STATE OF NORTH CAROLINA
v
.
Wayne County
No. 98 CrS 19551
WILLIAM HENRY O'REILLY, JR.
Defendant
Attorney General Roy Cooper, by Special Deputy Attorney
General Ronald M. Marquette, for the State.
Adrian M. Lapas for defendant-appellant.
EAGLES, Chief Judge.
Defendant William Henry O'Reilly, Jr., was indicted and tried
for first-degree murder. Defendant was found guilty of the lesser
included offense of second-degree murder.
The evidence tended to show the following. The defendant was
employed by the victim, Leslie Elton Warrick, Jr., to assist in the
day to day operations of the victim's antique business. Before
working for the victim, defendant resided in a local halfway house
for recovering alcoholics and was employed as a manual laborer for
a local construction firm. For approximately five months prior to
the victim's death, the defendant had been living with the victim.
Since defendant suffered from a long history of alcohol abuse, thisliving arrangement was contingent upon defendant remaining alcohol
and drug free. During the days preceding the victim's death, he
became aware that defendant had resumed abusing alcohol.
Consequently, the victim began planning to evict defendant.
On 4 December 1998, Warrick sought the assistance of Donnie
Wade, another of his employees, to help move defendant out later
that day. Wade testified that he left his other job early, so that
he could help Warrick. However, by the time Wade arrived at the
victim's house, Warrick was already dead. At approximately 1:28
p.m., defendant called the Goldsboro Police Department and told the
911 operator that he had just killed the victim, Warrick, because
the victim had tried to sexually assault him.
The victim's body was found in the downstairs hallway, lying
face down in a pool of blood, with his pants around his ankles. The
victim's skull had been fractured in several places, as a result of
at least twenty-five discernible blows to the head by blunt
objects. The area surrounding the victim's body was littered with
pieces of broken marble, which had once formed the top of a
pedestal in the downstairs hallway. One piece of this marble was
still embedded in the victim's head. A brass figurine and a broken
brass candlestick holder were also found near the body. Hair
matching the victim's hair was found adhering to the candlestick
holder. There were bloodstains on the wall and baseboard behind a
pedestal adjacent to the body, which stood approximately twelve
inches off the floor. The blood drops on the wall began at floor
level and continued up the wall approximately ten inches. Blood andother indications of a struggle were discovered throughout the
upstairs portion of the house. However, defendant's room appeared
undisturbed.
The police found the defendant outside the house, wearing only
a pair of jeans. His hands, chest and jeans were covered in the
victim's blood and his breath smelled of alcohol. Defendant told
police that he had killed the victim to defend himself against a
homosexual attack.
At trial, defendant testified that before he moved in with the
victim, he expressed to the victim some concern that the victim was
a homosexual, based on rumors he had heard. Further, that defendant
agreed to move in, only after asserting to the victim that
defendant was not a homosexual. The day of victim's death,
defendant awoke to find the victim standing over him at his bed.
Both the defendant's genitals as well as the victim's genitals were
exposed. The victim was holding defendant's penis in his hand.
Defendant further testified that he blacked out immediately after
awakening, only vaguely remembering some sort of struggle, until he
called 911.
Defendant also sought to testify concerning several trips that
the victim made to New York. On voir dire, defendant testified that
the purpose for the trips were for the victim to be tested for
AIDS. The trial court sustained the prosecution's objection that
the testimony was irrelevant.
The State's evidence also included expert testimony. Doctor
Robert L. Thompson, a forensic pathologist in the Office of ChiefMedical Examiner, performed an autopsy. He testified that the
marble from the pedestal in the hall and the brass candlestick
holder could have caused the injuries suffered by the victim.
Doctor Thompson further testified that the blows which caused the
skull fractures would have caused the victim to loose
consciousness, but he could not establish the order in which the
injuries were sustained.
Special Agent John W. Bendure of the North Carolina State
Bureau of Investigation testified as an expert in the areas of
forensic and trace evidence. Agent Bendure testified that the
marble fragments surrounding the victim, including the one embedded
in the victim's head, all came from the same source. Agent Bendure
also testified that he recovered a hair, later identified as the
victim's, from the broken brass candlestick holder found in the
victim's house. Over defendant's objection, Agent Bendure testified
that bloodstain patterns on various pieces of the marble found
around the victim, as well as on the lower part of the wall near
the victim's body, indicated that the victim was already lying on
the floor when some of the blows were inflicted.
After conviction, the trial court found as a sentencing factor
in aggravation that the offense was especially heinous, atrocious,
or cruel pursuant to N.C. Gen. Stat. § 15A-1340.16(d)(7) (2001).
The court found as sentencing factors in mitigation that the
defendant had a support system in the community and that he had
been a model prisoner. The court further found that the factor inaggravation outweighed the factors in mitigation and sentenced
defendant in the aggravated range. Defendant appeals.
Defendant first argues that the trial court improperly found
as an aggravating factor that the crime was especially heinous,
atrocious, or cruel, pursuant to N.C. Gen. Stat. § 15A-
1340.16(d)(7)(2001). Specifically, defendant contends that the
evidence was insufficient to support the trial court's finding of
this factor, as compared to other second-degree murders.
We note that defendant has raised this objection for the first
time on appeal.
It is the general rule that failure to object
to an alleged error in the trial court waives
the consideration of such error on appeal.
When a defendant has failed to object to an
alleged error, but contends that an exception
“by rule or law was deemed preserved or taken
without” an objection at trial, it is the
defendant's burden to establish his right to
appellate review “by showing that the
exception was preserved by rule or law or that
the error alleged constitutes plain error.”
Defendant may carry this burden by “alert[ing]
the appellate court that no action was taken
by counsel at trial and then establish[ing]
his right to review by asserting the manner in
which the exception was preserved or how the
error may be noticed although not brought to
the attention of the trial court.” If
defendant fails to comply with these
requirements, his right to appellate review is
waived.
State v. Degree, 110 N.C. App. 638, 642, 430 S.E.2d 491, 494
(1993)(citations omitted).
Here, the trial court initially considered two factors in
aggravation, i.e., that “[t]he offense was especially heinous,
atrocious, or cruel,” N.C. Gen. Stat. § 15A-1340.16(d)(7)(2001),and that “[t]he defendant took advantage of a position of trust or
confidence to commit the offense.” N.C. Gen. Stat. § 15A-
1340.16(d)(15)(2001). When given the opportunity to comment on the
factors submitted by the State, defense counsel stated that he “did
not particularly care to be heard on number seven,” objecting only
to factor number fifteen. Therefore, defendant failed to object at
trial to the finding that the “offense was especially heinous,
atrocious, or cruel.”
Moreover, defendant has not given notice to this Court of his
failure to object at trial. Likewise, defendant has neither
asserted that the error constitutes plain error, nor shown how the
issue was otherwise preserved without an objection. Accordingly, we
hold that defendant waived his right to appellate review on this
issue.
Defendant next argues that the trial court improperly excluded
testimony concerning his awareness that the victim had undergone
AIDS testing. Specifically, defendant contends that his knowledge
that the victim had been tested for AIDS is “probative of the
intent element of second-degree murder.” After a careful review
of the record in light of defendant's argument, we disagree.
We begin by noting that “'[r]elevant evidence' means evidence
having any tendency to make the existence of any fact that is of
consequence to the determination of the action more probable or
less probable than it would be without the evidence.” N.C. Gen.
Stat. § 8C-1, Rule 401 (2001). Furthermore, “[s]econd-degree murder
is the unlawful killing of a human being with malice, but withoutpremeditation and deliberation.” State v. Robbins, 309 N.C. 771,
775, 309 S.E.2d 188, 190 (1983). “Malice may be express or implied
and . . . need not amount to hatred or ill will . . . .” Id. In
fact, “[a]n act that indicates a total disregard for human life is
sufficient to supply the malice necessary to support the crime of
second degree murder.” State v. Wilkerson, 295 N.C. 559, 581, 247
S.E.2d 905, 918 (1978).
Here, the defendant was permitted to testify regarding the
victim's reputation as a homosexual, as well as the concerns that
this awareness raised in defendant's own mind. Defendant also
testified concerning statements made by the victim about the
victim's sexual orientation. Presumably, this testimony was offered
to support defendant's theory that he was the victim of a
homosexual assault. However, after a careful review of the
defendant's testimony, we are not persuaded that defendant's
knowledge that the victim had undergone AIDS testing would have
tended to make the existence of malice either more or less
probable. While that evidence might have marginal relevance with
respect to the existence of specific intent or adequate
provocation, defendant does not argue this point. On the record
before us, this testimony has no relevance.
Given the context, it appears that the testimony was offered
more for its potential to arouse passion and prejudice in the jury,
as a justification for defendant's malice, than for any tendency it
might have to negate the existence of malice. For this reason,even assuming the testimony was relevant, its exclusion was
nevertheless proper.
Rule 403 of the North Carolina Rules of Evidence provide in
part: “[a]lthough relevant, evidence may be excluded if its
probative value is substantially outweighed by the danger of unfair
prejudice, confusion of the issues, or misleading the jury, or by
considerations of undue delay, waste of time, or needless
presentation of cumulative evidence.” N.C. Gen. Stat. § 8C-1, Rule
403 (2001). We have already noted that admission of this evidence
would create an unreasonably high danger that the jury's decision
might be based on impermissible grounds. “Whether to exclude
evidence under Rule 403 is a matter left to the sound discretion of
the trial court.” State v. Hoffman, 349 N.C. 167, 184, 505 S.E.2d
80, 91 (1998), cert. denied, 526 U.S. 1053, 119 S.Ct. 1362 (1999).
On appeal, discretionary decisions “will not be overturned unless
it is shown that the ruling was manifestly unsupported by reason
and could not have been the result of a reasoned decision.” State
v. Goode, 341 N.C. 513, 538, 461 S.E.2d 631, 646 (1995). Moreover,
the trial court need not make specific findings to support the
exclusion of evidence so long as it appears from the record that
the required balancing was conducted.
In State v. Washington, this Court held:
Although the trial court did not make a
specific finding that the probative value of
the evidence outweighed its prejudicial
effect, the procedure that was followed
demonstrated that the trial court conducted
the balancing test under Rule 403. We cannot
say that the trial court abused its discretion
. . . .
141 N.C. App. 354, 367, 540 S.E.2d 388, 397-98 (2000), cert.
denied, 353 N.C. 396, 547 S.E.2d 427 (2001).
In Washington, defendant objected to the admission of
testimonial evidence. The court excused the jury, permitted voir
dire of the witness to determine the substance of the testimony,
heard arguments from counsel, and ruled on the evidence.
Here, the State made a timely objection which the trial court
initially overruled during a bench conference. Following voir dire
of the witness and arguments from counsel, the court reconsidered
its original ruling and sustained the State's objection. It is
clear from the record that the trial court conducted the required
balancing. Even more indicative of this point, is the fact that the
court reconsidered and corrected its original ruling. Therefore, we
cannot say that the trial court abused its discretion by denying
admission of this evidence.
Finally, defendant argues that the trial court improperly
permitted Agent Bendure to testify as an expert in the field of
bloodstain pattern interpretation. Specifically, defendant contends
that Agent Bendure lacked the qualifications to render an opinion
in this area.
Agent Bendure was called primarily to testify as an expert in
forensic and trace evidence. His testimony centered predominantly
around his analysis of the pieces of marble and the candle holder
found near the victim's body. However, Agent Bendure was also
permitted to testify concerning the blood stains that appeared on
the marble fragments, as well as to the difference in appearancebetween stains caused by pooled blood and stains caused by
projected or spattered blood. Later, when Agent Bendure was shown
photographs of blood that had been found on the wall near the
victim's body, he testified that in his opinion those stains had
been projected onto the surface of the wall, from a source lower
than the bottom of the pedestal.
Before receiving Agent Bendure's opinion testimony, voir dire
was conducted concerning his qualifications. Agent Bendure
testified that his primary area of expertise was fiber analysis,
physical and elemental matching, and arson analysis. He also stated
that he was neither an expert in blood, nor a serologist. He
testified further that he had neither taught courses nor published
articles concerning blood evidence. Defendant argues that Agent
Bendure was not qualified to testify. We disagree.
Rule 702 of the North Carolina Rules of Evidence provides: “If
scientific, technical or other specialized knowledge will assist
the trier of fact to understand the evidence or to determine a fact
in issue, a witness qualified as an expert by knowledge, skill,
experience, training, or education, may testify thereto in the form
of an opinion.” N.C. Gen. Stat. § 8C-1, Rule 702(a) (2001). Our
Supreme Court has held “bloodstain pattern interpretation is an
appropriate area for expert testimony.” State v. Goode, 341 N.C.
513, 530, 461 S.E.2d 631, 641 (1995).
Moreover, it is well settled in North Carolina that:
The determination of admissibility of expert
opinion testimony is within the sound
discretion of the trial court, and the
admission of such testimony will not bereversed on appeal unless there is no evidence
to support the finding that the witness
possesses the requisite skill. “Once expertise
is demonstrated, the test of admissibility is
helpfulness.” If the witness is better
qualified than the trier of fact to form an
opinion, that witness may render an opinion
regarding the subject matter. The witness need
not be experienced with the identical subject
area in a particular case . . . [if] training
and experience gave him knowledge sufficient
to render him better qualified than the trier
of fact . . . .
McLean v. McLean, 323 N.C. 543, 556-57, 374 S.E.2d 376, 384
(1988)(citations omitted). See also State v. Goode, 341 N.C. 513,
529, 461 S.E.2d 631, 640 (1995)(“It is not necessary that an expert
be experienced with the identical subject matter at issue or be a
specialist, licensed, or even engaged in a specific profession.”).
“Once properly admitted, the weight to be given the evidence [is]
a decision for the jury.” State v. Whiteside, 325 N.C. 389, 398,
383 S.E.2d 911, 916 (1989).
Here, Agent Bendure had been a State Bureau of Investigation
Agent for nineteen years, working both in the laboratory and in the
field on major homicide investigations. For ten to fifteen years,
he had worked closely with the SBI's leading experts in the field
of bloodstain pattern interpretation and had gained a working
knowledge of the techniques utilized in this area. In addition, for
ten years, Agent Bendure had been involved in teaching crime scene
investigation at the SBI Academy and was present while the SBI's
leading experts taught the courses relating to bloodstain pattern
interpretation. Finally, Agent Bendure had testified in other casesas to bloodstain pattern interpretation, although his testimony had
been narrowly limited to the direction of blood travel.
After a thorough review of the trial transcript, it is clear
that Agent Bendure's statement that he was not a blood spatter
expert was merely his candid qualification of the scope of his
expertise. Agent Bendure was not a serologist and he was not
capable of giving an opinion as to the type of weapon used.
However, this does not render him wholly incompetent to testify in
this area. These qualifications relate more to the weight to be
given the witness's testimony, not its admissibility.
We conclude that the evidence before the trial court was
sufficient to support the finding that, based on his knowledge,
skill, and experience, Agent Bendure possessed the requisite skill
to testify as to his opinion about the direction of blood travel.
The witness was tendered only for this very limited purpose. The
trial court properly limited the scope of his opinion to the extent
of his expertise. After careful review, we cannot say that the
trial court abused its discretion in admitting Agent Bendure's
testimony.
Accordingly, the judgment of the trial court is affirmed.
Affirmed.
Judges WALKER and BIGGS concur.
Report per Rule 30(e).
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