{ "id": 2498848, "name": "STATE OF NORTH CAROLINA v. GREGORY STEWART LYNCH", "name_abbreviation": "State v. Lynch", "decision_date": "1990-07-26", "docket_number": "No. 679A86", "first_page": "210", "last_page": "224", "citations": [ { "type": "official", "cite": "327 N.C. 210" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "337 S.E.2d 833", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "315 N.C. 76", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4715827 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc/315/0076-01" ] }, { "cite": "298 S.E.2d 631", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1983, "pin_cites": [ { "page": "637" } ], "opinion_index": 0 }, { "cite": "307 N.C. 321", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562282 ], "weight": 2, "year": 1983, "opinion_index": 0, "case_paths": [ "/nc/307/0321-01" ] }, { "cite": "392 S.E.2d 71", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1990, "pin_cites": [ { "page": "74" }, { "page": "74-75" } ], "opinion_index": 0 }, { "cite": "326 N.C. 676", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5308707 ], "weight": 2, "year": 1990, "pin_cites": [ { "page": "683" } ], "opinion_index": 0, "case_paths": [ "/nc/326/0676-01" ] }, { "cite": "389 S.E.2d 66", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1990, "pin_cites": [ { "page": "74" }, { "page": "74" } ], "opinion_index": 0 }, { "cite": "326 N.C. 298", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5306390 ], "weight": 3, "year": 1990, "pin_cites": [ { "page": "313" }, { "page": "313" } ], "opinion_index": 0, "case_paths": [ "/nc/326/0298-01" ] }, { "cite": "51 S.E.2d 348", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1949, "pin_cites": [ { "page": "354" } ], "opinion_index": 0 }, { "cite": "229 N.C. 662", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 12167610 ], "year": 1949, "pin_cites": [ { "page": "670" } ], "opinion_index": 0, "case_paths": [ "/nc/229/0662-01" ] }, { "cite": "324 S.E.2d 241", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "247" } ], "opinion_index": 0 }, { "cite": "312 N.C. 553", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4753359 ], "year": 1985, "pin_cites": [ { "page": "561" } ], "opinion_index": 0, "case_paths": [ "/nc/312/0553-01" ] }, { "cite": "356 S.E.2d 319", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "326" } ], "opinion_index": 0 }, { "cite": "319 N.C. 562", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4739096 ], "year": 1987, "pin_cites": [ { "page": "574" } ], "opinion_index": 0, "case_paths": [ "/nc/319/0562-01" ] }, { "cite": "101 S.E.2d 629", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1919, "pin_cites": [ { "page": "631" } ], "opinion_index": 0 }, { "cite": "178 N.C. 784", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11274404 ], "year": 1919, "pin_cites": [ { "page": "790" } ], "opinion_index": 0, "case_paths": [ "/nc/178/0784-01" ] }, { "cite": "101 S.E. 29", "category": "reporters:state_regional", "reporter": "S.E.", "weight": 2, "year": 1919, "pin_cites": [ { "page": "32" } ], "opinion_index": 0 }, { "cite": "178 N.C. 733", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11274149 ], "weight": 2, "year": 1919, "pin_cites": [ { "page": "738" } ], "opinion_index": 0, "case_paths": [ "/nc/178/0733-01" ] }, { "cite": "257 S.E.2d 417", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1979, "pin_cites": [ { "page": "425", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "298 N.C. 135", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568643 ], "weight": 2, "year": 1979, "pin_cites": [ { "page": "147-48" } ], "opinion_index": 0, "case_paths": [ "/nc/298/0135-01" ] }, { "cite": "390 S.E.2d 314", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 1990, "pin_cites": [ { "page": "320" }, { "page": "320-21" }, { "page": "320" } ], "opinion_index": 0 }, { "cite": "326 N.C. 368", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5309751 ], "weight": 4, "year": 1990, "pin_cites": [ { "page": "375" }, { "page": "376-77" }, { "page": "376" } ], "opinion_index": 0, "case_paths": [ "/nc/326/0368-01" ] }, { "cite": "378 S.E.2d 763", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "opinion_index": 0 }, { "cite": "324 N.C. 360", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2485564 ], "year": 1989, "opinion_index": 0, "case_paths": [ "/nc/324/0360-01" ] }, { "cite": "250 S.E.2d 204", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "296 N.C. 236", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565526 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/nc/296/0236-01" ] }, { "cite": "356 S.E.2d 352", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1987, "pin_cites": [ { "page": "355" } ], "opinion_index": 0 }, { "cite": "319 N.C. 599", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4749161 ], "weight": 2, "year": 1987, "pin_cites": [ { "page": "604" } ], "opinion_index": 0, "case_paths": [ "/nc/319/0599-01" ] }, { "cite": "443 U.S. 307", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6182418 ], "weight": 2, "year": 1979, "pin_cites": [ { "page": "319" }, { "page": "573" } ], "opinion_index": 0, "case_paths": [ "/us/443/0307-01" ] }, { "cite": "340 S.E.2d 736", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1986, "pin_cites": [ { "page": "739", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "316 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4697175 ], "weight": 2, "year": 1986, "pin_cites": [ { "page": "5", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/316/0001-01" ] }, { "cite": "296 S.E.2d 649", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1982, "pin_cites": [ { "page": "652", "parenthetical": "citation omitted" }, { "page": "653" }, { "page": "653" } ], "opinion_index": 0 }, { "cite": "307 N.C. 62", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560587 ], "year": 1982, "pin_cites": [ { "page": "66", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/307/0062-01" ] }, { "cite": "265 S.E.2d 164", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "169" } ], "opinion_index": 0 }, { "cite": "300 N.C. 71", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559773 ], "year": 1980, "pin_cites": [ { "page": "78-79" } ], "opinion_index": 0, "case_paths": [ "/nc/300/0071-01" ] }, { "cite": "343 S.E.2d 885", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "890" } ], "opinion_index": 0 }, { "cite": "317 N.C. 87", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4777958 ], "year": 1986, "pin_cites": [ { "page": "96" } ], "opinion_index": 0, "case_paths": [ "/nc/317/0087-01" ] } ], "analysis": { "cardinality": 1191, "char_count": 31729, "ocr_confidence": 0.767, "pagerank": { "raw": 1.338295185584021e-06, "percentile": 0.9899019209228028 }, "sha256": "274082eaa090de2a2c15d97380429fe313b6af7659bdb70bb295e612b04ef647", "simhash": "1:7e62f372d127adf0", "word_count": 5292 }, "last_updated": "2023-07-14T20:39:47.348264+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "STATE OF NORTH CAROLINA v. GREGORY STEWART LYNCH" ], "opinions": [ { "text": "EXUM, Chief Justice.\nAt defendant\u2019s trial for first degree murder the jury was instructed that it could find defendant guilty on a theory of premeditation and deliberation or on a theory of lying in wait. The jury returned a general verdict of guilty without specifying upon which theory or theories it relied.\nWhile the evidence was sufficient to support a verdict on a theory of premeditation and deliberation, the evidence was insufficient to support a verdict on a theory of lying in wait. It was reversible error, therefore, to submit the case to the jury on a theory unsupported by the evidence; and defendant must be given a new trial. We also conclude there was no error in the admission of certain evidence against defendant.\nI.\nDefendant was indicted by the Grand Jury of Rutherford County at the 21 July 1986 Criminal Session of Superior Court for the offense of first degree murder. He was tried capitally in the Superior Court of Rutherford County in October 1986 and found guilty of first degree murder. After a sentencing hearing, the jury found the presence of one aggravating circumstance, that the defendant previously had been convicted of a felony involving the use or threat of violence to a person. The jury found one mitigating circumstance, that the murder occurred while defendant was under the influence of a mental or emotional disturbance. It failed to find that defendant\u2019s capacity to appreciate the criminality of his conduct was impaired and that there were any other unspecified mitigating circumstances. The jury determined that the mitigating circumstance was insufficient to outweigh the aggravating circumstance and that the aggravating circumstance was sufficiently substantial to warrant the death penalty. The jury recommended that defendant be sentenced to death. For the statutory authorization for these findings at sentencing, see N.C.G.S. \u00a7 15A-2000(e)(3), (f)(2), (c)(2) and (3).\nThe State\u2019s evidence tends to show the following:\nOn 21 June 1986 at around 11:45 p.m. the victim, Jackie Lynch, was stabbed repeatedly in the parking lot of Spindale Mills, where she worked third shift. She was pronounced dead on arrival at Rutherford County Hospital.\nDefendant and Jackie Lynch were married but had been separated for approximately two months before Jackie was killed.\nOn the morning of 18 May 1986 defendant surreptitiously entered Jackie\u2019s home and was discovered by Duprey McDowell, Jackie\u2019s son. McDowell escaped through a window and called the police from a neighbor\u2019s house. The police found defendant hiding in the basement. Although he was arrested, charges stemming from the incident were dismissed for lack of probable cause. On 19 May 1986 Jackie told Officer Floyd Laughter that defendant had previously telephoned her and threatened to have her killed.\nOn 21 June 1986 Jackie told two friends, Sharon Pruitt and Gloria Edgerton, that defendant\u2019s threats to kill her had frightened her.\nAbout 7:40 p.m. on 21 June 1986 Tony Latham picked up defendant in front of Spindale Drug Store and drove him about one-quarter mile to Petroleum World, a local service station about one-quarter mile from Spindale Mills. Around 11:30 p.m. Ruby Taylor, Robert Lee Barnes and Debbie Hutchins, all third shift employees of Spindale Mills, arrived for work. They saw a black man sitting on the hood of a blue Dodge Daytona parked near the entrance of the parking lot. Hutchins said the black man looked at each car that came into the parking lot. Barnes said the man kept his back to him and never showed his face. Fingerprints lifted from the hood of the Dodge Daytona by an SBI special agent matched those of defendant.\nJackie Lynch arrived at the mill for work around 11:45 p.m. Tim Stamper, another third shift employee, observed a black man and Jackie walking through the parking lot. The man had his arm around Jackie. Moments later Stamper observed the same black man running across the parking lot as Jackie emerged from between some cars with blood all over her, screaming \u201cHelp me, help me,\u201d before falling down. Floyd Fojwler, an employee of the mill who did not know Jackie, observed a black man chasing a black woman across the parking lot. Fqwler saw the man catch the woman and lead her back to the car. As they started to move, Fowler heard her say, \u201cNo, please, don\u2019t do that.\u201d A few moments later she said, \u201cSomebody help me.\u201d Wdien Fowler went to the parking lot to investigate, he saw the man running across the parking lot and the woman walking out to the center of the parking lot saying, \u201cWill somebody please help me.\u201d\nOfficer Randy Bostic of the Spindale Police Department was dispatched to the Spindale Mills parking lot and arrived just before midnight. Upon examination of Jackie Lynch\u2019s body, he detected no pulse. He discovered a knife sheath next to the blue Dodge Daytona. Defendant\u2019s fingerprints were found on the Dodge Daytona and on Jackie\u2019s Plymouth Valiant. Jackie\u2019s car also contained blood which matched her blood grouping. Bostic said witnesses described the suspect as a black man wearing light trousers, a red shirt and a baseball cap.\nAbout 3:15 a.m. on 22 June defendant was arrested some two-tenths of a mile from Spindale Mills. He was wearing light colored trousers, a red shirt and a baseball cap and had blood on his clothes and arms. Defendant was bleeding from wounds on his upper arms. A knife was found on the ground a few feet from where defendant was apprehended. No usable fingerprints were found on the knife, but the knife did have blood on it matching that of Jackie Lynch and not that of defendant.\nDefendant was taken to the Rutherford County Hospital for treatment and then to jail. He possessed a key fitting the ignition of Jackie Lynch\u2019s car.\nJackie Lynch was dead on arrival at Rutherford County Hospital. Cause of death was shock due to loss of blood from multiple stab wounds.\nDefendant offered no evidence in the guilt phase of the case.\nII.\nDefendant first contends the evidence was insufficient to show that he committed the murder with which he was charged and the trial court erred in denying his motion to dismiss the case for insufficiency of evidence. We conclude the evidence was sufficient to be submitted to the jury on the question of defendant\u2019s guilt of first degree murder on a theory of premeditation and deliberation.\nThe question is whether there is substantial evidence (1) of each essential element of the offense charged and (2) that defendant is the perpetrator of the offense. State v. Mercer, 317 N.C. 87, 96, 343 S.E.2d 885, 890 (1986).\nSubstantial evidence is \u201csuch relevant evidence as a reasonable mind might accept as adequate to support a conclusion.\u201d State v. Smith, 300 N.C. 71, 78-79, 265 S.E.2d 164, 169 (1980). ... If the evidence is sufficient 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, the motion to dismiss should be allowed. This is true even though the suspicion so aroused by the evidence is strong.\nState v. Earnhardt, 307 N.C. 62, 66, 296 S.E.2d 649, 652 (1982) (citation omitted). In determining the sufficiency of the evidence we consider it in the light most favorable to the State.\n[T]he State is entitled to every reasonable intendment and every reasonable inference to be drawn therefrom; contradictions and discrepancies are for the jury to resolve and do not warrant dismissal; and all the evidence actually admitted, whether competent or incompetent, which is favorable to the State is to be considered by the court in ruling on the motion.\nId. at 67, 296 S.E.2d at 653. The test for sufficiency of the evidence is the same whether the evidence is direct, circumstantial or both. Id. at 68, 296 S.E.2d at 653.\nWhen as here the motion to dismiss puts into question the sufficiency of circumstantial evidence, the court must decide whether a reasonable inference of the defendant\u2019s guilt may be drawn from the circumstances shown. If so the jury must then decide whether the facts establish beyond a reasonable doubt that the defendant is actually guilty.\nState v. Triplett, 316 N.C. 1, 5, 340 S.E.2d 736, 739 (1986) (citation omitted).\nThese formulations of the sufficiency of the evidence comport with the United States Supreme Court\u2019s articulation that as a matter of constitutional due process the evidence in a criminal case, after it is viewed in the light most favorable to the prosecution, must be such that \u201cany rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.\u201d Jackson v. Virginia, 443 U.S. 307, 319, 61 L. Ed. 2d 560, 573 (1979). See State v. Blake, 319 N.C. 599, 604, 356 S.E.2d 352, 355 (1987).\nHere the evidence, although circumstantial, was sufficient to permit the jury to determine defendant\u2019s guilt of first degree murder on a theory of premeditation and deliberation beyond a reasonable doubt. Before the fatal stabbing, defendant had threatened the life of the victim and surreptitiously entered her home. Witnesses observed a person matching defendant\u2019s description walking with the victim shortly before she was fatally wounded. Fingerprints taken from an automobile at the scene of the killing matched those of defendant. A knife with the victim\u2019s blood on it was found near where defendant was arrested, and a sheath in which this knife fit was located near the automobile on which defendant\u2019s fingerprints were found. The victim was stabbed five separate times.\nEven if each of these circumstances standing alone would be insufficient to raise more than a mere suspicion of defendant\u2019s guilt, all the circumstances taken together are clearly sufficient to permit the jury to find beyond a reasonable doubt that defendant perpetrated the murder, see Blake, 319 N.C. 599, 356 S.E.2d 352, and cases therein cited; State v. Thomas, 296 N.C. 236, 250 S.E.2d 204 (1978), and that he did so with premeditation and deliberation. See State v. Groves, 324 N.C. 360, 378 S.E.2d 763 (1989).\nIII.\nDefendant next contends the evidence was insufficient to support his guilt of first degree murder on a theory of lying in wait and the trial court erred in submitting this alternative theory of guilt to the jury. This argument has merit.\nA \u201cmurder perpetrated by lying in wait is a murder in the first degree.\u201d State v. Leroux, 326 N.C. 368, 375, 390 S.E.2d 314, 320 (1990). If the State can show a murder perpetrated by lying in wait, it need not prove either premeditation and deliberation or a specific intent to kill. Id.\nFor a murder to be perpetrated by lying in wait, it is not necessary that the perpetrator wait at the site of the killing for some period of time or that he be concealed or that the victim be unaware of his presence. Leroux, 326 N.C. 368, 390 S.E.2d 314; State v. Allison, 298 N.C. 135, 257 S.E.2d 417 (1979). Both Leroux and Allison and cases relied upon therein do establish, however, that a lying in wait killing requires some sort of ambush and surprise of the victim.\nIn Leroux a lying in wait killing was committed when defendant was \u201csneaking around\u201d a dark golf course at night in a crouched position with a loaded, cocked rifle and fatally shot a police officer searching for him \u201cwith a suddenness which deprived [the officer] of all opportunity to defend himself.\u201d Leroux, 326 N.C. at 376-77, 390 S.E.2d at 320-21. Leroux relied on State v. Bridges, 178 N.C. 733, 101 S.E. 29 (1919), where police officers entered defendants\u2019 home to make an arrest. Inside the house an officer, upon turning a corner, was suddenly and fatally shot by defendants. The Bridges Court characterized the killing as one where the victim \u201chad no time even to raise his pistol in defense of himself. The defendants were waiting in the dark for him, as much concealed as if they had been hidden in ambush, prepared to slay without a moment\u2019s warning to their victim.\u201d Bridges, 178 N.C. at 738, 101 S.E. at 32.\nIn Allison the defendant surreptitiously followed his wife to her trailer. She entered the trailer, and defendant stationed himself some 150 feet away behind or beside a tree. When his wife came out of the trailer defendant fatally shot her from his position at the tree. The Allison Court concluded the evidence supported a killing by lying in wait. After reviewing earlier decisions, the Court said:\nThe foregoing decisions make it clear that when G.S. 14-17 speaks of murder perpetrated by lying in wait, it refers to a killing where the assassin has stationed himself or is lying in ambush for a private attack upon his victim. An assailant who watches and waits in ambush for his victim is most certainly lying in wait. However, it is not necessary that he be actually concealed in order to lie in wait. If one places himself in a position to make a private attack upon his victim and assails him at a time when the victim does not know of the assassin\u2019s presence or, if he does know, is not aware of his purpose to kill him, the killing would constitute a murder perpetrated by lying in wait. Certainly one who has lain in wait would not lose his status because he was not concealed at the time he shot his victim. The fact that he reveals himself or the victim discovers his presence will not prevent the murder from being perpetrated by lying in wait. Indeed, a person may lie in wait in a crowd as well as behind a log or a hedge.\nAllison, 298 N.C. at 147-48, 257 S.E.2d at 425 (citations omitted).\nAlthough concealment is not a necessary element of a murder perpetrated by lying in wait, it is clear from this Court\u2019s prior decisions that some sort of ambush and surprise of the victim are required. \u201cEven a moment\u2019s deliberate pause before killing one unaware of the impending assault and consequently \u2018without opportunity to defend himself\u2019 satisfies the definition of murder perpetrated by lying in wait.\u201d Leroux, 326 N.C. at 376, 390 S.E.2d at 320 (quoting State v. Wiseman, 178 N.C. 784, 790, 101 S.E.2d 629, 631 (1919)).\nHere there is no evidence that defendant ambushed or surprised Jackie Lynch when he fatally stabbed her. The evidence shows without contradiction that before the fatal stabbing defendant walked with his arm around the victim through the parking lot. Later defendant was observed chasing the victim across the lot, catching her and forcing her back to a car in the lot. The victim was heard to say, \u201cNo, please, don\u2019t do that,\u201d after which she was observed coming from between some cars, bleeding and calling for help. Defendant was observed running across the parking lot. There is simply no evidence that defendant lay in wait by ambushing or surprising his victim immediately before he inflicted the fatal stab wounds. Such evidence as there is tends to the contrary.\nThere being no evidence to support murder by lying in wait, it was error for the trial court to instruct the jury on this theory. Where the trial court erroneously submits the case to the jury on alternative theories, one of which is not supported by the evidence and the other which is, and, as here, it cannot be discerned from the record upon which theory or theories the jury relied in arriving at its verdict, the error entitles defendant to a new trial. State v. Pakulski, 319 N.C. 562, 574, 356 S.E.2d 319, 326 (1987).\nIV.\nDefendant next contends evidence of his surreptitious entry into Jackie Lynch\u2019s home on 18 May 1986 should have been excluded because it is not relevant to any issue. in the case and simply tends to show that defendant had been arrested for an unrelated offense. We disagree.\nRule 404(b) of the North Carolina Rules of Evidence states that while \u201c[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person to show he acted in conformity therewith,\u201d it may be \u201cadmissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake, entrapment or accident.\u201d N.C.G.S. \u00a7 8C-1, Rule 404(b) (1988).\n\u201cWhen a husband is charged with murdering his wife, the State may introduce evidence covering the entire period of his married life to show malice, intent and ill will toward the victim.\u201d State v. Braswell, 312 N.C. 553, 561, 324 S.E.2d 241, 247 (1985); accord State v. Creech, 229 N.C. 662, 670, 51 S.E.2d 348, 354 (1949). The 18 May incident directly relates to Jackie\u2019s and defendant\u2019s relationship shortly before the murder. It is simply one circumstance which tends to shed light on the crime itself by showing that approximately a month before the crime defendant may have been seeking an opportunity to harm his wife. It is some evidence of defendant\u2019s malice, intent and ill will toward his victim and thereby tends to identify defendant as his wife\u2019s assailant when she was murdered. It was not error to admit this evidence.\nV.\nDefendant next contends that it was error to admit certain statements concerning defendant made by Jackie Lynch to several witnesses. Defendant argues the evidence was inadmissible hearsay. Again, we disagree and conclude the evidence was admissible under the state-of-mind exception to the hearsay rule.\nDuring the presentation of the State\u2019s case, Gloria Edgerton testified that she and Jackie Lynch walked together to the Spindale Mills parking lot after they got off work at 8 a.m. on 21 June 1986. Jackie said, \u201cI\u2019m scared to go out there.\u201d Defendant objected, the jury was excused and the trial coujrt conducted a voir dire on the admissibility of Edgerton\u2019s testimony. During the voir dire Edgerton testified that on the morning of 21 June, Jackie Lynch told her that defendant had threatened to kill her. She also testified that earlier in the week, she and Jackie Lynch had discussed Jackie\u2019s marital situation. Jackie told Edgerton that defendant had wanted to come back to her. When Jackie refused, defendant threatened her life. The trial court ruled this testimony admissible as a dying declaration under Rule 804(b)(2).\nAfter this ruling and before the jury, Edgerton testified essentially as follows: She and Jackie Lynch were close friends and often mutually confided in each other about their problems. On the morning of 21 June Edgerton noticed that Jackie was acting differently. She was not as talkative and smoked more. It \u201cseemed like she had things on her mind.\u201d Jackie told Edgerton that defendant had threatened her life. As the two women were approaching the parking lot Jackie said, \u201cMy tires may be flat.\u201d\nSharon Pruitt testified that she had known Jackie Lynch for twenty-five years and was defendant\u2019s first cousin. Jackie Lynch was like a sister and they confided in each other. They talked with each other almost every day. On the afternoon of 21 June, Pruitt said Jackie Lynch called her on the telephone and identified herself. During a voir dire hearing on the admissibility of Pruitt\u2019s testimony concerning the telephone conversation, she testified that she had made a written notation of what was said. She said Jackie Lynch told her, \u201cSharon, I know Gregg is going to kill me, like he said he would do.\u201d Pruitt, describing Jackie Lynch, said: \u201cI could tell she was frightened. She had fear in her voice.\u201d\nAgain the trial court concluded this testimony was admissible as a dying declaration.\nBefore the jury Pruitt testified essentially as she had on voir dire. The trial court allowed the motion to strike the witness\u2019 testimony that Jackie \u201chad fear in her voice\u201d but allowed the witness to testify that she knew defendant was going to kill her, \u201clike he said he would.\u201d\nOver defendant\u2019s objection the trial court, after making appropriate findings, permitted police officer Floyd Laughter to testify under the residual exception to the hearsay rule, N.C.G.S. \u00a7 8C-1, Rule 804(b)(5) (1988). Officer Laughter testified he spoke with Jackie Lynch at her residence on 19 May 1986 while he was investigating an unauthorized entry. He described Jackie Lynch as being \u201cvery nervous and upset,\u201d unable to stand still and constantly pacing the floor. She told him defendant \u201chad called her on the phone on the previous day and told her that he was going to have her killed.\u201d\nIn admitting Officer Laughter\u2019s testimony under the residual hearsay exception, Rule 804(b)(5), the trial court made findings and conclusions as follows:\nThe COURT: Let the record show in regard to the statement made by Floyd Laughter in regard to a telephone conversation that Jackie Lynch had with Gregg Lynch, the Court overruled the objection made by the defendant, pursuant to Rule 804(b)(5). The Court determines that the statement [was] offered as evidence on a material fact. . . . The statement is more probative on the point [for] which it is offered than any other evidence which the State can procure through reasonable efforts; that there were circumstantial guarantees of trustworthiness insofar as the statement made to an officer on the day after the telephone conversation subsequent to the time she contacted the police in the course of his investigation; that the interest of justice would be served by admission of the statement in evidence.\nDefendant contends the trial court, in following the steps for admission under the residual hearsay exception as enunciated in Triplett, 316 N.C. 1, 340 S.E.2d 736, erred in concluding that the necessary circumstantial guarantees of trustworthiness were present. He also contends the trial court erred in admitting Jackie Lynch\u2019s statement to witnesses Pruitt and Edgerton under the dying declaration hearsay exception.\nWe need not address these arguments because here Officer Laughter\u2019s testimony, as well as the testimony of Edgerton and Pruitt, is admissible und\u00e9r the state-of-mind hearsay exception, Rule 803(3). \u201cWhen a hearsay statement is made expressly admissible by a specific exemption category, there is no necessity for the trial court to consider the catch-all provisions of the other rules.\u201d State v. Cummings, 326 N.C. 298, 313, 389 S.E.2d 66, 74 (1990).\nHearsay is \u201ca statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.\u201d N.C.G.S. \u00a7 8C-1, Rule 801(c) (1988). Jackie Lynch\u2019s statements to Edgerton, Pruitt and Officer Laughter regarding threats made by defendant on her life and how these threats affected her would be hearsay and therefore inadmissible unless they fall within an exception to the hearsay rule.\nUnder recent decisions of this Court, State v. Faucette, 326 N.C. 676, 392 S.E.2d 71 (1990); Cummings, 326 N.C. 298, 389 S.E.2d 66; State v. Alston, 307 N.C. 321, 298 S.E.2d 631 (1983), these hearsay statements are admissible under the state-of-mind exception to the hearsay rule:\nThe following are not excluded by the hearsay rule, even though the declarant is available as a witness: ... (3) Then Existing Mental, Emotional, or Physical Condition \u2014 A statement of the declarant\u2019s then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health) ....\nN.C.G.S. \u00a7 8C-1, Rule 803(3) (1988).\nIn Faucette, a homicide and burglary victim\u2019s statements to her son and sister regarding threats the defendant, an estranged boyfriend, had made to the victim, although hearsay, were held admissible under Rule 803(3) because they revealed the victim\u2019s then-existing fear of the defendant. Faucette, 326 N.C. at 683, 392 S.E.2d at 74. The state of mind of the victim was relevant in the burglary case, the Court concluded, to show that defendant entered the victim\u2019s home without her consent. The Court concluded it was relevant in the homicide case to rebut the defendant\u2019s \u201cself-defense inferences that he did not start shooting until he saw her reach \u2018for her gun.\u2019 \u201d Id. The Court said, \u201cThe jury could infer from the evidence regarding [the victim\u2019s] state of mind that it was unlikely [she] would do anything to provoke defendant, including reach for a weapon.\u201d Id. at 683, 392 S.E.2d at 74-75.\nIn Cumhnings, the victim, Karen Puryear, had two children fathered by (the defendant, an estranged boyfriend, at the time of the victim\u2019s murder. The victim and defendant had engaged in litigation over custody and support of these children. The State\u2019s evidence tended to show that Puryear and her younger sister, Teresa, were shot to death by the defendant. At trial, Celia Mansary, an East Central Community Services paralegal, testified she interviewed Puryear about three weeks before her disappearance. During the interview, Puryear told Mansary the defendant threatened to kill her if she tried to take the children from him. Although the trial court had apparently admitted this testimony under the residual hearsay exception of Rule 803(24), it failed to make the necessary findings required by State v. Smith, 315 N.C. 76, 337 S.E.2d 833 (1985). The Court nevertheless found no error in the admission of this evidence, concluding that it was admissible under the state-of-mind hearsay exception. The Court said Mansary\u2019s testimony tended to show the victim\u2019s existing state of mind and emotional condition and was admissible if relevant to some issue in the case and if its prejudicial effect did not outweigh its probative value. Cummings, 326 N.C. at 313, 389 S.E.2d at 74. The Court concluded that Puryear\u2019s state of mind was \u201chighly relevant as it relates directly to the status of her relationship with defendant prior to her disappearance. The probative value of this evidence outweighs any potential prejudice to defendant.\u201d Id.\nIn Alston, 307 N.C. 321, 298 S.E.2d 631, decided under common law principles before our adoption of the Rules of Evidence, the Court noted that evidence regarding a homicide victim\u2019s fear of the defendant may be admissible provided it is accompanied by some factual basis for that fear. We said:\nEvidence of a victim\u2019s fear of the defendant is subject to misuse. Therefore, the naked assertion by a victim prior to his death that he fears the defendant should not be admitted into evidence absent some evidence tending to show a factual basis for such alleged fear.\nId. at 328, 298 S.E.2d at 637.\nHere, the complained-of testimony was admissible under Alston, a pre-Rules case, and under Rule 803(3), as interpreted by Faucette and Cummings, to show the state of mind of Jackie Lynch and the relationship between her and her husband, defendant, shortly before her murder. The three witnesses testified that Jackie Lynch, when speaking about her husband shortly before the murder, was \u201cnervous and upset,\u201d unusually quiet and had \u201cfear in her voice.\u201d Evidence of the threats made by defendant was admissible to explain Jackie Lynch\u2019s then-existing mental and emotional state, vis-avis defendant, as described by the witnesses. As in Cummings, the evidence was more probative than prejudicial; there was no error in its admission.\nFor the reasons given, defendant must have a\nNew trial.\n. There was some discrepancy between Stamper\u2019s and Fowler\u2019s descriptions of the suspect. Stamper identified the black male as wearing light trousers. Fowler said he thought the suspect was wearing dark trousers and a lighter colored shirt.\n. Since this question and the one following will almost certainly arise at defendant\u2019s new trial, we elect to discuss them here for guidance at the new proceeding.\n. Pruitt testified that the victim had fear in her voice. Although this testimony was stricken from the record, it may be allowed as it defines the state of mind of the victim. Other witnesses\u2019 testimony clearly described the victim as acting differently than she normally did before she described the defendant\u2019s threats.", "type": "majority", "author": "EXUM, Chief Justice." } ], "attorneys": [ "Lacy H. Thornburg, Attorney General, by Christopher P. Brewer, Special Deputy Attorney General, for the State.", "Malcolm Ray Hunter, Jr., Appellate Defender, by Gordon Widenhouse, Assistant Appellate Defender, for defendant appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. GREGORY STEWART LYNCH\nNo. 679A86\n(Filed 26 July 1990)\n1. Homicide \u00a7 21.5 (NCI3d)\u2014 first degree murder \u2014 premeditation and deliberation \u2014 sufficiency of evidence\nEvidence was sufficient to permit the jury to determine defendant\u2019s guilt of first degree murder on a theory of premeditation and deliberation where it tended to show that, before the fatal stabbing, defendant had threatened the life of the victim and surreptitiously entered her home; witnesses observed a person matching defendant\u2019s description walking with the victim shortly before she was fatally wounded; fingerprints taken from an automobile at the scene of the killing matched those of defendant; a knife with the victim\u2019s blood on it was found near where defendant was arrested; a sheath in which this knife fit was located near the automobile on which defendant\u2019s fingerprints were found; and the victim was stabbed five separate times.\nAm Jur 2d, Homicide \u00a7\u00a7 425, 426, 439.\n2. Homicide \u00a7 21.6 (NCI3d)\u2014 first degree murder \u2014 lying in wait-insufficiency of evidence\nEvidence was insufficient to support defendant\u2019s guilt of first degree murder on a theory of lying in wait where there was no evidence that defendant ambushed or surprised the victim when he fatally stabbed her; rather, the evidence showed without contradiction that before the fatal stabbing, defendant walked with his arm around the victim through the parking lot; later defendant was observed chasing the victim across the lot, catching her, and forcing her back to a car in the lot; the victim was heard to say, \u201cNo, please, don\u2019t do that,\u201d after which she was observed coming from between some cars, bleeding and calling for help; and defendant was observed running across the parking lot.\nAm Jur 2d, Homicide \u00a7\u00a7 44, 47, 49.\n3. Homicide \u00a7 21.6 (NCI3d)\u2014 alternate theories submitted to jury \u2014 only one supported by evidence \u2014no indication by jury as to which theory relied on \u2014 prejudicial error\nWhere the trial court erroneously submits the case to the jury on alternate theories, one of which is not supported by the evidence and the other which is, and, as here, it cannot be discerned from the record upon which theory or theories the jury relied in arriving at its verdict, the error entitles defendant to a new trial.\nAm Jur 2d, Homicide \u00a7\u00a7 483, 486, 498.\n4. Homicide \u00a7 17 (NCI3d)\u2014 defendant\u2019s prior entry into victim\u2019s home \u2014 admissibility to show intent, malice, identity of defendant\nIn a prosecution of defendant for the murder of his estranged wife, the trial court did not err in admitting evidence of defendant\u2019s surreptitious entry into the victim\u2019s home approximately one month before the murder, since such evidence tended to show that defendant was seeking an opportunity to harm his wife; it was some evidence of defendant\u2019s malice, intent, and ill will toward his vicitm; and it therefore tended to identify defendant as his wife\u2019s assailant when she was murdered.\nAm Jur 2d, Evidence \u00a7\u00a7 321, 322, 324, 325.\n5. Homicide \u00a7 17.2 (NCI3d); Criminal Law \u00a7 73.3 (NCI3d)statements by murder victim \u2014 admissibility to show state of mind\nTestimony by three witnesses that the victim had told them that defendant, her husband, had threatened her and that the victim, when speaking about her husband shortly before the murder, was \u201cnervous and upset,\u201d unusually quiet, and had \u201cfear in her voice\" was admissible to show the state of mind of the victim and the relationship between her and her husband shortly before her murder. N.C.G.S. \u00a7 8C-1, Rule 803(3).\nAm Jur 2d, Homicide \u00a7\u00a7 329, 330.\nAppeal by defendant pursuant to N.C.G.S. \u00a7 7A-27(a) from a conviction of first degree murder and judgment sentencing him to death imposed by Hyatt, J., presiding at the 13 October 1986 Criminal Session of Superior Court, RUTHERFORD County. Heard in the Supreme Court 13 February 1989.\nLacy H. Thornburg, Attorney General, by Christopher P. Brewer, Special Deputy Attorney General, for the State.\nMalcolm Ray Hunter, Jr., Appellate Defender, by Gordon Widenhouse, Assistant Appellate Defender, for defendant appellant." }, "file_name": "0210-01", "first_page_order": 248, "last_page_order": 262 }