STATE OF NORTH CAROLINA
v. Johnston County
No. 01 CRS 51376
CYNTHIA ANN YUHAS RUPEL,
Defendant.
Attorney General Roy Cooper, by Special Deputy Attorney
General Francis W. Crawley, for the State.
Appellate Defender Staples S. Hughes, by Assistant Appellate
Defender Charlesena Elliott Walker, for defendant-appellant.
HUDSON, Judge.
On 12 March 2001, the Johnston County grand jury indicted
defendant on a charge of first-degree murder. A jury subsequently
found defendant to be guilty of first-degree murder, and the trial
court imposed a life sentence on 10 May 2002. From the trial
court's judgment, defendant appeals.
At trial, the State introduced evidence tending to show the
following: Deputy Sheriff Dwight Braswell received a radio call at
3:12 a.m. on 10 February 2001 of a possible self-inflicted shooting
at defendant's residence. Upon his arrival approximately ten
minutes later, he found defendant in the kitchen talking to the 9-1-1 dispatcher on the telephone. Defendant pointed to the master
bedroom, and Deputy Braswell saw defendant's husband, James Philip
Rupel (victim), lying on his back in the bed. The victim was
bleeding from a head wound and was still breathing. Deputy
Braswell called for rescue personnel, and the victim was ultimately
transported to UNC Hospitals in Chapel Hill. After the victim was
declared brain dead, a pathologist conducted an autopsy on 11
February 2001.
The pathologist's report indicated the victim died from a
single gunshot wound to his left forehead. He estimated the shot
was fired from a medium to large caliber weapon from a distance of
eighteen inches to three feet away. From stippling on the victim's
left hand, the pathologist opined that the victim's hand was in the
path of the bullet when the gun was fired. He found no evidence
that the victim had used either hand to fire the weapon.
Ron Mazur, a crime scene technician, testified that it would
have been “nearly impossible, if not impossible,” for a right-
handed person to fire the shot which passed through the victim and
the bed's headboard. Mazur stated that Detective Benji Gaddis had
told him that he was “pretty sure” the victim was right-handed.
Defendant objected and moved to strike the testimony, but the trial
court overruled defendant's general objection. The court sustained
defendant's objection when Mazur again referred to what Gaddis told
him about the victim as being right-handed in his next response.
Defendant did not object when Mazur then testified that “if this
individual was right-handed . . . it would be nearly impossible”for him to have shot himself.
Special Agent Greg Tart of the State Bureau of Investigation
testified that he and Detective Gaddis began interviewing defendant
at 9:07 a.m. on 12 February 2001. Defendant initially stated the
victim had been slipping back into depression in the preceding
week. She awakened on the night in question to find the victim in
their bed with a gun in his right hand. Two shots were fired while
defendant struggled to take the gun from defendant's hand. Upon
seeing that the victim had been shot in the head, defendant ran to
the kitchen and called 9-1-1. She also saw what appeared to be a
suicide note on the kitchen table. Defendant stated the victim had
not done anything in the preceding weeks to suggest to her that he
was suicidal.
After a fifteen-minute break, the officers resumed questioning
defendant at 10:25 a.m. They confronted defendant with apparent
inconsistencies between her account and the medical examiner's
report of the victim's body and injuries. In addition, they
revealed their knowledge of her alleged ongoing affair with one of
her co-workers and the discovery of three “suicide notes” at her
workplace approximately two weeks prior to the victim's death.
They pointed out the similarities in the contents and handwriting
of those notes to the suicide note found on the floor of the master
bedroom. She claimed that two of those notes had been written by
her husband and that she had written the third note in an attempt
to understand the victim. Defendant could not explain why she had
previously stated that the victim had given no indication in theprevious weeks that he was suicidal.
The officers took another fifteen-minute break, then resumed
questioning defendant at 11:45 a.m. Defendant then admitted the
victim was upset on the night in question because she had not ended
her affair on the preceding evening as he had requested. Later
that night, she awakened to see the victim with the gun in his
hand. She thought he was going to shoot her, and they struggled
over the gun in bed. After the first shot, defendant grabbed the
gun and got out of bed. The victim, who was on his back in the
bed, said “Go ahead. If you don't do it, I will.” Defendant then
shot the victim from three or four feet away and went to the
kitchen to call 9-1-1. She said the victim was not coming at her
or attempting to get the gun when she shot him, and she admitted
trying to make the shooting appear to be a suicide.
In her first argument, defendant contends the trial court
erred by admitting hearsay testimony from Mazur regarding a
statement made by Detective Gaddis “that he was pretty sure that
[the victim] was right handed.” She argues the testimony was non-
corroborative hearsay and was prejudicial to her. We disagree as
to the prejudicial nature of the statement.
“'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 of the matter asserted.” N.C. Gen.
Stat. § 8C-1, Rule 801(c) (2001). Because Mazur's testimony of
Detective Gaddis' statement tended to prove the truth of the matter
asserted, whether the victim shot himself, the statement washearsay. “However, the erroneous admission of hearsay is not
always so prejudicial as to require a new trial.” State v. Hickey,
317 N.C. 457, 473, 346 S.E.2d 646, 657 (1986). A defendant “must
still show that there was a reasonable possibility that a different
result would have been reached at trial if the error had not been
committed.” Id.
No such showing has been made here, nor do we perceive any
likelihood that a different verdict would have resulted had the
improper testimony not been heard by the jury. Although defendant
asserts the issue of whether the victim was right-handed was
critical to the State's case, substantial evidence to the contrary
belies that assertion. During an interview with Special Agent Tart
and Detective Gaddis, defendant admitted to shooting the victim
from three or four feet away while he was in bed and not coming at
her or attempting to get the gun. The pathologist's report had
indicated the victim was shot from a distance of eighteen inches to
three feet away and that the victim's left hand was in the bullet's
path when the gun was fired. We overrule this assignment of error.
Defendant next argues the short-form murder indictment used to
charge her was insufficient to allege first-degree murder. She
raises the issue in order to preserve it for possible future
proceedings in state or federal court, but concedes this Court and
our Supreme Court have consistently held that the short-form
indictment satisfies the state and federal constitution. See State
v. Braxton, 352 N.C. 158, 174, 531 S.E.2d 428, 437 (2000), cert.
denied, 531 U.S. 1130, 148 L. Ed. 2d 797 (2001). As such, we arebound to overrule this assignment of error.
Defendant failed to set out her four remaining assignments of
error in her brief. Because she has neither cited any authority
nor stated any reason or argument in support of those assignments
of error, they are deemed abandoned. N.C.R. App. P. 28(b)(6)
(2001).
No error.
Judges MCGEE and GEER concur.
Report per Rule 30(e).
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