IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA15-278
Filed: 15 March 2016
Guilford County, No. 12CRS086543
STATE OF NORTH CAROLINA
v.
LARRY COOK, Defendant.
Appeal by defendant from judgment entered on 23 May 2014 by Judge A.
Moses Massey in Superior Court, Guilford County. Heard in the Court of Appeals on
23 September 2015.
Attorney General Roy A. Cooper III, by Special Deputy Attorney General David
P. Brenskelle, for the State.
Michael E. Casterline, for defendant-appellant.
STROUD, Judge.
Larry Cook (“defendant”) appeals from a judgment entered on a jury verdict
finding him guilty of first-degree murder. Defendant argues that (1) his trial counsel
rendered ineffective assistance of counsel; and (2) the trial court erred in admitting
hearsay testimony of the victim’s sister. We find no error.
I. Background
In 2007, defendant approached Brittney Turner (“the victim”) at a bus stop and
offered to give her money for lunch. Brittney accepted, and the two began a romantic
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Opinion of the Court
relationship which lasted for the next five years. Brittney allowed defendant to
borrow her car until 15 August 2012, when the car overheated while defendant was
driving it. While Brittney was at work, defendant and another man attempted to fix
the car at the house of Brittney’s mother, Pamela Turner, but they were unsuccessful.
Pamela and Daisha Turner, the victim’s sister, dropped off defendant at his residence
at a motel. That night, while Pamela was at work, Brittney and Daisha stayed at
Pamela’s house. During this time, defendant made numerous threatening phone calls
to Brittney, and Brittney told Daisha that she was afraid of defendant.
The next morning, defendant repeatedly called Pamela to tell her that he was
hungry. After Brittney and Pamela had run some errands, Brittney, Pamela, Daisha,
and John Turner,1 Daisha’s four-year-old son, drove to defendant’s residence at the
motel to deliver some groceries and the clothes that defendant had left in Brittney’s
car. After Pamela parked the car, Brittney grabbed defendant’s clothes, walked alone
to defendant’s door, and knocked on his door. Defendant opened the door and,
without warning, began repeatedly stabbing Brittney in the neck with a screwdriver
and a knife. Pamela and Daisha immediately ran to Brittney’s aid. Defendant
stabbed Pamela in the neck while Brittney and Daisha ran toward the motel lobby.
Defendant chased Brittney into the motel lobby and continued stabbing her there.
Pamela and Daisha again ran to Brittney’s aid. Defendant stabbed Pamela in her
1 We use a pseudonym to protect the identity of the juvenile.
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Opinion of the Court
abdomen twice and stabbed Daisha in her neck while Brittney ran to the highway to
stop a car for help. After Brittney stopped a car on the highway, she collapsed,
succumbing to her numerous injuries. During these events, John was running
around in the motel parking lot. While Pamela grabbed John and placed him back in
her car, defendant walked up to her car, slit her tires, and broke her car windows and
then walked back up to his room.
On 1 October 2012, a grand jury indicted defendant for first-degree murder
and two counts of assault with a deadly weapon with intent to kill inflicting serious
injury. See N.C. Gen. Stat. §§ 14-17, -32(a) (2011). Before trial, defendant admitted
that he had killed Brittney Turner and was culpable for “some criminal conduct”
during an inquiry pursuant to State v. Harbison, 315 N.C. 175, 337 S.E.2d 504 (1985),
cert. denied, 476 U.S. 1123, 90 L. Ed. 2d 672 (1986). At trial, both Pamela Turner
and Daisha Turner testified, and the State proffered video recordings of defendant’s
attack, taken from the motel’s surveillance system. On 23 May 2014, the jury
convicted defendant of first-degree murder under theories of both premeditation and
deliberation and felony murder. The jury also convicted defendant of assault with a
deadly weapon with intent to kill inflicting serious injury with respect to Pamela
Turner and assault with a deadly weapon inflicting serious injury with respect to
Daisha Turner. The trial court sentenced defendant to life imprisonment without
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parole for the first-degree murder conviction and arrested judgment on defendant’s
other convictions. Defendant gave timely notice of appeal.
II. Ineffective Assistance of Counsel (“IAC”)
Defendant argues that his trial counsel rendered ineffective assistance of
counsel, because in closing argument, his trial counsel (1) stated that he was not
advocating that the jury find defendant not guilty; and (2) “repeatedly emphasiz[ed]
the dreadfulness of the crime[s].”
A. Concession of Guilt
Defendant argues that his trial counsel’s statement in closing argument that
he was not advocating that the jury find defendant not guilty exceeded the scope of
the consent he gave during the Harbison inquiry. “[I]neffective assistance of counsel,
per se in violation of the Sixth Amendment, has been established in every criminal
case in which the defendant’s counsel admits the defendant’s guilt to the jury without
the defendant’s consent.” Harbison, 315 N.C. at 180, 337 S.E.2d at 507-08.
In Harbison, the defendant, who was charged with murder, “steadfastly
maintained that he acted in self-defense” throughout the trial. Id. at 177, 337 S.E.2d
at 506. But in closing argument, his counsel, without his knowledge or consent,
“express[ed] his personal opinion that [the defendant] should not be found innocent
but should be found guilty of manslaughter.” Id., 337 S.E.2d at 506. Our Supreme
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Court held that trial counsel had rendered per se ineffective assistance of counsel for
the following reason:
[T]he gravity of the consequences demands that the
decision to plead guilty remain in the defendant’s hands.
When counsel admits his client’s guilt without first
obtaining the client’s consent, the client’s rights to a fair
trial and to put the State to the burden of proof are
completely swept away. The practical effect is the same as
if counsel had entered a plea of guilty without the client’s
consent. Counsel in such situations denies the client’s
right to have the issue of guilt or innocence decided by a
jury.
Id. at 180, 337 S.E.2d at 507.
Similarly, in State v. Matthews, in closing argument, the defendant’s trial
counsel argued that the jury “ought not to even consider” acquitting the defendant
but that they should find the defendant guilty of second-degree murder. State v.
Matthews, 358 N.C. 102, 106, 591 S.E.2d 535, 539 (2004). The defendant moved for
appropriate relief based on ineffective assistance of counsel, but the trial court denied
the motion, because it concluded that the “defendant [had] implicitly allowed his trial
counsel to concede his guilt” by consenting to his counsel’s overall trial strategy “to
convince the jury that [the] defendant was guilty of something other than first degree
murder” and because his IQ was high. Id. at 105-08, 538-40. Our Supreme Court
disagreed with the trial court and held:
For us to conclude that a defendant permitted his counsel
to concede his guilt to a lesser-included crime, the facts
must show, at a minimum, that defendant knew his counsel
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Opinion of the Court
were going to make such a concession. Because the record
does not indicate defendant knew his attorney was going to
concede his guilt to second-degree murder, we must
conclude defendant’s attorney made this concession
without defendant’s consent, in violation of Harbison.
Id. at 109, 591 S.E.2d at 540.
In contrast, in State v. McNeill, the defendant stipulated in writing that he
“did inflict multiple stab wounds” on the victim and that “these wounds caused her
death.” State v. McNeill, 346 N.C. 233, 237, 485 S.E.2d 284, 286 (1997) (brackets
omitted), cert. denied, 522 U.S. 1053, 139 L. Ed. 2d 647 (1998). The trial court
conducted a Harbison inquiry and determined that the defendant had “knowingly,
voluntarily, and understandingly consented to the stipulation[.]” Id. at 238, 485
S.E.2d at 287. In closing argument, the defendant’s counsel argued that “this is not
a case of first degree murder; it’s a case of second degree murder,” and that counsel
“has the permission of [the] defendant to tell you that he’s guilty of second degree
murder.” Id. at 237, 485 S.E.2d at 286 (brackets omitted). The defendant on appeal
argued that his trial counsel had rendered ineffective assistance of counsel under
Harbison, because his “stipulation was not intended to be a concession to second-
degree murder.” Id., 485 S.E.2d at 286. Our Supreme Court rejected the defendant’s
argument and distinguished Harbison:
Harbison is distinguishable. Significantly, there the
defendant claimed self-defense. By contrast, defendant
here stipulated in writing to having stabbed the victim and
proximately caused her death. Second-degree murder is
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the unlawful killing of another human being with malice
but without premeditation and deliberation. The intent
necessary to support a conviction for second-degree murder
is the intent to inflict the wound which produces the
homicide. Indeed, malice is presumed where the defendant
intentionally assaults another with a deadly weapon,
thereby causing the other’s death. The stipulation
defendant entered concedes each of these elements and
therefore supports a verdict of second-degree murder. In
arguing in accord with defendant’s stipulation, defense
counsel cannot be said to have rendered ineffective legal
assistance.
Id. at 237-38, 485 S.E.2d at 287 (citations omitted). Our Supreme Court concluded:
“Where, as here, a defendant stipulates to the elements of an offense, defense counsel
may infer consent to admit defendant’s guilt of that offense.” Id. at 238, 485 S.E.2d
at 287.
Similarly, here, the trial court conducted the following Harbison inquiry:
THE COURT: ....
Your lawyer, Mr. Carpenter, has indicated this
morning that in his—in jury selection that he intends to
concede or admit in front of the jury that, if I understood
him correctly—
And please don’t hesitate to interrupt me, Mr.
Carpenter, if I say something that indicates to you that I
misunderstood what you were saying.
—but as I understand it, [defendant], your lawyer is
intending to admit during jury selection that you killed [the
victim], and I don’t know if he’s going to go into—if he’ll—
during jury selection what questions might arise about lack
of mental capacity, but with the understanding that the
defense, then, during the case will be that you lacked the
mental capacity to form the intent to premeditate and to
deliberate, and, therefore, you would not be guilty of first
degree murder. Is this—has Mr. Carpenter discussed with
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you this strategy?
DEFENDANT: Yes, sir.
THE COURT: And do you agree with it?
DEFENDANT: Yes, sir.
THE COURT: Do you understand that, even if Mr.
Carpenter recommends this, that you’re not bound by his
recommendation? Do you understand that if you feel that
nothing should be admitted that Mr. Carpenter would not
be allowed to admit anything, that that’s your—ultimately,
you—I encourage you to have considered the advice of your
lawyer, but do you understand ultimately that is your
decision and your decision alone as to whether any element
of any crime is admitted to the jury? Do you understand
that?
DEFENDANT: Yes, sir.
THE COURT: And have you given your consent and
do you still give your consent for your lawyer to make that
admission before the jury during opening statements
and/or during jury selection?
DEFENDANT: Yes, sir.
THE COURT: Do you understand that if he makes
that admission that it makes it very likely that the jury
may find you guilty of some offense?
DEFENDANT: Yes, sir.
THE COURT: Thank you, [defendant]. You may be
seated.
Based upon my inquiry of [defendant], I find as a fact
and conclude as a matter of law that [defendant] has
knowingly, intelligently, and voluntarily, and with full
knowledge and awareness of the possible consequences,
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Opinion of the Court
agreed and consented to a trial strategy whereby his
attorney, Mr. Carpenter, acknowledges the defendant’s
culpability for some criminal conduct in the actions now on
trial, and that [defendant] has made this decision after
having been fully advised and [apprised] of the possible
consequences of such a strategy.
(Emphasis added.)
In closing argument, defendant’s counsel stated:
With the mental health issues that we presented to
you, ladies and gentlemen, today, are we saying to you that
[defendant] committed no crime and he should somehow
walk, or something to that effect? Absolutely not.
On a charge of first-degree murder, you’ll also
receive a second charge of second-degree murder, also a
very serious felony charge. Those will be the two charges
for your consideration for the homicide.
(Emphasis added.)
Like in McNeill, defendant here “knowingly, intelligently, and voluntarily, and
with full knowledge and awareness of the possible consequences” admitted that he
had killed the victim and that he had “culpability for some criminal conduct[.]” See
id. at 237-38, 485 S.E.2d at 286-87. Defendant’s counsel’s trial strategy was to
convince the jury that defendant lacked the mental capacity necessary for
premeditation and deliberation and was therefore not guilty of first-degree murder.
Defendant’s counsel called only two witnesses, both of whom were psychologists and
testified as expert witnesses. The first expert witness opined that defendant suffered
from a mild neurocognitive disorder, and the second expert witness opined that
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Opinion of the Court
defendant “lacked the mental capacity to consider the consequences of his behavior
when he killed [the victim.]” By admitting that he killed the victim and that he was
guilty of “some criminal conduct[,]” defendant conceded that he was guilty of a
homicide offense. See id. at 238, 485 S.E.2d at 287 (“Where, as here, a defendant
stipulates to the elements of an offense, defense counsel may infer consent to admit
defendant’s guilt of that offense.”).
Defendant responds that although he acknowledged that he had “culpability
for some criminal conduct[,]” he did not specifically admit that he was guilty of
second-degree murder. But defendant’s trial counsel did not argue that defendant
was guilty of second-degree murder; rather, defendant’s trial counsel stated that he
was not advocating that the jury find defendant not guilty. At first blush, this
distinction may seem to be too fine a point given that second-degree murder and first-
degree murder were the only homicide offenses submitted to the jury. But defendant
never requested that any other homicide offense be submitted to the jury. On appeal,
defendant argues that the evidence supported a conviction of voluntary
manslaughter. But defendant does not argue that the trial court erred in failing to
submit a jury instruction on the lesser offense of voluntary manslaughter, nor does
defendant argue that his trial counsel rendered ineffective assistance of counsel by
not requesting this instruction. Defendant admitted that he had killed the victim
and that he was culpable “for some criminal conduct[,]” and in closing argument,
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Opinion of the Court
defendant’s trial counsel stated that he was not advocating that the jury find
defendant not guilty. Accordingly, we hold that defendant’s trial counsel did not
argue beyond the scope of defendant’s concession of guilt.
We note that in McNeill, the defendant’s stipulation that he “did inflict
multiple stab wounds” on the victim and that “these wounds caused her death” is very
similar to defendant’s concession here, and our Supreme Court held that that
stipulation conceded each of the elements of second-degree murder. See id. at 237-
38, 485 S.E.2d at 286-87 (brackets omitted).
Defendant also argues that the facts here are analogous to the facts in
Harbison and Matthews. See Harbison, 315 N.C. at 177-78, 337 S.E.2d at 506;
Matthews, 358 N.C. at 106-09, 591 S.E.2d at 539-40. But we distinguish Harbison
and Matthews, because in both of those cases, the defendant never expressly
consented to any concession of guilt, but here the trial court conducted an inquiry and
concluded that defendant “knowingly, intelligently, and voluntarily, and with full
knowledge and awareness of the possible consequences” admitted that he had killed
the victim and was culpable “for some criminal conduct[.]” See Harbison, 315 N.C. at
177-78, 337 S.E.2d at 506; Matthews, 358 N.C. at 106-09, 591 S.E.2d at 539-40.
Following McNeill, we hold that defendant’s trial counsel did not deprive defendant
of effective assistance of counsel by stating in closing argument that he was not
advocating that the jury find defendant not guilty. See McNeill, 346 N.C. at 237-38,
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485 S.E.2d at 286-87.
B. Emphasis of Dreadfulness of Crimes
Defendant next argues that his trial counsel rendered ineffective assistance of
counsel by “repeatedly emphasizing the dreadfulness of the crime[s]” in closing
argument. Defendant characterizes his trial counsel’s emphasis as a Harbison
violation, because his trial counsel’s statements exceeded the scope of the consent he
gave during a Harbison-like inquiry in which he consented to his trial counsel
describing the video recordings of the crimes as “very graphic and very upsetting.”
In closing argument, defendant’s trial counsel argued:
We talked about the surveillance video during jury
selection. We talked about how graphic it would be. It was
horrible. It was scary. No human being should ever have
to go through what any of the people who were there went
through, especially [the victim]. There’s no disputing that.
But a trial is not a popularity contest. It’s not about who
you like or don’t like. It’s not about emotions. It’s not about
who your heart goes out for.
This trial’s not about whether or not what
[defendant] did on August 16th, 2012 was a horrible,
terrible crime. It was. This trial is about [defendant’s]
mental capacity on August 16th, 2012.
....
I can’t stand here before you and put into words or
to justice how difficult I’m sure it was for [the victim’s
family] to sit here and live through this and go through
this, and I can tell you that I’m sorry. That’s an
understatement, ladies and gentlemen.
At the same time, I’m representing [defendant], and
we believe that on that day, August 16th, 2012, [defendant]
had mental disorders on the day that he killed [the victim]
and on the day of the assaults, and I had a duty to present
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those mental disorders to you in this case, and I hope you
can understand that.
Why is the mental health of a person who’s
committed a crime important? It’s important because our
legislature and our courts say it is. It is the law of our
state. Our law says it matters.
....
I’m not [going to] talk about the videos again because
the videos are very clear. You’ve seen them with your own
eyes. I don’t need to tell you what they look like; you saw
how horrible they were.
....
And certainly I do not—I’ll say it again. I don’t
ignore the fact that these crimes that you saw on the
videotape were horrible for every person [who] was there,
including that little boy who was right in the middle of it,
but that’s not for deliberation.
We’re not deciding how horrible it is. We’re trying
to decide mental capacity, whether or not [defendant] had
the mental capacity to commit the crime—the three crimes
that he’s charged with, and I would contend that he did not.
We preliminarily note that although we appreciate the caution exercised by
defendant’s trial counsel and the trial court in conducting a Harbison-like inquiry,
Harbison is inapposite to this issue as this issue does not relate to any concession of
guilt made by defendant’s trial counsel. See Harbison, 315 N.C. at 180, 337 S.E.2d
at 507-08. Rather, defendant is challenging his counsel’s trial strategy in describing
defendant’s crimes as “horrible.” Accordingly, we employ the two-part Strickland v.
Washington analysis to this component of defendant’s IAC claim:
To prevail in a claim for IAC, a defendant must show
that his (1) counsel’s performance was deficient, meaning
it fell below an objective standard of reasonableness, and
(2) the deficient performance prejudiced the defense,
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meaning counsel’s errors were so serious as to deprive the
defendant of a fair trial, a trial whose result is reliable. As
to the first prong of the IAC test, a strong presumption
exists that a counsel’s conduct falls within the range of
reasonable professional assistance. Further, if there is no
reasonable probability that in the absence of counsel’s
alleged errors the result of the proceeding would have been
different, then the court need not determine whether
counsel’s performance was actually deficient.
State v. Smith, 230 N.C. App. 387, 390, 749 S.E.2d 507, 509 (2013) (citations,
quotation marks, and brackets omitted) (applying IAC analysis from Strickland v.
Washington, 466 U.S. 668, 80 L. Ed. 2d 674 (1984)), cert. denied, 367 N.C. 532, 762
S.E.2d 221 (2014).
Here, in closing argument, defendant’s trial counsel pointed out to the jury that
while defendant’s crimes were “horrible[,]” the gravity of his crimes was not the issue
they had to determine. Rather, defendant’s trial counsel was impressing on the jury
that they should base their decision on whether they believed defendant lacked the
mental capacity necessary for premeditation and deliberation. We therefore hold that
defendant has failed to rebut the “strong presumption . . . that a counsel’s conduct
falls within the range of reasonable professional assistance.” See id., 749 S.E.2d at
509 (citation omitted).
In addition, “there is no reasonable probability that in the absence of counsel’s
alleged errors the result of the proceeding would have been different,” since the State
proffered overwhelming evidence of defendant’s guilt of the first-degree murder
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Opinion of the Court
offense. See id., 749 S.E.2d at 509. In addition to the video recordings showing
defendant repeatedly stabbing the victim, the State proffered the testimony of the
victim’s mother and sister. See State v. Taylor, 337 N.C. 597, 608, 447 S.E.2d 360,
367 (1994) (“From the vicious assault and from the multiple wounds, many of which
must have been inflicted after the victim had been felled and rendered helpless, the
jury could reasonably infer that the defendant acted with premeditation and
deliberation.”). We also note that the jury found defendant guilty of first-degree
murder under both a theory of premeditation and deliberation and a theory of felony
murder based on either of defendant’s felony assault offenses on the victim’s mother
and sister. Since defendant’s trial counsel’s performance was not deficient and “there
is no reasonable probability that in the absence of counsel’s alleged errors the result
of the proceeding would have been different,” we hold that defendant has failed to
demonstrate that he was deprived of effective assistance of counsel. See Smith, 230
N.C. App. at 390, 749 S.E.2d at 509 (citation omitted).
III. Admission of Evidence
Defendant next argues that the trial court erred in admitting hearsay
testimony of the victim’s sister, Daisha Turner, over his counsel’s objection.
A. Preservation of Error
The State argues that defendant waived this issue, as his counsel did not state
the ground for his objection. “In order to preserve an issue for appellate review, a
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party must have presented to the trial court a timely request, objection, or motion,
stating the specific grounds for the ruling the party desired the court to make if the
specific grounds were not apparent from the context.” N.C.R. App. P. 10(a)(1)
(emphasis added). We examine defendant’s objection in context:
[Prosecutor]: So [you and the victim] were relaxing
and sitting around[?]
[Daisha Turner]: Yes, and at one point [the victim]
confided in me. At one point she confided in me, and she
was telling me about the relationship more than what I
knew, and that she was scared of [defendant].
[Defendant’s counsel]: Objection.
[Prosecutor]: Present sense impression.
THE COURT: Objection overruled.
[Prosecutor]: Okay. She had told you that she was
scared of him[?]
[Daisha Turner]: Yes.
(Emphasis added.)
Viewed in context, it is “apparent” that defendant’s objection was based on
hearsay. See id. The prosecutor immediately understood this ground for defendant’s
objection, as evidenced by his argument that Ms. Turner’s testimony fit within the
present-sense-impression hearsay exception. See N.C. Gen. Stat. § 8C-1, Rule 803(1)
(2013) (providing that a “statement describing or explaining an event or condition
made while the declarant was perceiving the event or condition, or immediately
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thereafter” is an exception to the general rule that hearsay evidence is inadmissible).
In addition, defendant had made several hearsay objections immediately before this
particular objection, and the trial court had cautioned Ms. Turner three times not to
say what the victim said. Accordingly, we hold that the ground for defendant’s
objection was “apparent from the context.” See N.C.R. App. P. 10(a)(1).
Relying on State v. Atkinson and State v. Teeter, the State next argues that
defendant waived this issue because his counsel did not move to strike Ms. Turner’s
testimony. See State v. Atkinson, 309 N.C. 186, 189, 305 S.E.2d 700, 703 (1983) (“The
failure to move to strike the answer waives any objection to the information elicited
when the inadmissibility of the testimony appears only in the response of the
witness.”); State v. Teeter, 85 N.C. App. 624, 630, 355 S.E.2d 804, 808, appeal
dismissed and disc. review denied, 320 N.C. 175, 358 S.E.2d 67 (1987). We
distinguish Atkinson and Teeter.
In Atkinson, on cross-examination, the prosecutor sought “to elicit from [the]
defendant the admission that he was avoiding a criminal charge in New Jersey.”
Atkinson, 309 N.C. at 188, 305 S.E.2d at 702. The prosecutor “did not seek to put
before the jury the specific nature of the charge; rather, he was attempting to question
[the] defendant about an act of misconduct, i.e., avoiding criminal prosecution.” Id.,
305 S.E.2d at 702. The defendant’s counsel objected to the prosecutor’s question, and
the trial court overruled the objection. Id. at 187, 305 S.E.2d at 701-02. The
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defendant then volunteered the details of the criminal charge, and his counsel did not
object or move to strike his answer. Id. at 187-88, 305 S.E.2d at 702. Our Supreme
Court held that the prosecutor’s question was proper but that “[t]he issue of whether
the information actually given by defendant in response to the prosecutor’s question
was admissible, as distinguished from the propriety of the question itself, [was] not
properly before [the Court].” Id. at 188-89, 305 S.E.2d at 702-03. In Teeter, the
defendant on appeal argued that an expert witness “was improperly permitted to
state an opinion concerning the credibility of the prosecuting witness and the guilt or
innocence of [the] defendant[,]” but this Court held that the defendant had waived
this issue, because the “defendant neither objected to the question nor moved to strike
the answer.” Teeter, 85 N.C. App. at 628-30, 355 S.E.2d at 807-08.
In contrast, here, defendant objected to Ms. Turner’s answer. Unlike the
defendants in Atkinson and Teeter who failed to object to the allegedly inadmissible
answers of the witnesses, defendant “presented to the trial court a timely request,
objection, or motion” to the testimony that he specifically challenges on appeal. See
N.C.R. App. P. 10(a)(1) (emphasis added); Atkinson, 309 N.C. at 187-88, 305 S.E.2d
at 701-02; Teeter, 85 N.C. App. at 630, 355 S.E.2d at 808.
Relying on State v. Whitley, the State finally argues that defendant waived this
issue because after defendant’s objection, Ms. Turner immediately repeated the
challenged testimony. See State v. Whitley, 311 N.C. 656, 661, 319 S.E.2d 584, 588
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(1984) (“Where evidence is admitted over objection, and the same evidence has been
previously admitted or is later admitted without objection, the benefit of the objection
is lost.”). We distinguish Whitley.
There, the defendant objected to a detective’s use of the term “crime scene” in
his testimony. Id. at 660, 319 S.E.2d at 587. Our Supreme Court held that the
defendant had waived this issue, because the defendant did not object to the
detective’s use of the term on four other occasions in his testimony. Id. at 660-61, 319
S.E.2d at 587-88. In contrast, here, the prosecutor asked Ms. Turner the following
clarifying question immediately after the trial court overruled defendant’s objection:
“[The victim] had told you that she was scared of him[?]” Ms. Turner responded:
“Yes.” Accordingly, we hold that defendant has preserved this issue for appellate
review. See State v. Dalton, ___ N.C. App. ___, ___, 776 S.E.2d 545, 550 (rejecting a
similar waiver argument in the context of a closing argument), temporary stay
allowed, ___ N.C. ___, 777 S.E.2d 72 (2015).
B. Standard of Review
“This Court reviews a trial court’s ruling on the admission of evidence over a
party’s hearsay objection de novo.” State v. Hicks, ___ N.C. App. ___, ___, 777 S.E.2d
341, 348 (2015), disc. review denied, ___ N.C. ___, ___ S.E.2d ___ (No. 396P15 Jan. 28,
2016).
C. Analysis
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On appeal, the State argues that Ms. Turner’s statement was admissible under
both the present-sense-impression hearsay exception and the state-of-mind hearsay
exception. See N.C. Gen. Stat. § 8C-1, Rule 803(1), (3). Because the state-of-mind
hearsay exception better fits the facts of this case, we will address only whether Ms.
Turner’s statement was admissible under that exception. We note that although the
trial court did not admit her statement under the state-of-mind hearsay exception,
we generally uphold a trial court’s ruling “if it is correct upon any theory of law[.]”
Cf. Opsahl v. Pinehurst Inc., 81 N.C. App. 56, 63, 344 S.E.2d 68, 73 (1986) (citation
omitted) (discussing this general rule in the context of contract law), disc. review
improvidently allowed per curiam, 319 N.C. 222, 353 S.E.2d 400 (1987); State v.
Coffey, 326 N.C. 268, 285-86, 389 S.E.2d 48, 58 (1990) (upholding the trial court’s
evidentiary ruling despite finding that the trial court had admitted the challenged
statement under the wrong hearsay exception); State v. McElrath, 322 N.C. 1, 15, 19,
366 S.E.2d 442, 450, 452 (1988) (same).
Hearsay is defined as a statement, other than one
made by the declarant while testifying at the trial or
hearing, offered in evidence to prove the truth of the matter
asserted. As a general rule, hearsay is inadmissible at
trial. [North Carolina Rules of Evidence] 803 and 804,
however, provide exceptions and permit the admission of
hearsay statements under certain circumstances.
State v. Morgan, 359 N.C. 131, 154, 604 S.E.2d 886, 900 (2004) (citations and
quotation marks omitted), cert. denied, 546 U.S. 830, 163 L. Ed. 2d 79 (2005); see also
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STATE V. COOK
Opinion of the Court
N.C. Gen. Stat. § 8C-1, Rules 801, 802, 803, 804 (2013). North Carolina Rule of
Evidence 803(3) provides that a “statement of the declarant’s then existing state of
mind, emotion, sensation, or physical condition (such as intent, plan, motive, design,
mental feeling, pain, and bodily health), but not including a statement of memory or
belief to prove the fact remembered or believed unless it relates to the execution,
revocation, identification, or terms of declarant’s will” is admissible as a hearsay
exception. N.C. Gen. Stat. § 8C-1, Rule 803(3).
“It is well established in North Carolina that a
murder victim’s statements falling within the state of mind
exception to the hearsay rule are highly relevant to show
the status of the victim’s relationship to the defendant.”
State v. Alston, 341 N.C. 198, 230, 461 S.E.2d 687, 704
(1995), cert. denied, [516 U.S. 1148], 134 L. Ed. 2d 100
(1996); see State v. McHone, 334 N.C. 627, 637, 435 S.E.2d
296, 301-02 (1993) (state of mind relevant to show a stormy
relationship between the victim and the defendant prior to
the murder), cert. denied, [511 U.S. 1046], 128 L. Ed. 2d
220 (1994); State v. Lynch, 327 N.C. 210, 222, 393 S.E.2d
811, 818-19 (1990) (the defendant’s threats to the victim
shortly before the murder admissible to show the victim’s
then-existing state of mind); State v. Cummings, 326 N.C.
298, 313, 389 S.E.2d 66, 74 (1990) (the victim’s statements
regarding the defendant’s threats relevant to the issue of
her relationship with the defendant).
State v. Crawford, 344 N.C. 65, 76, 472 S.E.2d 920, 927 (1996).
The victim’s statement that she “was scared of” defendant unequivocally
demonstrates her state of mind and is “highly relevant to show the status” of her
relationship with defendant on the night before she was killed. See id., 472 S.E.2d at
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STATE V. COOK
Opinion of the Court
927. Accordingly, we hold that this statement was admissible under the state-of-
mind hearsay exception. See N.C. Gen. Stat. § 8C-1, Rule 803(3).
But even assuming arguendo that this statement was inadmissible, we hold
that defendant has failed to demonstrate that “there is a reasonable possibility that,
had the [alleged] error in question not been committed, a different result would have
been reached at the trial[.]” See N.C. Gen. Stat. § 15A-1443(a) (2013). As discussed
above, the State proffered overwhelming evidence supporting defendant’s conviction
of first-degree murder under theories of both premeditation and deliberation and
felony murder. Accordingly, we hold that defendant has failed to demonstrate that
this alleged error prejudiced him.
IV. Conclusion
For the foregoing reasons, we hold defendant was not deprived of effective
assistance of counsel and that the trial court committed no error.
NO ERROR.
Judges CALABRIA and INMAN concur.
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