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All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
NORTH CAROLINA COURT OF APPEALS
Filed: 6 November 2007
STATE OF NORTH CAROLINA
No. 03 CRS 49331
ROBERT J. PETRICK
Appeal by defendant from judgment entered 29 November 2005 by
Judge Orlando F. Hudson, Jr., in Durham County Superior Court.
Heard in the Court of Appeals 10 October 2007.
Attorney General Roy Cooper, by Assistant Attorney General
John G. Barnwell and Assistant Attorney General Daniel P.
O'Brien, for the State.
Mark Montgomery, for defendant-appellant.
Robert J. Petrick (defendant) appeals from judgment entered
after a jury found him to be guilty of first-degree murder pursuant
N.C. Gen. Stat. § 14-17. We find no error.
On 22 January 2003, defendant reported his wife, Janine
Sutphen (the victim), to be missing after she failed to return
home from a practice with the North Carolina Symphony. Officers
found the victim's car parked in a parking deck located across the
street from where the North Carolina Symphony had practiced. No
signs of a struggle were apparent inside or around the victim's
Four months later, on 29 May 2003, the victim's body floatedto the surface of Falls Lake wrapped in a sleeping bag and a tarp
and sealed with duct tape. Chains were wrapped around the victim's
legs and her body was identified from dental records.
Defendant was arrested on 30 May 2003. Mark Edwards, Esq.
(Attorney Edwards) was appointed to represent defendant.
Defendant was indicted for the victim's murder on 2 June 2003. On
20 September 2004, defendant was also indicted as attaining
habitual felon status based upon three prior felony convictions in
the State of Illinois. On 14 June 2005, defendant moved to dismiss
Attorney Edwards and for the appointment of new counsel. The trial
court allowed defendant to proceed pro se and ordered Attorney
Edwards to remain available as standby counsel.
On 11 October 2005, defendant waived his right to all
assistance of counsel and stated he desired to represent himself
and appear on his own behalf for trial. Defendant's non-capital
trial began on 31 October 2005. On 29 November 2005, a jury
returned a verdict finding defendant to be guilty of first-degree
murder. The trial court sentenced defendant to life imprisonment
without parole. Defendant appeals.
Defendant argues the trial court erred by: (1) allowing him
to represent himself; (2) admitting evidence concerning certain
behaviors of a cadaver dog; (3) admitting statements concerning his
attacks on the victim and his and the victim's financial problems;
and (4) admitting his prior crimes, wrongs, or acts into evidence.
Defendant also argues that a breakdown occurred in the adversarialprocess and he is entitled to a new trial.
III. Waiver of Counsel
Defendant argues the trial court erred by allowing him to
represent himself pro se at his trial and contends the trial court
should have presented him with three options: (1) proceed with
appointed counsel; (2) represent himself pro se; or (3) continue
with appointed counsel, who was to defer to defendant's wishes when
he and counsel conflicted on trial strategy. We disagree.
A defendant may be permitted at his election
to proceed in the trial of his case without
the assistance of counsel only after the trial
judge makes thorough inquiry and is satisfied
that the defendant:
(1) Has been clearly advised of his right
to the assistance of counsel, including
his right to the assignment of counsel
when he is so entitled;
(2) Understands and appreciates the
consequences of this decision; and
(3) Comprehends the nature of the charges
and proceedings and the range of
N.C. Gen. Stat. § 15A-1242 (2005). This statutory inquiry is
required in every case where a defendant elects to represent
himself without the assistance of counsel. State v. White, 78 N.C.
App. 741, 746, 338 S.E.2d 614, 617 (1986).
In State v. Hoover, this Court held the trial court did not
err in allowing the defendant to waive his right to counsel and
permitting defendant to represent himself where the record showed
the trial court fully complied with the requirements and
stipulations of N.C. Gen. Stat. § 15A-1242 before defendant wasallowed to waive his right to counsel. 174 N.C. App. 596, 600, 621
S.E.2d 303, 306 (2005), cert. denied, 360 N.C. 488, 632 S.E.2d 766,
appeal dismissed, 360 N.C. 540, 634 S.E.2d 543 (2006).
Defendant filed a written motion to dismiss Attorney Edwards
as his appointed counsel and stated his relationship with Edwards
had degenerate[d] past repair to a degree prejudicial to the
conduct of the case for the defense. At the hearing on the
motion, defendant stated, I would prefer to attempt to represent
myself pro se at this point, Your Honor. I understand the caution
and that's the route I choose to go. The trial judge expressed
hesitation, but allowed defendant to proceed pro se and ordered
Attorney Edwards to remain as standby counsel. Defendant signed a
waiver of right to counsel.
The trial court stated after defendant signed the waiver that
it found defendant understood the nature of the charges,
proceedings, and range of permissible punishments. Defendant
reminded the trial judge to be sure that the trial court was
satisfied that he had such understanding. The trial court again
reviewed the charges and possible punishments with defendant.
On 11 October 2005, the trial court again apprised defendant
of his rights to court-appointed counsel, self-representation, or
hired counsel. The trial court detailed each sentence and
punishment defendant could receive and received assurances from him
that he understood all possible scenarios. Defendant signed
another waiver of his right to counsel.
On two separate occasions prior to defendant's jury trialbeginning on 31 October 2005, defendant waived his right to
counsel. The trial court in both instances engaged in and applied
the appropriate statutory inquiry and safeguards to defendant's
election to proceed pro se. Id. This assignment of error is
IV. Cadaver Dog Evidence
Defendant argues the trial court erred by allowing a cadaver
dog handler to testify concerning the significance of various
behaviors displayed by the dog. We dismiss this assignment of
A. Standard of Review
If alleged error is properly preserved at trial, we review
evidentiary rulings for an abuse of discretion. State v. Boston,
165 N.C. App. 214, 218, 598 S.E.2d 163, 166 (2004). A trial court
may be reversed for an abuse of discretion only upon a showing that
its ruling was so arbitrary that it could not have been the result
of a reasoned decision. State v. Wilson, 313 N.C. 516, 538, 330
S.E.2d 450, 465 (1985) (citing White v. White, 312 N.C. 770, 324
S.E.2d 829 (1985)).
In criminal cases, a question which was not
preserved by objection noted at trial and
which is not deemed preserved by rule or law
without any such action, nevertheless may be
made the basis of an assignment of error where
the judicial action questioned is specifically
and distinctly contended to amount to plain
N.C.R. App. P. 10(c)(4) (2007). Plain error review applies only to
challenges of jury instructions and to evidentiary matters. State
v. Wiley, 355 N.C. 592, 615, 565 S.E.2d 22, 39-40 (2002), cert.denied, 537 U.S. 1117, 154 L. Ed. 2d 795 (2003); State v. Cummings,
352 N.C. 600, 613, 536 S.E.2d 36, 47 (2000), cert. denied, 532 U.S.
997, 149 L. Ed. 2d 641 (2001). Under plain error analysis, the
appellate court must be convinced that absent the error the jury
probably would have reached a different verdict. State v.
Hartman, 90 N.C. App. 379, 383, 368 S.E.2d 396, 399 (1988) (citing
State v. Walker, 316 N.C. 33, 39, 340 S.E.2d 80, 83 (1986)).
Defendant objected to the introduction of evidence from the
cadaver dog by pretrial motion, but failed to preserve the issue by
renewing his objection when the evidence was presented at trial.
Defendant, in his brief and at oral argument, failed to
specifically and distinctly contend the admission of this
evidence amount[ed] to plain error. N.C.R. App. P. 10(c)(4).
This assignment of error is dismissed due to defendant's failure to
properly preserve and present it or to request and argue for plain
error review. State v. Washington, 134 N.C. App. 479, 485, 518
S.E.2d 14, 17 (1999).
Defendant argues the trial court erred in allowing witnesses
to testify to statements the victim allegedly made to them. We
'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) (2005). Hearsay is not admissibleexcept as provided by statute or by these rules. N.C. Gen. Stat.
§ 8C-1, Rule 802 (2005).
The following are not excluded by the hearsay
rule, even though the declarant is available
as a witness:
(1) Present Sense Impression. - A statement
describing or explaining an event or
condition made while the declarant was
perceiving the event or condition, or
. . . .
(3) Then Existing Mental, Emotional, or
Physical Condition. - A statement of the
declarant's then existing state of mind,
emotion, sensation, or physical condition
. . . .
N.C. Gen. Stat. § 8C-1, Rule 803 (2005).
A. Testimony of Margaret Lewis
Defendant failed to object to the testimony of Margaret Lewis
(Lewis) at trial. Defendant argues the admission of her
testimony constitutes plain error.
Lewis testified the victim called her at work crying and
very upset and stated that something very alarming and scary
had just happened. After describing the victim's initial mental
state, Lewis testified that the victim explained to her and
defendant's financial situation and stated defendant choked her
after she had confronted him about their finances. The victim told
Lewis the choking incident really scared her.
Lewis's testimony consisted of statement[s], other than
one[s] made by the declarant while testifying at  trial . . .
offered in evidence to prove the truth of the matter asserted. N.C. Gen. Stat. § 8C-1, Rule 801(c). Lewis's hearsay testimony is
not excluded by the hearsay rule because the victim's statements
were her present sense impression of the choking incident. N.C.
Gen. Stat. § 8C-1, Rule 803(1) (2005). There is no rigid rule
about how long is too long to be 'immediately thereafter.' State
v. Clark, 128 N.C. App. 722, 725, 496 S.E.2d 604, 606 (1998).
B. Testimony of Donna Putler, Eleanor Hennessey, Cheri Booth,
and Ya-Mel Mandeville
Defendant objected to the testimony of Donna Putler
(Putler), Eleanor Hennessey (Hennessey), Cheri Booth (Booth),
and Ya-Mel Mandeville (Mandeville) at trial. We review the
admission of each of these witnesses' testimony for an abuse of
Putler testified that she had a conversation with the victim
concerning polyamorous relationships. Statements concerning the
victim's belief that polyamorous relationships are just an excuse
[for sex] are not hearsay. These statements were not offered to
prove the truth of the matter asserted. The relevance of Putler's
testimony tended to show defendant's motive and outweighs its
danger of unfair prejudice. N.C. Gen. Stat. § 8C-1, Rule 403
(2005; N.C. Gen. Stat. § 8C-1, Rule 404(b) (2005).
Putler also stated the victim had told her she was deeply
concerned about defendant's and her financial situation.
Hennessey testified the victim was very distraught after
confronting defendant about their financial situation. Hennessey
testified the victim called her at work and stated she was afraidthat she was going to lose her house and car. The victim told
Hennessey she felt very foolish about the situation. Booth
testified that the victim was very concerned about not having
enough money to buy groceries.
Hennessey and Mandeville both testified the victim expressed
her fears to them toward defendant after incidents of domestic
violence had occurred. Hennessey stated the victim was scared
and confused after an incident in which defendant tackled her and
tried to crush her with his body. Mandeville testified the victim
related an incident where defendant had used a taser on her. Two
days after this incident, the victim remained shocked,
frightened, and embarrassed by what defendant had done to her.
Evidence tending to show the state of mind of the victim is
admissible as long as the declarant's state of mind is relevant to
the case. State v. Meekins, 326 N.C. 689, 695, 392 S.E.2d 346,
349 (1990) (citing State v. Cummings, 326 N.C. 298, 389 S.E.2d 66
(1990)). Here, evidence of the victim's state of mind is relevant
and bears directly on the victim's relationship with defendant
before she was killed and his motive, intent, plan, or absence of
mistake or accident in the victim's death. N.C. Gen. Stat. § 8C-1,
Rule 404(b); see State v. Westbrooks, 345 N.C. 43, 59, 478 S.E.2d
483, 492 (1996) (The trial court properly admitted statements the
victim made about his financial and marital problems, as they
indicated the victim's mental condition at the time they were made
and were not merely a recitation of facts.)
The trial court neither erred nor abused its discretion byallowing the witnesses to testify to the victim's statements
concerning her and defendant's financial situation and defendant's
alleged acts of domestic violence against the victim. N.C. Gen.
Stat. § 8C-1, Rule 404(b). This assignment of error is overruled.
VI. Admission of Defendant's Prior Crimes, Wrongs, or Acts
Defendant argues that the trial court abused its discretion
when it overruled his objections to testimony of his prior acts of
dishonesty and bad character. Defendant also argues the trial
court committed plain error in failing to strike such testimony ex
mero motu. We disagree.
N.C. Gen. Stat. § 8C-1, Rule 404(b) (2005) states:
Evidence of other crimes, wrongs, or acts is
not admissible to prove the character of a
person in order to show that he acted in
conformity therewith. It may, however, be
admissible for other purposes, such as proof
of motive, opportunity, intent, preparation,
plan, knowledge, identity, or absence of
mistake, entrapment or accident.
Here, the State introduced evidence of defendant's financial
dealings with other people, depletion of the victim's bank
accounts, violent acts toward the victim, and his adulterous
relationships. This evidence tended to show defendant's motive,
intent, preparation, plan, absence of mistake, and knowledge. N.C.
Gen. Stat. § 8C-1, Rule 404(b). The relevancy of this evidence
outweighs its danger of unfair prejudice. N.C. Gen. Stat. § 8C-1,
Rule 403. The trial court properly admitted this evidence. This
assignment of error is overruled.
VII. Breakdown of Adversarial Process
Defendant argues that several rulings made by the trial courtsabotaged the adversarial process to the extent that the result of
the trial is presumptively unreliable. We disagree.
A. Standard of Review
Matters relating to the actual conduct of a
criminal trial are left largely to the sound
discretion of the trial judge so long as
defendant's rights are scrupulously afforded
him. . . . [S]uch discretion is not unlimited
and, when abused, is subject to review. To
establish that a trial court's exercise of
discretion is reversible error, a defendant
must show harmful prejudice as well as clear
abuse of discretion. A trial court's actions
constitute abuse of discretion upon a showing
that [the] actions are manifestly unsupported
by reason and so arbitrary that [they] could
not have been the result of a reasoned
State v. Williams, 361 N.C. 78, 80-81, 637 S.E.2d 523, 525 (2006)
(internal quotations and citations omitted).
Defendant argues the trial court erred by: (1) denying his
motion to be held in the county jail during trial; (2) denying his
motions for sanctions against the State for failing to timely
provide discovery; (3) denying his motion for prior notice of the
order in which the State intended to present its witnesses; (4)
requiring him to provide the State with information on the searches
he intended to perform on certain computers; and (5) ruling that
evidence favorable to him was not necessarily exculpatory.
In the body of his argument, defendant cites United States v.
Cronic, 466 U.S. 648, 80 L. Ed. 2d 657 (1984), and State v.
Colbert, 311 N.C. 283, 316 S.E.2d 79 (1984), for the proposition
that the trial court's rulings sabotaged the adversarial processto the extent that the result of the trial is presumptively
unreliable. Both cases cited by defendant deal with claims of
ineffective assistance of counsel.
[A] defendant who elects to represent himself cannot
thereafter complain that the quality of his own defense amounted to
a denial of 'effective assistance of counsel.' Faretta v.
California, 422 U.S. 806, 835, n. 46, 45 L. Ed. 2d 562, 581 (1975).
Defendant has failed to show harmful prejudice [to himself] as
well as clear abuse of discretion by the trial court. Williams,
361 N.C. at 81, 637 S.E.2d at 525. This assignment of error is
The trial court did not err in allowing defendant to proceed
with Attorney Edwards as standby counsel after it fully
complied with N.C. Gen. Stat. § 15A-1242. Defendant failed to
properly preserve and argue the admission of the cadaver dog
handler's testimony concerning the dog's behaviors and failed to
assert plain error. The trial court neither erred nor abused its
discretion by allowing the witnesses to testify about statements
the victim had made to them.
Evidence of defendant's prior acts or wrongs was properly
admitted to show proof of motive, intent, preparation, plan,
absence of mistake, and knowledge by defendant. N.C. Gen. Stat. §
8C-1, Rule 404(b). Defendant failed to show several rulings by the
trial court resulted in harmful prejudice as well as clear abuse
of discretion. Williams
, 361 N.C. at 81, 637 S.E.2d at 525. Defendant received a fair trial, free from the prejudicial errors
he preserved, assigned, and argued. Defendant failed to show that,
but for any plain errors, the jury probably would have reached a
different verdict. Hartman
, 90 N.C. App. at 383, 368 S.E.2d at
399. We find no error in the verdict or the judgment entered
Judges MCGEE and ELMORE concur.
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