State v. Rourke

• Decision Date: 05 June 2001
• Docket Number: No. COA00-286.,COA00-286.
• Citation: 548 S.E.2d 188,143 NC App. 672
• Court: North Carolina Court of Appeals
• Parties: STATE of North Carolina, v. Mardy John ROURKE.

548 S.E.2d 188

143 NC App. 672

STATE of North Carolina, v. Mardy John ROURKE.

No. COA00-286.

Court of Appeals of North Carolina.

June 5, 2001.

Attorney General Michael F. Easley, by Assistant Attorney General Robert M. Curran, for the State.

Lisa Miles, Durham, for the defendant-appellant.

BIGGS, Judge.

Mardy John Rourke (defendant) was convicted of second degree murder, and appeals from the conviction and judgment. The evidence at trial indicated the following: On 29 January 1999 the defendant was living in Calabash, North Carolina with a friend, Thomas Stockner (Stockner). During that week, the defendant and Stockner had been spending time with Kenneth Long (Long), and with Jennifer Billings (Billings). The four had been drinking together in the evenings, and Long and Billings had stayed at Stockner's house for several nights. There had been no conflicts among them prior to this incident. On the night of January 29, Billings and Long arrived at Stockner's house at around 9:00 P.M. They found Stockner at home, although the defendant was out. The three drank and played pool, then visited several nearby taverns. When they returned to Stockner's house, the defendant was there. The four continued drinking, talking, and playing pool for two or three hours. They were all intoxicated, Stockner even more so than the others. At some time after midnight, an argument developed between Long and the defendant. Stockner tried to break up their dispute by displaying a shotgun, until the others told him to put his gun away. The argument between Long and the defendant grew louder and more contentious, until Long suggested that they "take it outside." The defendant declined, and retired to his room.

Billings testified that, although the defendant initially retreated from the quarrel with Long, he rejoined the others several minutes later, holding a revolver. He threatened several times to shoot Long and, when Billings intervened, he threatened to shoot her too, and fired a shot in the air. Long suggested they leave, and the two started to go out through the garage. Once in the garage, they realized that the garage door was locked, and also that Billings had left her purse inside. Long went back inside the house to unlock the door and retrieve the purse. Ten or twenty seconds after Long disappeared inside the house, Billings heard gunshots. She ran to a neighbor's house to summon help, and then waited on Stockner's porch until the police arrived.

Stockner also testified about the events of 29 January 1999. He could not recall details, because he had been so intoxicated. He did not remember an argument between Long and the defendant, and he was unable to reconstruct the sequence of events. However, he distinctly recalled hearing gunshots, and remembered that he had called 911.

The defendant testified as follows: He had previously suffered a workplace injury that left him disabled and vulnerable to paralysis if his neck were injured. When Long threatened him during their argument, the defendant got the revolver for his protection. After Long and Billings went out to the garage, Long returned and hit him on the head from behind. Long continued to hit him, and the defendant feared that Long would twist his neck and cause him to become paralyzed. He acknowledged that he had fired several shots in the air. However, he did not know at the time that he had hit Long. He left the house and spent the night in a shed.

When the police arrived at Stockner's, they found Long lying on the floor, already dead from the gunshot wounds. The defendant had left the house by then. Stockner was present, although very drunk and belligerent. The sheriff's office immediately mounted a search of the area. They located the defendant the following morning, and arrested him for Long's murder.

Defendant presents three arguments in support of four of the assignments of error set forth in his record on appeal. The other eighteen assignments of error have not been discussed in his brief, and thus are deemed abandoned. N.C.R.App. P. 28(a) and 28(b)(5).

Defendant first assigns plain error to the playing at trial of a tape recording of the call made to the 911 emergency dispatch center (911 tape) from Stockner's house during the homicide. The tape includes sounds originating from the emergency center, and other voices and noises that apparently were recorded at Stockner's house during the incident. These include the final seconds of the argument between Long and the defendant, gunshot noises, and then a dialogue between Stockner and the 911 dispatcher about the homicide. The tape's relevance to trial issues is indisputable. The defendant did not object at trial to the tape's admission into evidence, nor did he request an instruction limiting it to corroborative evidence. However, defendant argues on appeal that the trial court committed plain error by admitting the 911 tape as substantive evidence.

The plain error analysis is the appropriate standard of review when a defendant does not object to the admission of evidence at trial. State v. Ridgeway, 137 N.C.App. 144, 526 S.E.2d 682 (2000) (plain error analysis applied where defendant raises admissibility of hearsay on appeal, but did not object when evidence was introduced during trial). 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 (2000) (citations omitted). This Court has often noted that:

[T]he plain error rule ... is always to be applied cautiously and only in the exceptional case where, after reviewing the entire record, it can be said the claimed error is a `fundamental error, something so basic, so prejudicial, so lacking in its elements that justice cannot have been done,' or where [the error] is grave error which amounts to a denial of a fundamental right of the accused,' or the error has `resulted in a miscarriage of justice[.]' (emphasis in original).

State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983). Further, the defendant who fails to object to evidence at trial bears the burden of proving that the trial committed plain error. State v. Reaves, 142 N.C.App. 629, 544 S.E.2d 253 (2001); State v. Allen, 141 N.C.App. 610, 541 S.E.2d 490 (2000). Thus, the issue for this Court is whether the defendant has met the burden of proving that the admission of the 911 tape as substantive evidence was plain error. We find that he has not met this burden.

Defendant raises several issues regarding the 911 tape. First, he contends that it was not properly authenticated. Under N.C.G.S. § 8C-1, Rule 901(a) (1999), a tape recording may be authenticated by "evidence sufficient to support a finding that the matter in question is what its proponent claims." Rule 901(b)(5) includes voice identification among the examples of means by which a party may authenticate a tape. In the instant case, the State claimed that the tape was a record of the 911 call between Stockner's house and the 911 emergency center. Jason Benton, of the Brunswick County 911 center, testified that the tape was an exact copy of the digital telephone recording made the night of the incident. He had listened both to the original and to the copy, and testified that they were identical. He identified the voices of 911 emergency center employees on the tape. Billings and defendant testified that they could identify the other voices on the tape as those of Stockner, Long, and the defendant. We find this evidence sufficient to support a finding that the tape was what the State contended it to be: a recording of the 911 call made during this incident.

The defendant also contends that the presence of clicking noises on the tape, which the prosecutor argued were the sounds of the defendant cocking his gun between shots, were "inaudible" and rendered the tape inadmissible. We disagree. Defendant correctly states that an otherwise properly authenticated tape should not be admitted unless it is audible, intelligible, and not obviously fragmented. State v. Williams, 334 N.C. 440, 434 S.E.2d 588 (1993), judgment vacated on other grounds, 511 U.S. 1001, 114 S.Ct. 1365, 128 L.Ed.2d 42 (1994); State v. Lynch, 279 N.C. 1, 181 S.E.2d 561 (1971). Whether a tape is sufficiently audible to be admitted is in the discretion of the trial judge, and will not be reversed absent an abuse of that discretion. State v. Womble, 343 N.C. 667, 473 S.E.2d 291 (1996). "[A] tape [recording] should not be excluded merely because parts of it are inaudible if there are other parts that can be heard." Searcy v. Justice and Levi v. Justice, 20 N.C.App. 559, 565, 202 S.E.2d 314, 318, cert. denied, 285 N.C. 235, 204 S.E.2d 25 (1974). The defendant contends that a clicking noise heard on the tape was "inaudible." We do not find that the `click' noises between gunshots two and three render the tape inadmissible. Moreover, the defendant does not argue that the voices heard on the tape were inaudible. We do not agree with defendant that the click noises were "the crux of the state's case." The most significant feature of the tape is the conversation immediately before, during, and after the gunshots. This is especially true in view of the fact that at the time of trial the defendant was the only eyewitness who testified in detail about the moments surrounding the gunshots. Long was deceased; Billings had been in the garage and had neither seen the men, nor been able to hear their conversation at the time of the shooting; and Stockner was unable to recall the events with clarity. The statements heard on the tape provide an objective way to reconcile the varying accounts given at trial. We do not find that the trial court abused its discretion or committed plain error by finding the tape sufficiently audible to be admitted.

The defendant also argues that the `click' might be an...