STATE OF NORTH CAROLINA
v. Durham County
No. 99CRS63955
MICHAEL C. MCNEIL
Attorney General Roy Cooper, by Assistant Attorney General
Stewart L. Johnson, for the State.
Miles and Montgomery, by Lisa Miles, for defendant-appellant.
EAGLES, Chief Judge.
Defendant Michael McNeil was charged with first degree arson.
The State's evidence tended to show that during the early morning
hours of 19 June 1999, Lisa Leathers observed smoke coming from an
upstairs window of apartment 4-F Lawson Street, Durham, North
Carolina. The apartment was leased to Tamika Bradford, defendant's
wife. Leathers then observed a woman and her baby exit the
apartment. Soon thereafter, Leathers saw defendant exit, slam the
door and say, “'F' it, let the 'B' burn.” Leathers called the fire
department and alerted other people occupying the apartment
building. Members of the Durham Fire Department subsequentlyarrived and found a “smoldering fire” which was quickly
extinguished.
Captain Lonnie Boone, of the Durham Fire Department, and Fire
Investigator Kelley Wimberley examined the apartment and determined
that the fire originated from a bed in the apartment's upstairs,
front bedroom. Boone and Wimberley also concluded that the fire
was not of a natural or accidental origin. There were no
electrical cords behind the bed and no evidence of electrical
appliances, candles, or smoking materials near the bed. At trial,
the fire investigator stated, “[i]t looked like somebody used
available materials and caught the bed on fire.” There was also
other damage, unrelated to the fire, found in the apartment --
holes punched or kicked in the bedroom and bathroom doors, and a
bathroom door appeared to have been pulled from the hinges.
Fire Investigator Wimberley was called to the residence of
defendant's mother, Mary Stroud Whaley, where she found defendant
passed out in a car. Defendant's mother gave a statement to the
fire investigator. In her statement, Whaley indicated that
defendant had set the fire after damaging some of the doors in the
apartment. At trial, however, Whaley testified that she wrote the
statement to get her son help and that she did not recall her son
saying that he set the apartment on fire. Defendant is
schizophrenic and takes medication for his condition. Whaley
testified that when defendant arrived at her house, during the
early morning hours of 19 June 1999, he was agitated. Defendant did not present any evidence. At the conclusion of
the trial, the jury found defendant guilty as charged, and the
trial court sentenced defendant to a term of 107-138 months
imprisonment. Defendant appeals.
On appeal, defendant first argues that the trial court erred
in allowing the State to present the scientific expert testimony of
Fire Investigator Kelley Wimberley. Defendant contends that the
testimony should have been excluded, since the State failed to
provide the defense with the underlying tests and data therefrom on
which Wimberley's testimony was based pursuant to G.S. § 15A-
903(e). Defendant contends that the State's failure to provide
such evidence deprived him of “his right to due process of law, a
fair trial, confrontation, and the right to compulsory process as
guaranteed by the Fifth, Sixth, and Fourteenth Amendments of the
United States Constitution, and of his rights under Article 1,
Sections 19 and 23 of the North Carolina Constitution.” We
disagree.
G.S. § 15A-903(e) provides:
Reports of Examinations and Tests. -- Upon
motion of a defendant, the court must order
the prosecutor to provide a copy of or to
permit the defendant to inspect and copy or
photograph results or reports of physical or
mental examinations or of tests, measurements
or experiments made in connection with the
case, or copies thereof, within the
possession, custody, or control of the State,
the existence of which is known or by the
exercise of due diligence may become known to
the prosecutor.
In State v. Cunningham, this Court stated, Section 15A-903(e) must be construed as
entitling a criminal defendant to pretrial
discovery of not only conclusory laboratory
reports, but also of any tests performed or
procedures utilized by chemists to reach such
conclusions.
108 N.C. App. 185, 195, 423 S.E.2d 802, 808 (1992). This Court's
decision in Cunningham was based upon the guarantees found in
Article 1, Section 19 of our state constitution; however, we
specifically noted that there was no right to such information
under the federal constitution since the information in question
was not exculpatory. Id. at 195-96, 423 S.E.2d at 808-09.
Here, the evidence tends to show that in response to
defendant's motion for discovery, the State gave notice of its
intent to introduce into evidence at trial certain “[s]cientific
data accompanied by expert testimony” as to the origin of the 19
June 1999 fire. The State, however, noted that there were no test
results or reports of the type described in G.S. § 15A-903(e).
Defendant then filed a “Motion to Discover Testing Procedures and
Data Derived Therefrom” and a “Motion to Suppress Scientific Data
and Testimony,” alleging that the State had not provided the
defense with information about scientific testing. The State
responded, explaining that there had not been any scientific
testing performed in this case. The State noted that the testimony
of Fire Investigator Wimberley would be based on certain
information obtained from witnesses to the fire, her personal
observations of the crime scene and her experience, which enabledher to recognize the signs of a deliberately set fire. The trial
court consequently denied defendant's motion to suppress.
While defendant was entitled to test results or reports of
tests, measurements or experiments made in connection with this
case, the expert here did not generate that type of evidence during
her investigation of the crime scene. It appears that Fire
Investigator Wimberley based her testimony upon her observations,
her experience and knowledge as a fire investigator, and the
statements of others taken during her investigation. That evidence
is not discoverable under G.S. § 15A-903(e). We conclude that
defendant has shown no violation of his federal or state
constitutional rights. Accordingly, the trial court did not err in
denying defendant's motion to suppress the testimony of Fire
Investigator Wimberley.
Defendant next argues that the trial court erred in denying
his motion to dismiss. Specifically, defendant contends that the
State failed to produce sufficient evidence that the burning of the
apartment was willful and malicious. Again, we disagree.
After viewing the evidence in the light most favorable to the
State, “[i]f there is substantial evidence of the essential
elements of the offense charged, or of a lesser included offense,
and of defendant being the perpetrator, 'the trial court must deny
the motion to dismiss . . . and submit [the charges] to the jury
. . . .'” State v. McCoy, 122 N.C. App. 482, 485, 470 S.E.2d 542,
544 (quoting State v. McAvoy, 331 N.C. 583, 589, 417 S.E.2d 489,
493 (1992)), disc. review denied, 343 N.C. 755, 473 S.E.2d 622(1996). "Substantial evidence is that amount of evidence which a
reasonable mind might accept as adequate to support a conclusion."
State v. McCullough, 79 N.C. App. 541, 544, 340 S.E.2d 132, 135,
cert. denied, 316 N.C. 556, 344 S.E.2d 13 (1986). To obtain a
conviction for arson, the State must show “the willful and
malicious burning of the dwelling house of another[.]” State v.
Allen, 322 N.C. 176, 196, 367 S.E.2d 626, 637 (1988). “For a
burning to be 'wilful and malicious' . . . it must simply be done
'voluntarily and without excuse or justification and without any
bona fide claim of right.'” State v. White, 291 N.C. 118, 126, 229
S.E.2d 152, 157 (1976) (quoting State v. White, 288 N.C. 44, 50,
215 S.E.2d 557, 561 (1975)).
In the light most favorable to the State, the evidence tends
to show that during the early morning hours of 19 June 1999, a
neighbor saw smoke coming from the upstairs bedroom of the
apartment leased to defendant's wife. Thereafter, the neighbor saw
a woman and a child leave the apartment, followed by defendant, who
slammed the door and said, “'F' it, let the 'B' burn.” In
addition, defendant's mother made a statement to the fire
investigator that defendant told her that he “tore up the place
and tore the door off and set it on fire.” Further, Captain Boone
of the Durham Fire Department and Fire Investigator Wimberley both
testified that the fire originated on the bed in one of the
apartment's upstairs bedrooms, and that it appeared to have been
intentionally set. Corroborating the statement made by defendant'smother on the morning of the fire, the captain and the fire
investigator testified that the extraneous damage to several doors
in the apartment was unrelated to the fire.
The jury, therefore, had before it plenary evidence of
defendant's “willful and malicious” burning of the dwelling.
Accordingly, the trial court properly denied defendant's motion to
dismiss.
We hold that defendant received a fair trial, free from
prejudicial error.
No error.
Judges TIMMONS-GOODSON and McCULLOUGH concur.
Report per Rule 30(e).
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