*1 COURT THE SUPREME IN v. STAGER STATE (1991)] N.C. [329 v. BARBARA T. STAGER CAROLINA OF NORTH STATE No. 212A89 1991) (Filed August (NCI3d)— admissible crime —when similar § 34.4 1. Criminal Law 404(b) N. C. under Rule admissible Evidence is tending sup- evidence if it is substantial Rules of Evidence the defendant com- jury finding by a reasonable port is not its value probative act or crime and mitted a similar propensi- the defendant’s solely to establish tending limited charged. such as the crime ty to commit a crime 2d, seq. §§ 320 et Am Jur Evidence (NCI3d)— admissible § 34.4 similar crime —when 2. Criminal Law 404(b) if act or crime is “similar” prior Rule Under or present par- unusual facts both crimes there are some per- would indicate that the same ticularly similar acts which necessary It is not similarities son committed both. unique the two situations rise to the level of the between bizarre; rather, the must tend to simply sup- similarities inference that the same committed port person a reasonable both the earlier and later acts. 2d, §§
Am Jur Evidence 321. — (NCI3d)— § 3. Criminal Law 34.7 murder of second husband —admissibility death circumstances of first husband’s to show motive, intent and absence of accident
In a prosecution degree defendant for the first murder husband, of her second concerning death of de- 404(b) fendant’s first husband was admissible under Rule intent, motive, preparation, plan, show knowledge, absence of accident where the court found concerning that evidence husband, the death of.defendant’s first when taken with evidence death, concerning the second husband’s tended to show that (1) each of defendant’s husbands died as a result of a single (2) wound; gunshot in each case .25 weapon was a caliber (3) semi-automatic handgun; weapons both were purchased (4) for the protection; defendant’s both men were shot (5) hours; early morning defendant discovered both victims (6) after their respective shootings; defendant was the last THE SUPREME COURT IN *2 (7) victims; both in the immediate of both person company defendant; they in the shared with victims died bed (8) from life insurance proceeds resulting defendant benefited from both deaths. 2d,
Am Jur> §§ Evidence 324-326. (NCI3d)— § years 4. Criminal 34.4 similar crime Law ten before —probative —remoteness value of years death defendant’s first husband ten before
the death of her second husband was not as so remote have lost its probative prosecution value of defendant for the degree first murder of her second husband. 2d, §
Am Jur Evidence 330. (NCI3d)— § 5. Criminal Law 34.4 twenty similar wit- crime — nesses —no abuse of discretion The trial court did not abuse its discretion in permitting the State to testimony by twenty introduce witnesses show- ing the circumstances of the death of defendant’s first husband husband, ten years before death of her second including testimony from the telephone operator who received the call, emergency rescue squad personnel, employees of insurance companies and the first husband’s mother. 2d, 333;
Am Jur § § Evidence Trial 136. (NCI3d)— § 6. Homicide 20.1 similar photographs body of crime — of Photographs body of defendant’s first husband were properly admitted in defendant’s for trial the murder of her second husband for the limited purpose of illustrating witnesses’ testimony found, body where the was the position of body, location of bullet wound. 2d,
Am Jur §§ Evidence 792. Admissibility of photograph corpse in prosecution for homicide or civil action for causing death. 73 ALR2d 769. (NCI3d)— 7. § Criminal Law 34.7 murder of second husband— death of first —probative husband value outweighing prejudice (cid:127) The trial court did not err in concluding the probative value of evidence of the circumstances the death of defend- ant’s first years husband ten earlier outweighed the danger of unfair prejudice defendant’s trial for degree first murder COURT THE SUPREME IN relevant and the evidence where husband her second intent, and absence knowledge, plan, show admissible 8C-1, 403. Rule N.C.G.S. accident. § 2d, 330. § Evidence
Am Jur (NCI3d)— competent § 95.1 Law 8. Criminal limiting instruction request —failure to purpose restricted or tender request specifically failed Where admitted, she the time evidence instruction limiting limiting give court’s failure the trial entitled to have is not 8C-1, Rule 105. N.C.G.S. appeal. reviewed on instruction § *3 2d, §§ 577. Trial Am Jur (NCI3d)— recording admissibility tape § 73.3 Law 9. Criminal — of mind state to show in which prosecution murder degree In a first accidental, a husband shooting claimed days before his death by victim three made recording tape 803(3) 8C-1, evidence Rule under N.C.G.S. was admissible § where the victim’s victim’s state of mind to show the tending he was afraid of de- tended to show that statement recorded fendant, normal, relationship loving disprove tended to two, tended existed between contended that defendant the victim would have contention that refute defendant’s semi-automatic with loaded and cocked with defendant slept directly tended to establish facts and thus pillow, under his pistol of accident. relevant to the issue 2d, § 436. Am Jur Evidence (NCI3d)— recording tape authentication of § Law 70 10. Criminal 8C-1, accuracy testimony Rule as to Under N.C.G.S. § to authen- required is all that is personal knowledge based recording so authenticated recording, tape ticate and contains otherwise legally if it was obtained admissible evidence. competent 2d, § 436.
Am Jur Evidence 70.(NCI3d)— recording tape authentication of § Law 11. Criminal witnesses, a murder vic- testimony including of four sister, the voice on they recognized tim’s parents meet the victim was sufficient to as that of tape recording COURT IN THE SUPREME recording. the tape of authentication State’s burden tape voice on the that the Testimony by other witnesses credibility weight went to the victim’s not the admissibility. to its and not evidence 2d, § 436. Am Evidence Jur (NCI4th); § 73.3 Criminal Law § 349 Law
12. Constitutional (NCI3d)— exception right of mind hearsay evidence —state — not denied of confrontation by a murder recording made tape of a admission defendant’s his did not violate shortly before death victim constitutions under the state or federal to confrontation rights the state was admissible under the victim’s statement where hearsay rule. mind exception 2d, § Am Evidence 436. Jur as affected
Admissibility recording of sound 58 ALR3d 598. hearsay and best evidence rules. right to confront witnesses —Su- Federal constitutional 2d 1115. Court cases. 98 L. Ed. preme (NCI4th|— investigate tape time to record- § Law 268 13. Criminal of discretion of continuance —no abuse ing-denial *4 denying discretion in The trial court did not abuse its of a first and trial motions for continuance pretrial defendant’s in- time to make an defendant degree give murder case by the made concerning tape recording allegedly a vestigation where the recording referred to on that victim and matters April provided 19 1989 and recording State received the on ordered day; April the next on 24 the court copy to defendant purposes investigating to defendant for provided that funds be May provide the court ordered tape; on was discovered and names tape to defendant the date it; of evidence presentation who discovered persons May on 8 and the State offered commenced in defendant’s trial eight May; produced evidence on 15 tape into not tape the voice on the witnesses who testified that victim; from produced defendant also a witness that of the on testify the victim’s statement concerning pharmacy certain gone pharmacy he had to the to have tape identified; ample it thus that defendant had appears pills IN THE SUPREME COURT time to discover and introduce concerning tape evidence which was favorable her case. 2d, §
Am Jur Evidence 436. (NCI3d)— § 14. Criminal object Law failure to to evidence— right waiver of to assign error object Defendant’s failure to and her affirmative ac- quiescence the admission of a videotape constituted a waiver of her right appeal assign as error the admission of videotape and its use during the trial. 2d,
Am Jur § Evidence 801.5. Admissibility of videotape film in criminal trial. 60 ALR3d 333. — (NCI3d)— §
15. Homicide murder of husband racial telephone conversation with young male —absence statement — prejudice A defendant on trial for the murder of her husband was not prejudiced testimony that she once said might her change job because “she lady was afraid the black would job” her get was at supervisor where nothing related to race
issue the case and the statement was insignificant. prejudiced by Nor was defendant testimony telephoned that she young male several weeks after her husband’s death where her conversation with him tended to support contention placed victim the gun with which he was killed under his pillow because he was afraid of someone breaking into the house. 2d,
Am § Jur Evidence 650. (NCI3d)— § 16. Homicide 15.2 intent to psychiatrist see —absence prejudice A defendant on trial for the murder of her husband was prejudiced by testimony that defendant told a witness after her husband’s death that she intended to start seeing psychiatrist. 2d, 355, 363,
Am Jur §§ Evidence 650. *5 (NCI3d)— § 17. Criminal Law 169.3 testimony— admission of by similar evidence prejudice defendant —absence of by Defendant was not prejudiced testimony a witness’s where defendant first injected subject matter of such testimony by portions tape the trial of a re- introducing into made the victim before his death which contained cording the witness testified. matters about which 2d, § Am Jur Evidence 268. — (NCI3d) §
18. Homicide 15.2 murder of husband —calmness of away defendant —giving clothing victim’s In a of defendant for the first murder prosecution degree husband, testimony of her that defendant was calm and not on the of the victim’s death and that she crying away morning gave day clothing
some of his after his funeral was admissible as shortly evidence on defendant’s emotional state opinion her
after husband was killed based on the witnesses’ observations of her demeanor at that time. 2d, §
Am Jur Evidence 366. (NCI3d)— § 19. Homicide 21.5 murder —intent kill- degree first sufficiency of circumstantial
There was circumstantial evidence to support substantial jury finding shooting that defendant’s husband was him intentionally not accidental but that she killed after where there premeditation and deliberation was evidence tend- to show that defendant had control of the ing weapon before it; the victim feared defendant due to her discharged prior him; gave actions toward inconsistent versions of the police, the “accident” to the medical examiner and were physical both of those versions inconsistent with the evidence; beneficiary defendant was the victim’s sole insurance very money and would receive a substantial sum of at his death; money badly defendant needed and had been borrowing money without the victim’s knowledge concealing him; prior fact from and defendant’s husband had died to the manner in which the victim died. strikingly manner similar 2d, §§ Am Jur Evidence 1125. necessity
Modern of rule of instruction regarding status in criminal trial on circumstantial evidence —state cases. ALR4th 1046. — (NCI4th)— mitigating §
20. Criminal Law 1352 circumstances — McKoy unanimity requirement error not cured or harmless unanimity requirement mitigating trial court’s and third issues on the circumstances set out the second
STATE v. STAGER (1991)] N.C. [329 and in verdict form the related oral instructions during penalty of a first murder phase degree McKoy trial constituted error, this by and error was cured the court’s instruction fourth relating juror issue individual could a mitigating consider circumstance which he or she found to by preponderance exist the juror evidence when made final recommendation as even defendant’s sentence if the unanimously circumstance had not been jury. found Furthermore, the State the McKoy failed show that error beyond was harmless a reasonable where the jury doubt failed unanimously to find the fifth submitted or “catchall” mitigating circumstance, and juror reasonably have might found the “catchall” mitigating circumstance to exist based on evidence to show tending that defendant worked with numerous young acted like people and a mother to other children than her own, cooperated with law enforcement of- their ficials in investigation the case willingly complied request with their that she reenact on her videotape account happened day what on the killed husband. 2d, §§ Am Jur Evidence 628.
Supreme Court’s on constitutionality views of death penal- ty and procedures under which it imposed or carried out. 90 L. 2d Ed. 1001.
Justice MEYER concurring part dissenting part. 7A-27(a) right pursuant to N.C.G.S. from a judg- § APPEAL ment imposing sentence of upon death the defendant’s conviction murder, Jr., J., (J.B.), for first-degree by Allen entered in Superior Court, County, LEE May on 19 1989. Heard in Supreme Court 6 May on 1991. General,
/Lacy H. Thornburg, Attorney Farrell, by William N. Jr., General, Special Deputy Attorney the State. for Smith, Tharrington, Smith & Hargrove, by Roger W. Melissa Hill, H. Clark, A. Douglas Ruley, Trathen, Daniel W. and Marcus W. defendant-appellant. MITCHELL, Justice.
The defendant was tried a true bill of indictment at the Court, 1 May Superior Criminal Session of Lee County, SUPREME IN THE COURT degree. of murder in the first of one count convicted a sentence of death. and the trial court entered jury recommended *7 of assignments forth numerous the defendant appeal, brings On guilt-innocence phase the determination error. We conclude that However, error. prejudicial trial was free from of the defendant’s the require that sentence during sentencing proceeding the errors the Superior case be remanded to of death be vacated and this recent with the sentencing proceeding complying for a new Court McKoy in the United States Supreme Court of decision (1990). Carolina, 433, 108 L. Ed. 2d v. North U.S. to show that present case tended State’s 1978, victim, and the Allison Russell in the fall of the defendant III, they were On 17 March Stager began dating. met and married. Stager Russell resided February the defendant and
On from Brian the defendant’s sons Stager, in Durham. Jason and approximately Russell marriage, adopted had been previous lived with his Fourteen-year-old parents. Jason years earlier. eight February Stager telephoned Jason At 6:08 a.m. on the operator from his home. Jason told operator the 911 emergency wound that his mother gunshot his father had suffered and A volunteer unit from him to call for an ambulance. had asked (the Responders”), Department Fire “Lebanon First the Lebanon unit, from the deputies Medical and three Emergency an Services were County Department dispatched Sheriff’s Durham residence. was first Responders the Lebanon First
Douglas Griffin bedroom. Stager to arrive. Jason directed Griffin to a person When door two inches. open approximately bedroom door was in the bedroom and defend- opened, the came on darkened light “a slight Griffin recalled that showed appeared ant door. very little.” crying but indication up motioned toward bed
The defendant backed left on was with his side Stager lying Griffin entered. Russell shoulder,” “cleanly his He lying side of the bed. was not right with his face in the pillow slightly but was turned toward There eye by the pillow. left somewhat covered pillow and his pillow inch on the behind eighteen twelve to bloodstain head, his and mouth. coming blood was from nose Russell’s IN THE SUPREME COURT
STATE There also on the hair on back was blood left side of his color, body His head. normal but his face was ashen and eyes were his rolled back his head.
Griffin Russell pivoted so his face would be out of the be pillow breathing his would easier. As Griffin was taking pressure the victim’s blood pulse, Doug another Wingate, member the Lebanon Responders, First entered the room and began help. process reading signs, they Russell’s vital around, turned his This the pillow head. caused shift thereby exposing Beyond .25 caliber Beretta pistol. pistol, and further lay underneath the pillow, spent casing. shell Noticing cocked, hammer on the pistol was Griffin the pistol. did move The defendant already commented that she had pistol. moved the
When asked the *8 Wingate defendant what had she happened, that the discharged said had gun as she was out pulling it from the pillow. under She said that had heard her get up, son and she had been trying to remove the gun case her husband awoke and thought someone was the house. defendant told Wingate they kept they that a gun because had heard noises at night were concerned burglars. about The first law enforcement officer to arrive on the scene was Sheriff Deputy Clark Green. When he shortly arrived after 6:15 a.m., the sitting defendant was on the of the edge bed and had shirt, jeans, into changed blue a sweat and tennis shoes. Her ap- and, pearance Deputy was neat. Green secured the area together Hornbuckle, Deputy Sheriff Paul Ernest interviewed the defendant. they began Before the the questioning, repeatedly defendant
said, “I kept him telling about those guns.” damn The officers the asked defendant for some general information such the as vic- full age, tim’s name and and she was able to answer questions their They difficulty. without asked her gun, about the and the defendant stated that her husband was “in stage guns” about and occasional- time, ly slept with a At pistol. the defendant’s son Jason up came and she directed Jason to tell the officers “about him cars, having these about he stages guns, carries guns leaves them under the pillow, somebody he is scared about coming [sic] into the house.” Both Jason defendant said that the victim occasionally with a under slept gun pillow. Deputy his Green asked if defendant there were marital problems, and she said no. COURT
IN THE SUPREME STATE defendant, one of questioning
While the officers were if one of interrupted technicians to ask emergency medical the bedroom. Hornbuckle gun Deputy remove the from officers would toward pointed the pillow; gun from beneath gun removed under the also removed from casing The shell victim. edge pillow. Wilson, First Kevin a member the Lebanon
Michael Durham medical technician with Responders and also an emergency Hornbuckle Deputy arrived the scene after County Hospital, at arrived, the defendant gun. had When Wilson' removed The defendant the left of bed. in the bedroom to standing they asked personnel became a distraction to the medical such her from the room. The defendant Deputy Hornbuckle remove things, “I’m these statements such as scared of repeatedly made we them. ... I wish he wouldn’t my I wish didn’t have God there, not guns under I’m scared are things guns, have these safe, know, in the described there are kids house.” Wilson you like a “chant.” nature these statements repetitious member the same church as Barbara
Wilson was a After was treated Russell and Russell’s Russell Stager parents. Center, to Duke Medical transported residence and Stager he would be to contact happy Wilson the defendant told hospital. or their and drive them to the pastor husband’s parents Russell’s father responded that she did want anyone. Wilson Wilson testified called and told not to call Griffin, Douglas him. He later asked response the defendant’s startled *9 scene, immediately home go the to arrive the to and person first at the scene what he had observed at prepare report concerning that had that indicated the defendant morning. report Griffin’s her husband had emergency personnel stated the medical that to and night the house the during been sounds outside of hearing upon The placed pillow. morning, the under his next pistol had house, under the reached her son awake the defendant hearing pillow the to remove the and fired. pistol secretary to the at Durham Phyllis principal Hunnicutt Cagle, School, her at home telephoned testified that the defendant High Cagle 1988. The informed February 7:00 a.m. on defendant around school, victim, not be at the would that the a coach and teacher if the victim day. When asked the defendant Cagle at work that sick, “yes.” and then said the defendant hesitated victim, Stager, Doris the mother of the testified that she last 1988, January saw her alive day son before his death. around, She that they recalled after while were supper, sitting asked defendant Russell move chair from a at the end the couch to a chair from sitting across his mother. After he moved mother, to the chair across from his the defendant sat down on chair, floor beside up reached and held his hand. As the hand, defendant up grabbed reached Russell’s she looked direct- ly at Doris. Russell did respond to the defendant’s display of affection. 1988, a.m.,' February
1On approximately 8:45 Doris received mother, call telephone from the defendant’s Marva Terry. She told Doris that victim was room at Duke emergency Hospital defendant wanted Doris there. As Doris walked hospital, into the room at the the defendant began saying, it, sorry, “I’m I didn’t mean do me.” Russell forgive Stager day. died around noon that Stager
Doris February testified further 2on she and her were husband at the funeral home assisting the defendant with the arrangements funeral when she heard the defendant speak- ing with the funeral director about Social drawing Security on boys. the two On 5 February, defendant called Doris and in- formed her that she had been the Veterans Administration. The if defendant wanted to Russell ever know had been in regular Army. She said she had been told that she could draw only insurance if had Army. Russell been in the regular Doris that he responded Army had been Reserves and the Tuesday, National Guard. On the following February defendant Doris had given told that she all Russell’s clothes February to two churches. On 15 the defendant and Doris had a conversation at Doris’ again home. defendant told Doris shooting was an accident that she wanted forgiveness. also said that was not to be going able monthly make her house because take payment it would her entire salary so. The do defendant also indicated that after she got payments insurance from the National Guard school where worked, the victim had she would be able to the house payment. make Honkanen, County Dr. a pathologist Franklin and Durham *10 Examiner, University at Duke working Medical was Medical Center on 1 1988. February He testified that the defendant told him that her husband kept large guns number the and house that many of the had She guns they been loaded. stated that had been concerned over neighborhood. break-ins the She said that the victim previously slept had pistol with a under pillow. She however, had not practice, liked this and he had he said would not do it The again. defendant told also that on doctor morning of the she shooting, awakened around 6:00a.m. and stretched out on her stomach. As her hand right reached underneath the pillow, victim’s felt she hard. As it something pulled she out from under the she pillow, it realized that was a gun and started to get out of bed. defendant that stated she was off backing fired, of the bed the gun when hitting victim. Dr. Honkanen asked her if she knew approximately how far away from victim she was when the victim was shot and whether she could describe how the gun discharged. The defendant she replied that did not off, know how the went that gun but it was in her hand and bed, she was thought somewhere the edge between away three and five feet from victim. yet defendant told Dr. that she Honkanen was not stand-
ing when the gun discharged. She stated that she not holding fired, gun up when dragging but was it across the bed. response to Dr. Honkanen’s as to question whether victim that, usually slept gun, with a the defendant said although usually victim gun, did with a he sleep slept had one on at least prior they one occasion. The defendant stated had argued practice about this that the promised victim had not to do it any more. The stated surprised that she was morning gun pillow. to find under Dr. As Honkanen condolences, his interview concluding expressing his defendant stated that she thought shooting was a terrible acci- dent that she have with. would to live
Dr. examined at the hospital Honkanen Russell found a single approximately bullet wound the back middle of time, his head. The wound had been cleaned sutured hair and small circle of had been removed from around the wound. any Dr. deposits Honkanen did not see powder or or He there been burning singeing. opined powder could have weapon marks around the wound if the had fired within been inches, distance of as well as if the eighteen burning singeing weapon had been within one foot. discharged
290
STATE v. STAGER [329 [278] (1991)] Buchanan, County the Durham Detective with Homicide R.D. the death he learned of victim’s testified that Department, Sheriff’s He the at her February 1 1988. met defendant 12:45 on p.m. day. Buchanan that The defendant told home later that parents’ went off when the alarm clock morning in the bed that she was to her husband room. She then reached over in her son’s her the the defendant stuck object pillow. underneath As felt an out, pulled attempted she pillow pistol under the hand point, pistol in the bed. At this to lift it and raise herself her that had told husband The defendant stated she discharged. that this pillow, under the past place guns in the not know that was there. gun she did not particular morning went to residence Buchanan. The defendant then bedroom, went and the defendant demonstrated They into discharged. Russell were when the gun she and positions that while shotgun in the corner of the bedroom Buchanan observed a were he and the defendant there. February with the defendant. again spoke Buchanan
On time, possible he the defendant if it would be At that asked to do shooting. agreed The defendant do a reenactment reenactment, recording. of video preserved which was means told Buchanan After the reenactment was defendant completed, why kept gun would have asking she herself Russell kept addition, the defendant ready pillow. to fire under his she anything guns did know about and that stated in- also as to how the inquired not like The defendant guns. did know that was accidental. company shooting surance would February, the defendant called Buchanan wanted On She on the death certificate. pending listing to know about if the out as accidental. again to know case was closed wanted that the death certificate showed informed Buchanan defendant complete. the autopsy on April seeking with the defendant spoke again Buchanan shooting. used in the defend- pistol information regarding purchased had been gun ant told Buchanan at that time that and Agent in Durham. Buchanan April, from a business On Myers interviewed Investigation of the State Bureau Steve stated to the officers her residence. The defendant defendant at years Russell at least two purchased pistol that she and had protec- the defendant’s Initially, purchased it had been earlier. IN THE SUPREME COURT However, tion. she did not know how to use the pistol, and Russell had later moved it to an unknown location. The said that her husband had done lot of shooting and had been on the National Guard Pistol Team. She stated that she had accom- *12 panied underground her husband to an shooting range on one occa- sion and that she approximately shot two in the he clips pistol day. had that She also that stated she had never shot the .25 caliber pistol that killed her husband.
Buchanan also testified that the defendant said that she had a of guns. tremendous fear The defendant said she was unable opinion form an as to whether the victim was careless guns or not because she knew so say little about them. She did that Russell had told her a point gun anyone not unless it, she going funny to use which she found since she did addition, know how to use a In gun. defendant told officers that her husband had that he stated would confront and shoot anyone who broke into their house. The defendant found this state- ment odd because her husband was such a heavy sleeper who probably would not awaken if someone broke into the house. She also occasionally indicated that her husband with different slept weapons pillow. under his
The told defendant purchased Buchanan she had never However, a .25 pistol caliber before. she also told Buchanan her first husband had died from a after pistol wound she had purchased the pistol that killed him. Specifically, Ford, husband, Larry told Buchanan that her her first had asked gun. to obtain She her preacher contacted him with go had her sign gun permit. Another accompanied individual gun shop purchase pistol. They then went out so that the defendant could practice shooting gun. The defendant said that she had shot pistol three to four times. Buchanan testified that the defendant said she it believed that was a “small .22 caliber pistol.” day purchased defendant said that on the that she
gun, Larry Ford returned from a karate class in which he had been in the he groin. kicked Because was in some the defend- pain, ant decided to on the After sleep falling asleep, couch. she was by When went upstairs awakened noise. to check the source noise, Larry she heard He gasping breath. had been shot by gun day that she had earlier purchased
STATE examiner later told that a medical the bed. She stated lying on Larry’s he hands and that no residue on he could find her that to fire causing Larry dropped gun had believed accidentally. that she was that the defendant said Buchanan also testified $100,000 a result proceeds in life insurance as to receive over going addition, life there was credit she said that death.
of Russell’s owed on pay life that would the balance on Russell’s insurance death cer- supplemental received the vehicle once the defendant tificate, life that would balances pay as well credit insurance two other accounts. owed on prepared that she was not The defendant also told Buchanan before, year had wills the prepared The two
for Russell’s death. to the defend- checking accounts leaving property with Russell only she and Russell problems that the ant. defendant said *13 they through been were financial and that had had confronted very rough financial situations. two National Graham Lee North Carolina Sergeant
Master in the National Stager sergeant Russell was a testified that Guard pistol Sergeant team. In company’s and a member of his Guard orderly, cautious individual. was an safe and opinion, Lee’s Russell Clark, the Office of pathologist a forensic with Dr. Thomas Carolina, autop- conducted an Chief Medical Examiner of North the February The victim had wound sy gunshot on Russell on 3 1988. a Dr. from his examination the back of his head. Clark determined recovery the involved was fragments the of metal bullet firing with from consistent copper-jacketed a caliber bullet small .25 entry of about the level point bullet. The was pistol a caliber the the of the midline of the back of just right the ears of head. The forward, to left the brain traveled and across bullet part left the front of the skull. bullet and hit the side of part was recovered from the front brain. then bounced back and in or no powder stippling Dr. testified that there was Clark powder stippling this lack upon around the wound. Based wound, Dr. concluded in or about Clark powder particles had fired from a distance the victim been gunshot that killed He if the from the victim. concluded that than two feet of more shot, he “the side when bullet victim was on his left lying the midline necessarily part have come from above would head.”
IN THE SUPREME COURT Wagoner, high Chris former school baseball had player who been Stager, coached Russell he testified that received a telephone defendant, call Stager, day from Barbara on the after Russell’s funeral. She asked that bring he some other players victim’s addition, from his at belongings office school the house. In defendant asked for assistance some personal victim’s belongings their home. took the from Wagoner items Russell’s Stager office to the He home. then removed the victim’s clothes from the belongings placed attic and them on truck. These were charity. items given Webster, County
A.C. in the sergeant Durham Sheriff’sDepart- ment, testified that he training, of firearms charge weapons, weapons maintenance and to do with anything specialized weapons Department. the Sheriff’s respon- connection with his duties and sibilities, schools, he armory attended several schools. At these he learned how work weapons, as well as repair maintain and them. At Detective request, Sergeant Buchanan’s Webster examined the .25 caliber pistol Beretta that killed Russell Stager. Sergeant Webster testified that the is magazine Beretta fed .25 caliber fired, semi-automatic If a pistol. pistol semi-automatic is will chamber, fire the round that is in the eject spent casing move another round from into the magazine firing chamber. automatically Such a pistol cocks itself for the second round. Beretta with a equipped safety located near the rear of the When weapon. engaged, safety will prevent weapon from firing.
Sergeant Webster fired the Beretta eight a total of times. *14 Each time he fired the the weapon, he found that shell spent casings ejected from the pistol right traveled to the and rear of the shooter. safety manually grip on the had to the engaged. be Both safety the weapon day were the functioning properly on he the tested gun. Bishop, a with
Eugene firearms examiner the State Bureau Investigation, of testified that he also tested the Beretta. Bishop concluded that the bullet and the fragments bullet taken from addition, brain pistol. victim’s were fired from the Beretta he (D that the in ways: by testified Beretta could be loaded two placing chamber, chamber, a live in the manually round the closing cocking (2) by the the placing external hammer and pulling trigger, a loaded in the the back. magazine weapon pulling Bishop slide THE SUPREME COURT IN safety grip, on the the to the thumb in addition
testified that safety engaged which be of could type Beretta had another He cock.” testified that “quarter hammer a back on the pulling safety full safety thumb into a up the push it was difficult to safety push movement to that it took a definite position, fire. pistol off so as to allow down or the Beretta. ejection pattern of Bishop testified as also ejected shell were spent casings He found that most shooter, occasion, one of but that on at least rear right spent or back to left. casing straight came back spent gun. when from the ejected travel to six feet would two casings of pressure required pull pounds A of four and one-half trigger fire. He also concluded that Beretta weapon would before working condition. was in proper Creasy, a in the crime Michael forensic chemist
Special Agent that he laboratory Investigation, Bureau of testified of the State residue in connection gunshot had examined certain exhibits for cover, he examined mattress Specifically, with the case. blanket, sheets, in which the bed pillowcases and the from He items order to killed. examined those Stager Russell that could be they any burning tears or determine whether bore He testified that he would discharge gun. with the associated damage to the fabric to find marks or actual expected singe have any within six inches of items gun discharged if the had to reveal such marks or burn- examined. His examination failed discharge with the identify being he could associated ing that firearm. of a coach, Biddle, High wife of a Durham School testified
Sandra She known both Russell and the defendant. Stager that she had with the October she had recalled conversation was teaching that the victim of 1987. The defendant told Biddle protection. handgun her how to shoot a small Boaz, between Gilly a member the National Guard interest that he and the victim shared an testified a lot together. spent rifle team Boaz were on the handguns and were in use and observed time the victim when firearms not recall an safely firearms. Boaz could that the victim handled semi- have the slide back when the victim did not instance *15 victim it in Both Boaz and the when was not use. pistol automatic attended a coaching year course the prior to the victim’s pistol Safety death. was the priority number one in this course. Boaz also accompanied victim and the defendant to an indoor pistol range armory at an in the fall of 1984. Boaz observed the defendant using one of the victim’s pistols at that time. The occasion, pistol the defendant used on that a .22 caliber semi- automatic Mark Ruger many respects similar to the .25 caliber Beretta used in the shooting of the victim. The only real difference between the two is that the Ruger Mark 3 is target pistol, which the Beretta is not. Boaz saw the defendant fire the Ruger Mark and hit the paper target, which he characterized as “no small feat.” The defendant did not appear to be scared or uncomfortable firing pistol. Boaz, wife,
Patty Gilly’s testified that she too was firing time, range with her husband and the At Stagers. the defend- ant told her that she did not like guns, “the although more she was with them the more she familiar or comfortable [be]came them.”
The State presented also evidence that the defendant was $164,000 beneficiary sole of more than in life proceeds insurance Further, resulting from husband’s death. the defendant had been engaged pattern money of borrowing prior to the victim’s victim, death without the knowledge of the including his forging name on applications loan as well as on a motor vehicle title in order to secure one of the loans. In keep activity order to this secret, the defendant had the bills mailed to her parents’ home. This pattern of borrowing began January of 1987 and concluded $10,000 with a loan obtained nine months later. After the defendant $10,000 loan, payments missed on a bank she began forging checks on her husband’s accounts. When she missed the second payment, the bank informed the defendant victim would have to be contacted if she did not make the payment. The defendant asked the bank not to call her they husband because were having prob- lems and another female was involved.
Alma Mae Smith testified that she notarized the victim’s pur- will ported around March of 1987. purported This will was notarized victim, in the absence of the after the brought Smith at work and asked her to notarize the victim’s signature. The defendant stated that she was Smith asking to notarize the will because Smith was with the familiar victim’s handwriting. No *16 IN SUPREME COURT THE
STATE v. STAGER (1991)] [329 will, were there nor signed witnesses had .^witnesses However, the will. time Smith notarized will in the room at the Mary of probate, the names the will later was admitted when Terry the will. Terry, on Terry, appeared and Marva Alton went to the defendant’s home Smith testified that she also death. She observed that the defendant night on the of the victim’s very through happened during what had gone “was calm have day.” also tended show that December The State’s evidence student, Evans, found a Durham School High Frederick the tape in a locker room. Evans found tape a cassette school under one of the stalls twenty feet the victim’s office about from took it home picked up tape, in the locker room. Evans gave it to his mother. dresser, her where placed the cassette on tape
Evans’ mother Evans listened to the stayed April April until 1989. it He the victim’s tape recognized on for the first time. recording expressing serious concerns about the defendant’s tape voice on the tape and his mother listened to the and decided behavior. Evans police tape to the The received the from police. to turn over 1989. April and his mother on Evans the death of concerning also introduced evidence husband, Larry first State’s evidence the defendant’s Ford. shortly on 22 March midnight tended to after show personnel were called to home emergency medical services when arrived. Larry Ford was dead an ambulance Ford. technician, Perry, an medical testified that emergency Robert in Trinity, to a North Carolina on go he had occasion house by He Jim Owens. accompanied partner, 22 March 1978. his location, they were met Perry When Owens arrived at (now Stager). Ford the defendant Barbara in the kitchen Barbara shot. She upstairs and had been She stated that husband was Perry Larry Ford on the bed lying believed he was dead. found were his closed. He was dead. There bloodstains eyes pajama top. the front of his
Perry Ford and found the bedding covering turned back the lying on the gun in the with Ford. The clip gun from bed right or waist area. Ford’s hip side the bed near Ford’s right gunshot There was a off the bed on the floor. hanging foot was entrance wound to the just right the sternum the line along (cid:127) nipple. Perry of Ford’s concluded that Ford had been dead for Perry at least five minutes. drew his from conclusion the skin temperature body and color of the and the fact that blood on the body already had dried. *17 dead,
After concluding Perry that Ford was went downstairs and informed the He defendant. observed that the defendant was very calm and did not display emotion that would correspond situation. defendant volunteered something to the effect bought that Ford had her a gun for her she protection, but did say Perry’s not else. anything observations at the scene led him call the EMS Director the questionable because of circumstances of Ford’s death.
Perry saw the box that came in gun top on of a chest it, in Ford’s bedroom. It a push had small rod with but there room, no Perry was oil rags. Owens in- diagrammed where cluding lying Ford was and the location the gunshot addition, entrance wound. In they bagged hands for the Ford’s purpose performing gunshot residue test. the time
During Perry was on the that premises night, the defendant never came At upstairs point, bedroom. some Perry the defendant told that the reason she was downstairs and upstairs her husband was was because he had been struck groin practice. karate She he thought stated that she might roll over and him if she him hurt she slept so decided to sleep downstairs.
Jim Owens testified that he Perry when arrived at the on 22 scene March he met the defendant. She stated that husband, Ford, her had Larry been shot and she he thought dead. Owens always testified that what in his stuck mind about night exactly .very that “wasn’t upset about the whole situation.”
Owens’ best recollection of the defendant’s first statement was himself, that: had himself or accidentally shot shot the gun “[H]e words, went off.” While Owens could not recall her he in- exact essentially dicated that the defendant said that Ford shot himself cleaning gun and that pretty she was sure he was dead. These were made statements before the emergency medical technicians ever upstairs. went THE SUPREME IN COURT
STATE addition, defendant stated recalled Owens days a few earlier at Ford’s insistence gun purchased had been gun, for the receipt Owens observed the protection. for case, dresser near the sitting top a little brush gun clip was somewhere gun He recalled that the specifically bed. recalled was the thing The last that Owens the covers. beneath to drink. something coffee or offering Allen, County in the Sheriff’s deputy Randolph former Larry he arrived at the Ford residence around testified that Department, that her 1978. The defendant told Allen on March midnight where he had been kicked come from karate class husband had he was uncom- sleep downstairs because groin. in the She chose to the upstairs a noise and went bedroom fortable. She said she heard he had Apparently for breath. lying gasping and saw Ford bed been shot. back, were but
Allen observed that the bed covers turned A automatic up.” clip were “messed .25 caliber they *18 in in the Also found the bedroom was lying bed. pistol was .25 found pistol of the caliber automatic receipt purchase 3:35 receipt p.m. was dated 21 March at bed. The Hoover, County E. Director of the Randolph former Joseph Service, he went to the Ford residence Ambulance testified that Allen, Hoover, with that 1978. discovered along on March ejected found at the scene shells to pistol .25 caliber automatic left, the defendant told him. right and back. Before Hoover for him to just glad she made coffee and would be have that had with her. coffee autop- an Randolph, pathologist,
Dr. Brad a forensic conducted the cause of body Larry Ford. He concluded that sy on the passed through the chest which gunshot was a wound to death artery opinion, In his Ford lungs. main from the heart for one to two minutes would have would have been conscious minutes. in ten to fifteen bled death Bueheller, charge former Detective Lieutenant John Depart- Randolph County Sheriff’s Investigative Division of ment, Larry for the he from Ford handwipings that took testified if residue test determine Ford purpose performing gunshot Creasy, chemist Michael forensic weapon. had fired a he that examined hand- Bureau of testified Investigation, taken from wipings Ford and conducted gunshot residue test. hands, No residue gunshot present leading Creasy on Ford’s However, to conclude that Ford had weapon. not fired a when bed, Creasy test fired the pistol found in Ford’s significantly left high concentrations of residue. gunshot
Special E. Agent Eugene Bishop, a firearms examiner with the State Bureau of Investigation, that testified he tested the .25 pistol caliber automatic Larry body. found with Ford’s When it floor, dropped from a distance of least five feet on a tile it would fire. When dropped from a distance of less than five feet, the pistol would not fire. Bishop did not believe that gun would fire if dropped from five feet a carpeted floor. Ford, mother,
Doris Larry Ford’s testified she arrived at the Ford residence around 3:00 a.m. on March 1978. She only residence, twenty lived minutes from the Ford but arrived at the same time as the parents, defendant’s who lived Durham. funeral, day Larry On the Ford’s the defendant gave his clothes away.
Doris testified Stager the defendant had told her that death, on the night of Ford’s she was downstairs hanging up clothes. Ford was upstairs cleaning his when it gun accidentally fired. Landrum, defendant,
Barbara a former co-worker of the testified approximately one week prior Larry Ford’s death the de- fendant told her that she had come home and found Ford in the bed with another woman. The defendant also said had been sleeping downstairs. *19 Green,
Frank one of the defendant’s co-workers during March 1978, testified that the defendant had asked him on 21 March 1978 if he would assist her in purchasing handgun from local gun The shop. defendant asked Green to her advise on what of type gun purchase to to carry her pocketbook. She told Green that she wanted an automatic. Green recommended that she purchase a .25 caliber automatic. After the defendant a .25 purchased caliber pistol, automatic Green her accompanied county. to the edge of Green spent thirty fifteen to minutes showing the defendant how fire, load, and unload the gun. Green also demonstrated the safety steps. normal Green told the defendant be careful even when was out clip gun because the fire with the clip could SUPREME COURT IN THE The fired defendant was a bullet the chamber. out if there occasion. on that pistol testified that companies from two insurance Representatives $46,000 in insurance proceeds of received in excess addition, Larry holographic Ford’s a result Ford’s death. will, devised the house on March probate filed for $40,000. The was valued to the defendant. house furnishings relevant to the defend- other matters Additional evidence and points addressed at other of error are specific assignments ant’s opinion. in this error, that the the defendant contends
By assignment an evidence con- reversible error admitting trial committed court husband, Larry Ford. The defendant death of first cerning the alia, her first husband’s concerning inter that the evidence argues, intent, or a lack of accident common prove death was not relevant to any probative value of argues or scheme. She further plan outweigh prejudicial its effect that its such evidence did a fair trial. We find right violated her constitutional admission no error. in limine the defendant filed a motion June
On the death any State from evidence about prohibit presenting Larry on 16 December the trial hearing Ford. After on a later ruling the motion. The trial court deferred court denied evidence offered. similar motion until the was testimony witness Detective the trial State’s During Buchanan, Detec- question the State announced its intention R.D. he had with the defendant tive Buchanan about two conversations then a voir death. trial court conducted concerning Ford’s testimony admissible. dire to determine whether hearing testimony exclude the The defendant asked the trial court to death was irrelevant Ford’s regarding ground testimony unduly prejudicial. argued 404(b) motive, 8C-1, op- Rule to show admissible under N.C.G.S. § intent, identity, or absence plan, knowledge, portunity, preparation, the defendant’s The trial court overruled of mistake or accident. objection admitted the evidence. he a conversation had with Buchanan first described
Detective February at her home on 5 1988—when he was the defendant *20 STATE her videotape reenactment of the death Stager Russell —as follows:
Prior to the she filming stated me she had not men- tioned to me about her first husband killed being because she did not think it important. was ... I her I told that into that incident was looking put but trying together what in happened this incident. particular Buchanan also testified during a later interview of the defend- her ant at home on 15 told April she him that: In 1978 she was working for real in company estate High Point. She had people follow home several times. time, Larry, her husband at the had her see go a man knew he about a gun. She stated always that she did everything Larry said to do. She preacher contacted her Larry like said Frank, had him with her to go sign gun the permit. an worked, employee at the real estate where company she went with her gun shop to the to buy gun. She and Frank then went somewhere behind an farm old house or an old house and shot the She gun. they stated there were around ten minutes most and she shot the three gun or four times. She thinks the gun was a small .22 pistol. caliber
She stated that on night day she bought gun, Larry came home from karate class and had been Larry kicked the crotch. Larry was a black belt in karate. inwas some so she let pain Larry decided to sleep bedroom sleep and she would on the couch. She stated that she went sleep by on the couch she was awakened a noise. She thought which had fallen off figurine wall and she went to check.
She went Larry stated the stairs heard up for breath. had gasping Larry gun been shot she had bought. She stated that he was lying the bed. She later with the spoke medical examiner who stated that he could no Larry’s find residue on hands said he felt that Larry dropped accidentally had and it had gun went off. case, Later the State’s its State announced intention to offer more evidence regarding again, Ford’s death. Once objected to the admission of evidence. The trial court voir conducted a dire hearing and ruled that *21 COURT IN THE SUPREME
302 STATE v. STAGER (1991)] N.C. 278 [329 404(b) intent, 8C-1, to show Rule under N.C.G.S. admissible § then intro- The State or of accident. absence plan preparation, or Ford’s death. concerning duced other evidence 404(b) 8C-1, provides: Rule N.C.G.S. § — (b) crimes, Evidence of other or acts. wrongs, Other crimes, prove the character to or acts is admissible wrongs conformity that he acted in order to show person of a however, may, purposes, for other It be admissible therewith. intent, motive, plan, opportunity, preparation, proof such as mistake, entrapment or identity, or absence of knowledge, accident. “ 404(b) is ‘evidence of other offenses clearly provides that
Rule or other to issue any as it relevant long admissible so is fact ” Coffey, v. 326 N.C. of the accused.’ State than the character 268, 278, (1990) Weaver, v. 318 (quoting 54 389 S.E.2d (1986)). 400, 403, 348 S.E.2d 793 “ ‘evidence hav- “relevant evidence” as This Court has defined is any to make the existence of any tendency ing fact more or probable the determination of the action consequence ” Id. (quoting it without the evidence.’ probable than would be less (1988)). 8C-1, interpreted 401 We have this defini- Rule N.C.G.S. § broadly: tion tendency any prove is if it logical
“Evidence relevant has case, every . . criminal case in a . a fact at issue supposed to throw light upon calculated circumstance required It is not permissible. crime admissible and is issue, directly evidence question on the evidence bear it circumstances and relevant if is one competent known, necessary to be parties, proper- surrounding the motives, reasonably if ly or or understand their conduct to a fact.” jury disputed to draw an inference as allows the (1986) Riddick, 127, 137, 340 316 N.C. S.E.2d State v. added) 41, 47, Arnold, 284 N.C. (quoting State (emphasis (1973)). 423, 426 S.E.2d 404(b) Rule is “a clear general this Court stated that Coffey, crimes, wrongs or inclusion relevant evidence of other
rule of defendant, its exception requiring one by subject but acts the defendant only probative if value is to show that exclusion its has or propensity disposition to commit an offense of the nature 278-79, of the crime charged.” N.C. at S.E.2d at 54. Thus, crimes, may though even tend show other wrongs, acts the defendant and propensity his to commit 404(b) them, it is admissible under Rule long so as it also “is relevant some other than to purpose show that defend- *22 ant has the for propensity type of conduct for which he is tried.” being 279,
Id.
389
at
S.E.2d at 54
v.
(quoting State
321
Bagley,
N.C.
201, 206,
(1987),
244,
denied,
1036,
362 S.E.2d
247
cert.
485 U.S.
(1988)).
304 278 N.C. (1990); 542, 171 391 S.E.2d v. 326 N.C. Agee, See State charged. (1990). 268, 389 S.E.2d Coffey, v. State 404(b) there is “similar” if or crime act prior Rule Under [2] are “ or particularly in both crimes present unusual facts ‘some committed person same which would indicate acts similar 587, 594, 603, Green, 365 S.E.2d 321 N.C. both.’” denied, 426), Riddick, cert. at N.C. at S.E.2d (quoting (1988).However, necessary isit 2d 235 102 L. Ed. 488 U.S. level situations “rise the two between that the similarities Rather, at 593. Id. 365 S.E.2d at unique bizarre.” reasonable inference tend to support must simply the similarities and later acts. both the earlier committed person that the same tending [3] In the case sub to show the defendant made judice, substantial statements to various was introduced medical concerning the circumstances and law enforcement officers personnel affirma The defendant shooting Stager. of Russell surrounding the had control individuals that she tively those represented shooting but that shooting, the time of the weapon *23 addition, or im and actions asserted In her statements accidental. (1) intentionally Russell not shoot inter alia that did plied (2) their guns operation of or knowledge she had no Stager, that (3) her motive to shoot she had no guns, of that and afraid (5) (4) Russell, husband, no to had shoot plan that she concerning her husband. Evidence preparation no shoot she made Ford, husband, Larry the first the death defendant’s disprove tending was relevant evidence surrounding circumstances contrary those assertions. support findings assertions 404(b) Therefore, Rule as under that evidence was admissible intent, motive, plan, knowledge preparation, tending evidence to show (1986). 404(b) 8C-1, Rule N.C.G.S. or absence of accident. § however, sup- arguments, advances several The defendant evi- concerning the admission of of error assignment of her port First, the Ford argues defendant of Ford’s death. the dence intent or absence accident. prove is relevant evidence not show that the act may offered to of similar acts be Evidence inadvertent, involuntary. McCormick accidental or dispute was not (3d 1984). Where, here, accident is ed. an Evidence 190 § than in cases probative more evidence of similar acts is alleged, proof The need for such is alleged. is in which an accident situations, or accident many of absence of mistake proof clear. “[I]n 305 relevancy.’ showing This true of evidence particularly has' ‘logical motive, intent, or on North design Brandis preparation, plan.” (3d 1988). 404(b) “may evidence Evidence ed. Rule Carolina § issue, disputed to a critical to the establishment of truth as be state of mind and when that issue involves actor’s especially only by drawing that mental state is ascertaining means of Huddleston, 485 U.S. at inferences from conduct.” L. Ed. 2d at 780. often
The doctrine of chances demonstrates more act, likely it is that performs certain less Imwinkelried, innocently. Uncharged E. Miscon- defendant acted (1984). duct Evidence 5:05 § likelihood repetition The recurrence or act increases the isolation, might mens mind plausible of a rea or at fault. be innocently; accidentally single the defendant acted or However, in the easily could be on that basis. explained act misdeeds, act on an context of other the defendant’s takes entirely coincidence becomes light. different fortuitous abnormal, bizarre, unusual, im- objectively implausible, too telling believed. The coincidence becomes probable to be rea. evidence of mens omitted). (Chadbourn (footnotes See Evidence Wigmore,
Id. II § chances). 1979) specific examples of the doctrine of (illustrating rev. case, the court dire in the instant trial hearing After voir show “striking evidence tended to challenged found that Larry of the defendant’s husbands between deaths similarities” court found and the trial Stager. Specifically, Ford and Russell Larry concerning the death James concluded that “the evidence concerning striking similarities to Ford and would allegedly killings Mr. being both accidental Stager death *24 whether to determine to show jury say evidence for the and be [sic] intent, any any or preparation there of of proof plan or not is any killing.” more of accidental important but absence upon in this regard court its and conclusions findings trial based Ford, when death of concerning that evidence findings specific death, tended concerning Stager’s with the evidence Russell taken (1) show, alia, had husbands inter that each of defendant’s to (2) wound, in weapon a single gunshot as a result of died (3) weapons handgun, both case was a .25 caliber semi-automatic each (4) men were both protection, the defendant’s purchased were for (5) hours, early morning shot in the the defendant discovered both (6) victims their respective after shootings, defendant was the (7) victims, in last the immediate person of both company both defendant, in they victims died the bed that shared and (8) the defendant benefited from life insurance proceeds resulting from both deaths. The trial court further found and concluded that the evidence concerning Ford’s death was relevant and pro- bative probative any its value outweighed of danger unfair prejudice. Accordingly, the trial court concluded that the evidence concerning Ford’s death “should purpose be allowed for the of intent, any proof any of showing plan, any preparation absence of accident involved the shooting Stager of Mr. . . . can be admitted.” Smoak, 79, (1938),
In
v.
213 N.C.
IN
COURT
STATE
pursuant
to show
the defendant acted
tending
of the
defendant
328-29,
Finally,
259 S.E.2d
529.
to
Id. at
at
particular
a
motive.
is admissible if
tends to show
of other offenses
“[e]vidence
or
charged,
a
to commit the offense
plan
design
existence of
or
charged
goal
part
of which the offense
accomplish
329,
Essentially,
Id.
[5] error
The defendant also
that the evidence the
argues
presented regarding
support
of this
assignment
Larry Ford’s
complains
unnecessary details. The defendant
included
death
*26
v. STAGER
STATE
[329
N.C.
[278]
(1991)]
twenty
testimony from
introduced
the State
regard
this
witnesses,
who received the
operator
including
telephone
call,
in-
of different
personnel, employees
emergency
squad
rescue
Ford’s mother.
companies
surance
admissible.” N.C.G.S.
Generally,
relevant evidence is
“[a]ll
(1988).
8C-1,
may
counsel
pursue
402
The extent to which
Rule
§
witnesses is a matter
line of inquiry
questioning
a permissible
326
Coffey,
N.C.
the sound discretion of the trial court.
left to
Cf.
403). Here,
281,
we
no
Rule
detect
(applying
the evidence
[7]
Further,
regarding
the defendant contends that
Ford’s
death was
outweighed
probative
value of
danger
to exclude
required
and that the trial court was
prejudice
of unfair
Rule 403 of the North
Rules
it for that reason under
Carolina
(1988).
8C-1,
Whether to exclude
Rule 403
of Evidence. N.C.G.S. §
Rule 403 is a matter left to the sound discretion
evidence under
at
STATE N.C. —previously court made extensive discussed herein —and findings the probative concluded that value of the evidence outweighed any unfair to the prejudice defendant and that evidence was intent, plan, admissible to show or absence preparation of accident. and, defendant has not demonstrated abuse of discretion therefore, the trial will ruling court’s not be disturbed on appeal. Robinson, S.E.2d at 408.
[8] The defendant also argues that the defendant’s statements to Detective Buchanan concerning death of first husband *27 earlier, admissible, years ten even if were improper admitted for an After voir dire purpose. hearing to determine whether the evidence admissible, that, was counsel for the if argued defendant this evidence admitted, was the trial court should state purposes for which it was being jury admitted and instruct evidence only should be considered for a limited After purpose. making fact, ruled, findings of the trial court outside of the presence jury, that: The Court does find from in hearing motions this matter that the defendant is contending that the death of Russell Stager resulted as a result of an accidental and after shooting hearing arguments from the counsel for the State and defendant the Court is to rule this going evidence from this Detective by Buchanan as to statements Stager February made Barbara on 15, 1988, 5 April is in fact admitted into evidence over the strong objections of the defendant. that,
The argues by defendant its the trial court denied ruling, her request limiting jury concerning instructions purposes for which the evidence was The being admitted. defendant contends that the give failure to such instructions error. limiting was
The admission of which evidence is relevant and competent for a limited will purpose not be held error in the absence of request by the defendant for a v. limiting instruction. State (1988). Jones, 406, 322 368 844 N.C. S.E.2d “Such an instruction is not required specifically requested unless counsel.” State (1989) Chandler, 172, 182, 324 376 735 (emphasis N.C. S.E.2d added). Prior to the trial the voir dire ruling during hearing court’s admissibility to the testimony, of Buchanan’s counsel for the say, defendant did “I think then I am entitled to an instruction however, jury to the . . counsel never specifically requested such an instruction. At the end of the to the trial court argument N.C. stated, issue, you if with “Again, disagree counsel on this defense in, I ask you ... this then would
me and
do decide
to allow
I think
prepared
instruction which I have
but
Your Honor for an
myself
Defense
concluded
right
I’m
ahead of
now.”
counsel
getting
instruction, by renewing
asking
limiting
without
for a
argument,
his
statements
motion
limine to exclude evidence of
defendant’s
his
Thereafter,
trial
husband.
concerning the death of
first
and ruled
the evidence
findings
court made
and conclusions
was
returned
courtroom.
jury
was
then
admissible.
jury
its
ruling
At no time after the trial court made
request
to the courtroom did the defendant
was returned
jury
limiting
regard
the trial court
instruction
give
defendant,
having
specifical-
to the
failed
question.
at the time the evidence
ly request
limiting
tender a
instruction
admitted,
trial
failure to
is not entitled to have the
court’s
Short, 322
State v.
limiting
appeal.
instructions
reviewed
give
N.C;
Jones,
(1988);
DeLeonardo, 762, 340 S.E.2d 350 N.C.G.S. N.C. § (1986 1990).- Supp. Rule & Cum. present by trial court did not err case admitting husband, the evidence concerning the death of the defendant’s first Larry Ford. This assignment of error is without merit.
[9] By another assignment error, the defendant contends that by the trial court erred allowing play State to introduce and jury by for the an That audiotape. tape purportedly was made days Russell Stager three before he died and contained his private expressions of his fear of the defendant. defendant complains n audiotape was not properly authenticated and was not discovered until fourteen months after Russell’s death. The remarks on the included the audiotape following:
The last few nights, during sleep, Barbara has woke me up give me some kind of medication. I have not taken it. Last me night up gave she woke me what she said was but, aspirin two this was like 4:30 in the morning. She stood there to see if I took it. I I placed did not take it. it under the bed. She came back to check and I make sure had taken saying she wanted to drink I something from what was 7:00, drinking. normally This she morning, up gone today at 7:00 she She was still bed. said that she was going go to work at 8:00. Before I she was got up over around side, there on the like she I looking supposed- acts was for what ly January took last Now this night. night 28th, So, Thursday stayed night. looking there to see if I I had taken the stuff this it out of there morning. got . . although very very she was . close to see if I looking that, trying to retrieve it. She made the comment “You said, “Yeah, you.” didn’t take . . . those I I aspirins gave Well, I I Pharmacy did.” took the two to Eckerd’s capsules Now, they at Forrest Hills and said that it was sleeping pills. already if I was 4:30 in the asleep morning, why would somebody wake me me two up give sleeping pills. *29 one,
Barbara’s second husband. The first I don’t know happened according parents what but to his there was some accidentally play going supposedly, foul on. He shot himself Now, I pistol. their bedroom with a have no idea what on, really really when happened. went what She was there boys. My and so were the is did her happened question husband, Ford, accidentally Larry shoot himself. IN THE SUPREME COURT v. STAGER
STATE (Break tape music) in — I’m Sometimes just being paranoid
. . . about all this stuff. I wonder.
(break in tape music). — Wednesday January the 27th. night, Back to Barbara had me given something supposedly sinuses and some uh . . . aspirin supposedly Nuprin and some that was n uh . . . I morning up and about 5:00 that woke and I was my eyes, my terrible. I was real around feeling hurting bad really and I if me temples gave wonder what she was sinus medicine She ... I Nuprin. also also had a real bad this, case of the cottonmouth. Even after all when she woke actually I up give and saw was Pain she tried to me some more stuff which I wouldn’t take. really really
What I I I’m would ... hope being paranoid really about all this stuff that’s I going but wonder.
(Break —music) tape This is uh . . . . uh Stager January Russ . . . . . this is 29th ten minutes of two.
The remaining portions were introduced audiotape defendant and contained the following: years Also at one time a few I ago had to get post (bills office box because a lot of the mail to the house coming stuff)
and Now, seemed to be when disappearing got home first. only key I’ve got post one to this office box. For the every last couple weeks time I’ve turned around she’s taken key off the keyring supposedly gone to check the (December Now, mail herself. couple January) of months I haven’t even gotten says the bill from Visa which she she’s they called them and said uh . . just there’s been an . I don’t misunderstanding. myself why understand a person they wouldn’t send the bill if had sending year been it for a every month and missing why they all of a sudden would — is, my question why every miss. Here time I turn around key she is taking running over there to check the post something office box unless there’s in there she’s trying to hide cause that’s the reason I got post office box to
IN THE SUPREME COURT v. STAGER (1991)]
[329 with, start off so I I would make sure got all the mail and nothing got misplaced destroyed. ago
Years her On grandmother day died. funeral she supposedly had to go something. somewhere do I took one of the cars it. to wash When I was coming through back after washing the car and it filled I our getting up, saw other car county at the sitting stadium out there in the parking itself, So, lot all by nobody around. I went the armory across to and sat in that lot see parking waiting up. who came She came up some I guy. couldn’t see I great but did see they that were in the and making car out stuff like this. When I my went over there in car he off took and then she tried put it off me uh . . . . . . uh I giving wasn’t her Now, affection all and this kind of stuff. that’s pretty strange, doing day be it on the they’re gonna put your grand- mother in the ground, my opinion. Drive,
When we lived on Falkirk policeman numerous times were coming over there supposedly to serve some kind of Now, warrant on her for some bill she pay. didn’t that’s uh . . . pretty tough you’re considering that hiding from your which, and everything husband it would be hard to hide from law. money
She also took from WTIK when she worked there do didn’t with it what supposed she was do with it. work, It payment was like she but never did the which I try had to turn around and and reimburse them for some that. Also, at uh think ... I uh . . . it’s one of banks here in town that we get tried to a loan from knew loan, because of that even wouldn’t give give wouldn’t me why the reason but would not us the give loan. bank was over . . . NCNB on uh Duke I day Street. still to this reason, don’t know what she had done when supposedly she But, had worked there short time. her parents were sitting they there with me right give any wouldn’t us . . . why. answer Also at CCB First at one Union time money she had flip flopped some supposedly she had covered the bank. But what doing taking bank, . . . writing a from money check one taking out
STATE *31 obviously which that vice versa other to cover bank work. is not forth done money . back and was
Uh . . this jiggling being made and really which weren’t payments some for car car off because money pay to the up I had to come ready kinds of cain. to raise all the bank was the bank cards my on one of signed She name supposedly my really . . but was not name. . was admissible tape recording
The State contends that 8C-1, 803(3), mind exception the state of N.C.G.S. Rule under § However, hearsay argues that evidence to rule. the defendant of the victim’s state did tend show state mind not was irrelevant. mind Rule 803 states part: rule, hearsay even are not excluded following the declarant is available as witness:
though (3) Mental, Emotional, Physical or Condi- Existing Then then state existing tion. —A statement of declarant’s (such mind, emotion, sensation, physical condition intent, motive, feeling, pain, mental plan, design, health), memory bodily including but statement . . . . the fact remembered or believed prove or belief of mind is to show the victim’s state admissible tending Evidence to the so as the victim’s state of mind is relevant case long Meekins, 326 N.C. 392 S.E.2d hand. State v. (1990). crime “Any upon charged offered to shed light 695-96, 349. by the court.” Id. at 392 S.E.2d at should be admitted trial Here, directly on Stager’s Russell recorded statement bears time his with the defendant at about relationship killed him. Russell’s statement tends show to have alleged normal, It disprove he afraid the defendant. also tends existed between relationship the defendant contends loving Further, likelihood Russell’s statement tends refute two. slept he would with the defendant with a loaded have under his The victim’s state- pistol pillow. cocked semi-automatic ment, that he would not take “medication” from example, defendant, tends to show out of the something ordinary in the marital relationship, especially given that he later took this “medica- addition, tion” to a pharmacy to ascertain what was. statement corroborates at least one motive for the murder —the defendant’s money, borrowing without the victim’s knowledge, which she could not repay.
The victim’s recorded statement was relevant to refute the defendant’s contention that slept victim with a gun under his death, pillow on the night of his due to his fear of burglars. victim’s own recorded statement indicated that his preoccupation days three prior to his death was not fear of strangers; it was *32 reasons, fear of the defendant. For the foregoing Russell Stager’s state of mind at the time he recorded his statement tended to establish directly facts relevant to the issue of accident and to demonstrate a likelihood that his death was not an accident. The 803(3) tape recording was admissible under Rule as evidence tend- ing show the victim’s state of mind.
The defendant also argues that even if the tape recording 803(3), was admissible under Rule its probative value was out- and, thus, by weighed the danger prejudice of unfair its admission violated Rule 403. Whether to exclude evidence under Rule 403 is a matter left to the sound discretion of the trial court. State 268, 281, Here, Coffey, v. 326 N.C. 389 S.E.2d 54. the and, therefore, has not demonstrated abuse of that discretion the trial will ruling court’s not be disturbed on appeal.
The defendant also argues tape recording was inad- missible because it was not properly authenticated. Rule 901 of the North Carolina Rules of Evidence provides part: —
(a) General Provision. The requirement of authentication or identification as a condition precedent admissibility is by satisfied evidence sufficient support finding in question matter proponent what its claims. (b) By way only, by illustration and not Illustration. — limitation,
way of the following examples are of authentication or conforming identification with the rule: requirements of this
STATE N.C. voice, (5)Voice whether Identification of Identification. electronic mechanical or through or heard firsthand hearing upon based recording, opinion transmission it connecting any time under circumstances voice at speaker. the alleged 1990). (1986 8C-1, Cum. Supp. Rule 901 & N.C.G.S. § (1971),and other 181 S.E.2d.561 Lynch, In State v. Carolina Rules adoption of the North prior to cases decided Evidence, applied seven-pronged requirement this Court The were: requirements evidence. tape-recorded the admission of (1) and other- testimony legally obtained That the recorded competent; wise
(2) capable recording device was That the mechanical the time the properly testimony operating that was recorded; statement was
(3) the machine operator competent operated That properly;
(4) voices; identity the recorded (5) authenticity recording; accuracy (6) recorded and no entire statement was That defendant’s *33 made; additions, have since been or deletions changes, (7) recording has been custody manner in which The made. since it was preserved Toomer, Accord, 17, v. 311 e.g., 571. State
Id.
181 S.E.2d at
at
(1984)
case). However,
183,
since
(pre-Rules
out that
The Court of Criminal
[10]
seven-pronged
“
‘seven-pronged
Appeals of
test
test
Alabama,
Lynch
is now
has often
usually considered ob
example,
been
has
criticized.
pointed
solete,
. .
been abandoned
recordings,’ .
and ‘has
even for sound
317
in the better
reasoned cases in favor of a rule holding that sound
tapes like photographs are admissible when
they
a witness testifies
”
State,
are
sound.’ Molina v.
representations
reliable
subject
of the
(Ala.
1988)
701,
(citations omitted)
533 So. 2d
712
App.
Crim.
(quoting
Scott,
denied,
1987)),
Photographic Evidence
C.
cert.
1297 (Supp.
§
(1989).
1086,
489 U.S.
The record reflects was not that tape recording who that the voice on the testified from produced also witness Eckerd’s victim. concerning Hills who testified whether Pharmacy at Forest pills have identified. pharmacy victim come into the certain had *35 v. STAGER [329 N.C. (1991)] tend These facts to demonstrate that ample the defendant had time to tape discover introduce evidence which concerning was favorable to her case. The defendant has not shown how a helped way continuance would have her in any and has failed to any show of by abuse discretion the trial court. reasons,
For the foregoing we conclude that the trial court properly the tape admitted as evidence recording at trial. This of assignment error is overruled.
[14] By another assignment of error, the defendant argues the trial erred in admitting court videotaped defendant’s reenact ment of the of her shooting husband. We disagree.
The object defendant did not to the trial admission of the despite videotape, being by asked specifically trial court. Well, you The COURT: do oppose videotape] being [the into introduced evidence? No,
Mr. COTTER: sir. THE COURT: videotape] is introduced into evidence [The any without of objections the defendant.
The failure object defendant’s constitutes a waiver her right on appeal assign videotape error admission Black, during its use trial. State 308 N.C. 303 S.E.2d 10(b). (1983); N.C.R. P. App. defendant knowingly waived may rights by affirmatively have had in this regard ac- to the quiescing admission of as evidence. This videotape assign- ment of error is overruled. error,
By assignments other the defendant contends that trial erred admitting court tending evidence to show that the defendant was racially prejudiced, that the lied defendant issue, her husband about a matter unrelated to facts in the defendant intended to a psychiatrist consult after her husband’s death, and that telephoned defendant a young male several weeks after her husband’s death. defendant contends that this prejudicial. was irrelevant and We disagree. [15] Specifically, defendant complains Doris Stager’s testimony that once change said that she might her job lady because “she afraid the get black would context, job” only as her boss. Taken in part this statement was IN THE COURT SUPREME
STATE which the defendant recounting during Doris was of a conversation *36 day shooting. the the next the victim on before went over sat particularly because complained insignificant, The statement of issue in this case. related to race was at nothing testimony a concerning The also about complains defendant the victim young call made male telephone Wagoner, she to Chris vic- that two three weeks after the Wagoner testified coached. death, him. him she telephoned the defendant She told that tim’s motorcycle in her front parked because someone had upset the house. yard running she someone was around thought the call evidence jury The defendant that the could find argues likely in- males.” A more “suggestive young of behavior toward that to show that the victim had a legitimate ference is the call tended the Such an in- prowling fear that someone was around house. credibility to the defendant’s contention that ference would lend the he placed gun pillow the victim under because was afraid breaking Assuming arguendo, of into the house. error someone testimony was not to the defendant. prejudicial this [16] Stager, the defendant’s addition, the defendant mother, about a conversation complains testimony by had Doris week after the victim’s death. The defendant told defendant a seeing psychiatrist, that she intended to start but Doris Doris see psychiatrist suggested same that had defendant merely testimony this years argues a few earlier. defendant likely mental health. most inter defendant’s implicates would of this evidence is that shows the defendant pretation Assuming of her seeking be to deal with death husband. help testimony prejudicial this was not defendant. arguendo, error [17] Welch, the Finally, manager the defendant of WTIK radio station. Welch testified about complains of the testimony Harry 1982. Stager he had with Russell in the fall of a conversation had he that the defendant owed Welch testified that told victim $3,000 in commissions the radio station almost unearned not been there in months. Welch testified that employed she had when he “very teary-eyed” emotional and learned the victim became wife The defendant longer working his was no station. testimony subject matter of Welch’s into injected first by the recording of the made by introducing portions tape trial which Welch his death which contained matters about victim before Thus, testified. assuming arguendo, error the defendant was not prejudiced by the admission of evidence of. complained [18] By other assignments error, the defendant contends that testimony trial court erred that the' defendant admitting was calm morning on the death she gave victim’s and that away some after clothing day of his on the his We disagree. funeral.
Opinion
as
to the demeanor of a
criminal
Moore,
is admissible into evidence.
See State
276 N.C.
(1970).
“A may say witness man appeared that a intoxicated or angry or In the pleased. one sense statement conclusion a witness, sense, or the opinion of legal but within fact,’ the ‘matter meaning phrase, of as used evidence, law of it is not but is one the class of opinion, mentioned, things above which better as regarded are matters man, actions, appearance of fact. The expression, of a his his — — his things go conversation a series of the mental up make picture in the mind of the witness which knowledge leads to a certain, fact, which is if as and as much matter of as he testified, presented eyes, from evidence to his color hair, of person’s physical or other like nature.” fact of (1911) Leak, 643, 647, 567, State v. 156 N.C. 72 S.E. 568 (quoting (rev. McKelvey, J. Handbook of the 132 2d Law Evidence §“ 1907)). consistently ed. This Court has held that emotion ‘[t]he displayed subject on a occasion is a person given proper ” 132, 136, testimony.’ opinion Gallagher, for State v. 313 N.C. (1985) 873, 1, 326 S.E.2d 878 State v. 294 (quoting Looney, N.C. 14, (1978)). 612, 240 619 S.E.2d Here, testimony the defendant and was was calm riot crying shortly described emotional state after her husband killed, upon her demeanor based witnesses’ observations of evidence, at that time. evidence the defendant Such and the funeral, disposed day of her husband’s his personal effects after 322
STATE 278 N.C. circumstances light upon to shed tending amounted to evidence and, thus, in this case are relevant surrounding killing (1988). 8C-1, Rules 401 and 402 admissible. N.C.G.S. § the trial court erred [19] By another assignment by denying error, defendant’s the defendant motion argues dismiss a verdict support evidence was not sufficient to because State’s Stager. murder of Russell first-degree the defendant of the convicting We disagree. we stated previously,
As have dismissal, court
When
moves for
the trial
a defendant
whether there is substantial evidence
only
is to determine
charged
of the offense
and of
of each essential element
v.
the offense. State
being
perpetrator
(1982).
62, 65-66,
649,
Earnhardt,
Whether
296 S.E.2d
651
N.C.
ques
evidence is a
presented
constitutes substantial
law
Id. at
There evidence tending to show the defendant had it, of the weapon control she discharged before the victim. killing There was tending also evidence to show victim feared to her prior defendant due actions him. toward Other evidence gave tended show that the defendant inconsistent versions of the “accident” to Dr. police, Franklin Honkanen and the and that both of those physical versions were inconsistent with the evidence. motive, Additionally, there was substantial evidence of in the form of evidence that beneficiary victim’s sole death, a very money would receive substantial sum of his money badly, that she needed and that she had been borrowing money without knowledge the victim’s concealing fact Further, from him. the defendant’s first died in husband had manner similar to the strikingly manner which victim died. The trial court not err concluding did that there was substantial circumstantial evidence tending show that the defendant inten- tionally killed victim with malice after premeditation and delibera- tion. Therefore err the trial court did not denying defendant’s dismiss, motion to assignment this of error is merit. without [20] during By another assignment of capital sentencing proceeding *39 error, the defendant case, the trial court argues COURT IN THE SUPREME STATE McKoy error in violation of constitutional committed reversible (1990), Carolina, 433, 108 by instruct Ed. 2d 369 494 U.S. L. v. North unanimously find the existence it must ing jury that cir could consider juror circumstance before mitigating The State concedes sentencing decision. capital cumstance in a circumstances unanimity concerning mitigating instruction that the that the constitutionally McKoy, argues defective under but disagree. was harmless. We error the con- conducted at sentencing proceeding
During capital trial, jury gave the trial court clusion of the defendant’s its returning recommendations recording form to use printed “Issues and Recommenda- The form was entitled punishment. as to four sections labeled “Issue tion to Punishment” and contained “Issue Four.” through One” you unanimously find on the form was: “Do from Issue One doubt, evidence, one or beyond a reasonable the existence of added.) (Emphasis circumstances?” following aggravating more of the only aggravating
The trial one circumstance court submitted consideration, committed for “whether this murder was jury’s circumstance jury aggravating found this pecuniary gain?” to exist. you unanimously find from
Issue Two on the form was: “Do following mitigating the existence of one or more the evidence added.) five court (Emphasis circumstances?” trial submitted circumstances as follows: possible mitigating (1)The fine children? defendant has raised two (2)The member? helpful is an church active (3)The many people? been a friend to good defendant is and has (4)The criminal record? significant defendant has no from the arising circumstance or circumstances (5)Any other value. mitigating to have you jury evidence which deem *40 325 STATE v. STAGEE (1991)] 278 N.C.
[329 The jury through found circumstances one four to exist. The the fifth or jury rejected mitigating “catchall” circumstance. you beyond Issue Three on the form was: “Do unanimously find a reasonable doubt that the or mitigating circumstance circumstances is, are, by you found insufficient outweigh aggravating added.) you.” by (Emphasis jury circumstances found answered in the affirmative. you beyond
Issue Four read: “Do unanimously find a reasonable by you doubt that the circumstance found aggravating sufficient- ly imposition substantial call for the of the death when penalty considered with the circumstance or mitigating circumstances found by you? When making this final balance in the fourth issue each juror may consider mitigation juror circumstances by determined to exist whether preponderance of the evidence or not that circumstance is to exist unanimously found added.) jury in Issue 2.” (Emphasis jury answered this issue and, thereafter, in the affirmative recommended that the defendant be sentenced to death. assigns
The defendant first as error that Issue Two and Issue form, Three on the and the related sentencing given instructions court, by the trial contained error. The State concedes McKoy unanimity that the concerning mitigating instructions circumstances set out Issue Two and Issue Three and related oral instructions virtually were McKoy. identical to the instructions found defective in
In McKoy,
Supreme
of the United States held un
Court
jurors
constitutional our
must
requirement
capital cases
unanimously
agree upon
mitigating
existence of a
circumstance
before
See State
considering
during sentencing deliberations.
—
McNeil,
106,
denied,
v.
327
395 S.E.2d
cert.
N.C.
U.S.
(1990).
—,
(1) children”; fine that “the that “the defendant has raised two (3) member”; that “the helpful is an active and church defendant (4) many good people”; is and has been a friend to defendant (5) record”; any no criminal “other significant “the defendant has or circumstances” or “catchall” [mitigating] mitigating circumstance circumstance. jury possible mitigating found the first four circumstances Thus, exist. if substantial evidence was introduced at trial to any circumstance under the
support finding mitigating a other “catchall,” say it that the error was McKoy would be difficult to unanimity requirement harmless. This is so the erroneous because which may precluded juror weighing have from a circumstance exist, found to and thereafter particular juror concluding all of the circumstances considered mitigating together outweighed McNeil, 394, circumstance. See N.C. at aggravating S.E.2d at 110. review of the record reveals substantial evidence from
Our juror reasonably which a have found the fifth or “catchall” might statutory circumstance submitted to exist. For mitigating example, worked substantial evidence tended to show that defendant like young people with numerous and acted a mother to children Galloway, other than her own. a member of the defendant’s Carol babysit church testified that the defendant would often congregation, Galloway’s for her. The defendant would take son to McDonald’s Meal, buy toys him him get Happy park. and take to the Burch, University, Gretta a student at Wake Forest testified that addition, the defendant “like a second mom.” In Burch testified away while that the defendant had written letters she was the defendant for advice. depend at school and that she could Further, evidence tended to show that the defend- substantial with law enforcement officials in their cooperated investigation ant with all their willingly complied requests. of this case and her account of what willingly videotape reenacted on day on the she killed her husband. happened evidence, beyond we conclude a reasonable Given cannot prevent that the constitutional error committed did not one doubt jurors or more of the finding statutory from “catchall” mitigating result, circumstance to exist and giving mitigating value. As a doubt, say we are beyond unable particularly reasonable found, light actually circumstances mitigating error an juror finding from an preventing mitigating additional circumstance in this did not prevent jury case from life im- recommending prisonment Huff, rather than death. See 328 N.C. (1991). 402 S.E.2d The State also that even argues McKoy error though occurred Three, Two and Issues error was cured trial court’s to the modification written and oral instructions Issue pertaining Four. The record gave reflects that trial court an instruc- oral tion explaining fourth on the the jury issue form follows: given you
In deciding this case are not to consider the aggravating alone. circumstances You must consider them con- standing *42 with mitigating by you. nection found Again, circumstances issue, making when this final balance in fourth juror the each may any mitigation juror consider circumstance in that determined to exist whether or not that circumstance is found unanimously by to the jury exist in issue two. that, instruction,
The
argues
by
the additional
each member
of the
was
told
jury
specifically
that he or she was not precluded
from considering and
effect to a
giving
mitigating circumstance
which he
be
by
preponderance
found to
shown
a
evidence when
a
as to the
making
recommendation
defendant’s
sentence. Thus the State contends
McKoy
error was
harmless due
the curative
Issue
instructions
connected with
disagree
substantially
Four. We
for reasons
similar to those set
Huff,
forth in
rejected
nearly
wherein we
identical argument.
541,
Huff,
doubt
jurors
finding
considering
or more
from
preclude
did not
one
Huff, 328
“any
in
other circumstances.”
mitigation
beyond
we
reasonable doubt
IN SUPREME COURT have been if jurors reached the individual permitted had been to consider mitigating unanimously circumstances not found. State (1991) v. Quesinberry, 328 N.C. (Meyer, S.E.2d J., dissenting). The burden is to prove beyond jury reasonable doubt that the would nonetheless have recommend- if ed death even juror each individual had been allowed to consider all of the mitigating he individually circumstances which or she found present. to be Id.
My review evidence in this case reveals that there was little or no evidence presented jury by to the which a reasonable juror could find the “catchall” mitigating circumstance.
Defendant cites the following possible mitigating cir- instructed, jury, cumstances which the (a) if properly could have found: educated, she encouraged, and worked with numerous young own; people acted as a mother toward children besides her (b) she worked most of her life to the support contribute to (c) family; her cooperated she with state officials in investigating (d) the case and with complied requests; their willingly participated community charitable and activities outside her church.
A. Acted as a mother to other children. circumstance,
The majority, in support of this notes that a member of defendant’s church testified that would often her babysit for take buy toys. her son to him McDonald’s and Additionally, a student testified that defendant had written her letters testimony and would her This give advice. tended to support no other mitigating circumstance than one which the jury found exist, i.e., good “defendant is and has been a friend to many people.”
B. Worked most her support family. life A review of the record reveals that there is no defendant worked most of her family’s life and contributed to her evidence, fact, support. to the'contrary shows that defendant continuously borrowing money. C. with state Cooperation officials.
Here, the majority notes that defendant cooperated law investigation enforcement officials their and willingly complied *44 by reenacting on videotape happened account of what ROWLAND
WOODSON v. voluntarily did Although her husband. day she killed videotaped in the cooperated enforcement officials with law speak reenactment, her purpose strongly suggests the evidence murder. surrounding the them as to the facts so was to mislead doing outside church. activities community D. Charitable was an “active reveal that defendant The record does member,” jury which the circumstance mitigating church helpful suggest is no evidence in the record to exist. There found community activities outside in charitable and defendant engaged of church. reasonably a juror I no evidence from which find
Simply put, cir- any mitigating four or other any found of these might have in the considered might which have been cumstances to exist McKoy during I error occurred catchall. While concede beyond reasonable doubt. harmless proceeding, was sentencing sentence death sentencing proceeding. I no other error in the find passion, the influence of imposed was not under prejudice, to the sentence is not arbitrary disproportionate factor and other of death. I vote to affirm the sentence in similar cases. imposed WOODSON, Alford Administrator of the Estate of Thomas SUSIE MAE Sprouse, ROWLAND; v. NEAL MORRIS ROWLAND Deceased MORRIS JONES, INC.; UTILITY, INC.; and PINNACLE ONE DAVIDSON & Partnership ASSOCIATES, a North Carolina 584A88
No. (Filed 1991) August — (NCI3d)— compensation § 87 workers’ 1. Master and Servant compensation cave-in —intentional tort —workers’ trench exclusive by wrongful grant- in a death action
The trial court erred employee whose summary for a subcontractor ing judgment inten- employer When an collapsed. killed when a trench substantially it is cer- knowing in misconduct tionally engages an employees injury cause serious or death tain to misconduct, that employee, or killed injured employee estate, may pursue personal representative or the