Opinion
No. COA10-482
Filed 5 April 2011 This case not for publication
Appeal by Kelvin Jerome Rippy ("Defendant") from judgment entered 10 December 2009 by Judge Bradley B. Letts in Rutherford County Superior Court. Heard in the Court of Appeals 26 October 2010.
Attorney General Roy Cooper, by Assistant Attorney General Charles E. Reece, for the State.
Marilyn G. Ozer, for Defendant-appellant.
Rutherford County No. 08 CRS 00110.
Kelvin Jerome Rippy ("Defendant") appeals his conviction of first degree murder on four grounds: (1) that the prosecutor improperly used peremptory challenges to excuse two African-American jurors; (2) that the trial court committed plain error in allowing a physician to testify from medical records; (3) that the trial court erroneously denied Defendant's written request for a jury instruction on "intervening acts"; and (4) that the trial court erroneously allowed a medical expert to testify based upon "personal opinion." We have jurisdiction under N.C. Gen. Stat. §§ 7A-27(b) and 15A-1444(a) (2009). After review, we find no error.
I. Procedural and Factual History
On 7 January 2008, Defendant was indicted for first degree murder of Heather Lynn Lowery, his child's mother. Defendant is African-American. The decedent was Caucasian. Although the trial court granted the State's motion to proceed capitally in this case, on 15 October 2009, the State filed a Notice of Intent Not to Proceed Capitally, and the court entered an order to that effect on 30 October 2009. The case came on for trial on 7 December 2009 before the Honorable Bradley B. Letts.
During jury selection, the State used two of its peremptory challenges to strike two African-American women on the tentative jury panel, but three African-Americans remained unchallenged in the final panel. After the jury was empaneled, the trial court conducted a Batson hearing. The court overruled Defendant's Batson objections. At trial, the State's evidence tended to show the following:
On 3 November 2007, around lunchtime, Heather Lowery and her three-year-old son, "James," arrived at the home of Anita Parker, Defendant's aunt. They were there to allow Defendant and his mother, Debrrah Rippy, to visit with James, who is Defendant's son. While Ms. Rippy played with James, Defendant and Ms. Lowery went into a bedroom. They stayed in the bedroom for thirty minutes to an hour, and during that time groaning was heard coming from the bedroom. James knocked on the door, but found it locked. Ms. Parker knocked on the door and asked if everything was okay, and Defendant responded they were fine.
A pseudonym is used to conceal the identity of the minor involved in this case.
Defendant subsequently came out of the bedroom and told Ms. Rippy to call for help. Ms. Lowery was lying on the floor of the bedroom with a comforter pulled over her head. Her neck was bleeding. Ms. Rippy called 911.
A neighbor, Aguele Watkins, testified that she heard Ms. Parker talking to Defendant asking, "What did you do?" "You did something because Heather's on the floor bleeding." Defendant replied that Ms. Lowery had "messed up [his] life." Ms. Watkins aided Ms. Lowery by applying pressure to the neck wounds. During the time before emergency help arrived, Ms. Lowery never spoke or moved.
Ms. Rippy, Defendant's mother, testified that she had known for about a week prior to the incident that Ms. Lowery was pregnant and that the father of the child was Ms. Lowery's current boyfriend, Jonathan Mitchell, with whom she was living. James had told Ms. Parker that his mother was pregnant and that he was excited to have a sibling.
Officer Cameron Byers of the Forest City Police Department arrived at Ms. Parker's apartment at 12:51 p.m. Upon arrival, he asked Defendant, "[W]hat's your involvement in this?" Defendant responded, "Man, I'm guilty." Officer Byers went inside the apartment, saw Ms. Lowery on the floor, and called for emergency medical services. Corporal Jacob Hoyle and Patrolman Clint Reed found a fixed-blade knife in the bedroom. A subsequent DNA analysis of the blood on the knife showed the blood was Ms. Lowery's. Defendant was arrested and taken to the police station.
Charles May of the Rutherford County EMS was dispatched to the home at 12:53 p.m. When he arrived, he entered the bedroom and saw Ms. Lowery on the floor bleeding with Ms. Watkins applying pressure to Ms. Lowery's neck wounds. He noted puncture wounds to Ms. Lowery's throat and bruising on her neck. Her breathing was labored and her lips and fingers showed "blueness . . . which [wa]s due to a lack of oxygen." He and the other paramedics cleared her airway and inserted a breathing tube into her throat to administer oxygen. She remained unconscious, uncommunicative, and unresponsive as the paramedics transported her to the local hospital. She was then flown to Mission Hospital in Asheville.
At Mission Hospital, Ms. Lowery was admitted and initially treated by Dr. Charles Buechler. Dr. Buechler testified that, when Ms. Lowery arrived, she had six visible stab wounds to her neck, which were treated and stapled closed. Dr. Buechler's personal observations of Ms. Lowery ended after the first two days of her stay. Based on the medical records provided by Mission Hospital, he was allowed to testify as a medical expert as to her course of treatment and condition for her entire stay there. Defense counsel entered no objection to the use of this testimony or the use of these records by Dr. Buechler. Dr. Buechler testified that hospital records showed Ms. Lowery "remained comatose during her hospital stay" and a tracheotomy was performed on her. The records revealed that, during the last two weeks of her stay, Ms. Lowery did not attempt to speak and could not track objects with her eyes. She also displayed "decerberate posturing," a brain stem reflex suggesting brain damage. An MRI confirmed "widespread damage" to her brain. Dr. Buechler testified that patients like Ms. Lowery are in a persistent vegetative state in which they have "no ability to provide care for themselves" and "no awareness."
Based upon his observation of the patient at that time, Dr. Buechler was also asked whether he would have disagreed with a decision to stop artificial hydration and nutrition. Defendant objected to the question and was overruled by the trial court. Dr. Buechler responded, "If it was my family that — if it were my wife or my children, certainly if it was me, I would want my family to make that same decision. But that's a personal family decision."
Ms. Lowery was transferred to Hospice House in Forest City on 21 November 2007, where she was treated by Dr. Larry Hedgepath. The medical records from Hospice House indicated signs that Ms. Lowery was in a deteriorating, persistent vegetative state: her eyes were open but could not follow objects; she did not look toward a person who was speaking; and she had no grip reflex. Ms. Lowery did have some movement which Dr. Hedgepath characterized as reflexive. Dr. Hedgepath testified that "[s]he made no purposeful movements or response at any time she was with us." She experienced some vaginal bleeding, which the records indicated evidenced a miscarriage or bleeding forecasting a miscarriage. On 3 December 2007, Dr. Hedgepath met with Ms. Lowery's family. After this consultation, the family elected to have artificial hydration and nutrition discontinued, and Ms. Lowery passed away on 24 December 2007.
An autopsy stated the cause of death was "complications resulting from anoxic brain injury or lack of oxygen to the brain." Complications included pneumonia and dehydration. Dr. Candace Shoppe, the forensic pathologist who examined Ms. Lowery, testified that these injuries were consistent with someone having been severely choked or strangled. Dr. Shoppe's examination of Ms. Lowery's unborn child showed that it had predeceased her.
Defendant made a statement to Detective Tommy Turner of the Forest City Police Department that he had strangled and stabbed Ms. Lowery. Defendant had asked Ms. Lowery for a visit with his son. When Ms. Lowery and their son arrived at Ms. Parker's house, Defendant asked to meet with Ms. Lowery in the bedroom. He entered the bedroom with a steak knife in his pocket. In the bedroom, he asked for a reconciliation, which Ms. Lowery refused. In addition, he asked for full custody of their child, which she also refused. Defendant then strangled her multiple times, forced her to the floor, took out the knife, and stabbed her in the throat.
Defendant requested that the judge instruct the jury that "[I]f an intervening act was the sole cause of the victim's death, then the jury is permitted to find that the assault by the defendant was not the proximate cause of the victim's death." The State objected to the proposed instruction, and the judge denied Defendant's request.
The jury convicted Defendant of one count of first degree murder, and Defendant was sentenced to life imprisonment without parole.
II. Analysis and Standard of Review
Defendant's first argument is that the prosecutor's peremptory challenges to excuse Aretha Wright and Patricia Robinson, African-American prospective jurors, were the product of purposeful racial discrimination which violated his rights to equal protection of the law under Batson v. Kentucky, 476 U.S. 79, 90 L.Ed. 69 (1986). In its ruling, the trial court concluded Defendant had not met his ultimate burden of proving purposeful racial discrimination. We review whether the trial court's findings were clearly erroneous. State v. Chapman, 359 N.C. 328, 339, 611 S.E.2d 794, 806 (2005).
Our Supreme Court, in State v. Chapman, articulated the law which a trial court must follow in analyzing a Batson claim:
To establish a viable Batson challenge, a defendant must first show that he is a member of a "cognizable racial group" and that the prosecutor has exercised peremptory challenges to remove members of the defendant's race from the jury panel. If such a showing is made, "the burden shifts to the prosecutor to articulate a race-neutral explanation for striking the jurors in question." To prevail, "the defendant must show that these facts and any other relevant circumstances raise an inference that the prosecutor used that practice to exclude the [prospective jurors] . . . on account of their race." In making this showing, a defendant is "entitled to rely on the fact" that peremptory challenges "permit [] `those to discriminate who are of a mind to discriminate.'" Moreover, "relevant circumstances" may include, but are not limited to, the race of the defendant and the victim(s), the race of key witnesses, a "`pattern' of strikes" against African-American jurors, and a "prosecutor's questions and statements during voir dire examination and in exercising his challenges." "The trial court must [then] determine whether the defendant has carried his burden of proving purposeful discrimination."
Id. at 338-39, 611 S.E.2d at 805-06 (internal citations omitted).
Because Defendant is an African-American and Ms. Wright and Ms. Robinson are two African-American prospective jurors who were peremptorily challenged, it is clear from the record that Defendant made an initial showing sufficient to shift the burden to the prosecutor to articulate a race-neutral explanation for striking the jurors in question. The prosecutor explained that he excluded Ms. Wright from the jury because of her traffic record and because he believed that she may be related to an individual in the community known to have multiple family members who were unhappy with the police department. The prosecutor explained that he excluded Ms. Robinson based upon her answers that she was distantly related to Defendant and knew his mother and aunt, who were potential witnesses in the case. Facially, both rationales are within the commonly accepted reasons a prosecutor may challenge a prospective juror.
Once a race-neutral rationale is forwarded, the ultimate burden shifts to Defendant to show the initial facts and "any other relevant circumstances raise an inference that the prosecutor used that practice to exclude the prospective jurors on account of their race." Id. at 339, 611 S.E.2d at 805.
The record in this case indicated that Ms. Wright and Ms. Robinson were two of six prospective jurors peremptorily challenged by the State. Three African-Americans were selected to serve on Defendant's jury, and these three African-American jurors were not challenged peremptorily by the State. Our Supreme Court has held that, when a high percentage of African-American prospective jurors are not peremptorily challenged, this factor tends to "refute an allegation of discrimination." State v. Taylor, 362 N.C. 514, 529-30, 669 S.E.2d 239, 255 (2008).
Our reading of the transcript discloses that the prosecutor did not ask either Ms. Wright or Ms. Robinson any questions significantly different from those of the other witnesses. Finally, we note that although Defendant is black and the deceased was white, there were a number of witnesses called by the State who are African-American. See State v. Gregory, 340 N.C. 365, 398, 459 S.E.2d 638, 657 (1995) ("The State's primary witness against defendant was also a black male, a fact which tends to refute defendant's arguments that the prosecution was attempting to remove blacks from the jury. . . .").
The number of African-American jurors on the jury, the facially neutral questions asked of all jurors, the fact that jurors of other races were also peremptorily excluded from the jury, and the fact that African-Americans played a key role in the prosecution all gravitate against an inference of purposeful discrimination. The transcript does not show that there has been a repeated use of peremptory challenges against African-American prospective jurors, as to establish a pattern of strikes against African-Americans in the venire. After a thorough review of the jury selection process and careful examination of all relevant facts and circumstances, we cannot say that the trial court's findings were "clearly erroneous."
Defendant's second contention is that the trial court plainly erred in allowing Dr. Buechler to testify to the course of treatment Ms. Lowery received while she was a patient at Mission Hospital in Asheville. Defendant argues that, since Dr. Buechler only personally treated Ms. Lowery for the initial two days of her stay in the hospital, he may not testify regarding treatment he did not personally give. Dr. Buechler testified to her entire stay at Mission Hospital, relying on medical records for the time he was not personally treating her. Defendant did not raise this issue at trial, and so we review this argument for plain error. N.C. R. App. P. 10(a)(4).
Our Supreme Court has warned that the plain error rule is to be "applied cautiously and only in the exceptional case where, after reviewing the entire record, it can be said the claimed error is fundamental error, something so basic, so prejudicial, so lacking in its elements that justice cannot have been done. . . ." State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983) (citations and internal quotation marks omitted). For an appellate court to find plain error, it must first be convinced that, "absent the error the jury would have reached a different verdict." State v. Reid, 322 N.C. 309, 313, 367 S.E.2d 672, 674 (1988). The burden of proving plain error falls on Defendant. State v. Bishop, 346 N.C. 365, 385, 488 S.E.2d 769, 779 (1997). Plain error does not exist where even otherwise inadmissible evidence is admitted by the State in order to answer the previous testimony of Defendant. State v. Wilkerson, 363 N.C. 382, 407, 683 S.E.2d 174, 190 (2009), cert. denied, U.S., 176 L.Ed.2d 734 (2010).
Our Court has long held that medical test results that are routinely kept in the ordinary course of a business are business records and are thus admissible under the hearsay exceptions contained in Rule 803(6) of the North Carolina Rules of Evidence. N.C. Gen. Stat. § 8C-1, Rule 803(6) (2009); State v. Miller, 80 N.C. App. 425, 429, 342 S.E.2d 553, 556 (1986). Melendez-Diaz v. Massachusetts, a case relied on by Defendant, specifically addresses this issue and concludes that medical reports for treatment purposes would not be considered "testimonial" for purposes of asserting a confrontation clause objection. U.S., 174 L.E.2d 314, 322 n. 2 (2009). The trial court did not commit any error in admitting this evidence, much less plain error. This assignment of error is overruled.
Defendant's third contention is that the trial court erred in refusing to give a requested instruction on an intervening act as the sole cause of death. Defendant requested that the trial court give the following written instruction to the jury: "If an intervening act was the sole cause of the victim's death, then the jury is permitted to find that the assault by the defendant was not the proximate cause of the victim's death." The State objected to the proposed instruction, and the court agreed, refusing to give the instruction. The matter is properly preserved for appeal and we review the denial of the proposed jury instruction de novo. See State v. Osorio, 196 N.C. App. 458, 466, 675 S.E.2d 144, 149 (2009). Defendant contends the jury could have found the family's decision to discontinue artificial hydration and nutrition was the sole intervening cause of death. We disagree.
This Court's decision in State v. Garcia-Lorenzo, 110 N.C. App. 319, 430 S.E.2d 290 (1993) is analogous to the present case. Mr. Garcia-Lorenzo was driving his car at between 60 and 70 miles per hour when it hit Coy Maddry, a pedestrian, sending Mr. Maddry three to four car lengths down the road. Id. at 322, 430 S.E.2d at 291-92. Mr. Maddry suffered a disruption to the attachment between his head and upper spinal column. Id. at 323, 430 S.E.2d at 292. The accident left Mr. Maddry alive, but in a vegetative state. Id. At trial, a medical examiner stated that Mr. Maddry could have remained alive for several years on a respirator, and his physician testified that some observers felt Mr. Maddry was responding to input. Id. at 333, 430 S.E.2d at 298. The following sequence of events parallels the events in the present case:
Over a six-day period, Baker conducted tests on Maddry. These tests showed that Maddry had sustained an injury very high in the spinal column such that the attachment between the head and the upper spinal column had been disrupted. Baker testified that this injury was of such a high level that it would impede any further movement below the head, as well as any further breathing capabilities. Baker discussed the extent of Maddry's injury with Maddry's family, with members of the medical staff, and with the neurosurgery staff, and on 7 January 1991, a decision was reached that Maddry's situation was not salvageable. At this time, the ventilatory support of the breathing machine was removed with oxygen still being applied in the event Maddry started breathing on his own. In about twenty minutes, Maddry's heart failed, and he died.
Id. at 333-34, 430 S.E.2d at 298.
The defendant in Garcia-Lorenzo moved to dismiss the state's case for lack of sufficient evidence based upon the theory that the sole cause of death was withdrawal of life support. 110 N.C. App. at 333, 430 S.E.2d at 298. The Court held that the defendant's act was the proximate cause of Maddry's death, and thus the trial court did not err in denying the defendant's motion to dismiss.
Here, Defendant asked the trial court to give the jury an instruction that it could find that the withdrawal of life support was the sole proximate cause of death. Defendant's legal authority for this comes from State v. Holsclaw, 42 N.C. App. 696, 257 S.E.2d 650 (1979). Our reading of this case, however, is that it appears to criticize the trial court for giving an instruction similar to the instruction which was requested herein. Id. at 699, 257 S.E.2d at 652 ("The trial judge's instruction greatly exceeded this position of our Courts to the defendant's benefit.").
We find no error in the trial court's decision. Prior to Defendant's act, Ms. Lowery was a healthy, pregnant adult. After the attack, she was in a vegetative state, unconscious and in need of hydration and nutrition supplied artificially. We do not find sufficient evidence to submit the intervening cause instruction to the jury, because there is no evidence or conflict in the evidence which could support the idea that discontinuing artificial hydration and nutrition was the sole cause of Ms. Lowery's death. The evidence is clear that Defendant's attack was the proximate cause, and any actions by physicians cannot supply a defense of sole intervening cause. Id. at 699, 257 S.E.2d at 652-653 ("It is sufficient that the defendant's act . . . was a contributing factor which in combination with the subsequent acts of the doctor in treatment proximately caused the death.").
The final issue upon which Defendant seeks a new trial is the testimony by Dr. Buechler of his personal opinion with regard to the family's decision to withhold artificial nutrition and hydration. While we may be inclined to agree with Defendant on the relevance of Dr. Buechler's personal opinion to an issue at trial in this case, Defendant did not object to the personal opinion testimony itself. Defendant objected only to the question about whether Dr. Buechler would agree with the decision to terminate artificial hydration and nutrition, which was not a question seeking a personal opinion. When Dr. Buechler testified to his personal opinion, Defendant did not object or move to strike the answer. Defendant's brief does not seek a review of the issue for plain error. The record reads as follows:
Q. Dr. Hedgepath, the hospice physician who testified yesterday afternoon, following consultation with Heather's family, they made the decision, I think, in early December, around the 3rd of December, to stop hydration and nutrition for Heather Lowery and ultimately she passed away on November [sic] the 24th, 2007. Would you disagree with that decision?
MR. SPARROW: Objection.
THE COURT: Overruled. You may answer.
A. Okay. No. If it was my family that — if it was my wife or my children, certainly if it was me, I would want my family to make that same decision. But that's a personal family decision.
Q. Medically would it be an inappropriate decision?
A. I don't believe so. The — again, it's a gray area, because we are talking about quality of life, is what we are talking about. . . . Knowing that nothing is going change, it — it — it is a very, again, in my opinion and this is a personal opinion, it's a very humane and reasonable decision to make. And in this case, especially because of the amount of time that went by — this wasn't a decision, well, we are going to withdraw life support on day two. It was a month later or several, you know — almost a month later where clearly the patient had clearly shown to the family and the treating team that there was no neurologic improvement, that nothing was getting better. And then it's a family decision on what is — what would Ms. Lowery want us to do if she could stand up here and tell us, us the family, what would she want us to do knowing that this is the situation that — that she is in.
So, again, I personally would agree with that decision. But if the family had decided differently, I would not disagree with that, because it's a family decision. It's not mine. It's theirs.
Defendant did not object to Dr. Buechler's statements. We agree with the State that this issue was not properly preserved for appeal and dismiss this final assignment of error.
III. Conclusion
For the reasons stated above, we find Defendant received a fair trial.
No error.
Judges McGEE and BEASLEY concur.
Report per Rule 30(e).