State v. Swindler

• Decision Date: 17 March 1998
• Docket Number: No. COA97-13,COA97-13
• Citation: 497 S.E.2d 318,129 N.C.App. 1
• Parties: STATE of North Carolina, Plaintiff, v. Thaddeus SWINDLER, Defendant.
• Court: North Carolina Court of Appeals

Page 318

497 S.E.2d 318

129 N.C.App. 1

STATE of North Carolina, Plaintiff, v. Thaddeus SWINDLER, Defendant.

No. COA97-13.

Court of Appeals of North Carolina.

March 17, 1998.

Appeal by defendant from judgment entered 7 June 1996 by Judge Catherine C. Eagles in Guilford County Superior Court. Heard in the Court of Appeals 18 September 1997.

Attorney General Michael F. Easley by Special Deputy Attorney General Ronald M. Marquette, for the State.

Margaret Creasy Ciardella, Wrightsville Beach, for defendant.

LEWIS, Judge.

Defendant was convicted of first-degree murder. We find no error.

Shortly after 8:00 p.m. on the night of 27 October 1992, Mary Moore Keck heard gunshots and called 911. Several people rushed to the scene to find Joe Daniel Moore, the husband of Mary Moore Keck, lying on the sidewalk with four fatal gunshot wounds.

Four witnesses saw two black men running from the scene of the shooting. Joyce Brown positively identified defendant as one of the men she saw running from the scene. Ms. Brown heard the gunshots from inside her house, and moments later saw defendant pass within six feet of her, running away from where the body was found. Brown had seen defendant on the porch of a nearby house earlier that evening.

Two other witnesses testified that one of the men had very light skin, like defendant's. There was testimony that one of the men had defendant's build and height. A fourth witness testified that neither of the men looked like defendant, that both men were dark-skinned, and that one was dressed like a woman.

A cashier at a nearby Iloco convenience store testified that defendant purchased wine from her store between 7:30 and 7:45 p.m. She testified that defendant was wearing dark clothing and carrying a pistol. Defendant told her he was "pissed off at an old man."

Diagonal from the Iloco store is a Conoco store. A Conoco cashier testified that defendant purchased beer from her around 8:00 p.m. She stated that the victim, Joe Daniel Moore, was also in her store making a purchase at that time. She testified that when Moore left, defendant followed him.

Efrem Colson, who shared a jail cell with defendant as defendant awaited trial, testified that he overheard defendant tell other inmates that he had killed someone and that he was going to get away with it because "[t]hey can't prove it." Detective Michael Dunn testified that he interviewed Mr. Colson while Colson was in jail. Dunn said that Colson told him he overheard defendant's statements about killing someone.

Defendant testified that on the evening of 27 October 1992, before he visited the Iloco and Conoco stores, he was outside helping an older man who had fallen and hurt himself. This apparently occurred in the vicinity of Joyce Brown's house, because, defendant testified, Brown came out of her house and accused him of causing trouble.

Defendant testified that he was drinking on the night of the killing and that he visited the Iloco and Conoco stores. Defendant stated that he purchased some wine and took it to Jay Bryant's house. After some time, Perry Hunter arrived. Hunter was out of breath. Defendant testified that Hunter gave him money to go and buy some more wine. When defendant returned, he, Bryant, and Hunter got into a waiting taxicab. Police stopped the cab after it traveled one block and took defendant, Bryant, and Hunter to the scene of the shooting.

Defendant was charged with first-degree murder. After his first trial and conviction in 1993, the North Carolina Supreme Court vacated the judgment and ordered a new trial. Defendant was again convicted of first-degree murder and now appeals from this judgment.

Defendant first argues that Detective Dunn should not have been allowed to testify about what Efrem Colson told him. Defendant argues that Dunn's testimony was not corroborative and violated his constitutional right to confront the witnesses against him. We disagree.

Colson testified that he overheard defendant say he killed "the motherf--" and that the police could not prove it because they could not find the gun. Colson further testified he heard defendant describe what he was wearing the night of the murder and that defendant talked about someone in the store having seen his gun.

Dunn's testimony was offered to corroborate Colson's testimony. His testimony was similar to Colson's but was more detailed. Dunn stated that Colson told him defendant mentioned hiding some clothing somewhere between the scene of the shooting and the place he ran to. Dunn also testified that Colson said defendant was worried that the store clerk and maybe one of the witnesses saw him with the gun. Defendant argues that because Dunn's testimony included information that Colson's testimony lacked, it was impermissible hearsay and its admission was plain error.

Prior consistent statements of a witness are admissible for purposes of corroboration even if the witness has not been impeached. State v. Riddle, 316 N.C. 152, 157, 340 S.E.2d 75, 78 (1986). When so offered, evidence of a prior consistent statement must in fact corroborate a witness's later testimony. However, there is no requirement that the rendition of a prior consistent statement be identical to the witness's later testimony. "[S]light variances in the corroborative testimony do not render it inadmissible." State v. Covington, 290 N.C. 313, 337, 226 S.E.2d 629, 646 (1976). There is no indication that Dunn's testimony was offered for any reason other than corroboration. Defendant's assignment of error is overruled.

Defendant next argues that the trial court erred in admitting the testimony that Joyce Brown gave in defendant's first trial, and in admitting evidence to corroborate this testimony. We disagree.

At defendant's second trial, Detective Grubb testified that Joyce Brown was in the hospital following a heart attack. It was Detective Grubb's opinion that Brown was unable to testify. The trial court ruled that Brown was unavailable and that all of her prior sworn testimony was admissible.

"In all criminal prosecutions the accused shall enjoy the right ... to be confronted with the witnesses against him." U.S. Const. amend. VI. If a witness is unavailable to testify, her prior testimony is admissible if the party against whom the testimony is offered "had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination." N.C.R.Evid. 804(b)(1). See also Barber v. Page, 390 U.S. 719, 722, 88 S.Ct. 1318, 1320-21, 20 L.Ed.2d 255, 258 (1968). A witness is unavailable to testify if, for example, she cannot attend the proceedings due to an existing physical illness or infirmity. N.C.R.Evid. 804(a)(4). However, a witness is not "unavailable" for purposes of this exception to the confrontation requirement unless the State has made a good-faith effort to obtain her presence at trial. Barber, 390 U.S. at 724-25, 88 S.Ct. at 1322, 20 L.Ed.2d at 260. The State's efforts to produce a witness for trial need only be reasonable and honest. State v. Grier, 314 N.C. 59, 68, 331 S.E.2d 669, 676 (1985).

In this case, the State offered the testimony of Detective Grubb to show that Brown was unavailable. It would have been better had the State presented at least an affidavit from Brown's doctor to explain her absence. However, the trial court's decision to admit Brown's prior testimony was not prejudicial error.

Defendant next asserts that the State should not have been allowed to question defendant about certain statements he allegedly made to a former cellmate. Defendant's attorney did not object to these questions until after they were asked and answered. We find no plain error by the trial court.

Because defendant's arguments on this issue implicate the previous opinion by the Supreme Court in this case, we review that opinion now. After defendant's first conviction, our Supreme Court ordered a new trial because the trial court had received in evidence a letter written by defendant's former cellmate James Quick. State v. Swindler, 339 N.C. 469, 450 S.E.2d 907 (1994). The letter stated in relevant part:

On 11/18 of '92, I, James Quick, ... spoke with inmate Thaddeus Swindler pertaining to a murder he claims to [have] commit[ed] on Oakwood Street, High Point, North Carolina. From my understanding of this murder from Mr. Swindler is that he and some friends had rented some type of housing duplex from Mr. J.D. Moore. However, sometime later, Mr. Moore evicted the tenant; and due to that eviction Mr. Swindler and friends plotted to kill Mr. Moore as revenge. Also, on the night of supposed murder, Mr. Swindler stated to me that he, Swindler, had seen Mr. Moore at this store and followed him home where he fired three shots at Mr. Moore and later fled toward English Road where a police officer stopped him for questioning.

Id. at 471, 450 S.E.2d at 909. Quick refused to testify at defendant's first trial and so was not an "available" witness.

The Supreme Court held that Quick's letter was inadmissible hearsay and that its admission violated the Confrontation Clause of the Sixth Amendment. The Court cited Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980), for the rule that a hearsay statement made by someone who is not available to testify at trial is inadmissible unless the statement falls within a firmly rooted hearsay exception, or the circumstances under which the statement was made otherwise guarantee its trustworthiness. Id. at 472-73, 450 S.E.2d at 910. Quick's letter did not fall within a specific hearsay exception and, the Court held, it lacked the inherent trustworthiness to allow its admission. Id. at 475, 450 S.E.2d at 911. Because the admission of the letter violated defendant's rights under the Confrontation Clause, it was presumed to be prejudicial. See G.S. § 15A-1443(b) (1988). Because the State could not show that the admission of the letter was harmless beyond a reasonable doubt, a new trial was ordered.

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