STATE OF NORTH CAROLINA
v
.
Currituck County
No. 99 CRS 257
NICHOLAS CARL BRYANT
Attorney General Roy Cooper, by Assistant Attorney General
Steven F. Bryant, for the State.
McCotter, McAfee & Ashton, PLLC, by Rudolph A. Ashton, III,
and Robert J. McAfee, for defendant-appellant.
WALKER, Judge.
Defendant was tried capitally and was found guilty of the
first degree murder of David Michael Perez. The jury recommended
life imprisonment and he was sentenced to life in prison without
parole.
Defendant made a pretrial motion to suppress oral and written
statements he made to law enforcement officers. After hearing
evidence and argument from counsel, the trial court found the
following in part:
5. The defendant was thereby in custody.
6. Officer Pritchard provided the defendant
with Miranda rights or advised him of the
rights pursuant to Miranda decision. Those
rights included but are not limited to theright to remain silent and right to have an
attorney to be present during any questioning,
if you cannot afford an attorney an attorney
may be appointed. Also was an admonition
included that statements could be used against
him....
7. The Court finds that the defendant
answered yes when asked if he understood his
rights and nodded in the affirmative.
8. The Court also finds, therefore, that the
defendant did understand his rights pursuant
to the Miranda decision.
. . .
12. The defendant seemed to pay close
attention to his being advised of the rights.
13. The defendant made a statement in the car
upon questioning, interview or other
statements that are substantially equivalent
to interrogation to the effect that he felt
guilty about killing Perez or felt terrible
and was very sorry and wished he hadn't done
it.
. . .
16. Thereafter without undue delay the
defendant was taken to the interview room in
the police station.
. . .
18. There is no evidence of any use or
threatened use of weapon. There is no
evidence of any threatened use of violence.
There is no evidence of any unusual harassing,
intimidating demeanor gesture or tone of voice
by the officer. There is no evidence of
coercion, physical or emotional, at this
juncture.
19. The defendant was again provided with
both oral and written specific rights
including those related to the Miranda
decision.... This was a standard form used by
the police department containing some space
for the defendant's signature and blanks to
include date and defendant's name.
. . .
21. The defendant again was asked if he
understood his rights. The defendant
acknowledged he did.
. . .
23. The defendant was also asked specifically
whether he desired to waive those rights and
give a statement. The defendant acknowledged
and answered in the affirmative and also
signed providing his written signature in the
space provided for signature of interviewee.
24. Thereafter interrogation took place. The
interrogation was not unduly lengthy,
consisting of approximately twenty minutes.
25. The defendant at no time asked for a
lawyer.
26. The defendant at no time asked to stop
the interview or indicated a desire to
exercise of [sic] his right to remain silent.
. . .
30. There is no evidence that the defendant
was made any promises or offered anything in
return for his statement.
31. Any issues as to time of being advised
are not deemed to be conclusive or
determinative.
The trial court concluded the following in part:
[T]hat the defendant was in custody; that the
statement was freely, voluntarily and
knowingly given and that there was a free,
voluntary waiver of his rights prior to making
any statements; and that the taking of the
statements was not in violation of the
defendant's constitutional rights under the
United States or North Carolina Constitutions
or otherwise his statutory rights under laws
of this jurisdiction.
Then, the trial court denied defendant's motion to supress. The State's evidence at trial tended to show the following:
Jimmy Winslow owned a soybean field in Currituck County. The field
was located in a deserted area and was mainly woodland and
farmland. On 5 October 1998, he went out to his field, saw a
“tramped down” area, and found a body which was later identified as
David Michael Perez.
Tracey Bryant was married to the defendant at the time. She
testified for the State under subpoena and pursuant to a plea
agreement. After a voir dire hearing on whether Ms. Bryant was
being compelled to testify in violation of N.C. Gen. Stat.
§ 8-57(b)(1999), the trial court found she was competent to
testify.
Ms. Bryant testified that, in the fall of 1998, she and the
defendant were living together in Virginia. One evening in early
September 1998, after Ms. Bryant got off of work, the defendant,
Dana Rose, and she were talking when the defendant said they should
kill Mr. Perez “for shits and giggles.” The three left the house
in Ms. Bryant's car and drove to Mr. Perez's house where they
picked him up. The four of them then left Virginia and the
defendant drove them across the state line to Currituck County.
During the drive, Ms. Bryant testified that the defendant told
Mr. Perez that they were taking him to North Carolina to kill him.
She testified that when Mr. Perez asked her whether the defendant
was serious, her “first response was no that Nick couldn't -- Mr.
Bryant couldn't done anything like that. Then I took back that
statement and that's when I thought about he hasn't -- Mr. Bryanthasn't been acting right, maybe -- I don't recall my exact words,
but it was something along the lines of maybe he's lost it or maybe
he's losing it.”
Defendant drove them to a field, turned off the motor and told
Ms. Bryant, Mr. Rose, and Mr. Perez to get out of the car. Ms.
Bryant testified that she and Mr. Rose stood on the dirt road while
the defendant took Mr. Perez into the field. She saw the defendant
hold Mr. Perez and heard Mr. Perez yell, “Nick, you really did it.”
When defendant returned, he insisted that she and Mr. Rose get in
the car while he ran back into the field. Ms. Bryant also
testified that she heard the defendant “asking Mr. Perez who he
was. I didn't hear Mr. Perez's statement, but I heard [the
defendant] saying call me God.”
Defendant returned to the car holding a knife covered in
blood. Ms. Bryant drove the defendant and Mr. Rose to a rest area
where the defendant wrapped the knife in a paper bag and disposed
of it. Mr. Rose corroborated Ms. Bryant's testimony of the events
of that evening. Mr. Rose testified that the defendant told him
“he slashed [Mr. Perez's] throat three (3) times and stabbed him in
the back three (3) times.” Defendant then drove Ms. Bryant and Mr.
Rose back to Virginia. After returning to Virginia, defendant
burned the shirt he had been wearing and the identification cards
of Mr. Perez.
Defendant stipulated that the death of Mr. Perez “was caused
by stab wounds to the trunk of David Perez's body.” He also
stipulated that “the Defendant, Nicholas Bryant, inflicted thesewounds with a knife.” Defendant's sole defense was based on a lack
of mental capacity to commit the crime because of his insanity at
the time he killed Mr. Perez. He offered evidence of his mental
condition through the testimony of George Patrick Corvin, M.D., a
general and forensic psychiatrist, and through Claudia Coleman, a
clinical psychologist in the area of forensic and neuropsychology.
Based on the records available to him and interviews with the
defendant, Dr. Corvin testified as follows in part:
[A]t the time of his offense Mr. Bryant was
suffering from symptoms of psychosis and that
these psychotic symptoms stem from a history
of Schizoaffective Disorder which is extremely
well documented in his record. It furthers my
opinion as the specific nature of his
psychotic symptoms rendered a mental state in
which Mr. Bryant did not for a brief period of
time, but a critical period of time understand
or believe that his acts were wrong. And that
as a result of that, he would as statutorily
defined meet the criteria for a verdict of not
guilty by reason of insanity based on my
medical evaluation.
Ms. Coleman testified “That [defendant's] mental illness, which is
a combination of a thought disorder and a mood disorder, primarily
described by Schizoaffective Disorder or Bipolar Disorder with
psychotic features did prevent him from knowing right from wrong.”
In rebuttal, the State presented Patricia Hahn, a licensed
psychologist, and Peter N. Barboriak, M.D., a forensic
psychiatrist. Ms. Hahn testified that, at the time of the
incident, she “thought [defendant] was capable of distinguishing
between right and wrong.” Dr. Barboriak testified that “just based
on what Mr. Bryant told me, he would be considered responsible evenif he felt he was delusional and he thought there was a god when he
actually did the stabs that killed Mr. Perez.”
Defendant first assigns as error the denial of his motion to
suppress his oral and written statements. After hearing evidence
and arguments, the trial court made written findings and
conclusions and determined that the statements of the defendant
were admissible. It is well settled law that our review is limited
to whether there is competent evidence to support the findings and
whether those findings support the conclusions. State v. Buchanan,
353 N.C. 332, 336, 543 S.E.2d 823, 826 (2001); State v. Brewington,
352 N.C. 489, 498, 532 S.E.2d 496, 501 (2000), cert. denied, 531
U.S. 1165, 148 L. Ed. 2d 992 (2001); State v. Barnett, 307 N.C.
608, 613, 300 S.E.2d 340, 343 (1983).
The trial court found that prior to custodial interrogation of
the defendant in the car, the defendant was properly given his
Miranda warnings. He indicated that he understood those warnings
and the trial court found that he understood his rights. The trial
court also found that there was no evidence of any threats,
harassment, intimidation, promises or coercion on the part of law
enforcement.
At the police department, defendant was again advised of his
rights, including his Miranda rights, both orally and in writing.
Defendant acknowledged that he understood his rights and that he
would like to waive his rights and give a statement. The trial
court found the interrogation was not unduly lengthy. It also
found that “[t]here is no evidence that the defendant was made anypromises or offered anything in return for his statement.” The
defendant did not ask for an attorney and did not ask to stop the
interview or to assert his right to remain silent. Based on these
findings, the trial court concluded that the statements of the
defendant were “freely, voluntarily and knowingly given and that
there was a free, voluntary waiver of his rights prior to making
any statements.”
After a careful review of the record, we find there was
competent evidence to support the findings and the findings support
the trial court's conclusions that defendant's rights were not
violated.
Defendant next claims that the trial court erred by allowing
into evidence two photographs of the crime scene. Defendant's
objection is that they were irrelevant and solely for the purpose
of inflaming the jury.
Our Courts have held that photographs are not inadmissible
simply because they are gruesome or tend to inflame the jury.
State v. Harris, 323 N.C. 112, 126-27, 371 S.E.2d 689, 698 (1988).
This is true “even where the photographs depict remains in an
advanced state of decomposition, . . . and where the cause of death
is uncontroverted.” Id. at 127, 371 S.E.2d at 698. The test is
whether the prejudicial effect of the photographs outweighs their
probative value. N.C. Gen. Stat. § 8C-1, Rule 403. The
determination of whether the prejudicial effect outweighs the
probative value of the evidence is within the sound discretion of
the trial court. Here, the State introduced the two photographs. One depicted
the path where the body was found, which may have included a part
of the victim's body, and the other depicted a t-shirt on human
remains. We fail to see how two photographs would be excessive or
inflammatory. Thus, we find it was not an abuse of discretion for
the trial court to admit these photographs into evidence.
Defendant also assigns error to the admission of a knife,
which was offered as being similar to the knife used to kill Mr.
Perez. Defendant had stipulated that a knife was used to stab Mr.
Perez. Since there was testimony that “[t]he knife that was used
was a little bit longer and I believe the handle was wider” than
the one introduced for illustrative purposes, he argues that this
knife was irrelevant.
“[A] model of a place or a person or an object may be employed
to illustrate the testimony of a witness so as to make it more
intelligible to the court and to the jury.” State v. See, 301 N.C.
388, 391, 271 S.E.2d 282, 284 (1980). The evidence must show some
connection between the illustrative object shown in court and the
actual one. State v. Godley, 140 N.C. App. 15, 25, 535 S.E.2d 566,
574 (2000), disc. review denied, 353 N.C. 387, 547 S.E.2d 25
(2001).
Here, Ms. Bryant testified to the similarities in the handle
and the serrated blade and that it was a “similar type of knife.”
Mr. Rose testified, without objection, that the knife in court was
“exactly like the one” which was used on Mr. Perez. The trial
court also gave the jury a limiting instruction that this knife wasto be considered for illustrative purposes only. We find there was
ample evidence of a connection between the knife shown in court and
the one actually used on Mr. Perez such that there was no
prejudicial error admitting the knife for illustrative purposes.
Defendant next claims that there was error in admitting the
testimony of Ms. Bryant, the wife of the defendant. Pursuant to
N.C. Gen. Stat. § 8-57(b), “The spouse of the defendant shall be
competent but not compellable to testify for the State against the
defendant in any criminal action or grand jury proceedings.” This
is a privilege belonging to a spouse and not a defendant. Thus, a
wife is competent to testify against her husband if she wishes;
however, she cannot be compelled to do so.
Here, Ms. Bryant testified on voir dire that she was
testifying pursuant to a plea agreement. Although she was in court
as a result of a subpoena, she was testifying of her own free will
and would be testifying even if she had not entered into a plea
agreement with the State. The trial court entered in the record
its findings and conclusions as follows:
[T]hat the witness has indicated that she is
here voluntarily and willingly. That the
witness would have testified regardless of any
plea arrangement. The witness has indicated
she was not -- believes she was not compelled
to be here and testify. The Court finds that
the testimony is therefore -- that the 857(b)
[sic] is not controlling in that such
provision only limits compulsion --
compulsions or compelled testimony and does
not provide a prohibition as to the
competency.
The testimony of Ms. Bryant supports the trial court's
findings which, in turn, support its conclusion that she was notcompelled to testify. Thus, the trial court did not err in
allowing Ms. Bryant to testify against her husband.
Defendant further contends that the trial court erred in
denying his motion to dismiss the charge of first degree murder.
To survive a motion to dismiss, the State must present substantial
evidence of every element of the crime charged. State v. Bruton,
344 N.C. 381, 387, 474 S.E.2d 336, 341 (1996). Substantial
evidence means "such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion." State v. Smith, 300
N.C. 71, 78-79, 265 S.E.2d 164, 169 (1980).
“First-degree murder is the intentional and unlawful killing
of a human being with malice and with premeditation and
deliberation.” State v. Thomas, 350 N.C. 315, 346, 514 S.E.2d 486,
505, cert. denied, 528 U.S. 1006, 145 L. Ed. 2d 388 (1999). “An
act is premeditated if it was thought over beforehand, but no
particular length of time is required and the time can be quite
short.... Deliberation is the 'intent to kill formed by defendant
in a cool state of blood, and not as a result of a violent passion
arising from legally sufficient provocation.'” State v. Farmer,
138 N.C. App. 127, 134, 530 S.E.2d 584, 589 (2000)(quoting State v.
Taylor, 344 N.C. 31, 45, 473 S.E.2d 596, 604 (1996)).
Defendant contends that he lacked the requisite specific
intent to commit first degree murder due to his mental incapacity.
Although there was conflicting evidence of defendant's ability to
know right from wrong, it was for the jury to determine whetherdefendant possessed sufficient mental capacity to form
premeditation and deliberation necessary for first degree murder.
The State presented evidence of the intentional and
premeditated actions of the defendant. Defendant admitted talking
about killing Mr. Perez. Defendant also admitted “[Mr. Perez]
begged me to take him to a hospital but I knew he'd tell and Jean
would never let me see my son.” Furthermore, Ms. Bryant and Mr.
Rose both testified that the defendant discussed with them, prior
to picking up Mr. Perez, his suggestion to kill Mr. Perez.
Defendant picked up Mr. Perez in Virginia, took him to an isolated
field in Currituck County, stabbed him, and left the body in the
field. After leaving the field, defendant disposed of the murder
weapon by throwing it in the trash at a rest area. Upon returning
to Virginia, defendant burned the shirt he had been wearing and the
identification cards of Mr. Perez.
We conclude there was substantial evidence of defendant's
intent and premeditation to submit the charge of first degree
murder to the jury. The trial court did not err in denying the
defendant's motion to dismiss the first degree murder charge.
Defendant next claims the trial court erred in allowing Dr.
Barboriak to testify that, in his opinion, the defendant would be
criminally responsible for his acts. Defendant contends Dr.
Barboriak testified to a legal conclusion which invaded the
province of the jury.
When an expert's opinion evidence involves “a conclusion that
a legal standard had or had not been met,” the evidence isinadmissible. State v. Myers, 123 N.C. App. 189, 197, 472 S.E.2d
598, 603 (1996)(quoting State v. Mash, 328 N.C. 61, 65-66, 399
S.E.2d 307, 310-11 (1991)). However, defendant's own expert
testified at trial that defendant “would as statutorily defined
meet the criteria for a verdict of not guilty by reason of insanity
based on my medical evaluation.”
As the defendant points out, the guiding principle of expert
testimony is whether the expert's scientific, technical or other
specialized knowledge would assist the trier-of-fact in
understanding the evidence before it. N.C. Gen. Stat. § 8C-1,
Rule 702. At the time Dr. Barboriak testified, Dr. Corvin and Ms.
Coleman had both testified that the defendant could not distinguish
right from wrong. Ms. Hahn testified that, in her expert opinion,
the defendant could distinguish right from wrong. As a medical
expert, Dr. Barboriak was asked “whether or not the Defendant knew
or could distinguish between right and wrong at the pertinent time
of [sic] this alleged murder was committed.” He responded that he
believed the defendant “would be considered responsible even if he
felt he was delusional.” Defendant concedes the trial court
admitted a great deal of foundation testimony concerning Dr.
Barboriak's interviews with the defendant. Dr. Barboriak was
subjected to extensive cross-examination regarding his opinion.
Thus, we conclude there was no prejudicial error in allowing the
testimony of Dr. Barboriak.
Defendant finally asserts that the trial court erred in
denying the requested instruction on involuntary commitment. “Thetrial court has discretion in selecting the language used in its
jury instructions; ... but '[i]f a request is made for a jury
instruction which is correct in itself and supported by evidence,
the trial court must give the instruction at least in substance.'”
State v. Duncan, 136 N.C. App. 515, 517, 524 S.E.2d 808, 810 (2000)
(citations omitted). “[U]pon request, a defendant who interposes
a defense of insanity to a criminal charge is entitled to an
instruction by the trial judge setting out in substance the
commitment procedures outlined in [Part 7 of Article 5 of Chapter
122C of the General Statutes], applicable to acquittal by reason of
mental illness.” State v. Hammonds, 290 N.C. 1, 15, 224 S.E.2d
595, 604 (1976).
Here, defendant requested an instruction on the commitment
procedures if he were to be found not guilty by reason of insanity.
The trial court instructed on involuntary commitment as follows:
If a Defendant is found not guilty by reason
of insanity, he shall immediately be committed
to a State mental facility. After the
Defendant has been automatically committed, he
shall be provided with a hearing within fifty
(50) days. At this hearing the Defendant
shall have the burden to prove by a
preponderance of the evidence that he no
longer has a mental illness or is no longer
dangerous to others. If the Court is so
satisfied it shall order the Defendant
discharged and released. If the Court finds
that the Defendant has not met his burden of
proof, then it shall order that inpatient
commitment continue for a period of time not
to exceed ninety (90) days. This involuntary
commitment will continue subject to periodic
review until the Court finds the Defendant no
long [sic] has a mental illness or is no
longer dangerous to others.
Defendant's requested instruction included additional information
regarding where the hearing would be held, that “evidence that
defendant committed a homicide in the relevant past is prima facie
evidence of dangerous,” and a definition of “dangerous to others.”
Since the jury was not to determine the release of the defendant
after an involuntary commitment, it would be irrelevant and
confusing to the jury to further instruct as the defendant
contends. Defendant was entitled to an instruction which, in
substance, was as he proposed and was an accurate statement of the
law applicable to the case. The trial court's instruction given
regarding the commitment procedures was substantially the same as
the one requested regarding the law of commitment. Thus, this
assignment of error is overruled.
In conclusion, we find no error in the trial and conviction of
the defendant on the charge of first degree murder.
No error.
Judges McGEE and BIGGS concur.
Report per Rule 30(e).
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