Opinion
No. COA03-67
Filed 18 November 2003 This case not for publication
Appeal by defendant from judgment entered 10 May 2002 by Judge Wiley F. Bowen in Johnston County Superior Court. Heard in the Court of Appeals 27 October 2003.
Attorney General Roy Cooper, by Special Deputy Attorney General Francis W. Crawley, for the State. Appellate Defender Staples S. Hughes, by Assistant Appellate Defender Charlesena Elliott Walker, for defendant-appellant.
Johnston County No. 01 CRS 51376.
On 12 March 2001, the Johnston County grand jury indicted defendant on a charge of first-degree murder. A jury subsequently found defendant to be guilty of first-degree murder, and the trial court imposed a life sentence on 10 May 2002. From the trial court's judgment, defendant appeals.
At trial, the State introduced evidence tending to show the following: Deputy Sheriff Dwight Braswell received a radio call at 3:12 a.m. on 10 February 2001 of a possible self-inflicted shooting at defendant's residence. Upon his arrival approximately ten minutes later, he found defendant in the kitchen talking to the 9-1-1 dispatcher on the telephone. Defendant pointed to the master bedroom, and Deputy Braswell saw defendant's husband, James Philip Rupel (victim), lying on his back in the bed. The victim was bleeding from a head wound and was still breathing. Deputy Braswell called for rescue personnel, and the victim was ultimately transported to UNC Hospitals in Chapel Hill. After the victim was declared brain dead, a pathologist conducted an autopsy on 11 February 2001.
The pathologist's report indicated the victim died from a single gunshot wound to his left forehead. He estimated the shot was fired from a medium to large caliber weapon from a distance of eighteen inches to three feet away. From stippling on the victim's left hand, the pathologist opined that the victim's hand was in the path of the bullet when the gun was fired. He found no evidence that the victim had used either hand to fire the weapon.
Ron Mazur, a crime scene technician, testified that it would have been "nearly impossible, if not impossible," for a right — handed person to fire the shot which passed through the victim and the bed's headboard. Mazur stated that Detective Benji Gaddis had told him that he was "pretty sure" the victim was right-handed. Defendant objected and moved to strike the testimony, but the trial court overruled defendant's general objection. The court sustained defendant's objection when Mazur again referred to what Gaddis told him about the victim as being right-handed in his next response. Defendant did not object when Mazur then testified that "if this individual was right-handed . . . it would be nearly impossible"for him to have shot himself.
Special Agent Greg Tart of the State Bureau of Investigation testified that he and Detective Gaddis began interviewing defendant at 9:07 a.m. on 12 February 2001. Defendant initially stated the victim had been slipping back into depression in the preceding week. She awakened on the night in question to find the victim in their bed with a gun in his right hand. Two shots were fired while defendant struggled to take the gun from defendant's hand. Upon seeing that the victim had been shot in the head, defendant ran to the kitchen and called 9-1-1. She also saw what appeared to be a suicide note on the kitchen table. Defendant stated the victim had not done anything in the preceding weeks to suggest to her that he was suicidal.
After a fifteen-minute break, the officers resumed questioning defendant at 10:25 a.m. They confronted defendant with apparent inconsistencies between her account and the medical examiner's report of the victim's body and injuries. In addition, they revealed their knowledge of her alleged ongoing affair with one of her co-workers and the discovery of three "suicide notes" at her workplace approximately two weeks prior to the victim's death. They pointed out the similarities in the contents and handwriting of those notes to the suicide note found on the floor of the master bedroom. She claimed that two of those notes had been written by her husband and that she had written the third note in an attempt to understand the victim. Defendant could not explain why she had previously stated that the victim had given no indication in the previous weeks that he was suicidal.
The officers took another fifteen-minute break, then resumed questioning defendant at 11:45 a.m. Defendant then admitted the victim was upset on the night in question because she had not ended her affair on the preceding evening as he had requested. Later that night, she awakened to see the victim with the gun in his hand. She thought he was going to shoot her, and they struggled over the gun in bed. After the first shot, defendant grabbed the gun and got out of bed. The victim, who was on his back in the bed, said "Go ahead. If you don't do it, I will." Defendant then shot the victim from three or four feet away and went to the kitchen to call 9-1-1. She said the victim was not coming at her or attempting to get the gun when she shot him, and she admitted trying to make the shooting appear to be a suicide.
In her first argument, defendant contends the trial court erred by admitting hearsay testimony from Mazur regarding a statement made by Detective Gaddis "that he was pretty sure that [the victim] was right handed." She argues the testimony was non — corroborative hearsay and was prejudicial to her. We disagree as to the prejudicial nature of the statement.
"`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) (2001). Because Mazur's testimony of Detective Gaddis' statement tended to prove the truth of the matter asserted, whether the victim shot himself, the statement was hearsay. "However, the erroneous admission of hearsay is not always so prejudicial as to require a new trial." State v. Hickey, 317 N.C. 457, 473, 346 S.E.2d 646, 657 (1986). A defendant "must still show that there was a reasonable possibility that a different result would have been reached at trial if the error had not been committed." Id.
No such showing has been made here, nor do we perceive any likelihood that a different verdict would have resulted had the improper testimony not been heard by the jury. Although defendant asserts the issue of whether the victim was right-handed was critical to the State's case, substantial evidence to the contrary belies that assertion. During an interview with Special Agent Tart and Detective Gaddis, defendant admitted to shooting the victim from three or four feet away while he was in bed and not coming at her or attempting to get the gun. The pathologist's report had indicated the victim was shot from a distance of eighteen inches to three feet away and that the victim's left hand was in the bullet's path when the gun was fired. We overrule this assignment of error.
Defendant next argues the short-form murder indictment used to charge her was insufficient to allege first-degree murder. She raises the issue in order to preserve it for possible future proceedings in state or federal court, but concedes this Court and our Supreme Court have consistently held that the short-form indictment satisfies the state and federal constitution. See State v. Braxton, 352 N.C. 158, 174, 531 S.E.2d 428, 437 (2000), cert. denied, 531 U.S. 1130, 148 L.Ed.2d 797 (2001). As such, we are bound to overrule this assignment of error.
Defendant failed to set out her four remaining assignments of error in her brief. Because she has neither cited any authority nor stated any reason or argument in support of those assignments of error, they are deemed abandoned. N.C.R. App. P. 28(b)(6) (2001).
No error.
Judges MCGEE and GEER concur.
Report per Rule 30(e).