State v. Walden

• Decision Date: 28 August 1984
• Docket Number: No. 540A83,540A83
• Citation: 311 N.C. 667,319 S.E.2d 577
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Roosevelt WALDEN.

Page 577

319 S.E.2d 577

311 N.C. 667

STATE of North Carolina v. Roosevelt WALDEN.

No. 540A83.

Supreme Court of North Carolina.

Aug. 28, 1984.

Rufus L. Edmisten, Atty. Gen. by Christopher P. Brewer, Asst. Atty. Gen., Raleigh, for the State.

W. Lunsford Crew, Roanoke Rapids, for defendant-appellant.

FRYE, Justice.

Defendant brings forward numerous assignments of error which he alleges entitle him to a new trial. Those assignments of error allege that the trial court erred by admitting various hearsay statements into evidence, by expressing an opinion on the evidence when it gave an instruction to the jury following an improper statement by the prosecutor, by failing to instruct the jury that defendant was not required to testify, and by denying defendant's motions for a mistrial and dismissal of the charges against him. Our review of the entire record discloses that no error was committed by the trial court.

On 14 July 1983, a jury convicted defendant of murder in the first degree. The victim was Donnie Mae Kittrell. After the jury had rendered its verdict, the trial court sentenced defendant to life imprisonment.

The evidence relied upon by the jury to find defendant guilty of murder in the first degree was as follows:

The State's evidence disclosed that on 28 December 1982, Donnie Mae Kittrell was married to Bernard Kittrell and had five children, four of whom were living with Mr. and Mrs. Kittrell. Although Mrs. Kittrell was married, she and the defendant, Roosevelt Walden, had been going together for quite some time, and they saw each other on a regular basis.

During the evening hours on 28 December 1982, Mr. Kittrell was at work in Lewiston, North Carolina, and Mrs. Kittrell was at home with her four children. Terry Boone, Richard Moore and the defendant's nephew, Victor Dwayne Walden, were also present at the Kittrell residence. At least one of the men ate dinner at the Kittrell residence while they were visiting Mrs. Kittrell.

Between 8:30 and 9:00 p.m., the defendant arrived at the Kittrell residence while the three men were present and knocked on the front door. Defendant was alone and unarmed. After Mrs. Kittrell discovered that it was defendant at the door, she refused to open the door. Thereafter, the three men and Mrs. Kittrell's eldest son, Tommy Earl Hill, attempted to get defendant to leave the premises. He refused to do so.

After being refused entry to the Kittrell residence, defendant attempted to force his way into the house. Then, the three men and Tommy Hill leaned against the front door to prevent the defendant from entering the house. The front and back doors were locked. After several unsuccessful attempts to break into the house, defendant left the scene.

Between ten and fifteen minutes later, defendant returned to the Kittrell residence. He was armed with a single-barrel .12 gauge shotgun. After unsuccessfully attempting to enter the front door, defendant tried to enter the back door. By this time, the men in the house had moved a refrigerator against the back door. Nevertheless, defendant was able to force his way into the house through the back door. As defendant entered the house, Mr. Moore and Mr. Walden attempted to take the shotgun away from him. Mr. Boone left the house so that he could go to a neighbor's house to call the police. As the three men struggled over the shotgun, the shotgun discharged into the wall. No one was hurt. Thereafter, Mr. Moore and Mr. Walden shoved the defendant out the front door of the house.

Shortly thereafter, defendant returned to the front door with the shotgun and shot through the front door. He then entered the house and began looking for Mrs. Kittrell. After a short while, Mrs. Kittrell appeared from one of the rooms of the house and was walking through the kitchen. Defendant was a few steps behind her. As Mrs. Kittrell walked through the kitchen, defendant shot her in the back. After defendant had left the scene, Mr. Walden checked the victim, but was unable to detect a heartbeat. As Terry Boone was returning to the victim's house, he heard a gunshot and saw the defendant leaving the house in his car.

Defendant left the scene of the shooting and went to the home of Mr. and Mrs. Ernest Williams. Mr. Williams subsequently drove the defendant to Suffolk, Virginia, where he caught a bus to Newark, New Jersey, where defendant's sister lived. Defendant remained in Newark, New Jersey, until he was apprehended by the F.B.I. in early March 1983. After waiving extradition, he was returned to North Carolina.

Dr. William Franklin Hancock, Jr., M.D., a pathologist, performed the autopsy on the victim. Dr. Hancock testified that the victim died from a shotgun wound to the back. He defined the biological cause of death as being "a combination of excessive bleeding and massive damage to [Mrs. Kittrell's] vital organs."

The defendant testified in his own behalf. His testimony was virtually consistent with the evidence presented by the State, except it differed, in the most significant respects, as follows: Defendant testified that he always carried his shotgun to the Kittrell residence because he was afraid of Mr. Kittrell. Defendant also testified that his shotgun was accidentally fired through the front door of the Kittrell residence as a result of a struggle between himself, Mr. Moore and Mr. Walden, which occurred after they had pushed him out of the front door. Defendant testified that he then entered the house and reloaded his shotgun because "[he] was afraid to let [Mr. Moore and Mr. Walden] have his gun." According to defendant, after he had looked through the house for Mrs. Kittrell, he was standing in the den doorway with the shotgun in his hand when Mrs. Kittrell walked by him. Although the shotgun was loaded, it was broken down and incapable of being fired unless the breech was closed up and the hammer cocked. As defendant saw Mrs. Kittrell, he stepped toward her and at that time, someone grabbed him from behind and the shotgun fired, shooting Mrs. Kittrell in the back. Defendant did not know who grabbed him. After kneeling down beside the victim's body, defendant left the scene because he was afraid.

II.

Defendant's first assignment of error alleges that the trial court erred by allowing several State's witnesses to testify concerning various statements made by the decedent. Defendant contends that these statements were inadmissible hearsay which was prejudicial to him. We disagree.

During direct examination in response to the statement by the prosecutor, "Tell what she [Mrs. Kittrell] said," State's witness Terry Boone testified that, "Well, she was saying that she didn't want to see him, telling him to go ahead on." Richard Moore testified that Mrs. Kittrell stated, "Please don't let him in," and Victor Walden testified, "Like she started to the door, you know, and she asked who was at the door?"

Assuming arguendo that the statements were hearsay, they were properly admissible as an exception to the hearsay rule as part of the res gestae. The statements were admissible because they were part of the transactions which immediately preceded the homicide in the instant case and arguably precipitated it. See State v. Covington, 290 N.C. 313, 226 S.E.2d 629 (1976); State v. Burleson, 280 N.C. 112, 184 S.E.2d 869 (1971); 1 Brandis on North Carolina Evidence § 158 (1982). Additionally, the statements were admissible to show the victim's state of mind since they tended to show that the victim did not want to see the defendant and did not want him in her home. See generally 1 Brandis on North Carolina Evidence § 162 (1982).

Defendant also alleges that the trial court erred by admitting additional testimony of Mr. Moore concerning statements made by the decedent. In response to the question asked on direct examination, "Why did you go to [Mrs. Kittrell's] house?," Mr. Moore responded, "She asked me to come by." On re-direct examination Mr. Moore answered the question, "Why did Mrs. Kittrell ask you there?," by saying, "She asked me to come around to the house." Both of the above statements were clearly offered for a non-hearsay purpose since they were offered to explain Mr. Moore's subsequent conduct in going to Mrs. Kittrell's residence after she had made the statement to him. As stated on numerous occasions by this Court, "the statements of one person to another are admissible to explain the subsequent conduct of the person to whom the statement was made." State v. Maynard, 311 N.C. 1, 16, 316 S.E.2d 197, 205 (1984); see also State v. Tate, 307 N.C. 242, 297 S.E.2d 581 (1982). Defendant's assignment of error is rejected.

III.

Defendant next contends that the trial court erred by admitting into evidence two photographs of the decedent's body. Defendant argues that the photographs "were not necessary or really helpful to illustrate the testimony of the witness."

It is well settled law in North Carolina that a witness may use a photograph to illustrate his testimony and make it more intelligible to the court and jury. State v. Young, 291 N.C. 562, 231 S.E.2d 577 (1977). As long as the photograph is properly authenticated as a correct portrayal of the conditions observed and related by the witness who uses the photograph to illustrate his testimony, "the fact that it is gory or gruesome, or otherwise may tend to arouse prejudice, does not render it inadmissible." Young, 291 N.C. at 570, 231 S.E.2d at 582; State v. Atkinson, 275 N.C. 288, 167 S.E.2d 241 (1969), death sentence vacated, 403 U.S. 948, 91 S.Ct. 2283, 29 L.Ed.2d 859 (1971).

In the instant case, two photographs of the body of the decedent lying on the kitchen floor were admitted into evidence to illustrate the testimony of Terry Boone. These photographs were not gruesome or gory nor were they excessive in number. They were admitted for the limited purpose of illustrating the testimony of Mr. Boone, and they did in fact illustrate his testimony concerning the...