STATE OF NORTH CAROLINA
v
.
Randolph County
No. 98CRS011370, 11373
PAUL JUNIOR HEADEN
Attorney General Roy A. Cooper, III, by Assistant Attorney
General Thomas B. Wood, for the State.
Robert T. Newman, Sr. for defendant-appellant.
HUNTER, Judge.
Paul J. Headen (“defendant”) appeals a judgment sentencing him
to twenty-four to thirty-eight months in prison upon his conviction
for discharging a firearm into an occupied dwelling. Defendant
assigns error to the admission of certain exhibits, to the trial
court's failure to instruct the jury on self-defense, and to the
denial of his motion for appropriate relief. We find no error.
The State's evidence tended to show that on 2 August 1998,
defendant was visiting Steven Thorne at his trailer in the Cedar
Lane Trailer Park in Ramseur, North Carolina. Defendant'sestranged wife, Phyllis Headen (“Headen”), also lived in the same
trailer park. Headen's trailer was within sight of Thorne's
trailer, and the trailers were approximately one hundred feet from
each other. Defendant and Thorne spent the morning sitting outside
on the tailgate of defendant's truck drinking beer. At some point
during the day, defendant walked from Thorne's trailer to Headen's
trailer and knocked on the door. Headen answered, and defendant
began questioning her as to whether she had one of his guns. David
Laughlin, who lived in Headen's trailer and was home at the time,
testified that he heard Headen and defendant exchanging words, and
that Headen would not permit defendant to enter the trailer.
Laughlin testified that he observed defendant walking back towards
Thorne's trailer.
Moments later, Laughlin heard Headen fire a warning shot, and
he looked out the window to see defendant approaching the Headen
trailer armed with a shotgun. Laughlin testified that he obtained
his own rifle, opened the trailer door, pointed the rifle at
defendant, and instructed him to put the shotgun down. Defendant
did not do so, and instead pointed the shotgun at Laughlin.
Laughlin stated that he stepped to one side, and defendant fired,
hitting the trailer door. Laughlin attempted to close the trailer
door, and defendant fired a second shot which hit the inside of the
door and caused a shotgun pellet to strike and injure Laughlin'schin. Laughlin thereafter fired three warning shots and struck
defendant in the stomach with a fourth shot. Defendant walked back
to Thorne's trailer and laid on the tailgate of his truck for a few
minutes. He then got into his truck and laid on the seat for a few
moments before Thorne transported him to the hospital.
Defendant testified on his own behalf, stating that after he
initially approached the Headen trailer to inquire about his gun,
Headen followed him outside and began shooting a gun in the air.
Defendant testified that he began walking towards Headen because he
“wanted to know what she was shooting at.” He testified that
Laughlin then opened the trailer door and fired about four shots
from a rifle, striking defendant in the stomach. Defendant
testified that he was unarmed at this time, and standing near the
driver's side of his truck. He stated that he got onto the
tailgate of his truck and laid there “for a few minutes” before
retrieving his own gun from the passenger side of his truck.
Defendant stated that he then shot at the Headen trailer so that
Laughlin would shut the door and he could get to the hospital.
On 11 January 2001, the jury convicted defendant of
discharging a firearm into an occupied dwelling and domestic
criminal trespass. The trial court continued judgment on the
trespass conviction but sentenced defendant on the firearm
conviction. Defendant appeals. Defendant first argues on appeal that the trial court erred in
admitting as evidence State's Exhibits 1-4, 6-8, 10, and 11, which
are various photographs of the scene, including the Headen trailer,
the Thorne trailer, defendant's truck, and shotgun pellet holes in
the door of the Headen trailer, as well as a picture of Laughlin's
injured chin. Specifically, defendant contends the State failed to
establish a proper foundation for admission of the photographs. We
disagree.
As our Supreme Court has observed, it is well-established that
a photograph is admissible when authenticated by the witness'
testimony that (1) the photograph represents “'a correct portrayal
of conditions observed by the witness'”; and (2) the photograph
will be useful in illustrating the witness' testimony. State v.
Lee, 348 N.C. 474, 493, 501 S.E.2d 334, 346 (1998) (citation
omitted).
In this case, Laughlin described the content of each
photograph, testified that they fairly and accurately depict the
scene on the day of the crime, and stated that they would assist
him with his testimony. The State informed the trial court that it
was offering the exhibits for illustrative purposes. This is a
sufficient foundation for admission of the photographs. See State
v. Vick, 341 N.C. 569, 583, 461 S.E.2d 655, 663 (1995) (witness'
testimony that photograph of defendant's vehicle accuratelydepicted vehicle on night of crime and that photograph would assist
her in illustrating her testimony sufficient foundation for
admission of photograph). This argument is overruled.
Defendant next argues that the trial court erred in admitting
State's Exhibit 9, the shotgun purportedly used by defendant to
shoot at the Headen trailer. Again, defendant argues that the
State failed to lay a proper foundation for its admission because
Laughlin did not explain how he was able to recognize the gun and
because the State failed to establish a chain of custody.
Real evidence, properly identified, is freely admissible.
State v. Williamson, 146 N.C. App. 325, 335, 553 S.E.2d 54, 61
(2001), disc. review denied, 355 N.C. 222, 560 S.E.2d 366 (2002).
Such evidence “must simply '“be identified as the same object
involved in the incident in order to be admissible”' and as not
having undergone any material change.” Id. (citations omitted).
“Authentification of real evidence '“can be done only by calling a
witness, presenting the exhibit to him and asking him if he
recognizes it and, if so, what it is.”'” Id. at 336, 533 S.E.2d at
61 (citations omitted). The trial court has sound discretion in
determining whether an object of real evidence has been
sufficiently identified. Id.
In this case, Laughlin identified Exhibit 9 as the same
shotgun used by defendant to perpetrate the crime. Laughlintestified that it was “[w]ithout a doubt” the same shotgun used by
defendant. When asked how he recognized the gun, Laughlin
testified that he recognized its rusted condition, and that “you
don't quite forget when somebody is pointing it at you.” Defendant
argues that Laughlin failed to adequately explain how he could
recognize the gun; however, the law does not require such an
explanation. Laughlin was merely required to identify the shotgun
as being the same gun used by defendant during the crime. Although
Laughlin did not explicitly testify that the shotgun had not
undergone any “material change,” it was within the trial court's
sound discretion to determine whether Laughlin had sufficiently
identified the shotgun for its admission. Defendant has failed to
point to any evidence which would suggest the shotgun had been
materially altered, and we therefore find no abuse of discretion in
the trial court's ruling.
Moreover, with respect to chain of custody, “the trial court
need not make a finding as to whether a detailed chain of custody
was established unless the items offered were not readily
identifiable or were susceptible to alteration and there was some
reason to believe that they had been altered.” State v. Owen, 130
N.C. App. 505, 516, 503 S.E.2d 426, 433, appeal dismissed, 349 N.C.
372, 525 S.E.2d 187, and disc. review denied, 349 N.C. 372, 525
S.E.2d 188 (1998). A shotgun is not readily susceptible toalteration, nor was there any evidence tending to show that the
item had been altered in any way. In any event, Laughlin readily
identified the shotgun as being the one used by defendant
“[w]ithout a doubt.” Therefore, the State was not required to
prove chain of custody, nor was the trial court required to make
findings in this regard. These arguments are rejected.
In his final argument, defendant maintains the trial court
erred in failing to instruct the jury on self-defense and to
include in the charge to the jury that defendant must have acted
“'without justification or excuse,'” and that the trial court also
erred in denying his motion for appropriate relief on these
grounds.
The trial court need only instruct a jury on self-defense
where there is evidence to support the charge and from which a jury
could infer that the defendant acted in self-defense. State v.
Allred, 129 N.C. App. 232, 235, 498 S.E.2d 204, 206 (1998). “The
trial court has broad discretion in presenting issues to the jury.”
State v. Jackson, 145 N.C. App. 86, 92, 550 S.E.2d 225, 231
(2001). “'The right to kill in self-defense is based on the
necessity, real or reasonably apparent, of killing an unlawful
aggressor to save oneself from imminent death or great bodily harm
at his hands.'” Id. at 91-92, 550 S.E.2d at 230 (citation
omitted). “The law of perfect self-defense excuses a
killing altogether if, at the time of the
killing, these four elements existed:
(1) it appeared to defendant and he
believed it to be necessary to kill the
deceased in order to save himself from death
or great bodily harm; and
(2) defendant's belief was reasonable in
that the circumstances as they appeared to him
at the time were sufficient to create such a
belief in the mind of a person of ordinary
firmness; and
(3) defendant was not the aggressor in
bringing on the affray, i.e., he did not
aggressively and willingly enter into the
fight without legal excuse or provocation; and
(4) defendant did not use excessive
force, i.e., did not use more force than was
necessary or reasonably appeared to him to be
necessary under the circumstances to protect
himself from death or great bodily harm.”
Id. at 92, 550 S.E.2d at 230 (citation omitted).
Defendant argues that he presented evidence of each and every
element of perfect self-defense. We disagree. Even taking
defendant's rendition of the facts as true, the evidence fails to
show that defendant could have had a reasonable belief that it was
necessary to use deadly force in order to avoid death or great
bodily harm. Defendant testified that after Laughlin shot him, he
walked to his truck where he laid down on the tailgate for several
minutes. After resting in his truck, defendant then got up, got
into the front seat of the truck, retrieved his gun, and shot atthe Headen trailer. There was no evidence that Laughlin ever came
out of the Headen trailer, ever made any movement towards
defendant, or even threatened defendant after he was shot.
The evidence simply fails to show that defendant reasonably
believed that deadly force was necessary at that point to protect
himself from imminent danger. See Jackson, 145 N.C. App. at 92,
550 S.E.2d at 230 (defendant must have reasonable belief that death
or great bodily harm is imminent). Even according to defendant's
version of the facts, after he was shot, defendant had plenty of
opportunity to get into his truck and drive away, or to simply walk
back to Thorne's trailer for assistance. Had defendant reasonably
believed he was in imminent danger of great bodily harm or death,
he would have acted immediately and not laid on the tailgate for
several minutes and only a few feet from, and within full view of,
Laughlin. Moreover, by defendant's own testimony, he did not shoot
at Laughlin because he believed it necessary to use deadly force,
but because he wanted Laughlin to shut the trailer door.
Defendant also argues that the trial court erred in failing to
add the words “'without justification or excuse'” to the jury
charge. Defendant's argument is based on the fact that his actions
were excused because he was acting in self-defense. However, where
the evidence fails to support an instruction on self-defense, the
trial court is not required to add the words “without justificationor excuse” to the jury charge. State v. Hall, 89 N.C. App. 491,
495, 366 S.E.2d 527, 529-30 (1988). The trial court did not err in
failing to give the requested instructions, or in denying
defendant's motion for appropriate relief on these grounds.
No error.
Judges GREENE and TIMMONS-GOODSON concur.
Report per Rule 30(e).
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