STATE OF NORTH CAROLINA
v
.
GEORGE MARECEK,
Defendant.
Attorney General Roy Cooper, by Assistant Attorney General
Steven F. Bryant, for the State.
Rudolf Maher Widenhouse & Fialko, by M. Gordon Widenhouse,
Jr., for defendant-appellant.
HUDSON, Judge.
Defendant appeals his conviction and sentence for second-
degree murder. For the reasons given below, we find no prejudicial
error in the guilt-innocence phase of the trial, but we remand for
resentencing.
In 1991, defendant George Marecek, retired after serving
thirty-six years in the Special Forces at Fort Bragg, lived with
his wife, Viparet Seawong Marecek (variously referred to as
“Viparet” or “Viparat”), in Fayetteville. During their vacation at
Fort Fisher in May and June of 1991, Viparet was beaten with an
unidentified blunt object and drowned. Defendant was indicted for
the first-degree murder of his wife on 10 January 1994.
Defendant was first tried in 1995, but the jury deadlocked,and the court declared a mistrial. See State v. Marecek, 130 N.C.
App. 303, 304, 502 S.E.2d 634, 634 (hereinafter, Marecek I), disc.
review denied, 349 N.C. 532, 526 S.E.2d 473 (1998). A second jury
trial began on 27 January 1997, and concluded with defendant's
conviction of second-degree murder. See id., 502 S.E.2d at 635.
Defendant appealed to this Court, which reversed and remanded for
a new trial. See id. at 308, 502 S.E.2d at 637.
A third jury trial was held beginning on 10 July 2000. At
this trial, the State presented evidence tending to show that
defendant bought a life insurance policy on his wife in January of
1991, in the amount of $150,000, with an accidental death rider
paying an additional $150,000. Richard and Susan McCall, who
stayed with the Mareceks for two or three weeks during the spring
of 1991, testified that there was much tension between defendant
and Viparet, in contrast to the way their relationship had been
earlier in their marriage.
The State presented evidence from which one could infer that
defendant was involved with a woman in the Czech Republic. State's
Exhibit 30 consisted of an excerpt from a letter written by
defendant in the Czech language to an unknown person and signed by
“Jirka,” which is a diminutive form of the Czech name that
translates to “George.” Hana Kucerova, who translated the letter
from Czech into English, read her translation to the jury. She
read, in pertinent part, the following:
“The ultimate thing for me now is to
arrange for us to be together.” Square
bracket, translator's note: punctuation mark
is missing, square bracket. “The plan isready. I only need time and your help with
it, for you to be good, to learn English and
to take care of yourself. Everything else I
will do myself.
. . . .
“Darling, have that new translation done
immediately and send a copy. How was that
trip to Decin [a city in the Czech Republic]?
Is the car all right? Now you can sit down
and answer my questions. I keep thinking of
you all the time and I wish I were together
with you over there, but it will be soon.
Trust me. I have to rush. I am sending you a
kiss and I love you terribly.
“See you soon. Yours faithful to you,
Jirka.”
Susan Kirk, defendant's daughter, testified that defendant
made three trips to Czechoslovakia during the summer and fall of
1990. Viparet began to call Kirk with increasing frequency while
defendant was in Czechoslovakia. After defendant's trips to
Czechoslovakia, while defendant and Viparet were visiting Kirk,
defendant showed slides he took while in Czechoslovakia. There
were several of defendant and Hana Marecek, in which defendant and
Hana were standing next to each other and/or touching. Viparet
elbowed Kirk each time defendant showed a picture of himself next
to Hana. Kirk told Viparet not to be concerned that defendant
might be having an affair with Hana Marecek because Hana was
defendant's cousin.
Viparet had discovered some letters that she thought indicated
her husband was having an affair with a woman in Czechoslovakia.
She sought to have the letters translated by a woman who taught
Czechoslovakian at the Special Forces school in Fort Bragg. Theteacher's husband, Russell Preston (a friend of defendant), called
defendant and told him on the telephone, in Czech, that Viparet
wanted the letters translated because she wanted to use them in a
divorce proceeding. Defendant asked Preston to get the letters for
him, but Preston was unable to do so. Preston called Viparet and
asked her for the letters, but Viparet said “No, no, don't call me
here.” Inge Shaw, a friend of Viparet's who lived in the Mareceks'
neighborhood, told Preston “to be very careful, that you don't want
to get her in any trouble, she's very scared about this.” Preston
told defendant that he was unable to get the letters and that Shaw
told him to be careful, and defendant replied, “I'll take care of
it. . . . F-ing bitch, I'm getting tired of her crap.”
Richard McCall testified that while he was staying with the
Mareceks in the spring of 1991, he and Viparet discussed the
Mareceks' upcoming trip to Fort Fisher, and Viparet indicated that
she did not want to go. The day before defendant and Viparet left
for Fort Fisher, Viparet told her friend, Inge Shaw, that she was
afraid she might not return. Shaw's additional statements are
discussed in our analysis of the hearsay issues raised by
defendant.
Defendant and Viparet arrived at Fort Fisher on Friday, 31 May
1991. Around 6:00 p.m., on either Friday or Saturday, defendant,
accompanied by Viparet, approached Anthony Rackley and asked if he
knew of a secluded fishing spot. Rackley directed him to Davis
Beach, which could be reached by taking Fort Fisher Boulevard to
Davis Road. Rackely told defendant that at the end of Davis Road,“the pavement ends and you get out of your car and you've got an
open little beach way there with trails.” On Sunday morning, 2
June 1991, vacationer Carola Treu was on the pier fishing when
defendant approached her and introduced himself and Viparet. He
referred to Viparet as “his little girl.” Defendant told Treu that
they were on vacation and looking for a better fishing spot.
Viparet stood silent with her head down.
At about 4:00 p.m. on Monday, 3 June 1991, Dennis Rood, an
electrician at Fort Fisher, passed two pedestrians as he drove east
on Fort Fisher Boulevard at about five miles per hour. He
identified the two people as defendant and Viparet, and stated that
they were walking west, towards the river. He described Viparet as
wearing a reddish-colored blouse with shorts, and stated that one
of them was carrying beach equipment. At about the same time on
the same day, Tom and Beth Deleuw were driving past the Fort Fisher
recreation area when they saw a white man and an “Oriental woman”
crossing the road, carrying beach items, and looking like they were
either coming from or going to the beach. Mr. Deleuw remembered
that he said to Beth, “Look, there's a retired air force colonel
and his pie-faced wife.”
James Davis, a deputy with the New Hanover County Sheriff's
Department, took a missing person's report from defendant at about
8:00 p.m. on that evening, 3 June 1991. Defendant told Deputy
Davis that when he left for the beach at about 12:35 that
afternoon, his wife was at the cottage. She planned to do laundry
at the cottage and then check on a fishing spot for the next day. Defendant said that when he returned to the cottage, she was not
there, and he began to worry after 5:00 when she had not returned.
By the time Deputy Davis left the cottage, it was getting dark. He
instructed defendant to leave the lights on and to leave a note on
the front door if he left, so that Deputy Davis could find him in
case he found defendant's wife. Deputy Davis then conducted a
search, including the Davis Beach area, but found nothing. Deputy
Davis passed defendant's cottage ten or twelve times during the
course of the evening, and he noticed that the porch light was off
and defendant's vehicle never moved. He checked for a note each
time, but did not see one.
Carola Treu testified that she saw defendant at about 7:00
p.m. that evening. She and her mother were on the pier and he
showed them his wife's driver's license and asked if they had seen
her. Defendant told them that his wife left at 3:00 to find a
fishing place and he stayed home to do laundry. She was supposed
to be home at 5:00 and was now two hours late. Defendant told Treu
and her mother that Viparet left the cottage without her handbag,
money, or jewelry.
Treu and her mother saw defendant again on Tuesday, 4 June
1991, around noon. Treu testified that defendant “looked good,” so
she asked him if his wife had turned up. She testified that “then
he turned, his face turned, and he said, 'Oh, no, she still didn't
turn up, and I was running around, looking for her all the time,
and now I have to go home and change clothes to get long pants
because mosquitos bite me up all over the place, and then I startagain looking for her.'”
On Tuesday, 4 June 1991, Detective George Landy of the New
Hanover County Sheriff's Department, accompanied by Major Lanier
and Detective Bill Simmons, went to defendant's cottage to gather
information about Viparet. Defendant was in the process of
completing a handwritten summary of events. Detective Landy read
defendant's statement into the record, as follows:
THE WITNESS: To whom it may concern:
I, Colonel George Marecek--in parentheses NMI,
meaning no middle initial--and my wife,
Viparat Marecek, arrived here at Fort Fisher
on Friday, 31 May 1991, for a one-week
vacation that we have planned since February,
1991. Our daily schedule generally followed
this routine: 6:00, four-mile morning run,
light breakfast, 8:30 hours a.m. beach until
1430 p.m., showers, washing of beach towels
and other items, preparing evening meal, and a
short walk after dinner, one hour, watch
evening news, local and international, select
a short program of mutual interest and then
retire for the night.
On 3 June, 1991, the day started just
like all others, with the following
differences: Viparat and I returned from the
beach at 12:35 p.m., Viparat prepared a fresh
salad and a small portion of low fat cottage
cheese and we watched the noon news and a soap
opera--in parentheses it says the word
“Loving”--and a portion of--again in
parentheses, “All My Children.” I suggested
to Viparat that we return to the beach for a
couple, three hours, but she told me to go by
myself, that she has plenty of sun for now and
she will wash all the towels and other items
and, if she finish early, she may go and look
for a good place to go fishing tomorrow.
Also, she mentioned she would stop at the
pier, and if she is up to go swimming, she
will go to the base pool. She told me to be
home by 1700 hours and if she is not here to
remove the chicken from the refrigerator,
remove the skin and prepare them for dinnerand that she would be home shortly after. We
exchanged greetings and I left for the beach
approximately 2:30 p.m. and returned back at
4:55 p.m. Viparat was not at home, but she
washed all towels and other items and neatly
folded them up and stored them in the
cabinets.
I showered and washed the towel I used
when I noticed that there is a heavy rain
outside. I looked at the watch; it was 5:20
p.m. I was concerned at this time, for the
first time, about her absence and also
considered to go with the car and look for her
so she would not get wet. However, I decided
to wait and give her some more time. Shortly,
the rain stopped, and when she failed to
return, I left the house and started to look
for her. I looked everywhere, on base, off
base, on the beach, with the reception center,
talked to neighbors, other families staying in
Fort Fisher. No luck, no one seen her. I
went to the local police station, but nobody
was there. I continued to look for her and,
at 8:10 p.m., I called 911 from the reception
center and requested assistance from the
sheriff's department.
While I was waiting for his arrival,
Officer McDonald from the local police station
arrived, obtained the necessary information on
my wife Viparat and departed to see if he
could locate her. He informed me that a
sheriff will arrive shortly and will assist
me. Shortly after McDonald departed,
approximately 15 minutes, Sheriff Davis
arrived and obtained all the necessary
information on my wife and myself, completed a
police form which I signed, and requested a
picture of Viparat for identification. I gave
him her North Carolina driver's license, since
that is the only picture I have of Viparat
here. He departed, informing me that he or
the police officer will keep me informed.
I continued to look for Viparat until
11:35 p.m., at which time I decided to
organize a search plan for the following day,
June 4th, 1991, the way I think Viparat would
go looking for a new fishing place. I started
early morning, checking the area left of the
Fort Fisher pier. No luck in findinganything. Was hoping to get a national guard
helicopter, but no luck.
As soon as I finished that area, I
noticed a sand bar area in a greater distance
and decided that, after checking the immediate
area around the snack bar, I would find a way
there. Walking through the picnic area, I
realized that the big dirt road may lead into
the general area. I left for home, changed my
clothing into something more protecting
against the elements and started out with a
search of the area right of the Fort Fisher
pier.
Prior of actually starting, I got my
bearings from the Fort Fisher pier, when I
noticed a person actually standing on the sand
bar. This gave me more psychological
motivation to drive on, thinking Viparat may
have seen the same a day earlier. I followed
the road until I reached a blacktop road on
which I turned left and followed it until the
river. A good area, much used for fishing and
camping. When I entered the sand area, I
noticed the person again on the sand bar at a
greater distance, wearing a hat--or excuse me,
wearing what looked like a dark blue jacket,
with a beard, and it looked like he was
fishing, but I am not sure. The important
thing for me was that if he can stand there, I
can follow the edge and check the area. I
zigzagged back and forth on the river edge,
losing site [sic] of the person.
After a short time, I spotted something
different, something that did not blend with
the nature, it was my Viparat. The rest is
very difficult to articulate in words. My
subconscious mind must have taken control, and
many things happened at once. I had no
control over myself. I felt anger, outrage,
hate. I took the shortest way back to Fort
Fisher to call the authorities. I cannot
complete--I cannot completely account for what
happened during my run back or what actually
happened when I arrived there.
Q And is there anything else? You
mentioned a notation or a map on that
document, is that correct?
A Yes, there is some writing back here,
some names that he was giving us to contact,
and plus an outline of the drawing of the
river along Fort Fisher and the dirt trail
from the actual air base over to Davis Road
and down to the river.
Dennis Rood testified that on 4 June 1991, he entered the
general store at Fort Fisher and saw defendant on the floor
“hollering, 'I found her, I found her.'” Rood helped him up and
asked where she was; defendant indicated down the dirt road toward
Davis Beach. Rood and another man went down that road in a golf
cart and walked through the wooded area but did not find anything.
Henry Beeker, the public works director for the town of Kure
Beach, testified that around lunchtime on 4 June 1991, he and the
Kure Beach Police Chief, Troy Hamilton, responded to a radio call
that there had been a possible drowning at Fort Fisher. They
arrived at the general store to find defendant on his hands and
knees on the floor, “in pretty bad shape.” They helped defendant
into the police car and told him to direct them to the body.
Following defendant's directions, Chief Hamilton drove the police
car to the end of Davis Beach Road. Defendant appeared disoriented
and was unable, at first, to tell the men where his wife's body
was. Then defendant indicated the direction, and the men found
her. She was in the marsh grass, in the water, face down and
naked.
Detective Larry Hines of the New Hanover County Sheriff's
Department arrived at the Davis Beach area a few minutes after 1:00
p.m. on 4 June 1991. He testified that it took three or fourpeople to turn the body over. After the body was turned over,
Detective Hines noticed injury to the lip and eye areas and some
marking or bruising in the neck area. After the medical examiner
left with the body, Detective Hines searched the area and found
several paths, including one that came out close to where the body
was found. He saw “quite a few” shoeprints in the area, but due to
the sandy nature of the area, was not able to identify the prints,
except to say that they were “tennis shoe type.”
Later that afternoon, Detective Hines and Detective Simmons
spoke with defendant. Detective Hines testified as follows:
Q And what did [defendant] tell you at that
time?
A He was mainly speaking to Detective
Simmons, but I was in the conversation and
heard. He explained that him and his wife had
had lunch that day; that after lunch,
approximately, I think 2:30, they had watched
part of a soap opera. I think he described it
as All My Children. He made the determination
he was going back to the beach. She was going
to stay behind and do some laundry, and she
may go look for a place they may could go
fishing. They agreed to meet back at the
cottage around 5:00. He says when he got back
from the beach, she wasn't there, he got
worried and started looking for her, and he
actually contacted the sheriff's department
and filed a report.
Q Okay.
A And then he said he continued looking
that night. He said the next day, he got up
in the morning, went jogging. He said that
was a ritual for him and Viparat, they both
would go jogging. He got up that morning by
his self and went jogging. After that, he
came back and proceeded to look and search the
base area for Viparat. At one point, he made
it to the boat ramp, to the pier. He said he
got out on the pier and tried to put his mindinto the mind of Viparat and where would she
go looking for a place to fish. He said he
observed a white male with a beard, wearing a
blue suit, standing in the area north of that
pier, and it appeared to him this guy was
fishing. So he figured that if that guy could
get there and fish, then maybe Viparat thought
she could get there and fish.
So he proceeded to that area and, when he
got there, the man was not there, but that he
observed his wife's body floating in the
water; that she was face down; that he
approached the body, attempted to turn her
over and couldn't, or turn her neck, but then
he turned the body over, saw bubbles coming
out of her mouth; that he reached down and
kissed here, and then he said he lost it and
just went running back to the base.
Roger Hayes testified that on 4 June 1991, he and his uncle
went to the beach at the end of Davis Beach Road so that he could
fish while his uncle lay out in the sun. They arrived at the beach
in midmorning and stayed all afternoon, until the police arrived.
Hayes testified that while he and his uncle were on the beach,
Hayes saw only one other person: a man on the opposite side of the
beach, who had dark facial hair and was wearing something like a
jumpsuit and blue boots. Hayes saw the man walk down to the water,
turn and look at Hayes, and then walk back into the woods. This
man, who was not identified, never stepped or reached into the
water. About fifteen or twenty minutes later, officers came to the
beach and asked Hayes if he had seen a woman. Hayes testified that
he did not see defendant or anyone else walk down Davis Beach
toward where the body was found.
Dr. Robert Thompson performed the autopsy on the body. He
testified that the body had begun to deteriorate slightly, and“[t]here were tissue defects in the earlobes above the left eye and
the left side of the lower lip. These were consistent as having
been made by marine animals after having been in the water for a
period of time.” He testified that there were blunt-force injuries
to the head, which would not have been fatal but which may have
caused the victim to lose consciousness. There were also several
defensive wounds on the victim's arms and hands. The cause of
death was drowning, to which the head injuries would have
contributed. Dr. Thompson found no evidence of sexual assault and
was unable to determine the time of death.
Several witnesses testified that defendant had owned what was
described as a billy club, blackjack, or nightstick, that he kept
in his car.
On 7 June 1991, Detective Landry went to defendant's home in
Fayetteville for the purpose of recovering some letters hidden in
the victim's sewing machine. Defendant had given permission to
search his residence, and Detective Landry retrieved letters and
documents written in a foreign language.
On Thursday, 6 June 1991, Susan Kirk, defendant's daughter,
drove to Fort Fisher to be with her father, after she learned
Viparet was dead. The next morning, she accompanied defendant to
the funeral home to pick up the box of Viparet's cremated remains.
Kirk testified that defendant patted the box of remains and said,
“Now I have control of my little girl.” While they were driving
from the funeral home to the police station, defendant told Kirk
about the life insurance policy he had on Viparet, that he wouldcollect $300,000 due to the accidental death clause, and that he
intended to spend it on various family members. Defendant did not
want to have a memorial service for Viparet, but Kirk insisted.
The State introduced into evidence a marriage certificate
containing the names George Marecek and Hana Marecekova dated 12
July 1992. Kirk testified that Hana Marecekova is defendant's
cousin.
Defendant presented evidence tending to show that he and
Viparet had a good relationship. Rose Flynn, a neighbor who met
defendant in the spring of 1991 in her capacity as a real estate
broker, testified that she attended a meeting at which the Mareceks
were present. The meeting turned into “a little social thing,”
where everyone made small talk, which “was very pleasant,
friendly.” Her husband, Phillip Flynn, testified that several
times when he saw Viparet working in the yard, he stopped and
talked with her for a few minutes. There was one occasion in the
spring of 1991 when he spent some time with the Mareceks, and he
noticed nothing unusual.
Gunther Monteadora testified that he knew defendant through a
social club that met regularly on Saturday mornings. Occasionally
Viparet would attend. Monteadora testified that the he never heard
the Mareceks speak harshly or angrily towards each other and that
he knew of no problems or difficulties between them.
Christopher Cinkoske also attended the social club meetings.
When he saw the Mareceks together, they appeared “[c]aring,
affectionate glances, occasional touch, chit-chat, things likethat, just normal married stuff.” On one occasion in March of
1991, Cinkoske went to the Marecek's home to invite defendant to a
party. Defendant was not home, so Cinkoske waited and chatted with
Viparet. Cinkoske testified that Viparet seemed excited and happy
about the plans she and defendant had to add on to the house.
Cinkoske talked with Viparet at the party and again on Memorial Day
of 1991, when she mentioned that she and defendant were going to go
to Europe to bring back “a distant female relation to [defendant],
a cousin or something. She was joking around with me, since I was
single and not seeing anybody at the time, she was joking around,
I might want to meet this single female cousin they were bringing
back.”
Robert Holman, a neighbor of the Mareceks, testified that he
had been invited to the Mareceks' house on two or three occasions.
He testified that he was not aware of anything out of the ordinary
between defendant and Viparet, nor did he notice any hostility or
tension between the two. He testified that he talked to Viparet
daily, because she worked in the yard a lot, and he would see her
when he came home from work.
Alphonso Woodall testified that he had known defendant since
1981, when defendant was Woodall's superior. Woodall and the
Mareceks lived in the same neighborhood, and Woodall would see both
from time to time. Defense counsel tried to elicit Woodall's
opinion as to defendant's reputation in the community for
truthfulness and honesty, but the court sustained the State's
objection. Joseph Lupiak testified that he had served with defendant in
the Special Forces since the 1950's. Over the years, Lupiak and
his wife saw the Mareceks at many social events, and Lupiak often
socialized with defendant. Lupiak testified that he was able to
observe the Mareceks' relationship, as late as the early part of
1991, and that its was “a very amicable relationship. I seen no
hostilities, no problems. They seemed to get along fine. In fact,
they seemed to care for each other very much.”
Lupiak also described defendant's distinguished military
career and his many accomplishments and honors, and testified that
defendant was honorably discharged. When the court ruled that
evidence of defendant's reputation for truthfulness and honesty
could not be presented, defense counsel asked for and was allowed
the opportunity to make a proffer of Lupiak's testimony. In
response to a question about whether, in his opinion, defendant was
law-abiding, Lupiak testified that defendant was “one of those
individuals that will do nothing--from what I've seen, that will do
nothing that would be--that would hurt his integrity, that
would--that would make him look bad. He is one of those
exceptional individuals, very law-abiding.”
The defense presented several witnesses whose testimony was
consistent with defendant's written summary of events on the day of
Viparet's death. Counsel for the defense was allowed to read into
the record the testimony of two witnesses who were unavailable to
testify but had testified at an earlier trial. Thai Truong was
visiting Fort Fisher with his foster family on the weekend of themurder. He went to the beach on Sunday, 2 June 1991, and saw
defendant and Viparet there. He noticed Viparet because she was
“pretty good-looking.” Truong testified that he saw defendant and
Viparet on the beach in the morning and then again in the
afternoon. On Monday morning, 3 June 1991, Truong again saw both
defendant and Viparet on the beach. Truong left the beach around
noon to have lunch, and when he returned at about 1:30, he saw only
defendant on the beach. He remembered that Viparet did not return
to the beach in the afternoon, because he joked with his foster
mother, Susan Abe, that Oriental women are supposed to make lunch.
Truong testified that he stayed on the beach that afternoon until
5:30 or 6:00 and did not see defendant leave.
Susan Abe, Truong's foster mother, also testified that she saw
defendant and Viparet on the beach on Sunday, 2 June 1991. She
explained that her attention was drawn to Viparet because she,
herself, was of mixed ancestry and liked to guess the backgrounds
of other “Oriental[s].” On Monday morning, Abe saw both defendant
and Viparet on the beach. Abe testified that only defendant was
on the beach on Monday afternoon. She recalled joking about the
“proper Oriental wife . . . cleaning up after lunch.” Abe also
recalled that her husband was jealous because defendant watched her
when she went into the water, since his wife was not there. Abe
testified that her family left the beach on Monday at around 5:00.
She did not see or recall defendant leaving the beach, but
acknowledged that “[h]e may have.”
David L. Kelly, Jr., who was in the North Carolina NationalGuard, testified that he was at Fort Fisher for a two-week training
period at the time of the murder. Kelly saw defendant and his wife
running each morning as he was leaving for his physical training.
He also saw Viparet on several afternoons around 3:30 or 4:00,
walking towards the river. Kelly testified that on Monday, 3 June
1991, he saw Viparet walking by herself between 3:15 and 3:45. He
remembered the time because he had to return to his room to get
some things before a 4:00 class.
Richard Ward Tobin also attended the two-week National Guard
Training at Fort Fisher. He saw defendant and his wife jogging on
the mornings of Saturday, 1 June 1991, and Sunday, 2 June 1991.
Tobin testified that on Monday, 3 June 1991, around 4:00 in the
afternoon, he saw Viparet alone, leaving the reception center as he
was entering. Tobin smoked a pipe on the pier. At approximately
4:25, he saw Viparet again, still alone, in front of the reception
area. He was sure of the time because he knew how long his pipe
would stay lit.
Brooks Adcox, a banker, testified that in 1991 defendant had
$130,000 to $150,000 in liquid assets. These assets consisted of
joint bank accounts, to which Viparet had access. After Viparet's
death, defendant instructed Adcox to release all his records to the
police.
On 19 July 2000, the jury returned a verdict of guilty of
second-degree murder. The trial court found as an aggravating
factor that defendant took advantage of a position of trust or
confidence to commit the offense, and the court found as mitigatingfactors that defendant was honorably discharged from the military,
he had been a person of good character or had a good reputation in
his community, and he had an outstanding military career. The
court found that the aggravating factor outweighed the mitigating
factors and sentenced defendant to thirty years imprisonment.
Defendant appeals.
Finding “no justifiable reason” for a continuance, the court denied
the motion. Although a motion for a continuance “is ordinarily addressed
to the sound discretion of the trial judge, and the ruling will not
be disturbed absent a showing of abuse of discretion,” when the
motion “raises a constitutional issue, the trial court's action
upon it involves a question of law which is fully reviewable on
appeal by examination of the particular circumstances revealed in
the record.” State v. Beck, 346 N.C. 750, 756, 487 S.E.2d 751, 755
(1997); see State v. Tunstall, 334 N.C. 320, 328, 432 S.E.2d 331,
336 (1993) (“This Court has long held that when a motion for a
continuance is based on a constitutional right, the issue presented
is an issue of law and the trial court's conclusions of law are
fully reviewable on appeal.”).
Defendant argues here that in denying his motion to continue,
the trial court violated his constitutional rights. Specifically,
he contends that the court denied his due process rights to present
favorable evidence, to prepare a defense, and to introduce
potentially exculpatory evidence, as well as his right to effective
assistance of counsel.
In Tunstall, our Supreme Court held that:
The defendant's rights to the assistance
of counsel and to confront witnesses are
guaranteed by the Sixth and Fourteenth
Amendments to the Constitution of the United
States and by sections 19 and 23 of Article I
of the Constitution of North Carolina.
Implicit in these constitutional provisions is
the requirement that an accused have a
reasonable time to investigate, prepare and
present his defense.
Tunstall, 334 N.C. at 328, 432 S.E.2d at 336 (internal quotation
marks and citation omitted); see State v. Walls, 342 N.C. 1, 25,463 S.E.2d 738, 748 (1995), cert. denied sub nom. Walls v. North
Carolina, 517 U.S. 1197, 134 L. Ed. 2d 794 (1996). Thus, a
defendant “must be allowed a reasonable time and opportunity to
investigate and produce competent evidence, if he can, in defense
of the crime with which he stands charged and to confront his
accusers with other testimony.” Tunstall, 334 N.C. at 328, 432
S.E.2d at 336 (internal quotation marks omitted); see Walls, 342
N.C. at 25, 463 S.E.2d at 748. “'However, no set length of time is
guaranteed and whether defendant is denied due process must be
determined under the circumstances of each case.'” Walls, 342 N.C.
at 25, 463 S.E.2d at 748 (quoting State v. McFadden, 292 N.C. 609,
616, 234 S.E.2d 742, 747 (1977)).
Because defendant here has alleged that the denial of his
motion to continue deprived him of his constitutional rights, we
review the ruling de novo. See Beck, 346 N.C. at 756, 487 S.E.2d
at 755. “If defendant demonstrates that the denial of a motion for
continuance was erroneous and that the error was a constitutional
violation, defendant is entitled to a new trial unless the State
shows that the error was harmless beyond a reasonable doubt.” Id.
Our Supreme Court has stated that:
Continuances should not be granted unless
the reasons for the delay are fully
established. “[A] motion for a continuance
should be supported by an affidavit showing
sufficient grounds for the continuance.”
State v. Kuplen, 316 N.C. 387, 403, 343 S.E.2d
793, 802 (1986). “'[A] postponement is proper
if there is a belief that material evidence
will come to light and such belief is
reasonably grounded on known facts.'” State
v. Tolley, 290 N.C. 349, 357, 226 S.E.2d 353,
362 (1976) (quoting State v. Gibson, 229 N.C.497, 502, 50 S.E.2d 520, 524 (1948))
(alteration in original).
Id., 487 S.E.2d at 755-56 (citation omitted) (alteration in
original). However, “a mere intangible hope that something helpful
to a litigant may possibly turn up affords no sufficient basis for
delaying a trial to a later term.” State v. Tolley, 290 N.C. 349,
357, 226 S.E.2d 353, 362 (1976) (internal quotation marks omitted).
The issue here is whether defendant's motion gave rise to a
belief, “reasonably grounded on known facts,” that “material
evidence [would] come to light” if the continuance was granted.
Hendrick's affidavit provides, in relevant part, as follows:
4. On June 7-8, 2000, a drowning re-
enactment was performed by the RIPTIDE
homicidal drowning investigation team which
was lead [sic] by me.
5. This investigative re-enactment
included a study of the Cape Fear River's
physical attributes and a review of the Cape
Fear River tide conditions at Fort Fisher,
North Carolina in order to recreate the
conditions as closely as possible to the
conditions of the scene of Viparat Marecek's
death on June 3, 1991.
6. On approximately June 7, 2000,
RIPTIDE placed mannequins in the Cape Fear
River to study the movement over time of a
body in the water at and near the location
where the body of Viparat Marecek was found on
June 4, 1991.
7. The drowning re-enactment
demonstrated that a body could not have
remained in the water for a period of twenty
continuous hours at the location where the
body of Viparat Marecek was found.
8. The RIPTIDE team also discovered
small crustaceans that moved about just at the
water's edge where the water met the shore.
This is the most likely type of place wherethe victim was left for at least a period of
time greater than a couple of hours. Further
investigation of these crustaceans and the
type of bite marks they would leave are
warranted to prove or disprove this
possibility. Knowing where the victim was
left for at least a period of time will help
provide the necessary information to determine
where Viparat Marecek was left in the water in
relationship to where her body was found.
9. Because of my other commitments, I
have not yet been able to prepare a report on
my findings.
10. Once a report has been prepared,
significant additional investigation and study
can then be performed by additional experts.
We conclude that defendant failed to meet his burden. The
affidavit indicated that Hendrick's study showed the victim's body
did not remain at the location where it was found for twenty hours.
Hendrick suggests that additional investigation might determine
where the victim's body was “left in the water in relationship to
where her body was found.” While such information could be helpful
to the defense, it would not necessarily have been so. Moreover,
Hendrick concludes that “significant additional investigation and
study” by “additional experts” is necessary. The defense did not
identify these additional experts or indicate whether they were
available; nor did the defense indicate the nature of the
additional investigation and study that was necessary. Thus, the
affidavit does not lead to a belief “reasonably grounded on known
facts” that material evidence would be obtained if the continuance
were granted. Beck, 346 N.C. at 756, 487 S.E.2d at 756 (internal
quotation marks omitted).
We conclude that the affidavit suggests “a mere intangiblehope that something helpful to [defendant] may possibly turn up,”
Tolley, 290 N.C. at 357, 226 S.E.2d at 362 (internal quotation
marks omitted), rather than “a belief that material evidence will
come to light,” Beck, 346 N.C. at 756, 487 S.E.2d at 756 (internal
quotation marks omitted), as is required. Accordingly, the trial
court did not err in denying defendant's motion to continue on this
basis.
At the conclusion of defendant's evidence, defense counsel
again asked for a continuance, this time on the ground that a
potentially exculpatory witness was unavailable to testify.
Defense counsel addressed the court as follows:
There's another potential witness we are
attempting to get. He's a detective from
Detroit, who I learned about on Friday as a
possible witness, to come and, Your Honor,
I've been trying to--I wrote a letter and
faxed it to the people in Detroit on Friday,
and I've been trying to contact them yesterday
and today to see if he can and if he's
available to come. He's a detective who is
dealing with obtaining confessions from a
serial killer named Eric Armstrong in Detroit.
I have reason to believe, but I have not seen
the confession, there is a statement in that
indicating that perhaps Viparat Marecek may
have been his first victim, and I want to
bring him here so he can testify about this
confession, and I ask for a continuance until
tomorrow so I can get this witness here. The
reason for not having done this before are two
reasons; I didn't know and have information
of--and, in fact, I tried to gather further
information, including the copy of this
confession. I didn't know about this until
Friday, and I've been making diligent efforts
to get further information from the court and
to get him here, but I have not yet been able
to do so, and it would be imperative if there
really is a confession from another killer
that would implicate himself in the murder of
Viparat Marecek that he be permitted totestify as to a tremendous possibility of him
being the killer.
Defense counsel then stated again that he “still [did] not have the
confession to present to this court . . ..” However, counsel
stated that:
our information is that . . . the man has
stated in a confession that the first killing
occurred shortly after his high school
graduation, which was in later May of 1991,
and he killed a middle-aged Oriental woman on
the beach in North Carolina, and he lived in
New Bern at the time.
Defendant did not provide an affidavit in support of his
motion. See Beck, 346 N.C. at 756, 487 S.E.2d at 755 (stating that
a motion for a continuance “should be supported by an affidavit
showing sufficient grounds for the continuance” (internal quotation
marks omitted)). Counsel admitted that he had not seen the
confession, and did not indicate how he obtained the information
regarding its content. Because “defendant failed to provide any
form of detailed proof indicating sufficient grounds for further
delay,” the motion was properly denied. Id., 487 S.E.2d at 756
(internal quotation marks omitted).
N.C. Gen. Stat. § 8C-1, Rule 803 (2001). In State v. Hardy, 339
N.C. 207, 228, 451 S.E.2d 600, 612 (1994), our Supreme Court held
that statements which “are merely a recitation of facts which
describe various events” do not fall within the Rule 803(3)
exception. The Court later clarified that statements of fact
providing context for expressions of emotion are admissible under
Hardy. See State v. Gray, 347 N.C. 143, 173, 491 S.E.2d 538, 550
(1997), cert. denied sub nom. Gray v. North Carolina, 523 U.S.
1031, 140 L. Ed. 2d 486 (1998), stay allowed, 354 N.C. 71, 553
S.E.2d 205 (2001), stay lifted, 355 N.C. 496, 564 S.E.2d 205
(2002). The Court distinguished the testimony in Gray from that in
Hardy as follows:
Each of the witnesses testified as to the
victim's “state of mind,” that she was in fear
for her life. The factual circumstancessurrounding her statements of emotion serve
only to demonstrate the basis for the
emotions. Each of the witnesses testified
that the victim had stated with specific
reason and generally that she was scared of
the defendant.
Id.
Defendant here argues that the testimony in question includes
statements allegedly made to the witness by the victim, which
merely recite facts and do not describe the victim's state of mind.
We disagree.
Shaw, a neighbor and friend of Viparet, testified that Viparet
had been at her house the morning before the Mareceks left for the
beach. Shaw testified that Viparet was “very upset” when she left,
that she was “very sad,” and “had tears in her eyes.” Shaw
testified further that Viparet said “Inge, if I don't come
back--promise me this, Inge, if I don't come back from the beach,
call the police. Don't let him get away with it.” Shaw then
testified that she understood “him” to refer to defendant.
Defendant contends that this Court “has already found the
admission of these statements constituted reversible error” in the
previous appeal. Review of our previous opinion does not bear this
out. We summarized the testimony from this witness that we
characterized as “mere recitation of fact” as follows:
Inge Shaw testified that Viparet told her that
defendant was having an affair with his
cousin, that defendant was spending too much
money in Czechoslovakia, including $200.00 on
English tapes for his cousin, that defendant
didn't kiss her when she made him a birthday
cake, and that defendant didn't touch her
anymore.
Marecek I, 130 N.C. App at 306, 502 S.E.2d at 636. This is not the
same testimony about which defendant now complains. Unlike Shaw's
testimony in the most recent trial, the statements quoted above
were inadmissible because they were “mere recitation of facts and
were totally without emotion.” Id. (internal quotation marks
omitted).
Shaw testified at the most recent trial to Viparet's state of
mind: she was upset and sad. The statement that Shaw should not
“let him get away with it” implies fear or anger. We believe that
these statements are “testimony that includes both statements of
fact and emotion,” and are thus admissible. Id. Accordingly, the
admission of Shaw's testimony was not in error.
Defendant challenges the court's admission of certain
portions of Preston's testimony, as follows:
A Colonel Marecek got on the phone and I
spoke to him in Czech and said, “Colonel
Marecek”--
Q What did you tell him at that time?
[DEFENSE COUNSEL]: Objection, hearsay,
Your Honor.
THE COURT: Overruled.
A I said, in Czech, “Colonel Marecek, this
is . . . Sergeant Preston, we met out in '84
in DLI.” And he replied, in English, “Oh, I
remember.” And I said, “Sir, please speak
Czech, this is serious.” He said, “Go on.”
At that time, I said, “Sir, I got a phone call
last night from your wife, she's trying to get
hold of my wife, who is a teacher out here at
the Special Forces school, and she wants her
to translate some letters to be used in a
divorce proceeding against you.”
Q What, if anything, did Colonel Mareceksay to you at that time?
[DEFENSE COUNSEL]: Objection, Judge,
it's hearsay.
THE COURT: Overruled.
THE WITNESS: Colonel Marecek said, “We
need to get together. Do you have the
letters?” “No, I don't.” “Well, let's get
together and talk about it.” We agreed to
meet that following weekend at the Green Beret
Sport Parachute club on Fort Bragg.
Q And did you, in fact, meet with Colonel
Marecek the following week?
A Yes, sir, my wife and I met Colonel
Marecek in front of the--what we call Brown's
Bruce, it's a big statute of a Green Beret
there on Fort Bragg, and then we drove to the
Green Beret Sport Parachute Club, went inside
and sat down, had a few beers, and talked.
. . . .
Q And could you describe what happened when
you met with Colonel Marecek at the Green
Beret club?
A My wife and I sat down with him and
talked about the conversation I had had with
Mrs. Marecek, Mrs. Viparat Marecek. She was
concerned about him having a mistress in
Prague.
[DEFENSE COUNSEL]: Judge, I object.
This is irrelevant, and it's hearsay.
THE COURT: Overruled.
THE WITNESS: And we explained that I
didn't have the letters, but that she was
pretty serious about this, very upset.
[DEFENSE COUNSEL]: Judge, I object
again, hearsay.
THE COURT: Overruled.
THE WITNESS: She was very upset about
the letters and concerned about hisrelationship with this woman in the Czech
Republic.
[DEFENSE COUNSEL]: I would renew my
objection, Your Honor. It's hearsay.
THE COURT: Overruled.
Preston testified that defendant expressed a desire to see the
letters. Preston further testified that he called Viparet and
asked her to bring him the letters, and she responded, “No, no,
don't call me here.” Preston then testified, over objection, that
he told defendant about a call he received from Ingeborg Shaw.
Preston testified that he told defendant, “I've been called by Mrs.
Inge Shaw and she said to be very careful, that you don't want to
get her in any trouble, she's very scared about this.”
Again, this testimony contains statements of emotion as well
as factual content. According to Hardy, statements of this kind
are admissible. Thus, the trial court did not err. See id.
Defendant also objected to the admission of statements of
Susan Kirk, although he does not specify which of Kirk's statements
he finds objectionable. Defendant objected at trial to Kirk's
testimony regarding statements that Kirk made to Viparet. Because
Kirk was testifying to her own statements, these statements were
not hearsay statements. See N.C. Gen. Stat. § 8C-1, Rule 801(c)
(2001). Defendant contends in his Reply Brief that “the statements
made by witnesses to the victim presupposed comments she would have
made to them about defendant's conduct,” and thus, “the challenged
testimony essentially revealed the victim's statements which did
not show her state of mind, but, suggested defendant's extramaritalmisconduct.” We find this argument to be without merit.
THE COURT: What about Mr. Preston and
his testimony? The record will reflect your
objection, but I believe it's appropriate, and
I'm going to give it. So the objection is
overruled.
The court gave the following pattern jury instruction:
If a statement is made by another person
in the presence of the defendant, under such
circumstances that a denial would naturally be
expected from the defendant if the statement
was untrue, and it is shown that the defendant
was in a position to hear and understand what
was said and had an opportunity to speak, but
failed to do so, then his failure to deny the
statement would constitute an implied
admission.
If you find that the defendant made such
an implied admission, then you should consider
all of the circumstances under which it was
made, in determining whether it was a truthful
admission and the weight you will give it.
Pursuant to the North Carolina Rules of Evidence, “[a]statement is admissible as an exception to the hearsay rule if it
is offered against a party and it is . . . a statement of which he
has manifested his adoption or belief in its truth.” N.C. Gen.
Stat. § 8C-1, Rule 801(d)(B) (2001). “A person may expressly adopt
another's statement as his own, or an adoptive admission may be
inferred from 'other conduct of a party which manifests
circumstantially the party's assent to the truth of a statement
made by another person.'” State v. Sibley, 140 N.C. App. 584, 588,
537 S.E.2d 835, 839 (2000) (quoting FCX, Inc. v. Caudill, 85 N.C.
App. 272, 278, 354 S.E.2d 767, 772 (1987)). “'Adoption or
acquiescence may be manifested in any appropriate manner. When
silence is relied upon, the theory is that the person would, under
the circumstances, protest the statement made in his presence, if
untrue. The decision in each case calls for an evaluation in terms
of probable human behavior.'” State v. Thompson, 332 N.C. 204,
218-19, 420 S.E.2d 395, 403 (1992) (quoting N.C.G.S. § 8C-1, Rule
801(d) official commentary).
The testimony of Preston relating to an implied admission is
the following:
A I told [defendant], “George, I'm
getting--this is starting to stink, it smells
real bad. You're not as smart as you think
you are. I know you did it, I know you killed
her. Please don't tell”--
Q Who were you referring to at that time?
A I was referring to the murder of Viparat
Marecek.
Q And continue. What happened after that?
A I told him I didn't want to know. I
knew, but I didn't want him to tell me. I
said, “You're pretty stupid. You've gone on
around the world cruises for $20,000, you
bought a new Cadillac, you're upgrading your
house for $200,000. Just because you weren't
able to buy your position in the Czech
ministry of defense, doesn't mean you need to
live like this. It's starting to stink.
You're not as smart as you think you are.
People are going to--the man is going to knock
on your door.”
Q And what, if anything, did he say to you
at that time?
A I was being pretty forceful with him, and
every time I would tell him, you know, hey,
you know, you're buying a new car, this is
stupid, your insurance money, redoing your
blacktop driveway, this is starting to stink.
“Ah, they've got nothing on me. They can't
catch me.” At the end of the conversation
when I said, “They're going to dig her up,
they'll find some forensic--some scientific
evidence to convict you,” he said, “They
can't, I burned her body, sent her back.” And
then he reached over and grabbed me, real
strong grip, and he was in his cups, and said,
“They'll never catch me, I'm too smart for
them.”
Q Did he ever deny killing Viparat at that
time?
A No.
Defendant relies on State v. Spaulding, 288 N.C. 397, 219
S.E.2d 178 (1975), vacated in part on other grounds sub nom.
Spaulding v. North Carolina, 428 U.S. 904, 49 L. Ed. 2d 1210
(1976), to argue that an implied admission instruction here
constituted error. Spaulding, however, did not involve a jury
instruction. Rather, at issue was the admissibility of a statement
allegedly adopted by the defendant. Here, defendant did not objectto the testimony when it was offered at trial, nor does he now
argue that the testimony was inadmissible. Instead, he argues that
the statement did not support giving a jury instruction on implied
admission. We conclude that the testimony contained both express
and implied admissions and did support the instruction.
In Spaulding, the Supreme Court stated:
Implied admissions are received with
great caution. However, if the statement is
made in a person's presence by a person having
firsthand knowledge under such circumstances
that a denial would be naturally expected if
the statement were untrue and it is shown that
he was in position to hear and understand what
was said and had the opportunity to speak,
then his silence or failure to deny renders
the statement admissible against him as an
implied admission.
Id. at 406, 219 S.E.2d at 184. Defendant contends that Preston did
not have “any knowledge of the facts,” as required by Spaulding.
Spaulding is inapposite here, however, because Spaulding addressed
a situation where a defendant was silent in the face of a
statement. See id. When a defendant is silent in the face of a
statement, the inference that the defendant agrees with that
statement is a difficult one to draw. Here, defendant was not
silent. On the contrary, he allegedly responded, “They can't [find
evidence], I burned her body, sent her back . . .. They'll never
catch me, I'm too smart for them.” Defendant's reported failure to
deny that he killed his wife, along with these incriminating
statements, “manifest[] circumstantially [his] assent to the truth”
of Preston's statement that defendant killed his wife. Sibley, 140
N.C. App. at 588, 537 S.E.2d at 839 (internal quotation marksomitted).
We hold that Preston's testimony supported the trial court's
instruction on implied admissions. Thus, we need not address
Kirk's testimony, to which defendant also objected at trial.
A I do.
Q Can you state that opinion, please?
A Yes, I can.
Q Would you please state it?
A I believe George is probably one of the
most truthful and down-to-earth type
individuals I've run across in many, many
years. He's a straight down the line
individual. He would do nothing to desecrate
his integrity. He's--anything he does has
always been above reproach in his actions in
the military as well as what I've seen on the
civilian side of the house, as well. He's
just--and you know, I'm not saying this
because I'm European, but George and I were
brought up in the same type of lifestyle, and
we were taught to be truthful, to be honest,
and to be aboveboard, and that's why George is
the decorated hero he is, because he put other
personnel above himself. He did those things,
and those are some of the things I highly
respect George for because, after what he did
in combat situation, as well.
Q And do you also have an opinion,
satisfactory to yourself, concerning George
Marecek's character trait for being a peaceful
and law-abiding citizen?
A Yes, I do.
Q Can you state that opinion, please?
A George--the only time I've ever seen
George in anything that's not peaceful is when
he gets upset when somebody goofs up in the
military and does something that is stupid.
He would get upset, because he wanted to make
sure it was on the right track and it was the
right way to do the thing; and, other than
that, I've never seen him--I've never really
seen him lose his temper. He gets angry, like
anybody else, but not to the point where it
was extreme, just because it's human nature
and it was from something that was done dumb
by somebody else.
Lupiak did testify before the jury to defendant's honorable
service in the military, and to his opinion that defendant was law-
abiding and a man of integrity.
Defendant's statements to police officers were hearsay, butthey were admissible as admissions of a party-opponent. See
N.C.G.S. § 8C-1, Rule 801(d). Hearsay statements are subject to
the same rules governing impeachment or corroboration as other
statements. See State v. Stevens, 295 N.C. 21, 33, 243 S.E.2d 771,
779 (1978).
A witness' credibility may not be supported until after that
witness' character for truthfulness has been attacked. See N.C.
Gen. Stat. § 8C-1, Rule 608(a)(2) (2001). We agree with defendant
that his character for truthfulness was impugned by the
introduction of evidence contrary to his written statement that he
gave to police. See State v. Bethea, 186 N.C. 22, 24, 118 S.E.
800, 800 (1923) (“This Court has often held that whenever a witness
has given evidence in a trial and his credibility is impugned . . .
by testimony contradicting his . . ., it is permissible to
corroborate and support his credibility by evidence tending to
restore confidence in his veracity and in the truthfulness of his
testimony.”); 1 McCormick on Evidence § 33, at 124 (John W. Strong
ed., 5th ed. 1999) (observing that one main method of attacking a
witness' credibility is “proof by other witnesses that material
facts are otherwise than as testified to by the witness under
attack”). Therefore, even though defendant did not testify, his
credibility was impugned, and he should have been allowed to offer
evidence regarding his character for truthfulness.
Although we believe that the trial court erred in refusing to
allow the admission of the testimony, we do not find that this
error warrants a new trial. To establish prejudice, a defendanthas the burden of showing that “there is a reasonable possibility
that, had the error in question not been committed, a different
result would have been reached at the trial.” N.C. Gen. Stat.
§ 15A-1443(a) (2001). Defendant has failed to carry his burden.
Defendant contends that this error was prejudicial because
evidence of defendant's “stellar reputation for truthfulness” would
have encouraged the jury to believe his account over the
circumstantial evidence of the State. Thus, defendant's argument
that he was prejudiced by the exclusion of this testimony is based
on the assumption that the testimony would have enhanced the weight
of his written account of events. We note that, because defendant
made no proffer of the testimony Woodall would have given, we can
only consider Lupiak's proposed testimony in our analysis.
We find that the exclusion of Lupiak's testimony was not
prejudicial for two reasons. First, defendant put on testimony
from several witnesses that was consistent with his statement that
he returned to the beach after lunch. Both Thai Truong and Susan
Abe testified that defendant and Viparet were together on the beach
on the morning of Monday, 3 June 1991, but that defendant was alone
on the beach in the afternoon and remained there until 5:00. David
Kelly testified that he saw Viparet walking alone on the road that
led from her cottage towards the beach between 3:15 and 3:45 on
Monday afternoon. Richard Tobin testified that he saw Viparet when
he was leaving the reception center and she was coming in, at about
4:00 p.m. that afternoon. Tobin then passed Viparet again at about
4:25 p.m. Thus, defendant's story was corroborated by otherwitnesses. Moreover, the defense effectively cross-examined the
State's witnesses, whose accounts of defendant's whereabouts
differed. Evidently, the jury chose to discount the testimony of
defendant's witnesses. We are not persuaded that there is a
reasonable possibility that the jury would have believed this
testimony, as well as defendant's account, simply because they
heard Lupiak's testimony that defendant had a “stellar reputation”
for honesty.
Second, although the State's case was circumstantial, the
State did present evidence that was quite damning to defendant. In
particular, Russell Preston testified that he had the following
exchange with defendant:
I was being perfectly forceful with him, and
every time I would tell him, you know, hey,
you know, you're buying a new car, this is
stupid, your insurance money, redoing your
blacktop driveway, this is starting to stink.
“Ah, they've got nothing on me. They can't
catch me.” At the end of the conversation
when I said, “They're going to dig her up,
they'll find some forensic--some scientific
evidence to convict you,” he said, “They
can't, I burned her body, sent her back.” And
then he reached over and grabbed me, real
strong grip, and he was in his cups, and said,
“They'll never catch me, I'm too smart for
them.”
The defense attacked Preston's credibility on cross-
examination, and Lupiak, who worked closely with Preston for
approximately two years, testified to his opinion that Preston was
untruthful. Nevertheless, the jury, in convicting defendant,
apparently believed Preston's testimony. Additionally, Inge Shaw
testified that Viparet was fearful that she would not return fromthe trip to the beach and that Viparet instructed Shaw to call
police and not “let him [defendant] get away with it.” Defendant
challenged the court's admission of both portions of testimony, but
we have rejected those arguments.
We do not think there is a reasonable possibility that the
jury would have acquitted defendant on the basis of one witness'
testimony that defendant had a stellar reputation for honesty. Cf.
State v. Murray, 27 N.C. App. 130, 132-33, 218 S.E.2d 189, 191
(1975) (finding prejudicial trial court's error in excluding
testimony that would have impeached witness whose testimony
constituted the only evidence connecting defendant to crime).
Accordingly, this assignment of error is overruled.
[DEFENSE COUNSEL]: Objection as to
relevancy, Your Honor.
THE COURT: Overruled.
THE WITNESS: Yes, sir, I did. It was
probably 12, 14 inches long, black, I thought,
military-style nightstick.
Q How heavy was the stick you saw? Strike
that. Was it heavier on one end than the
other?
A Right. The bigger end, the hitting end,
was weighted, versus the hand end.
Q Did you ever handle that nightstick
yourself?
A One time I took it out and broke some
bottles with it.
Q Now, what about what year would it have
been that you had seen it over in Germany?
A Probably '69 or '70.
Q Now, when is the last time you saw that
nightstick, Mr. Marecek?
A Probably in 1988.
Q Where were you then when you saw it, it
you recall?
A At my sister's house.
. . . .
Q Where did you see it when you saw it on
that occasion?
A In the trunk of my father's car.
Defendant also objects to Russell Preston's testimony about
the stick. Preston had been describing several encounters he had
with defendant in May 1991 concerning some letters that defendant's
wife wanted to have translated. Preston then recalled the
following interchange between defendant and himself:
Q And what, if anything else, happened at
that point in time?
A When I mentioned Inge Shaw--and again, I
had never met Mrs. Shaw to this point--he had
said--he says, “F-ing bitch, I'm getting tired
of her crap.” And again, we were up in the
garage at his home. And then he had--I said,
“You got to watch out, Sergeant Major Mafia is
in Force.”
Q Why did you say that?
A Because Special Forces is a close-knit
community, and there's always a little bit of
conflict, if you will, between the officers
and the enlisted swine. And I told him, “You
need to be careful of the Sergeant Major
Mafia,” and he reached under the front seat of
his car, or somewhere in the front--and pulled
out a club and whacked it on his leg and says,
“I'm not worried about them, I got something
for them.”
Q Can you describe the club that he pulled
out?
A Not very well, sir, it was dark in the
garage, it was--he had it in his hand, and it
stuck out several inches, and looked to be
thin, about finger size in length, maybe
perhaps a little bit bigger, and made a nice
pop when he whacked it on his pant leg.
Finally, defendant objects to the testimony about the club by
Richard McCall, a good friend and neighbor of defendant and his
wife. McCall testified as follows:
Q Now, if I could direct your attention
back to a period of time, approximately 1986
or 1987, did you have an occasion to go with
Mr. Marecek into his--the garage of his home
in Fayetteville?
A Yes, I did.
Q And could you tell the jury the
circumstances surrounding that?
A The precise circumstances, I do not
recall, except that the entrance to the
Marecek's home, normally for, I guess, for
informal visitors like us, was through the
back door, and the back door was adjacent to
the garage. And on this occasion, I remember
going into Colonel Marecek's garage, and he
was telling me that he was not concerned with
being involved in--involved with being stopped
by bad guys because he had something for them.
And he opened up his car door and he reached
either under the seat or into the glovecompartment, I couldn't tell which, and he
pulled out an item and said, “I have this,”
and he handed it to me, and it was what I
would call a billy club or a blackjack.
Q Could you describe how large this billy
club or blackjack was, Colonel McCall?
A Yes. My memory is that it was probably
eight to twelve inches in length. The base of
it seemed to be--it was a rod, a lead rod, or
a heavy metal rod, as big or bigger than my
finger. As I recall, it was wrapped with
intertwined or interlacing leather, and I
recall it had a strap so you could strap it on
to your hand, and I remembered how remarkably
heavy it was, for such a short item to be
so--to be so heavy.
Q And after Colonel Marecek gave you this
blackjack, did you give it back to him?
A Yes, I did. I hit it on my hand, and I
thought, this thing is pretty powerful, this
is a powerful weapon. I gave it back to him.
Q Did you see where he put it after you
gave it back to him?
A He put it back into his automobile.
Defendant did not assign error to the admission of the
testimony about the club recounted above. He states in his brief
that he “is moving to amend the record on appeal to add this
assignment of error.” However, the court has received no formal
motion from defendant. In the exercise of our discretion, however,
we address this assignment of error. See N.C.R. App. P. 2.
Defendant argues that this testimony should not have been
admitted because it was not relevant. See N.C. Gen. Stat. § 8C-1,
Rule 402 (2001). We note that defendant did not argue at trial,
nor does he argue now, that admission of this testimony violatedRule 403 or any other rule of evidence. See N.C. Gen. Stat.
§ 8C-1, Rule 403 (2001). We disagree that this evidence was
irrelevant.
Evidence is “relevant” if it has “any tendency to make the
existence of any fact that is of consequence to the determination
of the action more probable or less probable than it would be
without the evidence.” N.C. Gen. Stat. § 8C-1, Rule 401 (2001).
Generally, all relevant evidence is admissible. See N.C.G.S.
§ 402. Our Supreme Court has stated that “in a criminal case every
circumstance calculated to throw any light upon the supposed crime
is admissible and permissible.” State v. Bruton, 344 N.C. 381, 386
474 S.E.2d 336, 340 (1996) (internal quotation marks omitted).
“Whether the evidence should be excluded is a decision within
the trial court's discretion. Hence, the trial court's decision
will not be disturbed, unless it is manifestly unsupported by
reason or is so arbitrary that it could not have been the result of
a reasoned decision.” State v. Burgess, 134 N.C. App. 632, 635,
518 S.E.2d 209, 211-12 (1999) (citation and internal quotation
marks omitted).
Dr. Robert Thompson, who performed the autopsy on Viparet,
testified that she had several lacerations and abrasions on her
head and face and a hairline fracture on her skull, all of which
were inflicted with a blunt object. He testified that she also had
defensive wounds on her hands and arms. Dr. Thompson testified
that, although these wounds would not have been fatal, the victim
“might have been knocked unconscious, or they could have been just,you might say, out a little bit and not been unconscious.” In his
opinion, the cause of death was drowning.
The witnesses' testimony that defendant, as recently as a
month before the murder, kept a nightstick in his car is relevant
to the State's theory that defendant inflicted the blunt-force
injuries on his wife, and then caused her to drown. It tended to
show that he possessed an instrument that could have been so used
Defendant argues that the nightstick was irrelevant because the
State did not connect the nightstick to the murder. Defendant's
position is undermined by Bruton, cited by defendant. In Bruton,
the defendant argued that the trial court should not have admitted
certain evidence, including numerous nine-millimeter cartridges,
that had been seized from his residence. The Court held that
[t]he evidence at trial did not link any of
the items seized at defendant Bruton's
residence with the killing of the victim.
However, the extensive inventory of nine-
millimeter cartridges found at defendant
Bruton's residence supported that State's
theory that defendant Bruton owned a nine-
millimeter weapon, used it in the killing of
the victim, and disposed of it after the
killing. For this reason the nine-millimeter
cartridges were relevant and admissible.
Bruton, 344 N.C. at 386-87, 474 S.E.2d at 340-41. Similarly, the
evidence regarding defendant's possession of a nightstick supported
the State's theory that defendant injured his wife with a blunt
object and then caused her to drown.
Defendant also cites State v. Patterson, 59 N.C. App. 650, 297
S.E.2d 628 (1982), in support of his position. However, the issue
in Patterson was whether it was error to admit a weapon itself intoevidence when there was no evidence connecting the weapon that was
admitted to the weapon used to commit the crime. See id. at 653,
297 S.E.2d at 630. Here, the nightstick was not admitted into
evidence.
We conclude that the trial court did not abuse its discretion
in allowing the testimony into evidence. Accordingly, this
assignment of error is overruled.
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