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STATE OF NORTH CAROLINA v. PAMELA SANDERS LANIER
NO. COA03-476
Filed: 20 July 2004
1. Evidence-_prior crimes or bad acts--death of former husband-_absence of accident--
doctrine of chances--remoteness--motive
The trial court did not abuse its discretion in a first-degree murder case by denying
defendant's motion in limine to prevent the State from offering evidence concerning the death of
defendant's former husband by drowning six years prior to the death of her second husband by
arsenic poisoning, because: (1) although defendant contends that both men died as the result of
an accident, both men suddenly and inexplicably became seriously ill while sharing a home with
defendant after experiencing no major medical problems; (2) both men experienced a change in
personality, described by their respective friends and family members as being in a stupor or
acting like a zombie; (3) when both men became ill, defendant diagnosed their medical problems
and treated the men herself; (4) defendant attempted to isolate both men and generally refused to
get them professional medical assistance on a regular basis; (5) defendant reaped a substantial
financial benefit from the untimely deaths of both her husbands; (6) although the two men died
from different causes, the circumstances surrounding the first husband's death are relevant to the
argument that the death of the second husband was not accidental according to the doctrine of
chances; (7) remoteness in time does not affect the probative value of the death of the first
husband regarding absence of accident, and the similarities between the two deaths are not less
probative due to the passage of time; (8) evidence of defendant's financial gain following the
deaths of both of her husbands provided a motive for her involvement in their deaths; and (9) the
evidence pertaining to the husbands' financial status, coupled with the mysterious illnesses of
both men and the similarities between the two deaths, rendered the evidence of the first husband
relevant to prove something other than defendant's propensity to commit murder.
2. Evidence-_exclusion--cause of death of first husband--invited error
The trial court did not abuse its discretion in a first-degree murder case by excluding
evidence about the cause of the death of defendant's first husband in order to differentiate the
death of her second husband, because: (1) a defendant is not prejudiced by the granting of relief
which he has sought or by error resulting from his own conduct; and (2) even if the exclusion of
this evidence during a doctor's cross-examination had been error, defendant had the opportunity
to present the arsenic evidence during her case-in-chief but chose to request its exclusion instead.
3. Evidence--fire--beneficial financial impact
The trial court did not abuse its discretion in a first-degree murder case by admitting
evidence regarding a fire at a home defendant shared with the victim husband, because: (1)
although defendant objected to the presentation of this evidence during the testimony of one
witness, two other witnesses had already testified concerning the fire without objection by
defendant, and the admission of evidence without objection waives prior or subsequent objection
to the admission of evidence of a similar character; (2) the evidence discussing the beneficial
impact of the fire on the couple's finances, along with the evidence of the death of defendant's
first husband, strengthens the application of the doctrine of chances and lessens the probability
that the second husband's death occurred as an accident; (3) the chain of events before the
victim's death forms an integral and natural part of an account of the crime, or is necessary to
complete the story of the crime for the jury; and (4) even if the evidence was admitted in error,defendant failed to show how it prejudiced her given the voluminous amount of evidence and
testimony presented during the trial.
4. Evidence--witness--impeachment--waiver
The trial court did not err in a first-degree murder case by allowing the State to impeach
its own witness, because: (1) there was no indication that the State's impeachment was used as a
mere subterfuge to present improper evidence to the jury; (2) the State impeached the witness's
credibility by comparing his testimony to representations he made on the pertinent insurance
application; and (3) defendant waived any error since the application for insurance had been
admitted into evidence and the witness had given most of his testimony before defendant
objected to the State's impeachment of him.
5. Homicide--first-degree-murder--requested instruction--accidental death
The trial court did not err in a first-degree murder case by failing to give defendant's
requested jury instruction on the theory of accidental death, because: (1) the trial court's
instruction on accident was a correct statement of the law and contained the substance of the
instruction defendant requested; and (2) defendant failed to show that had the jury been
instructed as she suggested, there is a reasonable probability that the outcome of her trial would
have been different.
6. Homicide--short-form indictment--murder by poison
The short-form indictment used to charge defendant with first-degree murder was
sufficient to support a conviction of defendant for murder by poison under N.C.G.S. § 14-17.
Appeal by defendant from judgment entered 29 November 2001 by
Judge Carl L. Tilghman in Wayne County Superior Court. Heard in
the Court of Appeals 19 April 2004.
Attorney General Roy Cooper, by Norma S. Harrell, Special
Deputy Attorney General, for the State.
Rudolf, Maher, Widenhouse & Fialko, by M. Gordon Widenhouse,
Jr., for defendant-appellant.
MARTIN, Chief Judge.
Defendant Pamela Sanders Lanier appeals from a judgment
imposing a sentence of life imprisonment without parole entered
upon her conviction by a jury for the first-degree murder of her
husband, Ivy Dorian Lanier (Dorian). The jury found that she wasguilty of first degree murder both on the basis of premeditation
and deliberation and murder by poison.
Summarized only to the extent required to discuss the
assignments of error brought forward on appeal, the evidence
presented at defendant's trial tended to show that she and Dorian
Lanier were married in 1993 and lived near Chinquapin. Dorian
and defendant had a contract to grow turkeys for Nash Johnson and
Son Farms. Dorian used a turkey medication called Nitro-3 on his
turkeys, which was administered through the turkeys' water
supply. Dorian had a proportional medication system between his
house and his turkey houses, where Nitro-3 was mixed with water
in a bucket called a proportioner; the mixture then ran through a
water hose to the turkey house. The hose had a bypass valve that
allowed one to draw fresh water, without Nitro-3, out of the
hose. Nitro-3 contains arsenic and stains yellow any object with
which it comes in contact.
The evidence showed that Dorian hurt his leg while operating
his bulldozer the first week in September 1997, after which his
health began to decline, and his behavior changed as well. Alli
Bradshaw (Bradshaw), a family friend, testified that she lived
with defendant and Dorian from September until 4 November 1997.
Bradshaw testified that during that period, Dorian was frequently
bedridden and delirious, lying in his bed naked. On other
occasions, Dorian sat in his recliner and was too weak to cross
his legs. Bradshaw described one incident when Dorian was
bedridden for three days, unable to move or talk and had soiledthe bed. Dorian ate only melted ice cream during this period,
which defendant fed him from her fingers. On another occasion in
late September, Dorian returned home and fell out of his truck
onto the driveway where he lay, acting like a zombie. Dorian
had diarrhea and messed up his pants before defendant could get
him inside the house.
Several witnesses testified that defendant tried to prevent
family and friends from seeing Dorian while he was ill.
Defendant became furious when anyone asked her to take Dorian to
the doctor, even though he was ill and was not eating. Numerous
witnesses documented that Dorian did not like doctors and did not
want to go to the doctor, relying instead on defendant to
doctor him. Defendant often opened up capsules which she said
were antibiotics and poured them into Dorian's soft drinks; she
also administered injections of Phenergan and Nubain. Phenergan
is used to reduce nausea and vomiting; Nubain is a painkiller,
sufficient quantities of which will put a person into a stupor.
Despite his illness, Dorian received professional medical care
only sporadically between September and his death in November.
The evidence also showed that defendant suffered from
numerous medical problems in 1997, including migraine headaches.
She had sores on her buttocks, which she thought were shingles,
and frequently showed the sores to other people. As a result of
her illnesses, defendant used a lot of medication, including
Nubain and Phenergan. Over a four-year period ending in 1998,
defendant purchased over $10,000 worth of prescription medicationfrom the Kenansville Drug Store. She also went to an urgent care
clinic as often as three days each week to get shots of Phenergan
and Nubain until January 1997. Defendant had no insurance to
cover her medical expenses.
Dr. Richard Jordan first treated Dorian on 14 September
1997, when Dorian complained of a bitter taste in his mouth.
When Dorian came in for an office visit on 27 September 1997 he
was delirious and sick. Despite his declining health, Dorian
Lanier did not see a doctor until 13 November 1997. During this
doctor's appointment on 13 November 1997, Dorian was in terrible
pain and his cognitive function was impaired. Defendant stated
that she had been giving Dorian injections of Phenergan, which
the nurse instructed defendant to stop doing so that an upcoming
diagnostic test would give accurate results. Despite this
advice, defendant continued giving Dorian injections of
Phenergan.
Dorian saw Dr. Jordan on 17 November 1997 with symptoms of
nausea, diarrhea and vomiting. He had lost 21 pounds since his
office visit on 27 September. Dorian was disoriented and could
hardly walk or talk. Dr. Jordan instructed defendant to take
Dorian to the emergency room immediately because he thought
Dorian was on the verge of death. Defendant took Dorian to the
emergency room, but did not stay for treatment.
Because Dorian's condition was worsening, he was unable to
complete the diagnostic test scheduled for 18 November 1997.
Defendant called the doctor's office on 19 November and statedthat Dorian was nauseated, moaning in pain and vomiting.
Defendant did not follow instructions to take Dorian Lanier to
the emergency room immediately and continued to care for him at
home.
Jackie Hatcher, a family friend, visited Dorian on the
afternoon of 19 November 1997, to find him wobbling with orange
skin. Hatcher insisted on taking him to the hospital and went to
find help to carry Dorian to his truck. Defendant was preparing
Pedialyte for Dorian to drink and checking his blood pressure.
When Hatcher returned to the house, Dorian had a seizure and
Hatcher told defendant to call 911.
Dorian arrived at the emergency room by ambulance at 6:25
p.m. He was vomiting, weak, and his skin looked orange. After a
short time, Dorian began vomiting undigested food and a red
liquid that smelled like alcohol. Efforts to resuscitate Dorian
were unsuccessful and he died at 10:57 p.m.
Dr. Charles Garrett performed an autopsy on Dorian Lanier.
Dorian's body was completely yellow, his liver had failed, his
heart was enlarged and there was excessive fluid in his lungs.
Dr. Garrett found no measurable amount of alcohol in Dorian
Lanier's body, but there were traces of over the counter medicine
and Phenergan. In Dr. Garrett's opinion, Dorian died of chronic
and acute arsenic poisoning. According to the medical expert
witnesses, the most common symptoms of arsenic poisoning are
abdominal pain, weight loss, nausea, vomiting, diarrhea, ametallic taste in the mouth, jaundice, low blood pressure,
stupor, disorientation and weakness in the limbs.
After Dorian died, defendant sold his bulldozer and several
tractors for a total of approximately $21,000. Defendant also
sold an option to purchase Dorian's land in Duplin County for
$225,000.
Witnesses for the defense, including defendant's son Dustin
Williams and her nephew Mitchell Sanders, who both lived in the
home, testified that Dorian frequently took unidentified pills
and had eaten fly bait and rat poison before his death. Although
Dorian knew the turkey medication contained arsenic, several
defense witnesses, including defendant's son, nephew, mother,
father and a family friend, testified that they had seen Dorian
drink from the hose attached to the turkey medication.
Defendants's son, defendant's father and an EMT testified that
Dorian told them at the hospital on 19 November he had done
[this] to himself.
Defendant brings forward on appeal six of the twenty-three
assignments of error contained in the record on appeal. The
remaining assignments of error are deemed abandoned. N.C. R.
App. P. 28(a).
I.
[1] Defendant contends the trial court erred by denying her
motion in limine to prevent the State from offering evidence
concerning the death of Johnny Ray Williams, defendant's formerhusband. Such evidence tended to show that defendant married
Johnny Ray Williams (Williams) in 1989. He became ill during the
summer of 1991. On 18 August 1991, Williams called his mother
Marie Williams and told her that he would visit her the following
day. Williams told his mother they needed to discuss the farm
that they owned together, which was being foreclosed upon by the
bank. Williams did not keep his appointment with Marie Williams
on 19 August 1991; defendant called her the following day to
inform her Williams was in the hospital. When Williams was
hospitalized, he was confused and had trouble speaking. When
Marie Williams visited her son, he was initially non-responsive
and unable to communicate, but eventually sat up and talked
during her visit. His doctors were unable to determine the cause
of his illness.
The evidence also tended to show that on another occasion
during the summer of 1991, Williams was observed to be sick and
almost unconscious at his home. Defendant stated that he had
the DTs but instead of seeking medical attention for him, she
tried to pour liquor in his mouth.
On 4 September 1991, Williams went to the doctor, arriving
in the office at 2:20 p.m. According to defendant, after
Williams returned home from the doctor's appointment, he took 5
Lorazepam (Valium) pills, his blood pressure medicine (Tenormin),
Benedryl and drank one-third of a 1.75 liter (fifth) of
Seagram's. Williams walked outside to check his crab pots around
midnight with a glass of liquor in his hand. Johnny Williamsfell into the water beside his dock, where he drowned. The
investigating police officer testified he arrived and found that
Williams was below the surface of the water, which was not higher
than 3 to 4 feet where Williams fell in. Johnny Williams was
known to be an excellent swimmer. Williams' neurologist opined
that even if Williams had taken all the medication and had drunk
as much alcohol as defendant claimed, he should still have been
able to avoid drowning.
The official cause of Johnny Ray Williams's death was listed
as drowning. A toxicology screen indicated no measurable trace
of alcohol in his system at the time of death, nor was there any
prescription medication. The State's expert witness, Dr.
Garrett, opined that some alcohol would have appeared on the
blood test if Williams had consumed as much alcohol as defendant
claimed.
After Williams' death, defendant collected $25,000 as
payment on a life insurance policy she purchased in spring of
1991. Defendant received the farm and $5,190.12 from the credit
life insurance policy securing the deed of trust on the farm.
Defendant eventually sold the farm for $30,000.
Defendant argues that none of this evidence should have been
admitted because the circumstances of Williams' death were not
similar to Dorian Lanier's death; almost seven years had passed
between the two deaths; and Williams' death was not relevant to
any fact at issue in the case. She contends the introduction ofthis testimony served only to inflame and confuse the jury, and
its erroneous admission entitles her to a new trial.
Rule of Evidence 404(b) states, in pertinent part:
Evidence of other crimes, wrongs or acts is
not admissible to prove the character of a
person in order to show that he acted in
conformity therewith. It may, however, be
admissible for other purposes, such as proof
of motive, opportunity, intent, preparation,
plan, knowledge, identity, or absence of
mistake, entrapment or accident.
N.C. Gen. Stat. § 8C-1, Rule 404(b). Even if evidence is
admissible according to Rule 404(b), it must also be scrutinized
under Rule 403, which provides for the exclusion of otherwise
admissible evidence if its probative value is substantially
outweighed by the danger of unfair prejudice, confusion of the
issues, or misleading the jury, or by considerations of undue
delay, waste of time, or needless presentation of cumulative
evidence. N.C. Gen. Stat. § 8C-1, Rule 403.
Here, the trial court found the following similarities
between the deaths of Johnny Ray Williams and Ivy Dorian Lanier:
1. Both men were married to the Defendant
at the time of their death.
2. Prior to their death, both men became
incapacitated to an unconscious state or
stupor at various times preceding their
death.
3. The Defendant was the only person able
to care for each man and to seek medical
attention when they were unable to help
themselves.
4. The Defendant was present and had the
ability to assist both men in getting
medical help and did in fact seek
medical help for each on some occasions
before their death but only after being
urged by others. 5. The Defendant benefitted financially
from the death of Johnny Ray Williams
and was in position to benefit
financially from the death of Ivy Dorian
Lanier.
6. In both cases when witnesses were
present to see her husbands when they
obviously appeared critically ill, the
Defendant appeared to minimize the
seriousness of her husbands' illnesses
and attempted to treat them on her own.
As a result of these findings, the trial court found that the
evidence regarding defendant's marriage to Williams, their
financial matters, and the circumstances of Williams' death was
admissible evidence, probative of the issues of motive, intent,
plan, opportunity, and absence of accident[.] The trial court
found that the probative value of the Williams evidence was not
outweighed by the danger of unfair prejudice and that the time
interval between the two deaths was not so remote as to affect
the probative value of the Williams evidence. Defendant contends
the trial court's findings were not supported by the evidence,
because Johnny Williams and Dorian Lanier did not die under
similar circumstances.
Rule 404(b) is a clear general 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. Coffey, 326 N.C. 268, 278-79, 389 S.E.2d 48,
54 (1990)(emphasis in original); cert. denied, 421 S.E.2d 360
(1992). When prior incidents are offered for a proper purpose,the ultimate test of admissibility is whether they are
sufficiently similar and not so remote as to run afoul of the
balancing test between probative value and prejudicial effect set
out in Rule 403. State v. West, 103 N.C. App. 1, 9, 404 S.E.2d
191, 197 (1991). In each case, the burden is on the defendant
to show that there was no proper purpose for which the evidence
could be admitted. State v. Williams, 156 N.C. App. 661, 664,
577 S.E.2d 143, 145 (2003)(quoting State v. Willis, 136 N.C. App.
820, 823, 526 S.E.2d 191, 193 (2000)). The determination of
whether relevant evidence should be excluded under Rule 403 is a
matter that is left in the sound discretion of the trial court,
and the trial court can be reversed only upon a showing of abuse
of discretion. State v. Hipps, 348 N.C. 377, 405-06, 501 S.E.2d
625, 642 (1998), cert. denied, 525 U.S. 1180, 143 L. Ed. 2d 114
(1999).
Here, the trial court allowed admission of the Williams
evidence as probative for several purposes: to show defendant's
motive, intent, plan, opportunity and absence of accident.
[W]here . . . an accident is alleged, evidence of similar acts
is more probative than in cases in which an accident is not
alleged. State v. Lloyd, 354 N.C. 76, 89, 552 S.E.2d 596, 608
(2001)(citation omitted). Where a defendant claims accident, a
prior bad act with a 'concurrence of common features' to the
crime charged, tends to negate a defendant's contention that he
'had no plan to shoot the victim.' Lloyd, 354 N.C. at 90, 552
S.E.2d at 609 (citations omitted) (applying the doctrine ofchances to admit evidence of two accidental shootings). One of
defendant's main theories at trial was that Dorian Lanier's death
was an accident, due to his voluntary consumption of turkey
medication, rat poison and other toxic substances found around
the farm.
Defendant argues the evidence regarding Johnny Ray Williams'
death was not relevant because the circumstances of his death
were completely dissimilar to those of Dorian Lanier's death.
Dorian Lanier died after ingesting arsenic; Johnny Williams died
by drowning. However, as the trial court found, both men were
married to defendant at the time of their deaths; Johnny married
defendant in 1989 and died 4 September 1991, while Dorian married
defendant in 1993 and died 17 November 1997. Defendant contends
both men died as the result of an accident; however, both men,
after experiencing no major medical problems, suddenly and
inexplicably became seriously ill while sharing a home with
defendant. Both men experienced a change in personality,
described by their respective friends and family members as being
in a stupor or acting like a zombie. When both men became ill,
defendant diagnosed their medical problems and treated the men
herself. Defendant attempted to isolate both men and generally
refused to get them professional medical assistance on a regular
basis. Finally, defendant reaped a substantial financial benefit
from the untimely deaths of both her husbands.
Although the two men died from different causes, the
circumstances surrounding Johnny Ray Williams' death are relevantto the argument that Dorian Lanier's death was not accidental,
according to the doctrine of chances. Our Supreme Court
adopted the following explanation of the doctrine of chances:
The recurrence or repetition of the act
increases the likelihood of a mens rea or
mind at fault. In isolation, it might be
plausible that the defendant acted
accidentally or innocently; a single act
could easily be explained on that basis.
However, in the context of other misdeeds,
the defendant's act takes on an entirely
different light. The fortuitous coincidence
becomes too abnormal, bizarre, implausible,
unusual, or objectively improbable to be
believed. The coincidence becomes telling
evidence of mens rea.
State v. Stager, 329 N.C. 278, 305, 406 S.E.2d 876, 891
(1991)(quoting Edward J. Imwinkelried, Uncharged Misconduct
Evidence §5:05 (1984)). The doctrine of chances is especially
probative when the two crimes are similar in nature. See Stager,
329 N.C. 278, 406 S.E.2d 876; State v. Boczkowski, 130 N.C. App.
702, 504 S.E.2d 796 (1998)(applying the doctrine of chances to
justify admission of evidence regarding two drowning deaths).
However, the doctrine of chances has been applied even when the
prior misdeed is not factually similar in all respects. See
State v. Murillo, 349 N.C. 573, 509 S.E.2d 752 (1998)(evidence of
husband's increasingly violent assaults on his wife relevant to
show lack of accident in trial for her murder), cert. denied, 528
U.S. 838, 145 L. Ed. 2d 87 (1999); State v. White, 340 N.C. 264,
457 S.E.2d 841 (defendant's involvement in conspiracy to murder
her husband was probative of lack of accident in trial for murder
of stepson), cert. denied, 516 U.S. 994, 133 L. Ed. 2d 436 (1995)State v. Taylor, 154 N.C. App. 366, 572 S.E.2d 237 (2002)
(defendant's threats to make the shooting of his first wife look
like an accident relevant to show lack of accident in defendant's
trial for shooting of second wife). Although Williams and Dorian
Lanier died from different physical causes, their deaths shared
sufficiently similar characteristics to provide some evidence
that Dorian's death was not accidental.
Defendant also argues that the Williams evidence was too
remote in time to be probative for any purpose. Our Supreme
Court held:
Remoteness in time between an uncharged crime
and a charged crime is more significant when
the evidence of the prior crime is introduced
to show that both crimes arose out of a
common scheme or plan. In contrast,
remoteness in time is less significant when
the prior conduct is used to show intent,
motive, knowledge or lack of accident;
remoteness in time generally affects only the
weight to be given such evidence, not its
admissibility.
Stager, 329 N.C. at 307, 406 S.E.2d at 893 (citations omitted).
Here, Williams' death was separated from Dorian Lanier's death by
approximately six years. After four years of marriage to
defendant, Dorian died suddenly. The remoteness in time does not
affect the probative value of the Williams evidence on absence of
accident. The similarities between Dorian Lanier and Williams'
deaths, as outlined by the trial court, are not less probative
due to the passage of time. When considered in light of the
doctrine of chances, we cannot hold that the Williams evidence isrendered inadmissible by its remoteness in time from Dorian's
death.
The trial court also allowed admission of the Williams
evidence as being probative of defendant's motive. [T]he State
may also introduce [evidence of prior crimes] if it is relevant
to establish a pattern of behavior on the part of the defendant
tending to show that the defendant acted pursuant to a particular
motive. Stager, 329 N.C. at 306-07, 406 S.E.2d at 892.
Evidence of other crimes is admissible under Rule 404(b) if it
pertain[s] to the chain of events explaining the context, motive
and set-up of the crime and form[s] an integral and natural part
of an account of the crime . . . necessary to complete the story
of the crime for the jury. State v. Lloyd, 354 N.C. 76, 90, 552
S.E.2d 596, 609 (2001)(quoting State v. Agee, 326 N.C. 542, 548,
391 S.E.2d 171, 174-75 (1990)). See also State v. White, 349
N.C. 535, 508 S.E.2d 253 (1998), cert. denied, 527 U.S. 1026, 144
L. Ed. 2d 779 (1999); State v. Williams, 156 N.C. App. 661, 577
S.E.2d 143 (2003); State v. Willis, 136 N.C. App. 820, 526 S.E.2d
191 (2000) . Evidence of defendant's financial gain following the
deaths of Johnny Williams and Dorian Lanier, standing alone,
would provide a powerful motive for her involvement in their
deaths. The evidence pertaining to Johnny Williams and Dorian
Lanier's financial status, coupled with the mysterious illnesses
of both men and the similarities between the two deaths, rendered
the Williams evidence relevant to prove something other than
defendant's propensity to commit murder. For these reasons, we cannot say that the trial court abused
its discretion in admitting the evidence regarding Johnny Ray
Williams' death, his marriage to defendant, and their financial
transactions before and after his death to show absence of
accident in Dorian Lanier's death or a motive for defendant to
commit his murder. The trial court also found, within its
discretion, that the Williams evidence was not substantially more
prejudicial than it was probative, rendering it admissible
pursuant to Rule 403. Because the trial court did not abuse its
discretion in admitting this evidence for proper purposes under
Rule 404(b), we need not address defendant's arguments regarding
the remaining purposes for which the trial court introduced this
evidence.
II.
[2] Defendant also assigned error to the exclusion of
evidence about the cause of Johnny Ray Williams' death.
Defendant proffered evidence to show that Williams neither died
from arsenic poisoning nor had high levels of arsenic in his body
at the time of his death, in order to differentiate his death
from that of Dorian Lanier. Defendant argues the exclusion of
this evidence amounted to a denial of her constitutional rights
to present a defense and confront the witnesses against her.
Persons accused of crimes are entitled by the North Carolina
and United States constitutions to confront the witnesses against
them and to present a defense. U.S. Const. Amend. VI, XIV; N.C.
Const. Art. 1, §§ 19, 23. However, the trial court has controlover the presentation of evidence and the scope of the testimony
allowed during cross-examination. See N.C. Gen. Stat. § 8C-1,
Rule 611(a)(The court shall exercise reasonable control over the
mode and order of interrogating witnesses and presenting
evidence. . . .). [A]lthough cross-examination is a matter of
right, the scope of cross-examination is subject to appropriate
control in the sound discretion of the court. State v. Coffey,
326 N.C. 268, 290, 389 S.E.2d 48, 61 (1990) (citing State v.
Hosey, 318 N.C. 330, 348 S.E.2d 805 (1986)), cert. denied, 421
S.E.2d 360 (1992). A witness may be cross-examined on any
matter relevant to any issue in the case, including credibility.
N.C. Gen. Stat. § 8C-1, Rule 611(b). The range of facts that
may be inquired into is virtually unlimited except by the general
requirement of relevancy and the trial judge's discretionary
power to keep the examination within reasonable bounds. State
v. Freeman, 319 N.C. 609, 617, 356 S.E.2d 765, 769 (1987).
Following Dorian Lanier's death in November 1997, Johnny
Williams' body was exhumed for an autopsy in January 1998.
Defendant proffered this autopsy report evidence while cross-
examining Dr. Garrett. Dr. Garrett did not refer to the 1998
autopsy during his direct examination by the State, nor did he
perform the autopsy on Williams. The trial court did not allow
the defense to offer the evidence during Dr. Garrett's cross-
examination, but indicated that it would reconsider the ruling if
defendant attempted to introduce the autopsy evidence during her
case in chief. Such decisions regarding the subject matterallowed during cross-examination are within the sound discretion
of the trial court, whose decisions will not be reversed upon
appeal except upon a showing of an abuse of discretion. See
State v. Chavis, 134 N.C. App. 546, 558, 518 S.E.2d 241, 250
(1999); disc. rev. denied, 351 N.C. 362, 542 S.E.2d 220 (2000).
Even if the exclusion of this evidence during Dr. Garrett's
cross-examination had been error, the error would be harmless.
Expert witness Dr. Page Hudson testified about the 1991 autopsy
of Williams and defendant moved in limine to prevent Dr. Hudson
from testifying about the 1998 autopsy or being examined
concerning the presence of arsenic in Williams' body. A
defendant is not prejudiced by the granting of relief which he
has sought or by error resulting from his own conduct. N.C.
Gen. Stat. § 15A-1443(c)(2003). Defendant had the opportunity to
present the arsenic evidence during her case-in-chief, but chose
to request its exclusion instead. Therefore, this assignment of
error is overruled.
III.
[3] Defendant next contends the trial court erred in
admitting evidence regarding a fire at the home defendant shared
with Dorian Lanier on Ludie Brown Road (Ludie Brown house).
Defendant argues this evidence was not relevant and was more
prejudicial than probative, and therefore she should receive a
new trial.
The evidence about which defendant complains tended to show
that Jackie Hatcher and Dorian Lanier were working outdoors onHatcher's property on 10 December 1996. Defendant called
Hatcher's wife and told her the Ludie Brown house was on fire.
Hatcher and Dorian arrived at the Ludie Brown house to find
defendant alone in the house and the laundry room on fire.
Hatcher and Dorian put the fire out, turned off the electrical
circuit for the room, tore out the paneling and insulation,
removed the washer and dryer from the house and wet down the
cement floor of the laundry area. They returned to Hatcher's
property and had lunch, only to learn the house was on fire
again; when they returned, the house was burning badly.
After the fire, Dorian Lanier sold the Ludie Brown property
for $55,000. Dorian and defendant received an insurance payment
of $142,317.05 as a result of the destruction of their home, part
of which they used to buy a new modular home for $88,733. Dorian
told Hatcher the money from the land sale and insurance payment
had gotten him out of a bind. Dorian said his feet would be in
salt water as a result of the money, and he intended to enjoy
life from that point on.
Initially, we note that although defendant objected to the
presentation of this evidence during Jackie Hatcher's testimony,
two witnesses had already testified concerning the fire without
objection by defendant. These witnesses discussed the impact of
the fire on the couple's finances, showing the benefits they
received as a result of the fire. [T]he admission of evidence
without objection waives prior or subsequent objection to the
admission of evidence of a similar character. State v. Doisey,138 N.C. App. 620, 625, 532 S.E.2d 240, 244 (quoting State v.
Campbell, 296 N.C. 394, 399, 250 S.E.2d 228, 231 (1979)), disc.
rev. denied, 352 N.C. 678, 545 S.E.2d 434 (2000). Therefore,
defendant waived her objection to the admission of evidence
concerning the financial impact of the fire.
The trial court admitted the Ludie Brown fire evidence to
show motive, intent and plan. The evidence, in combination with
other testimony that defendant was Dorian's sole beneficiary;
that defendant had substantial prescription drug expenses and no
insurance; that defendant wanted to move into a new home; that
Dorian sold the Ludie Brown property for $55,000; that defendant
sold Dorian's bulldozer for $15,000; and that defendant sold an
option to purchase Dorian's real property for $225,000, creates a
strong profit motive for defendant to kill her husband. The
Ludie Brown fire evidence, along with the evidence of Johnny Ray
Williams' death, strengthens the application of the doctrine of
chances and lessens the probability that Dorian Lanier's death
occurred as an accident. This evidence regarding the chain of
events before Dorian Lanier's death forms an integral and
natural part of an account of the crime, or is necessary to
complete the story of the crime for the jury.' State v. Agee,
326 N.C. 542, 548, 391 S.E.2d 171, 174 (1990)(citation omitted).
Therefore this evidence was relevant to the issue of whether
defendant committed the murder of her husband Dorian Lanier. The
trial court determined that the relevance of the evidence
outweighed its prejudicial effect; defendant has not shown thatthe trial court abused its discretion in making such a
determination.
Finally, even if we determined this evidence was admitted in
error, defendant has failed to show how its admission prejudiced
her, given the voluminous amount of evidence and testimony
presented during the trial. The erroneous admission of evidence
requires a new trial only when the error is prejudicial. See
State v. Locklear, 349 N.C. 118, 149, 505 S.E.2d 277, 295 (1998),
cert. denied, 526 U.S. 1075, 143 L. Ed. 2d 559 (1999).
Therefore, this assignment of error is overruled.
IV.
[4] Defendant also contends the trial court erred by
allowing the State to impeach its witness, insurance agent Lester
Wayne Anderson. The State conducted a voir dire examination of
Anderson, then called him as a witness. His testimony tended to
show that in spring 1991, defendant and Johnny Williams purchased
life insurance on each other and for their children from
Anderson. Anderson testified he did not witness Williams'
signature on the policy application and barely knew him before
selling him insurance. The State then presented evidence that
Anderson had indicated on the policy application in 1991 that he
had witnessed Williams' signature and that he had known Williams
for twenty years.
The credibility of a witness may be attacked by any party,
including the party calling him. N.C. Gen. Stat. § 8C-1, Rule
607. Impeachment of a party's own witness may allow a party touse impermissible hearsay as impeachment material in order to get
the substance of the hearsay statement before the jury. See
State v. Hunt, 324 N.C. 343, 349, 378 S.E.2d 754, 758 (1989);
State v. Bell, 87 N.C. App. 626, 633, 362 S.E.2d 288, 292 (1987).
In order to prevent abuse of Rule 607, impeachment should only be
allowed when [c]ircumstances indicating good faith and the
absence of subterfuge are present. Hunt, 324 N.C. at 350, 378
S.E.2d at 758. Several of these circumstances have been
identified as when the witness's testimony was extensive and
vital to the government's case, that the party calling the
witness was genuinely surprised by his reversal, or that the
trial court followed the introduction of the statement with an
effective limiting instruction. Hunt, 324 N.C. at 350, 378
S.E.2d at 758 (citation omitted). It is the better practice for
a trial court to make findings of fact to indicate the presence
of these circumstances before allowing impeachment of a witness
by the party that called the witness. See Bell, 87 N.C. App. at
633, 362 S.E.2d at 292. However, the State may impeach a hostile
witness by asking about prior inconsistent statements, if those
questions are not a mere subterfuge for introducing improper and
otherwise inadmissible evidence. See State v. Price, 118 N.C.
App. 212, 216, 454 S.E.2d 820, 822-23, disc. rev. denied, 341
N.C. 423, 461 S.E.2d 766 (1995); State v. Spinks, 136 N.C. App.
153, 523 S.E.2d 129 (1999).
There is no indication that the State's impeachment of
Anderson in this case was used as a mere subterfuge to presentimproper evidence to the jury. The State impeached Anderson's
credibility by comparing his testimony to representations he made
on the 1991 insurance application. The application for insurance
had been admitted into evidence and Anderson had given most of
his testimony before defendant objected to the State's
impeachment of him. Thus, defendant waived any error. See
Doisey, 138 N.C. App. at 625, 532 S.E.2d at 244 (citation
omitted). This assignment of error is overruled.
V.
[5] Defendant argues the trial court committed reversible
error when it failed to give defendant's requested jury
instruction on the theory of accidental death. Defendant
requested that the trial court instruct the jury:
Ladies and gentlemen of the jury, if Ivy
Dorian Lanier died by accident or
misadventure, that is, without wrongful
purpose on the part of the defendant, the
defendant would be not guilty. The burden of
proving accident is not on the defendant.
The assertion of accident is merely a denial
that she has committed any crime. The burden
remains at all times on the State to prove
the defendant's guilt beyond a reasonable
doubt.
Ladies and gentlemen of the jury, I instruct
you that the State of North Carolina has the
burden of proving to you beyond a reasonable
doubt that the death of Ivy Dorian Lanier was
a homicide, that is, that the death of Ivy
Dorian Lanier was not an accident. I
instruct you that the mere fact that Ivy
Dorian Lanier died on November 19, 1997, does
not mean that a crime was committed.
The defendant in this case has entered a plea
of not guilty. She is not required to prove
her innocence or to explain anything. The
defendant does not have to prove that thedeath of Ivy Dorian Lanier was caused by an
accidental exposure to or ingestion of
arsenic. Rather, the State of North Carolina
must prove to you beyond a reasonable doubt
that the death of Ivy Dorian Lanier was not
an accident.
When a defendant asserts that the victim's
death was a result of an accident, she is in
effect denying the existence of those facts
which the State must prove beyond a
reasonable doubt to convict her of the crime
of murder. Therefore, the burden remains at
all times on the State to prove to the jury
beyond a reasonable doubt those essential
facts necessary to establish that a crime was
committed, and in so doing, disprove beyond a
reasonable doubt the defendant's contention
of accidental death.
I charge you, ladies and gentlemen of the
jury, that the State of North Carolina must
satisfy you beyond a reasonable doubt that
the death of Ivy Dorian Lanier was not
accidental.
The trial court instructed the jury as follows, in pertinent
part:
If the victim died by accident or
misadventure, that is, without wrongful
purpose or criminal negligence on the part of
the defendant, the defendant would be not
guilty. The burden of proving accident is
not on the defendant. Her assertion of
accident is merely a denial she has committed
any crime. In effect, she is denying the
existence of those facts which the State must
prove beyond a reasonable doubt to convict
her of the crime of murder or any lesser
included offenses about which you are
instructed. The burden remains at all times
on the State to prove the defendant's guilt
beyond a reasonable doubt and that the
victim's death was not accidental.
Defendant argues that instruction did not clearly inform the jury
that the State was required to disprove accident beyond a
reasonable doubt, and that such error, in turn, createdconstitutional and prejudicial error because the instruction
lowered the State's burden of proof on an essential element of
crime. Defendant also contends the trial court committed
reversible error by failing to include accident in its final
mandate to the jury.
Failure to instruct on each element of crime is prejudicial
error requiring a new trial. See State v. Bogle, 324 N.C. 190,
376 S.E.2d 745 (1989). Prejudicial error is defined as a
question of whether there is a reasonable possibility that, had
the error in question not been committed, a different result
would have been reached at the trial out of which the appeal
arises. N.C. Gen. Stat. § 15A-1443(a) (2003).
In State v. White, the trial court instructed the jury that
[t]he burden remains on the State to prove the defendant's guilt
beyond a reasonable doubt, thus that the death was not a result
of accident or misadventure. State v. White, 340 N.C. 264, 300,
457 S.E.2d 841, 862 (1995). This instruction was held to be free
from error. Defendant argues that White does not control the
present case because White involved a review for plain error,
whereas here we review for prejudicial error. The standard of
review for plain error is higher than that for prejudicial error.
See State v. Collins, 334 N.C. 54, 62, 431 S.E.2d 188, 193
(1993)(Plain error is error so fundamental that it denied the
defendant a fair trial and quite probably tilted the scales
against him.).
Despite the different standards of review, the instruction
given here and in White are almost identical. The White courtheld [t]he substance of this instruction was accurate and free
from error and instruct[ed] the jury on accident as a theory of
acquittal. White, 340 N.C. at 300, 457 S.E.2d at 862. Here,
the trial court's instruction on accident was also a correct
statement of the law and contained the substance of the
instruction defendant requested. Defendant has failed to show
that, had the jury been instructed as she suggested, there is a
reasonable probability that the outcome of her trial would have
been different. Accordingly, we overrule this assignment of
error.
VI.
[6] Finally, defendant argues the indictment used here, the
short-form murder indictment, failed to allege all of the
elements of first degree murder, specifically murder by poison.
Defendant argues that use of the short-form indictment violates
her constitutional rights to due process.
The short form indictment is valid to charge first degree
murder on any of the theories listed under N.C. Gen. Stat. § 14-
17.
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).
The Supreme Court has upheld use of the short form indictment for
first degree murder by premeditation and deliberation in light of
the holding in
Jones v. United States, 526 U.S. 227, 143 L. Ed.
2d 311 (1999);
see State v. Wallace, 351 N.C. 481, 508, 528
S.E.2d 326, 343,
cert. denied, 531 U.S. 1018, 148 L. Ed. 2d 498
(2000),
reh'g denied, 531 U.S. 1120, 148 L. Ed. 2d 784 (2001),
and also for murder by lying in wait in
State v. Locklear, 145N.C. App. 447, 449, 551 S.E.2d 196, 197 (2001). We hold that the
short form indictment is also sufficient to support a conviction
for murder by poison under G.S. § 14-17. This assignment of
error is overruled.
For the reasons stated above, we hold defendant received a
fair trial, free from prejudicial error.
No error.
Judges HUNTER and THORNBURG concur.
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