Opinion
NO. COA12-302
12-18-2012
STATE OF NORTH CAROLINA v. ROBERT LAMAR McFADDEN, Defendant.
Attorney General Roy Cooper, by Special Deputy Attorney General Jennie Wilhelm Hauser, for the State. Mark Montgomery for defendant-appellant.
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
Mecklenburg County
Nos. 10-CRS-223638, 223640-42
Appeal by defendant from judgments entered 11 August 2011 by Judge Timothy S. Kincaid in Mecklenburg County Superior Court. Heard in the Court of Appeals 26 September 2012.
Attorney General Roy Cooper, by Special Deputy Attorney General Jennie Wilhelm Hauser, for the State.
Mark Montgomery for defendant-appellant.
HUNTER, Robert C., Judge.
Robert Lamar McFadden ("defendant") appeals from judgments entered 11 August 2011 after a jury found him guilty of second degree rape, simple assault, and both felonious and misdemeanor breaking or entering. Defendant argues on appeal that the trial court erred by: (1) denying defendant's motion to produce the complaining witness's mental health records; (2) admitting the opinion testimony of the State's DNA analyst; (3) allowing the prosecutor to make improper statements before the jury during closing argument; and (4) admitting testimony regarding defendant's alleged assault on another witness. After careful review, we find no error.
Background
Defendant was indicted on charges of first degree kidnapping, second degree rape, simple assault, felonious breaking and entering, and larceny after breaking and entering for an attack on V.B. that occurred on 19 May 2010. He was also indicted on a charge of felonious breaking and entering of the residence of Kathy Thompson ("Thompson") that occurred 20 May 2010. The charges were joined for trial at the 25 July 2011 Criminal Session of Mecklenburg County Superior Court.
We will refer to the elderly rape victim as "V.B." in order to protect her identity.
Prior to trial, defendant filed two motions, one in August 2010 and another in June 2011, seeking an order requiring the State to produce V.B.'s mental health records. Additionally, defendant filed motions seeking the exclusion of testimony from the State's expert DNA analyst as well as the exclusion of testimony from Patricia Knox, who was allegedly assaulted by defendant one day after V.B. was raped. The trial court denied both motions.
The evidence at trial tended to establish the following: V.B. was 84 years old at the time of the trial and suffered from dementia. She testified that she was in her home alone on 19 May 2010 when she saw a group of men, one of whom was defendant, seeking money "for a worthy cause." V.B. heard a man come inside her apartment, and, when she came out, she saw defendant. She testified that defendant said he was hungry, and he requested that she make him a sandwich. V.B. testified that defendant then raped her, slammed her head on the floor, and almost smothered her with a pillow. V.B. identified defendant as her attacker in a photo lineup which led to his arrest. She also identified defendant as her attacker in open court.
The physical evidence collected by the crime scene investigators for DNA analysis included a condom wrapper found on the floor in V.B.'s home, a used condom found outside on the pavement during the investigation of Thompson's break-in, and a hair sample found on V.B.'s bed sheet.
On 11 August 2011, the jury found defendant guilty of second degree rape, simple assault, and felonious breaking or entering against V.B. Defendant was also found guilty of misdemeanor breaking or entering against Thompson. Defendant was sentenced to 104 to 134 months imprisonment for the second degree rape conviction, 24 months of unsupervised probation for the simple assault conviction, and 10 to 12 months for the felonious breaking or entering conviction. For the misdemeanor breaking or entering conviction, defendant was sentenced to 45 days imprisonment. Following sentencing, defendant gave notice of appeal in open court.
Discussion
I. Motion to Produce Mental Health Records
Defendant first contends the trial court abused its discretion in denying his motion seeking an order to obtain V.B.'s mental health records. Moreover, defendant asserts that this failure to disclose V.B.'s records violated his due process rights. We disagree.
"Whether or not to grant a party's motion to compel discovery is in the sound discretion of the trial court and will not be disturbed absent an abuse of discretion." Belcher v. Averette, 152 N.C. App. 452, 455, 568 S.E.2d 630, 633 (2002). The trial court also has discretion in choosing when to hear motions made before trial commences. N.C. Gen. Stat. § 15A-952(f) (2011). "A trial court's actions constitute an abuse of discretion upon a showing that a court's actions are . . . so arbitrary that they could not have been the result of a reasoned decision." Patrick v. Wake Cnty. Dep't of Human Servs., 188 N.C. App. 592, 595, 655 S.E.2d 920, 923 (2008) (citations and internal quotation marks omitted). If judicial action is supported by reason it cannot be an abuse of discretion. Alexvale Furniture, Inc. v. Alexander & Alexander of the Carolinas, 93 N.C. App. 478, 481, 385 S.E.2d 796, 798 (1989).
The State has the burden of providing to defendant the "complete files" of the investigation, which includes "defendant's statements, the codefendants' statements, witness statements, investigating officers' notes, results of tests and examinations, or any other matter or evidence obtained during the investigation of the offenses alleged to have been committed by the defendant." N.C. Gen. Stat. § 15A-903(a)(1)(a) (2011). Our Courts have held that the mental health records of a complaining witness may be impeachment evidence that must be turned over to a defendant, but "[t]he State . . . is under a duty to disclose only those matters in its possession and is not required to conduct an independent investigation to locate evidence favorable to a defendant." State v. Thompson, 187 N.C. App. 341, 352-53, 654 S.E.2d 486, 494 (2007) (citations and internal quotation marks omitted). Here, V.B.'s private medical records were not in the possession or control of the State; therefore, the State had no obligation to provide them to defendant pursuant to N.C. Gen. Stat. § 15A-903(a)(1)(a).
Moreover, we find that the trial court's denial of defendant's motions was supported by reason. Here, the trial court found that evidence of V.B.'s mental health would be elicited during witness testimony. Thus, granting the motion would cause an undue delay in the proceedings. The court's reasoning proved to be well-founded. Both V.B. and her daughter testified about V.B.'s dementia. Thus, defendant was given the opportunity to cross-examine V.B. Here, because the trial court's decision was supported by reason, it was not arbitrary, and the trial court did not abuse its discretion in denying the motions. Because the State was not required to provide V.B.'s mental health records to defendant and the trial court's decision to deny defendant's motion requesting an order to compel discovery was supported by reason, we find no abuse of discretion.
Defendant additionally contends that his procedural due process rights were violated during the discovery phase. However, defendant did not raise any objection on this ground at or before trial. Thus, this argument is deemed waived on appeal. See State v. Edmonds, ____ N.C. App. ___, ____, 713 S.E.2d 111, 114 (2011) ("Constitutional errors not raised by objection at trial are deemed waived on appeal.").
II. Motion to Exclude Expert DNA Testimony
Defendant next contends that the trial court erred in denying his motion to exclude the testimony of Aby Moeykens ("Moeykens"), the State's expert DNA analyst. If we conclude that defendant failed to preserve his argument on appeal, defendant argues plain error in his brief.
Here, although the trial court denied defendant's motion to exclude Moeykens' testimony outside the presence of the jury, the trial court advised defendant that it would consider objections as they arose during the trial. However, defendant made no objections to the testimony on the grounds raised on appeal. Therefore, defendant's argument is waived. See State v. Ray, 364 N.C. 272, 277, 697 S.E.2d 319, 322 (2010) (noting that this Court does not review a trial court's decision to admit evidence unless a timely objection was made when the evidence was presented at trial). Because we find that defendant failed to preserve his arguments on appeal, we will review for plain error as argued by defendant.
Our Courts "ha[ve] elected to review unpreserved issues for plain error when they involve[] either (1) errors in the judge's instructions to the jury, or (2) rulings on the admissibility of evidence." State v. Gregory, 342 N.C. 580, 584, 467 S.E.2d 28, 31 (1996). "For error to constitute plain error, a defendant must demonstrate that a fundamental error occurred at trial." State v. Lawrence, ___ N.C. ____, _____, 723 S.E.2d 326, 334 (2012). Thus, the error must have had a "probable impact on the jury's finding that the defendant was guilty" and "seriously affect[ed] the fairness, integrity or public reputation of judicial proceedings." Id.
Both the United States and North Carolina Constitutions afford the accused the right to confront witnesses against him. U.S. Const, amend. VI; N.C. Const. art. I, § 23. Additionally, this Court has held that in accordance with Melendez-Diaz v. Massachusetts, 557 U.S. 305, 174 L. Ed. 2d 314 (2009), DNA analysis reports are "testimonial" and require the analyst to be available for cross-examination, or the evidence "would be inadmissible absent a showing of unavailability and a prior opportunity by the defendant to cross-examine the analyst." State v. Mobley, 200 N.C. App. 570, 574, 684 S.E.2d 508, 511 (2009).
Here, Moeykens testified that after concluding that the control samples of defendant's and V.B.'s DNA were generated properly, she herself compared them to the DNA samples taken from the physical evidence collected at the scenes of the crimes. She then prepared two reports for the trial regarding the results of the tests that she conducted. Moeykens testified that the samples taken from the hair on V.B.'s bed and the exterior of the condom contained a mix of DNA from which defendant and V.B. could not be excluded, and that the DNA found on the interior of the condom was a match for defendant.
In order to form an opinion about how likely it was that the DNA in the samples taken from the physical evidence could have come from any individuals other than defendant or V.B., Moeykens used a North Carolina state database to create inclusion and exclusion statistics based on "frequencies of the DNA that [was] obtained." Based on this statistical analysis, Moeykens testified that any individual other than defendant or V.B. would have a 99.99% chance of being excluded as the source of the DNA mixture found in V.B.'s bed and on the exterior of the condom.
Defendant argues that because Moeykens did not develop the statistical analyses she used to form her opinion, it was plain error to allow her to testify to those statistical analyses. However, this Court has held that "population-statistical analysis is the third step in DNA analysis, [and] our case law evidences the admissibility of testimony on population statistics by (forensic) DNA analysis experts[.]" State v. Watts, 172 N.C. App. 58, 65-66, 616 S.E.2d 290, 296 (2005), abrogated on other grounds, 361 N.C. 161, 696 S.E.2d 525 (2006). Additionally, as this Court noted in Mobley, "evidence offered as the basis of an expert's opinion is not being offered for the truth of the matter asserted[,]" and evidence not offered for the truth of the matter asserted does not violate the Confrontation Clause. Mobley, 200 N.C. App. at 575, 684 S.E.2d at 511-12 (citing Crawford v. Washington, 541 U.S. 36, 59-60 n.9, 158 L. Ed. 2d 177, 197-98 n.9 (2004)). Here, Moeykens used the statistical principles as a basis for her DNA analysis. Therefore, the statistical analyses themselves were not being offered to prove the truth of the matter asserted, and there was no violation of the confrontation clause. Defendant's argument is overruled.
Coincidentally, Moeykens was the DNA expert whose testimony was the basis of that case as well.
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III. Prosecutor's Closing Arguments to the Jury
Defendant next argues that the trial court abused its discretion in overruling the objections defendant made during the prosecutor's closing arguments. Defendant also alleges that it was plain error for the trial court to allow the prosecutor's other allegedly improper statements to be heard by the jury without intervening ex mero motu. After careful review, we find no error.
Initially, we note that "plain error does not apply to issues arising from closing arguments." State v. Harris, _____ N.C. App. _____, _____, 729 S.E.2d 99, 102 (2012). Therefore, we will not review the closing arguments for plain error.
"The standard of review for improper closing arguments that provoke timely objection from opposing counsel is whether the trial court abused its discretion by failing to sustain the objection." State v. Jones, 355 N.C. 117, 131, 558 S.E.2d 106, 106 (2002). Therefore, the Court must first determine if the remarks were improper, and second, whether the "remarks were of such a magnitude that their inclusion prejudiced defendant, and thus should have been excluded by the trial court." Id. In contrast,
[t]he standard of review for assessing alleged improper closing arguments that fail to provoke timely objection from opposing counsel is whether the remarks were so grossly improper that the trial court committed reversible error by failing to intervene ex mero motu. In other words, the reviewing court must determine whether the argument in question strayed far enough from the parameters of propriety that the trialJones, 355 N.C. at 133, 558 S.E.2d at 107 (citations omitted).
court, in order to protect the rights of the parties and the sanctity of the proceedings, should have intervened on its own accord and: (1) precluded other similar remarks from the offending attorney; and/or (2) instructed the jury to disregard the improper comments already made.
North Carolina General Statutes provide guidance for what constitutes proper closing argument:
During a closing argument to the jury an attorney may not become abusive, inject his personal experiences, express his personal belief as to the truth or falsity of the evidence or as to the guilt or innocence of the defendant, or make arguments on the basis of matters outside the record except for matters concerning which the court may take judicial notice. An attorney may, however, on the basis of his analysis of the evidence, argue any position or conclusion with respect to a matter in issue.N.C. Gen. Stat. § 15A-1230(a) (2011) (emphasis added). "Improper remarks are those calculated to lead the jury astray." Jones, 355 N.C. at 133, 558 S.E.2d at 108. However, it has long been the standard in North Carolina that "counsel are given wide latitude in arguments to the jury and are permitted to argue the evidence that has been presented and all reasonable inferences that can be drawn from that evidence." State v. Richardson, 342 N.C. 772, 792, 467 S.E.2d 685, 697 (1996) (emphasis added).
Here, defendant timely objected to two statements that the prosecutor made during her closing argument which related to the DNA evidence. Specifically, defendant objected to the statement that there was "DNA in [V.B.'s] bed" and that "[t]his is all the DNA that was found in her bed and every bit of it is either [defendant] or [V.B.]" Defendant objected to the first statement on the ground that "[t]here was no DNA on her bed" and to the second statement for being misleading because "[t]hat was not the testimony."
Hair was found on V.B.'s bed sheet and was used in the DNA analysis. Moeykens testified that "[t]he DNA profile obtained from the root portion of the hair from [V.B.'s] bed sheets is consistent with a mixture of at least two individuals. Both [defendant] and [V.B.] cannot be excluded as possible contributors to that mixture." She went on to testify that the probability that anyone else could have contributed the DNA mixture from the hair found in V.B.'s bed, other than defendant or V.B., was approximately "1 in 27.5 million for Caucasians; 1 in 6.76 million for African Americans; and 1 in 51.5 million for Hispanics," and that there was no unaccounted for DNA in the hair sample after accounting for defendant and V.B. The probability that any other individual would be excluded as the source of the DNA was 99.99%.
Other evidence adduced at trial shows that the DNA was extracted from hair in V.B.'s bed and a used condom which contained a match for defendant on its interior, V.B. identified defendant as the perpetrator before and during the trial, and defendant was a suspect before the DNA analysis was conducted. This evidence enhanced the probative value of Moeykens' testimony because it created an even higher likelihood that defendant and V.B. were the only possible sources for the DNA mixtures. The prosecutor bolstered Moeykens' testimony with circumstantial evidence to draw reasonable inferences from the entire body of evidence during closing arguments, not merely Moeykens' testimony alone. Therefore, because the prosecutor's statements were conclusions drawn from her analysis of the evidence, they were not improper, and the trial court did not abuse its discretion in denying defendant's objections.
Additionally, we find that the trial court did not abuse its discretion by allowing similar statements from the prosecutor to be heard without intervening ex mero motu. The statements defendant claims were grossly improper are:
There is a hair on the bed sheet that he rapes her on. . . . It's a mixture of him.
It's a mixture of her. And nobody else.
At the scene of the crime at the place that he raped her amid the sheets that she left bloody because of his assault.
The only DNA that comes up in this case is him, her, or a mixture.
. . .
[A]bsent the [sic] DNA isn't proof. The presence of DNA is.
. . .
You know that it was vaginal intercourse, that there was force, and she did not consent. You know who it was based on the DNA evidence in this case.
. . .
Outside [of the condom], her or him.
. . .
The strongest of the DNA of the mixtures was in her bed. And the condom . . . had her DNA on it.
As noted above, Moeykens testified that the DNA sample taken from the hair found in V.B.'s bed was a mixture of at least defendant and V.B. and that it was highly unlikely that anyone else contributed to the DNA mixture. She also testified that the DNA extracted from the interior of the condom could only have come from defendant, and that the DNA taken from the exterior of the condom was a mixture of at least two individuals, of which defendant and V.B. could not be excluded.
Based solely on population statistics, the probability that any individual other than defendant or V.B. produced the DNA found on the exterior of the condom was "1 in 6.49 million [for Caucasians]; for African Americans it [was] 1 in 1.5 million; and for Hispanics it [was] approximately 1 in 14 million." Those probabilities decrease drastically when taking into account the evidence that defendant was a statistical match for the DNA found on the interior of the condom. Therefore, contrary to defendant's argument on appeal, the prosecutor was not misconstruing Moeykens' testimony. Rather, she was drawing her own conclusions from the evidence as a whole. Such closing argument is not improper because she made it on the basis of her analysis of the evidence. Therefore, we find that the prosecutor's statements were not grossly improper to the extent that the trial court abused its discretion by failing to intervene ex mero motu.
We note that defendant attempts to raise an ineffective assistance of counsel claim, as set forth in Strickland v. Washington, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), for failing to object during Moeykens' testimony and for failing to object during closing arguments. However, we conclude that even if defendant had properly raised the claim in his brief, he would, for the foregoing reasons, not have met the Strickland test. Thus, defendant's arguments are without merit.
IV. 404(b) Evidence
Defendant's final argument is that the trial court abused its discretion in admitting evidence of defendant's other acts pursuant to Rule 404(b) and Rule 403. We disagree.
Generally, "[e]vidence of other crimes, wrongs, or acts" committed by the defendant are inadmissible to show action in conformity therewith, but may be admitted to show similarities of motive, intent, or identity, among other things. N.C. Gen. Stat. § 8C-1, Rule 404(b) (2011). The similarities between the crime charged and previous acts do not need to be "unique and bizarre," but "when the State's efforts to show similarities between crimes establish no more than characteristics inherent to most crimes of that type, the State has failed to show . . . that sufficient similarities existed for the purposes of Rule 404(b)." State v. Welch, 193 N.C. App. 186, 190-91, 666 S.E.2d 826, 829 (2008) (internal quotation marks omitted).
Evidence that is otherwise admissible under Rule 404(b) must still be excluded if its probative value is substantially outweighed by its risk of unfair prejudice, such as having the effect of "predispos[ing] the mind of the juror to believe the prisoner is guilty, and thus effectually [] strip[ping] him of the presumption of innocence." N.C. Gen. Stat. § 8C-1, Rule 403 (2011); State v. Jones, 322 N.C. 585, 589, 369 S.E.2d 822, 824 (1988). "We review de novo the legal conclusion that the evidence is, or is not, within the coverage of Rule 404(b). We then review the trial court's Rule 403 determination for abuse of discretion." State v. Beckelheimer, ____N.C. _____, ________, 726 S.E.2d 156, 159 (2012).
Here, the 404(b) evidence was based on testimony from Patricia Knox ("Patricia") and her daughter Barbara Knox Judge ("Barbara"). Defendant made a motion to exclude their testimony, and the trial court conducted voir dire to determine whether their testimony was admissible under Rules 404(b) and 403. During voir dire, Patricia, who was 74 years old at the time of the trial, testified that defendant attacked her in her home on 20 March 2010, one day after V.B. was raped. She and V.B. lived in the same neighborhood. Patricia testified that defendant asked to use her phone. After he used it, defendant asked to use her restroom. When her back was turned, defendant attacked Patricia and they "tussled" until defendant fled. She identified defendant as her attacker in court. Barbara testified that when she went to her mother's home after the attack, she found papers in a folder on the back porch that contained defendant's name and address.
The trial court allowed the testimony to come in to prove "identity, motive or intent." The similarities noted by the trial court between Patricia's attack and the crimes of which defendant was accused were that "both victims were elderly; that the attacks occurred within their homes; that the defendant made requests of each person prior to the attacks, i.e., for [V.B.] to fix him some food; that the attacks were sudden and unexpected; [and] that they occurred within the same or similar proximity."
Our Courts have consistently held that Rule 404(b) is a "rule of inclusion." State v. Coffey, 326 N.C. 268, 278-79, 389 S.E.2d 48, 54 (1990). The Supreme Court has previously recognized "the age range of the alleged victim," temporal proximity, the location of the occurrence, and "how the occurrences were brought about" as valid points of comparison in a 404(b) analysis. See Beckelheimer, __ N.C. at __ , 726 S.E.2d at 159. Here, both V.B. and Patricia were elderly women, they were requested to do something ostensibly distracting immediately before the attacks, and the attacks occurred within one day of each other in the same neighborhood. We find that such similarities were sufficient to create a reasonable inference that defendant committed both the prior and present acts and that the trial court's legal conclusion that this evidence met the requirements of Rule 404(b) was supported by the facts.
Additionally, we find that the trial court did not abuse its discretion in admitting the testimony in light of the Rule 403 balancing test. Here, the trial judge gave instructions which clearly set out the only permissible purposes for which the jury was allowed to consider Patricia's testimony—identity, motive, or intent. "[W]e assume that jurors are people of character and sufficient intelligence to fully understand and comply with the court's instructions." State v. Raye, 73 N.C. App. 273, 275-76, 326 S.E.2d 333, 335 (1985). Therefore, the trial court did not abuse its discretion.
Conclusion
For the foregoing reasons, we find no error.
NO ERROR.
Judges BRYANT and STEELMAN concur.
Report per Rule 30(e).