{ "id": 8470669, "name": "STATE OF NORTH CAROLINA v. ERIC SCOTT GLADDEN, Defendant", "name_abbreviation": "State v. Gladden", "decision_date": "2005-02-15", "docket_number": "No. COA03-1581", "first_page": "548", "last_page": "555", "citations": [ { "type": "official", "cite": "168 N.C. App. 548" } ], "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": "296 S.E.2d 649", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1982, "pin_cites": [ { "page": "653" }, { "page": "652" } ], "opinion_index": 0 }, { "cite": "307 N.C. 62", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560587 ], "year": 1982, "pin_cites": [ { "page": "67" } ], "opinion_index": 0, "case_paths": [ "/nc/307/0062-01" ] }, { "cite": "417 S.E.2d 756", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "pin_cites": [ { "page": "761" } ], "opinion_index": 0 }, { "cite": "331 N.C. 537", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2498402 ], "year": 1992, "pin_cites": [ { "page": "544" } ], "opinion_index": 0, "case_paths": [ "/nc/331/0537-01" ] }, { "cite": "345 S.E.2d 159", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1986, "pin_cites": [ { "page": "169" } ], "opinion_index": 0 }, { "cite": "317 N.C. 148", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4776805 ], "year": 1986, "pin_cites": [ { "page": "164" } ], "opinion_index": 0, "case_paths": [ "/nc/317/0148-01" ] }, { "cite": "405 S.E.2d 145", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "158" } ], "opinion_index": 0 }, { "cite": "329 N.C. 61", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2556466 ], "year": 1991, "pin_cites": [ { "page": "83" } ], "opinion_index": 0, "case_paths": [ "/nc/329/0061-01" ] }, { "cite": "145 L. Ed. 2d 87", "category": "reporters:federal", "reporter": "L. Ed. 2d", "weight": 2, "year": 1999, "opinion_index": 0 }, { "cite": "528 U.S. 838", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9491360, 9491196, 9491302, 9490951, 9491111, 9491148, 9490991, 9491248, 9490835, 9491028, 9490934, 9490871, 9491065, 9490908 ], "year": 1999, "opinion_index": 0, "case_paths": [ "/us/528/0838-14", "/us/528/0838-11", "/us/528/0838-13", "/us/528/0838-05", "/us/528/0838-09", "/us/528/0838-10", "/us/528/0838-06", "/us/528/0838-12", "/us/528/0838-01", "/us/528/0838-07", "/us/528/0838-04", "/us/528/0838-02", "/us/528/0838-08", "/us/528/0838-03" ] }, { "cite": "509 S.E.2d 752", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "pin_cites": [ { "page": "767" } ], "opinion_index": 0 }, { "cite": "349 N.C. 573", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 571595 ], "year": 1999, "pin_cites": [ { "page": "599" } ], "opinion_index": 0, "case_paths": [ "/nc/349/0573-01" ] }, { "cite": "153 L. Ed. 2d 184", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 2002, "pin_cites": [ { "parenthetical": "defendant's act of retrieving firearm from underneath bed was not confidential communication where wife's presence in the bedroom was incidental rather than at defendant's request" } ], "opinion_index": 0 }, { "cite": "536 U.S. 907", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1254496, 1255235, 1254404, 1254949, 1255046, 1255273, 1255052, 1254701, 1254773, 1254390, 1254841, 1255419, 1255100, 1255099, 1254430 ], "year": 2002, "pin_cites": [ { "parenthetical": "defendant's act of retrieving firearm from underneath bed was not confidential communication where wife's presence in the bedroom was incidental rather than at defendant's request" } ], "opinion_index": 0, "case_paths": [ "/us/536/0907-06", "/us/536/0907-13", "/us/536/0907-04", "/us/536/0907-15", "/us/536/0907-08", "/us/536/0907-11", "/us/536/0907-14", "/us/536/0907-03", "/us/536/0907-07", "/us/536/0907-02", "/us/536/0907-10", "/us/536/0907-09", "/us/536/0907-01", "/us/536/0907-05", "/us/536/0907-12" ] }, { "cite": "554 S.E.2d 645", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "opinion_index": 0 }, { "cite": "354 N.C. 353", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 138538 ], "year": 2001, "opinion_index": 0, "case_paths": [ "/nc/354/0353-01" ] }, { "cite": "541 S.E.2d 166", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2001, "pin_cites": [ { "page": "179" }, { "page": "179", "parenthetical": "casual observation is not a statement induced by the confidence of the marital relationship" } ], "opinion_index": 0 }, { "cite": "141 N.C. App. 152", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9440555 ], "weight": 2, "year": 2001, "pin_cites": [ { "page": "171-72" }, { "page": "170-71" } ], "opinion_index": 0, "case_paths": [ "/nc-app/141/0152-01" ] }, { "cite": "155 S.E.2d 799", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1967, "pin_cites": [ { "page": "802", "parenthetical": "communications were confidential where couple's young daughter was present but only \"singing or playing in the area\" during conversation" } ], "opinion_index": 0 }, { "cite": "271 N.C. 204", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8563146 ], "weight": 2, "year": 1967, "pin_cites": [ { "page": "207" } ], "opinion_index": 0, "case_paths": [ "/nc/271/0204-01" ] }, { "cite": "412 S.E.2d 660", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1992, "pin_cites": [ { "page": "665", "parenthetical": "citing Hicks v. Hicks, 271 N.C. 204, 155 S.E.2d 799 (1967)" }, { "page": "665" } ], "opinion_index": 0 }, { "cite": "330 N.C. 826", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2511157 ], "weight": 2, "year": 1992, "pin_cites": [ { "page": "835", "parenthetical": "citing Hicks v. Hicks, 271 N.C. 204, 155 S.E.2d 799 (1967)" }, { "page": "835" } ], "opinion_index": 0, "case_paths": [ "/nc/330/0826-01" ] }, { "cite": "405 S.E.2d 170", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "177" } ], "opinion_index": 0 }, { "cite": "329 N.C. 149", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2553626 ], "year": 1991, "pin_cites": [ { "page": "161" } ], "opinion_index": 0, "case_paths": [ "/nc/329/0149-01" ] }, { "cite": "371 S.E.2d 689", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1988, "pin_cites": [ { "page": "698" }, { "page": "689" } ], "opinion_index": 0 }, { "cite": "323 N.C. 112", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2562327 ], "year": 1988, "pin_cites": [ { "page": "126-27" } ], "opinion_index": 0, "case_paths": [ "/nc/323/0112-01" ] }, { "cite": "148 L. Ed. 2d 797", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 2001, "opinion_index": 0 }, { "cite": "531 U.S. 1130", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9725312, 9726080, 9725538, 9725636, 9725125, 9726440, 9726185, 9725963, 9725742, 9726553, 9726323, 9725849, 9725435, 9725213 ], "year": 2001, "opinion_index": 0, "case_paths": [ "/us/531/1130-03", "/us/531/1130-10", "/us/531/1130-05", "/us/531/1130-06", "/us/531/1130-01", "/us/531/1130-13", "/us/531/1130-11", "/us/531/1130-09", "/us/531/1130-07", "/us/531/1130-14", "/us/531/1130-12", "/us/531/1130-08", "/us/531/1130-04", "/us/531/1130-02" ] }, { "cite": "531 S.E.2d 428", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "436-38" } ], "opinion_index": 0 }, { "cite": "352 N.C. 158", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 685078 ], "year": 2000, "pin_cites": [ { "page": "173-75" } ], "opinion_index": 0, "case_paths": [ "/nc/352/0158-01" ] }, { "cite": "156 L. Ed. 2d 702", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 2003, "opinion_index": 0 }, { "cite": "539 U.S. 985", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 8940409, 8940346, 8940372, 8940287 ], "year": 2003, "opinion_index": 0, "case_paths": [ "/us/539/0985-04", "/us/539/0985-02", "/us/539/0985-03", "/us/539/0985-01" ] }, { "cite": "582 S.E.2d 593", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "page": "604-05" } ], "opinion_index": 0 }, { "cite": "357 N.C. 257", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 491439 ], "year": 2003, "pin_cites": [ { "page": "274" } ], "opinion_index": 0, "case_paths": [ "/nc/357/0257-01" ] }, { "cite": "591 S.E.2d 521", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "pin_cites": [ { "page": "528" } ], "opinion_index": 0 }, { "cite": "358 N.C. 40", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2985125 ], "year": 2004, "pin_cites": [ { "page": "50" } ], "opinion_index": 0, "case_paths": [ "/nc/358/0040-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 15-144", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 } ], "analysis": { "cardinality": 758, "char_count": 17271, "ocr_confidence": 0.745, "pagerank": { "raw": 8.023754560112802e-08, "percentile": 0.4650516304232409 }, "sha256": "9ce1703af5801df888656946c16574c7c02fc6409dcd0615e4a016caad7e56ca", "simhash": "1:050bf523d6e61f9a", "word_count": 2784 }, "last_updated": "2023-07-14T17:36:09.557360+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges CALABRIA and STEELMAN concur." ], "parties": [ "STATE OF NORTH CAROLINA v. ERIC SCOTT GLADDEN, Defendant" ], "opinions": [ { "text": "ELMORE, Judge.\nEric Scott Gladden (defendant) was convicted of first degree murder and now appeals the judgment entered against him. Defendant and William Kenneth Smith, Jr. (the victim) worked the same shift at the Great Lakes Carbon Plant in Morganton, North Carolina. The State\u2019s evidence tended to show that during his shift on the morning of 1 September 2000, the victim told Derrick Caldwell, a co-worker, that \u201cI\u2019m leaving here with Eric Gladden. If I come up missing, I want you to tell everybody who I left here with.\u201d\nWhen the victim did not return home from work, his wife, Kim Smith, went to his place of work and observed his truck parked in an unusual spot. After Ms. Smith reported her husband missing, William Duplain of the Morganton Department of Public Safety began investigating the disappearance. Over the course of his investigation, Detective Duplain interviewed defendant on five separate occasions. During the first four interviews, defendant denied any knowledge of what happened to the victim. Following the fourth interview, the victim\u2019s body was discovered wrapped in plastic and buried on defendant\u2019s property. During the fifth interview, defendant admitted to shooting the victim. Defendant told Detective Duplain that the victim had been blackmailing him with a video of defendant\u2019s wife and that he shot the victim in self-defense after the victim struck him in the head with a stick.\nTammy Gladden, defendant\u2019s ex-wife, testified that around 7:15 a.m. on the morning of 1 September 2000, defendant retrieved a gun from underneath her pillow and returned home 30 to 45 minutes later. On 23 September 2000, Ms. Gladden and her thirteen-year-old daughter participated in a three-way telephone call with defendant while defendant was being held at the Burke County Jail. Defendant made the call from a phone within the jail facility\u2019s phone system, which advises each inmate via an automated message that the call is subject to recording and monitoring. Within a few days of this call, defendant\u2019s attorney met with Lt. John R. Head, supervisor of the jail, to ask about the jail\u2019s call recording system. This inquiry prompted Lt. Head to review the recordings of defendant\u2019s recent calls. At trial, the State presented the 23 September phone conversation as an exhibit.\nDr. Robert L. Thompson, a forensic pathologist who performed the autopsy, testified that the cause of the victim\u2019s death was a single gunshot wound to the left side of the head. During the examination of Dr. Thompson, the State introduced into evidence several autopsy photographs of the victim.\nAt the close of the evidence, defendant made a motion to dismiss, which was denied by the trial court. During the deliberation, the jury asked the trial court for further instructions on the definition of premeditation. Defendant requested that the court reread the entire set of instructions on murder, but the court re-instructed the jury on premeditation only. Thereafter, the jury returned a verdict of guilty on the charge of first degree murder.\nI.\nBy his first assignment of error, defendant argues that the trial court erred in failing to dismiss the first degree murder indictment because it did not specifically allege the elements of premeditation and deliberation. We find no merit in defendant\u2019s argument. Our Supreme Court has repeatedly stated that the short-form indictment authorized by N.C. Gen. Stat. \u00a7 15-144 is sufficient under both state and federal constitutional standards to support a conviction of first degree murder. State v. Maske, 358 N.C. 40, 50, 591 S.E.2d 521, 528 (2004); State v. Hunt, 357 N.C. 257, 274, 582 S.E.2d 593, 604-05, cert. denied, 539 U.S. 985, 156 L. Ed. 2d 702 (2003); State v. Braxton, 352 N.C. 158, 173-75, 531 S.E.2d 428, 436-38 (2000), cert. denied, 531 U.S. 1130, 148 L. Ed. 2d 797 (2001). Defendant\u2019s assignment of error is overruled.\nII.\nNext, defendant contends that the court erred in allowing the autopsy photographs into evidence because they were irrelevant and offered solely for the purpose of inflaming the jury. A photograph that depicts the victim\u2019s remains in an advanced state of decomposition is not inadmissible simply because it is gory and may tend to arouse prejudice. State v. Harris, 323 N.C. 112, 126-27, 371 S.E.2d 689, 698 (1988). \u201cHowever, the admission of an excessive number of photographs, depicting substantially the same scene, may be prejudicial error where the additional photographs add nothing of probative value but tend solely to inflame the jury.\u201d Id. at 127, 371 S.E.2d at 689. The decision to admit photographs pursuant to Rule 403 and what constitutes an excessive number is within the discretion of the trial court. State v. Bearthes, 329 N.C. 149, 161, 405 S.E.2d 170, 177 (1991).\nHere, the autopsy photographs were offered to illustrate the testimony of the State\u2019s pathologist. The State sought to publish to the jury several photographs of the victim\u2019s face showing the gunshot wound, but the court ruled one admissible and the other two inadmissible as being cumulative. The trial judge admitted ten photographs in all: seven photographs of the victim\u2019s body with plastic wrapped around it, and three photographs of the victim\u2019s head, one of which showed the face. We conclude that the trial court did not abuse its discretion in ruling that the photographs were more probative than prejudicial and that the number of photographs was not excessive.\nIII.\nNext, defendant challenges the court\u2019s ruling to admit defendant\u2019s interview statements to law enforcement officers into evidence. Defendant argues that he made the various statements without a knowing and intelligent waiver of the right to counsel. However, defendant fails to specifically point to any facet of the interviews which would indicate his participation was involuntary. As such, we find this assignment of error without merit.\nIV.\nBy two related assignments of error, defendant argues that the court erred in admitting (1) testimony by Ms. Gladden, his wife, about her observations of defendant on the morning of 1 September, and (2) a transcript and tape of the 23 September 2000 phone conversation between defendant, his wife, and his step-daughter.\nDefendant contends that the 23 September 2000 phone conversation concerned confidential communications between him and his wife. We disagree. A communication between husband and wife is privileged if it was induced by the confidence of the marital relationship. See State v. Holmes, 330 N.C. 826, 835, 412 S.E.2d 660, 665 (1992) (citing Hicks v. Hicks, 271 N.C. 204, 155 S.E.2d 799 (1967)). Here though, defendant\u2019s step-daughter actively participated in the phone conversation with her mother and defendant. Cf. Hicks, 271 N.C. at 207, 155 S.E.2d at 802 (communications were confidential where couple\u2019s young daughter was present but only \u201csinging or playing in the area\u201d during conversation). In addition, defendant was informed prior to making the phone call that all calls made to outside parties were subject to recording and monitoring. Under these circumstances, the conversation between defendant and his wife was not confidential. As such, the admission of the three-party phone conversation did not violate the marital privilege.\nDefendant also challenges on the basis of marital privilege the admission of Ms. Gladden\u2019s testimony that he retrieved a gun from their bedroom the morning of 1 September. \u201cAn action may be protected if it is intended to be a communication and is the type of act induced by the marital relationship.\u201d Holmes, 330 N.C. at 835, 412 S.E.2d at 665. Here, defendant retrieved a gun around 7:15 a.m. when Ms. Gladden was still in the bedroom. Defendant did nothing to indicate that he intended his action to be a confidential communication. See State v. Hammonds, 141 N.C. App. 152, 171-72, 541 S.E.2d 166, 179, aff'd, 354 N.C. 353, 554 S.E.2d 645 (2001), cert. denied, 536 U.S. 907, 153 L. Ed. 2d 184 (2002) (defendant\u2019s act of retrieving firearm from underneath bed was not confidential communication where wife\u2019s presence in the bedroom was incidental rather than at defendant\u2019s request). Ms. Gladden also testified that defendant told her he was using the gun to \u201chelp his grandpa kill some chicken hawks.\u201d The facts here do not give rise to the conclusion that defendant\u2019s statement was made out of the confidence of the marital relationship, as defendant was simply making a casual remark. See Hammonds, 141 N.C. App. at 170-71, 541 S.E.2d at 179 (casual observation is not a statement induced by the confidence of the marital relationship). Therefore, the court did not err in allowing the testimony by Ms. Gladden.\nV.\nNext, defendant contends that the denial of his motion for a mistrial based upon juror misconduct and the failure of the trial court to reread the entire set of jury instructions constituted prejudicial error. The record establishes that on the first day of deliberations, the jury asked the court to reread the instructions on the definition of premeditation. Defendant requested that the court reread the instruction on first degree murder in its entirety, but the court re-instructed on premeditation only. During the overnight recess, one of the jurors asked an attorney unrelated to the case to provide her with the legal definition of premeditation. The attorney declined to answer the question, and the juror did not communicate her question to any other member of the jury. The Assistant District Attorney informed the court of this development, and the court conducted a full inquiry of the juror\u2019s conduct. The court concluded that the juror had violated an order of the court but that there was no substantial or irreparable prejudice to defendant.\nThe trial court retains sound discretion over the scope of an inquiry into allegations of juror misconduct. State v. Murillo, 349 N.C. 573, 599, 509 S.E.2d 752, 767, cert. denied, 528 U.S. 838, 145 L. Ed. 2d 87 (1999). \u201c \u2018The determination of the existence and effect of jury misconduct is primarily for the trial court whose decision will be given great weight on appeal.\u2019 \u201d Id. (quoting State v. Bonney, 329 N.C. 61, 83, 405 S.E.2d 145, 158 (1991)). In the instant case, the trial court interviewed both the juror and the attorney involved in the outside communications. We have reviewed the court\u2019s findings and conclusions and find no abuse of discretion.\nWe also find no error in the court\u2019s denial of defendant\u2019s request to reread the entire set of jury instructions. Our Supreme Court has noted that \u201cthe trial court is in the best position to determine whether further additional instruction will aid or confuse the jury in its deliberations, or if further instruction will prevent or cause in itself an undue emphasis being placed on a particular portion of the court\u2019s instructions.\u201d State v. Prevette, 317 N.C. 148, 164, 345 S.E.2d 159, 169 (1986). Thus, the decision of whether or not to give additional jury instructions is within the trial court\u2019s discretion. Id. Here, the jury foreperson asked for further instruction specifically on premeditation. It was not an abuse of discretion for the trial court to instruct on premeditation only.\nVI.\nFinally, defendant assigns as error the court\u2019s denial of his motions to dismiss and to set aside the verdict. In ruling on a motion for dismissal, the trial court must view the evidence in the light most favorable to the State, drawing all reasonable inferences in favor of the State. State v. Benson, 331 N.C. 537, 544, 417 S.E.2d 756, 761 (1992). \u201c[C]ontradictions and discrepancies do not warrant dismissal of the case [but] are for the jury to resolve.\u201d State v. Earnhardt, 307 N.C. 62, 67, 296 S.E.2d 649, 653 (1982). The question for the court is whether a reasonable inference of the defendant\u2019s guilt may be drawn from the evidence. Id. at 67, 296 S.E.2d at 652.\nThe evidence at trial, viewed in the light most favorable to the State, tended to show the following: defendant admitted that he shot the victim in the head and told the police that the victim had been blackmailing him over a tape of defendant\u2019s wife; the victim\u2019s body was found buried on defendant\u2019s property; and defendant denied any knowledge of what happened to the victim until after the body was discovered on his property and then changed his story to reveal the 1 September confrontation. The State\u2019s evidence was sufficient to support the jury\u2019s verdict, and thus the court properly denied defendant\u2019s motions.\nNo error.\nJudges CALABRIA and STEELMAN concur.", "type": "majority", "author": "ELMORE, Judge." } ], "attorneys": [ "Attorney General Roy Cooper, by Special Deputy Attorney General Jonathan R Babb, for the State.", "C. Gary Triggs and Law Office of Victor N. Yamouti, by Charles M. Bostianfor the defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. ERIC SCOTT GLADDEN, Defendant\nNo. COA03-1581\n(Filed 15 February 2005)\n1. Homicide\u2014 first-degree murder \u2014 short-form indictment\u2014 constitutionality\nThe short-form indictment used to charge defendant with first-degree murder was constitutional.\n2. Evidence\u2014 autopsy photographs \u2014 illustrative purpose\nThe trial court did not abuse its discretion in a first-degree murder case by allowing autopsy photographs to be admitted into evidence, because: (1) the photographs were offered to illustrate the testimony of the State\u2019s pathologist; (2) the State sought to publish several photographs of the victim\u2019s face showing the gunshot wound, but the court ruled one admissible and the other two inadmissible as being cumulative; and (3) the number of photographs was not excessive when ten were admitted including seven of the victim\u2019s body wrapped in plastic and three of the victim\u2019s head, including one which showed the face.\n3. Confessions and Incriminating Statements\u2014 interview statements to officers \u2014 voluntariness\nThe trial court did not err in a first-degree murder case by admitting defendant\u2019s interview statements to law enforcement officers into evidence even though defendant contends he made the various statements without a knowing and intelligent waiver of the right to counsel, because defendant failed to specifically point to any facet of the interviews which would indicate his participation was involuntary.\n4. Evidence\u2014 husband-wife privilege \u2014 wife\u2019s observations of defendant \u2014 telephone conversation\nThe trial court did not err in a first-degree murder case by admitting the testimony of defendant\u2019s wife about her observations of defendant on the morning of 1 September 2000 and a transcript and tape of the 23 September 2000 phone conversation between defendant, his wife, and his stepdaughter, because: (1) although defendant contends the phone conversation he made from jail was protected by marital privilege, defendant\u2019s stepdaughter actively participated in the phone conversation with her mother and defendant, and defendant was informed prior to making the phone call that all calls made to outside parties were subject to recording and monitoring; and (2) the wife\u2019s testimony that defendant retrieved a gun around 7:15 a.m. while she was still in the bedroom and that defendant said he was using the gun to help his grandpa kill some chicken hawks did not give rise to the conclusion that defendant\u2019s statement was made out of the confidence of the marital relationship as defendant was simply making a casual remark.\n5. Criminal Law\u2014 motion for mistrial \u2014 juror misconduct\u2014 failure to reread entire set of jury instructions\nThe trial court did not err in a first-degree murder case by denying defendant\u2019s motion for a mistrial based upon juror misconduct involving a juror asking an attorney unrelated to the case to provide her with the legal definition of premeditation, and the failure of the trial court to reread the entire set of jury instructions, because: (1) the trial court interviewed both the juror and the attorney involved in the outside communications and concluded that the juror had violated an order of the court but that there was no substantial or irreparable prejudice to defendant; (2) the determination of the existence and effect of jury misconduct is primarily for the trial court whose decision will be given great weight on appeal; and (3) the decision of whether to give additional jury instructions is within the trial court\u2019s discretion, the trial court instructed on premeditation only, and here the jury foreperson asked for further instruction specifically on premeditation.\n6. Homicide\u2014 first-degree murder \u2014 motion to dismiss \u2014 sufficiency of evidence\nThe trial court did not err in a first-degree murder case by denying defendant\u2019s motions to dismiss and to set aside the verdict, because the evidence viewed in the light most favorable to the State was sufficient to show that: (1) defendant admitted he shot the victim in the head and told the police that the victim had been blackmailing him over a tape of defendant\u2019s wife; (2) the victim\u2019s body was found buried on defendant\u2019s property; and (3) defendant denied any knowledge of what happened to the victim until after the body was discovered on his property and then changed his story to reveal a confrontation with the victim.\nAppeal by defendant from judgment entered 12 March 2003 by Judge W. Robert Bell in Burke County Superior Court. Heard in the Court of Appeals 16 September 2004.\nAttorney General Roy Cooper, by Special Deputy Attorney General Jonathan R Babb, for the State.\nC. Gary Triggs and Law Office of Victor N. Yamouti, by Charles M. Bostianfor the defendant-appellant." }, "file_name": "0548-01", "first_page_order": 578, "last_page_order": 585 }