{ "id": 11708993, "name": "STATE OF NORTH CAROLINA v. ELIZABETH WASHINGTON JACKSON", "name_abbreviation": "State v. Jackson", "decision_date": "1997-05-06", "docket_number": "No. COA96-565", "first_page": "129", "last_page": "139", "citations": [ { "type": "official", "cite": "126 N.C. App. 129" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "75 ALR4th 199", "category": "reporters:specialty", "reporter": "A.L.R. 4th", "weight": 3, "opinion_index": -1 }, { "cite": "502 U.S. 354", "category": "reporters:federal", "reporter": "U.S.", "opinion_index": 0 }, { "cite": "364 S.E.2d 341", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "348" } ], "opinion_index": 0 }, { "cite": "321 N.C. 392", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2568444 ], "year": 1988, "pin_cites": [ { "page": "403" } ], "opinion_index": 0, "case_paths": [ "/nc/321/0392-01" ] }, { "cite": "74 L. Ed. 2d 642", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1982, "opinion_index": 0 }, { "cite": "459 U.S. 1080", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6495875 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/us/459/1080-01" ] }, { "cite": "293 S.E.2d 569", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "578" } ], "opinion_index": 0 }, { "cite": "306 N.C. 151", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567859 ], "year": 1982, "pin_cites": [ { "page": "164" } ], "opinion_index": 0, "case_paths": [ "/nc/306/0151-01" ] }, { "cite": "370 S.E.2d 553", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "555" } ], "opinion_index": 0 }, { "cite": "322 N.C. 709", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2515352 ], "year": 1988, "pin_cites": [ { "page": "713" } ], "opinion_index": 0, "case_paths": [ "/nc/322/0709-01" ] }, { "cite": "116 L. Ed. 2d 232", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1991, "opinion_index": 0 }, { "cite": "502 U.S. 902", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6473607, 6473902, 6474097, 6474001, 6473811, 6473366, 6473719, 6473530, 6473468 ], "year": 1991, "opinion_index": 0, "case_paths": [ "/us/502/0902-04", "/us/502/0902-07", "/us/502/0902-09", "/us/502/0902-08", "/us/502/0902-06", "/us/502/0902-01", "/us/502/0902-05", "/us/502/0902-03", "/us/502/0902-02" ] }, { "cite": "402 S.E.2d 600", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "612-13" } ], "opinion_index": 0 }, { "cite": "328 N.C. 337", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2539893 ], "pin_cites": [ { "page": "359" } ], "opinion_index": 0, "case_paths": [ "/nc/328/0337-01" ] }, { "cite": "133 L. Ed. 2d 46", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1995, "opinion_index": 0 }, { "cite": "451 S.E.2d 181", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "189" } ], "opinion_index": 0 }, { "cite": "339 N.C. 426", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2558177 ], "year": 1994, "pin_cites": [ { "page": "438" } ], "opinion_index": 0, "case_paths": [ "/nc/339/0426-01" ] }, { "cite": "468 S.E.2d 227", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "page": "232" } ], "opinion_index": 0 }, { "cite": "343 N.C. 79", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 798899 ], "year": 1996, "pin_cites": [ { "page": "86" } ], "opinion_index": 0, "case_paths": [ "/nc/343/0079-01" ] }, { "cite": "406 S.E.2d 876", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "898", "parenthetical": "defendant argued both federal and state constitutions" } ], "opinion_index": 0 }, { "cite": "329 N.C. 278", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2554614 ], "year": 1991, "pin_cites": [ { "page": "317", "parenthetical": "defendant argued both federal and state constitutions" } ], "opinion_index": 0, "case_paths": [ "/nc/329/0278-01" ] }, { "cite": "104 L. Ed. 2d 1009", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1989, "opinion_index": 0 }, { "cite": "490 U.S. 1101", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 605985, 605858, 606052, 605061, 605286, 605446, 604937, 604876, 605069, 605139, 605716, 605395, 605075, 604980, 605430, 605241 ], "year": 1989, "opinion_index": 0, "case_paths": [ "/us/490/1101-03", "/us/490/1101-05", "/us/490/1101-08", "/us/490/1101-12", "/us/490/1101-15", "/us/490/1101-14", "/us/490/1101-11", "/us/490/1101-13", "/us/490/1101-01", "/us/490/1101-09", "/us/490/1101-02", "/us/490/1101-10", "/us/490/1101-04", "/us/490/1101-07", "/us/490/1101-06", "/us/490/1101-16" ] }, { "cite": "374 S.E.2d 249", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "255", "parenthetical": "defendant argued both federal and state constitutions" } ], "opinion_index": 0 }, { "cite": "323 N.C. 508", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2565899 ], "year": 1988, "pin_cites": [ { "page": "515", "parenthetical": "defendant argued both federal and state constitutions" } ], "opinion_index": 0, "case_paths": [ "/nc/323/0508-01" ] }, { "cite": "412 S.E.2d 344", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "pin_cites": [ { "page": "357", "parenthetical": "defendant argued both federal and state constitutions" } ], "opinion_index": 0 }, { "cite": "330 N.C. 619", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2509185 ], "year": 1992, "pin_cites": [ { "page": "641", "parenthetical": "defendant argued both federal and state constitutions" } ], "opinion_index": 0, "case_paths": [ "/nc/330/0619-01" ] }, { "cite": "450 S.E.2d 907", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "910" } ], "opinion_index": 0 }, { "cite": "339 N.C. 469", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2558726 ], "year": 1994, "pin_cites": [ { "page": "472" } ], "opinion_index": 0, "case_paths": [ "/nc/339/0469-01" ] }, { "cite": "446 S.E.2d 43", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "48", "parenthetical": "defendant argued both federal and state constitutions" } ], "opinion_index": 0 }, { "cite": "337 N.C. 384", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2550409 ], "year": 1994, "pin_cites": [ { "page": "392", "parenthetical": "defendant argued both federal and state constitutions" } ], "opinion_index": 0, "case_paths": [ "/nc/337/0384-01" ] }, { "cite": "342 S.E.2d 901", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "316 N.C. 382", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4702435, 4700936, 4701205, 4704606, 4699167 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc/316/0382-02", "/nc/316/0382-03", "/nc/316/0382-01", "/nc/316/0382-04", "/nc/316/0382-05" ] }, { "cite": "338 S.E.2d 110", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "112" } ], "opinion_index": 0 }, { "cite": "78 N.C. App. 565", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522737 ], "year": 1985, "pin_cites": [ { "page": "568" } ], "opinion_index": 0, "case_paths": [ "/nc-app/78/0565-01" ] }, { "cite": "380 S.E.2d 563", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "565-67" } ], "opinion_index": 0 }, { "cite": "94 N.C. App. 442", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527375 ], "year": 1989, "pin_cites": [ { "page": "446" } ], "opinion_index": 0, "case_paths": [ "/nc-app/94/0442-01" ] }, { "cite": "128 L. Ed. 2d 495", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1994, "opinion_index": 0 }, { "cite": "128 L. Ed. 2d 54", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1994, "opinion_index": 0 }, { "cite": "435 S.E.2d 348", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "opinion_index": 0 }, { "cite": "334 N.C. 625", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2531234, 2531972, 2532363, 2530606, 2529022 ], "year": 1993, "opinion_index": 0, "case_paths": [ "/nc/334/0625-02", "/nc/334/0625-03", "/nc/334/0625-01", "/nc/334/0625-04", "/nc/334/0625-05" ] }, { "cite": "428 S.E.2d 220", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "225" } ], "opinion_index": 0 }, { "cite": "109 N.C. App. 491", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525843 ], "pin_cites": [ { "page": "498-99" } ], "opinion_index": 0, "case_paths": [ "/nc-app/109/0491-01" ] }, { "cite": "367 S.E.2d 139", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "143" } ], "opinion_index": 0 }, { "cite": "89 N.C. App. 584", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524160 ], "year": 1988, "pin_cites": [ { "page": "589" } ], "opinion_index": 0, "case_paths": [ "/nc-app/89/0584-01" ] }, { "cite": "455 S.E.2d 666", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "page": "670", "parenthetical": "quoting State v. Jones, 89 N.C. App. 584, 589, 367 S.E.2d 139, 143 (1988)" } ], "opinion_index": 0 }, { "cite": "118 N.C. App. 389", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11918500 ], "year": 1995, "pin_cites": [ { "page": "397", "parenthetical": "quoting State v. Jones, 89 N.C. App. 584, 589, 367 S.E.2d 139, 143 (1988)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/118/0389-01" ] }, { "cite": "497 U.S. 805", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6219632 ], "weight": 2, "year": 1990, "pin_cites": [ { "page": "816" }, { "page": "653" } ], "opinion_index": 0, "case_paths": [ "/us/497/0805-01" ] }, { "cite": "319 S.E.2d 254", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "259", "parenthetical": "applying the totality of circumstances analysis required by the Supreme Court of the United States to Fourth Amendment question" } ], "opinion_index": 0 }, { "cite": "311 N.C. 633", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4681578 ], "year": 1984, "pin_cites": [ { "page": "641", "parenthetical": "applying the totality of circumstances analysis required by the Supreme Court of the United States to Fourth Amendment question" } ], "opinion_index": 0, "case_paths": [ "/nc/311/0633-01" ] }, { "cite": "502 U.S. 346", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6226656 ], "weight": 2, "year": 1992, "pin_cites": [ { "page": "356" }, { "page": "859" } ], "opinion_index": 0, "case_paths": [ "/us/502/0346-01" ] }, { "cite": "448 U.S. 56", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1787607 ], "weight": 4, "year": 1980, "pin_cites": [ { "page": "66" }, { "page": "608" }, { "page": "66" }, { "page": "608" } ], "opinion_index": 0, "case_paths": [ "/us/448/0056-01" ] }, { "cite": "126 L. Ed. 2d 707", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1994, "opinion_index": 0 }, { "cite": "126 L. Ed. 2d 341", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1993, "opinion_index": 0 }, { "cite": "428 S.E.2d 118", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "136" } ], "opinion_index": 0 }, { "cite": "333 N.C. 350", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2549203 ], "year": 1993, "pin_cites": [ { "page": "379" } ], "opinion_index": 0, "case_paths": [ "/nc/333/0350-01" ] }, { "cite": "134 L. Ed. 2d 100", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1996, "opinion_index": 0 }, { "cite": "461 S.E.2d 687", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "page": "704" } ], "opinion_index": 0 }, { "cite": "341 N.C. 198", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 793223 ], "year": 1995, "pin_cites": [ { "page": "230-31" } ], "opinion_index": 0, "case_paths": [ "/nc/341/0198-01" ] }, { "cite": "389 S.E.2d 66", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "74" } ], "opinion_index": 0 }, { "cite": "326 N.C. 298", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5306390 ], "year": 1990, "pin_cites": [ { "page": "313" } ], "opinion_index": 0, "case_paths": [ "/nc/326/0298-01" ] }, { "cite": "393 S.E.2d 811", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "819" } ], "opinion_index": 0 }, { "cite": "327 N.C. 210", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2498848 ], "year": 1990, "pin_cites": [ { "page": "224" } ], "opinion_index": 0, "case_paths": [ "/nc/327/0210-01" ] }, { "cite": "392 S.E.2d 71", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1990, "pin_cites": [ { "page": "74-75" } ], "opinion_index": 0 }, { "cite": "326 N.C. 676", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5308707 ], "year": 1990, "pin_cites": [ { "page": "683" } ], "opinion_index": 0, "case_paths": [ "/nc/326/0676-01" ] }, { "cite": "392 S.E.2d 346", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "349" } ], "opinion_index": 0 }, { "cite": "326 N.C. 689", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5305505 ], "year": 1990, "pin_cites": [ { "page": "695" } ], "opinion_index": 0, "case_paths": [ "/nc/326/0689-01" ] } ], "analysis": { "cardinality": 1027, "char_count": 23691, "ocr_confidence": 0.768, "pagerank": { "raw": 3.776793342541898e-07, "percentile": 0.8963651934919757 }, "sha256": "f0b469bbec2a1bdd1651cba45c6cd34757ced47ce1060a08f2e10513d97db991", "simhash": "1:9a07433aff0e0748", "word_count": 3950 }, "last_updated": "2023-07-14T19:11:14.463583+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges WALKER and McGEE concur." ], "parties": [ "STATE OF NORTH CAROLINA v. ELIZABETH WASHINGTON JACKSON" ], "opinions": [ { "text": "GREENE, Judge.\nElizabeth Jackson (defendant) appeals from a jury verdict finding her guilty of assault with a deadly weapon with intent to kill inflicting serious injury and judgment and commitment sentencing her to imprisonment for a minimum of 108 months and a maximum of 139 months.\nThe State presented the following pertinent evidence: On 31 October 1994, General Jackson, III (Jackson) was shot five times with a .25 caliber semi-automatic pistol. On the same day, Edward Kelly (Kelly), an employee at Evergreen Cemetery, found defendant\u2019s car in the cemetery and after following tracks going into the woods, found Jackson \u201claying down in some weeds.\u201d\nAt 12:30 on 31 October, the defendant called her friend Tanzia to ask for a ride. Tanzia picked up the defendant, who had a shovel with her, and at the defendant\u2019s request, took her to Evergreen Cemetery. Once at the cemetery, defendant indicated that her car was stuck in the woods at the back of the cemetery. They proceeded to search for a tow truck to pull defendant\u2019s car out of the cemetery, but could not find anyone to do it. On the way back to defendant\u2019s home they drove by the cemetery and saw numerous emergency vehicles at the cemetery where defendant had indicated her car was located. At that time, defendant \u201cstarted crying\u201d and \u201csaying she shot [Jackson], she killed him.\u201d Tanzia saw that defendant had with her a small silver handgun with a brown handle, that defendant later gave to the magistrate at the Clerk\u2019s office.\nIn a statement made to the police, defendant stated that after initially shooting Jackson, she got back into the car, reloaded the gun and fired at Jackson two or three more times \u201cbecause he was getting up and coming back towards the car.\u201d At no time after shooting Jackson did she call an ambulance or attempt to get help for him.\nWalter Harrison, an employee of Harrison and Sons Body Shop, stated that the defendant came to the shop looking for a wrecker to get her car out of the cemetery and told him that she had shot someone. Harrison gave a statement to police, however, that stated that the defendant told him that Jackson shot himself.\nOfficer Jeff Branham (Branham) of the Winston-Salem Police Department responded to a call that defendant was at the old Clerk\u2019s office. The defendant was \u201chysterical\u201d and crying and \u201cwas mumbling something about killing somebody.\u201d The magistrate gave Branham a gun and a clip that defendant had given the magistrate. The gun was identified as a Raven .25 caliber pistol and it was determined that the five spent casings found at the cemetery were fired from that gun. A \u201cgunshot residue analysis\u201d was performed on both Jackson and defendant. The analysis was inconclusive as to whether Jackson or the defendant fired the gun. Jennifer Angel stated that the defendant had asked her about guns and how to load the gun without a clip and saw the defendant\u2019s handgun at defendant\u2019s house. Jackson\u2019s brother-in-law testified that defendant was very domineering towards Jackson.\nLillian Jackson (Mrs. Jackson), Jackson\u2019s mother, testified over defense counsel\u2019s objection that on 30 October she had a conversation with Jackson at which time he told her that on 29 October he and defendant had argued and in the early morning hours of 30 October on his way home, he saw defendant\u2019s car parked in a church parking lot and pulled over to speak with her. Jackson got out of his car and into the defendant\u2019s car. The defendant put a gun to Jackson\u2019s head and asked if that was \u201cwhat he wanted\u201d and then put the gun to her head and asked \u201cor is this what you want.\u201d Jackson then got out of the car and went to Mrs. Jackson\u2019s home and told her that the defendant was \u201cserious about hurting him and breaking up with him\u201d and that \u201cshe had scared him so bad\u201d that he was going to file for a \u201clegal separation\u201d the next day.\n\u2022The trial court found that this testimony was hearsay but admissible under Rule SOSCS), relevant under Rule 401 and that pursuant to Rule 403 \u201cthe probative value does outweigh any risk of prejudicial effect to the defendant.\u201d\nThe defendant presented the following evidence: Jackson and defendant purchased the Raven .25 caliber handgun in 1990 and kept it in a royal blue and gold bag. Jackson explained to the defendant how to use the gun and defendant shot the gun on one occasion as practice.\nDefendant informed Jackson in the middle of October that she was planning on moving to Florida and taking the children with her. She had packed all of her belongings and Jackson became aware of the fact that she was moving when he came to defendant\u2019s residence on 29 October to watch their child.\nVery early in the morning of 30 October Jackson and defendant met in a church parking lot. Jackson did not get into defendant\u2019s car and there was no gun present that defendant was aware of. On 31 October defendant picked up Jackson and their son from Mrs. Jackson\u2019s house at approximately 10:30 a.m. Defendant noticed that despite it being a warm and humid day Jackson was wearing a large coat. After driving around, Jackson requested that defendant pull the car into Evergreen Cemetery so that they could talk. Jackson told defendant to drive the car further into the cemetery away from the road. After talking for a while, Jackson got out of the car and asked defendant to give him a hug. She gave him a hug, but Jackson never removed his hands from his pockets. Defendant then got back into the car, but Jackson stood outside of the car on the passenger side. Defendant got out of the car again and Jackson then started asking her questions about moving to Florida and taking the children and began to \u201cget a little on the mad side.\u201d Defendant noticed that Jackson pulled out of his coat pocket the royal blue and gold sack in which they kept the gun. Upon seeing the sack, defendant ran around behind the car and heard the gun being fired, although she does not know in which direction the gun was fired and did not actually see the gun. Realizing that she was in danger, she charged Jackson. She remembers being pulled toward the woods and then getting to her feet, grabbing the gun, and as \u201can automatic reaction\u201d began firing the gun, the first shot hitting Jackson in the side.\nAfter firing a number of shots, defendant got into the car and began following Jackson in the car so that she \u201ccould tell someone where [she] remember[s] last seeing him.\u201d She got out of the car and followed Jackson to where he lay bleeding and still breathing. Not knowing what to do, defendant got back into the car and began looking for her keys, and found a box of ammunition that \u201cobviously was planted in the car at some point.\u201d Eventually defendant, carrying the child, walked out of the cemetery, leaving the car stuck in the mud.\nDefendant got a ride home and phoned her mother and told her that Jackson had tried to kill her and that she had shot him. She then called Tanzia who came to pick her up. Defendant got a shovel from the tool shed to use to get her car out of the mud. Defendant remembers asking Richard Porter where she could get a truck to tow her car, but doesn\u2019t remember saying anything else to him. She remembers asking another person to get her car but does not remember telling the person that she shot a man. They then drove to pick up her other son from daycare, went to Hardee\u2019s and then drove by the cemetery again on her way to the Clerk\u2019s office. Defendant gave the gun to someone at the Clerk\u2019s office and then was taken to the Public Safety Center by a police officer. Between the time of the shooting and the time that defendant went to the Clerk\u2019s office was approximately two hours. On cross-examination, defendant stated that she did not remember telling Branham or Tanzia that she had \u201ckilled\u201d Jackson, but only that she had shot him.\nTanya Roan testified that defendant had told her in October that she was moving to Florida and saw that her things had been packed. Margie McDonald recalled seeing Jackson strike defendant once when he was \u201cdefending himself.\u201d\nAt the time of the trial Jackson was still in rehabilitative therapy, his worst problem being his ability to communicate. \u201cHe is able to answer yes or no questions kind of inconsistently,\u201d meaning that he does not give appropriate responses half of the time, and he cannot put phrases together. On voir dire, however, after questioning by both parties, the trial court ruled that Jackson was \u201ccompetent to testify in this matter as a witness.\u201d Jackson was not called as a witness in this case by either the State or the defendant although he was in the courtroom.\nThe trial court instructed the jury on self-defense.\nThe issues are whether: (I) Mrs. Jackson\u2019s testimony of her conversation with Jackson is admissible under Rules 803(3), 401 and 403; (II) the testimony violated the defendant\u2019s State and/or Federal Constitutional Rights to confront the witnesses against her; and if so, (III) the error was harmless.\nI\nState of Mind Exception\n\u201cEvidence tending to show the state of mind of the victim is admissible [pursuant to Rule 803(3)] as long as the declarant\u2019s state of mind is relevant [pursuant to Rule 401] to the case.\u201d State v. Meekins, 326 N.C. 689, 695, 392 S.E.2d 346, 349 (1990). In this case, the victim\u2019s state of mind is relevant to rebut the defendant\u2019s self-defense inferences that she did not shoot Jackson until he first pulled a gun and shot at her. State v. Faucette, 326 N.C. 676, 683, 392 S.E.2d 71, 74-75 (1990). \u201cThe jury could infer from the evidence regarding [Jackson\u2019s] state of mind that it was unlikely that [he] would do anything to provoke defendant....\u201d Id. Furthermore, the evidence is relevant to show the state of mind of Jackson and the relationship between him and his wife, the defendant, shortly before the assault. State v. Lynch, 327 N.C. 210, 224, 393 S.E.2d 811, 819 (1990); State v. Cummings, 326 N.C. 298, 313, 389 S.E.2d 66, 74 (1990); see State v. Alston, 341 N.C. 198, 230-31, 461 S.E.2d 687, 704 (1995), cert. denied, \u2014 U.S. \u2014, 134 L. Ed. 2d 100 (1996).\nDefendant argues that the evidence should not have been admitted because pursuant to Rule 403, \u201cthe testimony was extremely prejudicial to the defendant.\u201d The exclusion of evidence under Rule 403 is within the sound discretion of the trial court. State v. Syriani, 333 N.C. 350, 379, 428 S.E.2d 118, 136, cert. denied, 510 U.S. \u2014, 126 L. Ed. 2d 341 (1993), reh\u2019g denied, 510 U.S. \u2014, 126 L. Ed. 2d 707 (1994). The record reveals that the trial court carefully reviewed the evidence and determined that the probative value outweighed any prejudicial effect to the defendant and we determine that there was no abuse of discretion.\nThe defendant also argues that error was committed because the trial court admitted Mrs. Jackson\u2019s testimony for the purpose of showing the motive of the defendant. Although the trial court did indicate at the conclusion of the voir dire that it was admitting Mrs. Jackson\u2019s testimony for several purposes, including to show the motive of the defendant, there is nothing in the record indicating that this information was made available to the jury. Accordingly, any error committed by this trial court on this issue could not have prejudiced the defendant.\nII\nConfrontation Clause\nThe defendant argues that because Jackson was available and competent and did not testify, the admission of Jackson\u2019s hearsay statements was violative of the defendant\u2019s state and federal constitutional rights under the Confrontation Clauses. Specifically the defendant argues that because the out-of-court declarant (Jackson) was available and was not called as a witness, it violated his constitutional confrontational rights to admit the out-of-court statements through the testimony of Mrs. Jackson.\nThe federal and North Carolina constitutions provide that in criminal prosecutions the accused shall have the right to confront the witnesses against him. U.S. Const, amend. VI; N.C. Const, art. I, \u00a7 23.\nUnited States Constitution\nIn 1980 the United States Supreme Court interpreted the Confrontation Clause of the Sixth Amendment to require that before hearsay statements could be received into evidence in a criminal case, the State must show that the hearsay declarant is unavailable and that the statement \u201cbears adequate \u2018indicia of reliability.\u2019 \u201d Ohio v. Roberts, 448 U.S. 56, 66, 65 L. Ed. 2d 597, 608 (1980). In 1992 the United States Supreme Court essentially eliminated the \u201cunavailability\u201d or necessity prong of the Roberts test and held that \u201cwhere proffered hearsay has sufficient guarantees of reliability to come within a firmly rooted exception to the hearsay rule, the Confrontation Clause is satisfied.\u201d White v. Illinois, 502 U.S. 346, 356, 116 L. Ed. 2d 848, 859 (1992).\nThe North Carolina courts are bound by the United States Supreme Court interpretation of the United States Constitution. See State v. Arrington, 311 N.C. 633, 641, 319 S.E.2d 254, 259 (1984) (applying the totality of circumstances analysis required by the Supreme Court of the United States to Fourth Amendment question). Accordingly, the admission in a criminal trial of hearsay testimony does not violate the Confrontation Clause contained in the United States Constitution if the evidence is reliable. There is no requirement that the State also show that the out-of-court declarant is unavailable to testify. The evidence is sufficiently reliable \u201cwhere the hearsay statement \u2018falls within a firmly rooted hearsay exception,\u2019 or where it is supported by a \u2018showing of particularized guarantees of trustworthiness.\u2019 \u201d Idaho v. Wright, 497 U.S. 805, 816, 111 L. Ed. 2d 638, 653 (1990), (quoting Roberts, 448 U.S. at 66, 65 L. Ed. 2d at 608).\nNorth Carolina Constitution\nThis Court has consistently held that:\n\u201cTo introduce hearsay evidence in a criminal trial, the prosecution must meet two requirements: (1) it must show the necessity for using hearsay testimony, and (2) it must establish the inherent trustworthiness of the original declaration.\u201d\nState v. Ward, 118 N.C. App. 389, 397, 455 S.E.2d 666, 670 (1995) (quoting State v. Jones, 89 N.C. App. 584, 589, 367 S.E.2d 139, 143 (1988)); see State v. Rogers, 109 N.C. App. 491, 498-99, 428 S.E.2d 220, 225 (defendant argued both federal and state constitutions), cert. denied, 334 N.C. 625, 435 S.E.2d 348 (1993), cert. denied, 511 U.S. \u2014, 128 L. Ed. 2d 54, reh\u2019g denied, 511 U.S. \u2014, 128 L. Ed. 2d 495 (1994); In re Lucas, 94 N.C. App. 442, 446, 380 S.E.2d 563, 565-67 (1989); State v. Gregory, 78 N.C. App. 565, 568, 338 S.E.2d 110, 112 (1985), dismissal allowed, disc. rev. denied, 316 N.C. 382, 342 S.E.2d 901 (1986).\nOur North Carolina Supreme Court has likewise held that there is a \u201ctwo-prong constitutional test for the admission of .hearsay under the confrontation clause, i.e., necessity and trustworthiness.\u201d State v. Peterson, 337 N.C. 384, 392, 446 S.E.2d 43, 48 (1994) (defendant argued both federal and state constitutions); see State v. Swindler, 339 N.C. 469, 472, 450 S.E.2d 907, 910 (1994); State v. Felton, 330 N.C. 619, 641, 412 S.E.2d 344, 357 (1992) (defendant argued both federal and state constitutions); State v. Deanes, 323 N.C. 508, 515, 374 S.E.2d 249, 255 (1988) (defendant argued both federal and state constitutions), cert. denied, 490 U.S. 1101, 104 L. Ed. 2d 1009 (1989).\nOn the other hand there are opinions from our Supreme Court holding that \u201cstatements falling within an exception to the general prohibition against hearsay may be admitted into evidence without violating a defendant\u2019s right to confrontation, if the evidence is reliable.\u201d State v. Stager, 329 N.C. 278, 317, 406 S.E.2d 876, 898 (1991) (defendant argued both federal and state constitutions); see State v. Gainey, 343 N.C. 79, 86, 468 S.E.2d 227, 232 (1996); State v. Brown, 339 N.C. 426, 438, 451 S.E.2d 181, 189 (1994), cert. denied, \u2014 U.S. \u2014, 133 L. Ed. 2d 46 (1995); State v. Roper, 328 N.C. 337, 359, 402 S.E.2d 600, 612-13 (defendant argued both federal and state constitutions), cert. denied, 502 U.S. 902, 116 L. Ed. 2d 232 (1991). Although this second line of cases makes no mention of a necessity prong, in each of the cases (with the exception of Gainey) the out-of-court declarant was unavailable and it was thus not disputed that the necessity prong was satisfied. We therefore do not read this second line of cases as abandoning the unequivocal necessity prong adopted by that Court in the first line of cases.\nAlthough our state courts are bound to follow the United States Supreme Court\u2019s construction of the federal constitution, we are free to \u201cconstrue our own constitution differently\u201d from the construction given the federal constitution, even when the provisions are identical; provided \u201cour citizens are thereby accorded no lesser rights than they are guaranteed by the parallel federal provision.\u201d State v. Carter, 322 N.C. 709, 713, 370 S.E.2d 553, 555 (1988). The federal and state constitutional provisions relating to the right to confrontation are essentially identical and the case law in this state supports the conclusion that a defendant is entitled to greater protection under the Confrontation Clause of the state constitution than he is entitled to under the federal constitution. Therefore, the prosecution in a criminal trial must, as a prerequisite to the introduction of hearsay evidence, show the necessity for using the hearsay testimony and establish the inherent trustworthiness of the original declaration.\nIn this case, although Mrs. Jackson\u2019s testimony falls within a firmly rooted hearsay exception, because Jackson (the out-of-court declarant) was available as a witness, the trial court erred in admitting Mrs. Jackson\u2019s testimony of her conversation with Jackson.\nIll\nWe must now consider whether the trial court\u2019s erroneous admission of Mrs. Jackson\u2019s testimony was prejudicial to the defendant. Because the error is of constitutional dimensions it is \u201cpresumed to be prejudicial\u201d and entitles the defendant \u201cto a new trial unless the error committed was harmless beyond a reasonable doubt.\u201d State v. Brown, 306 N.C. 151, 164, 293 S.E.2d 569, 578, cert. denied, 459 U.S. 1080, 74 L. Ed. 2d 642 (1982); cf. N.C.G.S. \u00a7 15A-1443(b) (1988) (violation of federal constitution is prejudicial unless harmless beyond a reasonable doubt).\nOur review of the entire record reveals that the hearsay testimony of Mrs. Jackson was central to the State\u2019s case. That evidence: (1) placed a handgun in the possession of the defendant the day before the assault; (2) shows that the defendant threatened the life of Jackson with that handgun the day before the assault; and (3) reveals that Jackson was \u201cscared\u201d of the defendant. This evidence is inconsistent with reasonable inferences to be drawn from the defendant\u2019s testimony at trial: (1) she did not have a handgun on the day of the assault; (2) Jackson had the handgun and was the aggressor on the day of the assault; and (3) she shot Jackson only in self-defense. Because of the vital importance of the hearsay testimony to the State\u2019s case, the State has failed to meet its burden of showing that the testimony was not prejudicial. In the context of a constitutional error it is only the presence of overwhelming evidence of guilt that renders the error harmless beyond a reasonable doubt. State v. Autry, 321 N.C. 392, 403, 364 S.E.2d 341, 348 (1988). The evidence in this case is not overwhelming.\nNew Trial.\nJudges WALKER and McGEE concur.\n. At the conclusion of a voir dire hearing on the admissibility of Mrs. Jackson\u2019s testimony the trial court stated (outside the presence of the jury) that the testimony tended \u201cto show several things:\u201d (1) the marital problems the defendant and the victim were having; (2) the intent of the victim to break up with the defendant; (3) the lack of provocation by the victim; and (4) the motive of the defendant.\n. The White Court noted that the \u201cunavailability\u201d analysis remains a \u201cnecessary part of the Confrontation Clause inquiry . . . when the challenged out-of-court statements were made in the course of a prior judicial proceeding.\u201d White, 502 U.S. 354, 116 L. Ed. 2d. at 858.\n. In this case the facts do not reveal whether the out-of-court declarant was available or unavailable.\n. The Sixth Amendment provides in pertinent part: \u201cIn all criminal prosecutions the accused shall enjoy the right to ... be confronted with the witnesses against him.\u201d U.S. Const., Amend. VI. The North Carolina Constitution provides in pertinent part: \u201cIn all criminal prosecutions, every person charged with crime has the right... to confront the accusers and witnesses with other testimony.\u201d N.C. Const, art. I, \u00a7 23.", "type": "majority", "author": "GREENE, Judge." } ], "attorneys": [ "Attorney General Michael F. Easley, by Special Deputy Attorney General Hilda Bumett-Baker, for the State.", "J. Darren Byers, for defendant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. ELIZABETH WASHINGTON JACKSON\nNo. COA96-565\n(Filed 6 May 1997)\n1. Evidence and Witnesses \u00a7 876 (NCI4th)\u2014 statements of victim \u2014 hearsay\u2014state of mind exception\nTestimony by an assault victim\u2019s mother that the victim told her that defendant had put a gun to his head and asked him if that was \u201cwhat he wanted\u201d and that defendant was \u201cserious about hurting him and breaking up with him\u201d and that \u201cshe scared him so bad\u201d that he was going to file for a legal separation from her was admissible under the state of mind exception to the hearsay rule to rebut defendant\u2019s testimony that she shot the victim in self-defense and to show the relationship between the victim and defendant. Furthermore, the trial court did not abuse its discretion in finding that the probative value of this testimony outweighed any prejudice to defendant. N.C.G.S. \u00a78C-1, Rules 803(3) and 403.\nAm Jur 2d, Evidence \u00a7 667.\n2. Evidence and Witnesses \u00a7 927 (NCI4th)\u2014 hearsay \u2014 reliability \u2014 Confrontation Clause of U.S. Constitution\nThe admission of hearsay statements in a criminal trial did not violate the Confrontation Clause of the U.S. Constitution without a showing that the out-of-court declarant was unavailable.\nAm Jur 2d, Constitutional Law \u00a7 849; Evidence \u00a7 832.\nResidual hearsay exception where declarant unavailable, Uniform Evidence Rule 804(b)(5). 75 ALR4th 199.\n3. Evidence and Witnesses \u00a7 927 (NCI4th)\u2014 hearsay \u2014 necessity and trustworthiness \u2014 Confrontation Clause of N.C. Constitution \u2014 available declarant\nNecessity and trustworthiness are prerequisites to the introduction of hearsay testimony under the Confrontation Clause of the N.C. Constitution; therefore, although testimony fell within a firmly rooted hearsay exception, the trial court erred in admitting the testimony because the declarant was available as a witness.\nAm Jur 2d, Evidence \u00a7\u00a7 685, 786.\nResidual hearsay exception where declarant unavailable, Uniform Evidence Rule 804(b)(5). 75 ALR4th 199.\n4. Evidence and Witnesses \u00a7 735 (NCI4th)\u2014 hearsay testimony \u2014 prejudicial error\nThe trial court\u2019s erroneous admission of hearsay testimony relating to the victim\u2019s state of mind was prejudicial to defendant where the hearsay evidence placed a handgun in the possession of defendant the day before the assault, showed that defendant threatened the victim\u2019s life with the handgun the day before the assault, showed that the victim was \u201cscared\u201d of defendant, and was inconsistent with defendant\u2019s testimony that the victim was the aggressor on the day of the assault and that defendant shot only in self-defense.\nAm Jur 2d, Evidence \u00a7\u00a7 333, 659.\nResidual hearsay exception where declarant unavailable, Uniform Evidence Rule 804(b)(5). 75 ALR4th 199.\nAppeal by defendant from judgment entered 16 November 1995 in Forsyth County Superior Court by Judge Jerry Cash Martin. Heard in the Court of Appeals on 19 March 1997.\nAttorney General Michael F. Easley, by Special Deputy Attorney General Hilda Bumett-Baker, for the State.\nJ. Darren Byers, for defendant." }, "file_name": "0129-01", "first_page_order": 167, "last_page_order": 177 }