{ "id": 11092797, "name": "STATE OF NORTH CAROLINA v. STEPHEN CLAY JONES, SR.", "name_abbreviation": "State v. Jones", "decision_date": "2000-04-04", "docket_number": "No. COA99-437", "first_page": "221", "last_page": "234", "citations": [ { "type": "official", "cite": "137 N.C. App. 221" } ], "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": "421 U.S. 684", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 541415 ], "opinion_index": -1, "case_paths": [ "/us/421/0684-01" ] }, { "cite": "358 S.E.2d 502", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "510" } ], "opinion_index": 0 }, { "cite": "320 N.C. 387", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4731555 ], "year": 1987, "pin_cites": [ { "page": "399" } ], "opinion_index": 0, "case_paths": [ "/nc/320/0387-01" ] }, { "cite": "488 S.E.2d 133", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "page": "141" } ], "opinion_index": 0 }, { "cite": "346 N.C. 669", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 139387 ], "year": 1997, "pin_cites": [ { "page": "684-85" } ], "opinion_index": 0, "case_paths": [ "/nc/346/0669-01" ] }, { "cite": "466 U.S. 668", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6204802 ], "weight": 2, "year": 1984, "pin_cites": [ { "page": "687" }, { "page": "693" } ], "opinion_index": 0, "case_paths": [ "/us/466/0668-01" ] }, { "cite": "250 S.E.2d 228", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "pin_cites": [ { "page": "231" } ], "opinion_index": 0 }, { "cite": "296 N.C. 394", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566356 ], "year": 1979, "pin_cites": [ { "page": "399" } ], "opinion_index": 0, "case_paths": [ "/nc/296/0394-01" ] }, { "cite": "401 S.E.2d 102", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "105" } ], "opinion_index": 0 }, { "cite": "101 N.C. App. 653", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8528023 ], "year": 1991, "pin_cites": [ { "page": "657" } ], "opinion_index": 0, "case_paths": [ "/nc-app/101/0653-01" ] }, { "cite": "215 S.E.2d 348", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1975, "pin_cites": [ { "page": "363" }, { "page": "368" } ], "opinion_index": 0 }, { "cite": "287 N.C. 266", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562576 ], "weight": 2, "year": 1975, "pin_cites": [ { "page": "290" }, { "page": "298" } ], "opinion_index": 0, "case_paths": [ "/nc/287/0266-01" ] }, { "cite": "307 S.E.2d 339", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1983, "pin_cites": [ { "page": "353" }, { "page": "353" }, { "page": "353" } ], "opinion_index": 0 }, { "cite": "309 N.C. 239", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4761933 ], "year": 1983, "pin_cites": [ { "page": "264" } ], "opinion_index": 0, "case_paths": [ "/nc/309/0239-01" ] }, { "cite": "242 S.E.2d 844", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1978, "pin_cites": [ { "page": "849" } ], "opinion_index": 0 }, { "cite": "294 N.C. 474", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574012 ], "year": 1978, "pin_cites": [ { "page": "480" } ], "opinion_index": 0, "case_paths": [ "/nc/294/0474-01" ] }, { "cite": "392 S.E.2d 71", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "75" } ], "opinion_index": 0 }, { "cite": "326 N.C. 676", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5308707 ], "year": 1990, "pin_cites": [ { "page": "684" } ], "opinion_index": 0, "case_paths": [ "/nc/326/0676-01" ] }, { "cite": "406 S.E.2d 876", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "899" } ], "opinion_index": 0 }, { "cite": "329 N.C. 278", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2554614 ], "year": 1991, "pin_cites": [ { "page": "318" } ], "opinion_index": 0, "case_paths": [ "/nc/329/0278-01" ] }, { "cite": "503 S.E.2d 101", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "107" } ], "opinion_index": 0 }, { "cite": "348 N.C. 644", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1659841 ], "year": 1998, "pin_cites": [ { "page": "654" } ], "opinion_index": 0, "case_paths": [ "/nc/348/0644-01" ] }, { "cite": "448 U.S. 56", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1787607 ], "weight": 3, "year": 1980, "pin_cites": [ { "page": "66" }, { "page": "608" } ], "opinion_index": 0, "case_paths": [ "/us/448/0056-01" ] }, { "cite": "471 S.E.2d 605", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "page": "618", "parenthetical": "holding that: \"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.\"" } ], "opinion_index": 0 }, { "cite": "343 N.C. 313", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 798758 ], "year": 1996, "pin_cites": [ { "page": "335", "parenthetical": "holding that: \"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.\"" } ], "opinion_index": 0, "case_paths": [ "/nc/343/0313-01" ] }, { "cite": "497 S.E.2d 98", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "103", "parenthetical": "holding that fact-laden statements are usually purposeful expressions of some state of mind and are therefore admissible under Rule 803(3)" } ], "opinion_index": 0 }, { "cite": "128 N.C. App. 647", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11656401 ], "year": 1998, "pin_cites": [ { "page": "655", "parenthetical": "holding that fact-laden statements are usually purposeful expressions of some state of mind and are therefore admissible under Rule 803(3)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/128/0647-01" ] }, { "cite": "433 S.E.2d 183", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "opinion_index": 0 }, { "cite": "334 N.C. 437", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2529857, 2528988, 2532432, 2528433, 2532220 ], "year": 1993, "opinion_index": 0, "case_paths": [ "/nc/334/0437-04", "/nc/334/0437-03", "/nc/334/0437-01", "/nc/334/0437-02", "/nc/334/0437-05" ] }, { "cite": "429 S.E.2d 363", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "opinion_index": 0 }, { "cite": "110 N.C. App. 138", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525080 ], "year": 1993, "opinion_index": 0, "case_paths": [ "/nc-app/110/0138-01" ] }, { "cite": "460 S.E.2d 123", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "page": "131" } ], "opinion_index": 0 }, { "cite": "341 N.C. 36", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 793072 ], "year": 1995, "pin_cites": [ { "page": "49" } ], "opinion_index": 0, "case_paths": [ "/nc/341/0036-01" ] }, { "cite": "112 L. Ed. 2d 1062", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1991, "opinion_index": 0 }, { "cite": "498 U.S. 1092", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6564193, 6564257, 6564067, 6564033, 6564101, 6564166, 6564041, 6564142, 6564239, 6564081, 6564052, 6564278, 6564120, 6564026, 6564220 ], "year": 1991, "opinion_index": 0, "case_paths": [ "/us/498/1092-11", "/us/498/1092-14", "/us/498/1092-05", "/us/498/1092-02", "/us/498/1092-07", "/us/498/1092-10", "/us/498/1092-03", "/us/498/1092-09", "/us/498/1092-13", "/us/498/1092-06", "/us/498/1092-04", "/us/498/1092-15", "/us/498/1092-08", "/us/498/1092-01", "/us/498/1092-12" ] }, { "cite": "394 S.E.2d 158", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "opinion_index": 0 }, { "cite": "327 N.C. 194", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2499305 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/nc/327/0194-01" ] }, { "cite": "513 S.E.2d 57", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1999, "pin_cites": [ { "page": "65" } ], "opinion_index": 0 }, { "cite": "350 N.C. 193", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 132086 ], "weight": 2, "year": 1999, "pin_cites": [ { "page": "206" } ], "opinion_index": 0, "case_paths": [ "/nc/350/0193-01" ] }, { "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": "426 S.E.2d 692", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "697" } ], "opinion_index": 0 }, { "cite": "333 N.C. 431", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2546948 ], "year": 1993, "pin_cites": [ { "page": "440" } ], "opinion_index": 0, "case_paths": [ "/nc/333/0431-01" ] }, { "cite": "99 L. Ed. 2d 912", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1988, "opinion_index": 0 }, { "cite": "485 U.S. 1036", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 13312, 13445, 13287, 13545, 13740, 13965, 13233, 14131, 13397, 13238, 13399, 13750, 13849, 13725 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/us/485/1036-05", "/us/485/1036-12", "/us/485/1036-11", "/us/485/1036-04", "/us/485/1036-06", "/us/485/1036-14", "/us/485/1036-08", "/us/485/1036-10", "/us/485/1036-01", "/us/485/1036-02", "/us/485/1036-13", "/us/485/1036-03", "/us/485/1036-09", "/us/485/1036-07" ] }, { "cite": "362 S.E.2d 244", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "251" } ], "opinion_index": 0 }, { "cite": "321 N.C. 201", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2569839 ], "year": 1987, "pin_cites": [ { "page": "213" } ], "opinion_index": 0, "case_paths": [ "/nc/321/0201-01" ] }, { "cite": "300 S.E.2d 357", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "376" } ], "opinion_index": 0 }, { "cite": "307 N.C. 655", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565416 ], "year": 1983, "pin_cites": [ { "page": "656" } ], "opinion_index": 0, "case_paths": [ "/nc/307/0655-01" ] }, { "cite": "421 U.S. 684", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 541415 ], "weight": 4, "pin_cites": [ { "page": "704" }, { "page": "522" } ], "opinion_index": 0, "case_paths": [ "/us/421/0684-01" ] } ], "analysis": { "cardinality": 1133, "char_count": 30189, "ocr_confidence": 0.746, "pagerank": { "raw": 3.1896581774696783e-07, "percentile": 0.8650566114086188 }, "sha256": "30951ee2ca87806c5174a9bea3d90cd3a91552327ed6f37fac719771af0b4e21", "simhash": "1:c33cec2244c035c2", "word_count": 4954 }, "last_updated": "2023-07-14T18:42:18.277293+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges MARTIN and HUNTER concur." ], "parties": [ "STATE OF NORTH CAROLINA v. STEPHEN CLAY JONES, SR." ], "opinions": [ { "text": "WYNN, Judge.\nThis appeal arises from the defendant\u2019s conviction of first degree murder of his wife. He presents several issues challenging the fairness of his trial including the admission of hearsay evidence, an instruction to the jury on the defense of unconsciousness or automatism, the admission of character evidence and the ineffective assistance of his counsel. We find no prejudicial error in his conviction.\nStephen Clay Jones, Sr. and Frances Riggs Jones were married for 23 years. Up until Ms. Jones\u2019 death, they lived with their two children in New Bern, North Carolina.\nAfter an assailant attacked Frances at her home in 1985, she kept four guns \u2014 one in her purse, one in her car, one in her dresser, and one .38 caliber pistol under her bed pillow.\nThe couple awakened early on the morning of 8 June 1997 and Frances cut Stephen\u2019s hair. They went out to breakfast, shopped, and visited the grave of Frances\u2019 sister. They returned home, relaxed, and had sexual relations in their bed. Frances showered and the couple took an afternoon nap together in their bed.\nAccording to Stephen, a loud bang woke him up and he found a gun lying next to his face and Frances bleeding. He called 911 crying and telling the operator he had just shot his wife and she needed an ambulance. He said that he did not remember shooting his wife and if he did so, he did not do it deliberately.\nResponding to the 911 call, police officers arrived at the Jones\u2019 home. Stephen came outside, crying and still holding the phone. He put the phone down and got on the ground as soon as the officers told him to do so.\nThe police officers found Frances on the right side of her bed. She lay flat on her back with her arms straight down at her sides. Her feet touched the end of the bed and her nightgown was bunched up under her buttocks. Her head lay partially on the pillow, facing right, but blood stains on the pillow failed to help the investigators determine whether Frances was shot lying down. The pillow partially covered the .38 caliber pistol, which had one fired casing and five live rounds. The police officers found a .38 caliber bullet lodged in the window facing next to and above the bed but the bullet was too damaged to determine if it had been fired from the .38 caliber pistol found under the pillow.\nForensic residue tests on Frances\u2019 and Stephen\u2019s hands were inconclusive as to whether either had recently fired a gun. An autopsy revealed that a bullet entered Frances\u2019 skull behind her left ear and exited behind her right ear. The bullet passed through her brain, instantly killing her. The gun fired the bullet six to twelve inches away from her head, but the pathologist could not determine Frances\u2019 position at the time of the shooting.\nStephen\u2019s evidence at trial showed that Frances could have been lying down when shot from close range. The State\u2019s evidence showed that she could have been shot while sitting up.\nThe State and Stephen presented conflicting testimony at trial as to the nature of the couple\u2019s marital relationship. Several State witnesses testified that a man identifying himself as Stephen Jones made several phone calls to Frances\u2019 place of employment during the six weeks before her death \u2014 usually asking whether Frances was at work, and on occasion, talking to Frances.\nFrances\u2019 coworkers described her as well-liked, friendly, and hard-working. Some of her coworkers revealed conversations with Frances in the weeks before her death in which she said that she had a jealous husband who had threatened to kill her many times. Some coworkers also testified that on a few occasions, Frances would not let anyone walk her to her car after work, saying that her husband might be waiting for her in the parking lot.\nThe State also presented evidence that Frances may have had a cut on her mouth. Witnesses for the defendant testified otherwise.\nIn his testimony, Stephen described Frances as friendly, hardworking, and honest. He revealed a year-long extra-marital affair in 1985, but stated that he had been faithful for a long time and Frances forgave him. He testified that he rarely visited or called Frances\u2019 workplace, and that he made no phone calls there between 1 May and 8 June 1997. His cellular phone records showed no calls placed to Frances\u2019 workplace during that period.\nStephen also presented telephone records showing that Michael Godwin, a former employee at Frances\u2019 workplace, made 41 calls to the mill and eight more to the Jones\u2019 residence during May and June 1997. One of Frances\u2019 coworkers testified that she had once spent a couple of hours talking to Godwin on the phone. Godwin himself did not testify since he could not be found and subpoenaed.\nJack Jones, the couple\u2019s 17-year-old son, testified that he had never seen his parents argue or fight; that he had never seen his father hit his mother; and that Frances had a fever blister on her mouth but no other injuries.\nDr. Rodney Radtke testified that after Frances\u2019 death, he diagnosed Stephen as suffering from REM Sleep Disorder \u2014 a condition where normal muscle relaxation fails during the dream stage of sleep and the sleeper acts out his dreams. The sleeper usually vividly recollects his REM Sleep Disorder dreams, but not always. Typical behavior while sleeping can include kicking, fighting, cussing, dragging a person down the stairs, and trying to break a person\u2019s neck. Dr. Radtke testified that a person with REM Sleep Disorder could fire a gun while asleep, especially if the gun was easily accessible. He based Stephen\u2019s diagnosis on his sleep habits aside from the shooting incident.\nThe defendant\u2019s evidence showed that he suffered REM Sleep Disorder episodes anywhere from two-to-three times a year to two-to-three times a month. On various occasions while sleeping, he kicked and damaged a wall, kicked a bedpost, squeezed and grabbed his wife and put his hand over her mouth, jumped out of bed and ran into a wall, and beat and scratched himself. While in the county jail after his arrest in this case, Stephen\u2019s cell mate watched him dive into the cell door while asleep, and twice had to restrain him from running in his sleep.\nDr. Radtke speculated that since Stephen had only an eighth grade education, he could not have read about REM Sleep Disorder and faked the symptoms. Further, Dr. Radtke testified that if Stephen was making up his symptoms, he probably would have claimed to \u201cremember\u201d a dream about shooting a gun.\nAt the close of all evidence, the trial court instructed the jury on the charges of first degree murder, second degree murder, and involuntary manslaughter. The court also instructed the jury about the affirmative defense of unconsciousness or automatism. The jury found the defendant guilty of first degree murder and the trial judge sentenced him to imprisonment for life without parole. The defendant appealed.\nI.\nThe defendant first argues that the trial court erred by admitting irrelevant and highly prejudicial hearsay evidence concerning his alleged jealousy and threats to kill his wife. We disagree.\nBecause the defendant did not object at trial to any of the evidence complained of in this assignment of error, we review this issue under the plain error standard of review. N.C.R. App. P. 10(b)(1), State v. Odom, 307 N.C. 655, 656, 300 S.E.2d 357, 376 (1983). Plain error is an error which was \u201cso fundamental as to amount to a miscarriage of justice or which probably resulted in the jury reaching a different verdict than it otherwise would have reached.\u201d State v. Bagley, 321 N.C. 201, 213, 362 S.E.2d 244, 251 (1987), cert. denied, 485 U.S. 1036, 99 L. Ed. 2d 912 (1988). To prevail under a plain error analysis, a defendant must establish not only that the trial court committed error, but that absent the error, the jury probably would have reached a different result. See State v. Jordan, 333 N.C. 431, 440, 426 S.E.2d 692, 697 (1993).\nThe defendant argues that the trial court erroneously allowed the State to introduce under N.C.R. Evid. 803(3) \u2014 the state-of-mind exception to the hearsay rule \u2014 numerous statements made by Frances to several coworkers that he was a jealous man and had repeatedly threatened to kill her. He contends that these statements were inadmissible hearsay and also violated his right to confront the witnesses against him.\nHearsay is \u201ca 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.\u201d N.C.R. Evid. 801(c). Generally, hearsay is not admissible. N.C.R. Evid. 802. However, numerous exceptions to this rule exist, including Rule 803(3) which allows admission of a \u201cstatement of the declarant\u2019s then existing state of mind, emotion, sensation, or physical condition . . . but not including a statement of memory or belief to prove the fact remembered or believed . . . .\u201d Such a statement must also be relevant to a fact at issue in the case (Rule 402) and its probative value must not be substantially outweighed by its prejudicial impact (Rule 403). See State v. Cummings, 326 N.C. 298, 313, 389 S.E.2d 66, 74 (1990).\nIn this case, the defendant argues that Frances\u2019 statements concerning his alleged jealousy and threats to kill her should not have been admitted because the statements were recitations of remembered facts and not statements about her existing state of mind, emotions, sensation, or physical condition. But our courts have repeatedly found admissible under Rule 803(3) a declarant\u2019s statements of fact that indicate her state of mind, even if they do not explicitly contain an accompanying statement of the declarant\u2019s state of mind.\nIndeed, most recently, in the case of State v. Brown, 350 N.C. 193, 513 S.E.2d 57 (1999), our Supreme Court held that a decedent\u2019s factual statements about the status of his marriage exposed how he felt about the marriage and were therefore state-of-mind statements, despite the fact that he did not explicitly state how he felt about the situation. The Court also held that the statements corroborated a possible motive for the defendant\u2019s act of murder. Accord, State v. Payne, 327 N.C. 194, 394 S.E.2d 158 (1990), cert. denied, 498 U.S. 1092, 112 L. Ed. 2d 1062 (1991). Moreover, the decedent\u2019s statements in Brown rebutted testimony by the defendant that her marriage to the victim was a happy marriage. Rebuttal testimony needs no special rule to allow its admission. See State v. Lambert, 341 N.C. 36, 49, 460 S.E.2d 123, 131 (1995).\nEarlier, in State v. Mixion, 110 N.C. App. 138, 429 S.E.2d 363, review denied, 334 N.C. 437, 433 S.E.2d 183 (1993), we held that state-merits about feelings need not accompany statements of fact to be admissible under Rule 803(3). In Mixion, the decedent made statements that the defendant harassed her and threatened her, but she did not express fear or any other emotion. These statements, although entirely factual, in effect showed the decedent\u2019s state of mind when she uttered them and were therefore admissible under Rule 803(3). See also State v. Exum, 128 N.C. App. 647, 655, 497 S.E.2d 98, 103 (1998) (holding that fact-laden statements are usually purposeful expressions of some state of mind and are therefore admissible under Rule 803(3)). And the factual statements by the decedent in Mixion were relevant to the case because they related directly to the decedent\u2019s relationship with the defendant. Accord Exum; State v. Scott, 343 N.C. 313, 335, 471 S.E.2d 605, 618 (1996) (holding that: \u201cIt is well established in North Carolina that a murder victim\u2019s statements falling within the state of mind exception to the hearsay rule are highly relevant to show the status of the victim\u2019s relationship to the defendant.\u201d)\nIn this case, Frances\u2019 statements that her husband was jealous and had repeatedly threatened to kill her were arguably no more than recitations of fact. However, the facts that she recited tended to show her state of mind as to her marriage and were therefore admissible under Rule 803(3). See Brown, supra; Exum, supra; and Mixion, supra. Further, since her statements indicated her relationship with the defendant, they were relevant under Rule 403. See Exum, supra. Finally, the statements rebutted testimony by the defendant that they had a good marriage and were therefore admissible for that reason. See Brown and Lambert, supra.\nThe defendant also argues that admitting Frances\u2019 statements violated his rights under the Confrontation Clause of the Sixth Amendment to the United States Constitution. We disagree.\nHearsay does not violate the Confrontation Clause of the Sixth Amendment if it bears adequate indicia of reliability. See Ohio v. Roberts, 448 U.S. 56, 66, 65 L. Ed. 2d 597, 608 (1980). Reliability can be inferred without more if the hearsay falls within a firmly rooted exception to the hearsay rule. See id. In North Carolina, the state-of-mind exception to the hearsay rule is a firmly rooted exception. See, e.g., State v. Jackson, 348 N.C. 644, 654, 503 S.E.2d 101, 107 (1998); State v. Stager, 329 N.C. 278, 318, 406 S.E.2d 876, 899 (1991); State v. Faucette, 326 N.C. 676, 684, 392 S.E.2d 71, 75 (1990). The defendant\u2019s argument that the statements in the case at bar, admitted under the state-of-mind exception, violated the Confrontation Clause is without merit.\nII.\nThe defendant next argues that the trial court erred by admitting inadmissible and highly prejudicial hearsay evidence of defendant\u2019s alleged phone calls to the sawmill \u2014 Frances\u2019 workplace.\nBefore a witness may testify as to a telephone conversation, the witness must identify the person with whom he spoke. See State v. Richards, 294 N.C. 474, 480, 242 S.E.2d 844, 849 (1978). If the call was from a person whose identity is in question, it is not enough that the caller identify himself by name; rather, the witness must have recognized the caller\u2019s voice or otherwise identified him by circumstantial evidence. See id.\nAt trial, the State presented evidence showing that a man who identified himself as Stephen Jones repeatedly called Frances at her place of work during the six weeks before her death. The State failed to properly authenticate the calls in accordance with Richards because the witnesses who testified about these phone calls did not recognize his voice; instead, they simply accepted the caller\u2019s self-identification. Since the State failed to properly authenticate the phone calls, they were inadmissible under Rule 901. But because the defendant failed to object to the admission of the phone call evidence at trial, we consider this error under the plain error standard and determine whether the admission of this evidence caused the jury to reach a result it would not have reached otherwise. See Odom, supra.\nThe record on appeal shows that the phone calls, while frequent, were rarely more than a call to see if Frances was at work. Occasionally, the caller talked to Frances, but only once did the witnesses hear anything even approaching a threatening remark \u2014 when the speaker was told that Frances was at work and he responded \u201cbetter hope she is.\u201d Also, the defendant offered evidence showing that a former coworker, Michael Godwin, had called Frances\u2019 workplace 41 times in the weeks before her death. This evidence helped negate any damaging impact the phone call evidence might have had by offering an alternate caller for the jury to consider. In light of this evidence, we believe that the phone call evidence was not so influential or inflammatory that it resulted in the jury reaching a verdict it would otherwise not have reached.\nIII.\nNext, the defendant argues that the trial court erred by instructing the jury that the burden was on the defendant to establish the defense of unconsciousness or automatism. The defendant contends that North Carolina\u2019s pattern jury instructions on unconsciousness are unconstitutional under recent United States Supreme Court cases. We disagree.\nThe defendant himself offered to the trial court the unconsciousness instruction and he obviously did not object to the instruction he offered. We therefore review this assignment of error for plain error only. See Odom, supra.\nThe trial court instructed the jury that if the defendant did not shoot his wife voluntarily because of unconsciousness or automatism, then he was not guilty of any offense. The trial court put the burden of proving unconsciousness or automatism on the defendant. The trial court also instructed the jury on the elements of first degree murder, second degree murder, and involuntary manslaughter, and properly instructed the jury that the burden of proving the defendant\u2019s intent was on the State.\nIn North Carolina, when a person commits an act without being conscious of it, the act is not a criminal act even though it would be a crime if it had been committed by a person who was conscious. See State v. Jerrett, 309 N.C. 239, 264, 307 S.E.2d 339, 353 (1983). Unconsciousness is a complete defense to a criminal charge because it precludes both a specific mental state and a voluntary act. See id. at 264-65, 307 S.E.2d at 353. Significantly, unconsciousness is an affirmative defense and the burden is on the defendant to prove its existence to the jury. See id. at 265, 307 S.E.2d at 353; State v. Caddell, 287 N.C. 266, 290, 215 S.E.2d 348, 363 (1975).\nThe undisputed evidence in this case shows that the defendant and his wife were alone when she was shot, and that he stated during his 911 call that he shot her. Because the gravamen of the evidence showed that the defendant did in fact shoot his wife, his guilt rested upon the State\u2019s proof that he acted intentionally. The defendant contends that the jury instruction on automatism constituted plain error because it shifted the burden of proving voluntariness away from the State and instead made him disprove that he acted voluntarily.\nTo support his argument that the jury instructions improperly shifted the burden of disproving an essential element of the State\u2019s case to him, the defendant relies on Mullaney v. Wilbur, 421 U.S. 684, 44 L. Ed. 2d 508 (1975). In that case, a Maine jury instruction required a defendant in a murder trial to prove that he acted in the heat of passion, as opposed to deliberately and with malice aforethought. In effect, the burden of proof shifted away from the State and to the defendant to prove the defendant\u2019s mental state at the time of the crime. The United States Supreme Court held that it was unconstitutional for a state to require a defendant to negate a required element of an offense. See id. at 704, 44 L. Ed. 2d at 522.\nIn this case, the defendant asserts that the jury instructions on unconsciousness or automatism required him to disprove the existence of a \u201cvoluntary act,\u201d a required element of first degree murder and its lesser-included offenses. We hold, however, that the issue in this case is distinguishable from the issue in Mullaney.\nUnder Mullaney, the state carries the burden of proving a defendant\u2019s culpable state of mind at the time of a crime and the defendant does not have the burden of disproving a culpable state of mind. However, Mullaney did not address who has the burden of proof for affirmative defenses, which is the issue before us today. Unlike in Mullaney, the jury instructions in this case did not relieve the State of the burden of proving all of the essential elements of first degree murder or its lesser-included offenses. The State still had to carry its burden of proof; otherwise, the jury had to find the defendant not guilty. The jury instructions only placed on the defendant the burden of proving his affirmative defense. See State v. Blair, 101 N.C. App. 653, 657, 401 S.E.2d 102, 105 (1991). This affirmative defense did not shift the burden of proving or disproving the elements of the crime; rather, this shift only required the defendant to overcome the presumption that a person is conscious when he acts as if he were conscious. See Caddell, 287 N.C. at 298, 215 S.E.2d at 368.\nThe trial court properly instructed the jury that the burden of proof for the affirmative defense of unconsciousness or automatism lay with the defendant. Since this assignment of error is without merit, we need not address the State\u2019s argument that the defendant was not entitled to the jury instruction on unconsciousness.\nIV.\nThe defendant next argues that the trial court erred by allowing the State to present evidence of Frances\u2019 good character where he had not presented evidence calling her character into question.\nAt trial, several witnesses for the State testified as to Frances\u2019 good character. They testified that she was well-liked, friendly, treated people well and worked hard. Later, during the defendant\u2019s cross-examination, the defendant himself offered testimony that his wife was friendly, honest and a hard worker.\nEvidence concerning the victim\u2019s character is inadmissible unless it is offered to rebut evidence offered by the defendant. N.C.R. Evid. 404(a)(2). In this case, the State offered evidence of Frances\u2019 good character before the defendant offered any evidence of her character. The trial court erred when it admitted that evidence. But again the defendant did not preserve this issue for appeal by objecting at trial and we must therefore review the error to determine whether it made the jury reach a verdict it would not otherwise have reached. See Odom, supra.\nThe defendant argues that the admission of the character evidence rose to the level of plain error because the evidence did nothing besides elicit sympathy for the victim. However, after the State introduced evidence of Frances\u2019 good character, the defendant himself testified on cross-examination that Frances was the good person that others believed her to be. The defendant\u2019s decision to offer the same evidence he now objects to negates any claim of error he might otherwise have supported. The admission of evidence without objection (such as the defendant\u2019s own testimony) waives prior or subsequent objection to the admission of evidence of a similar character. See State v. Campbell, 296 N.C. 394, 399, 250 S.E.2d 228, 231 (1979). Indeed, our Supreme Court has held that a defendant\u2019s decision to introduce character evidence is a tactical decision that will not support an assignment of error on appeal. See Brown, 350 N.C. at 206, 513 S.E.2d at 65.\nWe hold that the admission of the evidence concerning Frances\u2019 good character was not plain error.\nV.\nFinally, the defendant argues that he was denied the effective assistance of counsel at trial. We disagree.\nTo prove ineffective assistance of counsel, the defendant must show that his attorney\u2019s performance was deficient and that the deficient performance prejudiced the defendant. See Strickland v. Washington, 466 U.S. 668, 687, 80 L. Ed. 2d 674, 693 (1984); State v. Sanderson, 346 N.C. 669, 684-85, 488 S.E.2d 133, 141 (1997). To prevail on such a claim, the defendant must show that his \u201ccounsel\u2019s performance fell below an objective standard of reasonableness\u201d and that \u201ccounsel\u2019s errors were so serious as to deprive defendant of a fair trial, a trial whose result is reliable.\u201d State v. Moorman, 320 N.C. 387, 399, 358 S.E.2d 502, 510 (1987).\nThe defendant argues that his attorney\u2019s performance was deficient due to the many times his attorney failed to object to evidence presented by the State. He contends that his attorney should have objected to Frances\u2019 statements concerning his threats and jealousy, the phone call evidence, evidence of Frances\u2019 good character, and the unconsciousness instruction. The defendant also points out that because his attorney did not object to these events at trial, he must now argue under the more stringent plain error standard of review on appeal. Finally, the defendant asserts that \u201cthere could be no conceivable strategic or tactical reason to not make these objections.\u201d\nWe have already reviewed the defendant\u2019s assignments of error and determined that two of them are without merit. Frances\u2019 statements about his jealousy and threats were admissible. Any objection to the admission of this evidence would have been permissibly overruled. Likewise, we found no error in the jury instruction about unconsciousness and thus, an objection to it would have been properly overruled. The admission of evidence of Frances\u2019 good character was in error, but the defendant corrected that error when he offered similar testimony during his own cross-examination. On these three points, the attorney\u2019s conduct was not deficient.\nOnly the phone call evidence was both inadmissible and not corrected by the defendant\u2019s own evidence. However, the record indicates other evidence, aside from the phone calls, that the jury could have based its verdict on. In addition, the defendant offered evidence that the phone calls were made by another person. This evidence would have reduced some of alleged prejudice of the phone call evidence. Moreover, under the facts of this case, the evidence fails to show that the admission of the phone calls was so damaging to the defendant\u2019s case that the jury found him guilty solely because of them. Even assuming that the defendant\u2019s attorney erred in not objecting to the admission of the phone calls, this one deficiency of performance was slight and did not result in prejudice to the defendant.\nFurther, taken as a whole, the defendant\u2019s attorney\u2019s performance was not so deficient as to render his service \u201cineffective.\u201d He throughly cross-examined witnesses and presented evidence that contradicted the State\u2019s evidence concerning the defendant\u2019s alleged threats and jealousy and the phone calls to the mill. He objected to the admission of other evidence and testimony. The trial transcript indicates that he was well-prepared and alert. His performance was far from \u201cineffective.\u201d\nWe hold that the defendant\u2019s argument that he was denied the effective assistance of counsel is without merit.\nNo prejudicial error.\nJudges MARTIN and HUNTER concur.", "type": "majority", "author": "WYNN, Judge." } ], "attorneys": [ "Michael F. Easley, Attorney General, by Francis W. Crawley, Special Deputy Attorney General, for the State.", "Office of the Appellate Defender, by Anne M. Gomez, Assistant Appellate Defender, and Malcolm Ray Hunter, Jr., Appellate Defender, for the defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. STEPHEN CLAY JONES, SR.\nNo. COA99-437\n(Filed 4 April 2000)\n1. Evidence\u2014 hearsay \u2014 homicide victim\u2019s statements about defendant\nThere was no plain error in the first-degree murder prosecution of a husband for shooting his wife as she slept in the admission of her statements about his jealousy and threats to kill her. Her statements were arguably no more than recitations of fact; however, the facts she recited were admissible under N.C.G.S. \u00a7 8C-1, Rule 803(3) as tending to show her state of mind as to her marriage, were relevant under Rule 402 to show her relationship with defendant, and rebutted testimony by defendant that they had a good marriage.\n2. Constitutional Law\u2014 confrontation clause \u2014 hearsay\nThe admission of a homicide victim\u2019s statements about defendant did not violate defendant\u2019s rights under the Confrontation Clause of the Sixth Amendment. Hearsay does not violate the Confrontation Clause if it bears adequate indicia of reliability and reliability can be inferred without more if the hearsay falls within a firmly rooted exception to the hearsay rule.\n3. Evidence\u2014 telephone calls \u2014 identification of caller\nThere was no plain error in a first-degree murder prosecution where the trial court admitted hearsay evidence of defendant\u2019s telephone calls to the victim\u2019s workplace. The State failed to properly authenticate the calls because the witnesses did not recognize defendant\u2019s voice and simply accepted the caller\u2019s self-identification, but the calls were rarely more than to see if the victim was at work and the witnesses only once heard anything even approaching a threatening remark. Moreover, defendant offered evidence of an alternate caller.\n4. Criminal Law\u2014 automatism \u2014 instructions\nThere was no plain error in a first-degree murder prosecution where the trial court instructed the jury that the burden of proof for the affirmative defense of unconsciousness or automatism lay with defendant. Although defendant argued that this instruction required him to disprove the existence of a voluntary act, a required element of first-degree murder and its lesser included offenses, defendant was only required to overcome the presumption that a person is conscious when he acts as if he were conscious. Unlike Mullaney v. Wilbur, 421 U.S. 684, the instructions here did not relieve the State of the burden of proving all of the essential elements of first-degree murder or its lesser included offenses.\n5. Evidence\u2014 character \u2014 victim\nThere was no plain error in a first-degree murder prosecution where the State introduced evidence of the victim\u2019s good character before defendant offered any evidence of her character, but defendant did not object at trial and testified on cross-examination that the victim was the good person others believed her to be. Defendant\u2019s decision to offer the same evidence he now objects to negates any claim of error he might otherwise have supported.\n6. Constitutional Law\u2014 effective assistance of counsel\nA first-degree murder defendant was not denied the effective assistance of counsel where, taken as a whole, defendant\u2019s attorney\u2019s performance was not so deficient as to render his service ineffective. He thoroughly cross-examined witnesses and presented evidence that contradicted the State\u2019s evidence, he objected to the admission of evidence, and the trial transcript indicates that he was well prepared and alert. The failures to object cited by defendant involved evidence which was admissible, an instruction which was without error, and errors which were corrected by defendant\u2019s own evidence. The-one failure to object which was not corrected by defendant\u2019s evidence was slight and did not result in prejudice to defendant.\nAppeal by defendant from judgment entered 4 August 1998 by Judge George L. Wainwright, Jr. in Superior Court, Craven County. Heard in the Court of Appeals 17 February 2000.\nMichael F. Easley, Attorney General, by Francis W. Crawley, Special Deputy Attorney General, for the State.\nOffice of the Appellate Defender, by Anne M. Gomez, Assistant Appellate Defender, and Malcolm Ray Hunter, Jr., Appellate Defender, for the defendant-appellant." }, "file_name": "0221-01", "first_page_order": 253, "last_page_order": 266 }