Appeal by defendant from judgment entered 28 September 2001 by
Judge James U. Downs in McDowell County Superior Court. Heard in
the Court of Appeals 17 February 2003.
Attorney General Roy Cooper, by Assistant Attorney General
Steven F. Bryant, for the State.
C. Frank Goldsmith, Jr., and Amy E. Ray, for defendant-
appellant.
MARTIN, Judge.
Defendant was indicted for the first degree murder of her
mother, Cynthia Barlowe. She appeals from a judgment sentencing
her to life imprisonment without parole entered upon her conviction
by a jury of first degree murder.
Briefly summarized only to the extent required for an
understanding of the dispositive issue raised by defendant's
appeal, the evidence at trial tended to show that Cynthia Barlowe
was murdered in the garage of her home in Nebo, N.C., on 23
September 2000, by defendant's then-boyfriend, Jeremy Dunlap.
Dunlap, who was twenty years old at the time of the murder,
testified to choking Mrs. Barlowe with his arm and then striking
her in the head three times with a large metal flashlight. The
evidence also showed that defendant, a seventeen-year-old highschool senior at the time, was present at the house at the time of
the murder and participated in cleaning up the garage, transporting
her mother's body to a relatively secluded location near a lake
where it was set on fire, and letting her mother's car roll off a
nearby embankment. The evidence is in conflict as to whether
defendant joined Dunlap in planning and committing the murder.
Testimony by both Dunlap and defendant, as well as others with
whom Mrs. Barlowe and defendant spoke on the day of the murder,
indicates that Mrs. Barlowe had discovered defendant and Dunlap
together in defendant's bed the night before. According to
defendant, Mrs. Barlowe ordered Dunlap to leave and expressed anger
and disappointment with defendant. Defendant had also been found
by her mother and father in bed with a different young man a few
months earlier. Her father had been enraged and had struck the
wall near defendant with a pool cue and dragged the young man
around the room by his hair before he could leave the house. Mr.
Barlowe had then punished defendant by refusing to speak with or
show affection to her for several days.
The morning after Mrs. Barlowe found defendant and Dunlap in
defendant's bed, defendant drove Mrs. Barlowe to a party in their
neighborhood. Mrs. Barlowe told defendant they would talk about
the previous night's incident when she returned and she would tell
defendant's father about it when he came home from work that
evening and that “her father would never look at [defendant] the
same again . . . .” After driving her mother to the party,
defendant returned home. According to defendant's statement to police, Dunlap called
her house and told her to bring her mother home from the party or
he would kill defendant. She did so, and as they were entering the
house through the garage, she heard her mother scream and turned to
see Dunlap choking her. She ran and hid and when she returned to
the garage, Dunlap had cleaned the garage up with a hose. He then
forced defendant to drive either his car or her mother's with her
mother's body to the place where Dunlap attempted to burn the body.
Dunlap then took her back home and watched as she got ready for
work, then followed her to her father's business and then to work.
She later provided additional information, indicating, inter alia,
that (a) Dunlap had come to the residence for her mother's car, (b)
Dunlap had wanted to talk to Mrs. Barlowe about marrying defendant,
and (c) defendant had known Dunlap was going to hurt her mother,
but not that he would kill her. In her written statement,
defendant said:
Jeremy Dunlap did choke my mother. I didn't
call anyone in fear of the thought that I
would be guilty of the murder of my mother. I
did not know that he was going to attack her.
I thought that he had left but he was inside
of my garage and he snuck up behind her. I
tried to make him let her go. But when he
refused I ran away and came back upstairs to
him cleaning up the blood at 2:00 pm. and he
then grabbed me and forced me to help him.
And instead of calling anyone for help I
pretended that nothing happened in fear of
being found guilty for my mother's death. I
am willing to testify against Jeremy Dunlap.
Defendant testified at trial that Dunlap was waiting for her
outside her house when she returned from taking her mother to the
party. She stated that they discussed the need to talk with Mrs.Barlowe to “straighten things out.” To that end, she drove to the
party and told her mother in private that Dunlap was at their house
and wanted to talk to her. She stated that her mother then told
friends that their dog was sick and she had to leave. They drove
back to the house and were entering the house through the garage
when her mother and Dunlap began arguing behind her. She continued
into the house, but then heard her mother scream and turned to see
Dunlap choking her mother. She then ran to her room and hid under
a blanket. She returned to the garage after an indeterminate
period and saw blood everywhere, her mother on the floor, and
Dunlap standing over her mother with a flashlight. Dunlap then
told her to help him clean up and she did. She also followed his
directions in disposing of the body and car. She drove her
mother's car with the body in it for a while, but then did not want
to be in that car anymore and pulled over and they switched cars.
Defendant also testified that Dunlap did everything regarding
setting fire to her mother's body and rolling her mother's car off
a cliff.
In contrast, Dunlap testified at trial that killing Mrs.
Barlowe had been defendant's idea, though they worked out the plan
together and he carried out the murder himself. He testified that
defendant went between the house and garage several times while he
choked her mother, asking each time she came back out whether “it
was done yet.” He also stated that after Mrs. Barlowe was on the
floor and had at least lost consciousness, he let go of her and
defendant asked him, “Are you sure she's dead?” When he respondedthat he did not know, defendant then went into the house and came
back with a heavy flashlight, handed it to him, and said, “Hit
her.” According to Dunlap, defendant was present in the garage
when Dunlap struck Mrs. Barlowe. They then cleaned the garage
together, with defendant bringing out towels and the plastic bags
that were put over her mother's head and body and hosing off the
garage floor herself.
The State also presented testimony by SBI Agent Mike Garrett
with respect to his analysis of bloodstains in the Barlowe's garage
and on clothing defendant had said she was wearing during the
events surrounding her mother's murder. Specifically, Agent
Garrett testified to the difference between “transfer” and
“spatter” bloodstains, the latter being created when blood is
impacted and sprays out from the point of impact. He testified
that multiple small stains on the knee and back of the pants which
defendant was wearing at the time of the murder tested positive for
blood and appeared to be spatter stains. He further testified that
they were not consistent with stains that would be created by drops
of blood that fell or dripped from above.
___________________________________
Although the record on appeal contains twenty-two assignments
of error, only three of them have been addressed in defendant's
appellate brief. Those assignments of error not addressed in a
party's brief are deemed abandoned and will not be reviewed by this
Court. N.C.R. App. P. 28(a) (2002). The dispositive issue is
whether the trial court erred in denying defendant's motions tocontinue the trial in order to enable defendant to obtain an expert
witness on bloodstain pattern interpretation. For the reasons
which follow, we conclude the denial of the motions violated
defendant's constitutional rights and entitle her to a new trial.
Defendant argues the denial of her motions to continue
prevented her from being able to evaluate Agent Garrett's report,
prepare to cross-examine him, or present contradictory evidence
with respect to the interpretation of the bloodstains at issue in
this case.
[A] motion for continuance is ordinarily
addressed to the sound discretion of the trial
court. . . . However, if the motion to
continue is based on a constitutional right,
the trial court's ruling thereon presents a
question of law that is fully reviewable on
appeal.
State v. T.D.R., 347 N.C. 489, 503, 495 S.E.2d 700, 708 (1998)
(citations omitted). “Whether a defendant bases his appeal upon an
abuse of judicial discretion, or a denial of his constitutional
rights, to entitle him to a new trial because his motion to
continue was not allowed, he must show both error and prejudice.”
State v. Moses, 272 N.C. 509, 512, 158 S.E.2d 617, 619 (1968). If
the error amounts to a violation of defendant's constitutional
rights, it is prejudicial unless the State shows the error was
harmless beyond a reasonable doubt. N.C. Gen. Stat. § 15A-1443(b)
(2002);
State v. Gardner, 322 N.C. 591, 369 S.E.2d 593 (1988);
State v. Cody, 135 N.C. App. 722, 522 S.E.2d 777 (1999).
The right to present evidence in one's own
defense is protected under both the United
States and North Carolina Constitutions. As
noted by the United States Supreme Court . . .“[t]he right of an accused in a criminal trial
to due process is, in essence, the right to a
fair opportunity to defend against the State's
accusations. The rights to confront and
cross-examine witnesses and to call witnesses
in one's own behalf have long been recognized
as essential to due process.”
State v. Fair, 354 N.C. 131, 149, 557 S.E.2d 500, 515 (2001)
(quoting
Chambers v. Mississippi, 410 U.S. 284, 294, 35 L. Ed. 2d
297, 308 (1973)),
cert. denied, ___ U.S. ___, 153 L. Ed. 2d 162
(2002); U.S. Const., Amend. V, XIV. In addition, “the right to
face one's accusers and witnesses with other testimony is
guaranteed by the sixth amendment to the federal constitution,
applicable to the states through the fourteenth amendment, and by
Article I, sections 19 and 23 of the North Carolina Constitution.”
State v. Davis, 61 N.C. App. 522, 525, 300 S.E.2d 861, 863 (1983).
Improper denial of a motion to continue in order to prepare a
defense may also constitute violation of a defendant's Sixth
Amendment right to effective assistance of counsel.
State v.
Rogers, 352 N.C. 119, 124, 529 S.E.2d 671, 675 (2000).
An inquiry into alleged constitutional error by a trial court
in denying a motion to continue requires scrutiny of the record and
consideration of the circumstances of the individual case.
Avery
v. Alabama, 308 U.S. 444, 84 L. Ed. 377 (1940). The North Carolina
Supreme Court has summarized the analysis applied by federal courts
in reviewing refusals to grant a continuance where a constitutional
right is implicated:
Courts have discussed numerous factors
which are weighed to determine whether the
failure to grant a continuance rises to
constitutional dimensions. Of particularimportance are the reasons for the requested
continuance presented to the trial judge at
the time the request is denied.
A continuance in a criminal trial
essentially involves a question of procedural
due process. Implicitly, the courts balance
the private interest that will be affected and
the risk of erroneous deprivation of that
interest through the procedures used against
the government interest in fiscal and
administrative efficiency.
When the individual interest at stake is
the defendant's life or liberty, the
individual interest is especially compelling.
An interest such as . . . defendant's life is
factored heavily into the analysis.
On the other side of the scale, the
government has an interest in procuring
testimony within a reasonable time.
State v. Roper, 328 N.C. 337, 349, 402 S.E.2d 600, 607,
cert.
denied, 502 U.S. 902, 116 L. Ed. 2d 232 (1991) (citations omitted).
North Carolina courts have followed suit in analyzing similar
alleged violations under our state constitution.
Id. at 352, 402
S.E.2d at 608. Some of the factors considered by North Carolina
courts in determining whether a trial court erred in denying a
motion to continue have included (1) the diligence of the defendant
in preparing for trial and requesting the continuance, (2) the
detail and effort with which the defendant communicates to the
court the expected evidence or testimony, (3) the materiality of
the expected evidence to the defendant's case, and (4) the gravity
of the harm defendant might suffer as a result of a denial of the
continuance.
See State v. Branch, 306 N.C. 101, 291 S.E.2d 653
(1982);
State v. Searles, 304 N.C. 149, 282 S.E.2d 430 (1981);
State v. Smathers, 287 N.C. 226, 231-32, 214 S.E.2d 112, 115(1975);
State v. Martin, 64 N.C. App. 180, 182-83, 306 S.E.2d 851,
852-53 (1983).
In the present case, the alleged offense occurred on 23
September 2000 and evidence log records, as well as Agent Garrett's
testimony, indicate the police took custody of the clothing worn by
defendant at the time of the murder on 24 September 2000.
Defendant made a request for voluntary discovery on 31 January 2001
that included a request for “any results of . . . tests . . . made
in connection with the case . . . together with any physical
evidence . . . available to the State.”
See N.C. Gen. Stat. § 15A-
903(e) (2002). On 23 April 2001, the State provided defendant with
three pages of physical evidence log sheets dated 24 September
2000. One of the attached log sheets contained the entry: “green
pants w/ blood stains [from] Eva's bedroom.” On 16 May 2001,
defendant made a Motion to Compel Discovery and Motion to Produce
Exculpatory Evidence, requesting again,
inter alia, a disclosure of
any test results in accordance with G.S. § 15A-903(e). This motion
was heard on 24 May 2001, but no disclosure or request was made
specifically regarding the green pants. Another Notice of Intent
was provided to defendant on 6 September 2001 that dealt with
hearsay statements by the victim and defendant.
On 13 September, defendant served a Motion to Continue
asserting that the State had, on 10 September, delivered to defense
counsel a report containing Agent Garrett's findings from his
bloodstain pattern analysis of the green pants and that “since
receiving the report . . . [defense counsel had] made diligentefforts to identify potential experts in this field . . . .”
Defense counsel explained that the one expert with whom contact had
been made would not be able to do the analysis and prepare counsel
for cross-examination or be available to give testimony by 19
September, the day trial was scheduled to start. The motion also
stated “the potential experts that have been identified by defense
counsel are located outside of North Carolina, and there is
currently no commercial air traffic in the United States [due to
the events of 11 September 2001] by which evidence and documents
may be delivered to and from the expert that defendant selects.”
After hearing the motion on 13 September, the trial court declined
to grant a continuance.
On 17 September, defendant submitted a Renewed Motion to
Continue, supported with affidavits by defense counsel and three
potential expert witnesses. The affidavit by defendant's counsel
indicated that he had, on 13 September, presented to the trial
court copies of two reports which he had received from the State.
One report, prepared on 27 April 2001 and provided to the district
attorney, detailed inspection of the crime scene and seizure of
items, including the pants, indicating the search and collection of
evidence that had taken place on 24 September and 5 October 2000.
According to the affidavit and the State's response to the motion
to continue, defendant was provided with this report on 27 or 28
August 2001. The report itself mentions the discovery of small
stains on the garage floor “characteristic of impact spatter” and
the collection of “[g]reen pants with visible stain.” The otherreport, which defense counsel claims was disclosed on 10 September,
was Agent Garrett's bloodstain analysis, indicating the discovery
of about 36 stains that “appeared to be blood spatter” on the front
right knee and rear of the pants. This report indicated that the
analysis had been performed on 20 August 2001 and typed on 21
August, with copies sent to the District Attorney. In his
affidavit, counsel went on to detail his efforts to locate an
expert witness in the days following 10 September:
In summary, counsel has consulted with a
number of experienced members of the criminal
defense bar around the state, and all of those
attorneys have identified only three expert
witnesses in this subject matter: Marilyn T.
Miller, Barton P. Epstein, and Stuart H.
James. . . . Two of the witnesses state that
they are familiar with the identity of other
experts in their field, and that there are
none currently in North Carolina outside of
law enforcement employees. None of these
witnesses is reasonably available to become
prepared to testify on behalf of the defendant
on such short notice.
Defense counsel also indicated that his law partner had contacted
two potential expert witnesses in North Carolina, but neither was
qualified to conduct bloodstain pattern analysis. In both the
motions and the affidavit, defense counsel urged the importance of
an expert witness on this issue in light of the mandatory life
sentence without parole for which defendant was at risk. All three
of the experts mentioned by counsel submitted affidavits regarding
their availability, the earliest of which would have been mid-
October 2001 and the latest, November 2001. The resumes each
expert attached evidenced extensive experience, publications, and
study on the subject. In the State's Response to the Motion to Continue, the State
alleged that defense counsel had in fact been provided with a copy
of Agent Garrett's bloodstain pattern analysis on 27 August,
although it had been marked as a “draft” then. The contents of the
“draft” attached to the State's Response and the finalized report
received by defense counsel on 10 September were otherwise
identical. Defense counsel's law partner also submitted an
affidavit indicating that she had re-contacted the three experts on
17 September to determine whether they could have been available
for trial on 19 September had they been contacted on 27 August and
all three indicated it would not have made a difference due to
prior commitments. After a hearing in which (1) defense counsel
argued specifically that the ability of the defense to rebut the
State's blood spatter evidence was critical because it contradicted
certain of defendant's statements and (2) the State asserted that
if a denial of the motion included a bar against presentation of
the State's blood spatter evidence the State would rather not try
the case at that time, the trial court denied the motion, stating:
The Court in its discretion denies the Renewed
Motion to Continue and _ _ but I might further
add that the so-called reasoning that the
Court used in chambers . . . was not that
which was asserted in the motion. It was
discretionary then, it's discretionary now
based on the totality of the circumstances.
Considering all of the factors which our courts have said are
relevant to a determination of whether the denial of a motion to
continue implicates constitutional guarantees, we are compelled to
hold the denial of defendant's motion to continue in this case waserror and violated her constitutional rights to confront her
accusers, to effective assistance of counsel, and to due process of
law. U.S. Const., Amend. V, VI, XIV; N.C. Const. Art. I, §§ 19,
23. It is clear that the blood spatter evidence was critical to
the State's case against defendant because it was the only physical
evidence potentially placing her at the scene
at the time of the
murder. Aside from any conclusions the jury might draw from that
aspect alone, evidence of the presence of “impact spatter” also is
contradictory of defendant's testimony that she was not in the
garage during the murder and corroborative of Dunlap's testimony
that she was present and, in fact, handed him the flashlight. In
a case largely dependent on the credibility of the two, the
potential harm to the defense due to the lack of opportunity to
refute this evidence by informed cross-examination of Agent
Garrett, rebuttal of his testimony by someone qualified to express
an opinion, or to provide other explanations for the presence of
blood spatter on the pants, is palpable.
Moreover, it does not appear that defendant unreasonably
delayed discovery efforts, and even assuming the State is correct
in its assertion that defense counsel was provided a draft of Agent
Garrett's analysis report on 27 August, defendant has shown that
none of the experts contacted by her counsel would have been
available for trial even if they had been contacted immediately
upon defendant's receipt of the report. If, as claimed by defense
counsel, the report was not received until 10 September, the delay
between its receipt and the 13 September motion to continue is notunreasonable, considering the distractions imposed upon nearly all
of our citizens and the difficulties likely to have been
encountered in contacting and communicating with potential expert
witnesses due to the tragic events in New York City and Washington,
D.C. on 11 September 2001. Lastly, unlike many cases in which the
defendant did not indicate to the trial court the names of
witnesses or the substance of testimony they hoped to obtain by
virtue of a continuance,
e.g.,
State v. McCullers, 341 N.C. 19, 460
S.E.2d 163 (1995), defense counsel in the present case provided
such information both orally and in writing. Given the materiality
of the issue on which defendant sought expert advice and testimony
and the potential penalty faced by defendant if convicted, we can
find no sound reason within the record for the denial of her motion
for a continuance, and the State has not carried its burden of
showing the court's ruling was harmless beyond a reasonable doubt.
Because defendant's constitutional rights were violated by the
trial court's ruling on this issue, we hold that defendant is
entitled to a new trial.
Due to the decision to grant defendant a new trial, we decline
to address defendant's second and third arguments.
New trial.
Chief Judge EAGLES and Judge GEER concur.
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