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NO. COA05-1197 TENTH DISTRICT
NORTH CAROLINA COURT OF APPEALS
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STATE OF NORTH CAROLINA )
)
VS. ) From Wake
) 00 CRS 57387
KAREN ELAINE EVERETT )
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QUESTIONS PRESENTED
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I. DID THE TRIAL COURT COMMIT REVERSIBLE ERROR BY
EXCLUDING EVIDENCE OF MR. EVERETT’S VIOLENT NATURE?
II. DID THE TRIAL COURT COMMIT REVERSIBLE ERROR BY
ADMITTING EVIDENCE OF PRIOR CONDUCT THAT WAS IRRELEVANT AND
PREJUDICIAL?
2
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
3
was mailed on 21 September 2005. This Court extended the time
for Ms. Everett to file a brief until 21 November 2005.
STATEMENT OF GROUNDS FOR APPELLATE REVIEW
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.
STATEMENT OF STANDARD FOR APPELLATE REVIEW
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
4
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
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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)
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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.
7
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
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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
9
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
170-77)
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)
ARGUMENTS
I. THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT
EXCLUDED EVIDENCE OF MR. EVERETT’S VIOLENT NATURE.
ASSIGNMENTS OF ERROR NOS. 9-10
R pp 51-52
10
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
APPENDIX I
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.
11
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
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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)
13
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
61-63)
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
1
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
14
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.
II. THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY ADMITTING
EVIDENCE OF PRIOR CONDUCT THAT WAS IRRELEVANT TO THE ISSUES IN
THE CASE AND PREJUDICIAL TO MS. EVERETT’S DEFENSE.
ASSIGNMENT OF ERROR NO. 2
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
(1980).
15
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)
2
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.
16
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,
17
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.
CONCLUSION
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.
BY:
AMOS GRANGER TYNDALL
ATTORNEY FOR MS. EVERETT
312 West Franklin Street
Chapel Hill, N.C. 27516
919 967 0504
State Bar #19309
CERTIFICATE OF FILING AND SERVICE
I HEREBY CERTIFY that the original Defendant-Appellant’s
Brief has been filed by mail pursuant to Rule 26 by placing it in
18
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
