Appeal by defendant from judgment entered 19 March 2004 by
Judge W. David Lee in Cabarrus County Superior Court. Heard in the
Court of Appeals 30 November 2005.
Attorney General Roy Cooper, by Special Deputy Attorney
General Francis W. Crawley, for the State.
Kathryn L. VandenBerg for defendant-appellant.
Defendant Bobby Ray Woodard, Jr. appeals from his conviction
for first degree murder. On appeal, he argues primarily that
certain testimony repeating statements made by the victim, which
(1) indicated defendant owed the victim money and (2) expressed the
victim's intent to go to defendant's house, constituted
inadmissible hearsay. We disagree and, accordingly, hold that
there was no error in defendant's trial.
The State's evidence tended to show the following facts.
During November 2002, defendant regularly purchased crack cocaine
from the victim, Damian Douglas, and from Douglas' associate,
Kimberly Hedrick. Usually, when defendant wanted cocaine, he would telephone Douglas or Hedrick, and one or both of them would drive
to defendant's house at 1211 Rainbow Drive in Kannapolis, North
Carolina. Defendant would meet them at the door and pay in cash.
Up until the week before Thanksgiving, Tracy Crawford lived at
defendant's house. She testified that she saw defendant smoking
crack cocaine, purchased from Douglas and Hedrick, almost every
day. According to Crawford, on one occasion, defendant said to her
that he "ought to take out one of those n****rs and take their
Defendant's work supervisor stated that through the fall of
2002, defendant's attendance at work began to suffer. Defendant
would often leave work early and began to miss one or two days per
week. The supervisor also stated that defendant appeared to be
losing weight. In addition, two weeks before Thanksgiving,
defendant borrowed $250.00 from a friend. He also tried to sell
his fishing equipment to raise money. After he bounced two checks
at a bar, the bar refused to cash a third check from defendant on
25 November 2002.
On Tuesday, 26 November 2002, Hedrick went to deliver $100.00
worth of cocaine to defendant at his house. After Hedrick handed
him the cocaine, he told her he did not have any money himself, but
that "somebody else was going to pay for it later." When Hedrick
told Douglas the next morning that defendant had not paid her for
the cocaine, Douglas told Hedrick that defendant also owed him
money and that he was planning to go to defendant's house to
collect it. On 27 November 2002, the day after defendant failed to pay
Hedrick, defendant called his workplace to ask where he could pick
up his paycheck. At approximately 5:00 p.m. that day, Douglas
received a phone call. After he hung up, Douglas told Johnnie Kay
Melton that defendant owed him $200.00 and that defendant was
calling to ask Douglas if he could borrow $10.00 for gas to drive
to pick up his paycheck in Charlotte so that he could pay Douglas.
Douglas, Melton, and two other people _ Melissa Gee and Cedrick
Kennedy _ drove to defendant's home on Rainbow Drive. A black
truck that Douglas said belonged to defendant was parked in the
driveway. Douglas knocked on defendant's door and, when defendant
answered, Douglas handed him $10.00. Douglas and his friends then
left. At 7:00 or 8:00 p.m., however, defendant's supervisor
telephoned defendant at home and terminated his employment because
defendant had been absent from work for three consecutive days.
An hour or two later, at approximately 9:00 p.m., Douglas
received another phone call. Gee was able to hear the conversation
and testified that she heard someone tell Douglas to come get
$200.00. Douglas told Melton that they needed to go back to
Rainbow Drive because defendant now had his money and wanted to buy
an additional $200.00 worth of crack cocaine. Douglas, Melton,
Gee, and Kennedy drove to the Rainbow Drive house and pulled into
the driveway, blocking defendant's black truck. Douglas got out of
the car, told his friends not to leave without him, and went into
the house. At the time, Douglas had with him about $2,500.00 in
cash and about $4,000.00 in crack cocaine. Douglas' three friends remained in their car with the radio
playing and the windows rolled up because of the cold. About five
minutes later, defendant came out of the house and approached the
car containing Melton, Gee, and Kennedy. He told them that Douglas
was around the side of the house on the phone. He asked if they
would move their car so he could go to the store. After they
unblocked his truck, defendant left, spinning his wheels on his way
out of the driveway.
Douglas' friends waited in the driveway for another hour.
Calls to Douglas' cell phone went unanswered. They knocked on the
door of the house, tried the doorknob, and walked around the house,
trying to find a way in. Eventually, since they could not get into
the house or find Douglas, they left.
The next day (28 November 2002), which was Thanksgiving,
defendant's 18-year-old daughter Shana stopped by the Rainbow Drive
address between noon and 1:00 p.m. on her way to her mother's house
for Thanksgiving dinner. When she opened the door of her father's
house, she found Douglas lying dead on the living room floor. He
had been shot twice in the head. A .25 caliber pistol, which was
later determined to be the gun that shot Douglas, was on a coffee
table near the body. Douglas' pockets held only a tube of lip balm
and a cell phone.
Defendant was apprehended on Saturday, 30 November 2002, when
he crashed his truck into a guard rail on Interstate 40 in Davie
County. A nurse and an EMS worker testified that defendant told
them he was trying to kill himself. The police found a motelreceipt in the truck showing that defendant had arrived at a High
Point motel on 28 November 2002. They also discovered that
defendant had made calls from that motel room to houses and
businesses involving prostitutes and escort services.
Defendant was indicted for the first degree murder of Damian
Douglas. He pled not guilty and was tried non-capitally in
Cabarrus County Superior Court. After the jury convicted him on 22
March 2004, he was sentenced to life imprisonment without parole.
Defendant first argues that the trial court erred in allowing
the State's witnesses to testify regarding certain statements made
(See footnote 1)
Defendant contends that these statements were
inadmissible hearsay. After reviewing each of the challenged
excerpts, we hold that the testimony either did not constitute
hearsay or fell within the exception to the hearsay rule set out in
N.C.R. Evid. 803(3).
The first category of testimony involves statements by Douglas
that he wanted or needed to go to defendant's house. Our courts
have consistently held that such testimony is admissible under Rule
803(3) of the Rules of Evidence. That rule provides: The following are not excluded by the
hearsay rule, even though the declarant is
available as a witness:
. . . .
(3) Then Existing Mental, Emotional, or
Physical Condition. _ A statement of
the declarant's then existing state
of mind, emotion, sensation, or
physical condition (such as intent,
plan, motive, design, mental
feeling, pain, and bodily health),
but not including a statement of
memory or belief to prove the fact
remembered or believed unless it
relates to the execution,
revocation, identification, or terms
of declarant's will.
N.C.R. Evid. 803(3).
The North Carolina Supreme Court has long recognized "the
exception to the hearsay rule permitting the admission of
declarations of a decedent to show his intention, when the
intention is relevant per se and the declaration is not so
unreasonably remote in time as to suggest the possibility of a
change of mind." State v. Vestal, 278 N.C. 561, 587, 180 S.E.2d
755, 772 (1971). In Vestal, for example, in which the decedent had
been found dead in defendant's warehouse in Delaware, the Supreme
Court held that the trial court properly admitted the decedent's
prior statement to his wife that he was planning to go on a trip
with the defendant to Delaware. Id. at 581, 180 S.E.2d at 768.
See also State v. Sneed, 327 N.C. 266, 271, 393 S.E.2d 531, 534
(1990) (finding admissible testimony by a witness that a man other
than the defendant had told the witness that he planned to rob a
store and had asked the witness to drive him to the store); Statev. McElrath, 322 N.C. 1, 19, 366 S.E.2d 442, 452 (1988) (victim's
statement that he planned to go on a trip with defendant admissible
as a "then-existing intent to engage in a future act"). Since the
challenged testimony involved Douglas' statement of his desire and
intent to go to defendant's house, it was admissible under Rule
803(3) as an expression of the victim's then-existing intent to
engage in a future act.
Defendant also challenges the admission of statements by
Douglas explaining to his friends why he needed to go to
defendant's house. For example, Melton testified that Douglas told
him that they needed to take defendant $10.00 for gas so that
defendant could get his paycheck and pay Douglas the $200.00 that
defendant owed him. Additionally, Melton later testified that
Douglas told them that they needed to return to the Rainbow Drive
residence because defendant "was back, he had his money and wanted
to spend two hundred more dollars" on crack cocaine. Three other
witnesses all reported similar statements by Douglas.
We disagree with defendant's characterization of this
testimony 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.R.
Evid. 801(c) (emphasis added). If such statements are offered for
other purposes, they are not hearsay. Thus, it is well-established
that the statements of one person to another are admissible to
explain subsequent conduct. See State v. Chapman, 359 N.C. 328,
355, 611 S.E.2d 794, 816 (2005) ("Evidence of the phone call wasadmitted to show defendant's response to receiving the call . . .
[and] [t]hus, the phone call was admissible to explain defendant's
subsequent conduct on leaving Mr. Yarborough's house."); State v.
Walden, 311 N.C. 667, 672, 319 S.E.2d 577, 581 (1984) (statements
that decedent asked witnesses to come by her house were admissible
to explain witnesses' conduct in going to the house); State v.
Tate, 307 N.C. 242, 244, 297 S.E.2d 581, 583 (1982) (admitting as
non-hearsay statement of defendant that she rushed from a friend's
office because the friend told her he had urgent business and
needed her to leave).
Here, the challenged statements were not offered to prove the
actual existence of defendant's debt to Douglas or the method by
which defendant would obtain money to pay the debt. Nor was the
testimony that defendant needed $10.00 for gas to retrieve his
paycheck offered to establish that defendant in fact needed the
money for that reason. Rather, this testimony was offered to
explain why Douglas and the witnesses went to defendant's house.
As such, the testimony was admissible as non-hearsay.
(See footnote 2)
Defendant further claims that admission of the challenged
statements violates his rights under the Confrontation Clause of
the United States Constitution. We note that defendant's arguments
of constitutional error were not raised at trial and are thus
deemed waived on appeal. State v. Anderson, 350 N.C. 152, 175, 513S.E.2d 296, 310, cert. denied, 528 U.S. 973, 145 L. Ed. 2d 326, 120
S. Ct. 417 (1999); see N.C.R. App. P. 10(b)(1). Defendant's first
assignment of error is, therefore, overruled.
Defendant's remaining argument on appeal is that the trial
court erred in its instructions to the jury upon the jury's
announcement of a deadlock. Defendant concedes that his trial
counsel did not object to these instructions at trial, but, in his
brief, requests that we review the instructions for plain error.
Defendant did not, however, rely upon plain error in his assignment
of error addressing this issue. Our Supreme Court has held that,
in these circumstances, a defendant is "not entitled to plain error
review of [the] issue." State v. Dennison
, 359 N.C. 312, 313, 608
S.E.2d 756, 757 (2005). This assignment of error is, therefore,
We note, in conclusion, that according to the verdict sheet
and the transcript of the trial, defendant was convicted on 22
March 2004. The date on the judgment imposing a life sentence is
19 March 2004. That date appears to be a clerical error that
should be corrected on remand. State v. Cagle
, 241 N.C. 134, 139,
84 S.E.2d 649, 654 (1954).
No error; remanded with instructions.
Judges HUNTER and McCULLOUGH concur.
Report per Rule 30(e).