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    "judges": [
      "Judges ARNOLD and Orr concur."
    ],
    "parties": [
      "STATE OF NORTH CAROLINA v. EARL WHITTED, JR."
    ],
    "opinions": [
      {
        "text": "JOHNSON, Judge.\nThe State\u2019s evidence tended to show, inter alia, that some time during 1977, the victim, Alma Howard, fell and broke her leg while walking in the City of New York. She and her husband, Seaborne, hired the law firm of Morris J. Eisen, P. C. (\u201cEisen firm\u201d) to represent them in a personal injury action against the City. Prior to the final disposition of the lawsuit, however, the Howards moved to Mount Olive, North Carolina.\nIn June, 1981, Alma received a correspondence from the Eisen firm informing her the lawsuit could be settled for $10,000.00. Defendant was then hired as an intermediary between Alma and the Eisen firm.\nOver the next year, Alma and her sister, Edna Pearsall, went several times to see defendant about the case. Each time they visited defendant, he informed them that he was still working on the case. Alma and Edna last visited defendant in April, 1982. Alma died 26 June 1982.\nThe evidence further showed that defendant maintained several bank accounts at various institutions. He had an account at First Citizens Bank which was designated as a \u201cTrust Account.\u201d The records to that account revealed that a transaction dated 11 March 1982 resulted in a deposit of $4,197.60 to the account. Furthermore, the account had a checkline reserve feature of $1,000.00 whereby if the account was overdrawn the bank would advance funds up to the reserve limit. As of 11 March 1982, defendant owed the bank $975.48 on that account.\nPrior to 11 March 1982, defendant received a check from the Eisen firm in the amount of $5,697.60. He deposited $4,197.60 and \u201ccashed-out\u201d $1,500.00. According to bank records, between 11 March and 19 April, defendant made the following transactions to the account in question: (1) check number 1138 payable to Earl Whitted, Jr. in the amount of $1,000.00 was drawn on the account and deposited into defendant\u2019s Branch Banking and Trust (\u201cB B & T\u201d) account in order to cover an outstanding check defendant had written to American Express in the amount of $590.53; (2) checks number 1139 and 1140 for $186.74 and $100.00 were written to City Finance Company and Service Motor Co., respectively; (3) check number 1141 was written to American Savings and Loan in the amount of $1,545.80 to cover two months of defendant\u2019s mortgage on his house; (4) check number 1142 was drawn on the account in the amount of $490.00 and designated payroll.\nBetween June, 1982 and September, 1985, Edna visited defendant\u2019s office approximately 15 times asking about her sister\u2019s lawsuit. Defendant\u2019s continued response was that \u201che hadn\u2019t heard anything [and that] he was still working on it.\u201d Finally, in September, 1985, Edna went to defendant\u2019s office demanding the lawsuit papers because she wanted to go to New York to visit the Eisen firm. Defendant responded by saying that he no longer had the papers.\nOn 5 September 1985 Edna and her husband Leslie went to the Eisen firm and discovered that the case was settled for $10,000.00 and a check for $5,697.60 was mailed to defendant on 4 March 1982. Upon returning to Mount Olive, they contacted the State Bureau of Investigation (\u201cSBI\u201d). \\\nOn 27 September 1985, defendant contacted Edna and told her that he had the money and that she could come pick it up. Defendant was informed, however, that she had contacted the SBI.\nOn 28 September 1985, Edna and her parents went to defendant\u2019s office where he tendered to each a check drawn on a BB&T account. Edna\u2019s check was issued for $2,136.60 while her parents each received a check for $1,068.30.\nThe records of defendant\u2019s BB&T account indicates that defendant transferred $4,300.00 from an account he had with Merrill Lynch to cover the checks written to Edna and her parents. The money in the Merrill Lynch account was the proceeds from a $36,406.00 deposit of a check into the account designated as the estate account of Vera Adams.\nDefendant\u2019s evidence tended to show that he took the $1,500.00 cash from the Eisen check, put it into a folder along with other cash he had in his office and had held on to the money for three years.\nBy this appeal, defendant brings forth forty-seven Assignments of Error in which he challenges virtually every aspect of the trial. After a careful review of the record in the case at bar, we conclude that defendant received a fair trial free of prejudicial error. While we have considered all of defendant\u2019s assignments of error, we find it unnecessary to address all forty-seven. We shall restrict our discussion to the legal questions we believe to be decisive.\nBy Assignment of Error number two, defendant contends that the trial court erred in admitting evidence of his misapplication of funds of another client pursuant to G.S. \u00a7 8C-1, Rule 404(b). In particular, defendant contends that the trial court improperly admitted evidence of his handling of a wrongful death action for his client Evelyn M. Goodman in 1984. We disagree.\nAs a general rule, extrinsic evidence of another offense is inadmissible to show character or propensity of the defendant to commit the crime for which he is charged. State v. Searles, 304 N.C. 149, 282 S.E.2d 430 (1981). Such evidence is admissible, however, to show inter alia, motive, intent, opportunity, plan or identity. G.S. \u00a7 8C-1, Rule 404. See also State v. Allen, 92 N.C. App. 168, 374 S.E.2d 119 (1988), cert. denied, 324 N.C. 544, 380 S.E.2d 772 (1989). Where specific mental intent or state of mind is an essential element of the offense charged, evidence of similar acts are admissible to prove defendant\u2019s intent or state of mind. State v. Hall, 85 N.C. App. 447, 355 S.E.2d 250 (1987). Here, the Goodman evidence was offered to prove defendant\u2019s knowledge, intent and lack of mistake. We hold that it was properly admitted for those purposes.\nBy Assignment of Error number eight, defendant contends that the trial court improperly denied his motion to suppress and for sanctions. Defendant, in essence, contends that his rights under the Fourth Amendment of the U.S. Constitution were violated when the State obtained records from his B B & T bank account. We disagree.\nAny person seeking the protection of the Fourth Amendment has the burden of establishing that his personal rights were violated by the State\u2019s search and seizure of records. State v. Jones, 299 N.C. 298, 306, 261 S.E.2d 860, 865 (1980). The Fourth Amendment only protects individuals having a reasonable expectation of privacy in the searched premises. Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978); see also State v. Melvin, 86 N.C. App. 291, 357 S.E.2d 379 (1987).\nSince defendant failed to establish that he had a reasonable expectation of privacy as to the bank records of Alma Howard and the estate account of Vera Adams and since G.S. \u00a7 53B-4 authorizes financial institutions maintaining accounts in the defendant\u2019s name to make them available to the State, we find that the trial court correctly denied defendant\u2019s motion to suppress the bank records. Defendant\u2019s contention lacks merit.\nBy Assignment of Error number sixteen, defendant contends that the trial court erred in allowing the State to introduce a statement by Alma Howard through her twin sister, Edna Pearsall, pursuant to G.S. \u00a7 8C-1, Rule 804(b)(5). We disagree.\nG.S. \u00a7 8C-1, Rule 804 in pertinent part provides that:\n(b) Hearsay Exceptions. \u2014The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:\n(5) Other Exceptions. \u2014A statement not specifically covered by any of the foregoing exceptions, but having equivalent circumstantial guarantees of trustworthiness, if the court determines that (A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence. However, a statement may not be admitted under this exception unless the proponent of it gives written notice stating his intention to offer the statement and the particulars of it, including the name and address of the declarant, to the adverse party sufficiently in advance of offering the statement to provide the adverse party with fair opportunity to prepare to meet the statement.\nG.S. \u00a7 8C-1, Rule 804(b)(5).\nOur Supreme Court has articulated guidelines for the admissibility of hearsay testimony under the \u201ccatchall\u201d hearsay exceptions established by Rules 804(b)(5) and 803(24). Because the residual nature of the above-mentioned rules are virtually identical, our Courts have adopted parallel guidelines for the admission of hearsay testimony. See State v. Triplett, 316 N.C. 1, 340 S.E.2d 736 (1986). The trial judge must engage in a six-part test as prescribed in State v. Smith, 315 N.C. 76, 337 S.E.2d 833 (1985). Initially, however, the trial judge must find that the declarant is unavailable before applying the Smith test. State v. Triplett, supra, citing United States v. Thomas, 705 F.2d 709 (4th Cir.), cert. denied, 464 U.S. 890, 104 S.Ct. 232, 78 L.Ed.2d 225 (1983). Rule 804(a)(4) defines \u201cunavailability as a witness\u201d as situations where the declarant \u201c[i]s unable to be present or to testify at the hearing because of death . . . .\u201d In the instant case, the trial judge made a finding that the declarant, Alma Howard, was dead.\nOnce the trial judge deems the declarant as unavailable, he must apply the six-part Smith test. The trial judge must first make the determination that the proponent of the hearsay statements gave proper notice to the adverse party of his intent to offer it and the particulars. Detailed findings of fact are not necessary. Second, the trial judge must determine that the hearsay statements are covered by any of the four exceptions listed in Rule 804(b). While detailed findings are not necessary, the trial judge must nonetheless enter his conclusions in the record. Third, the trial judge must make a finding as to the trustworthiness of the statements offered pursuant to Rule 804(b)(5). If, in examining the circumstances, the trial judge determines that the hearsay statements meet the trustworthiness requirement, he must include in the record his findings of fact and conclusions of law. Fourth, the trial judge must determine and include in the record a statement that the hearsay statements are being offered as evidence of a material fact. Fifth, the trial judge must determine, make findings of fact and conclusions of law as to whether the proffered statements are more probative on the issue for which it is offered than any other evidence which the proponent can procure through reasonable efforts. The sixth and final prong of the Smith test is the determination of whether \u201cthe general purposes of [the] rules [of evidence] and the interests of justice will best be served by admission of the statements into evidence.\u201d G.S. \u00a7 8C-1, Rule 804(b)(5). The trial judge need only state his conclusions. State v. Smith, supra.\nIn applying the requirements adopted herein, we hold that the trial court properly admitted the hearsay testimony of Edna Pearsall under Rule 804(b)(5). In considering the notice requirement, we note that prior to the trial, the State presented defendant with a notice of intent to introduce evidence by Alma Howard, pursuant to Rule 804(b)(5). Defendant thereafter filed for a motion in limine as to statements made by Mrs. Howard to Mrs. Pearsall. Clearly, the record shows that defendant had a sufficient amount of time to prepare for the State\u2019s intended offer.\nIn considering whether the proffered statements were material and probative, we recognize that the statements of Mrs. Howard were offered for the purpose of proving that Mrs. Howard had thought about how the money should be used prior to her death and expressed her desire to her sister and parents, thus negating defendant\u2019s contention that Mrs. Howard authorized him to hold and spend her money. Defendant argues, however, that the statements made by the victim did not possess circumstantial guarantees of trustworthiness and that the testimony of Mrs. Pear-sall was hostile and biased. We do not agree.\nIn weighing the \u201ccircumstantial guarantees of trustworthiness\u201d of a hearsay statement, the trial judge must consider: \u201c(1) assurances of the declarant\u2019s personal knowledge of the underlying events, (2) the declarant\u2019s motivation to speak the truth or otherwise, (3) whether the declarant has ever recanted the statement, and (4) the practical availability of the declarant at trial for meaningful cross-examination.\u201d State v. Triplett, supra at 10-11, 340 S.E.2d at 742. In addition, the trial judge must consider the nature and character of the statements and the relationship of the parties. State v. Triplett, supra, citing Herdman v. Smith, 707 F.2d 839 (5th Cir. 1983).\nTestifying on voir dire, Edna Pearsall stated that she and her sister, Alma Howard, were close and shared a confidential and trusting relationship. She also testified that she had assisted her sister in her move to North Carolina; co-signed as a surety so that her sister and brother-in-law could obtain financing for a mobile home; made the down payment on the mobile home; attended to her sister\u2019s medical needs; and opened her home to her sister prior to the time the mobile home was purchased as well as when Mrs. Howard\u2019s husband died. Further, Mrs. Pearsall testified that her sister expressed her intentions concerning what should be done with the proceeds of the lawsuit should it ever arrive.\nIn light of the fact that the declarant and Mrs. Pearsall enjoyed a sisterhood of closeness, confidentiality and trust, we believe that the declarant\u2019s expression of her intentions concerning the proceeds of the lawsuit to her sister were honest. Thus, the declar-ant\u2019s statements to Mrs. Pearsall possessed guarantees of trustworthiness.\nWe conclude that the trial judge made detailed findings of fact that sufficiently supported his holding that the hearsay statements were admissible under the purview of the catchall Rule 804(b)(5).\nFor all the aforementioned reasons, we find that defendant had a fair trial free of prejudicial error.\nNo error.\nJudges ARNOLD and Orr concur.",
        "type": "majority",
        "author": "JOHNSON, Judge."
      }
    ],
    "attorneys": [
      "Attorney General Lacy H. Thornburg, by Assistant Attorney General G. Patrick Murphy, for the State.",
      "Braswell & Taylor, by Roland C. Braswell, for defendant-appellant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. EARL WHITTED, JR.\nNo. 898SC886\n(Filed 17 July 1990)\n1. Embezzlement \u00a7 5 (NCI3d)\u2014 attorney \u2014 embezzlement of client funds \u2014 evidence of other offenses\nThe trial court did not err in the prosecution of an attorney for embezzlement of client funds by admitting evidence of misapplication of funds of another client. The evidence was admissible to prove defendant\u2019s knowledge, intent and lack of mistake. N.C.G.S. \u00a7 8C-1, Rule 404(b).\nAm Jur 2d, Embezzlement \u00a7\u00a7 49, 52.\n2. Searches and Seizures \u00a7 15 (NCI3d)\u2014 bank records \u2014 no reasonable expectation of privacy\nThe fourth amendment rights of an attorney charged with embezzlement' were not violated when the State obtained records from a bank account because defendant failed to establish that he had a reasonable expectation of privacy as to the bank records. Moreover, N.C.G.S. \u00a7 53B-4 authorizes financial institutions maintaining accounts in defendant\u2019s name to make them available to the State.\nAm Jur 2d, Searches and Seizures \u00a7\u00a7 27, 104.\n3. Criminal Law \u00a7 73.2 (NCI3d)\u2014 hearsay \u2014 admissible under catchall exception\nThe trial court did not err in an embezzlement prosecution by admitting a statement by the deceased victim through her twin sister where the State presented defendant with notice of intent to introduce the evidence prior to trial; the evidence was offered for the purpose of proving that the victim had thought about how the money should be used prior to her death and expressed her desire to her sister and parents, thus negating defendant\u2019s contention that the victim authorized him to hold and spend her money; and the declarant\u2019s statements possessed guarantees of trustworthiness in light of the fact that the declarant and the witness enjoyed a sisterhood of closeness, confidentiality and trust. N.C.G.S. \u00a7 8C-1, Rule 804(b)(5).\nAm Jur 2d, Evidence \u00a7 496.\nAPPEAL by defendant from judgment entered 27 January 1989 by Judge Wiley F. Bowen in WAYNE County Superior Court. Heard in the Court of Appeals 14 February 1990.\nDefendant was tried and convicted of embezzlement in violation of G.S. \u00a7 14-90. The trial court, having considered the evidence, arguments of counsel and statements of defendant, sentenced defendant to three years imprisonment. The sentence was, however, suspended and defendant was placed on supervised probation for five years. As an additional condition of the suspended sentence, defendant was ordered to serve an active term of ninety days in prison, disbarred from the practice of law in North Carolina and fined $3,000.00. Defendant appeals.\nAttorney General Lacy H. Thornburg, by Assistant Attorney General G. Patrick Murphy, for the State.\nBraswell & Taylor, by Roland C. Braswell, for defendant-appellant."
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