Attorney General Michael F. Easley, by Special Deputy Attorney
General Robert J. Blum, for the State.
Nancy R. Gaines for defendant-appellant.
WALKER, Judge.
Defendant was convicted of first degree murder upon
perpetration of a felony, i.e. felonius child abuse, and was
sentenced to life imprisonment without parole. The State's
evidence tended to show the following:
The victim, Budde Lee Clark, born on 27 November 1990, was the
son of Warren LeGrande Clark, a/k/a Lee Clark, and Pam Bradshaw,
who were not married. In April 1994, Lee Clark married the
defendant, Elizabeth Magdelene Clark, a/k/a Robin Gosnell. Lee
Clark, the defendant, and her two sons from a previous marriage,
Christian Pittman and Sammy Bringle, lived together. Lee Clark
obtained custody of Budde in March 1995, and Budde lived in their
home from then until the time of his death on 31 January 1997.
Lee Clark testified that during this time he occasionally sawBudde with injuries to his nose, arm, foot, face and b
ackside.
Clark testified that defendant always had an explanation as to how
the injuries occurred. Further, Clark testified that the day
before the victim died, he observed defendant whipping Budde with
a belt and he took the belt away from her. However, the defendant
retrieved the belt and hit Budde several more times. Clark then
saw red marks and bruises on Budde's legs.
The following morning, 31 January 1997, as Clark was leaving
for work, he noticed a bruise on Budde's forehead that was not
there the night before. Around 9 a.m., Clark called the defendant
and asked her what happened to Budde's head. She explained that
Budde had been injured while “playing Power Rangers.”
Later that day, Budde was found in the bathtub lying on his
side in approximately eight inches of water. Defendant's son,
Sammy Bringle, found Budde, lifted him out of the tub, and called
for his mother. Defendant attempted CPR and Sammy called 911.
Emergency Medical Services was unable to revive Budde and he was
pronounced dead on arrival at the Rowan Regional Medical Center.
Clark further testified that he saw Budde's body at the hospital
and saw “big bruises on his head,” and that some of the bruises were
not there when he left for work that morning.
Dr. Karen Chancellor, associate chief medical examiner for
North Carolina, performed the autopsy and testified that a “blunt
force injury of the head” was the cause of death. Dr. Chancelloridentified approximately thirteen discrete injuries to the head,but c
ould not identify which blow or blows to the head would have
been fatal. She testified there were numerous injuries present on
every part of his body, as well as evidence of blunt force trauma
to the head, back, chest, arms, and legs. Also, there was evidence
of two healing rib fractures. She also testified that Budde's
injuries were consistent with battered child syndrome. Dr.
Chancellor used autopsy photographs and slides to illustrate her
testimony. Some of the slides were projected onto a screen for the
jury to view.
Pam Bradshaw testified that prior to living with defendant,
Budde was a very outgoing and rambunctious child, but that she had
not observed him jumping off bunk beds or injuring his head jumping
off furniture. She also testified that Budde was more quiet and
timid after he began living with defendant and Lee Clark.
Dr. Marcia Herman-Giddens, an expert in the investigation and
analysis of the circumstances of child fatalities, testified that
a month before Lee Clark and defendant obtained custody of Budde,
he was in the 75th percentile on a children's growth chart, and at
the time of his death he had dropped to the 5th percentile. Her
examination of the autopsy report revealed “muscle wasting,” whereby
a child suffers from malnutrition to the point where his muscle
tissue begins to deteriorate. Dr. Herman-Giddens further testified
that Budde evidenced a “failure to thrive,” which is common in
abusive and neglectful situations.
Phyllis Reep, a registered nurse, observed Budde's body in the
emergency room. She testified there were numerous bruises andabrasions on his head and body and a large raised bluish hematoma
near the center of his forehead. Photographs taken of Budde in the
emergency room were used by Ms. Reep to illustrate her testimony.
Lisa Grass, the defendant's sister-in-law, testified how the
defendant treated Budde. She stated that the defendant “talked
hateful” to Budde “most of the time.” Jaime Pittman, the
defendant's daughter-in-law, also testified about defendant's
treatment of Budde. Ms. Pittman lived with defendant and Lee Clark
for a period of time and witnessed the defendant striking Budde
with her hands and fist and kicking him. Additionally, she
observed bruises on Budde and his being punished frequently by
defendant. In her opinion, the reason he was treated so harshly
was because he was not the defendant's biological son. Ms. Pittman
also testified that she contacted the Department of Social Services
about this, but that she did not personally intervene when the
defendant was hitting Budde out of her fear of the defendant.
The defendant testified that Budde was a very active and
rambunctious child who often injured himself while playing. She
related how Budde would occasionally injure his head by “flipping”
off of the bunk beds and that all of the bruises on his body were
the result of accidents. She admitted that she spanked Budde with
a belt, but that she did not spank him on the night prior to his
death. Further, on the day of Budde's death, she ran water for him
to take a bath and then went to use the phone and check her phone
messages. She stated she was not in the bathroom when Budde got in
the tub. When her son Sammy came and told her that something waswrong with Budde, she ran to the bathroom and discovered Budde's
body laying beside the bathtub. While Sammy called 911, she
attempted to clear his air passages since she thought Budde had
drowned. Defendant denied hurting or injuring Budde in any way
that would have caused his death. Prior to his bath that morning,
Budde acted like he did not feel well.
Christian Pittman, defendant's son, testified that Budde was
very rambunctious and suffered bruises from climbing on bunk beds
and jumping on a trampoline. Pittman testified he never observed
defendant slap Budde's head or kick him, but that she did spank
Budde for breaking her rules.
Defendant first argues the State erred when it failed to
correct false witness testimony offered by Dr. Chancellor when it
contrasted with her written autopsy report. Dr. Chancellor's
autopsy report stated there was “no evidence of uncal, cingulate or
tonsillar herniation.” However, defendant claims Dr. Chancellor's
testimony described the victim's cause of death as “tonsillar
herniation,” although she never used the term in her testimony.
A prosecutor's presentation of known false evidence, allowed
to go uncorrected, is a violation of a defendant's right to due
process. Napue v. Illinois, 360 U.S. 264, 269, 3 L. Ed. 2d 1217,
1221-22 (1959); State v. Williams, 341 N.C. 1, 16, 459 S.E.2d 208,
217 (1995). The State has a duty to correct any false evidence
which in any reasonable likelihood could affect the jury's
decision. Id. However, if the evidence is inconsistent orcontradictory, rather than a knowing falsehood, such contradictions
in the State's evidence are for the jury to consider and resolve.
State v. Edwards, 89 N.C. App. 529, 531, 366 S.E.2d 520, 522
(1988); State v. Joyce, 104 N.C. App. 558, 565, 410 S.E.2d 516,
520 (1991), cert. denied, 331 N.C. 120, 414 S.E.2d 764 (1992).
Dr. Chancellor testified that the cause of Budde's death was
blunt force injury of the head. She described the specific
mechanism of death, although she did not use the same terms as
contained in her autopsy report's finding of no “tonsillar
herniation.” Defendant did not object to or move to strike this
testimony. Any contradiction in her testimony and her autopsy
report was to be considered and resolved by the jury and this
argument is without merit.
Next, defendant argues the trial court erred in failing to
conduct an inquiry into Juror #7's possible contact with a member
of the victim's family. During the morning recess after Pam
Bradshaw's testimony, the following exchange took place outside the
presence of the other jurors:
THE COURT: Bill. Rick. Nancy [first
names of counsel for
State and defendant].
This is Mr. Childers?
JUROR # 7: Yes, sir.
THE COURT: If you'll speak up so she
can get it.
JUROR # 7: Okay. I just found out
that I go to church with
[Pam Bradshaw's] uncleand I didn't know if that
was --
THE COURT: Thanks for telling me.
But that doesn't
disqualify you.
JUROR # 7: Okay.
THE COURT: Thanks for letting us
know.
JUROR # 7: All right. I just didn't
want --
THE COURT: I appreciate it.
JUROR # 7: -- you to find out later.
THE COURT: That's right. No
problem. Thank you, sir.
JUROR # 7: Yes, sir.
The trial court did not conduct any further inquiry. Previously
during the jury voir dire, Juror #7 stated that he attended high
school with Pam Bradshaw 12 years earlier.
Whether alleged misconduct has affected the impartiality of a
particular juror is a discretionary determination for the trial
court. See State v. Rutherford, 70 N.C. App. 674, 677, 320 S.E.2d
916, 919 (1984), disc. review denied, 313 N.C. 335, 327 S.E.2d 897
(1985). Misconduct must be determined by the facts and
circumstances of each case. Id. The trial court has the
responsibility to make such investigations as may be appropriate,
including examination of jurors when warranted, to determine
whether misconduct has occurred and, if so, whether such conducthas resulted in prejudice to the defendant. See State v. Williams,
330 N.C. 579, 583, 411 S.E.2d 814, 817 (1992).
Here, there was no allegation of misconduct. Juror #7 did not
state that any contact had taken place in violation of the trial
court's instructions. The only information brought to the trial
court's attention was that Juror #7 attended church with Pam
Bradshaw's uncle.
While the better practice is for the trial court to conduct a
full voir dire hearing to ascertain the particular circumstances of
the situation, see State v. Selph, 33 N.C. App. 157, 161, 234
S.E.2d 453, 456 (1977), under the circumstances of this case, the
trial court did not abuse its discretion in failing to inquire
further as to whether Juror #7 may have violated its instructions.
We note that the defendant did not object to the trial court's
ruling or its failure to inquire further into the matter.
Next, defendant contends the trial court erred in admitting
photographs and slides which were not accurate representations of
the victim at the time of his death, were duplicative in nature,
and were projected onto a screen “many times life size.” Defendant
relies on State v. Hennis, 323 N.C. 279, 372 S.E.2d 523 (1988), for
the proposition that the trial court erred in allowing all of these
photographs into evidence.
Photographs of the victim's body may be used to illustrate
testimony as to the cause of death. State v. Cummings, 332 N.C.
487, 503, 422 S.E.2d 692, 701 (1992). Photographs of a homicidevictim may be introduced even if they are gory, gruesome, horrible
or revolting, so long as they are used for illustrative purposes
and so long as their excessive or repetitious use is not aimed
solely at arousing the passions of the jury. State v. Murphy, 321
N.C. 738, 741, 365 S.E.2d 615, 617 (1988). Whether the use of
photographic evidence is more probative than prejudicial and what
constitutes an excessive number of photographs in the light of the
illustrative value of each is within the trial court's discretion
under a totality of the circumstances analysis. See Hennis, 323
N.C. at 285, 372 S.E.2d at 526. Abuse of discretion results where
the trial court's ruling is manifestly unsupported by reason or is
so arbitrary that it could not have been the result of a reasoned
decision. Id. Additionally:
The test for excess is not formulaic: there is
no bright line indicating at what point the
number of crime scene or autopsy photographs
becomes too great. The trial court's task is
rather to examine both the content and the
manner in which photographic evidence is used
and to scrutinize the totality of
circumstances composing that presentation.
What a photograph depicts, its level of detail
and scale, whether it is color or black and
white, a slide or a print, where and how it is
projected or presented, the scope and clarity
of the testimony it accompanies--these are all
factors the trial court must examine in
determining the illustrative value of
photographic evidence and in weighing its use
by the state against its tendency to prejudice
the jury.
Hennis, 323 N.C. at 285, 372 S.E.2d at 527 (internal citations
omitted). Our Supreme Court has “rarely held the use of
photographic evidence to be unfairly prejudicial . . . ." State v.Kyle, 333 N.C. 687, 702, 430 S.E.2d 412, 420-21 (1993)(qu
oting
State v. Robinson, 327 N.C. 346, 357, 395 S.E.2d 402, 409 (1990)).
In Hennis, the defendant was convicted of three counts of
first degree murder. The trial court admitted thirty-five autopsy
and crime scene photographs and the duplicate slides were projected
onto a screen just above the defendant's head. Hennis, 323 N.C. at
282, 372 S.E.2d at 525. Defendant stipulated to the victims' cause
of death. Id. at 283, 372 S.E.2d at 526. The thirty-five 8x10
photographs were distributed to the jury, one at a time, and were
unaccompanied without further testimony. Id. Many slides with
repetitive content were admitted. Id. at 286, 372 S.E.2d at 527.
Our Supreme Court held that the trial court prejudicially erred in
admitting the photographs and slides. Id. at 287, 372 S.E.2d at
528.
The extent and cause of Budde's numerous injuries, as well as
his cause of death, were directly at issue and not stipulated to by
the defendant. To establish child abuse and murder, the State had
the burden of proving that these injuries were inflicted by
defendant and were not the result of accidents. The trial court
conducted a voir dire examination of the photographs and slides
before they were admitted and screened the photographs and slides
for repetition, as did Dr. Chancellor. Approximately five were
removed for repetitive content. Twenty slides were projected onto
a screen which the record reveals was away from the defendant. Dr.Chancellor's testimony focused on the severity and timing of each
of the numerous head and body injuries inflicted upon Budde.
Additionally, she testified that the photographs and slides were
accurate portrayals of Budde's body at the time she conducted the
autopsy, which was the morning after Budde died, and that the
photographs and slides would be helpful in illustrating her
testimony. The trial court gave limiting instructions that the
photographs and slides were to be used only for illustrating and
explaining the testimony of witnesses. None of these photographs
were distributed to the jury. Our review of the photographs and
slides confirms that the trial court did not err in admitting them
into evidence.
Next, defendant argues the trial court erred in failing to
offer her an opportunity to poll the jury after the guilty verdicts
were entered and in denying her motion to poll the jury the next
morning.
Under N.C. Gen. Stat. § 15A-1238, “Upon motion of any party
made after a verdict has been returned and before the jury has
dispersed, the jury must be polled.” N.C. Gen. Stat. § 15A-1238
(1999). In State v. Black, 328 N.C. 191, 400 S.E.2d 398 (1991),
our Supreme Court held that the defendant waived his right to poll
the jury, where the jury returned guilty verdicts and was given a
thirty-minute recess and instructed not to discuss the case among
themselves or with any other persons. The defendant did not move
to poll the jury prior to the recess. Id. at 197, 400 S.E.2d at
402. The trial court denied the motion since the motion was nottimely. Our Supreme Court, in holding that the jury had been
“dispersed” within the meaning of N.C. Gen. Stat. § 15A-1238, stated
that “once a juror leaves the courtroom after the verdict is
returned and goes into the streets, despite her best efforts to
shield herself, she still can be affected by improper outside
influences.” Id. at 198, 400 S.E.2d at 402.
Here, the jury returned its verdict at approximately 5:10 p.m.
on 5 August 1998. Defendant did not request that the jury be
polled. The trial court excused the jury for the day with
instructions that the jurors refrain from discussing the case with
anyone. The following morning, defendant requested a polling of
the jury, which the trial court denied. Finding Black controlling,
defendant's assignment of error is without merit.
Next, the defendant contends the trial court erred in denying
defendant's request for a jury instruction on the issue of
accident.
In State v. Willoughby, 58 N.C. App. 746, 294 S.E.2d 407,
disc. review denied, 307 N.C. 129, 297 S.E.2d 403 (1982), this
Court held that jury instructions on accident were not required
where the defendant's version of the story would, if believed by
the jury, have resulted in his being found not guilty of second
degree murder. In Willoughby, the defendant and the victim were
swimming together and the victim died of drowning. Id. at 747, 294
S.E.2d at 408. The defendant was convicted of second degreemurder, but argued that he did not touch the victim and was
entitled to a jury instruction on accident. Id. This Court held:
We do not believe the court should have
charged on accident. If [the victim] died as
a result of an accidental drowning, it was an
accident with which the defendant had nothing
to do. The jury accepted the version of the
incident in accordance with the State's
evidence. This evidence showed the defendant
committed murder. If the jury had accepted
the defendant's version of the event, the jury
should have found the defendant not guilty
under the charge given to them by the court.
It was not necessary for the court to charge
on accident.
Id. at 748, 294 S.E.2d at 408.
The defendant argued that Budde was a rambunctious child who
often injured himself through roughhousing and “flipping” off of
bunk beds, and that all of his bruises and injuries were
accidental. If the jury believed defendant's argument, then she
would have been acquitted of the charges.
Furthermore, in its instruction on second degree murder, the
trial court charged the jury that the State must prove beyond a
reasonable doubt that Budde's injuries were “inflicted
intentionally and not by accident or misadventure.”
Based upon Willoughby and the jury instructions for second
degree murder, the trial court did not err in denying defendant's
request for an instruction on accident.
Next, defendant argues the trial court erred in denying
defendant's motion to dismiss at the close of the State's evidence
and again at the close of all evidence. On a defendant's motion to dismiss for insufficiency of the
evidence, the trial court must consider “whether there is
substantial evidence of each essential element of the offense[s]
charged, or of a lesser included offense of that charged.” State
v. Robbins, 309 N.C. 771, 774, 309 S.E.2d 188, 190 (1983).
“Substantial evidence is such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.” State v.
Scott, 323 N.C. 350, 353, 372 S.E.2d 572, 575 (1988). The evidence
must be considered in the light most favorable to the State, and
the State is entitled to every reasonable inference. State v.
Wright, 127 N.C. App. 592, 596-97, 492 S.E.2d 365, 368 (1997),
disc. review denied, 347 N.C. 584, 502 S.E.2d 616 (1998). Further,
if the trial court determines that a reasonable inference of the
defendant's guilt may be drawn from the evidence, it must deny the
defendant's motion even though the evidence may also support
reasonable inferences of the defendant's innocence. Id. at 597,
492 S.E.2d at 368.
Here, the State's evidence showed that Budde was a battered
child and died as a result of injuries inflicted by the defendant.
Although the State's case centered around circumstantial evidence,
taken in the light most favorable to the State, it was sufficient
to withstand the defendant's motions to dismiss.
Next, defendant argues the trial court erred in admitting
testimony of prior bad acts of the defendant regarding her
treatment of Budde. Defendant contends the testimony concerningher discipline of Budde, the manner in which she spoke to Budde,
along with testimony describing defendant as a “pushy person,” was
improperly admitted.
Character evidence may be admissible for the purpose of
showing motive, opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake, entrapment or accident. N.C. Gen.
Stat. § 8C-1, Rule 404(b)(1999). The list of permissible purposes
is not exclusive, and such evidence is admissible as long as it is
relevant to any fact or issue other than the defendant's propensity
to commit the crime. See State v. Hipps, 348 N.C. 377, 404, 501
S.E.2d 625, 641 (1998), cert. denied, 525 U.S. 1180, 143 L. Ed. 2d
114 (1999). Even if admissible under Rule 404(b), the probative
value of evidence must still outweigh the danger of undue prejudice
to the defendant to be admissible under Rule 403. See State v.
Everhardt, 96 N.C. App. 1, 18, 384 S.E.2d 562, 572 (1989),
affirmed, 326 N.C. 777, 392 S.E.2d 391 (1990). The determination
to exclude evidence on these grounds is left to the sound
discretion of the trial court. See State v. Anderson, 350 N.C.
152, 175, 513 S.E.2d 296, 310, cert. denied, __ U.S. __, 145 L. Ed.
2d 326 (1999). “A trial court may be reversed for abuse of
discretion only upon a showing that its ruling was manifestly
unsupported by reason and could not have been the result of a
reasoned decision.” State v. Riddick, 315 N.C. 749, 756, 340
S.E.2d 55, 59 (1986); State v. Mickey, 347 N.C. 508, 518, 495S.E.2d 669, 676 (citation omitted), cert. denied, 525 U.S. 853,
142
L. Ed. 2d 106 (1998). Our courts have consistently held that past
incidents of mistreatment are admissible to show intent in a child
abuse case. See State v. Hitchcock, 75 N.C. App. 65, 69-70, 330
S.E.2d 237, 240, disc. review denied, 314 N.C. 334, 333 S.E.2d 493
(1985); State v. Vega, 40 N.C. App. 326, 331, 253 S.E.2d 94, 97,
disc. review denied, 297 N.C. 457, 256 S.E.2d 809, cert. denied,
444 U.S. 968, 62 L. Ed. 2d 382 (1979).
Here, since the defendant was charged with felony child abuse,
her treatment of Budde was at issue and thus relevant. See State
v. West, 103 N.C. App. 1, 9-10, 404 S.E.2d 191, 197-98
(1991)(stating that evidence of the way defendant had treated the
child in the past was relevant where defendant was convicted of
involuntary manslaughter and non-felonious child abuse). The
defendant has failed to establish that the trial court's decision
to admit this evidence was manifestly unsupported by reason and
thus her assignment of error is overruled.
We have carefully examined defendant's remaining assignment of
error and find it to be without merit. In sum, defendant received
a fair trial free from prejudicial error.
No error.
Judges LEWIS and MARTIN concur.
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