Appeal by defendant from judgment entered 7 June 2006 by Judge
C. Phillip Ginn in Rutherford County Superior Court. Heard in the
Court of Appeals 22 August 2007.
Attorney General Roy Cooper, by Assistant Attorney General
Steven F. Bryant, for the State.
Massengale & Ozer, by Marilyn G. Ozer, for defendant-
Defendant Michael Scott Kirby appeals from a conviction of
first degree murder. On appeal, defendant primarily argues that he
was denied effective assistance of counsel when his trial counsel
_ although having made a motion in limine _ failed to object to the
admissibility, under N.C. Gen. Stat. § 8-57 (2005), of testimony
from defendant's wife. We hold that this testimony did not involve
a confidential communication since it was made within the hearing
of a third person. Therefore, this testimony was admissible, and
defendant was not denied effective assistance of counsel.
The State's evidence tended to show the following facts. The
54-year-old victim, Bobby Dean Kirby, also known as "Buster," lived
with defendant and defendant's wife, Wendy Kirby, from mid-2004
until his death on 3 February 2005. Defendant and his wife had an
18-month-old child and also cared for defendant's 15-year-old
nephew, D.K. In February 2005, defendant and his wife also allowed
Cecil Henson to stay with them for a few weeks.
On 3 February 2005, Wendy drove defendant, Cecil, and Buster
in her van to pick up some of Cecil's clothes from his home.
Defendant sat in the front passenger seat, while Cecil and Buster
sat in the middle row behind Wendy and defendant. Each of the
three men was drinking alcohol and became increasingly intoxicated
as the night progressed. During the ride, defendant described an incident in which
Buster had taken advantage of a woman while she was sleeping.
Cecil became upset by this story, and Cecil and defendant both hit
Buster. Subsequently, defendant and Cecil continued to hit Buster
because he kept falling asleep and, as a result, was "wast[ing]
Sometime between 4:00 and 5:00 a.m., the group returned to
defendant's home. When the group arrived home, defendant's nephew,
who had been watching the baby, began getting ready for school. As
D.K. was leaving for school, defendant told him to "[t]ell Buster
bye, he won't be here when you get home from school this
Wendy took the baby into her bedroom, which was adjacent to
the living room, leaving defendant, Cecil, and Buster in the living
room. She heard defendant telling Buster to say his prayers and
then heard "gasping sounds" coming from the living room. Soon
after, defendant "flung" open the bedroom door and, standing just
inside the opened door, "yell[ed]" to Wendy, "Get up, I think I've
killed him." Wendy entered the living room and found Buster lying
dead on the floor. She told defendant that he should call the
police, but defendant refused, stating: "I can't, I've stabbed him.
I can't call the law. I've stabbed him in the leg."
At this point, defendant and Cecil agreed not to call the
police. Defendant threatened to harm Wendy if she called the
police and told Cecil to keep an eye on her. Defendant then
directed Wendy and Cecil to take Buster's body across the streetand bury it in the woods. Defendant went to distract a neighbor so
that they could drag the body across the street unnoticed. In
accordance with the plan, Wendy and Cecil grabbed shovels, took the
body across the street, and buried Buster's corpse. Defendant then
instructed everyone to burn their clothing. At a later date,
however, Cecil turned himself into the police and told law
enforcement that defendant had killed Buster. Wendy subsequently
admitted helping to bury the body.
On 14 February 2005, Dr. Amy Tharp conducted an autopsy of
Buster's body and noted that Buster had injuries consistent with
being struck by a blunt instrument, including a fist or a boot. He
had also sustained bleeding and swelling of the brain and a
fractured Adam's apple. In her opinion, the cause of death was due
to "a combination of blunt trauma to the head and the abdomen as
well as strangulation injuries to the neck."
On 28 March 2005, defendant was indicted for first degree
murder. Following a trial in the Rutherford County Superior Court,
a jury found defendant guilty of that charge. The trial court
imposed a sentence of life imprisonment without parole, and
defendant timely appealed to this Court. Defendant has also filed
a motion for appropriate relief in this Court, asserting a claim of
ineffective assistance of counsel.
 Defendant first argues that the trial court erred in
admitting Wendy's testimony regarding defendant's statement to her:
"Get up, I think I've killed him." Defendant contends that thistestimony should have been excluded under N.C. Gen. Stat. § 8-
57(c), which provides: "No husband or wife shall be compellable in
any event to disclose any confidential communication made by one to
the other during their marriage."
Defendant's trial counsel filed a motion in limine
exclude Wendy's testimony under the marital privilege. After
conducting a voir dire hearing, the trial court denied the motion.
At trial, defendant did not renew his objection during Wendy's
testimony regarding the challenged statement. Although the
affidavit of defendant's trial counsel, filed in support of the
motion for appropriate relief, indicates that counsel was relying
upon amended N.C.R. Evid. 103 when not renewing his objection,
(See footnote 1)
this Court held in State v. Tutt
, 171 N.C. App. 518, 521, 615
S.E.2d 688, 690-91 (2005), that the amendment to Rule 103
constituted a violation of the Separation of Powers Doctrine
because it conflicts with N.C.R. App. P. 10(b)(1). Our Supreme
Court has recently adopted the reasoning of Tutt
, with the result
that the rule continues to be "that a trial court's evidentiary
ruling on a pretrial motion is not
sufficient to preserve the issue
of admissibility for appeal unless a defendant renews the objection
during trial." State v. Oglesby,
361 N.C. 550, 554, 648 S.E.2d
819, 821 (2007). Defendant acknowledges that the issue was not properly
preserved and argues in his motion for appropriate relief that the
failure to renew the objection constituted ineffective assistance
of counsel. Alternatively, defendant asks this Court to invoke
Rule 2 of the Rules of Appellate Procedure to review this issue.
Defendant did not assign or argue plain error.
In order to prevail on an ineffective assistance of counsel
"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."
State v. Braswell
, 312 N.C. 553, 562, 324 S.E.2d 241, 248 (1985)
(emphasis omitted) (quoting Strickland v. Washington
, 466 U.S. 668,
687, 80 L. Ed. 2d 674, 693, 104 S. Ct. 2052, 2064 (1984)). Because
we conclude that the trial court properly admitted Wendy's
testimony, defendant cannot show that he was prejudiced by trial
counsel's error in failing to renew his objection.
As noted previously by this Court, "our Supreme Court has
interpreted section 8-57 to mean that a [sic] 'spouses shall be
incompetent to testify against one another in a criminal proceeding
only if the substance of the testimony concerns a
communication" between the marriage partners made during the
duration of their marriage.'" State v. Hammonds
, 141 N.C. App.152, 169-70, 541 S.E.2d 166, 179 (2000) (quoting State v. Freeman
302 N.C. 591, 596, 276 S.E.2d 450, 453 (1981)), appeal dismissed
and disc. review denied in part
, 353 N.C. 529, 549 S.E.2d 860,
aff'd in part
, 354 N.C. 353, 554 S.E.2d 645 (2001), cert. denied
536 U.S. 907, 153 L. Ed. 2d 184, 122 S. Ct. 2363 (2002). This rule
"allows marriage partners to speak freely to each other in
confidence without fear of being thereafter confronted with the
confession in litigation. However, by confining the spousal
disqualification to testimony involving 'confidential
communications' within the marriage, we prohibit the accused spouse
from employing the common law rule solely to inhibit the
administration of justice." Freeman
, 302 N.C. at 596, 276 S.E.2d
Because of the requirement of confidentiality, it is well
established that the marital privilege does not apply to
communications made within the known hearing of a third party.
, State v. Gladden
, 168 N.C. App. 548, 553, 608 S.E.2d 93,
96 ("[D]efendant was informed prior to making the phone call that
all calls made to outside parties were subject to recording and
monitoring. Under these circumstances, the conversation between
defendant and his wife was not confidential."), appeal dismissed
and disc. review denied
, 359 N.C. 638, 614 S.E.2d 312 (2005); State
, 156 N.C. App. 446, 457-58, 577 S.E.2d 640, 647 (2003)
("'The [marital] privilege is waived in criminal cases where the
conversation is overheard by a third person.'" (quoting State v.
, 45 N.C. App. 243, 249, 262 S.E.2d 850, 854, appealdismissed and disc. review denied
, 300 N.C. 200, 269 S.E.2d 626
(1980))), cert. denied
, 358 N.C. 547 (2004), cert. denied
, 543 U.S.
1058, 160 L. Ed. 2d 784, 125 S. Ct. 868 (2005); State v. Setzer
N.C. App. 98, 104, 256 S.E.2d 485, 489 (holding that "communication
here was not confidential, since it was made within the hearing of
a third party"), cert. denied
, 298 N.C. 571, 261 S.E.2d 127 (1979).
In this case, Wendy testified that she was in her bedroom with
the door closed. She described the circumstances of the
communication as follows: "And then [defendant] comes in, flings
the door open and yells at me, 'Get up, I think I've killed him.'"
She described her husband's tone of voice as "a loud one." She
testified that because defendant was "that loud," someone in the
living room could have heard defendant. She specified that "[h]e
yelled loud enough to where anyone in the house could have heard
him." It is undisputed that Cecil Henson was in the living room at
the time of the statement. Wendy confirmed that Cecil was in a
position to have heard the statement.
Although defendant states that "it is clear that [he] intended
to speak to his wife in confidence," we find this assertion
untenable in light of the evidence that defendant "yell[ed]" or
"hollered" the statement while standing in the bedroom's open
doorway right next to the living room. Defendant's volume in
conjunction with his undisputed knowledge that Cecil was within
easy hearing distance establishes a lack of confidentiality that
supports the trial court's determination that the communication was
not privileged. See State v. McMorrow
, 314 N.W.2d 287, 292 (N.D.1982) (holding that trial court properly concluded that marital
privilege did not apply when it determined that defendant "could
not have reasonably believed that the conversation between his wife
and himself would not be overheard by [the third party]" given that
statement was made in a voice that could be easily heard by third
party, and defendant had knowledge of third party's presence).
Defendant further argues, however, that only the third party
_ Cecil Henson _ and not the spouse could testify as to the
statement. Defendant's sole authority for this proposition are
cases decided in 1918 and 1929 _ decisions rendered at a time when
spouses were deemed incompetent to testify against each other in a
criminal proceeding. Freeman
, decided in 1981, modified the common
law rule so that "spouses shall be incompetent to testify against
one another in a criminal proceeding only if
the substance of the
testimony concerns a 'confidential communication' between the
marriage partners made during the duration of their marriage."
, 302 N.C. at 596, 276 S.E.2d at 453 (emphasis added).
specifically held that testimony by the spouse
regarding communications made in the presence of the spouse's
brother involved "no confidential communication which would render
[the testimony] incompetent under the rule established in this
at 598, 276 S.E.2d at 454-55. Based on Freeman
was competent to testify regarding defendant's statement since it
was not made confidentially. Compare State v. Holmes
, 330 N.C.
826, 835, 412 S.E.2d 660, 665 (1992) (holding that trial court
erred in allowing wife to testify as to defendant's intent to killvictim when evidence _ that defendant instructed two other men with
him to go outside the house because he wanted to talk to his wife
_ showed that defendant's statements, "made only in the presence of
his wife, were induced by the confidence of the martial
We, therefore, hold that the trial court did not err in
admitting Wendy's testimony regarding defendant's statement made in
the bedroom doorway. Because there was no error, any failure to
object by trial counsel did not prejudice defendant and, as a
result, he was not denied effective assistance of counsel. See
State v. Brewton
, 173 N.C. App. 323, 333, 618 S.E.2d 850, 858
("[B]ecause we find no error in the instructions, defendant's claim
for ineffective assistance of counsel [based on counsel's failure
to object to the instructions] must also be rejected."), disc.
, 360 N.C. 177 (2005), cert. denied
, ___ N.C. ___, 636
S.E.2d 812 (2006).
 Defendant next argues that the trial court erred in
denying his motion to dismiss because the State presented
insufficient evidence to support a finding that defendant had the
specific intent to kill. In ruling on a defendant's motion to
dismiss, the trial court must determine whether the State presented
substantial evidence (1) of each essential element of the offense
and (2) of the defendant's being the perpetrator. State v.
, 355 N.C. 320, 336, 561 S.E.2d 245, 255, cert. denied
U.S. 1006, 154 L. Ed. 2d 404, 123 S. Ct. 488 (2002). "Substantialevidence is such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion." State v. Brown
N.C. 563, 566, 313 S.E.2d 585, 587 (1984). When deciding a motion
to dismiss, the trial court must view all of the evidence presented
"in the light most favorable to the State, giving the State the
benefit of every reasonable inference and resolving any
contradictions in its favor." State v. Rose
, 339 N.C. 172, 192,
451 S.E.2d 211, 223 (1994), cert. denied
, 515 U.S. 1135, 132 L. Ed.
2d 818, 115 S. Ct. 2565 (1995).
Our Supreme Court has observed that "[s]pecific intent to kill
is an essential element of first degree murder, but it is also a
necessary constituent of the elements of premeditation and
deliberation." State v. Jones
, 303 N.C. 500, 505, 279 S.E.2d 835,
838 (1981). As a result, proof of premeditation and deliberation
is also proof of intent to kill. State v. Chapman
, 359 N.C. 328,
374, 611 S.E.2d 794, 827 (2005). Premeditation and deliberation
ordinarily must be proven by circumstantial evidence:
Among other circumstances from which
premeditation and deliberation may be inferred
are (1) lack of provocation on the part of the
deceased, (2) the conduct and statements of
the defendant before and after the killing,
(3) threats and declarations of the defendant
before and during the occurrence giving rise
to the death of the deceased, (4) ill-will or
previous difficulties between the parties, (5)
the dealing of lethal blows after the deceased
has been felled and rendered helpless, (6)
evidence that the killing was done in a brutal
manner, and (7) the nature and number of the
State v. Keel
, 337 N.C. 469, 489, 447 S.E.2d 748, 759 (1994)
(internal quotation marks omitted), cert. denied
, 513 U.S. 1198,
131 L. Ed. 2d 147, 115 S. Ct. 1270 (1995).
In this case, the State offered evidence relating to most of
these circumstances. Wendy testified to a history of defendant's
beating Buster. On the morning Buster was killed, defendant,
without provocation, again began hitting Buster while they were
driving in the van. When they returned home, defendant told his
nephew to tell Buster good-bye because Buster would not be there
when the nephew returned from school. Before the nephew left for
school, he witnessed defendant again hitting and kicking Buster.
Wendy then heard defendant tell Buster to "say [his] prayers,"
which was immediately followed by gasping noises. According to the
medical examiner, Buster's cause of death was a combination of
strangulation injuries to the neck, as well as blunt trauma to the
head and abdomen. After the killing, defendant orchestrated a
scheme to conceal Buster's body and evidence related to his
When this evidence is viewed in the light most favorable to
the State, it is sufficient to allow a jury to conclude that
defendant had the specific intent to kill the victim. See State v.
, 162 N.C. App. 231, 240, 590 S.E.2d 324, 331 (sufficient
evidence of premeditation and deliberation existed when State
presented evidence of prior fighting and conflict between defendant
and victim; prior to victim's death, defendant threatened to kill
the victim; and following the killing, defendant engaged in an"elaborate process of concealing the body"), disc. review denied
358 N.C. 237, 595 S.E.2d 439 (2004). The trial court, therefore,
properly denied defendant's motion to dismiss.
 Finally, defendant argues that the prosecutor made two
sets of improper statements in his closing argument. Because
defendant did not object, the standard of review is whether the
argument was "so grossly improper that the trial court erred in
failing to intervene ex mero motu
." State v. Barden
, 356 N.C. 316,
358, 572 S.E.2d 108, 135 (2002), cert. denied
, 538 U.S. 1040, 155
L. Ed. 2d 1074, 123 S. Ct. 2087 (2003). The question this Court
must answer is whether the State's argument "strayed far enough
from the parameters of propriety that the trial court, in order to
protect the rights of the parties and the sanctity of the
proceedings, should have intervened on its own accord . . . ."
State v. Jones
, 355 N.C. 117, 133, 558 S.E.2d 97, 107 (2002).
Defendant first challenges the following assertion by the
Remember, Cecil is not on trial here. Cecil
may have a trial. It's not today and it's not
with you as the jury. His trial is down the
road somewhere. So don't go back there and
say we have to do this because of Cecil. No.
Cecil's trial is for another day. Cecil needs
to be held just as responsible as the
In contending that the prosecutor's argument was improper because
he knew that Cecil would not be held just as accountable as
defendant, defendant points to the indictment of Cecil Henson for
accessory after the fact to murder. Although the record on appeal contains a copy of Cecil
Henson's indictment dated 28 March 2005, our review of the record
does not indicate that the indictment was ever provided to the
court. Inclusion of the indictment in the record on appeal,
therefore, violated the Rules of Appellate Procedure. See
App. P. 9(a)(3) and 11(c). "The role of an appellate court is to
review the rulings of the lower court, not to consider new evidence
or matters that were not before the trial court." Citifinancial,
Inc. v. Messer
, 167 N.C. App. 742, 748, 606 S.E.2d 453, 457
(Steelman, J., concurring), appeal dismissed and disc. review
, 359 N.C. 410, 612 S.E.2d 317 (2005).
Nevertheless, immediately prior to Cecil Henson's being called
by defendant as a witness, the trial court asked whether the
charges against Henson were the same or different from those
against defendant. The prosecutor responded: "At this point
accessory after the fact of murder." (Emphasis added.) Based on
that pending charge, the prosecutor's statements in the closing
argument regarding Henson's going to trial were not inaccurate.
With respect to the assertion that "Cecil needs to be held just as
accountable as the defendant," the record contains no indication _
and defendant does not argue on appeal _ that the State was in any
way precluded from seeking an indictment against Henson for
additional charges. As the prosecutor's answer to the trial court
indicated, the charge of accessory after the fact was simply the
only charge pending at that point
. We do not, therefore, believethat the prosecutor's statement was so grossly improper as to
require the court to intervene ex mero motu
 Defendant also asserts that the trial court should have
intervened during the following portions of the State's closing
One thing to remember in all of this is
that the Defense is trying to make Cecil stand
out. And as I said Cecil's trial is another
day. It's not today. But they are trying to
make Cecil look like really the bad guy.
Well, you saw Cecil when he walked up here.
You saw Cecil when he was back at the back the
first day when he was asleep in the back. And
he is trying to say that Cecil is the ring
leader of this and Cecil is the real problem.
Cecil doesn't have the personality to be
the real problem in this. This defendant
does, not Cecil. Cecil is an old man. You
saw him walk up there. And he is the man that
they are trying to say is responsible for
this. No. The defendant is a young man. The
defendant could have stopped it at any point.
According to defendant, these statements amounted to the
prosecutor's personal opinion and were not based on evidence that
was properly admitted at trial. We disagree.
A prosecutor's closing argument must "(1) be devoid of
counsel's personal opinion; (2) avoid name-calling and/or
references to matters beyond the record; (3) be premised on logical
deductions, not on appeals to passion or prejudice; and (4) be
constructed from fair inferences drawn only from evidence properly
admitted at trial." Jones
, 355 N.C. at 135, 558 S.E.2d at 108.
Here, the prosecutor was not interjecting his personal opinion or
relying upon matters outside the evidence. The jurors had an opportunity to observe both Cecil Henson and
defendant. In the closing argument, the prosecutor simply asked
the jurors to take into account those observations regarding
physical characteristics and courtroom behavior in determining the
credibility of defendant's contention that Cecil Henson was the
ring leader. Observing the parties and the witnesses in order to
assess credibility and determine the weight to give to the evidence
is part of the jury's responsibility. See State v. Allen
, 360 N.C.
297, 307-08, 626 S.E.2d 271, 281 (holding that prosecutor could
properly argue that it "would be hard to imagine" third person
shooting the victim because of her size), cert. denied
, ___ U.S.
___, 166 L. Ed. 2d 116, 127 S. Ct. 164 (2006); State v. Brown
N.C. 179, 199, 358 S.E.2d 1, 15 ("Urging the jurors to observe
defendant's demeanor for themselves does not inject the
prosecutor's own opinions into his argument, but calls to the
jurors' attention the fact that evidence is not only what they hear
on the stand but what they witness in the courtroom."), cert.
, 484 U.S. 970, 98 L. Ed. 2d 406, 108 S. Ct. 467 (1987). We,
therefore, hold that the trial court did not err in failing to
intervene as to this portion of the State's closing argument.
Judges CALABRIA and JACKSON concur.