State v. McLemore , 343 N.C. 240 ( 1996 )

470 S.E.2d 2 (1996) 343 N.C. 240

STATE of North Carolina
v.
Archie Furman McLEMORE, III.

No. 56A95.

Supreme Court of North Carolina.

May 10, 1996.

Michael F. Easley, Attorney General by Mary D. Winstead, Associate Attorney General, for the State.

David G. Belser, Asheville, for defendant-appellant.

WEBB, Justice.

The defendant first assigns error to the denial of his motion to dismiss the charge of robbery with a dangerous weapon. We believe this assignment of error has merit.

The evidence in this case was insufficient to show that the defendant used a weapon to force the victim to give him her car. The record is devoid of any evidence that the defendant's use of a firearm preceded or was concomitant with his taking possession of the victim's Cadillac or induced the victim to part with her property. See State v. Richardson, 308 N.C. 470, 302 S.E.2d 799 (1983). In addition, there is no evidence that the taking of the Cadillac was part of a single continuous transaction that involved the use of a firearm. See State v. Hope, 317 N.C. 302, 345 S.E.2d 361 (1986). To the contrary, evidence elicited from the State's own witnesses indicated that the defendant had permission to use the car and had often done so in the past to visit his wife and probation officer in Tennessee and in working with his mother in her business. The State concedes in its brief that the defendant had the victim's consent on previous occasions to drive the victim's Cadillac. The State's evidence shows no more than that the defendant already had possession and use of the vehicle before the killing and retained the vehicle afterwards.

For the foregoing reasons, we arrest judgment on the conviction and sentence for robbery with a dangerous weapon.

The defendant's next two assignments of error concern alleged hearsay testimony of two witnesses. In his second assignment of error, the defendant contends that the admission of statements that the victim made to Fran Jones in mid-May was unduly prejudicial and violated his Sixth Amendment right to confrontation. Fran Jones, an employee at the North Carolina Department of Environment, Health, and Natural Resources, testified at trial that the victim spoke with her about her intention to make changes in her will, retirement account, and hospitalization plan. The victim allegedly declared her intention to do the following: (1) change the beneficiary of her retirement account from the defendant as sole beneficiary to the defendant and his sister as co-beneficiaries; (2) change her hospitalization plan to cover herself only, and not the defendant; and (3) change her will in some unspecified way. The defendant also contends that the trial court improperly admitted the testimony of Melissa McLemore, the victim's daughter, that shortly before the killing, the victim told her in a phone conversation that she was angry with the defendant and was planning to "lay down the law," to give the defendant a choice between living with her and fulfilling his responsibilities or moving back in with his wife.

The defendant apparently concedes that the statements to Fran Jones fell under N.C.G.S. § 8C-1, Rule 803(3), but argues that the statements were not admissible because they were not relevant to the case. Under Rule 803(3), hearsay evidence may be admitted to show the declarant's "then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health)." N.C.G.S. § 8C-1, Rule 803(3) (1992). Evidence tending to show the victim's state of mind is admissible so long as the victim's state of mind is relevant to the case and its probative value is not outweighed by potential prejudice to the defendant. State v. Stager, 329 N.C. 278, 314, 406 S.E.2d 876, 897 (1991). The victim's state of mind is relevant to show the status of the relationship between the victim and the defendant. State v. Alston, 341 N.C. 198, 230-31, 461 S.E.2d 687, 704 (1995), cert. denied, ___ U.S. ___, 116 S. Ct. 1021, 134 L. Ed. 2d 100 (1996); State v. Cummings, 326 N.C. 298, 313, 389 S.E.2d 66, 74 (1990). Furthermore, we recently held that a victim's state of mind is relevant if it relates directly to circumstances giving rise to a potential confrontation with the defendant. State v. Corbett, 339 N.C. 313, 332, 451 S.E.2d 252, 262 (1994).

In the case sub judice, evidence that the victim intended to decrease the financial benefits flowing to her son, as well as evidence that she was angry and intended to give her son an ultimatum, was relevant to show the status of their relationship just prior to the victim's death. Both statements also were relevant as they related to a potential confrontation with the defendant. Whether the defendant knew of the statements is irrelevant. Such evidence supported the State's theory of motive for the killing and was properly admitted. See State v. Greene, 324 N.C. 1, 16, 376 S.E.2d 430, 440 (1989), sentence vacated on other grounds, 494 U.S. 1022, 110 S. Ct. 1465, 108 L. Ed. 2d 603 (1990).

The defendant also assigns error to the admission of other hearsay statements made by the victim to her daughter just days before the killing. The defendant argues that certain of the statements were unfairly prejudicial to him.

The defendant again argues the impropriety of admitting statements the victim made during the 23 May 1993 conversation concerning her intention to "lay down the law." As discussed above, this statement was admissible under Rule 803(3). During a 29 May 1993 conversation, the victim, who was at the time sick with asthmatic bronchitis, stated that the defendant had asked her to call to tell her that if she died of the condition, it was not his fault. The witness testified that the defendant was in the room with the victim at the time. This testimony was not admitted to prove the truth of the matter asserted and was therefore not hearsay. N.C.G.S. § 8C-1, Rule 801(c) (1992). Assuming that the evidence should not have been admitted, its relevance was so remote that its admission was harmless. N.C.G.S. § 15A-1443(a) (1988). Finally, Melissa McLemore testified to several conversations she had with the decedent between Christmas of 1992 and the date of her death concerning financial matters. The defendant argues that the absence of evidence as to exactly when these conversations occurred renders their admission even more objectionable than the admission of the conversation with Fran Jones. In light of the admissibility of the latter conversation, the admission of the victim's statements to her daughter concerning her financial matters was proper.

These assignments of error are overruled.

The defendant next assigns error to the admission of testimony of Archie McLemore, Sr., the defendant's father, and H.B. Oxner, a detective with the City of Asheville Police Department. These two witnesses were allowed to testify that Robin McLemore had told them of the telephone call the defendant had made to her in which he told her he had shot his mother and asked her to call his father.

The defendant made a motion to suppress the testimony of Det. Oxner, and a hearing was held outside the presence of the jury. Robin McLemore stated at the hearing that she would not testify against her husband. The court held that the statement of the defendant to his wife was meant to be conveyed to the defendant's father and the police and was not a confidential communication.

The defendant contends that the statement he made to his wife was a confidential communication and should not have been introduced against him. He says further that if we should hold it was not a confidential communication, it was hearsay and should not have been admitted.

An extrajudicial confidential statement made by one spouse to another may not be used against the spouse who made the statement. State v. Rush, 340 N.C. 174, 182, 456 S.E.2d 819, 823 (1995). In this case, the defendant told his wife he had shot his mother and asked her to tell his father and ask him to call the police. He did not intend that his statement to his wife be confidential. He told her specifically to let other people know what he had told her. The testimony of Det. Oxner and Archie McLemore, Sr. as to what Robin McLemore said the defendant told her was admissible unless it was barred by the hearsay rule.

The testimony of Det. Oxner and Archie McLemore, Sr. that Robin McLemore told them the defendant said that he had shot his mother was hearsay because it was introduced to prove the truth of the matter asserted, that the defendant shot his mother. N.C.G.S. § 8C-1, Rule 801(c) (1992). It was error to admit the testimony of either witness unless his testimony could be admitted under an exception to the hearsay rule.

The testimony of Archie McLemore, Sr. fits easily under N.C.G.S. § 8C-1, Rule 803(2), the excited utterance exception to the hearsay rule. Robin McLemore called her father-in-law approximately three minutes after she had talked to her husband. The telephone conversation in which the defendant told his wife he had shot his mother was undoubtedly a startling event. Robin McLemore would have been under its influence three minutes after it occurred. There is little likelihood that she fabricated this message to her father-in-law. This testimony by Archie McLemore, Sr. was admissible. See State v. Sneed, 327 N.C. 266, 272, 393 S.E.2d 531, 534 (1990).

As to the testimony of Det. Oxner, we hold it was admissible under N.C.G.S. § 8C-1, Rule 801(d)(C). This rule provides in part:

A statement is admissible as an exception to the hearsay rule if it is offered against a party and it is ... a statement by a person authorized by him to make a statement concerning the subject.

N.C.G.S. § 8C-1, Rule 801(d)(C) (1992). In this case, the statement was introduced against the defendant, and he had authorized Robin McLemore to make a statement concerning the subject.

Doubt has been raised as to the continuing validity of the rule that agency may not be proven by the hearsay statement of the agent. See 2 Kenneth S. Broun, Brandis and Broun on North Carolina Evidence § 201 (4th ed.1993). However, if the rule applies that the hearsay statement of an agent cannot be used to establish the agency, see Jocie Motor Lines, Inc. v. International Broth. of Teamsters, 260 N.C. 315, 327, 132 S.E.2d 697, 705 (1963), we believe the rule is satisfied by proof of Robin McLemore's authority to make the statement through the testimony of Archie McLemore, Sr. Although Mr. McLemore used hearsay testimony to prove Robin McLemore's authority, we have held it was properly admitted under another exception to the hearsay rule. It was therefore properly before the jury as proof of Robin McLemore's authority.

This assignment of error is overruled.

The defendant next assigns error to the denial of his motion to dismiss the charge of first-degree murder. He was found guilty based on the felony murder rule and on the theory of premeditation and deliberation. We have held that there was not sufficient evidence to convict the defendant of the underlying felony of robbery with a dangerous weapon. For this reason, the conviction of felony murder cannot stand. Although the defendant should not have been convicted of felony murder, the verdict cannot be disturbed if the evidence supports a conviction based on premeditation and deliberation. See State v. Thomas, 325 N.C. 583, 593, 386 S.E.2d 555, 560-61 (1989).

The defendant did not make any statement as to how the killing occurred other than the statement to his wife. The victim was shot several times in the head and back and was stabbed in the back. The trigger on the rifle found to have fired the casings at the scene had to be pulled each time the weapon was fired. These repeated assaults are evidence that the defendant intended to kill his mother and did so after premeditation and deliberation. State v. Austin, 320 N.C. 276, 357 S.E.2d 641, cert. denied, 484 U.S. 916, 108 S. Ct. 267, 98 L. Ed. 2d 224 (1987). There is also no evidence that the victim had a weapon or offered any threat to the defendant. The victim was unarmed and lying in her bed wearing headphones when she was killed. This is evidence that there was no provocation for the shooting of defendant's mother. This evidence was sufficient for the jury to find the murder of defendant's mother was with premeditation and deliberation. State v. Truesdale, 340 N.C. 229, 456 S.E.2d 299 (1995); State v. Bullard, 312 N.C. 129, 322 S.E.2d 370 (1984).

This assignment of error is overruled.

The defendant next assigns error to the denial of his motion to dismiss the charges of financial transaction card theft, N.C.G.S. § 14-113.9(a)(1) (1993), and financial transaction card fraud, N.C.G.S. § 14-113.13(a)(1) (1993). He contends the State did not prove he did not have the consent of his mother to use the card. We believe this assignment of error has merit.

There was no direct evidence that defendant did not have permission to use the card. The defendant knew the correct combination of numbers to receive money from the machine. He must have learned this combination from his mother, which shows she could have allowed him to use the card. He used the card at least two days before the death of his mother, which shows he had the card in his possession while his mother was alive, and there is no indication that she objected to his having it. We hold that there was not substantial evidence from which the jury could find the defendant did not have permission to use the card. We arrest judgment on the charges of financial transaction card theft and fraud.

In his last assignment of error, the defendant contends there was error in the charge on robbery with a dangerous weapon. We have arrested judgment on this offense, and this assignment of error is moot.

NO. 93-CRS-4012, ROBBERY WITH A DANGEROUS WEAPON: JUDGMENT ARRESTED;

NO. 93-CRS-57506, FIRST-DEGREE MURDER: NO ERROR;

NO. 93-CRS-4011, FINANCIAL TRANSACTION CARD THEFT AND FRAUD: JUDGMENTS ARRESTED.