Everett Karen by zSC0UA


									NO.   COA05-1197                               TENTH DISTRICT



           VS.                  )    From Wake
                                )    00 CRS 57387

                        QUESTIONS PRESENTED



                           STATEMENT OF THE CASE

    This matter came on for trial at the 28 August 2001 Criminal

Session of the Superior Court of Wake County, the Honorable

Howard E. Manning, Jr., Judge Presiding.               Ms. Everett was charged

with murder.    On 30 August 2001, Ms. Everett was found guilty of

second-degree murder and sentenced to 135-171 months in prison.

Ms. Everett gave notice of appeal that day.                  The North Carolina

Court of Appeals vacated the judgment and ordered a new trial on

2 March 2004.    (State v. Everett, COA03-95).

    The case was tried before a jury during the 9 August 2004

Criminal   Session    of   the     Superior    Court    of    Wake   County,    the

Honorable Leon Stanback, judge presiding.               Ms. Everett was found

guilty   of   second-degree      murder.       The   trial     court   imposed    a

sentence of 135 to 171 months in prison.               Ms. Everett gave notice

of appeal in open court.

    The transcript was ordered on 12 August 2004 and delivered

on 8 June 2005.      (Counsel was appointed on 9 June 2005.)                  On 13

July 2005, Ms. Everett moved for an extension of time to serve a

proposed record on appeal.          Honorable Donald W. Stephens entered

an order on 14 July 2005 extending the time to serve the proposed

record until 17 August 2005.             The record was served and settled

by stipulation on 19 August 2005.

    The    record    was   filed    on    9   September      2005.     This   Court

entered an order deeming the record timely filed on 13 September

2005.    The record was docketed that day, and the printed record

was mailed on 21 September 2005.       This Court extended the time

for Ms. Everett to file a brief until 21 November 2005.


    This appeal is an appeal of right pursuant to N.C.G.S.§§7A-

27(b) and 15A-1444(a) and Rule 4(a) of the North Carolina Rules

of Appellate Procedure.


    The trial court’s decisions to exclude evidence related to

the deceased’s reputation for violence and specific acts or

threats of violence presented in Issue I and decision to admit

evidence that Ms. Everett shot a dog in Issue II are reviewed for

relevance, with deference to the trial court’s ruling.     State v.

Wallace, 104 N.C. 498, 502, 410 S.E.2d 226 (1991).

                       STATEMENT OF THE FACTS

    Defense Evidence

    Michael and Karen Everett were married around 1988 and had

problems in their relationship from the very beginning. The

couple quarreled because Mr. Everett did not want Ms. Everett to

work.   Specifically, Mr. Everett did not like Ms. Everett working

with other men.   (Vol. III, T p 58)    Mr. Everett would appear at

Ms. Everett’s place of employment to check on her.    They argued

over his surveillance, and the arguments were physical at times.

(Vol. III, T p 61)

    Mr. Everett’s jealousy caused problems for Ms. Everett at

work.   The trial court excluded evidence that Ms. Everett

received a report from a fellow employee that Mr. Everett made

threats against the employee.    Specifically, the employee

reported that Mr. Everett had promised to shoot up the co-

worker’s home. (Vol. III, T pp 61-63)

    The Everett’s had one child, Michelle, who was born in 1993.

Ms. Everett would spend the night away from home or travel out of

town when Mr. Everett was angry.       Each time, they reconciled, and

Ms. Everett returned to the home.       On the last occasion, Ms.

Everett intended to separate permanently, but was waiting until

after the holidays for the benefit of her daughter.      (Vol. III, T

pp 73-76)

    Although their arguments were physical many times, Ms.

Everett did not seek police intervention until 1990.       (Vol. III,

T p 59)     Ms. Everett and Iris Bryant described an attack by Mr.

Everett in 1998. As Ms. Everett started out the door, Mr. Everett

grabbed her, ripped her clothes, and threw her through a screen

door.   Once on the porch, he choked her and banged her head

against the wall, promising to kill her.      Ms. Everett struggled

to get away, but was unable to free herself until she fell off

the porch and out of his hands into their yard.      Ms. Everett’s

friends were able to protect her after she fell into the yard.

(Vol. III, T pp 40 & 65)

    Mr. Everett was charged with assault, and a restraining

order was granted.    After he followed through with counseling,

Ms. Everett returned to the relationship in an attempt to

preserve their family.   Despite the court intervention and

counseling, however, Mr. Everett’s temper worsened.    He angered

easily and was charged with damaging property on at least one

other occasion, which was unrelated to the domestic relationship.

(Vol. III, T pp 49 & 66-68)

    The Everetts argued more frequently during the year 2000,

and Ms. Everett began sleeping on the couch.    One night after a

conversation with a former co-worker of Ms. Everett’s, Mr.

Everett came home angry and accused Ms. Everett of infidelity.

They argued, but Ms. Everett was not beaten.    After falling

asleep on the couch, however, Ms. Everett woke to find Mr.

Everett holding an assault rifle to her face.    He threatened to

blow her head off.   (Vol. III, T pp 70 & 73-74)

    Ms. Everett and Michelle moved to Ms. Everett’s mother’s the

next morning.   They returned after three weeks, but did not bring

all of their belongings.   On 25 November 2000, the Everetts

argued over Ms. Everett’s failure to bring all her belongings

home.    Mr. Everett interpreted this situation as a sign that Ms.

Everett intended to leave the relationship.    In addition, Mr.

Everett accused Ms. Everett of being with another man while she

and her daughter were at the movies that afternoon.    Mr. Everett

questioned Michelle, who was six-years-old at the time, as well.

Because of the arguments, Ms. Everett visited a friend for a

while.   (Vol. III, T pp 75-79)

       When Mr. Everett got home on 26 November 2000, he asked Ms.

Everett if she had returned the items from her mother’s house.

After initiating this encounter, Mr. Everett accused Ms. Everett

of cheating on him.    She tried to brush off the conversation, but

was unable to avoid Mr. Everett’s arguments and accusations.      Mr.

Everett pushed Ms. Everett onto the sofa and told her that he

should have finished her off when he had the chance.      She

concluded that he regretted not killing her during an earlier

argument.    Ms. Everett decided to leave and take Michelle with

her.    (Vol. III, T pp 79-80)

       As she got up to leave, Mr. Everett pushed her down, holding

her with his hand on her neck and his knee in her shoulder.      Mr.

Everett promised her that the only way she would leave would be

on a stretcher.    Ms. Everett believed that he intended to kill

her.    When Mr. Everett let go, Ms. Everett grabbed her gun to

keep Mr. Everett off her.    (Vol. III, T p 80).

       Ms. Everett walked toward the kitchen, and Mr. Everett saw

the gun.    He threatened to get his gun and “kill everything in

here.”    Ms. Everett told him that she wanted to leave and for him

to stay away from her.    (Vol. III, T p 81)

       At this point, Mr. Everett started toward Ms. Everett.    She

warned him to stay away, but he kept coming.      Ms. Everett fired a

warning shot toward the window.       Mr. Everett kept coming, and Ms.

Everett fired again.    Mr. Everett kept walking and turned toward

the rooms where he kept his assault rifles and ammunition.      Ms.

Everett kept firing.   Ms. Everett shot Mr. Everett because she

thought he would kill her.   (Vol. III, T p 86-90)

State’s Evidence

    Deputy Landmark of the Wake Co. Sheriff’s Department asked

Ms. Everett to give him a statement about the shooting shortly

after arriving at the scene.   Ms. Everett agreed, but refused to

give the statement in front of her daughter.       Once her daughter

left with a family member, Ms. Everett discussed the attack and

shooting with Deputy Landmark.    Although her statement was

voluntary and given a short time after the struggle, Ms. Everett

was shaken and had a difficult time remembering simple

information, like family birth dates and other biographical

information.   According to Deputy Landmark, Ms. Everett was so

shaken that her statement was difficult to follow.       Deputy

Landmark concluded during the interview that Ms. Everett was

doing her best to remember the details of the events.       (Vol. I, T

p 54-55)

    Detective Gerald M. Baker of the Wake County Sheriff’s

Department interviewed Ms. Everett, as well. Evidence concerning

her statements tended to show the following.       Mr. and Ms. Everett

got into an argument that night.       During the argument, Mr.

Everett threatened to kill Ms. Everett several times. Mr. Everett

grabbed her throat and told Ms. Everett that he should have

killed her before.     Ms. Everett responded by getting a gun and

asking Mr. Everett to back off.        Mr. Everett kept coming towards

her and threatened, “you want to play with guns.”.    Michael

started going towards the bedroom after his gun.    Mr. Everett

gets angry when he drinks, but she was unsure whether he drank

that night.    Officer Landmark did not look at her real close for

injuries, but did not remember any apparent injuries.    (Vol. I, T

p 54-55 & 70-73)

    Mr. Everett’s brothers called Mr. Everett on his cell phone

around 5:15 p.m. on 26 November 2001.    They called to tease him

because the Rams lost the football game.    According to Tyrone

Everett, one of the brothers, Mr. Everett was in a good mood.

Several minutes after hanging up, Tyrone Everett received the

news that his brother had been shot.    Tyrone Everett described

his brother as someone who did not have a reputation for having a

bad temper and was always grinning.    (Vol. II, T pp 112-16)

    Mr. Everett’s body was located in the hallway, near the

kitchen.   A projectile was embedded in the windowsill above the

kitchen sink. Blood splatter was found on the refrigerator wall.

Additional blood splatters were noticed on the door casing to the

kitchen.   Mr. Everett’s feet rested just inside the kitchen, with

the remainder of his body lying in the hallway.    Button

fragments, from Mr. Everett’s pants, were found in the hallway.

Three bullets were recovered from Mr. Everett’s body.    (Vol. II,

T pp 129-34)

    Special Agent Dave Santora of the State Bureau of

Investigations did forensic testing on Mr. Everett’s shirt to

determine whether bullet wipe or lead vapors remained on the

shirt.    This testing was completed in an effort to determine the

distance between the weapon and the deceased at the time the gun

was fired.   According to Agent Sanora, a bullet hole in the right

sleeve resulted from a contact shot, where the gun was directly

against or within an inch of the shirt.       The remaining three

holes that Agent Sanora concluded were bullet holes had “bullet

wipe” and “lead vapor” on them.        Agent Sanora tested the gun to

determine the distance at which lead vapor remained after firing.

He did not get any lead vapor at a distance greater than eighteen

inches.   Based on this testing, he opined that three of the holes

resulted from shots at less than eighteen inches.       (Vol. II, T p


     Dr. Sheryl Szpak, a pathologist at Wake Medical Center,

performed an autopsy.   Mr. Everett was five feet, ten inches tall

and weighed 182 pounds.   At the time of his death, Mr. Everett

had no alcohol in his blood.    Dr. Szpak did not perform

toxicology tests to detect drugs.        Mr. Everett had four gunshot

wounds over various parts of his body, including his right arm,

hip, back and chest area.   A bullet penetrated his heart and

caused his death in less than a minute.       (Vol. III, T p 8-15)




     R pp 51-52

    Vol.    III,   T   p   45,   line 18 through T p 55, line 23
    Vol.    III,   T   p   61,   lines 21 through 25
    Vol.    III,   T   p   62,   lines 4 through 9
    Vol.    III,   T   p   71,   lines 11 through 19
    Vol.    III,   T   p   72,   lines 1 through 6


    During the state’s case in chief, several witness vouched

for the general character and attitude of the deceased.            His

mother volunteered that he was responsible, primarily, for the

care of the Everett’s daughter.            (Vol. I, T p 95)   Mr. Everett’s

brother, Tyrone Everett, testified that Mr. Everett did not have

a reputation for having a bad temper, stating that he was always

grinning.    (Vol. II, T p 115)           Further, the state presented

testimony, over objection, that Ms. Everett was not afraid of Mr.

Everett.    (Vol. II, T p 156)

    Ms. Everett presented a case for self-defense.              Yet, the

trial court prevented Ms. Everett from presenting evidence that

called into question the state’s picture of Mr. Everett as a

peaceful person.           The trial court excluded the testimony of

Virgil Rhodes, who had no relationship with Ms. Everett and would

have described Mr. Everett’s violent reaction to the seller of a

car when Mr. Everett experienced car trouble.            In addition, the

trial court excluded evidence that Mr. Everett threatened to

shoot up the home of one of Ms. Everett’s co-workers, a threat

similar to the one he made to Ms. Everett during the encounter

that led to his death.

    These rulings gave the state a powerful advantage.      First,

the state was allowed to present a positive image of Mr.

Everett’s character, describing him as responsible and peaceful.

Second, Ms. Everett was hampered in her efforts to rebut this

portrayal.    Excluding the evidence of Mr. Everett’s violent

nature prevented Ms. Everett from showing his propensity for

violence, explaining her fear and corroborating her testimony

about Mr. Everett’s prior acts of violence toward her.

    Evidence of a victim’s character, while generally

inadmissible, may be introduced “when it is relevant to an issue

in the case.”      State v. Watson, 338 N.C. 168, 187, 449 S.E.2d

694, 706 (1994).      In a case of self-defense, the deceased’s

character may be admissible for either of the following two

reasons:    (1) to show that the defendant’s fear of the deceased

was reasonable or (2) to show that the deceased was the

aggressor.   Id.

    Rule 405 of the North Carolina Rules of Evidence governs the

admission of evidence related to the deceased’s propensity for

violence.    Id.; See N.C.G.S.§8C-1, Rule 405, N.C.R. Evid.

Evidence of this nature may be proved by opinion evidence.        Id.

In addition, “specific instances of conduct may be presented as

proof of character in cases where a person’s character is an

essential element of a charge or defense.”      State v. Brown, 120

N.C. App. 276, 277, 462 S.E.2d 655 (1995).     A deceased’s violent

character is relevant to show the reasonableness of a defendant’s

apprehension and use of force.       Id. at 277-78.   As a result, the

victim’s prior conduct becomes relevant only when the defendant

knew about the violence at the time of the violent encounter as

issue in the case.     Id.

    Ms. Everett presented evidence that she killed her husband

in self-defense.   (Vol. III, T pp 87-90)      The defense was

presented primarily through Ms. Everett’s testimony, although

Iris Bryant described witnessing an earlier attack on Ms. Everett

by Mr. Everett.    (Vol. III, T p 40)    In addition to the events of

that evening, Ms. Everett presented evidence to explain the basis

for her fear, including specific instances where Mr. Everett

broke things to intimidate her, woke her by pointing a gun in her

face and choked her.    (Vol. III, T pp 59-60, 74 & 92)

    The trial court excluded specific instances of violence or

threats of violence that would have shown the reasonableness of

Ms. Everett’s fear and why she used deadly force.       The defense

presented the testimony of Virgil Rhodes outside the presence of

the jury.   Mr. Rhodes testified that he met Mr. Everett when Mr.

Everett purchased a car from Mr. Rhodes’ employer.       Mr. Everett

called to report problems with the car.      Later, Mr. Everett

returned to the car lot and started breaking the windows out of

cars.   Mr. Everett was charged and convicted in the incident.

(Vol. III, T pp 47-50)       Ms. Everett was aware of his outburst and

removed herself from the home for a while after the incident.

(Vol. III, T p 73)

     This evidence was critical in that it was one of the few

instances where a witness unaffiliated with Mr. Everett’s family

or Ms. Everett could testify about Mr. Everett’s violent nature.

Mr. Rhodes testified that he did not know Ms. Everett and was

acquainted with Mr. Everett only through the automobile

transaction and eventual court proceedings.          Although the attack

was directed at an object instead of a physical attack on an

individual, Ms. Everett testified that Mr. Everett started by

destroying objects or ripping things apart then progressed to

physical assaults.     In one instance, Mr. Everett ripped her

clothes off then choked her.       The evidence supported Ms.

Everett’s argument that her apprehension of Mr. Everett was

reasonable and corroborated her testimony about Mr. Everett’s

temper and violent outbursts.

     In addition, the trial court excluded testimony by Ms.

Everett about an incident between Mr. Everett and a former co-

worker.   During that incident, Mr. Everett accused Ms. Everett of

having an affair with the co-worker.         Mr. Everett confronted the

witness and threatened to shoot up his house.1          (Vol. III, T pp


     This evidence is critical because it reveals another

instance where Ms. Everett gained knowledge of threats of

violence by Mr. Everett.      Ms. Everett took Mr. Everett seriously

  Ms. Everett responded to the question, but the trial court excluded the
answer by sustaining the objection and granting the state’s motion to strike
the testimony. Since the motion to strike was granted, the testimony was not

at the time of the threat because she knew he owned assault

rifles.   More importantly, Mr. Everett threatened to shoot up the

house occupied by Ms. Everett and her daughter immediately before

the encounter that led to Mr. Everett’s death.            (Vol. III, T p 63

& 81)

      The trial court committed reversible error by excluding

testimony about Mr. Everett’s violent nature.            The evidence would

have shown that Ms. Everett’s apprehension and use of force were

reasonable.    See Brown, 120 N.C. App. At 277-78, 462 S.E.2d 655.

In addition, Ms. Everett’s credibility was at issue in the trial

and part of the evidence corroborated Ms. Everett’s description

of Mr. Everett’s violent nature, which would have enhanced her

credibility before the jury.         Since these matters related to the

heart of Ms. Everett’s defense, there is a reasonable possibility

a different result would have been reached at trial if the

evidence had been admitted.        See N.C.G.S.§15A-1443(a) and State

v. Reed, 324 N.C. 535, 538, 379 S.E.2d 828, 830 (1989).              Ms.

Everett is entitled to a new trial.



      Vol. I, T p 6, line 10 through T p 7, line 12
      Vol. IV, T p 268, line 18, through T p 269, line 11

      R p 50

before the jury.   See State v. Price, 301 N.C. 437, 451, 272 S.E.2d 103, 113

     Ms. Everett filed a pre-trial motion to exclude evidence

that Ms. Everett once shot a dog.         The state argued that shooting

the dog showed that Ms. Everett knew how to use a gun.            The trial

court denied the motion without explanation.2

     Rule 404(b) prohibits the admission of “[e]vidence of other

crimes, wrongs or acts … to prove the character of a person in

order to show that he acted in conformity therewith.”           The

evidence, however, may be admissible for another specific purpose

relevant to the issues in the case, if the probative value of the

evidence is not outweighed by the danger of unfair prejudice.

N.C.R. Evid. 404(b); See also, State v. McKinney, 110 N.C. App.

365, 430 S.E.2d 300 (1993).       The test, when considering the

purpose for which the evidence is offered, is whether the

incident is substantially similar to the crime charged.            See

State v. Fraizer, 344 N.C. 611, 476 S.E.2d 297 (1996).

     In this case, shooting a dog served no purpose except to

disparage Ms. Everett in the eyes of jurors.          It was prejudicial

since it made her appear mean.       More importantly, the incident

where Ms. Everett was forced to shoot a dog was in no way similar

to the incident that led to her husband’s death.           According to

Ms. Everett, the dog attacked a child and the Everetts decided

that it was unsafe to keep the dog.        (Vol. IV, T p 268-69)

  Ms. Everett did not object again during the evidence at trial. Pursuant to
Rule 10(b) of the Rules of Appellate Procedure, however, she preserved the
issue for appeal by raising a timely objection and obtaining a ruling on the
objection during the proceedings in the trial tribunal.

    The state argued that the incident with the dog showed that

Ms. Everett was familiar with guns and knew how to shoot.     Her

familiarity with guns and ability to shoot, however, were not at

issue in the case.   Ms. Everett presented a case of self-defense,

not accident.   Nor did she ever argue that her ability or lack of

ability with a gun had anything to do with the encounter or Mr.

Everett’s death.   In fact, Ms. Everett presented evidence that

she purchased and carried the gun for protection.     When Mr.

Everett threatened her and started to attack her that evening,

she intentionally fired a warning shot before shooting Mr.

Everett when he refused to stop his attack.

    The admission of this evidence was reversible error.      It was

not relevant at all.   More importantly, the information reflected

poorly on Ms. Everett’s character.   Admitting the evidence

improved the chances of a conviction by impugning her general

character.   If the court had excluded the evidence, there is a

reasonable possibility that the result of the trial would have

been different. See N.C.G.S.§15A-1443(a) and State v. Reed, 324

N.C. 535, 538, 379 S.E.2d 828, 830 (1989).

                         Cumulative Error

    When considered in the context of the trial as a whole, the

errors are significant and prejudicial.     The state presented

direct evidence to bolster the deceased’s character in general

and as a peaceful person.   After presenting this evidence, the

trial court hampered defense efforts to present relevant,

admissible evidence to rebut this portrayal.     More importantly,

the trial court excluded evidence that showed Ms. Everett’s fear

of Mr. Everett was reasonable and that he was the aggressor.

Finally, the trial court allowed the state to undermine Ms.

Everett’s character with inadmissible evidence that she shot a

dog on an earlier occasion.    The combination of these factors

renders the verdict untrustworthy and requires a new trial.

Absent the combination of these errors, there is a reasonable

possibility that the result of the trial would have been

different, meaning that the jury would have reached a verdict of

voluntary manslaughter or not guilty.


    For the reasons set forth above, Ms. Everett is entitled to

a new trial.

    This is the 21st day of November, 2005.

                                       AMOS GRANGER TYNDALL, P.A.

                                       AMOS GRANGER TYNDALL
                                       ATTORNEY FOR MS. EVERETT

                                       312 West Franklin Street
                                       Chapel Hill, N.C. 27516
                                       919 967 0504
                                       State Bar #19309


    I HEREBY CERTIFY that the original Defendant-Appellant’s

Brief has been filed by mail pursuant to Rule 26 by placing it in

a depository of the U.S. Postal Service, first-class postage

prepaid and addressed to the Clerk of the North Carolina Court of

Appeals, Post Office Box 2779, Raleigh, North Carolina, 27602.

    I   FURTHER    HEREBY   CERTIFY    that   a   copy    of   the   above   and

foregoing Defendant-Appellant’s Brief has been duly served upon

Mr. Thomas G. Meacham, Jr., Esq., Assistant Attorney General,

North   Carolina   Department   of     Justice,    Post    Office    Box     629,

Raleigh, North Carolina, 27602-0629, by depositing a copy with

the U.S. Postal Service, first-class postage prepaid.

    This is the 21st day of November, 2005.

                                           AMOS GRANGER TYNDALL
                                           ATTORNEY FOR MS. EVERETT

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