State v. Demos

Decision Date05 February 2002
Docket NumberNo. COA00-1233.,COA00-1233.
Citation148 NC App. 343,559 S.E.2d 17
CourtNorth Carolina Court of Appeals
PartiesSTATE of North Carolina v. Demetri George DEMOS.

Attorney General Roy Cooper, by Assistant Attorney General K.D. Sturgis, for the State.

Belser & Parke, P.A., by David G. Belser, Asheville, for defendant-appellant.

BIGGS, Judge.

Demetri Demos (defendant) was tried in Buncombe County for the first degree murder of his estranged wife, Theresa Demos (Theresa), and Robert McCracken (Robert), with whom Theresa had a romantic relationship. Defendant was convicted of second degree murder in the death of Theresa, and voluntary manslaughter in the death of Robert. He received active sentences of 237 to 294 months, and 36 to 53 months, to be served consecutively. From these judgments and sentences, defendant appeals.

The evidence presented at trial tended to show the following: Defendant and Robert grew up together in Buncombe County, and were lifelong friends. In 1986 defendant enlisted in the Marines and served two tours of duty, during which he became an expert marksman. Defendant and Theresa met in high school, and later married and had two sons. Defendant left the Marines in 1995, and returned to Asheville. In the fall of 1995, defendant and Theresa began to experience marital difficulties; in October 1995, they separated, but continued to share responsibility for their sons, and to see saw each other socially.

After the separation, defendant was sometimes threatening or abusive towards Theresa. On one occasion, he approached Theresa in a restaurant, and engaged in vulgar, aggressive threats, and on the day of the shooting, Theresa called a friend and discussed her fear of defendant. Also after their separation, defendant bought the .40 caliber semiautomatic handgun later used to shoot Theresa and Robert. Several months after Theresa moved out of defendant's house, she and Robert began a romantic and sexual relationship, which they concealed from defendant. However, the day before the shooting, a friend told defendant that Theresa and Robert were romantically involved; defendant became upset, and called both Robert and Theresa. The night before the shooting, Theresa called her father, Nick Daniels (Daniels), at around midnight, crying and upset because defendant had called and threatened to kill her. Daniels brought Theresa and her sons to his house; later that night defendant called Daniels's house, and called Theresa a "liar, a bitch, and a whore." The shootings occurred late the following night.

Defendant and Theresa spoke on the phone the morning of the shooting, and after defendant promised to stop threatening her, Theresa returned to her trailer. During the day, defendant told Theresa's Aunt Judy that it had occurred to him to kill Theresa, and said to Tami Atkins, Theresa's cousin, that Theresa would "not be around anymore." Defendant began drinking around noon, and by nightfall he was intoxicated. He telephoned Robert's house several times, and talked with Robert's father, David McCracken (McCracken). Later that night, McCracken drove defendant to Theresa's trailer. Defendant told McCracken that he was not bringing a gun, and promised there would be no trouble. In fact, defendant had concealed two firearms under his clothes. As they neared Theresa's driveway, defendant jumped out of the car and ran towards the trailer. When he got closer, he saw Theresa and Robert embracing in the dark. Defendant testified that upon seeing his wife kissing his best friend, he was overcome by emotion, and immediately began firing his gun. He also testified that he had not planned to shoot anyone, and did not remember how many shots he fired.

Theresa and Robert fell to the ground, killed instantly. Defendant told Theresa's grandmother, who lived next door, to call the police. He waited for the arrival of law enforcement officers, and turned himself in.

I.

On appeal, defendant first argues that the trial court erred in admitting the written out-of-court statement made by McCracken. We disagree.

At trial, McCracken testified at length to the events surrounding the homicide. Following his testimony, the State introduced, over defendant's objection, McCracken's written out-of-court statement as corroborative evidence. The written statement recapitulated McCracken's testimony in court, and added that during their phone conversations shortly before the shooting, defendant said several times that he "could kill that b____." This specific statement was not part of McCracken's trial testimony. Defendant argues that because these alleged threats were not included in McCracken's trial testimony, the statement containing them was not corroborative, and thus was inadmissible.

A witness's unsworn out-of-court statement is admissible to corroborate the witness's sworn testimony in court, provided the statement is consistent with his trial testimony. State v. Beane, 146 N.C.App. 220, 552 S.E.2d 193 (2001). "Corroborative evidence need not mirror the testimony it seeks to corroborate, and may include new or additional information as long as the new information tends to strengthen or add credibility to the testimony it corroborates." State v. McGraw, 137 N.C.App. 726, 730, 529 S.E.2d 493, 497, disc. review denied, 352 N.C. 360, 544 S.E.2d 554 (2000) (citation omitted). If the out-of-court statement adds weight or credibility to the witness's sworn testimony, it may be admissible, notwithstanding its inclusion of facts not elicited from the witness in court. State v. Coffey, 345 N.C. 389, 480 S.E.2d 664 (1997).

Defendant correctly points out that "the State may not introduce as corroborative evidence prior statements of a witness that directly contradict the witness's trial testimony." State v. Guice, 141 N.C.App. 177, 201, 541 S.E.2d 474, 490 (2000), remanded on other grounds, 353 N.C. 731, 551 S.E.2d 112 (2001). However, "prior consistent statements are admissible even though they contain new or additional information so long as the narration of events is substantially similar to the witness' in-court testimony[,]" State v. Williamson, 333 N.C. 128, 136, 423 S.E.2d 766, 770 (1992) (citation omitted), and the trial court has "wide latitude in deciding when a prior consistent statement can be admitted for corroborative, nonhearsay purposes." State v. Call, 349 N.C. 382, 410, 508 S.E.2d 496, 513 (1998) (citation omitted).

In the present case, the written statement includes McCracken's assertion that defendant said "I could kill that b____," a phrase not included in McCracken's trial testimony. However, although McCracken's written statement includes the additional phrase, it otherwise corroborates McCracken's in-court testimony. Moreover, McCracken's testimony contained several references to defendant's calling Theresa "a b____." We conclude that the witness's statement was sufficiently corroborative to be admissible.

Further, we conclude that defendant's assertion that the written statement was inadmissible because it supplied the only evidence of actual malice towards Theresa is meritless. The record evidence includes many instances of threatening or abusive statements or behavior by defendant that evince actual malice towards Theresa.

Defendant also contends that the trial court erred by failing to give the jury a limiting instruction at the time the statement was admitted into evidence, notwithstanding the limiting instruction delivered during the trial judge's charge to the jury. The record shows that the defendant did not request an instruction when the statement was introduced. The North Carolina Supreme Court has held previously that failure to request a limiting instruction when evidence is introduced bars later consideration of the issue:

At no time after the trial court made its ruling and the jury was returned to the courtroom did the defendant request that the trial court give the jury a limiting instruction with regard to the evidence in question. The defendant, having failed to specifically request or tender a limiting instruction at the time the evidence was admitted, is not entitled to have the trial court's failure to give limiting instructions reviewed on appeal.

State v. Stager, 329 N.C. 278, 310, 406 S.E.2d 876, 894 (1991) (citations omitted). Accordingly, we review only for plain error. Under the plain error rule, the defendant "`must convince this Court not only that there was error, but that absent the error, the jury probably would have reached a different result.' " State v. Roseboro, 351 N.C. 536, 553, 528 S.E.2d 1, 12 (quoting State v. Jordan, 333 N.C. 431, 440, 426 S.E.2d 692, 697 (1993)), cert. denied, 531 U.S. 1019, 121 S.Ct. 582, 148 L.Ed.2d 498 (2000). This Court has often noted that the plain error rule applies only where "the claimed error is a `fundamental error, something so basic, so prejudicial, so lacking in its elements that justice cannot have been done[.]'" State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983) (quoting United States v. McCaskill, 676 F.2d 995, 1002 (4th Cir.1982)). Defendant has failed to demonstrate plain error. "Since defendant did not request such a limiting instruction and since this evidence was admissible for a proper purpose, any error in instructing the jury was not so fundamental as to have a probable impact on the verdict." State v. Sneeden, 108 N.C.App. 506, 511, 424 S.E.2d 449, 452 (1993) (citations omitted).

We conclude that McCracken's written statement was admissible, and that the trial court did not commit plain error by failing to give a limiting instruction at the time it was introduced into evidence. Accordingly, this assignment of error is overruled.

II.

Defendant argues next that the trial court erred in allowing the jury to review McCracken's written statement in the jury room without defendant's consent, and also erred by denying his request to issue a limiting instruction to the jury at the time that the statement was taken to the...

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