State v. Wagner

• Decision Date: 10 May 1996
• Docket Number: No. 338A95,338A95
• Citation: 343 N.C. 250,470 S.E.2d 33
• Parties: STATE of North Carolina v. Keith Antonia WAGNER.
• Court: North Carolina Supreme Court

Page 33

470 S.E.2d 33

343 N.C. 250

STATE of North Carolina v. Keith Antonia WAGNER.

No. 338A95.

Supreme Court of North Carolina.

May 10, 1996.

Neil D. Weber and Daniel Shatz, Wilmington, for defendant-appellant.

FRYE, Justice.

Defendant, Keith Antonia Wagner, was indicted on 30 August 1993 for first-degree murder and discharging a firearm into occupied property. In a noncapital trial, the jury found defendant guilty of discharging a firearm into occupied property and first-degree murder on the theories of premeditation and deliberation and felony murder. On 26 January 1995, the trial court entered judgments imposing sentences of three years' imprisonment for discharging a firearm into occupied property and life imprisonment for the first-degree murder conviction.

On appeal to this Court, defendant makes three arguments. After reviewing the record, transcript, briefs, and oral arguments of counsel, we conclude that defendant received a fair trial, free of prejudicial error.

The evidence presented at trial tended to show the following facts and circumstances: In the early morning hours of 17 August 1993, Annette Miller (the victim) died from a gunshot wound to her right temple. Defendant, who had been "romantically involved" with the victim, resided with his mother in a trailer approximately one thousand feet from the scene of the crime. The bullet removed from the victim's temple was consistent with having been fired by a .22-caliber rifle found in defendant's mother's trailer shortly after the victim was shot. Defendant admitted to the police that he had fired the rifle "in the air" from a roadway near Bernadette McKnight's trailer, where the victim's body was found.

Defendant and the victim had been involved in a quarrel earlier that evening at McKnight's trailer. The victim and McKnight confronted defendant about their belief that he had made a pass at Theresa Jordan, who was also present at McKnight's trailer. After speaking alone with the victim and denying that the accusations were true, defendant became angry and decided to leave McKnight's trailer. Witnesses testified that, as defendant was leaving the trailer, he said "I'm going to kill all you m----- f-----s in here" and that defendant looked at Theresa Jordan and said, "Especially you, bitch."

McKnight followed defendant as he left the trailer and said, "Please don't shoot my house. My kids are in there.... Calm down, calm down, please calm down." McKnight pulled on defendant's clothing, and he came out of his shirt and his jogging pants. Operaus McKnight, McKnight's brother, and Edison Jordan came outside of the trailer a few minutes later. A fight ensued. Operaus McKnight and Edison Jordan knocked defendant to the ground and punched him. As McKnight asked her brother and Edison Jordan to stop fighting, defendant ran away.

When defendant departed, McKnight made everyone, except the victim and her (McKnight's) children, leave the trailer. McKnight then went to find someone to watch her children and to telephone the police. When McKnight left the trailer, the victim was watching television. McKnight heard one gunshot while she was walking to her sister's house and heard at least two gunshots after she entered her sister's house. McKnight called the police and then returned to her trailer.

On the way back to her trailer, McKnight saw defendant at a neighbor's trailer. Defendant was carrying a rifle. Defendant told McKnight, "I done shot up some s--- in your trailer and you're next." When McKnight returned to her trailer, she found the victim on the floor. McKnight observed two bullet holes in her trailer, one in the front window and another near the front door light switch.

Shortly thereafter, defendant rode up to the trailer with his mother, who asked McKnight what had happened. When McKnight told defendant's mother that defendant had shot the victim, his mother responded that defendant could not have shot the victim because he was at home with her. Witnesses testified that when defendant exited his mother's car, he yelled, "Any other of you m----- f-----s wanna die tonight?" Everyone ran because they thought defendant may have had a gun.

Defendant and his mother left the crowd at the trailer park at about 4:30 a.m. Defendant's mother drove defendant to the Pender County Sheriff's Department to report the assault on defendant by Operaus McKnight and Edison Jordan that took place earlier that morning at McKnight's trailer. Defendant gave the following statement to the police about the assault:

When [McKnight's] brother and the other guy approached me and jumped on me, then they told me if I came back, don't come back shooting B.B.s, so I went home and got a .22 shooting in the air. I didn't see anyone. Whatever happened after I got home. I don't know.

Meanwhile, officers had responded to McKnight's trailer to investigate the shooting. While defendant and his mother were at the Sheriff's Department, an officer called and asked defendant's mother if she would come home and give them the rifle that defendant had been carrying earlier that morning. Defendant's mother left the Sheriff's Department, went to her trailer, consented to a search by an officer, retrieved the rifle for the officer, and gave it to him. The officer, Detective Ezzell, gave defendant's mother a receipt for the rifle. Defendant's mother and Detective Ezzell then returned to the Sheriff's Department.

Defendant's mother and Detective Ezzell arrived at the Sheriff's Department with the .22-caliber rifle at about 6:20 a.m. Detective Ezzell arrested defendant and charged him with murder. Detective Ezzell then questioned defendant about the shooting of Annette Miller and recorded in longhand his questions and defendant's answers. Defendant stated that he shot his rifle "in the air" but that he had not intended to shoot anyone; that he had heard voices inside the trailer before and after the shots were fired; that, after the second shot, he entered the trailer and saw the victim lying on the floor but that he did not think she was dead or had been shot; that, if he did shoot her, he was sorry; that he did not think a .22-caliber bullet could do so much damage; and that, if he had intended to shoot someone, he would have used a more powerful gun.

Defendant testified at trial that he had been drinking on the evening of 16 August 1993 and had smoked marijuana prior to arriving at McKnight's trailer at about 9:00 p.m. He admitted that he and the victim were both "in a rage" over her accusation that he had made advances toward Theresa Jordan. He testified that all he wanted was to go home and "chill out." Defendant further testified that, when he left the trailer, he was intoxicated and did not recall exactly what he said as he was leaving but that he may have told Theresa Jordan that he was going "to get her."

Defendant also testified that, after McKnight attempted to restrain him and after Operaus McKnight and Edison Jordan beat him, he ran home, got his rifle, returned to McKnight's trailer after about five minutes, and fired his rifle twice into the air. Defendant admitted telling Detective Ezzell that he heard voices coming from the trailer and stated that it could have been the television. He testified that he was angry but did not see anyone at whom he was angry and did not intend to kill anyone. Defendant admitted to telling McKnight when he saw her shortly after he had fired the rifle that he had "shot up something." However, he did not recall making any hostile statement to the crowd outside of the trailer when he arrived with his mother and did not recall telling McKnight that he was going to shoot her next.

Defendant's mother testified that, when she first saw defendant on 17 August 1993, he had been badly beaten and was swollen and scratched. She further testified that defendant did not have a gun. She also testified that she left her trailer with defendant to report the assault to the police.

The trial court denied defendant's motions to dismiss made at the close of the State's evidence and again at the close of all the evidence.

Defendant first assigns as error the trial court's admission into evidence, over defendant's objection, of State's Exhibit 29, a handwritten rendition of defendant's interview with Detective Ezzell containing Detective Ezzell's questions and defendant's answers. In addition to moving to suppress the statement on Miranda grounds, defendant objected to the admission of the detective's notes on the grounds that the notes were not acknowledged by defendant, contained editorial comments by the detective, and did not constitute a complete word-for-word rendition of the interview. Defendant argues that he was never afforded the opportunity to review the notes from the interview or to sign the notes to acknowledge their accuracy.

In State v. Walker, 269 N.C. 135, 152 S.E.2d 133 (1967), this Court set out the legal principles for the admissibility of a statement reduced to writing. This Court stated:

"A confession which has been wholly or partially reduced to writing is ordinarily admissible against an accused where it was freely and voluntarily made by him, regardless of the fact that it was reduced to writing by another person, where it was read over to or by accused, or was translated to him, and signed or otherwise admitted by him to be correct." 23 C.J.S., Criminal Law 833(a).

"If a statement purporting to be a confession is given by accused, and is reduced to writing by another person, before the written...