Opinion
NO. COA12-697
12-18-2012
STATE OF NORTH CAROLINA, v. TAMARA MCDANIEL BEAN
Appellate Defender Staples S. Hughes, by Assistant Appellate Defender Daniel R. Pollitt, for defendant. Attorney General Roy Cooper, by Special Deputy Attorney General L. Michael Dodd, for the State.
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
Randolph County
No. 08 CRS 56156
Appeal by defendant from judgment entered 2 September 2011 by Judge V. Bradford Long in Randolph County Superior Court. Heard in the Court of Appeals 14 November 2012.
Appellate Defender Staples S. Hughes, by Assistant
Appellate Defender Daniel R. Pollitt, for defendant.
Attorney General Roy Cooper, by Special Deputy Attorney
General L. Michael Dodd, for the State.
ELMORE, Judge.
Tamara McDaniel Bean (defendant) appeals from a judgment entered upon a jury conviction of first-degree murder, sentencing her to life imprisonment without parole. After careful consideration, we conclude that defendant received a trial free from prejudicial error.
I. Background
Defendant and Randy Charles (the victim) were involved in a long-term romantic relationship. Although they never married, defendant often referred to the victim as her husband, and in 1984 they began living together. They lived together continuously from that time until the victim's death in 2008. Towards the end of their time together, the couple resided in a Randolph County. Defendant's grandson, Thomas Simons, lived with them.
By all accounts, defendant and the victim had a tumultuous relationship, marked by regular fights and threats to leave each other. Their fights were, at times, violent, but neither defendant nor the victim ever reported domestic violence. The couple's final fight occurred on 30 September 2008, and resulted in defendant fatally shooting the victim. She was arrested and charged with first-degree murder. The case came on for trial on 22 August 2011. Defendant pled not guilty and testified on her own behalf, asserting that she killed the victim in self-defense.
On 2 September 2011, defendant was convicted by a jury of first-degree murder. The trial court then entered judgment, sentencing defendant to life imprisonment without parole. Defendant now appeals. Further relevant facts are developed below.
II. Arguments
A. Constitutional arguments
Defendant presents two constitutional arguments on appeal. She argues 1) that the State used her constitutional right to silence against her as impeachment evidence and as substantive evidence of her guilt and 2) that during closing arguments for the State, the prosecutor commented on her right to plead not guilty, in violation of her constitutional rights. We decline to address these arguments.
Defendant did not object or otherwise provide any argument to the trial court with regards to these issues. This Court has held that
constitutional arguments not raised at trial are not preserved for appellate review: [I]n order for an appellant to assert a constitutional or statutory right on appeal, the right must have been asserted and the issue raised before the trial court. Constitutional issues not raised and passed upon at trial will not be considered for the first time on appeal, not even for plain error[.]State v. Jones, ___ N.C. App.___, ___, 715 S.E.2d 896, 900-01 (2011) (quotations and citations omitted) (alterations in original). Accordingly, we decline to address defendant's constitutional arguments.
B. Jury instruction
Defendant next argues that the trial court erred in instructing the jury on confession because such instruction was not supported by evidence. Specifically, defendant argues that a statement she made to a nurse while receiving medical treatment after the shooting occurred did not qualify as a confession. We disagree.
"[Arguments] challenging the trial court's decisions regarding jury instructions are reviewed de novo by this Court." State v. Osorio, 196 N.C. App. 458, 466, 675 S.E.2d 144, 149 (2009) (quotations and citations omitted). "[A] trial judge should not give instructions to the jury which are not supported by the evidence produced at the trial." State v. Cameron, 284 N.C. 165, 171, 200 S.E.2d 186, 191 (1973) (quotations and citations omitted), cert. denied, 418 U.S. 905, 41 L. Ed. 2d 1153 (1974).
Here, during the charge conference, the State requested the pattern jury instruction on confession. Defendant objected on the ground that the instruction was not supported by the evidence, and the trial court denied the objection.
"Confession is defined as: [a] voluntary statement made by a person charged with the commission of a crime or misdemeanor, communicated to another person, wherein he acknowledges himself to be guilty of the offense charged, and discloses the circumstances of the act or the share and participation which he had in it." State v. Bray, 37 N.C. App. 43, 46, 245 S.E.2d 190, 192 (1978) (quotations and citation omitted). Our Supreme Court has held that
[t]he pattern jury instruction concerning confessions. . .should not be given in cases in which the defendant has made a statement which is only of a generally inculpatory nature. When evidence is introduced which would support a finding that the defendant in fact has made a statement admitting his guilt of the crime charged, however, the instruction is properly given."State v. Young, 324 N.C. 489, 498, 380 S.E.2d 94, 99 (1989).
Here, the statement at issue is "I killed my husband just because I finally had enough of him" and "[w]ell I'm guilty." We conclude that this statement is properly classified as a confession. In her statement, defendant acknowledged the specific act of killing her husband, the crime of which she was charged, and further admitted her guilt of the crime. Thus, we are unable to agree that the trial court erred in its jury instructions.
D. Victim's statement and Rule 803(3)
Defendant next argues that the trial court erred in admitting the victim's out of court statements, that defendant threatened to kill him numerous times. According to defendant, these statements were not admissible under Rule 803(3). We disagree.
"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 at hand. Any evidence offered to shed light upon the crime charged should be admitted by the trial court." State v. Stager, 329 N.C. 278, 314, 406 S.E.2d 876, 897 (1991) (quotations and citations omitted). Specifically, any statement which "bears directly on [the victim's] relationship with the defendant at about the time she was alleged to have killed him" is admissible if it "tends to show that he was afraid of the defendant." Id.
Here, defendant takes issue with five statements by the victim: 1) The victim's co-worker, Bobby Williams, testified that the victim "[t]old me one time he was worried about Tammy threatened to kill him" and "if he ever left her, she'd kill him[;]" 2) The victim's employer, Margie Albertson, testified that the victim "told me that he was scared of her [defendant]" and that she overheard the victim talking to defendant in which the victim said "Yes, Tammy, I know what you've told me over and over and over, that you would kill me. Yes, Tammy, I know what you said[;]" 3) The victim's neighbor, Earl Kennedy, testified that the victim said "[s]he's [defendant] after me with a gun[;]" 4) The victim's neighbor, Archie Royal, testified that the victim told him that defendant said "she was gonna kill him" and that the victim said "I need to -- to get some money to get away" and that "I need a ride. I need a ride now to my brother's house[;]" 5) The victim's nephew, Jimmy Lambeth, testified that the victim told him that one time "Tammy snuck up on him and caught him on his cell phone talking to someone on the phone. And she would take the phone from him, break it, basically whatever it would take to get him off the phone" and that the victim told him defendant said "I told you if you ever try to leave me, I will kill you." All of these statements were made within the year of the victim's death.
We conclude that these statements reflect directly on the victim's relationship with defendant and show that the victim was afraid of defendant around the time of his death. As such, we are unable to agree that the trial court erred in allowing these statements to be admitted.
E. Cross-examination of expert witness
Defendant next argues that the trial court erred in allowing the State to question her expert witness about information contained in other expert witnesses' reports that was not the basis of his expert opinion, in violation of Rules 705 and 403. Further, defendant argues that she was prejudiced by this testimony, and is therefore entitled to a new trial. We disagree.
"Pursuant to N.C.G.S. § 8C-1, Rule 705, an expert witness may be cross-examined with regard to the underlying facts and data used by [the] expert in reaching his expert opinion, including other experts' reports." State v. Golphin, 352 N.C. 364, 468, 533 S.E.2d 168, 235 (2000) (quotations and citations omitted). Our Supreme Court has held that "[p]ursuant to Rule 705, [the defense expert] was properly cross-examined about other diagnoses contained within psychiatric reports upon which she relied, although she ultimately formed a differing diagnosis." State v. White, 343 N.C. 378, 394, 471 S.E.2d 593, 602 (1996) (quotation and citation omitted) (alteration in original).
Here, according to defendant, her expert witness, David Cloutier, did not rely on the other expert witnesses' reports in reaching his diagnosis. At trial, Cloutier, an expert in crime scene investigation, trajectory, and use of force, testified that "I did review the experts' opinions of the others that I was -- that I was given, yes." Cloutier further confirmed that he "read all of the expert opinions[,]" and that "I did review them, I did consider them, but based on my understanding of the word 'rely,' I did not rely on them to form my opinions." He explained that "I didn't find the information salient to my expertise in use of force." Nonetheless, the trial court allowed the State to cross-examine Cloutier with another expert's, Dr. Wilson's, differing report.
The decision to allow this cross-examination to occur appears to have been in error. It is clear from the record that according to Cloutier, he did not "rely" on Dr. Wilson's report. However, we are unable to agree that defendant was prejudiced by this error. Defendant was afforded an opportunity to re-direct Cloutier, and thus she could have cleared up any misunderstandings in Cloutier's testimony. Accordingly, we find no prejudicial error with regards to the State's cross-examination of Dr. Cloutier.
F. The State's closing argument
Next, defendant argues that the State's closing argument was improper for four reasons: 1) the prosecutor misstated the law, 2) the prosecutor misrepresented evidence, 3) the prosecutor asserted personal knowledge, and 4) the prosecutor placed his personal opinion before the jury. We disagree.
The standard of review for assessing alleged improper closing arguments that fail to provoke timely objection from opposing counsel is whether the remarks were so grossly improper that the trial court committed reversible error by failing to intervene ex mero motu. In other words, the reviewing court must determine whether the argument in question strayed far enough from the parameters of propriety that the trial court, in order to protect the rights of the parties and the sanctity of the proceedings, should have intervened on its own accord and: (1) precluded other similar remarks from the offending attorney; and/or (2) instructed the jury to disregard the improper comments already made.State v. Jones, 355 N.C. 117, 133, 558 S.E.2d 97, 107 (2002) (citation omitted).
i. Misstated law
Defendant first contends that the prosecutor misstated the law on malice. Specifically, defendant takes issue with the statements that "what makes this first-degree murder is two things that second-degree murder does not have, and that's malice, which is commonly known as ill will" and "second-degree murder, as I told you, is simply first-degree murder once you've removed the malice and premeditation." We agree that the prosecutor erred in these statements, but we are unable to agree that defendant was prejudiced by such error.
The "essential elements of the offense of murder in the second[-]degree" are "that the killing was unlawful and with malice." State v. Drake, 8 N.C. App. 214, 219, 174 S.E.2d 132, 135 (1970). Thus, it is obvious that the prosecutor did in fact misstate the law regarding second-degree murder and malice. However, we are unable to conclude that the remark was grossly improper, because as the State correctly indicates, the prosecutor also said "if what I--what I say differs from what the judge says . . . go with what the judge says." Further, the record shows that the jury received proper instruction regarding the law from the trial court. See State v. Campbell, 177 N.C. App. 520, 530, 629 S.E.2d 345, 351 (2006) (holding that "the trial court's correct jury instructions on the law cured any mistakes made in the prosecutor's closing argument.").
ii. Misrepresented evidence, personal opinion, and personal knowledge
Defendant also contends that the prosecutor 1) argued evidence not supported by the record, by stating that defendant had not used her maiden name in years and that she was pretending to be injured, 2) injected his own personal knowledge, by stating that "some of us know a little about guns. Some of us know there's no way, if you've got a pistol like this, you wouldn't have fingerprints on it because you've been handling it all the time," and 3) argued facts not supported by the record by arguing that defendant contaminated and staged the crime scene. We find little merit to these arguments.
Our Supreme Court has held that "[a]n attorney may . . . on the basis of his analysis of the evidence, argue any position or conclusion with respect to a matter in issue." State v. Phillips, 365 N.C. 103, 140, 711 S.E.2d 122, 148 (2011) (quotations and citation omitted). Further, the prosecutor "is allowed wide latitude in his argument to the jury and may argue the law and the facts in evidence and all reasonable inferences drawn from them[.]" State v. Craig, 308 N.C. 446, 454, 302 S.E.2d 740, 745 (1983) (quotations and citations omitted). Upon review of the record, we conclude that these statements were reasonable arguments regarding matters at issue, based on the facts and evidence.
G. Motion to dismiss
Finally, defendant argues that the trial court erred in denying her motion to dismiss. Specifically, defendant argues that there was insufficient evidence of premeditation and deliberation. We disagree.
"This Court reviews the trial court's denial of a motion to dismiss de novo." State v. Smith, 186 N.C. App. 57, 62, 650 S.E.2d 29, 33 (2007) (citation omitted). "In ruling on a motion to dismiss, the trial court need determine only whether there is substantial evidence of each essential element of the crime and that the defendant is the perpetrator." State v. Hill, 365 N.C. 273, 275, 715 S.E.2d 841, 842 (2011) (quotations and citations omitted). "[A]ll of the evidence actually admitted, whether competent or incompetent, which is favorable to the State is to be considered by the court in ruling on a motion to dismiss[.]" Id. at 278, 715 S.E.2d at 844 (quotations and citations omitted).
"The elements required for conviction of first degree murder are (1) the unlawful killing of another human being; (2) with malice; and (3) with premeditation and deliberation." State v. Haynesworth, 146 N.C. App. 523, 531, 553 S.E.2d 103, 109 (2001) (citations omitted).
Premeditation means that the act was thought over beforehand for some length of time, however short. Deliberation means an intent to kill, carried out in a cool state of blood, . . . and not under the influence of a violent passion or a sufficient legalState v. Taylor, 362 N.C. 514, 531, 669 S.E.2d 239, 256 (2008) (quotations and citations omitted). "Among circumstances which may tend to prove premeditation and deliberation are: (1) want of provocation on the part of deceased; (2) conduct and statements of the defendant both before and after the killing; (3) threats made against the deceased by the defendant; and (4) ill will or previous difficulty between the parties." State v. Myers, 299 N.C. 671, 677-78, 263 S.E.2d 768, 773 (1980) (citation omitted).
provocation. Because premeditation and deliberation are ordinarily not susceptible to proof by direct evidence, they are most often proved by circumstantial evidence.
Here, the State presented evidence tending to show that 1) defendant threatened to kill the victim numerous times if he tried to leave her and that 2) defendant and the victim had a great deal of previous difficulties, including numerous fights which were at times violent. We conclude that this evidence is sufficient to prove premeditation and deliberation.
III. Conclusion
In sum, we conclude that defendant received a trial free from prejudicial error.
No prejudicial error.
Judge STROUD concurs.
Judge BEASLEY concurs by separate opinion.
Report per Rule 30(e).
NO. COA12-697
STATE OF NORTH CAROLINA
v.
TAMARA MCDANIEL BEAN
Randolph County
No. 08 CRS 56156
BEASLEY, Judge, concurring with separate opinion.
I concur with the majority that Defendant received a trial free from prejudicial error but would do so on differing grounds. Thus, I write separately.
Regarding Defendant's confession, I would emphasize that Defendant's confession was also voluntary, per our definition of a confession in State v. Bray, 37 N.C. App. 43, 46, 245 S.E.2d 190, 192 (1978). Defendant gave this confession spontaneously to Nurse Barber; therefore, it was voluntary. Defendant's confession was properly admitted, and the trial court properly instructed the jury in this respect.
I would also emphasize that the North Carolina courts have admitted evidence of the victim's fear of the defendant in an overwhelming number of cases. See Kenneth S. Broun, Brandis & Broun on North Carolina Evidence § 217 n.357 (7th ed. 2011)(citing numerous cases); see also, e.g., State v. Faucette, 326 N.C. 676, 683-84, 392 S.E.2d 71, 74-75 (1990)(threats to victim by defendant admissible under Rule 803(3) to show fear of defendant and prove unlawful entry and rebut claim of self-defense). This case is similar to the abundance of case law on this issue, and the victim's statements of fear were properly admitted.
I agree that the trial court erred in allowing the State to cross-examine Defendant's expert regarding Dr. Wilson's report on which he did not rely. State v. Hill, 331 N.C. 387, 411, 417 S.E.2d 765, 776 (1992)(holding that defendant failed to lay proper foundation to introduce a psychiatric discharge summary when the expert stated that he reviewed the summary but "never stated affirmatively that the summary contained facts upon which he based his opinion"). I also agree that the error was not prejudicial. However, I disagree with the majority's reasoning.
On cross-examination, the State had Mr. Cloutier, Defendant's expert, read an excerpt from Dr. Wilson's report stating that "[Defendant's] memory of these events should not be trusted." The majority reasons that this was not prejudicial error because Defendant could have used redirect examination to clarify Mr. Cloutier's testimony. My review of the transcript demonstrates that Defendant did redirect Mr. Cloutier. Defense counsel attempted to show that Mr. Cloutier did not rely on Dr. Wilson's report and that it was not specifically listed in the materials Mr. Cloutier reviewed. "Clarifying" that Mr. Cloutier did not rely on Dr. Wilson's report, however, had no effect on purging from the jurors' minds that Defendant's memory cannot be trusted. Further, the majority's reasoning would amount to invited error if Defendant had elicited substantially the same testimony on redirect. See State v. Taylor, 304 N.C. 249, 281, 283 S.E.2d 761, 781 (1981). Defendant's properly admitted confession to Nurse Barber minimizes the gravity of the error; thus, I would agree with the majority this error was not prejudicial.
With respect to Defendant's arguments regarding the State's misstatement of the law in its closing argument, State v. Campbell, 177 N.C. App. 520, 629 S.E.2d 345 (2006), is applicable in this case. Campbell held that any error in prosecutor's closing argument was cured by the trial court's correct instructions to the jury. Id. at 530, 629 S.E.2d 351-52. Defendant does not argue that the trial court misstated the elements of second-degree murder in its charge to the jury, and my review of the charge shows that the trial court correctly instructed the jury on that crime.
I also concur with the majority's conclusion that Defendant's other alleged errors in the State's closing arguments lack merit, but I write separately to elaborate on the reasoning. As to the use of Defendant's maiden name, it is a fair inference that she had not used her maiden name in years. She never legally changed her name back to McDaniel after marrying Walter Bean when she was sixteen years old. Next, the State presented evidence that the paramedic noted that Defendant was distressed but uninjured after killing her husband. This supports the State's argument that Defendant was pretending to be injured. Finally, the prosecutor's statements about the fingerprints on the pistol are not personal knowledge when reviewed in context. The prosecutor used the pistol to demonstrate to the jury the low probability that Defendant did not leave any fingerprints on the gun, which was the murder weapon. The prosecutor then argued that Defendant staged the crime scene, a permissible inference from the lack of fingerprints on the pistol. In context, the prosecutor was not injecting personal knowledge because his statements were part of a demonstration, and staging the crime scene is a fair inference from the evidence.
In all, I concur that Defendant received a trial free from prejudicial error.