{ "id": 2549787, "name": "STATE OF NORTH CAROLINA v. JAMES JONES", "name_abbreviation": "State v. Jones", "decision_date": "1994-07-29", "docket_number": "No. 445A93", "first_page": "198", "last_page": "211", "citations": [ { "type": "official", "cite": "337 N.C. 198" } ], "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": "74 ALR4th 705", "category": "reporters:specialty", "reporter": "A.L.R. 4th", "opinion_index": -1 }, { "cite": "109 L. Ed. 2d 541", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1990, "opinion_index": 0 }, { "cite": "495 U.S. 951", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 633957, 634149, 634118, 634316, 633725, 633774, 633934, 633904, 633712, 633906, 633977, 633785, 633821, 634110 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/us/495/0951-02", "/us/495/0951-04", "/us/495/0951-09", "/us/495/0951-03", "/us/495/0951-14", "/us/495/0951-11", "/us/495/0951-13", "/us/495/0951-10", "/us/495/0951-15", "/us/495/0951-08", "/us/495/0951-07", "/us/495/0951-06", "/us/495/0951-12", "/us/495/0951-05" ] }, { "cite": "386 S.E.2d 569", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "575" } ], "opinion_index": 0 }, { "cite": "325 N.C. 550", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2489106 ], "year": 1990, "pin_cites": [ { "page": "561" } ], "opinion_index": 0, "case_paths": [ "/nc/325/0550-01" ] }, { "cite": "351 S.E.2d 277", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "279-80", "parenthetical": "evidence that a person with similar features committed charged offense and two other offenses in similar manner is relevant as tending to implicate the other party and be inconsistent with defendant's silence" } ], "opinion_index": 0 }, { "cite": "318 N.C. 663", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4733270 ], "year": 1987, "pin_cites": [ { "page": "667", "parenthetical": "evidence that a person with similar features committed charged offense and two other offenses in similar manner is relevant as tending to implicate the other party and be inconsistent with defendant's silence" } ], "opinion_index": 0, "case_paths": [ "/nc/318/0663-01" ] }, { "cite": "360 S.E.2d 442", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "449", "parenthetical": "map relevant and admissible because it \"casts doubt upon the State's evidence that defendant was the killer and suggests instead an alternative scenario for the victim's ultimate demise\"" } ], "opinion_index": 0 }, { "cite": "322 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2513652 ], "year": 1988, "pin_cites": [ { "page": "14", "parenthetical": "map relevant and admissible because it \"casts doubt upon the State's evidence that defendant was the killer and suggests instead an alternative scenario for the victim's ultimate demise\"" } ], "opinion_index": 0, "case_paths": [ "/nc/322/0001-01" ] }, { "cite": "322 S.E.2d 370", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1984, "pin_cites": [ { "page": "376", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "312 N.C. 129", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4750010 ], "year": 1984, "pin_cites": [ { "page": "140", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/312/0129-01" ] }, { "cite": "392 S.E.2d 346", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "349" } ], "opinion_index": 0 }, { "cite": "326 N.C. 689", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5305505 ], "year": 1990, "pin_cites": [ { "page": "696" } ], "opinion_index": 0, "case_paths": [ "/nc/326/0689-01" ] }, { "cite": "406 S.E.2d 876", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "parenthetical": "victim's recorded statements were relevant because they tended to disprove the normal loving relationship that defendant contended existed between the two" } ], "opinion_index": 0 }, { "cite": "329 N.C. 278", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2554614 ], "year": 1991, "pin_cites": [ { "parenthetical": "victim's recorded statements were relevant because they tended to disprove the normal loving relationship that defendant contended existed between the two" } ], "opinion_index": 0, "case_paths": [ "/nc/329/0278-01" ] }, { "cite": "128 L. E. 2d 220", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1994, "opinion_index": 0 }, { "cite": "435 S.E.2d 296", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "parenthetical": "victim's conversations with three witnesses related directly to the victim's fear of defendant and were admissible to show the victim's state of mind at the time the conversations took place" } ], "opinion_index": 0 }, { "cite": "334 N.C. 627", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2531078 ], "year": 1993, "pin_cites": [ { "parenthetical": "victim's conversations with three witnesses related directly to the victim's fear of defendant and were admissible to show the victim's state of mind at the time the conversations took place" } ], "opinion_index": 0, "case_paths": [ "/nc/334/0627-01" ] }, { "cite": "389 S.E.2d 66", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "parenthetical": "victim's statements made three weeks before her disappearance about her husband's threats were admitted because the victim's state of mind was relevant to the issue of her relationship with her husband" } ], "opinion_index": 0 }, { "cite": "326 N.C. 298", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5306390 ], "year": 1990, "pin_cites": [ { "parenthetical": "victim's statements made three weeks before her disappearance about her husband's threats were admitted because the victim's state of mind was relevant to the issue of her relationship with her husband" } ], "opinion_index": 0, "case_paths": [ "/nc/326/0298-01" ] }, { "cite": "434 S.E.2d 840", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "851" } ], "opinion_index": 0 }, { "cite": "334 N.C. 467", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2528837 ], "year": 1993, "pin_cites": [ { "page": "487-88" } ], "opinion_index": 0, "case_paths": [ "/nc/334/0467-01" ] }, { "cite": "312 S.E.2d 482", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1984, "pin_cites": [ { "page": "485" }, { "page": "485" } ], "opinion_index": 0 }, { "cite": "310 N.C. 353", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2398536 ], "weight": 2, "year": 1984, "pin_cites": [ { "page": "357" }, { "page": "357" } ], "opinion_index": 0, "case_paths": [ "/nc/310/0353-01" ] }, { "cite": "201 S.E.2d 840", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1973, "pin_cites": [ { "page": "849" } ], "opinion_index": 0 }, { "cite": "284 N.C. 427", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562720 ], "year": 1973, "pin_cites": [ { "page": "440" } ], "opinion_index": 0, "case_paths": [ "/nc/284/0427-01" ] }, { "cite": "233 S.E.2d 554", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "pin_cites": [ { "page": "556" } ], "opinion_index": 0 }, { "cite": "292 N.C. 461", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570182 ], "year": 1977, "pin_cites": [ { "page": "464" } ], "opinion_index": 0, "case_paths": [ "/nc/292/0461-01" ] }, { "cite": "334 S.E.2d 765", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "770" } ], "opinion_index": 0 }, { "cite": "314 N.C. 498", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4687552 ], "year": 1985, "pin_cites": [ { "page": "506" } ], "opinion_index": 0, "case_paths": [ "/nc/314/0498-01" ] }, { "cite": "386 S.E.2d 191", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "194" } ], "opinion_index": 0 }, { "cite": "325 N.C. 677", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2490196 ], "year": 1989, "pin_cites": [ { "page": "682" } ], "opinion_index": 0, "case_paths": [ "/nc/325/0677-01" ] }, { "cite": "417 S.E.2d 489", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1992, "pin_cites": [ { "page": "493-94" }, { "page": "494" } ], "opinion_index": 0 }, { "cite": "331 N.C. 583", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2497387 ], "weight": 2, "year": 1992, "pin_cites": [ { "page": "589" }, { "page": "589" } ], "opinion_index": 0, "case_paths": [ "/nc/331/0583-01" ] }, { "cite": "265 S.E.2d 164", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "169" } ], "opinion_index": 0 }, { "cite": "300 N.C. 71", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559773 ], "year": 1980, "pin_cites": [ { "page": "78-79" } ], "opinion_index": 0, "case_paths": [ "/nc/300/0071-01" ] }, { "cite": "231 S.E.2d 882", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "292 N.C. 70", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567415 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/nc/292/0070-01" ] }, { "cite": "233 S.E.2d 538", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "292 N.C. 406", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569880 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/nc/292/0406-01" ] }, { "cite": "183 S.E.2d 553", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "opinion_index": 0 }, { "cite": "279 N.C. 398", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569206 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/nc/279/0398-01" ] }, { "cite": "189 S.E.2d 235", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "281 N.C. 415", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575271 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/nc/281/0415-01" ] }, { "cite": "203 S.E.2d 786", "category": 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"casebody": { "judges": [], "parties": [ "STATE OF NORTH CAROLINA v. JAMES JONES" ], "opinions": [ { "text": "FRYE, Justice.\nDefendant was indicted for the first-degree murder of Carolyn Britt. He was tried noncapitally by a jury, found guilty as charged, and sentenced to a mandatory term of life imprisonment. Defendant appealed to this Court asserting six assignments of error. We find no reversible error.\nThe evidence presented at trial tended to show the following facts and circumstances. Defendant lived in Red Springs with his girlfriend of fifteen years, Patricia Strickland, and their son, Adolph Strickland. In addition, defendant was involved in an ongoing intimate relationship with Carolyn Britt.\nOn 5 January 1992, defendant and Britt arranged to meet on a dirt road in the Wilcox Road area north of Lumberton. At approximately 5:00 p.m., defendant arrived and backed his Subaru into a wooded area off the road. About ten minutes later, Britt arrived and parked her Pontiac Grand Prix in front of defendant\u2019s vehicle. The two got into the front seat of Britt\u2019s vehicle and began talking. Defendant had a .38 caliber pistol in his possession. After talking and drinking some beer, defendant and Britt \u201cdecided to make love\u201d and at that point moved to the back seat of the vehicle. Defendant laid his pistol on the front seat of the Pontiac.\nDefendant testified that approximately two hours had elapsed from the time he and Britt met and when he noticed the overhead light come on in the Pontiac. Defendant saw a man standing at the opened door of the automobile. Defendant described the man as an Indian approximately thirty years old. Defendant further testified that the man had a pistol in his hand and told defendant \u201cto get out, get out.\u201d Defendant exited the Pontiac and began to walk toward his Subaru when he heard two gunshots.\nDefendant testified that he returned to Britt\u2019s automobile and found her slumped over in the back seat with her face covered in blood but at this point did not know she was dead. There was no sign of the Indian male or the pistol defendant had earlier placed in the front seat. Defendant got into the driver\u2019s side of Britt\u2019s Pontiac and began driving toward Southeastern General Hospital. The window on the driver\u2019s side had been shattered and glass covered the front seat. Defendant testified that while on his way to the hospital he thought he heard Britt from the back seat, so he looked around, and \u201cthe next thing [he] knew\u201d the Pontiac \u201chit something,\u201d at which point he became unconscious.\nTrooper H.L. Covington testified that when he arrived at the scene he found rescue personnel attending to defendant who was \u201csomewhat trapped\u201d in the front seat of the automobile. Defendant was taken to Southeastern General Hospital. Covington further testified that he found the victim\u2019s body in the back seat of the automobile with a bullet hole in her right torso and another behind her right eye. There appeared to be traces of gunpowder around her eye.\nOfficer Franklin Lovette investigated the case for the Robeson County Sheriff\u2019s Department. Lovette testified that as part of the murder investigation he spoke briefly with defendant at the hospital, at which time defendant requested an attorney before making a statement. Lovette also testified that a search of defendant\u2019s Subaru revealed a box of .38 caliber ammunition on the front seat. Six bullets were missing from the box.\nAn autopsy revealed two bullet wounds, one to the head, which penetrated the lower part of the brain and would have caused death almost immediately, and another to the abdomen. In addition, there were two lacerations on the victim\u2019s head and abrasions and lacerations on her legs. There were gunpowder marks on the head wound which indicated the pistol was fired from close range.\nEugene Bishop, Special Agent with the State Bureau of Investigation (SBI), testified that he examined the box of ammunition taken from defendant\u2019s Subaru, the fired bullet taken from the victim\u2019s Pontiac which was determined to have passed through the victim\u2019s abdomen, and the victim\u2019s sweater. Bishop concluded that the bullet taken from the victim\u2019s vehicle was either fired from a .38 caliber or .357 caliber pistol. He found gunshot residue on the victim\u2019s sweater that would indicate the pistol was fired from less than two feet away.\nErnest Roger Peele of the Federal Bureau of Investigation (FBI) testified as an expert witness in the field of bullet lead composition. Peele stated that the bullet taken from the victim\u2019s Pontiac was consistent in composition with the bullets from the box of ammunition found in the search of defendant\u2019s vehicle.\nAt trial, the State presented three statements given by defendant on separate occasions through his attorney. In the first statement, made nineteen days after the incident, defendant described the alleged murderer as being about thirty or thirty-two years old, five feet, ten inches tall, and weighing 150 pounds. In his second statement, given about a month later, defendant admitted he \u201cownfed] guns and had a gun in the car on January 5, 1992.\u201d In the third statement, defendant said that his \u201c.38 caliber revolver was on the front passenger seat\u201d in Britt\u2019s automobile.\nRuby Dale Chavis, a co-worker of the victim, testified that the victim, in a conversation discussing her relationship with defendant, stated that defendant \u201cwas very, very jealous,\u201d that she was \u201ctired of his junk,\u201d and that \u201cshe was thinking about breaking up with him.\u201d\nDefendant\u2019s son, Michael Chavis, testified for the State that he had spoken with his father in the hospital a couple of days after the shooting. When he asked defendant what had happened to the .38 caliber pistol, his father replied that \u201che had gotten rid of it.\u201d Further, when Michael asked his father if he knew who had shot Britt, his father nodded his head yes. Also, when the State asked Michael on direct examination, \u201cWhile you were at the hospital talking to your father, did he ask you about how tall you were and how much you weighed?\u201d, Michael responded \u201cYes.\u201d\nDefendant first assigns error to the trial court\u2019s denial of his motion to dismiss made at the close of all the evidence.\nUpon a motion to dismiss in a criminal case,\n[a]ll of the evidence, whether competent or incompetent, must be considered in the light most favorable to the state, and the state is entitled to every reasonable inference therefrom. State v. Witherspoon, 293 N.C. 321, 237 S.E.2d 822 (1977); State v. Poole, 285 N.C. 108, 203 S.E.2d 786 (1974). Contradictions and discrepancies are for the jury to resolve and do not warrant dismissal. State v. Witherspoon, supra; State v. Bolin, 281 N.C. 415, 189 S.E.2d 235 (1972). In considering a motion to dismiss, it is the duty of the court to ascertain whether there is substantial evidence of each essential element of the offense charged. State v. Allred, 279 N.C. 398, 183 S.E.2d 553 (1971). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Thompson v. Wake County Bd. of Educ., 292 N.C. 406, 233 S.E.2d 538 (1977); Com\u2019r. of Insurance v. Fire Insurance Rating Bureau, 292 N.C. 70, 231 S.E.2d 882 (1977).\nState v. Smith, 300 N.C. 71, 78-79, 265 S.E.2d 164, 169 (1980); see also State v. McAvoy, 331 N.C. 583, 589, 417 S.E.2d 489, 493-94 (1992).\nDefendant argues in support of his motion to dismiss that the State has not presented evidence sufficient to show that he was the person who committed the homicide. Defendant was charged with murder in the first degree which is defined as the unlawful killing of another human being with malice and with premeditation and deliberation. McAvoy, 331 N.C. at 589, 417 S.E.2d at 494. \u201cThe test that the trial court must apply is whether there is substantial evidence \u2014 either direct, circumstantial, or both \u2014 to support a finding that the crime charged has been committed and that defendant was the perpetrator.\u201d State v. Clark, 325 N.C. 677, 682, 386 S.E.2d 191, 194 (1989).\nThe evidence taken in the light most favorable to the State shows that defendant and the victim met in a remote area on the evening of 5 January 1992; that defendant had in his possession a .38 caliber pistol and a box of .38 caliber ammunition; that defendant carried the pistol with him into the victim\u2019s automobile; and that sometime during the meeting the victim was shot at close range, once in the head and once in the abdomen. An SBI Agent testified that the bullet taken from the automobile which had passed through the victim\u2019s abdomen was either a .38 or .357 caliber bullet and that the gunpowder residue found on the victim and her sweater indicated the pistol was fired at close range. Defendant\u2019s clothes contained no gunpowder residue, but evidence showed that the clothes had been cleaned prior to being given to law enforcement officers to be examined.\nIn addition, the State\u2019s evidence included three statements given over the course of several months. All of the statements were prepared by defendant\u2019s attorney, signed by defendant, and submitted to investigators. In the first statement, defendant did not mention having a pistol in his possession on the night in question; in the second statement defendant admitted owning guns and having one with him that night but did not specify the caliber. It was not until the final statement that defendant admitted possessing a .38 caliber revolver. Also, in his first statement defendant provided a description of the alleged murderer as being an Indian male approximately thirty years of age, about five feet, ten inches in height, weighing 150 pounds, and wearing what appeared to be a \u201cclosed jacket dark in color and darker pants.\u201d Defendant did not specify the color of the pants or jacket. At trial, however, defendant\u2019s description of the alleged murderer provided that the pants were dark blue and the jacket was light blue. The differences in the statements and the omission of key information\u2014 the color of the clothing \u2014 when taken in the light most favorable to the State, would permit, but not require, a jury to conclude that defendant tried to hide the existence of his pistol from police and that he had fabricated his description of an alleged murderer.\nFurther, the testimony of State\u2019s witness Ruby Chavis would permit, but not require, a jury to conclude that defendant and the victim were having serious problems in their relationship. Also, defendant\u2019s son, Michael Chavis, testified that when he asked his father what had happened to his .38 caliber pistol, defendant responded that \u201che had gotten rid of it.\u201d When Michael asked defendant if he knew who shot the victim, he nodded his head yes. Additionally, Michael responded affirmatively to the prosecutor\u2019s question: \u201cWhile you were at the hospital talking to your father, did he ask you about how tall you were and how much you weighed?\u201d This evidence would permit a jury to conclude that defendant had disposed of the murder weapon and was trying to determine his son\u2019s height and weight in order to provide the police with a description of someone else as the murderer.\nViewing all of the evidence in the light most favorable to the State, we conclude that there is substantial evidence which would permit a reasonable jury to find that defendant was the perpetrator of the homicide. Therefore, the trial court did not err in denying defendant\u2019s motion to dismiss.\nIn his second assignment of error, defendant contends that the trial court erred in denying his request to give the following instruction:\nThe defendant in this case did not give a statement directly to a law enforcement officer, did not submit to a polygraph examination, and did not submit to an examination under hypnosis. The law in North Carolina gives him this privilege. The same law also assures him that his decision not to do so creates no presumption against him. Therefore, such evidence, if any, is not to influence your decision in any way.\nDefendant contends that the refusal to give the requested jury instruction constitutes prejudicial error.\nThe law clearly provides that where \u201ca specifically requested jury instruction is proper and supported by the evidence, the trial court must give the instruction, at least in substance.\u201d State v. Ford, 314 N.C. 498, 506, 334 S.E.2d 765, 770 (1985). \u201cThe purposes of the trial judge\u2019s charge to the jury are to clarify the issues, eliminate extraneous matters and declare and explain the law arising on the evidence.\u201d State v. Cousins, 292 N.C. 461, 464, 233 S.E.2d 554, 556 (1977).\nDefendant admits finding no authority dealing directly with his tendered instruction but contends that \u201cthe factual and evidentiary matters in the present case presented an unusual situation\u201d requiring special instructions. Defendant specifically argues that the tendered instruction was necessary because of the State\u2019s repeated references to defendant\u2019s exercise of his right to counsel and his refusal to submit to a polygraph test or to undergo hypnosis. After a thorough review of the trial transcript, including those excerpts cited by defendant, we conclude that most of the alleged improper references do not constitute evidence supporting the tendered instruction. We first note that many of the excerpts cited by defendant do not contain any mention of defendant\u2019s assertion of his right to counsel or his refusal to submit to a polygraph test or to undergo hypnosis. Secondly, a number of the references were objected to by defendant and his objections were sustained. Further, at one point, the jury was instructed, at defendant\u2019s request, to disregard the State\u2019s line of questioning. \u201cWhen such proper instructions are given when the evidence is admitted, the judge is not required to repeat these instructions in the charge.\u201d State v. Crews, 284 N.C. 427, 440, 201 S.E.2d 840, 849 (1973).\nAdditional references which were not objected to by defendant occurred during questioning regarding three statements from defendant submitted to investigators by his attorney. The questioning by the State concerned the manner in which the statements were given to investigators and the inconsistencies and omissions among the statements. The manner in which defendant prepared these statements and their content had independent significance apart from the fact that they necessarily revealed defendant\u2019s use of an attorney in dealing with the investigators. Nonetheless, a cautionary instruction would not have been improper in light of the fact that the State\u2019s questioning did include references to defendant\u2019s assertion of his right to counsel.\nAssuming arguendo, that the trial court erred by not submitting the tendered instruction, we conclude that defendant was not prejudiced by the error. First, a number of the allegedly improper references occurred during defendant\u2019s own cross-examination testimony where, responding to questions from the State that did not involve defendant\u2019s right to counsel, defendant voluntarily made reference to his use of an attorney. Secondly, by repeatedly sustaining defendant\u2019s objections to the State\u2019s references and, on one occasion instructing the jury to disregard the State\u2019s line of questioning, the trial judge conveyed to the jury that evidence of defendant\u2019s assertion of his right to counsel and his refusal to submit to a polygraph test or to undergo hypnosis was not to affect its decision. We are convinced that failure to give the proffered instruction was not prejudicial error. N.C.G.S. \u00a7 15A-1443(a) (1988).\nIn his third assignment of error, defendant argues that the trial judge erred when he granted the State\u2019s motion to sequester defense witnesses and then ultimately sequestered all of the witnesses with the exception of the State\u2019s lead officer, Detective Lovette. Under N.C.G.S. \u00a7 15A-1225 and N.C.G.S. \u00a7 8C-1, Rule 615, a trial judge may, upon a motion of a party or upon his own motion, order witnesses sequestered. This rule does not authorize exclusion of \u201ca person whose presence is shown by a party to be essential to the presentation of his cause,\u201d or \u201ca person whose presence is determined by the court to be in the interest of justice.\u201d N.C.G.S. \u00a7 8C-1, Rule 615(3), (4) (1992). Further,\n[a] trial court has discretion in a criminal case to sequester witnesses. N.C.G.S. \u00a7 15A-1226 (1988). See also State v. Stanley, 310 N.C. 353, 357, 312 S.E.2d 482, 485 (1984). A ruling within the trial court\u2019s discretion should be reversed only upon a showing that the ruling could not have been the result of a reasoned decision. Stanley, 310 N.C. at 357, 312 S.E.2d at 485.\nState v. Gay, 334 N.C. 467, 487-88, 434 S.E.2d 840, 851 (1993).\nHere the State requested that defendant\u2019s witnesses be sequestered. Defendant\u2019s position was that no sequestration was needed but, if ordered, should be universal to include both witnesses for the defense and the State. The State did not object to universal sequestration but requested an exception for its lead officer under Rule 615(3), asserting that Officer Lovette\u2019s presence was essential to the presentation of the State\u2019s case. Defendant argued that no exception was needed and allowing Officer Lovette to remain while all other witnesses were sequestered \u201cimplies the Court\u2019s approval of the witness\u2019 veracity.\u201d The trial court, believing that Officer Lovette\u2019s presence was essential to the presentation of the State\u2019s case, ordered the sequestering of all witnesses with the exception of Officer Lovette.\nDefendant now argues that allowing Officer Lovette to remain in the courtroom when all other witnesses were sequestered \u201cconstituted an endorsement of this officer\u2019s veracity\u201d at a critical point in the trial and thus amounted to an abuse of discretion. In support of his contention that the trial court abused its discretion, defendant argues that, on direct examination by the State, Officer Lovette testified that defendant\u2019s clothes had been given to him \u201cwashed and cleaned.\u201d However, when defendant recalled Officer Lovette as an adverse defense witness, Lovette testified that he did not say the clothes had been \u201cwashed\u201d but that they had been \u201ccleaned.\u201d Defendant alleges Officer Lovette contradicted himself in his testimony, therefore his veracity would have been suspect before the jury.\nWe fail to grasp a significant distinction between the.terms \u201cwashed and cleaned\u201d and \u201ccleaned\u201d in the context of this case and defendant does not suggest one. In any event, this change in the officer\u2019s testimony is not sufficient evidence of prejudice to justify reversing a trial court\u2019s discretionary ruling allowing an officer to remain in the courtroom as a person essential to the presentation of the State\u2019s case. See N.C.G.S. \u00a7 8C-1, Rule 615(3).\nIn his fourth assignment of error, defendant argues that the trial court erred by allowing Ruby Chavis to testify to statements made by the victim because such statements were not relevant to any issue before the court. Chavis testified that shortly before the victim\u2019s death the victim told her that defendant was \u201cvery, very jealous,\u201d that \u201cshe was thinking about breaking up with him,\u201d and that \u201cshe was tired of his junk.\u201d Defendant concedes that this testimony, if relevant, would ordinarily be admissible, either as nonhearsay, because it is not offered into evidence to prove the truth of the matter asserted, or under the state of mind exception to the hearsay rule. See N.C.G.S. \u00a7 8C-1, Rules 801(c), 803(3) (1992). Defendant argues here the testimony is irrelevant and should have been excluded because he was not aware that the statements had been made.\nUnder Rule 401 of the North Carolina Rules of Evidence, \u201c \u2018 [relevant evidence\u2019 means evidence having a 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 (1992). Further, under Rule 402, all relevant evidence is admissible. N.C.G.S. \u00a7 8C-1, Rule 402 (1992).\nWe have held that \u201cevidence tending to show the state of mind of the victim is admissible as long as the declarant\u2019s state of mind is relevant to the case.\u201d State v. Cummings, 326 N.C. 298, 389 S.E.2d 66 (1990) (victim\u2019s statements made three weeks before her disappearance about her husband\u2019s threats were admitted because the victim\u2019s state of mind was relevant to the issue of her relationship with her husband); see also State v. McHone, 334 N.C. 627, 435 S.E.2d 296 (1993) (victim\u2019s conversations with three witnesses related directly to the victim\u2019s fear of defendant and were admissible to show the victim\u2019s state of mind at the time the conversations took place), cert. denied, - U.S. -, 128 L. E. 2d 220 (1994); State v. Stager, 329 N.C. 278, 406 S.E.2d 876 (1991) (victim\u2019s recorded statements were relevant because they tended to disprove the normal loving relationship that defendant contended existed between the two). Also, \u201cany evidence offered to shed light upon the crime should be admitted by the trial court.\u201d State v. Meekins, 326 N.C. 689, 696, 392 S.E.2d 346, 349 (1990).\nIn this case, the victim\u2019s statements that defendant \u201cwas very, very jealous,\u201d that \u201cshe was thinking about breaking up with him,\u201d and that \u201cshe was tired of his junk,\u201d were evidence of her state of mind regarding her relationship with defendant. These statements rebutted defendant\u2019s testimony on cross-examination that the victim \u201cseemed to be perfectly happy with the relationship.\u201d We hold that the victim\u2019s state of mind regarding the nature of her relationship with defendant was relevant in this case to show that, contrary to testimony by defendant, the victim and defendant were having problems in their relationship. This is true, notwithstanding that defendant may not have known the statements were made. Therefore, the trial court did not err in admitting the testimony.\nIn his fifth assignment of error, defendant argues that the trial court improperly allowed testimony of Ernest Roger Peele as an expert in the field of bullet lead composition. Rule 702 of the North Carolina Rules of Evidence provides for expert testimony and states that:\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.\nN.C.G.S. \u00a7 8C-1, Rule 702 (1992).\nDefendant argues that Peele was not qualified to testify as an expert witness in this case. However,\n[i]t is not necessary that an expert be experienced with the identical subject in a particular case or that the expert be a specialist, licensed, or even engaged in a specific profession. Furthermore, the trial judge is afforded wide latitude of discretion when making a determination about the admissibility of expert testimony.\nState v. Bullard, 312 N.C. 129, 140, 322 S.E.2d 370, 376 (1984) (citations omitted). The trial court\u2019s finding that a witness is qualified as an expert will not be reversed unless there is no evidence to support it. Id.\nThe State presented evidence that Peele received a Bachelor of Science Degree in Physics from The University of North Carolina and had worked in the Elemental and Metals Analysis Unit of the FBI Laboratory for over thirteen years. Peele testified that he received a Master\u2019s Degree in Public Administration from Virginia Commonwealth University and that during the last twelve years most of his time at the FBI Laboratory had been spent examining bullets and determining the composition of bullets or pieces of lead. We conclude that there was evidence to support the trial court\u2019s finding that Peele was qualified to testify as an expert in the field of bullet lead composition. Therefore, the trial court did not abuse its discretion and this assignment of error is rejected.\nFinally, defendant argues that the trial court committed reversible error in sustaining the State\u2019s objections to defendant\u2019s proffered evidence of the circumstances surrounding the sale of a farm owned by the victim\u2019s family after her death. Defendant presented testimony that the victim had purchased life insurance to take care of her parents and was considering making her brother a beneficiary. There was also evidence that her family\u2019s farm was to be sold around the time of her death. Defendant made an offer of proof that: (1) his witness Lloyd Meekins would have testified that he was contracted to sell the farm and the sale was held on 4 January 1992, but the day after the murder the sale was cancelled; and (2) his witness Hobert Britt would have testified that he was the last and highest bidder at the sale and that his deposit was refunded to him. Defendant argues that this scenario shows motive of a possible third party in the homicide of Britt.\nWhen evidence is tendered for the purpose of showing that someone other than defendant was the perpetrator of the offense in question, the evidence is relevant and admissible if it does more than create an inference or conjecture that defendant was not the perpetrator. See, e.g., State v. McElrath, 322 N.C. 1, 14, 360 S.E.2d 442, 449 (1988) (map relevant and admissible because it \u201ccasts doubt upon the State\u2019s evidence that defendant was the killer and suggests instead an alternative scenario for the victim\u2019s ultimate demise\u201d); State v. Cotton, 318 N.C. 663, 667, 351 S.E.2d 277, 279-80 (1987) (evidence that a person with similar features committed charged offense and two other offenses in similar manner is relevant as tending to implicate the other party and be inconsistent with defendant\u2019s silence). Nevertheless, it is well established that in order to be both relevant and admissible such evidence must point directly to the guilt of some specific other person or persons. State v. Brewer, 325 N.C. 550, 561, 386 S.E.2d 569, 575, cert. denied, 495 U.S. 951, 109 L. Ed. 2d 541 (1990). In the instant case, the tendered evidence does not point directly or indirectly to the guilt of any other specific person or persons for the homicide. The proffered evidence creates, at most, conjecture that defendant was not the perpetrator. Therefore, the trial court did not err in sustaining the State\u2019s objection to the admission of this evidence.\nIn defendant\u2019s trial we find no error.\nNO ERROR.", "type": "majority", "author": "FRYE, Justice." } ], "attorneys": [ "Michael F. Easley, Attorney General, by Clarence J. DelForge, III, Assistant Attorney General, for the State.", "Cabell J. Regan for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. JAMES JONES\nNo. 445A93\n(Filed 29 July 1994)\n1. Homicide \u00a7 230 (NCI4th)\u2014 noncapital first-degree murder \u2014 sufficiency of evidence\nThe trial court did not err in a noncapital first-degree murder prosecution by denying defendant\u2019s motion to dismiss where the evidence taken in the light most favorable to the State shows that defendant and the victim met in a remote area on the evening of 5 January 1992; defendant had in his possession a .38 caliber pistol and a box of .38 caliber ammunition; defendant carried the pistol with him into the victim\u2019s automobile; sometime during the meeting the victim was shot at close range, once in the head and once in the abdomen; the bullet taken from the automobile which had passed through the victim\u2019s abdomen was either a .38 or .357 caliber and the gunpowder residue found on the victim and her sweater indicated the pistol was fired at close range; defendant\u2019s clothes contained no gunpowder residue, but evidence showed that the clothes had been cleaned prior to being given to law enforcement officers to be examined; differences in the defendant\u2019s statements and the omission of key information would permit but not require a jury to conclude that defendant tried to hide the existence of his pistol from police and that he had fabricated his description of an alleged murderer; testimony of a State\u2019s witness would permit but not require a jury to conclude that defendant and the victim were having serious problems in their relationship; and there was evidence which would permit a jury to conclude that defendant had disposed of the murder weapon and was trying to determine his son\u2019s height and weight in order to provide the police with a description of someone else as the murderer.\nAm Jur 2d, Homicide \u00a7\u00a7 425 et seq.\n2. Evidence and Witnesses \u00a7 1079 (NCI4th)\u2014 noncapital first-degree murder \u2014 requested instructions \u2014 defendant\u2019s refusal to give a statement, take a polygraph, or be hypnotized \u2014 denied\u2014no prejudice\nThere was no prejudicial error in a first-degree murder prosecution from the trial court\u2019s denial of defendant\u2019s request for an instruction where defendant specifically argued that the tendered instruction was necessary because of the State\u2019s repeated references to his exercise of his right to counsel and his refusal to submit to a polygraph test or to undergo hypnosis, but most of the alleged improper references do not constitute evidence supporting the tendered instruction; the manner in which defendant prepared statements submitted to investigators by his attorney and the content of the statements had independent significance apart from the fact that they necessarily revealed defendant\u2019s use of an attorney in dealing with the investigators; and there was no prejudicial error because a number of the allegedly improper references occurred during defendant\u2019s own cross-examination testimony where, responding to questions that did not involve his right to counsel, defendant voluntarily made reference to his use of an attorney; and the court conveyed to the jury that defendant\u2019s assertion of his right to counsel and his refusal to submit to a polygraph or to undergo hypnosis was not to affect its decision by repeatedly sustaining defendant\u2019s objections and on one occasion by instructing the jury to disregard the State\u2019s line of questioning.\nAm Jur 2d, Trial \u00a7 1184.\n3. Evidence and Witnesses \u00a7 2477 (NCI4th)\u2014 noncapital murder \u2014 sequestration of witnesses \u2014 exception for lead officer \u2014 no abuse of discretion\nThere was no abuse of discretion in a noncapital first-degree murder prosecution where the State requested that defendant\u2019s witnesses be sequestered, defendant contended that sequestration should be universal if ordered, and the State was granted an exception for its lead officer under N.C.G.S. \u00a7 8C-1, Rule 615(3). Although defendant contends that this constituted an endorsement of the officer\u2019s veracity and points to a change in the officer\u2019s testimony, the Supreme Court could not see a significant distinction in the change in testimony and it was not sufficient evidence of an abuse of discretion.\nAm Jur 2d, Trial \u00a7 61.\nPrejudicial effect of improper failure to exclude from courtroom or to sequester or separate state\u2019s witnesses in criminal case. 74 ALR4th 705.\n4. Evidence and Witnesses \u00a7 876 (NCI4th)\u2014 noncapital first-degree murder \u2014 statements by victim \u2014 hearsay\u2014state of mind exception\nThe trial court did not err in a noncapital first-degree murder prosecution by admitting testimony that the victim had said before her death that defendant was \u201cvery, very jealous,\u201d that \u201cshe was thinking about breaking up with him,\u201d and that she was \u201ctired of his junk.\u201d The statements were evidence of the victim\u2019s state of mind and her state of mind regarding her relationship with defendant was relevant to show that the victim and defendant were having problems in their relationship.\nAm Jur 2d, Evidence \u00a7 667.\n5. Evidence and Witnesses \u00a7 2227 (NCI4th)\u2014 noncapital first-degree murder \u2014 bullet lead composition \u2014 qualification of expert\nThe trial court did not abuse its discretion in a noncapital first-degree murder prosecution by admitting a witness to testify as an expert in the field of bullet lead composition where the witness had received a Bachelor of Science Degree in Physics from The University of North Carolina; had worked in the Elemental and Metals Analysis Unit of the FBI Laboratory for over thirteen years; had received a Master\u2019s Degree in Public Administration from Virginia Commonwealth University; and during the last twelve years most of his time at the FBI Laboratory had been spent examining bullets and determining the composition of bullets or pieces of lead.\nAm Jur 2d, Expert and Opinion Evidence \u00a7\u00a7 303 et seq.\n6. Evidence and Witnesses \u00a7 116 (NCI4th)\u2014 noncapital first-degree murder \u2014 evidence pointing to guilt of another\u2014 mere conjecture\nThe trial court did not err in a noncapital first-degree murder prosecution by sustaining the State\u2019s objection to the admission of evidence of the circumstances surrounding the sale of a farm owned by the victim\u2019s family after her death where the evidence did not point directly or indirectly to the guilt of any other specific person or persons but created, at most, conjecture that defendant was not the perpetrator.\nAm Jur 2d, Evidence \u00a7 587.\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 Barnette, J., at the 17 May 1993 Criminal Session of Superior Court, Robeson County. Heard in the Supreme Court 12 May 1994.\nMichael F. Easley, Attorney General, by Clarence J. DelForge, III, Assistant Attorney General, for the State.\nCabell J. Regan for defendant-appellant." }, "file_name": "0198-01", "first_page_order": 226, "last_page_order": 239 }