Opinion
No. COA10-780
Filed 17 May 2011 This case not for publication
Appeal by defendant from judgment entered 8 June 2009 by Judge Robert F. Floyd, Jr., in Robeson County Superior Court. Heard in the Court of Appeals 1 December 2010.
Attorney General Roy Cooper, by Assistant Attorney General K.D. Sturgis, for the State. William D. Spence for defendant.
Robeson County No. 07 CRS 53581.
William Damian Scott (defendant) was convicted of second degree murder and discharging a weapon into occupied property in the shooting death of Tiffany Marie Chavis (the victim). Defendant was sentenced to a term of 189 to 236 months' imprisonment. He now appeals.
Defendant and the victim began dating in December 2006. The victim lived in a trailer next to her parents on a dirt road near the dirt road on which defendant lived. Defendant's property consisted of a trailer and a wooden shed, surrounded by a six-foot-high fence. The victim's friend, Crystal Scott, lived across the street from defendant.
Robin Locklear, a friend of the victim's, testified that about a month before the shooting: defendant burst into the victim's home and, in Ms. Locklear's presence, shouted at the victim about her not answering his phone calls and "denying that he cheated on her." A few days later, the couple broke up.
In mid-May, the victim heard that defendant was at the beach with another woman; she and a few friends went to defendant's trailer, piled all of his clothes on the floor, and poured bleach over them. The women then took the clothes, selling some and giving others away. A day or two later, per Ms. Locklear's testimony, defendant called the victim and threatened her, warning her that "she had better not come back down his dirt road."
On his way home from the beach, defendant received a call notifying him about the destruction of his clothes. Defendant testified that, as he neared his trailer, he saw the victim's car coming up the road toward him. He exited his car, stopped her, and confronted her about the incident, and she denied taking part in it. Per his testimony, he then reached through her window and pulled her shirt back from around her neck to see whether she was wearing an expensive chain he had recently given her; when he did not see it, he reached in and took her pocketbook from the seat "to see if the necklace was in there." The two fought over the pocketbook for a few seconds, and then defendant relinquished it. The victim then drove to a motel in a different town and called her sister, Victoria Chavis, to bring her children to her. Ms. Chavis did so.
On 4 June 2007, Ms. Chavis was at Ms. Scott's house, where the two were swimming. In the early evening, the victim came to pick up Ms. Chavis from the house in her own car. As they were pulling away from the house, Ms. Chavis testified, she heard a gunshot and turned to see the rear windshield broken. The victim flinched and fell into Ms. Chavis's lap; she struggled to stop the car, then ran inside the trailer to call the police.
Defendant testified as follows: On the day of the shooting, he was in the doorway of the shed on his property and saw the victim's car backing out of Ms. Scott's driveway. He was holding the .40 Glock that belonged to his friend who lived in the shed; the trigger of the gun was defective in a way that made it fire more easily than it normally would. When he saw the victim's car, defendant decided to fire up in the air "to scare her[,]" but his friend told him not to fire the gun as they had recently seen children at a nearby party. Defendant agreed and, as he was lowering the hand holding the gun, the gun "just went off" and he dropped it. He then stuck the gun in his back pocket and ran for the woods. He turned himself in to authorities on 7 June 2007.
Defendant was convicted of second degree murder and discharging a weapon into occupied property. He now appeals.
I.
Defendant first argues that the trial court improperly allowed certain testimony by Ms. Locklear. Specifically, he argues that the testimony was inadmissible hearsay and, even if it were admissible, its prejudicial effect outweighed its probative value. 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[,]" and is generally inadmissible. N.C. Gen. Stat. § 8C-1, Rule 801(c), 802 (2009). "A statement of the declarant's then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health)" is admissible, however, pursuant to Rule 803(3). N.C. Gen. Stat. § 8C-1, Rule 803(3) (2009). Under this "state of mind" exception, "`[e]vidence tending to show a presently existing state of mind is admissible if the state of mind sought to be proved is relevant and the prejudicial effect of the evidence does not outweigh its probative value.'" State v. Miller, 344 N.C. 658, 675, 477 S.E.2d 915, 925 (1996) (quoting State v. Locklear, 320 N.C. 754, 760, 360 S.E.2d 682, 685 (1987)).
We review the trial court's admission of such evidence for abuse of discretion. State v. Bass, 190 N.C. App. 339, 347, 660 S.E.2d 123, 128 (2008); State v. Handy, 331 N.C. 515, 532, 419 S.E.2d 545, 554 (1992) ("Whether to exclude relevant but prejudicial evidence under Rule 403 is a matter left to the sound discretion of the trial court.") (citation omitted). "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." Bass, 190 N.C. App. at 347, 660 S.E.2d at 128 (quotations and citation omitted). It is not enough to simply show error; "[a] defendant must show that, but for the error, a different result would likely have been reached." State v. Gayton, 185 N.C. App. 122, 125, 648 S.E.2d 275, 278 (2007) (citation omitted).
Our Courts have repeatedly admitted such statements when they contradict a defendant's version of events or support the victim's version. See, e.g., State v. Faucette, 326 N.C. 676, 682-83, 392 S.E.2d 71, 74 (1990) (holding admissible testimony by the victim's son and sister the victim's statements that she did not want the defendant to come to her house and that he had made threats toward her to prove he entered her home without her consent); State v. Locklear, 320 N.C. 754, 760, 360 S.E.2d 682, 685 (1987) (holding admissible testimony by nurses that rape victim stated she wanted the defendant "kept away from her" and that he threatened to harm her if told anyone what happened to prove the intercourse happened by force and against her will); State v. Cummings, 326 N.C. 298, 321-13, 389 S.E.2d 66, 74 (1990) (holding admissible testimony by paralegal that the victim had stated she was afraid of the defendant and that he had threatened to kill her, concluding it was "highly relevant as it relate[d] directly to the status of her relationship with defendant prior to her disappearance").
The statement to which defendant objects was Ms. Locklear's testimony that, during the phone call between defendant and the victim that she witnessed, defendant told the victim "that she had destroyed everything, that she was going to pay for everything she had done[,] and that she had better not come back down his dirt road."
Immediately before making this statement, Ms. Locklear had been asked about the victim's "state of mind or her emotional state"; Ms. Locklear described her as "shaken[,]" "upset[,]" and "scared." The State asked whether the victim had explained why she was scared; defendant objected, and the trial court overruled the objection. Ms. Locklear then gave a brief summary of the conversation between herself and the victim about the call, culminating in the statement above.
Defendant admits to firing the shot that killed the victim. His sole defense was that his firing of the gun was accidental rather than intentional. The statements above were relevant to contradict that account by supplying evidence of the status of the parties' relationship prior to the shooting and the victim's state of mind. As such, the trial court properly admitted them pursuant to the state of mind exception.
In his argument that the statements were overly prejudicial, defendant argues only that the testimony "tended to improperly show an evil heart and wicked disposition and, therefore, could have been viewed by the jury as supplying the `malice' required for second degree murder." As noted above, however, defendant's sole argument to the jury was that he fired the gun accidentally; the testimony regarding his previous antagonistic interactions with the victim was highly relevant to the jury's consideration of that argument.
The trial court did not abuse its discretion in admitting this testimony, and defendant's argument is overruled.
II.
Defendant next argues that the trial court committed plain error in allowing Dr. John D. Butts to testify about the autopsy of the victim when the autopsy was performed and the autopsy report prepared by Dr. Thomas Clark, not Dr. Butts. We disagree.
Defendant's argument is based on the confrontation clause of the Sixth Amendment and our Supreme Court's holding in State v. Locklear, which stated that, "when the State seeks to introduce forensic analyses" B including autopsy reports B "`[a]bsent a showing that the analysts [are] unavailable to testify at trial and that petitioner had a prior opportunity to cross-examine them' such evidence is inadmissible under Crawford." 363 N.C. 438, 452, 681 S.E.2d 293, 305 (2009) (citation omitted; alterations in original). However, as defendant also notes, because defendant did not object to the testimony of Dr. Butts at trial, we review his argument for plain error, meaning that we will reverse only on a showing "(i) that a different result probably would have been reached but for the error or (ii) that the error was so fundamental as to result in a miscarriage of justice or denial of a fair trial." State v. Bishop, 346 N.C. 365, 385, 488 S.E.2d 769, 779 (1997) (citations omitted). This defendant cannot do.
Defendant argues that, had the trial court intervened ex mero motu and disallowed Dr. Butts's testimony, there would have been no evidence as to the cause and manner of the victim's death. Defendant's argument ignores the fact that his objection, at most, is that Dr. Butts testified to the contents of the report rather than Dr. Clark. That is, even had he made such an objection and had it been granted by the trial court, the result would not have been for the State to have presented no evidence whatsoever of the victim' death. Defendant himself testified to having fired the shot that caused the victim' death. Defendant also does not argue with the contents of the autopsy report itself — that the cause of death was a .40 caliber bullet wound to the victim' head.
As such, we hold that defendant has not carried his burden to prove that a different result would have been reached, and this argument is overruled.
III.
Defendant next argues that the trial court erred in denying his motion to dismiss the charge of second degree murder on the grounds of insufficient evidence. We disagree.
A motion to dismiss due to insufficiency of the evidence is properly denied if the State has presented substantial evidence of each essential element of the offense charged and that the defendant is the perpetrator. State v. Fritsch, 351 N.C. 373, 378, 526 S.E.2d 451, 455 (2000). "In reviewing the trial court's ruling, we must evaluate the evidence in the light most favorable to the State." State v. Myers, 181 N.C. App. 310, 313, 639 S.E.2d 1, 3 (2007) (citation omitted). If "the evidence supports a reasonable inference of defendant's guilt," the case was properly sent to the jury to resolve. Id.
The elements of second degree murder are "the (1) unlawful killing (2) of a human being (3) with malice, but without premeditation and deliberation." State v. Vassey, 154 N.C. App. 384, 390, 572 S.E.2d 248, 252 (2002). Defendant's argument concerns only the element of malice.
Specifically, defendant argues that his version of his actions leading up to the victim's death supports a conclusion that he did not act with malice, and points this Court to the case of State v. Foust, 258 N.C. 453, 128 S.E.2d 889 (1963). There, the defendant also testified that the firing of the gun was accidental, specifically that it "`went off" while he and the victim, his girlfriend, were "`playing or picking at one another'"; he also testified that he thought the gun was unloaded at the time. Id. at 455-56, 128 S.E.2d at 891. The evidence at trial showed that the defendant had made a number of threatening comments to the victim before the incident. Id. at 457, 128 S.E.2d at 892. On appeal, the Court reversed the defendant's conviction for second degree murder, stating:
The statements of defendant to the effect that if [the victim] went with anyone else, he would kill her, that if he couldn't have her, nobody else would, and his arguing with her about going with another boy, considered under the circumstances and in the setting when uttered, and in the light of all of the State's evidence, are, in our opinion, as a witness said, a "just sort of sweetheart talk" by this sixteen-year-old boy, and do not permit a legitimate inference that defendant killed [the victim] with express malice, or intentionally, or with implied malice.
Id. at 458, 128 S.E.2d at 893.
Defendant argues that this holding supports the conclusion that his actions, too, do not support a finding of malice. We disagree. Here, evidence was presented of an escalating series of events between the couple: the break-up, the threat in the victim's home, the victim's destruction of defendant's clothes, and defendant assaulting the victim for her purse and jewelry. In Faust, no evidence was presented of physical altercations between the couple, nor that their relationship had been deteriorating preceding the incident.
Considering the evidence in the light most favorable to the State, as we must, we cannot say here that no evidence was presented that "would permit the reasonable inference that the killing was done with malice, express or implied." Id. at 458, 128 S.E.2d at 893.
IV.
Defendant next argues that the trial court erred in denying his motion to dismiss the charge of firing into an occupied vehicle. N.C. Gen. Stat. § 14-34.1(b) provides, in relevant part: "A person who willfully or wantonly discharges a weapon . . . into any occupied vehicle is guilty of a Class D felony." N.C. Gen. Stat. § 14-34.1(b) (2009).
Specifically, defendant argues that insufficient evidence was presented to prove that he intentionally fired into the vehicle, and that no rational trier of fact could have found beyond a reasonable doubt that he had done so. In support of this argument, defendant notes that he testified that he did not intentionally point the gun at the car or intentionally point the trigger, rooting his argument in State v. Wheeler, 321 N.C. 725, 365 S.E.2d 609 (1988). We find that case inapt.
There, as here, the defendant was charged with firing a weapon into an occupied vehicle and "contend[ed] that the only evidence of intent was the statement of the defendant that he did not intend to fire into the vehicle." Id. at 728, 365 S.E.2d at 611. However, in Wheeler, the defendant admitted intentionally firing the gun; his argument was that the State had not shown that he intentionally fired the gun into the occupied vehicle. Id. As such, that case is about the extrapolation of intended consequences, not how intent may be proven.
We note too, as does the State, that despite defendant' testimony described above, defendant also testified that "[he] knew [he] was firing the gun, not directly at [the victim], but [he] was firing the gun to scare her." He also acknowledged that "the gun did not go off by itself." We hold that this testimony could form the basis for a rational trier of fact finding that defendant intentionally fired the weapon, and as such this argument is overruled.
V.
Finally, defendant argues that the trial court committed plain error in instructing the jury that they might consider defendant's flight as evidence of his guilt. This argument is without merit.
The trial court's instruction was as follows:
The State contends, and the defendant denies, that the defendant fled. Evidence of flight may be considered by you, together with all other facts and circumstances, in this case in determining whether the combined circumstances amount to an admission or show a consciousness of guilt. However, proof of this circumstance is not sufficient in itself to establish the defendant's guilt.
Because defendant failed to object to the jury instruction on flight at trial, we review his argument for plain error, meaning that he must show that it "resulted in a miscarriage of justice or in the denial to appellant of a fair trial" or "had a probable impact on the jury's finding that the defendant was guilty." State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983) (quotations and citation omitted). This defendant cannot do.
A trial judge may instruct a jury on a defendant's flight if there is some evidence in the record reasonably supporting the theory that defendant fled after commission of the crime charged. Mere evidence that defendant left the scene of the crime is not enough to support an instruction on flight. There must also be some evidence that defendant took steps to avoid apprehension.
State v. Holland, 161 N.C. App. 326, 330, 588 S.E.2d 32, 36 (2003) (quotations and citations omitted).
Defendant testified at trial that, just after firing the shot that killed the victim, he "fled from the scene and left." By his own admission, he then spent three days on the run from the police. His sole argument on this point is based on his testimony as to the reason behind the flight — namely, out of fear that the victim' family would retaliate due to his actions, not out of fear of apprehension by the police.
However, defendant cites to no sources that suggest that such flight must be from certain persons or specifically to avoid apprehension. Instead, as our Supreme Court has noted, "North Carolina has long followed the rule that an accused' flight from a crime shortly after its commission is admissible as evidence of guilt." State v. Self, 280 N.C. 665, 672, 187 S.E.2d 93, 97 (1972) (citations omitted). "The relevant inquiry is whether the evidence shows that defendant left the scene of the crime and took steps to avoid apprehension." State v. Grooms, 353 N.C. 50, 80, 540 S.E.2d 713, 732 (2000) (citation omitted). Here, defendant' own testimony provides sufficient evidence to give the jury the instruction on flight. See, e.g., State v. Reeves, 343 N.C. 111, 113, 468 S.E.2d 53, 55 (1996) (holding that "evidence tending to show that defendant, after shooting the victim, ran from the scene of the crime, got in a car waiting nearby, and drove away . . . [was] sufficient evidence of flight to warrant the instruction" on flight).
The instruction on flight was warranted by the evidence. Because defendant cannot show that any error was committed in giving it, he cannot show that plain error occurred. As such, this argument is overruled.
No error.
Judges HUNTER, Robert C., and CALABRIA concur.
Report per Rule 30(e).