An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA03-17


Filed: 2 December 2003


     v .                         Wake County
                                Nos. 01 CRS 49929, 61788,
JOSEPH EDWARD COPPAGE, JR.                61789, 61790

    Appeal by defendant from judgments entered 12 August 2002 by Judge Stafford G. Bullock in Wake County Superior Court. Heard in the Court of Appeals 15 October 2003.

    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.

I. Motion to Dismiss
    Defendant argues that the trial court erred by denying his motion to dismiss. In ruling on a motion to dismiss, the trial judge must consider the evidence in the light most favorable to the State, allowing every reasonable inference to be drawn therefrom. State v. Olson, 330 N.C. 557, 564, 411 S.E.2d 592, 595 (1992). The trial court must find that there is substantial evidence of each element of the crime charged and of the defendant's perpetration of such crime. Id. “Substantial evidence is relevant evidence that a reasonable mind might accept as adequate to support a conclusion.” Id.
A. First-Degree Murder with Premeditation and Deliberation
Defendant contends that there was insufficient evidence of premeditation and deliberation for the charge of first-degree murder. First-degree murder is the intentional and unlawful killing of a human being with premeditation and deliberation. State v. Hamlet, 312 N.C. 162, 169, 321 S.E.2d 837, 842 (1984). A killing is premeditated if “the defendant formed the specific intent to kill the victim some period of time, however short, before the actual killing.” State v. Bonney, 329 N.C. 61, 77, 405 S.E.2d 145, 154 (1991). “'Deliberation' means an intent to kill executed by the defendant in a cool state of blood, in furtherance of a fixed design for revenge or to accomplish an unlawful purpose and not under the influence of a violent passion, suddenly aroused by lawful or just cause or legal provocation.” Id. However, “one may deliberate, may premeditate, and may intend to kill afterpremeditation and deliberation, although prompted and, to a large extent, controlled by passion at the time.” Id.     
    In the case at bar, there is sufficient evidence of premeditation. Testimony revealed that the taller intruder threatened to kill Wright at least three times. First, the taller intruder threatened to kill Wright if he did not provide money. Second, when Carter was forced to lay on top of Wright, the taller intruder held a gun to Wright's head and declared that he was going to shoot Wright so that blood would go all over Carter. Third, when Wright gave up his keys, the taller intruder threatened to kill him if the intruder did not find anything in the car. Finally, Dawn Carpenter identified defendant as the taller of the two intruders. This information could lead the jury to infer that this defendant formed the specific intent to kill Wright before the shooting. The element of premeditation is also bolstered by the way the victim was shot. Carter heard a single shot, followed by more struggling, and then two more shots. Even if the first shot was accidental, each subsequent pull of the trigger involved a conscious decision to shoot the victim.
    The element of deliberation was satisfied because evidence suggested that defendant was not provoked. Wright was awakened from his sleep by defendant kicking his door, entering his bedroom, and demanding money. Far from provoking defendant, Wright cooperated by attempting to give him money from an envelope in his back pocket. Moreover, during the ensuing struggle, the jury couldreasonably infer that Wright was defending himself and trying to save his life.
    Finally, although defendant told Dawn Carpenter that he was outside the apartment at the time of the shooting, the State presented evidence to contradict that claim. Carter testified that neither of the two intruders left the apartment until after the shooting of Wright. Moreover, there was substantial evidence from which the jury could conclude that this defendant did the shooting. Defendant threatened to kill the victim at least three times, and projectiles from the murder scene were matched to a gun defendant gave Stacy Best to use in a robbery in Greenville, North Carolina in June of 2000.
    For these reasons, the trial court did not err in denying defendant's motion to dismiss the charge of first-degree murder with premeditation and deliberation.     
     B. Felony Murder Rule
    Defendant argues that the trial court erred in denying the motion to dismiss the charge of first-degree murder under the felony murder rule.
    Under N.C. Gen. Stat. § 14-17 (2001):
            A murder which shall be . . . . committed in the perpetration or attempted perpetration of any arson, rape or a sex offense, robbery, kidnapping, burglary, or other felony committed or attempted with the use of a deadly weapon shall be deemed to be murder in the first degree . . . .

    Defendant suggests that there is no evidence that defendant robbed or attempted to rob Wright or his roommate. However,testimony indicated that defendant planned to go on a trip with Dee Thomas and two other friends. To obtain money for the trip, defendant and Dee planned to rob Demond Wright. Evidence also revealed that defendant entered Wright's apartment with a gun and demanded money. According to Carter, Wright complied and gave defendant money from an envelope in his back pocket. This evidence is sufficient to allow the jury to conclude that a robbery, or at the very least an attempted robbery, occurred. Moreover, since the victim was later killed during the commission or attempted commission of the robbery, we conclude that there was sufficient evidence to support a guilty verdict under the felony murder rule.
II. Admitting Timothea Coppage's Statements
    Defendant claims that the trial court erred in allowing the State's witnesses, Paula Dance, Rick Dunn, and J.P. Arnold, to testify about statements made to them by Timothea Coppage, defendant's wife. In her statements, Coppage told police that her husband admitted involvement in the Wright murder. Defendant contends that the testimony was inadmissible under N.C. Gen. Stat. § 8C-1, Rule 804(b)(5) (2001), because the statements lacked inherent trustworthiness, and therefore, the admission of the statements violated defendant's right to confront a witness under the Sixth Amendment of the United States Constitution and Article I, § 23 of the North Carolina Constitution.
    This case presents an issue of “double hearsay.” Hearsay is “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth ofthe matter asserted[]” and is admissible unless it is subject to a recognized exception. N.C. Gen. Stat. § 8C-1, Rule 801(c) (2001). Here, the first declarant was defendant who told his wife about being involved in Wright's murder. The second declarant was Timothea Coppage, defendant's wife, who told police about these incriminating statements. In a case such as this one, “both . . . statements must fall within an exception to the rule prohibiting hearsay.” State v. Parker, 140 N.C. App. 169, 179, 539 S.E.2d 656, 663 (2000), appeal dismissed and disc. review denied, 353 N.C. 394, 547 S.E.2d 37, cert. denied, 532 U.S. 1032, 149 L. Ed. 2d 777, motion for appropriate relief denied, 144 N.C. App. 450, 548 S.E.2d 583 (2001). Defendant's brief does not contest that his statement would be admissible as an admission of a party opponent. N.C. Gen. Stat. § 8C-1, Rule 801(d). However, it is Timothea's statement to police that defendant contends is inadmissible hearsay.
    Rule 804 provides:
        (b) Hearsay Exceptions.-The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:

                        (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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