STATE v. PIERCE (2018)

Where an out-of-court statement was offered into evidence, which defendant was able to deny when it was made but declined to do so, that statement was admissible to show adoption by silence, and the trial court did not err in admitting it. Where defendant failed to show any prejudice from the admission of evidence, any error was harmless. We find no error.

I. Factual and Procedural Background

On 15 January 2014, Derrick Pierce (“defendant”) was indicted for the attempted first-degree murder of Johnny Tyler (“Tyler”), assault with a deadly weapon with intent to kill inflicting serious injury upon Tyler, and first-degree murder of Keshia Ward (“Ward”), resulting from an altercation in the home of Tyler and Ward on 1 January 2014. Specifically, Tyler testified that, after a New Year’s Eve party in which Tyler, Ward, defendant, Antwan Johnson (“Johnson”) and Amanda Canady (“Canady”), were in attendance, defendant, Johnson, and Canady came into the home and brutally beat and tortured Tyler and Ward. In a recorded telephone conversation made by defendant from jail, defendant admitted to assaulting Tyler but denied assaulting Ward. At trial, defendant likewise admitted that he assaulted Tyler, but denied assaulting Ward.

Officers secured a search warrant to search the contents of defendant’s phone. Stored in the phone, officers found a log of text messages between defendant and Amanda Reaves (“Reaves”), who was listed in defendant’s contacts list as “Wifey.” Over objection, the State introduced a text message sent by “Wifey” to defendant at 8:54 p.m. on 1 January 2014, and another sent by defendant to “Wifey” at 11:08 p.m., roughly two hours later. The message from “Wifey” said that she had been watching the news, that she “cannot believe [defendant] would be that low to do something like that[,]” and that she was “about to clean that house out and disconnect our phones.” She added, “I wish you the best of luck in life and if you have one left.” The message from defendant responded that “Wifey” was “s’posed to stick by your man no matter what or who.” The State sought to introduce this evidence as an implied admission of defendant’s guilt. The trial court overruled defendant’s objection.

The jury returned verdicts finding defendant guilty of attempted first-degree murder of Tyler, assault with a deadly weapon with intent to kill inflicting serious injury on Tyler, and first-degree murder of Keshia Ward on the bases of malice, premeditation and deliberation, felony murder, and torture. The trial court consolidated the charges of attempted murder and assault, and sentenced defendant to a minimum of 180 months and a maximum of 228 months in the custody of the North Carolina Department of Adult Correction. The trial court also sentenced defendant to life imprisonment on the charge of first-degree murder. These sentences were to run consecutively.

Defendant appeals.

II. Standard of Review

“When preserved by an objection, a trial court’s decision with regard to the admission of evidence alleged to be hearsay is reviewed de novo.” State v. Johnson, 209 N.C. App. 682, 692, 706 S.E.2d 790, 797 (2011). “Evidentiary errors are harmless unless a defendant proves that absent the error a different result would have been reached at trial.” State v. Ferguson, 145 N.C. App. 302, 307, 549 S.E.2d 889, 893 (2001).

III. Analysis

In his sole argument on appeal, defendant contends that the trial court erred in admitting certain text messages into evidence as an implied admission by defendant. We disagree.

At trial, the State, over objection, introduced text messages between defendant and “Wifey.” The trial court noted that, in defendant’s purported response to “Wifey’s” message accusing him of the crime, “[t]here’s no questioning about what she’s referring to. There’s no reaction to her apparently disconnecting the phones and about to clean the house out other than the response made. ․ And it can be argued, of course, either way in front of the jury as to what it does or doesn’t mean.” On appeal, defendant contends that these text messages were improperly used to suggest that his silence constituted an admission.

Hearsay is “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” N.C.R. Evid. 801(c). Hearsay is not admissible, except as specifically provided by statute or the Rules of Evidence. N.C.R. Evid. 802. However, a statement is admissible as an exception to the hearsay rule if it is offered against a party and it is “a statement of which he has manifested his adoption or belief in its truth[.]” N.C.R. Evid. 801(d).

A party may adopt the statement of another person either expressly or by “other conduct of a party which manifests circumstantially the party’s assent to the truth of a statement made by another person.” State v. Sibley, 140 N.C. App. 584, 588, 537 S.E.2d 835, 839 (2000) (quoting FCX, Inc. v. Caudill, 85 N.C. App. 272, 278, 354 S.E.2d 767, 772 (1987) ). “Adoptive admissions fall generally into two categories—those inferred from an affirmative act of a party, and those inferred from silence or a failure to respond in circumstances that call for a response.” Id. at 588-89, 537 S.E.2d at 839.

Our Supreme Court has noted that

Implied admissions are received with great caution. However, if the statement is made in a person’s presence by a person having firsthand knowledge under such circumstances that a denial would be naturally expected if the statement were untrue and it is shown that he was in position to hear and understand what was said and had the opportunity to speak, then his silence or failure to deny renders the statement admissible against him as an implied admission.

State v. Spaulding, 288 N.C. 397, 406, 219 S.E.2d 178, 184 (1975), vacated in part on other grounds, 428 U.S. 904, 49 L.Ed. 2d 1210 (1976).

Our Supreme Court has examined five requirements which would permit a party’s silence to constitute an adoptive admission:

(1) The statement must be made in the defendant’s presence; (2) The statement must be made by a person having firsthand knowledge of the facts contained in the statement; (3) The statement must be made under such circumstances that a denial would be naturally expected if the statement were untrue; (4) The defendant must be in a position to hear and understand what was said; and (5) The defendant must have had the opportunity to speak.

State v. Thompson, 332 N.C. 204, 216-17, 420 S.E.2d 395, 402 (1992) (citing Spaulding, 288 N.C. at 406, 219 S.E.2d at 183).

With respect to the first requirement, that statements be made in a party’s presence, defendant contends that the exchange was by text message, and not in defendant’s physical presence. However, our Supreme Court has rejected the contention that “presence” means “physical presence.” In Thompson, the defendant argued that a conversation which took place on the telephone was not in the defendant’s “presence.” Our Supreme Court disagreed, however, and held that “the proper focus is on the defendant’s ability to hear and understand the statement being made to him[,]” not his physical presence. Thompson, 332 N.C. at 218, 420 S.E.2d at 402. In the instant case, given defendant’s extensive use of text messaging, there is no question that defendant had the ability to understand “Wifey’s” message to him.

With respect to the second requirement, that the speaker have firsthand knowledge of the subject matter, defendant contends that Reaves lacked firsthand knowledge. He notes that “Wifey’s” text “references something in the breaking news online[,]” which he claims is “completely ambiguous.” However, this is demonstrably untrue. It is clear from the transcript that the meaning of this message was apparent. Reaves had heard about the attack on the news, and believed that defendant was involved. Her language, “I cannot believe you would be that low to do something like that[,]” and, “I wish you the best of luck in life [ ] if you have one left[,]” shows her belief that defendant was involved in the crime. There is nothing ambiguous about her statement. Further, defendant’s search history – the introduction of which defendant does not challenge on appeal – demonstrates defendant’s awareness of what was being reported with respect to the crime. Notwithstanding the fact that Reaves had no firsthand knowledge of the crime itself, she clearly had knowledge that one had happened.

With respect to the third requirement, that the statement be made under such circumstances that a denial would be expected, defendant offers a conclusory argument that “[t]ext messages are different from statements made during a direct conversation[,]” that “[t]he evidence does not show how carefully [the message] was read[,]” and that “text messages express incomplete thoughts whose meanings are not clearly expressed.” These abstract musings, however, have no bearing on this case. We have held that, “[w]hether the statement is oral or written, the critical inquiry is whether a reasonable person would have denied it under the circumstances.” FCX, 85 N.C. App. at 279, 354 S.E.2d at 773.

What matters is that the text from “Wifey” unambiguously implicated defendant in the crime, and expressed her belief that he had committed it. Had “Wifey” expressed these identical sentiments, verbatim, in a face-to-face conversation, a denial would most certainly be expected. However, despite having a two-hour window in which to formulate a response, defendant declined to offer any denial of his conduct.

Defendant offers no arguments with respect to the remaining requirements, that defendant must be in a position to hear and understand the statement, and that defendant must have an opportunity to speak, but it is undisputed that both were satisfied. We hold that all five requirements of an admission by silence were met, and therefore that the trial court did not err in admitting this evidence.

Even if the trial court had erred in admitting this evidence, defendant would not prevail on appeal. “Evidentiary errors are harmless unless a defendant proves that absent the error a different result would have been reached at trial.” Ferguson, 145 N.C. App. at 307, 549 S.E.2d at 893. Accordingly, the burden is on defendant, on appeal, to show that the introduction of this evidence prejudiced him; that is, that “had the error in question not been committed, a different result would have been reached at the trial[.]” N.C. Gen. Stat. § 15A-1443(a) (2017).

With respect to prejudice, defendant contends that there was no physical evidence to show defendant’s involvement in Ward’s death, and that these text messages were the only evidence to connect defendant to Ward’s murder.

However, defendant admitted to the assault on Tyler. This assault was felonious, and established a basis for felony murder. See N.C. Gen. Stat. § 14-17(a) (2017). Our Supreme Court has held that, where multiple defendants conspire to commit a felony, and in the course of doing so a killing occurs, “all participants are guilty of murder in the first degree.” State v. Squire, 292 N.C. 494, 511, 234 S.E.2d 563, 573 (1977). The evidence shows that defendant, along with Johnson and Canady, attacked, beat, and tortured Tyler, and that at some point during this abuse, Ward was similarly beaten, but with fatal results. The attack on Tyler was a felony, and during the commission thereof, Ward was murdered. Whether defendant dealt the fatal blow, or any blow, to Ward was irrelevant; his involvement in the felonious attack on Tyler made him party to the felony murder of Ward. The jury recognized this, finding defendant guilty of the murder on multiple bases, one of which was the felony murder rule. This basis alone was sufficient to support a conviction for first-degree murder. See State v. Swift, 290 N.C. 383, 407, 226 S.E.2d 652, 669 (1976) (holding that “when the law and evidence justify the use of the felony-murder rule, then the State is not required to prove premeditation and deliberation”).

Even had the texts to and from “Wifey” not been admitted, defendant’s involvement in the felonious attack on Tyler made him a party to the felony murder of Ward. We therefore hold that defendant has failed to show that the admission of this evidence prejudiced him. Accordingly, any purported error arising from the introduction of this evidence is harmless.

NO ERROR.

Report per Rule 30(e).

CALABRIA, Judge.

Judges TYSON and ZACHARY concur.