An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA03-301

NORTH CAROLINA COURT OF APPEALS

Filed: 4 May 2004

STATE OF NORTH CAROLINA

v .                         Forsyth County
                            Nos. 99 CRS 46399
DORNA DIANE WALKER,                    01 CRS 32253
        Defendant.

    Appeal by defendant from judgments entered 26 April 2002 by Judge Catherine C. Eagles in the Superior Court in Forsyth County. Heard in the Court of Appeals 17 March 2004.

    Attorney General Roy Cooper, by Special Deputy Attorney General Buren R. Shields, III, for the State.

    Paul M. Green, for defendant-appellant.

    HUDSON, Judge.

    Dorna Diane Walker (“defendant”) was charged in indictments with the first-degree murder of James Henry Brown, and possession of a firearm by a convicted felon. The jury returned guilty verdicts on both charges, with special verdicts finding first- degree murder by premeditation and deliberation and by lying in wait. Following a capital sentencing hearing, the jury returned a verdict recommending life in prison without parole. The court sentenced defendant accordingly, and imposed a concurrent sentence of twenty-one to twenty-six months for the firearm charge. Defendant appeals.
    At trial, defendant conceded that she had been in a troubled relationship with the victim and that she had been present when hewas shot to death. Defendant admitted that she had brought the firearm to the scene, was holding it when it fired, and must have pulled the trigger. Defendant contested the sequence of events leading up to the shooting, as well as her state of mind. Defendant raises five issues. She argues that the court erred in admitting into evidence extrajudicial statements of the victim and opinion testimony of the pathologist about whether the victim's body was moved. Further, she contends the court erred in failing to strike ex mero motu comments that defendant sought a lawyer and failing to instruct the jury to disregard them, and in overruling defendant's objection to the jury instruction on flight. Defendant also challenged the sufficiency of the “short-form” indictment for first-degree murder. We find no error.

Background
    The evidence tended to show that the relationship between defendant and the victim, James Brown (“Brown”), had been volatile for several years. In October 1999, Brown was trying to end the relationship, and began seeing two other women, Ida Duncan (“Duncan”) and Phyllis Lilly (“Lilly”). Defendant responded by constantly paging and watching Brown, and harassing Duncan. Defendant had also explicitly threatened Brown, both directly and in comments to Brown's brother. Brown told Lilly that defendant had told him that if she caught him with a new girlfriend, she would kill them both, but Brown believed she was just bluffing.     On Wednesday, 6 October 1999, defendant sent flowers to Brown at work with a card asking for “one more chance.” The followingday defendant visited Brown at work and was seen sitting at a desk and talking with him. On Friday, defendant called Brown at work several times and was told he was not there. Brown had taken Lilly to an out-of-town family reunion, picking her up in Durham so as to avoid a confrontation with defendant. That afternoon, defendant was seen on a path behind Brown's house, where she told a young woman that her boyfriend had broken up with her and gotten a new girlfriend and that she was going in the house with her key to see if she could learn the new girlfriend's identity from Brown's caller ID.
    On Saturday, 9 October 1999, defendant asked her daughter-in- law, Tangela Turner (“Turner”), to keep a bag defendant claimed contained some explicit photos and something dangerous in the locked crawlspace beneath Turner's home. That afternoon, Turner and her boyfriend looked in the bag and found a gun, coins and a camcorder. The next day, defendant returned to Turner's home and removed the bag. When Turner later checked the bag, the gun was gone. In the middle of Sunday night, witness Fred Johnson saw defendant getting out of her car near Brown's home wearing white gloves.
    On Monday morning at about 9:15 a.m., defendant called Brown's workplace and asked a co-worker to throw out the flowers and tear up the card she had previously sent. Brown was believed to have arrived home from the reunion alone at approximately 9:30 a.m. At 10:30 a.m., Brown's neighbors noticed his car in the driveway with its trunk open and came over to investigate. The front door wasopen with the keys still in the lock. The house had been ransacked and Brown's body was found lying in a puddle of blood at the foot of the basement stairs.
    The medical examiner testified that Brown suffered two bullet wounds, one of which entered his chin from an indeterminate distance. The other bullet had entered the front of his chest from only a few inches away, and the exit wound indicated that, at the time he was shot, Brown's back was pressed up against something firm, like the floor. Brown had also suffered a head laceration, which could have been caused by a fall down the stairs or by a blow from the butt of a gun. Brown's jacket had been pulled up behind his back and his pockets had been turned inside out and emptied. The cords to Brown's phone and caller ID box in the bedroom were cut.
    On Monday, detective Mike Rowe interviewed defendant, who had no reaction to the news of Brown's death. She stated that they had broken up three months prior, that she had not been to Brown's home since the previous Tuesday, and that she had worked a double shift the night before. When confronted with inconsistencies in her statement, defendant screamed at Detective Rowe and pounded her fists on the table. That Wednesday, defendant tried to recover the bag of items from the crawlspace below Turner's home, but was told by Turner's boyfriend that he didn't have a key. In actuality, Turner and her boyfriend contacted the police that day and gave them the items from the crawlspace.    Brown's family members determined that several items of Brown's personal property were missing from his home including a camcorder, a coin collection, a Ruger pistol and his RJR service ring. The RJR service ring was later recovered from defendant's home. Brown's missing Ruger pistol was never found. The three bullets recovered from the crime scene could have been fired from Brown's gun.
    While in jail, defendant told another female inmate, Rosemary Edwards (“Edwards”) that Brown was not the first man she had killed, claiming that she killed a boyfriend when she was younger and served prison time for it. Defendant told Edwards that she had gone to Brown's home to find evidence of his infidelity. When Brown returned and confronted her, defendant shot him, but she didn't know why. Another time, defendant told Edwards she had waited outside until Brown came home, then let herself into the house with her key and shot Brown.
    Defendant testified that her turbulent relationship with Brown began in 1991. They had keys to each other's houses, and Brown kept his RJR service ring at her home. During the week prior to Brown's death on 11 October, defendant and Brown's relationship continued, but was strained by defendant's suspicions of Brown's infidelity. Defendant admitted to following and watching Brown in an effort to discover his relationships with other women.
    On Friday, 8 October, defendant was unable to reach Brown at work and went to his home, but Brown was not there. Defendant returned to Brown's home when she finished work, well aftermidnight, and searched for evidence of other women. The home was neater than she had ever seen it and defendant felt hurt and angry. She ransacked the home, breaking Brown's large-screen television and the glass in the kitchen door to make it look like a break-in. Defendant took Brown's camcorder, money and coins, and two guns, one of which she dropped down a manhole. She hid the other items in her daughter-in-law's crawlspace. Defendant hoped that Brown would believe he was the victim of a break-in and defendant could be a hero to him by “finding” and returning some of his belongings.
    Sunday evening, defendant retrieved the loaded gun from the crawlspace, and drove to Brown's home after midnight, drinking most of a bottle of liquor on the way. Once she reached Brown's home, she finished the liquor and consumed several days' doses of methadone, which she had received through a drug treatment program. Defendant paged Brown and called Duncan's home looking for him, then left the gun on the kitchen table and went to sleep in Brown's bed. When defendant awoke Monday morning, she called Brown's workplace and asked that her flowers be thrown away. Defendant wanted to die and thought she could hurt Brown by killing herself in his home. She picked up the gun and walked back from the kitchen to the bedroom.
    According to defendant, Brown returned home at that moment and, seeing the wreckage of his home, threatened to beat defendant and started toward her. Defendant testified that Brown had beaten her before and that she feared for her life. Brown grabbed defendant's wrists and they struggled, eventually falling down thebasement stairs. Defendant heard the gun fire once while they fought upstairs and knew she must have pulled the trigger. At the bottom of the basement stairs, defendant had landed on top of Brown. She got up, but Brown did not move. She still had the gun in her hand, but didn't fire it downstairs. Defendant ran upstairs, but then returned to the basement when she heard Brown cough. Brown was not moving and defendant left, thinking he was dead. Defendant testified that she did not go through his pockets, take anything from him, or move his body.
    When questioned by the police, defendant was afraid to tell them what had happened. She tried to retrieve the items from Turner's crawlspace because she feared they would implicate her in Brown's death. Defendant denied ever threatening to kill Brown or his girlfriends, and insisted that she did not intend to kill Brown when she went to his house.
Analysis
    Defendant first argues that it was prejudicial error for the court to admit Brown's extra-judicial statements. Defendant contends these statements were inadmissable hearsay. For the reasons discussed below, we disagree.
    This Court has recently summarized the law regarding admission of statements by a murder victim as an exception to the hearsay bar:
        Generally, a statement made by a declarant other than the witness testifying is hearsay and is not admissible at trial to prove the truth of the matter asserted. N.C. Gen. Stat. §§§ 801(c), 802 (2001). However, such testimony is admissible if it regards “[a]statement of the declarant's then existing state of mind, emotion, sensation, or physical condition . . . but not including a statement of memory or belief to prove the fact remembered or believed . . . .” N.C. Gen. Stat. § 803(3)(2001). A murder victim's statements regarding her relationship with defendant are often admitted into evidence pursuant to Rule 803(3).

        In applying Rule 803(3), our Supreme Court has explained that statements which “are merely a recitation of facts which describe various events” and are totally without emotion are not admissible pursuant to this hearsay exception. State v. Hardy, 339 N.C. 207, 228, 451 S.E.2d 600, 612 (1994). However, the Court later clarified that statements of fact providing context for expressions of emotion are admissible under Hardy. Where the statements reveal the victim's state of mind or contain statements of the victim's fear of defendant the statements are distinguishable from those in Hardy because the Hardy statements only contained descriptions of assaults and threats against the victim and revealed no emotion.

State v. Meadows, 158 N.C. App. 390, 398-99, 581 S.E.2d 472, 477, appeal dismissed and disc. review denied, 357 N.C. 467, 586 S.E.2d 774 (2003) (some internal citations and quotation marks omitted). Our Supreme Court has further clarified that fear of the defendant is not the only emotion which will support admission under the state-of-mind exception. “The victim's state of mind is relevant if it bears directly on the victim's relationship with the defendant at the time the victim was killed . . . . [or] if it relates directly to circumstances giving rise to a potential confrontation with the defendant.” State v. Bishop, 346 N.C. 365, 379, 488 S.E.2d 769, 776 (1997) (internal quotation marks omitted, emphasis added).     Over defendant's objection, the court allowed Lilly and Duncan, the victim's girlfriends, to testify about Brown's statements to them about defendant and her behavior. For example, Lilly testified that Brown told her that he was annoyed by defendant because she would not leave him alone, stalked him and constantly paged him. He also told Lilly that defendant had threatened to kill him and his girlfriend if she found them together, but that Brown believed defendant was just bluffing. Duncan testified that Brown told her he could not take her out in Winston-Salem because defendant might follow and bother them. Defendant argues that these statements contain only a few indications of Brown's state of mind and do not reflect that he feared bodily harm from defendant. Defendant further argues that the admission of these statements was prejudicial to her on the issue of mens rea.
    Brown's extra-judicial statements fall squarely within the scope of Rule 803(3), as they relate directly to circumstances giving rise to a potential confrontation with the defendant. They demonstrate the volatility of the relationship between Brown and defendant and tend to indicate that Brown felt the need to change his behavior to avoid confrontation with defendant. Because the extra-judicial statements bear directly on the victim's relationship with defendant near the time the victim was killed, relate directly to circumstances giving rise to a potential confrontation with defendant, and do reveal emotion, they were properly admitted under Hardy.     In addition, even had the court erred by admission of the extra-judicial statements, defendant could not prevail because she has failed to show prejudice. An error “is not prejudicial unless '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.'” State v. Barden, 356 N.C. 316, 381, 572 S.E.2d 108, 149 (2002), cert. denied __ U.S. __, 155 L. Ed. 2d 1074 (2003) (quoting N.C.G.S. § 15A-1443(a)). Here, defendant admitted that she had a volatile relationship with Brown, brought a gun to his home, was holding the gun when it was fired, and must have pulled the trigger. The evidence also included testimony from Brown's brother about defendant's threats against Brown, and from a fellow inmate that defendant admitted she had waited for Brown to come home and then shot him. In light of this and other evidence, defendant has not shown prejudice. This assignment of error is overruled.
    Defendant next argues that it was error to allow the pathologist to give opinion testimony about whether the victim's body was moved. Over defendant's objection, the pathologist, Dr. David Winston (“Dr. Winston”), was allowed to testify “I think the body was moved.” While Dr. Winston had qualified as an expert in forensic pathology, defendant contends he was not qualified to offer an opinion about moving the body because it was based on bloodstain analysis, an area outside his expertise. We disagree.
    “[E]xpert testimony is properly admissible when such testimony can assist the jury to draw certain inferences from facts becausethe expert is better qualified.” State v. Bullard, 312 N.C. 129, 139, 322 S.E.2d 370, 376 (1984). However, “[i]t is not necessary that an expert be experienced with the identical subject area in a particular case or that the expert be a specialist, licensed, or even engaged in a specific profession. Furthermore, the trial judge is afforded wide latitude of discretion when making a determination about the admissibility of expert testimony.” Id. at 140, 322 S.E.2d at 376.
    Dr. Winston testified that the exit wound in Brown's back indicated that his back had been pressed against a firm surface or tight clothing, and that given the nature of his wounds, Brown would have bled slowly, taking considerable time to bleed to death. The State then showed Dr. Winston photographs of the victim lying on the floor at the bottom of his basement steps surrounded by pools of blood. Other photographs showed the landing and steps above the victim, with blood on each, as well as on some curtains on the landing window.
    The State pointed out a defect in the floor of the landing and elicited Dr. Winston's opinion that the victim's wound was consistent with his body resting on that surface when he was shot. The State then asked Dr. Winston if, based on the nature of Brown's wounds, the blood shown in the photographs could have gotten to the curtains, landing, steps and floor from the body's final position on the floor. Defendant objected and the State rephrased the question to “was this body moved or this man still living moved?” Defendant objected again, but was overruled, and Dr. Winston testified “I think the body was moved.”
    We do not believe Dr. Winston's testimony reveals an abuse of the court's discretion. Defendant contends that Dr. Winston's opinion must have been based on blood stain analysis, an area outside his expertise. However, the testimony does not support this assertion. Instead it appears that Dr. Winston's testimony was based on his observations about the nature of the victim's wounds and the blood loss from those wounds. We overrule this assignment of error.
    Defendant next argues that the court committed plain error by failing to strike ex mero motu, and instructing the jury to disregard, police testimony that defendant had asked for an attorney when confronted with inconsistencies in her interview about Brown's death. For the reasons discussed below, we disagree.
    Defendant objects to the following testimony by a police detective about her reaction when confronted with inconsistencies in her statement during an interview:
        She just began yelling, pounding her fists on the desk stating that I want a lawyer, I want to talk to your supervisor, you've got to work for somebody, continued making those statements over and over again, clinching her jaws, gritting her teeth, pounding her fists on the table, pounding her feet, standing up in the interview room.
Immediately after this comment, the court summoned counsel to the bench and instructed them to avoid further mention of defendant's demand for a lawyer.
    Our standard of review for plain error is clear:        Plain error includes error that is a fundamental error, something so basic, so prejudicial, so lacking in its elements that justice cannot have been done; or grave error that amounts to a denial of a fundamental right of the accused; or error that has resulted in a miscarriage of justice or in the denial to appellant of a fair trial.

State v. Gregory, 342 N.C. 580, 586, 467 S.E.2d 28, 32 (1996). Defendant first argues that the testimony at issue impermissibly burdened her exercise of her right to counsel under N.C. Gen. Stat. § 15-4, N.C. Const. Art. I § 23 and U.S. Const. Am. VI & XIV. However, defendant does not explain how the detective's testimony at trial could have had any adverse impact on her statutory or constitutional right to counsel.
    Defendant argues that this testimony was comparable to improper prosecutorial comments about a defendant's refusal to testify, in that it “penalized defendant for the attempted exercise of a fundamental constitutional right.” See State v. Ward, 354 N.C. 231, 265, 555 S.E.2d 251, 273 (2001). Defendant here cites no case law to support this contention. Defendant contends that the brief comment in the testimony was so fundamental that justice could not have been done in this case, since it undermined her credibility. We conclude that the court properly exercised its discretion by use of the bench conference. We do not believe that one brief comment in the course of several days of testimony impaired defendant's constitutional rights. This assignment of error lacks merit.
    Defendant next argues that the court erred in overruling her objection to the jury instruction on flight. Defendant contendsthat there was no evidence that she took steps to avoid apprehension as required to support the flight instruction. We disagree.
    “[A] trial court may not instruct a jury on defendant's flight unless there is some evidence in the record reasonably supporting the theory that defendant fled after commission of the crime charged. Mere evidence that defendant left the scene of the crime is not enough to support an instruction on flight. There must also be some evidence that defendant took steps to avoid apprehension.” State v. Anthony, 354 N.C. 372, 425, 555 S.E.2d 590-91 (2001), cert. denied 536 U.S. 930, 153 L. Ed. 2d 791 (2003) (internal citations and quotation marks omitted).
    Here, the evidence showed that the phone and caller ID cords in Brown's bedroom were cut and his pockets turned inside out and emptied. In addition, defendant admitted that, after shooting Brown, she left him lying in the basement, and after hearing him cough, she hurriedly got dressed and drove away from the scene without attempting to summon help for Brown, who thereafter bled to death. She also admitted disposing of the weapon before returning to her home. This evidence is sufficient to allow the jury to reasonably infer that defendant fled the scene in order to avoid arrest. See State v. Lloyd, 354 N.C. 76, 119-20, 552 S.E.2d 596, 626 (2001) (holding flight instruction proper where the defendant called police to arrange a surrender, but did not seek medical help for the victim, and drove around for half an hour, buying soda and cigarettes, and calling his mother prior to surrendering).    Finally, defendant argues that the short-form indictment was insufficient to try her on first-degree murder because it failed to include the elements of the various theories upon which her prosecution proceeded. Our Supreme Court affirmed the validity of short-form indictments for first-degree murder in State v. Braxton, 352 N.C. 158, 175, 531 S.E.2d 428, 438 (2000), cert. denied 531 U.S. 1130, 148 L. Ed. 2d 797 (2001), and thus, we overrule this assignment of error.
Conclusion
    For the reasons discussed above, we find no error.
    No error.
    Judges MARTIN and GEER concur.
    Report per Rule 30(e).

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