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1. Homicide--first-degree murder--short-form indictment constitutional
A short form indictment used to charge a defendant with first-degree murder is constitutional.
2. Confessions and Incriminating Statements--public safety exception--Miranda
warnings not required
The public safety exception to the Miranda rule applied to statements made by defendant in response to an officer's question to defendant at a murder scene, Is there anyone else in the house, where is she? where officers were responding to a report of a woman being shot by her husband, the shooter was still on the scene in front of the house when officers arrived, an officer testified that she was not sure whether defendant was armed and she was unaware of the condition of the victim, and the officer asked no other questions of defendant after defendant was secured and other officers gained entry into the house.
3. Evidence--911 call--nontestimonial evidence
The admission of a murder victim's call in which she stated, in response to the 911 operator's questions, that she was being shot by defendant did not violate defendant's right of confrontation under the Crawford decision because the victim's statements were not testimonial when the colloquy between the victim and the 911 operator was not designed to establish a past fact but to describe current circumstances requiring police assistance.
4. Evidence-_hearsay--business records exception--911 event report
The trial court did not err in a first-degree murder, discharging a weapon into occupied building, and violating a domestic protective order case by admitting into evidence the 911 event report even though defendant contends it was inadmissible hearsay and violated his confrontation rights, because: (1) the event report was admissible as a business record under N.C.G.S. § 8C-1, Rule 803(6); and (2) a 911 operator testified that the event report was kept in the ordinary course of business, that all the entries were made while on the 911 call with the victim, and that the operator was present when all entries were made.
5. Evidence--hearsay--business record exception--pass on information form used by
security guards in victim's neighborhood
The trial court did not err in a first-degree murder, discharging a weapon into occupied building, and violating a domestic protective order case by admitting evidence of the pass on information form used by the security guards in the victim's neighborhood which stated that the victim's husband had been threatening her even though defendant contends it was inadmissible hearsay and violated his confrontation rights, because: (1) the form was properly admitted as a business record under N.C.G.S. § 8C-1, Rule 803(6); (2) the chief security guard testified that the form was kept in the ordinary course of business and that he was the custodian of the record; and (3) the statements made by the victim to the security chief, as recorded on the form, were nontestimonial.
6. Evidence--hearsay--existing state of mind exception
The trial court did not err in a first-degree murder, discharging a weapon into occupied building, and violating a domestic protective order case by admitting, during the testimony of the chief security guard, a statement made by the victim that she would be going out of town the following week, because: (1) defendant stated no grounds for his objection; (2) constitutional error will not be considered for the first time on appeal; and (3) the statement was admissible under the N.C.G.S. § 8C-1, Rule 803(3) existing statement of mind exception to the hearsay rule.
7. Evidence--photographs of homicide victim--illustrative purposes
The trial court did not abuse its discretion in a first-degree murder case by allowing the State to introduce photographs of the victim's body and photographs taken at the victim's autopsy because: (1) photographs of a homicide victim may be introduced even if they are gory, gruesome, horrible, or revolting, so long as they are used for illustrative purposes and their excessive or repetitious use is not aimed solely at arousing the passions of the jury; (2) the photographs were used in the course of testimony from the officers responding to the scene, and from the testimony of the medical examiner; and (3) the State did not offer an excessive number of photographs, and nothing suggested the photographs were offered solely to arouse the passions of the jury.
8. Venue--pro se motion to change--no right for defendant to appear both by himself
and by counsel
The trial court did not err in a prosecution for first-degree murder and other crimes by refusing to hear defendant's pro se motion to change venue because, having elected for representation by appointed counsel, defendant cannot also file motions on his own behalf or attempt to represent himself.
9. Jury--selection--broadcast of 911 call prior to selection
The trial court did not abuse its discretion in a prosecution first-degree murder and other crimes by denying defendant's motion to continue based on the broadcast of the victim's 911 call prior to jury selection, because: (1) each juror who served indicated an ability to render a fair verdict based on facts and evidence presented in the courtroom and not from any other source; (2) defendant did not exhaust his peremptory challenges and identified no objectionable juror who sat on his jury; (3) defendant overemphasized the importance of the 911 call when the State presented dozens of witnesses, gunshot residue was found on defendant's hands, defendant's blood was recovered from the gun, blood recovered from the inside of the house matched only the victim, blood recovered from the outside of the windowsills matched defendant, bullets from the gun found at the scene matched the bullets recovered from the victim's body, and bullet casings were found outside the house.
10. Indictment and Information--amendment--surname
The trial court did not err by denying defendant's motion to dismiss the indictments for first-degree murder and firing into an occupied dwelling based on the indictments containing the incorrect name of the victim, or by allowing the State to amend the indictments from Gail Hewson Tice to Gail Tice Hewson after the State rested its case, because: (1) changes to the surname of a victim are not an amendment for purposes of N.C.G.S. § 15A-923(e); (2) at no time in the proceeding did defendant indicate any confusion or surprise as to whom defendant was charged with having murdered; and (3) during a pretrial motion made by defendant, he refers toGail Hewson, also known as Gail Tice.
11. Homicide--first-degree murder--failure to instruct on manslaughter
The trial court did not err by refusing to instruct the jury on manslaughter as a lesser- included offense of first-degree murder, because: (1) contrary to defendant's assertion, the mere existence of a domestic violence protective order does not permit the inference that defendant acted in the heat of passion; and (2) defendant points to no evidence that would support a jury verdict of manslaughter.
12. Homicide--second-degree murder--failure to instruct on punishment
The trial court did not err in a first-degree murder case by failing to instruct the jury on the penalty for second-degree murder after the jury sent a note to the trial court requesting the information, because: (1) defendant did not choose to exercise his right to inform the jury of the punishment for the possible verdicts; (2) the trial court did not prevent defendant from making any argument regarding punishment; and (3) N.C.G.S. § 7A-97 does not obligate the trial court to inform the jury of applicable punishments, but rather permits a defendant to do so.
13. Firearms and Other Weapons; Homicide--first-degree murder--discharging weapon
into occupied building--motion to dismiss--sufficiency of evidence
The trial court did not err by denying defendant's motions to dismiss the charges of first- degree murder and discharging a weapon into an occupied building at the close of the State's evidence and at the close of all evidence, because the evidence showed that: (1) defendant entered the victim's neighborhood and fired multiple shots into her home from outside; (2) defendant was arrested in front of the house eight minutes after the victim placed a 911 call; and (3) bullets from defendant's gun matched those found inside the house and recovered from the victim's body.
Attorney General Roy Cooper, by Special Deputy Attorney
General Alexander McC. Peters, for the State.
McCotter, Ashton & Smith, P.A., by Rudolph A. Ashton, III and Charles K. McCotter, Jr., for Defendant.
Robert Hugh Hewson (Defendant) was indicted on charges of
first-degree murder, discharging a weapon into an occupied
building, and violating a domestic violence protective order. Onthe first-degree murder charge, the jury returned a guilty verdict
based upon malice, premeditation, and deliberation, and based upon
felony murder, with the underlying felony being discharging a
weapon into occupied property. The jury also found Defendant
guilty of each of the remaining two charges. The trial court
sentenced Defendant to life imprisonment without parole on the
first-degree murder charge, and a minimum of twenty-five months and
a maximum of thirty-nine months in prison on the remaining charges.
The trial court heard pre-trial motions on 31 October 2005. Defendant made several motions relevant to the issues before us. First, Defendant moved to dismiss the indictment charging Defendant with first-degree murder. Defendant contended the short form indictment was unconstitutional, but conceded that case law from our Supreme Court did not support his position. The trial court denied Defendant's motion.
Next, Defendant moved to suppress statements he made to police at the time he was arrested. Defendant argued the statements were obtained in violation of his Miranda rights. The trial court concluded that the public safety exception to Miranda applied, and denied Defendant's motion.
Defendant also moved to suppress: (1) the recorded 911 call made by the victim; and (2) the event report taken by 911 personnel detailing the actions taken in response to the victim's 911 call as barred by Crawford v. Washington, 541 U.S. 36, 158 L. Ed. 2d 177 (2004). The trial court found that the statements made to the 911operator by the victim were non-testimonial in nature and denied Defendant's motion. The trial court also admitted the event report.
Defendant filed a pro se motion for change of venue. Defendant contended that "prejudicial, slandering and derogatory comments" were made by the media, which required a change of venue pursuant to N.C. Gen. Stat. § 15A-957. To hear the motion, the trial court required that defense counsel make the motion, but defense counsel declined to do so. Thus, the trial court did not rule on Defendant's pro se motion for change of venue.
The next morning as jury selection was to begin, Defendant learned that local news media had broadcast the 911 call the previous evening, and again that morning. Defendant moved for a continuance, or in the alternative, for an order prohibiting all parties from disclosing evidence to the media. Defendant contended that selecting the jury after "the entire prospective jury pool" had "witnessed" the 911 call violated Defendant's due process right to a fair and impartial jury. The trial court denied Defendant's motion to continue. The trial court found that the rules of ethics precluded the parties from discussing the facts of the case during the trial, and allowed Defendant's motion to prohibit the parties from disclosing evidence to the media to the extent the rules of ethics precluded such action.
At trial, Carrie Bennett (Bennett), a 911 dispatcher for New Hanover County, testified that she answered the victim's 911 call at 6:44 a.m. on 29 September 2004. Bennett stated she was onlyable to communicate with the victim for the first few seconds of the call, although Bennett remained on the line for approximately seventeen minutes. Over Defendant's renewed objection, a recording of the 911 call was played for the jury. During the 911 call, the victim reported that she had been shot and was bleeding. She said, "[m]y husband is shooting me." Bennett testified that while she was on the line she could hear shots being fired.
To illustrate Bennett's testimony, the State moved to admit an event report which detailed the timeline of the 911 call and the response made by law enforcement. The report included entries made by various 911 personnel. Defendant objected to the admission of the event report, arguing that the report contained inadmissible hearsay. The trial court overruled Defendant's objection and admitted the event report as a business record.
Officer Adrienne Anderson (Officer Anderson) of the Wilmington Police Department, testified that she responded to a report of a shooting in progress at 1721 Fontenay Place on 29 September 2004. Officer Anderson was the first person to arrive at the house at 6:52 a.m. Officer Mark Lewis (Officer Lewis) arrived shortly thereafter. Officers Anderson and Lewis observed Defendant in front of the house with his hands over his head. Officer Anderson ordered Defendant to lie face down on the ground. Defendant complied and yelled, "I've just had open heart surgery." Officer Anderson then placed Defendant in handcuffs. Officer Anderson asked Defendant: "Is there anybody else in the house, where is she?" Defendant said he had not been in the house. OfficerAnderson asked Defendant where the gun was located. Defendant said something Officer Anderson was unable to understand, and then motioned his head toward the front door of the house.
Officer Lewis testified that he responded to a call of "a woman being shot by her husband and the shooter was still on the scene." When Officer Lewis arrived at 1721 Fontenay Place, he saw Defendant in front of the house. Defendant raised his hands above his head and Officers Lewis and Anderson shouted for Defendant to lie down on the ground. Defendant complied. Officer Lewis testified that at that time the officers did not know where the gun was located. When Officer Anderson handcuffed Defendant, Officer Lewis turned his attention to locating the victim. He went to the front door of the house, observed that the door was locked, and saw a revolver lying to the left of the door, on the outside of the house. Officer Lewis and Officer Kevin Tully (Officer Tully) knocked out a portion of the door to gain access to the house. Officer Lewis saw the victim lying on the floor with a phone in her hand. Her head was surrounded by a large pool of blood. Once the officers had secured the scene, emergency personnel entered the house and pronounced the victim dead.
Officer Tully testified that "[t]here were bullets laying all over the house[.]" During the course of the investigation, Officer Tully made a protective sweep of the house and found several broken windows.
Peggy Creech (Creech), an assistant clerk of court for Superior Court of New Hanover County, testified that the victimfiled a complaint against Defendant on 9 September 2004 and requested a domestic violence protection order. A ten-day protective order was entered, and a hearing was held on 17 September 2004. At the hearing, the order was extended until 18 March 2005. The order prohibited Defendant from entering the victim's residence, except in the presence of a law enforcement officer to retrieve personal effects, and prohibited Defendant from "possessing, owning or receiving a firearm" during the effective time of the order.
The chief of security in the victim's neighborhood, Russell James (Chief James), testified that the guards used "pass on information" forms to stay informed about events occurring in the neighborhood. He testified that the records were kept in the ordinary course of business, and that he and the other guards relied on the accuracy of the forms to keep the neighborhood safe. Over Defendant's objection, Chief James read the following entry from a pass on information form: "[The victim's] husban[d] has been threat[en]ing her. [I]f anyone calls him in, call the person back to be sure he is not trying to call [him]self in[.] Per Russell." Chief James also testified that when he spoke with the victim sometime between 21 September 2004 and 25 September 2004, she told him she was going out of town the following week.
Further facts will be set out in the opinion as needed.
At the close of the State's evidence, Defendant moved to dismiss each of the charges against him. The trial court denied Defendant's motions. Defendant did not present any evidence attrial and renewed his motions to dismiss at the close of all the evidence.
During the charge conference, Defendant requested that the trial court instruct the jury on manslaughter. The trial court denied Defendant's request. The verdict sheet submitted to the jury regarding the first-degree murder charge permitted the jury to find Defendant guilty of first-degree murder, second-degree murder, or not guilty.
During the jury's deliberations, the jury requested to know the penalty for second-degree murder. The trial court informed the jury that its job was to determine guilt or innocence in accordance with the instructions given, and that punishment was the province of the trial court.
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