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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NORTH CAROLINA COURT OF APPEALS
Filed: 15 May 2007
STATE OF NORTH CAROLINA
No. 04 CRS 052797
WILLIAM BRENT HAWKINS
Appeal by defendant from judgment entered 17 June 2005 by
Judge Ronald L. Stephens in Alamance County Superior Court. Heard
in the Court of Appeals 28 March 2007.
Attorney General Roy Cooper, by Special Deputy Attorney
General W. Dale Talbert, for the State.
D. Tucker Charns, for defendant-appellant.
William Brent Hawkins (defendant) appeals from judgment
entered after a jury found him to be guilty of second degree
murder. We find no error.
A. State's Evidence
In September 2003, defendant and his mother, Bettie Lynn
Hawkins (the victim), lived together. On 13 September 2003,
defendant drank alcohol at home. Around dusk, the victim arrived
home. The victim told defendant that her mother, defendant's
grandmother, was not moving out of a nursing home to live with
them. The victim and defendant began to argue. Defendant hit the victim with his hand and she fell down.
Defendant straddled the victim, placed his hands around her throat
and repeatedly slammed her head on the floor, while shouting
That's your Mama. That's your Mama. I could kill you tonight.
The victim reached for the telephone, but defendant moved it away
from her. Defendant grabbed the victim's hair and dragged her into
another room. Defendant showed the victim a gun and said, Go on
tell him to get him over here. I'll put a bullet in him tonight.
I'll kill him tonight. The assault lasted about 45 minutes.
The victim left her house around 8:00 p.m. and drove to and
arrived at her daughter and son-in-law's home. The victim exited
her car and stated, Oh, I think he's done broke my arm. The
victim told her daughter, son-in-law, granddaughter, grandson, and
the grandson's girlfriend (the witnesses) details about the
The victim's daughter and son-in-law took her to the Alamance
Regional Medical Center emergency room. The victim told emergency
room staff that her son had assaulted her. The hospital obtained
CT scans of the victim's head and x-rayed her arm. She was
diagnosed with contusions and a fractured wrist. The victim was
released with pain medication.
After the assault, the victim resided with her daughter and
son-in-law. On 26 September 2003, the victim lost consciousness.
The victim was admitted to the University of North Carolina
Hospital. A CT Scan was performed and showed a large subdural
hematoma on the right side of the victim's head with twocomponents, one chronic and the other acute. Dr. Ann Ritter (Dr.
Ritter) performed a craniotomy on the victim. Dr. Ritter drilled
two burr holes to relieve the pressure and to drain the
hemorrhaging. Dr. Ritter testified that a chronic component could
be more than two to three weeks old and an acute component could be
anywhere from just happening to a week or two old. Dr. Ritter
testified it was not atypical for the 14 September 2003 CT scan not
to show evidence of internal bleeding, because only a small amount
of blood may have been inside the victim's skull at that time.
The victim awoke after the craniotomy. Her condition
worsened. She became comatose and another CT scan indicated she
had re-accumulation of acute bleeding. The victim remained
comatose for forty-five days. The victim's family removed her life
support and she died.
At trial, Mecklenburg County Medical Examiner Dr. Thomas Owens
(Dr. Owens) testified as an expert in forensic pathology. Dr.
Owens testified the victim died from having the head bleed that
that [sic] was due to some blunt force trauma and that the trauma
was related to an assault that had occurred around two weeks prior
to the victim coming to the University of North Carolina Hospital.
Dr. Owens also opined, the trauma suffered on [13 September 2003]
resulted in hemorrhage that is the underlying cause. It's the
beginning of all the events, the complications that came after that
or what finally caused her death. Dr. Ritter, the victim's
surgeon, agreed with Dr. Owen's opinion of the cause of the
victim's death. On 29 March 2004, a grand jury indicted defendant for first-
degree murder of the victim. On 6 June 2005, defendant's case
proceeded to trial. At the close of the State's evidence and on
motion by the defense, the trial court reduced defendant's charge
from first-degree to second degree murder.
B. Defendant's Evidence
Defendant presented the victim's 14 September 2003 CT scan as
evidence. Alamance Regional Medical Center radiologist Dr. Hector
Cooper (Dr. Cooper) testified he reviewed the CT scan. The CT
scan showed evidence of bleeding only on the outside of the
victim's skull. The CT scan neither showed a subdural hematoma nor
an accumulation of blood inside of the skull. Dr. Cooper testified
it was possible for a slow leak to develop from the assault.
Wake Forest University School of Medicine Associate Professor
of Pathology and Forensic Pathologist Dr. Patrick Lantz (Dr.
Lantz) testified he saw no evidence of a subdural hematoma on the
14 September 2003 CT scan images. He did see evidence of blood
below the surface of the skin, which reflected the presence of
contusions or bruising.
Dr. Lantz also testified about the victim's prior medical
history. Her medical history included headaches, nausea and
vomiting, seizures and convulsions, and mental illness or dementia.
On 17 June 2005, a jury found defendant to be guilty of second
degree murder. The trial court sentenced defendant to a minimum
201 months and a maximum 251 months. Defendant appeals.
Defendant argues the trial court erred when it: (1) overruled
his objections to the admission of witnesses' testimony of what the
victim had told them about the assault and (2) denied his motion to
dismiss the charge of second degree murder at the close of all the
III. The Victim's Testimony
Defendant argues the victim's statements to five witnesses
were testimonial and were admitted in a violation of his Sixth
Amendment right of confrontation pursuant to Crawford v.
Washington, 541 U.S. 36, 158 L. Ed. 2d 177 (2004). We disagree.
A. Confrontation Clause
1. Standard of Review
A violation of the defendant's rights under the Constitution
of the United States is prejudicial unless the appellate court
finds that it was harmless beyond a reasonable doubt. The burden
is upon the State to demonstrate, beyond a reasonable doubt, that
the error was harmless. N.C. Gen. Stat. § 15A-1443(b) (2005).
The Confrontation Clause of the Sixth Amendment guarantees
[i]n all criminal prosecutions, the accused shall enjoy the right
. . . to be confronted with the witnesses against him. U.S.
Const. amend. VI. The Sixth Amendment applies to the states
through the Fourteenth Amendment. Pointer v. Texas, 380 U.S. 400,
403, 13 L. Ed. 2d 923, 926 (1965). The North Carolina Constitution
also provides, In all criminal prosecutions, every person chargedwith [a] crime has the right to . . . confront the accusers and
witnesses with other testimony. N.C. Const. art. I, § 23.
In Crawford v. Washington, the United States Supreme Court
held the Sixth Amendment's Confrontation Clause bars admission of
testimonial statements of a witness who did not appear at trial
unless he was unavailable to testify, and the defendant had had a
prior opportunity for cross-examination. 541 U.S. at 59, 158 L.
Ed. 2d 197. It is the testimonial character of the statement that
separates it from other hearsay that, while subject to traditional
limitations upon hearsay evidence, is not subject to the
Confrontation Clause. Davis v. Washington, ___ U.S. ___, ___, 165
L. Ed. 2d 224, 237 (2006). Statements are testimonial when the
circumstances objectively indicate that there is no . . . ongoing
emergency, and that the primary purpose of the interrogation is to
establish or prove past events potentially relevant to criminal
prosecution. Id. at ___, 165 L. Ed. 2d at 237.
The Court in Davis set out and addressed four factors to
determine whether statements made to a 911 operator were
testimonial: (1) whether the declarant was speaking about events
as they were actually happening; (2) any reasonable listener
would recognize that [the declarant] was facing an ongoing
emergency; (3) the elicited statements were necessary to be able
to resolve the present emergency; and (4) the level of
formality. Id. at __, 165 L. Ed. 2d at 237.
If the statement is non-testimonial in nature, the
Confrontation Clause is not implicated. Crawford, 541 U.S. at 51,158 L. Ed. 2d at 192. Non-testimonial statements are governed by
the standard rules for admissibility under our rules of evidence.
Id. at 68, 158 L. Ed. 2d at 203.
Immediately after the assault, the victim drove to her
daughter and son-in-law's home. She told her daughter, son-in-law,
granddaughter, grandson, and her grandson's girlfriend about the
assault. All five persons testified to what the victim had told
The victim did not make these statements in anticipation of
prosecution. They were made to family members immediately after
the assault. Her statements were made to explain why she was
visibly injured and crying. The victim did not request any of
these witnesses to contact the police or a magistrate. The
statements were made neither during an interrogation nor in a
formal interview. The victim's statements were non-testimonial.
The trial court did not violate defendant's Confrontation Clause
Rights by allowing these witnesses to testify to what the victim
had told them.
B. Rule 804(b)(5) Testimony
1. Standard of Review
The standard of review for this Court assessing evidentiary
rulings is abuse of discretion. 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. Hagans, ___ N.C. App. ___, ___, 628 S.E.2d
776, 781 (2006) (quotations and citations omitted).
Defendant also argues the trial court erred in admitting the
victim's statements under N.C. Gen. Stat. § 8C-1, Rule 804(b)(5)
(2005), which states:
(b) Hearsay exceptions. -- The following are
not excluded by the hearsay rule if the
declarant is unavailable as a witness:
(5) Other Exceptions. -- A statement not
specifically covered by any of the foregoing
exceptions but having equivalent
circumstantial guarantees of trustworthiness,
if the court determines that (A) the statement
is offered as evidence of a material fact; (B)
the statement is more probative on the point
for which it is offered than any other
evidence which the proponent can procure
through reasonable efforts; and (C) the
general purposes of these rules and the
interests of justice will best be served by
admission of the statement into evidence.
However, a statement may not be admitted under
this exception unless the proponent of it
gives written notice stating his intention to
offer the statement and the particulars of it,
including the name and address of the
declarant, to the adverse party sufficiently
in advance of offering the statement to
provide the adverse party with a fair
opportunity to prepare to meet the statement.
Hearsay not subject to any of the specific exemptions or
exceptions provided in the Rules of Evidence nevertheless can be
admitted pursuant to Rule 804(b)(5) provided that seven conditions
are satisfied. State v. Triplett, 316 N.C. 1, 8, 340 S.E.2d 736,
740 (1986). The first such condition is unavailability. Before
admitting hearsay evidence pursuant to Rule 804(b)(5), the trial
court first must find that the declarant is unavailable. State v.Peterson, 337 N.C. 384, 391, 446 S.E.2d 43, 48 (1994). As our
Supreme Court explained:
[t]he degree of detail required in the finding
of unavailability will depend on the
circumstances of the particular case. For
example, in the present case, the declarant is
dead. The trial judge's determination of
unavailability in such cases must be supported
by a finding that the declarant is dead, which
finding in turn must be supported by evidence
Triplett, 316 N.C. at 8, 340 S.E.2d at 740. In short, evidence
establishing the declarant is deceased supports the court's finding
of unavailability. State v. Hurst, 127 N.C. App. 54, 59, 487
S.E.2d 846, 851, disc. rev. denied, 347 N.C. 406, 494 S.E.2d 427
Before hearsay testimony can be admitted under Subdivision
(b)(5) of this Rule, the trial judge must first find that the
declarant is unavailable, and then engage in a six-part inquiry:
(1) Has proper notice been given? (2) Is the hearsay not
specifically covered elsewhere? (3) Is the statement trustworthy?
(4) Is the statement material? (5) Is the statement more probative
on the issue than any other evidence which the proponent can
procure through reasonable efforts? (6) Will the interests of
justice be best served by admission? Triplett, 316 N.C. at 8, 340
S.E.2d at 740. Defendant's sole argument on appeal addresses the
trustworthy factor of the Triplett test. On appeal, [r]eview is
limited to questions so presented in the several briefs. N.C.R.
App. P. 28(a) (2007). Defendant failed to argue any other factorof the Triplett test. Our review is limited to whether the
admitted statements were trustworthy.
In determining whether a hearsay statement
possesses 'equivalent circumstantial
guarantees of trustworthiness,' the trial
court should consider, inter alia: (1) The
declarant's relationship with both the
defendant and the government; (2) the
declarant's motivation; (3) the extent of the
declarant's personal knowledge; (4) whether
the declarant ever recanted the statement; and
(5) the practical availability of the
declarant at trial for cross-examination.
State v. McLaughlin, 316 N.C. 175, 179, 340 S.E.2d 102, 105 (1986),
aff'd in part and rev'd in part, 321 N.C. 267, 362 S.E.2d 280
(1987). This list is not exhaustive and other factors may be
considered when appropriate. Id.
The trial court conducted a voir dire to determine whether to
admit the victim's statements to her daughter's family. The trial
court entered the following findings of fact and conclusions of
[T]he Court does find that, that the
statements made are, are [sic] bound to be
exceptions under Rule 804(b)(5). That they're
not specifically covered by any other of the
rules that would allow exceptions under Rule
804, that is, that they're not covered by
(b)(1), (b)(2), (b)(3), or (b)(4), and do fall
under the residuary provisions of (b)(5).
That this information is hearsay, does have,
Court finds does have [sic] guarantees of
trustworthiness. That the statements are
offered as evidence of material fact in the
case. The statements are more probative on
their point for which they're being offered
than any other evidence which the State can
produce through reasonable efforts, and that
the general purposes of the Rules of Evidence
and the rule applying to Rule 804 and the
interest of justice would best be served byadmission of this information, this statement
into evidence. Court further finds that the
declarant in this case, Bettie Hawkins, is
deceased and unavailable as defined in North
Carolina General Statute Section 804(a)(4).
That the State, further finds that the State
of North Carolina [sic] has provided written,
oral as well as written notice of the State's
intentions to offer the declarant statements
sufficiently in advance of offering them at
this time to the defendant through counsel to
provide a fair opportunity for the defendant's
counsel to prepare to meet the allegations in
That the hearsay statements are not
specifically covered under the other
exceptions to the hearsay rule. That these
hearsay statements of the victim, Bettie
Hawkins, possess substantial guarantees of
trustworthiness. That those guarantees
include the fact that they were made to family
members close to the victim shortly after the
alleged offense, and that it would be natural
for someone in her position to make such
statements to people close to her and her
family, specifically here to her daughter in
explanation as to what has happened to her in
seeking assistance and in seeking medical
attention and help.
At the time of the making of the statements,
that the, Bettie Hawkins appeared to
understand what she was saying. That the
wounds that were observed by the witness here,
Ms. Cobb, were consistent with the wounds and
activities described in Bettie Hawkins'
statement. That her physical and mental
appearance appeared to the witness, Ms. Cobb,
as consistent with the actions of someone who
had been injured in such a fashion.
Based on these findings, the Court does find
that the statements are an exception to the
hearsay rule and admissible and are more
probative than prejudicial.
The trial court properly addressed each element of the Triplett
test and entered appropriate findings of fact. The trial court entered findings of fact to support its
conclusion that the statements were trustworthy: (1) the
statements were made to family members; (2) the statements were
made shortly after the alleged offense; (3) it would be natural
for someone in [the victim]'s position to make such statements to
people close to her and her family; (4) the victim appeared to
understand what she was saying; (5) the wounds observed by the
witness were consistent with the victim's statements; and (6) the
victim's physical and mental appearance was consistent with the
actions of someone who had been injured in such a fashion.
Defendant failed to show the trial court abused its discretion when
the witnesses were allowed to testify to what the victim told them
about the assault.
To the extent the defendant contends the trial court erred by
failing to analyze the Triplett factors with respect to the other
witnesses' testimony, we hold any error was harmless beyond a
reasonable doubt because: (1) all witnesses testified about the
same 13 September 2003 assault; (2) all witnesses testified about
the victim's same or similar statements on 13 September 2003; and
(3) the hearsay exception analysis would be identical with respect
to each witness. Defendant has failed to satisfy his burden to
show prejudice. N.C. Gen. Stat. § 15A-1443(a). Defendant has
failed to show that there is a reasonable probability that a
different result would have been reached at trial had the error not
occurred. Id. This assignment of error is overruled.
IV. Motion to Dismiss
Defendant argues the trial court erred when it denied his
motion to dismiss the charge of second degree murder at the close
of all the evidence. We disagree.
A. Standard of Review
Upon defendant's motion for dismissal, the
question for the Court is whether there is
substantial evidence (1) of each essential
element of the offense charged, or of a lesser
offense included therein, and (2) of
defendant's being the perpetrator of such
offense. If so, the motion is properly
. . . .
Evidence is substantial if it is relevant and
adequate to convince a reasonable mind to
accept a conclusion. If substantial evidence,
whether direct, circumstantial, or both,
supports a finding that the offense charged
has been committed and that the defendant
committed it, the motion to dismiss should be
denied and the case goes to the jury. But, if
the evidence is sufficient only to raise a
suspicion or conjecture as to either the
commission of the offense or the identity of
the defendant as the perpetrator of it, the
motion should be allowed.
. . . .
In considering a motion to dismiss, the trial
court must analyze the evidence in the light
most favorable to the State and give the State
the benefit of every reasonable inference from
the evidence. The trial court must also
resolve any contradictions in the evidence in
the State's favor. The trial court does not
weigh the evidence, consider evidence
unfavorable to the State, or determine any
witness's credibility. It is concerned only
with the sufficiency of the evidence to carry
the case to the jury. Ultimately, the court
must decide whether a reasonable inference of
defendant's guilt may be drawn from the
State v. Ellis, 168 N.C. App. 651, 656-57, 608 S.E.2d 803, 807
(2005) (quotations and citations omitted).
Second degree murder 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); N.C. Gen. Stat. § 14-17
(2005). While an intent to kill is not a necessary element of
murder in the second degree, that crime does not exist in the
absence of some intentional act sufficient to show malice and which
proximately causes death. State v. Snyder, 311 N.C. 391, 393, 317
S.E.2d 394, 395 (1984).
To warrant a conviction for homicide the State
must establish that the act of the accused was
a proximate cause of the death. Criminal
responsibility arises only if his act caused
or directly contributed to the death. The act
of the accused need not be the immediate cause
of the death. He is legally accountable if
the direct cause is a natural result of the
State v. Jones, 290 N.C. 292, 298, 225 S.E.2d 549, 552 (1976)
(quotations and citations omitted).
The State presented sufficient evidence tending to show each
element of second degree murder. Dr. Ritter and Dr. Owens
testified a bleeding hematoma, which resulted from defendant's
assault, caused the victim's death. Viewing the evidence in the
light most favorable to the State, the trial court did not err when
it denied defendant's motion to dismiss at the close of all the
evidence. This assignment of error is overruled.
The trial court did not violate defendant's Sixth Amendment
Confrontation Clause Rights when it allowed the witnesses to
testify to what the deceased victim had told them immediately
following the assault. The victim's statements to the witnesses
were non-testimonial. The trial court found and concluded the
statements were trustworthy and did not abuse its discretion when
it allowed the witnesses' statements into evidence.
The trial court did not err when it denied defendant's motion
to dismiss. Defendant received a fair trial, free from prejudicial
errors he preserved, assigned, and argued.
Judges HUNTER and JACKSON concur.
Report per Rule 30(e).
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