Opinion
No. COA10-1363
Filed 17 May 2011 This case not for publication
Appeal by Defendant from judgments entered 6 April 2010 by Judge Clifton W. Everett, Jr. in Pitt County Superior Court. Heard in the Court of Appeals 13 April 2011.
Attorney General Roy Cooper, by Assistant Attorney General Mary Carla Hollis, for the State. Geoffrey W. Hosford for Defendant-appellant.
Pitt County Nos. 05 CRS 53713, 05 CRS 5889
Vonzeil Adams ("Defendant") appeals her convictions of one count of voluntary manslaughter, three counts of discharging a firearm into occupied property, and one count of assault with a deadly weapon. After careful review, we find no error.
I. Factual and Procedural History
A Pitt County Grand Jury indicted Defendant for first-degree murder, three counts of discharging a firearm into occupied property, and fourteen counts of assault with a deadly weapon against fourteen separate victims. After a jury trial, the jury was unable to reach a unanimous verdict. The trial court declared a mistrial. This appeal concerns Defendant's second trial, at which she was convicted by a jury of multiple offenses.
Defendant entered a not guilty plea as to all charges and filed several pre-trial motions in limine. Defendant moved to dismiss the criminal indictments. She also moved to exclude prospective ballistics testimony by Agent Beth Starosta-Desmond of the North Carolina State Bureau of Investigation ("SBI"). The trial court denied both of Defendant's motions. Agent Starosta-Desmond later testified over Defendant's objection.
This matter came on for trial on 22 March 2010. The State's evidence tended to show the following. During the afternoon of 19 April 2005, Loretta Strong and several of her female cousins and friends (collectively, the "Haddock girls") were socializing in a vacant lot across the street from the home of Strong's grandmother, Lossie Haddock. Defendant drove by the lot with a group of her girlfriends. A verbal altercation arose between the two groups of women. Defendant was angry with the Haddock girls because Defendant's sister had complained to Defendant that the Haddock girls had assaulted the sister in the presence of Defendant's children. During the exchange, Defendant said she would return and that she had "something" for the Haddock girls.
Later that afternoon, some of the Haddock girls drove by Defendant's house where another verbal altercation occurred. The Haddock girls returned to and congregated on Lossie Haddock's porch.
Around 6:00 p.m. or 7:00 p.m., Defendant traveled to Lossie Haddock's house in a reddish Chevrolet Caprice driven by her boyfriend, Jemaul Green. Defendant's sister and several girlfriends were in the car as well. A car full of Defendant's girlfriends followed shortly behind. Jemaul parked the car across from Lossie Haddock's house. Defendant exited the vehicle and walked toward the house, exchanging words with the women on the porch. The other women exited the vehicle, but stayed behind Defendant. Strong stepped off the porch and began to approach Defendant, but stopped before she reached the street.
Defendant stopped in the middle of the road. She then exclaimed that someone should get a firearm and shoot the Haddock girls. At trial, witnesses testified that they heard her say various things to this effect: "shoot[,] shoot. Get the gun"; "get the gun and shoot"; "F-it, get the gun"; "shoot them bitches"; and "shoot that bitch." Jemaul exited the vehicle and fired a gun into the air. Jemaul then pointed the gun in the direction of Lossie Haddock's house and fired several shots. Jasmine Cox, who was on the porch, began running into the house after she saw Jemaul point the gun in the air. She was the first person to get into the house, and testified that, after she got in, she heard more gunfire following the first shots.
Ten-year-old Christopher Foggs, who had been playing in the area, was found face down next to the Haddock house. When he was turned over, a gunshot wound to his chest was discovered. He died from the wound at the hospital later that evening. At trial, a forensic pathologist testified that a bullet projectile entered Foggs' chest and exited through his back. The bullet projectile was not recovered. The record indicates no one else was shot.
Four bullet holes were discovered in the exterior of the Haddock house. An additional bullet hole was discovered in a vehicle parked in front of the house. Bullet fragments were discovered near the vehicle, in the eave of the house, on the right side of the house, on the porch, and near the walkway leading to the house. Eight spent nine-millimeter shell casings were found near where the Caprice was parked during the shooting. Law enforcement searched the Caprice, but did not find a firearm.
Agent Starosta-Desmond testified the spent shell casings were consistent with having been fired from the same Hi-Point nine-millimeter handgun. She also testified that the bullet fragments found in the eave of the house and the one found by the walkway were fired from a nine-millimeter Hi-Point, but that the bullets were too badly damaged to determine if they were fired from the same weapon. Because the gun was never discovered, she could not offer any testimony concerning a potential match between the bullet fragments and a particular firearm.
Defendant moved to dismiss all charges for lack of evidentiary support at the close of the State's evidence. That motion was denied.
Defendant offered evidence in her defense. Two codefendants, Tashua Hardy and Ebony Green, testified at trial. They stated Defendant did not direct Jemaul to shoot. Tashua testified that no one knew Jemaul had a gun, that no one told him to take a gun, and that they did not plan to shoot anyone. She also testified Jemaul was the only person shooting that day.
When called to testify, Jemaul invoked his Fifth Amendment right against self-incrimination. The trial court admitted his testimony from the earlier trial without objection from the State. At the previous trial, Jemaul testified that, on the day of the shooting, Defendant called him repeatedly, told him she was upset, and informed him he needed to come to her house. At the time, Jemaul suspected Defendant was carrying his child. Jemaul explained that he took his gun, a nine-millimeter, for his own safety.
Jemaul also testified that Defendant knew the gun was in the car before the shooting occurred and that he heard Defendant and another girl say, "[S]hoot that bitch," referring to Strong. However, he explained that Defendant's statement was not the reason he fired his weapon. Rather, Jemaul testified that he did so in response to what he thought was gunfire. According to Jemaul, he saw a man lurking in the yard with a gun, and the two exchanged fire. He also testified that, after he fired at the man, Defendant grabbed the gun and fired two or three times at the Haddock house.
In a separate trial, Jemaul was convicted of second-degree murder, three counts of discharging a weapon into occupied property, and six counts of assault with a deadly weapon.
Defendant admitted being angry with and wanting to fight the Haddock girls. She denied stating that she "had something for" the girls during the first encounter. However, she admitted to testifying during her first trial that she had made such a statement. Defendant denied that she asked Jemaul to do anything about the Haddock girls and testified that she did not know he had the gun with him. She testified she was so focused on Strong that she did not hear the gunfire at first. Defendant denied that she or anybody else told Jemaul to shoot.
At the close of all evidence, Defendant again moved to dismiss all charges. The trial court dismissed one charge of assault with a deadly weapon and denied the motion as to all remaining charges. The jury found Defendant guilty, under an aiding-and-abetting theory, of one count of voluntary manslaughter, three counts of discharging a firearm into occupied property, and one count of assault with a deadly weapon. The trial court consolidated two of the discharging a firearm into occupied property convictions and sentenced Defendant to consecutive terms of 64 months to 86 months in prison for voluntary manslaughter, 24 months to 38 months in prison for one count of discharging a firearm into occupied property, 24 months to 38 months in prison for the two consolidated discharging a firearm into occupied property convictions, and 150 days in prison for assault with a deadly weapon. Defendant gave timely notice of appeal.
II. Jurisdiction
We have jurisdiction over Defendant's appeal of right. See N.C. Gen. Stat. § 15A-1444(a) (2009) ("A defendant who has entered a plea of not guilty to a criminal charge, and who has been found guilty of a crime, is entitled to appeal as a matter of right when final judgment has been entered."); N.C. Gen. Stat. § 7A-27(b) (2009) (stating appeal shall be to this Court).
III. Analysis
A. Defendant's Motions to Dismiss
Defendant argues the trial court erred in failing to grant her motions to dismiss all charges at the close of the State's evidence and at the close of all evidence. We disagree.
When a trial court is presented with a motion to dismiss, it must determine whether the State has presented substantial evidence of each element of the crime charged and of the defendant being the perpetrator of the offense. State v. Olson, 330 N.C. 557, 564, 411 S.E.2d 592, 595 (1992).
What constitutes substantial evidence is a question of law for the court. To be "substantial," evidence must be existing and real, not just "seeming or imaginary." Substantial evidence is relevant evidence that a reasonable mind might accept as adequate to support a conclusion. In ruling on a motion to dismiss, the trial court must examine the evidence in the light most favorable to the State, and the State is entitled to every reasonable inference and intendment that can be drawn therefrom. Any contradictions or discrepancies in the evidence are for the jury to resolve and do not warrant dismissal.
Id. (citations omitted). We review the trial court's decision de novo. State v. Hart, 179 N.C. App. 30, 39, 633 S.E.2d 102, 108 (2006), rev'd in part on other grounds, 361 N.C. 309, 644 S.E.2d 201 (2007).
Defendant was convicted of all crimes under an aiding and abetting theory.
A person is guilty of a crime by aiding and abetting if (i) the crime was committed by some other person; (ii) the defendant knowingly advised, instigated, encouraged, procured, or aided the other person to commit that crime; and (iii) the defendant's actions or statements caused or contributed to the commission of the crime by that other person.
State v. Goode, 350 N.C. 247, 260, 512 S.E.2d 414, 422 (1999). We have previously explained the following factors bear on whether a defendant aided and abetted in a crime: (1) the relationship between the defendant and the "actual perpetrator"; (2) the defendant's motive to assist in the crime; (3) the defendant's presence at the scene and time of the crime; and (4) the defendant's conduct before and after the crime. State v. Cassell, 24 N.C. App. 717, 721-22, 212 S.E.2d 208, 211 (1975). As a general rule, the defendant's presence coupled with a subjective desire that the crime occur is insufficient to make her guilty of the crime. State v. Allen, 127 N.C. App. 182, 185, 488 S.E.2d 294, 296 (1997). However, presence alone may be sufficient when the defendant "is a friend of the perpetrator and the perpetrator knows the friend's presence will be regarded as encouragement and protection." Id.
Defendant argues that, while there is sufficient evidence to establish Defendant instructed someone to fire a weapon at the Haddock girls, the State was required, and failed, to establish Jemaul relied on Defendant's statements. She contends Jemaul did not rely on her statements because he did not hear them. Defendant points out that Ebony, who was sitting behind Jemaul in the Caprice, did not hear Defendant's statements. Furthermore, she explains, Jemaul testified in a prior trial that he did not act on anyone else's statement.
However, Jemaul also testified that he heard Defendant say, "[S]hoot that bitch." Tracy Taft, Christopher Foggs' cousin, testified that Jemaul began shooting after Defendant said "shoot that bitch," and that when Defendant made this statement, she was facing in Jemaul's direction. Taft observed the incident from the porch of the house located next door to Lossie Haddock's house. The jury could have inferred from this evidence that Jemaul reacted in response to these statements. Defendant and Jemaul had a preexisting relationship, and Jemaul testified that Defendant knew he had a gun. There was testimony that Defendant exclaimed she had "something for" the Haddock girls before the shooting occurred. While there was conflicting testimony on this point, resolving the conflict is the province of the jury — not this Court. We conclude the State presented substantial evidence that Defendant's conduct contributed to the commission of the shooting crimes.
Defendant next argues that, even if the State satisfied the standard for aiding and abetting, Jemaul's use of a semiautomatic pistol during the shooting prevented him from committing more than one count of discharging a firearm into occupied property. The elements of the crime are "(1) willfully and wantonly discharging (2) a firearm (3) into property (4) while it is occupied." State v. Rambert, 341 N.C. 173, 175, 459 S.E.2d 510, 512 (1995). Each count of the crime must involve a distinct act and the gunman must employ his thought process each time he fires the weapon. See State v. Nobles, 350 N.C. 483, 505, 515 S.E.2d 885, 899 (1999).
In support of her argument, Defendant cites State v. Maddox, in which we concluded the evidence supported only one charge of assault with a deadly weapon with intent to kill, rather than five, because the defendant fired five shots from a semi-automatic pistol and all five shots struck a tree in very close proximity. 159 N.C. App. 127, 133-34, 583 S.E.2d 601, 605-06 (2003). We explained that "the shots were fired at a single place in rapid succession and were not separate events requiring defendant to employ his thought processes each time he fired the gun." Id. at 134, 583 S.E.2d at 605.
We do not read Maddox as establishing a bright line rule that the use of a semi-automatic weapon precludes multiple counts, and we believe the instant case is distinguishable. The bullet holes were found spread across the Haddock house, and one hole was found in a vehicle located in front of the house. When the evidence is viewed in the light most favorable to the State, it suggests that at least three of the shots that struck the house constituted separate, distinct acts requiring Jemaul to shift his aim and employ his thought process at least three times.
Defendant contends the State also failed to establish the house was actually occupied by Jasmine Cox during the shooting. This argument fails, however, because Jasmine testified that, after she made it into the house, she heard more gunfire. Taken in the light most favorable to the State, this suggests Jasmine was in the house when Jemaul discharged his weapon.
Defendant also argues the State failed to present substantial evidence Jemaul shot into the house when Jasmine was in the house. We rejected a similar argument in State v. Canady, where we concluded that "discharging a firearm `into' an enclosure does not have to mean `through' the wall of the enclosure." 191 N.C. App. 680, 687, 664 S.E.2d 380, 384 (2008). We hold this principle is equally applicable to these facts. Defendant's argument is without merit.
B. Expert Testimony
Finally, Defendant argues the trial court erred in failing to exclude Agent Starosta-Desmond's testimony because her methods were not sufficiently reliable. We disagree.
"If scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion." N.C. R. Evid. 702(a). When determining whether a method of proof is sufficiently reliable, the trial court "`may look to testimony by an expert specifically relating to the reliability, may take judicial notice, or may use a combination of the two.'" Howerton v. Arai Helmet, Ltd., 358 N.C. 440, 459, 597 S.E.2d 674, 687 (2003) (quoting State v. Goode, 341 N.C. 513, 530, 461 S.E.2d 631, 641 (1995)). A trial court should look to precedent for guidance if other courts have addressed the method of proof in question. Id. "[W]hen specific precedent justifies recognition of an established scientific theory or technique advanced by an expert, the trial court should favor its admissibility, provided the other requirements of admissibility are likewise satisfied." Id. When the trial court lacks sufficient precedential guidance it should
generally focus on the following nonexclusive "indices of reliability" to determine whether the expert's proffered scientific or technical method of proof is sufficiently reliable: "the expert's use of established techniques, the expert's professional background in the field, the use of visual aids before the jury so that the jury is not asked `to sacrifice its independence by accepting [the] scientific hypotheses on faith,' and independent research conducted by the expert."
Id. at 460, 597 S.E.2d at 687 (alteration in original) (quoting State v. Pennington, 327 N.C. 89, 98, 393 S.E.2d 847, 852-53 (1990)). On appeal, the trial court's decision is reviewed for abuse of discretion. Id. at 458, 597 S.E.2d at 686.
At trial, Agent Starosta-Desmond testified that she was a firearms examiner at the SBI crime laboratory and that she had been trained per the guidelines set by the Association of Firearms and Toolmark Examiners ("AFTE"). She noted that she had testified in court numerous times concerning the same type of analysis she performed in the present case. She was tendered and accepted as an expert in the field of firearm examinations.
Agent Starosta-Desmond testified that, under the AFTE approach for identifying ammunition components, an examiner first looks for class characteristics, such as rifling and caliber, that are unique to each gun manufacturer. The examiner will then look for characteristics that are unique to each firearm. If multiple bullets or bullet fragments exhibit certain common characteristics, it indicates they were fired from the same weapon.
Concerning the ballistic evidence in this case, Agent Starosta-Desmond stated the shell casings found near where the Caprice was located were all fired from the same semi-automatic gun and that they were consistent with casings fired from guns manufactured by Hi-Point. She also testified that only Hi-Point manufactured a gun with the type of rifling found on two bullet fragments. She could not provide any more insight regarding those fragments, and the remaining fragments were too damaged to be analyzed. She admitted on cross-examination that the two bullets she was able to analyze were damaged to the point that her measurements could have been skewed. She also conceded she did not take photographs of the evidence for use in court because that was not the SBI's policy.
At the pretrial hearing, Defendant offered testimony from Dr. Adina Schwartz in an effort to establish Agent Starosta-Desmond's proffered testimony hinged on unreliable scientific methods. Dr. Schwartz explained that, under AFTE guidelines, an examiner could identify a piece of ballistic evidence when the degree of similarity for two ammunition components exceeds the amount of similarity found in the "best known non-match." She explained there is not a universal standard for finding the best known non-match, and as a result, this approach can be highly subjective. Dr. Schwartz testified that two reports by the National Research Council, Ballistics Imaging and Strengthening Forensic Science in the United States: a Path Forward, questioned underlying assumptions of the AFTE standard.
Comm. to Assess the Feasibility, Accuracy and Technical Capability of a Nat'l Ballistics Database, Nat'l Research Council, Ballistics Imaging (Daniel L. Cork, John E. Rolph, Eugene S. Meieran, Carol V. Petrie eds., 2008); Comm. on Identifying the Needs of the Forensic Scis. Cmty., Nat'l Research Council, Strengthening Forensic Science in the United States: A Path Forward (2009).
The trial court denied Defendant's motion to exclude the testimony. In doing so, it noted Agent Starosta-Desmond's extensive experience. The court also found that she had previously testified as an expert, that her notes were reviewed by her supervisors, and that she followed SBI procedures and AFTE guidelines. We conclude these findings are binding as they are supported by competent evidence within the meaning of the North Carolina Rules of Evidence — namely, Agent Starosta-Desmond's testimony. See State v. Brewington, 352 N.C. 489, 498, 532 S.E.2d 496, 501 (2000) (stating that a trial court's findings are binding on appeal if supported by competent evidence). The court also explained that, while various firearm and toolmark guidelines recommended or suggested other methods, these recommendations and suggestions were not mandatory.
North Carolina precedent has upheld the admission of testimony based on similar ballistic techniques. See, e.g., State v. Gainey, 355 N.C. 73, 88-89, 558 S.E.2d 463, 473-74 (2002) (holding that the trial court did not err in admitting testimony of SBI agent regarding rifling characteristics of particular bullets based on his experience and the fact that he had tested the bullets upon which he based his opinion); State v. Felton, 330 N.C. 619, 638, 412 S.E.2d 344, 356 (1992) (upholding admissibility of SBI agent's testimony regarding rifling characteristics of particular bullets); State v. Anderson, 175 N.C. App. 444, 449, 624 S.E.2d 393, 398 (2006) (rejecting a reliability challenge to similar testimony). And while the federal courts employ a different standard in evaluating the admissibility of expert testimony, we note that federal decisions overwhelmingly accept toolmark evidence as reliable. See, e.g., United States v. Willock, 696 F. Supp. 2d 536, 563 (D. Md. 2010) (surveying federal decisions and concluding "federal courts, almost without exception, have admitted toolmark evidence, often without applying the Daubert factors"). We conclude that precedent, in conjunction with the trial court's factual findings, demonstrate the trial court did not abuse its discretion in allowing agent Starosta-Desmond to testify.
No error.
Judges STEELMAN and STEPHENS concur.
Report per Rule 30(e).