Appeal by defendant from judgments dated 7 April 1999 by Judge
Steve A. Balog in Cleveland County Superior Court. Heard in the
Court of Appeals 11 October 2000.
Attorney General Michael F. Easley, by Assistant Attorney
General John F. Maddrey, for the State.
Julian B. Wray for defendant-appellant.
GREENE, Judge.
Travis K. McCord AKA Shawn Lattimore (Defendant) appeals
judgments finding him guilty of first-degree murder, first-degree
rape, first-degree kidnapping, robbery with a firearm, and first-
degree burglary.
Jury selection
The record shows Defendant is black and the victim was white.
The initial prospective panel of jurors to be questioned during
voir
dire consisted of ten white jurors and two black jurors. The two
black jurors on the panel were Loretta Clemmons (Clemmons) and
Vernon Pressley (Pressley). Subsequent to its questioning of thepanel, the State excused Clemmons and Pressley. Defendant objected
to the State excusing these two jurors on the ground “[t]here is no
legitimate reason for dismissal by the State of the two blacks on
the jury except to try to get all white jurors to sit and hear this
matter.” Prior to determining whether Defendant had stated a
prima
facie case of intentional discrimination under
Batson v. Kentucky,
476 U.S. 79, 90 L. Ed. 2d 69 (1986), the trial court allowed the
State to argue legitimate non-discriminatory reasons existed for
excusing these jurors. The State argued it excused Pressley because
he did not own his own home, he had not lived in his residence for
more than five years, and he knew a co-defendant. Also, the State
argued it excused Clemmons because she knew a co-defendant and she
previously had been charged with aiding and abetting a murder. The
trial court then found:
[T]here is not a sufficient pattern shown at
this time to indicate that [Pressley and
Clemmons] were excluded and excused for any
improper purposes, and that therefore, although
the State is not required at this point to state
reasons why the peremptory challenge was
exercised as to each, I do find that the stated
reasons by the [State] were . . . legitimate
grounds to exercise peremptory challenge not
related to race.
The trial court subsequently denied Defendant's
Batson motion and
the parties continued to question additional prospective jurors.
Later during
voir dire, the State excused two black jurors,
Itaska White (White) and Patricia Hartgrove (Hartgrove). Defendant
objected to the State excusing these jurors, and the trial courtnoted the objection and indicated it would allow Defendant to make
an argument regarding the objection at a later point in the
proceedings. The parties, therefore, continued with
voir dire.
When the
voir dire proceedings were complete, the trial court
allowed Defendant to raise his objection to the State excusing White
and Hartgrove. Defendant argued these jurors were excused “for no
apparent reason, other than . . . that they were black.” Defendant
argued the State had exhibited “a pattern [of] taking all . . .
blacks off of the jury.” The trial court overruled Defendant'sobjection, finding there had not been “any pattern of ra[cial]
discrimination in the exercise of peremptory challenge by the
[State].” The trial court noted, regarding the racial composition
of the jury, that the jury had eleven white members and one black
member. The trial court also noted that one other black juror had
been in the jury pool, but that juror was excused for cause.
Subsequent to the trial court's ruling, Defendant asked the trial
court to “make inquiry as required by
Batson” regarding the State's
use of its peremptory challenges. In response to Defendant's
request, the trial court stated: “I do not find that there has been
any . . . prima facie showing of any pattern of racial
discrimination” by the State.
Trial
The State presented evidence at trial that on 8 February 1997,
Katina Lankford (Lankford) and Amy Sigmon (Sigmon) rented a room at
the Governors Inn, a motel located near Shelby, North Carolina.
Lankford testified that she and Sigmon were joined at the motel by
Marquette Ruff (Ruff) and a man named “Zeek.” The four parties got
“high” on marijuana and Xanax and spent the night in the motel room.
On the following day, Lankford and Sigmon took Ruff and Zeek to
another location, and Lankford and Sigmon returned to the Governors
Inn and rented room 108 for the evening. After smoking marijuana
and “rid[ing] around,” Lankford and Sigmon returned to room 108 and
were joined by Lamont Haynes (Haynes) and a man Lankford knew as
“Lamar.” The parties remained in the room for approximately one
hour and smoked marijuana, and then Haynes left the room to go to
room 109 of the motel. Lankford testified Haynes went to room 109
because he had seen a woman he knew named Krista Byers (Byers) go
into the room. Sometime later, Haynes returned to room 108accompanied by Byers. Byers was staying “with a drug dealer in room
109 that [Haynes] knew” named Frankie Roseboro (Roseboro). Haynes
wanted to go to room 109 to purchase cocaine from Roseboro; however,
Byers told Haynes that he could not go to room 109 at that time.
Defendant objected at trial to the admission into evidence of
statements made by Byers to Haynes on the ground the evidence was
hearsay. The trial court held a
voir dire, and the State argued it
was not offering the testimony to prove the truth of what Byers said
to Haynes; rather, the evidence was offered “to show what Lankford
did” after hearing Byers' statement. Lankford testified on
voir
dire that Byers told Haynes “the weight of the drugs and the money
that . . . Roseboro had in room 109.” Lankford then relayed this
information to Sigmon, who was talking on the telephone with Ruff at
that time. The State argued it intended to offer this evidence to
show that Lankford told Sigmon that Byers said room 109 contained
drugs and money. The trial court ruled the testimony was not
hearsay and was, therefore, admissible. Defendant then objected to
the evidence on the ground “its probative value does not outweigh
the undue prejudice to [Defendant],” pursuant to Rule 403 of the
North Carolina Rules of Evidence. In response, the trial court
found the evidence was relevant and “that its probative value is not
outweighed by any undue prejudice to . . . [D]efendant, and it is
therefore admissible.”
Subsequent to its ruling, the trial court gave the following
limiting instruction: “[Lankford's] testimony about statements by
. . . Byers, [is] not offered for the truth of the content of . . .
Byers' statements, but [is] offered as -- to the fact that the
statement was made and the content of the statement itself. And its
use is limited for that purpose.” Lankford then continued totestify regarding the events that took place at the Governors Inn on
9 February 1997. She testified that Sigmon was talking on the
telephone with Ruff. While Sigmon was still on the telephone, Byers
told Haynes that “Roseboro was in 109, and he had [drugs] and a lot
of money.” Lankford then told Sigmon to tell Ruff that “in room 109
there was money and drugs.” Haynes, Lamar, and Byers subsequently
left the motel room, and Lankford and Sigmon discussed robbing
Roseboro. Lankford and Sigmon then also left the motel room and
went in Sigmon's vehicle to pick up Ruff.
After Lankford and Sigmon picked up Ruff, they had a discussion
about their intended robbery and decided to pick up Defendant.
After Defendant got into the vehicle, Lankford, Sigmon, and Ruff
continued to discuss robbing Roseboro. The parties returned to room
108 at the Governors Inn and made plans to enter room 109; however,
before they went to room 109, Roseboro and Byers left the Governors
Inn in a vehicle. Defendant, Lankford, Sigmon, and Ruff then left
in a vehicle and drove in the direction of Roseboro's house. As
they were driving, however, they saw Byers returning to the motel so
they decided they would also return to the motel.
Approximately twenty minutes later, after the parties saw Byers
return to room 109 by herself, Defendant, Ruff, and Lankford left
room 108 and stood outside of room 109. Lankford knocked on the
door to room 109 and, after Byers opened the door, Defendant and
Ruff “pushed” Lankford into the room and entered the room behind
her. Defendant and Ruff both had guns, and they “told [Byers] to
l[ie] down [on] the bed with her head in the pillow.” Byers
complied, and the parties searched the room. After they searched
the room, Defendant told Lankford to instruct Byers to remove her
clothing. Lankford did so, and Byers removed her clothing. Lankford then left the room and returned to room 108, where she told
Sigmon what had occurred. Approximately ten minutes later, Ruff
returned to room 108 and told Lankford that Defendant was “'in room
109 having sex with [Byers].'”
A few minutes later, Lankford and Sigmon left the motel in
Sigmon's vehicle. They followed a vehicle driven by Ruff, in which
Defendant and Byers were passengers. The parties drove to a dirt
road, and Defendant and Byers got out of the vehicle. Defendant
then walked over to the vehicle in which Lankford was riding and
told Lankford to get out of the vehicle because they “were going to
kill [Byers].” Lankford got out of the vehicle and stood beside
Defendant, and Defendant shot Byers. Byers, whose hands were tied
behind her back, “[f]ell on the ground.” Defendant then handed a
gun to Lankford and told her that “if [she] didn't shoot [Byers] too
that he would shoot [Sigmon and Lankford].” Lankford shot in the
direction of Byers, and then, at Defendant's request, Lankford gave
the gun to Sigmon. After Lankford gave the gun to Sigmon, Lankford
ran in the direction of the vehicles. As she was running she heard
a gunshot. Lankford got into one of the vehicles and, as she looked
in the direction of Byers, she saw Byers sit up. Defendant then
shot Byers two additional times.
During Lankford's testimony, the State handed Lankford a
document that Lankford identified as the written statement she gave
to Billy Benton (Benton), a lieutenant with the Cleveland County
Sheriff's Department, subsequent to the shooting. The State
identified the statement as “Exhibit No. 23” and sought to introduce
the statement into evidence. Defendant objected and the trial court
overruled the objection. The trial court then instructed the jury
that the statement was being “admitted for the limited purpose . .. for you to determine whether it is either consistent with or
inconsistent with her testimony here at court, and you may consider
it for that purpose only.”
During cross-examination, Defendant asked Lankford about
several statements in exhibit 23 that were inconsistent with her
testimony at trial. Defendant asked Lankford whether she had
testified during direct examination that she “shot in the general
direction of [Byers].” Lankford responded, “Yes.” Defendant then
asked Lankford to read a portion of her statement, in which Lankford
said that she “'shot [Byers] in the head.'” Defendant also asked
Lankford at what time she returned to the Governors Inn with Ruff
and Zeek on 8 February, and she responded, “It was late. I don't
know. . . . Maybe 10:00 or 11:00.” Defendant then noted that
Lankford's statement indicated the parties returned to the Governors
Inn at 12:30 a.m. Additionally, Defendant asked Lankford about
inconsistencies in her statement regarding actions she testified
were taken by Haynes although her statement indicated these actions
were taken by Lamar. Lankford testified that the law enforcement
officers taking her statement must have confused Lamar with Lamont
Haynes. Lankford also testified that Benton was “verbally abusing”
her and “putting words in [her] mouth for [her]” while she was
giving her statement.
On redirect examination of Lankford, the State used an overhead
projector to project exhibit 23 onto a screen. Defendant noted his
previous objection to the admission into evidence of exhibit 23 and
also requested a limiting instruction. The trial court, therefore,
gave the jury a second limiting instruction. The State then read
lines from exhibit 23 to Lankford, and asked Lankford whether the
information contained in each line was correct. Defendant objectedto this method of questioning, in pertinent part, on the ground the
evidence was not relevant and the evidence was not admissible under
Rule 403 of the North Carolina Rules of Evidence. The trial court
overruled Defendant's objection.
The State then continued to question Lankford regarding the
statement, and the following information from the statement was read
into evidence: the time and place that the statement was given; the
times Lankford and Sigmon checked into the Governors Inn and where
they went prior to checking into the motel and subsequent to
checking into the motel; the location of Ruff's residence, which
Lankford testified was incorrect; Sigmon's telephone call to Ruff
from the motel; Lamar's statements regarding getting drugs from room
109, which Lankford testified was incorrect because Haynes actually
made those statements; Lamar's and Byers' actions when they came to
room 108, which Lankford testified was incorrect because Byers was
actually with Haynes and not Lamar; a statement made by Lamar that
Roseboro had been cooking cocaine in the bathroom in room 109, which
Lankford testified was incorrect because Haynes actually made this
statement; and Byers' statement to Lamar that it would not be much
longer before Lamar could purchase cocaine from Roseboro, which
Lankford testified was incorrect because Byers actually made this
statement to Haynes.
Defendant again objected to this testimony on the ground it was
not corroborative of anything testified to by Lankford during direct
examination. The trial court ruled that there was no “substantial
disagreement” between the portions of the statement that the State
questioned Lankford about and the testimony elicited during
Lankford's direct examination. The trial court also ruled that only
the corroborative portions of exhibit 23 were admissible, and thetrial court redacted the portions of exhibit 23 that it found were
not corroborative. Additional portions of exhibit 23 were also
redacted at the request of Defendant.
Subsequent to the redaction of exhibit 23, the State resumed
questioning of Lankford regarding statements contained in exhibit
23. Lankford testified that her statement to Benton that room 109
probably contained a lot of “'coke'” and money was correct; her
statement that she and Sigmon went to pick up Ruff and Defendant was
correct; her statement that she told Ruff that Roseboro “'would
probably have a gun'” was correct; her statement that when the
parties returned to the Governors Inn, Byers' vehicle was still
parked at the Governors Inn and Roseboro was in the room next to
their room was correct; her statement that they heard Roseboro and
Byers leave their motel room and Lankford devised a plan to rob them
in the parking lot was correct; her statement that the parties
intended to follow Roseboro and Byers and that they saw Byers
driving in the direction of the Governors Inn was correct; her
statements regarding the details of how the parties carried out
their plan to rob Roseboro and Byers were correct; her statements
regarding how Byers was killed were correct; and her statement that
she saw Byers “'roll'” after Byers was shot was incorrect, as she
actually saw Byers “sit up” rather than “roll.”
Sigmon testified that on 9 February 1997, she was staying in a
motel at the Governors Inn with Lankford. On that afternoon, Haynes
and Lamar were in the motel room with Sigmon and Lankford when Byers
came into the room. The State asked Sigmon what, if anything, Byers
said when she came into the room. Defendant objected to this
question on the ground the response would be hearsay. The trial
court overruled the objection and instructed the jury that thetestimony was “admitted for the limited purpose of establishing that
it was said, and to explain the actions of others and not for the
truth of the substance of what she said . . . and may be considered
. . . for that purpose only.” Sigmon then testified that when Byers
entered the room, Haynes asked Byers “about some drugs.” Byers
responded: “Roseboro . . . has half a kilo of cocaine . . . .
[Roseboro] was in the bathroom cooking it; for him to come back in
an hour, and if there was any kind of drug over there[] that he
would want for him to come back.”
Sigmon also testified regarding a plea agreement that she
entered into with the State as a result of the events that took
place on 9 February 1997. The State handed Sigmon a document marked
“State's Exhibit 24,” and Sigmon identified this document as the
plea agreement. Sigmon testified that her signature appeared on the
plea agreement, and that exhibit 24 was a certified copy of the plea
agreement. Sigmon also testified that exhibit 24 was “the full and
complete plea agreement entered into between [her] and the State.”
The State then moved to introduce exhibit 24 into evidence and
Defendant objected on the ground a proper foundation had not been
laid. The trial court overruled the objection and admitted the
exhibit into evidence. The State then handed Sigmon a second
document identified as “State's Exhibit 25.” The State asked Sigmon
to identify the document, and she identified it as “the other half
of the plea, where . . . they ask me questions.” She testified her
signature appeared on the document and the document was a certified
copy. The State then moved to introduce exhibit 25 into evidence.
Defendant objected on the grounds of “relevance” and “improper
foundation.” The trial court overruled the objection and admitted
exhibit 25 into evidence. Sigmon testified that as part of the pleaagreement, she pleaded guilty to second-degree murder, first-degree
burglary, first-degree kidnapping, and armed robbery. She also
testified that the charge of conspiracy was dismissed as part of the
plea agreement, and she agreed as part of the plea agreement to
testify at Defendant's trial.
The State called Gary Reynolds (Reynolds), a physician's
assistant, to testify at trial regarding physical evidence Reynolds
obtained from Defendant while Defendant was incarcerated. Defendant
objected to this testimony on the ground the evidence was obtained
in reliance on an invalid search warrant. The trial court held a
voir dire, and Deborah Arrowood (Arrowood) testified that she is
employed as a detective with the Cleveland County Sheriff's
Department and she was involved in the investigation of Byers'
death. Arrowood stated that as part of the investigation, she
prepared an application for a search warrant. Arrowood then took
the application to Judge Jones, and Arrowood was sworn by Judge
Jones in Judge Jones' office. Attached to the application was an
affidavit signed by Arrowood. Judge Jones signed the portion of the
affidavit labeled “Sworn and Subscribed before me.” Arrowood also
signed the application; however, Judge Jones did not sign the
portion of the application labeled “SWORN AND SUBSCRIBED TO BEFORE
ME.” After reviewing the application, Judge Jones issued a search
warrant and the search warrant was executed. Subsequent to
voir
dire, the trial court found as follows:
[T]he requirement of 15A-244 regarding the
contents of the application for a search warrant
are met . . . . The back of the first page, the
application for search warrant is signed by . .
. Arrowood. She, likewise, signed the
attachments to the search warrant that are the
second and third pages of the exhibits. I
further find that she was sworn by Judge Jones
and made this application for [the] search
warrant with attachments under oath as requiredby the statute, that the application and
attachments contain the information required by
15A-244.
The trial court, therefore, denied Defendant's motion to suppress
physical evidence obtained from Defendant.
Ronald Marrs (Marrs), an expert in firearms and toolmark
examination, testified he is employed at the crime laboratory of the
North Carolina State Bureau of Investigation (SBI). As part of his
employment duties, Marrs received for examination several shell
casings allegedly recovered as a result of the shooting of Byers.
Marrs examined each shell casing to determine whether it was “a
projectile or cartridge case, . . . the caliber, the manufacturer,
whether there were any markings present to indicate it had been
fired, extracted, [or] ejected from a firearm.” The State asked
Marrs whether he had done a comparison of shell casings marked for
identification as State's exhibits 36, 37, 38, 39, and 41.
Defendant objected to this question on the ground no proper
foundation had been laid, and the trial court overruled the
objection. Marrs testified he examined these exhibits “using an
instrument known as a comparison microscope,” and Marrs testified
about the method for using a comparison microscope. Based on his
comparisons, Marrs was able to determine that “four of [the shell
casings] were worked through the action of the same gun.” Further,
“[t]he fifth [shell casing] had the same characteristics, but did
not have enough of the individual characteristics needed for [him]
to scientifically say that it had been worked through the same gun
as the other four.”
James A. Gregory (Gregory), an expert in the field of hair and
fiber analysis, testified he is employed by the SBI “as a special
agent assigned to the crime laboratory in Raleigh in the traceevidence section.” Gregory testified he received approximately
twenty-five items for analysis in connection with the investigation
of Byers' death. These items included pubic hair samples known to
be from particular individuals, including Byers, Defendant, Sigmon,
Ruff, and Roseboro, as well as pubic hair samples which were found
on Byers and were from unknown individuals. Gregory testified
regarding the process that he used to determine whether each hair
sample was “suitable for analysis.” After determining which samples
were suitable, he mounted the suitable samples onto microscope
slides and used a “comparison microscope” to compare “known” samples
to “unknown” samples. The State asked Gregory about the results of
his comparisons, and Defendant objected on the ground a proper
foundation had not been laid. The trial court overruled the
objection. Gregory then testified that based on his comparisons, he
determined that one of the “unknown” samples was “microscopically
consistent” with a known sample of Defendant's hair. Gregory also
concluded this “unknown” sample was not consistent with the “known”
samples of hair from Ruff and Roseboro.
David Spittle (Spittle), an expert in DNA analysis testing,
testified he is employed as a Special Agent with the molecular
genetics section of the SBI. Spittle testified regarding the
methods of DNA analysis used by the SBI, and he stated he is
“familiar with the procedures used by the [SBI] lab in the receiving
and processing of items on which DNA testing [is] to be conducted.”
The State asked Spittle to identify State's exhibit 102, and Spittle
identified the exhibit as a file containing laboratory reports and
notes regarding Byers' case. Spittle testified the file was
“maintained in the regular course of business conducted . . . at the
SBI lab” and Spittle had reviewed the contents of the file includingthe results of tests conducted in connection with the case. The
file indicated the DNA tests were performed by Jennifer Elwell
(Elwell), a staff member of the SBI, who worked in the molecular
genetics section. Spittle worked with Elwell, and Spittle “had
reviewed this file at an earlier date specifically doing a technical
review of the work of [Elwell].”
Spittle testified he was able to look at exhibit 102 and
determine what tests were performed on the DNA samples. He
described the DNA samples collected from Byers, which included “a
liquid blood sample, two vaginal smears, four vaginal swabs,
panties, two rectal smears, four rectal swabs, two oral smears, four
oral swabs, two saliva swabs, known pubic hair combings, known pubic
hair sample, known head hair sample and control swabs.” The test
results indicated that the examination of these items “revealed the
presence of spermatozoa.” The State asked Spittle whether, “as an
expert, [he was] able to look at this file and look at the results
and give [his] opinion as to the results of these tests.” Spittle
responded, “Yes.” The State then asked Spittle what the results of
the tests were, and Defendant objected pursuant to Rules 402, 403,
702, and 703 of the North Carolina Rules of Evidence, under the
Sixth Amendment right to confront the witnesses against him, and on
the ground no proper foundation had been laid. The trial court
overruled the objection, and Spittle testified the DNA profile
obtained from the oral swabs of Byers matched the DNA profile of the
known blood sample taken from Defendant. Defendant objected on the
ground Spittle was “simply reading a report as opposed to giving his
opinion.” The trial court then asked Spittle, “[I]s that your
opinion as to the results of the testing.” Spittle replied, “Yes,”
and the trial court overruled the objection. Subsequent to theruling, Spittle gave the following testimony regarding the
“statistical weight” of the DNA match:
The probability of finding another unrelated
individual having the same DNA profile which was
obtained from the oral swabs is approximately
one in 3,170 individuals from the North Carolina
white population, one in 1,220 individuals
comprising the North Carolina black population,
and one in 2,820 individuals in the North
Carolina Lumbee Indian population.
Lucy Milks (Milks) testified she is employed in the molecular
genetic section of the DNA unit of the SBI crime investigation
laboratory. The State tendered Milks as an expert in DNA analysis,
and the trial court instructed the jury that “Milk[s] will be
allowed to testify as an expert in the field of DNA analysis if [the
jury] find[s] her to be so qualified.” Milks testified she received
several DNA samples relating to this case, including dried blood
stain samples from Byers, Defendant, Ruff, and Roseboro, a sample
from Byers' “panties,” and vaginal swabs of Byers. Milks conducted
DNA tests on these samples and she went “through a series of steps
to actually remove the DNA from the cells, cut them, [and] separate
them into fragments of different sizes.” After the DNA was removed
from the cells, Milks “end[ed] up with a piece of film which has a
DNA banding profile on it [and] [t]he band is like a bar code that
you see on items.” The State asked Milks whether, in this case, she
was able to make conclusions based on the banding profiles.
Defendant objected to this question on the ground no proper
foundation had been laid, and the trial court overruled the
objection. Milks then testified that she made the following
conclusions based on the banding profiles: “the DNA banding pattern
obtained from the male fraction from the cutting of the panties
matched the DNA banding pattern obtained from the known blood stain
from [Defendant] and did not match the banding pattern obtained from. . . Ruff or . . . Roseboro”; and, “the DNA banding pattern[]
obtained from the male fraction of the vaginal swabs matched the DNA
pattern of [Defendant] and does not match the banding pattern
obtained from . . . Ruff or . . . Roseboro.” The State then asked
Milks: “What statistical weight can you give to the matches you
obtained from your tests?” Defendant objected “as to the form of
the question,” and the trial court overruled the objection. Milks
then testified regarding the statistical weight of the results she
obtained.
The State called Benton to testify regarding Defendant's
attempted flight from Benton on 12 February 1997. Prior to Benton's
testimony, Defendant objected to any testimony regarding Defendant's
flight on the ground “it is unfairly prejudicial and the probative
value of this evidence regarding flight does not outweigh the
unfairness as provided by Rule 403.” Defendant also argued the
evidence should be excluded under Rule 404 of the North Carolina
Rules of Evidence as evidence of “other criminal conduct.” The
trial court overruled Defendant's objection, finding “the evidence
is relevant to prove flight and that its probative value is not
substantially outweighed by the danger of unfair prejudice to . . .
[D]efendant.”
Subsequent to the trial court's ruling, Benton testified that
on 12 February 1997, at approximately 11:30 a.m., he and two other
law enforcement officers traveled to McIntire's Trailer Park to
follow up on a lead in the investigation of Byers' death. The
officers were traveling in an unmarked patrol car and were dressed
in their law enforcement uniforms. After arriving at the trailer
park, Benton saw a man fitting the description of Defendant walking
across a street with three other individuals. Benton and anotherofficer got out of Benton's vehicle and approached the four
individuals. Benton “asked each individual for identification and
[told them] that [they] were looking for a black male by the name of
Shawn.” Defendant told Benton he did not have any identification on
him, and Benton approached Defendant to determine whether he was
concealing any weapons under his coat. When Benton “got within
arm's reach of [Defendant],” Defendant “started running.” As
Defendant was running, “he pulled a handgun from either the coat
pocket or the waistband of his pants and fired several shots at
[Benton] and [the other officer].” Benton returned fire at
Defendant, and Defendant was struck by a bullet fired by Benton.
Defendant was subsequently taken into custody.
Defendant did not present any evidence at trial. Subsequent to
its deliberations, the jury returned verdicts finding Defendant
guilty of first-degree murder, first-degree rape, first-degree
kidnapping, robbery with a firearm, and first-degree burglary.
_______________________________
The issues are whether: (I) the trial court's finding that
Defendant did not meet his burden of proving intentional
discrimination in the State's use of its peremptory challenges to
excuse Pressley and Clemmons from the jury is clearly erroneous, and
whether the trial court's finding that Defendant did not meet his
burden of establishing a
prima facie case of intentional
discrimination in the State's use of its peremptory challenges to
excuse White and Hartgrove from the jury is clearly erroneous; (II)
the application for a search warrant submitted to Judge Jones by
Arrowood met the requirements of N.C. Gen. Stat. § 15A-244; (III)
Lankford's testimony regarding statements made by Byers was
inadmissible hearsay and, if not, whether the probative value ofthis evidence was “substantially outweighed by the danger of unfair
prejudice” under Rule 403 of the North Carolina Rules of Evidence;
(IV) Lankford's statement to Benton corroborated Lankford's
testimony at trial, and whether the trial court abused its
discretion by allowing the State to question Lankford regarding
individual lines in the statement; (V) evidence that Sigmon entered
into a plea agreement with the State, in which she agreed to testify
against Defendant, was relevant under Rule 401 of the North Carolina
Rules of Evidence; (VI) Gregory's testimony regarding hair
comparisons and Marrs' testimony regarding shell casings were based
on reliable scientific methodology; (VII) the report relied upon by
Spittle was inherently reliable, and whether the trial court
expressed its opinion regarding the validity of the report in
violation of N.C. Gen. Stat. § 15A-1222; (VIII) Milks was properly
permitted to testify as an expert pursuant to Rule 702 of the North
Carolina Rules of Evidence; and (IX) evidence of Defendant's flight
from Benton was inadmissible under Rule 404(b) of the North Carolina
Rules of Evidence.
I
Pressley and Clemmons
[1]Defendant objected at trial to the State's exercise of
peremptory challenges to excuse Pressley and Clemmons on the ground
the State's actions were intentionally discriminatory and,
therefore, in violation of
Batson.
“In
Batson, the United States Supreme Court created a three-
pronged test to determine whether a prosecutor impermissibly excused
prospective jurors on the basis of their race.”
State v. Bond, 345
N.C. 1, 20, 478 S.E.2d 163, 172 (1996),
cert. denied, 521 U.S. 1124,
138 L. Ed. 2d 1022 (1997). First, a criminal defendant must establish a
prima facie case of intentional discrimination
by the prosecutor. Finding a
prima facie case
shifts the burden to the State, which must give
race-neutral explanations for peremptorily
challenging a juror of a cognizable group. The
reason does not have to be plausible. What is
at issue in the second step is the “'facial
validity of the prosecutor's explanation.
Unless a discriminatory intent is inherent in
the prosecutor's explanation, the reason offered
will be deemed race[-]neutral.'” Once the State
gives an explanation for its peremptory
challenges, the trial court then determines
“whether the defendant has carried his burden of
proving purposeful discrimination.”
Id. at 20-21, 478 S.E.2d at 172-73 (citations omitted). Whether the
State intended to discriminate against the members of a race in its
selection of the jury is a question of fact,
id. at 22, 478 S.E.2d
at 173, and the trial court's findings will be upheld on appeal
“unless the appellate court is convinced that the trial court's
decision is clearly erroneous,”
State v. Crockett, 138 N.C. App.
109, 115, 530 S.E.2d 359, 363,
disc. review denied, 352 N.C. 593, --
- S.E.2d --- (2000).
In this case, Defendant objected to the State's use of its
peremptory challenges to excuse Pressley and Clemmons. Defendant
argued during
voir dire that “[t]here is no legitimate reason for
dismissal by the State of the two blacks on the jury except to try
to get all white jurors to sit and hear this matter.” Prior to
ruling on whether Defendant had established a
prima facie case under
Batson, the trial court allowed the State to present race-neutral
reasons for excusing Pressley and Clemmons. Whether Defendant met
his burden of establishing a
prima facie case is, therefore, moot.
See State v. Hoffman, 348 N.C. 548, 551-52, 500 S.E.2d 718, 721
(1998). Accordingly, we must determine whether the trial court's
findings that “the stated reasons by the [State] were . . .
legitimate grounds to exercise peremptory challenge not related torace” and that Defendant did not carry his burden of proving
purposeful discrimination are clearly erroneous.
(See footnote 1)
The State offered as reasons for excusing Pressley that he did
not own his own home, he had not lived at his residence for more
than five years, and he knew a co-defendant. As these reasons are
race-neutral on their face, the trial court properly determined
these reasons were “not related to race.”
See Bond, 345 N.C. at 20,
478 S.E.2d at 172-73. Further, the record contains no evidence the
State made any racially motivated statements or asked any racially
motivated questions during
voir dire, and the record shows one black
juror served on the panel.
See State v. Sanders, 95 N.C. App. 494,
502, 383 S.E.2d 409, 414 (1989). Moreover, Defendant did not offer
any evidence tending to show racial discrimination by the State in
the use of its peremptory challenges.
See id. The trial court's
denial of Defendant's
Batson motion regarding Pressley was,
therefore, not clearly erroneous.
The State offered as reasons for excusing Clemmons that she
knew the co-defendant and she had previously been charged with
aiding and abetting a murder. These reasons are racially neutral on
their face. Further, as with Pressley, Defendant did not offer any
evidence tending to show racial discrimination by the State in the
use of its peremptory challenges, and the record does not contain
any evidence suggesting Clemmons was dismissed from the jury for
racially discriminatory reasons. The trial court's denial of
Defendant's
Batson motion regarding Clemmons was, therefore, not
clearly erroneous.
White and Hartgrove
[2]Defendant also objected at trial to the State's use of its
peremptory challenges to excuse White and Hartgrove from the jury on
the ground the State's actions resulted in intentional
discrimination, in violation of
Batson. Because the trial court
found Defendant had not made “any . . . prima facie showing of any
pattern of racial discrimination” regarding White and Hartgrove,
this Court's review is limited to whether this finding is clearly
erroneous.
See Hoffman, 348 N.C. at 552, 500 S.E.2d at 721.
A
prima facie showing must raise an inference of intentional
discrimination.
State v. Quick, 341 N.C. 141, 144, 462 S.E.2d 186,
188 (1995). Factors to consider when making this determination
include:
the defendant's race, the victim's race, the
race of the key witnesses, questions and
statements of the prosecutor which tend to
support or refute an inference of
discrimination, repeated use of peremptory
challenges against blacks such that it tends to
establish a pattern of strikes against blacks in
the venire, the prosecution's use of a
disproportionate number of peremptory challenges
to strike black jurors in a single case, and the
State's acceptance rate of potential black
jurors.
Id. at 145, 462 S.E.2d at 189.
In this case, the record shows Byers, the victim, was white and
Defendant is black. Additionally, the State used its peremptory
strikes to excuse four of the six black jurors in the jury pool, and
the composition of the jury panel was eleven white jurors and one
black juror. These factors are sufficient to raise a
prima facie
inference of intentional discrimination by the State in its use of
its peremptory strikes.
See Hoffman, 348 N.C. at 553-54, 500 S.E.2d
at 722 (
prima facie case of intentional discrimination established
when record shows defendant was black, victim was white, and Stateused peremptory challenges to strike three black jurors). The trial
court's finding that Defendant did not make a
prima facie showing of
intentional discrimination is, therefore, clearly erroneous. This
error, however, does not require a new trial.
State v. Hall, 104
N.C. App. 375, 384, 410 S.E.2d 76, 81 (1991). Rather, because we
find no other error in Defendant's trial, this case is remanded to
the Cleveland County Superior Court.
See id. On remand, a judge
presiding over a criminal session shall hold a hearing and provide
the State with an opportunity to give a race-neutral reason for
striking White and Hartgrove. If the trial court finds the State's
explanation is not race-neutral, Defendant is entitled to a new
trial. If the trial court finds the State's explanation is race-
neutral, Defendant shall be given the opportunity to demonstrate
that the explanation was a mere pretext. If Defendant meets his
ultimate burden of proving intentional discrimination, he is
entitled to a new trial. If he does not meet this burden, the trial
court will order commitment to issue in accordance with the judgment
appealed from and dated 7 April 1999.
II
[3]efendant argues the application for a search warrant
submitted to Judge Jones by Arrowood was not sworn, and Defendant's
motion to suppress evidence obtained as a result of the searchwarrant, therefore, should have been suppressed.
(See footnote 2)
We disagree.
N.C. Gen. Stat. § 15A-244 provides that “[e]ach application for
a search warrant must be made in writing upon oath or affirmation.”
N.C.G.S. § 15A-244 (1999). A judicial official, therefore, may base
a finding of probable cause to issue a warrant “only on statements
of fact confirmed by oath or affirmation of the party making the
statement, or on information which the magistrate records or
contemporaneously summarizes in the record.”
State v. Heath, 73
N.C. App. 391, 393, 326 S.E.2d 640, 642 (1985).
In this case, Arrowood submitted an application for a search
warrant to Judge Jones, and Arrowood attached a sworn affidavit to
her application. The application itself did not state on its face
that it was sworn. The trial court found, however, that Arrowood
“was sworn by Judge Jones and made this application for [the] search
warrant with attachments under oath as required by the statute.”
This finding of fact is supported by Arrowood's testimony during
voir dire that she signed the application in Judge Jones' presence
after being sworn by Judge Jones. We are, therefore, bound by this
finding of fact.
See id. Accordingly, the trial court properly
denied Defendant's motion to suppress evidence obtained as a result
of the search warrant.
III
[4]Defendant argues Lankford's testimony regarding statements
made by Byers was inadmissible hearsay or, in the alternative, was
inadmissible under Rule 403 of the North Carolina Rules of Evidence. We disagree.
“'Hearsay' is a statement, other than one made by the declarant
while testifying at the trial or hearing, offered in evidence to
prove the truth of the matter asserted.” N.C.G.S. § 8C-1, Rule
801(c) (1999).
In this case, Lankford testified that Byers told Haynes, in
Lankford's presence, that “Roseboro was in [room] 109, and he had
[drugs] and a lot of money.” Lankford then told Sigmon to tell Ruff
that there were drugs and money in room 109. The State did not
offer testimony of Byers' statement for the truth of the statement;
rather, the testimony was offered “to show what Lankford did” based
on Byers' statement. Because evidence of Byers' statement was
offered for this limited purpose, the trial court gave the jury a
limiting instruction regarding this evidence.
(See footnote 3)
Accordingly, this
evidence was properly admitted at trial.
(See footnote 4)
In the alternative, Defendant argues this evidence should have
been excluded under Rule 403 of the North Carolina Rules of Evidence
because “the probative value [of the evidence] was substantiallyoutweighed by the danger of unfair prejudice.”
(See footnote 5)
Defendant does not
argue in his brief to this Court how the probative value of
Lankford's testimony regarding Byers' statements would be
substantially outweighed by the danger of unfair prejudice, and the
record reveals no danger of unfair prejudice under Rule 403.
Accordingly, the trial court's finding that the “probative value [of
this evidence] is not outweighed by any undue prejudice to . . .
[D]efendant,” which may be reversed on appeal only for an abuse of
discretion, was not error.
See State v. Mason, 315 N.C. 724, 731,
340 S.E.2d 430, 435 (1986) (whether to exclude evidence under Rule
403 is within sound discretion of trial court).
IV
[5]Defendant argues the trial court erred by admitting into
evidence Lankford's prior statement to Benton because the statement
did not corroborate Lankford's testimony at trial. We disagree.
A witness's prior consistent statements are admissible as
corroborative evidence.
State v. Ramey, 318 N.C. 457, 468, 349
S.E.2d 566, 573 (1986). In order to be admissible as corroborative,
“the prior statement of the witness need not merely relate to
specific facts brought out in the witness's testimony at trial, so
long as the prior statement in fact tends to add weight or
credibility to such testimony.”
Id. at 469, 349 S.E.2d at 573. A
witness's contradictory statements, however, “may not be admitted
under the guise of corroborating his testimony.”
Id. at 469, 349
S.E.2d at 574. In this case, Defendant elicited during cross-examination of
Lankford several alleged inconsistencies between her testimony at
trial and her statement to Benton. These include that Lankford
testified at trial that she “shot in the general direction of
[Byers]” and Lankford told Benton that she “'shot [Byers] in the
head'”; Lankford testified at trial that it was “late” when she
returned to the motel and that it may have been “10:00 or 11:00,”
and Lankford told Benton that she returned to the motel at 12:30
a.m.; Lankford testified at trial that certain actions were taken by
Lamont Haynes and that the officers taking her statement had
confused Lamar with Lamont Haynes; and Lankford testified at trial
that after Byers was shot, Byers “'roll[ed],'” and Lankford told
Benton that after Byers was shot, she “s[a]t up.” The variations in
Lankford's testimony at trial do not directly contradict her
statement given to Benton; rather, the information in the statement
was “substantially similar to and tended to strengthen and confirm”
Lankford's testimony at trial regarding the events leading up to the
shooting of Byers.
See State v. Gell, 351 N.C. 192, 204, 524 S.E.2d
332, 341 (prior statement admissible to corroborate trial testimony
when prior statement “contained slight variations and some
additional information”),
cert. denied, --- U.S. ---, 148 L. Ed. 2d
110 (2000);
State v. Frogge, 345 N.C. 614, 618, 481 S.E.2d 278, 280
(1997) (prior statement not admissible to corroborate trial
testimony when “prior statement contained information manifestly
contradictory to [witness's] testimony at trial and did not
corroborate the testimony”). Accordingly, the trial court properly
allowed Lankford's statement into evidence as corroborativeevidence.
(See footnote 6)
[6]Defendant also argues the method used by the State during
redirect examination of Lankford was error. We disagree.
In this case, Lankford testified during cross-examination that
when she gave her statement to Benton, Benton was “verbally abusing”
her and ”putting words in [her] mouth for [her].” The State,
therefore, asked Lankford on redirect examination about whether many
of the lines in the statement were “correct.” The method used by
the State was to read a line from the statement and then ask
Lankford whether the line was correct. The method of questioning
allowed at trial was within the discretion of the trial court,
State
v. Harris, 308 N.C. 159, 168, 301 S.E.2d 91, 97 (1983) (“manner of
the presentation of evidence is largely in the discretion of the
trial judge [and] [h]is control of the case will not be disturbed
absent a manifest abuse of discretion”), and the trial court did not
abuse its discretion by allowing the State to read portions of
Lankford's statement,
(See footnote 7)
see State v. Burrus, 344 N.C. 79, 90, 472
S.E.2d 867, 875 (1996) (“trial court may be reversed for an abuse of
discretion only upon a showing that its ruling could not have been
the result of a reasoned decision”).
V
[7]Defendant argues the plea agreement entered into by Sigmon,
as well as the plea transcript, were not relevant and, therefore,
inadmissible.
(See footnote 8)
We disagree.
“'Relevant evidence' means evidence having any tendency to make
the existence of any fact that is of consequence to the
determination of the action more or less probable than it would be
without the evidence.” N.C.G.S. § 8C-1, Rule 401 (1999).
In this case, Sigmon testified for the State regarding
Defendant's involvement in the death of Byers. The fact that Sigmon
entered into a plea agreement with the State, in which she agreed to
testify against Defendant, was relevant to Sigmon's credibility.
Accordingly, the trial court properly admitted the plea agreement
and plea transcript into evidence.
See Sherrod v. Nash General
Hospital, Inc., 126 N.C. App. 755, 762, 487 S.E.2d 151, 155 (1997)
(trial court's ruling regarding admissibility of evidence under Rule
401, although not discretionary, is given great deference on
appeal),
aff'd in part and reversed in part on other grounds, 348
N.C. 526, 500 S.E.2d 708 (1998).
VI
[8]Defendant argues Gregory's testimony regarding hair
comparisons and Marrs' testimony regarding shell casings were
inadmissible because no proper foundation was laid to show “the
reliability of the scientific methods” used by these witnesses. We
disagree. “[An] expert's scientific technique on which he bases his
opinion must be such that its 'accuracy and reliability has become
established and recognized.'”
State v. Huang, 99 N.C. App. 658,
663, 394 S.E.2d 279, 282 (quoting
State v. Temple, 302 N.C. 1, 12,
273 S.E.2d 273, 280 (1981)),
disc. review denied, 327 N.C. 639, 399
S.E.2d 127 (1990). The emphasis of this consideration is “on the
reliability of the scientific method and not its popularity within
a scientific community.”
State v. Bullard, 312 N.C. 129, 149, 322
S.E.2d 370, 381-82 (1984).
In this case, Gregory testified about his use of a “comparison
microscope” to compare “known” and “unknown” hair samples. Gregory
concluded based on these comparisons that a pubic hair sample taken
from Byers was “microscopically consistent” with a “known” sample of
Defendant's pubic hair. Although the trial court did not
specifically find that the comparison of hair samples is reliable
scientific methodology, this finding was implicit in the trial
court's overruling of Defendant's objection to Gregory's testimony.
See State v. Wise, 326 N.C. 421, 430, 390 S.E.2d 142, 148 (“trial
court's overruling of defense counsel's objection to the opinion
testimony constituted an implicit finding that the witness was an
expert”),
cert. denied, 498 U.S. 853, 112 L. Ed. 2d 113 (1990).
Additionally, because the comparison of hair samples has been
accepted as reliable scientific methodology in this State, the trial
court properly allowed Gregory to testify regarding the results of
his testing.
See, e.g., State v. Green, 305 N.C. 463, 469-70, 290
S.E.2d 625, 629 (1982).
The State also presented expert testimony regarding shell
casings allegedly recovered as a result of the shooting of Byers.
Marrs testified that he examined these shell casings “using aninstrument known as a comparison microscope.” Based on his
comparisons, Marrs concluded that “four of [the shell casings] were
worked through the action of the same gun” and “[t]he fifth [shell
casing] had the same characteristics, but did not have enough of the
individual characteristics needed for [Marrs] to scientifically say
that it had been worked through the same gun as the other four.”
Although the trial court did not specifically find that the
comparison of shell casings is reliable scientific methodology, this
finding was implicit in the trial court's overruling of Defendant's
objection to Marrs' testimony.
See Wise, 326 N.C. at 430, 390
S.E.2d at 148. Additionally, because the comparison of bullets and
weapons has been accepted as reliable scientific methodology in this
State, the trial court properly allowed Marrs to testify regarding
the results of his testing.
See, e.g., State v. Alston, 294 N.C.
577, 585, 243 S.E.2d 354, 360 (1978).
VII
[9]Defendant argues the trial court erred by allowing Spittle
to testify regarding a report that he did not prepare because
Spittle's testimony regarding the report was hearsay.
(See footnote 9)
We disagree.
“Inherently reliable information is admissible to show the
basis for an expert's opinion, even if the information would
otherwise be inadmissible hearsay.”
State v. Daughtry, 340 N.C.
488, 511, 459 S.E.2d 747, 758 (1995),
cert. denied, 516 U.S. 1079,
133 L. Ed. 2d 739 (1996).
In this case, Spittle testified regarding the procedure used by
the SBI to conduct DNA tests, and he stated the tests in this casewere performed by Elwell. Spittle worked with Elwell at the SBI and
he reviewed the file in this case “specifically doing a technical
review of the work of [Elwell]” on the file. The information
contained in the file was, therefore, inherently reliable.
See id.
at 511, 459 S.E.2d at 758-59 (DNA testing relied upon by expert
inherently reliable when testing was performed by intern in DNA unit
of SBI lab under supervision of expert). Accordingly, the trial
court properly permitted Spittle to testify regarding the contents
of the report and his opinion of the test results based on the
report.
(See footnote 10)
[10]Defendant also argues the trial court “expressed [its]
opinion as to the validity of the report” when it asked Spittle
whether his testimony was “[his] opinion as to the results of the
testing.”
“The judge may not express during any stage of the trial, any
opinion in the presence of the jury on any question of fact to be
decided by the jury.” N.C.G.S. § 15A-1222 (1999). In this case,
however, the trial court's statement did not express any opinion on
whether the report was valid or credible; rather, the trial court
merely asked whether Spittle was stating an opinion based on the
report. The trial court's question, therefore, did not violate N.C.
Gen. Stat. § 15A-1222.
VIII
[11]Defendant argues the trial court erred by instructing thejury that “Milk[s] will be allowed to testify as
an expert in the
field of DNA analysis if [the jury] find[s] her to be so qualified”
because the expertise of Milks should have been determined by the
trial court.
In this case, the record shows Milks was qualified as an expert
in the field of DNA analysis and the trial court permitted Milks to
give expert testimony in this field. Accordingly, assuming the
trial court's statement to the jury was error, this error was
harmless.
See Wise, 326 N.C. at 432, 390 S.E.2d at 149 (trial
court's failure to formally qualify witness as an expert was
harmless “in light of the evidence of her qualifications, the
court's obvious conviction that the witness was an expert, and the
fact that the witness'[s] opinion testimony fit within the
definition of expert testimony”).
IX
[12]Defendant argues evidence regarding his flight from Benton
was evidence of “other crimes” and was, therefore, inadmissible
under Rule 404(b) of the North Carolina Rules of Evidence. We
disagree.
“Evidence of a defendant's flight following the commission of
a crime may properly be considered by a jury as evidence of guilt or
consciousness of guilt.”
State v. King, 343 N.C. 29, 38, 468 S.E.2d
232, 238 (1996). Evidence of flight is admissible “[e]ven though
the evidence of flight may disclose the commission of a separate
crime by defendant.”
State v. Jones, 292 N.C. 513, 526, 234 S.E.2d
555, 562 (1977).
In this case, Benton testified that Defendant fled when
approached by law enforcement officers. Benton testified regarding
the details of the flight, including that Defendant fired a weaponat officers and that Defendant was hit with a bullet fired by
Benton. This evidence of flight was admissible to show Defendant's
consciousness of guilt. Further, the trial court's determination
that the probative value of the evidence “is not substantially
outweighed by the danger of unfair prejudice to . . . [D]efendant”
was not an abuse of discretion.
See Mason, 315 N.C. at 731, 340
S.E.2d at 435 (trial court's ruling on admissibility of evidence
under Rule 403 may be reversed on appeal only for an abuse of
discretion).
Remanded for
Batson hearing; otherwise, no error.
Judges MARTIN and EDMUNDS concur.
Footnote: 1