Psychologist Michelle Theer, Her Internet Affair
with John Diamond, and The Murder of Air Force Captain Marty Theer
By Kim Cantrell - Truecrimezine.com
September 17, 2012
Frank Martin Theer, known to friends and family as Marty, was
introduced to Michelle Forcier
during high school, some thought it was a perfect match.
Marty and Michelle were both Army
brats. They were both ambitious. Her outgoing personality perfectly
balanced Marty’s quieter, more reserved demeanor.
After graduation, they each pursued
their own career choices. Marty enlisted in the Air Force and Michelle
joined the Air Force Reserves. For the next four years, the couple
held tight to a long-distance relationship but after Michelle’s
company activated for service in the Persian Gulf War in 1991, Marty
decided they’d been apart long enough and he proposed to his high
Over the next six years, the couple
would bounce from base to base. Life as members of the military isn’t
easy, and the Theers’ relationship was no different. When Marty was
home, which wasn’t often enough, he and Michelle often spent their
Deep depression consumed a woman who
undoubtedly suffered abandonment issues after her parents divorced and
she was left to help her father raise her siblings. Michelle was
lonely, and something had to give.
That “something” turned out to be an
Army Staff Sergeant named John Mikael
Virtual Affair Becomes Reality
In 2000, Marty was stationed at Pope
Air Force Base outside of out Fayetteville, North Carolina. Pope AFB
is part of Fort Bragg – an Army instillation who has earned a
reputation among military members as an undesirable transfer, partly
in thanks to people like Dr. Jeffrey McDonald and Tim Hennis. Soldiers
and their families frequently refer to Fayetteville, the host city to
Fort Bragg, as Fayette-Hell, Fayettenam, and Fatalville.
The Theers had managed to keep their
marriage together, although barely, as long as Michelle was in school,
but once she earned her Psychology degree and went to work, she felt
the void of Marty’s absence even more.
A lonely Michelle began turning to the
internet to fill the silent hours, and it there in an Yahoo! chat room
that she met John Diamond.
John had graduated high school and
enlisted in the United States Army the same month Marty and Michelle
had exchanged their vows. By 1998, when he and Michelle met in a
virtual world, John was on his second marriage and it was already
showing signs of collapse due to John’s frequent bouts of infidelity.
Just like the Theers, John had been
born and Army brat. He’d come from a long line of military men; his
grandfather had been a prisoner of War in World War II and his father
was a Vietnam Veteran.
Michelle and John had a lot to talk
about, but they were mostly interested in flirting; a little romance
in their otherwise boring lives. After spending months exchanging
seductive messages, they finally agreed to meet.
When the couple met at a Fayetteville
coffee shop, they hit off right away. John would later say it was love
at first sight; Michelle proclaimed John was “very, very charming.”
Pretty strong words to describe a
couple of people who were married, but not to each other.
Just A Swingin’
Whether it was love or just a strong
connection, John and Michelle began spending every spare moment
together. They frequented Fayetteville’s many night clubs, and soon
began attending swingers’ parties as a couple.
Swingers parties has become a popular
means for many couples to keep boredom at bay inside their marriages.
Typically hosted in a participating couples’ home, party goers attend
for the sole purpose being to swap sex partners. These discreet
parties are attended by as few as two or three couples and as many as
twenty or thirty – extravagant parties host even more!
John and Michelle, already cheating on
their spouses with one another, were enjoying this “broadening” of
their experiences. They both enjoyed it immensely and their
relationship was growing more intense.
Then Marty came home.
Marriage Counseling and Murder
Marty had been away for six weeks
attending a flight training course in Little Rock, Arkansas. When he
returned to Fayetteville, he knew his marriage was in trouble. So
Marty and Michelle began attending marriage counseling; an appropriate
effort by a Psychologist.
To their therapist, Marty complain that
he wanted Michelle to be a better housekeeper; Michelle declared Marty
to be obsessive-compulsive. Michelle argued that she wanted to go out
more; Marty, frequently away from home, preferred to stay in. And on
and on it went.
In the summer of 2000, Michelle moved
out of the Theer home. During this time, she lived with John in an
off-base apartment. During a vacation she and John took to Netherlands
Antilles, she and John talked about living there and she even applied
to the Saba University School of Medicine where she listed John on the
application as her “fiance.”
Somewhere along the way, Michelle found
herself in a dead end relationship with John. It was no better than
her marriage. Michelle returned home to Marty.
But she and John continued their
relationship, now an on-again-off-again affair. John sent emails and
private messages declaring his love for Michelle; asking her in many
how she could be with a man she said she no longer loved and who made
On December 17, 2000, Michelle’s
romantic quandary would come to end. On this night, Michelle and Marty
had attended a Christmas party hosted by Dr. Thomas Harbin, a fellow
psychologist who shared office space with Michelle. On the way home,
Michelle asked Marty to stop by her office so that she could get some
books she had forgotten to bring home earlier that day.
Marty stayed behind in the couples’
1999 Ford Explorer as Michelle went into the upper floor office. After
several minutes had passed, Marty grew impatient and went to see what
was keeping his wife. As he climbed the outdoor stairway, Marty was
shot four times by a gunman in the shadows. When his body tumbled to
the bottom of the stairway, the gunman fired a fifth bullet into his
body. It was this bullet that was fatal, according to medical
Michelle would later tell police that
she ran from the office screaming Marty’s name. Rushing to her
husband’s side, she believed him to still be breathing. In her rush to
exit the office, she had inadvertently locked her keys inside and so,
despite the area’s dense population, she ran two miles to a video
store to call 911.
Extreme Fugitive Makeover
It didn’t take long for investigators
to zero in on John Diamond. His affair with Michelle was known by many
and his name had come up several times.
When Lourdes Diamond told police that
she was at home with her husband watching a movie, police were
disappointed. Then she told them that about 9 p.m. on that evening he
got a call and suddenly left the residence. Lourdes told police that
he changed his clothes, bundled up in winter outerwear and said he was
going to the barracks.
Lourdes had told police the call came
in on John’s cell phone and records confirmed that he had, in fact,
received a call; a call from Michelle. MIchelle, during questioning on
December 20, denied that she made such a call.
Investigators learned later that John
had borrowed a Smith & Wesson Model 5906 from a friend just a couple
of days before the murder. It was the same kind of weapon used to gun
down Marty Theer. In February 2001, John reported a break-in of car
during which he claimed his friend’s gun was stolen. It would turn out
to be a major mistake for John Diamond.
On March 15, 2001, Army officials
charged him with premeditated murder, conspiracy, and obstruction of
justice. The Army had no jurisdiction over civilians, but strongly
encouraged civilian police to press charges against Michelle.
In August 2001, John’s Court Martial
began. While on the witness stand, Michelle, at the advice of her
attorney, invoked her Fifth Amendment rights with every question. A
six panel military jury convicted John Diamond on all counts.
Fayetteville police continued to build
a strong case Michelle. She, however, wasn’t waiting around and moved
to New Orleans. By the time a grand jury handed down an indictment of
first degree murder against Michelle in May 2002, she had fled her
Louisiana residence and was now a wanted fugitive.
Michelle had learned how to recreate
herself with books such as Reborn in the U.S. of A., Secrets for
Getting a New Identity, and How to Disappear in America. She began by
changing her brunette locks to bleach blonde. She used a computer
software program to prepare official-looking documents, including fake
birth and baptismal certificates. Then she took a most drastic step:
she underwent plastic surgery to straighten her nose, have a chin
implant, and laser surgery to remove acne scars and other blemishes.
In Florida, where she’d had the surgery
done, she signed an apartment under the name of Lisa Pendragon. The
Florida driver’s license she obtained was issued to Alexandra Solomon.
Fayetteville investigators turned U.S.
Marshalls for help in locating Michelle. They soon learned that, as
was expected for Michelle, she already had a boyfriend. The boyfriend
was put under surveillance and in no time, he had led them to the
killer’s new lair. On August 5, 2002, Michelle was arrested for the
murder of her husband.
End of the Road
Although it took two years for her case
to go to trial, it only took juror six hours to return a verdict of
guilty on December 3, 2004 – just six days before her 34th birthday.
She was sentenced to life in prison without possibility of parole. She
is currently incarcerated at the North Carolina Correctional Institute
for Women in Raleigh, North Carolina.
With the help of her mother and sister,
Michelle continued to proclaim her innocence her blog at
www.michelletheer.org; that is, until it mysteriously and without
warning shut down in early 2012.
In April 2011, a federal appeals court
denied her request for a new trial.
Diamond is currently behind bars at the United States
Disciplinary Barracks in Fort Leavenworth, Kansas. For a short while,
he attempted to maintain his own blog, which he named Free John
Diamond, with the aid of his sister but apparently gave up as it has
not been updated since November 2007.
His most recent appeal, filed on the
basis of a conflict of interest, was denied by a federal court.
Appeals court denies Theer's attempt to gain new
By Drew Brooks - FayObserver.com
April 21, 2011
Michelle Theer was rebuffed again in her attempts
to gain a new trial.
Theer, 42, was convicted in 2004 of first-degree
murder in the slaying of her husband, Air Force Capt. Marty Theer.
Since her conviction, she has filed unsuccessful
appeals in state and federal courts.
The latest rejection came from the Fourth Circuit
Court of Appeals, which dismissed her attempt to have the court review
a U.S. District Court decision.
In an unpublished opinion released Wednesday, a
three-judge panel rejected Theer's case, saying she failed to show
that her constitutional rights may have been violated.
The appeals court made its decision without hearing
oral arguments from Theer or the government, instead relying on the
Theer's federal lawsuit was originally filed in May
2009 and was dismissed by a U.S. District Court judge in September
2010, according to court records. At the time, the judge said the case
had "no genuine issue of material fact."
The lawsuit, filed against the administrator of the
prison where Theer is being held, sought a new trial on the basis that
prosecutors used her silence as evidence of her guilt in violation of
the Constitution's protections against self-incrimination and that the
state's short-form indictment was insufficient for a charge of
According to court documents, witnesses for the
prosecution repeatedly testified that Theer did not cooperate with the
investigation, and a prosecutor told the jury in closing arguments
that Theer invoked her right to a lawyer when a co-defendant was
Capt. Theer was ambushed outside his wife's
psychology office on Raeford Road in December 2000.
Investigators said Theer set up the ambush with a
co-defendant, John M. Diamond, with whom she was having an
They said the motive was to collect insurance and
Diamond, a former Fort Bragg soldier, also is
attempting to win a new trial.
Diamond has appealed to the U.S. Supreme Court
after a military appeals court declined to review his case.
Diamond was a staff sergeant at Fort Bragg when he
was convicted in August 2001 of first-degree murder. He was sentenced
to life in prison without parole and demoted to private.
Theer went on trial in civilian court in Cumberland
County Superior Court after Diamond's court-martial and was sentenced
to life in prison.
Verdict relieves victim's mother - The Murder of
USAF Captain Marty Theer
By Paul Woolverton - FayettevilleNC.com
December 8, 2004
Linda Gettler says she had no doubt that jurors
would convict Michelle Theer of killing Air Force Capt. Marty Theer,
Gettler's only son.
Still, after 10 weeks of watching the trial,
Gettler was tense when she watched the jurors come back into the
courtroom to deliver their verdict Friday afternoon.
"I was shaking and half crying because you don't
want to expect too much," she said in an interview Monday.
When jury foreman Rafael Garcia announced that
Theer was guilty, Gettler felt relief. "Relief that it was finally
over," she said.
The fourth anniversary of Capt. Theer's death is
Dec. 17. Michelle Theer, his wife, was convicted of luring him to her
office so her lover, John Diamond, could ambush and kill him.
Michelle Theer was sentenced to life in prison on
the first-degree murder charge and given more than 13 additional years
on a conspiracy charge. She is at the N.C. Correctional Institute for
Women in Raleigh.
Diamond, who was an Army staff sergeant, was
convicted of murder and conspiracy charges at a court-martial in 2001.
He, too, is serving a life sentence.
Neither Theer nor Diamond is eligible for parole.
Capt. Theer was 31 when he died. His grave is at
the Air Force Academy Cemetery in Colorado Springs, Colo.
People should know that Capt. Theer was a good man,
As any mother would, Gettler loved her son, she
said, but "more than that, I liked him and respected him."
His family and friends continue to miss him
terribly, she said.
Gettler, who lives in Grand Junction, Colo.,
remembered how children in his neighborhood in Denver used to play
ball and board games with him. The children asked after him when he
went left home to attend the Air Force Academy.
Capt. Theer graduated from the academy in 1991.
"He was a very, very tender person. There wasn't a
mean bone in his body," Gettler said. "He wouldn't have anything bad
to say about anybody. I wish I could say the same."
Gettler attended most of the trial, skipping a few
days in November when she had a cold that gave her a bad cough. She
thought the cough would be distracting in the courtroom.
She said she had to hear everything, but she
couldn't bear to see everything. She averted her eyes when the
prosecution presented photos of Capt. Theer's body from the crime
scene and autopsy and the blood-stained clothing that he wore that
"I was prepared for the photos because I knew it
was coming," she said. "I wasn't prepared for the clothes. ... And
that took me back for a moment."
During lunch breaks, she sought fresh air by
walking around downtown Fayetteville. She kept busy on nights and
"I came prepared for the long haul. I did a lot of
walking, brought a lot of books," she said.
She said that people were kind. Spectators
attending the trial offered to take her in.
"Tell the citizens of Fayetteville that I'm so
grateful to them for opening their hearts and their arms to me,"
Gettler said. "Their prayers and good wishes were a great deal of
Gettler had high praise for the Fayetteville Police
Department and Cumberland County District Attorney's Office for their
investigation and prosecution of the case. "They went a hundred miles
per hour and gave more than a hundred percent," she said.
On Saturday, Diamond's lawyer said he is trying to
appeal the case. He said Michelle Theer was the shooter and she lured
Diamond to the murder scene to take the blame.
District Attorney Ed Grannis said Diamond's story
doesn't fit the evidence.
"I'm with Ed Grannis. His story doesn't match the
facts," she said. "The truth of the matter is this was a coldly
planned and executed murder, and the two people responsible are now
Court of Appeals of North Carolina
State v. Theer
STATE of North Carolina v. Michelle Catherine THEER.
January 16, 2007
Attorney General Roy Cooper, by Assistant Attorney
General John G. Barnwell and Assistant Attorney General Kathleen U.
Baldwin, for the State.Daniel R. Pollitt, Assistant Appellate
Defender, for the defendant-appellant.
On 3 December 2004, Defendant Michelle Catherine
Theer was convicted of first-degree murder by aiding and abetting and
of conspiracy to commit first-degree murder in the death of her
husband, United States Air Force Captain Frank Martin Theer.
Defendant appeals to this Court, challenging the sufficiency of the
evidence to convict her and arguing that the trial court committed
either error or plain error in her trial. Upon our careful review of
her appeal, we hold that Defendant received a fair trial that was free
of prejudicial error.
At trial, the evidence tended to show that the
Theers married in 1991 and subsequently lived in several different
states as Captain Theer was stationed at Air Force bases around the
country. In 1999, the couple moved to Fayetteville, where Captain
Theer was posted on Pope Air Force Base and Defendant was employed by
psychologist Thomas Harbin, as she worked toward getting her own
permanent license as a psychologist. Throughout this time, Captain
Theer was often deployed overseas and away from home for long
stretches of time, and the marriage struggled.
In early 2000, Defendant met United States Army
Sergeant John Diamond, a Special Forces soldier stationed in
Fayetteville at Fort Bragg, via the Internet and began an extramarital
affair with him. In June 2000, Defendant rented her own apartment
and lived separately from Captain Theer; the two started marital
counseling in July while also going through a trial separation. In
October, Defendant reconciled with Captain Theer, moving back into
their home and telling Dr. Harbin that she planned to end her affair
with Sergeant Diamond. In November, Sergeant Diamond sent e-mails to
Defendant indicating he was unhappy about the possibility of their
relationship ending and Defendant's remaining with her husband. On 9
December 2000, Defendant met and engaged in sexual relations with
Sergeant Diamond in Raleigh, after telling Captain Theer she was going
there to celebrate her birthday with a graduate school classmate.
On 17 December 2000, Defendant and Captain Theer
traveled from Fayetteville to Cary with Dr. Harbin, his wife, and
another couple, for a dinner to celebrate the holidays. Around 9:00
or 9:30 p.m., as the group prepared to leave the restaurant, Defendant
went to the restroom and made a cell phone call to Sergeant Diamond,
who was watching a video with his estranged wife and mother-in-law.
After the phone call, Sergeant Diamond put on cold-weather clothing
and left the house.
Meanwhile, Defendant and Captain Theer took the
other couple back to Dr. Harbin's office in Fayetteville, where they
had left their car, arriving around 10:30 p.m. Thereafter, Defendant
and her husband left the parking lot but returned approximately ten to
fifteen minutes later after Defendant “ remembered that she needed a
reference book from her office to prepare for two book reports ․ due
the next day.” Defendant later told the police that Captain Theer
waited outside while she went inside Dr. Harbin's office to get the
books. Shortly thereafter, she heard gunshots, ran outside, and
found Captain Theer, unresponsive, at the bottom of the steps outside
of the building. Defendant stated that because she had accidentally
locked her keys inside the building when she went outside, she ran to
a late-night video store about a block away to get help. Captain
Theer died as a result of five gunshot wounds, including one fired at
close range just behind his left ear.
Following Captain Theer's death, Defendant
continued her relationship with Sergeant Diamond, including taking a
trip to Florida together. Police later linked Sergeant Diamond to a
semiautomatic pistol that was of the same model used to kill Captain
Theer. However, after Sergeant Diamond learned that the police
wanted to obtain the pistol for ballistics testing, he reported that
his vehicle had been broken into on base and the weapon stolen.
As a result of his statements regarding the pistol,
military authorities charged Sergeant Diamond with making a false
official statement, false swearing, and obstruction of justice.
Around 20 February 2001, he was placed into pre-trial confinement at a
military facility. Sergeant Diamond was later charged with and
convicted by a General Court-Martial of murder and conspiracy to
commit murder in the death of Captain Theer and sentenced to life in
prison without parole.
On 21 May 2002, Defendant was indicted for
first-degree murder and conspiracy to commit first-degree murder in
the death of Captain Theer. However, around the date of the
indictment, Defendant, who had moved to New Orleans since the murder,
left from there, reportedly to “start a new life.” She moved to
Florida, where she rented an apartment and had plastic surgery
performed under an assumed name. Files and documents found in her
Florida apartment indicated Defendant had a long-range plan to create
several false identities and essentially to “disappear.”
Police located and arrested Defendant in August
2002, and her trial began on 27 September 2004. At the conclusion of
the nearly three-month trial, the jury returned verdicts of guilty of
first-degree murder by aiding and abetting, and of conspiracy to
commit first-degree murder. The trial court sentenced Defendant to
life in prison without parole.
Before this Court, Defendant appeals from those
verdicts, arguing (I) the trial court erred by denying her motion to
dismiss the charges of first-degree murder and conspiracy to commit
first-degree murder because the State presented insufficient evidence
that she was a perpetrator of the crimes charged; (II) the trial
court improperly expressed opinions about her guilt and defense
witness Angela Forcier's credibility; (III) the trial court
erroneously admitted irrelevant evidence and argument about her bad
character; (IV) the trial court improperly denied her motion for a
mistrial based on inadmissible evidence; (V) the trial court
erroneously allowed inadmissible and privileged witness testimony
concerning her marital counseling; (VI) the trial court erroneously
excluded relevant defense evidence; (VII) the trial court committed
plain error by allowing State evidence and argument as to her exercise
of her constitutional rights to silence and counsel; (VIII) the trial
court improperly belittled her trial counsel and denied her motion for
a mistrial based on that conduct; (IX) the prosecutor's closing
argument was ex mero motu error; (X) the trial court erroneously
admitted State evidence about computer documents related to body bags;
and, (XI) the indictment was insufficient.
Defendant argues that the trial court erred by
denying her motion to dismiss the charges of first-degree murder and
conspiracy to commit first-degree murder. She contends that the
State failed to present sufficient evidence that she was a
perpetrator. We disagree.
“When a defendant moves to dismiss a charge against
him on the ground of insufficiency of the evidence, the trial court
must determine whether there is substantial evidence of each essential
element of the offense charged and of the defendant being the
perpetrator of the offense.” State v. Garcia, 358 N.C. 382, 412, 597
S.E.2d 724, 746 (2004) (citation and quotations omitted), cert.
denied, 543 U.S. 1156, 125 S.Ct. 1301, 161 L.Ed.2d 122 (2005); see
also State v. Morgan, 359 N.C. 131, 161, 604 S.E.2d 886, 904 (2004),
cert. denied, 546 U.S. 830, 126 S.Ct. 47, 163 L.Ed.2d 79 (2005);
State v. Butler, 356 N.C. 141, 145, 567 S.E.2d 137, 139 (2002). Our
Supreme Court has defined “substantial evidence” as “relevant evidence
that a reasonable person might accept as adequate, or would consider
necessary to support a particular conclusion.” Garcia, 358 N.C. at
412, 597 S.E.2d at 746 (citations omitted).
Additionally, “[i]f there is substantial
evidence-whether direct, circumstantial, or both-to support a finding
that the offense charged has been committed and that the defendant
committed it, the case is for the jury and the motion to dismiss
should be denied.” Butler, 356 N.C. at 145, 567 S.E.2d at 140
(quoting State v. Locklear, 322 N.C. 349, 358, 368 S.E.2d 377, 383
(1988)). In considering a motion to dismiss by the defense, such
evidence “must be taken in the light most favorable to the state ․
[which] is entitled to all reasonable inferences that may be drawn
from the evidence.” State v. Sumpter, 318 N.C. 102, 107, 347 S.E.2d
396, 399 (1986).
Nevertheless, if the evidence is “sufficient only
to raise a suspicion or conjecture as to either the commission of the
offense or the identity of the defendant as the perpetrator, the
motion to dismiss must be allowed.” State v. Malloy, 309 N.C. 176,
179, 305 S.E.2d 718, 720 (1983) (internal citation omitted). “This is
true even though the suspicion aroused by the evidence is strong.”
Id. (internal citation omitted). However, “[c]ircumstantial
evidence may withstand a motion to dismiss and support a conviction
even when the evidence does not rule out every hypothesis of
innocence.” State v. Fritsch, 351 N.C. 373, 379, 526 S.E.2d 451, 455
(citation and quotation omitted), cert. denied, 531 U.S. 890, 121
S.Ct. 213, 148 L.Ed.2d 150 (2000). As our Supreme Court has noted,
There is no logical reason why an inference which
naturally arises from a fact proven by circumstantial evidence may not
be made. This is the way people often reason in everyday life. In
this case the inferences on inferences dealt with proving the facts
constituting the elements of the crime. We hold that the jury could
properly do this.
State v. Childress, 321 N.C. 226, 232, 362 S.E.2d
263, 267 (1987).
Here, Defendant contends that there was
insufficient evidence that she (1) knowingly advised, instigated,
encouraged, procured, or aided Sergeant Diamond to commit first-degree
murder, or (2) entered into an agreement with Sergeant Diamond to
commit first-degree murder. See State v. Bond, 345 N.C. 1, 24, 478
S.E.2d 163, 175 (1996) (outlining required elements for aiding and
abetting a crime), cert. denied, 521 U.S. 1124, 117 S.Ct. 2521, 138
L.Ed.2d 1022 (1997); State v. Merrill, 138 N.C.App. 215, 218, 530
S.E.2d 608, 611 (2000) (outlining required elements for conspiracy to
While true that much of the State's evidence as to
Defendant's involvement in the murder was circumstantial, and the
evidence did “not rule out every hypothesis of innocence” presented by
the defense, including that Mr. Diamond acted alone, we find that the
State introduced ample and sufficient evidence to allow the jury to
make reasonable inferences of Defendant's guilt as to each element of
the crimes charged. Indeed, testimony and exhibits offered by the
State tended to prove Defendant's affair with Sergeant Diamond,
ongoing problems in her marriage to Captain Theer, her financial
status and the insurance payout, and her suspicious behavior and
flight following the murder-all of which could reasonably give rise to
inferences that would “prov[e] the facts constituting the elements of
the crime,” even if evidence also existed to the contrary. We hold
that sufficient evidence was offered to show that Defendant was a
perpetrator of the crimes charged. Accordingly, we uphold the trial
court's denial of Defendant's motion to dismiss.
Next, we address Defendant's argument that she is
entitled to a new trial because the trial court improperly expressed
an opinion as to her guilt and as to the credibility of a defense
witness. We disagree.
The exchange at issue involved the testimony of
Defendant's sister, Angela Forcier, during Defendant's case-in-chief.
Before Ms. Forcier's testimony, the trial court excused the jury
from the courtroom and appointed a local attorney to advise her about
her Fifth Amendment rights regarding the possibility of being an
accessory-after-the-fact to first-degree murder. After recessing for
the day to allow Ms. Forcier the opportunity to consult with counsel,
Ms. Forcier elected to take the stand the following morning. With Ms.
Forcier's appointed attorney present during her testimony, the trial
judge informed the jury that the attorney “was appointed by this Court
to protect any Fifth Amendment rights Ms. Forcier may have in the
trial of this matter and he will advise her, if necessary.”
On direct examination, defense counsel asked Ms.
Forcier if she was being threatened with prosecution in this matter.
When Ms. Forcier answered that she was “threatened with prosecution
for accessory after the fact of murder,” the trial judge stopped the
questioning and inquired if defense counsel was referring to what the
trial judge had said the day before, to which the defense counsel
ultimately replied, “I acknowledge that you had just warned her.”
Thereafter, the trial court addressed the jury, stating:
THE COURT: Ladies and gentlemen of the jury, on
yesterday's date, when I sent you out, I simply advised Ms. Forcier of
her potential liability in this case of being ․ an accessory after the
fact, that she may have some Fifth Amendment rights. It is not my
responsibility to prosecute any action in this case. So that's a
mischaracter-misstatement․ Do you acknowledge that?
DEFENSE COUNSEL: I acknowledge that you just
THE COURT: I said she had some Fifth Amendment
rights and she stood liable for accessory after the fact.
DEFENSE COUNSEL: To first degree murder.
THE COURT: Correct.
Defendant contends that this exchange was an
improper expression by the trial court as to her guilt and the
credibility of Ms. Forcier as a witness, since Defendant would have to
be guilty of first-degree murder in order for Ms. Forcier to be guilty
of accessory after the fact to first-degree murder. See State v.
Freeman, 280 N.C. 622, 626, 187 S.E.2d 59, 62-63 (1972) (“[I]t is
error for the trial judge to express or imply ․ any opinion as to the
guilt ․ of the defendant ․ or as to the credibility of any witness.”).
Such a statement would be improper if “a juror could reasonably
infer therefrom that the judge was intimating an opinion as to the
credibility of the witness or as to any fact to be determined by the
jury.” Id. at 628, 187 S.E.2d at 63.
Our standard of review in considering this exchange
is whether it created “a reasonable possibility that, had the error in
question not been committed, a different result would have been
reached at the trial out of which the appeal arises.” N.C. Gen.Stat.
§ 15A-1443(a) (2005). If Defendant succeeds in showing prejudice
from the exchange, “[t]he burden is upon the State to demonstrate,
beyond a reasonable doubt, that the error was harmless.” N.C.
Gen.Stat. § 15A-1443(b) (2005). However, “[a] defendant is not
prejudiced ․ by error resulting from his own conduct.” N.C. Gen.Stat.
§ 15A-1443(c) (2005); see also State v. Payne, 280 N.C. 170, 171, 185
S.E.2d 101, 102 (1971) (“Ordinarily one who causes or ․ joins in
causing the court to commit error is not in a position to repudiate
his action and assign it as ground for a new trial.”).
Here, Defendant's counsel “join[ed] in causing the
court to commit error,” such that we conclude there was no prejudice
to Defendant stemming from the objected-to exchange. In his
statements while the jury was present, the trial judge referred to Ms.
Forcier's “potential liability” and that she “may have some Fifth
Amendment rights,” while also stating that he had no prosecutorial
responsibilities in the matter. Defense counsel, however, was the
first to elicit from Ms. Forcier the possible charge of accessory
after the fact to first-degree murder, which he subsequently
reiterated in front of the jury during his exchange with the trial
Rather than expressing an impermissible opinion as
to Defendant's guilt or Ms. Forcier's credibility, we find that the
trial judge was instead seeking to remedy the situation by clarifying
that he had not threatened prosecution, as suggested by defense
counsel, and to thereby avoid prejudice, not cause it. We recognize
that the trial court's statement that Ms. Forcier “stood liable for
accessory after the fact” perhaps went too far in its forcefulness;
however, we also note that Ms. Forcier's testimony in front of the
jury might have in fact enhanced her credibility as a witness who felt
strongly enough still to testify, even in the face of such threat.1
Accordingly, we find no merit to this assignment of error.
Defendant next argues that she is entitled to a new
trial because the trial court erroneously admitted the State's
irrelevant evidence and argument about her bad character, in
contravention of Rules of Evidence 401-404 and the Fourteenth
Amendment to the U.S. Constitution.2
A trial court's rulings under Rule 403 are reviewed
for an abuse of discretion, see State v. Lanier, 165 N.C.App. 337,
345, 598 S.E.2d 596, 602, disc. review denied, 359 N.C. 195, 608
S.E.2d 59 (2004), as are those under Rule 404(b). See State v.
al-Bayyinah, 359 N.C. 741, 747, 616 S.E.2d 500, 506 (2005) (“Whether
to exclude evidence is a decision within the trial court's
discretion.”), cert. denied, 547 U.S. 1076, 126 S.Ct. 1784, 164
L.Ed.2d 528 (2006). This Court will find an abuse of discretion only
where a trial court's ruling “is manifestly unsupported by reason or
is so arbitrary that it could not have been the result of a reasoned
decision.” State v. Campbell, 359 N.C. 644, 673, 617 S.E.2d 1, 19
(2005) (citation and quotation omitted), cert. denied, 547 U.S. 1073,
126 S.Ct. 1773, 164 L.Ed.2d 523 (2006). Although rulings under Rule
401 “are not discretionary and therefore are not reviewed under the
abuse of discretion standard,” we also note that “such rulings are
given great deference on appeal.” State v. Wallace, 104 N.C.App. 498,
502, 410 S.E.2d 226, 228 (1991) (internal citations omitted), cert.
denied, 506 U.S. 915, 113 S.Ct. 321, 121 L.Ed.2d 241 (1992).
In her appeal, Defendant argued prejudicial, plain,
and ex mero motu error as to the evidence and testimony challenged in
this argument. However, she failed to distinguish as to the specific
grounds for objection and appropriate standard of review concerning
the testimony of each of the eighteen witnesses she challenges.
Nevertheless, even assuming arguendo that the objected-to testimony
was error in each instance, thereby giving Defendant the benefit of
the most favorable standard of review, we hold that its admission was
not prejudicial to Defendant. See N.C. Gen.Stat. § 15A-1443(a) (“A
defendant is prejudiced by errors ․ when there is a reasonable
possibility that, had the error in question not been committed, a
different result would have been reached at the trial out of which the
appeal arises. The burden of showing such prejudice ․ is upon the
Defendant takes specific issue with witness
testimony concerning, among other things, her refusal to have
children, her sexual promiscuity and affairs during her marriage and
after her husband's death, her “alternative” lifestyle including
classified Internet ads seeking sexual partners and “swinging,” her
belief in the Wiccan religion, and her ability to manipulate others,
Regarding the testimony of Charles McLendon, a man
with whom Defendant had an extramarital affair from late 1999 to early
2000, the trial court overruled defense counsel's objection “based
upon the [North Carolina] rules of evidence,” finding that his
testimony was “relevant on the issues of motive, pattern of conduct on
using the Internet to engage in sexual liaisons, and the status of the
apparent disengagement from [Defendant's] husband, Frank Martin
Theer.” The trial judge also instructed the jury that Mr. McLendon's
testimony should be received for only those limited purposes, as well
as for the mental state of Defendant.
Likewise, after reviewing eight boxes of some
21,000 documents and computer records, the trial court found that
The marital relationship between the defendant and
Frank Martin Theer, the length and depth of the disengagement between
the defendant and Frank Martin Theer in their marriage, thus the
motive and marital state of the defendant leading up to December 17,
2000, are relevant for the jury's consideration. It is also relevant
on the issue of the process which the defendant utilized during the
disengagement from Frank Martin Theer and in corroboration of the
testimony of Charles McLendon.
The relationship of the defendant to John Diamond
and the defendant's relationship to her husband, Frank Martin Theer,
have now become a substantial and material matter and, thus, the
mental state of the defendant at the time of the death of Frank Martin
Theer as well as the motive on the part of the defendant. The
matters dealing with an alternative life-style may reflect not only
the degree of engagement with John Diamond but also the degree of
disengagement from her husband, Frank Martin Theer, at the time of his
The Court has considered this matter under Rule
403. The defendant's motion is denied. The Court will give a
limiting instruction accordingly.
A limiting instruction was later given to the jury,
bidding them to receive evidence as to Defendant's Internet posting
and alternative lifestyle for the “limited purpose of [their]
evaluation of the marital status of the defendant and Frank Martin
Theer, any motive in this particular case, corroboration of the prior
testimony of Charles McLendon and, thus, [their] evaluation of the
mental state of the defendant.”
Defendant argues that this testimony about the
computer documents and e-mails should have been excluded as bad
character evidence, as it made her out to be a “moral degenerate” and
went beyond simply chronicling her extramarital affairs. See State
v. Small, 301 N.C. 407, 432-33, 272 S.E.2d 128, 143-44 (1980),
superseded by statute on other grounds as stated in State v. Woods,
307 N.C. 213, 217-18, 297 S.E.2d 574, 577 (1982). However, as our
Supreme Court similarly concluded in Small, “[w]e are satisfied ․ that
given the admissibility of the fact that defendant had sexual
relations with other[s], the outcome of the trial would not have been
different had this bit of embellishment not been admitted.” Id. at
433, 272 S.E.2d at 144.
Moreover, as the trial court found and instructed
the jury, the evidence in question was properly admitted for another,
permissible purpose, such as “proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake.” N.C.
Gen.Stat. § 8C-1, Rule 404(b). Likewise, in light of the trial
court's extensive findings on the record concerning his reasons for
admitting this evidence, we conclude his rulings were neither
unsupported by reason nor arbitrary and thus were not an abuse of
discretion. See Campbell, 359 N.C. at 673, 617 S.E.2d at 19. As
such, we uphold the trial court's finding that the probative value of
this evidence was not “substantially outweighed” by its prejudicial
effect. N.C. Gen.Stat. § 8C-1, Rule 403.
Turning now to the evidence of Defendant's affairs
while living in Florida after her husband's death, as well as her
alleged practice of the Wiccan religion and her behavior while in
jail, we acknowledge that this evidence had a tenuous, at best,
relevance to the question of Defendant's guilt. However, even
assuming arguendo that it was error to admit this evidence, we hold
that it was not prejudicial in light of the overwhelming amount of
evidence presented by the State as to Defendant's alleged motive and
involvement in the murder. After reviewing all of the testimony and
transcript in this case, we are unpersuaded that, but for this
evidence, Defendant would have been acquitted of the crimes charged.
See N.C. Gen.Stat. § 15A-1443(a).
Additionally, although Defendant seems to argue
that the cumulative effect of these evidentiary rulings should entitle
her to a new trial, we believe that, even when taken as a whole, the
evidentiary rulings in question did not deprive Defendant of a fair
trial. This evidence went to Defendant's motive and state of mind
with respect to her husband's death; it did not include any
suggestion that she had committed similar crimes in the past. See
State v. Anthony, 354 N.C. 372, 423, 555 S.E.2d 557, 589 (“In light of
the great weight of evidence against defendant presented at trial, we
hold that the combined effect of any erroneous evidentiary rulings was
not prejudicial to defendant.”) (2001), cert. denied, 536 U.S. 930,
122 S.Ct. 2605, 153 L.Ed.2d 791 (2002); State v. Beane, 146 N.C.App.
220, 234, 552 S.E.2d 193, 202 (2001) ( “[W]e find no merit in
defendant's final argument that he was prejudiced by the cumulative
effect of the trial court's alleged errors.”), appeal dismissed, 355
N.C. 350, 563 S.E.2d 562 (2002); but see State v. White, 331 N.C.
604, 616, 419 S.E.2d 557, 564 (1992) (finding the cumulative effect of
evidence as to the defendant's commission of two similar crimes in the
past to have deprived him of his fundamental right to a fair trial).
For the foregoing reasons, we find no merit in this
assignment of error.
Next, Defendant argues she is entitled to a new
trial because the trial court improperly denied her motion for a
mistrial following inadmissible bad character evidence offered by
witness Rosaida Rivera, including the suggestion of an improper
relationship between Defendant and her trial counsel. Defendant
contends that admission of the testimony was plain error, and that
denial of the motion for mistrial was an abuse of discretion. She
specifically objects to the following statements made by Ms. Rivera on
A: I told her about her lawyer, about her and her
lawyer used to get these-these special contact visits. How they were
real close. She used to-before she'd go see her lawyer, she always
used to take these little-a whole bunch of paper, which-about her case
and stuff like that that she would take to her lawyer. She would
brag on her lawyer was so good and how sweet her lawyer is. And
people suspected, you know, that her and her lawyer were a little too
close than most lawyers would be with a client but how she'd get
little special things that no other inmate can get unless her lawyer
would bring it in. That would be like erasers and pads, what else?
These statements were made in response to an
unrelated question by the prosecution, and in fact came in the midst
of what might be characterized as a rambling non-answer by Ms. Rivera.
Defendant asserts that the suggestion of an improper relationship
with her trial counsel impaired the latter's ability to effectively
represent her and caused her substantial and irreparable prejudice.
The plain error rule “is always to be applied
cautiously and only in the exceptional case where, after reviewing the
entire record,” the error is found to have been “so basic, so
prejudicial, so lacking in its elements that justice cannot have been
done” or that it had “a probable impact on the jury's finding that the
defendant was guilty.” State v. Odom, 307 N.C. 655, 660, 300 S.E.2d
375, 378 (1983) (internal citation and quotation omitted).
Here, because defense counsel did not object at
trial to the substance of Ms. Rivera's testimony, and thus did not
preserve the issue on appeal, we may only review the evidence under
the plain error standard. To that end, we note that defense counsel
did cross-examine Ms. Rivera concerning her claims of an improper
relationship, drawing the jury's attention to the strict conditions of
Defendant's imprisonment and monitored meetings with her attorneys.3
He further impeached Ms. Rivera's credibility by reviewing her
extensive criminal record. Moreover, at the close of all evidence,
the trial court specifically instructed the jury that
There is evidence which tends to show that the
witness Rosaida Rivera solicited help from the State of North Carolina
in exchange for her testimony. If you find that she testified in
whole or in part for this reason, you should examine her testimony
with great care and caution in deciding whether or not to believe it.
If, after doing so, you believe her testimony in whole or in part,
you should treat what you believe the same as any other believable
In light of the curative effect of the
cross-examination of Ms. Rivera and the trial court's instructions to
the jury concerning her testimony, we decline to find plain error in
the admission of Ms. Rivera's testimony.
The trial court is required to declare a mistrial
upon a defendant's motion “if there occurs during the trial an error
or legal defect in the proceedings, ․, resulting in substantial and
irreparable prejudice to the defendant's case.” N.C. Gen.Stat.
§ 15A-1061 (2005); State v. Tirado, 358 N.C. 551, 585, 599 S.E.2d
515, 538 (2004), cert. denied, Queen v. North Carolina, 544 U.S. 909,
125 S.Ct. 1600, 161 L.Ed.2d 285 (2005). The decision whether to
grant a mistrial is within the trial court's discretion and will be
given “great deference since he is in a far better position than an
appellate court to determine whether the degree of influence on the
jury was irreparable.” State v. Williamson, 333 N.C. 128, 138, 423
S.E.2d 766, 772 (1992). This Court will find an abuse of discretion
only where a trial court's ruling “is manifestly unsupported by reason
or is so arbitrary that it could not have been the result of a
reasoned decision.” Campbell, 359 N.C. at 673, 617 S.E.2d at 19.
Here, after reviewing the arguments for the State
and Defendant as to Defendant's motion for mistrial, the trial court
entered findings as to Ms. Rivera's testimony that included the
Paragraph three, there is a substantial body of
evidence before the jury that could cause a finder of fact to view
Rosaida Rivera's testimony with great care and caution
Paragraph four, it is also worthy of note that no
objection nor any motion to strike was raised by the
defendant-defendant's counsel ․ cross-examined Rivera about the
security when contact visits were permitted including windows through
which jail personnel could observe the contact visit.
Paragraph six, it is the Court's judgment borne of
22 years of experience as a trial judge as well as input from fellow
trial judges that testimony such as Rosaida Rivera's is generally
viewed with skepticism by jurors. Additionally, Rosaida Rivera's
testimony represented only a very small piece of a very extensive and
substantiated circumstantial case against the defendant.
The trial judge based the denial of the motion for
mistrial on these findings, which we conclude to be well supported by
reason and the trial judge's superior position to observe the jury.
We therefore decline to disturb the trial court's ruling on appeal.
Defendant next contends that she is entitled to a
new trial because the trial court erroneously admitted inadmissible
and privileged opinion and hearsay testimony from Dr. Kenneth
Kastleman, a clinical psychologist who provided marital counseling to
Defendant and Captain Theer. We disagree.
At the outset, we note that Defendant's objections
at trial to Dr. Kastleman's testimony were based on
psychologist-patient and marital privilege, as well as constitutional
Because she did not offer evidentiary arguments at trial regarding
the testimony, we review those contentions here under a plain error
standard, as articulated above. See N.C. R.App. P. 10(c)(4). We
review the trial court's decision to compel disclosure of what would
otherwise be privileged information under an abuse of discretion
standard. See State v. Smith, 347 N.C. 453, 461, 496 S.E.2d 357, 362
(“The decision that disclosure is necessary to a proper administration
of justice is one made in the discretion of the trial judge, and the
defendant must show an abuse of discretion in order to successfully
challenge the ruling.”) (internal citation and quotation omitted),
cert. denied, 525 U.S. 845, 119 S.Ct. 113, 142 L.Ed.2d 91 (1998).
Defendant specifically objects to Dr. Kastleman's
testimony that during their sessions in the summer of 2000, Defendant
was “not looking for common ground” in the marriage, that she was
“establishing boundaries” toward her husband and getting “separation”
from him, and that she was “attempting to distance herself from” the
marriage and not “motivated to undertake therapy.” He further
testified that Captain Theer “did indeed want to make [the marriage]
work,” was “attempting to accommodate to [Defendant's] wishes,” and
that he felt “he and [Defendant] could work out their problems
together.” Dr. Kastleman also stated that Captain Theer said that he
was “the one putting all the energy in trying to get things back
together” and that he guessed Defendant did not love him anymore and
he did not “understand why she doesn't want to be together.”
Defendant argues that these statements and opinions
constituted impermissible expert testimony on character, in violation
of North Carolina Rule of Evidence 405(a). See N.C. Gen.Stat.
§ 8C-1, Rule 405(a) (2005) ( “Expert testimony on character or a trait
of character is not admissible as circumstantial evidence of
behavior.”). After a careful review of all of Dr. Kastleman's
testimony, we find that his opinions related to the state of the Theer
marriage and Defendant's attitude toward her husband and her marriage,
neither of which meet the definition of character evidence. See State
v. Baldwin, 125 N.C.App. 530, 536, 482 S.E.2d 1, 5 (“Character is a
generalized description of a person's disposition, or of the
disposition in respect to a general trait ․”) (internal citation and
quotation omitted), disc. review improvidently allowed, 347 N.C. 348,
492 S.E.2d 354 (1997). Additionally, he made no impermissible
statements nor suggestions as to Defendant's guilt. See State v.
Mixion, 110 N.C.App. 138, 145, 429 S.E.2d 363, 367 (“In North Carolina
an expert may not express an opinion regarding the guilt or innocence
of a defendant.”), disc. review denied, 334 N.C. 437, 433 S.E.2d 183
(1993). We thus conclude that admission of the testimony did not
violate Rule 405(a).
Defendant also contends that the testimony violated
Rules of Evidence 401-403 as to relevance and prejudicial effect,
Rules 701-702 as to opinion and expert testimony, and Rules 801-803 as
to hearsay. See N.C. Gen.Stat. § 8C-1, Rules of Evidence (2005).
We find these arguments to be without merit, particularly under a
plain error standard. See State v. Cummings, 352 N.C. 600, 636-37,
536 S.E.2d 36, 61 (2000) (holding that the “bare assertion” of plain
error in an assignment of error, without accompanying explanation,
analysis, or specific contentions in a defendant's brief, is
insufficient to show plain error), cert. denied, 532 U.S. 997, 121
S.Ct. 1660, 149 L.Ed.2d 641 (2001). In light of the State's theory
of the case, that Defendant conspired with and aided and abetted
Sergeant Diamond in the murder of her husband, the testimony of their
marriage counselor was surely relevant. Furthermore, Defendant has
failed to make any argument or showing in her brief that the testimony
as to Captain Theer's statements had “a probable impact on the jury's
finding that the defendant was guilty.” See Odom, 307 N.C. at 660,
300 S.E.2d at 378.
Defendant also argues that the trial court erred by
compelling disclosure of Dr. Kastleman's records of his counseling
sessions with the Theers. The trial court ordered the disclosure of
the counseling session records “in the interest of the administration
of justice and pursuant to North Carolina General Statute 8-53.3.”
Indeed, our legislature has seen fit to give trial
judges such discretion to compel the disclosure of what would
otherwise be privileged communications between psychologist and
patient. See N.C. Gen.Stat. § 8-53.3 (2005) (“Any resident or
presiding judge in the district in which the action is pending may ․
compel disclosure, ․ if in his or her opinion disclosure is necessary
to a proper administration of justice.”). Given that the state of
the Theer marriage was a central issue in the trial as to Defendant's
alleged motive for the crime, and that the trial judge himself
reviewed the records prior to their disclosure, we find no abuse of
discretion by the trial judge regarding this issue.
Defendant next argues that she is entitled to a new
trial because the trial court improperly excluded relevant defense
evidence about Captain Theer's alternative lifestyle. We disagree.
We review the admissibility of expert testimony
under an abuse of discretion standard. See State v. Anderson, 322
N.C. 22, 28, 366 S.E.2d 459, 463 (“In applying [Rule 702], the trial
court is afforded wide discretion and will be reversed only for an
abuse of that discretion.”), cert. denied, 488 U.S. 975, 109 S.Ct.
513, 102 L.Ed.2d 548 (1988).5
Defendant specifically objects to the exclusion of
portions of testimony offered by two clinical psychologists, Dr.
Deborah Layton-Tholl and Dr. Donald Stewart. Dr. Layton-Tholl was
qualified as an expert in the fields of psychology and extramarital
affairs; she interviewed Defendant and reviewed documents and e-mails
related to the case. Dr. Stewart is a clinical psychologist in
Florida who provided marital counseling to Defendant and her husband
After hearing from the defense as to what
information Dr. Layton-Tholl and Dr. Stewart planned to offer, the
trial court excluded any testimony that was based on statements made
by Defendant to either psychologist.6
In doing so, the trial court referred on the record to our Supreme
Court's holding in State v. Prevatte, noting that
It is well settled that an expert must be allowed
to testify to the basis of her opinion. State v. Ward, 338 N.C. 64,
105-06, 449 S.E.2d 709, 732 (1994), cert. denied, 514 U.S. 1134, 115
S.Ct. 2014, 131 L.Ed.2d 1013 (1995). Nonetheless, admission of the
basis of an expert's opinion is not automatic. State v. Workman, 344
N.C. 482, 495, 476 S.E.2d 301, 308 (1996). The trial court, in its
discretion, must determine whether the statements in issue are
reliable, especially if the statements are self-serving and the
defendant is not available for cross-examination. Id. Moreover, if
the statements appear unnecessary to the expert's opinion, exclusion
of the basis may be proper. State v. Baldwin, 330 N.C. 446, 457, 412
S.E.2d 31, 38 (1992).
356 N.C. 178, 233, 570 S.E.2d 440, 470 (2002)
(emphasis added), cert. denied, 538 U.S. 986, 123 S.Ct. 1800, 155
L.Ed.2d 681 (2003). The trial court here noted that statements made
to the two psychologists by Defendant would have been self-serving and
that they would be allowed only if Defendant elected to testify.
Both witnesses were, however, permitted to testify as to other facts
at issue. Dr. Layton-Tholl offered extensive testimony concerning
her research into extramarital affairs and specifically her opinions
on the relationship between Defendant and Sergeant Diamond, including
why Defendant might have vacillated between her husband and Sergeant
Diamond and why she might have continued her relationship with
Sergeant Diamond after Captain Theer's death. Dr. Stewart testified
that he had provided marital counseling to Defendant and her husband
and had recommended to Captain Theer's commanding officer that his
scheduled transfer be postponed in order for the couple to receive
Defendant contends that, under the trial court's
previous evidentiary rulings and Rules of Evidence 401-403 as to
relevance, Dr. Layton-Tholl and Dr. Stewart should have been allowed
to testify in full as to Captain Theer's extramarital affairs and
“alternative lifestyle” in order to show a direct correlation between
his behavior and Defendant's state of mind. The trial court found
the evidence to be related to Captain Theer's state of mind, not
Defendant's; he therefore excluded the expert witness testimony that
might have involved their opinions of Captain Theer's state of mind,
saying that “The victim's state of mind is not relevant in this trial.
Her state of mind is, not what his attitude was towards her.”
The trial court's position on this question is
reflected in the following exchange from the transcript, conducted
outside the presence of the jury:
DEFENSE COUNSEL: But the state and the Court has
made Marty's state of mind relevant in this matter. You've admitted,
you know, Dr. Kastleman's records. The state has, you know, hammered
home how Marty said this and said that and so forth and, you know,
that became-that became an issue in this case by them raising Marty's
state of mind.
THE COURT: Frank Martin Theer was assassinated on
December 17th of 2000. If the facts in this case show that this
arose out of spousal abuse and that they had a shoot-out at the O.K.
Corral and you wanted to develop the history between these two
individuals, then it may be relevant. But the fact pattern in this
case is very simple. Some individual, the state contends it being
John Diamond, hid behind some bushes and at some point in time,
apparently Frank Martin Theer went up the rear steps of 2500 Raeford
Road and some person, the state contends being John Diamond, shot
Frank Martin Theer four times and apparently the state contends that
once he was on the ground, some person came up and put a bullet
through his brain. The mental state of Frank Martin Theer in this
case is not relevant.
DEFENSE COUNSEL: When they have paraded in front
of this jury, you know, the extramarital affairs of Michelle Theer-
THE COURT: They are held relevant as to her state
of mind and her reasons or the attribution being made by the state as
to why she would want to have Frank Martin Theer killed.
In reviewing this exchange between the trial court
and defense counsel, it is clear to us that the trial court did not
make a ruling that “is manifestly unsupported by reason or is so
arbitrary that it could not have been the result of a reasoned
decision.” Campbell, 359 N.C. at 673, 617 S.E.2d at 19.
Furthermore, we note that Defendant was able to
introduce evidence of Captain Theer's alleged extramarital affairs and
Internet activities through other witnesses. Thus, even assuming
arguendo that it was error to exclude the evidence, Defendant has
failed to show “a reasonable possibility that, had the error in
question not been committed, a different result would have been
reached at the trial out of which the appeal arises.” N.C. Gen.Stat.
§ 15A-1443(a). We conclude that this assignment of error is without
Defendant also contends that she is entitled to a
new trial because the trial court committed plain and ex mero motu
error by allowing State evidence and argument about her exercise of
her constitutional rights to silence and counsel. We disagree.
Defendant points to a number of instances in which
the State made reference at trial to her “pre-trial exercise of her
constitutional rights to silence and counsel.” It is telling that
she refers to this “pre-trial exercise,” as the references are all to
instances in which a witness testified to Defendant's invocation of
her rights to counsel and to remain silent prior to being arrested
herself. Witnesses such as police and Army investigators and
Defendant's boss testified as to her lack of cooperation with the
police during the investigation of her husband's murder; the
prosecutor's closing argument likewise referred to her reaction to
invoke her right to counsel when Sergeant Diamond was arrested. None
of these situations was custodial such that her Fifth and Sixth
Amendment rights to counsel and to remain silent would have attached.
See Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16
L.Ed.2d 694, 706 (1966); Kirby v. Illinois, 406 U.S. 682, 688, 92
S.Ct. 1877, 1881-82, 32 L.Ed.2d 411, 417 (1972) (plurality); State v.
Phipps, 331 N.C. 427, 441, 418 S.E.2d 178, 185 (1992).
None of the four cases cited by Defendant nor those
found by this Court in its review of this argument have awarded a
defendant a new trial on the basis of references at trial to the
defendant's right to remain silent and right to counsel prior to being
arrested or to being in custodial interrogation. See also Jenkins v.
Anderson, 447 U.S. 231, 238, 100 S.Ct. 2124, 2129, 65 L.Ed.2d 86,
94-95 (1980) (“We conclude that the Fifth Amendment is not violated by
the use of prearrest silence to impeach a criminal defendant's
credibility.”); State v. Lane, 301 N.C. 382, 384-85, 271 S.E.2d 273,
275 (1980) (distinguishing between impermissible references to the
decision to remain silent after arrest and allowable references to
silence prior to arrest). We decline to do so now. We hold that
this assignment of error is without merit.
Defendant next contends she is entitled to a new
trial because the trial court made nine improper negative comments
before the jury that belittled her trial counsel, and also improperly
denied her motion for a mistrial based on this conduct. We disagree.
“In evaluating whether a judge's comments cross
into the realm of impermissible opinion, a totality of the
circumstances test is utilized.” State v. Larrimore, 340 N.C. 119,
155, 456 S.E.2d 789, 808 (1995); see also State v. Blackstock, 314
N.C. 232, 236, 333 S.E.2d 245, 248 (1985); State v. Allen, 283 N.C.
354, 358-59, 196 S.E.2d 256, 259 (1973). Furthermore, “[e]ven if it
cannot be said that a remark or comment is prejudicial in itself, an
examination of the record may indicate a general tone or trend of
hostility or ridicule which has a cumulative effect of prejudice.”
State v. Staley, 292 N.C. 160, 165, 232 S.E.2d 680, 684 (1977). A
judge must remain impartial towards defense counsel and should
“refrain from remarks which tend to belittle or humiliate counsel
since a jury hearing such remarks may tend to disbelieve evidence
adduced in defendant's behalf.” State v. Wright, 172 N.C.App. 464,
469, 616 S.E.2d 366, 369 (quoting State v. Coleman, 65 N.C.App. 23,
29, 308 S.E.2d 742, 746 (1983), cert. denied, 311 N.C. 404, 319 S.E.2d
275 (1984)), aff'd per curiam, 360 N.C. 80, 621 S.E.2d 874 (2005).
Nevertheless, “unless it is apparent that such
infraction of the rules might reasonably have had a prejudicial effect
on the result of the trial, the error will be considered harmless.”
State v. Perry, 231 N.C. 467, 471, 57 S.E.2d 774, 777 (1950). This
burden to show prejudice “rests upon the defendant to show that the
remarks of the trial judge deprived him of a fair trial.” State v.
Waters, 87 N.C.App. 502, 504, 361 S.E.2d 416, 417 (1987).
In the instant case, after carefully reviewing in
context the nine comments complained of by Defendant,7
we find that none rise to the level seen in any of the cases cited by
Defendant in which a new trial was ordered. See, e.g., Staley, 292
N.C. at 165, 232 S.E.2d at 684 (finding prejudice and ordering a new
trial where the trial judge had made comments to the jury including, “
‘Ladies and gentlemen if these witnesses are not telling the truth,
then the court, I think it is obvious what the facts are. Now, I
have made your speech again for you.’ ”); (emphasis in original);
Wright, 172 N.C.App. at 464-65, 616 S.E.2d at 367 (finding prejudice
and ordering a new trial where trial judge mocked defense counsel in
front of jury on several occasions and made comments such as, “ ‘I
have done everything I can possibly do, except end your cross
examination․ Whatever you need to do, as I have now told you three
times, whatever you need to do to help yourself not do that, do it.”).
Rather, as in Larrimore and State v. Agnew, the
trial court's statements in this case “reflected efforts on the part
of the trial judge to maintain progress and proper decorum in what was
evidently a prolonged and tedious trial.” Larrimore, 340 N.C. at 155,
456 S.E.2d at 808 (quoting State v. Agnew, 294 N.C. 382, 395, 241
S.E.2d 684, 692, cert. denied, 439 U.S. 830, 99 S.Ct. 107, 58 L.Ed.2d
124 (1978)). In a ten-week trial with over 6,300 pages of
transcript, we find that the nine comments by which the trial court
admonished Defendant's counsel when he asked inappropriate or improper
questions did not prejudice Defendant nor deprive her of a fair trial.
Accordingly, we find no merit to this assignment of error.
Defendant also contends that she is entitled to a
new trial because the prosecutor's closing argument was ex mero motu
error, such that the trial court should have intervened. We
In cases where a defendant does not object at trial
to the prosecutor's closing arguments, “the impropriety of the
argument must be gross indeed in order for [an appellate court] to
hold that a trial judge abused his discretion in not recognizing and
correcting ex mero motu an argument which defense counsel apparently
did not believe was prejudicial when he heard it.” State v. Hoffman,
349 N.C. 167, 185, 505 S.E.2d 80, 91 (1998) (internal quotations and
citations omitted), cert. denied, 526 U.S. 1053, 119 S.Ct. 1362, 143
L.Ed.2d 522 (1999). Additionally, our Supreme Court has repeatedly
held that “counsel must be allowed wide latitude in the argument of
hotly contested cases.” State v. Berry, 356 N.C. 490, 518, 573 S.E.2d
132, 150 (2002) (citation and quotations omitted).
Here, after carefully reviewing the entirety of the
prosecutor's closing argument to the jury, we find that none of the
comments challenged by Defendant were so grossly improper as to
require the ex mero motu intervention by the trial court. Defendant
specifically objects to the prosecutor's statements (1) that Defendant
had “a burden there once they put on evidence and you can reject it or
you can accept it”; (2) concerning Captain Theer's character and his
mother; (3) assuring the jury that “[e]verything I argued to you is
supported by the facts in this case”; and, (4)referring to occasions
on which Defendant had lied.
We note that the prosecutor also explicitly said in
his closing argument, “The defendant doesn't have to prove anything.
The state has the burden of proof. We have the burden of proof. We
put on evidence.” In a criminal case, “the defendant's failure to
produce exculpatory evidence or to contradict evidence presented by
the State may properly be brought to the jury's attention by the State
in its closing argument.” State v. Taylor, 337 N.C. 597, 613, 447
S.E.2d 360, 370 (1994). The prosecutor's reference here to
Defendant's “burden” was not grossly improper when it followed a clear
statement of the State's burden of proof in the case, and was instead
designed to suggest to the jury that Defendant had failed to
contradict the State's evidence.
Furthermore, the prosecutor's passing references to
Captain Theer's character and to his mother “did not improperly
emphasize sympathy or pity for the victim's family.” State v. Alford,
339 N.C. 562, 572, 453 S.E.2d 512, 517 (1995). Moreover, when
“[v]iewed in the context of his entire argument, these comments did
not attempt to make sympathy for the victim or his family the focus of
the jury's deliberation.” Id. As such, they were not improper. A
prosecutor is similarly permitted to give reasons why the jury should
believe the State's evidence or not believe a witness, and the
prosecutor's comments here did not rise to the level of gross
impropriety that would have warranted ex mero motu intervention by the
trial court. See State v. Bunning, 338 N.C. 483, 489, 450 S.E.2d
462, 464-65 (1994), sentence vacated, 346 N.C. 253, 485 S.E.2d 290
(1997); State v. McKenna, 289 N.C. 668, 687, 224 S.E.2d 537, 550,
sentence vacated, 429 U.S. 912, 97 S.Ct. 301, 50 L.Ed.2d 278 (1976).
This assignment of error is therefore without
Next, Defendant argues she is entitled to a new
trial because the trial court erroneously admitted the State's
evidence about computer documents related to body bags, specifically,
concerning alleged searches on the website eBay for “body bag disaster
pouches” stored in the memory of Defendant's home computer.
Defendant asserts that the evidence was irrelevant and inadmissible
under Rules of Evidence 401-403 and 901, as well as the Fourteenth
Amendment to the Constitution.8
In its ruling on Defendant's motion to exclude the
evidence, the trial court noted that it had “reviewed eight boxes of
computer records which have now been represented to be an
approximately 21,000 documents.” He further stated,
It was a rare occurrence that a document could be
interpreted as having been produced by a third party. The computers
were found in a locale at least in the constructive possession of the
defendant. The State always has the burden of showing relevancy and
attributions to the defendant which the Court will have to judge as to
its admissibility as offered.
At trial, after overruling the defense objection to
the evidence in question, the trial court instructed the jury that
this evidence concerning with this issue dealing
with the body bag is offered and received concerning the defendant's
then existing state of mind or emotion such as intent, plan, motive or
design. It's offered and received for that limited purpose and your
Even assuming arguendo that the admission of this
testimony was error and an abuse of the trial court's discretion, we
find that it was not prejudicial to Defendant. See N.C. Gen.Stat.
§ 15A-1443(a) (prejudice results where, “had the error in question not
been committed, a different result would have been reached at the
trial out of which the appeal arises.”). The evidence referring to
the body bags comprised just three documents out of the 21,000
reviewed by the trial court, and out of over five hundred exhibits
submitted by the State. The trial court made findings that the
computer was in the constructive possession of Defendant, and defense
counsel cross-examined the State's computer expert as to whether
Captain Theer could perhaps have conducted the searches rather than
In light of the other overwhelming evidence
presented to the jury as to Defendant's guilt, we conclude that this
evidence, even if irrelevant, was not so prejudicial as to have
affected the outcome of the trial. This assignment of error is
Lastly, Defendant argues that her conviction for
first-degree murder should be vacated because the short-form
indictment was insufficient. As recognized by Defendant in her
brief, however, our courts have previously rejected the argument she
makes, and this issue was raised and decided against Defendant at
trial. See State v. Hunt, 357 N.C. 257, 278, 582 S.E.2d 593, 607,
cert. denied, 539 U.S. 985, 124 S.Ct. 44, 156 L.Ed.2d 702 (2003).
This assignment of error is accordingly dismissed.
For the foregoing reasons, we conclude that
Defendant's trial was free of prejudicial error. We therefore uphold
her convictions for first-degree murder and conspiracy to commit
No prejudicial error.
Ms. Forcier was not the only witness whom the jury saw with her own
counsel sitting beside her; the trial judge also instructed the
counsel for State witness Rosaida Rivera to sit beside her while she
testified and informed the jury that the appointed attorney was there
“representing any Fifth Amendment interests that Ms. Rivera may have”
and that the attorney “may consult [the witness] at any time
concerning any issues that may arise.” Similarly, Dr. Kenneth
Kastleman, who had provided marital counseling to the Theers, had an
attorney present during his testimony to represent his interests.
The fact that the jury saw the same treatment of other witnesses
lessens the potentially prejudicial impact of the trial court's
statements concerning Ms. Forcier.
Defendant refers to a violation of the Fourteenth Amendment in her
brief, she offers no argument or citations in support of this
contention. Accordingly, she did not preserve her constitutional
claims regarding this evidence. See N.C. R.App. P. 28(b)(6).
3. We also
point out that, after Ms. Rivera made the statement recounted above,
the prosecution did not pursue the suggestion of an improper
relationship any further. In the course of cross-examination,
however, defense counsel elicited the first and only mention of
possible sexual contact between Defendant and himself.
4. In her
assignments of error to this Court, Defendant alleges that the
admission of this testimony violated her state and federal
constitutional rights. However, her brief argues only that the
testimony violated various Rules of Evidence. Accordingly, Defendant
did not preserve her constitutional claims as to this evidence. See
N.C. R.App. P. 28(b)(6).
Defendant again asserts constitutional error in the section of her
brief devoted to this issue, she fails to present any argument or
citations to that effect. Accordingly, her constitutional arguments
are deemed abandoned, see N.C. R.App. P. 28(b)(6), and we consider
only her objections on the grounds of the North Carolina Rules of
respect to Dr. Stewart's testimony, the trial court also excluded any
information that was gained from statements made by Captain Theer, on
the basis that he had not waived the psychotherapist-patient privilege
provided by Florida law, even if Defendant had. The Florida statute
allows the privilege to be penetratedFor communications relevant to an
issue of the mental or emotional condition of the patient in any
proceeding in which the patient relies upon the condition as an
element of his or her claim or defense or, after the patient's death,
in any proceeding in which any party relies upon the condition as an
element of the party's claim or defense.Fla. Stat. Ann. § 90.503(4)(c)
(2006). Without providing any supporting case law or argument,
Defendant asserts that “the State was using Marty's mental condition
as an element of a legal claim,” such that the privilege should be
penetrated, and that “the Trial Court incorrectly applied Florida
rather than North Carolina law.” Given that the marital counseling
in question was conducted in Florida, and that the State put at issue
only Defendant's state of mind and the status of the marriage as a
whole, not Captain Theer's state of mind, we find these arguments
nine comments objected to by Defendant, with some parenthetical
relevant context, were as follows:(1) “[L]et's move on to something
reasonable, please.” (Defense counsel questioned a forensic
technician for the Fayetteville Police Department as to whether her
watch was coordinated with the watch at the department and, if not,
how far off it might be.)(2) “Well, that makes it an unfair question
then.” (Defense counsel questioned the forensic technician about
blood testing that she did not conduct.)(3) “That's an unfair
question.” (Defense counsel questioned a Fayetteville Police
detective as to whether a signature was that of Defendant.)(4) “[Y]ou
know that's not appropriate.” (Defense counsel continued asking the
same question after an objection by the State had twice been sustained
by the trial court.)(5) “You know that's inappropriate, please, sir.”
(Defense counsel made a statement in front of the jury in response to
a sustained objection, then continued and finished the statement over
an additional sustained objection.)(6) “Let's not make any gratuitous
remarks.” (Defense counsel made a statement about not knowing a
witness before the trial, during the State's redirect examination of
that witness.)(7) “That's not a proper question for the jury.
Specifically prohibited by the rules of evidence.” (Defense counsel
asked an agent with the U.S. Army Criminal Investigations Division
whether she had noticed anything about interviewees being untruthful
when they made statements to her.)(8) “Don't do that again.” (The
State objected, after defense counsel used a third redirect
examination to ask a witness the same questions and make the same
points that had been made on the previous redirects.)(9) “So that's a
mischaracter-misstatement․ Do you acknowledge that?” (Defense
counsel asked a defense witness if she had been threatened with
prosecution in the case, suggesting that it was the trial court who
had done so.)
Defendant's brief refers to the Fourteenth Amendment as grounds for
finding this evidence to have been inadmissible, she offers no
argument to support the constitutional grounds. We therefore
consider only her evidentiary claims, under an abuse of discretion
standard. See N.C. R.App. P. 28(b)(6).
Judges BRYANT and STEPHENS concur.