Converted WP file 061023-1

Appeal by Defendant from judgment entered 10 November 2005 by Judge Steve A. Balog in Edgecombe County Superior Court. Heard in the Court of Appeals 10 April 2007.

Attorney General Roy Cooper, by Assistant Attorney General Marc X. Sneed, for the State.

Thomas R. Sallenger for Defendant.

    STEPHENS, Judge.

    Christine Hana Jackson Stevenson (“Christine”) married Willie Curtis Stevenson, Jr. (“Willie”) on 26 May 2000. The couple had three children. In 2002, the couple separated and that same year, Christine began a relationship with Defendant, who was fifteen years old at the time. Christine and Defendant also had a child. Because of Christine's relationship with both Defendant and Willie, the two men had a strained association and had argued on several occasions.
    At his trial for the murder of Willie, Defendant testified that on the night of 13 November 2004, he went to Christine's apartment to talk with her about a fight they had earlier in the day. When Defendant arrived at the apartment, Willie was there. An argument between the two men ensued and Willie “pushed his finger in” Defendant's face. Willie then turned suddenly to walk away and Defendant, fearing that Willie was coming after him, pulled out his gun and shot Willie twice. Willie died the next day.
    On 3 January 2005, Defendant was indicted for first-degree murder. He was tried by a jury between 7 and 10 November 2005 before the Honorable Steve A. Balog. At the close of all the evidence, the jury returned a verdict finding Defendant guilty of second-degree murder. Upon this conviction, Judge Balog sentenced Defendant to a minimum term of 144 months and a maximum term of 182 months in prison. On 23 November 2005, Defendant filed notice of appeal to this Court. For the reasons which follow, we hold Defendant received a fair trial, free of prejudicial error.

    By his first assignment of error, Defendant contends the trial court erred in allowing Christine to testify to statements that Willie made to her and attributed to Defendant. Defendant argues that these statements constitute inadmissible hearsay and do not fall within any hearsay exception. We disagree.
    “'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). Generally, hearsay evidence is inadmissible at trial. State v. Wilson, 322 N.C. 117, 367 S.E.2d 589 (1988). However, the North Carolina Evidence Code containsseveral exceptions by which statements determined to be hearsay are nonetheless admissible. See, e.g., N.C. Gen. Stat. § 8C-1, Rule 803(1) (2005) (allowing a statement regarding a present sense impression). Pursuant to Rule 805 of the North Carolina Evidence Code, “[h]earsay included within hearsay is not excluded under the hearsay rule if each part of the combined statements conforms with an exception to the hearsay rule provided in these rules.” N.C. Gen. Stat. § 8C-1, Rule 805 (2005). However, “[t]he Rule 805 exclusion requirement does not apply when the second layer of statements are not hearsay.” State v. Hurst, 127 N.C. App. 54, 62, 487 S.E.2d 846, 852, appeal dismissed and disc. review denied, 347 N.C. 406, 494 S.E.2d 427 (1997), cert. denied, 523 U.S. 1031, 140 L. Ed. 2d 486 (1998).
    During the trial, Christine testified that on 13 November 2004 Willie and their young son, who was four years old at the time of the trial, walked to a local convenience store. Upon returning, Willie told Christine that while at the store, he saw Defendant and Defendant stated to him, “[Y]ou're lucky you got your son with you or I'd kill you right now.” Defendant contends that Christine's testimony constitutes inadmissible hearsay and that, because neither the statement he allegedly made to Willie or Willie's statement to Christine fit within an exception to the hearsay rule, the trial court erred in allowing the testimony.
    First, we examine the statement that Defendant allegedly made to Willie, “[Y]ou're lucky you got your son with you or I'd kill you right now.” This statement was not offered for its truth;rather, it was offered to show that Defendant had the intent to kill Willie. This element is necessary to support the charge of first-degree murder, the crime for which Defendant was indicted. See N.C. Gen. Stat. § 14-17 (2003) (establishing the elements of first-degree murder). In State v. Jones, 358 N.C. 330, 595 S.E.2d 124, cert. denied, 543 U.S. 1023, 160 L. Ed. 2d 500 (2004), our Supreme Court held that the trial court's decision to admit in evidence an audiotape containing heated discussions between the defendant and his victims was not error because the statements on the tape were not hearsay. In so holding, the Court determined that the statements were not offered for their truth; rather, they were offered, in part, to show that the defendant had the intent to harm the victims. Id. Here, the trial court's decision to admit Defendant's statement as non-hearsay is clear by the instruction that Judge Balog gave to the jury. Specifically, Judge Balog instructed:
            Evidence has been received that may tend to show that the defendant told Willie Stevenson at Sammy's Store if you did not have your son with you, I would kill you []now.
            This evidence was received solely for the purpose of showing that the defendant had the intent which is a necessary element of the crime charged in this case . . . . If you believe this evidence, you may consider it but only for the limited purpose for which it was received.

Since this evidence was not offered for its truth, it is not hearsay and the trial court did not err by admitting it in evidence.     Even assuming arguendo that this statement was admitted for its truth, and thus, was hearsay, we hold that it was admissible as a then existing mental or emotional condition as allowed under Rule 803(3). Rule 803(3) provides that “[a] statement of the declarant's then existing state of mind . . . [or] emotion . . . (such as intent, plan, motive, [or] design[)]” is not excluded by the hearsay rule. N.C. Gen. Stat. § 8C-1, Rule 803(3) (2005). Evidence regarding a declarant's state of mind is admissible when it is relevant to the case. State v. Weeks, 322 N.C. 152, 367 S.E.2d 895 (1988). In State v. Sneed, 327 N.C. 266, 271, 393 S.E.2d 531, 534 (1990), our Supreme Court held that a declarant's statement that he intended to rob a local service station “was admissible as evidence of [a] then-existing intent to engage in a future act.” Similarly, Defendant's statement to Willie that he would kill him if Willie's son was not present is evidence of Defendant's intent to later harm Willie and is relevant because Defendant was tried on a charge of first-degree murder, a crime which may require premeditation and deliberation. See N.C. Gen. Stat. § 14-17. Under Rule 803(3) and Sneed, Defendant's statement to Willie was admissible as Defendant's then existing state of mind to show intent, plan, or design.   (See footnote 1)     Next, we examine the statement that Willie made to Christine to determine if it falls within a hearsay exception. We hold that Willie's statement to Christine falls within the present sense impression exception to the hearsay rule and was admissible.
    Rule 803(1) of the North Carolina Evidence Code provides that a statement a declarant makes that is determined to be a present sense impression is not excluded by the hearsay rule. A present sense impression is “[a] statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter.” N.C. Gen. Stat. § 8C-1, Rule 803(1). “[T]here is no per se rule indicating what time interval is too long under Rule 803(1) . . . .  [A]dmissibility of statements under hearsay exceptions depends upon the facts of the particular case.” State v. Cummings, 326 N.C. 298, 314, 389 S.E.2d 66, 75 (1990) (quotation marks and citation omitted). “The underlying theory of the present sense exception to the hearsay rule is that closeness in time between the event and the declarant's statement reduces the likelihood of deliberate or conscious misrepresentation.” State v. Reid, 322 N.C. 309, 315, 367 S.E.2d 672, 675 (1988) (citation omitted). In Cummings, our Supreme Court held that a statement was admissible as a present sense impression when the “statement was made in close proximity to the event[,]” the only delay being “the length of time it took to drive from Willow Springs to . . . Raleigh.” Cummings, 326 N.C. at 314, 389 S.E.2d at 75.     Similarly, in this case, Willie described his encounter with Defendant to Christine soon after meeting Defendant at the convenience store. The only delay between when Willie perceived the event and when he described it to Christine was the “length of time it took to [walk] from [the convenience store] to . . . [Christine's apartment].” See id. Because of the short time involved, Willie's statement to Christine plainly constitutes a description of the event of his encountering Defendant in the convenience store immediately after that encounter, and, thus, Willie's statement was admissible as a present sense impression. Id. Furthermore, although Willie's statement to Christine included a statement he attributed to Defendant, because Defendant's statement was independently admissible, Willie's entire statement was properly admitted. Accordingly, Defendant's challenge to the admissibility of this evidence is overruled.

    By his second assignment of error, Defendant contends the trial court erred in admitting in evidence statements that Defendant made to Sergeant Jay Fortenberry of the Rocky Mount Police Department. On 14 November 2004, Defendant spoke by telephone to Sergeant Fortenberry and asked, “Am I going to go to jail for a long time?” Defendant also told the officer that he had stolen his grandfather's pistol. On 17 November 2004, Defendant surrendered to the police and, after being advised of his Miranda rights, told Sergeant Fortenberry the location of the murder weapon.    On 2 November 2005, the State filed a motion in limine by which it requested a ruling from the trial court on the admissibility of Defendant's statements to Sergeant Fortenberry. Following a hearing, Judge Balog determined that the statements Defendant made on 14 November 2004 were admissible. Judge Balog initially withheld his ruling on the 17 November 2004 statement, but after hearing testimony on voir dire from Sergeant Fortenberry, Judge Balog admitted the statement at trial. Defendant contends that the statements were erroneously admitted because he was not given Miranda warnings before being questioned by Sergeant Fortenberry on 14 November 2004. We are not persuaded.
    “The Fifth Amendment of the United States Constitution prohibits compelling any person in a criminal case to incriminate himself or herself.” State v. Ortez, 178 N.C. App. 236, 244, 631 S.E.2d 188, 195 (2006) (citing U.S. Const. amend. V). To protect this right, the United States Supreme Court has held that before being subjected to questioning, a person must be advised of the right to remain silent, the right to the presence of an attorney, and the right to a court-appointed attorney, if necessary. Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, reh'g denied, 385 U.S. 890, 17 L. Ed. 2d 121 (1966). “It is well established that Miranda warnings are required only when a [criminal] defendant is subjected to custodial interrogation.” State v. Patterson, 146 N.C. App. 113, 121, 552 S.E.2d 246, 253 (citation omitted), disc. review denied, 354 N.C. 578, 559 S.E.2d 549 (2001). “By custodial interrogation, we mean questioning initiated by law enforcementofficers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” State v. Phipps, 331 N.C. 427, 441, 418 S.E.2d 178, 185 (1992) (quoting Miranda, 384 U.S. at 444, 16 L. Ed. 2d at 706). To determine whether the suspect was in custody, the reviewing court must use an “objective test of whether a reasonable person in the suspect's position would believe that he had been taken into custody or otherwise deprived of his freedom of action in any significant way or, to the contrary, would believe that he was free to go at will.” State v. Davis, 305 N.C. 400, 410, 290 S.E.2d 574, 581 (1982) (citing United States v. Mendenhall, 446 U.S. 544, 64 L. Ed. 2d 497, reh'g denied, 448 U.S. 908, 65 L. Ed. 2d 1138 (1980)).
    Here, when Defendant made the statements on 14 November 2004, he was talking to Sergeant Fortenberry on his cellular phone while traveling in a car. Defendant presented no evidence to the trial court, and thus there is none to consider on appeal, that there were any police officers within close physical proximity to Defendant or that Defendant's freedom of action was affected at all, much less in a significant way. Indeed, the uncontradicted evidence establishes the contrary: Defendant was traveling alone and was free to continue traveling wherever he wished to go. He plainly was not in custody when he talked on the telephone to Sergeant Fortenberry. Thus, Miranda warnings were not required. Accordingly, Defendant's argument regarding his statements on 14 November 2004 is overruled.    Defendant next argues that although he was properly given Miranda warnings before he made his 17 November 2004 statement regarding the location of the murder weapon, “[Defendant's] willingness to make a statement of that import at that time was due to the previous telephone discussion he had with the officer wherein he acknowledged in that telephone call the existence of a gun.” Specifically, Defendant argues that because the 14 November 2004 statements resulted from a violation of Defendant's Fifth Amendment rights, and because he would not have made the 17 November 2004 statement but for the previous unconstitutional interrogation, the 17 November statement was necessarily inadmissible at trial. We do not agree. Since we have held that Sergeant Fortenberry's questioning of Defendant on 14 November comported with constitutional requirements, statements that Defendant later voluntarily made are not the product of an unconstitutional interrogation even if, as Defendant argues, they were allegedly influenced by his 14 November statements. This argument is without merit and is overruled.

    By his final assignment of error, Defendant contends the trial court committed prejudicial error in its instructions to the jury. Specifically, Defendant challenges the following instruction:
            Evidence has been received that may tend to show that the defendant pointed a handgun at the face of Christine Stevenson.
            This evidence was received solely for the purpose of showing that the defendant had a motive for the commission of the crime charged in this case.             If you believe this evidence you may consider it, but only for the limited purpose for which it was received.
    In challenging this instruction on appeal, Defendant must show that the instruction constituted error and that the error was prejudicial to Defendant's case. “Prejudicial error is defined as a question of whether 'there is a reasonable possibility that, had the error in question not been committed, a different result would have been reached at the trial out of which the appeal arises.'” State v. Lanier, 165 N.C. App. 337, 354, 598 S.E.2d 596, 607 (quoting N.C. Gen. Stat. § 15A-1443(a)), disc. review denied, 359 N.C. 195, 608 S.E.2d 59 (2004). In criminal cases, the burden is on the defendant to show the error occurred and to demonstrate the prejudice suffered. State v. Milby, 302 N.C. 137, 273 S.E.2d 716 (1981). Here, even if the trial court's instruction to the jury constituted error, Defendant has failed to adequately demonstrate prejudice.
    In his brief to this Court, Defendant asserts that “[i]n a case so hotly contested with so much at stake . . . the [t]rial [c]ourt's erroneous instruction to the jury . . . constitutes a substantial prejudice to this Defendant” because he “was convicted of the charge of homicide against him.” We are not persuaded. In light of Defendant's testimony that as Willie “turned his back . . . I pulled a gun and I shot him[,]” we conclude that this allegedly erroneous jury instruction could have had little, if any, impact on Defendant's conviction of second-degree murder. Furthermore, Defendant's bare assertion that his conviction isevidence of prejudice is not persuasive. Because we perceive no prejudicial error in the trial court's instruction, this assignment of error is overruled. See State v. Sanders, 171 N.C. App. 46, 54, 613 S.E.2d 708, 713 (finding no prejudicial error from an erroneous jury instruction when “the evidence before the jury, including [the] [d]efendant's own signed statement and testimony under oath, made clear that” the defendant committed the crime with which he was charged), aff'd per curiam, 360 N.C. 170, 622 S.E.2d 492 (2005).
    For the reasons stated, we hold Defendant received a fair trial, free of prejudicial error.
    NO PREJUDICIAL ERROR.
    Judges McGEE and ELMORE concur.
    Report per Rule 30(e).

Footnote: 1