{
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  "name": "STATE OF NORTH CAROLINA v. VICKIE HARKEY WRIGHT",
  "name_abbreviation": "State v. Wright",
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    "judges": [
      "Judges McCULLOUGH and BRYANT concur."
    ],
    "parties": [
      "STATE OF NORTH CAROLINA v. VICKIE HARKEY WRIGHT"
    ],
    "opinions": [
      {
        "text": "WALKER, Judge.\nDefendant appeals her conviction for second degree murder. The State\u2019s evidence tends to show that, on 27 June 2000 at approximately 2:28 a.m., the Henderson County Sheriffs Department received a 911 call from someone in a trailer-home located at 115 Dania Drive in Henderson County. The caller, later determined to be defendant\u2019s son, Jake Wright (Wright), stated that someone had been shot and that he needed the police. Thereafter, in response to a question from the 911 operator, Wright identified defendant as the shooter and defendant\u2019s boyfriend, Jerry Demary, as the victim. Wright further stated that, at the time of the shooting, he was in an adjacent bedroom when he heard a gunshot and that his mother had left the trailer. He also informed the 911 operator that the victim appeared to be unconscious, but he was \u201cgasping.\u201d\nWhile Wright was on the telephone, several officers arrived at the trailer. The 911 operator then instructed Wright to exit the trailer. After the officers secured the area, they began searching for defendant. They located her sitting with her legs crossed next to a truck approximately 300 yards from the trailer. As the officers approached, defendant said, \u201cHere I am.\u201d\nInside the trailer, officers found the victim lying face up on the living room floor near a sofa and a recliner. A .410 shotgun was found on the sofa. The television was on and playing cards were spread out on a table and on the floor. The officers observed fresh blood on the floor, on the right arm of the recliner, and on a nearby end table. Also on this end table were the victim\u2019s wallet and mail addressed to him. A half-empty \u201cIcehouse\u201d beer can was found between the recliner and end table. An ashtray containing cigarette ashes and a half-empty \u201cNatural Light\u201d beer can were found on a small footstool against the sofa.\nSummer Jones (Jones), a long-time friend of defendant, testified that she recognized the .410 shotgun as the one her grandfather had previously purchased for defendant. Jones stated she had seen defendant two weeks before the shooting incident using the shotgun for target practice and noted that defendant kept it in a case near the living room sofa. She further testified that defendant drinks \u201cNatural Light\u201d beer and that she smokes cigarettes.\nNext, Dr. William Dunn (Dr. Dunn), a forensic pathologist, testified that the victim suffered a shotgun injury to the upper part of his chest and died due to excessive bleeding in his right lung. Dr. Dunn opined that, based on the nature of the injury, the muzzle of the shotgun was between two and four feet away from the victim\u2019s chest at the time it was discharged. Defendant did not present any evidence.\nDefendant first contends the trial court erred in admitting evidence of the exchange between Wright and the 911 operator. Specifically, she maintains the trial court should not have admitted any statements made in the exchange which refer to her as having shot the victim. Defendant\u2019s argument is based on two alternative grounds: (1) the State failed to provide sufficient evidence demonstrating that Wright had personal knowledge of the facts contained within the statements, and (2) the statements are inadmissible hearsay.\nA. Personal Knowledge\nDefendant first maintains that because Wright did not observe defendant discharge the shotgun, he had no actual knowledge as to whether she shot the victim. Therefore, according to defendant, any statements made by Wright during his exchange with the 911 operator implicating her as the shooter lacked the proper foundation to be admitted as evidence.\nPursuant to Rule 602 of our Rules of Evidence:\nA witness may not testify to a matter unless evidence is introduced sufficient to support a finding that he has personal knowledge of the matter. Evidence to prove personal knowledge may, but need not, consist of the testimony of the witness himself.\nN.C. Gen. Stat. \u00a7 8C-1, Rule 602 (2001). \u201c[P]ersonal knowledge is not an absolute but may consist of what the witness thinks he knows from personal perception.\u201d N.C. Gen. Stat. \u00a7 8C-1, Rule 602 official commentary; see also State v. Harshaw, 138 N.C. App. 657, 661, 532 S.E.2d 224, 227, disc. rev. denied, 352 N.C. 594, 544 S.E.2d 793 (2000). Additionally, when a witness\u2019 statement is in the form of an opinion, the opinion is \u201climited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of his testimony or the determination of a fact in issue.\u201d N.C. Gen. Stat. \u00a7 8C-1, Rule 701.\nIn support of her position, defendant cites our Supreme Court\u2019s holding in State v. King, 343 N.C. 29, 468 S.E.2d 232 (1996), and this Court\u2019s holdings in Harshaw, supra, and State v. Shaw, 106 N.C. App. 433, 417 S.E.2d 262, disc. rev. denied, 333 N.C. 170, 424 S.E.2d 914 (1992). However, the facts in those cases are notably distinguishable from the facts of this case. In King, the witness testified that the victim did not have a gun on his person the day of the shooting, yet the witness had not been with nor talked with the victim that day. King, 343 N.C. at 41-42, 468 S.E.2d at 240. Similarly, in Shaw, an officer opined that there had been a \u201cbreak-in\u201d at a residence; however, he had arrived at the residence after the \u201cbreak-in\u201d occurred and had no knowledge of how the defendant had entered the residence. Shaw, 106 N.C. App. at 440-41, 417 S.E.2d 267. Finally, in Harshaw, the witness testified the defendant had purchased a gun for the purpose of threatening the victim; yet, he could not point to any evidence as to how he had knowledge of the defendant\u2019s intentions. Harshaw, 138 N.C. App. at 661, 532 S.E.2d at 227. Unlike these cases, the evidence here establishes that, during the shooting, Wright was in a bedroom immediately adjacent to the room where the victim had been shot. After he heard a gunshot, Wright called 911 from the room where the shooting had taken place, while the victim was still \u201cgasping\u201d in front of him. Moreover, the time of night, the location of various items in the livingroom, and Wright\u2019s statement to the 911 operator that his mother had left the trailer reasonably point to the fact that defendant had been inside when the shooting occurred. Hence, we conclude that, at the time of the shooting, Wright was positioned to hear the circumstances surrounding the shooting and observe events immediately thereafter. Accordingly, his personal knowledge was such that he could rationally infer that defendant had shot the victim.\nB. Hearsay\nDefendant also asserts that Wright\u2019s statements to the 911 operator are inadmissable hearsay. Generally, a statement made by a declarant, other than the witness who is testifying, is hearsay and is inadmissible for its truth unless it is relevant and falls within one of the recognized hearsay exceptions. See N.C. Gen. Stat. \u00a7 8C-1, Rules 801-803. The \u201cexcited utterance\u201d exception permits the admission of statements \u201crelating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.\u201d N.C. Gen. Stat. \u00a7 8C-1, Rule 803(2). For a statement to be considered an \u201cexcited utterance\u201d there must be: \u201c \u2018(1) a sufficiently startling experience suspending reflective thought and (2) a spontaneous reaction, not one resulting from reflection or fabrication.\u2019 \u201d State v. Maness, 321 N.C. 454, 459, 364 S.E.2d 349, 351 (1988) (quoting State v. Smith, 315 N.C. 76, 86, 337 S.E.2d 833, 841 (1985)); see also State v. Anthony, 354 N.C. 372, 403, 555 S.E.2d 557, 579 (2001), cert. denied, - U.S. -, 153 L. Ed. 2d 791 (2002).\nDefendant concedes that Wright \u201cwas excited by the startling events that he observed\u201d in his home. Nonetheless, she contends that Wright\u2019s statements to the 911 operator were not a \u201cspontaneous reaction\u201d because the statements were made in response to questions asked by the 911 operator. However, our courts have consistently held that \u201cstatements or comments made in response to questions do not necessarily rob the statements of spontaneity.\u201d State v. Boczkowski, 130 N.C. App. 702, 710, 504 S.E.2d 796, 801 (1998); see also State v. Murphy, 321 N.C. 72, 77, 361 S.E.2d 745, 747 (1987); State v. Hamlette, 302 N.C. 490, 495, 276 S.E.2d 338, 342 (1981); and State v. Thomas, 119 N.C. App. 708, 714, 460 S.E.2d 349, 353, disc. rev. denied, 342 N.C. 196, 463 S.E.2d 248 (1995). The critical determination is whether the statement was made under conditions which demonstrate that the declarant lacked the \u201copportunity to fabricate or contrive\u201d the statement. 1 Henry Brandis, Jr., Brandis on North Carolina Evidence \u00a7 164 (3d ed. 1988).\nThe circumstances surrounding Wright\u2019s statement are similar to those which were present in State v. Kerley, 87 N.C. App. 240, 360 S.E.2d 464 (1987), disc. rev. denied, 321 N.C. 476, 364 S.E.2d 661 (1988). In that case, the declarant was asleep when the defendant set fire to his mattress and residence. After several minutes, a state trooper arrived on the scene and the declarant told the trooper that the defendant \u201chad tried to burn him while he was inside asleep.\u201d Although this Court held that the statement should have been excluded on constitutional grounds, it determined that the statement \u201cfalls squarely within the excited utterance exception to the hearsay rule_\u201d Kerley, 87 N.C. App. at 241-43, 360 S.E.2d at 465-66.\nHere, the record shows Wright made the 911 call immediately after hearing the gunshot and from the room in which the victim lay dying. Additionally, the portion of the 911 call played for the jury confirms Wright\u2019s excited condition:\n911 Operator: Okay. Is he conscious?\nWright: I don\u2019t know. I don\u2019t know. He just fell over. He just fell over. I think he fell over. Mom shot.\n911 Operator: So your mother did it?\nWright: Yeah.\n911 Operator: When did this happen? How long ago?\nWright: A minute ago. I don\u2019t know. I heard it and I got up and I don\u2019t know. I don\u2019t know to touch him \u2014 if I should touch him. I don\u2019t know.\n911 Operator: Yeah. You were in the bed when it happened?\nWright: I was in the bedroom. Yeah. I wasn\u2019t \u2014 I was in the room right next to \u2019em. Is there somebody on the way?\n911 Operator: Yeah, they\u2019re all on the way and you say it\u2019s not bleeding right now?\nWright: I can\u2019t \u2014 it looks \u2014 it\u2019s not like it\u2019s spurting.\n911 Operator: Uh huh. And you don\u2019t know where she went for sure? You know she\u2019s not in the house.\nWright: No. I don\u2019t know. I don\u2019t know. I don\u2019t know. Oh God, Almighty. And my mom.\nUnder these circumstances, we conclude Wright\u2019s statements fall within the \u201cexcited utterance\u201d exception to the hearsay rule. Further, as the statements were clearly probative as to whether defendant had shot the victim, the trial court did not err in admitting them into evidence. We overrule defendant\u2019s assignment of error.\nNext, defendant contends the trial court committed plain error by instructing the jury that it could consider defendant\u2019s \u201cflight\u201d as circumstantial evidence of her guilt. It is well settled that \u201c[i]n deciding whether a defect in the jury instruction constitutes \u2018plain error,\u2019 the appellate court must examine the entire record and determine if the instructional error had a probable impact on the jury\u2019s finding of guilt.\u201d State v. Odom, 307 N.C. 655, 661, 300 S.E.2d 375, 378-79 (1983) (citations omitted); see also State v. Holden, 346 N.C. 404, 435, 488 S.E.2d 514, 531 (1997), cert. denied, 522 U.S. 1126, 140 L. Ed. 2d 132 (1998) (\u201cIn order to rise to the level of plain error, the error in the trial court\u2019s instructions must be so fundamental that (i) absent the error, the jury probably would have reached a different verdict; or (ii) the error would constitute a miscarriage of justice if not corrected\u201d). \u201c[W]hen the \u2018plain error\u2019 rule is applied, \u2018[i]t is the rare case in which an improper instruction will justify reversal of a criminal conviction when no objection had been made in the trial court.\u2019 \u201d Odom, 307 N.C. at 660-61, 300 S.E.2d at 378 (quoting Henderson v. Kibbe, 431 U.S. 145, 154, 52 L. Ed. 2d 203, 212 (1977)).\nHere, the record shows the trial court, without objection from defendant, instructed the jury as follows:\nThe State contends and the defendant denies that the defendant fled. Evidence of flight may be considered by you together with all other facts and circumstances in this case in determining whether the combined circumstances amount to an admission or show a consciousness of guilt. However, proof of this circumstance is not sufficient by itself to establish defendant\u2019s guilt.\n(emphasis added). Without determining whether an instruction regarding defendant\u2019s \u201cflight\u201d was warranted in this case, we conclude the evidence in the record is such that the instruction had a negligible effect on the jury\u2019s determination of defendant\u2019s guilt. Further, the trial court specifically instructed the jury that proof of defendant\u2019s \u201cflight,\u201d by itself, was insufficient to establish defendant\u2019s guilt. See generally State v. Warren, 348 N.C. 80, 499 S.E.2d 431, cert. denied, 525 U.S. 915, 142 L. Ed. 2d 216 (1998). Accordingly, we overrule defendant\u2019s assignment of error.\nIn sum, we conclude defendant received a fair trial free from prejudicial error.\nNo error.\nJudges McCULLOUGH and BRYANT concur.",
        "type": "majority",
        "author": "WALKER, Judge."
      }
    ],
    "attorneys": [
      "Attorney General Roy Cooper, by Assistant Attorney General Stewart L. Johnson, for the State.",
      "Roy D. Neill for defendant-appellant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. VICKIE HARKEY WRIGHT\nNo. COA01-1123\n(Filed 16 July 2002)\n1. Evidence\u2014 hearsay \u2014 911 call identifying defendant as shooter of victim \u2014 personal knowledge \u2014 excited utterance exception\nThe trial court did not err in a second-degree murder case by admitting evidence of the exchange between defendant\u2019s son and the 911 operator including statements that defendant shot the victim, because: (1) the personal knowledge of defendant\u2019s son was such that he could rationally infer that defendant had shot the victim, including the fact that defendant\u2019s son was in a bedroom immediately adjacent to the room where the victim had been shot; and (2) the statements of defendant\u2019s son fell within the excited utterance exception to the hearsay rule, and the statements were probative as to whether defendant had shot the victim.\n2. Homicide\u2014 second-degree murder \u2014 jury instruction on flight\nThe trial court did not commit plain error in a second-degree murder case by instructing the jury that it could consider defendant\u2019s flight as circumstantial evidence of her guilt, because: (1) the evidence in the record is such that the instruction had a negligible effect on the jury\u2019s determination of defendant\u2019s guilt; and (2) the trial court specifically instructed the jury that proof of defendant\u2019s flight by itself was insufficient to establish defendant\u2019s guilt.\nAppeal by defendant from judgment entered 22 March 2001 by Judge Dennis J. Winner in Henderson County Superior Court. Heard in the Court of Appeals 5 June 2002.\nAttorney General Roy Cooper, by Assistant Attorney General Stewart L. Johnson, for the State.\nRoy D. Neill for defendant-appellant."
  },
  "file_name": "0493-01",
  "first_page_order": 523,
  "last_page_order": 529
}
