State v. Mchone

In State v. McHone, 334 N.C. 627, 637, 435 S.E.2d 296, 302 (1993), our Supreme Court held that hearsay testimony was admissible under Rule 803(3) where witnesses testified to the victim's statements, made at least six months prior to the murder, regarding her fear of the defendant. The hearsay statements recited threats made to the victim by the defendant and the victim's fear that defendant would kill her. Defendant argued that the prejudicial effect outweighed the probative value since the statements were made six months prior to the murder. The McHone court disagreed and held, "the evidence tended to show a stormy relationship over a period of years leading up to the murders in this case, and the fact that the last incident testified to occurred six months prior to the murders does not deprive the evidence of its probative value." McHone, 334 N.C. at 637-38, 435 S.E.2d at 302. In State v. McHone, 174 N.C. App. 289, 620 S.E.2d 903 (2005), the trial court not only omitted the option of not guilty of first-degree murder in its final mandate to the jury, but also omitted "not guilty" as an option on the verdict sheet. Id., 174 N.C. App. at 291, 620 S.E.2d at 906. "Our Supreme Court has held that the failure of the trial court to provide the option of acquittal or not guilty in its charge to the jury can constitute reversible error." Id., 174 N.C. App. at 295, 620 S.E.2d at 907-08 (citing State v. Ward, 300 N.C. 150, 155, 266 S.E.2d 581, 584 (1980)). The trial court failed to state that the jury could find defendant not guilty nor did it state that it was the jury's duty to do so should they conclude the State failed to meet its burden of proof. Id., 174 N.C. App. at 296, 620 S.E.2d at 908. In State v. McHone, 174 N.C. App. 289, 620 S.E.2d 903 (2005), the Court concluded that the trial court committed plain error where the trial court as to the charge of first-degree murder failed "to provide a not guilty final mandate," "the verdict sheet itself did not provide a space or option of 'not guilty'," and there was additional confusion due to the trial court providing the final mandate and the "not guilty" option on the verdict sheet on the charge of armed robbery. McHone at 296-99, 620 S.E.2d at 909-10, disc. review denied, 360 N.C. 294, 362 N.C. 368, 628 S.E.2d 9 (2006).