining the identity of the owner of the Plymouth,
several law enforcement officers, including Deputy Sheriff M.
M. Reams went to defendant’s home, advised defendant of his
rights, and questioned him. Defendant told Deputy Reams that
he had been to Whitakers, had shot a person who had grabbed
him and tried to cut his throat but did not know whether he
had hit him. Reams testified that defendant’s car was
20 searched with his consent and a knife was found in the
middle of the front seat. Also found in the car was a
“ 30-06,” ammunition for the “.30—-06,” and a hunting knife.
Blood was observed on the driver’s side of the car, just behind
the door. Defendant gave Reams a shirt with a grease spot and
stated that was where he had been grabbed. When asked about
the pistol used in the shooting (not the “.30—-06’), defendant
told Reams that he was “in the process of buying” it but had
already returned it to the seller, whom he refused to identify.
On cross-examination Reams gave this additional account of
defendant’s statements: Defendant was driving his Plymouth
“Satellite” automobile near the poolroom when a man stopped
him and asked him for a light. Defendant gave the man the
cigarette lighter from the dash of his automobile. Defendant felt
someone “shaking the car, shaking the right door that was
locked.” Defendant put the cigarette lighter back in the holder
and when he turned around “the man” was reaching in with a
knife at his throat and had a hand on defendant’s chest. De-
fendant reached down, got a revolver, and “shot the man who
already had his hand on his left chest.”
Officer Reams also testified that after taking defendant’s
statement he returned to the morgue and examined the de-
ceased’s hands. He found no grease on them. Several witnesses
for the State testified that they had never seen the deceased
with a knife like the one in evidence found in defendant’s car.
. 20
Defendant testified giving the following account of the inci-
dent: He was driving his Plymouth automobile slowly over a
road containing large holes when someone asked for a light.
Through his car mirror, defendant could see two men. One of
them walked up to the car and defendant reached over to the
dash of the car, pushed in the cigarette lighter, and gave the
lighter to him. On returning the lighter to its holder, defendant
felt the car move, and looked and noticed the second man stand-
ing on the right-hand side of the car. As he turned back to his
left, the first man reached into his car, seized him by the left
shoulder with his right hand and put a knife to defendant’s
throat with his left hand. Defendant felt the knife at his throat,
grabbed his gun and shot. He surmised that his assailant
dropped his knife in the car since it did not belong to
21 the defendant. Defendant admitted that he lied to the
police about the whereabouts of the gun: He said:
“The pistol was in my house at the time the law came
there. He did ask me for the pistol then. I told him I had
returned it to the person I got it from. I had not returned
it. It was in the house right then.
“The reason I didn’t tell the Sheriff the truth about
where the piste! was was because at that time I just
wasn’t thinking, but after I got up here in jail I decided
I might as well go ahead and tell them. My wife had
already given it to the officers at that time. It is true that
I never told them where the pistol was. If they had
wanted to search the house they could have found it
right there under the mattress. I did not hide the gun.
That was just to keep it away from the children.”
Defendant’s wife, however, testified that she got the pistol
from defendant’s drawer where “I am sure he put it.”
In rebuttal the State introduced evideiice that Gregory Ashe
was right-handed.
The jury found defendant guilty of second degree murder.
He was sentenced to not less than 20 nor more than 25 years
imprisonment. The Court of Appeals found no error, Arnold,
J., dissenting.
Rufus L. Edmisten, Attorney General, by Claude W. Har-
ris, Assistant Attorney General, for the State.
L. G. Diedrick, W.O. Rosser and Roland Braswell, Attorneys
for defendant appellant.
EXUM, Justice.
21
I
‘Defendant assigns as error the denial of his motions for
judgment as of nonsuit. Judge Arnold’s dissent was on the
basis that nonsuit should have been allowed. Reviewing this
assignment, we consider all of the evidence actually admitted,
whether from the State or defendant, in the light most favorable
to the State, resolve any contradictions and discrepancies there-
in in the State’s favor, and give the State the benefit of all rea-
sonable inferences from the evidence. State v. Cutler,
22 271 N.C. 379, 382, 156 S.E. 2d 679, 681 (1967). Defendant
more specifically urges that this case comes within the
rule that, “[w]hen the State introduces in evidence exculpa-
tory statements of the defendant which are not contradicted
or shown to be false by any other facts or circumstances in
evidence, the State is bound by these statements. While the
intentional killing of another with a deadly weapon raises the
presumption that the killing was unlawful and done with
malice, this rule of law does not mean that the burden of show-
ing an unlawful killing does not rest with the State. When the
State’s evidence and that of the defendant are to the same effect
and tend only to exculpate the defendant, motion for honsuit
should be allowed. State v. Carter, 254 N.C. 475, 119 S.E. 2d
461.” State v. Johnson, 261 N.C. 727, 730, 136 S.E. 2d 84, 86
(1964).
In State v. Johnson, supra, a murder prosecution, the
State’ s only evidence that defendant committed a homicide was
a confession that established a perfect self-defense. Circum-
stantial evidence corroborated the confession. Defendant’s evi-
dence at trial was to the same effect. In this context we held
defendant entitled to a nonsuit and reversed a conviction
for manslaughter. State v. Carter, supra, presented basically the
same situation. There was no evidence which tended to contra-
dict or impeach defendant’s confession or testimony at trial
that she acted lawfully in the defense of another.
11} The State contends, however, and we agree that this case
falls more squarely within the rule that the State is not bound
by the exculpatory portions of a confession which it introduces,
if there is “other evidence tending to throw a different light on
the circumstances of the homicide.” State v. Bright, 237 N.C.
475, 477, 75 S.E. 2d 407, 408 (1953); see also State v. Bolin,
281 N.C. 415, 189 S.E. 2d 235 (1972) and State v. Cooper, 273
N.C, 51, 159 S.E. 2d 305 (1968). In State v. Bright, supra,
224-112—76——_-4
22
the State introduced defendant's statement that he killed his”
wife accidentally while they were scuffing on the bed. We
held, however, that evidence “such as the absence of powder
burns, the location and direction of the fatal wound [and] the
conduet of the defendant . . .” was sufficient to survive a mo-
tion for nonsuit, and we affirmed a manslaughter conviction.
[2] We hold that nonsuit in this case was properly denied in
view of evidence which casts doubt on defendant's version of
the incident. This evidence is to the effeet that: (1) defendant
fled the scene at a great rate of speed; (2) defendant
23 originally lied about the gun and deeided to tell the
truth about it after his wife had turned it in to the
police; (3) the deceased had no grease on his hands although
defendant claimed the grease spot on his shirt was from being
grabbed by the deceased; (4) the deceased was found with a
cigarette in one hand, although defendant claims the deceased
used two hands agains: him; (5) the deceased was right-handed
although defendant claims that deceased wielded the knife
with his left hand; (6) defendant says he was stopped by two
persons while the State's evidence was that the deceased, when
last seen alive moments before the shooting, was alone; (7) the
deceased had never been seen with a knife in his possession
similar to the one recovered from defendant's vehicle.
While none of these circumstances taken individually flatly
contradicts defendant's statement, taken together they are suf-
ficient to “throw a different light on the circumstances of the
homicide” and to impeach the defendant’s version of the inci-
dent. The State is not bound, therefore, by the exculpatory por-
tions of the defendant's statement. The case is for the jury.
I]
On cross-examination of the defendant by the district attor-
ney the following occurred:
“Q. How many people have you ever shot before?
OBJECTION: OVERRULED: ExcEePTION
DEFENDANT'S ExcEeEpTrion No. 3.
Q. Go ahead and tell us exactly how many?
A. I have shot one.
Q. Is that all?
A. Two.
Q. Is that all?
A. Yes.”
As the cross-examination continued without further objection
defendant admitted having been “convicted of whiskey” and
“convicted one time of escaping from prison. . . I have not
been convicted of anything else. I have been up once before in
North Carolina for assault; this is the second time. That
24 was for shooting. It was in self-defense. I came clear of
that.” On recross-examination the defendant testified:
“T have not been previously convicted of assault. They kept
me in jail three or four nights the time the man was hitting me
with a stick. Years back a fellow whacked me with a knife and
he was shot in the leg but I didn’t go to jail for it. [ just paid
his hospital bill.” Apparently with reference to this testimony
the trial judge, summarizing the evidence, stated to the jury
that the defendant “testified that he had once been convicted
of escape and once he was convicted of assault, and you will
recall the things he said he had been convicted for.”
Defendant now assigns as error: first, the overruling of his
objection to the district attorney’s question, “How many people
have you ever shot before?”; second, failure of the court to
strike “defendant's testimony as to any prior arrests that did
not result in a conviction”: and third, the statement of the
trial judge hereinabove set out recapitulating the testimony
of the defendant.
(3) With regard to the district attorney’s question defendant
properly coneedes the right of the State to cross-examine de-
fendant as to specific acts of misconduct, State v. Gainey, 280
N.C. 366, 185 S.E. 2d 874 (1972), and properly concedes that
unlawfully shooting other people would be such misconduct.
Defendant contends, however, that the question was patently
asked in bad faith since the district attorney must have been
aware that the defendant was acquitted of that charge. Defend-
ant, however, testified that he had shot people on fwo other
occasions only one of which resulted in an acquittal by reason
of self-defunse. There is no showing in the record that the
district attorney in fact knew the official outcome of these as-
saults. Apparently one of them never came to trial.
'4] As to the trial judge’s failure to strike defendant's testi-
mony regarding prior arrests which did not result in convic-
tions, suffice it to say there was no motion to strike any of this
testimony. Apparently defendant was satisfied at trial with
24
his full explanation before the jury of the outcome of the two
shooting incidents. The trial judge was not required, sua sponte,
to strike this testimony. State v. Battle, 267 N.C. 513, 148 S.E.
2:4 599 (1966).
[5] Although defendant admitted he paid hospital bills for
one of his victims, he said also that he “didn't go to jail
25s for it” and that he had “not previously been convicted
of assault.’’ The trial judge did, it seems, inaccurately
recapitulate the defengant’s testimony on this point. The mis-
statement is understal ~ Nevertheless “inaccurate state-
ments of this character are not ground for a new trial unless
called to the court's attention with request that correction be
made before the case is submitted to the jury.” State v. Revis,
253 N.C. 50, 53. 116 S.E. 2d 171, 174 (1960). In State v. Can-
trell, 230 N.C. 46, 51 S8.IE. 2d 887 (1949) relied on by defendant
on this point, defendant was tried on a charge of carnally know-
ing his ten year old child. In dictume this Court volunteered
the observation that it would have been error for the trial judge
to say, in recapitulating the evidence, that defendant “ad-
mitted ... he had been tried and convicted of an assault with
intent to commit rape on his daughter Dorline Shelton” unless
such an admission appeared in the record. (It does not appear
in the opinion but the record reveals that Dorline Shelton was
not the prosecutrix, but another daughter of the defendant.)
Noting that no exception was taken or assignment of error di-
rected to this portion of the charge, this Court recognized that
the defendant mav indeed have made such an admission al-
though none appeared in the record. Assuming the correctness
of this dictum, the supposed misstatement there considered is
clearly distinguishable from the one here. In prosecutions for
various kinds of illicit sexual activity, our decisions have been
- characterized as being “markedly liberal in holding evidence
of similar sex offenses admissible” on the question of guilt. 1
Stansbury’s North Carolina Evidence 299 ( Brandis Rev. 1973).
It might then be considered that the assumed misstatement in
Cantrell was one of a fact bearing directly on defendant's guilt.
This Court has said that “a statement of a maierial fact not
shown in the evidence constitutes reversible error’ whether or
not called to the trial court’s attention. State v. McCoy, 236
N.C. 121, 124, 71 S.E. 2d 921, 923 (1952). The misstatement
here complained of was clearly upon a collateral matter
These assignments of error are, consequently, overruled.
——_
PR a ee ee
25
III
[6] In his final mandate the trial judge failed to reiterate
and specify that self-defense was a possible theory of acquittal.
Defendant contends that under State v. Dooley, 285 N.C. 158,
203 S.E. 2d 815 (1974) this is reversible error. After the jury
had been deliberating approximately forty-five minutes,
26 however, they returned to the courtroom to ask for clari-
fication on the distinction between manslaughter and
murder in the second degree. In the course of his instructions
responsive to this inquiry the trial judge charged in addition
as follows:
“Also, I want to instruct you that the charge I gave you
as to self-defense would apply equally to manslaughter
as it would to second degree murder in that if you find
the defendant was justified or excused in the killing be-
cause he was acting in self-defense then you would find -
him not guilty as to either one.”
While Dooley does require the trial judge to include in his final
mandate the theory of acquittal by reason of self-defense where
it has been raised by the evidence, failure here to do so was
cured, in our opinion, by the additional instructions. State v.
Brooks, 225 N.C. 662, 36 S.E. 2d 238 (1945). Certainly the
additional instructions render any error of omission in the
final mandate harmless beyond a reasonable doubt.
IV
On June 9, 1975, the United States Supreme Court decided
Mullaney v. Wilbur, 421 U.S. 684, which held that a Maine jury
instruction requiring a defendant being tried for murder to
prove by a preponderance of the evidence, in order to reduce
the murder to manslaughter, that he acted in the heat of pas-
sion on sudden provocation, violated the Due Process Clause
of the Fourteenth Amendment to the United States Constitu-
tion, as that clause was interpreted in In re Winship, 397 U.S.
358 (1970) to require the prosecution to prove beyond a reason-
able doubt every fact necessary to constitute a crime. It was
subsequently re-explained in Faretta v. California, .... U.S.
...., 95 S.Ct. 2525, n. 15 (June 30, 1975) that the right of the
defendant to have this burden placed on the State, though not
literally expressed in any particular provision of the Consti-
26
tution, was essential to due process of law in a fair adversary
process,
Defendant contends that under the rationale of Mullaney
the trial judge’s instructions to the jury in this case violate
Fourteenth Amendment Due Process. While the trial judge in
defining second degree murder and manslaughter and in his
final mandate to the jury placed upon the State the burden
to prove beyond a reasonable doubt both malice and
27 unlawfulness, i.e, without justification or excuse, he also
instructed the jury, in pertinent part, as follows:
“Tf the State proves beyond a reasonable doubt or it is
admitted that the defendant intentionally killed Greg-
ory Ashe with a deadly weapon, or intentionally in-
flicted a wound upon Gregory Ashe with a deadly
weapon, that proximately caused his death, the law
raises two presumptions; first, that the killing was
unlawful, and second, that it was done with malice.
Then, nothing else appearing, the defendant would be
guilty of second degree murder. . . .
“As I told you, you will have to either find the defendant
guilty of second degree murder or manslaughter or not
guilty. In order to reduce the crime from second degree
murder to manslaughter, tie defendant must prove not
beyond a reasonable doubt but simply to your satisfac-
tion that there was no malice on his part. And in order
to excuse his act altogether on the grounds of sel!-
defense, the defendant must prove not beyond a reason-
able doubt but simply to your satisfaction that he acted
in self-defense, And I will charge you on self-defense
in just a moment. But I do want to charge you that to
negate malice and thereby reduce the crime to man-
slaughter, the defendant must satisfy you of three
things: first, that he shot Gregory Ashe in the heat of a
passion. . . . The second thing he must satisfy you of
is that this passion was provoked by acts of Gregory
Ashe which the law regards as adequate provoca-
cation... . And thirdly, that the shooting took place
so soon after the provocation that the passion of a
person of average mind and disposition would not have
cooled.
27
“T'o excuse the killing entirely on = — q -~
defense .. . the defendant must satijy you 0
cn first, that it appeared to the defendant and he
believed it to be necessary to shoot Gregory Ashe in
order to save himself from death or great bodily
harm. . . . The second thing that you must be satisfied
of—excuse me—that the defendant must satisfy you of
this, that the circumstances as they appeared to him at
the time were sufficient to create such belief in the mind
of a person of ordinary firmness. . . . And the third
thing the defendant must satisfy you of is that he was
not the aggressor. . . . And the fourth thing that the
defendant must satisfy you of is that he did not use
excessive force... .
28 “If you find that the defendant acted properly
in self-defense, he would not be guilty. However,
if the defendant though otherwise acting in self-defense
used excessive force, the defendant would be guilty of
voluntary manslaughter.” (Emphasis supplied. )
[7] We hold that by reason of the decision in Mullaney the
Due Process Clause of the Fourteenth Amendment prohibits
the use of our long-standing rules in homicide cases that a de-
fendant in order to rebut the presumption of malice must prove
to the satisfaction of the jury that he killed in the heat of a
sudden passion and to rebut the presumption of unlawfulness,
that he killed in self-defense. The instructions given here inso-
far as they placed these burdens of proof on the defendant vio-
late the concept of due process announced for the first time in
Mullaney. We decline, however, for reasons hereinafter stated,
to give Mullaney retroactive effect in North Carolina. We hold
that because the trial judge instructed the jury in accordance
with our law of homicide as it stood, and in a trial conducted,
before the Mullaney decision, the defendant is not entitled to
the benefit of the fullaney doctrine. We will, however, apply
the decision to all trials conducted on or after June 9, 1975.
The law of Maine and the precise issue it presented was suc-
cintly stated by the Supreme Court in Mullaney: iat
“Absent justification or excuse, all intentional or crimi-
nally reckless killings are felonious homicides. Felonious
homicide is punished as murder—ie., by life imprison-
ment—unless the defendant proves by a fair preponder-
28
ance of the evidence that it was committed in the heat of
passion on sudden provocation, in which case it is pun-
ished as manslaughter—i.e., by a fine not to exceed
$1,000 or by imprisonment not to exceed 20 years. The
issue is whether the Maine rule requiring the defendant
to prove that he acted in the heat of passion on sudden
provocation accords with due process.” 421 U.S. at 691-
92. (Emphasis supplied.)
A portion of the trial judge’s instructions to the jury in Maine
were summarized in Mullaney as follows:
“(That if the prosecution established that the homi-
cide was both intentional and unlawful, malice afore-
thought wus to be conclusively implied unless the de-
fendart proved by a fair preponderance of the
29 evidence that he acted in the heat of passion
on sudden provocation. The court emphasized that
‘malice aforethought and heat of passion on sudden prov-
ocation are inconsistent things.’ [Appendix to the Rec-
ord] at 62; thus, by proving the latter the defendant
would negate the former and reduce the homocide from
murder to manslaughter. The court then concluded its
charge with elaborate definitions of ‘heat of passion’ and
‘sudden provocation.’” Id. at 686-87. (Emphasis sup-
plied.)
Maine’s conclusive implication of malice which arose from
proof of an unlawful and intentional killing meant simply that
upon proof of these things the defendant was guilty of murder
unless the defendant proved by a fair preponderance of the evi-
dence that he acted in heat of passion on sudden provocation
~-where the issue of heat of passion was raised. Thus Maine’s
law under these circumstances relieved the State of the bur-
den of proving both malice and the absence of heat of passion.
2 a the Supreme Court found that due process was wanting.
t sald:
“Maine law requires a defendant to establish by a pre-
ponderance of the evidence that he acted in the heat of
passion on sudden provocation in order to reduce murder
to manslaughter. Under this burden of proof a defendant
can be given a life sentence when the evidence indicates
that it is as likely as not that he deserves a significantly
lesser sentence. This is an intolerable result in a society
29
where, to paraphrase Mr. Justice Harlan, it is far worse
to sentence one guilty only of manslaughter as a mur-
derer than to sentence a murderer for the lesser crime of
manslaughter. Jn re Winship, 397 U.S. at 372 (concur-
ring opinion). We therefore hold that the Due Process
Clause requires the prosecution to prove beyond a rea-
sonable doubt the absence of the heat of passion on sud-
den provocation when the issue is properly presented in
a homicide case.” Jd. at 703-704.
In North Carolina, our law of homicide pertinent to the ques-
tions here raised has not been substantially changed since it
was enunciated in 1864 in State v. Ellick, 60 N.C. 450. This
Court there said:
“When it is proved that one has killed intentionally, with
a deadly weapon, the burthen of showing justification,
excuse or mitigation, is upon him. /d. at 459.
_ * * oe *
30 “| the fact of the homicide must be proved by the
State; but if found or admitted, the onus of showing
justification, excuse or mitigation, is upon the prisoner.”
Id. at 462.
The Court in Ellick concluded its opinion by saying that any
fact which the State is required to establish must be proved
beyond a reasonable doubt; but as to faets which the prisoner
is required to establish, the jury must be satisfied by the testi-
mony that they are true. Zllick has been cited as authoritative
in State v. Phillips, 264 N.C. 508, 515, 142 S.E. 2d 337, 341
(1965) and State v. Creech, 229 N.C. 662, 673, 51 S.E. 2d 348,
357 (1949).
Another of our early cases on the subject was State v.
Willis, 63 N.C. 26 (1868), which while holding that the defend-
ant need not prove mitigation or justification by a preponder-
ance of the evidence, nevertheless approved the following
instruction given by the trial judge:
“TW Jhen it is proved or admitted that one killed another
intentionally, with a deadly weapon, the burden of show-
ing justification, excuse or mitigation is on him, and all
the circumstances of such justification, excuse or miti-
gation are to be satisfactorily proved by him, unless
they appear in the evidence against him; that the fact
of killing being proved or admitted, nothing more
30
appearing, the law presumes such killing to have been
done in malice, and so to be murder; that the circum-
stances of justification, excuse or mitigation, are to be
satisfactorily proved, not proved as the State is required
to prove an essential fact, that is beyond a reasonable
doubt, for the doctrine of reasonable doubt is never
applied to the condemnation of a prisoner, but to his
acquittal; and that the jury must be satisfied by the
testimony offered in the case on either side that the
matter in justification, excuse or mitigation is true.”
Id. at 26-67. (Emphasis supplied. )
The Court said further:
‘WWe prefer to stand super antiquas vies, and to achere to
the rules iaicd down in the Slate v. Eliwk, above referred
to. In that case the erroneous statement which we had
inadvertently made in the State v. Peter Johnson, [48
N.C. 266 (1855)] that it was incumbent on the prisoner
to establish the matters of excuse or extenuation
31 beyond a reasonable doubt, is corrected. In it is
also corrected wht we consider as erroneous in
the decision of the Court in Commonwealth v. York
[9 Met. (50 Mass.) 93 (1845)], that the matters of ex-
cuse or extenuation which the prisoner is to prove, must
be decided according to the preponderance of evidence.
It is more correct to say, as we think, that they must be
proved to the satisfaction of the jury.” Jd. at 29.
In State v. Vann, 82 N.C. 631, 635 (1880), Justice Dillard,
elucidating the law laid down in Ellick and Willis, wrote:
“In an indictment for murder, the two constituents of
the crime, to-wit, a voluntary killing and malice afore-
thought, must be proved by the state, as it makes the
charge; and as the accused is presumed to be innocent
until the contrary is shown, both of these elements must
be proved. The killing being shown, then the other in-
gredient, malice prepense, is also proved as a fact in the
eyes of the law, not by evidence adduced, but by a pre-
sumption that the law makes from the fact of the killing.
And these two essential facts being thus established, the
legal conclusion thereon is, that the offense charged is
murder. (Citations omitted.)
31
“But the implication of malice, made by the Jaw and
taken as a fact, is not conclusive on the party accused,
but may be rebutted. He may show, if he can, by his
proofs, that there was no malice prepense and thereby
extenuate to manslaughter, or make a case of justifiable
or excusable homicide, or a case of no criminality at, all
by proof of insanity at the time of the act committed,
disabling him to know right from wrong. (Citations
omitted.) The burden lies on the accused to make these
proofs, if he can; otherwise, the conclusion of murder,
on a malice implied, will continue against him and will
call for, and in law, oblige a conviction by the jury.”
(Emphasis supplied. )
In State v. Miller, 112 N.C. 878, 885, 17 S.E. 167, 169
(1893), the Court pointed out “that when the killing with a
deadly weapon is proved and admitted the burden is shifted
upon the prisoner, and he must satisfy the jury, if he ean do
so from the whole of the testimony, as well that offered for the
State as for the defense, that matter relied on to show mitiga-
tion or excuse is true.”
32 These early cases were decided before the enactment
of N.C. Pub. Laws 1893, ch. 85 (now N. C. Gen. Stat.
14-17), which divided murder in two degrees. This act made
certain specified kinds of murder, including a deliberate anc
premeditated killing. murder in the first degree. All other kinds
of murder were made by the statute murder in the second
degree. State v. Benton, 276 N.C. 641, 657, 174 S.E. 2d 793
(1970). Homicide cases decided subsequent to this statute con-
tinued to sanction the presumptions of unlawfulness and malice
but refused to reeugnize any presumption of premeditation or
deliberation. State v. Brown, 249 N.C. 271, 106 S.E. 2d 232
(1958); State v. Absher, 226 N.C. 656, 40 S.E. 2d 26 (1946);
State v. Keaton, 206 N.C. 682, 175 S.E. 296 (1934); State v.
Rhyne, 124 N.C. 847, 33 S.E. 128 (1899); State v. Fuller, 114
N.C. 885, 19 S.E. 797 (1894). Modern, accurate and sufticient
statements of the rules regarding these presump'ions may he
found in State v. DuBoise, 279 N.C. 73, 181 S.E. 2d 393 (1971);
State v. Winford, 279 N.C. 58, 181 S.E. 2d 423 (1971).
The foregoing authorities establish that from 1864 to 1975,
111 years, the law of this State has been this: when it estab-
lished by a defendant’s judicial admission, or the State proves
beyond a reasonable doubt that the defendant intentionally in-
32
flicted a wound upon the deceased with a deadly weapon which
proximately caused death, the law raises two presumptions
against the defendant: (1) the killing was unlawful, and (2) it
was done with malice. Nothing else appearing in the case the
defendant would be guilty of murder in the second degree.
When these presumptions arise the burden devolves upon the
defendant to prove to the satisfaction of the jury the legal pro-
vocation which will rob the crime of malice and reduce it to
manslaughter or which will excuse the killing altogether on the
ground of self-defense. If defendant rebuts the presumption of
malice only, the presumption that tue kil!'ng was unlawful re-
mains, making the crime manslaughter. The jury instructions
complained of here were in accordance with these long estab-
lished rules.
This Court has never defined precisely what is meant by
“satisfying” the jury. It has been clear, however, from the ear-
liest cases that satisfying the jury meant something other
than persuading beyond a reasonable doubt and persuading by
a preponderance of the evidence. State v. Freeman, 275
33 N.C. 662, 170 S.F.. 2d 461 (1969); State v. Barrett, 132
N.C. 1005, 43 S.E. 832 (1903). This Court said in
Barrett:
“TT he prisonei must satisfy the jury, neither by a rea-
sonable doubt nor yet by a preponderance of the evi-
dence, but simply satisfy them, of the existence of facts
and circumstances which mitigate the offense or which
make good a plea of self-defense.”
Satisfying the jury, the standard long adopted by this Court
and utilized in the instructions now under consideration means,
we believe, a standard no greater and at the same time one not
significantly less than persuasion by a preponderance of the
evidence. Satisfying the jury means that there must be some
evidence offered of all elements of heat of passion on sudden
provocation or of self-defense, as the case may be, and that this
evidence must satisfy or persuade the jury of the truth of the
existence of these provocations—one which robs the crime of
malice and the other which excuses it altogether.
Under the Maine rules considered in Mullaney when the
State proved beyond a reasonable doubt that the killing was
(1) intentional, and (2) unlawful, the jury was told that the
defendant would be guilty of murder unless he proved by a
preponderance of the evidence that he killed in the heat of
33
passion in which case he could be convicted only of manslaugh-
ter. Under North Carolina rules when the State proved beyond
a reasonable doubt a killing proximately resulting from the
intentional use of a deadly weapon the jury here was told, in
effect, that defendant would be guilty of murder in the second
degree unless he “satisfies” the jury that he killed in the heat
of sudden passion or in self-defense. The instructions here
under consideration, therefore, like those in Maine, unconstitu-
tionally relieved the prosecution of the burden of proving
beyond a reasonable doubt malice and unlawfulness when the
issues of their existence were properly raised.
We note that there is no evidence in this case of a killing
in the heat of passion on sudden provocation. Therefore this
issue is not “properly presented” as it:was in Mullaney. There
could not, consequently, be any Mullaney error prejudicial to
defendant on this aspect of the case.
As a matter of state law, however, and as the jury was in-
structed here, our rules allocating burden of proof on self-
defense and heat of passion are the same. As eatiy as
34 1868 this Court in State v. Willis, supra at 29-30 said,
“In the proof of such matters we do not recognize any
distinction between the case where the question is whether
the homicide is murder or manslaughter, and that where it is
whether the killing is murder or excusable or justifiable homi- -
cide.” There is in this case evidence of self-defense. The issue
regarding its existence is properly presented. For the guidance
of our trial judges, consequently, and inasmuch as there are
jury instructions given here as if there were evidence of a heat
of passion killing, we have discussed the matter as if such
evidence were indeed present.
It is also true that the trial judge did near the beginning
and at the end of his instructions tell the jury that the State
had the burden to prove beyond a reasonable doubt both malice
and unlawfulness. We are cognizant of the federal rule that
jury instructions must be considered contextually in determin-
ing whether there is error of federal constitutional dimension.
Cupp v. Naughten, 414 U.S. 141 (1973). Considering the entire
instruction contextually we believe it must have meant this to
the jury in this case: the state as a matter of abstract principle
was required to prove each element of the offense charged,
including malice and unlawfulness, beyond a reasonable doubt.
If, however, an intentional killing with a deadly weapon was so
34
proved (defendant here admitted this much) a presumption
arises which given in the presence of evidence of a justifiable,
and hence, lawful, homicide nevertheless relieves the state of
proving unlawfulness and requires the jury to find the defend-
ant guilty unless this evidence satisfies it of the truth of de-
fendant’s contention that he did kill in self-defense.
'8] The Mullaney ruling does not, however, preclude all use
of our traditional presumptions of malice and unlawfulness. It
precludes only utilizing them in such a way as to relieve the
state of the burden of proof on these elements when the issue
of their existence is raised by the evidence. The presumptions
themselves, standing alone, are valid and, we believe, constitu-
tional. State v. Williams ...N.C....,... S.E. 2d... (1975);
State v. Sparks, 285 N.C. 631, 207 S.E. 2d 712 (1974), pet. for
cert. filed, 43 U.S.L.W. 3392 (U.S. Nov. 29, 1974) (No. 669).
Neither, by reason of Mullaney, it is unconstitutional to make
the presumptions mandatory in the absence of contrary evi-
dence nor to permit the logical inferences arising from facts
proved (killing by intentional use of deadly weapon), State v.
Williams, supra, to remain and be weighed against con-
35 trary evidence if it is produced. The effect of making
the presumptions mandatory in the absence of any con-
trary evidence is simply to impose upon the defendant a burden
to go forward with or produce some evidence of all elements
of self-defense or heat of passion on sudden provocation, or rely
on such evidence as may be present in the State’s case. The
mandatory presumption is simply a way of stating our legal
rule that in the absence of evidence of mitigating or justifying
factors all killings accomplished through the intentional use
of a deadly weapon are deemed to be malicious and unlawful.
The prosecution need not prove malice and unlawfulness unless
there is evidence in the case of their nonexistence. Cf. MeCor-
mick, Evidence (2d Ed. 1972) § 346, n. 91. We find this per-
centive language in G. Fletcher, “Two Kinds of Legal Rules:
A Comparative Study of Burden-of-Persuasion-Practi es in
Criminal Cases,” 77 Yale L.J. 905 (1968) (cited in Mullaney v.
Wilbur, supra, n. 16):
“The critical step in the conceptual evolution of malice
is MacKally’s Case. [9 Co. Rep. 65b, 77 Eng. Rep. 828
(1611)]. That early 17th century decision, as reported
and interpreted by Coke, stands for the principle that
the prosecution need not prove the element of malice to
35
convict of murder. The judges realized that malice does
not lend itself to affirmative proof; by and large, the
malicious killing is defined by reference to what it is not,
not by what it it. As agreed by all, one type that was not
malicious was a killing provoked by a sudden quarrel.
Thus, to have a triable issue of malice, one had to have a
triable claim that the defendant killed in the course of a
sudden quarrel.”
The same, we believe, may be said of the element of unlawful-
ness. There is no suggestion in Mullaney that placing such a
burden of producing evidence upon a defendant violates
Fourteenth Amendment Due Process. “Many States do require
the defendant to show that there is ‘some evidence’ indicating
that he acted in the heat of passion before requiring the prosecu-
tion to negate this element by providing the absence of passion
beyond a reascnable doubt. (Citations omitted.) Nothing in:
this opinion is intended to affect that requirement.” Mullaney
v. Wilbur, supra, n. 28.
If there is evidence tending to shew all elements of heat
of passion on sudden provocation or self-defense the mandatory
presumption of malice and unlawfulness, respectively, disap-
pear but the logical inferences remaining from the facts
36 proved may be weighed against this evidence. In United
States v. Barnes, 412 U.S. 837 (1973), the Supreme
Court said:
“Of course, the mere fact that there is some evidence
tending to explain a defendant’s possession consistent
with innocence does not bar instructing the jury on the
inference. The jury must weigh the explanation to de-
termine whether it is ‘satisfactory’. . . . The jury is not
bound to aecept or believe any particular explanation
any more than it is bound to accept the correctness of
the inference. But the burden of proving beyond a rea-
sonable doubt that the defendant did have knowledge
that the property was stolen, an essential element of the
crime, remains on the government.”
See United States v. Dube, 520 F.2d 250 (1st Cir. 1975) (Judge
Campbell concurring. )
Mullaney, then, as we have interpreted it, requires our trial
judges in homicide cases to follow these principles in their
jury instructions: the State must bear the burden throughout
the trial of proving each element of the crime charged includ-
36
ing, where applicable, malice and unlawfulness beyond a rea-
sonable doubt. The decision permits the state to rely on man-
datory presumptions of malice and unlawfulness upon proof
beyond a reasonable doubt that the defendant intentionally
inflicted a wound upon the deceased with a deadly weapon
which proximately resulted in death. If, after the mandatory
presumptions are raised, there is no evidence of a heat of pas-
sion killing on sudden provocation and no evidence that the
killing was in self-defense, Mullaney permits and our law
requires the jury to be instructed that defendant must be con-
victed of murder in the second degree. If, on the other hand,
there is evidence in the case of all the elements of heat of pas-
sion on sudden provocation the mandatory presumption of
malice disappears but the logical inferences from the facts
proved remain in the case to be weighed against this evidence.
If upon considering all the evidence, including the inferences
and the evidence of heat of passion, the jury is left with a rea-
sonable doubt as to the existence of malice it must find the
defendant not guilty of murder in the second degree and
should then consider whether he is guilty of manslaughter. If
there is evidence in the case of all the elements of self-defense,
the mandatory presumption of unlawfulness disappears but the
logical inferences from the facts proved may be weighed against
this evidence. If upon considering all the evidence, including
the inferences and -vidence of self-defense, the jury is left with
a reasonable doubt as to the existence of unlawfulness it must
find the defendant not guilty.
37 This case was tried November 21, 1974; Mullaney
was decided June 9, 1975. We decline, without further
guidance from the Supreme Court, to give the decision retroac-
tive effect. We believe and hope that the Supreme Court will
eventually determine that the decision applies prospectively
only. If such a determination is eventually made by the Su-
preme Court not only would we not be required to apply its
principles to the case now before us, Kaiser v. New York, 394
U.S. 280 (1969) ; Desist v. United States, 394 U.S. 244 (1969),
it seems that it would be considered error by the Supreme
Court for us to do so. Ii Michigan v. Payne, 412 U.S. 47 (1973),
the Michigan Supreme Court had rejected a higher sentence
imposed upon a defendant convicted after a retrial than was
imposed upon his first conviction as being violative of certain
due process requirements established in North Carolina v.
37
Pearce, 395 U.S. 711 (1969). The second sentence was imposed
before the Pearce decision. In Payne the United States Supreme
Court held that Pearce would not apply retroactively and it
was, consequently, error for the Michigan Supreme Court to
apply it to a sentencing proceeding which predated the decision
although the question of the constitutionality of the higher
sentence was pending before the Michigan Supreme Court
when Pearce was decided. The judgment of the Michigan
Supreme Court was reversed and the case remanded for further
proceedings. See also State v. Bullock, 268 N.C. 560, 151 S.E. 2d
9 (1966) and State v. Mills, 268 N.C. 142, 150S.E. 2d 13 (1966)
where we declined to apply Miranda v. Arizona, 384 U.S. 436
(1966) to eases in which the trials were conducted before the
decision but which were pending on appeal at the time the
decision came down, on the authority of Johnson v. New Jersey,
384 U.S. 719 (1966).
While Mullaney relied heavily on Winship and Winship was
held to be retroactive in Ivan V. v. City of New York, 407 U.S.
203 (1972), it does not necessarily follow that Mullaney will be
given retroactive effect.
In determining whether a new rule of constitutional pro-
portions is given retroactive effect the Supreme Court
23 seems to have considered three factors. The most im-
portant factor seems to have: been the purpose to be
served by the new rule. If the rule is designed to protect the
reliability of the fact finding process and “the constitutional
error presents a serious risk that the issue of guilt or innocence
may not have been reliably determined” then it has been said
that the decision will on this basis alone be given full retroac-
tive effect. van V. v. City of New York, supra (holding In re
Winship, supra, retroactive); Roberts v. Russell, 392 U.S. 293
(1968) (holding Bruton v. United States, 391 U.S. 123 (1968)
retroactive).
If the first factor is not determinative then the Supreme
Court has considered two other factors: the extent of reliance
on previous decisions, Tehan v. United States ex rel Shott, 382
U.S. 406 (1966), even though the new rule may have been
“foreshadowed” by intervening cases, Desist v. United States,
supra at 248, and the effect on the administration of justice of
retroactive application, Jd. at 251, not only in the nation but as
a whole but within the particular jurisdictions affected. Tehan
v. United States ex rel. Shott, supra at 418-419.
38
Although the first factor listed is clearly the most impor-
tant. how that factor is approached by the Supreme Court
seems sometimes to depend on analysis of the other two factors.
Compare Tehan v. United States ex rel. Shott, supra (holding
Griffin v. California, 380 U.S. 609 (1965) not retroactive), with
Stovall v. Denno, 388 U.S. 293 (1967) (holding United States v.
Wade, 388 U.S. 218 (1967) and Gilbert v. California, 388 U.S.
263 (1967) not retroactive) In holding Griffin, which declared
unconstitutional the California practice of commenting on a
defendant's failure to take the stand, not to be retroactive the
Supreme Court in Tehan recognized that, although only six
states would be affected by Griffin, almost every trial in those
six states going back many years might have to be unset if
Griffin were made retroactive. Noting such a devastating im-
pact on the administration of justice, the Supreme Cuurt said:
“Those reaping the greatest benefit from a rule com-
pelling retroactive application of Griffin would be
[those] under lengthy sentences imposed many years
before Griffin. Their cases would offer the least likelihood
of a successful retrial since in many, if not most, in-
stances, witnesses and evidence are no longer available.”
Tehan v. United States ex rel. Shott, supra at 418-419.
39 Mullaney and Winship are poles apart in terms of ex-
tent of reliance on previous rules and the effect on the
administration of justice of retroactive application. It seems
clear that the Supreme Court saw no reliance by New York on
previous rules in Winship. It traced almost 100 years of cases in
which it had “assumed that proof of a criminal charge beyond
a reasonable doubt is constitutionally required.” In re Winship,
supra at 362. It considered Jn re Gault, 387 U.S. 1 (1967) as an
express rejection of the notion that the Due Process Clause was
inapplicable to juvenile proceedings. Jn re Winship, supra at
365. Winship, furthermore, involved a juvenile proceeding. Its
impact, consequently, on the administration of justice in New
York would obviously be less than a rule which applies to all
homicide cases.
The jury instructions here under attack are based upon rules
Which have been firmly with us for over one hundred years.
Retroactive application of Mullaney in this State would, fur-
thermore, have the same sort of affect, recognized in Tchan,
as Griffin retroactively would have had in California and other
jurisdictions. As of June 30, 1975, there were 269 inmates in
39
prison in this State who had been convicted of first degree mur-
der serving sentences of life imprisonment or awaiting execu-
tion, and 728 inmates in prison having been convicted of second
degree murder serving sentences ranging from two years to life.
State Correctional Statistical Abstract for the Second Quarter,
1975. If Mullaney is to be applied retroactively new trials might
have to be awarded in many cases decades old.
A number of other jurisdictions would, we believe, be
similarly affected. In the following seven jurisdictions the de-
fendant has (or had) the burden to prove by a preponderance
of the evidence heat of passion on sudden provocation (or “ex-
treme emotional distress”) to reduce murder to manslaughter:
Delaware, Fuentes v. State, 18 Crim. Law Rptr. 2153 (Del. Oct.
14, 1975): Hawaii, (Mullaney would probably affect cases in
which the appeal was finally determined prior to August 27,
1971. Compare State v. Santiago, 53 Haw. 254, 492 P. 2d 657
(1971) with State v. Cuevas, 53 Haw. 110, 488 P. 2d 322
(1971)): Maine, Mullaney v. Wilbur, supra; Maryland, Wilson
v. State, 261 Md. 551, 276 A. 2d 214 (1971); Wilson v. State,
6 343 A. 2d 537 (1975): Burko v. State, 19
Md. App. 645, 313 A 2d 864 (1974) vacated .... US. ...., 95
S.Ct. 2624 (1975): Massachusetts, Comm. v Johnson ....
Mass. App. ...., 326 N.E. 2d 355 (1975) restating the
40 rule of Comm. v. York, 50 Mass (9 Met.) 93 (1845);
Cf. Comm. v. Gagne,..... Mass. ...., 326 N.E. 2d 907,
910 (1975): New York, People v. Balogun, .... N.Y. 2d ....,
.... N.E. 2d ....,372 N.Y.S. 2d 384 (N. Y. Supreme Ct. Kings
County 1975): Tennessee, Hawkins v. State 527 S.W. 2d 157
(Tenn. App. 1975). If, as we believe, Mullaney prohibits re-
quiring the defendant to prove that he acted in self-defense by
a preponderance of the evidence when that issue is properly
presented the following seven jurisdictions would be adversely
affected: Georgia, Chandle v. State, 230 Ga. 574, 198 S.E. 2d
289 (1973): See also Henderson v. State, .... Ga. ...., 218
S.E. 2d 612 (1975) (citing Mullaney) ; Ohio, State v. Poole, 33
Ohio St. 2d 18, 294 N.E. 2d 888 (1973) (for cases prior to Janu-
ary 1, 1974, the effective date of Ohio Rev. Code Ann. § 2901.05
(Page 1975) which probably corrects Ohio law) ; Pennsylvania,
Comm. v. Cropper, .... Pa. ...., 345 A. 2d 645 (1975) (inti-
mating that Muilaney may affect Pennsylvania); Comm. v.
Carbonetto, 455 Pa. 93, 314 A. 2d 304 (1974); Comm. v. Wine-
brenner, 429 Pa. 73, 265 A. 2d 108 (1970); Rhode Island, State
40
v. Vellow, 107 A. 871 (1919); South Carolina, State v. Judge,
208 8.C, 497, 38 S.E. 2d 715 (1946); Texas, Parkman v. State,
149 Tex. Cr. 101, 191 S.W. 2d 743 (1945) (at least in cases tried
before January 1, 1974, the effective date of the new Texas
Penal Code §§ 2.03, 9.02, 9.31 (Vernon 1974), which probably
corrects Texas law in this respect) ; West Virginia, State v. Col-
lins, 154 W. Va. 771, 180 8.E. 2d 54 (1971).
Retroactive application of Mullaney requiring retrials in
homicide cases years old in at least fifteen jurisdictions would,
we believe, have on the administration of justice in this country
a devastating impact.
We concede that the purpose of the Mullaney rule, to insure
a reliable determination of the question of guilt, or the degree
of guilt, weighs in favor of retroactivity. Yet the Supreme
Court has recognized that “the extent to which a condemned
practice infects the integrity of the truth-determining process
at trial is a question of probabilities.” Williams v. United
States, 401 U.S. 646, n. 7 (1971); Stovall v. Denno, supra.
While in Winship there could be no question that the standard
of proof employed was determinative on the issue of guilt. Jn
re Winship, supra, n. 2, whether the jury instructions con-
demned in Mullaney and even more clearly those under attack
here would in the final analysis be so determinative to a jury
so instructed is a matter of pure speculation.
41 We note that both cases from other jurisdictions
which have so far considered the question, have deter-
mined that Mullaney should not be given retroactive effect.
Fuentes v. State, supra (Delaware); People v. Balogun, supra
(New York).
For the reasons given, in the trial we find
No error.
Justice LAKE concurring in result.
It is elementary that a decision of the Supreme Court of
the United States interpreting the Constitution of the United
States is binding upon this Court and, although we may believe
it to be erroneous, we must give it full effect in cases coming
before us. It is equally elementary that a decision of a court
of last resort, declaring or interpreting a rule of law, is retro-
active and applies to all cases thereafter to be decided, irrespec-
tive of when they arose, unless the court which rendered that
decision declares otherwise. This is more clearly true when there
has been no prior conflicting decision by that court. This Court
41
does not have authority to declare a decision of the Supreme
Court of the United States non-retroactive. In the silence of
that Court on that question a decision by it, interpreting the
Due Process Clause of the Fourteenth Amendment, gives to
that clause the meaning so declared just as if the interpretation
had been expressly written into it at the time the Amendment
was ratified.
To hold, as the majority opinion does, that Mullaney v.
Wilbur, 421 U.S. 684, 95 S.Ct. , 44 L.Ed. 2d 508, declares
that the instruction given the jury in the case now before us,
violates the Due Process Clause of the Fourteenth Amendment,
but that we will, nevertheless, refuse to or ler a new tria! is for
this Court to deny to this defendant his mngat under the United
States Constitution. I agree that to give Mullaney v. Wilbur,
supra, retroactive effect and to hold that it declares the instruc-
tion in question is contrary to the Due Process Clause of the
Fourteenth Amendment would be disastrous, for such ruling
would require a new trial, not only for this defendant, but for
an unknown number, perhaps hundreds, of prisoners now serv-
ing sentences for murders of which this Court has held they
were lawfully convicted. The practical effect would be to release
most of these convicted murders upon society since loss of wit-
nesses, due to the passage of time, would, in most in-
42 stances, prevent conviction upon a retrial. This disaster
can be averted if the Supreme Court of the United States
declares Mullaney v. Wilbur, supra, to be non-retroactive, a
consummation devoutly to be desired, but this Court has no
authority so to declare and, as of this date, the Supreme Court
of the United States has not done so.
There is a way, however, whereby this Court can avoid this
disastrous result and, in my opinion, should do so. That is to
hold, as I believe is correct, that Mullaney v. Wilbur, supra,
does not declare the instruction given to the jury by the Su-
perior Court in Hankerson’s case a violation of the Due Process
Clause. If that be true, Hankerson is not entitled to a new
trial and the majority opinion has reached the correct result
for the wrong reason.
This is the instruction in question :
“Under our system, when a person is charged with a
crime and he pleads not guilty he does not have to prove
that he is innocent, he is presumed innocent, and? the
burden of proof is on the State to prove beyond a rea-
42
sonable doubt that he is guilty before you can find him
guilty.
os * *
“T charge that for you to find the defendant guilty of
second degree murder [the crime with which Hankerson
was charged and of which he stands convicted], the
State must prove two things beyond a reasonable
doubt * * * that the defendant intentionally and with-
out justification or excuse and with malice shot Gregory
Ashe with a deadly weapon. Malice * * * means that
condition of mind which prompts a person to take the
life of another intentionally, or to intentionally inflict
a wound with a deadly weapon upon another which
proximately results in his death without just cause,
excuse or justification.
* *
“In order to reduce the crime from second degree mur-
der to manslaughter, the defendant must prove not
beyond a reasonable doubt but simply to your satisfac-
tion that there was no malice on his part. And in order
to excuse his act altogether on the grounds of self de-
fense, the defendant must prove not beyond a reason-
able doubt but simply to your satisfaction that he acted
in self defense.
43 * a * ft &
“So I charge you, Ladies and Gentlemen, if you find
from the evidence and beyond a reasonable doubt that on
or about September 29, 1974, the defendant, Johnnie B.
Hankerson, intentionally and with malice and without
justification or excuse [i.e., not in self defense] shot
Gregory Ashe with a deadly weapon, thereby proxi-
mately causing George Ashe’s death, nothing else
appearing, it would be your duty to return a verdict of
guilty of second degree murder. However, if you do
not so find, or have a reasonable doubt as to one or more
of these things, you will not return a verdict of guilt of
second degree murder.” (Emphasis added. )
By this instruction the trial judge put squarely upon the
State the burden to prove beyond a reasonable doubt every ele-
ment of second degree murder, namely: (1) The defendant shot
Ashe; (2) he thereby proximately caused Ashe’s death; (3) he
43
shot Ashe with malice (i.e., intentionally and with a deadly
weapon); (4) he shot Ashe without justification or excuse
(i.e., not in self defense ).
Clearly, if this were all that the jury was told, the rule of
Mullaney v. Wilbur, supra, would be fully satisfied. But, says
the majority, this is not all they were told. They were also
told that to reduce the offense to manslaughter the defendant
must prove to the jury’s satisfaction he did not shoot Ashe with
malice, and to excuse the killing entirely on the ground of
self defense, the defendant must prove to the jury's satisfaction
that he killed Ashe in self defense, the elements of which were
correctly defined.
At first glance it seems inconsistent and contradictory to
instruct the jury that the State has the burden to prove be-
vond a reasonable doubt the presence of malice and absence of
the justification of self defense and the defendant has the
burden of proving to the satisfaction of the jury the absence
of malice or the presence of the justification of self defense.
This Court has, however, held +> the contrary many times, the
harmonizing factor lying in the meaning of the term “to the
satisfaction of the jury.”
44 In State v. Freeman, 275 N.C. 662, 666, 170 S.E. 2d
461, Justice Sharp, now Chief Justice, speaking for a
unanimous Court, said:
“These cases [citations omitted] enunciate and re-
iterate the rule—established in our 'aw for over one
hundred years, State v. Willis, 63 N.C. 26 (1868)—that
when the burden rests upon an a*cused to establish an
affirmative defense or to rebut the presumption of malice
which the evidence has raised against him, the quantum
of proof is to the satisfaction of the jury—not by the
greater weight of the evidence nor beyond a reasonable
doubt—but simply to the satisfaction of the jury.”
In Stansbury, North Carolina Evidence (Brandis Revision),
$ 214, it is said that proving the presence of self defense or
the absence of malice “to the satisfaction of the jury” does not
require a showing “by the greater weight of the evidence.”
If the defendant can satisfy this requirement by less than
the “greater weight” of the evidence; that is by less persuasive,
less convincing evidence than would be sufficient to tip the
scales ever so slightly in his favor, how can it be said that the
burden of proof “has been put upon him?” The burden of proof
44
is the burden to persuade the mind, to convince. A burden less
than this can only be a burden to establish a reasonable, rational
doubt. Thus, there is no inconsistency in telling the jury that,
to convict the defendant of second degree murder, the State
must prove presence of malice and absence of justification (self
defense) beyond a reasonable doubt and, although the State
has proved, beyond a reasonable doubt, an intentional killing
with a deadly weapon, the defendant must be acquitted of that
charge if he has satisfied the jury of the absence of malice or
the presence of justification (self defense).
Admittedly, the jury cannot be expected to know what this
Court has said proof “to the satisfaction of the jury” does not
mean. The question is whether the jury could have been misled
by what the trial judge told them in his charge in this case.
As above stated, he clearly and unequivocally told the jury
they must find the defendant not guilty of second degree mur-
der unless the State had proved beyond a reasonable doubt
every element of that crime, including the presence of malice
and the absence of justification (self defense). In my opinion,
the jury which found this defendant guilty of second
45 degree murder could not have been confused about this,
and the charge of the court, which is a correct statement
of the law of this State, did not in any way place upon the de-
fendant a burden of proof forbidden by the Due Process Clause
of the Fourteenth Amendment as now construed in Mullaney
v. Wilbur, supra. 1, therefore, concur in the majority’s conclu-
sion that this defendant is not entitled to a new trial.
46 Supreme Court of the United States
No. 75-6568
Johnnie B. Hankerson, PETITIONER,
Vv.
North Carolina
Own PeritTion ror Writ oF CERTIORARI TO the Supreme Court
of the State of North Carolina.
On CoNSIDERATION of the motion for leave to proceed herein
in forma pauperis and of the petition for writ of certiorari, it
is ordered by this Court that the motion to proceed in forma
pauperis be, and the same is hereby, granted ; and that the peti-
tion for writ of certiorari be, and the same is hereby, granted.
OcToBer 4, 1976.
(45)
O
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