Before Judge Albright at the 19 June 1978 Criminal Session of Wake Superior Court and on a bill of indictment proper in form, defendant was tried and convicted of first degree murder. He was sentenced to death in a separate proceeding as required by G.S. 15A-2000. He appeals pursuant to G.S. 7A-27(a).
Exum, Justice. Justice Carlton did not participate in the consideration or decision of this case.
Defendant is charged with the murder of Hal Roscoe Simmons. At trial he admitted killing Simmons but offered evidence tending to show he did so out of fear because Simmons had threatened him and was advancing on him at the time of the killing. The trial court refused to instruct the jury on self-defense.
We hold this was prejudicial error and order that defendant receive a new trial. We also discuss the admissibility of certain evidence offered by defendant relating to the issue of self-defense and defendant's assignment of error concerning the exclusion of prospective jurors for cause because of their attitudes on capital punishment.
At the time of the killing, both defendant and Simmons were inmates in Central Prison, quartered on J Block. J Block and the adjoining I Block are the most heavily secured sections in Central Prison. Inmates in these two blocks are not allowed contract with any other inmates in the prison. Their only contact with each other is for a period of one hour a day when they are given the option of going to a fenced-in area outside for recreation. The inmates are allowed out at this recreation period in small groups of not more than seven to nine men. They must undergo a strip search before they go out to the yard.
There are 46 prisoners housed in I and J Blocks. According to the testimony of Mr. Kenneth E. Garner, a Correctional Officer at Central Prison,
"All prisoners who are on I & J Block have had problems within the prison system. They are people who have been put into the North Carolina Prison System and thereafter had some kind of trouble. They either had problems with the inmate population or the staff. Basically speaking, the people in I Block and J Block are the toughest or most incorrigible prisoners in the North Carolina Prison System."
The state's evidence showed that Simmons was transferred from I Block to J Block on 8 February 1978. On 9 February he did not leave his cell for the recreational period; on 10 February, at about 9:30 a.m., he did. Some minutes thereafter defendant also left his cell to go onto the yard.
The procedure which is followed by an inmate on I or J Blocks who wishes to go outside was described as follows: The inmate removes all his clothing except for his underwear and his shoes and hands it to a guard. The clothes are then searched. The inmate is handcuffed and walked to a security cage. He is placed in the cage, and it is locked. His handcuffs are removed. He then takes off the rest of his clothing, and his body cavities and hair
are examined to ensure he has no weapons. He is given back his clothing and allowed to dress, after which a mechanical door to the security cage is opened so he can go outside.
Both Simmons and defendant went through this process. According to the state's evidence, as the door to the outside was being opened for defendant, he positioned himself so that it could not be closed. He then reached back and took a homemade knife that was handed him by Benny Linder, the inmate whose cell was next to the security cage. After receiving the knife, defendant stepped out into the yard, approached Simmons and stabbed him several times. Simmons ran up the stairs to I Block where he collapsed. Defendant laid the knife on a ledge and returned to J Block. Simmons died shortly after the stabbing. The cause of his death was a wound to the neck.
Defendant testified in his own behalf. He stated that he had been placed on J Block on 20 August 1977 after he had been stabbed by other prisoners on 26 June 1977. He did not not know Hal Roscoe Simmons prior to 10 February 1978. On the morning of that day he heard someone yell out his name. He responded and the person yelling identified himself as Simmons. The following conversation then ensued:
"He [Simmons] said, well, he asked me what floor, I told him I was in J-3-6 down there, and he said, well, well, don't want you to get in my face at no time; said going on the yard, don't want nothing to do with you on account I left from I Block over there and my friends have been talking about you, I don't want you in my face.
"I told him, I said, well, I didn't want no trouble with him, hadn't been having any trouble with the guys on the floor I had been recreating with them all of the time. And the still -- he said, go on the yard, hit the yard, I got something for you. I told him again I didn't want any trouble, you know, if I could avoid it."
Defendant testified that as a result of this conversation he feared that Simmons meant to stab him when they went out to the yard. He wanted to "talk it over" with Simmons but as a precaution he placed a knife which he had fashioned from a ...