{ "id": 2554319, "name": "STATE OF NORTH CAROLINA v. JOSEPH DAVID ANNADALE", "name_abbreviation": "State v. Annadale", "decision_date": "1991-08-14", "docket_number": "No. 351A90", "first_page": "557", "last_page": "575", "citations": [ { "type": "official", "cite": "329 N.C. 557" } ], "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": "393 S.E.2d 771", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "opinion_index": 0 }, { "cite": "327 N.C. 178", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2500222 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/nc/327/0178-01" ] }, { "cite": "351 S.E.2d 257", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1987, "pin_cites": [ { "page": "280" } ], "opinion_index": 0 }, { "cite": "318 N.C. 663", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4733270 ], "weight": 2, "year": 1987, "pin_cites": [ { "page": "667" } ], "opinion_index": 0, "case_paths": [ "/nc/318/0663-01" ] }, { "cite": "366 S.E.2d 442", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1988, "pin_cites": [ { "page": "449" }, { "page": "448-50" } ], "opinion_index": 0 }, { "cite": "322 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2513652 ], "weight": 2, "year": 1988, "pin_cites": [ { "page": "14" } ], "opinion_index": 0, "case_paths": [ "/nc/322/0001-01" ] }, { "cite": "381 S.E.2d 453", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "457" } ], "opinion_index": 0 }, { "cite": "325 N.C. 187", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2491441 ], "year": 1989, "pin_cites": [ { "page": "193" } ], "opinion_index": 0, "case_paths": [ "/nc/325/0187-01" ] }, { "cite": "319 S.E.2d 177", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1984, "pin_cites": [ { "page": "187" }, { "page": "188" } ], "opinion_index": 0 }, { "cite": "311 N.C. 515", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4685492 ], "weight": 2, "year": 1984, "pin_cites": [ { "page": "533" } ], "opinion_index": 0, "case_paths": [ "/nc/311/0515-01" ] }, { "cite": "392 S.E.2d 609", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "617" } ], "opinion_index": 0 }, { "cite": "326 N.C. 662", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5306539 ], "year": 1990, "pin_cites": [ { "page": "675" } ], "opinion_index": 0, "case_paths": [ "/nc/326/0662-01" ] }, { "cite": "393 S.E.2d 781", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "opinion_index": 0 }, { "cite": "327 N.C. 162", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2496850 ], "weight": 2, "year": 1990, "pin_cites": [ { "page": "174" } ], "opinion_index": 0, "case_paths": [ "/nc/327/0162-01" ] }, { "cite": "244 S.E.2d 742", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "295 N.C. 244", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562217 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/nc/295/0244-01" ] }, { "cite": "109 L. Ed. 2d 541", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1990, "opinion_index": 0 }, { "cite": "386 S.E.2d 569", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1989, "pin_cites": [ { "page": "584" } ], "opinion_index": 0 }, { "cite": "325 N.C. 550", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2489106 ], "weight": 2, "year": 1989, "pin_cites": [ { "page": "576" } ], "opinion_index": 0, "case_paths": [ "/nc/325/0550-01" ] }, { "cite": "344 S.E.2d 775", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "317 N.C. 193", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4774343 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc/317/0193-01" ] }, { "cite": "298 S.E.2d 645", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1983, "pin_cites": [ { "page": "657-58" } ], "opinion_index": 0 }, { "cite": "307 N.C. 274", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562214 ], "weight": 2, "year": 1983, "pin_cites": [ { "page": "293" } ], "opinion_index": 0, "case_paths": [ "/nc/307/0274-01" ] }, { "cite": "393 S.E.2d 527", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "529" } ], "opinion_index": 0 }, { "cite": "327 N.C. 259", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2497512 ], "year": 1990, "pin_cites": [ { "page": "263" } ], "opinion_index": 0, "case_paths": [ "/nc/327/0259-01" ] }, { "cite": "283 S.E.2d 502", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "503" } ], "opinion_index": 0 }, { "cite": "304 N.C. 349", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567671 ], "year": 1981, "pin_cites": [ { "page": "351" } ], "opinion_index": 0, "case_paths": [ "/nc/304/0349-01" ] } ], "analysis": { "cardinality": 1434, "char_count": 43991, "ocr_confidence": 0.756, "pagerank": { "raw": 1.8388116648055903e-07, "percentile": 0.721777987828634 }, "sha256": "042cb392c368ce498f73c64467429fc62cde14ee9e9aef5ac3abbc62643fe2fd", "simhash": "1:936a5db2c4d6b4d6", "word_count": 7208 }, "last_updated": "2023-07-14T19:30:52.475304+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "STATE OF NORTH CAROLINA v. JOSEPH DAVID ANNADALE" ], "opinions": [ { "text": "FRYE, Justice.\nDefendant was indicted on 6 February 1989 for the murder of Mary Kathryn Ennis and was indicted on 7 August 1989 for first-degree kidnapping of Ms. Ennis. The case was tried capitally. The jury found defendant guilty of first-degree kidnapping and first-degree murder on the basis of felony murder and premeditation and deliberation. A separate sentencing proceeding was held pursuant to N.C.G.S. \u00a7 15A-2000 (1988). Following a jury verdict recommending a sentence of life imprisonment for the murder, Judge Albright arrested judgment in the first-degree kidnapping case and imposed a life sentence to run at the expiration of the sentence defendant was presently serving. Defendant appealed to this Court, presenting six questions for our review. We find no reversible error.\nThe evidence presented at trial tended to show that at approximately 6:45 a.m. on 5 November 1986, Mary Ennis\u2019 son, Andy Evans, who was five years old at the time, awakened and discovered that he was at home alone. Andy became frightened and called his grandfather. Mr. Ennis, Andy\u2019s grandfather, proceeded immediately to Ms. Ennis\u2019 mobile home. After arriving at his daughter\u2019s home, Mr. Ennis and Andy then drove to the Ice Cream Churn to see David Smudski, Ms. Ennis\u2019 boyfriend. Smudski told Mr. Ennis that he had not seen Ms. Ennis; so Mr. Ennis left and took Andy to school.\nSmudski left to go to Ms. Ennis\u2019 mobile home shortly after Mr. Ennis left his store. On the way he noticed Ms. Ennis\u2019 car on the side of Lawrence Road. He went to Ms. Ennis\u2019 trailer and telephoned the sheriff. Smudski then returned to Ms. Ennis\u2019 car, met the sheriff\u2019s deputy, and informed him of the situation.\nWinona Harris and her husband lived across the road from Ms. Ennis\u2019 trailer. In October of 1986, defendant moved in with Mr. and Mrs. Harris. Every morning when Mrs. Harris arose she could see Ms. Ennis\u2019 porch light shining through her kitchen window. According to Mrs. Harris, Ms. Ennis\u2019 porch light and bathroom light burned twenty-four hours a day. However, on the morning of 5 November 1986, Mrs. Harris noticed that there were no lights on in Ms. Ennis\u2019 trailer. Mrs. Harris testified that she got out of bed around 3:30 a.m. on 5 November to awaken her husband and to get things ready for him to leave for work. She further testified that just as she turned a light on inside her trailer, defendant entered stating that he had just run a Mexican man out of the back yard. Defendant told Mrs. Harris that he had spent the night outside so that he would not awaken Mr. Harris by entering the trailer so late.\nDeputy Bobby Collins first interviewed defendant concerning Ms. Ennis\u2019 disappearance on or about 7 November 1986. During the interview, defendant told Deputy Collins that on 4 November 1986, he left work around 5:00 p.m., went to the Hillsborough Prison Unit to check on his work release checks, and then returned to the Harris\u2019 trailer. Defendant also told Deputy Collins that later in the evening he drove to Mebane or Burlington looking for a friend, then returned to Hillsborough and drove around town. According to defendant, during the time he was gone he was drinking beer and taking valium. Defendant stated that when he returned to the trailer it was late and he did not want to awaken Mr. Harris so he slept in his car until he was awakened by rain hitting the car. Defendant also told Deputy Collins that when he awakened he saw a Mexican man standing at the rear of the Harris\u2019 residence so he got out of the car and chased the man, but was unable to catch him. Defendant went inside after Mrs. Harris turned lights on inside the trailer. Deputy Collins contacted defendant on several other occasions to ask questions concerning Ms. Ennis\u2019 disappearance.\nIn March 1987, defendant began living with Shelby Riddle. On 27 June 1987, Riddle went to the Orange County Sheriff\u2019s Department and reported that defendant had assaulted her with a gun and threatened to kill her. Riddle would not take out a warrant against defendant, but the Sheriff\u2019s Department took out a felonious assault warrant against defendant based upon the information obtained from Riddle.\nWhile at the Sheriff\u2019s Department, Riddle told the sheriff that defendant told her while they were doing an \u201ceight-ball\u201d of cocaine that he killed Ms. Ennis. Riddle also told the sheriff that defendant stated that he chopped up Ms. Ennis\u2019 body with a shovel, put her in a plastic bag and buried her. Riddle then told the sheriff that a week after defendant confessed to her, he borrowed her car to move Ms. Ennis\u2019 body because he was afraid she was going to be dug up.\nLynn Stevens, a friend of Riddle, testified that Riddle told her that defendant would awaken at night because he would dream of Ms. Ennis. Stevens testified that after defendant attacked Riddle, Riddle changed the story to say defendant actually sat down and told her the story. Stevens further testified that Riddle told her to tell the p\u00f3lice that on the evening of 4 November 1986, Stevens saw two people standing by Ms. Ennis\u2019 car on the side of Lawrence Road. Stevens told the police that the woman had dark short hair and the man had long dark hair. Subsequently, Stevens told defense counsel the same story in Riddle\u2019s presence, but when she was alone with counsel, she told him that she had lied. Stevens admitted that on the evening in question, she observed Ms. Ennis\u2019 car only. Stevens testified that while Riddle was living with defendant, she was having a relationship with another man, and Riddle spoke frequently of the reward money offered in this case. Stevens also stated during the trial that Riddle had threatened her about her testimony. On cross-examination Stevens admitted that she had not related this story to the sheriff\u2019s deputies, even when she spoke to them out of Riddle\u2019s presence.\nOn 10 July 1987, defendant was arrested on charges taken out by the Orange County Sheriff\u2019s Department concerning his alleged assault on Riddle. On 20 July 1987, Robert Webster, who was jailed in a cell adjoining defendant\u2019s, sent a message to the jailer that he wanted to speak -with Major Truelove, an officer with the Orange County Sheriff\u2019s Department. Webster reported to Truelove that either defendant had done something awfully wrong or he was seriously disturbed, and defendant could not sleep at night because he had nightmares and was mad at Truelove. Webster also informed Truelove that defendant said he might as well go ahead and admit that he killed the girl so that Truelove would leave him alone.\nOn 31 July 1987, Orange County Sheriff\u2019s deputies showed Andy Evans a photographic line-up that consisted of six pictures, one of which was a picture of defendant. Andy selected a picture of defendant out of the photographic array as a person he recognized. The deputies called Andy\u2019s therapist, Dr. Barbara Hawk, and scheduled a meeting with her for another photographic identification procedure. Dr. Hawk had been working with Andy in an attempt to help him work out his emotions regarding the loss of his mother. Dr. Hawk was also working with the Orange County Sheriffs Department in an attempt to get information from Andy concerning the disappearance of his mother. During the next photographic line-up, referring to the picture of defendant, Andy stated that defendant had come over to his trailer the night of 4 November 1986. Andy told Dr. Hawk that his mother had an argument with the man in the picture because the man did not want Ms. Ennis to date other men. Andy thought that the defendant\u2019s name was Mike or Steve.\nOn 1 February 1988, Dr. Hawk, the Orange County Sheriff\u2019s deputies and Andy viewed a video taped line-up containing six men, one of whom was defendant. The tape was viewed twice. Portions of the video tape had. the six men reading from a transcript. Defendant was number three in the line-up. Andy was asked if number three was the man who was in his trailer and he responded, \u201cthat looks like the man; I think his name is Mike; you said his name is Joe.\u201d\nPrior to the trial, a voir dire hearing was held on the permissibility of Andy making an in-court identification of defendant. During voir dire, Andy stated that the name Joe Annadale was first mentioned to him by either Lt. Collins or Major Truelove before the photographic line-up procedure. Also, during voir dire, it was determined that on 17 August 1987, Andy was shown ten or eleven individual photographs, and he was asked to separate the pictures into three piles: persons he knew, persons he maybe knew, and persons he did not know. Andy first put the picture of defendant in the \u201cknew\u201d pile, but later put it in the \u201cmaybe knew\u201d pile. Additionally, during the video line-up on 1 February 1988, Andy identified one other person in the line-up, a Durham police officer, as a person who had been to his mother\u2019s trailer in a white truck.\nTestimony at the voir dire hearing revealed that on 4 March 1988, Andy was put into a hypnotic trance by Dr. Shirley Sanders, a nationally recognized expert in hypnosis, in an effort to bypass emotional blocks that interfere with retrieval of memory in order to gain more information from Andy about the disappearance of his mother. According to Dr. Hawk, this session was the first time Andy had used the name Joe in his identification of the man who argued with his mother on 4 November 1986, and this was the first time Andy could relate the events surrounding his mother\u2019s disappearance in sequence.\nThe trial judge denied defendant\u2019s Motion to Suppress Andy\u2019s in-court identification of defendant as being the man he saw in his trailer the night of 4 November 1986. Over the objection of defendant, Andy was permitted to make the in-court identification of defendant. Andy also testified that on 4 November 1986, he and his mother drove over to Smudski\u2019s house and left a note on the door for Smudski about him dating other women. Andy testified that he could tell that his mother was angry by the way she acted, and on that evening his mother told him that if she was not home in the morning when he woke up, she would be at Smudski\u2019s house.\nOn 25 May 1988, Wendell Strickland, the State\u2019s chief witness, was sentenced to fifty years in prison for second-degree kidnapping, second-degree rape, second-degree sexual offense, common law robbery, and assault upon a female. Defendant\u2019s counsel, during cross-examination, attempted to elicit from Strickland details of these crimes, and Strickland invoked his Fifth Amendment privilege against self-incrimination. Defense counsel then attempted to make an offer of proof through the testimony of Tom Murphy, the assistant district attorney who prosecuted Strickland. This offer of proof was denied.\nStrickland met defendant sometime after 7 July 1988, when defendant entered Central Prison. According to Strickland, defendant told him that he was hired to \u201coff\u201d Ms. Ennis for $5,200. Strickland testified that Ms. Ennis\u2019 boyfriend, a cocaine supplier from Florida, gave defendant a key to Ms. Ennis\u2019 trailer. Strickland further testified that defendant said that he entered the trailer, went to Ms. Ennis\u2019 bedroom, and put a washcloth over her mouth. He allowed her to look in on her son, then he left the trailer with Ms. Ennis and she drove him in her car to a remote area. Defendant told Ms. Ennis that he was not going to kill her; they exited the car, and defendant took Ms. Ennis into the woods. Defendant tried to choke her to death, but being unable to do so, -he cut her throat. Strickland also testified that defendant drew a map on a concrete podium on the prison basketball court of the location of Ms. Ennis\u2019 body, and after defendant erased the map by scratching it out, Strickland went to Bible class and reproduced the map in a composition book.\nCarmello Mangione, also an inmate at Central Prison, testified that on or about 8 August 1988, he and Strickland obtained some artane and marijuana, and during that evening defendant used the drugs with them. Mangione provided basically the same information as Strickland concerning defendant\u2019s confession. However, according to Mangione, after defendant told his story, he left the cell block for a while and returned to find defendant drawing a map for Strickland. Mangione testified that after defendant drew the map, Strickland folded it and placed it on the bed, but defendant later threw it on the floor. Mangione further testified that when the three of them got ready to leave, Strickland picked up the map, smoothed it out, and kept it. Mangione testified that both he and Strickland went to Tracy Porter, a prison official, and told him about the information regarding the missing woman.\nOn 13 September 1988, Strickland met with Truelove and District Attorney Carl Fox to discuss what defendant allegedly told him. During the meeting, Strickland would only say that he had information as to the exact location of Ms. Ennis\u2019 body. Strickland would not tell Truelove and Fox anything until he was assured that he would be released from prison and that he would get the reward money.\nOn 31 October 1988, Wayne Eads, Strickland\u2019s attorney, wrote to Fox regarding negotiating an agreement for Strickland in exchange for Strickland\u2019s testimony concerning the disappearance of Ms. Ennis. In his letter, Eads represented that Strickland\u2019s testimony concerning this case \u201cwas received by him directly from the perpetrator prior to his [Strickland\u2019s] arrest, conviction and imprisonment and did not arise in any way from a jailhouse or prison conversation or gossip.\u201d\nOn 9 January 1989, using a map provided by Strickland, Orange County law enforcement officers and SBI agents began searching for Ms. Ennis\u2019 body, and when they found human remains in the area, they immediately called in Dr. John Butts of the State\u2019s Medical Examiner\u2019s Office to make an inspection and collect various remains in the area. While at the scene, Dr. Butts found a human skull, a small cluster of bones consisting of vertebrae, backbones and rib bones, a portion of the sacrum, and hip bones. Dr. Butts collected the bones, carried them to Chapel Hill, cleaned them and examined them for evidence of injury, abnormality, or changes. Dr. Butts detected considerable animal damage to the hip bones and located no jawbone, collarbone or shoulder blades.\nDr. Butts testified that in his opinion, the bones belonged to a relatively young white female. Dr. Butts consulted with the Orange County Sheriff\u2019s Department concerning possible identities, then he obtained medical records, including x-rays and dental records of Ms. Ennis. Assisted by Dr. William Webster, a forensic odontologist, Dr. Butts compared postmortem x-rays of the teeth and skull with antemortem x-rays known to be from Ms. Ennis. The doctors compared dental records of Ms. Ennis\u2019 known fillings or restorations with those fillings and restorations visible in the remaining teeth. Dr. Butts found numerous points ..of identity and similarity, which included tooth, restorations as well as skull bone patterns. According to Dr. Butts, x-rays of bone contain characteristics that are unique for that particular person, and one can determine the identity of a skull or other bone by comparing an x-ray of that material with x-rays taken of a living person. Dr. Butts testified that in this case, the pattern of the sella turcica, a little spot' in the middle of the skull which contains the pituitary gland, matched, as did the skeletal pattern in an area containing some of the sinuses. In Dr. Butts\u2019 opinion, the remains he collected in the Orange County field were those of Ms. Ennis.\nDefendant offered expert testimony through Dr. Thomas David, a forensic odontologist. Dr. David testified that the American Board of Forensic Odontologists has essentially three categories of identification with one special category: positive identification, possible identification, exclusion, and a special category when there is not enough evidence to render any opinion one way or the other. Dr. David reviewed the same antemortem and postmortem x-rays and overlays used by Dr. Butts and Dr. Webster. Dr. David testified that Dr. Webster apparently knew beforehand that he was attempting to identify the remains as those of Ms. Ennis, and therefore his identification was not done blindly with no knowledge of whom he was attempting to identify. Dr. David testified that the postmortem x-rays prepared by Dr. Webster were of insufficient quality to tell the exact configuration of the restorations. Dr. David also testified that better quality x-rays and additional types of x-rays could have been prepared which would have made the identification process indisputable. According to Dr. David, the identification fell into the category of possible identification, meaning that there are consistent features between the antemortem evidence and the postmortem evidence but the amount and/or quality of evidence is insufficient to establish a positive identification.\nDefendant did not testify before the jury.\nThe first question we address is whether the trial court erred in refusing defendant\u2019s request to instruct the jury on second-degree murder. Defendant contends that if he did in fact kill Ms. Ennis, but acted without premeditation or without deliberation, and did not commit the murder during the perpetration of the felony of kidnapping, he would be guilty of second-degree murder. Defendant further contends that \u201c[t]he sole factor determining the judge\u2019s obligation to give such an instruction is the presence, or absence, of any evidence in the record which might convince a rational trier of fact to convict the defendant of a less grievous offense.\u201d State v. Wright, 304 N.C. 349, 351, 283 S.E.2d 502, 503 (1981). According to defendant, there was evidence from which a reasonable juror could conclude that Ms. Ennis left her home voluntarily and went to Smudski\u2019s home in an effort to settle a lovers\u2019 quarrel. Defendant further argues that a reasonable juror could conclude from the testimony that defendant had been drinking and taking valium and that he could not have formed the intent to premeditate or deliberate, each being necessary elements of first-degree murder. Finally, defendant contends that all of the State\u2019s evidence relating to proof of intent, malice, premeditation, deliberation, and specific intent to kill was either circumstantial or presented through the testimony of interested witnesses, such as Mangione and Strickland.\nThe State contends that the trial judge properly charged the jury concerning first-degree murder alone, based upon premeditation and deliberation as well as upon the theory of felony murder. The State contends that the evidence does not support a second-degree murder instruction.\nAlthough second-degree murder is a lesser included offense of premeditated and deliberate first-degree murder, a trial court does not have to submit a verdict of second-degree murder to the jury unless.it is supported by the evidence. State v. Stevenson, 327 N.C. 259, 263, 393 S.E.2d 527, 529 (1990). This Court in State v. Strickland, 307 N.C. 274, 298 S.E.2d 645 (1983), overruled on other grounds, State v. Johnson, 317 N.C. 193, 344 S.E.2d 775 (1986), held:\nWe emphasize again that although'it is for the jury to determine, from the evidence, whether a killing was done with premeditation and deliberation, the mere possibility of a negative finding does not, in every case, assume that defendant could be guilty of a lesser offense. Where the evidence belies anything other than a premeditated and deliberate killing, a jury\u2019s failure to find all the elements to support a verdict of guilty of first degree murder must inevitably lead to the conclusion that the jury disbelieved the State\u2019s evidence and that defendant is not guilty. The determinative factor is what the State\u2019s evidence tends to prove. If the evidence is sufficient to fully satisfy the State\u2019s burden of proving each and every element of the offense of murder in the first degree, including premeditation and deliberation, and there is no evidence to negate these elements other than defendant\u2019s denial that he committed the offense, the trial judge should properly exclude from jury consideration the possibility of a conviction of second degree murder.\nState v. Strickland, 307 N.C. at 293, 298 S.E.2d at 657-58.\nIn this case, the testimony of Mangione and Strickland supports only a first-degree murder instruction. Both Mangione and Strickland testified that defendant told them that he kidnapped Ms. Ennis and ultimately killed her by choking her first and then cutting her throat. Police officers located the remains of Ms. Ennis\u2019 body utilizing a map reproduced by Strickland after it was initially drawn for him by defendant. There was no evidence that the homicide was committed without premeditation and deliberation. Defendant\u2019s argument seems to be based on the theory that the jurors may accept a portion of the State\u2019s evidence, yet reject other portions of its evidence, thus the State would fail to prove each element of first-degree murder. A defendant is not entitled to an instruction on a lesser included offense merely because the jury could possibly believe some of the State\u2019s evidence but not all of it. State v. Brewer, 325 N.C. 550, 576, 386 S.E.2d 569, 584 (1989), cert. denied, \u2014 U.S. \u2014, 109 L. Ed. 2d 541 (1990). The evidence in this case belies anything other than a premeditated and deliberate murder. Thus, the trial judge properly refused to instruct on second-degree murder.\nIn defendant\u2019s second argument, he contends that the trial court erred in denying his motions to dismiss made at the close of the State\u2019s evidence and again at the close of all the evidence. Defendant contends that under the corpus delicti rule, a conviction cannot be sustained on a naked, extrajudicial confession which shows that a crime was committed by someone though not necessarily by the defendant. State v. Green, 295 N.C. 244, 244 S.E.2d 742 (1978). Defendant further contends that North Carolina law is settled that for the purpose of analyzing the rule of corpus delicti, confessions and admissions are considered synonymous. State v. Franklin, 327 N.C. 162, 393 S.E.2d 781 (1990). Therefore, according to defendant, his statements made to Collins, Riddle, Webster, Mangione and Strickland and offered against him at trial must be considered under the corpus delicti rule.\n\u201cOur long-established rule of corpus delicti stands for the proposition that if there is corroborative evidence, independent of the incriminating statements, defendant may be found guilty of the crime charged.\u201d Id. at 173, 393 S.E.2d at 788. The evidence presented by the State complies with the requirements of the corpus delicti rule. The State offered the testimony of three persons who were in jail with defendant as well as the testimony of the State\u2019s Chief Medical Examiner, Dr. Butts. Dr. Butts explained to the jury his field observations and laboratory examinations of the human remains found in the field near Hillsborough, North Carolina. Dr. Butts identified the skull as that of Ms. Ennis and expressed the opinion that Ms. Ennis died as the result of violence or injury trauma, an external cause, rather than from natural disease. On cross-examination, Dr. Butts stated that the information provided to the Sheriff\u2019s Department by the informant appeared consistent with the results of his examination and nothing appeared inconsistent with his findings. Dr. Butts also testified that in his opinion, the evidence was not consistent with suicide because of \u201c[t]he location that the remains were found; the circumstances under which the individual disappeared; the age of the individual; the absence of, for instance, any clothing, jewelry, other things associated with remains. All of these indicated to me that her death came at the hands of some other individual.\u201d.\nDr. Butts\u2019 testimony establishes the corpus delicti. \u201cEvidence of corpus delicti coupled with the testimony of a cell mate relating inculpatory statements made by the defendant is sufficient to support a conviction.\u201d State v. Franklin, 327 N.C. at 174, 393 S.E.2d at 788 (citing State v. King, 326 N.C. 662, 675, 392 S.E.2d 609, 617 (1990)). Thus, we conclude that Dr. Butts\u2019 opinion testimony, together with the testimony of other witnesses, clearly establishes a death by criminal agency and meets the requirements of the corpus delicti rule. Therefore, this assignment of error is rejected.\nNext, defendant contends that the trial court erred by allowing the in-court identification of defendant by the victim\u2019s son, Andy, because the in-court identification was tainted by the unnecessarily suggestive statements of his therapist and law enforcement officers who always referred to the picture of defendant as \u201cJoe.\u201d Defendant notes that through hypnosis, Andy, for the first time, used the name \u201cJoe\u201d to identify defendant\u2019s picture that he had previously referred to as \u201cSteve\u201d or \u201cMike,\u201d and Andy was also for the first time able to put all the events surrounding his mother\u2019s disappearance in sequence. According to defendant, under the guidelines of State v. Peoples, 311 N.C. 515, 319 S.E.2d 177 (1984), he is entitled to a new trial.\nHypnotically refreshed testimony is inadmissible in judicial proceedings. State v. Peoples, 311 N.C. at 533, 319 S.E.2d at 187. Nevertheless, in Peoples this Court stated, \u201c[o]ur rule of inadmissibility does not, however, render all testimony of a previously hypnotized witness inadmissible. A person who has been hypnotized may testify as to facts which he related before the hypnotic session.\u201d Id. at 533, 319 S.E.2d at 188.\nIn this case, an investigator met with Andy on 31 July 1987, and Andy viewed a photographic line-up and identified the defendant\u2019s picture as the person who argued with his mother on the evening she disappeared. The investigator asked Andy the color of the person\u2019s eyes that he had identified, and Andy replied that the man has green eyes. Defendant has green eyes. The photographs viewed by Andy were all black and white photographs of white males approximately the same age, with similar hairstyles and facial hair. The investigator never told Andy the names of any of the persons in the photographs. Also, on 31 July 1987, Andy viewed the same photographic lineup in the presence of his therapist, Dr. Hawk. Again, Andy identified defendant\u2019s photograph and stated that he was the man that his mother argued with concerning her dating other men. Andy underwent hypnosis in March 1988. Thus, his identification of defendant occurred prior to the hypnotic session.\nPrior to admitting the in-court identification of defendant by Andy, the trial court conducted a voir dire hearing on defendant\u2019s Motion to Suppress such identification testimony. The trial judge made detailed findings of fact, including a finding that the witness\u2019 in-court identification was \u201cof independent origin based upon the witness\u2019s knowledge of the defendant from having seen him prior to the time of the disappearance of his mother in his yard and in his trailer, and further having seen defendant in the witness\u2019s own trailer on the night his mother disappeared during an argument.\u201d The trial judge concluded that Andy\u2019s in-court identification of defendant \u201cis of independent origin and is not tainted by any out-of-court photographic procedure which was impermissively suggestive, nor is said identification tainted by any \u2018hypnotic suggestion.\u2019 \u201d The critical issue here is the reliability of the in-court identification of defendant, by whatever name he may be called. The trial judge\u2019s findings, supported by competent evidence, clearly show that Andy knew defendant before he was subjected to hypnosis and that the identification was reliable. Thus, the testimony was not inadmissible under Peoples.\nAssuming, arguendo, that it was error to permit Andy to relate in sequence the events surrounding the disappearance of his mother, defendant was not prejudiced thereby. Andy had previously related the same information to Dr. Hawk, although not in sequence. On two occasions prior to hypnosis, Andy identified defendant as the man who argued with his mother the night she disappeared. Moreover, the State presented three witnesses other than Andy who testified concerning defendant\u2019s inculpatory statements to them. Thus, the alleged error was not prejudicial since there is no reasonable possibility that, had the error in question not been committed, a different result would have been reached at trial. State v. Hunt, 325 N.C. 187, 193, 381 S.E.2d 453, 457 (1989).\nIn defendant\u2019s next argument, he contends that the trial judge erred in refusing to allow him to question Smudski about what the trial judge called the \u201cRambo\u201d declarations. The \u201cRambo\u201d declarations consisted of information allegedly obtained by Smudski from an unknown man that he nicknamed \u201cRambo.\u201d\nDuring a voir dire hearing, the trial judge allowed defendant to make an offer of proof concerning the information \u201cRambo\u201d allegedly related to Smudski. Smudski told SBI agents that a white male nicknamed \u201cRambo\u201d came into his store one day and brought up the topic of Ms. Ennis because of a missing persons poster Smudski had posted. Smudski also told the SBI agents that \u201cRambo\u201d claimed to know where *Ms. Ennis was located and that he would get her back for Smudski in exchange for Smudski getting the reward money for him. According to Smudski, \u201cRambo\u201d also told him that Ms. Ennis was involved with some drug dealers and there was a contract out on her. Defendant contends that the evidence appeared relevant and was proffered for the non-hearsay purpose of showing that within three months of Ms. Ennis\u2019 disappearance, there was an existing rumor that her boyfriend was a cocaine supplier from Florida; that the boyfriend and Ms. Ennis owed money on a cocaine debt; and that there was a contract out on Ms. Ennis due to the debts. Defendant further contends that these facts were unusual and closely paralleled the testimony of Strickland and Mangione. Defendant attempted to present this evidence to bolster his defense that either Strickland himself committed these crimes, or he gained enough information from Smudski or through his other efforts, so that he could lead law enforcement officers to the remains and hence obtain significant rewards in the form of money and freedom. Defendant argues that in a very close case in which there is only circumstantial evidence identifying the defendant, to the exclusion of others, as the perpetrator, proffered evidence tending to implicate another and to be inconsistent with defendant\u2019s guilt is admissible. State v. McElrath, 322 N.C. 1, 366 S.E.2d 442 (1988).\nThe State objected to allowing this testimony into evidence. The trial judge sustained the State\u2019s objection. Evidence is relevant if it \u201chas any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.\u201d N.C.G.S. \u00a7 8C-1, Rule 401 (1986). The State argues that in this case, the proffered evidence possesses no relevancy and the trial judge properly excluded the testimony. We agree.\nWe do not agree with defendant that McElrath is controlling. The facts in the present case are distinguishable from those in McElrath. In McElrath, this Court held that it was error for the trial judge to refuse to admit a map found among the victim\u2019s personal papers showing the area surrounding the defendant\u2019s summer home, with notations indicating that the defendant, with others, planned a larceny. State v. McElrath, 322 N.C. at 14, 366 S.E.2d at 449. The Court found that the map and notations, together with other evidence offered, could indicate that the victim suffered a falling out with his co-conspirators whiph resulted in his death at their hands and not at the hands of the defendant. Id. at 11-13, 366 S.E.2d at 448-50. In the present case, the proffered evidence consists of the testimony of a witness concerning statements by an unidentified person. The evidence constitutes hearsay not within any hearsay exception. Here, defendant seeks to place before the jury evidence of a mere rumor purportedly circulating in Orange County concerning Ms. Ennis\u2019 disappearance. The evidence does not implicate any particular person as the perpetrator of the crime and is not inconsistent with defendant\u2019s guilt. Thus, the trial court did not err in rejecting this testimony.\nNext, defendant contends that the trial judge erred in allowing Dr. Butts to give opinion evidence as to the cause of Ms. Ennis\u2019 death and other matters. Over defendant\u2019s objection, Dr. Butts was permitted to give his opinion: 1) that the bones that were found appeared to be lying on top of the ground, rather than having been buried; 2) that a hole in the skull was the result of some blunt trauma; 3) that it is not uncommon for remains to be carried off by animals; 4) that Ms. Ennis\u2019 death was the result of violence or injury trauma, external causes, rather than from natural disease; and 5) as to the length of time a person would live if his or her throat was cut. Defendant contends that Dr. Butts\u2019 autopsy report simply stated that the bones he found were consistent with a young to middle age individual; were consistent with a female sex; were consistent with a white racial background; were insufficient to determine stature; and showed no obvious gunshot wounds, knife cuts or other trauma that could be excluded from animal injury. Defendant also contends that Dr. Butts admitted that he listed as the cause of death on the autopsy report an \u201cincision of the throat\u201d which was based upon information he received from the Orange County Sheriff\u2019s Department. Thus, defendant contends that under these facts, Dr. Butts was in no better position to render opinions as to each of the five areas than were the individual jurors.\nIf scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education, may testify thereto in the form of an opinion. N.C.G.S. \u00a7 8C-1, Rule 702 (1988). Dr. Butts serves as the State\u2019s Chief Medical Examiner. He was accepted as an expert in forensic pathology and was allowed to testify as an expert witness. As a forensic pathologist, Dr. Butts was well qualified to provide testimony which was within his area of expertise and helpful to the jurors. Dr. Butts was subject to thorough cross-examination by defendant concerning his testimony, and any apparent discrepancies therein. The trial judge did not err in permitting Dr. Butts to give his opinion as to the cause of the victim\u2019s death.\nIn defendant\u2019s final argument, he contends that the trial court erred in refusing to permit Tom Murphy, an Assistant District Attorney for Wake County, to testify before the jury regarding the details of the crimes for which Murphy prosecuted Wendell Strickland in May of 1988. The evidence was offered in an attempt to show that Strickland rather than defendant committed the crimes for which defendant was being tried.\nOn voir dire, Murphy testified that he prosecuted Strickland for second-degree rape, second-degree sex offense, first-degree kidnapping, common law robbery, and assault on a female in May of 1988. The evidence in that case disclosed that Strickland kidnapped his victim from Crabtree Valley Mall in Raleigh in January 1988, drove her in her car to a rural area in Johnston County where he raped her and committed a sex offense upon her. At the close of the voir dire testimony, Judge Albright determined that the incidents referred to in the testimony were not sufficiently similar to the crimes for which defendant was being tried and were too remote in time to be more probative than prejudicial under N.C.G.S. \u00a7 8C-1, Rule 403 (1988). Judge Albright further determined that the probative value, if any, that this testimony might have was substantially outweighed by the danger of unfair prejudice. Judge Albright also expressed his opinion that the present case is factually distinguishable from the circumstances giving rise to this Court\u2019s opinion in State v. Cotton, 318 N.C. 663, 351 S.E.2d 257 (1987).\nIn Cotton, this Court held that the trial court erred in refusing to admit certain evidence of crimes committed by a person other than the defendant. The evidence of the other crimes appeared close in time, place, and circumstance to the charged offense. This Court stated:\nThe evidence excluded here showed that within a few hours during the same night, three homes in close proximity were broken into and the female occupants sexually assaulted. The modus operandi in each case was very similar. From this evidence, the jury reasonably could have concluded that the three attacks were committed by the same person. The excluded evidence also tended to show that a specific person other than the defendant committed one of the very similar break-ins and assaults. Further, nothing in evidence tended to show that any of the three break-ins and attacks were committed by more than a single individual. The excluded evidence therefore tended to show that the same person committed all of the similar crimes in the neighborhood in question on that night and that the person was someone other than defendant.\nState v. Cotton, 318 N.C. at 667, 351 S.E.2d at 280.\nWe agree with Judge Albright that the present case is factually distinguishable from Cotton.\nThere was nothing so unique about the circumstances surrounding the crimes committed by Strickland that one would conclude that the same person must have committed the crimes for which defendant was being prosecuted. On the contrary, factual dissimilarities abound. Strickland kidnapped a stranger, and defendant kidnapped an acquaintance. Strickland raped and sexually assaulted his victim, while defendant murdered his victim. Strickland\u2019s crimes were committed in Wake and Johnston Counties, and defendant\u2019s crimes were committed in Orange County. Strickland\u2019s offenses were committed in January of 1988, and defendant\u2019s offenses were committed in November of 1986, some fourteen months earlier.\nUnlike the circumstances in Cotton, the evidence in this case does not tend to show that a specific person other than defendant committed the crimes in question. Evidence of the guilt of one other than the defendant is admissible if it points directly to the guilt of another specific party and tends both to implicate that other party and be inconsistent with the guilt of the defendant. State v. Brewer, 325 N.C. 550, 386 S.E.2d 569. Nothing in the proffered evidence points directly to Strickland as the perpetrator of the offenses for which defendant was being tried; nor is the evidence inconsistent with the guilt of defendant. The evidence in the present case creates a mere inference or conjecture regarding guilt of another and therefore was properly excluded. See State v. Simpson, 327 N.C. 178, 393 S.E.2d 771 (1990). Thus, we find no error or abuse of discretion in the trial .judge\u2019s decision to exclude the evidence.\nWe conclude that defendant has had a fair trial, free of prejudicial error.\nNo error.", "type": "majority", "author": "FRYE, Justice." } ], "attorneys": [ "Lacy H. Thornburg, Attorney General, by David Roy Blackwell, Special Deputy Attorney General, for the State.", "J. Kirk Osborn and W. David Lloyd for defendant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. JOSEPH DAVID ANNADALE\nNo. 351A90\n(Filed 14 August 1991)\n1. Homicide \u00a7 30 (NCI3d)\u2014 first degree murder \u2014refusal to instruct on second degree murder \u2014no error\nThe trial court did not err in a murder prosecution by refusing defendant\u2019s request to instruct the jury on second degree murder. A defendant is not entitled to an instruction on a lesser included offense merely because the jury could possibly believe some of the State\u2019s evidence but not all of it.\nAm Jur 2d, Homicide \u00a7 530.\n2. Homicide \u00a7 21.5 (NCI4th)\u2014 murder \u2014 motions to dismiss-corpus delicti rule \u2014 evidence sufficient\nThe trial court did not err by denying defendant\u2019s motions to dismiss in a murder prosecution where the opinion of the medical examiner, together with the testimony of other witnesses, clearly establishes a death by criminal agency and meets the requirements of the corpus delicti rule.\nAm Jur 2d, Homicide \u00a7\u00a7 432, 433.\n3. Criminal Law \u00a7 66.17 (NCI3d); Witnesses \u00a7 7 (NCX3d)murder \u2014 in-court identification by victim\u2019s son \u2014 not tainted\nThe trial court did not err in a first degree murder prosecution by allowing the in-court identification of defendant by the victim\u2019s son where defendant contended that the in-court identification was tainted by the unnecessarily suggestive statements of a therapist who hypnotized the witness and law enforcement officers who always referred to the picture of defendant as \u201cJoe.\u201d The trial judge\u2019s findings, supported by competent evidence, clearly show that the witness knew defendant before he was subjected to hypnosis and that the identification was reliable. Assuming that it was error to relate in sequence the events surrounding the disappearance of the victim, defendant was not prejudiced because there was no reasonable possibility that a different result would have been reached at trial had the alleged error not been committed.\nAm Jur 2d, Evidence \u00a7\u00a7 831, 1143.\n4. Criminal Law \u00a7 35 (NCI3d)\u2014 murder \u2014rumor concerning victim\u2019s disappearance \u2014not admissible\nThe trial court did not err in a murder prosecution by refusing to allow defendant to question a witness about a man who had come to the witness\u2019s store and told him that the victim had been involved with drug dealers, that there was a contract out on her, and that he knew where she was and could get her back for a reward. The proffered evidence consisted of the testimony of a witness concerning statements by an unidentified person, the evidence constitutes hearsay not within any exception, the evidence does not implicate any particular person as the perpetrator, and it is not inconsistent with defendant\u2019s guilt.\nAm Jur 2d, Homicide \u00a7 329.\n5. Criminal Law \u00a7 51.1 (NCI3d)\u2014 murder \u2014 testimony of medical examiner \u2014 admissible\nThe testimony of the medical examiner as to the cause of death was admissible in a murder prosecution despite defendant\u2019s contention that the medical examiner was in no better position than the jury to render an opinion. The witness serves as the state\u2019s Chief Medical Examiner; he was accepted as an expert in forensic pathology and was allowed to testify as an expert; he was well qualified as a forensic pathologist to provide testimony which was within his area of expertise and helpful to the jurors; and he was subject to thorough cross-examination by defendant concerning his testimony and any apparent discrepancies therein.\nAm Jur 2d, Homicide \u00a7 398.\n6. Criminal Law \u00a7 35 (NCI3d)\u2014 murder \u2014 testimony that offense committed by another \u2014not admissible\nThe trial court did not err in \u00e1 murder prosecution by refusing to permit an assistant district attorney to testify regarding the details of a crime for which a State\u2019s witness had been convicted where the evidence was offered to show that the witness rather than defendant committed the crimes for which defendant was being tried. There was nothing so unique about the crimes committed by the witness that one would conclude that the same person must have committed the crimes for which defendant was being prosecuted, and the evidence did not tend to show that a specific person other than defendant committed the crimes in question.\nAm Jur 2d, Homicide \u00a7 296.\nAppeal as of right pursuant to N.C.G.S. \u00a7 7A-27(a) from a judgment imposing a sentence of life imprisonment entered by Albright, J., at the 11 September 1989 Criminal Session of Superior Court, OBANGE County, upon a jury verdict of guilty of first degree murder. Heard in the Supreme Court 13 February 1991.\nLacy H. Thornburg, Attorney General, by David Roy Blackwell, Special Deputy Attorney General, for the State.\nJ. Kirk Osborn and W. David Lloyd for defendant." }, "file_name": "0557-01", "first_page_order": 595, "last_page_order": 613 }