{ "id": 12123250, "name": "STATE OF NORTH CAROLINA v. RONNIE LEE KIMBLE, Defendant", "name_abbreviation": "State v. Kimble", "decision_date": "2000-10-03", "docket_number": "No. COA99-981", "first_page": "153", "last_page": "168", "citations": [ { "type": "official", "cite": "140 N.C. App. 153" } ], "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": "506 S.E.2d 283", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "288", "parenthetical": "trial court's error was harmless beyond a reasonable doubt where improperly admitted hearsay testimony was almost entirely repetitive of the properly admitted testimony of other witnesses at trial" } ], "opinion_index": 0 }, { "cite": "131 N.C. App. 156", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11197996 ], "year": 1998, "pin_cites": [ { "page": "163-64", "parenthetical": "trial court's error was harmless beyond a reasonable doubt where improperly admitted hearsay testimony was almost entirely repetitive of the properly admitted testimony of other witnesses at trial" } ], "opinion_index": 0, "case_paths": [ "/nc-app/131/0156-01" ] }, { "cite": "239 S.E.2d 449", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "pin_cites": [ { "page": "457", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "293 N.C. 674", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566912 ], "year": 1977, "pin_cites": [ { "page": "685", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/293/0674-01" ] }, { "cite": "441 S.E.2d 130", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "opinion_index": 0 }, { "cite": "335 N.C. 563", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2531110, 2526795, 2527021, 2530901, 2528511 ], "year": 1994, "opinion_index": 0, "case_paths": [ "/nc/335/0563-01", "/nc/335/0563-05", "/nc/335/0563-04", "/nc/335/0563-03", "/nc/335/0563-02" ] }, { "cite": "436 S.E.2d 132", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "138" } ], "opinion_index": 0 }, { "cite": "112 N.C. App. 280", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521295 ], "year": 1993, "pin_cites": [ { "page": "289" } ], "opinion_index": 0, "case_paths": [ "/nc-app/112/0280-01" ] }, { "cite": "324 S.E.2d 829", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1985, "pin_cites": [ { "page": "833" } ], "opinion_index": 0 }, { "cite": "312 N.C. 770", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4755941 ], "year": 1985, "pin_cites": [ { "page": "777" } ], "opinion_index": 0, "case_paths": [ "/nc/312/0770-01" ] }, { "cite": "50 L. Ed. 2d 301", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1976, "pin_cites": [ { "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "429 U.S. 932", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 7686, 5955, 6294, 7343 ], "year": 1976, "pin_cites": [ { "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/us/429/0932-03", "/us/429/0932-04", "/us/429/0932-01", "/us/429/0932-02" ] }, { "cite": "226 S.E.2d 10", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "pin_cites": [ { "page": "18", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "290 N.C. 148", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560710 ], "year": 1976, "pin_cites": [ { "page": "160", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/290/0148-01" ] }, { "cite": "231 S.E.2d 644", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "pin_cites": [ { "page": "652", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "291 N.C. 528", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8558765 ], "year": 1977, "pin_cites": [ { "page": "539", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/291/0528-01" ] }, { "cite": "143 L. 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Ed. 2d", "year": 1999, "opinion_index": 0 }, { "cite": "526 U.S. 1075", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11166176, 11165953, 11165698, 11166082, 11166242, 11165829, 11166406, 11165764, 11166472, 11166118, 11166028, 11165904, 11166549, 11166367 ], "year": 1999, "opinion_index": 0, "case_paths": [ "/us/526/1075-09", "/us/526/1075-05", "/us/526/1075-01", "/us/526/1075-07", "/us/526/1075-10", "/us/526/1075-03", "/us/526/1075-12", "/us/526/1075-02", "/us/526/1075-13", "/us/526/1075-08", "/us/526/1075-06", "/us/526/1075-04", "/us/526/1075-14", "/us/526/1075-11" ] }, { "cite": "505 S.E.2d 277", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "296" } ], "opinion_index": 0 }, { "cite": "349 N.C. 118", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 571689 ], "year": 1998, "pin_cites": [ { "page": "150" } ], "opinion_index": 0, "case_paths": [ "/nc/349/0118-01" ] }, { "cite": "334 S.E.2d 53", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "60" } ], "opinion_index": 0 }, { "cite": "314 N.C. 359", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4694660 ], "year": 1985, "pin_cites": [ { "page": "370" } ], "opinion_index": 0, "case_paths": [ "/nc/314/0359-01" ] }, { "cite": "451 S.E.2d 600", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1994, "pin_cites": [ { "page": "613" }, { "page": "612" } ], "opinion_index": 0 }, { "cite": "339 N.C. 207", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2558332 ], "year": 1994, "opinion_index": 0, "case_paths": [ "/nc/339/0207-01" ] }, { "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, "pin_cites": [ { "page": "368" } ], "opinion_index": 0 }, { "cite": "110 N.C. App. 138", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525080 ], "year": 1993, "pin_cites": [ { "page": "148" } ], "opinion_index": 0, "case_paths": [ "/nc-app/110/0138-01" ] }, { "cite": "515 S.E.2d 466", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 8, "year": 1999, "pin_cites": [ { "page": "473-74" }, { "page": "474", "parenthetical": "citations omitted" }, { "page": "475" }, { "page": "475" }, { "page": "475", "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "133 N.C. App. 195", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11218253 ], "weight": 2, "year": 1999, "pin_cites": [ { "page": "205" } ], "opinion_index": 0, "case_paths": [ "/nc-app/133/0195-01" ] }, { "cite": "448 U.S. 56", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1787607 ], "weight": 8, "year": 1980, "pin_cites": [ { "page": "66" }, { "page": "608" }, { "page": "127" }, { "page": "66" }, { "page": "608" }, { "page": "138" } ], "opinion_index": 0, "case_paths": [ "/us/448/0056-01" ] }, { "cite": "527 U.S. 116", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1248251 ], "weight": 23, "year": 1999, "pin_cites": [ { "page": "124" }, { "page": "126" }, { "page": "124-25" }, { "page": "127" }, { "page": "128" }, { "page": "130" }, { "page": "130" }, { "page": "131" }, { "page": "131" }, { "page": "134" }, { "page": "133" }, { "page": "131-32" }, { "page": "131-32" }, { "page": "131" }, { "page": "131" }, { "page": "134" }, { "page": "133" }, { "page": "135" }, { "page": "133-34" }, { "page": "135" } ], "opinion_index": 0, "case_paths": [ "/us/527/0116-01" ] }, { "cite": "367 S.E.2d 589", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 6, "year": 1988, "pin_cites": [ { "page": "599" }, { "parenthetical": "corroborating circumstances properly included fact that statement by unavailable witness accurately identified location of stolen items" }, { "page": "598", "parenthetical": "\"The fact that [the challenged statements] have dual inculpatory aspects does not take the statements outside the range of Rule 804(b)(3).\"" }, { "page": "600" } ], "opinion_index": 0 }, { "cite": "322 N.C. 117", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2519607 ], "weight": 3, "year": 1988, "pin_cites": [ { "page": "134" }, { "page": "133" }, { "page": "135" } ], "opinion_index": 0, "case_paths": [ "/nc/322/0117-01" ] } ], "analysis": { "cardinality": 1203, "char_count": 36431, "ocr_confidence": 0.741, "pagerank": { "raw": 2.690379041978818e-07, "percentile": 0.8275275894463345 }, "sha256": "418aab86cec4cf2de8d833edecf0b2e81b33b1846f66ca5d6a0c0188bfb09498", "simhash": "1:de1dd122342a8cf5", "word_count": 5873 }, "last_updated": "2023-07-14T16:18:32.795698+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges GREENE and EDMUNDS concur." ], "parties": [ "STATE OF NORTH CAROLINA v. RONNIE LEE KIMBLE, Defendant" ], "opinions": [ { "text": "SMITH, Judge.\nPatricia Kimble (Patricia) was found dead in her home on 9 October 1995. An autopsy determined the cause of death was a gunshot wound to the side of her head. Patricia\u2019s body and the area of the house in which she was found had been burned. Investigators concluded the fire had been caused by arson.\nDefendant is the brother of Patricia\u2019s husband, Ted Kimble (Ted). At trial, the State espoused the theory that Ted had decided to kill Patricia in order to collect the proceeds from her life insurance. The State further contended that Ted had recruited defendant to murder Patricia. The jury found defendant guilty of first-degree murder, conspiracy to commit murder, and first-degree arson.\nI.\nDefendant first asserts the trial court erroneously allowed in evidence statements by Ted, a co-defendant in the crime who was tried separately. Defendant asserts the admission of these statements violated both North Carolina law, as well as defendant\u2019s Sixth Amendment right to confront and cross-examine an adverse witness. Defendant\u2019s argument is without merit.\nDuring defendant\u2019s trial, Ted invoked his Fifth Amendment privilege not to testify. Statements Ted made were then offered in evidence through the testimony of two witnesses, both of whom had been involved with Ted in a theft ring. All of the statements implicated Ted in the murder; some of the statements also implicated defendant in the murder. After conducting a voir dire hearing, the trial court admitted the statements pursuant to N.C.G.S. \u00a7 8C-1, Rule 804(b)(3) (1999) (statements against interest) (Rule 804(b)(3)) and N.C.G.S. \u00a7 8C-1, Rule 801(d)(E) (1999) (statement by co-conspirator in furtherance of conspiracy).\nThe first of these two witnesses, Robert Nicholes (Nicholes), testified that Ted told Nicholes the following: (1) Ted had been involved in Patricia\u2019s death but had not killed her; (2) Ted had attempted to take out a life insurance policy on Patricia and had forged her signature on the application; and (3) Ted was angry because the life insurance policy was not valid because Patricia had not taken a required physical examination. Notably, Nicholes did not testify that Ted had stated that defendant had been involved in the murder; Nicholes testified only to self-inculpatory statements made by Ted.\nThe second of these two witnesses, Patrick Pardee (Pardee), testified that Ted had told him the following: (1) defendant had gone to Ted\u2019s house, had shot Patricia in the head with Ted\u2019s pistol, and had then poured gasoline on her body and set it afire; (2) Ted had taken a second job to establish an alibi for himself; (3) the murder was committed to collect life insurance proceeds; (4) Ted realized he would be unable to collect on the life insurance policy because it was not in effect; and (5) Ted believed the police were closing in on him.\nThe State properly concedes \u201cthere is little basis for arguing that the statements were made during the course and in furtherance of the defendant\u2019s conspiracy with Ted to murder Patricia for her life insurance\u201d as the conspiracy had ended. The issue on appeal, then, is limited to whether the statements were properly admitted under Rule 804(b)(3).\nA.\nAn out-of-court statement by an unavailable witness may be admissible if the statement satisfies the definition of a \u201cstatement against interest,\u201d which is defined by Rule 804(b)(3) as\n[a] statement which was at the time of its making so far contrary to the declarant\u2019s pecuniary or proprietary interest, or so far tended to subject him to civil or criminal liability . . . that a reasonable man in his position would not have made the statement unless he believed it to be true. A statement tending to expose the declarant to criminal liability is not admissible in a criminal case unless corroborating circumstances clearly indicate the trustworthiness of the statement.\nG.S. \u00a7 8C-1, Rule 804(b)(3).\nOur Supreme Court has held that Rule 804(b)(3) requires a two-pronged analysis. See State v. Wilson, 322 N.C. 117, 134, 367 S.E.2d 589, 599 (1988). First, the statement must be \u201cdeemed to be against the declarant\u2019s penal interest.\u201d Id. Second, \u201cthe trial judge must be satisfied that corroborating circumstances clearly indicate the trustworthiness of the statement if it exposes the declarant to criminal liability.\u201d Id. The corroborating circumstances required by the second prong may include other evidence presented at trial. See id. (corroborating circumstances properly included fact that statement by unavailable witness accurately identified location of stolen items).\nHowever, the analysis required in the case at bar is further complicated by a second hurdle. In addition to satisfying Rule 804(b)(3), the evidence also must satisfy the requirements of the Confrontation Clause of the Sixth Amendment. U.S. Const, amend. VI. In the recent case of Lilly v. Virginia, 527 U.S. 116, 144 L. Ed. 2d 117 (1999), the United States Supreme Court considered the issue of whether a criminal defendant\u2019s Sixth Amendment rights are violated by admitting in evidence a non-testifying accomplice\u2019s statement which contains both statements against the accomplice\u2019s penal interest and statements inculpating the defendant.\nThe four-Justice plurality in Lilly began by setting forth the fundamental principle that when the government seeks to offer an unavailable declarant\u2019s out-of-court statements against a criminal defendant, the court must decide whether the Confrontation Clause permits the government to deny the defendant an opportunity to cross-examine the declarant. Id. at 124, 144 L. Ed. 2d at 126. The plurality then reiterated the holding in Ohio v. Roberts, 448 U.S. 56, 65 L. Ed. 2d 597 (1980), that such statements may be admissible when\n(1) \u201cthe evidence falls within a firmly rooted hearsay exception\u201d or (2) it contains \u201cparticularized guarantees of trustworthiness\u201d such that adversarial testing would be expected to add little, if anything, to the statements\u2019 reliability.\nLilly, 527 U.S. at 124-25, 144 L. Ed. 2d at 127 (quoting Roberts, 448 U.S. at 66, 65 L. Ed. 2d at 608).\nThe plurality then explained that the categorization of an out-of-court statement as a \u201cstatement against penal interest\u201d does not necessarily place the statement within a \u201cfirmly rooted hearsay exception\u201d under the Roberts test because the label \u201cstatement against penal interest\u201d defines too broad a class. Id. at 127, 144 L. Ed. 2d at 128. The plurality then defined three different categories of \u201cstatements against penal interest,\u201d id., only one of which is pertinent here. The third category (statements offered as evidence by the prosecution to establish the guilt of an accomplice) encompasses the kind of \u201cstatements against interest\u201d found in Lilly, i.e., those statements that inculpate both a declarant and a defendant. Id. at 130, 144 L. Ed. 2d at 130. Such dual-inculpatory statements are inherently unreliable and untrustworthy as the accomplice often stands to gain by inculpating another defendant. Id. at 131, 144 L. Ed. 2d at 131. The plurality concluded by stating: \u201c[t]he decisive fact, which we make explicit today, is that accomplices\u2019 confessions that inculpate a criminal defendant are not within a firmly rooted exception to the hearsay rule.\u201d Id. at 134, 144 L. Ed. 2d at 133.\nB.\nIn light of this framework, the substantive differences between the testimony of Pardee and of Nicholes become extremely significant. While Pardee testified as to a conversation in which Ted made both self-inculpatory statements and statements that implicated defendant, Nicholes testified only to self-inculpatory statements by Ted. Such purely self-inculpatory statements, unlike the dual-inculpatory statements in Lilly, are classic \u201cstatements against interest\u201d and thus fall within a firmly-rooted hearsay exception. See id. at 131-32, 144 L. Ed. 2d at 131-32.\nHaving concluded that the admission of Nicholes\u2019 testimony did not violate defendant\u2019s Sixth Amendment rights, we now proceed to analyze Nicholes\u2019 testimony to determine whether it was properly admitted under Rule 804(b)(3). Applying the two-part test set forth in Wilson, we first note that the challenged statements unquestionably were against Ted\u2019s penal interests at the time they were made, and, thus, \u201ca reasonable man in his position would not have made the statements] unless he believed [them] to be true.\u201d G.S. \u00a7 8C-1, Rule 804(b)(3). The statements, therefore, satisfy the first prong of the analysis.\nFurthermore, sufficient corroborating evidence was admitted at trial to indicate the trustworthiness of the statements. Such evidence included: (1) Ted\u2019s efforts to take out additional life insurance policies on Patricia shortly before her murder, without her knowledge; (2) Patricia\u2019s statements to various friends shortly before her murder, conveying her fear, based on Ted\u2019s conduct and behavior, that Ted might be planning on killing her; and (3) testimony of Mitch Whidden (Whidden) regarding defendant\u2019s statements that provided the same portrayal of Ted\u2019s involvement in the murder as Ted\u2019s own statements. Thus, the second prong of the analysis is also satisfied. The trial court, therefore, did not err in admitting Nicholes\u2019 testimony.\nC.\nPardee\u2019s testimony, however, presents precisely the kind of situation addressed in Lilly, in which the prosecution offers in evidence statements of an accomplice that inculpate both the accomplice and the criminal defendant. Because such dual-inculpatory statements are inherently unreliable, in that the declarant often stands to gain by inculpating another, Lilly, 527 U.S. at 131, 144 L. Ed. 2d at 131, such statements do not fall within a firmly-rooted exception to the hearsay rule, id. at 134, 144 L. Ed. 2d at 133. Thus, as to Pardee\u2019s testimony, the constitutional issue becomes whether the statements contain \u201cparticularized guarantees of trustworthiness.\u201d Id. at 135, 144 L. Ed. 2d at 133-34 (quoting Roberts, 448 U.S. at 66, 65 L. Ed. 2d at 608).\nWhether the statements at issue satisfy this standard requires an analysis for which only a few guidelines have been set by the Supreme Court. For example, the reliability of the statements must be established by the inherent trustworthiness of the statements themselves and cannot be established by an effort to \u201cbootstrap on\u201d the trustworthiness of other evidence at trial. Id. at 138, 144 L. Ed. 2d at 135.\nIn the instant case, we find it unnecessary to determine whether the statements offered through the testimony of Pardee contain \u201cparticularized guarantees of trustworthiness.\u201d Assuming arguendo that the statements fail to meet this constitutional standard, and that admission of such statements was error, we believe such error was not prejudicial.\n\u201cA violation of the defendant\u2019s rights under the Constitution of the United States is prejudicial unless the appellate court finds that it was harmless beyond a reasonable doubt.\u201d N.C.G.S. \u00a7 15A-1443(b) (1999). In the case at bar, we believe the State has successfully met this burden for two reasons. First, the State presented overwhelming evidence that defendant committed the murder even without the admission of Pardee\u2019s testimony. Second, the facts established through Pardee\u2019s testimony were properly admitted in evidence through other witnesses.\nWhidden, an ordained Baptist minister and a personal friend of defendant, testified that in 1997 defendant visited Whidden at his home and stayed with Whidden and his family overnight. Whidden testified that during this visit defendant confessed to Whidden that he had killed Patricia at Ted\u2019s request and that he was to receive payment from Ted in return. Whidden testified that after defendant left his home, Whidden spoke with the Reverend Jerry Falwell (Falwell) to ask his advice about defendant\u2019s confession. After meeting with Falwell and Falwell\u2019s son, an attorney, Whidden checked into a hotel with his family because he was afraid that defendant might return to his home.\nThereafter, Whidden went to see defendant in an attempt to persuade him to turn himself in. When defendant refused to do so, Whidden returned home, met with another attorney, Frank Yeatts (Yeatts), and gave a statement to the State Bureau of Investigation (SBI). He then left his job and moved himself and his family out of state for six months until defendant was in prison because he feared for the safety of his family. Various elements of Whidden\u2019s testimony were corroborated by the testimony of Falwell, Yeatts, Whidden\u2019s wife, and an agent with the SBI.\nWhidden\u2019s testimony demonstrates the strength of the State\u2019s case against defendant. In addition, much of the evidence established through Pardee\u2019s testimony was properly admitted through Whidden\u2019s testimony. Where evidence is properly admitted through one witness, the defendant will not be heard to complain that the same evidence, improperly admitted through a different witness, was prejudicial error. See, e.g., State v. Washington, 131 N.C. App. 156, 163-64, 506 S.E.2d 283, 288 (1998) (trial court\u2019s error was harmless beyond a reasonable doubt where improperly admitted hearsay testimony was almost entirely repetitive of the properly admitted testimony of other witnesses at trial). Given these considerations, we conclude any constitutional error was harmless beyond all doubt.\nAs for the Rule 804(b)(3) analysis, our Supreme Court does not require that collateral remarks inculpating the defendant be redacted from an out-of-court statement that also contains self-inculpating remarks in order to admit the statement under Rule 804(b)(3). See Wilson, 322 N.C. at 133, 367 S.E.2d at 598 (\u201cThe fact that [the challenged statements] have dual inculpatory aspects does not take the statements outside the range of Rule 804(b)(3).\u201d). The statements offered by Pardee contain the same self-inculpatory remarks as the statements offered by Nicholes. Accordingly, the statements offered by Pardee satisfy Rule 804(b)(3) for the same reasons as the statements offered by Nicholes, and the collateral remarks that inculpate defendant need not be redacted from the statements in order for the statements to be admissible. This assignment of error is overruled.\nII.\nDefendant next alleges the trial court erred in admitting in evidence various statements by the victim, Patricia. The State called five witnesses to offer testimony regarding statements Patricia made at various times prior to her death. We find no error in the admission of these statements.\nThe first of these five witnesses, William Jarrell (Jarrell), an agent for a life insurance company, testified that: (1) Ted requested a $200,000 life insurance policy for Patricia; (2) Ted provided Jarrell with an insurance application allegedly signed by Patricia; (3) Jarrell called Patricia in order to obtain required health information; (4) during this phone call, when Patricia inquired as to why such information was necessary for a cancer insurance policy, Jarrell informed her the policy was for life insurance; and (5) when she further inquired about the value of the life insurance policy, Jarrell informed her it was for $200,000, at which point Patricia \u201cslammed the phone down.\u201d\nDefendant contends such statements constitute hearsay and were improperly admitted. \u201c \u2018Hearsay\u2019 is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.\u201d N.C.G.S. \u00a7 8C-1, Rule 801(c) (1999). We find no error in the admission of Jarrell\u2019s testimony, as the statements made by Patricia (\u201cWhy do you need this information for a cancer insurance?\u201d and \u201cHow much life insurance?\u201d) were offered merely to establish that Ted had submitted Patricia\u2019s life insurance application to Jarrell without Patricia\u2019s knowledge. The statements were not offered for the truth of the matters asserted and, therefore, do not constitute hearsay.\nThe second of the five witnesses was Linda Cherry (Cherry), a friend of Patricia. Cherry testified that Patricia told her the following shortly before her death: (1) she was concerned about the state of her marriage, and she believed Ted did not want to spend time with her anymore; (2) Ted had been acting differently, he had been getting agitated easily, and he had started to use profanity; (3) she did not like the fact that Ted had gotten a second job because she felt that they did not need the extra money.\nThe third of the five witnesses was Cara Dudley (Dudley), a close friend of Patricia. Dudley testified that Patricia told her the following shortly before her death: (1) in case anything strange ever happened to her, she wanted Dudley to know that she had discovered by accident that Ted had taken out a large insurance policy on her; (2) she did not know why Ted wanted so much additional life insurance because she already had one life insurance policy; and (3) Ted must have signed her name on the application because she had not signed her own name. Dudley also testified that Patricia was very upset, her voice was shaky during this conversation, and she was trying not to cry.\nThe fourth of these five witnesses was Rose Lyles (Rose), another friend of Patricia. Rose testified that Patricia told her: (1) she had found a life insurance application on which Ted had forged her signature; (2) Ted was not the man she married; (3) Ted slept with a gun underneath his pillow and when she went to sleep she feared that she might not wake up in the morning. Rose also testified that Patricia cried during the conversation and that Rose had never heard so much fear in anybody\u2019s voice.\nThe final of these five witnesses was Gary Lyles (Gary), Rose\u2019s husband and also a friend of Patricia. Gary testified that Patricia told him: (1) she had found a life insurance policy that Ted had taken out without her knowledge; (2) Ted had forged her signature on the application; (3) Ted was not the man she married; and (4) Ted slept with a gun underneath his pillow.\nDefendant contends these statements were erroneously admitted under the hearsay exception provided by N.C.G.S. \u00a7 8C-1, Rule 803(3) (1999) (Rule 803(3)). Rule 803(3) allows the admission of hearsay testimony in evidence if it tends to show the victim\u2019s then existing state of mind or\"1 emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed.\u201d G.S. \u00a7 8C-1, Rule 803(3).\nThis Court was recently faced with a strikingly similar set of facts in State v. Wilds, 133 N.C. App. 195, 515 S.E.2d 466 (1999). In Wilds, the defendant Curtis Wilds was accused of the first-degree murder of his wife, Tonya Wilds (Tonya). At trial, the State offered testimony from multiple witnesses regarding statements made by Tonya within a few weeks before her murder. Id. at 203-04, 515 S.E.2d at 473-74. Testimony offered by the witnesses included the following statements by Tonya: (1) her husband had attempted to change her life insurance policy to designate himself as the named beneficiary; (2) she had once woken up in her bed during the night to discover her husband pouring gasoline on her nightgown; (3) she had an unhappy marriage filled with physical and emotional abuse; and (4) she was afraid her husband would try to kill her. Id. Many of the witnesses specifically testified that Tonya was shaking and tearful when she made such statements. Id.\nThe Wilds Court stated:\n[although statements that relate only factual events do not fall within the Rule 803(3) exception, statements relating factual events which tend to show the victim\u2019s state of mind, emotion, sensation, or physical condition when the victim made the statements are not excluded if the facts related by the victim serve to demonstrate the basis for the victim\u2019s state of mind, emotions, sensations, or physical condition.\nId. at 204-05, 515 S.E.2d at 474 (citations omitted).\nThe Court in Wilds therefore held that the statements were admissible to show Tonya\u2019s state of mind, despite the fact that the statements also contained descriptions of factual events. Id. at 205, 515 S.E.2d at 475. Similarly, we hold in the instant case that Patricia\u2019s prior statements were properly admitted to show her state of mind. Furthermore, as in Wilds, \u201cit was not necessary for [Patricia] to state explicitly to each witness that she was afraid, as long as the \u2018scope of the conversation . . . related directly to [her] existing state of mind and emotional condition.\u2019 \u201d Id. at 206, 515 S.E.2d at 475 (quoting State v. Mixion, 110 N.C. App. 138, 148, 429 S.E.2d 363, 368, disc. review denied, 334 N.C. 437, 433 S.E.2d 183 (1993)).\nDefendant argues that the case of State v. Hardy, 339 N.C. 207, 451 S.E.2d 600 (1994), \u201cis directly on point\u201d with the case at bar, and cites to Hardy for the proposition that \u201c[statements of fact, even those which might explain why the declarant was frightened or angry are not admissible.\u201d One searches in vain for such a proposition in Hardy.\nIn Hardy, our Supreme Court held that statements from the victim\u2019s diary describing the defendant\u2019s violent conduct, which \u201cexpresse[d] no emotion and seem[ed] to have been written in a calm and detached manner,\u201d id. at 229, 451 S.E.2d at 613, were not admissible under Rule 803(3) because they did not constitute statements of the victim\u2019s state of mind, and merely amounted to \u201ca recitation of facts which describe various events,\u201d id. at 228, 451 S.E.2d at 612. The notion that the result in Hardy may be expanded beyond the particular facts in that case has previously been foreclosed by this Court. As we stated in Wilds,\n[t]his case is distinguishable from Hardy in that the statements in Hardy were taken from the victim\u2019s diary and contained descriptions of assaults and threats against the victim before she died but did not reveal the victim\u2019s state of mind or contain statements of the victim\u2019s fear of defendant.\nWilds, 133 N.C. App. at 205, 515 S.E.2d at 475 (emphasis added). This assignment of error is overruled.\nIII.\nDefendant next contends the trial court erred in sustaining the State\u2019s objections to various questions put to Detective James Church (Detective Church) during cross-examination by defendant. \u201cIt is well established that an exception to the exclusion of evidence cannot be sustained where the record fails to show what the witness\u2019 testimony would have been had he been permitted to testify.\u201d State v. Simpson, 314 N.C. 359, 370, 334 S.E.2d 53, 60 (1985).\nIt is undisputed that the record fails to demonstrate what Detective Church\u2019s answers would have been had he been permitted to respond to defendant\u2019s questions. \u201cBy failing to preserve evidence for review, defendant deprives the Court of the necessary record from which to ascertain if the alleged error is prejudicial.\u201d State v. Locklear, 349 N.C. 118, 150, 505 S.E.2d 277, 296 (1998), cert. denied, 526 U.S. 1075, 143 L. Ed. 2d 559 (1999). Thus, defendant cannot show that the trial court\u2019s ruling with respect to the exclusion of this testimony was prejudicial.\nFurthermore, even if we assume arguendo that the assignment of error is properly before us on appeal, and even if we assume, as defendant asks of us, that \u201cDetective Church would have answered as the questions led,\u201d we find no error in the exclusion of this testimony. We agree with the State that the questions were objectionable because they were repetitive, argumentative, or called for speculation and conjecture. See Wilson, 322 N.C. at 135, 367 S.E.2d at 600. This assignment of error is overruled.\nIV.\nDefendant next contends the trial court erred in sustaining the State\u2019s objections, on the grounds of leading, to six specific questions put to defendant on direct examination. The most significant of these questions was the following:\nQ: Did your brother, Ted, ever tell you that he would pay you money if you would assist him in eliminating [Patricia]?\n\u201cA leading question is generally defined as one which suggests the desired response and may frequently be answered yes or no.\u201d State v. Britt, 291 N.C. 528, 539, 231 S.E.2d 644, 652 (1977) (citations omitted). \u201cLeading questions should not be used on the direct examination of a witness except as may be necessary to develop his testimony.\u201d N.C.G.S. \u00a7 8C-1, Rule 611(c) (1999).\nDefendant argues that in sustaining the State\u2019s objections, the trial court deprived defendant of an opportunity to \u201cdeny to the jury the fundamental charge against him \u2014 that his brother offered him money to kill his wife.\u201d Defendant is correct in asserting that each of the six questions at issue, to varying degrees, were efforts at rebutting the State\u2019s underlying theory that defendant conspired with Ted to murder Patricia. However, at the time of the sustained objections, defendant had already been provided ample opportunity to deny the State\u2019s charges against him. For example, a portion of the direct examination of defendant transpired as follows:\nQ: Mr Kimble, last night, right before we broke, I asked you if you killed Patricia, and you said you did not.\nA: Yes, sir.\nQ: Did your brother ever ask you to do anything like that?\nA: No.\nQ: Did Ted ever tell you he was looking for a hit man?\nA: No.\nQ: Did you have any knowledge whatsoever of Ted\u2019s and Patricia\u2019s life insurance arrangements?\nA: No.\n\u201cRulings by the trial judge on the use of leading questions are discretionary and reversible only for an abuse of discretion.\u201d State v. Smith, 290 N.C. 148, 160, 226 S.E.2d 10, 18, cert. denied, 429 U.S. 932, 50 L. Ed. 2d 301 (1976) (citations omitted). \u201cA trial court may be reversed for abuse of discretion only upon a showing that its [ruling was] manifestly unsupported by reason.\u201d White v. White, 312 N.C. 770, 777, 324 S.E.2d 829, 833 (1985). Because defendant had had an opportunity to deny the charges against him, it was unnecessary to employ leading questions during the direct examination. Furthermore, the questions were repetitious. We find no abuse of discretion by the trial court in sustaining the State\u2019s objections. This assignment of error is overruled.\nV.\nDefendant next asserts the trial court erred in allowing the State to question defendant during cross-examination regarding three photographs of a woman named Janet Smith. We find no prejudicial error.\nThe State elicited the following statement from defendant on cross-examination: \u201cI don\u2019t know of many things that my wife \u2014 I don\u2019t know of anything that I \u2014 that my wife does not know today, that I hold in secret from her in any way. I think she knows everything there is to know about me.\u201d The State then sought to impeach defendant using three photographs of Janet Smith that had been seized from defendant\u2019s cell. Defendant objected, but after avoir dire hearing on the matter the trial court allowed the following inquiry by the State:\nQ: And showing you then State\u2019s Exhibit 139-A, B and C, what are those?\nA: These are pictures of Janet Smith.\nQ: Were those in the book at the time it was taken?\nA: I don\u2019t know if they were or not.\nQ: Were those pictures in your possession on that day?\nA: Yes.\nQ: Did you tell your wife about those pictures?\nMr. Lloyd: Well, objection, Your Honor.\nA: Yes, I\u2014\nThe Court: Sustained. Don\u2019t answer it.\nMr. Lloyd: Move to strike, Your Honor.\nThe Court: Disregard the question, members of the jury.\nThe credibility of a witness may be impeached on cross-examination by questioning the witness regarding evidence that appears to be inconsistent with the testimony of the witness. See 1 Henry Brandis, Jr., Brandis on North Carolina Evidence \u00a7 47 (3d ed. 1988). \u201cHowever, contradiction of collateral facts by other evidence is not permitted, as its only effect would be to show that the witness is capable of error on immaterial points, and to allow it would confuse the issues and unduly prolong the trial.\u201d Id.\nAs a general rule, \u201ccollateral matters\u201d are those that are irrelevant to the issues in the case. See State v. Najewicz, 112 N.C. App. 280, 289, 436 S.E.2d 132, 138 (1993), disc. review denied, 335 N.C. 563, 441 S.E.2d 130 (1994). In the case at bar, whether defendant told his wife about photographs of another woman found in his cell is clearly a collateral matter to the murder of his brother\u2019s wife. In seeking to contradict defendant\u2019s statement that he holds nothing secret from his wife, the State should have been limited to asking defendant to acknowledge the existence of the photographs, and then asking defendant whether he had told his wife about the photographs. Defendant\u2019s answers would have been conclusive on the matter, and the State would have been prohibited from offering extrinsic evidence to contradict the defendant.\nHowever, we conclude the error does not require reversal. Reversible error exists where \u201cthere is a reasonable possibility that, had the error in question not been committed, a different result would have been reached at the trial.\u201d N.C.G.S. \u00a7 15A-1443(a) (1999). Here, the subject was collateral to the issues before the jury and any error was thus unlikely to have impacted the outcome of the trial. Furthermore, the inquiry by the State was extremely brief, and was terminated by a sustained objection and an instruction to disregard the question. In addition, the defendant had already testified that his wife had filed for divorce, significantly decreasing the potential for prejudice resulting from any implication of defendant\u2019s interest in another woman. This assignment of error is overruled.\nVI.\nDefendant lastly asserts the trial court erred in allowing the State to question defendant regarding allegations that his brother and his parents had committed insurance fraud. Over defendant\u2019s objection, the trial court allowed the State to briefly inquire into the matter. In response to the State\u2019s questions, defendant stated that no fraud had been committed and that until he read the discovery documents in the case he had no knowledge that such allegations even existed.\nIt is well-established that a defendant may be cross-examined, for impeachment purposes, concerning prior acts of misconduct, if such prior acts are probative of truthfulness or untruthfulness. N.C.G.S. \u00a7 8C-1, Rule 608(b) (1999). The possibility that defendant was aware of, and therefore conspired in, an insurance fraud scam undertaken by his brother and his parents is arguably probative of defendant\u2019s truthfulness. The propriety or unfairness of cross-examination rests largely in the trial judge\u2019s discretion, and \u201c[h]is ruling thereon will not be disturbed without a showing of gross abuse of discretion.\u201d State v. Foster, 293 N.C. 674, 685, 239 S.E.2d 449, 457 (1977) (citations omitted). Defendant has shown no abuse of discretion here. We hold there was no error in allowing the State to briefly cross-examine defendant concerning allegations of insurance fraud. This assignment of error is overruled.\nNo error.\nJudges GREENE and EDMUNDS concur.", "type": "majority", "author": "SMITH, Judge." } ], "attorneys": [ "Michael F. Easley, Attorney General, by James G. Gulick, Special Deputy Attorney General, for the State.", "W. David Lloyd and John B. Hatfield, Jr., for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. RONNIE LEE KIMBLE, Defendant\nNo. COA99-981\n(Filed 3 October 2000)\n1. Evidence\u2014 hearsay \u2014 statements against interest \u2014 accomplice\u2019s self-inculpatory statements \u2014 statements implicating defendant already admitted\nThe trial court did not err in a first-degree murder case by allowing into evidence under N.C.G.S. \u00a7 8C-1, Rule 804(b)(3) a nontestifying accomplice\u2019s statements against the accomplice\u2019s penal interest, and statements both against the accomplice\u2019s penal interest and inculpating defendant, because: (1) testimony of only self-inculpatory statements by the accomplice are classic statements against interest that fall within a firmly-rooted hearsay exception; (2) even assuming the testimony of both the accomplice\u2019s self-inculpatory statements and statements that implicated defendant was error, such error was not prejudicial when the State presented overwhelming evidence that defendant committed the murder and that the evidence was properly admitted through other witnesses; and (3) collateral remarks inculpating defendant are not required to be redacted from an out-of-court statement that also contains self-inculpating remarks in order to admit the statement under N.C.G.S. \u00a7 8C-1, Rule 804(b)(3).\n2. Evidence\u2014 hearsay \u2014 not offered for truth of matter asserted\nThe trial court did not err in a first-degree murder case by admitting various statements of the victim inquiring why the agent for an insurance company needed health information for a cancer insurance policy, and inquiring about the value of the policy once the victim found out that it was a life insurance policy, because: (1) the statements were offered to establish that the victim\u2019s husband had submitted the victim\u2019s life insurance application without her knowledge; and (2) the statements were not offered for the truth of the matters asserted.\n3. Evidence\u2014 hearsay \u2014 state of mind exception\nEven though the victim\u2019s statements contained descriptions of factual events, the trial court did not err in a first-degree murder case by admitting her statements under N.C.G.S. \u00a7 8C-1, Rule 803(3) that the victim\u2019s husband took out a life insurance policy without her knowledge, that her husband was not the man she married and had been acting differently, and that she was afraid she would not wake up in the morning since her husband slept with a gun underneath his pillow, because: (1) the statements were admissible to show the victim\u2019s state of mind; and (2) it was not necessary for the victim to state explicitly to each witness that she was afraid as long as the scope of the conversation related directly to her existing state of mind and emotional condition.\n4. Evidence\u2014 exclusion \u2014 not preserved for review \u2014 objectionable questions\nThe trial court did not commit prejudicial error in a first-degree murder case by sustaining the State\u2019s objections to various questions during defendant\u2019s cross-examination of a detective, because: (1) the record fails to demonstrate what the detective\u2019s answers would have been had he been permitted to respond to defendant\u2019s questions; and (2) the questions were objectionable based on the fact that they were repetitive, argumentative, or called for speculation and conjecture.\n5. Evidence\u2014 direct examination \u2014 leading questions\nThe trial court did not abuse its discretion in a first-degree murder case by sustaining the State\u2019s objections to various questions put to defendant on direct examination on the grounds that the questions were leading, because: (1) defendant had an opportunity to deny the charges against him; and (2) the questions were repetitious.\n6. Evidence\u2014 cross-examination \u2014 collateral matter \u2014 no prejudicial error\nThe trial court did not commit prejudicial error in a first-degree murder case even though it allowed the State to question defendant during cross-examination on a collateral matter regarding three photographs of a woman found in defendant\u2019s cell to contradict defendant\u2019s statement that he holds nothing secret from his wife, because: (1) the subject was collateral to the issues before the jury and any error was thus unlikely to have impacted the outcome of the trial; (2) the inquiry by the State was extremely brief and was terminated by a sustained objection and an instruction to disregard the question; and (3) defendant had already testified that his wife had filed for divorce, significantly decreasing the potential for prejudice resulting from any implication of defendant\u2019s interest in another woman.\n7. Evidence\u2014 allegations of prior insurance fraud \u2014 probative of truthfulness\nThe trial court did not abuse its discretion in a first-degree murder case by allowing the State to question defendant regarding allegations that his brother and his parents had committed insurance fraud, because: (1) the possibility that defendant was aware of, and therefore conspired in, an insurance fraud scam undertaken by his brother and parents is arguably probative of defendant\u2019s truthfulness under N.C.G.S. \u00a7 8C-1, Rule 608(b); and (2) defendant failed to show an abuse of discretion.\nAppeal by defendant from judgment entered 3 September 1998 by Judge C. Preston Cornelius in Guilford County Criminal Superior Court. Heard in the Court of Appeals 15 August 2000.\nMichael F. Easley, Attorney General, by James G. Gulick, Special Deputy Attorney General, for the State.\nW. David Lloyd and John B. Hatfield, Jr., for defendant-appellant." }, "file_name": "0153-01", "first_page_order": 185, "last_page_order": 200 }