An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA02-541

NORTH CAROLINA COURT OF APPEALS

Filed: 15 July 2003

STATE OF NORTH CAROLINA

     v .                              Guilford County
                                     No. 98 CRS 19268
MICHAEL DUANE KELLY

    Appeal by defendant from judgment entered 22 May 2001 by Judge Henry E. Frye, Jr., in Guilford County Superior Court. Heard in the Court of Appeals 12 February 2003.

    Attorney General Roy Cooper, by Special Deputy Attorney General Steven M. Arbogast, for the State.

    Lisa Miles for defendant appellant.

    McCULLOUGH, Judge.

    Defendant Michael Duane Kelly was indicted for first degree murder on 2 November 1998. Defendant was tried before a jury at the 1 May 2001 Criminal Session of Guilford County Superior Court. Defendant had been tried once before on the same charge, but that ended in mistrial.
    At trial, the State's evidence tended to show that Lisa Kenly, the victim, and defendant had been in a relationship for approximately 14 years. Their relationship had produced two children, Vanessa and Michael Jr. On the weekend of 3 May 1997, Lisa had planned to go on vacation to the beach. According to all accounts, Lisa planned on leaving defendant and taking the children with her upon her return.     Lisa worked for a catering service and had planned to work a wedding reception on 3 May 1997 before starting her vacation. Lisa, however, never showed up at the job site. Instead, her body was found on 5 May 1997 in a wooded area near a Motel 6.
    When her body was found, Detective Mike Fain was called to the scene. Detective Fain had been in contact with defendant since defendant called police when he found out Lisa did not show up for work. There was no obvious trauma to the body, save a few ant bites. She had on no jewelry and had no identification. Her car was found at the nearby Motel 6. The driver's seat was apparently pushed back. Inside the car, the detective found a blue and a black bag. The blue bag contained clothes and some cigarettes. Several acquaintances of Lisa, including her daughter, testified that the clothes were not of the type that Lisa would take to the beach and that it was missing all of her toiletries. There was also testimony that Lisa always wore her rings which were not found on her person or at the scene.
    On the same day, Detective Fain, along with Detective Kim Soban and Police Chaplain Brian Donnelly, went to defendant's residence to show defendant a picture and get an identification of the body. Detective Fain believed that the body was Lisa Kinley. According to Fain and Soban, it took two hours before defendant would look at the picture. He was crying and rolling around on the floor. Detective Soban described the lamenting as forced or acted out rather than natural. Defendant did eventually identify the body in the picture as Lisa. Initially, Detective Fain believedthat Lisa might have died of an overdose, as she was known to smoke marijuana and the Motel 6 was in a “heavily infested drug area.”
    Testimony revealed that during the weeks prior to Lisa's leaving for vacation, she and defendant had been having trouble with their relationship. A couple of heated exchanges took place in which defendant stated that he would kill her before he would let her leave with the kids. Yet, the couple was attempting to reconcile.     The police, suspicious of defendant, came to the home of defendant on 8 September 1998. Defendant allowed the police to thoroughly search the house. The search revealed a sawed-off shotgun. Defendant informed the police that he kept the gun to kill snakes in the woods, but that they could take the gun if it was illegal. On 28 September 1998, defendant was arrested for possessing a weapon of mass destruction. While he was being held on this charge he talked to Larry Baker, a cell mate, about the investigation.
    On 1 October 1998, Baker gave a statement to Detective Fain. According to the statement, Baker had asked defendant as to why he was in jail. Defendant gave Baker a couple of stories as to Lisa's death. First, he told Baker that he had hired some black individuals to place the body and the car where they were found. Second, defendant spoke later about how Lisa was going to leave him and take his kids away. They had tried to talk it out, but when it did not end well, defendant smothered her with a blanket. Then he said that he placed the body where it was found, and had removed all jewelry and money to make it look like a robbery.     Defendant was indicted for murder the following November in 1998. Another cell mate of defendant's, Albert Garrard, testified as to statements defendant made to him in May 1999 while in jail on the murder charge. According to Garrard, defendant told him that nobody would ever be able to prove that he had killed Lisa. He stated that he was not worried about Baker testifying because he would not live to do so. Defendant also drew him a map of the area in which the body was found and gave it to Garrard. Garrard turned the map into the authorities.
    Vanessa Kelly, Lisa and defendant's daughter, testified that she knew that her mother was contemplating leaving defendant. She remembered her mother leaving that morning dressed for work and wearing her rings, which she always did.
    Notably, Vanessa had testified for defendant at his first trial. However, a few months afterward, she found her mother's rings hidden in a jewelry box in their house. She had not seen the rings since the day her mother left. She took the rings to the correctional facility where defendant was being held, but did not reveal that she had found them. She asked him what happened to the rings. He replied that they had been stolen, to which she asked how they could have been stolen when she found them in the house. Defendant accused her of trying to put him on his “deathbed” and of being brainwashed.
    Defendant testified in his own defense. He denied that he ever told anyone that he would kill Lisa rather than let her leave with the kids. On the Friday night of the weekend that Lisa was togo on her vacation, defendant testified that he and Lisa went on a drive to talk things out. According to him, they had patched things up. He denied that he killed Lisa or had her killed. He also denied telling his cell mates anything to that effect. He did acknowledge that he had drawn a diagram of where she was found for Garrard. This was apparently done just to inform Garrard of where she was found. As to the jewelry found by the daughter, defendant stated that they were on the dresser in his home when the police asked him what jewelry she was wearing the last time he saw her.
    The jury found defendant guilty of first degree murder. The Honorable Henry E. Frye, Jr., sentenced defendant to life imprisonment without parole. Defendant appeals.
    Defendant brings forth two questions on appeal: Did the trial court err in (I) admitting opinion testimony of Dr. Thomas Clark where Dr. Clark could not provide proper foundation for his opinion and the trial court did not hear evidence from the defense before allowing the testimony; and (II) allowing a hearsay declaration by decedent that defendant had previously beaten the victim?

I.
    Defendant's first assignment of error is that the trial court erred by allowing Dr. Thomas Clark to testify as to the cause and mechanism of Lisa Kinley's death.
    Dr. Clark testified for the State as an expert in the field of forensic pathology. Before Dr. Clark testified, the trial court allowed defendant to conduct a voir dire examination of Dr. Clark regarding the cause of Ms. Kinley's death. This hearing and Dr.Clark's trial testimony revealed that he performed the autopsy on Ms. Kinley. Other than three faint bruises on her right arm and ant bites, he found no other evidence of external trauma. The toxicology report came back negative for alcohol and/or drugs, ruling out an overdose. The doctor made note of certain interior trauma, specifically extensive intra-alveolar hemorrhage. Dr. Clark stated that this hemorrhaging could occur as a result of suffocation or asphyxiation. Yet, Dr. Clark noted in the autopsy report that the cause of death was undetermined.
    While this is so, Dr. Clark was of the opinion that Ms. Kinley most likely did not die of natural causes. Specifically, Dr. Clark noted in the autopsy that “based on the circumstances and lack of anatomic findings, this death is considered a homicide.” Dr. Clark felt that, based on additional information provided by the police, and as there was no other reasonable cause of death, she likely died of some form of asphyxiation or suffocation. Dr. Clark explained the lack of external physical findings by stating that “occlusion of the nose and mouth most often leaves [no physical evidence]” and that it is “commonly accepted by forensic pathologists that asphyxiation of the external airway would probably not leave injury.” The information provided by the police was that defendant had possibly held a blanket over her airways (the occlusion), and that she was found in a wooded area where she would not have been expected to be.
    While Dr. Clark believed that suffocation usually left no physical evidence, he admitted that there are no scientific studiesto support that opinion. He also said that he did not exclude all other possible causes of death, either because in his opinion they were unlikely or there was no available way to exclude them (such as anaphylactic shock from insect bites, allergic reactions, or lightning strike). He did not review her medical history to determine allergies, or apparently consider the facts to defendant's satisfaction that she was found near a golf course (where lightning strikes often occur), with a wrench and a crack pipe nearby. Dr. Clark justified his conclusion of suffocation without physical evidence from his experience gained by performing over 3,500 autopsies.
    Defendant moved to have Dr. Paige Hudson testify before the trial court during voir dire to rebut Dr. Clark's assertion that it was commonly accepted that suffocation does not leave physical evidence. The trial court denied this motion, but allowed defendant an offer of proof of the testimony of Dr. Hudson in support of his motion to prohibit Dr. Clark's testimony.
    The trial court felt that the lack of foundation went to the weight of the opinion rather than its admissibility. Thus, Dr. Clark was allowed to give his opinion that Lisa Kinley most likely died of suffocation, and that this manner of death usually leaves no external signs. Dr. Hudson testified later in the trial, and after which defendant renewed his attempt to strike Dr. Clark's opinion. Again, the trial court denied the motion.
    Defendant's argument here is twofold: first, that the trial court erred by allowing the opinion, and second, that the trialcourt erred when it refused to hear testimony from Dr. Hudson during voir dire before allowing Dr. Clark's opinion.
    As to Dr. Clark's opinion, the trial court did not err by allowing it into evidence.
            In its role as gatekeeper, the pertinent question for the trial court is not whether the matters to which the expert will testify are scientifically proven, but simply whether the testimony is sufficiently reliable. See Daubert v. Merrell Dow, 509 U.S. 579, 125 L. Ed. 2d 469 (1993) (“general acceptance” test of admissibility for scientific evidence no longer applicable; test is whether methodology underlying testimony is sufficiently valid and reliable); see also, Kumho Tire Co. v. Carmichael, 526 U.S. 137, 143 L. Ed. 2d 238 (1999) (holding Daubert's general “gatekeeping” obligation of determining reliability applies not only to scientific knowledge, but also to technical or other specialized knowledge). Our Supreme Court, citing Daubert, has set forth the proper analysis for our courts in determining the admissibility of expert testimony, including technical or other specialized knowledge. See State v. Goode, 341 N.C. 513, 461 S.E.2d 631 (1995).

            According to Goode, when faced with the proffer of expert testimony, the trial court must first “determine whether the expert is proposing to testify to scientific, technical, or other specialized knowledge that will assist the trier of fact to determine a fact in issue.” Id. at 527, 461 S.E.2d at 639. This requires a preliminary assessment of whether the basis of the expert's testimony is “sufficiently valid and whether that reasoning or methodology can be properly applied to the facts in issue.” Id.; see also State v. Berry, 143 N.C. App. 187, 203-04, 546 S.E.2d 145, 156-57, disc. rev. denied, 353 N.C. 729, 551 S.E.2d 439 (2001). In making this determination of reliability, our Supreme Court noted that our courts have focused on the following indicia of reliability: “. . . 'the expert's use of established techniques,the expert's professional background in the field, the use of visual aids before the jury so that the jury is not asked “to sacrifice its independence by accepting [the] scientific hypotheses on faith,” and independent research conducted by the expert.'” 341 N.C. at 528, 461 S.E.2d at 640 (citations omitted).

Taylor v. Abernethy, 149 N.C. App. 263, 272-73, 560 S.E.2d 233, 239 (2002), disc. review denied, 356 N.C. 695 (2003).
    Here, defendant did not question Dr. Clark's expertise in the field of forensic pathology. It appears from his background and techniques that his testimony would certainly be relevant and helpful to the jury, and further comport with the factors in Goode. Dr. Clark based his opinion upon the evidence derived from the victim's body, as well as evidence from the police investigation surrounding the circumstances of her death. While defendant contends that Dr. Clark's position that suffocation usually does not leave physical evidence behind was not supported by any scientific documentation, this is not a requirement of an opinion. “While it is certainly true that the trial court must act as gatekeeper in determining the reliability of expert testimony being offered, there is simply no requirement that a party offering the testimony must produce evidence that the testimony is based in science or has been proven through scientific study.” Abernethy, 149 N.C. App. at 272, 560 S.E.2d at 239. The breadth of experience attained by Dr. Clark gives him enough of a basis to testify to such.
    Further, the trial court left the strength of Dr. Clark's opinion up to the jury by allowing defendant's expert, Dr. Hudson,to refute Clark's opinion that Ms. Kinley suffocated. Indeed, Dr. Hudson could not and did not rule out suffocation from possible causes of death. As we find no abuse of discretion in the trial court's allowing Dr. Clark's opinion, defendant's assignment of error is overruled. See State v. Spencer, 119 N.C. App. 662, 664, 459 S.E.2d 812, 814, disc. review denied, 341 N.C. 655, 462 S.E.2d 524 (1995).
    As to defendant's argument that the trial court erred by not hearing from Dr. Hudson prior to making a ruling, we disagree. The trial court must have great latitude and discretion in making these reliability determinations. See Kumho Tire Co., 526 U.S. at 152, 143 L. Ed. 2d at 253; State v. Davis, 142 N.C. App. 81, 90, 542 S.E.2d 236, 241, disc. review denied, 353 N.C. 386, 547 S.E.2d 818 (2001). We find no abuse of discretion here. The trial court took note of Dr. Hudson's opinion, as it allowed defendant to give it as an offer of proof. The trial court, upon hearing this opinion, noted that its position on the admissibility of Dr. Clark's testimony remained unchanged. Defendant was not prejudiced by the trial court's actions.
    Defendant's assignment of error is overruled.

II.

    Defendant's second assignment of error contends that the trial court erred by allowing testimony from a witness that improperly attacked defendant's character.     While defendant was on the stand, the State cross-examined him on the history of the relationship between himself and the victim, Lisa Kinley. After establishing that Lisa Kinley had an affair with another man, the State continued:
        Q.    And you beat her up pretty badly over that, didn't you?

        A.    No, I did not.

            MR. BRYSON: Objection.

            THE COURT: Overruled.

        Q. You didn't beat her with a board behind the old Zayers on Westchester Drive here in High Point?

        A.    No, I did not.

        Q. And did you know that Lisa had told [defendant's sister Deborah Kelly] and other family members? Her first statement was that she had been hit by a car?

            MR. CARROLL: Object.

            MR. CARROLL: 803(3).

        A. Yes, she made the statement when I was in Ohio.

            THE COURT: Overruled.

        Q. But those marks that she had on her were actually from your beating her with a board?

            MR. BRYSON: Object.

            THE COURT: Overruled. You can answer.

        A.    No, it was not.

    Later, the State called a rebuttal witness, Deborah Kelly, defendant's sister. Kelly testified that in 1992 or 1993, she observed Lisa Kinley with bruises on the side of her face and arm. When asked how she got these bruises, defendant objected on hearsay grounds. A voir dire was held to determine the admissibility of her answer under N.C. Gen. Stat. § 8C-1, Rule 803(3) (2001). Kelly testified that, at first, Lisa told her that she had been in a car accident. However, soon after, she confessed to Kelly that defendant had given her those bruises.
        Q. And did she say what he had done?

        A. Yes. She said that he took her out behind the old Zayer's parking lot, and got a board like as big as a paddle, beat her with it like a child. And that's why she was bruised up all over.

        Q. And did she explain why he did that?

        A. Yes.

        Q. What did she say?

        A. She said that, uh, Robin [the wife of Donnie Smalls, the man Lisa was having an affair with] had called [defendant] up in Ohio and told Mike that [Lisa] and Donnie were having an affair. And he come home and told her he knew about it, and did that to her.

Defendant argued that her testimony should not come in under Rule 803(3) as it was a mere recitation of facts rather than an expression of emotion or state of mind. See State v. Lathan, 138 N.C. App. 234, 530 S.E.2d 615, disc. review denied, 352 N.C. 680, 545 S.E.2d 723 (2000). The trial court disagreed and allowed the testimony under Rule 803(3). Kelly's trial testimony added only that Lisa initially stated the cause was a car wreck because her mother was present at the time, and that Lisa explained to her that defendant beat her because he was jealous.    Defendant first contends that it was improper for defendant to be cross-examined on the alleged beating as it was irrelevant to the case. However, evidence of defendant's assault on the woman that he was on trial for murdering was relevant for the purpose of malice. State v. Alston, 341 N.C. 198, 229, 461 S.E.2d 687, 703 (1995), cert. denied, 516 U.S. 1148, 134 L. Ed. 2d 100 (1996) (evidence of prior assault by defendant on victim admissible for the purpose of showing malice, premeditation, deliberation, intent or ill will against the victim, and thus relevant to issue other than character). Further, this evidence also added to the list of incidents that showed the volatile state of the relationship between decedent and defendant. Cross-examination of defendant on this point was proper.
    Second, defendant contends that it was error to allow the rebuttal testimony of Debbie Kelly. The State contends that the trial court correctly allowed Kelly's testimony under Rule 803(3) exception to the hearsay rule as a statement of then-existing state of mind. Defendant points to the case of Lathan, 138 N.C. App. 234, 530 S.E.2d 615, which holds that:
            Thus, where a statement was made in isolation, unaccompanied by a description of emotion, courts have tended to find that hearsay testimony relating that statement falls outside the scope of Rule 803(3). Conversely, where the witness described the victim's demeanor or attitude when making the statement, the courts have tended to admit the testimony pursuant to 803(3).

Id. at 240, 530 S.E.2d at 621. When statements are mere recitations of fact unaccompanied by emotion, they do not come inunder Rule 803(3). See State v. Murillo, 349 N.C. 573, 586-91, 509 S.E.2d 752, 759-62 (1998), cert. denied, 528 U.S. 838, 145 L. Ed. 2d 87 (1999).
    The State counters with the fact that the emotion need not be specifically stated within a statement for it to qualify for the then-existing state of mind exception. See State v. Brown, 350 N.C. 193, 200-02, 513 S.E.2d 57, 62-63 (1999); State v. Kimble, 140 N.C. App. 153, 163-64, 535 S.E.2d 882, 889-90 (2000); see also State v. Patterson, 146 N.C. App. 113, 127-29, 552 S.E.2d 246, 257- 58, disc. review denied, 354 N.C. 578, 559 S.E.2d 549 (2001). These cases further the proposition that “it was not necessary for [declarant] to state explicitly to each witness that she was afraid, as long as the 'scope of the conversation . . . related directly to [declarant's] existing state of mind and emotional condition.'” State v. Wilds, 133 N.C. App. 195, 206, 515 S.E.2d 466, 475 (1999) (quoting State v. Mixion, 110 N.C. App. 138, 148, 429 S.E.2d 363, 368, disc. review denied, 334 N.C. 437, 433 S.E.2d 183 (1993)).
    While the present case appears to be a close question, it appears from the record that it is unnecessary for this Court to fully consider it. The record reveals that this information had already come to the jury's attention prior to the State's rebuttal witness' testimony. Indeed, this was part of the State's argument at trial in addition to its hearsay argument.
    During the State's case-in-chief, Detective Michael Fain testified that he had interviewed Vanessa Kelly, the daughter ofdecedent and defendant, in December of 1999, which was after the first trial and the discovery of the rings by Vanessa. The conversation between the two was tape-recorded, and a transcript of the tape had been made. Both were introduced at trial.
    Defendant objected to the substance, or at least parts, of the conversation being introduced to the jury. One particular part referred to Debbie Kelly's testimony “concerning an incident between the defendant and Lisa Kinley concerning her relationship with a Donnie Small, and her statement to the police, I believe, was that the defendant had, according to what Lisa had told her, had beaten her up because of that affair, and initially she said it looked like she had been hit by a car, but Lisa later told her that the defendant had inflicted the injuries.” Defendant tried to have the trial court redact this part of the transcript before it went to the jury, but the trial court let it into evidence, noting defendant's standing objection. The conversation was allowed into evidence to corroborate Vanessa's trial testimony. Defendant assigned this as error in its brief to this Court. However, defendant did not argue this issue in his brief.
    According to N.C.R. App. P. 28(b)(5), an assignment of error not set out in the brief of the appellant will be deemed abandoned. N.C.R. App. P. 28(b)(5) (2003). Therefore, it seems clear that since defendant failed to give any support or address this assignment of error on appeal, defendant has abandoned it. Accordingly, defendant cannot prevail on the present argument even if the rebuttal testimony of Debbie Kelly was improperly admittedunder Rule 803(3), for this testimony was already for the jury's consideration. See also Nunnery v. Baucom, 135 N.C. App. 556, 564- 65, 521 S.E.2d 479, 485-86 (1999) (“'[H]aving once allowed th[e] evidence to come in without objection, the defendants waived their objections to the evidence and lost the benefit of later objections to the same evidence.' State v. Burnett, 39 N.C. App. 605, 610, 251 S.E.2d 717, 720, cert. denied, 297 N.C. 302, 254 S.E.2d 924 (1979) (citations omitted).”). Any error, therefore, would be harmless. This assignment of error is overruled.
    No prejudicial error.
    Judges TYSON and CALABRIA concur.
    Report per Rule 30(e).

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