1. Conspiracy--criminal--sufficiency of evidence--passive cognizance
The trial court erred by denying defendant's motion to dismiss the charge of conspiracy to
commit murder because: (1) mere passive cognizance of the crime or acquiescence in the conduct
of others will not suffice to establish a conspiracy since the conspirator must share the purpose of
committing the felony; and (2) the evidence merely establishes a conversation in which defendant
made no response to her brother's suggestions to murder the victim, defendant's departure for a
camping trip the night of the victim's death, and defendant's assistance in concealing the crime.
2. Evidence--lay opinion--multiple personality disorder
Although the trial court erred by admitting the testimony of defendant's husband that
defendant suffered from a multiple personality disorder since a lay witness may not express an
opinion as to the existence or nonexistence of a disease or disorder when a person of ordinary
experience, knowledge, or training cannot diagnose that disease, it was not prejudicial error in
light of the other evidence properly admitted at trial showing defendant's guilt as an accessory
after the fact. N.C.G.S. § 8C-1, Rule 701; N.C.G.S. § 15A-1443(a).
3. Evidence--hearsay--state of mind exception--motive
The testimony of defendant's brother concerning whether the victim forced defendant to
have sex in order to visit her children was not hearsay because: (1) the testimony was not offered
to prove the truth of the matter asserted; (2) the testimony was introduced in an attempt to
illustrate the brother's state of mind regarding the victim, and to show the brother's motive for
killing the victim; and (3) ill-will between a defendant and a crime victim is generally relevant to
show possible motive for the crime. N.C.G.S. § 8C-1, Rule 801(c).
4. Criminal Law--joinder of defendants--motion to sever--no abuse of discretion
The trial court did not abuse its discretion by granting the State's motion for joinder of
defendant and her brother for trial and by denying defendant's motion to sever, even though
defendant contends she was deprived of a fair trial based on the testimony of a clinical
psychologist stating that defendant's brother was concerned for defendant's mental health and
that the antagonism between the victim and the brother was increased by defendant's report that
the victim forced her to have sex in order to get her children back, because: (1) defendant was
neither tried nor convicted of murder, and the effect of the pertinent testimony is largely irrelevant
to defendant's actual conviction as an accessory after the fact; (2) the testimony focused on
developing the brother's state of mind, and any reference to defendant marginally effected
defendant's own case; and (3) the State presented plenary evidence of defendant's guilt on the
crime of accessory after the fact.
LEWIS, Judge.
Defendant Anna M. Jacobs Merrill was tried at the 24 August
1998 session of Transylvania County Superior Court for conspiracy
to commit murder and accessory after the fact to the felony of
murder. The jury returned a verdict of guilty on 4 September 1998.
Defendant received consecutive sentences of 157 to 298 months for
the conspiracy conviction and six to eight months for the accessory
after the fact conviction.
Although defendant Anna M. Jacobs Merrill ("defendant") is the
sole defendant in this appeal, she was tried jointly with defendant
Frank Schlaepfer, who was convicted of first-degree murder and
conspiracy to commit murder. Tim Merrill, defendant's husband, was
indicted for conspiracy to commit murder and accessory after the
fact to the felony of murder, but entered into a plea agreement
with the State and did not stand trial.
The State's evidence tended to show the following. In
February 1992, defendant married Shaun Lee Jacobs, the victim.
Upon their divorce several years later, the victim received custody
of their two children. In 1996, this custody arrangement was
modified, allowing defendant custody of the children during the
1996-97 school year, and was subject to modification in May 1997.
Custody and visitation rights were a source of tension between
defendant and the victim after their divorce.
On 6 May 1997, defendant married Tim Merrill. The couplelived with Schlaepfer, defendant's brother, in Brevard, No
rth
Carolina, located in Transylvania County. At the time of his
death, the victim was living in Fairview, North Carolina, located
in Buncombe County.
On 28 May 1997, Detective Wayne Guffey of the Rutherford
County Sheriff's Department received a missing persons report on
the victim and began an investigation. Pursuant to this
investigation, defendant was interviewed by several detectives on
4 June 1997. Following the interview, defendant directed
detectives to a 55-gallon steel drum located down an embankment 30
to 50 feet from the road in Henderson County. Inside the drum, the
detectives discovered the victim's body. John Butts, the Chief
Medical Examiner for the State of North Carolina, testified that
the victim's death occurred on or around 24 May 1997. Examination
of the victim's body revealed three gunshot wounds, the fatal onelocated in the back of the victim's head and two others in the
victim's foot.
On the evening of 23 May 1997, defendant, Tim Merrill and
defendant's children went camping in Cherokee, at the Indian Creek
Campground. They returned at around noon on 24 May, the next day.
Upon their return, Schlaepfer informed defendant and Tim Merrill
that Shaun Lee Jacobs had been killed at their residence that
morning. Schlaepfer testified that Jacobs arrived at the residence
at 8:30 a.m. to pick up the children and became angry when
Schlaepfer told him they were not there. A fight ensued, during
which Schlaepfer shot and killed Jacobs.
[1]Defendant first argues the trial court improperly denied
defendant's motion to dismiss the charge of conspiracy to commit
murder for insufficiency of the evidence. To withstand defendant's
motion to dismiss, the State had to show substantial evidence as to
each of the essential elements of the crime. State v. Workman, 309
N.C. 594, 598, 308 S.E.2d 264, 267 (1983). The trial court must
consider all the evidence in the light most favorable to the State,
drawing all reasonable inferences in the State's favor. State v.
Cox, 303 N.C. 75, 87, 277 S.E.2d 376, 384 (1981).
The elements of conspiracy to commit murder are (1) defendant
entered into an agreement with at least one other person; and (2)
the agreement was for an unlawful purpose, here, to commit or
assist in committing murder. State v. Larrimore, 340 N.C. 119,
156, 456 S.E.2d 789, 809 (1995). Defendant disputes that the State
put forth substantial evidence establishing any such agreementbetween defendant and Schlaepfer.
As soon as the union of wills for the unlawful purpose is
perfected, the crime of conspiracy is complete, State v. Goldberg,
261 N.C. 181, 202, 134 S.E.2d 334, 348, cert. denied, 377 U.S. 978,
12 L. Ed. 2d 747 (1964), and no overt act is required. State v.
Gibbs, 335 N.C. 1, 47, 436 S.E.2d 321, 347 (1993). The agreement
may be established by direct or circumstantial evidence, which
establishes either an express agreement or a "mutual, implied
understanding." State v. Smith, 237 N.C. 1, 16, 74 S.E.2d 291, 301
(1953).
The State asserts that the following conversation, where
defendant, Tim Merrill and Schlaepfer were present, establishes an
agreement to murder between defendant and Schlaepfer. According to
the testimony of Tim Merrill, this exchange took place at their
residence on either 13 or 14 May 1997, ten or eleven days before
the victim's death:
A. Okay. Me and m
y wife were sitting in the
kitchen table, and I was doing some
paperwork on-the-job, because a bid for a
job that I was going to try to get.
[Defendant] was sitting beside me with a
coloring book, and [Schlaepfer] was in
the living room. He said that he had an
idea how to take care of [the victim].
Q. Who was he talk
ing to?
A. He was talking
to [defendant].
Q. All right.
A. And [defendant]
said, "How is that?"
[Schlaepfer] said for him -- for
[defendant] to call [the victim] and tell
him . . . to come over to the trailer,
that [Tim Merrill and defendant] had
separated and that when [the victim] came
over, that [Schlaepfer] would take care
of him. And [Schlaepfer] asked me if I
cared . . . . Q. Wh
at did you say?
A. I didn't care be
cause I wasn't really
paying attention -- my mind was on my
paperwork, and didn't really know what
was coming out of my mouth when I said,
"I don't care."
Q. Did [defendant]
say anything after
[Schlaepfer] made that statement?
A. No.
Q. About I will kn
ow how to take care of
him?
A. No, sir.
Q. Was there any o
ther conversation along
those lines at that time, talking about
[the victim] and how to take care of him?
A. No.
(4 Tr. at 129-130). The State also elicited testimony from Ned
Whitmire, an agent with the State Bureau of Investigation, as to
the same conversation:
A. Well, [Tim Merr
ill] . . . was working
with his invoices that he had some job
that he was planning to do or wanting to
make a bid on. And that [Schlaepfer] was
in the living room, and that he said that
he had an idea of how to take care of the
problem with [the victim]. That
[Schlaepfer] knew that they, meaning [Tim
Merrill and defendant], had gone to an
attorney to talk about custody over these
kids. And [defendant] was saying that
she was not going to give up these kids,
and he didn't want to give them up
either.
Q. "He"
being who?
A. [Tim Merrill.]
And he indicated then,
even if he, Tim Merrill, had to kill [the
victim] himself, he wasn't going to give
them up. He said that [Schlaepfer] had
an idea, and [defendant] asked him what
it was. [Schlaepfer] said for
[defendant] to call [the victim] and tell
him that they had separated and that she
was upset and wanting [the victim] to
come take her for a ride on his
motorcycle. When [Schlaepfer] came to
the house, [Tim Merrill and defendant]
would be gone and he, [Schlaepfer], would
kill [the victim]. And [Schlaepfer] saidnothing else after he said that.
(7 Tr. at 39-40.) The State argues that defendant "discussed"
plans to kill the victim in this conversation, which established an
agreement to murder. There is no evidence that defendant responded
in any way to Schlaepfer's proposed plan. Viewed in the light most
favorable to the State, this conversation does not reveal that
defendant assented at that time, either expressly or implicitly, to
Schlaepfer's proposition. Absent some suggestion of assent, not
even a mutual, implied understanding is established by this
evidence.
While the State's direct evidence relevant to the existence of
an agreement between defendant and Schlaepfer to murder the victim
fails, an agreement or understanding for the purposes of conspiracy
may be inferred from the conduct of the parties. State v. Bell,
338 N.C. 363, 393, 450 S.E.2d 710, 727 (1994). Such conduct may
consist of a number of indefinite acts, each of which, standing
alone, may have little weight, but, taken collectively, point
unerringly to the existence of a conspiracy. State v. Rannels, 333
N.C. 644, 659, 430 S.E.2d 254, 262 (1993).
The State's evidence established that a telephone call was
made to Jacobs' residence on 23 May 1997, the day before his death.
It was established that a call made from defendant's residence to
the victim's residence would be long distance. Tim Merrill
testified he placed a block on the telephone in their residence,
such that no long distance calls could be made from their
telephone. Marshall Johnson, defendant's neighbor, testified thatdefendant, Tim Merrill and Schlaepfer had used his telephone to
make long distance calls on several occasions. The phone jack they
used when making these calls was located outside. The State
introduced into evidence Johnson's telephone bill, which revealed
a telephone call placed to the victim's residence on 23 May.
Johnson testified he was not home when the call was made. The
State presented no evidence as to the identity of the caller.
Evidence that defendant placed the 23 May phone call may have
supported a reasonable inference that defendant assisted in
furthering Schlaepfer's plan. This could have provided a basis to
infer her taking part in a conspiracy. Without such evidence,
there is no inference.
The State also points to the testimony of Charles Robinson,
Schlaepfer's friend, establishing that Schleapfer arranged for
defendant and Tim Merrill to borrow money to go camping on 23 May
1997. Robinson testified that he loaned defendant and Merrill ten
dollars that evening, in accordance with Schlaepfer's request. The
State contends this evidence establishes defendant's assent through
furtherance of Schlaepfer's proposed plan. We disagree. Absent
any evidence linking this arrangement to the proposed plan, it may
be reasonably inferred only that Schlaepfer arranged for defendant
and Tim Merrill to go camping.
If the State's evidence did establish that defendant borrowed
this money in conjunction with Schlaepfer's proposed plan, without
more, a reasonable inference would exist that defendant borrowed
money from Robinson knowing that when she departed, Schlaepferplanned to kill the victim. This evidence, without any further
participation by defendant, would still not allow us to infer her
agreement to murder the victim. Mere passive cognizance of the
crime or acquiescence in the conduct of others will not suffice to
establish a conspiracy. The conspirator must share the "purpose of
committing [the] felony." Model Penal Code § 5.03 cmt. (2)(c)(I),
at 407 (1962); see also Bates v. People, 498 P.2d 1136, 1138 (Colo.
1972); Worden v. State Police Merit Board, 174 N.E.2d 407, 407
(Ill. App. Ct. 1961); State v. Mariano, 934 P.2d 315, 317 (N.M. Ct.
App. 1997). It is not sufficient that the actor only believe that
the result would be produced, but did not consciously plan or
desire to produce it.
The State points to other instances of defendant's conduct to
establish a conspiracy to murder. This evidence includes
defendant's expressions of her desire that the victim be dead.
These comments, however, were made by defendant long before the
conversation between defendant, Tim Merrill and Schlaepfer took
place. None of defendant's expressions of this desire were
introduced in relation to Schlaepfer's plan. The State also points
to evidence establishing that defendant participated in efforts to
hide the victim's body and personal belongings, and initially
attempted to deceive law enforcement officers regarding the
victim's disappearance. Although concealment of a crime is
condemned by our law and may be strongly probative in some
contexts, defendant's conduct relative to concealment here does not
create a reasonable inference of her assent in Schlaepfer's plan. The evidence merely establishes the conversation on 13 or 14 May in
which defendant made no response to Schlaepfer's suggestions,
defendant's departure for Cherokee the night of the victim's death,
and defendant's assistance in concealing the crime. Collectively,
this evidence does not point, expressly or impliedly, to the
existence of a conspiracy. We hold it was error for the trial
court to deny defendant's motion to dismiss on the charge of
conspiracy to murder. We therefore reverse defendant's conviction
for conspiracy. We review defendant's remaining assignments of
error as they effect defendant's conviction for accessory after the
fact.
[2]Defendant next argues the trial court admitted testimony
by Tim Merrill that defendant suffered from multiple personality
disorder in violation of Rules of Evidence 701, 404 and 403. On
cross-examination of Tim Merrill, Schlaepfer's attorney asked,
"Isn't it true that [defendant] suffers from some sort of mental or
multiple personalities disorder?" Tim Merrill responded
affirmatively. (5 Tr. at 29.) Schlaepfer's counsel did not ask
Tim Merrill any other questions regarding defendant's purported
mental disorders. Rule 701 establishes the standard for a lay
witness' testimony:
If the witness is not testifying as an expert,
his testimony in the form of opinions or
inferences is limited to those opinions or
inferences which are (a) rationally based on
the perception of the witness and (b) helpful
to a clear understanding of his testimony or
the determination of a fact in issue.
N.C.R. Evid. 701. We have long held that a lay witness who has had a reasonable
opportunity to observe another is permitted to express an opinion
on the issue of mental capacity, when relevant. State v. Hammonds,
290 N.C. 1, 5-6, 224 S.E.2d 595, 598 (1976). However, a lay
witness may not express an opinion as to the existence or
nonexistence of a disease or disorder, when that disease does not
occur so commonly or have such readily recognizable symptoms as to
be capable of diagnosis by persons of ordinary experience,
knowledge or training. State v. Davis, 349 N.C. 1, 30, 506 S.E.2d
455, 471 (1998); Sherrod v. Nash General Hospital, Inc., 126 N.C.
App. 755, 763, 487 S.E.2d 151, 156 (1997). The question posed by
Schlaepfer's attorney effectively called for Tim Merrill, a lay
witness, to make a psychiatric diagnosis of defendant's mental
condition. No foundation was laid to show that Tim Merrill had the
expertise to make a diagnosis and no facts were elicited
establishing the basis for such an assessment. While it may have
been appropriate to ask about defendant's mental capacity if deemed
relevant, it was beyond Tim Merrill's ability as a lay witness to
testify as to a specific psychiatric diagnosis of defendant having
"multiple personalities."
Although it was error to admit this testimony, we hold it was
not prejudicial in light of the other evidence properly admitted at
trial. Again, we consider error solely as to defendant's
conviction for accessory after the fact. Defendant must show that,
absent the contested testimony by Tim Merrill, there is a
reasonable possibility the jury would have reached a differentresult. N.C. Gen. Stat. § 15A-1443(a) (1999).
The State presented the testimony of several witnesses
regarding defendant's assistance to Schlaepfer to conceal the
murder. Officer Wayne Guffey of the Rutherford County Sheriff's
Department and Detective Donald Cole of the Buncombe County
Sheriff's Department testified that defendant led them to an
isolated area where the body was located. Tim Merrill testified
that he and defendant bought supplies used to hide the victim's
body and helped destroy evidence of the crime. Tim Merrill also
testified that defendant joined Schlaefer in moving the victim's
body from their residence to another location. The State presented
plenary evidence of defendant's guilt as an accessory after the
fact. This evidence supercedes any effect the erroneously admitted
question and answer could have produced. Because any error was
harmless, we find it unnecessary to address defendant's contention
that admission of this testimony violated Rules 404 and 403.
[3]Defendant next argues certain testimony by Schlaepfer was
inadmissible as multiple hearsay. During cross-examination by the
prosecution, Schlaepfer explained the relationship between
defendant and the victim after their separation, including the
tension surrounding custody of their children:
Q. Did [defendant]
tell you that [the
victim] forced her to have sex on
occasions when -- in order to let her
have the children -- . . . for
visitation?
A. He wanted to ge
t back with her. He done
everything he could.
Q. But didn't [def
endant] tell you that [the
victim] forced her to have sex with him
in order to get her visitation? A. &n
bsp; That was [defendant's ex-boyfriend] that
told me that, when they went to Michigan
. . . .
Q. This idea of so
mebody forcing themselves
on [defendant], you didn't like that at
all, did you?
A. I never thought
anything about it. I
mean, at that point, I just --
Q. That didn't rem
ind you of what your
father used to do years before?
(8 Tr. at 26-27.)
The definition of hearsay under Rule 802 is "a statement,
other than one made by the declarant while testifying at the trial
or hearing, offered in evidence to prove the truth of the matter
asserted." N.C.R. Evid. 801(c). If a statement is offered for any
purpose other than for proving the truth of the matter asserted, it
is not objectionable as being hearsay. 2 Kenneth S. Broun, Brandis
& Broun on North Carolina Evidence § 195 (5th ed. 1998). This
testimony was not offered to prove the truth of the matter
asserted; whether or not the victim actually forced defendant to
have sex in order to visit her children was immaterial. Instead,
this testimony was introduced in an attempt to illustrate
Schlaepfer's state of mind regarding the victim, and tended to show
motive. State v. Robbins, 275 N.C. 537, 547, 169 S.E.2d 858, 865
(1969). Ill will between a defendant and a crime victim is
generally relevant to show possible motive for the crime. State v.
Greene, 324 N.C. 1, 16, 376 S.E.2d 430, 439 (1989), death sentence
vacated, 494 U.S. 1022, 108 L. Ed. 2d 603 (1990).
[4]In her last assignment of error, defendant contends the
trial court erred in granting the State's motion for joinder of
defendants for trial and in denying her motion to sever. N.C. Gen.Stat. § 15A-926(b)(2) provides in part:
Upon written motion of the prosecutor, charges
against two or more defendants may be joined
for trial: . . .
b. When, even if a
ll of the defendants are
not charged with accountability for each
offense, the several offenses charged:
1. &nb
sp; Were part of a common scheme or
plan; or
2. &nb
sp; Were part of the same act or
transaction; or
3. &nb
sp; Were so closely connected in time,
place and occasion that it would be
difficult to separate proof of one
charge from proof of the others.
Clearly, defendant's case falls within the parameters of G.S. 15A-
926(b)(2). "When joinder is permissible under the statute, whether
to sever trials or deny joinder is a question lodged within the
discretion of the trial judge whose rulings will not be disturbed
on appeal unless it is demonstrated that joinder deprived defendant
of a fair trial." State v. Ruffin, 90 N.C. App. 712, 714, 370
S.E.2d 279, 280 (1988). Without a showing that joinder has
deprived a defendant of a fair trial, the trial judge's
discretionary ruling on the question will not be disturbed on
appeal. State v. Burton, 119 N.C. App. 625, 630, 460 S.E.2d 181,
186 (1995).
Defendant contends she was deprived of a fair trial because of
certain testimony by Dr. Stansbury, a clinical psychologist who
testified as Schlaepfer's witness. In his testimony, Dr. Stansbury
mentioned that Schlaepfer was concerned for defendant's mental
health, and that "[t]he antagonism between [the victim] and
[Schlaepfer] was increased by [defendant's] report that [the
victim] forced her to have sex in order to get her children back." (8 Tr. at 149-50.)
Defendant contends that when viewed in light of Tim Merrill's
testimony that defendant suffered from multiple personalities, the
testimony of Dr. Stansbury unfairly suggested defendant was
"mentally ill" and thus, had a motive to kill the victim. We first
note that defendant was neither tried nor convicted of murder;
thus, this purported effect is largely irrelevant to defendant's
actual conviction as an accessory after the fact. We also note
that Dr. Stansbury's testimony clearly focused on developing
Schlaepfer's state of mind, and any reference to defendant therein
marginally effected defendant's own case. Furthermore, when we
consider this testimony in light of all of the other evidence in
the case, as is required under G.S. 15A-927(c)(2), Burton, 119 N.C.
App. at 630, 460 S.E.2d at 186, we again emphasize that the State
presented plenary evidence of defendant's guilt on the crime of
accessory after the fact. There was no error in the trial court's
denial of defendant's motion to sever.
No prejudicial error as to defendant's conviction of accessory
after the fact to the felony of murder.
Reversed as to defendant's conviction of conspiracy to commit
murder.
Remanded for resentencing on the conviction of accessory after
the fact to the felony of murder.
Judges GREENE and EDMUNDS concur.
*** Converted from WordPerfect ***