Copyright 1997 - N.C. Administrative Office of the Courts

Docketing Information on this case


STATE OF NORTH CAROLINA v. MAMIE DELOIS JEAN BISHOP

No. 32A93

(Filed 24 July 1997)

1.    Evidence and Witnesses § 876 (NCI4th)-- statements by murder victim -- state of mind exception to hearsay rule

    Statements by a murder victim to a banker and to her brother expressing her concern about defendant's handling of her real estate transactions and her intent to document defendant's debt to her, to seek repayment, and to confront defendant about her concern that defendant had stolen from her were properly admitted into evidence pursuant to the state of mind exception to the hearsay rule because those statements bore directly on the relationship between the victim and defendant at the time of the killing and were relevant to show a motive for the killing. N.C.G.S. § 8C-1, Rule 803(3).

     Am Jur 2d, Evidence §§ 658-707.

     Admissibility of statement under Rule 801(d)(2)(B) of Federal Rules of Evidence, providing that statement is not hearsay if party-opponent has manifested his adoption or belief in its truth. 48 ALR Fed. 721.

2.    Evidence and Witnesses § 876 (NCI4th)-- statements by victim -- improper admission under state of mind exception -- absence of prejudice

    Assuming arguendo that a murder victim's statement to her brother indicating that she had not been paid for horses that defendant had sold for her and her statement to her mother indicating that she had sent money to defendant to lift restrictions on property which defendant was selling for her were improperly admitted under the state of mind exception to the hearsay rule, defendant was not prejudiced by the admission of this testimony in light of other evidence that defendant's motive for the murder was the victim's insistence that defendant pay money defendant owed her, the accomplice's testimony that defendant planned, directed, and participated in the murder of the victim, and evidence that after the murder defendant took the lead in creating and refining an alibi for the accomplice and herself.

     Am Jur 2d, Evidence §§ 679-703.

     Admissibility of statement under Rule 801(d)(2)(B) of Federal Rules of Evidence, providing that statement is not hearsay if party-opponent has manifested his adoption or belief in its truth. 48 ALR Fed. 721.

3.    Evidence and Witnesses § 881 (NCI4th)-- promissory note -- not hearsay -relevancy to show motive

    A $40,750 promissory note signed by defendant and made payable to a murder victim was not admitted solely to show the truth of the matter asserted but was admitted to show that the victim sought repayment for money defendant owed her and was thus relevant to establish a motive for the killing.

      Am Jur 2d, Evidence §§ 301-323.

4.    Evidence and Witnesses § 881 (NCI4th)-- financial transactions -- writings in victim's possession -- admissibility to show motive

    A murder victim's check register books showing checks and wire transfers to defendant, a list made by the victim documenting checks, money orders, and wire transfers to defendant, handwritten calculations corresponding to amounts the victim believed defendant owed her, a spiral notebook containing various notes, and a writing by the victim placing a $40,753 value on cash advances and on land and horses sold by defendant were admissible for the non-hearsay purpose of showing that the victim had followed through on her stated intention to document defendant's debt to her and to establish a motive for the killing. Even if some or all of the victim's writings were inadmissible hearsay, defendant was not prejudiced by any error in admitting them in light of the overwhelming evidence that defendant planned, directed, and participated in the victim's killing.

     Am Jur 2d, Evidence § 359.

5.    Evidence and Witnesses § 179 (NCI4th)-- cash advances -- real estate dealings -defendant's tax returns -- admissibility to show motive

    Evidence of a murder victim's cash advances to defendant and the victim's real estate dealings with defendant shed light on their relationship at the time of the victim's death and, in conjunction with the victim's statements suggesting that the victim intended to confront defendant about defendant's debt to her and defendant's statement to her boyfriend that the victim actually confronted defendant, was relevant to show that defendant had a motive to kill the victim. Furthermore, evidence of defendant's tax returns tending to show that defendant did not earn enough money to lend the victim $30,000 was relevant to refute defendant's contention that money given to her by the victim was in repayment for loans made by defendant to the victim. The trial court did not abuse its discretion by declining to exclude this evidence under Rule 403 on the ground that any probative value was substantially outweighed by the danger of unfair prejudice.

     Am Jur 2d, Evidence §§ 558 et seq.

6.    Evidence and Witnesses § 179 (NCI4th)-- life insurance -- change of beneficiary -motive for killing

    Evidence that defendant sold a murder victim two life insurance policies and that both policies were amended to make defendant the primary beneficiary was relevant to show a motive for the killing. Assuming arguendo that the order of a superior court judge requiring the insurance company to pay $300,000 into court pending a determination of the parties' rights should not have been admitted, defendant cannot show that there is a reasonable possibility that, had the order not been admitted, a different outcome would have been reached at trial.

     Am Jur 2d, Evidence §§ 558 et seq.

     Sufficiency of evidence, for purposes of death penalty, to establish statutory aggravating circumstance that murder was committed for pecuniary gain, as consideration or in expectation of receiving something of monetary value, and the like--post- Gregg cases. 66 ALR4th 417, sec. 1.

7.    Evidence and Witnesses § 1259 (NCI4th)-- exercise of right to remain silent -testimony by SBI agent -- not plain error

    Assuming that an SBI agent's testimony that he did not interview defendant again because he was advised by her boyfriend that she had an attorney and that he should not attempt to interview her again constituted improper evidence of defendant's exercise of her right to remain silent, the admission of this testimony was not plain error since any damage to defendant's credibility caused by the SBI agent's statement was de minimis compared with defendant's own trial testimony in which she abandoned her alibi and asserted that she was an innocent bystander while her boyfriend, acting alone, killed the victim.

     Am Jur 2d, Criminal Law §§ 788 et seq.; Evidence §§ 748-753.

8.    Evidence and Witnesses § 2942 (NCI4th)-- prearrest -- impeachment of defendant -no denial of federal constitutional rights

    The use of defendant's prearrest silence to impeach defendant during cross-examination when the prosecutor inquired into defendant's failure to talk with law officers after her interview by an SBI agent a few days after a murder did not violate defendant's federal constitutional rights where defendant was not induced to remain silent prior to her arrest by any government assurances that her silence would not be used against her; defendant did not invoke or rely upon her right to remain silent; and defendant denied any involvement in the crime when she talked with the SBI agent. U. S. Const. amends. V and XIV.

     Am Jur 2d, Witnessess § 539.

9.    Evidence and Witnesses § 2942 (NCI4th)-- prearrest silence -- impeachment of defendant -- improper under N.C. Iaw -- no plain error

    Assuming arguendo that the prosecutor's questions on cross-examination of defendant inquiring into defendant's failure to talk with law officers after her interview by an SBI agent a few days after a murder constituted an improper use of her prearrest silence for impeachment pursuant to rules of evidence formulated by our jurisdiction, any error in the trial court's failure to limit the prosecutor's questions did not rise to the level of plain error where there was evidence tending to show that defendant made a false statement to the SBI agent, this statement was inconsistent with defendant's trial testimony and was highly damaging to her credibility, and questions about her subsequent failure to speak to law officers did not further damage her credibility.

     Am Jur 2d, Witnesses § 539.

10.    Evidence and Witnesses § 264 (NCI4th)-- character of victim -- improper testimony -not plain error

    Assuming that testimony by a murder victim's mother that the victim was "beautiful," "loving," "very gentle," and "her best friend" was improper character evidence, the admission of this testimony was not plain error where evidence by both the State and the defendant tended to characterize the victim in positive terms.

     Am Jur 2d, Evidence §§ 363 et seq.

     Admissibility, in prosecution for maintaining liquor nuisance, of evidence of general reputation of premises. 68 ALR2d 1300.

11.    Evidence and Witnesses § 1688 (NCI4th)-- photograph of murder victim while alive -adssible for illustrative purposes

    A photograph of a murder victim while she was alive was admissible to illustrate her mother's testimony which described the color of her daughter's hair and which was relevant to show that the victim did not fit the description of a woman seen on the day before the murder purchasing oil lamps found in the mother's house where the victim was killed.

     Am Jur 2d, Evidence § 1451.

12.    .     Evidence and Witnesses § 3019 (NCI4th)--prior convictions -- misleading testimony -- opening door -- details of crimes