{ "id": 2530679, "name": "STATE OF NORTH CAROLINA v. MICHAEL THOMAS BROWN", "name_abbreviation": "State v. Brown", "decision_date": "1994-01-28", "docket_number": "No. 132A92", "first_page": "477", "last_page": "493", "citations": [ { "type": "official", "cite": "335 N.C. 477" } ], "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": "410 U.S. 284", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11957222 ], "opinion_index": -1, "case_paths": [ "/us/410/0284-01" ] }, { "cite": "96 L. Ed. 629", "category": "reporters:federal", "reporter": "L. Ed.", "year": 1951, "opinion_index": 0 }, { "cite": "342 U.S. 831", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 641477, 641225, 641393, 640761, 640698 ], "year": 1951, "opinion_index": 0, "case_paths": [ "/us/342/0831-01", "/us/342/0831-05", "/us/342/0831-04", "/us/342/0831-02", "/us/342/0831-03" ] }, { "cite": "64 S.E.2d 871", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1951, "opinion_index": 0 }, { "cite": "233 N.C. 511", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8611849 ], "year": 1951, "opinion_index": 0, "case_paths": [ "/nc/233/0511-01" ] }, { "cite": "200 S.E.2d 16", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1973, "pin_cites": [ { "page": "20" } ], "opinion_index": 0 }, { "cite": "284 N.C. 190", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560715 ], "year": 1973, "pin_cites": [ { "page": "196" } ], "opinion_index": 0, "case_paths": [ "/nc/284/0190-01" ] }, { "cite": "51 S.E.2d 48", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1949, "opinion_index": 0 }, { "cite": "229 N.C. 662", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 12167610 ], "year": 1949, "opinion_index": 0, "case_paths": [ "/nc/229/0662-01" ] }, { "cite": "367 S.E.2d 626", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "636" } ], "opinion_index": 0 }, { "cite": "322 N.C. 176", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2514549 ], "year": 1988, "pin_cites": [ { "page": "195" } ], "opinion_index": 0, "case_paths": [ "/nc/322/0176-01" ] }, { "cite": "243 S.E.2d 374", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1978, "pin_cites": [ { "page": "377" } ], "opinion_index": 0 }, { "cite": "295 N.C. 75", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561038 ], "weight": 2, "year": 1978, "pin_cites": [ { "page": "79" } ], "opinion_index": 0, "case_paths": [ "/nc/295/0075-01" ] }, { "cite": "434 S.E.2d 183", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "opinion_index": 0 }, { "cite": "334 N.C. 532", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2532070 ], "year": 1993, "opinion_index": 0, "case_paths": [ "/nc/334/0532-01" ] }, { "cite": "415 S.E.2d 362", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "pin_cites": [ { "page": "370" } ], "opinion_index": 0 }, { "cite": "331 N.C. 159", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2497335 ], "year": 1992, "pin_cites": [ { "page": "174" } ], "opinion_index": 0, "case_paths": [ "/nc/331/0159-01" ] }, { "cite": "361 S.E.2d 882", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "888" } ], "opinion_index": 0 }, { "cite": "321 N.C. 31", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2568550 ], "year": 1987, "pin_cites": [ { "page": "41" } ], "opinion_index": 0, "case_paths": [ "/nc/321/0031-01" ] }, { "cite": "372 S.E.2d 532", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "537", "parenthetical": "quoting State v. Strickland, 321 N.C. 31, 41, 361 S.E.2d 882, 888 (1987)" } ], "opinion_index": 0 }, { "cite": "323 N.C. 339", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2564377 ], "year": 1988, "pin_cites": [ { "page": "348", "parenthetical": "quoting State v. Strickland, 321 N.C. 31, 41, 361 S.E.2d 882, 888 (1987)" } ], "opinion_index": 0, "case_paths": [ "/nc/323/0339-01" ] }, { "cite": "119 S.E.2d 165", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1961, "pin_cites": [ { "page": "170" } ], "opinion_index": 0 }, { "cite": "254 N.C. 380", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626399 ], "year": 1961, "pin_cites": [ { "page": "386" } ], "opinion_index": 0, "case_paths": [ "/nc/254/0380-01" ] }, { "cite": "229 S.E.2d 285", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "pin_cites": [ { "page": "294" } ], "opinion_index": 0 }, { "cite": "291 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8557231 ], "year": 1976, "pin_cites": [ { "page": "14" } ], "opinion_index": 0, "case_paths": [ "/nc/291/0001-01" ] }, { "cite": "377 S.E.2d 746", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "749" } ], "opinion_index": 0 }, { "cite": "324 N.C. 310", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2484726 ], "year": 1989, "pin_cites": [ { "page": "315" } ], "opinion_index": 0, "case_paths": [ "/nc/324/0310-01" ] }, { "cite": "367 S.E.2d 895", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "opinion_index": 0 }, { "cite": "322 N.C. 152", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2517737 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/nc/322/0152-01" ] }, { "cite": "373 S.E.2d 426", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "opinion_index": 0 }, { "cite": "323 N.C. 455", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2560540 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/nc/323/0455-01" ] }, { "cite": "126 L. Ed. 2d 602", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1993, "opinion_index": 0 }, { "cite": "430 S.E.2d 188", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "opinion_index": 0 }, { "cite": "333 N.C. 579", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2545734 ], "year": 1993, "opinion_index": 0, "case_paths": [ "/nc/333/0579-01" ] }, { "cite": "429 S.E.2d 724", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "opinion_index": 0 }, { "cite": "333 N.C. 756", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2547016 ], "year": 1993, "opinion_index": 0, "case_paths": [ "/nc/333/0756-01" ] }, { "cite": "395 S.E.2d 116", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "123" } ], "opinion_index": 0 }, { "cite": "327 N.C. 364", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2493012 ], "year": 1990, "pin_cites": [ { "page": "376" } ], "opinion_index": 0, "case_paths": [ "/nc/327/0364-01" ] }, { "cite": "410 U.S. 284", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11957222 ], "weight": 10, "pin_cites": [ { "page": "298" }, { "page": "310" }, { "page": "302" }, { "page": "313" }, { "page": "300" }, { "page": "311-12" }, { "page": "302" }, { "page": "313" } ], "opinion_index": 0, "case_paths": [ "/us/410/0284-01" ] } ], "analysis": { "cardinality": 1296, "char_count": 38271, "ocr_confidence": 0.775, "pagerank": { "raw": 1.7447128924671583e-07, "percentile": 0.7076146138249759 }, "sha256": "c80e229ab1f1dc1e07785c253fc80e8b061127341ad6e84cb6d05857ec5bea18", "simhash": "1:066a802e346f1c5a", "word_count": 6292 }, "last_updated": "2023-07-14T21:54:49.870550+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "STATE OF NORTH CAROLINA v. MICHAEL THOMAS BROWN" ], "opinions": [ { "text": "MEYER, Justice.\nOn 15 July 1991, a Columbus County grand jury indicted defendant for first-degree murder, conspiracy to commit murder, robbery with a firearm, and conspiracy to commit robbery with a firearm. Defendant was tried capitally in the Superior Court, Brunswick County, in November 1991 and was found guilty as charged in each case, the jury specifically finding defendant guilty of first-degree murder based on malice, premeditation, and deliberation; felony murder; and lying in wait. Upon a jury recommendation, defendant was sentenced to life imprisonment for first-degree murder. Judge Narley L. Cashwell imposed consecutive sentences totalling seventy years for the other offenses.\nAlthough inconsistent and at times conflicting, the evidence presented at trial tended to show the following: On the afternoon of 17 June 1991, defendant\u2019s friend, Aquino Williams, showed up at defendant\u2019s house to retrieve a .22-caliber pistol that he had handed over to defendant the night before. The pistol, which Williams had recently stolen from a tavern in the area, had belonged to the owner of the tavern, Vern Bellamy. Williams had shown the weapon to defendant and had stated that he was going to use it to kill a police officer so that Williams could steal the police officer\u2019s weapon. Williams left defendant\u2019s house, and defendant did not see him again until 6:00 that evening when Williams returned to defendant\u2019s house, and the two men left for Tammy Clark\u2019s house. Defendant drank two beers at Clark\u2019s house, then he and Williams returned to defendant\u2019s home. After they had been at defendant\u2019s home for about ten minutes, Shane Shipman arrived, and the three of them talked and watched T.V. until about 8:30 or 9:00 p.m. At that time, Williams and Shane Shipman left to go to Vern Bellamy\u2019s tavern. Some time later, Lee Shipman and Jeff Moore showed up at defendant\u2019s house. Defendant gave them $8.00 to buy some beer; they left and returned about fifteen minutes later. The three men carried the beer to a park across from defendant\u2019s house and began to drink it. After defendant drank about five of these beers, they all went to Tammy Clark\u2019s house. Once there, defendant drank about four more beers. At around 10:00 p.m., Williams arrived at Tammy Clark\u2019s house with Shane Shipman and Deautry Toon. Around 11:00 p.m., Williams, Shane Shipman and defendant left Tammy Clark\u2019s house and returned to defendant\u2019s house. They returned to Tammy Clark\u2019s house at around 11:45 p.m. After Tammy told them that she was going to bed, defendant and the two others went to their homes. Williams showed up again at defendant\u2019s home at around 12:15 a.m. Williams went to defendant\u2019s room and told defendant that he wanted to kill a cop. He told defendant to go to the nearby Timesaver convenience store and call in a fake breaking and entering report. Defendant and Williams walked together to the Timesaver, where defendant called the Sheriff\u2019s dispatcher and, identifying himself as John Norris, told the dispatcher that there was a break-in at the sixth house on the right on Mill Pond Road. The dispatcher radioed this information to Corporal Hinson, who was on patrol in the area. At 12:26 a.m., Corporal Hinson arrived at the location described to the dispatcher. Corporal Hinson then called back to the dispatcher on his radio and requested that the dispatcher call the subject back and have him turn on his house lights. The dispatcher advised him that the call had been made from a pay phone. At this point, Corporal Hinson informed the dispatcher that he had passed a subject on the way to the residence whom he thought could have been the person who called the dispatcher.\nAs defendant and Williams walked toward defendant\u2019s residence from the Timesaver, Corporal Hinson approached them in his patrol car. Corporal Hinson pulled alongside Williams and defendant, rolled down the driver\u2019s side window of his patrol car, and asked them if they were the ones who had made the break-in call. Williams gave some reply, then .immediately shot Corporal Hinson in the face with the .22-caliber pistol three times, killing him. Williams opened the door of the vehicle and pushed Corporal Hinson\u2019s body from the driver\u2019s seat. Williams then sat in the driver\u2019s seat, and defendant sat in the rear passenger seat of the car. Williams drove the vehicle to some dumpsters that were located nearby on Airport Road. On the way to the dumpsters, defendant removed the officer\u2019s badge carrier from his right rear pocket. He later threw it into the woods across the road from the dumpsters. Williams removed the officer\u2019s pistol from its holster and put it in the front of his pants. Defendant and Williams then opened the trunk of the vehicle and removed four long guns. They hid these guns near a dirt path that ran alongside Airport Road. Defendant and Williams then walked back to defendant\u2019s house, where they watched a movie on defendant\u2019s VCR. After about an hour and a half, Williams left defendant\u2019s house.\nBy this time, Corporal Hinson\u2019s vehicle and body had been discovered by Corporal Billy Hammond of the Columbus County Sheriff\u2019s Department, and the State Bureau of Investigation was called to assist in the investigation of the killing. At 3:30 a.m., SBI Agent Matthew White had ascertained that Corporal Hinson\u2019s last responding call was the sixth house on Mill Pond Road. While travelling in this area, Agent White observed a person in the area of the second or third house on Mill Pond Road. Agent White called the individual over to him, but after he did, the individual, who turned out to be Williams, walked away, bending down twice as he did so. Agent White looked around in the area where he saw Williams bend down and observed a .45-caliber pistol and a box of .45-caliber ammunition. Williams was subsequently taken into custody and gave several statements, first denying the offense, then admitting the killing but stating that he had acted alone, and finally indicating that defendant was involved in the shooting.\nDefendant was taken into custody later that day. He was advised of his rights, whereupon he waived his rights and gave a statement detailing his involvement in the killing. At trial, defendant testified that although he had called in the fake break-in report and that he was with Williams at the time of the killing, he did not believe that Williams was serious when he said that he intended to kill a policeman.\nOther evidence will be presented as necessary for the proper resolution of the issues raised by defendant.\nIn his first assignment of error, defendant contends that the trial court erred in excluding statements made by Williams, thus depriving defendant of his right to present a defense and of his right to confront witnesses against him.\nSubsequent to being taken into custody on 18 June 1991, Williams made five statements to law enforcement officers. In the first of these statements, made to SBI Agents Kennedy and Moser at approximately 4:45 a.m., he denied any involvement in the killing. Later that morning, \u00e1t around 7:58 a.m., he made another statement, this time to Agent White, in which he admitted shooting Corporal Hinson but indicated that he was alone at the time. At this time, Williams\u2019 story was that while walking alone down Mill Pond Road, he happened to find a loaded .22-caliber pistol in a ditch beside the road. He retrieved the pistol and moments later was approached by a patrol car. When the officer saw the pistol in his hand, the officer began to unbuckle his seat belt, and that was when Williams shot him. He then stated that he threw the gun in a cornfield next to the road.\nAround mid-morning following this statement, Agent Kennedy removed Williams from jail and took him to the spot where Williams claimed he threw the pistol into the cornfield. As a search for the pistol was conducted, Williams made a third statement while sitting in Agent Kennedy\u2019s patrol car. Again, Williams stated that he was alone at the time of the killing, that he had not called in any fake break-in call, and that he had found the pistol in a ditch. He stated that if there had been anyone else involved, \u201che would tell it.\u201d\nLater that afternoon, around 5:20 p.m., Williams was reinterviewed by Agent White. It was during this interview that he made a statement in which he described the events in a manner that was consistent with the statements given by defendant and the evidence presented at trial. Williams now admitted that he and defendant had planned the killing, that they had walked to the Timesaver where defendant made the fake break-in call, and that he and defendant had been together when Williams shot Corporal Hinson.\nFinally, Williams was asked at 9:20 p.m. if he would go over the facts concerning the killing again. He agreed and stated that he first began to discuss his plan for killing a police officer while at Vern Bellamy\u2019s tavern the night of the killing. He then walked to Tammy Clark\u2019s residence where he and defendant discussed the plan further, agreeing to make a fake break-in call from the Timesaver. He again stated that he and defendant were together when Williams shot Corporal Hinson and that they had ridden in the patrol car to the location on Airport Road, taken the weapons from the trunk, hidden them beside the road, and walked to defendant\u2019s residence from the location where they had parked the patrol car.\nDefendant wished to use Williams\u2019 statements that he had acted alone to show that defendant was not an integral part of the plan to kill a police officer. Williams and defendant were to be tried separately, and at the time of defendant\u2019s trial, Williams\u2019 charges were pending. When defendant called Williams to testify, Williams repeatedly invoked his Fifth Amendment privilege not to give testimony that would implicate himself. Defendant then attempted to have the statements introduced under the Rule 804(b)(3) exception to the hearsay rule concerning statements against interest. After lengthy hearings concerning the admissibility of Williams\u2019 statements, the trial court ruled that Williams was unavailable as a witness, that the statements were against his penal interests when made, and that they were made voluntarily. The trial court refused to allow the introduction of the statements, however, because it ruled that the statements bore insufficient indications of trustworthiness.\n\u25a0 The trial court ruled, and the State concedes, that Williams was unavailable to testify within the meaning of N.C.G.S. \u00a7 8C-1, Rule 804(a)(1). In order for the hearsay statement of an unavailable witness to be admitted as a statement against interest, however, the statement must also meet the requirements of N.C.G.S. \u00a7 8C-1, Rule 804(b)(3), which reads as follows:\nStatement Against Interest. \u2014A statement which was at the time of its making so far contrary to the declarant\u2019s pecuniary or proprietary interest, or so far tended to subject him to civil or criminal liability, or to render invalid a claim by him against another, that a reasonable man in his position would not have made the statement unless he believed it to be true. A statement tending to expose the declarant to criminal liability is not admissible in a criminal case unless corroborating circumstances clearly indicate the trustworthiness of the statement.\nN.C.G.S. \u00a7 8C-1, Rule 804(b)(3) (1992) (emphasis added). The determination of whether the trustworthiness of the statement is indicated by corroborating circumstances is a preliminary matter to be decided by the trial judge. See N.C.G.S. \u00a7 8C-1, Rule 104 (1992).\nIn the first statement in which Williams admitted shooting Corporal Hinson, he claimed that he had found the loaded .22-caliber pistol in a ditch only moments before his encounter with Corporal Hinson. This assertion in itself appears highly unlikely given its coincidental nature and the darkened condition' of the road at the time. In addition, this account of his acquisition of the pistol conflicts with his own subsequent explanation that he had acquired the pistol from defendant.\nWilliams further claimed that he threw the pistol into a cornfield after he shot the deputy. Even after Williams accompanied law enforcement officers to this location only a few hours later, no gun was found, even with the aid of tracking dogs. The gun was actually found in defendant\u2019s house some time later.\nWhen Williams was questioned again concerning the killing, he continued to insist that he acted alone. He again stated that he had thrown the gun into a cornfield after the killing, even after he was informed that a search had been conducted but no gun had been found. Williams continued to maintain that he was alone. However, as the trial court was aware at the time of the motion hearing, defendant had later confessed his involvement and his fingerprints had been found on the car. These circumstances indicate that the statements made by Williams wherein he insisted that he acted alone when he killed Corporal Hinson were untrue. The trial court\u2019s determination that the statements made by Williams were not trustworthy is well supported by the record. Accordingly, defendant was properly precluded from introducing the statements under the Rule' 804 statement against interest exception to the prohibition against hearsay. N.C.G.S. \u00a7 8C-1, Rule 804(b)(3). Defendant\u2019s assignment of error on these grounds is without merit.\nDefendant further contends that the failure to admit the statements violated his right of confrontation and his right to due process. We disagree. The right to due process does not include the right to admit untrustworthy declarations.\nWe are persuaded by the reasoning employed by the United States Supreme Court in Chambers v. Mississippi, 410 U.S. 284, 35 L. Ed. 2d 297 (1973). In that case, defendant Chambers was on trial for the murder of a policeman. Another man, McDonald, had given a sworn confession that he was the person who had killed the policeman. Although Chambers was allowed to call McDonald as a witness and to introduce his sworn statement, it was clear that McDonald had previously repudiated the statement. While on the witness stand, McDonald testified to the fact that he had retracted his confession and was allowed to present alibi evidence of his own. In addition, the United States Supreme Court observed:\nThe trial court refused to allow [Chambers] to introduce the testimony of [three witnesses]. Each would have testified to the statements purportedly made by McDonald, on three separate occasions shortly after the crime, naming [McDonald] as the murderer. The State Supreme Court approved the exclusion of this evidence on the ground that it was hearsay.\nChambers, 410 U.S. at 298, 35 L. Ed. 2d at 310.\nAlthough the United States Supreme Court granted Chambers a new trial, holding that \u201cthe exclusion of this critical evidence, coupled with the State\u2019s refusal to permit Chambers to cross-examine McDonald, denied him a trial in accord with traditional and fundamental standards of due process,\u201d id. at 302, 35 L. Ed. 2d at 313, the Court took great care to emphasize that \u201c[t]he hearsay statements involved in [that] case were originally made and subsequently offered at trial under circumstances that provided considerable assurance of their reliability,\u201d id. at 300, 35 L. Ed. 2d at 311-12. The Court further stated that \u201c[t]he testimony rejected by the trial court [there] bore persuasive assurances of trustworthiness and thus was well within the basic rationale of the exception for declarations against interest.\u201d Id. at 302, 35 L. Ed. 2d at 313.\nThe trial court in the case sub judice ruled that the statements at issue did not have any such assurances of trustworthiness; therefore, the rationale underlying the award of a new trial in Chambers does not apply. The trial court properly refused to allow the admission of Williams\u2019 statements. Defendant was not deprived of his right to due process by the exclusion of the statements, and his assignment of error on this issue is without merit.\nFinally, with regard to Williams\u2019 statements that no one was with him at the time of the killing, defendant contends that inasmuch as they were not hearsay at all, they should not be barred under either of the prior analyses. Defendant argues that his purpose for admitting the statements was not to prove the truth of the matter asserted, that is, that defendant was not present at the scene of the killing. Instead, defendant argues that Williams\u2019 insistence that he was alone is an indication that defendant\u2019s participation was incidental or that defendant was not a significant participant in the crime. Defendant contends that this evidence would have been relevant to show that there was no conspiracy between the two and to rebut the theory that defendant and Williams were acting in concert.\nAssuming, arguendo, that the statements were not hearsay and that they had relevance when presented in this manner, we note that they are still subject to exclusion if their \u201cprobative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury.\u201d N.C.G.S. \u00a7 8C-1, Rule 403 (1992).\n\u201cIn general, the exclusion of evidence under the balancing test of Rule 403 of the North Carolina Rules of Evidence is within the trial court\u2019s sound discretion,\u201d and it is only \u201cwhere the court\u2019s ruling is manifestly unsupported by reason or is so arbitrary that it could not have been the result of a reasoned decision\u201d that it will be overturned on appeal. State v. Hennis, 323 N.C. at 285, 372 S.E.2d at 527. Defendant himself testified that he was, in fact, present at the time of the killing and that he did participate in the planning of the crime. Thus, if used to show defendant\u2019s nonparticipation, the probative value of the statements, if any, was slight. Furthermore, the trial court specifically found the statements to be untrustworthy, clearly viewing them as nothing more than untruths told by defendant\u2019s accomplice. The admission of a statement that is so clearly false and that was made by a witness who is unavailable to testify or be cross-examined would have been misleading to the jury. We hold that in the present case, the trial court did not err in refusing to admit these untrustworthy and uncorroborated statements made by defendant\u2019s accomplice.\nIn his next assignment of error, defendant contends that the trial court improperly denied his motion for mistrial based upon the conduct of the victim\u2019s daughter in displaying a photograph of the victim during defendant\u2019s cross-examination.\nThe rule governing the declaration of a mistrial is N.C.G.S. \u00a7 15A-1061, which states as follows:\nUpon motion of a defendant or with his concurrence the judge may declare a mistrial at any time during the trial. The judge must declare a mistrial upon the defendant\u2019s motion if there occurs during the trial an error or legal defect in the proceedings, or conduct inside or outside the courtroom, resulting in substantial and irreparable prejudice to the defendant\u2019s case.\nN.C.G.S. \u00a7 15A-1061 (1988). \u201c \u2018A mistrial should be granted only when there are improprieties in the trial so serious that they substantially and irreparably prejudice the defendant\u2019s case and make it impossible for the defendant to receive a fair and impartial verdiet.\u2019 \u201d Id. (quoting State v. Warren, 327 N.C. 364, 376, 395 S.E.2d 116, 123 (1990)).\nIn the present case, the victim\u2019s daughter, Karen McPherson, had in her possession a two-inch by four-inch color photograph of the victim taken while he was in uniform. During defendant\u2019s cross-examination, Ms. McPherson was seated in the courtroom two rows behind the district attorney\u2019s seat, some six to eight feet from the jury box. At some point, she held the photograph up, facing defendant while he was testifying. She stated on voir dire that she did not know what her purpose was in doing so but that she was not attempting to show the picture to the members of the jury. While she was holding the photograph, however, a juror saw it and reported the incident to the bailiff, who in turn informed the trial court. The trial court then conducted a voir dire examination of the bailiff and Ms. McPherson. After doing so and after hearing arguments of counsel, the trial court denied defendant\u2019s motion for mistrial. Subsequently, the jury was instructed that\na matter of law has arisen which the Court has resolved by appropriate instructions to all persons who have been in and about the courtroom area during the trial of this matter. You, the jury, are to remain fair and impartial throughout the trial of this case and to base any decision you make in this case solely upon the evidence presented in this courtroom and the law as I will give it to you at the close of all that evidence. You are not to make any decision upon any other bases.\nThe trial court then recessed for the remainder of the afternoon; the trial did not resume until the following morning. Defendant has not shown nor does the record indicate that Ms. McPherson\u2019s conduct resulted in the \u201cirreparable prejudice\u201d necessary to merit the granting of a motion for mistrial. N.C.G.S. \u00a7 15A-1061. There is nothing to indicate that any of the jurors were influenced in any way by the photograph or that defendant was prejudiced by Ms. McPherson\u2019s conduct. In addition, defendant\u2019s argument that the trial court\u2019s instructions were inadequate to cure the alleged prejudice is likewise unavailing, as defendant has not shown any prejudice. We hold that the trial court properly denied defendant\u2019s motion for mistrial. Defendant\u2019s assignment of error on this issue is without merit.\nIn his next assignment of error, defendant contends that the trial court erred in prohibiting the testimony of his expert witness that defendant lacked the mental capacity and ability to conspire. Dr. Thomas Brown was admitted as an expert in the field of forensic psychiatry with a specialty in addictive medicine.\nDefendant concedes that this Court has ruled that even qualified expert witnesses may not give opinion testimony concerning legal terms that have specific meanings not readily apparent to the witness or that have definitions that vary from the common definition of the term. See State v. Daniel, 333 N.C. 756, 429 S.E.2d 724 (1993); State v. Jennings, 333 N.C. 579, 430 S.E.2d 188, cert. denied, \u2014 U.S. \u2014, 126 L. Ed. 2d 602 (1993); State v. Rose, 323 N.C. 455, 373 S.E.2d 426 (1988); State v. Weeks, 322 N.C. 152, 367 S.E.2d 895 (1988). Defendant contends, however, that the term \u201cconspiracy\u201d is not such a term and insists that \u201cmost of the population past the third grade knows what conspiracy means.\u201d We disagree.\nThe specific question objected to was as follows:\nDr. Brown, I want to ask you if you have an opinion as to whether, based upon your examination of [defendant] and your conclusions and the other things you consider, do you have an opinion as to whether or not [defendant] is the type of person or has the mental, the personality and mental state, to enter into a conspiracy to kill somebody?\n(Emphasis added.) An answer to this inartfully phrased question would require Dr. Brown to have not only knowledge of the substantive legal definition of a \u201cconspiracy,\u201d but also knowledge of the legal elements necessary for entrance into a conspiracy. Finally, testimony by Dr. Brown concerning the \u201ctype of person\u201d or \u201cpersonality\u201d necessary to enter into a conspiracy would be fraught with substantial risk of confusing or misleading the jury. No attempt was made to rephrase or clarify the question. We hold that the trial court correctly sustained the State\u2019s objection to this question. This assignment of error is overruled.\nIn his next assignment of error, defendant contends that the trial court erred in failing to give certain jury instructions requested by him. Specifically, defendant contends that the trial court should have instructed the jury (1) that a conspiracy requires a union of wills and the intent to effectuate the object of the conspiracy; and (2) that in order to aid and abet Williams, defendant must have known that Williams intended to rob and murder Corporal Hinson.\nWith regard to a defendant\u2019s request for jury instructions, this Court has consistently held that a trial court is not required to repeat verbatim a requested, specific instruction that is correct and supported by the evidence, but that it is sufficient if the court gives the instruction in substantial conformity with the request. State v. Rhinehart, 324 N.C. 310, 315, 377 S.E.2d 746, 749 (1989); State v. Davis, 291 N.C. 1, 14, 229 S.E.2d 285, 294 (1976); State v. Bailey, 254 N.C. 380, 386, 119 S.E.2d 165, 170 (1961).\nWith regard to the charge of conspiracy to commit murder, the trial court instructed the jury as follows:\nI charge . . . that for you, the jury, to find the defendant, Michael Thomas Brown, guilty of conspiracy to commit murder, the state must prove three things, each beyond a reasonable doubt. First, that the defendant, Michael Thomas Brown, and Aquino Lee Williams entered into an agreement. Second, that the agreement was to commit murder.\nMurder, ladies and gentlemen, is the unlawful killing of another human being with malice. Third, that the defendant, Michael Thomas Brown, and Aquino Lee Williams intended that the agreement be carried out at the time the agreement was made.\nSimilar instructions were given for the charge of feloniously conspiring to commit robbery with a firearm.\nBy instructing the jury that defendant and Williams must have entered into an agreement to commit murder and that at the time the agreement was made, they intended that it be carried out, the trial court charged in substantial conformity with the requested instruction regarding the requirement of a union of wills. The trial court also clearly complied with defendant\u2019s request that the jury be instructed that it must find that defendant and Williams intended to effectuate the object of the conspiracy.\nWith regard to the charge of first-degree murder on the basis of aiding and abetting, the trial court instructed the jury as follows:\nFor you to find the defendant, Michael Thomas Brown, guilty of first degree murder on the basis of malice, premeditation and deliberation because of aiding and abetting, the state must prove four things, each beyond a reasonable doubt. First, that first degree murder on the basis of malice, premeditation and deliberation was committed by Aquino Lee Williams.\nSecond, the defendant, Michael Thomas Brown, knowingly advised, instigated, encouraged or procured or aided Aquino Lee Williams to commit first degree murder. Again, ladies and gentlemen, the defendant is not guilty of first degree murder merely because he is present at the scene, even though he may silently approve of the crime or secretly intends to assist in its commission.\nTo be guilty, the defendant, Michael Thomas Brown, must aid or actively encourage Aquino Lee Williams in committing the crime or, in some way, communicate to Aquino Lee Williams\u2019s [sic] the defendant\u2019s intention to assist in the commission of the crime. Third, that the defendant, Michael Thomas Brown, himself, acted after premeditation, as I have previously defined that term, with deliberation, as I have previously defined that term, and willfully, that is, intentionally and purposefully.\n. . . Fourth, that the defendant, Michael Thomas Brown\u2019s actions or statements caused or contributed to the commission of the first degree murder of Robert Howard Hinson by Aquino Lee Williams.\nSimilar instructions were given for the charges of felony murder and murder by lying in wait.\nIn instructing the jury that defendant was required to \u201caid or actively encourage Aquino Lee Williams in committing the crime or, in some way, communicate to Aquino Lee Williams\u2019s [sic] the defendant\u2019s intention to assist in the commission of the crime,\u201d the jury was required to determine that defendant knew that Williams intended to rob and murder Corporal Hinson. The trial court gave jury instructions that incorporated those features requested by defendant, and his assignment of error on these grounds is therefore without merit.\nIn his next assignment of error, defendant contends that the trial court erred when it refused to give the requested instruction on voluntary intoxication as a defense to those charges requiring intent.\n\u201c[I]n order for an instruction on voluntary intoxication to be required the evidence must be that defendant\u2019s intoxication rendered him \u2018utterly incapable\u2019 of forming a deliberate and premeditated intent to kill.\u201d State v. Mash, 323 N.C. 339, 348, 372 S.E.2d 532, 537 (1988) (quoting State v. Strickland, 321 N.C. 31, 41, 361 S.E.2d 882, 888 (1987)). Mere intoxication is not sufficient to meet this burden. State v. Reeb, 331 N.C. 159, 174, 415 S.E.2d 362, 370 (1992).\nIn the present case, defendant offered evidence that showed that he had consumed approximately ten or eleven beers beginning about 7:30 p.m. the evening of the murder. His expert witness testified that he had learned that defendant had been engaged in a pattern of drinking eight to twelve beers a day, which could have caused an \u201caccumulative impairment of mental functions.\u201d In addition, defendant\u2019s expert testified that defendant would have been acutely intoxicated at the time of the murder and that his capacity to plan and have good judgment would have been adversely affected.\nTaken in the light most favorable to defendant, the evidence tends to show that defendant was intoxicated at the time of the killing. Again, however, evidence of intoxication is not sufficient to mandate an instruction on the defense of voluntary intoxication. See State v. Yelverton, 334 N.C. 532, 434 S.E.2d 183 (1993); see also State v. Medley, 295 N.C. 75, 243 S.E.2d 374 (1978). Rather, \u201c[t]he evidence must show that at the time of the killing the defendant\u2019s mind and reason were so completely intoxicated and overthrown as to render him utterly incapable of forming a deliberate and premeditated purpose to kill.\u201d Medley, 295 N.C. at 79, 243 S.E.2d at 377. The evidence in the present case suggests that defendant was intoxicated to some degree, but nothing in the record, taken in the light most favorable to defendant, suggests that his degree of intoxication approached the level necessary to support an instruction on the defense of voluntary intoxication. Defendant\u2019s assignment of error on these grounds is overruled.\nIn his last assignment of error, defendant contends that the trial court erred in allowing the State to impeach defendant\u2019s expert witness concerning the witness\u2019, fee. Defendant appears to agree that this Court has consistently held that \u201can expert witness\u2019 compensation is a permissible cross-examination subject to test partiality towards the party by whom the expert was called.\u201d State v. Allen, 322 N.C. 176, 195, 367 S.E.2d 626, 636 (1988); see also State v. Creech, 229 N.C. 662, 51 S.E.2d 48 (1949). Defendant argues that in the present case, the cross-examination was improper because the expert witness had been provided to defendant by order of the trial court and was being paid for with state funds. We disagree.\n\u201c[W]here evidence of bias is elicited on cross-examination the witness is entitled to explain, if he can, on redirect examination, the circumstances giving rise to bias so that the witness may stand in a fair and just light before the jury.\u201d State v. Patterson, 284 N.C. 190, 196, 200 S.E.2d 16, 20 (1973); see also State v. Hicks, 233 N.C. 511, 64 S.E.2d 871, cert. denied, 342 U.S. 831, 96 L. Ed. 629 (1951).\nIf defendant believed at trial that the circumstances surrounding the retention and payment of the expert witness were such that the jury would have inferred no bias on his part, he was free to demonstrate this through redirect examination. Defendant\u2019s final assignment of error is without merit.\nWe conclude that defendant received a fair trial free from prejudicial error and that the judgment appealed from must be upheld.\nNO ERROR.", "type": "majority", "author": "MEYER, Justice." } ], "attorneys": [ "Michael F. Easley, Attorney General, by Thomas S. Hicks, Assistant Attorney General, for the State.", "Nora Henry Hargrove for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. MICHAEL THOMAS BROWN\nNo. 132A92\n(Filed 28 January 1994)\n1. Evidence and Witnesses \u00a7 981 (NCI4th)\u2014 murder \u2014 statement of unavailable witness \u2014excluded \u2014no error\nThe trial court did not err in a noncapital prosecution for first-degree murder by excluding statements made by a codefendant, Williams, where defendant wished to use the statements to show that defendant was not an integral part of the plan to kill a police officer; Williams, who had not yet been tried, repeatedly invoked the Fifth Amendment when called by defendant; and the trial court ruled that Williams was unavailable as a witness, that the statements were against his penal interest when made and that they were made voluntarily, but that they bore insufficient indications of trustworthiness. The trial court\u2019s determination that the statements made by Williams were not trustworthy is well supported by the record. N.C.G.S. \u00a7 8C-1, Rule 804(b)(3).\nAm Jur 2d, Evidence \u00a7 1081.\n2. Constitutional Law \u00a7 346 (NCI4th)\u2014 murder \u2014statement of unavailable witness \u2014exclusion\u2014not violation of due process or right to confrontation\nThe trial court did not err in a noncapital first-degree murder prosecution by excluding pretrial statements of a codefendant who had not yet been tried and who invoked the Fifth Amendment when called by defendant. The rationale underlying the award of a new trial in Chambers v. Mississippi, 410 U.S. 284, does not apply because the trial court here ruled that the statements at issue did not have the assurances of trustworthiness found in the rejected testimony in Chambers.\nAm Jur 2d, Criminal Law \u00a7\u00a7 921-923.\n3. Evidence and Witnesses \u00a7 90 (NCI4th)\u2014 murder \u2014statements of nontestifying witness \u2014exclusion \u2014no error\nThe trial court did not err in a noncapital murder prosecution by excluding under N.C.G.S. \u00a7 8C-1, Rule 403 the pretrial statements of a codefendant who had not yet been tried who invoked the Fifth Amendment when called by defendant where the probative value of the statements was slight and the trial court specifically found the statements to be untrustworthy. The admission of a statement that is so clearly false and that was made by a witness who is unavailable- to testify or be cross-examined would have been misleading to the jury.\nAm Jur 2d, Evidence \u00a7 260.\n4. Criminal Law \u00a7 537 (NCI4th)\u2014 murder \u2014 display of victim\u2019s photograph by victim\u2019s daughter \u2014no mistrial\nThe trial court did not err in a noncapital first-degree murder prosecution by denying a mistrial where the victim\u2019s daughter displayed a photograph of the victim during the defendant\u2019s cross-examination. The trial court conducted a voir dire examination of the bailiff and the juror who reported the incident, instructed the jury, and recessed for the remainder of the afternoon. There is nothing to indicate that any of the jurors were influenced in any way by the photograph or that defendant was prejudiced. N.C.G.S. \u00a7 15A-1061.\nAm Jur 2d, Trial \u00a7\u00a7 39 et seq.\n5. Evidence and Witnesses \u00a7 2152 (NCI4th)\u2014 murder \u2014testimony by psychiatric expert \u2014ability to conspire \u2014excluded\nThe trial court did not err in a noncapital first-degree murder prosecution by excluding testimony from an expert in forensic psychiatry that defendant lacked the mental capacity and ability to conspire. An answer to the question objected to would have required the witness to have knowledge of the legal elements necessary for entrance into a conspiracy and knowledge of the substantive legal definition of a conspiracy. Testimony concerning the type of person or personality necessary to enter into a conspiracy would be fraught with substantial risk of confusing or misleading the jury!\nAm Jur 2d, Expert and Opinion Evidence \u00a7\u00a7 136 et seq.\n6. Criminal Law \u00a7 753 (NCI4th)\u2014 murder\u2014 requested instructions \u2014given in substance\nThe trial court did not err in a noncapital first-degree murder prosecution in its instructions on conspiracy and aiding and abetting where the court charged in substantial conformity with defendant\u2019s requested instruction.\nAm Jur 2d, Trial \u00a7\u00a7 754 et seq., 827 et seq.\n7. Criminal Law \u00a7 775 (NCI4th) \u2014 murder\u2014 voluntary intoxication \u2014instruction refused \u2014no error\nThe trial court did not err in a noncapital first-degree murder prosecution by refusing to give the requested instruction on voluntary intoxication where defendant\u2019s evidence showed that he had consumed ten or eleven beers on the evening of the murder and his expert testified that defendant\u2019s drinking could have caused an \u201caccumulative impairment of mental functions,\u201d that defendant would have been acutely intoxicated at the time of the murder, and that his capacity to plan and have good judgment would have been adversely affected. The evidence suggests that defendant was intoxicated to some degree, but nothing in the record suggests that his degree of intoxication approached the level necessary to support an instruction on the defense of voluntary intoxication.\nAm Jur 2d, Trial \u00a7 743.\n8. Evidence and Witnesses \u00a7 2954 (NCI4th)\u2014 murder \u2014defense expert provided by court \u2014 impeachment\u2014payment of fee\nThe trial court did not err in a noncapital murder prosecution by allowing the State to impeach a defense expert concerning the witness\u2019s fee where the expert was provided by order of the court and was being paid with State funds. Defendant was free to demonstrate through redirect examination that the circumstances surrounding the retention and payment of the witness were such that the jury would have inferred no bias on his part.\nAm Jur 2d, Witnesses \u00a7 554.\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 Cashwell, J., at the 4 November 1991 session of Superior Court, Brunswick County, upon a jury verdict of guilty of first-degree murder. Defendant\u2019s motion to bypass the Court of Appeals as to additional judgments entered on other felony convictions was allowed by the Supreme Court on 13 May 1993. Heard in the Supreme Court 17 November 1993.\nMichael F. Easley, Attorney General, by Thomas S. Hicks, Assistant Attorney General, for the State.\nNora Henry Hargrove for defendant-appellant." }, "file_name": "0477-01", "first_page_order": 511, "last_page_order": 527 }