The opinion of the court was delivered by: Greene, Judge.
Appeal by defendant from judgment dated 26 November 1996 by Judge Chase B. Saunders in Mecklenburg Superior Court. Heard in the Court of Appeals 17 March 1998.
John Frances Hayes (defendant) appeals a sentence of life imprisonment based upon a jury verdict finding him guilty of second- degree murder of his wife, Fran Hayes (Mrs. Hayes). This conviction came after the defendant's capital trial for first-degree murder.
The evidence presented tends to show the following: On 11 July 1994, the defendant, approximately sixty years old, occupied a home with his wife, Mrs. Hayes. That afternoon, in the garage of their home, the defendant informed Mrs. Hayes that he planned to seek a divorce from Mrs. Hayes. She flew into a rage and threw a hammer at the defendant which struck him on the leg. Mrs. Hayes then picked up a baseball bat, threatening to kill the defendant, and started swinging it at the defendant. The defendant wrestled the bat away from her, as she kicked him, and the defendant struck Mrs. Hayes, with the baseball bat, in her head, neck, torso, and legs, causing her death.
Prior to the trial, the State gave notice of its intent to offer hearsay evidence pursuant to the hearsay exceptions set forth in the North Carolina Rules of Evidence. The defendant filed a motion in limine to exclude the introduction of this evidence which the trial court denied after conducting a pre-trial hearing. The State offered, at trial, the hearsay evidence (which was the subject of the motion in limine) without objection from the defendant. After the State had completed the presentation of its evidence and during the defendant's offer of evidence, the defendant's attorney addressed the trial court: "With regard to [the hearsay evidence which had been previously admitted] I want to make sure I'm preserving those, and I didn't intend in any way to waive any objections I previously had. I didn't want to keep objecting after the Court had already ruled [at the pre-trial hearing on the motion in limine]." The trial court responded that it believed it had included in its order denying the motion in limine "a line noting your objection to everything . . . ." The defendant's attorney responded: "That's fine." The record does not reflect any objection by the defendant at the time the motion in limine was denied.
At trial, the defendant sought to introduce evidence through the testimony of Annie Lindsey (Ms. Lindsey) that he had told Mrs. Hayes that "[h]e loved her." Ms. Lindsey's testimony indicates that this statement was made while she worked for the defendant and Mrs. Hayes from October of 1984 until January 1986, approximately eight years before the death of Mrs. Hayes. The State objected to this statement and the trial court sustained the objection. The trial court did allow other evidence which showed that the defendant was concerned about Mrs. Hayes' health, provided for her needs, and never threatened or hit Mrs. Hayes even when she attempted to provoke him.
The trial court held several in-chambers conferences during the course of the pre-trial hearings and the trial. While the record does not affirmatively show that the defendant was not in those in-chambers conferences, the State does not argue or object to the defendant's contention that he was not present. The first instance of an unrecorded in-chambers conference between the trial court and counsel occurred at a pre-trial hearing on 24 October 1996. The transcript shows the following:
Do you have any other witnesses to call at this time or are they scheduled for 2:00?
Prosecutor: Not until 2:00.
All right. Gentlemen, I'll see you briefly in chambers.
(Whereupon, a brief recess was observed.)
Let the record reflect that Mr. Diehl[ *fn1 ] has come to court and is waiting on a jury, and that there was a motion pursuant to the suggested guidelines by the state bar that the Court consider the issue of confidentiality, that the Court is in a position to order that the file be turned over in the interest of the administration of Justice and the discretion of the Court. . . . [T]he Court would at this point direct that [Mr. Diehl] turn over copies of the file, . . . to counsel for the State and counsel for the defense.
I will order that the file be turned over and that Mr. Diehl is authorized to discuss the contents of the file and his attorney- client relationship with counsel for the State and defendant.
The defendant later presented into evidence Mr. Diehl's files concerning Mrs. Hayes and called him as a witness in the trial.
The following indicates the dialogue after the second in-chambers conference cited by the defendant which occurred at the beginning of the trial.
Counsel, just a couple of matters on the record. At this time we're in the absence of the jury, Madame Reporter.
The third occurrence cited by the defendant is as follows:
Do you have a list you can represent as being the -- well, at this point bring the photographs into chambers; we will go through them briefly. Anything we do in chambers will be reported on the record. I'll make no decision in chambers, but we will at least look at the photographs and see whether or not there is -- preliminarily where we are and put all of that on the record. Bring them on up here. [Defense counsel] step on up here and look at the photographs.
(Whereupon [counsel for State and defendant] confer)
(Whereupon [counsel for State and defendant] confer in jury room)
Madam reporter, we're going to recess until tomorrow at nine o'clock. If you will be here at nine o'clock we will probably voir dire on some photographs. Nine o'clock for us and the jury at nine thirty. Sheriff, come with me; we will get that order in.
(Court stands in overnight recess)
The fourth in-chambers conference cited by the defendant is the following:
We will take a fifteen minute recess. Let me see ...