State v. Triplett

• Decision Date: 18 February 1986
• Docket Number: No. 650A84,650A84
• Citation: 316 N.C. 1,340 S.E.2d 736
• Parties: STATE of North Carolina v. Bobby Dean TRIPLETT, Jr.
• Court: North Carolina Supreme Court

Page 736

340 S.E.2d 736

316 N.C. 1

STATE of North Carolina v. Bobby Dean TRIPLETT, Jr.

No. 650A84.

Supreme Court of North Carolina.

Feb. 18, 1986.

Lacy H. Thornburg, Att. Gen. by Ralf F. Haskell, Sp. Deputy Atty. Gen., Raleigh, for the State.

Adam Stein, Appellate Defender by Malcolm Ray Hunter, Jr., First Asst. Appellate Defender, Raleigh, for defendant-appellant.

MITCHELL, Justice.

The defendant has brought forth two assignments of error on appeal. He first contends that the trial court erred by denying his motion to dismiss the charge of first degree murder. He also contends that the trial court erred by allowing the State's witnesses to testify as to statements made to them by the victim prior to her death concerning threats made against her by the defendant. These contentions are without merit.

The State's evidence tended to show that the victim, Sumie Triplett, left her second shift mill job at 11:00 p.m. on Monday, February 13, 1984. Around 11:30 p.m., she arrived at her home which she shared with her son, the defendant.

At about 4:30 a.m. on February 14, 1984, a deputy sheriff on routine patrol spotted the victim's car at a "pull-off" area of U.S. Highway 321. After observing the empty car, the officer spotted the defendant down a fifty-foot embankment. The defendant returned to the car and explained that he had gone to the woods "to use the bathroom." The officer noticed that the defendant's hair was wet. It had been raining earlier that night. The next morning, the defendant was again seen driving his mother's car within a couple of miles of the location at which the officer had seen him. The victim's body was eventually discovered nearby.

Late in the afternoon of February 14th, the defendant called his brother and told him that their mother was missing. The defendant told his brother and sister that he had last seen the victim around 11:30 the previous night. He said that his mother had told him that she was going out and would be back in a little while. The brother testified that the defendant did not seem upset that the victim was missing. Other witnesses testified that the defendant said that he would inherit all of his mother's property.

A search began after the police were notified that the victim was missing. On February 15th, a one hour search of the area off U.S. Highway 321 where defendant's vehicle was seen the previous night produced a white sock and cigarette lighter. On February 18th, the search was resumed and the officers spotted a trail of blood splatters going down the highway embankment to an old roadbed. Following the trail of blood, the search party found three Marlboro Light cigarette butts and a woman's right shoe. The searchers followed the trail of blood for about three hundred feet and discovered the victim's body hidden under a branch and a pile of leaves. The victim had died from strangulation by ligature three or four days earlier.

Janie Cline, a friend of the victim, and Ann Marie Burns, the victim's daughter, both testified that the victim told them of recent incidents during which the defendant threatened her with harm. Ms. Cline testified that less than a month before the victim's death, she had stated that the defendant had threatened her with a knife and grabbed and choked her. Mrs. Burns testified that the victim had told her that the defendant had threatened the victim with a butcher knife.

The State also introduced evidence that the defendant smoked Marlboro Lights, the same brand as the cigarette butts found near the body. However, the police were unable to determine the blood type of the smoker from saliva residue on the butts or whether the smoker was a secretor. The defendant was a blood type A-secretor. All three cigarettes found near the body had identical code numbers indicating that they came from the same machine and probably from the same pack, although code numbers on Marlboro Light cigarette butts found in the ashtray of the victim's car did not match those on the butts found near the body.

In his first assignment of error, the defendant contends that the trial court erred by denying his motion to dismiss the charge of first degree murder on the ground that there was insufficient evidence to support a finding that the defendant was the perpetrator of the murder. This contention is without merit.

In testing the sufficiency of the evidence to sustain a conviction and to withstand a motion to dismiss, the reviewing court must determine whether there is substantial evidence of each essential element of the offense and that the defendant was the perpetrator. State v. Powell, 299 N.C. 95, 261 S.E.2d 114 (1980). The evidence is to be considered in the light most favorable to the State and the State is entitled to every reasonable inference to be drawn therefrom. State v. Thomas, 296 N.C. 236, 250 S.E.2d 204 (1978); State v. McKinney, 288 N.C. 113, 215 S.E.2d 578 (1975). When as here the motion to dismiss puts into question the sufficiency of circumstantial evidence, the court must decide whether a reasonable inference of the defendant's guilt may be drawn from the circumstances shown. State v. Powell, 299 N.C. 95, 261 S.E.2d 114 (1980). If so the jury must then decide whether the facts establish beyond a reasonable doubt that the defendant is actually guilty. Id.

The State offered sufficient evidence to support a reasonable inference that the defendant murdered his mother. That evidence tended to show that the defendant was the last person to see his mother on February 13th. In the early morning hours of February 14th, he was seen down a fifty-foot embankment and very near the spot where his mother's body was later found. Cigarette butts of the brand he smokes were found near the body. The evidence also tended to show that the defendant had made prior threats to his mother and had attacked her and choked her on occasion. The defendant had told others that he would inherit all of his mother's property.

The State's evidence also tended to show that the defendant was living apart from his pregnant estranged wife. The defendant and his mother argued over the fact that she would not allow the defendant's wife to move into the house. His wife had told him that she would return if he got a job and a place to live. Although the State is not required to establish a motive for the crime, this evidence also tends to support an inference that the defendant was the perpetrator of the murder.

Based on the foregoing, we conclude that the evidence was sufficient in the present case to support a reasonable inference that the defendant committed the crime charged. No more was required since the evidence need not be inconsistent with every reasonable hypothesis of innocence in order to withstand a defendant's motion to dismiss. Id. at 101, 261 S.E.2d at 118; State v. Burton, 272 N.C. 687, 158 S.E.2d 883 (1968); State v. Stephens, 244 N.C. 380, 93 S.E.2d 431 (1956). Therefore, the trial court did not err by denying the defendant's motion to dismiss.

The defendant next assigns as error the trial court's actions in allowing the State's witnesses, Janie Cline and Ann Marie Burns, to testify about statements made to them by the victim regarding the defendant's threats and attacks against her. The defendant contends that their hearsay testimony about such statements was inadmissible under Rule 804(b)(5) of the North Carolina Rules of Evidence because (1) the statements did not have the required circumstantial guarantees of trustworthiness, and (2) the State did not provide written notice as required by Rule 804(b)(5).

Rule 804 which became effective July 1, 1984 provides in pertinent part:

(b) Hearsay Exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:

....

(5) Other Exceptions. A statement not specifically covered by any of the foregoing exceptions [for former testimony, statements under belief of impending death, statements against interest and statements of personal or family history] but having equivalent circumstantial guarantees of trustworthiness, if the court determines that (A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can produce through reasonable efforts; and (C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence. However, a statement may not be admitted under this exception unless the proponent of it gives written notice stating his intention to offer the statement and the particulars of it, including the name and address of the declarant, to the adverse party sufficiently in advance of offering the statement to provide the adverse party with a fair opportunity to prepare to meet the statement.

N.C.G.S. 8C-1, Rule 804(b).

In the recent decision of State v. Smith, 315 N.C. 76, 337 S.E.2d 833 (1985), this Court exercised its supervisory power by adopting guidelines for the admissibility of hearsay testimony under the "catchall" or "residual" hearsay exception established by Rule 803(24). Because Rule 804(b)(5) and Rule 803(24) are substantively nearly identical, we now adopt parallel guidelines for the admission of hearsay testimony under Rule 804(b)(5).

Rule 804(b)(5) is a verbatim copy of Rule 803(24), except that Rule 804(b)(5) also requires that the declarant be unavailable before the hearsay may be admitted and Rule 803(24) does not. Rule 804(a) defines "unavailability as a witness" to include situations in which the declarant:

(1) Is exempted by ruling of the court on the ground of privilege from testifying concerning the subject matter of his statement; or

(2) Persists in refusing to testify concerning the subject matter of his statement despite an order of the court to do so; or

(3) Testifies to a lack of memory of the subject matter of his statement; or

( 4) Is...