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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.

NO. COA06-920


Filed: 15 May 2007


v .                         Alamance County
                            No. 04 CRS 052797

    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.

    TYSON, Judge.

    William Brent Hawkins (“defendant”) appeals from judgment entered after a jury found him to be guilty of second degree murder. We find no error.

I. Background
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 assault.
    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.
II. Issues
    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 evidence.
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).
2. Analysis
    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 them.
    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).
2. Analysis
    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.

(Emphasis supplied).
    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 of death.

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 (1997).
    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 law:
        [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 the statements.

        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 denied.

        . . . .

        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 circumstances.
State v. Ellis, 168 N.C. App. 651, 656-57, 608 S.E.2d 803, 807 (2005) (quotations and citations omitted).
B. Analysis
    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 criminal act.
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.
V. Conclusion
    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.
    No Error.
    Judges HUNTER and JACKSON concur.
    Report per Rule 30(e).

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