STATE OF NORTH CAROLINA
v
.
Johnston County
No. 02 CRS 52867
TARVARIS NOVACK MICKENS
Attorney General Roy Cooper, by Special Deputy Attorney
General Norma S. Harrell, for the State.
Hardison & Leone, L.L.P., by Richard B. Glazier, for
defendant-appellant.
CALABRIA, Judge.
Tarvaris Novack Mickens (“defendant”) appeals from a judgment
sentencing him to life imprisonment without parole in the North
Carolina Department of Correction after a jury found him guilty of
first-degree murder. We find no error.
The State presented evidence at trial that, in the early
morning hours of 22 March 2002, Cindy Lemons (the “victim”) was
found dead near her residence with a blunt force injury to her head
and three gunshot wounds, two of which were to her head and one of
which was to her chest. Defendant and the victim were previously
involved in a six-year relationship and had three children
together. While defendant and the victim subsequently remained
intimate, problems developed between them, and the victimunsuccessfully attempted to procure a restraining order against
defendant.
On the evening of 21 March 2002, Brandon Dockery (“Dockery”),
with whom the victim was romantically involved, visited the victim.
Dockery and the victim were outside her residence when the victim
saw defendant approaching in a car. Defendant jumped out of the
car with a flashlight in one hand and a gun in the other and
started chasing Dockery, who fled to his parent's residence in the
same area. Defendant returned to the victim and attempted to force
her towards his car. The victim tried to break away from defendant
and move towards her house. Both the victim and defendant spoke in
raised voices as the victim “yelled for help” and defendant told
her to “shut up.” While this was occurring the victim's cousin,
Gloria Smith (“Smith”), called 911. Smith lived on the opposite
side of the street and had come outside at the time of the
altercation because her dog was barking. Although both she and
Dockery observed the altercation and heard gunfire, neither
actually observed defendant shoot the victim. Defendant then left
the scene and called Glenn Murray (“Murray”), a person with whom
the victim was previously involved romantically. After identifying
himself, defendant told Murray, “I just killed your girl. If I
were you, I'd be careful getting in my car in the morning. I'm
going to kill all you white folks that were involved.” The victim
died before emergency personnel and law enforcement arrived.
Defendant testified on his own behalf and indicated he came
over only after the victim called and invited him. Defendantargued with the victim and Dockery when he arrived and saw them
kissing but claimed he only retrieved his gun because Dockery and
the victim advanced on him, yelling, and he “thought they were
going to jump on [him].” Defendant denied chasing Dockery, who ran
upon seeing defendant's gun, and also denied struggling with the
victim in an attempt to force her to his car. Defendant admitted
shooting the victim but explained that the first shot was an
accident resulting from a struggle over the gun initiated by the
victim. Defendant had no explanation for the subsequent two shots
fired and testified he had no intention of killing the victim when
he went to her residence. Defendant admitted he called Murray
after the shooting to “inform [him] that [the victim] had been
killed [and] that [Murray] just better be careful.”
Defendant was arrested and charged with the first-degree
murder of the victim. At trial, numerous witnesses testified, over
defendant's objections, to statements made by the victim concerning
defendant as indicative of the victim's state of mind. In closing,
the State argued that defendant's story materially differed from
other accountings previously given. The jury returned a verdict of
guilty of first-degree murder. The trial court entered judgment
and sentenced defendant to life imprisonment without parole.
Defendant appeals, asserting the trial court erred by (I) allowing
improper hearsay evidence and (II) permitting improper closing
arguments by the State.
I. Hearsay Prior to trial, the State gave written notice of its intent to
offer out-of-court statements made by the victim to Wendy Madison
(“Madison”), Smith, Dockery, and Murray. At trial, defendant
objected to the use of this evidence on hearsay grounds, and the
trial court deferred ruling until it was presented in the context
of trial. Thereafter, during the testimony of all four witnesses,
defendant duly objected on hearsay grounds, and the trial court
permitted each witness to testify. On appeal, defendant argues
“the statements attributed to [the victim], with some exception,
were not expressions of fear, but were in fact 'mere statements of
fact[.]'” Defendant's brief does not set forth which of the
statements within the cited portions of the transcript he contends
were mere statements of fact and which of the statements he
concedes were expressions of fear. Defendant merely asserts that
“nearly every statement” made by the four witnesses was
inappropriate. We remind counsel of the necessity of identifying
the specific portions of testimony challenged on appeal and
admonish counsel that an invitation to this Court to peruse cited
testimony in an attempt to justify each statement is not an
adequate substitute for proper appellate argument.
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) (2003). While hearsay is generally inadmissible, see
N.C. Gen. Stat. § 8C-1, Rule 802 (2003), one of the exceptions to
the hearsay rule is “[a] statement of the declarant's then existingstate of mind, emotion, sensation, or physical condition . . . .”
N.C. Gen. Stat. § 8C-1, Rule 803(3) (2003). “Where a state of
mind, such as fear or alienation, is declared, the courts have
consistently admitted statements made by the victim, usually
reasoning that such a state of mind shows the relationship between
the victim and the accused and is therefore relevant to the
accused's possible motive.” 2 Kenneth S. Broun, Brandis & Broun on
North Carolina Evidence § 217 (5th ed. 1998). Recently, our
Supreme Court noted that, while “[s]tatements that merely recount
a factual event are not admissible under Rule 803(3) . . . , where
such statements serve . . . to demonstrate the basis for the
[victim's] emotions, the statements will be admitted under Rule
803(3).” State v. Smith, 357 N.C. 604, 609, 588 S.E.2d 453, 457
(2003), cert. denied, ___ U.S. ___, 159 L. Ed. 2d 819 (2004)
(citation and internal quotation marks omitted).
A. State of Mind Exception
Defendant cites five pages of Smith's in-court testimony. In
pertinent part, Smith testified before the jury and in voir dire
that the victim exhibited signs of being scared during one of their
conversations approximately one month before her death. Smith
stated the victim said, inter alia, (1) “she [the victim] was
afraid that [defendant] might hurt her[;]” (2) “she [the victim]
feared for her life[;]” and (3) “she [the victim] was scared that
he was going to try to hurt her.”
Defendant cites four pages of testimony by Madison, a co-
worker and close friend of the victim, who testified she spokewith the victim prior to her going home the night she was killed.
In that conversation, Madison testified that “she [the victim] was
scared [defendant] had followed her there because they had been
having some problems.” In a separate conversation with Madison
occurring within two months of her death, the victim stated that
(1) “[defendant] threatened her and she was getting really
scared[;]” (2) “she was afraid and . . . really wanted to work
things out, but she didn't see that [she and defendant] could
because he'd been acting differently, and she was just basically
scared[;]” and (3) “[defendant] threatened to kill her” on one
occasion.
Defendant cites nine pages of testimony by Dockery. Dockery
testified that the victim told him approximately a month before her
death that defendant beat and threatened her and she was “getting
tired of it.”
Defendant cites seventeen pages of testimony by Murray.
Murray testified concerning conversations between the victim and
himself, including a conversation he had with the victim
approximately a week before her death. Murray variously described
the victim's demeanor during these conversations as concerned,
troubled, worried, desperate, and scared. The victim exhibited
these feelings, in part, as a result of and when describing (1)
repeated beatings and threats by defendant, including one incident
when defendant used a gun to force the victim to drive to and show
him where Murray lived; (2) her attempt to get a restraining order
against defendant failed; and (3) her refusal to come to Murray'shouse because of her fear of defendant and, on one occasion,
because defendant had beaten and disfigured her face.
Each of the victim's statements either reflect the victim's
then-existing state of mind and fear of or exasperation with
defendant, demonstrate the basis for the victim's emotions (as
permitted under Smith, supra), or illuminate the relationship
between the victim and defendant. Accordingly, the trial court
properly admitted such statements under Rule 803(3). Accord State
v. Jolly, 332 N.C. 351, 362, 420 S.E.2d 661, 668-69 (1992); State
v. Cummings, 326 N.C. 298, 313, 389 S.E.2d 66, 74-75 (1990); State
v. Faucette, 326 N.C. 676, 682-83, 392 S.E.2d 71, 74-75 (1990).
B. Defendant's Testimony
Defendant asserts the trial court erred in allowing Madison to
testify the victim told her she and defendant “had been having some
problems [and] she wished that they could work things out.”
Defendant also asserts the trial court erred in allowing Murray to
testify as to the victim's statements about her failed attempt to
obtain a restraining order and an instance when she had refused to
come to Murray's house because defendant had beaten and disfigured
her face. However, defendant's subsequent testimony independently
informed the jury that his relationship with the victim was
troubled, that they were having problems, that the victim had
attempted but failed to obtain a restraining order against him, and
that he had previously disfigured her face during a physical
altercation. Since defendant testified to these facts, he waivedany objections to this testimony. State v. Reed, 153 N.C. App.
462, 466, 570 S.E.2d 116, 119 (2002).
C. Prejudicial Error
Finally, defendant asserts the trial court erred in allowing
Dockery to testify that the victim warned him to “watch [his] back
because [defendant] ha[d] been talking a little crazy.” Assuming,
arguendo, that this statement was erroneously admitted and that
this error transgressed upon defendant's rights under the
Confrontation Clause of the Constitution of the United States, in
light of the eye-witness testimony of the events that occurred that
night and defendant's own admissions, we conclude that such error
would be harmless beyond a reasonable doubt. See N.C. Gen. Stat.
§ 15A-1443(b) (2003).
II. Closing Argument
By his second assignment of error, defendant asserts the trial
court erred in allowing the State, over objection, to characterize
defendant's in-court testimony as a story defendant had told no one
except Dr. Hilkey, who psychologically evaluated defendant, and in
allowing the State to argue defendant could be sentenced to less
than eight years in prison for second-degree murder.
With respect to defendant's first argument, defendant, citing
Doyle v. Ohio, 426 U.S. 610, 611, 49 L. Ed. 2d 91, 94 (1976),
contends that the State's characterization was an improper comment
on defendant's right to invoke silence at the time of his arrest or
thereafter. During closing arguments, the State argued as follows:
[THE STATE]: And what's the defendant done
this week? He's come in here, he's told youthis story, this new story that no one's ever
heard _
[DEFENSE COUNSEL]: Objection.
[THE COURT]: Overrule.
[THE STATE]: _ . . . He thinks that maybe if
he comes in here and he tells you this new
story that, again, he never said to anyone
except Dr. Hilkey _
[DEFENSE COUNSEL]: Objection.
[THE COURT]: Overrule.
The State went on to contrast defendant's in-court testimony with
previous actions and comments by defendant. For example, the State
pointed out that, after the shooting, defendant called and informed
Murray he had just killed Cindy and then threatened him. The State
additionally contrasted defendant's in-court version of the events
(that he felt threatened and that the gun went off because of the
struggle) with his admission to his aunt (that he did not know why
he shot the victim when she asked his motivation). The State's
arguments did not implicate defendant's right to remain silent but,
rather, discredited defendant's in-court testimony by contrasting
it with other statements he previously recounted. Defendant's
argument is, accordingly, rejected.
Defendant also challenges the State's closing argument that
defendant could receive a sentence of less than eight years in
prison for second-degree murder. Under N.C. Gen. Stat. § 7A-97
(2003), counsel has the right “to inform the jury of the punishment
prescribed for the offense for which defendant is being tried.”
State v. Walters, 294 N.C. 311, 313, 240 S.E.2d 628, 630 (1978).
However, counsel is not entitled to attack the propriety of the
punishment. Id. In the instant case, the State informed the jury
of a minimum sentence defendant could face were he convicted ofsecond-degree murder. The trial court, immediately following the
prosecutor's closing statement, instructed the jury that (1)
defendant could receive a minimum sentence of thirty-two years and
eight months if convicted of second-degree murder and (2) the jury
should not be concerned about the sentence that would be imposed.
Our review of the arguments and instructions to the jury during
trial reveal defendant received a fair trial free of reversible
error. This assignment of error is overruled.
No error.
Judge TIMMONS-GOODSON concurs.
Judge GEER concurs with a separate opinion.
Report per Rule 30(e).
STATE OF NORTH CAROLINA
v
.
Johnston County
No. 02 CRS 52867
TARVARIS NOVACK MICKENS,
Defendant.
GEER, Judge, concurring.
I write separately to emphasize the inappropriateness of the
prosecutor's argument regarding the possible sentence for second
degree murder. While I agree that this error was harmless in light
of the trial court's subsequent instruction to the jury and the
evidence offered at trial, I believe that the prosecutor's
statements in closing are precisely the type of argument that our
Supreme Court has held to be improper.
Specifically, the State argued: "[Counsel for defendant] also
told you that he felt like, based upon what you have heard, he's
asking you to find the defendant guilty of second-degree murder.
Do you know that a defendant in North Carolina can be sentenced for
less than eight years in prison for a conviction of second-degree
murder?" The probable inference that a jury would draw from this
assertion is that it should not convict defendant of second degree
murder because of the brevity of the sentence.
In State v. Rhodes, 275 N.C. 584, 591, 169 S.E.2d 846, 851
(1969), our Supreme Court observed that "[j]urors, as every trial
judge knows, are always interested in the consequences of theirverdict. As laymen, it is hard for them to understand that they
have nothing to do with punishment." The Court then flatly held:
"The amount of punishment which a verdict of guilty will empower
the judge to impose is totally irrelevant to the issue of a
defendant's guilt. It is, therefore, no concern of the jurors."
Id. at 588, 169 S.E.2d at 848.
Consistent with this principle, while counsel may, pursuant to
N.C. Gen. Stat. § 7A-97 (2003), "read[] the punishment provisions
of the statute to the jury," counsel may not "'argue to the jury
that the law ought to be otherwise, that the punishment provided
thereby is too severe and, therefore, the jury should find the
defendant not guilty of the offense charged but should find him
guilty of a lesser offense or acquit him entirely.'" State v.
Walters, 294 N.C. 311, 313-14, 240 S.E.2d 628, 630 (1978) (quoting
State v. Britt, 285 N.C. 256, 273, 204 S.E.2d 817, 829 (1974)).
Phrased differently, N.C. Gen. Stat. § 7A-97 "does not mean that a
defendant should be permitted to argue that because of the severity
of the statutory punishment the jury ought to acquit; to question
the wisdom or appropriateness of the punishment; or to state the
punishment provisions incorrectly." State v. McMorris, 290 N.C.
286, 288, 225 S.E.2d 553, 555 (1976). More generally, as the Court
explained in State v. Wilson, 293 N.C. 47, 57, 235 S.E.2d 219, 225
(1977), counsel may not ask "the jury to consider the punishment as
part of its substantive deliberations . . . ."
These principles apply equally to the State. A prosecutor may
not ask the jury to consider the sentence to be imposed in thecourse of its deliberations. Thus, the prosecutor may not urge a
jury to convict on a greater offense rather than a lesser offense
because the sentence for the lesser offense is too lenient. Such
an argument is merely the inverse of the argument that our Supreme
Court has consistently held to be improper when made by defense
counsel and is itself inappropriate.
Here, the prosecutor argued that the jury should not consider
second degree murder as a verdict because defendant might receive
only an eight-year sentence. Since this argument was not made in
direct response to any contention by defendant, I can conceive of
no basis upon which this argument could be justified.
Nevertheless, the trial court, although it first overruled
defense counsel's objection, later specially instructed the jury on
this issue:
Now, ladies and gentlemen, before I begin my
formal instructions to you, let me say to you
that the prosecutor has mentioned to you in
her closing statement that a person convicted
of second-degree murder could be sentenced to
as little as eight years in prison. I should
also tell you a couple of things: First of
all, it is also possible that a person
convicted of second-degree murder could
receive a minimum since [sic] of as much as 32
years and 8 months. The sentence, of course,
would depend on many factors concerning the
individual defendant and the facts of the
individual case.
I want to further tell you, and I will
mention this again, that it is _ the sentence
is not something that you should be concerned
with. If the defendant should be guilty of
some offense, the Court will determine the
appropriate sentence. That will not be a
concern for the jury. Your only duty is to
render a verdict as to the guilt or innocenceof the defendant, and sentencing should not be
something that you're concerned about.
I am not confident that this instruction fully cured the problem
caused by the prosecutor's argument since a jury could interpret
the judge's remarks as meaning that the maximum sentence for second
degree murder would be only 32 years. Nevertheless, given both the
evidence presented at trial and this curative instruction, I do not
think that defendant has established a reasonable possibility that
the jury would have reached a different result in the absence of
the prosecutor's argument.
*** Converted from WordPerfect ***