State v. Hickey

• Decision Date: 12 August 1986
• Docket Number: No. 516A85,516A85
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Susan Myra HICKEY.

Page 646

346 S.E.2d 646

317 N.C. 457

STATE of North Carolina v. Susan Myra HICKEY.

No. 516A85.

Supreme Court of North Carolina.

Aug. 12, 1986.

Lacy H. Thornburg, Atty. Gen. by Dennis P. Myers, Asst. Atty. Gen., Raleigh, for the State.

Malcolm R. Hunter, Jr., Appellate Defender by Gordon Widenhouse, Asst. Appellate Defender, Raleigh, for defendant-appellant.

MITCHELL, Justice.

The defendant has brought forward several assignments of error in which she contends that: (1) the trial court committed reversible error in denying her motions to preclude the State from proceeding on a first degree murder charge; (2) the trial court erred in failing to appoint an investigator to aid in her defense; (3) the trial court committed reversible error in refusing her request for jury instructions on the lesser included offenses of second degree murder and involuntary manslaughter; (4) portions of the prosecutor's closing arguments were grossly improper and substantially prejudiced the defendant; and (5) the trial court committed reversible error in overruling her objections to hearsay testimony of witness Scott Pitman. We find no error.

The defendant, Susan Hickey, and the victim, David Hickey, had been married since 16 August 1980. Two children lived with the couple in a mobile home in Spruce Pine: Jamie, the defendant's eleven-year-old son from a previous marriage, and Charles, the couple's three-year-old son.

The State's evidence tended to show that in the early morning hours of 17 May 1984, the defendant shot her husband, David Hickey, while he was asleep in bed. The victim first was shot in the left side of his chest with a Smith and Wesson .38 caliber revolver. That shot caused a "contact" wound. The bullet penetrated both of the victim's lungs and his heart and lodged in his back. The victim also was shot a second time in the back. The second bullet moved in an upward path toward his neck. Dr. John McLeod opined that death resulted from massive internal bleeding from the chest wound and not from the second gunshot wound.

After the shooting occurred, the defendant did not attempt to assist the victim. She stepped over his body several times while dressing and then took her two children to her mother's house. When the defendant got to her mother's house, she told her mother that an accident had occurred and she thought her husband was dead. The defendant did not seek any emergency assistance for her husband. When the defendant later returned to her home, she checked his pulse and found "no response." She then called the local chief of police.

In her statement to the police, the defendant stated that the victim went to bed and placed a pistol under his pillow. When she thought he was asleep, she walked around to his side of the bed and reached under the pillow to get the pistol. The gun went off as the victim grabbed it and tried to pull it from her. After the gun fired, the victim jumped out of bed and said: "I'll kill Jamie." When he started toward the door, the defendant fired the gun. The victim then fell to the floor.

Ella Jo Teague, the defendant's close friend, testified that she saw the defendant at the police station after the shooting. The defendant told her that she had waited until her husband went to sleep, and then she shot him. A few days later, Teague visited the defendant at her home. On that occasion, the defendant stated that "she had never slept better" and "that if she had to pull any time it was worth it." Teague also testified that in April 1984 the defendant had stated she planned to kill her husband with pills and alcohol and wondered what quantity would be lethal. A few days after that conversation, the defendant stated that her mixture did not work and the victim had only gotten sick.

Bruce Jarvis, a State Bureau of Investigation agent, testified that during his investigation of the bedroom, he discovered a hole with a surrounding burnt area in the top sheet of the bed. He also discovered two holes in a quilt that was on the bed. Steven Carpenter, a firearms expert with the State Bureau of Investigation, testified that the gunshot residue pattern around the holes in the sheet and quilt were characteristic of a contact wound.

The defendant testified at trial that the victim, her husband, returned home in the early morning hours of May 17th. The victim became angry at the defendant's son Jamie and the couple argued. The defendant then went to bed and pretended to be asleep. She heard the victim cock a pistol and place it under his pillow. The defendant waited until he was asleep, walked around to his side of the bed, and attempted to pull the pistol out from under the pillow. As she grabbed the handle and pulled the pistol out, the victim woke up and grabbed the pistol. The pistol then discharged. The defendant testified she had her hand on the handle when the gun discharged. The victim rolled over to the side of the bed and was sitting on the bed, "crouched over." The victim then said that he was going to kill Jamie. As the victim "started to raise up to go toward the door," the defendant "raised the gun and shot." The defendant took the children to her mother's house because she did not want them to see the victim. She returned and then called Police Chief Ray Gunter. The defendant denied making any of the statements Teague had described. The defendant also denied planning to kill her husband by mixing pills and alcohol.

Other facts pertinent to the determination of the issues raised on appeal are set forth hereinafter as part of the discussion of those issues.

By her first assignment of error, the defendant contends that the trial court committed reversible error in denying her motions to preclude the State from proceeding against her on the charge of first degree murder. We do not agree.

The defendant was indicted on 3 July 1984 for the murder ¹ of her husband. On 1 October 1984, the defendant appeared in Superior Court, Mitchell County, for arraignment and for the hearing of pretrial motions. During the arraignment the district attorney announced that the State did not intend to seek a conviction for first degree murder but would seek a conviction for second degree murder, unless new evidence was discovered which would warrant trying the defendant for first degree murder. In light of the prosecutor's announcement, Judge Lamm denied the defendant's motions for individual voir dire and sequestration of the jury, but did so without prejudice to the defendant's right to renew the motions should the State notify her of its intent to seek a verdict of guilty of first degree murder. On 27 December 1984, the defendant received written notice from the district attorney that the State intended to bring her to trial for first degree murder.

On 31 December 1984, the defendant filed a "MOTION IN OPPOSITION TO THE STATE'S DESIRE TO PROCEED ON FIRST DEGREE MURDER." A hearing was held on that motion on the same day, and Judge Gudger entered an order finding inter alia that during the October arraignment of the defendant:

the Court asked the Assistant District Attorney, Mr. Wilson 'Does the State intend to proceed on the charge of second degree murder?' To which, Mr. Wilson, the Assistant District Attorney, answered: 'Your Honor, at this time our intent is to proceed on second degree murder. We would reserve the right that if before the trial new evidence should come to light that we could change our mind upon proper notice to the defendant that we now desire to proceed on first. As of this time, as of this day, Your Honor, we intend now to plead--to proceed on second. Again, we would, if something changed, if new evidence should come forth, then we would reserve the right to give proper notice to the defendant and put them on notice that we did at that time intend to proceed on first.'

....

That subsequent to the October Session of this Court and on or about December 22, 1984, the District Attorney received information indicating the availability of one or more witnesses to threats made by the defendant against the deceased....

Based on such findings, Judge Gudger concluded that the statement of the district attorney "did not amount in law to an election on the part of the State not to proceed to trial on a charge of first degree murder if further evidence was discovered tending to support such charge...." As a result he denied the defendant's motion opposing trial on a charge of first degree murder but ordered that her other pretrial motions be reconsidered in light of his order.

The defendant initially was tried for first degree murder at the 28 January 1985 Special Session of Superior Court, Mitchell County. The jury being unable to agree on a verdict, the trial court declared a mistrial and subsequently ordered a change of venue to Madison County. The defendant was retried for first degree murder at the 15 April 1985 Session of Superior Court, Madison County, and again moved to prevent the State from proceeding against her on the first degree murder charge. Judge Lewis concluded that the previous order entered by Judge Gudger was the law of the case and denied the motion.

The defendant argues that the district attorney's announcement during the arraignment that the State intended "at this time" to bring her to trial for second degree murder was a binding election by the State and equivalent to a verdict of not guilty on the first degree murder charge. The defendant argues that as a result, considerations of due process and double jeopardy prevented the State from trying her thereafter on the first degree murder charge.

In State v. Pearce, 266 N.C. 234, 145 S.E.2d 918 (1966), the defendant was charged with the then capital felony of rape. At arraignment the solicitor ² announced that the State would not seek a verdict on the capital felony but would only seek to convict the defendant of the lesser included offense of assault with intent to commit rape. The defendant's...