Opinion
No. COA02-127
Filed 4 February 2003 This case not for publication
Appeal by defendant from judgments entered 2 August 2001 by Judge Benjamin G. Alford in New Hanover County Superior Court. Heard in the Court of Appeals 16 October 2002.
Attorney General Roy A. Cooper, III, by Special Deputy Attorney General Ralf F. Haskell, for the State. William D. Spence for defendant-appellant.
New Hanover County Nos. 99 CRS 008202, 00 CRS 009929.
Jonathan D. Brown ("defendant") appeals from convictions of second degree murder and robbery with a dangerous weapon and respective sentences. For the reasons stated herein, we conclude defendant is entitled to a new sentencing hearing.
The facts are briefly summarized as follows: The evidence tended to show that on 3 April 1999 at approximately 1:15 a.m., a highway patrol trooper, Richard L. Jones ("Trooper Jones"), stopped a Chevrolet Lumina after observing the vehicle traveling east in the westbound lane in the middle of the intersection of Old Maplehurst and Curtis Roads in Onslow County, North Carolina. At the time of the stop, defendant was driving the Lumina while Tiria Grady ("Grady") was sitting in the passenger's seat. As Trooper Jones approached the Lumina, he noticed that it had an expired thirty-day license tag and a mattress in the back seat. Trooper Jones asked defendant for his driver's license and registration but defendant produced neither. When Trooper Jones asked defendant to step out of the car, defendant put the car in drive and drove off. A high-speed chase ensued and ended when defendant drove into a concrete road marker post and a chain link fence. Thereafter, defendant and Grady were placed under arrest and taken to the Onslow County Jail.
It was later determined that the Lumina that had been driven by defendant was owned by Joseph Tyrone Williams ("Williams"). Further, while searching Grady at the jail, a jail matron found a few of Williams' credit cards and Williams' driver's license. On 5 April 1999, Williams' body was discovered in the back seat of the Lumina. Williams' body had been stuffed inside a mattress along with a piece of carpet and a mattress cover. Dr. Karen Chancellor ("Dr. Chancellor"), the pathologist who performed an autopsy on Williams' body, testified that in her opinion Williams died as a result of a gunshot wound to his head.
On 5 April 1999, SBI Agent Pat Daly ("Agent Daly") conducted a crime scene search of Grady's residence. Agent Daly cut a piece of the carpet located in the upstairs bedroom that tested positive for blood. Agent Daly also found a pair of boots with suspected blood on them and a smear pattern of suspected blood leading towards the back door. Additionally, a .32 caliber Smith and Wesson revolver and a box of bullets (seventeen live rounds and two spent shell casings) were found in the microwave oven in the kitchen. Tire impressions were also discovered on the lawn leading up to the back door of the apartment.
Testing at the State Bureau of Investigation ("SBI") Lab in Raleigh revealed the following:
(1) the bullet recovered from Williams' head was fired from the .32 caliber Smith and Wesson revolver found in the microwave in the kitchen of Grady's apartment;
(2) a comparison of the carpet fibers from the carpet in Grady's upstairs bedroom and the carpet found in the mattress with Williams' body revealed that the fibers were consistent;
(3) the DNA banding pattern obtained from the boots and carpet in Grady's apartment matched the DNA profile obtained from the victim;
(4) the predominant profile obtained from the cutting from defendant's jeans was a match to the DNA profile of the victim.
On 2 April 1999, between 11:30 a.m. and 12:00 p.m., Wilhemina Hill ("Hill") went to Grady's apartment to pick up her grandchildren. Both Grady and defendant were at the apartment when Hill arrived. While Hill was at the apartment, defendant took a small handgun out of his pants and laid it on the television stand in the living room. Hill testified that the gun she saw defendant remove from his pants looked similar to State's Exhibit 12, the gun that was used to shoot Williams. When Hill left Grady's apartment around 3:00 p.m., defendant was still there.
Andrew Hassell ("Hassell"), a friend and cousin of Williams, testified that Williams left his apartment around 2:30 p.m. on 2 April 1999 and told him that he expected to return later that afternoon. At approximately 3:30 or 4:00 p.m., Hassell observed Williams' car parked in front of Grady's apartment while riding to his brother's house. Hassell stopped and went to Grady's apartment; however, before Hassell reached Grady's door, Grady came out of her apartment and approached Hassell. Hassell asked Grady if she had seen Williams and then left. Approximately one and a half to two hours later, Hassell again rode past Grady's apartment and noticed that Williams' car had been moved over two parking spaces. Hassell also observed defendant sitting on a crate outside of Grady's apartment. As Hassell approached Grady's apartment, Grady met him outside and Hassell again inquired about Williams and then left. Hassell did not see Williams either time that he stopped by Grady's apartment.
A jury found defendant guilty of robbery with a dangerous weapon and second degree murder. Judgments were entered upon the verdicts and defendant was sentenced to the following consecutive sentences: 237-294 months imprisonment for the second degree murder conviction and 95-123 months imprisonment for the robbery with a dangerous weapon conviction. Defendant appeals.
I.
Defendant initially contends the trial court erred in granting the State's motion in limine to prevent defendant from cross-examining several of the State's witnesses about the murder of Carlos McCoy ("McCoy"). McCoy, a former boyfriend of Grady and father of Grady's children, was murdered on 21 January 1998. At the time of defendant's trial, there was an ongoing investigation of the McCoy murder. Both McCoy and Williams died as a result of close-range gunshot wounds and both had been romantically involved with Grady. Defendant argues the trial court's refusal to allow him to cross-examine the State's witnesses about the McCoy murder denied him the basic right to present evidence to defend himself against the State's serious accusations. Defendant asserts that the McCoy murder was relevant to the instant case because the connection between Grady and a second dead boyfriend would clearly raise an inference that Grady murdered Williams and that defendant was not the guilty party. Therefore, defendant argues that he should have been permitted to cross-examine the State's witnesses about the McCoy murder under N.C. Gen. Stat. § 8C-1, Rule 404(b) because this evidence would tend to prove the identity of the perpetrator of the murder of Williams to be Grady and not defendant.
Pursuant to N.C. Gen. Stat. § 8C-1, Rule 404(b), evidence of other crimes, wrongs, or acts may be admissible to prove the identity of the perpetrator. Our Supreme Court has concluded that Rule 404(b) permits a defendant to "introduce evidence of very similar crimes of another, when such evidence tends to show that the other person committed the crime for which the defendant is on trial." State v. Cotton, 318 N.C. 663, 666, 351 S.E.2d 277, 279 (1987). The following test has been provided for determining whether such evidence is admissible: "[A]dmission of the evidence must do more than create mere conjecture of another's guilt in order to be relevant. Such evidence must (1) point directly to the guilt of some specific person, and (2) be inconsistent with the defendant's guilt." State v. McNeill, 326 N.C. 712, 721, 392 S.E.2d 78, 83 (1990). In the instant case, the evidence tending to show that Grady had been romantically involved with both McCoy and Williams and that both men died over a year apart in East Wilmington from gunshot wounds does not point directly to the guilt of Grady nor is this evidence inconsistent with defendant's guilt. At most, this evidence raises a mere conjecture that Grady may have been involved in both murders. Therefore, the trial court properly granted the State's motion in limine to prevent defendant from cross-examining the State's witnesses about the McCoy murder.
II.
Defendant next assigns error to the trial court's denial of his motion to suppress all evidence obtained as a result of the traffic stop. Defendant argues that Trooper Jones did not have sufficient grounds to justify stopping defendant and therefore, the fruits of the stop were inadmissible.
"[O]ur courts have established that police officers may be warranted in making investigatory stops and detaining the occupants of motor vehicles when the facts would justify an `articulable and reasonable suspicion' that the occupants of that vehicle may be engaged in or connected with some form of criminal activity." State v. Covington, 138 N.C. App. 688, 691, 532 S.E.2d 221, 223, cert. denied, 352 N.C. 678, 545 S.E.2d 432 (2000). In the instant case, Trooper Jones testified during the voir dire hearing that the reason he stopped defendant was because he had observed defendant traveling east in the westbound lane, which is a violation of N.C. Gen. Stat. § 20-146 (2001). Therefore, Trooper Jones was justified in stopping defendant, requesting defendant's driver's license and registration, and ordering defendant to exit the vehicle. See State v. McClendon, 350 N.C. 630, 517 S.E.2d 128 (1999) (concluding officer justified in stopping defendant's vehicle based upon defendant's exceeding posted speed limit in violation of N.C. Gen. Stat. § 20-141 and following too closely in violation of N.C. Gen. Stat. § 20-152); State v. Young, 148 N.C. App. 462, 559 S.E.2d 814, appeal dismissed and disc. review denied, 355 N.C. 500, 564 S.E.2d 233 (2002) (holding officer was justified in stopping defendant based upon his driving the wrong way on a one-way street in violation of N.C. Gen. Stat. § 20-165.1). Accordingly, the trial court was proper in denying defendant's motion to suppress the evidence obtained as a result of Trooper Jones' stop.
III.
Defendant next contends the trial court erred in allowing SBI lab agent, Brenda Bissette ("Agent Bissette"), to give her opinion as to the results of the DNA testing on defendant's jeans. Agent Bissette testified that the results revealed the following:
The DNA profile obtained from the cutting from the jeans of Jonathan Brown is indicative of originating from more than one donor. The predominant DNA profile present in the mixture is a match to the DNA profile of the victim. And additionally weak bands were also present in this mixture.
Agent Bissette further testified that the additional minor profile found was consistent with defendant's profile. Agent Bissette explained that when testing an item of clothing, it is not unusual to "find weaker profiles, not complete profiles, but additional bands that could be and are consistent with those of the person that is reported to have worn the item of clothing." Defendant asserts that since Agent Bissette found that the DNA testing of the swatch taken from defendant's jeans originated from more than one donor, the evidence tended to mislead the jury, its probative value was outweighed by its prejudicial effect, and the "mixture" evidence was scientifically unreliable. We disagree.
Our Supreme Court has held that "evidence of DNA profile testing is generally admissible . . .," but noted that the admissibility of DNA test results remains subject to attack based on irrelevance, prejudice to the defendant, or unreliability. State v. Pennington, 327 N.C. 89, 101, 393 S.E.2d 847, 854 (1990). See also, State v. McKenzie, 122 N.C. App. 37, 468 S.E.2d 817 (1996). The Pennington Court focused on the following indices of reliability in determining that the DNA profile testing results had been properly admitted: "[T]he 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." Pennington, 327 N.C. at 98, 393 S.E.2d at 853 (quoting State v. Bullard, 312 N.C. 129, 150-51, 322 S.E.2d 370, 382 (1984)). Evidence is relevant if it has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." N.C. Gen. Stat. § 8C-1, Rule 401 (2001). Further, the admissibility of expert testimony is specifically governed by Rule 702 which states, in pertinent part, "[i]f 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. Gen. Stat. § 8C-1, Rule 702(a) (2001).
In the instant case, Agent Bissette explained in great detail the process of DNA profile testing. Agent Bissette also described the DNA profile testing's established scientific reliability; her professional background in DNA analysis, including having qualified as an expert in DNA analysis in at least forty cases; the statistical mechanism employed; the statistical significance of the matches found; and the basis of her opinion. Further, Agent Bissette utilized visual aids to assist the jury. With regard to the mixture of DNA found on the swatch from defendant's jeans, Agent Bissette testified that a statistical value can be assigned to the predominant profile and that this comports with the generally accepted scientific standards of DNA profiling. According to Agent Bissette, the predominant DNA profile that was in the mixture on defendant's jeans was
sixty point six billion times more likely to be observed if it came from Joseph Williams than if it came from another unrelated individual in the North Carolina Caucasian population.
It is one point six nine billion times more likely to be observed if it came from Joseph Williams than if it came from another unrelated individual in the North Carolina black population. And it is seven point zero four billion times more likely to be observed if it came from Joseph Williams than if it came from another unrelated individual on the North Carolina Lumby Indian population.
In the instant case, the DNA evidence was reliable, highly probative of the identity of the victim's killer, and did not unfairly prejudice defendant, confuse the issues, or mislead the jury. Therefore, we conclude the trial court properly allowed Agent Bissette to give her opinion as to the results of the DNA testing on defendant's jeans.
IV.
Defendant next contends the trial court erred in denying his motion to dismiss the charges of second degree murder and robbery with a dangerous weapon based on the insufficiency of the evidence. In ruling upon a motion to dismiss, the court must determine whether the State has produced substantial evidence as to each element of the offense, and that the defendant was the perpetrator. State v. Brewington and State v. Norris, 80 N.C. App. 42, 53, 341 S.E.2d 82, 89 (1986). The evidence must be viewed in the light most favorable to the State, giving the State the benefit of every reasonable inference to be drawn therefrom. State v. McCullers, 341 N.C. 19, 28-29, 460 S.E.2d 163, 168 (1995). "Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." State v. Franklin, 327 N.C. 162, 171, 393 S.E.2d 781, 787 (1990).
"Second-degree murder is an unlawful killing with malice, but without premeditation and deliberation." State v. Brewer, 328 N.C. 515, 522, 402 S.E.2d 380, 385 (1991). The essential elements of second degree murder include: "1. defendant killed the victim; 2. defendant acted intentionally and with malice; and 3. defendant's act was a proximate cause of the victim's death." State v. Bostic, 121 N.C. App. 90, 98, 465 S.E.2d 20, 24 (1995). "[M]alice may be inferred from the intentional use of a deadly weapon." State v. Camacho, 337 N.C. 224, 233, 446 S.E.2d 8, 13 (1994).
We conclude that when viewing the evidence in the light most favorable to the State, there is substantial evidence of each element of second degree murder. Dr. Chancellor testified that the end of the gun barrel was held less than an inch from Williams' forehead when it was fired and that Williams died as a result of the gunshot wound to his forehead. Further, the evidence places defendant at the crime scene where Williams was killed during the time frame of when the homicide occurred. Defendant was seen in Grady's apartment with a gun, similar to the murder weapon, prior to the time the homicide occurred. In addition, Williams' blood was found on the jeans that defendant was wearing. Within several hours of the murder, defendant and Grady were driving the victim's car in another city with the mattress, which contained the victim's body, in the rear seat. After being stopped for a minor traffic violation by a highway patrol trooper, defendant and Grady fled and a high speed chase ensued. The victim's credit cards and driver's license were found in the waistband of Grady's pants. Therefore, there was substantial evidence that defendant, acting in concert with Grady, was the perpetrator of the homicide. There is also an inference that the killing was intentional and committed with malice. Finally, there was evidence tending to show that the victim died as a result of a gunshot wound to his forehead. Therefore, there was substantial evidence of each essential element of second degree murder. Accordingly, the trial court properly denied defendant's motion to dismiss the charge of second degree murder.
Now turning to the trial court's denial of defendant's motion to dismiss the armed robbery charge. Defendant contends the trial court erred in submitting the charge of robbery with a dangerous weapon to the jury because the State presented insufficient evidence to support this charge. Under N.C. Gen. Stat. § 14-87(a) (2001), "[t]he elements of robbery with a dangerous weapon are (1) the unlawful taking or attempted taking of personal property from another; (2) the possession, use or threatened use of firearms or other dangerous weapon, implement or means; and (3) danger or threat to the life of the victim." State v. Jarrett, 137 N.C. App. 256, 262, 527 S.E.2d 693, 697, disc. review denied, 352 N.C. 152, 544 S.E.2d 233 (2000). To be found guilty of robbery with a dangerous weapon, the defendant's threatened use or use of a dangerous weapon must precede or be concomitant with the taking, or be so joined by time and circumstances with the taking as to be part of one continuous transaction. State v. Hope, 317 N.C. 302, 306, 345 S.E.2d 361, 364 (1986).
In the instant case, when the evidence is viewed in the light most favorable to the State, there is substantial evidence of the essential elements of robbery with a dangerous weapon. From the evidence, a reasonable inference could be drawn that defendant, acting in concert with Grady, took the victim's automobile and credit cards by the use of a firearm, whereby the victim's life was threatened or endangered. Additionally, it could reasonably be inferred from the evidence that the use of the firearm was so joined in time and circumstances with the taking as to be part of one continuous transaction. Therefore, defendant's motion to dismiss the armed robbery charge was properly denied.
V.
Defendant additionally assigns error to the trial court's refusal to instruct the jury on common law robbery. Our Supreme Court has held that
where the uncontroverted evidence is positive and unequivocal as to each and every element of armed robbery, and there is no evidence supporting defendant's guilt of a lesser included offense, the trial court does not err by failing to instruct the jury on the lesser included offense of common law robbery.
State v. Cummings, 346 N.C. 291, 325, 488 S.E.2d 550, 570 (1997). The distinction between the offenses of robbery with a dangerous weapon and common law robbery is that "the former is accomplished by the use or threatened use of a dangerous weapon whereby the life of a person is endangered or threatened." State v. Peacock, 313 N.C. 554, 562, 330 S.E.2d 190, 195 (1985).
Defendant in the instant case specifically contends that the State failed to present positive and unequivocal evidence that the victim's property was taken by the use or threatened use of a dangerous weapon. Our Supreme Court has stated:
To be found guilty of robbery with a dangerous weapon, the defendant's threatened use or use of a dangerous weapon must precede or be concomitant with the taking, or be so joined by time and circumstances with the taking as to be part of one continuous transaction. Where a continuous transaction occurs, the temporal order of the threat or use of a dangerous weapon and the taking is immaterial.
State v. Olson, 330 N.C. 557, 566, 411 S.E.2d 592, 597 (1992) (citations omitted). In the case sub judice, the uncontroverted evidence is positive and unequivocal as to defendant's use of a dangerous weapon and the taking being part of one continuous transaction. Several hours after Williams had been shot in the head, defendant was driving Williams' car with Williams' body in the back seat. Moreover, while searching Grady at the jail, a jail matron found a few of Williams' credit cards and driver's license. Therefore, the trial court did not err in failing to instruct the jury on common law robbery.
VI.
Defendant next argues that the trial court erred in refusing to instruct the jury on misdemeanor larceny. In support of this contention, defendant asserts that the jury could have found that defendant's property had either been taken prior to the use of a firearm or long after the use of a firearm.
Our Supreme Court has held that misdemeanor larceny is a lesser included offense of armed robbery. State v. White, 322 N.C. 506, 369 S.E.2d 813 (1988).
The test in every case involving the propriety of an instruction on a lesser grade of an offense is not whether the jury could convict defendant of the lesser crime, but whether the State's evidence is positive as to each element of the crime charged and whether there is any conflicting evidence relating to any of these elements. State v. Leroux, 326 N.C. 368, 378, 390 S.E.2d 314, 322 (1990). In this case, the uncontroverted evidence shows that "defendant's use of the gun was so joined by time and circumstances to the taking as to make the use of the gun and the taking parts of one continuous transaction." Olson, 330 N.C. at 567, 411 S.E.2d at 597. Therefore, we conclude the trial court properly denied defendant's request to instruct on misdemeanor larceny.
VII.
Defendant also claims the trial court erred in refusing to instruct the jury on the lesser included offense of involuntary manslaughter. Defendant argues that the jury could have found that the killing was the result of either a culpably negligent act or an unlawful act not constituting a felony or naturally dangerous to another.
"Involuntary manslaughter is the unintentional killing of a human being without . . . malice (1) by some unlawful act not amounting to a felony or naturally dangerous to human life, or (2)by an act or omission constituting culpable negligence." State v. Wrenn, 279 N.C. 676, 687, 185 S.E.2d 129, 136 (1971) (emphasis omitted). As discussed more specifically in Section IV above, the State's evidence tends to show an intentional killing. No evidence was presented from which the jury could have reasonably inferred that there was an accidental or other unintentional discharge of the weapon, or that there was an unlawful act not amounting to a felony or naturally dangerous to human life. Accordingly, the trial court did not err in failing to instruct the jury on involuntary manslaughter.
VIII.
Defendant argues the trial court erred in instructing the jury on the doctrine of acting in concert. Defendant asserts that the State failed to present evidence showing that defendant joined in a purpose to commit murder or robbery with a firearm or that defendant was actually or constructively present when the crimes were committed.
A trial court must instruct the jury on acting in concert when the State presents evidence tending to show that the defendant was present at the scene of the crime and "acted together with another who did acts necessary to constitute the crime pursuant to a common plan or purpose to commit the crime." State v. Robinson, 83 N.C. App. 146, 148, 349 S.E.2d 317, 319 (1986).
We conclude the State's evidence was sufficient for the trial court to instruct the jury on acting in concert. A jury could have reasonably inferred from the evidence that defendant was present at the time the crimes were committed and that he acted together with Grady pursuant to a common plan or purpose in the commission of the murder and armed robbery. When defendant was pulled over by Trooper Jones, he was driving the victim's car with the victim's body in the back seat and Grady sitting in the passenger's seat. Additionally, earlier in the day, defendant was seen with a gun at Grady's apartment, where the murder occurred. Thus, the evidence was sufficient to allow the jury to reasonably infer that defendant was present at the crime scene during the time the offenses were committed and that defendant acted together with Grady pursuant to a common plan or purpose in the commission of the murder and armed robbery. Therefore, the trial court did not err in instructing the jury on the doctrine of acting in concert.
IX.
Defendant next contends the trial court erred in instructing the jury on the doctrine of recent possession in connection with the charge of robbery with a dangerous weapon. We disagree.
The doctrine of recent possession permits an inference that the person in possession of recently stolen property is the thief. State v. Joyner, 301 N.C. 18, 28, 269 S.E.2d 125, 132 (1980). In order for such an inference to arise, the State must show beyond a reasonable doubt:
(1) the property described in the indictment was stolen;
(2) the stolen goods were found in defendant's custody and subject to his control and disposition to the exclusion of others though not necessarily found in defendant's hands or on his person so long as he had the power and intent to control the goods; and
(3) the possession was recently after the larceny, mere possession of stolen property being insufficient to raise a presumption of guilt.
State v. Maines, 301 N.C. 669, 674, 273 S.E.2d 289, 293 (1981) (citations omitted). "The `exclusive' possession required to support an inference or presumption of guilt need not be a sole possession but may be joint." Id. at 675, 273 S.E.2d at 294. For the presumption to arise, "the possession in defendant must be to the exclusion of all persons not party to the crime." Id. Defendant claims the State failed to offer evidence that Williams' property was stolen, or that it was in defendant's possession.
The evidence in the case sub judice showed that shortly after Williams was shot, his car was moved to the back of Grady's apartment so that his body could be placed in the back seat. In addition, several hours later, defendant was found driving Williams' car in another town. Moreover, Grady, who was with defendant in the car, had possession of Williams' driver's license and credit cards. Therefore, the State's evidence gives rise to a reasonable inference that the stolen property was in exclusive possession of defendant and Grady, a party to the crime. Accordingly, the trial court did not err in giving the instruction on the doctrine of recent possession.
X.
Defendant finally contends that the trial court erred in finding as an aggravating factor that "defendant joined with more than one other person in committing the offense and was not charged with committing a conspiracy." "The State bears the burden of proving by a preponderance of the evidence that an aggravating factor exists. . . ." N.C. Gen. Stat. § 15A-1340.16(a) (2001). Defendant cites State v. Noffsinger, 137 N.C. App. 418, 528 S.E.2d 605 (2000), to support his argument. The State concedes that no evidence was presented tending to show that defendant joined with a person other than Grady in committing the homicide and armed robbery. The State was also unable to distinguish the facts in this case on the sentencing issue with Noffsinger. Thus, we conclude that the trial court erred in finding as an aggravating factor that defendant joined with more than one other person in committing the offense and was not charged with committing a conspiracy. Accordingly, defendant is entitled to a new sentencing hearing.
For the reasons stated herein, we find no error in defendant's trial. However, we conclude that the trial court erred in sentencing by finding as an aggravating factor that defendant joined with more than one other person in committing the offense. Therefore, we remand for a new sentencing hearing.
No error in trial; remanded for new sentencing hearing.
Judges WYNN and TIMMONS-GOODSON concur.
Report per Rule 30(e).