1. Sentencing--capital--aggravating circumstances--pre-trial hearing denied
The trial court did not abuse its discretion in a capital first-degree murder prosecution
which resulted in a life sentence by denying defendant's request for a pretrial hearing to
determine whether the evidence was sufficient for the case to proceed capitally. It is clearly
within the broad discretion of the trial court to hold a pretrial hearing and the court did not abuse
its discretion here; moreover, the jury found that the mitigating circumstances outweighed the
aggravating circumstances and recommended a life sentence, so that defendant failed to show
that he was prejudiced.
2. Homicide--first-degree murder--premeditation and deliberation--sufficiency of
evidence
There was sufficient evidence of premeditation and deliberation in a first-degree murder
prosecution.
3. Sentencing--capital--aggravating circumstances--especially heinous, atrocious, or
cruel
There was no error and no prejudice in a capital prosecution for a first-degree murder in
the submission of the especially heinous, atrocious, or cruel aggravating circumstance because
the evidence of multiple stabbings of the victim in the presence of her children was sufficient to
support this circumstance and the jury found that the mitigating circumstances outweighed the
aggravating circumstances and recommended life imprisonment.
4. Evidence--prior crime or act--assault on victim--admissible
The trial court did not err in a prosecution for first-degree murder by admitting evidence
of defendant's prior convictions, including assaulting the victim. Evidence of a defendant's
prior assaults on the victim for whose murder the defendant is being tried is admissible for the
purpose of showing malice, premeditation, deliberation, intent or ill will against the victim. The
ten-year time span between the conviction and the victim's death affected the weight rather than
the admissibility.
5. Evidence--hearsay--state of mind exception--incidents of abuse against victim--
factual events
The trial court did not err in a first-degree murder prosecution by admitting hearsay
statements of the victim where her state of mind during each of the conversations was relevant
because they related to her relationship with defendant preceding her death and rebutted
defendant's self-defense inferences. Statements relating factual events which tend to show the
victim's state of mind, emotion, sensation, or physical condition when the victim made the
statements are not excluded if the facts related by the victim serve to demonstrate the basis for
the victim's state of mind, emotions, sensations, or physical conditions. Moreover, the State
offered substantial independent testimony that defendant acted with malice, premeditation, and
deliberation.
6. Evidence--photograph of defendant--shackles and blood
There was no plain error in a first-degree murder prosecution where the court allowed the
State to publish to the jury a photograph of defendant taken on the morning of the killing in
which his legs were in shackles and there was blood on his hands and clothes and small knife
wounds on his hands. The State offered overwhelming evidence of malice, premeditation, and
deliberation and the jury would not have reached a different verdict if the photograph had been
excluded.
7. Evidence--homicide--photographs of victim's body
The trial court did not abuse its discretion in a first-degree murder prosecution by
allowing the State to publish to the jury photographs of the victim's wounds at the crime scene
and autopsy photographs taken at the same angles and showing the same wounds where the
autopsy photos revealed wounds that could not be seen in the crime scene photos because of the
blood covering the body. The photographs were neither cumulative nor excessive in number and
their probative value was not substantially outweighed by the danger of unfair prejudice.
8. Evidence--homicide--911 tape from victim's daughter--not unduly prejudicial
The trial court did not abuse its discretion in a first-degree murder prosecution by
admitting a tape of the 911 conversation between the victim's eight-year-old daughter and the
Sheriff's Office. Although defendant argued that the prejudicial effect of the tape outweighed
its probative value, the tape had probative value in corroborating the testimony of the daughter
and defendant did not show that admitting the tape was not the result of a reasoned choice.
9. Witnesses--motion to sequester witnesses--denied
The trial court did not abuse its discretion in a first-degree murder prosecution by
denying defendant's motion to sequester witnesses. Defendant did not show that the court's
ruling was so arbitrary that it could not have been the result of a reasoned decision.
Judge EDMUNDS concurring.
Appeal by defendant from judgment entered 10 November 1997
by Judge Howard R. Greeson, Jr. in Davidson County Superior
Court. Heard in the Court of Appeals 29 March 1999.
Defendant appeals his first-degree murder conviction.
Evidence presented at defendant's trial tended to show the
following:
On the morning of 14 November 1996, defendant Curtis Eugene
Wilds was sitting at a table in the kitchen of his home. His
wife Tonya Wilds and their three minor children, ages six, eight,
and nine, were also in the kitchen and Tonya was ironing clothes.
Tonya told the children that the police would want to ask themquestions at school that day because defendant had told the
police that Tonya had abused the children. As Tonya was talking
to the children, defendant got up from the table, picked up a
knife, walked over to Tonya, and threw her on the floor. A
struggle ensued and continued into the living room, where
defendant stabbed Tonya repeatedly in the neck and body, leaving
over a dozen wounds in her body. The children tried to pull
defendant away from Tonya. The middle child, China Wilds, called
911 and told emergency dispatchers that Curtis Wilds [was]
trying to kill Tonya Wilds. After defendant stabbed Tonya, he
dropped the knife and walked out the back door of the house.
Defendant testified that when he saw a police car turning into
his driveway, he walked back to the house and told the police
officers, I'm the one who did it. Tonya died as a result of
the numerous stab wounds.
On 13 January 1997, defendant was charged with first-degree
murder. On 20 February 1997, the trial court determined that
probable cause existed to believe an aggravating factor existed,
i.e., that the killing was especially heinous, atrocious, or
cruel, and declared the case a capital murder case. On 3
September 1997, defendant filed a motion for a pre-trial hearing
to determine whether there was sufficient evidence to support the
submission to the jury of an aggravating circumstance. The trial
court denied defendant's motion. On 27 October 1997, defendant
was capitally tried on the charge of first-degree murder. The
jury returned a verdict of guilty. At the sentencing hearing,
the jury found that the mitigating circumstances outweighed theaggravating circumstances and recommended a life sentence. On 10
November 1997, the judge sentenced defendant to life
imprisonment.
Attorney General Michael F. Easley, by Assistant Attorney
General Dennis P. Myers, for the State.
White & Crumpler, by David B. Freedman, Dudley A. Witt, and
Laurie A. Schlossberg, and Causey & Nixon, L.L.P., by
William G. Causey, Jr. and Alec Carpenter, for defendant-
appellant.
EAGLES, Chief Judge.
[1]We first determine whether the trial court abused its
discretion when it denied defendant's request for a pre-trial,
so-called Watson hearing to determine whether the evidence was
sufficient for the case to proceed to trial as a capital case.
See State v. Watson, 310 N.C. 384, 312 S.E.2d 448 (1984). The
trial court refused to hold a pre-trial hearing on the basis that
premature evidence might come out during the case itself to
support an aggravating factor that was not brought out at the
Watson hearing. Defendant contends that the trial court abused
its discretion by failing to offer a sustainable reason for
denying the defendant's motion. Defendant further contends that
the trial court's failure to conduct a Watson hearing resulted in
a trial of defendant before a death-qualified jury in violation
of his constitutional right to be tried by a fair and impartial
jury.
Defendant's argument fails. Defendant bases his argument
for a pre-trial hearing on State v. Watson, 310 N.C. 384, 312
S.E.2d 448 (1984). In Watson, the trial court held a pre-trialhearing to determine whether there was sufficient evidence to
support the submission of an aggravating factor to the jury. Id.
at 388, 312 S.E.2d at 452. The Watson Court commend[ed] the
procedure for its judicial economy and administrative
efficiency. Id. However, it is clearly within the broad
discretion of the trial court to hold a pre-trial hearing, and
the trial court did not abuse its discretion here. Furthermore,
our courts have uniformly rejected the argument that death-
qualifying a jury deprives a defendant of his constitutional
right to a free trial. See, e.g., State v. Young, 312 N.C. 669,
686, 325 S.E.2d 181, 191 (1985). Finally, we note that, although
the trial was held before a death-qualified jury, the jury
found that mitigating circumstances outweighed the aggravating
circumstances and recommended a life sentence rather than death.
Accordingly, defendant has failed to show that he was prejudiced
in any way by the trial court's refusal to hold a Watson hearing.
Defendant's assignment of error is overruled.
[2]Defendant next contends that the evidence was
insufficient to support a first-degree murder conviction.
Defendant contends that other than unreliable and inadmissible
hearsay, no evidence was presented to indicate that the defendant
had at any time formed the specific intent to kill his wife or
that he did so in a cool state of mind in furtherance of any plan
or design. The defendant's evidence . . . tended to show that
the victim initiated the violent conduct . . . by being the first
to pick up a knife. We disagree. "First-degree murder is the
unlawful killing of a human being with malice, premeditation anddeliberation." State v. Misenheimer, 304 N.C. 108, 113, 282
S.E.2d 791, 795 (1981). "Malice," which can be express or
implied, is not necessarily "hatred or ill will," but rather "is
an intentional taking of the life of another without just cause,
excuse or justification." State v. Robbins, 309 N.C. 771, 775,
309 S.E.2d 188, 190 (1983). "Premeditation" occurs when the
defendant forms the specific intent to kill some period of time,
however short, before the actual killing. State v. Weathers, 339
N.C. 441, 451, 451 S.E.2d 266, 271 (1994). "Deliberation" is
when the intent to kill is formed while the defendant is in a
cool state of blood rather than under the influence of a violent
passion suddenly aroused by sufficient provocation. Id. at 451,
451 S.E.2d at 271-72.
In order for the trial court to submit a
charge of first degree murder to the jury,
there must have been substantial evidence
presented from which a jury could determine
that the defendant intentionally [] killed
the victim with malice, premeditation and
deliberation. "Substantial evidence" is that
amount of relevant evidence that a reasonable
mind might accept as sufficient to support a
conclusion. In ruling upon defendant's
motion to dismiss on the grounds of
insufficient evidence, the trial court is
required to interpret the evidence in the
light most favorable to the State, drawing
all reasonable inferences in the State's
favor.
State v. Corn, 303 N.C. 293, 296-97, 278 S.E.2d 221, 223 (1981)
(citations omitted). Because premeditation and deliberation
ordinarily are not susceptible of proof by direct evidence, the
State generally must establish them by circumstantial evidence.
Weathers, 339 N.C. at 451, 451 S.E.2d at 271. Examples of
circumstances that may raise an inference of premeditation anddeliberation include (1) "conduct and statements of the defendant
before and after the killing," (2) "threats made against the
victim by the defendant, ill will or previous difficulty between
the parties," and (3) "evidence that the killing was done in a
brutal manner." State v. Bullard, 312 N.C. 129, 161, 322 S.E.2d
370, 388 (1984).
Here, the State presented testimony by defendant's daughter
China Wilds that on the morning of the killing defendant seemed
pretty angry and got up and went over there and got the knife
while [Tonya] was looking down ironing her clothes and that was
when he put [the knife] behind his back. China further
testified that defendant then put [the knife] around [Tonya's]
neck and then pushed her down on the floor. China testified
that the struggle moved to the living room, where [defendant]
was over there stabbing her. China further testified that
Tonya did not pick up a knife or otherwise attack defendant
before he began stabbing her. Furthermore, the State also
introduced into evidence the 911 call that China Wilds made, in
which she told dispatchers that Curtis Wilds is trying to kill
Tonya Wilds.
At trial, forensic pathologist John D. Butts, M.D.,
testified that when he performed an autopsy on Tonya's body, he
found a number of stab cutting injuries present on her body
that were centered mostly around the face and neck region, [and]
she had cuts on her hands, both hands, as well as a few minor
cuts and scratches on her right upper arm. Dr. Butts described
the wounds on Tonya's hands as defensive wounds. The State also introduced testimony by witnesses stating
that defendant had threatened to kill Tonya in the weeks before
he killed her. Tonya's sister Candi Crawford testified that in
the two weeks before Tonya's death, defendant told Candi twice
that [s]omebody has to die. Furthermore, Tonya's mother, Joan
Crawford, testified that defendant told her the week before Tonya
died that Tonya would end up like another woman who had been
murdered by her spouse two months earlier.
After careful review of the record and viewing the evidence
in the light most favorable to the State and allowing the State
every reasonable inference, we conclude that the State offered
substantial evidence from which the jury could determine that the
defendant intentionally killed Tonya with malice, premeditation,
and deliberation. This assignment of error is overruled.
[3]Defendant next contends that the trial court erred when
it submitted to the jury the aggravating factor that the killing
was especially heinous, atrocious, or cruel. Defendant
contends that the killing did not rise to the level of heinous,
atrocious, or cruel. We conclude that the evidence was
sufficient to support the trial court's finding that the multiple
stabbings of Tonya, while in the presence of defendant's and
Tonya's children, were especially heinous, atrocious, or cruel.
See State v. Evans, 120 N.C. App. 752, 463 S.E.2d 830 (1995),
cert. denied, 343 N.C. 310, 471 S.E.2d 78 (1996). Even if the
evidence had not been sufficient, defendant was not prejudiced by
the submission because the jury answered that the mitigating
circumstances outweighed the aggravating circumstances andrecommended life imprisonment. State v. Green, 321 N.C. 594,
612, 365 S.E.2d 587, 598, cert. denied, 488 U.S. 900, 109 S. Ct.
247 (1988). This assignment of error is overruled.
[4]We next determine whether the trial court erred when it
introduced evidence of defendant's 1986 conviction for assault on
a female and injury to personal property pursuant to Rule 404(b)
to show intent, ill will, and malice. At trial, a security
officer from Community General Hospital testified that on 11
January 1986, he was summoned to one of the hospital's locker
rooms, where defendant had one hand around [Tonya's] throat and
he was propped up with the other one against her. The security
officer testified that after he persuaded defendant to turn Tonya
loose, defendant then became angry and he and I got into it
after that and we knocked a few pictures off the wall . . . .
The security officer further testified that police officers
arrived and arrested defendant. Defendant was convicted of
assault on a female and injury to personal property. The trial
court admitted the conviction under Rule 404(b) on the theory
that it goes to show intent, ill will, and malice and stated
that the probative value outweighs prejudicial effect.
G.S. 8C-1, Rule 404(b) provides:
(b) Other crimes, wrongs, or acts. --
Evidence of other crimes, wrongs, or acts is
not admissible to prove the character of a
person in order to show that he acted in
conformity therewith. It may, however, be
admissible for other purposes, such as proof
of motive, opportunity, intent, preparation,
plan, knowledge, identity, or absence of
mistake, entrapment or accident.
G.S. 8C-1, Rule 404(b) (1992). Rule 404(b) is "a clear generalrule of inclusion of relevant evidence of other crimes, wrongs or
acts by a defendant, subject to but one exception requiring its
exclusion if its only probative value is to show that the
defendant has the propensity or disposition to commit an offense
of the nature of the crime charged." State v. Coffey, 326 N.C.
268, 278-79, 389 S.E.2d 48, 54 (1990)(emphasis in original).
Evidence of a defendant's prior assaults on the victim for whose
murder the defendant is being tried is admissible for the purpose
of showing malice, premeditation, deliberation, intent or ill
will against the victim under G.S. 8C-1, Rule 404(b). State v.
Gary, 348 N.C. 510, 520, 501 S.E.2d 57, 64 (1998). Defendant
argues nevertheless that the testimony regarding the assault
conviction is too remote in time to be admissible under Rule
404(b). Remoteness for purposes of 404(b) must be considered in
light of the specific facts of each case and the purposes for
which the evidence is being offered. State v. Hipps, 348 N.C.
377, 405, 501 S.E.2d 625, 642 (1998), cert. denied, __ U.S. __,
119 S. Ct. 1119 (1999). Remoteness in time may be significant
when the evidence of the prior crime is introduced to show that
both crimes arose out of a common scheme or plan. State v.
Stager, 329 N.C. 278, 307, 406 S.E.2d 876, 893 (1991). However,
remoteness is less significant when the prior conduct is used to
show intent, motive, knowledge, or lack of accident. Id. at 307,
406 S.E.2d at 893. Moreover, remoteness in time generally goes
to the weight of the evidence rather than to its admissibility.
Id.
Here, the assault conviction arose out of an incident inwhich defendant went to the victim's workplace and physically
abused her. We conclude that the conviction was admissible under
Rule 404(b) to show intent, ill will, and malice. Because the
ten-year time span between the conviction and Tonya's death
affected the weight rather than the admissibility of the
evidence, we conclude that the trial court did not err in
admitting the conviction. This assignment of error is overruled.
[5]In his next assignment of error, defendant contends that
statements made by Tonya to several witnesses constituted
inadmissible hearsay. Defendant contends that the witnesses'
statements regarding the incidents of physical and emotional
abuse were inadmissible hearsay under State v. Hardy because they
were mere recital[s] of facts and should not have been admitted
under the state of mind exception to the hearsay rule. See
State v. Hardy, 339 N.C. 207, 451 S.E.2d 600 (1994). We first
note that several statements that defendant refers to in his
brief are statements made on voir dire rather than in the
presence of the jury. We address only those statements made in
the presence of the jury.
WENDY PERRELL AND KELLY SMITH
At trial, Davidson County Sheriff's Office employees Wendy
Perrell and Kelly Smith testified that the day before defendant
killed Tonya, Tonya came into the Davidson County Sheriff's
Office to inquire about accusations of child abuse that defendant
made against her. Perrell and Smith testified that Tonya told
them defendant had attempted to change Tonya's life insurancepolicy to designate himself as the named beneficiary. Perrell
and Smith also testified that Tonya told them about an incident
in which she woke up in her bed one night to discover that
defendant was pouring gasoline on her nightgown. Smith testified
that Tonya's voice was shaking when she spoke to them and that
she was tearful. Smith testified that Tonya told her that she
had a primarily unhappy marriage filled with physical and
emotional abuse. Perrell testified that [Tonya] did not tell
me directly that she was scared of him or afraid of [defendant],
but her mannerism and the way she conducted herself, I just
assumed on my part. When asked on direct examination whether
Tonya told Smith that she was afraid of defendant, Smith
answered, Yes, she did and that she was afraid he was going to
try [to kill her] again.
Tonya's sister, Candi Crawford, testified that about two or
three weeks before defendant killed Tonya, Tonya called Crawford
and asked her to call Domestic Violence to see what she could do
to get a restraining order against [defendant] to leave the
house. Crawford testified that Tonya was too scared to call the
office of Domestic Violence herself. Crawford testified that
when she spoke to Tonya several weeks before Tonya's death, she
could tell that Tonya was upset because of her tears and then
the trembling in her voice, and that during her conversations
Tonya had stated that she was afraid of defendant. According to
Crawford, Tonya told her that she often slept on the couch of her
home with a knife underneath the cushion because she was afraidthat defendant would come out of the [bed]room one night and try
to kill her one night while she was lying there.
Tonya's close friend, Ben Robinson, Jr., testified that
during the last two months of her life, Tonya had expressed her
fear of defendant to Robinson and that she told Robinson about
incidents of emotional and physical abuse. Robinson testified
that Tonya had told him that defendant had threatened to kill her
and that Tonya told him about the incident involving defendant
putting gasoline on her nightgown.
Tonya's sister, Charo Washington, testified that Tonya told
Washington one week before she died that she was afraid defendant
was going to kill her. Washington further testified that Tonya
told her about the gasoline incident as well as a similar
incident in which defendant poured lighter fluid or gasoline in a
bathtub when Tonya was in it taking a bath. Washington further
testified that Tonya had told her about the time when she was on
her knees begging for her life with a gun to her head, she said,
'I begged for my life from that man.' She was sick of it.
Tonya's mother, Joan Crawford, testified that during the
last four months of her life, Tonya would often come over to
Crawford's house to sleep because she was afraid to close her
eyes around [defendant]. Crawford testified that Tonya was
afraid that defendant would kill her. Crawford also testified
that Tonya had told her about past incidents of physical andemotional abuse during Tonya's marriage to defendant.
G.S. 8C-1, Rule 803(3) of the North Carolina Rules of
Evidence allows hearsay testimony into evidence if it tends to
show the victim's then existing state of mind or "emotion,
sensation, or physical condition (such as intent, plan, motive,
design, mental feeling, pain, and bodily health), but not
including a statement of memory or belief to prove the fact
remembered or believed . . . ." G.S. 8C-1, Rule 803(3) (1992).
Although statements that relate only factual events do not fall
within the Rule 803(3) exception, State v. Hardy, 339 N.C. 207,
229, 451 S.E.2d 600, 612 (1994), statements relating factual
events which tend to show the victim's state of mind, emotion,
sensation, or physical condition when the victim made the
statements are not excluded if the facts related by the victim
serve to demonstrate the basis for the victim's state of mind,
emotions, sensations, or physical condition, State v. Gray, 347
N.C. 143, 173, 491 S.E.2d 538, 550 (1997), cert. denied, 523 U.S.
1031, 118 S. Ct. 1323 (1998). See also State v. Marecek, 130
N.C. App. 303, 306, 502 S.E.2d 634, 636, review denied, No.
362P98 (N.C. Supreme Court Dec. 30, 1998) ([W]itness testimony
that recounts 'mere recitation of fact' should be excluded, while
testimony that includes both statements of fact and emotion may
be admitted.). The determination that fact-laden statements
are not excluded from the coverage of Rule 803(3) where they tend
to show the speaker's then-existing state of mind is further
supported by the federal courts' interpretation of federal rule803(3). State v. Exum, 128 N.C. App. 647, 654, 497 S.E.2d 98,
103 (1998).
In the first place, it is in the nature of
things that statements shedding light on the
speaker's state of mind usually allude to
acts, events, or conditions in the world, in
the sense of making some kind of direct or
indirect claim about them.... In the second
place, fact-laden statements are usually
deliberate expressions of some state of
mind.... [I]t does not take a rocket
scientist ... to understand that fact-laden
statements are usually purposeful expressions
of some state of mind, or to figure out that
ordinary statements in ordinary settings
usually carry ordinary meaning. In the end,
most fact-laden statements intentionally
convey something about state of mind, and if
a statement conveys the mental state that the
proponent seeks to prove, it fits the
[federal rule 803(3)] exception.
Id. at 655, 497 S.E.2d at 103 (quoting 4 Christopher B. Mueller &
Laird C. Kirkpatrick, Federal Evidence § 438, at 417-18 (2d ed.
1994) (explaining the federal courts' broad reading of federal
rule 803(3)).
Here, the witnesses' testimony regarding Tonya's prior
statements is admissible to show Tonya's state of mind, despite
the fact that the statements also contained descriptions of
factual events. This case is distinguishable from Hardy in that
the statements in Hardy were taken from the victim's diary and
contained descriptions of assaults and threats against the victim
before she died but did not reveal the victim's state of mind or
contain statements of the victim's fear of defendant. Tonya's
explanatory comments about the prior incidents of physical and
emotional abuse "'were made contemporaneously with and in
explanation of the victim's statements' and crying, thus showingher state of mind. State v. Murillo, 349 N.C. 573, 588, 509
S.E.2d 752, 761 (1998) (quoting State v. Westbrooks, 345 N.C. 43,
60, 478 S.E.2d 483, 493 (1996)). The factual circumstances
surrounding her statements of emotion serve only to demonstrate
the basis for the emotions. State v. Gray, 347 N.C. 143, 173,
491 S.E.2d 538, 550 (1997), cert. denied, 513 U.S. 1031, 118 S.
Ct. 1323 (1998). Accordingly, we conclude that the evidence was
admissible under the state-of-mind exception of Rule 803(3).
Furthermore, it was not necessary for Tonya to state explicitly
to each witness that she was afraid, as long as the "scope of the
conversation . . . related directly to [her] existing state of
mind and emotional condition." State v. Mixion, 110 N.C. App.
138, 148, 429 S.E.2d 363, 368, review denied, 334 N.C. 437, 433
S.E.2d 183 (1993).
For admission under Rule 803(3), the state of mind testimony
must also be relevant to the issues in the case. State v.
Bishop, 346 N.C. 365, 379, 488 S.E.2d 769, 776 (1997). Here,
Tonya's state of mind during each of the conversations at issue
is relevant because it relates to her relationship with defendant
preceding her death. Tonya's state of mind is relevant to rebut
the defendant's self-defense inferences in his testimony that
Tonya attacked defendant with a knife before defendant killed
her. State v. Faucette, 326 N.C. 676, 683, 392 S.E.2d 71, 74
(1990). "The jury could infer from the evidence regarding
[Tonya's] state of mind that it was unlikely that [she] would do
anything to provoke defendant . . . ." Id. at 683, 392 S.E.2d at
74-75. Moreover, we conclude that the trial court did not abuseits discretion when it determined that the probative value of the
witnesses' testimony was not outweighed by undue prejudice.
Likewise, we conclude that the trial court did not err in
admitting Tonya's statements to these witnesses pursuant to Rule
803(3).
Finally, we note that even if some of the statements did not
fall under the state-of-mind exception, we conclude that the
admission of the statements was not prejudicial error. Defendant
confessed to killing Tonya. Independent of the testimony
regarding Tonya's statements to witnesses before she died, the
State offered substantial evidence, through the testimony of
China Wilds, the autopsy pathologist, and emergency paramedics
that defendant acted with malice, premeditation, and deliberation
when he killed Tonya. In light of this evidence, defendant
cannot show that there is a reasonable possibility that the
outcome of the trial would have been different if the trial court
had excluded the statements. State v. Hipps, 348 N.C. 377, 395,
501 S.E.2d 625, 636 (1998), cert. denied, __ U.S. __, 119 S. Ct.
1119 (1999); G.S. 15A-1443(a)(1988).
[6]We next determine whether the trial court erred when it
allowed the State to publish to the jury a photograph of
defendant taken the morning of the killing in which defendant's
legs were in shackles. The photograph revealed blood on
defendant's hands and clothes and small knife wounds on
defendant's hands. Because defendant stated no objection when
the State moved to introduce the photograph, we review for plain
error. Defendant contends that the photographs were highlyprejudicial to defendant in the same way that his appearance in
shackles would have been. As a general rule, a defendant in a
criminal case is entitled to appear at trial free from shackles
to protect the presumption of innocence. State v. Thomas, 344
N.C. 639, 651, 477 S.E.2d 450, 456 (1996), cert. denied, __ U.S.
__, 118 S. Ct. 84 (1997). Before deciding that an error by the
trial court amounts to 'plain error,' the appellate court must be
convinced that absent the error the jury probably would have
reached a different verdict. State v. Gardner, 315 N.C. 444,
450, 340 S.E.2d 701, 706 (1986). Here, the State offered
overwhelming evidence of malice, premeditation, and deliberation
to support the first-degree murder conviction. Based on the
record, we have concluded that the jury would not have reached a
different verdict if the photograph had been excluded and that
the submission of the photograph did not constitute plain error.
This assignment of error is overruled.
[7]We next consider whether the trial court abused its
discretion when it denied defendant's motion to exclude
photographs of the victim's body, including Exhibits 12, 14, 16,
64, 65, and 67, after she was killed. The trial court allowed
the State to publish to the jury photographs of the victim's
wounds taken at the crime scene and autopsy photographs taken at
the same angles and showing the same wounds as the photographs
taken at the crime scene. Defendant contends that the
photographs are unduly repetitive and their probative value is
outweighed by their prejudicial effect. See G.S. 8C-1, Rule 403
(1992). Photographs of homicide victims are admissible at trialeven if they are 'gory, gruesome, horrible, or revolting, so long
as they are used by a witness to illustrate his testimony and so
long as an excessive number of photographs are not used solely to
arouse the passions of the jury.'" State v. Thompson, 328 N.C.
477, 491, 402 S.E.2d 386, 394 (1991) (quoting State v. Murphy,
321 N.C. 738, 741, 365 S.E.2d 615, 617 (1988)). The State may
introduce photographs in a murder trial to illustrate testimony
regarding the manner of killing to prove circumstantially the
elements of first-degree murder. State v. Rose, 335 N.C. 301,
319, 439 S.E.2d 518, 528, cert. denied, 512 U.S. 1246, 114 S. Ct.
2770 (1994). What represents "an excessive number of
photographs" and whether the "photographic evidence is more
probative than prejudicial" are matters within the trial court's
sound discretion. State v. Hennis, 323 N.C. 279, 285, 372 S.E.2d
523, 527 (1988). Factors a court may consider include what the
photographs depict, the level of detail, the manner of
presentation, and the scope of accompanying testimony. Id. at
285, 372 S.E.2d at 527.
Here, the photographs were neither cumulative nor excessive
in number and their probative value was not substantially
outweighed by the danger of unfair prejudice. In fact, the trial
court excluded several pictures because it deemed them
repetitive. The photographs revealed the numerous wounds on
Tonya and were relevant as circumstantial evidence to illustrate
the testimony of China Wilds that defendant killed Tonya with
malice, premeditation, and deliberation. State v. Smith, 320
N.C. 404, 416, 358 S.E.2d 329, 336 (1987). The photographs werealso relevant to help the jury determine whether to find as an
aggravating circumstance that the murder was especially, heinous,
atrocious, or cruel. Furthermore, the trial court did not err in
admitting photographs from both the crime scene and the autopsy
because the autopsy photographs revealed wounds that could not be
seen in the crime scene photographs because of the blood covering
Tonya's body. State v. Kandies, 342 N.C. 419, 443, 467 S.E.2d
67, 80, cert. denied, 519 U.S. 894, 117 S. Ct. 237 (1996). This
assignment of error is overruled.
[8]We next address whether the trial court abused its
discretion when it admitted a tape of the 911 conversation
between Tonya's eight-year-old daughter China Wilds and the
Davidson County Sheriff's Office. Defendant argues that the
introduction of the tape into evidence added nothing to the
State's case by way of evidence and that the prejudicial effect
of the tape in arousing the passions of the jury outweighed its
probative value. We disagree.
Under G.S. 8C-1, Rule 403, "evidence may be excluded if its
probative value is substantially outweighed by the danger of
unfair prejudice." G.S. 8C-1, Rule 403 (1992). The decision to
exclude evidence under Rule 403 is left to the broad discretion
of the trial court, and will only be reversed on appeal upon a
showing that the decision was manifestly unsupported by reason or
was so arbitrary that it could not have been the result of a
reasoned decision. State v. Womble, 343 N.C. 667, 690, 473
S.E.2d 291, 304 (1996), cert. denied, 519 U.S. 1095, 117 S. Ct.
775, reh'g denied, 520 U.S. 1111, 117 S. Ct. 1122 (1997). Here,the 911 tape had probative value because it was offered to
corroborate the testimony of eight-year-old China Wilds regarding
the events leading to her mother's death. State v. Jordan, 128
N.C. App. 469, 475-76, 495 S.E.2d 732, 736-37, review denied, 348
N.C. 287, 501 S.E.2d 914 (1998). Defendant here has not shown
that the decision of the trial court to admit the 911 tape was
not the result of a reasoned choice. Accordingly, this
assignment of error is overruled.
[9]Defendant next contends that the trial court abused its
discretion when it denied defendant's motion to sequester
witnesses. Defendant contends that it becomes apparent upon a
review of the transcript that the witnesses offering hearsay
testimony used the voir dire and trial testimony of those who
came before them to educate themselves and 'strengthen' their
testimony. A ruling on a motion to sequester witnesses rests
within the sound discretion of the trial court, and the court's
denial of the motion will not be disturbed in the absence of a
showing that the ruling was so arbitrary that it could not have
been the result of a reasoned decision. State v. Call, 349 N.C.
382, 400, 508 S.E.2d 496, 507-08 (1998). Here, we conclude that
defendant has not shown that the trial court's ruling was so
arbitrary that it could not have been the result of a reasoned
decision. This assignment of error is overruled.
After a careful review of the record, we conclude that
defendant received a fair trial free of prejudicial error.
No error.
Judge EDMUNDS concurs with separate opinion. Judge SMITH concurs.
EDMUNDS, Judge, concurring.
Although I concur in the majority's analysis and holding, I
write separately to address defendant's motion to exclude
witnesses from the trial. Both North Carolina Rule of Evidence
615 and N.C. Gen. Stat. § 15A-1255 (1997) are permissive,
allowing the trial court discretion to exclude witnesses. See
State v. Ball, 344 N.C. 290, 474 S.E.2d 345 (1996), cert. denied,
520 U.S. 1180, 137 L. Ed. 2d 561 (1997). I agree that no abuse
of discretion has been shown under the facts of this case. In
comparison with the North Carolina rule, Federal Rule of Evidence
615 requires exclusion of witnesses upon motion of a party.
Those with experience in state and federal trials cannot fail to
have observed the impact of these different rules. Testimony
provided by witnesses who hear each other testify often
converges. This effect, while not necessarily sinister, appears
to be a reflection of human nature; it can lead irresolute
witnesses, consciously or not, to conform their testimony to what
they have heard before, undermining a jury's ability to evaluate
the evidence provided by each witness. Particularly in cases as
consequential as the capital murder case at bar, trial courts
should be mindful of the words of the Commentary to North
Carolina Rule of Evidence 615: [T]he practice should be to
sequester witnesses on request of either party unless some reason
exists not to.
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