State v. Murillo, 209A96.

• Decision Date: 31 December 1998
• Docket Number: No. 209A96.,209A96.
• Parties: STATE of North Carolina v. Eric Fernando MURILLO.
• Court: North Carolina Supreme Court

509 S.E.2d 752

349 N.C. 573

STATE of North Carolina v. Eric Fernando MURILLO.

No. 209A96.

Supreme Court of North Carolina.

December 31, 1998.

Michael F. Easley, Attorney General by Debra C. Graves, Assistant Attorney General, for the State.

Margaret Creasy Ciardella, Durham, for defendant-appellant.

WHICHARD, Justice.

On 15 December 1992 a Hoke County grand jury indicted defendant for the firstdegree murder of his wife, Beth Murillo. Upon defendant's motion for a change of venue, the case was transferred for trial to Richmond County. Defendant was tried capitally, and the jury returned a verdict finding him guilty of first-degree murder on the basis of premeditation and deliberation. Following a capital sentencing proceeding pursuant to N.C.G.S. § 15A-2000, the jury recommended that defendant be sentenced to death. For the reasons set forth herein, we conclude that defendant received a fair trial, free from prejudicial error, and that the sentence of death is not disproportionate.

The evidence showed that defendant and the victim had been husband and wife since 1987. They had histories of alcohol abuse, and defendant had threatened, verbally abused, and severely beaten the victim on many occasions throughout the marriage. The victim's school colleagues, family members, and friends testified to her black eyes and extensive bruising. Law-enforcement officers testified that on numerous occasions when they were summoned to the family home or cabin, they found the victim beaten and bloodied but refusing to swear out a warrant on defendant. The victim's family had intervened and taken her home to Massachusetts several times, but the victim always returned to defendant in North Carolina.

At the time of her death, the victim was staying with her two sons from a previous marriage at the family's cabin a short distance away from the family home. She and defendant had argued that evening at the local tavern they owned. Around 1:00 a.m. on 24 June 1992, after consuming numerous beers, the victim left the bar with her two sons. Defendant told her to go to the family home, but the victim instead drove to the cabin where she had been staying. She told her sons that if defendant came near her, she would kill him.

Defendant claimed he went to the cabin to avoid his wife and to let their tempers cool. The victim's sons testified that defendant arrived at the cabin, woke them, entered the victim's bedroom, and closed the door. The boys could hear the two arguing. The victim said, "Oh God, oh God," and a gun fired. Defendant claimed it fired accidentally while they struggled. When the boys asked about the sound, defendant began saying, "Oh God, don't die Beth." Defendant bundled the victim into his arms and drove her to the hospital, attempting mouth-to-mouth resuscitation as he drove.

The victim never regained consciousness and was removed from life support on 25 June 1992. She had bruises over seventyfive percent of her body and died from a single gunshot wound through the right temple. The bullet had passed through her right forearm before entering her head. The trial court admitted evidence that defendant's first wife, Debbie Kraft Murillo, also had died from a gunshot wound defendant inflicted; that death was ruled accidental.

In his first assignment of error, defendant contends that the trial court erred in denying defendant's motions for discovery and in failing to sanction the State for its failure to provide discovery as the trial court ordered and as applicable statutes and the federal Constitution require. Defendant complains that the documents the State gave in response to orders for discovery were too disjointed to be useful and that his repeated motions to compel discovery are evidence that the State violated the discovery statutes, the requirement that the essence of a statement be provided to a defendant, see State v. Patterson, 335 N.C. 437, 454, 439 S.E.2d 578, 588 (1994), and the spirit of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). He finally contends that the delay in discovery hindered his ability to locate witnesses.

Our discovery statutes require the prosecutor "[t]o divulge, in written or recorded form, the substance of any oral statement relevant to the subject matter of the case made by the defendant, regardless of to whom the statement was made." N.C.G.S. § 15A-903(a)(2) (1997). "As used in the statute, `substance' means: `Essence; the material or essential part of a thing, as distinguished from "form." That which is essential.'" State v. Bruce, 315 N.C. 273, 280, 337 S.E.2d 510, 515 (1985) (quoting Black's Law Dictionary 1280 (5th ed.1979)). Conversely, "form" is distinguishable from substance and "means the legal or technical manner or order to be observed in legal instruments or juridical proceedings." Black's Law Dictionary 651 (6th ed.1990). Defendant complains solely about the form of the discovery provided. As in Patterson, 335 N.C. at 453-54,439 S.E.2d at 588, the existence of defendant's statements was not repressed. Rather, the statements were not organized to his satisfaction. The names of witnesses, with exculpatory information, were included, and the substance of both inculpatory and exculpatory statements was present. Indeed, the final version of defendant's statements was separated by witness, denoted whether the witness was with law enforcement, and estimated a time frame if the statement was not in reference to the victim. This complied with the letter and spirit of the statutory mandate. See State v. Strickland, 346 N.C. 443, 457, 488 S.E.2d 194, 202 (1997),cert. denied, ___ U.S. ___, 118 S.Ct. 858, 139 L.Ed.2d 757 (1998). "`[T]he purpose of discovery under our statutes is to protect the defendant from unfair surprise by the introduction of evidence he cannot anticipate.'" Patterson, 335 N.C. at 455,439 S.E.2d at 589 (quoting State v. Payne, 327 N.C. 194, 202, 394 S.E.2d 158, 162 (1990),cert. denied 498 U.S. 1092, 111 S.Ct. 977, 112 L.Ed.2d 1062 (1991)). Defendant clearly was afforded this protection by the substantive discovery provided. The State complied with its duty under N.C.G.S. § 15A-907 to render continuing discovery. Defendant received all of the discovery to which the statutes entitled him.

Brady holds that "suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." Brady, 373 U.S. at 87, 83 S.Ct. at 1196-97, 10 L.Ed.2d at 218. Defendant has not indicated that the prosecution suppressed any evidence. He has merely asserted disjointed presentation of the statements. The final list of his statements was provided to his counsel well before trial and contained more than adequate demarcation of time and person. Moreover, defendant presented all of the allegedly exculpatory evidence for which he was unable to obtain testifying witnesses through witnesses who did testify. Therefore, any other evidence of which defendant might have been deprived was not material under the standard in Kyles v. Whitley, 514 U.S. 419, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995). Defendant received a "trial resulting in a verdict worthy of confidence." Id. at 434, 115 S.Ct. at 1566, 131 L.Ed.2d at 506. There was no evidentiary suppression that "`undermine[d] confidence in the outcome of the trial.'" Id. (quoting United States v. Bagley, 473 U.S. 667, 678, 105 S.Ct. 3375, 3381, 87 L.Ed.2d 481, 491 (1985)). Accordingly, this assignment of error is overruled.

Defendant next contends that evidence admitted regarding his abusive relationship with the victim was hearsay, inadmissible, and unduly prejudicial. He contends that the statements were not within the state-ofmind exception to the hearsay rule because they were recitations of facts or that they were too remote from the time of the crime to have relevance. Defendant asserts that even if the statements were admissible under the state-of-mind exception, the danger of unfair prejudice substantially outweighed their probative value.

Relevant evidence is "evidence having any 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." N.C.G.S. § 8C-1, Rule 401 (1992). Even relevant evidence is subject to Rule 403, which disallows evidence when the probative value is "outweighed by the danger of unfair prejudice." N.C.G.S. § 8C-1, Rule 403 (1992); see State v. Hardy, 339 N.C. 207, 230-31, 451 S.E.2d 600, 613 (1994). Evidence of a defendant's misconduct toward his wife during the marriage is admissible "under Rule 404(b) to prove motive, opportunity, intent, preparation, [or] absence of mistake or accident with regard to the subsequent fatal attack upon her." State v. Syriani, 333 N.C. 350, 376, 428 S.E.2d 118, 132,cert. denied, 510 U.S. 948, 114 S.Ct. 392, 126 L.Ed.2d 341 (1993). However, if the evidence is used to prove the truth of the matter asserted, it must still be admissible under the rules against hearsay. See Hardy, 339 N.C. at 231-32,451 S.E.2d at 614. If it is merely a recitation of facts, offered for the truth of the matter asserted, it is inadmissible. See id. at 229, 451 S.E.2d at 613.

Defendant first contends that testimony from Lisa Carter that the victim said she was going home to Massachusetts for the summer, leaving the inference that the victim and defendant were separating, was improperly admitted. Competent evidence had been introduced that defendant had threatened to kill the victim if she left him. The victim's statement indicating the parties were separated or separating "bore directly on the relationship between the victim and defendant at the time of the killing and [was] relevant to show a motive for the killing." State v. Bishop, 346 N.C. 365, 380, 488 S.E.2d 769, 776 (1997). Statements from the victim...