Appeal by defendant from judgment entered 28 September 2001 by
Judge Cy A. Grant in Pitt County Superior Court. Heard in the
Court of Appeals 18 February 2003.
Attorney General Roy A. Cooper, III, by Special Deputy
Attorney General Gary R. Govert, for the State.
Osborn & Tyndall, P.L.L.C., by Amos Granger Tyndall, for
defendant-appellant.
HUNTER, Judge.
Virgil Glenn Latham (“defendant”) appeals from a first degree
murder conviction, whereby he was sentenced to life imprisonment
without the possibility of parole. For the reasons stated herein,
we find no error.
The State's evidence at trial tended to show that decedent,
Wylene Little (“Wylene”), was killed as the result of a gunshot
wound to the head , and that the gun was fired by defendant. The
shooting occurred on the day that Wylene asked defendant to move
out. At trial, defendant claimed the shooting was the result of an
accident. Defendant alleged that he took his gun from the trunk of
his car and put it in his waistband as he gathered his belongings.
He further claimed that Wylene threw some clothes at him at the
same moment he was trying to prevent the gun from slipping, whichresulted in the gun going off. The gun was fired twice, and Wylene
was struck by a bullet in the back of her head. Several
eyewitnesses testified that they did not see Wylene throw anything
at defendant immediately prior to the shots being fired. At least
four witnesses testified that they heard defendant curse at the
victim immediately prior to the shooting. One eyewitness, Tristan
Little (“Tristan”), Wylene's nephew, testified that he heard Wylene
ask defendant to leave; he watched defendant pack his things into
garbage bags; and when Tristan tried to hand defendant some hair
clippers, defendant “walked right by” him and said to Wylene, “are
you going to kick me out, bitch?” Tristan then testified that
after defendant said this, he watched defendant shoot Wylene.
Furthermore, two eyewitnesses testified to hearing defendant, also
immediately prior to the shooting, say something to the effect that
if he had to leave, Wylene would be leaving too.
Testimony was admitted by the trial court indicating that
defendant had assaulted Wylene on at least two occasions prior to
the shooting. For example, Erica Little (“Erica”), Wylene's
daughter, was permitted to testify that on one occasion, Wylene
came home with a swollen lip and bloody shirt after going out with
defendant. Defendant told Erica that Wylene had hit her lip on the
door. Additionally, evidence was admitted that defendant pled
guilty to assault inflicting serious injury in connection with an
incident where defendant hit Wylene with a mirror, resulting in a
serious injury to her leg. Eyewitnesses to this assault were
permitted to testify at trial about the incident. In contrast,defendant attempted to elicit testimony from Teresa Brown (“Brown”)
as to her opinion whether defendant was the type of person who
would feel remorse for shooting and killing Wylene. The trial
court sustained the State's objection to this solicitation, and
later allowed defendant to pursue the inquiry with Brown on a voir
dire cross-examination, out of the presence of the jury, where she
stated: “I think if he could take it back, he would.”
Further, several witnesses were permitted to testify at trial
that Wylene had expressed fear of defendant prior to the shooting.
Tristan testified that on the day of the shooting, Wylene asked him
to stay with her because she was scared that defendant might “try
something” when she asked him to move out. Deirde Little,
Tristan's mother, testified that her son called her that evening
and asked her to come over to the victim's house “because Wylene
was afraid that [defendant] was going to start something.”
Additionally, Erica, the victim's daughter, testified that when she
asked her mother why she was kicking defendant out, Wylene's reply
was that “he had a little attitude, and she knew he was going to
start some trouble.”
Defendant was indicted for murder through the use of a short
form indictment on 1 November 1999. Thereafter, on 28 September
2001, a jury unanimously convicted him of first degree murder.
Defendant was subsequently sentenced to life imprisonment without
the possibility of parole. Defendant appeals.
I.
Defendant first argues that the trial court erred in admitting
evidence of his prior assaults against the victim. Specifically,
the trial court admitted testimony by several witnesses regarding
two assaults that defendant perpetrated against Wylene prior to the
shooting. Defendant did not object at trial to the majority of the
testimony regarding the prior assaults, thus we must use the plain
error rule in considering defendant's arguments in this respect.
The “plain error” rule is well settled in this State and has
been set forth as follows:
“[T]he plain error rule . . . is always to be
applied cautiously and only in the exceptional
case where, after reviewing the entire record,
it can be said the claimed error is a
'
fundamental error, something so basic, so
prejudicial, so lacking in its elements that
justice cannot have been done,' or 'where [the
error] is grave error which amounts to a
denial of a fundamental right of the accused,'
or the error has 'resulted in a miscarriage of
justice or in the denial to appellant of a
fair trial[.]'”
State v. Black, 308 N.C. 736, 740, 303 S.E.2d 804, 806 (1983)
(quoting
United States v. McCaskill, 676 F.2d 995, 1002 (4th Cir.
1982)).
Defendant argues that evidence of his prior assaults against
the victim should have been inadmissable because of its lack of
relevance, its overly prejudicial effect, because the acts were not
similar to the crime charged, and because the acts were introduced
to show defendant's propensity for violence. Defendant cites to
N.C. Rules of Evidence 401, 403, and 404(b) in support of these
arguments. Under Rule 401, evidence is relevant if it has a
“tendency to make the existence of any fact that is of consequenceto the determination of the action more probable or less probable
than it would be without the evidence.” N.C.R. Evid. 401.
Contrary to defendant's claim, evidence of defendant's relationship
with the victim is directly relevant to the issue of whether the
shooting was in fact an accident, as discussed in the Rule 404(b)
analysis that follows.
“Evidence of a prior bad act generally is admissible under
Rule 404(b) if it constitutes 'substantial evidence tending to
support a reasonable finding by the jury that the defendant
committed the
similar act.'”
State v. Al-Bayyinah, 356 N.C. 150,
155, 567 S.E.2d 120, 123 (2002) (quoting
State v. Stager, 329 N.C.
278, 303, 406 S.E.2d 876, 890 (1991)). While defendant argues that
prior assaults against the victim are not similar to the charge of
murder, his focus on the details of the acts are misplaced. On the
contrary:
“Rule 404(b) is a rule of '
inclusion of
relevant evidence of other crimes, wrongs or
acts by a defendant, subject to but
one
exception requiring its exclusion if its
only
probative value is to show that the defendant
has the propensity or disposition to commit an
offense of the nature of the crime charged.'”
State v. Scott, 343 N.C. 313, 330, 471 S.E.2d 605, 615 (1996)
(quoting
State v. Weathers, 339 N.C. 441, 448, 451 S.E.2d 266, 270
(1994)). Additionally, “'[e]vidence of another offense is
admissible under Rule 404(b) so long as it is relevant to any fact
or issue other than the character of the accused.'”
State v. Kyle,
333 N.C. 687, 697, 430 S.E.2d 412, 417 (1993) (quoting
State v.
Simpson, 327 N.C. 178, 185, 393 S.E.2d 771, 775 (1990)). The evidence of prior acts of domestic violence, namely
assaults by defendant against the victim, his girlfriend, were both
relevant and admissible in this case. Defendant was charged with
first degree murder, requiring a showing of willfulness and malice
aforethought.
See N.C. Gen. Stat. § 14-17 (2001). Evidence of
prior assaults against the victim hold a special place in the
context of domestic violence:
“In the domestic relation, the malice of one
of the parties is rarely to be proved but from
a series of acts; and the longer they have
existed and the greater the number of them,
the more powerful are they to show the state
of [the defendant's] feelings.” Specifically,
evidence of frequent quarrels, separations,
reconciliations, and ill-treatment is
admissible as bearing on intent, malice,
motive, premeditation, and deliberation.
Scott, 343 N.C. at 331, 471 S.E.2d at 616 (citations omitted)
(finding testimony regarding prior violent acts towards wife was
admissible under Rule 404(b) to prove issues in dispute such as
malice, intent, premeditation, and deliberation) (quoting
State v.
Moore, 275 N.C. 198, 207, 166 S.E.2d 652, 658 (1969));
see also
State v. Syriani, 333 N.C. 350, 376, 428 S.E.2d 118, 132 (1993)
(holding that “testimony about defendant's misconduct toward his
wife was proper under Rule 404(b) to prove motive, opportunity,
intent, preparation, [and] absence of mistake or accident with
regard to the subsequent fatal attack upon her”);
Simpson, 327 N.C.
at 185, 393 S.E.2d at 775 (holding that trial court did not err in
admitting evidence of defendant's prior assault on the victim as it
tended to establish malice, an issue relevant to a first degree
murder charge). These cases provide
precedent clearly indicatingthat when the spouse (or domestic partner, as in this case) is the
victim, evidence of prior assaults by the accused against the
victim are both relevant and admissible.
Additionally, defendant relies on Rule 403, which calls for
the exclusion of relevant evidence “if its probative value is
substantially outweighed by the danger of unfair prejudice . . . .”
N.C.R. Evid. 403. Any possible prejudicial effect of the evidence
of defendant's prior assaults against the victim are outweighed by
their probative value in determining whether the shooting was
indeed an accident. Furthermore, “[w]hether to exclude evidence
under Rule 403 is a matter left to the sound discretion of the
trial court.”
Stager, 329 N.C. at 315, 406 S.E.2d at 897 (citing
State v. Coffey, 326 N.C. 268, 281, 389 S.E.2d 48, 54 (1990)).
Defendant has not shown that the trial court abused its discretion
in admitting the evidence of defendant's prior assaults against the
victim. Therefore, there was no error, much less plain error, in
the admission of this evidence.
II.
Defendant next argues that the trial court erred by admitting
hearsay statements by the decedent concerning her relationship with
defendant, specifically regarding her fear of him. Since
defendant did not object during trial to the admission of each of
these statements, we must also review this argument using the
“plain error” rule, as set forth in Part I of this opinion.
Defendant argues that the hearsay statements did not show the
victim's state of mind and thus did not fall under the hearsayexception set forth in N.C. Rule of Evidence 803(3). On the
contrary, Wylene's statements regarding her fear of defendant fall
under Rule 803(3), since “[i]t is well established in North
Carolina that a murder victim's statements falling within the state
of mind exception to the hearsay rule are highly relevant to show
the status of the victim's relationship to the defendant.”
Scott,
343 N.C. at 335, 471 S.E.2d at 618 (holding that testimony of
several witnesses regarding conversations with the victim “related
directly to [the victim's] fear of [the] defendant” and thus were
“properly admitted pursuant to the state of mind exception”);
see
also State v. Glenn, 333 N.C. 296, 305, 425 S.E.2d 688, 694 (1993)
(“[t]he victim's fear of defendant was relevant to show the nature
of the victim's relationship with defendant and the impact of
defendant's behavior on the victim's state of mind prior to the
murder”). Here, defendant argued at trial that the shooting of
Wylene was an accident. Testimony from a number of witnesses
regarding the victim's fear of defendant tends to demonstrate a
likelihood that her shooting was not an accident, thereby making
the hearsay evidence relevant to show her state of mind.
See
Stager, 329 N.C. at 315, 406 S.E.2d at 897. Defendant also argues
that the statements should have been excluded under Rule 403
because their prejudicial effect outweighed any probative value.
However, “[w]hether to exclude evidence under Rule 403 is a matter
left to the sound discretion of the trial court.”
Stager, 329 N.C.
at 315, 406 S.E.2d at 897 (citing
Coffey, 326 N.C. at 281, 389
S.E.2d at 54). Thus, upon a complete review of the record in thiscase, we conclude that the trial court did not abuse its discretion
in admitting these statements.
Additionally, defendant argues that admission of this hearsay
violated his right to confront his accuser under the Sixth
Amendment of the United States Constitution and his rights under
Article I, Section 23 of the North Carolina Constitution. However,
we decline to address this contention because defendant cites no
supporting case law for this argument, in violation of N.C. Rule
of Appellate Procedure 28(b)(6) which requires “citations of the
authorities upon which the appellant relies.” N.C.R. App. P.
28(b)(6). In conclusion, the trial court did not err in allowing
the State to elicit hearsay statements regarding the victim's state
of mind (with respect to her fear of defendant) prior to her death.
III.
Defendant further argues that the trial court erred in
excluding opinion testimony of a lay witness regarding the
possibility that defendant might feel some remorse for killing
Wylene. Defendant alleges clear, plain and reversible error on the
part of the trial court, arguing that the testimony of Brown should
have been admitted under N.C. Rules of Evidence 701 and 803(3).
Again, the “plain error” rule is set forth in Part I of this
opinion.
Rule 701 requires that to be admissible, the lay opinion must
be “rationally based on the perception of the witness” and “helpful
to a clear understanding of [her] testimony or the determination of
a fact in issue.” N.C.R. Evid. 701. Defendant has not shown thateither of the requirements of Rule 701 were met. If Brown's
opinion had been based on first hand observations, it may have been
admissible as a shorthand statement of fact under Rule 701.
See
State v. Braxton, 352 N.C. 158, 187, 531 S.E.2d 428, 445 (2000),
cert. denied, 531 U.S. 1130, 148 L. Ed. 2d 797 (2001);
Matheson v.
City of Asheville, 102 N.C. App. 156, 174, 402 S.E.2d 140, 150
(1991). Yet, there is no evidence in the record indicating that
Brown had an opportunity to speak with or observe the defendant
from the time that she saw him
before the shooting and the day she
testified at trial. For this very reason, Brown's testimony was
also inadmissible under Rule 803(3), the state of mind hearsay
exception, because Brown was being asked to give her opinion on a
matter, not to repeat a hearsay statement of defendant. After
sustaining the State's objection, the trial court allowed the
defense to pursue the inquiry of Brown on
voir dire, where the
extent of her testimony was, “I think if he could take it back, he
would.” This is not hearsay testimony regarding state of mind.
Moreover, it is unclear how Brown's opinion was relevant to any
facts at issue in the case. Thus, her testimony regarding the mere
possibility that defendant might feel remorse was properly
excluded, and because defendant has not shown that the jury would
have found differently had it heard Brown's statement, the trial
court did not commit error, much less plain error.
IV.
Defendant finally argues that the trial court erred in
permitting the State to proceed on a short-form indictment. Defendant admits, however, that the North Carolina Supreme Court
has upheld the use of short-form indictments such as the one used
in this case.
See State v. Wallace, 351 N.C. 481, 504-08, 528
S.E.2d 326, 341-43 (2000). Therefore, this assignment of error is
without merit.
We conclude that defendant received a fair trial, free from
error.
No error.
Judges BRYANT and ELMORE concur.
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