{ "id": 793201, "name": "STATE OF NORTH CAROLINA v. PAUL L. THIBODEAUX", "name_abbreviation": "State v. Thibodeaux", "decision_date": "1995-07-28", "docket_number": "No. 274A94", "first_page": "53", "last_page": "66", "citations": [ { "type": "official", "cite": "341 N.C. 53" } ], "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": "60 ALR3d 333", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "opinion_index": -1 }, { "cite": "25 ALR4th 419", "category": "reporters:specialty", "reporter": "A.L.R. 4th", "opinion_index": -1 }, { "cite": "89 ALR3d 230", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "opinion_index": -1 }, { "cite": "368 S.E.2d 377", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "opinion_index": 0 }, { "cite": "322 N.C. 349", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2515495 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/nc/322/0349-01" ] }, { "cite": "93 L. Ed. 2d 166", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1986, "opinion_index": 0 }, { "cite": "479 U.S. 871", "category": "reporters:federal", "reporter": "U.S.", "year": 1986, "opinion_index": 0 }, { "cite": "340 S.E.2d 673", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "315 N.C. 398", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4720550 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc/315/0398-01" ] }, { "cite": "372 S.E.2d 523", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "527" } ], "opinion_index": 0 }, { "cite": "323 N.C. 279", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2562603 ], "year": 1988, "pin_cites": [ { "page": "283" } ], "opinion_index": 0, "case_paths": [ "/nc/323/0279-01" ] }, { "cite": "391 S.E.2d 171", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "174" } ], "opinion_index": 0 }, { "cite": "326 N.C. 542", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5305171 ], "year": 1990, "pin_cites": [ { "page": "548" } ], "opinion_index": 0, "case_paths": [ "/nc/326/0542-01" ] }, { "cite": "1995 WL 326523", "category": "reporters:specialty_west", "reporter": "WL", "year": 1995, "pin_cites": [ { "page": "11", "parenthetical": "citing State v. Agee, 326 N.C. 542, 548, 391 S.E.2d 171, 174 (1990)" } ], "opinion_index": 0 }, { "cite": "99 L. Ed. 2d 912", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1988, "opinion_index": 0 }, { "cite": "485 U.S. 1036", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 13312, 13445, 13287, 13545, 13740, 13965, 13233, 14131, 13397, 13238, 13399, 13750, 13849, 13725 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/us/485/1036-05", "/us/485/1036-12", "/us/485/1036-11", "/us/485/1036-04", "/us/485/1036-06", "/us/485/1036-14", "/us/485/1036-08", "/us/485/1036-10", "/us/485/1036-01", "/us/485/1036-02", "/us/485/1036-13", "/us/485/1036-03", "/us/485/1036-09", "/us/485/1036-07" ] }, { "cite": "340 S.E.2d 84", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1986, "pin_cites": [ { "page": "91" } ], "opinion_index": 0 }, { "cite": "315 N.C. 626", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4714364 ], "weight": 2, "year": 1986, "pin_cites": [ { "page": "637" } ], "opinion_index": 0, "case_paths": [ "/nc/315/0626-01" ] }, { "cite": "362 S.E.2d 244", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "247", "parenthetical": "quoting State v. Morgan, 315 N.C. 626, 637, 340 S.E.2d 84, 91 (1986)" } ], "opinion_index": 0 }, { "cite": "321 N.C. 201", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2569839 ], "year": 1987, "pin_cites": [ { "page": "206", "parenthetical": "quoting State v. Morgan, 315 N.C. 626, 637, 340 S.E.2d 84, 91 (1986)" } ], "opinion_index": 0, "case_paths": [ "/nc/321/0201-01" ] }, { "cite": "348 S.E.2d 791", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "793" } ], "opinion_index": 0 }, { "cite": "318 N.C. 400", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4731290 ], "year": 1986, "pin_cites": [ { "page": "403" } ], "opinion_index": 0, "case_paths": [ "/nc/318/0400-01" ] }, { "cite": "340 S.E.2d 383", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "389" } ], "opinion_index": 0 }, { "cite": "315 N.C. 556", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4715095 ], "year": 1986, "pin_cites": [ { "page": "566" } ], "opinion_index": 0, "case_paths": [ "/nc/315/0556-01" ] }, { "cite": "182 S.E.2d 373", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "pin_cites": [ { "page": "377" } ], "opinion_index": 0 }, { "cite": "279 N.C. 313", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566932 ], "year": 1971, "pin_cites": [ { "page": "320" } ], "opinion_index": 0, "case_paths": [ "/nc/279/0313-01" ] }, { "cite": "180 S.E.2d 111", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "pin_cites": [ { "page": "114-15" } ], "opinion_index": 0 }, { "cite": "278 N.C. 497", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560771 ], "year": 1971, "pin_cites": [ { "page": "502" } ], "opinion_index": 0, "case_paths": [ "/nc/278/0497-01" ] }, { "cite": "49 L. Ed. 2d 1211", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1976, "opinion_index": 0 }, { "cite": "428 U.S. 904", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6184738, 6185094, 6184392, 6185357, 6183598, 6183984, 6185553, 6184594, 6184179, 6183446, 6184922, 6183803 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/us/428/0904-08", "/us/428/0904-10", "/us/428/0904-06", "/us/428/0904-11", "/us/428/0904-02", "/us/428/0904-04", "/us/428/0904-12", "/us/428/0904-07", "/us/428/0904-05", "/us/428/0904-01", "/us/428/0904-09", "/us/428/0904-03" ] }, { "cite": "220 S.E.2d 600", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1975, "pin_cites": [ { "page": "610" } ], "opinion_index": 0 }, { "cite": "288 N.C. 553", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570287 ], "year": 1975, "opinion_index": 0, "case_paths": [ "/nc/288/0553-01" ] }, { "cite": "130 L. Ed. 2d 895", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1995, "opinion_index": 0 }, { "cite": "446 S.E.2d 298", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1994, "pin_cites": [ { "page": "311" } ], "opinion_index": 0 }, { "cite": "337 N.C. 243", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2550074 ], "year": 1994, "opinion_index": 0, "case_paths": [ "/nc/337/0243-01" ] }, { "cite": "440 S.E.2d 776", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "opinion_index": 0 }, { "cite": "335 N.C. 647", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2531405 ], "year": 1994, "opinion_index": 0, "case_paths": [ "/nc/335/0647-01" ] }, { "cite": "428 S.E.2d 167", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1993, "pin_cites": [ { "page": "176" } ], "opinion_index": 0 }, { "cite": "333 N.C. 467", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2549576 ], "year": 1993, "pin_cites": [ { "page": "482-83" } ], "opinion_index": 0, "case_paths": [ "/nc/333/0467-01" ] }, { "cite": "214 S.E.2d 742", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "opinion_index": 0 }, { "cite": "287 N.C. 303", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562627 ], "year": 1975, "opinion_index": 0, "case_paths": [ "/nc/287/0303-01" ] } ], "analysis": { "cardinality": 1159, "char_count": 31922, "ocr_confidence": 0.713, "pagerank": { "raw": 1.7925314445897932e-07, "percentile": 0.7151972952863275 }, "sha256": "0ea213ef708bdf47aa41ae4d97645947d872c486b6431c13f5d55febbde22e45", "simhash": "1:236ec062346bb5f7", "word_count": 5312 }, "last_updated": "2023-07-14T22:14:42.837437+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "STATE OF NORTH CAROLINA v. PAUL L. THIBODEAUX" ], "opinions": [ { "text": "MITCHELL, Chief Justice.\nDefendant, Paul L. Thibodeaux, was tried capitally upon a proper indictment for first-degree murder, robbery with a dangerous weapon, conspiracy to commit murder, and conspiracy to commit robbery with a dangerous weapon at the 29 November, 6 December, and 13 December 1993 Mixed Sessions of Superior Court, Cumberland County. The jury found defendant guilty of first-degree murder under the felony murder rule, guilty of robbery with a firearm, guilty of conspiracy to commit robbery with a firearm, and not guilty of conspiracy to commit murder. The trial court arrested judgment for the conviction of robbery with a firearm as that offense supported the first-degree murder conviction under the felony murder theory. Defendant was sentenced to life imprisonment for the first-degree murder conviction and ten years imprisonment for the conviction of conspiracy to commit robbery with a firearm, the sentences to run consecutively.\nThe State\u2019s evidence tended to show that on the morning of 2 July 1991, the body of Joseph Marshall was found on a dirt road off Highway 301 south of Fayetteville. The victim had numerous gunshot wounds to the right side of his head. The victim\u2019s green Cadillac was discovered some distance away. There was blood splattered in and around the car. The car was dusted for fingerprints and the only identifiable print belonged to LaVerne Van.\nThe victim owned rental property. Defendant and LaVerne Van rented a house from him on Campbell Avenue in Fayetteville, for which they paid $300.00 per month. Defendant rented the house using the name Paul Van.\nMs. Van testified that she had pled guilty to second-degree murder, robbery with a dangerous weapon, and conspiracy to commit murder in connection with the killing of Joseph Marshall. She had entered into a plea bargain with the State which required her to testify truthfully at defendant\u2019s trial and her sentencing on those offenses was continued pending the trial. Ms. Van testified that she had met defendant in Florida and had come to Fayetteville with him. On the way, defendant bought a .357-caliber revolver at a pawn shop in South Carolina. In Fayetteville, defendant had gone under the name Paul Van.\nShortly before the murder, defendant told Ms. Van he had no money for the July rent and he mentioned robbing a bank. She suggested that he rob the victim, Joseph Marshall, instead. Defendant later told her that he had called Marshall and asked him to come over to the house. Defendant said he would tell Marshall that he had done some work for someone else and needed to go see that person to get paid. Defendant asked Ms. Van if she would go with him and if she would shoot Marshall. When Marshall arrived, defendant told him they needed to go and get the rent money from someone else and they walked outside together. Later, defendant told MsL Van that he had borrowed some money from the victim.\nMs. Van and defendant then walked to a store and bought some beer. While drinking the beer, they continued to discuss robbing and killing Marshall. Defendant put a change of clothes for each of them in a bag with a bottle of water and the .357- caliber revolver. Marshall returned around 8:30 p.m. Defendant and Ms. Van left with Marshall to get the rent money. Ms. Van was riding on the right side of the back seat of the car. Defendant sat in the right front seat. Defendant directed Marshall to drive to a deserted area and they stopped on a small dirt road. Ms. Van heard a shot, jumped out of the car and began running. While running, Ms. Van heard several more shots. Ms. Van then got in the back seat of the car and defendant told her that Marshall was dead. They drove a short distance and dumped Marshall\u2019s body out of the car. Defendant took the victim\u2019s wallet which contained $90.00. Defendant also took a ring from the victim\u2019s body.\nDefendant cleaned the car and left it on the side of the road. Defendant and Ms. Van walked behind a church, where they washed the victim\u2019s blood off with water from the bottle defendant had in his bag. They changed clothes and defendant left their bloody clothes in a dumpster.\nMs. Van identified the defendant\u2019s .357-caliber revolver as the murder weapon. The revolver had her name and defendant\u2019s name burned into the handle. She also identified a picture of defendant showing him wearing a shoulder holster containing the same revolver.\nBoth on direct and cross-examination, Ms. Van admitted that she told the police several different stories before finally telling them the truth. Ms. Van stated that she had told the various other stories to the police at defendant\u2019s suggestion and because she was afraid of defendant. She also admitted to being arrested several months before the killing for possession of a sawed-off shotgun.\nDon Smith of the Cumberland County Sheriff\u2019s Office testified that he talked to defendant on 4 July 1991. Defendant told Smith an elaborate story about various contacts he had had with the victim around the time of the killing. The next day Smith participated in a permissive search of defendant\u2019s house. The search revealed defendant\u2019s .357-caliber revolver, the picture of defendant with the revolver in a shoulder holster, and a box of cartridges. There was also one spent shell casing in an ashtray. On 8 July 1991, Smith saw defendant again when he and other officers went to defendant\u2019s house to take him for a polygraph test. Smith and another officer stayed at the house to talk to LaVerne Van. At that time she implicated defendant in the murder. Smith also testified that a videotaped interview with LaVerne Van, which had been taken on 18 November 1991, was generally consistent with her in-court testimony.\nAfter being arrested for the murder, defendant made a statement to the police. In his statement, defendant said that he and a third person, not LaVerne Van, had killed Marshall. The other person shot Marshall, took the $90.00 from his wallet and gave defendant $45.00.\nBy stipulation of counsel, a ballistics report was read to the jury. Generally, the conclusion was that the bullets found in the gun which had been recovered from defendant\u2019s residence and fragments from the bullets which had killed the victim were sufficiently similar that it could be said that they would be from the \u201csame box of cartridges or boxes of the same type and manufacture which are packaged on or about the same date.\u201d\nThe medical examiner testified that Joseph Marshall died as a result of four gunshot wounds to the right side of his head.\nDefendant offered no evidence, but moved to dismiss the charges at the close of the State\u2019s evidence.\nBy an assignment of error, defendant contends that the trial court erred in denying his motion to suppress his 8 July 1991 inculpatory statement. Defendant argues that the statement was not voluntary and that the trial court\u2019s findings of fact and conclusions of law are not supported by competent evidence.\nA defendant\u2019s inculpatory statement must be voluntarily and understandingly made in order to be admissible. State v. Thompson, 287 N.C. 303, 214 S.E.2d 742 (1975). In determining whether a confession is voluntary, the court looks at the totality of the circumstances surrounding the statement. State v. Hicks, 333 N.C. 467, 482-83, 428 S.E.2d 167, 176 (1993). Some important factors to be considered are (1) whether defendant was in custody, (2) defendant\u2019s mental capacity, (3) the physical environment of the interrogation, and (4) the manner of the interrogation. Id. The State has the burden of showing by a preponderance of the evidence that the defendant made a knowing and intelligent waiver of his rights and that his statement was voluntary. State v. Reid, 335 N.C. 647, 440 S.E.2d 776 (1994).\nThe State\u2019s evidence on voir dire regarding defendant\u2019s confession consisted of the testimony of Deputy Sheriffs Binder and Oakes. Binder testified that he had first talked to defendant early in July of 1991. On 8 July, between 4:00 and 5:00 p.m, Binder went to defendant\u2019s home to take him to the SBI office for a polygraph examination. Binder noticed that defendant had a beer in his hand. Defendant took a drink of the beer and Binder took it away from him, telling him that he knew he should not have the beer because he was going to take a test. It was a \u201ctall beer\u201d and defendant had probably drunk about half of it. Defendant exhibited no obvious impairment and seemed no different than when Binder had previously talked with him.\nWhen defendant was transported to the SBI office, Binder stayed behind to talk to LaVerne Van. He then went to the SBI office, arriving around 6:00 or 6:30 p.m. Thirty to forty-five minutes later, defendant was returned from the testing area. Binder then had a conversation with defendant at the SBI office which lasted between forty-five minutes and an hour. During the course of that conversation, Binder was advised that defendant had failed the polygraph test and Binder told him that \u201c[pjrobably ... a bunch of times.\u201d\nDuring the forty-five minute to one hour interview at the SBI office, defendant said nothing that indicated he had been involved in the murder of Marshall. Defendant denied being with Marshall at the time of his death or robbing him. Defendant was then placed under arrest for the murder of Marshall and was transported to the Law Enforcement Center (\u201cLEC\u201d). On the way to the LEC defendant indicated he wanted to talk to Binder, and Binder told him to wait until they got there and defendant\u2019s rights were explained to him.\nAt the LEC, defendant was advised of his Miranda rights. He put his initials by each one of the questions which was asked of him and signed the form. This occurred around 8:14 p.m. At that time, defendant \u201cshowed no signs of being impaired.\u201d He appeared to Binder the same as on the previous occasion when Binder had talked to him and seemed to understand what was going on.\nOakes testified that he had previously seen and talked to defendant. On 8 July, he first saw defendant at the SBI office. Defendant appeared sober and in control of his faculties. Oakes was present at the LEC when defendant was advised of his Miranda rights. According to Oakes, defendant appeared to understand those rights and to know what he was doing when he signed the waiver. He did not appear to be under the influence of alcohol, drugs or any other impairing substance.\nDefendant argues that the evidence showed that he was intoxicated and mentally impaired at the time he made the inculpatory statement. He contends that the officers engaged in coercive tactics in that during the course of the hour-long interrogation at the SBI office, defendant was repeatedly told that he failed the polygraph test. Therefore, under the totality of the circumstances, the trial court erred in holding that defendant\u2019s statement was voluntary. We disagree.\nA review of the voir dire testimony reveals that there was sufficient competent evidence before the trial court to support its findings which, in turn, support its conclusion that defendant\u2019s statement was voluntary. Deputy Sheriffs Binder and Oakes had spoken to defendant prior to the date of his confession and noticed nothing out of the ordinary on the day he confessed. The only evidence of alcohol consumption they saw was his drinking from a can of beer and that the beer was half-empty when taken from defendant. During the interview after defendant failed the polygraph exam, defendant said nothing inculpatory and continued to deny any involvement in the crime. Approximately four hours after he was picked up at his residence, defendant was read his Miranda rights at the LEC. Both deputies testified that defendant showed no signs of alcohol or drug impairment and that he appeared to understand his rights. Defendant also argues that the trial court erred in permitting Deputy Sheriffs Binder and Oakes to testify that a legal standard had been met. In support of his contention, defendant relies on this Court\u2019s holding in State v. Daniels, 337 N.C. 243, 446 S.E.2d 298 (1994), cert. denied, -U.S. -, 130 L. Ed. 2d 895 (1995). In Daniels, a voir dire was held to determine the defendant\u2019s ability to make a knowing waiver of his Miranda rights. This Court determined that a witness may \u201ctestify as to whether the defendant had the capacity to understand certain words on the Miranda form, . . . but he may not testify as to whether the defendant had the capacity to waive his rights.\u201d Id. at 263, 446 S.E.2d at 311.\nIn this case, the officers did not testify that a legal standard had been met. Rather, at various times they testified that defendant appeared sober and in control of his faculties, that he showed no signs of impairment or of being under the influence of any substance, and that he appeared to understand his rights. These statements were based on the officers\u2019 firsthand observations of defendant and did not contain an ultimate conclusion as to whether defendant did in fact have the legal capacity to waive his rights.\nEven assuming arguendo that the officers made legal conclusions, however, any such error was harmless. In State v. Patterson, 288 N.C. 553, 220 S.E.2d 600 (1975), death sentence vacated, 428 U.S. 904, 49 L. Ed. 2d 1211 (1976), this Court said:\nWe must presume the court based its finding on the competent evidence and ignored that which was incompetent. Where the court is the trier of facts, \u201cin the absence of words or conduct indicating otherwise, the presumption is that the judge disregarded incompetent evidence.\u201d City of Statesville v. Bowles, 278 N.C. 497, 502, 180 S.E.2d 111, 114-15 (1971). \u201c[T]he court\u2019s findings of fact will not be reversed unless based only on incompetent evidence.\u201d Cogdill v. Highway Comm. and Westfeldt v. Highway Comm., 279 N.C. 313, 320, 182 S.E.2d 373, 377 (1971).\nId. at 566-67, 220 S.E.2d at 610. Here, quite apart from the testimony complained of, there was sufficient competent evidence before the trial court to support its findings and conclusions to the effect that defendant\u2019s waiver of rights and subsequent statement were voluntarily and understandingly made.\nFinally, defendant argues this Court should hold that the failure of law enforcement officers to electronically record his custodial statements is a violation of the Due Process Clauses of the state and federal constitutions. We first find it significant to note that defendant requested that the interrogation not be recorded. In any event, defendant cites no authority for this argument, and we conclude that it is without merit.\nFor the foregoing reasons, this assignment of error is overruled.\nBy another assignment of error, defendant contends that the trial court erred in failing to instruct the jurors regarding their conduct and duties during court recesses as required by N.C.G.S. \u00a7 15A-1236. Prior to the introduction of evidence, the trial court gave the jurors a set of written instructions and periodically reminded them of those instructions. When the jury was dismissed for lunch on 14 December 1993, the first day of the trial, the trial court referred to the instructions, reminding the jury of its duties. At the end of the first day, the trial court again admonished the jury concerning its duties. The trial court did not repeat the instructions when it recessed on 15 December. When the trial court recessed for the day on 16 December, it instructed the jury as follows:\n[T]he only proper place for you to deliberate about these matters is when you\u2019ve reassembled as a group of twelve and I\u2019ve actually instructed you to begin \u2014 renew your deliberations.\nI also remind you about the instructions that I\u2019ve given you in writing and ask you to review those, about your conduct during the course of the trial.\nThe jury returned its verdict on the morning of 17 December 1993.\nDefendant argues that the trial court\u2019s failure to instruct at every recess is prejudicial per se and reversible error. We disagree. The trial judge must at appropriate times admonish the jury regarding its duty and conduct. N.C.G.S. \u00a7 15A-1236 (1988). However, defendant must establish that he suffered prejudice as a result of any failure of the trial court to admonish the jury. State v. Harris, 315 N.C. 556, 566, 340 S.E.2d 383, 389 (1986). Furthermore, defendant must object to any failure of the trial court to give the required admonitions to the jury in order to preserve this issue for appeal. Id,.\nIn this case, defendant concedes that he did not object to the trial court\u2019s failure to admonish the jury. Furthermore, defendant has failed to show that he was prejudiced. The trial court did remind the jurors of their duties on several occasions during the trial, as well as referring them to the written instructions. Defendant does not contend, and did not show, that jurors engaged in any improper conduct or conversation or that their deliberations were tainted in any way. This assignment of error is overruled.\nBy another assignment of error, defendant contends that the trial court erred in admitting evidence regarding a prior criminal act of the defendant. Over defendant\u2019s objection, the trial court admitted the testimony of State\u2019s witness LaVerne Van that she had a conversation with defendant about their lack of money and the need to pay the rent at the first of the month. Van further testified that defendant had mentioned robbing a bank to get the money Defendant argues that Van\u2019s testimony was inadmissible under Rule 404(b) because it was \u201cevidence of other crimes, wrongs, or acts\u201d to show defendant\u2019s character.\nRule 404(b) of the North Carolina Rules of Evidence provides that \u201cevidence of other offenses is admissible so long as it is relevant to any fact or issue other than the character of the accused.\u201d State v. Weaver, 318 N.C. 400, 403, 348 S.E.2d 791, 793 (1986); see also 1 Kenneth S. Broun, Brandis & Broun on North Carolina Evidence \u00a7 94 (4th ed. 1993). \u201cRelevant evidence\u201d means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence.\u201d N.C.G.S. \u00a7 8C-1, Rule 401 (1988).\nThus, even though evidence may tend to show other crimes, wrongs, or acts by the defendant and his propensity to commit them, it is admissible under Rule 404(b) so long as it also \u201cis relevant for some purpose other than to show that defendant has the propensity for the type of conduct for which he is being tried.\u201d\nState v. Bagley, 321 N.C. 201, 206, 362 S.E.2d 244, 247 (1987) (quoting State v. Morgan, 315 N.C. 626, 637, 340 S.E.2d 84, 91 (1986)), cert. denied, 485 U.S. 1036, 99 L. Ed. 2d 912 (1988).\nIn this case, the evidence complained of did not tend to show that defendant had actually robbed a bank or had committed any other crime or wrong. That evidence only tended to show that defendant \u201csaid something about robbing a bank\u201d while he and Ms. Van were discussing their monetary difficulties. The testimony at issue did not relate to any prior crime, wrong or act of the defendant.\nEven assuming arguendo that the evidence did relate to a prior crime, wrong or act, we find that the testimony was admissible. Evidence of other crimes, wrongs or acts committed by a defendant is admissible for \u201cpurposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake, entrapment or accident.\u201d N.C.G.S. \u00a7 8C-1, Rule 404(b) (1988). Moreover, the Rule 404(b) list is neither exclusive nor exhaustive in addressing the permissible purposes for admitting evidence of other crimes. State v. Morgan, 315 N.C. 626, 340 S.E.2d 84.\nHere, Ms. Van\u2019s testimony reflected defendant\u2019s state of mind immediately prior to the murder. The testimony was not offered to show defendant\u2019s propensity for criminal conduct, but to demonstrate his motive and intent to commit the crimes charged. In addition, evidence of other crimes committed by a defendant is admissible under Rule 404(b) if \u201cit establishes the chain of circumstances or context of the charged crime.\u201d State v. White, \u2014 N.C. \u2014, \u2014, \u2014 S.E.2d \u2014, \u2014, 1995 WL 326523, at 11 (1995) (citing State v. Agee, 326 N.C. 542, 548, 391 S.E.2d 171, 174 (1990)). In this case, the proximity of defendant\u2019s statement to the murder as well as defendant\u2019s monetary difficulties established the chain of circumstances leading up to the murder. This assignment of error is overruled.\nBy another assignment of error, defendant contends that the trial court erred in admitting a photograph which defendant argues was irrelevant and inflammatory. Over defendant\u2019s objection, the trial court admitted State\u2019s Exhibit #18, a photograph taken by State\u2019s witness LaVerne Van of defendant holding a can of beer and wearing a shoulder holster containing a .357-caliber revolver. Ms. Van testified that the weapon in the photograph was the murder weapon. Defendant argues that the photograph was inadmissible because it was unfairly prejudicial and this prejudice outweighed any probative value. Rule 403 of the North Carolina Rules of Evidence provides:\nAlthough relevant, evidence may be excluded if its probative valu\u00e9 is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.\nN.C.G.S. \u00a7 8C-1, Rule 403 (1994). Unfairly prejudicial evidence is evidence that possesses \u201can undue tendency to suggest a decision on an improper basis, usually an emotional one.\u201d State v. Hennis, 323 N.C. 279, 283, 372 S.E.2d 523, 527 (1988). The decision as to whether any evidence is more probative than unfairly prejudicial is within the discretion of the trial court. Id. at 285, 327 S.E.2d at 527. An abuse of discretion occurs only when the trial court\u2019s ruling is \u201cso arbitrary that it could not have been the result of a reasoned decision.\u201d Id.\nIn this case, there was no evidence that the photograph was used solely to arouse the passions of the jury. Instead, the photograph was used to illustrate Ms. Van\u2019s testimony concerning defendant\u2019s possession and control of the murder weapon. Because the photograph had probative value and there was minimal potential for any unfair prejudice, we conclude that the trial court did not abuse its discretion. This assignment of error is overruled.\nBy another assignment of error, defendant contends that the trial court erred in refusing to strike the testimony of State\u2019s witness LaVerne Van and in denying defendant\u2019s motion for a mistrial. On 16 March 1992, defendant filed a motion requesting that the trial court order the State to disclose all statements of its witnesses. After the direct examination of Ms. Van, defendant maintained that the State had failed to produce the transcripts or tapes of at least four taped interviews of Ms. Van, including a videotaped interview that occurred after she was arrested on 15 July 1991.\nThe trial court held a voir dire hearing in which the evidence showed that the State had interviewed Ms. Van on five separate occasions. Deputy Sheriff Don Smith testified that statements had been taken from Ms. Van on 4 July, 8 July, and 15 July 1991 and on 18 November 1992. Smith also testified that there was one additional interview of Ms. Van which was videotaped sometime between 15 July 1991 and 18 November 1992. Defendant received a copy of each of the interviews except the videotaped interview. Further testimony indicated that the tape of that interview had been lost and that no one could find it. Testimony also tended to show that the 18 November 1992 interview was conducted as a result of the lost tape and that the statement given then was consistent with the videotaped statement.\nAfter a State\u2019s witness has testified on direct examination, and upon motion of defendant, the trial court shall \u201corder the State to produce any statement of the witness in the possession of the State that relates to the subject matter as to which the witness has testified.\u201d N.C.G.S. \u00a7 15A-903(f)(2) (1988) (emphasis added). The trial court found that there was no bad faith on the part of the State with respect to the production of the videotape, and since it appeared to be lost, it was impossible for the State to comply with the rule or with the previous court order to provide Ms. Van\u2019s prior statements to defense counsel after she had testified. The trial court also indicated that defense counsel would be allowed considerable leeway to examine the appropriate witnesses as to the content or the absence of the videotape if he chose to bring those matters to the jury\u2019s attention.\nN.C.G.S. \u00a7 15A-910 provides that if the trial court determines that a party has failed to comply with the statutory discovery procedures it may impose sanctions, including a mistrial. However, this section is permissive and not mandatory. The choice of which sanction to apply, if any, rests in the sound discretion of the trial court and will not be disturbed absent a showing of an abuse of that discretion. State v. Gladden, 315 N.C. 398, 340 S.E.2d 673, cert. denied, 479 U.S. 871, 93 L. Ed. 2d 166 (1986). Here, the trial court did not abuse its discretion by denying defendant\u2019s motion to strike the testimony of Ms. Van or by denying his motion for mistrial. This assignment of error is without merit.\nBy another assignment of error, defendant contends that the trial court erred by denying his motions to dismiss and for a directed verdict due to the insufficiency of the evidence. Defendant argues that without his inadmissible inculpatory statement, the sole evidence against him was the inconsistent and extremely biased testimony of Ms. Van. Because there was no credible evidence which raises even a reasonable suspicion that defendant committed the murder, the case should have been dismissed. We disagree.\nWhen there is substantial evidence \u2014 whether direct, circumstantial, or both \u2014 to support a finding that the offense charged has been committed and that the defendant committed it, the case is for the jury and the motion to dismiss should be denied. State v. Locklear, 322 N.C. 349, 368 S.E.2d 377 (1988). In the present case, we have already determined that defendant\u2019s inculpatory statement was properly admitted. Moreover, there was substantial evidence tending to show that defendant and LaVerne Van conspired to rob and murder Joseph Marshall, that defendant did in fact shoot Marshall in the head four times and kill him, and that defendant thereafter removed $90.00 from Marshall\u2019s wallet. Thus, there was substantial evidence tending to show that defendant had committed each of the crimes charged. Accordingly, the trial court did not err in denying defendant\u2019s motions to dismiss and for a directed verdict. This assignment of error is without merit.\nFor the foregoing reasons, we conclude that defendant received a fair trial free of prejudicial error.\nNO ERROR.", "type": "majority", "author": "MITCHELL, Chief Justice." } ], "attorneys": [ "Michael F Easley, Attorney General, by Dennis P. Myers, Assistant Attorney General, for the State.", "Margaret Creasy Ciardellafor defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. PAUL L. THIBODEAUX\nNo. 274A94\n(Filed 28 July 1995)\n1. Evidence and Witnesses \u00a7 1222, 1302 (NCI4th)\u2014 defendant\u2019s confession \u2014 no impairment from alcohol \u2014 telling defendant he failed polygraph \u2014 no coercive tactic\nThere was no merit to defendant\u2019s contention that he was intoxicated and mentally impaired at the time he made an inculpatory statement and that officers engaged in coercive tactics by repeatedly telling defendant during interrogation that he failed the polygraph test, since officers had spoken to defendant prior to the date of his confession and noticed nothing out of the ordinary on the day he confessed; the only evidence of alcohol consumption was defendant\u2019s drinking from a beer can which was half-empty when taken from defendant; and after defendant was informed that he failed the polygraph examination, he said nothing inculpatory and continued to deny any involvement in the crime.\nAm Jur 2d, Evidence \u00a7\u00a7 742, 743.\nAdmissibility in evidence of confession made by accused in anticipation of, during, or following polygraph examination. 89 ALR3d 230.\nSufficiency of showing that voluntariness of confession or admission was affected by alcohol or other drugs. 25 ALR4th 419.\n2. Evidence and Witnesses \u00a7 2101 (NCI4th)\u2014 officers\u2019 testimony based on observations \u2014 no improper conclusion as to defendant\u2019s legal capacity to waive rights\nOfficers\u2019 testimony that defendant appeared sober and in control of his faculties, that he showed no signs of impairment or of being under the influence of any substance, and that he appeared to understand his rights was based on the officers\u2019 firsthand observations of defendant and did not contain an ultimate conclusion as to whether defendant did in fact have the legal capacity to waive his rights.\nAm Jur 2d, Expert and Opinion Evidence \u00a7\u00a7 209, 272.\n3. Criminal Law \u00a7 479 (NCI4th)\u2014 court\u2019s failure to admonish jury before every recess \u2014 no error\nDefendant was not prejudiced by the trial court\u2019s failure to instruct the jurors regarding their conduct and duties at every recess in accordance with N.C.G.S. \u00a7 15A-1236, since the judge is required only to admonish the jury at appropriate times regarding its duty and conduct; the trial court did remind the jurors of their duties on several occasions during the trial and referred them to the court\u2019s written instructions; defendant failed to object to the trial court\u2019s failure to admonish the jury; and defendant failed to show that the jurors engaged in any improper conduct or conversation or that their deliberations were tainted in any way.\nAm Jur 2d, Trial \u00a7 1077.\n4. Evidence and Witnesses \u00a7 294 (NCI4th)\u2014 defendant\u2019s contemplation of another crime \u2014 defendant not prejudiced by evidence\nTestimony by a witness that defendant had mentioned robbing a bank to get rent money did not tend to show that defendant had actually robbed a bank or had committed any other crime or wrong, but even if it did, such testimony would have been admissible to show defendant\u2019s motive and intent to commit the crimes of robbery and murder of his landlord. N.C.G.S. \u00a7 8C-1, Rule 404(b).\nAm Jur 2d, Evidence \u00a7 408.\n5. Evidence and Witnesses \u00a7 1715 (NCI4th)\u2014 photograph of defendant with gun \u2014 admissibility to illustrate testimony\nThe trial court in a homicide prosecution did not err in admitting a photograph of defendant holding a can of beer and wearing a shoulder holster containing a .357 caliber revolver, since the photograph was admissible to illustrate a witness\u2019s testimony concerning defendant\u2019s possession and control of the murder weapon.\nAm Jur 2d, Evidence \u00a7\u00a7 960 et seq.\n6. Criminal Law \u00a7 113 (NCI4th)\u2014 videotape of interview\u2014 State\u2019s failure to produce \u2014 mistrial not required\nThe trial court did not err in refusing to strike the testimony of a State\u2019s witness and in denying defendant\u2019s motion for mistrial based on the State\u2019s failure to produce a videotaped interview of the witness, since the tape appeared to be lost; a subsequent interview of the witness was conducted; the statement given then was consistent with the videotaped statement and was provided to defendant; and there was no bad faith on the part of the State with respect to production of the videotape. N.C.G.S. \u00a7 15A-910.\nAm Jur 2d, Evidence \u00a7 979.\nAdmissibility of videotape film in evidence in criminal trial. 60 ALR3d 333.\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 Johnson (E. Lynn), J., on 17 December 1993 in the Superior Court, Cumberland County, upon a jury verdict finding defendant guilty of first-degree murder. Defendant\u2019s motion to bypass the Court of Appeals as to the additional judgment imposed for conspiracy to commit robbery with a firearm was allowed 4 October 1994. Heard in the Supreme Court 12 April 1995.\nMichael F Easley, Attorney General, by Dennis P. Myers, Assistant Attorney General, for the State.\nMargaret Creasy Ciardellafor defendant-appellant." }, "file_name": "0053-01", "first_page_order": 87, "last_page_order": 100 }