State v. Wiggins

• Decision Date: 05 August 2003
• Docket Number: No. COA02-959.,COA02-959.
• Citation: 159 NC App. 252,584 S.E.2d 303
• Court: North Carolina Court of Appeals
• Parties: STATE of North Carolina v. Rae Lamar WIGGINS, a/k/a, Rae Carruth.

584 S.E.2d 303

159 NC App. 252

STATE of North Carolina v. Rae Lamar WIGGINS, a/k/a, Rae Carruth.

No. COA02-959.

Court of Appeals of North Carolina.

August 5, 2003.

Attorney General Roy Cooper, by Assistant Attorney General William B. Crumpler, for the State.

Rudolf Maher Widenhouse & Fialko, by M. Gordon Widenhouse, Jr., Chapel Hill, for defendant.

TYSON, Judge.

Rae Lamar Wiggins, also known as Rae Carruth ("defendant"), appeals from judgments entered upon a jury's verdict finding him guilty of conspiracy to commit murder, firing a gun into occupied property, and using an instrument with intent to destroy an unborn child. Defendant was sentenced to an active term of imprisonment of 196 months to 245 months for conspiracy to commit murder. Concurrent sentences of 31 to 47 months were imposed for the remaining convictions.

I. Background

On the evening of 15 November 1999, defendant and his eight-months pregnant girlfriend, Cherica Adams ("victim"), watched a movie at a Charlotte theater. The two left the movie theater and rode together to defendant's house to retrieve the victim's car. While there, defendant called Michael Kennedy ("Kennedy") and told him that he and the victim were about to leave. Victim followed defendant in her vehicle toward her home. As they drove along two-lane residential Rea Road, defendant slowed or stopped his large sport utility vehicle in front of the victim's car. Victim could not drive her car around defendant's vehicle. Kennedy drove his rented vehicle beside the victim's car. Van Brett Watkins ("Watkins"), a passenger, fired five shots from the rental vehicle into the victim's car. The victim was wounded four times, once in the neck and three times in the back. Defendant's and Kennedy's vehicles fled the scene in different directions.

The victim called 911 from her cell phone at 12:31 a.m., pulled into a residential driveway, continuously blew the horn, and remained on the phone for over twelve minutes until an ambulance arrived. In her call to 911, the victim described the shooting in detail and informed the dispatcher and an emergency medical technician that she had been following defendant, who was her boyfriend and her baby's father.

Mecklenburg Police Officer Peter Grant ("Grant") arrived on the scene around 12:43 a.m. The victim identified defendant to Grant as the driver of the vehicle that she had also described in the 911 call. The victim was transported by ambulance to Carolinas Medical Center and arrived at 1:10 a.m. The victim gave Grant a complete chronology of the events that transpired during the night and early morning. Emergency surgery was performed to remove the bullets and deliver the baby from the victim at 1:30 a.m. At 4:00 a.m., the victim was taken to a trauma intensive care unit. Around 7:00 a.m., an endotracheal tube was inserted into victim's throat. Traci Willard ("Willard"), the morning nurse, asked the victim if she remembered what had happened to her. The victim nodded and motioned for Willard to bring a pen and paper to her. The victim handwrote notes describing the shooting and events of the morning and previous evening. Later, the victim's father asked her if there were any stop signs on the road that would provide defendant a legitimate reason to stop in the road. The victim shook her head negatively. The victim died 14 December 1999 as a result of the inflicted wounds. Victim's infant son survived.

Defendant was charged with and tried capitally for first-degree murder of the victim, conspiracy to commit murder, discharge of a firearm into occupied property, and the use of an instrument to destroy an unborn child. The State presented testimony from co-conspirators, Watkins and Kennedy. Defendant did not testify but presented evidence. A jury found defendant guilty of conspiracy to commit murder, discharge of a firearm into occupied property, and use of an instrument to destroy an unborn child. Defendant appeals.

II. Issues

Defendant's assignments of error raise the following issues: (1) whether the notes written by the victim at the hospital are inadmissible hearsay; (2) whether the exclusion of defendant's theory of the case and the trial court's failure to instruct the jury on his theory constituted reversible error; (3) whether the trial court erred in allowing the peremptory strikes of black jurors; (4) whether the trial court erred in failing to assess gender discrimination in the juror selection; (5) whether the trial court erred in asking the jury to record its numerical division and to deliberate further; and (6) whether the trial court erred in determining the aggravating and mitigating sentencing factors.

III. Hearsay Statements

Defendant argues that the handwritten notes the victim wrote after awaking from surgery are inadmissible hearsay. The trial court admitted the hearsay statements as present sense impressions, an allowed exception under N.C. Rule of Evidence 803(1).

[P]resent sense impression is defined as [a] statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter. N.C.G.S. § 8C-1, Rule 803(1) (2001) (emphasis supplied). Our Supreme Court analyzed the meaning of immediately thereafter in State v. Cummings, 326 N.C. 298, 389 S.E.2d 66 (1990).

Interpreting the identical Federal Rule, the federal courts have held that there is no per se rule indicating what time interval is too long under Rule 803(1).... [A]dmissibility of statements under hearsay exceptions depends upon the facts of the particular case. United States v. Blakey, 607 F.2d 779, 785 (7th Cir.1979). Here, [the victim's] statement was made in close proximity to the event—a reasonable inference would be the length of time it took to drive from Willow Springs to her mother's house in Raleigh. Under the particular facts of this case, [the victim's] statement to her mother was made sufficiently close to the event to be admissible as present sense impressions under Rule 803(1).

Id. at 314, 389 S.E.2d at 75. The reason for the present sense impression hearsay exception is that closeness in time between the event and the declarant's statement reduces the likelihood of deliberate or conscious fabrication or misrepresentation. State v. Gainey, 343 N.C. 79, 87, 468 S.E.2d 227, 232 (1996).

The State argues that the victim's statements made soon after the victim awoke from surgery qualify as a present sense impression. The State contends that the victim's time in surgery should be removed from the length of time between the shooting and the writings because the victim could not communicate during the surgery. Even after subtracting the length of time the victim spent in surgery and recovery, nearly two additional hours elapsed between the event and the written statement. Defendant argues the victim's written statements were not a present sense impression, but an inadmissible past sense impression. Although the risk is low that the victim formed or seized an opportunity to manipulate the truth, we cannot hold as a matter of law that statements made approximately seven hours after the shooting and after the declarant had undergone general anesthesia and surgery fit within the present sense impression hearsay exception. See State v. Taylor, 344 N.C. 31, 47, 473 S.E.2d 596, 605 (1996) (statement allowed as a present sense impression where it was made immediately after declarant had perceived the condition); State v. Odom, 316 N.C. 306, 313, 341 S.E.2d 332, 336 (1986) (statement allowed as present sense impression where declarant made statement within ten minutes of perceiving abduction).

The State alternatively argues that the statements were admissible under Rule 804(b)(5), which allows admission of trustworthy hearsay consistent with the interests of justice. We disagree. The trial court did not make findings for this hearsay exception to apply as required by State v. Triplett, 316 N.C. 1, 340 S.E.2d 736 (1986). The issue becomes whether this hearsay error was prejudicial or harmless beyond a reasonable doubt. If the same information contained in the victim's written statement was properly introduced into evidence through other witnesses or means, any error in admitting the victim's statement would be harmless beyond a reasonable doubt.

The written statements provide details about the events leading up to and during the shooting. The victim wrote that defendant called someone before they left his house and stated, "we were leaving now." Other comments in the statement included "[h]e was driving in front of me & stopped in the road & a car pulled [up] beside me & he blocked the front & never came back" and "[h]e insisted on coming to my house."

These statements corroborated other properly admitted evidence. Kennedy testified that he received a telephone call from defendant just after midnight on 16 November 1999. Defendant told Kennedy that "[defendant] was at his house and he was getting ready to leave the house." When asked specifically what defendant said, Kennedy replied, "`We're getting ready to leave the house.'" Kennedy also testified to the sequence of events that corroborated the victim's statements. "Rae went over a hill and then down in the dip. Then, he stopped his car; she stopped behind his; I stopped behind her. Then, Watkins told me to pull up beside her car. So, I pulled up beside her car and he started shooting in her car." When asked the distance between defendant's and the victim's vehicles, Kennedy replied "[m]aybe a foot or so; because he stopped, suddenly." Watkins began firing "[a]s soon as we pulled up beside." Defendant's vehicle "pulled off" as Kennedy turned his vehicle around in a driveway.

Officer Grant testified that he asked the victim at the scene if she knew who had shot her. The victim answered "Rae Carruth." Grant asked her if defendant was the person driving the vehicle she described in the 911 call. She replied, "Yes, yes. That's...