STATE OF NORTH CAROLINA
v
.
Mecklenburg County
No. 01 CRS 50680
BECKY SEHORN HILLIER
Attorney General Roy A. Cooper, III, by Special Deputy
Attorney General John F. Maddrey, for the State.
Public Defender Isabel Scott Day by Assistant Public Defender
Julie Ramseur Lewis, for defendant-appellant.
JACKSON, Judge.
Defendant was found guilty, at a jury trial, of second-degree
murder on 22 January 2004. Defendant was sentenced to term of
imprisonment for a minimum of 157 and a maximum of 198 months.
Defendant timely appeals.
At trial the State's evidence tended to show that defendant
and the deceased, Michael Walker (“Walker”) began dating and living
together in 1999. For approximately the first year they were
together, defendant and Walker resided in defendant's apartment in
Cabarrus County. In June or July of 2000 Walker's father purchased
a trailer home for Walker and he and defendant moved into the
trailer together. Defendant and Walker continued to reside at the
trailer until Walker's death. On 21 July 2001, defendant and Walker drove to a cookout with
Chris Beeler, his wife Robin and his father Jerry Beeler, Sr.
(“Beeler, Sr.”), arriving at about noon. The cookout was held at
Jerry Beeler, Jr.'s home. Both defendant and Walker drank beer at
the cookout and Walker may have smoked marijuana and taken a
Valium. Defendant and Walker left the cookout at about midnight
with the same people with whom they had arrived. The drive to
their trailer was approximately thirty minutes.
Robin Beeler testified that during the ride home defendant was
crying because Beeler, Sr. had been picking on her and was angry
because Walker had not come to her defense. Defendant testified
that nothing had happened at the cookout to upset her and she was
not aware of any animosity between her and Walker on the ride home.
At approximately 1:30 a.m. on 22 July, police were dispatched
to defendant's and Walker's trailer in response to a report of a
person shot in the head. Upon arrival, the officers were motioned
into the trailer by Beeler, Sr. When the officers entered the
trailer they observed defendant leaning over Walker, who was lying
on his back just inside the door between the couch and coffee
table. Defendant was crying hysterically and appeared to be
attempting to perform CPR on Walker. When defendant saw the
officers, she said, “Please help him. I'm sorry.” When asked by
the officers what had happened, defendant stated that Walker had
shot himself in the head. A small handgun was located next to
Walker's feet. Medical personnel arrived and began treating
Walker. After the emergency personnel began treating Walker, butbefore he was taken to the hospital, his hands were placed in
manilla envelopes in an effort to preserve any available evidence.
Walker later died at the hospital.
When officers questioned defendant further, she stated that,
after arriving home, Walker began accusing her of wanting to sleep
with the other men at the cookout. An argument ensued and she
decided to leave. Defendant stated that she went to the bedroom to
retrieve her gun for protection, as she was going to be walking
alone in the dark. After retrieving her gun from under the
mattress, Walker began to struggle with her over the gun,
eventually taking it away from her. Defendant stated that Walker
then followed her into the living room, said “Let's see if this
thing is loaded,” pulled the slide of the pistol back, released it,
put the gun to his head, and pulled the trigger. Defendant told
police that after Walker shot himself, she moved him in an effort
to find a cell phone she thought was in his pocket so she could
call 911, but she was unable to locate the phone. Defendant then
went to Beeler, Sr.'s house to call for help. She returned to the
trailer with Beeler, Sr. and attempted CPR using instructions
relayed from Beeler, Sr. who was on the phone with 911. On 2
August 2001, defendant voluntarily gave a taped statement regarding
the incident to investigators. This statement was substantially
similar to the account that she provided at the time of the
incident.
Gun Shot Residue (“GSR”) tests were performed on both
defendant's and Walker's hands. The test on Walker's hands gave noindication that he had fired a gun. The State Bureau of
Investigation (“SBI”) agent who conducted the tests noted, however,
that the negative GSR test results did not eliminate the
possibility that Walker had fired a gun. The results of the GSR
test from defendant's left palm revealed the presence of one of
three elements indicating that a person has fired a gun. The SBI
agent went on to testify that the residue found could have
originated from the firing of a gun, the handling of a gun, or from
another source that produces similar particles.
On 10 October 2001, defendant voluntarily went to the police
station after being requested to do so. Defendant was confronted
with the evidence of the GSR tests and was asked if she had given
a truthful account of the incident. Defendant asserted that she
had. Officers told her that they did not believe she was being
truthful, that the evidence did not support her version of the
events, and that she needed to be completely truthful. Defendant
then gave a taped statement in which she told the investigators
that Walker had never put the gun to his head and said “Let's see
if this thing is loaded.” Defendant stated that the shooting was
an accident and that the gun went off in her hand while she and
Walker were struggling for control of it. Based upon this
statement, officers obtained a warrant for defendant's arrest on a
charge of murder on 15 November 2001.
At trial, the State presented John Walker, Walker's father, as
a witness. John Walker testified that he purchased the trailer for
his son because, approximately fourteen or fifteen months beforeWalker's death, Walker showed him defendant's handgun and stated
that defendant had pulled it on him. Walker told his father that
he needed the trailer because he wanted to move out and needed a
place to go. The trial court allowed John Walker's testimony
regarding Walker's statements, over defendant's objection, after
extensive voir dire. In ruling on the admissibility of the
testimony the trial court held that the remoteness in time between
the statements by Walker and the incident did not prevent the
testimony from being relevant to Walker's state of mind and
emotions; the evidence fell within the scope of Rule 404(b) of the
North Carolina Rules of Evidence as it related to proof of accident
or lack thereof; and the probative value of the evidence was not
substantially outweighed by the risk of unfair prejudice.
After an extended offer of proof regarding the proposed
testimony of Robin Beeler, the trial court entered a similar order
concluding that her testimony also was admissible for the same
reasons as John Walker's. Robin Beeler testified that sometime
during 2000, Walker had “four big, deep, red scratches” down his
face and neck that he told her were caused by defendant. Robin
Beeler further testified that Walker had related an incident to her
in which defendant “pulled a gun on him” scaring Walker to the
point that he felt he had to move out. Robin Beeler also testified
that she had been present when Walker had a discussion with her
husband telling her husband that he hid the gun and bullets in
different places because he was afraid defendant would pull the gun
on him again or there would be an accident. Immediately followingthe testimony regarding defendant's having allegedly pulled a gun
on Walker, the trial court issued a limiting instruction, on
defendant's motion, to the jury regarding that testimony.
On cross-examination by the State, Beeler, Sr. testified that
he had heard defendant talk a few times about killing the S.O.B. -
referring to Walker. On re-direct examination, defendant asked
Beeler, Sr. whether, when he had made a statement to the police
regarding defendant's comments about killing the S.O.B., he had
told the officer that defendant's comments were made in a joking
manner and that he had not taken the comments seriously. Beeler,
Sr. answered that he vaguely remembered telling the officer that.
At the close of the State's evidence and again at the close of
all evidence, defendant made motions to dismiss for insufficient
evidence. After hearing arguments of counsel, the trial court
denied defendant's motions on both occasions.
The trial court instructed the jury on first-degree murder,
second-degree murder, and voluntary manslaughter. At the charge
conference, defendant objected to instructing the jury on second-
degree murder. Defendant's objection was overruled.
Defendant was convicted ofsecond-degree murder and sentenced
to a minimum of 157 months and a maximum of 198 months confinement.
From this verdict and sentence defendant appeals.
On appeal, defendant makes twenty-eight assignments of error.
However, defendant only argues, and provides authority for, those
assignments of error pertaining to: (1) the admission of testimony
regarding statements allegedly made by Walker; (2) the admission oftestimony regarding prior bad acts allegedly committed by
defendant; (3) ineffective assistance of counsel by defendant's
trial attorney in failing to object or preserve objections to
allegedly improper evidence; (4) the submission of a jury
instruction on second-degree murder over defendant's objection; (5)
denial of defendant's motion to dismiss for insufficient evidence;
and (6) ineffective assistance of counsel by defendant's trial
attorney in calling a rebuttal witness without the court's
assurance that questioning of that witness would be limited to
matters concerning the testimony he was called to rebut.
Therefore, defendant's remaining assignments of error are deemed
abandoned. N.C. R. App. P. 28(b)(6) (2005).
Defendant first argues that the trial court erred in allowing
three witnesses to testify about statements allegedly made by
Walker regarding threatening conduct by defendant, Walker's having
hidden the gun and bullets in separate locations, and physical
injuries to Walker allegedly caused by defendant. Defendant
contends that this testimony was prohibited because it was evidence
of prior bad acts by defendant offered to showed that she acted in
conformity therewith and also was hearsay which did not fall within
a recognized exception.
Defendant first takes exception to the admission of John
Walker's testimony regarding his son's statements to him to the
effect that defendant had pulled a gun on him and that,
consequently, he needed his father to purchase him a trailer so he
had somewhere to go. Prior to allowing this testimony to bepresented to the jury, the trial court conducted an extensive voir
dire of John Walker and heard his proposed testimony. After the
voir dire and arguments of counsel, the trial court entered an
order overruling defendant's objection to John Walker's testimony,
concluding, as a matter of law, that the testimony in question was
admissible to show Walker's state of mind and to show an absence of
accident. The trial court also concluded that the probative value
of the questioned testimony was not substantially outweighed by the
danger of unfair prejudice.
After John Walker's testimony was admitted, the State called
Robin Beeler to testify. Defendant requested a voir dire of Robin
Beeler. After hearing arguments of counsel, the trial court
entered an order denying defendant's request for voir dire of Robin
Beeler as unnecessary as she had made a written statement to police
regarding the incident making defendant aware of the substance of
her testimony. The trial court also found the testimony to be
relevant and admissible for the same reasons that the court had
admitted John Walker's testimony.
Robin Beeler's testimony regarded statements allegedly made by
Walker concerning: (1) defendant's pulling a gun on him; (2) his
wanting to get a place of his own to get away from defendant
because he was scared; (3) defendant's causing scratches on his
face and neck; and (4) his hiding defendant's gun and bullets in
different places because he was afraid defendant would pull it on
him. After Robin Beeler's testimony regarding Walker's statement
that he hid the gun and bullets in different locations, the trialcourt issued a limiting instruction to the jury at defendant's
request. The trial court instructed the jury that the testimony
was being admitted for the limited purposes of showing accident or
lack thereof, to show Walker's state of mind prior to his death,
the nature of Walker and defendant's relationship, and the impact
of defendant's behavior on Walker's state of mind.
Defendant also takes exception to the testimony of Beeler, Sr.
regarding Walker's alleged statement to him that he hid the gun and
ammunition separately.
“Evidence of another offense is admissible under Rule 404(b)
so long as it is relevant to any fact or issue other than the
character of the accused.” State v. Simpson, 327 N.C. 178, 185, 393
S.E.2d 771, 775 (1990). Evidence of other crimes or acts may be
admissible for purposes such as proof or absence of accident. N.C.
Gen. Stat. . 8C-1 Rule 404(b) (2005). In the case sub judice,
defendant contends that Walker's death was accidental and therefore
evidence which tends to prove or disprove the accidental nature of
Walker's death is relevant. Testimony regarding misconduct by a
defendant towards a victim in domestic situations has been found to
be relevant to show lack of accident. State v. Syriani, 333 N.C.
350, 376-77, 428 S.E.2d 118, 132, cert. denied, 510 U.S. 948, 126
L. Ed. 2d 341 (1993). The testimony of John Walker and Robin
Beeler that defendant had pulled her gun on Walker previously, that
there was prior animosity between Walker and defendant, and Robin
Beeler's testimony regarding a prior physical altercation betweenWalker and defendant taken together tend to diminish the likelihood
that Walker's death was accidental.
Rule 403 is a rule of inclusion which is subject to only one
exception - that evidence of prior bad acts must be excluded if its
only probative value is to show that the defendant acted in
conformity with the past behavior. State v. Coffey, 326 N.C. 268,
278-79, 389 S.E.2d 48, 54 (1990). Accordingly, as the trial court
found the statements in question to be offered to prove lack of
accident, we hold that the testimony was properly admitted pursuant
to Rule 404(b).
We now must turn to whether the testimony should have been
excluded as hearsay. “'Hearsay' is a statement, other than one
made by the declarant while testifying at the trial or hearing,
offered in evidence to prove the truth of the matter asserted.”
N.C. Gen Stat. . 8C-1 Rule 801(c) (2003). Hearsay statements which
are not subject to a recognized exception are inadmissible. N.C.
Gen. Stat. . 8C-1 Rule 802 (2003).
The trial judge found the testimony in question here to be
admissible under Rule 803(3) which allows the admission of
statements regarding, among other things, the declarant's state of
mind and emotions. N.C. Gen. Stat. . 8C-1 Rule 803(3) (2003).
Walker's statements that he needed his father to buy him a trailer
so he could move out of defendant's home, made after relating that
defendant had pulled a gun on him; that defendant had pulled a gun
on him which scared him to the point that he felt he had to move
out; and that he hid the gun and ammunition separately because hewas afraid that defendant would pull it on him again and there
would be an accident, clearly indicate that Walker was frightened
by defendant's past behavior and fearful of what might happen
eventually as a result of defendant's possession and use of the
gun.
Defendant contends that the hearsay exception in Rule 803(3)
is not applicable in this case. Defendant argues that the
statements do not clearly show Walker's state of mind and are
merely recitations of facts describing events. Mere recitations of
fact that describe events and which do not indicate the declarant's
state of mind are not admissible under Rule 803(3). State v.
Hardy, 339 N.C. 207, 228-29, 451 S.E.2d 600, 612 (1994). However,
where the recited facts tend to show the declarant's state of mind
and demonstrate the basis for the declarant's emotions they clearly
fall within the scope of Rule 803(3). State v. Gray, 347 N.C. 143,
173, 491 S.E.2d 538, 550 (1997), overruled in part on other
grounds, State v. Long, 354 N.C. 534, 542, 557 S.E.2d 89, 95
(2001).
The testimony in question, although partially consisting of
recitations of fact describing events as related to the witnesses
by Walker, clearly demonstrates Walker's state of mind with regard
to his fear of defendant. Accordingly, we hold that the statements
in question fall within the scope of the exception in Rule 803(3).
This assignment of error is overruled.
Defendant next argues that she received ineffective assistance
of counsel in the event the two previous assignments of error werenot properly preserved for appeal. The testimony in question was
properly objected to before the trial court and defendant's related
assignments of error were considered on the merits by this Court.
As these assignments of error were properly preserved, this
assignment of error is overruled.
Defendant's next argument is that the trial court erred by
instructing the jury on the lesser included offense of second-
degree murder as the evidence at trial did not support that charge.
An instruction on a lesser included offense must be given to the
jury if the evidence would allow the jury rationally to find the
defendant guilty of the lesser offense and acquit the defendant of
the greater offense. State v. Leazer, 353 N.C. 234, 237, 539
S.E.2d 922, 924 (2000); State v. Strickland, 307 N.C. 274, 286, 298
S.E.2d 645, 654 (1983), overruled in part on other grounds by,
State v. Johnson, 317 N.C. 193, 344 S.E.2d 775 (1986).
In the case sub judice, the trial court instructed the jury on
the charges of first-degree murder, second-degree murder, and
voluntary manslaughter. Defendant objected to the instruction on
second-degree murder, and the court overruled the objection.
“First-degree murder is the intentional and unlawful killing of a
human being with malice and with premeditation and deliberation.”
State v. Thomas, 350 N.C. 315, 346, 514 S.E.2d 486, 505, cert.
denied, 528 U.S. 1006, 145 L. Ed. 2d 388 (1999). “Murder in the
second-degree is the unlawful killing of a human being with malice
but without premeditation and deliberation.” State v. Flowers, 347
N.C. 1, 29, 489 S.E.2d 391, 407 (1997), cert. denied, 522 U.S.1135, 140 L. Ed. 2d 150 (1998). Our Supreme Court has stated the
rule regarding the inclusion of a jury instruction on the lesser
included offense of second-degree murder as:
[I]f the State's evidence is sufficient to
satisfy its burden of proving each element of
first-degree murder, including premeditation
and deliberation, and there is no evidence
other than defendant's denial that he
committed the crime to negate these elements,
the trial court should not instruct the jury
on second-degree murder.
State v. Hyatt, 355 N.C. 642, 659-60, 566 S.E.2d 61, 73 (2002),
cert. denied, 537 U.S. 1133, 154 L. Ed. 2d 823 (2003) (quoting
State v. Conaway, 339 N.C. 487, 514, 453 S.E.2d 824, 841, cert.
denied, 516 U.S. 884, 133 L. Ed. 2d 153 (1995)).
Defendant contends that the evidence at trial rationally could
not support a conviction for second-degree murder. Defendant
argues that the evidence of want of provocation, defendant's
attempts to cover her involvement in the killing, the manner of
killing being a point blank shot to the head, the prior threats
made by defendant regarding killing Walker, and the ill will
between defendant and Walker could rationally be construed only to
support a conclusion that the killing, if committed by defendant,
was done with deliberation and premeditation. Defendant argues
that, if the jury finds that defendant killed Walker, no evidence
was presented that could negate the element of premeditation or
deliberation.
The State argues that defendant's testimony that she and
Walker had engaged in a heated argument ; Walker had grabbed her
arms ; and Walker had pushed her three times shortly before hisdeath was sufficient to negate the elements of premeditation and
deliberation and, therefore, justify an instruction on second-
degree murder.
A killing is “premeditated” if the defendant
contemplated killing for some period of time,
however short, before he acted. . . . A
killing is “deliberate” if the defendant
formed an intent to kill and carried out that
intent in a cool state of blood, “free from
any 'violent passion suddenly aroused by some
lawful or just cause or legal provocation.'”
State v. Robinson, 355 N.C. 320, 336-37, 561 S.E.2d 245, 256, cert.
denied, 537 U.S. 1006, 154 L. Ed. 2d 404 (2002) (quoting, State v.
Laws, 345 N.C. 585, 593-94, 481 S.E.2d 641, 645 (1997)) (internal
quotations omitted). Words or conduct that do not rise to the
level of assault or threatened assault can be enough to negate the
element of deliberation if those words or conduct are sufficient to
arouse a sudden passion in the defendant. State v. Huggins, 338
N.C. 494, 498, 450 S.E.2d 479, 482 (1994). It is logical to
conclude that, if words and conduct not rising to the level of
assault can possibly negate deliberation, an assault which is not
sufficient to justify self-defense or negate the element of malice
also may be sufficient to negate deliberation.
The evidence presented at trial in no way supports self-
defense as there is no indication that the shooting was committed
to protect defendant from harm. Nor does the evidence necessarily
negate the element of malice as there is ample evidence that
supports that the shooting was done with malice. The evidence
supporting the existence of malice includes the manner of the
killing, the prior threats made by defendant with regard to Walker,and the prior ill will existing between them. Accordingly, we hold
that the heated argument and physical confrontation do not
necessarily reduce the offense to manslaughter, and could support
a verdict of second-degree murder. This assignment of error is
overruled.
Defendant next contends that the trial court erred in denying
her motion to dismiss for insufficient evidence at the close of all
evidence. In support of this assignment of error, defendant merely
realleges by incorporation her argument regarding the second-degree
murder instruction. However, the defendant's motion to dismiss was
for the charge of first-degree murder. Defendant argues in her
brief in support of her assignment of error regarding the jury
instruction on second-degree murder, that there was sufficient
evidence presented at trial to support a jury instruction on first-
degree murder. Accordingly, defendant concedes that the evidence
was sufficient to submit the first-degree murder charge to the
jury. Therefore, this assignment is overruled.
Defendant's final assignment of error is that she received
ineffective assistance of counsel due to her trial counsel offering
Beeler, Sr. as a witness to rebut Robin Beeler's testimony without
ensuring that the scope of cross-examination would be limited to
his rebuttal testimony. To prevail on an assignment of error
alleging ineffective assistance of counsel, a party must show that
the conduct of counsel “'fell below an objective standard of
reasonableness.'” State v. Augustine, 359 N.C. 709, 718, 616
S.E.2d 515, 524 (2005) (quoting State v. Braswell, 312 N.C. 553,561-62, 324 S.E.2d 241, 248 (1985)). In Braswell, our Supreme
Court adopted a two part test for meeting a party's burden in an
appeal premised on ineffective assistance of counsel that was
promulgated in the United States Supreme Court case of Strickland
v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674 (1984). 312 N.C. at
562, 324 S.E.2d at 248.
First, the defendant must show that counsel's
performance was deficient. This requires
showing that counsel made errors so serious
that counsel was not functioning as the
“counsel” guaranteed the defendant by the
Sixth Amendment. Second, the defendant must
show that the deficient performance prejudiced
the defense. This requires showing that
counsel's errors were so serious as to deprive
the defendant of a fair trial, a trial whose
result is reliable.
Id. (quoting Strickland, 466 U.S. at 687, 80 L. Ed. 2d at 693)
(emphasis in original).
Trial counsel are afforded “wide latitude in matters of
strategy . . . .” State v. Roache, 358 N.C. 243, 279, 595 S.E.2d
381, 405 (2004) (quoting State v. Fletcher, 354 N.C. 455, 482, 555
S.E.2d 534, 551 (2001), cert. denied, 537 U.S. 846, 154 L. Ed. 2d
73 (2002)); State v. Lowery, 318 N.C. 54, 68, 347 S.E.2d 729, 739
(1986). “Moreover, this Court engages in a presumption that trial
counsel's representation is within the boundaries of acceptable
professional conduct.” Roache, 358 N.C. at 280, 595 S.E.2d at 406
(quoting State v. Fisher, 318 N.C. 512, 532, 350 S.E.2d 334, 346
(1986)).
In the case sub judice, trial counsel called Beeler, Sr. to
rebut the testimony of Robin Beeler. Offering the testimony of awitness to rebut the prejudicial testimony of another witness is
clearly an acceptable - and expected - function of counsel as
guaranteed to a defendant pursuant to the Sixth Amendment.
Defendant bases this argument, in part, on her counsel's failure to
obtain an assurance from the trial court that cross-examination of
the witness would be limited to the rebuttal testimony elicited on
direct examination. “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) (2003). As the scope of cross-
examination is not limited to the testimony elicited on direct-
examination, the court could not give defendant an assurance that
the cross-examination would be so limited.
The decision of defendant's trial counsel to offer the
testimony of Beeler, Sr. to rebut Robin Beeler's testimony was a
strategic one. Offering the testimony of a rebuttal witness is
within the boundaries of acceptable professional conduct, although
there exists a risk that prejudicial testimony may be elicited on
cross-examination. “Ineffective assistance of counsel claims are
'not intended to promote judicial second-guessing on questions of
strategy as basic as the handling of a witness.'” Lowery, 318 N.C.
at 68, 347 S.E.2d at 739 (quoting State v. Milano, 297 N.C. 485,
495, 256 S.E.2d 154, 160 (1979)). We hold that the performance of
defendant's trial counsel was not ineffective in this case.
Accordingly, this assignment of error is overruled.
No error.
Judges McGEE and McCULLOUGH concur.
Report per Rule 30(e).
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