STATE OF NORTH CAROLINA
v
.
Davidson County
No. 00 CRS 3241
STEPHEN ALGIE COOPER
Attorney General Roy Cooper, by Special Deputy Attorney
General, Francis W. Crawley, for the State.
Hough & Rabil, P.A., by S. Mark Rabil, for defendant-
appellant.
WALKER, Judge.
Defendant was charged with first degree murder and convicted
of second degree murder. Based on defendant's one prior record
point, the trial court determined that defendant had a Record Level
II, and he was sentenced to a minimum of 168 months and a maximum
of 211 months in prison.
The State's evidence tended to show the following: Deputy
Donna D. Gunn of the Davidson County Sheriff's Department was
dispatched to defendant's residence, a single-wide mobile home, on
the afternoon of 2 March 2000. Deputy Gunn walked to defendant's
front door and knocked several times without response. Deputy Gunn
proceeded to the back door, knocked a second time, announcedherself and called for the defendant to open the door. After
announcing herself again, defendant came to the door.
Deputy Gunn followed defendant into his home where she saw the
victim, Kathy McCracken, lying between the living room and the
kitchen with a pool of blood under her head. A gun also lay on the
floor near the victim. When Deputy Gunn asked defendant who the
victim was, he responded, “that's my girlfriend; I think she's
dead.” Defendant claimed the victim had been like that for “about
three hours.”
When Deputy Gunn inquired as to what happened, defendant
stated they “had been working on their taxes, the next thing he
knew the gun was in her hand and the gun had went off.” Defendant
claimed he did not call for help because he thought the victim was
bluffing. Defendant also told Deputy Gunn that the gun next to the
victim was his, that he thought defendant had shot herself, and
that he called a friend and his daughter and told them the gun had
discharged.
At 5:50 p.m., Davidson County paramedics arrived at
defendant's residence and observed the victim hemorrhaging from her
head, an entry wound in her left eye and an exit wound at the back
of her head. Additionally, the body had already become stiff,
indicating the time of death was two to three hours earlier.
Defendant was subsequently taken into custody where he waived
his right to counsel. He agreed to an interview and stated that
the victim came to his home to pick up tax forms and collect her
belongings. He stated further that, at some point, she went intothe bathroom and came out with a gun and told him she was going to
kill “you or me.” He then got out of his chair, approached the
victim, took the gun away from her, which she had cocked, and shot
her. Defendant also stated he was confused and upset and sat down
in his recliner and drank a glass of wine. Subsequently, he called
his daughter and a friend and told them he had shot the victim.
Michelle Cooper, defendant's daughter, testified that he
called her sometime between 10:00 a.m. and 3:30 p.m. on 2 March and
told her “there had been an accident and that he was in trouble.”
He stated “he had shot Kathy.” Jerry Maynard testified that
defendant called him that afternoon and when he asked to talk to
the victim, defendant responded, “I can't. I killed her. I had to
. . . . She's done me too dirty.” Defendant's daughter's roommate
testified that defendant called her and stated there had been a
shooting and that “he had shot her.”
Clyde Wilson, with whom the victim was residing on 2 March,
testified that the victim had spoken with him about her
relationship with defendant and said “on occasion they had an
argument and he was drinking, he got abusive and slapped her around
and stuck a gun to her head and threatened to blow her head off.”
John Sprinkle, the victim's brother, testified that on 15
February, the victim called and asked him to come and get her
because she feared for her life. Sprinkle further testified that
the victim stated defendant had been abusive with her, beat her and
held guns to her head on numerous occasions. Additionally, on 1
March, defendant talked with Sprinkle concerning the victim's newboyfriend and stated, “I can't handle that. I can't see her be
with nobody else. If I cannot have her, I can't see her be with
nobody else.”
Judy Horey, the victim's substance abuse counselor, testified
that at her counseling sessions the victim revealed the following:
On 29 December 1999, she and defendant had fought; on 15 November
1999, she had been beaten by defendant; on 18 October 1999,
defendant had physically and verbally abused her, held a gun to her
head, and threatened to kill her; on 14 December 1999, defendant
had threatened her; on 7 October 1999, defendant had held a gun to
her head and she had called the police; on 7 September 1999,
defendant was very controlling, had held a gun to her head and
locked her in a closet; and on 9 February 1999, defendant was
drinking and his abusiveness caused her stress.
Additionally, Ms. Horey was asked to describe the victim's
“openness” in her counseling sessions. She testified that the
victim, as is the usual case, initially was hesitant to share
information; however, as the victim became more oriented into the
group, she began to share information more freely.
Defendant first contends the trial court improperly allowed
Ms. Horey to testify concerning the credibility of the victim
during counseling sessions, in violation of Rules 405 and 702 of
the North Carolina Rules of Evidence. Specifically, defendant
argues that allowing Ms. Horey to describe the victim's “openness”
in counseling sessions amounted to impermissible expert testimony
as to the victim's credibility. Rule 405(a) of the North Carolina Rules of Evidence provides
that “[e]xpert testimony on character or a trait of character is
not admissible as circumstantial evidence of behavior.” Defendant
cites the following cases from our courts where an expert
improperly testified as to credibility: State v. Halloway, 82 N.C.
App. 586, 587, 347 S.E.2d 72, 73 (1986) (expert testified the
victim “testified truthfully”); State v. Aguallo, 318 N.C. 590,
598, 350 S.E.2d 76, 81 (1986) (expert testified the victim was
“believable”); State v. Heath, 316 N.C. 337, 340, 341 S.E.2d 565,
568 (1986) (expert testified the victim had no “record of lying”);
State v. Chul Yun Kim, 318 N.C. 614, 619-20, 350 S.E.2d 347, 350-51
(1986) (expert testified the victim had “never been untruthful with
me”); State v. Hannon, 118 N.C. App. 448, 450, 455 S.E.2d 494, 495
(1995) (that victim was being “truthful”); and State v. Jenkins, 83
N.C. App. 616, 623, 351 S.E.2d 299, 303 (1986) (that the victim was
“not making that up”). In each of these cases, the court held the
witness had improperly testified to the victim's credibility.
However, the present case is distinguishable in that Ms. Horey only
testified as to the victim's “openness” and not her credibility.
Furthermore, our courts have held an expert's testimony that
the victim “showed no evidence of an emotional disorder which would
impair her ability to . . . distinguish reality from fantasy,”
State v. Teeter, 85 N.C. App. 624, 629, 355 S.E.2d 804, 807 (1987),
and that the victim responded to a psychological test in an “honest
fashion,” State v. Kennedy, 320 N.C. 20, 30, 357 S.E.2d 359, 365
(1987), to be proper. The present case is most analogous to State v. Wise, 326 N.C.
421, 425, 390 S.E.2d 142, 145 (1990), where our Supreme Court found
no error when a victim's counselor testified that the victim seemed
“genuine” when asked to describe the victim's emotional state
during counseling sessions. The Court reasoned the counselor “was
not testifying that she believed what the victim told her was true,
nor did she give her opinion as to the victim's character for
truthfulness in general. She merely described her personal
observations concerning the emotions of the victim during the
counseling sessions.” Id. at 427, 390 S.E.2d at 146. Thus,
defendant's assignment of error is overruled.
Next, defendant argues that his motion to dismiss the lesser
included offenses of second degree murder, voluntary manslaughter
and involuntary manslaughter should have been granted because all
the evidence showed only that defendant shot the victim
accidentally or in self-defense. Defendant claims the State is
bound by defendant's explanation that the victim died as a result
of accident or self-defense because there was no evidence to
contradict his statements.
In ruling on a defendant's motion to dismiss, the trial court
need only determine whether there is substantial evidence of each
essential element of the crime alleged and that the defendant is
the perpetrator. State v. Hyatt, 355 N.C. 642, 665, 566 S.E.2d 61,
76 (2002), quoting State v. Call, 349 N.C. 382, 417, 508 S.E.2d
496, 518 (1998). Also, the trial court must consider the evidence
in the light most favorable to the State, and the State must begiven the benefit of every reasonable inference that may be drawn
from the evidence. State v. Oxendine, __ N.C. App. __, __, 564
S.E.2d 561, 564 (2002). In ruling upon the sufficiency of
evidence, the trial court shall apply the same test whether the
evidence is direct, circumstantial or both. State v. Butler, __
N.C. __, __, 567 S.E.2d 137, 140 (2002), quoting State v. Locklear,
322 N.C. 349, 358, 368 S.E.2d 377, 383 (1988).
“Second degree murder is an unlawful killing with malice, but
without premeditation or deliberation.” State v. Rich, 351 N.C.
386, 395, 527 S.E.2d 299, 304 (2000) (citation omitted). The State
has the burden of proving each element of the offense beyond a
reasonable doubt. State v. Nobles, 350 N.C. 483, 516, 515 S.E.2d
885, 905 (1999). Here, there was evidence of defendant's
intentional use of a deadly weapon proximately resulting in the
death of the victim. The State also presented evidence that
defendant was jealous of the victim, had abused her in the past and
had held guns to her head on other occasions. From this evidence,
the jury could infer the defendant acted with malice.
Examining the evidence in the light most favorable to the
State, it showed that defendant, acting with malice, intentionally
shot the victim in the face with a gun at close range. Defendant
admitted in numerous statements that he shot the victim.
Furthermore, the trial court instructed the jury that it could
find the killing was accidental or was done in self-defense. The
jury rejected the defendant's theory of how the killing occurred. This assignment of error is overruled. Defendant received a fair
trial free from prejudicial error.
No error.
Judges McGEE and THOMAS concur.
Report per Rule 30(e).
*** Converted from WordPerfect ***