STATE OF NORTH CAROLINA
v
.
Wake County
Nos. 01 CRS 49929, 61788,
JOSEPH EDWARD COPPAGE, JR. 61789, 61790
Attorney General Roy Cooper, by Assistant Attorney General
Joan Cunningham, for the State.
Thomas R. Sallenger for defendant appellant.
McCULLOUGH, Judge.
Defendant Joseph Edward Coppage, Jr., was tried before a jury
at the 5 August 2002 Criminal Session of Wake County Superior Court
after being charged with first-degree murder, robbery with a
dangerous weapon, attempted robbery with a dangerous weapon, and
first-degree burglary. The State's evidence showed the following:
Dujuan Carter (Carter) and Demond Wright (Wright) were roommates at
St. Augustine's College. In the fall of 1997, Carter was suspended
for having a small bag of marijuana in his room. Wright was caught
smoking marijuana on campus and suspended shortly after Carter.
Later, the men lived together at Apartment 103 on 2031 Booker
Drive. On 27 June 2000, Wright was out until 11:00 p.m., and Carter
was watching television when Wright got home. By 11:30 p.m., both
men were in their individual rooms with the doors closed. Later,
Carter was awakened by bumping noises. Initially, Carter did not
investigate because he assumed that Wright had gotten up and
tripped over something. However, when the noise continued, Carter
got up and opened his door. Someone standing in the doorway hit
Carter with a gun, pushed him to the floor, straddled him, and
demanded money. The intruder also threatened to kill Carter if he
did not pay. A second, taller person entered Wright's room,
demanded money, and threatened to kill Wright if he did not comply.
According to Carter, Wright presented the intruder with money from
an envelope in his back pocket. Shortly thereafter, the man on
Carter's back reached down and ripped Carter's twenty-two inch gold
chain off his neck.
Carter was then forced to go into Wright's room and to lay on
top of Wright. The taller intruder put a gun to Wright's head and
said that he was going to shoot Wright and that blood would go all
over Carter. Then, he instructed Wright to get his keys. Wright
complied, and after taking the keys, the taller man stated that if
he did not find anything in the car, he was going to kill Wright.
At this point, a confrontation ensued between the short
intruder, the tall intruder, and Wright. Carter testified that he
never heard anyone leave the apartment. During the struggle, Carter
heard a single shot, followed by more struggling, and then two more
shots. Carter then heard the tall intruder say, “Let's go. It'shot.” The men exited the apartment through the back door which
they had kicked open to get in.
Carter got up to call 911 and could hear Wright yelling for
help. The 911 operator instructed Carter to apply pressure to the
wound in Wright's chest, but Wright died. Within five minutes, the
police arrived.
Officers T.L. Chappell and Gregory John Palczak came to the
residence. Although Carter was very emotional, he was able to
describe the intruders as two black males in their mid-twenties.
He remembered that one of the men was 6'2", about 165 pounds. The
other man was described as being shorter. Emergency service
personnel arrived, but were unable to revive Wright. They counted
five wounds on his back.
A neighbor in an apartment two doors away, Madroy Glenn, awoke
to the commotion during the night in question. Glenn heard a
rumbling that lasted for ten minutes and a gunshot. He looked out
his window and saw two men running away. A shorter man got into a
Mitsubishi Galant and drove away. A taller man, who was 6'4" with
dark skin, was seen walking toward Milburnie Road. At the time he
was killed, Wright owned a Mitsubishi Galant.
Wright's car was found abandoned on Rumson Road around 8:30
that morning. No matches were made to fingerprints lifted from the
car. In the apartment, little evidence was found. However, three
projectiles in the apartment were later identified as coming from
a gun defendant gave to Stacy Best (Best) to use in a robbery inGreenville, North Carolina in June of 2000. One bullet was also
removed from Wright's body during an autopsy.
In May of 2001, Detective Paula Dance (Dance) of the Pitt
County Sheriff's Department interviewed Best about the robbery in
Greenville. Best told Dance that she and defendant robbed the
Breezemart on Pamlico Avenue in Greenville. She said that
defendant's wife, Timothea, drove them to the location and later
picked them up around the corner. Defendant had a shotgun for
himself and provided one for Best. During the robbery attempt,
Best struggled with a man, who was shot in the leg when Best's
handgun discharged. Dance also introduced Timothea to the Raleigh
Police Department to be interviewed.
In late May or early June of 2001, Rick Dunn (Dunn) of the
Raleigh Police Department interviewed Timothea. Timothea revealed
that she and her husband were watching television one night when a
news clip about the Wright murder aired. According to Dunn, when
Timothea asked her husband about it, he told her that “it was him
and Dee, but that she didn't need to know about it, she needed to
forget about it, not bother with it.”
Timothea also revealed that defendant and Danny Thomas (Dee)
had killed someone. She noted that it happened in an apartment
complex and that two men were robbed. Timothea also stated that
the victim told defendant that the money and drugs were in the car.
When defendant went to check the car, the victim tried to fight,
and Dee shot him. When Dunn asked about the gun from theBreezemart robbery, Timothea said that defendant told her that it
is in China, and they will never find it.
On 1 June 2001, Detective J.P. Arnold (Arnold) of the Raleigh
Police Department interviewed Timothea. Timothea stated that
defendant knew the victim and that Dee was “on something” when the
murder occurred. She also revealed that she first learned about
the murder from Dawn Carpenter (Carpenter) two months before
defendant told her about it.
Carpenter testified at trial that she had been having an
affair with defendant. In June of 2000, Carpenter began planning
a trip to Miami with defendant, Dee, and her friend, LaToya. She
testified that on 27 June 2000, she and defendant bought marijuana
from Demond Wright. Later that day, defendant and Dee decided to
rob Wright in order to get money for the trip. As part of the
plan, the men agreed to call each other “God body.” Carpenter also
testified that defendant was taller and more slender than Dee.
Carpenter dropped the men off near Washington Terrace, went
home, and packed for the trip. Around 3:00 a.m. defendant called
Carpenter and asked her to pick the men up approximately one block
from Wright's apartment. When the men got in the car, defendant
asked Dee, “What happened, what went wrong?”
Later, defendant told Carpenter the details of the murder.
Defendant stated that Dee was unable to kick in Wright's door, so
defendant kicked it in. Defendant claimed that he went to look for
money in the victim's car, and on the way back in, he heard a shot. At the time Carpenter testified, she had not been tried and did not
have a plea agreement with the State.
In July of 2001, Edward Butts (Butts) from the Greenville
Police Department found a match for the bullet from the Breezemart
shooting. Butts submitted the bullet to the SBI for further
testing. A firearms examiner for the SBI, David Santoro,
determined that the four bullets from the Wright murder scene and
the single bullet from the Breezemart shooting came from the same
gun.
Defendant did not testify and did not call any witnesses on
his behalf. On 12 August 2002, the jury found defendant guilty of
first-degree murder with malice, premeditation, and deliberation
and under the felony murder rule. The jury also found defendant
guilty of robbery with a dangerous weapon, attempted robbery with
a dangerous weapon, and first-degree burglary. Defendant was
sentenced to 100-129 months, 46-65 months, and life imprisonment
without parole for these crimes. Defendant appealed in open court.
On appeal, defendant argues that the trial court erred by (I)
denying defendant's motion to dismiss the charge of first-degree
murder and all lesser included offenses, (II) admitting Timothea
Coppage's statements to detectives, (III) not clarifying that the
jury's verdict as to each theory of first-degree murder must be
unanimous, and (IV) allowing the State to make disparaging remarks
about the defendant during its closing argument to the jury. We
conclude that defendant received a trial free from reversible
error.
(5) Other Exceptions.-A statement not specifically
covered by any of the foregoing exceptions but
having equivalent circumstantial guarantees of
trustworthiness, if the court determines that
(A) the statement is offered as evidence of a
material fact; (B) the statement is more
probative on the point for which it is offered
than any other evidence which the proponent
can procure through reasonable efforts; and
(C) the general purposes of these rules and
the interests of justice will best be served
by admission of the statement into evidence. “To admit hearsay testimony under Rule 804(b)(5), the trial
court must first find that the declarant is unavailable.” State v.
Hurst, 127 N.C. App. 54, 59, 487 S.E.2d 846, 851, appeal dismissed,
disc. review denied, 347 N.C. 406, 494 S.E.2d 437 (1997). A
declarant is unavailable if she “[i]s exempted by ruling of the
court on the ground of privilege from testifying concerning the
subject matter of [her] statement[.]” N.C. Gen. Stat. § 8C-1, Rule
804(a)(1) (2001). In this case, Timothea Coppage's unavailability
was established when she asserted the marital privilege under N.C.
Gen. Stat. § 8-57(b) and refused to testify against her husband.
After determining that a witness is unavailable, the trial
court must determine:
(1) Whether the proponent of the hearsay
provided proper notice to the adverse party of
his intent to offer it and its particulars;
(2) That the statement is not covered by
any of the exceptions listed in Rule 804
(b)(1)-(4);
(3) That the statement possesses
equivalent circumstantial guarantees of
trustworthiness;
(4) That the proffered statement is
offered as evidence of a material fact;
(5) Whether the hearsay is more probative
on the point for which it is offered than any
other evidence which the proponent can produce
through reasonable means; and
(6) Whether the general purpose of the
rules of evidence and the interests of justice
will be best served by admission of the
statement into evidence.
State v. Triplett, 316 N.C. 1, 9, 340 S.E.2d 736, 741 (1986). Defendant does not challenge the trial court's findings on
five of the six prongs. Rather, defendant solely contests the
trial court's determination that Timothea Coppage's statements
possessed “circumstantial guarantees of trustworthiness.”
“The Confrontation Clauses in the Sixth Amendment to the
United States Constitution and Article I Section 23 of the North
Carolina Constitution prohibit the State from introducing hearsay
evidence in a criminal trial unless the State: 1) demonstrates the
necessity for using such testimony, and 2) establishes the
'inherent trustworthiness of the original declaration.'” State v.
Waddell, 130 N.C. App. 488, 494, 504 S.E.2d 84, 88 (1998) (citation
omitted), modified on other grounds and aff'd, 351 N.C. 413, 527
S.E.2d 644 (2000). “[A] statement which falls under the residual
hearsay exception can meet Confrontation Clause standards if it is
supported by particularized guarantees of trustworthiness based on
the totality of the circumstances surrounding the making of the
statement.” State v. Peterson, 337 N.C. 384, 392, 446 S.E.2d 43,
49 (1994), cert. denied, 351 N.C. 479, 543 S.E.2d 505 (2000). The
trial court must make findings of fact and conclusions of law on
the issue of trustworthiness. Id. Furthermore, the decision of
the trial judge will not be disturbed unless the findings of fact
are not supported by competent evidence or the law is incorrectly
applied. Id.
Defendant claims that Timothea Coppage's statements were not
trustworthy. To ascertain whether a hearsay statement has the
requisite guarantees of trustworthiness, the trial court shouldconsider four factors: “(1) assurances of the declarant's personal
knowledge of the underlying events, (2) the declarant's motivation
to speak the truth or otherwise, (3) whether the declarant has ever
recanted the statement, and (4) the practical availability of the
declarant at trial for meaningful cross-examination.” Triplett,
316 N.C. at 10-11, 340 S.E.2d at 742. However, “[t]he trial court
should not rely on corroborating evidence to support a hearsay
statement's particularized guarantee of trustworthiness.” Hurst,
127 N.C. App. at 61, 487 S.E.2d at 852.
In this case, although the trial court may have considered
corroborating evidence in its analysis, the totality of the
circumstances under which the statements were made support the
determination of trustworthiness. In particular, there was no
adversarial position between Timothea and the detectives, and
Timothea never recanted the statements. Moreover, although
Timothea's statements tended to show that her husband had some
involvement in the robbery and murder, she also offered information
that tended to exculpate defendant (namely that he was outside when
the shooting took place). This balanced account suggests that
Timothea's statement was reliable. Accordingly, we find no error
in the admission of these statements under Rule 804(b)(5).
Assuming arguendo that detectives' testimony concerning
Timothea Coppage's statements were inadmissible, this did not
prejudice defendant. This Court has noted that admission of
statements which violate the Confrontation Clause and are
erroneously admitted under the residual hearsay exception are notprejudicial if the statements repeat the testimony of other
witnesses. State v. Washington, 131 N.C. App. 156, 164, 506 S.E.2d
283, 288 (1998), disc. review denied, 350 N.C. 105, 533 S.E.2d 477,
appeal dismissed, 350 N.C. 105, 533 S.E.2d 477 (1999), cert.
denied, 352 N.C. 362, 544 S.E.2d 562 (2000). Such an error is
deemed to be “harmless beyond a reasonable doubt.” Id. In this
case, Dawn Carpenter testified, without objection, to the same
statements made by defendant about the Wright murder. Therefore,
we conclude that even if there was any error in admitting
Timothea's statements to detectives, it was harmless beyond a
reasonable doubt.
III. Unanimous Jury Verdict
Defendant next contends that the trial court erred by failing
to instruct the jury in a manner to ensure a unanimous verdict.
Defendant insists that the jury could have split on the issues of
malice, premeditation and deliberation, and the felony murder rule
and rendered a verdict of guilty of first-degree murder on a
combination of the two theories. We disagree.
At the outset, we note that the trial court did instruct the
jury on unanimity:
I instruct you that a verdict is not a
verdict until all 12 jurors agree unanimously
as to what your decision shall be. You may
not render a verdict by majority vote. . . .
When you have reached a unanimous
verdict, have your foreperson mark the
appropriate place on the verdict form which I
will send in to you in a few moments after you
enter the jury room.
(Emphasis added.) Thus, before deliberating, the jury was aware
that it had to be unanimous.
In addition to this instruction, the verdict sheets
unambiguously called for a “unanimous verdict” on whether defendant
was guilty of first-degree murder. If the jury answered this
question affirmatively, it had to show whether it was convicting on
one or both of the theories of first-degree murder: the theory of
malice, premeditation, and deliberation or the felony murder rule.
Here, the jury unanimously decided that defendant was guilty under
both theories and marked “yes” under each one.
Finally, to ensure that the jury was unanimous, jurors were
polled. The clerk asked the jury:
In file number 01-CRS-49929, your foreman has
returned your verdict and you found Defendant
Joseph Edward Coppage, Junior, guilty of first
degree murder on the basis of malice,
premeditation, and deliberation, and under the
first degree felony murder rule.
(Emphasis added.) When the jurors were asked whether this was
their unanimous verdict, the jury responded, “Yes.” This
assignment of error is overruled.
IV. Improper Remarks During Closing Arguments
Defendant argues that the trial court erred by allowing the
prosecutor to make improper remarks to the jury during closing
arguments. In North Carolina, “[i]t is well established that
control of counsel's arguments is left to the sound discretion of
the trial court. Prosecutors are given wide latitude in the scope
of their argument.” State v. Womble, 343 N.C. 667, 692, 473 S.E.2d291, 306 (1996) (citation omitted), cert. denied, 519 U.S. 1095,
136 L. Ed. 2d 322 (1997). Counsel is allowed to argue facts in
evidence and any reasonable inferences that can be drawn therefrom.
Id. However, counsel may not present “incompetent and prejudicial
matters” to the jury by injecting his own opinions that are not
supported by the evidence. Id. Recently, our Supreme Court has
articulated the need to “strike a balance between giving
appropriate latitude to attorneys who argue heated cases and the
need to enforce the proper boundaries of closing argument and
maintain professionalism.” State v. Jones, 355 N.C. 117, 135, 558
S.E.2d 97, 108 (2002). The Supreme Court has also found that a
party's closing argument must “(1) be devoid of counsel's personal
opinion; (2) avoid name-calling and/or references to matters beyond
the record; (3) be premised on logical deductions, not on appeals
to passion or prejudice; and (4) be constructed from fair
inferences drawn only from evidence properly admitted at trial.”
Id.
If no objection is made at trial, “the prosecutor's argument
is subject to limited appellate review for gross improprieties
which make it plain that the trial court abused its discretion in
failing to correct the prejudicial matters ex mero motu.” State v.
Alston, 341 N.C. 198, 239, 461 S.E.2d 687, 709 (1995), cert.
denied, 516 U.S. 1148, 134 L. Ed. 2d 100 (1996). When reviewing
whether a prosecutor's remarks are grossly improper, the comments
must be viewed in context and in light of the facts to which they
refer. Id. In this case, defendant did not object at trial. Therefore, our standard of review is whether the trial court should
have intervened ex mero motu.
Defendant takes issue with the prosecution's statement that
“This Defendant is not a God body, as he'd like himself to be
called. He is a thieving, murdering thug.” In particular,
defendant suggests that these harsh words invited the jury to
convict defendant because he was someone to be afraid of.
While we do not condone the use of unnecessary pejorative
language in closing arguments, we conclude that this statement was
not improper. First, there is evidence that defendant did want to
be referred to as “God body.” Dawn Carpenter testified that
defendant and Dee decided to call each other “God body” during the
robbery. Similarly, the prosecutor's description of defendant as
a “thieving, murdering thug” was based on information in the
record. In fact, the prosecution presented evidence that defendant
did engage in theft and murder. Testimony suggests that defendant
broke into an apartment, threatened the occupants with a gun, stole
money and a gold chain, and killed one person. Because the
prosecutor's remarks stemmed from evidence in the record, we do not
find them to be grossly improper. Finally, we note that our ruling
on this statement is consistent with our Supreme Court's finding in
another case: “As this was a trial for first-degree murder
involving a calculated armed robbery and an unprovoked killing, it
was not improper for the State to refer to defendant as 'cold-
blooded murderer.'” State v. Harris, 338 N.C. 211, 229, 449 S.E.2d
462, 472 (1994). Defendant also objects to the prosecutor's statement to the
jury that:
You are what stands between us and lawlessness
of people kicking in your door in the middle
of the night, pistol whipping you, taking your
property and killing you or your loved ones.
Do not let this Defendant escape
responsibility for what he did.
Once again, this statement is supported by evidence in the record.
The prosecution presented testimony that defendant kicked in the
door of Wright's and Carter's apartment, hit Carter with a gun and
took his gold chain, and stole money from Wright before killing
him. Therefore, the prosecutor's remarks were not improper, and
the trial court should not have intervened ex mero motu.
After a careful review of the record, the transcript, and the
arguments presented, we conclude that defendant received a fair
trial, free from prejudicial error.
No error.
Judges TYSON and BRYANT concur.
Report per Rule 30(e).
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