Summary
addressing ineffective assistance of counsel claim arising out of defense counsel's failure to include a self-defense expert witness on her witness list
Summary of this case from Richardson v. KornegayOpinion
No. COA09-827
Filed 1 June 2010 This case not for publication
Appeal by Defendant from judgment entered 27 February 2009 by Judge Franklin F. Lanier in Harnett County Superior Court. Heard in the Court of Appeals 19 November 2009.
Attorney General Roy Cooper, by Assistant Attorney General K.D. Sturgis, for the State. M. Alexander Charns, for Defendant.
Harnett County No. 07 CRS 51838-39.
Defendant Mary Delouis McCoy appeals from a judgment entered by the trial court sentencing her to a minimum term of 251 months and a maximum term of 311 months imprisonment in the custody of the North Carolina Department of Correction based upon her convictions for second degree murder and possession of a firearm by a felon. After careful consideration of the record in light of the applicable law, we find no error in the trial court's judgment.
I. Factual Background A. Substantive Facts
At 3:36 a.m. on 1 April 2007, the 911 operator at the Harnett County Sheriff's Office received a call from Defendant. Although Defendant disconnected and called back several times, the operator was able to determine that Defendant had shot her friend, was naked, and had a weapon. About ten minutes later, the first of several deputies with the Harnett County Sheriff's Office arrived at Defendant's mobile home, which was located in Fuquay-Varina, North Carolina.
After arriving at Defendant's residence, the deputies made numerous attempts to convince her to come out of her mobile home. Defendant finally emerged wearing a nightgown and holding a .22 caliber revolver. The firearm seized from Defendant at that time had a light trigger pull that was "just above a hair trigger." At the time that she was taken into custody, Defendant smelled of alcohol and was incoherent. Although the detective in charge of the investigation tried to speak with Defendant when he arrived, she declined to provide any information. Twenty or thirty minutes later, however, Defendant stated that "he hit me, made me do things I didn't want to do, and I shot him. I killed him." Since she claimed to have been assaulted and raped, the investigating officers took Defendant to Betsy Johnson Memorial Hospital for examination and the collection of a rape kit.
At the time of the shooting, Defendant was fifty-six years old, five feet ten inches tall, and weighed about two hundred sixty-eight pounds. Defendant had been fully disabled since 1999. By 2005, Defendant had 20/60 vision in her left eye due to glaucoma and was totally blind in her right eye. In addition, Defendant suffered from a painful skin condition called hidrandenitis suppurativa, in which boils and abscesses formed on her body. As a result of this condition, Defendant regularly slept in the nude to avoid irritation stemming from contact between her clothing and her skin. Defendant had previously had extensive skin grafts and surgery in her vaginal area and on her buttocks because of this condition. Defendant's hidrandenitis suppurativa made sexual intercourse painful in the absence of lubrication and other preparations.
At the hospital, one examining nurse did not notice any signs of injury about Defendant's face, except that she appeared to suffer from some sort of skin condition. Another nurse thought that Defendant had an abrasion on her chin and might have had a bruise on one of her cheeks, but indicated that Defendant's dark skin color made it difficult to be certain. Upon her arrival at the hospital, Defendant "appeared very shocked, distraught, [and was] trembling. . . ." Defendant initially declined to answer any questions about what had happened, about any medications she had taken, or about her medical history. Subsequently, however, Defendant said that her former boyfriend "came over to my house and I told him to leave. He came in and beat me and raped me. I thought he left but he didn't. I shot him. I didn't mean to hit him and kill him." An analysis of the vaginal swabs taken during Defendant's medical examination revealed the presence of sperm. DNA testing revealed that the sperm found on these vaginal swabs matched that of the decedent.
When investigating officers entered Defendant's mobile home, they found the body of the decedent, Billy Ray Williams, lying face down on the floor in the hallway off of the kitchen in a large pool of blood. At the time of his death, the decedent was sixty-two years old, five feet ten inches tall, and weighed two hundred and twenty-one pounds. Spatter patterns and other blood markings in Defendant's mobile home indicated that, after being shot, the decedent moved away from the bedroom and toward the kitchen.
The decedent had died of a gunshot wound to the upper left side of his chest. The bullet that inflicted the fatal wound descended from the entrance wound, which indicated that the gun was fired from a position above the entrance wound. The decedent's wound would not have been immediately fatal, so he would have been able to walk a few steps before collapsing due to blood loss. The absence of powder residue and stippling on the skin around the wound established that the fatal shot was fired from a distance of more than two and one half or three feet. The medical examiner found a "potentially lethal" amount of cocaine that had been ingested relatively shortly prior to death, but no alcohol, in the decedent's blood.
With the exception of a single shoe, the decedent's body was unclothed. The other shoe was discovered just inside the doorway of Defendant's bedroom. The remainder of decedent's clothing was stacked "very neatly" on a dresser in the bedroom, with decedent's pants on top, then a shirt, then boxer shorts, then a second shirt, then socks.
According to the investigating officers, everything in Defendant's bedroom was in an orderly condition. The covers on the bed were pulled down. Two discolored pads lay across the fitted bed sheet, concealing a stain on the sheet beneath them. An empty Food Lion bag hung on a chair. There was no indication of forced entry and no sign of struggle at any point in the residence. An investigator for Defendant found what he described as pry marks on the back door.
The decedent had rented a bedroom in Defendant's mobile home on an intermittent basis from 1999 until around January or February 2007, when he moved out and began living with Karl Beckwith and Joann Longmire. Since about 2005, the relationship between decedent and Defendant had been an intimate one. At trial, Ms. Longmire testified that the decedent moved out of Defendant's mobile home because he was not getting along with her anymore and needed to get away from her. Although Defendant called the Beckwith/Longmire home looking for the decedent frequently, the decedent tried to avoid taking her calls and would ask Mr. Beckwith and Ms. Longmire to tell Defendant that he was not there. According to Ms. Longmire, the decedent still spent the night with Defendant on an occasional basis.
Defendant called Mr. Beckwith and Ms. Longmire looking for the decedent several times on 31 March 2007 and requesting that he bring her "cabbage and oil." By the time of Defendant's final call that day, Ms. Longmire testified that Defendant was mad and said to tell the decedent not to come over "[b]ecause if he come over there, I'm going to kill his a — ." Ms. Longmire testified that, when she relayed this comment to the decedent, he replied that "she done said that a hundred and one million times." Ms. Longmire recalled hearing a similar statement on at least one prior occasion.
Billy Harrington, who worked with the decedent on 31 March 2007, also testified that the decedent received quite a few phone calls during the course of the day; that the decedent was agitated while he was on the phone; that "whoever he was talking to, he didn't want to talk to them;" and that "he was really trying to get off the phone." After leaving the job site with the decedent at about 9:00 p.m. on 31 March 2007, Mr. Harrington and the decedent stopped at a Food Lion store, where the decedent bought some cabbage and Food Lion cooking oil. Although Mr. Harrington attempted to dissuade the decedent from going to Defendant's mobile home, the decedent said that it was something that he had to do.
The investigating officers did not find any cabbage or oil in the mobile home.
At trial, Defendant testified that she consumed a large amount of liquor on 31 March 2007 before going to bed at about 8:30 or 9:00 p.m. Defendant denied calling Ms. Longmire, Mr. Beckwith, or Mr. Harrington earlier that day. According to Defendant, the decedent broke into her home that night. At the time that she awoke, he was "pulling at my body and stuff and hollering where in the h — — I been, who I been with, he could tell I had been with somebody because I didn't want to do anything." According to Defendant, the decedent beat her about the head and threatened to kill her after he raped her. In addition, Defendant testified that the decedent threatened to kill her. Defendant had "[n]ever seen him that angry and crazy before in [her] life." After the decedent raped her, she was scared that he was going to kill her. For that reason, she "reached over in the nightstand drawer . . . got the gun. . . . [and] [r]eached up . . . and fired."
During its cross-examination of Defendant, the State elicited evidence that Defendant had previously been convicted for possession of drug paraphernalia; that Defendant had three prior convictions for obtaining controlled substances by fraud; that in 2002, a week after receiving a prescription for Oxycodone, Defendant made an unscheduled visit to her plastic surgeon's office to obtain another prescription for Oxycodone; and that Defendant "snorted cocaine" two days prior to the decedent's death. The State was also allowed, over Defendant's objection, to introduce Defendant's medical record from her 1 April 2007 hospital visit during the cross-examination of Defendant's witness. The record stated that Defendant smelled of alcohol and that an "unconfirmed screening result" from an analysis performed by a non-testifying doctor indicated that Defendant tested positive for cocaine. Finally, on rebuttal, the State introduced evidence that the doctor who examined Defendant on 1 April 2007 did not detect any evidence of injury to Defendant's face and did not find any swelling, redness, lacerations, tenderness, or other physical evidence that a sexual assault had occurred.
B. Procedural Facts
On 14 May 2007, the Harnett County grand jury returned bills of indictment charging Defendant with first degree murder and possession of a firearm by a convicted felon. On 10 November 2008, the Harnett County grand jury returned superseding bills of indictment charging the same offenses but correcting the offense date from "April 1, 2007" to "On or About March 31, 2007 through April 1, 2007." Prior to trial on 23 January 2009, Defendant filed several motions, including a motion in limine seeking the exclusion of the medical records from Betsy Johnson Memorial Hospital indicating that Defendant tested positive for cocaine and a motion in limine seeking the entry of an order allowing Defendant to introduce evidence of the decedent's prior sexual offenses. On 5 February 2009, the trial court entered an order reserving ruling on the admissibility of the results of Defendant's drug test result and denying Defendant's motion in limine relating to evidence that the decedent had sexually molested other individuals.
The charges against Defendant came on for trial before the trial court and a jury at the 23 February 2009 criminal session of the Superior Court held in Harnett County, North Carolina. On 27 February 2009, the jury returned verdicts convicting Defendant of second degree murder and possession of a firearm by a convicted felon. At the sentencing hearing, the trial court found that Defendant should be sentenced as a Level IV offender, consolidated Defendant's convictions for judgment, and ordered that she be imprisoned in the custody of the North Carolina Department of Correction for a minimum of 251 months and a maximum of 311 months. Defendant noted an appeal to this Court from the trial court's judgments.
II. Legal Analysis A. Self-Defense Expert
In her first argument on appeal, Defendant contends that the trial court abused its discretion by excluding the testimony of Dave Cloutier, Defendant's self-defense expert, as a result of Defendant's failure to include Mr. Cloutier's name on the witness list provided to the State prior to trial pursuant to a court order. Alternatively, Defendant contends that, if the trial court's decision to prevent Mr. Cloutier from testifying did not constitute error, her trial counsel's failure to include Mr. Cloutier's name on her witness list constituted ineffective assistance of counsel. We disagree with both contentions.
1. Non-Disclosure of Expert Witness
We review a trial court's decision "to deny [a] defendant's request to allow an undisclosed witness to testify during the trial [] as either an expert or as a lay witness" for an abuse of discretion. State v. Leyva, 181 N.C. App. 491, 502, 640 S.E.2d 394, 400, disc. review denied and appeal dismissed, 361 N.C. 573, 651 S.E.2d 370 (2007), disc. review denied, ___ N.C. ___, 673 S.E.2d 872 (2009); State v. McMahon, 67 N.C. App. 181, 183 312 S.E.2d 526, 527 (1984) (whether to permit witnesses whose names are omitted from a list of potential witnesses to testify is "a matter within the discretion of the trial judge"). An abuse of discretion occurs "where the [trial court's] ruling was so arbitrary that it cannot be said to be the result of a reasoned decision." State v. Tuck, 191 N.C. App. 768, 771, 664 S.E.2d 27, 29 (2008).
N.C. Gen. Stat. § 15A-905(c) provides:
[i]f the court grants any relief sought by the defendant under [N.C. Gen. Stat. § ] 15A-903, or if disclosure is voluntarily made by the State pursuant to [N.C. Gen. Stat. § 15A-902(a)], the court must, upon motion of the State, order the defendant to . . . [g]ive notice to the State of any expert witnesses that the defendant reasonably expects to call as a witness at trial. Each such witness shall prepare, and the defendant shall furnish to the State, a report of the results of the examinations or tests conducted by the expert. The defendant shall also furnish to the State the expert's curriculum vitae, the expert's opinion, and the underlying basis for that opinion. The defendant shall give the notice and furnish the materials required by this subdivision within a reasonable time prior to trial, as specified by the court.
Defendant filed a notice of intent to produce expert testimony relating to the issue of self-defense prior to the pre-trial motions hearing. During the pre-trial motions hearing in response to the State's request for reciprocal discovery, the trial court ordered Defendant to provide the State with a complete list of expert witnesses that Defendant intended to call at trial by 9 February 2009. At the time that Defendant filed the required witness list, her trial counsel omitted Mr. Cloutier's name on the list of witnesses that she planned to call at trial.
When Defendant attempted to call Mr. Cloutier to testify at trial, counsel for the parties and the trial court engaged in the following colloquy:
[PROSECUTOR]: This witness is not on the defense witness list, your Honor. I know we had discussed it at a previous time. [Co-counsel] and I had worked a great deal with a self-defense expert in trying to prepare ourselves for this, but when we got his list, and up until this morning we didn't think he was actually going to call him because he is not on the defense witness list.
[DEFENSE]: Your Honor, I sent them notice. In fact, sent them his handwritten notes, notice of intent to call as an expert witness, provided a curriculum vitae, indicated to them earlier that I intended to call him.
THE COURT: Is he on your witness list?
[DEFENSE]: No, he is not. Inadvertent.
THE COURT: Objection sustained.
As a result, it appears that the trial court allowed the State's request to bar Mr. Cloutier from testifying because Defendant's trial counsel did not include his name on the required witness list and because the State indicated that it had essentially ceased its efforts to prepare for Mr. Cloutier's testimony because his name did not appear on Defendant's witness list.
According to Defendant, the appropriate standard for use in evaluating the trial court's ruling is that set out in State v. Brown, 177 N.C. App. 177, 628 S.E.2d 787 (2006). In Brown, we held that the trial court must "look to see whether the district attorney acted in bad faith, and whether the defendant was prejudiced thereby" in determining whether testimony from an undisclosed prosecution witness should have been allowed. Brown, 177 N.C. App. at 184, 628 S.E.2d at 791 (quoting State v. Smith, 291 N.C. 505, 523, 231 S.E.2d 663, 675 (1977)). Assuming for purposes of discussion that Brown enunciates the proper test for use in determining whether an undisclosed defense witness should have been allowed to testify and that Defendant articulated a "good faith" explanation for the omission of Mr. Cloutier's name from her witness list, we are unable to conclude that the trial court abused its discretion in precluding Mr. Cloutier from testifying. According to the prosecutor, the omission of Mr. Cloutier's name from Defendant's witness list resulted in a short-circuiting of the State's efforts to prepare to counter his testimony, efforts that apparently included consultation with another self-defense expert. Based upon the prosecutor's assertions, the trial court had ample justification for concluding that allowing the presentation of Mr. Cloutier's testimony would have prejudiced the State by depriving the State of an adequate opportunity to counter his testimony. Thus, since Defendant failed to include the name of her self-defense expert on the court-ordered witness list that she provided to the State, since the State was not aware that Defendant intended to call this witness until the morning that Mr. Cloutier actually took the stand, and since the record provides ample basis for a determination that the omission of Mr. Cloutier's name from Defendant's witness list prejudiced the State, we cannot conclude that the trial court abused its discretion by excluding the self-defense expert's testimony. See Leyva, 181 N.C. App. at 502, 640 S.E.2d at 400 (holding that the trial court did not abuse its discretion in excluding expert testimony based on the defendant's failure to provide adequate notice).
2. Ineffective Assistance of Counsel
Alternatively, Defendant argues that, if the trial court did not err in precluding Defendant from presenting the testimony of her self-defense expert, her trial counsel's failure to include Mr. Cloutier on the witness list that was provided to the prosecutor constituted ineffective assistance of counsel. We do not find this contention persuasive either.
To successfully assert an ineffective assistance of counsel claim, Defendant must satisfy the two-part test set forth in Strickland v. Washington, which the Supreme Court expressly adopted for state constitutional purposes in State v. Braswell:
First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.
State v. Braswell, 312 N.C. 553, 562, 324 S.E.2d 241, 248 (1985) (quoting Strickland v. Washington, 466 U.S. 668, 687, 80 L. Ed. 674, 693 (1984)). "The fact that counsel made an error, even an unreasonable error, does not warrant reversal of a conviction unless there is a reasonable probability that, but for counsel's errors, there would have been a different result in the proceedings." Braswell, 312 N.C. at 563, 324 S.E.2d at 248 (citing Strickland, 466 U.S. at 694, 80 L. Ed.2d at 698). "[I]f a reviewing court can determine at the outset that there is no reasonable probability that in the absence of counsel's alleged errors the result of the proceeding would have been different, then the court need not determine whether counsel's performance was actually deficient." Braswell, 312 N.C. at 563, 324 S.E.2d at 249.
According to Defendant, the trial court's refusal to permit the jury to hear Mr. Cloutier's testimony "in this close a case on the evidence [] may have led to a different result." However, even if the failure of Defendant's trial counsel to include the name of Defendant's self-defense expert on the witness list provided to the prosecutor constituted deficient performance, we are unable to conclude that there is a reasonable probability that presentation of his testimony would have produced a different result at trial.
In his voir dire testimony, Mr. Cloutier expressed the opinion that the force "utilized by the defendant in this matter may be deemed reasonably necessary and proportional" based on "the circumstances as described by the defendant, which included her fear of imminent serious bodily harm or death subsequent to an assault, battery and rape perpetrated by the decedent" and her "extremely poor vision." Put another way, Mr. Cloutier's trial testimony amounted to an assertion that, in the event that one accepted Defendant's version of the underlying facts, the amount of force that she utilized was "reasonably necessary and proportional." As a result, unless the jury accepted Defendant's account of the underlying facts as true, the testimony of Defendant's self-defense expert added nothing to the analysis that the jury was required to undertake in order to decide the issues submitted for its consideration by the trial court. Under this set of circumstances, we cannot conclude that there is a reasonable probability that the outcome at trial would have been different had Mr. Cloutier been permitted to testify.
First, the physical evidence simply did not corroborate Defendant's factual contentions. The condition of Defendant's mobile home provided no support for Defendant's claim that the decedent had broken into her home and assaulted and raped her. The absence of powder burns and stippling established that the fatal gunshot wound was not inflicted at short range. The fatal wound resulted from a shot fired from a gun located above the point at which the bullet entered the decedent's body. The physical examinations of Defendant's person conducted shortly after the shooting provided no support for Defendant's claim that she had been assaulted and raped. As a result, the physical evidence simply does not support Defendant's claim of self-defense.
Secondly, and perhaps more importantly, had the jury accepted Defendant's account of the events which led to the decedent's death, it is likely that it would have accepted Defendant's claim of self-defense even without the addition of Mr. Cloutier's expert testimony. A jury that found as a matter of fact that a disabled individual had shot and killed another person who broke into her residence, assaulted her, and then raped her would likely conclude that such an individual acted in self-defense regardless of the extent to which an expert witness provided testimony of the type that Mr. Cloutier was precluded from delivering. As a result, we are unable to conclude that there is a reasonable probability that the outcome would have been different had Mr. Cloutier been permitted to testify for this reason as well. Thus, we are not persuaded that Defendant is entitled to relief on appeal based on her ineffective assistance of counsel claim.
B. Evidentiary Issues
Next, Defendant contends that the trial court erred by sustaining the State's objections to certain testimony relating to Defendant's skin condition, to prior bad acts by the decedent, and to prior break-ins at her mobile home. After careful consideration, we conclude that none of Defendant's claims has merit.
1. Defendant's Skin Condition
First, Defendant contends that the trial court erred by initially sustaining the State's objections to testimony by Dr. Laura A. Gunn concerning Defendant's skin condition. We disagree.
We review a trial court's decisions regarding the order in which testimony is presented under an abuse of discretion standard. See State v. Phillips, 171 N.C. App. 622, 628, 615 S.E.2d 382, 386, disc. review denied and appeal dismissed, 360 N.C. 74, 622 S.E.2d 628 (2005). "The trial judge has inherent authority to supervise and control trial proceedings." State v. Davis, 317 N.C. 315, 318, 345 S.E.2d 176, 178 (1986). Furthermore, because "[t]he manner of the presentation of the evidence is [largely] . . . within the [sound] discretion of the trial judge," the trial judge's "control of [a] case will not be disturbed absent a manifest abuse of discretion." State v. Demos, 148 N.C. App. 343, 351, 559 S.E.2d 17, 22, cert. denied, 355 N.C. 495, 564 S.E.2d 47 (2002) (quotation omitted); see also State v. Goldman, 311 N.C. 338, 350, 317 S.E.2d 361 (1984) ("The trial judge has the power and the duty to supervise and control the trial, including examination and cross-examination of witnesses.").
At trial, Defendant sought to present the testimony of Dr. Gunn for the purpose of discussing her skin condition before presenting her own testimony. Upon objection by the State, the trial court ordered that Defendant's testimony be presented before that of Dr. Gunn. In essence, the trial court believed that Defendant should present sufficient evidence to place the issue of whether Defendant acted in self-defense and whether she consented to have sex with the decedent squarely before the jury prior to allowing Dr. Gunn to testify concerning the extent to which Defendant's skin condition would have made sexual intercourse painful and rendered any intercourse that Defendant had with the decedent on the night of 31 March-1 April 2007 nonconsensual. After the conclusion of Defendant's testimony, however, the trial court allowed Dr. Gunn to testify concerning the details of Defendant's skin condition. Although Defendant contends that Dr. Gunn's "testimony was much more limited than during the voir dire hearing," any limitations on the scope of the testimony provided by Dr. Gunn stemmed from the questions posed by Defendant rather than from any action taken by the trial court. Simply put, Defendant has not identified any ruling by the trial court that constrained her ability to elicit evidence from Dr. Gunn before the jury once Defendant had completed her own testimony and our own review of the record has not disclosed the existence of one. In light of the trial court's inherent authority to supervise and control trial court proceedings and the absence of any indication that the trial court's ruling precluded Defendant from presenting any evidence that she wished to present to the jury, we are unable to conclude that the trial court's decision concerning the order in which Defendant and Dr. Gunn testified constituted an abuse of discretion.
2. Decedent's Prior Bad Acts
Next, Defendant contends that the trial court erred by excluding evidence that the decedent sexually molested his daughter. We disagree.
Prior to trial, Defendant filed a motion in limine seeking the entry of an order allowing the introduction of testimony that Defendant had sexually assaulted his daughter thirty years ago. In addition, Defendant attempted at trial to obtain the admission of evidence that the decedent had "sexually molest[ed]" one of his daughters "like twice, maybe," approximately thirty years prior to the trial. According to Defendant, this evidence was admissible for the purpose of "showing the character of the decedent for violence" pursuant to N.C. Gen. Stat. § 8C-1, Rules 404(a)(2) and 405(a), and to "show an absence of mistake" pursuant to N.C. Gen. Stat. § 8C-1, Rule 404(b).
N.C. Gen. Stat. § 8C-1, Rule 404(a)(2) allows an accused to present "[e]vidence of a pertinent trait of character of the victim of the crime." However, N.C. Gen. Stat. § 8C-1, Rule 405(a) provides that "[i]n all cases in which evidence of . . . a trait of character of a person is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion." Although reputation or opinion testimony that the decedent had a violent character might have been admissible at Defendant's trial, testimony regarding specific acts of sexual misconduct that the decedent committed at some point in the past does not constitute such opinion or reputation testimony. Instead, the use of evidence of specific acts to prove character falls squarely within the prohibition enunciated in N.C. Gen. Stat. § 8C-1, Rule 404(b), which expressly precludes the introduction of "[e]vidence of other crimes, wrongs, or acts . . . to prove the character of a person in order to show that he acted in conformity therewith." As a result, even if the excluded testimony amounted to evidence of violent conduct, evidence that the decedent sexually molested his daughter on one or more occasions thirty years ago is not admissible pursuant to N.C. Gen. Stat. § 8C-1, Rule 404(a)(2).
Although N.C. Gen. Stat. § 8C-1, Rule 405(b) permits the introduction of evidence of specific instances of conduct to prove a pertinent trait of character "[i]n cases in which character or a trait of character of a person is an essential element of a charge, claim, or defense," N.C. Gen. Stat. 8C-1, Rule 405(b), Defendant never argued for the admission of the evidence in question pursuant to N.C. Gen. Stat. § 8C-1, Rule 405(b) on appeal. Even if Defendant had advanced such an argument on appeal, it would have proven unsuccessful, since Defendant has not demonstrated that she knew that the decedent had molested his daughter at the time of the shooting, thereby making such evidence relevant to the issue of the reasonableness of her fear of the decedent. See State v. Shoemaker, 80 N.C. App. 95, 101-02, 341 S.E.2d 603, 607, appeal dismissed and disc. review denied, 317 N.C. 340, 346 S.E.2d 145 (1986) (evidence of prior act properly excluded because "[n]o evidence was presented which showed defendant had been aware of the incident").
Furthermore, although N.C. Gen. Stat. § 8C-1, Rule 404(b) permits the introduction of "[e]vidence of other crimes, wrongs, or acts" to prove "motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake, entrapment or accident," Defendant has not identified exactly how the admission of evidence that the decedent sexually molested his daughter at some point in the distant past would be relevant for any of the purposes that are deemed permissible in N.C. Gen. Stat. § 8C-1, Rule 404(b). Although it is "not the role of the appellate courts . . . to create an appeal for an appellant," Viar v. N. C. Dept. of Trasp., 359 N.C. 400, 402, 610 S.E.2d 360, 361 (2005), we have independently reviewed the record and have failed to discern any way in which the challenged evidence tends to show an absence of mistake sufficient to render the evidence in question admissible. As a result, we conclude that testimony that the decedent sexually molested his daughter approximately thirty years prior to trial is not admissible under either of the theories advanced in Defendant's brief.
3. Prior Break-Ins
Thirdly, Defendant contends that the trial court erred by preventing Defendant from testifying concerning the details of prior break-ins occurring at her home, which Defendant argues was relevant to her use of deadly force on the night that she shot the decedent. Once again, we disagree.
Although 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, "evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." N.C. Gen. Stat. § 8C-1, Rule 403. "Whether or not to exclude evidence under [N.C. Gen. Stat. § 8C-1, Rule 403] is a matter within the sound discretion of the trial judge." State v. Mason, 315 N.C. 724, 731, 340 S.E.2d 430, 435 (1986).
At trial, Defendant testified that, "[e]very time I come home, somebody broke in, break the windows out, steal my stuff," including "[c]urtains from the wall" and "[e]verything I owned," and that she had been a victim of break-ins prior to 31 March 2007. The trial court sustained the State's objections to Defendant's attempts to elicit additional testimony regarding the prior break-ins. Although evidence concerning prior break-ins at Defendant's home might have been relevant to the issue of Defendant's state of mind on the night of 31 March-1 April 2007, there was substantial evidence before the jury concerning prior break-ins at Defendant's home in addition to the testimony that the trial court excluded. In light of the essentially cumulative nature of the excluded testimony, we are unable to find that the trial court abused its discretion in excluding additional evidence regarding details of prior break-ins. State v. Lindsey, 25 N.C. App. 343, 348, 213 S.E.2d 434, 439, cert. denied and appeal dismissed, 287 N.C. 468, 215 S.E.2d 627 (1975) (stating that "it is . . . well established that the refusal to permit questions which would invoke merely repetitious or cumulative evidence is not error") (citing State v. Gray, 268 N.C. 69, 83, 150 S.E.2d 1, 12 (1966), cert. denied, 386 U.S. 911, 17 L. Ed. 2d 784 (1967). As a result, we conclude that the trial court did not err by sustaining the State's objections to additional questions about prior break-ins at Defendant's mobile home.
We briefly note that Defendant, relying on this Court's decision in State v. Mackey, 58 N.C. App. 385, 293 S.E.2d 617, disc. review denied, 306 N.C. 748, 295 S.E.2d 761 (1982), appears to argue that the combined effect of the trial court's exclusion of the self-defense expert's testimony, detailed evidence of Defendant's skin condition, evidence that the decedent previously molested his daughter, and additional evidence concerning prior break-ins at Defendant's mobile home violated Defendant's right to present a defense under the Sixth Amendment to the United States Constitution and under the Due Process Clause of the Fourteenth Amendment to the United States Constitution. Since we conclude that the trial court did not err in its rulings with respect to the evidence in question, we need not consider whether the cumulative effect of the trial court's rulings resulted in a deprivation of Defendant's constitutional rights.
C. Accident Instruction
Next, Defendant contends that the trial court erred by refusing to instruct the jury that it could find Defendant not guilty on the grounds of accident. We disagree.
We review a trial court's decisions regarding jury instructions on a de novo basis. State v. Osorio, ___ N.C. App. ___, ___, 675 S.E.2d 144, 149 (2009). If a trial court refuses to give a requested instruction, the defendant must show on appeal that "substantial evidence supported the omitted instruction." State v. White, 77 N.C. App. 45, 52, 334 S.E.2d 786, 792, cert. denied, 315 N.C. 189, 337 S.E.2d 864 (1985). "`Substantial evidence' is that amount of relevant evidence that a reasonable mind might accept as adequate to support a conclusion." State v. Gray, 337 N.C. 772, 777-78, 448 S.E.2d 794, 798 (1994) (internal quotation and citation omitted). "The defense of accident is triggered in factual situations where a defendant, without premeditation, intent, or culpable negligence, commits acts which bring about the death of another. . . . It is not an affirmative defense, but acts to negate the mens rea element of homicide." State v. Yarborough, ___ N.C. App. ___, ___, 679 S.E.2d 397, 407 (2009), cert. denied, 363 N.C. 812, ___ S.E.2d ___ (2010) (internal quotations omitted) (quoting State v. Turner, 330 N.C. 249, 262, 410 S.E.2d 847, 854 (1991)). "Culpable negligence is such gross negligence or carelessness as imports a thoughtless disregard of the consequences or a heedless indifference to the rights and safety of others." State v. Thompson, 118 N.C. App. 33, 36, 454 S.E.2d 271, 273, disc. review denied, 340 N.C. 262, 456 S.E.2d 837 (1995) (quotations and citation omitted).
After carefully reviewing the record, we conclude that the record does not contain sufficient evidence to support the delivery of an accident instruction. Although Defendant's "plea of not guilty entitled [her] to present evidence that [s]he acted in self-defense, that the shooting was accidental, or both," because "[e]lection [between self-defense and accident] is not required," State v. Wagoner, 249 N.C. 637, 639, 107 S.E.2d 83, 85 (1959), Defendant simply failed to elicit any evidence that the decedent's death resulted from an accident. See State v. Hoyle, 57 N.C. App. 288, 293, 291 S.E.2d 273, 276, disc. review denied, 306 N.C. 389, 294 S.E.2d 215 (1982) (holding that trial court did not err in failing to instruct the jury on the defense of accident "where all of the evidence indicate[d] that the defendant intended to pull the trigger of the gun which fired the shots resulting in the death of the victim"); see also State v. Elam, 56 N.C. App. 590, 593, 289 S.E.2d 857, 860, disc. review denied, 305 N.C. 761, 292 S.E.2d 577 (1982) (holding that trial court did not err in failing to charge on the defense of accident when Defendant testified that she intentionally fired the gun to "scare them off").
At trial, Defendant testified that she reached over, retrieved the gun from a nightstand drawer, and then "reached up and . . . fired the gun" to "scare him" because the decedent "was trying to come back and hurt me, kill me, whatever he gonna do." In light of this evidence, we cannot conclude that Defendant's intentional act of firing a gun in the direction of the decedent in an attempt to "scare him" did not amount to culpable negligence, a set of facts that precludes an accident instruction. Thus, the trial court correctly declined to instruct the jury that it could acquit Defendant on the grounds of accident.
Furthermore, even if it was error for the trial court to refuse to instruct the jury on the defense of accident, any such error was harmless. The trial court instructed the jury on first degree murder, second degree murder, voluntary manslaughter, involuntary manslaughter, and self-defense in addition to instructing the jury that it could find Defendant not guilty. The trial court required the jury to find "beyond a reasonable doubt that [Defendant] unlawfully, intentionally and with malice wound[ed] [the decedent] with a deadly weapon, thereby proximately causing his death, and that [Defendant] did not act in self-defense, or if [Defendant] did act in self-defense, that she was the aggressor with the intent to kill or inflict serious bodily harm in bringing on the fight," before convicting Defendant of second degree murder. Because the jury found Defendant guilty of second degree murder based on these instructions, it necessarily rejected any argument that the killing was unintentional. Thus, even if the trial court had provided the jury with the requested accident instruction, the jury's finding that Defendant acted with malice "precludes the possibility that the same jury would have accepted the defendant's claim that the shooting was accidental even if it had been given the requested instruction." See State v. Riddick, 340 N.C. 338, 344, 457 S.E.2d 728, 732 (1995) (noting that a guilty verdict for first degree murder, "and not the unintentional act of involuntary manslaughter, precludes the possibility that the same jury would have accepted the defendant's claim that the shooting was accidental even if it had been given the requested [accident] instruction"). As a result, we conclude that Defendant is not entitled to any relief on appeal as a result of the trial court's refusal to instruct the jury on the defense of accident.
D. Admissibility of an "Unconfirmed Screening" Test for Cocaine
Finally, Defendant contends that the trial court erred by admitting the result of an "unconfirmed screening" test for cocaine which was conducted by a non-testifying doctor for "non-medicinal" purposes because it violated Defendant's confrontation rights under the Sixth Amendment to the United State Constitution and was unfairly prejudicial under N.C. Gen. Stat. § 8C-1, Rule 403. Assuming, without deciding, that the trial court erred by allowing the admission of the challenged test result, we conclude that any such error was harmless beyond a reasonable doubt. N.C. Gen. Stat. § 15A-1443(b) (providing that "[a] violation of the defendant's rights under the Constitution of the United States is prejudicial unless the appellate court finds that it was harmless beyond a reasonable doubt," with the "burden [lying] upon the State to demonstrate, beyond a reasonable doubt, that the error was harmless").
At trial, the State was permitted, over Defendant's objection, to introduce the record from Defendant's medical examination at Betsy Johnson Memorial Hospital on the morning of 1 April 2007 into evidence and to examine a nurse who was present during the examination of Defendant about those test results. The medical records of Defendant's hospital visit included the results of an "unconfirmed screening" test that indicated that Defendant tested positive for cocaine. Although Defendant argues vigorously that the challenged evidence undermines Defendant's assertion that she was raped because a jury could infer from Defendant's cocaine consumption that her sexual encounter with the decedent was consensual, we cannot conclude that any error in admitting the test result was prejudicial for a number of reasons.
First, and most importantly, Defendant admitted having ingested cocaine about two days before decedent's death. As a result, the jury knew, due to information provided by Defendant, that she had voluntarily consumed cocaine within a relatively short period of time prior to the decedent's death. "[D]efendant waives the benefit of an objection when the same or similar evidence is admitted without objection." State v. Byers, 175 N.C. App. 280, 289, 623 S.E.2d 357, 362 (2006), disc. review denied, 360 N.C. 485, 631 S.E.2d 135 (2006) (citing State v. Pate, 62 N.C. App. 137, 139, 302 S.E.2d 286, 288, aff'd per curiam, 309 N.C. 630, 308 S.E.2d 326 (1983), and State v. Whitley, 311 N.C. 656, 661, 319 S.E.2d 584, 588 (1984)). As a result of the fact that the jury heard evidence that Defendant admitted having consumed cocaine within two days of the decedent's death, the admission of the results of the "non-medicinal" drug test was clearly harmless beyond a reasonable doubt.
Secondly, the inference that Defendant seeks to draw from the admission of the "non-medicinal" drug test result is a relatively tenuous one. The fact that Defendant tested positive for cocaine on 1 April 2007 does not, contrary to her argument, establish that she and the decedent consumed cocaine together. For that reason, the argument that Defendant and the decedent consumed cocaine together and that, therefore, the sexual encounter between Defendant and the decedent was consensual in nature is weak at best. In addition, the State made minimal use of the challenged evidence. Except for introducing the test result into evidence and eliciting brief testimony concerning the test result from an emergency room nurse, the State did not place particular emphasis on the test result during Defendant's trial. Finally, as we have already noted, the record contained little physical evidence tending to show that the decedent assaulted and raped Defendant. Thus, we conclude that any error that may have occurred in connection with the admission of the "non-medicinal" test result at Defendant's trial was harmless beyond a reasonable doubt for these reasons as well. See State v. Locklear, 363 N.C. 438, 453, 681 S.E.2d 293, 305 (2009) (determining that any error in admitting evidence of forensic analysis performed by a forensic pathologist and a forensic dentist in violation of the defendant's confrontation rights was harmless beyond a reasonable doubt when the facts the evidence tended to prove were not critical to the State's case against the defendant); State v. Galindo, ___ N.C. App. ___, ___, 683 S.E.2d 785, 788-89 (2009) (no prejudicial error when hearsay evidence was impermissibly admitted in violation of the Confrontation Clause because the defendant's statement in conjunction with testimony of law enforcement officers established beyond a reasonable doubt that a reasonable jury would have found the defendant guilty of trafficking in cocaine).
III. Conclusion
As a result, we conclude that Defendant received a fair trial that was free from prejudicial error. For that reason, we conclude that Defendant has not demonstrated any reason for this Court to overturn the trial court's judgment.
No Error.
Judges STROUD and ROBERT N. HUNTER, JR. concur.
Report per Rule 30(e).