{ "id": 4078814, "name": "STATE OF NORTH CAROLINA v. GEORGE JUNIOR HAYDEN", "name_abbreviation": "State v. Hayden", "decision_date": "2011-06-07", "docket_number": "No. COA10-1306", "first_page": "482", "last_page": "494", "citations": [ { "type": "official", "cite": "212 N.C. App. 482" } ], "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": "650 S.E.2d 29", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12639310 ], "year": 2007, "pin_cites": [ { "page": "33" } ], "opinion_index": 0, "case_paths": [ "/se2d/650/0029-01" ] }, { "cite": "430 S.E.2d 914", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "918", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "334 N.C. 67", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2529175 ], "year": 1993, "pin_cites": [ { "page": "75", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/334/0067-01" ] }, { "cite": "183 S.E.2d 553", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 7, "year": 1971, "pin_cites": [ { "page": "557" }, { "page": "557-58" }, { "page": "558", "parenthetical": "emphasis original" }, { "page": "557" }, { "page": "559", "parenthetical": "emphasis original" } ], "opinion_index": 0 }, { "cite": "279 N.C. 398", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569206 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/nc/279/0398-01" ] }, { "cite": "237 S.E.2d 315", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1977, "pin_cites": [ { "page": "317" }, { "page": "315" }, { "page": "317" } ], "opinion_index": 0 }, { "cite": "34 N.C. App. 106", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8547265 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/nc-app/34/0106-01" ] }, { "cite": "156 S.E.2d 679", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1967, "pin_cites": [ { "page": "681, 682" } ], "opinion_index": 0 }, { "cite": "271 N.C. 379", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564082 ], "year": 1967, "pin_cites": [ { "page": "381, 384" } ], "opinion_index": 0, "case_paths": [ "/nc/271/0379-01" ] }, { "cite": "679 S.E.2d 865", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2009, "pin_cites": [ { "page": "873", "parenthetical": "holding that \"(1) defendant's being in possession of the victim's car shortly after the probable time of her death, (2) defendant's also having possession of other property (jewelry and an ATM card" } ], "opinion_index": 0 }, { "cite": "198 N.C. App. 457", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4168856 ], "year": 2009, "pin_cites": [ { "page": "470", "parenthetical": "holding that \"(1) defendant's being in possession of the victim's car shortly after the probable time of her death, (2) defendant's also having possession of other property (jewelry and an ATM card" } ], "opinion_index": 0, "case_paths": [ "/nc-app/198/0457-01" ] }, { "cite": "251 S.E.2d 414", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "pin_cites": [ { "page": "416-17" } ], "opinion_index": 0 }, { "cite": "296 N.C. 519", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567904 ], "year": 1979, "pin_cites": [ { "page": "522" } ], "opinion_index": 0, "case_paths": [ "/nc/296/0519-01" ] }, { "cite": "235 S.E.2d 193", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "pin_cites": [ { "page": "197-98" } ], "opinion_index": 0 }, { "cite": "292 N.C. 711", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572704 ], "year": 1977, "pin_cites": [ { "page": "716-17" } ], "opinion_index": 0, "case_paths": [ "/nc/292/0711-01" ] }, { "cite": "240 S.E.2d 449", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "pin_cites": [ { "page": "451", "parenthetical": "finding sufficient evidence of motive where \"the State's evidence show[ed] that defendant probably beat the victim on two occasions just before her death, and it further show[ed] that defendant threatened to kill the victim a day or two before her death\"" } ], "opinion_index": 0 }, { "cite": "294 N.C. 299", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572673 ], "year": 1978, "pin_cites": [ { "page": "303", "parenthetical": "finding sufficient evidence of motive where \"the State's evidence show[ed] that defendant probably beat the victim on two occasions just before her death, and it further show[ed] that defendant threatened to kill the victim a day or two before her death\"" } ], "opinion_index": 0, "case_paths": [ "/nc/294/0299-01" ] }, { "cite": "705 S.E.2d 381", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2010, "opinion_index": 0 }, { "cite": "309 S.E.2d 464", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1983, "pin_cites": [ { "page": "467" }, { "page": "467" }, { "page": "467" } ], "opinion_index": 0 }, { "cite": "65 N.C. App. 234", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523250 ], "weight": 3, "year": 1983, "pin_cites": [ { "page": "238" }, { "page": "238" }, { "page": "238-39" } ], "opinion_index": 0, "case_paths": [ "/nc-app/65/0234-01" ] }, { "cite": "697 S.E.2d 381", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "pin_cites": [ { "page": "385" }, { "page": "385-86" }, { "page": "386" } ], "opinion_index": 0 }, { "cite": "373 S.E.2d 430", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1988, "pin_cites": [ { "page": "433" }, { "page": "433" } ], "opinion_index": 0 }, { "cite": "323 N.C. 447", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2561633 ], "weight": 2, "year": 1988, "pin_cites": [ { "page": "452" }, { "page": "452" } ], "opinion_index": 0, "case_paths": [ "/nc/323/0447-01" ] }, { "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": "250 S.E.2d 204", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1978, "pin_cites": [ { "page": "209" }, { "page": "209", "parenthetical": "quotations and citation omitted" }, { "page": "209" } ], "opinion_index": 0 }, { "cite": "296 N.C. 236", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565526 ], "weight": 3, "year": 1978, "pin_cites": [ { "page": "244" }, { "page": "244" }, { "page": "244" } ], "opinion_index": 0, "case_paths": [ "/nc/296/0236-01" ] }, { "cite": "560 S.E.2d 776", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "781" } ], "opinion_index": 0 }, { "cite": "355 N.C. 294", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 220055 ], "year": 2002, "pin_cites": [ { "page": "301" } ], "opinion_index": 0, "case_paths": [ "/nc/355/0294-01" ] }, { "cite": "573 S.E.2d 866", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2002, "pin_cites": [ { "page": "868" }, { "page": "868" } ], "opinion_index": 0 }, { "cite": "356 N.C. 591", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1511364 ], "weight": 2, "year": 2002, "pin_cites": [ { "page": "595" }, { "page": "595" } ], "opinion_index": 0, "case_paths": [ "/nc/356/0591-01" ] }, { "cite": "186 N.C. App. 57", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8154614 ], "year": 2007, "pin_cites": [ { "page": "62" } ], "opinion_index": 0, "case_paths": [ "/nc-app/186/0057-01" ] } ], "analysis": { "cardinality": 1069, "char_count": 29405, "ocr_confidence": 0.746, "pagerank": { "raw": 7.213009609826298e-08, "percentile": 0.43096894838270494 }, "sha256": "8adc7b16b228791cbe1225eaddaedbe036dc562f82e68fc14861f70f07155885", "simhash": "1:d2535137403dae7b", "word_count": 4941 }, "last_updated": "2023-07-14T17:12:23.503415+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Chief Judge MARTIN and Judge GEER concur." ], "parties": [ "STATE OF NORTH CAROLINA v. GEORGE JUNIOR HAYDEN" ], "opinions": [ { "text": "Elmore, Judge.\nGeorge Junior Hayden (defendant) appeals from a judgment entered pursuant to a jury verdict of guilty on a charge of first degree murder in the shooting death of William Miller (Bill or the victim). After careful review, we reverse.\nI. Facts\nOn 16 September 1972, four men driving on Western Boulevard in Onslow County found the body of the victim on the side of the road in a wooded area, his car stopped in the road. The driver noted that the car was running; its door was open;' and its headlights and tail lights were on. The victim was lying in the road in front of the car with blood on the ground around him and a clear gunshot wound to the head. A still-smoldering cigarette was at his feet, and a handgun was on the front seat of the car. The men called the Sheriffs Department to report the incident; that call was received at 10:25pm.\nDefendant was questioned during the investigation immediately following the murder, but never charged. In 2009, defendant was indicted for first degree murder; he was found guilty by a jury on 26 May 2010 and sentenced to life imprisonment.\nDefendant and the victim knew each other because defendant had moved in with the victim\u2019s wife, Vickie Miller, while defendant, a member of the Marine Corps, had been stationed in Okinawa during the year prior to his death. The victim returned home from this tour shortly before his death.\nAt trial, the jurors heard testimony from, among others, Robert Fitta, a neighbor of the Millers\u2019; Rodger Gill, an acquaintance of the victim\u2019s; and a myriad of investigators who had dealt with the case since 1972.\nIn total, defendant made three statements to investigators: one on 17 September 1972 (the 1972 statement), one on 23 January 1973 (the 1973 statement), and one on 6 July 1998 (the 1998 statement). The statements made by defendant therein were introduced at trial via the testimony of the investigating officers who took the statements from defendant, as were statements made by other persons who did not testify at trial. More details regarding the facts are provided below as they are germane to defendant\u2019s arguments on appeal.\nII. Motion to Dismiss\nDefendant\u2019s first argument is that the trial court erred by denying his motion to dismiss the murder charge based on insufficient evidence that defendant was the perpetrator. More specifically, defendant argues that the State\u2019s evidence of defendant\u2019s motive, means, and opportunity raised no more than a suspicion that defendant was the perpetrator of the crime. We agree.\nThe standard of review of a trial court\u2019s denial of a motion to dismiss is de novo. State v. Smith, 186 N.C. App. 57, 62, 650 S.E.2d 29, 33 (2007). In evaluating a defendant\u2019s argument, this Court will consider whether \u201cthere is substantial evidence (1) of each essential element of the offense charged . . . and (2) of defendant\u2019s being the perpetrator of such offense.\u201d State v. Scott, 356 N.C. 591, 595, 573 S.E.2d 866, 868 (2002). Substantial evidence is \u201cthat amount of relevant evidence necessary to persuade a rational juror to accept a conclusion.\u201d State v. Mann, 355 N.C. 294, 301, 560 S.E.2d 776, 781 (2002). The Court considers the evidence taken as a whole when considering its sufficiency. State v. Thomas, 296 N.C. 236, 244, 250 S.E.2d 204, 209 (1978). Furthermore, the evidence should be viewed \u201cin the light most favorable to the State, giving the State the benefit of all reasonable inferences.\u201d State v. Benson, 331 N.C. 537, 544, 417 S.E.2d 756, 761 (1992).\nCircumstantial evidence may be sufficient to overcome a motion to dismiss \u201ceven when the evidence does not rule out every hypothesis of innocence.\u201d State v. Stone, 323 N.C. 447, 452, 373 S.E.2d 430, 433 (1988). If a reasonable inference of defendant\u2019s guilt may be made, then \u201cit is for the jury to decide whether the facts, taken singly or in combination, satisfy [it] beyond a reasonable doubt that the defendant is actually guilty.\u201d Thomas, 296 N.C. at 244, 250 S.E.2d at 209 (quotations and citation omitted); see also, e.g., State v. Brooks, 2008 N.C. App. LEXIS 392, *11-12 (holding that, although the State did not present evidence directly contradicting the defendant\u2019s story that he had shot his son in the top of the head in self-defense, the State did present evidence contradicting the story sufficient to support the denial of his motion to dismiss the charge of first degree murder, including evidence that he \u201cput his son\u2019s body, along with his son\u2019s dog and material possessions, into a garbage pit on his property\u201d and waited two weeks to inform anyone of the death). However, where the evidence is \u201csufficient only to raise a suspicion or conjecture as to either the commission of the offense or the identity of the defendant as the perpetrator of it,\u201d the motion to dismiss should be allowed. Scott, 356 N.C. at 595, 573 S.E.2d at 868.\nIII. Evidence of defendant\u2019s motive, opportunity, and means to commit the crime to support defendant\u2019s identity as the perpetrator of the crime.\nIn the case sub judice, the State presented only circumstantial evidence of defendant\u2019s identity as the perpetrator.\nWhen the evidence establishing the defendant as the perpetrator of the crime is circumstantial, \u201ccourts often [look to] proof of motive, opportunity, capability and identity\u201d to determine whether a reasonable inference of defendant\u2019s guilt may be inferred or whether there is merely a suspicion that the defendant is the perpetrator.\nState v. Pastuer, \u2014 N.C. App. \u2014, \u2014, 697 S.E.2d 381, 385 (quoting State v. Bell, 65 N.C. App. 234, 238, 309 S.E.2d 464, 467 (1983)) (alteration in original), disc. rev. granted, \u2014 N.C. \u2014, 705 S.E.2d 381 (2010). As we noted in Bell, \u201ccourts often speak in terms of proof of motive, opportunity, capability and identity, all of which are merely different ways to show that a particular person committed a particular crime.... [These] are circumstances which are relevant to identify an accused as the perpetrator of a crime.\u201d Bell, 65 N.C. App. at 238, 309 S.E.2d at 467. \u201c[E]vidence of either motive or opportunity alone is insufficient to carry a case to the jury.\u201d Id., 65 N.C. App. at 238-39, 309 S.E.2d at 467.\nA. Evidence of defendant\u2019s motive to kill the victim.\nDefendant argues that the State\u2019s evidence of motive was insufficient to overcome his motion to dismiss. Evidence presented by the State tending to prove motive included the following:\n1. Defendant\u2019s 1972 statement to investigators that he lived with Vickie Miller, the victim\u2019s wife, while the victim was serving in the military overseas.\n2. Testimony from Rodger Gill, an acquaintance of the victim and defendant, that defendant made \u201csome offhanded comments . .. that, you know, if [the victim] did anything to them, [defendant] would get him.\u201d\n3. Testimony from a neighbor that she observed the victim and defendant get into a physical altercation after the victim returned from overseas. After the fight, Vickie, the victim\u2019s daughter, and defendant left and began living together elsewhere.\n4. Testimony from the victim\u2019s sister that the victim called her after the fight and told her that the victim \u201cbeat the shit out of\u2019 the defendant and that defendant \u201cthreatened to kill him.\u201d\n5. Testimony from Robert Fitta, a neighbor of the victim, that the victim asked Fitta to intercept an allotment check mailed to Vickie from the military. Mr. Fitta removed the check from the mailbox. Defendant saw this and told Mr. Fitta to give him the check. Mr. Fitta refused. According to Mr. Fitta, defendant \u201cwas a little frustrated and said a few words, and told me that he had an M16, and he either preceded it or followed it up with, \u2018That\u2019s okay. He will get his. I\u2019ve got an M16.\u2019 \u201d\n6. Testimony that the victim expressed plans to divorce Vickie, obtain custody of their daughter, and sue defendant for credit card fraud.\n7. Defendant\u2019s 1998 statement to an SBI investigator that defendant \u201cnever got in trouble for using [the victim\u2019s] checks and credit cards and signing [the victim\u2019s] name, because Vickie Miller stated it was okay for him to use the checks and sign [the victim\u2019s] name to those checks and receipts.\u201d\n8. Testimony from a neighbor, Denise Fitta, that she accompanied the victim to a local attorney\u2019s office about the divorce and credit card fraud matters. [T. p. 738]. The victim brought a folder with various items, including credit card receipts related to the victim\u2019s fraud claim and photos of his wife Vicki posing in a negligee with defendant. [T. p. 739]. The victim entrusted these items to Denise to keep at her house. Denise testified that defendant came to her house after the victim\u2019s death and said, \u201cI want the stuff that [the victim] had given you.\u201d Denise gave the items to defendant.\n9. Defendant\u2019s 1972 statement to investigators that, on the evening of the victim\u2019s murder, Vickie and defendant had \u201can argument over her comment that she was thinking of leaving him, Hayden, and going back to her husband.\u201d Defendant also stated that Vickie left around 10:00 pm that night to meet the victim, and then returned about 20 minutes later. After Vickie returned, defendant told investigators that he \u201ctook the car and drove around to cool off[.]\u201d\nViewing all this in the light most favorable to the State, we hold that a rational juror could infer from these circumstances defendant\u2019s intent to kill the victim. This Court has, in the past, held that evidence of a defendant\u2019s history of threats or physical abuse of the victim constitute evidence of defendant\u2019s motive to kill that victim. See, e.g., State v. Pastuer, \u2014 N.C. App. \u2014, \u2014, 697 S.E.2d 381, 385-86 (2010) (finding sufficient evidence of motive where the defendant \u201chad displayed hostility towards [the victim], [the defendant] had a history of abusing [the victim], and [the victim] was extremely afraid of [the defendant] to the point of obtaining a domestic violence protective order against him several months prior to her death\u201d); State v. Lee, 294 N.C. 299, 303, 240 S.E.2d 449, 451 (1978) (finding sufficient evidence of motive where \u201cthe State\u2019s evidence show[ed] that defendant probably beat the victim on two occasions just before her death, and it further show[ed] that defendant threatened to kill the victim a day or two before her death\u201d); State v. Furr, 292 N.C. 711, 716-17, 235 S.E.2d 193, 197-98 (1977) (finding sufficient evidence of motive where \u201cthe evidence showfed] that defendant wanted [the victim] dead; that he actively sought her death; and that he harbored great hostility toward her[,]\u201d including telling the victim he would \u201cgrind her up like hamburger meat\u201d and asking several people to kill his wife).\nAs noted above, in the case at hand, the evidence tended to show hostility between the victim and defendant that erupted at times in physical violence and threats: e.g., the physical altercation between defendant and the victim, the victim\u2019s anger at his wife\u2019s having lived with another man during his absence, the victim\u2019s preventing his wife from receiving her allotment check, and defendant\u2019s three statements \u2014 amounting to threats against the victim\u2019s life \u2014 to Mr. Gill and Mr. Fitta that he had an M16 and the victim \u201cwould get his[.]\u201d\nDefendant argues that his threats were not as \u201cexplicit\u201d as those in Furr and Lee and could have only constituted \u201cego-preserving boasts,\u201d but such interpretations are within the province of the jury. See Thomas, 296 N.C. at 244, 250 S.E.2d at 209. Furthermore, the State is not required to eliminate every innocent explanation of the facts. See State v. Stone, 323 N.C. 447, 452, 373 S.E.2d 430, 433 (1988). Taken in a light most favorable to the State, this Court concludes that the State presented sufficient evidence from which a rational juror could conclude the existence of a motive to kill the victim.\nB. Evidence of defendant\u2019s opportunity to kill the victim.\nEvidence presented by the State tending to prove defendant\u2019s opportunity to kill the victim included the following:\n1. Defendant\u2019s 1972 statement to investigators that Vickie left to meet the victim around 10:00 pm on 16 September 1972. Defendant stated that Vickie was gone for about 20 minutes.\n2. Defendant\u2019s statement to investigators that defendant took a drive to \u201ccool off\u2019 after Vickie returned home. In defendant\u2019s 17 September 1972 statement to investigators, he stated that he left the home around 10:30 pm and returned home around 10:40 to 10:45 pm. In defendant\u2019s 1973 statement, defendant stated that he returned home around 10:30 or 10:40 pm.\n3. The 911 call reporting the discovery of the victim\u2019s body was received at 10:25 pm on 16 September 1972.\n4. Defendant\u2019s statements to law enforcement investigators describing the route he drove to \u201ccool off\u2019 the night the victim died. In defendant\u2019s 1972 statement, he stated that he drove by the New River Shopping Center. Defendant\u2019s 1973 statement also described his route as including New River Shopping Center. In defendant\u2019s 1998 statement, he said that he drove by the Brynn Marr Shopping Center and made no mention of the New River Shopping Center. An investigator testified at trial that defendant\u2019s 1998 statement \u201cwas significant... because in all of the previous reporting [defendant] indicated he had driven down to the New River Shopping Center, which is quite a distance from the crime scene. And the reason [the investigator] thought it was significant when [defendant] mentioned this \u2014 and he volunteered it \u2014 is because Brynn Marr is where [the police] had the reports that Vickie was supposed to meet Bill when she called him the night of the murder, and it\u2019s not too far from the crime scene itself.\u201d Another investigator estimated at trial that the shopping center was approximately two miles from the scene of the murder.\n5. Testimony that Brynn Marr Shopping Center was located on the \u201cWestern Boulevard end, closest to [Highway] 24[,]\u201d and that the victim was found dead outside of his car on the part of Western Boulevard that \u201cwas just a two-lane road through the woods.\u201d The first witnesses on the scene found a cigarette on the ground next to the victim that was still burning.\nIn order for this Court to hold that the State has presented sufficient evidence of defendant\u2019s opportunity to commit the crime in question, the State must have presented at trial evidence not only placing the defendant at the scene of the crime, but placing him there at the time the crime was committed. See, e.g., Pastuer, \u2014 at \u2014, 697 S.E.2d at 386 (holding insufficient evidence of opportunity was presented where the State presented physical evidence, including the victim\u2019s blood on the defendant\u2019s shoe and the defendant\u2019s fingerprints at the crime scene, because it presented no evidence \u201cthat defendant was seen around [the victim]\u2019s home or in her car any time\u201d near the time of the murder); State v. Scott, 296 N.C. 519, 522, 251 S.E.2d 414, 416-17 (1979) (holding insufficient evidence of opportunity was presented where the State presented testimony that the defendant\u2019s fingerprint was on a box that had only been seen being handled by the victim\u2019s family, but also testimony that the box could have been handled by the defendant at a time other than the time of the crime, because the State was required to present \u201csubstantial evidence of circumstances from which the jury can find that the fingerprints could only have been impressed at the time the crime was committed\u201d) (citation and quotations omitted). Cf. State v. Lowry, 198 N.C. App. 457, 470, 679 S.E.2d 865, 873 (2009) (holding that \u201c(1) defendant\u2019s being in possession of the victim\u2019s car shortly after the probable time of her death, (2) defendant\u2019s also having possession of other property (jewelry and an ATM card) belonging to the victim that would have likely been taken at the time of the victim\u2019s death, (3) defendant\u2019s familiarity with the victim\u2019s house and access to the house [in] the days before the murder, and (4) defendant\u2019s effort to eliminate evidence by wiping down the car and his flight when confronted by police\u201d constituted sufficient evidence of opportunity); State v. Cutler, 271 N.C. 379, 381, 384, 156 S.E.2d 679, 681, 682 (1967) (holding sufficient evidence of opportunity was presented where the State presented evidence that, on the day of the murder, a truck similar to defendant\u2019s was seen at the victim\u2019s house, which was the scene of the crime, before and after the body was discovered, its interior covered in human blood of two different types; on that day, the defendant went to the home of a relative 500 yards from the victim\u2019s home and was described as drunk and \u201cbloody as a hog\u201d with a large gash on his head; after the murder, the defendant was found by police wearing bloody clothing; and the defendant was found in possession of a knife with both human blood and a hair deemed \u201csimilar\u201d to the chest hair of the victim on it).\nIn the case sub judice, taking the evidence in the light most favorable to the State, the only evidence presented at trial as to defendant\u2019s opportunity to commit the crime in question was from defendant\u2019s 1998 statement, made 26 years after the murder, that he was briefly in a spot two miles away from the scene of the crime. No evidence was presented at trial placing defendant at the scene of the crime, much less placing him there at the time the crime was committed. As such, we cannot hold that the State presented sufficient evidence of defendant\u2019s opportunity to commit the crime in question.\nC. Evidence of defendant's means to kill the victim \u2014 specifically, of his connection to the murder weapon.\nDefendant argues that the State\u2019s evidence of defendant\u2019s means to kill the victim rested on \u201chearsay evidence that [defendant] allegedly claimed he had an M16\u201d and on a theory that the defendant could steal an M16 during his tenure in the military without being detected. Defendant argues that the fact that no murder weapon was recovered, the lack of evidence that defendant actually had an M16, and the lack of identifying characteristics between the shell casings found at the scene compared to test rounds fired from an M16 prevented the State from presenting sufficient evidence of defendant\u2019s means to kill the victim. We agree.\nEvidence relevant to the issue of defendant\u2019s connection to a murder weapon included the following:\n1. Testimony from Mr. Gill that defendant told him that he stole an M16 off a military float, but that Gill never actually saw defendant with an M16.\n2. Mr. Gill\u2019s statement to an investigator in 1974 that \u201cone month prior to [the victim\u2019s return] from Okinawa, [Gill] was at . . . Miller\u2019s [house]; that [defendant] was working on his car and took out a live M16 round from the glove box; that he took . . . it to the trunk of the vehicle and loaded it into a magazine; that, at that time, [Gill] also saw another magazine in the trunk, and that the other magazine also had some live rounds in it. That when [defendant] did this, he said that he had an M16 rifle that he had stolen off a ship while they were on a Mediterranean or Caribbean cruise.\u201d Mr. Gill further stated that he never actually saw an M16 rifle.\n3. Testimony from Mr. Fitta that defendant told him he had an M16.\n4. Testimony that two M16 magazines were found in the glove box of defendant\u2019s vehicle the morning after the victim was killed.\n5. Defendant\u2019s 1998 statement to an investigator that he had \u201cadmitted having M16 magazines, but no live ammunition.\u201d\n6. Testimony from an investigator that the marines maintained \u201cclose records kept by serial numbers of weapons\u201d and that a missing weapon would result in a \u201clockdown.\u201d The investigator testified on redirect that there were \u201cways to get around the checks.\u201d\n7. Testimony that the two shell casings found near the victim\u2019s body were 0.233/5.56 caliber; that the shell casings were stamped \u201cTW71\u201d indicating that they were manufactured by Twin Cities; and that, according to the State\u2019s witness, Twin Cities is a \u201cgovernment-owned company that manufactures ammunition for the military.\u201d\n8. Testimony by the State\u2019s ballistics expert comparing the shell casings found at the scene with test cartridges fired from an M16 rifle registered to defendant by the military, which had been retrieved from the military base for the purpose of comparison. The expert witness testified that he did not find any \u201cidentifying characteristics\u201d between the shell casings found at the scene and the cartridges that were test fired from the M16.\n9. The ballistics expert testified that he could not determine whether the two shell casings found at the scene were fired from the same gun; that he could not determine the type of rifle that fired the shell casings; and that he could not determine whether the bullet fragments found in the victim\u2019s body came from the shell casings. On redirect, the ballistics expert testified that the shell casings could have been fired from an M16.\nDefendant\u2019s argument that the State\u2019s evidence was insufficient to connect defendant to a murder weapon finds fairly strong support in the analogous case of State v. Lee, 34 N.C. App. 106, 237 S.E.2d 315 (1977). In that case, this Court held that the State presented strong evidence of a motive to kill the victim, but ultimately failed to provide sufficient evidence \u201cto permit a jury to find that the criminal act was committed by the defendant.\u201d Id. at 108, 237 S.E.2d at 317. The following constituted the State\u2019s evidence linking defendant to a weapon:\nTwo lead fragments were taken from the body of [the victim], but they were unsuitable for identification. The State introduced into evidence a .25 caliber pistol, identified as State\u2019s Exhibit 1, that defendant\u2019s sister gave to the officer when he went to the home of defendant\u2019s father on [the evening of the murder]. Defendant\u2019s father testified that the defendant had a \u201csmall pistol\u201d with him when he came [home that evening]. One of defendant\u2019s neighbors . . . testified that defendant had a black .25 caliber pistol with him in his trailer a few days before the death of [the victim], and that the pistol was similar to State\u2019s Exhibit 1. The State introduced into evidence a fired cartridge casing, identified as State\u2019s Exhibit 7, which was found to be similar to cartridges test-fired from State\u2019s Exhibit 1. However, the State\u2019s firearms expert could not conclusively determine whether or not State\u2019s Exhibit 7 had been fired from State\u2019s Exhibit 1.\nId. at 107, 237 S.E.2d at 315. This Court held that there was\nno direct evidence to connect [the .25 caliber pistol introduced by the State] with the defendant. Only by indulging in speculation and assuming facts not in evidence can the inference be drawn that State\u2019s Exhibit 1 was ever at any time in defendant\u2019s possession. Neither was there any evidence that State\u2019s Exhibit 1 was used to kill the deceased. State\u2019s Exhibit 7, the fired cartridge casing, could not be conclusively connected to State\u2019s Exhibit 1, but even if the connection could have been made, there was no evidence as to where State\u2019s Exhibit 7 had come from or what connection, if any, it may have had with the death of the decedent.\nId. at 108-09, 237 S.E.2d at 317.\nThe facts of this case are also similar to those in State v. Allred, 279 N.C. 398, 183 S.E.2d 553 (1971). The victim in that case died as a result of a .25 bullet fired from a .25 automatic pistol. Id. at 404, 183 S.E.2d at 557. The only evidence tending to connect the defendant to the murder weapon was the victim\u2019s father\u2019s testimony that the defendant said he bought a .25 automatic \u201cblue steel\u201d pistol a month before the victim\u2019s death. Id. at 404, 183 S.E.2d at 557-58. There was \u201cno evidence such a pistol was seen in defendant\u2019s possession at any time before or after [the victim\u2019s] death\u201d or that \u201cdefendant fired any pistol on [the night victim died].\u201d Id. at 404, 183 S.E.2d at 558 (emphasis original). The State also offered the testimony of three witnesses who observed the defendant and the victim \u201cscuffle\u201d that night, but noted that each witness\u2019s version \u201cdiffered] sharply\u201d and could not be \u201creconcile [d] . . . particularly on the issues of whether defendant had a \u2018gun\u2019 and, if so, what he did with it.\u201d Id. The Court noted that \u201c[t]here [wa]s no testimony that defendant had a .25 automatic pistol at Robbins Crossroads on [the night the victim died]. Nor [wa]s there testimony that defendant fired any pistol on that occasion.\u201d Id. at 404, 183 S.E.2d at 557. In conclusion, the Court held that \u201cthe State . . . failed to offer substantial evidence that the bullet which caused [the victim\u2019s] death was from a .25 automatic pistol fired by defendant.\u201d Id. at 406, 183 S.E.2d at 559 (emphasis original).\nIn the case sub judice, as in Lee, no one saw defendant in the possession of an M16; and, as in Allred, the only evidence that defendant had a gun, much less the murder weapon, was the testimony of someone to whom defendant stated that he had such a gun.\nIn sum, the State\u2019s evidence of defendant\u2019s means to commit the murder consists of three statements made to Mr. Gill and Mr. Fitta that defendant had stolen an M16 from the military and an investigator\u2019s testimony that it was possible to steal a weapon from the military without being detected. The State did not present evidence as to how defendant could have obtained an M16 beyond his boasts that he had done so and vague testimony that such a theft might have been possible; no witnesses testified that they had ever seen defendant in possession of such a gun, and the State presented no other evidence supporting such a conclusion.\nIndeed, the State could not establish that an M16 fired the type of shell casing found at the crime scene. While evidence was presented that the bullets associated with those casings were made by a manufacturer that made bullets for military use, again, the State did not present evidence that tied those bullets to the crime, nor even to the time frame during which the crime took place.\nArguably, the discovery of M16 magazines in defendant\u2019s glove box makes the State\u2019s evidence of means less speculative; however, it bears repeating that the State did not present evidence that an M16 was in fact the murder weapon. The State presented evidence only that a high velocity rifle that might have been an M16 could have fired the bullets associated with those shell casings. The State presented no evidence that the magazines in defendant\u2019s glove box contained the type of bullets associated with the shell casings found at the scene.\nIV. Conclusion\nIn conclusion, the State presented sufficient evidence of hostility between the defendant and victim from which a rational juror could conclude defendant had a motive to kill the victim. However, the State did not present sufficient evidence that defendant had either the opportunity or the means to commit the murder: no evidence was presented to connect defendant with the crime scene at any time, much less the time the crime was committed, and no murder weapon was introduced at trial. While it is true that \u201c[c]ontradictions and discrepancies do not warrant dismissal of the case but are for the jury to resolve[,]\u201d State v. Barnes, 334 N.C. 67, 75, 430 S.E.2d 914, 918 (1993) (citation omitted), the lack of evidence does not qualify as either. Accordingly, we hold that the State failed to present sufficient evidence from which a rational juror could conclude that defendant was the perpetrator of the victim\u2019s murder.\nAs we reverse on this basis, we do not address defendant\u2019s other arguments.\nReversed.\nChief Judge MARTIN and Judge GEER concur.", "type": "majority", "author": "Elmore, Judge." } ], "attorneys": [ "Attorney General Roy Cooper, by Assistant Attorney General Amy Kunstling Irene, for the State.", "Marilyn G. Ozer for defendant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. GEORGE JUNIOR HAYDEN\nNo. COA10-1306\n(Filed 7 June 2011)\n1. Homicide\u2014 first-degree murder \u2014 motive to kill \u2014 evidence sufficient\nTaking the evidence in the light most favorable to the State, there was sufficient evidence in a first-degree murder prosecution for a rational juror to find the existence of a motive to kill the victim where there was evidence of hostility between the victim and defendant that erupted at times into physical violence and threats.\n2. Homicide\u2014 first-degree murder \u2014 opportunity to kill \u2014 evidence not sufficient\nIn a first-degree murder prosecution, the State did not present sufficient evidence of defendant\u2019s opportunity to kill the victim where the only evidence was a statement made 26 years after the murder that defendant was located two miles away. There was no evidence placing defendant at the scene of the crime, much less at the scene when the crime was committed.\n3. Homicide\u2014 first-degree murder \u2014 means to kill \u2014 evidence not sufficient\nThe State did not present sufficient evidence that defendant had the means to kill a first-degree murder victim where the State could only establish that a high velocity rifle that might have been an M16 could have fired bullets associated with shell casings found at the scene, but could not establish that an M16 actually fired that type of shell casing, that defendant had an M16, or how defendant could have obtained one other than his boasts and vague testimony that such a theft might have been possible.\nAppeal by defendant from judgment entered 26 May 2010 by Judge Kenneth F. Crow in Onslow County Superior Court. Heard in the Court of Appeals 11 April 2011.\nAttorney General Roy Cooper, by Assistant Attorney General Amy Kunstling Irene, for the State.\nMarilyn G. Ozer for defendant." }, "file_name": "0482-01", "first_page_order": 492, "last_page_order": 504 }