Appeal by defendant from judgment entered 2 November 2001 by
Judge Catherine C. Eagles in Guilford County Superior Court. Heard
in the Court of Appeals 12 March 2003.
Attorney General Roy Cooper, by Special Deputy Attorney
General James A. Wellons, for the State.
Clifford Clendenin O'Hale & Jones, LLP, by Walter L. Jones,
for defendant appellant.
McCULLOUGH, Judge.
Defendant Stephen Dayle Hudson, Jr., was arrested on 8 August
2000 and charged with first-degree arson in violation of N.C. Gen.
Stat. § 14-58 (2001). He was twenty years old at the time. It was
alleged that he had set fire to an apartment unit at the Crossing
at Chesterfield, an apartment complex located in High Point, North
Carolina, on the night of 4 August 2000. Defendant was indicted on
this charge on 4 December 2000.
Defendant was tried at the 29 October 2002 Criminal Session of
Guilford County Superior Court before The Honorable Catherine C.
Eagles. The evidence at trial tended to show that sixteen-year-old
Teresa Trnkova lived in the portion of the Crossing apartmentcomplex which had burned. Teresa was not in the building that
night, but she had seen defendant on the night of the fire.
Teresa's friend was dating defendant's younger brother, and she had
gone to his house to meet with her. Apparently, defendant had been
attempting some sort of relationship with her, although she thought
of him nothing more than a friend. Defendant suggested that they
meet up later that evening, to which she responded, “I don't know,
call me.”
Teresa lived with her father, mother and little brother at the
Crossing at Chesterfield apartment complex on the third floor. Her
father, Robert Trnkova, was in the apartment on the night of 4
August 2000. Early in the morning on 5 August 2000, he was wakened
by defendant who was knocking at his door and wanted to speak to
Teresa. Mr. Trnkova told him leave and then went back to sleep,
only to be wakened again by screams of those who were escaping the
fire. To escape the fire, he had to jump from the balcony as his
door was blocked by fire. Shortly afterward, defendant approached
Mr. Trnkova in the parking lot and again asked if Teresa was home.
Several witnesses saw defendant at the scene and thought he
smelled of alcohol. One witness, a former teacher of defendant,
testified that defendant told him that he lived on the third floor
of the building that burned. The teacher told defendant that he
knew for a fact that defendant did not live there, and defendant
“slinked away” from him. The teacher also heard defendant lie about
himself to other witnesses and the police. These witnesses relayed
this information to police officers on the scene. Still otherwitnesses testified that defendant admitted to them that he had
something to do with setting the fire.
Defendant was questioned at the scene by police and fire
officials. Defendant gave conflicting stories and was eventually
put under arrest for delaying and obstructing a police officer. A
lighter was found on him. One officer recognized defendant and
located defendant's vehicle, as it was blocked in by fire
personnel. The officer kept the van secure until it could be
investigated.
Defendant was taken into custody and transported to the police
station. While being transported to the magistrate's office,
defendant made several statements that are the subject of this
appeal and will be discussed more fully later.
There was a piece of carpet in defendant's van that looked
like a gas can had been sitting on it. Gasoline was found on the
piece of carpet. Investigators found components of gasoline inside
the apartment complex near the Trnkova apartment. Investigators
determined the fire started from the outside of the building on the
third floor. Causes for the fire, other than arson, were ruled
out. The testimony was that the fire was of such magnitude as to
be one that was started with an accelerant.
The jury found defendant guilty of first-degree arson.
Defendant was found to have a prior record level of II and was
sentenced to a minimum of 77 months to a maximum of 102 months.
Defendant makes the following assignments of error: The trial
court (I) erred by allowing an expert in forensic chemistry totestify that certain samples of debris analyzed by him contained
components of gasoline; and (II) committed reversible error by
allowing a witness to testify regarding statements or remarks made
by defendant after having been taken into custody.
I.
Defendant's first assignment of error is that the trial court
erred by allowing testimony by the State's expert witness that
contradicted his written report.
Special Agent Shawn Lee with the State Bureau of Investigation
testified for the State and was received by the trial court as an
expert in the field of forensic chemistry specializing in the
examination of burn debris. Defendant made no objection to the
expert's qualifications.
The pertinent testimony by Special Agent Lee was about three
items of debris: the Trnkova's front doormat, a collection of
debris taken from in front of the Trnkova's threshold, and the
piece of carpet found in defendant's van. Lee had prepared a
written report of his investigation and analysis of the debris from
the Crossing apartment complex. The results of this report
indicated that no identifiable accelerants, such as gasoline, were
found in debris from the Trnkova's threshold or front doormat.
There was evidence of residual gasoline found in the carpet.
Lee explained his testimony:
Well, there are certain components of
accelerants that we have to find in order to
make a definitive call. There's several
different steps that we look at, as far as
looking at the graph, comparing it with thestandard, and then again looking at the actual
components. Accelerants are made up of many,
you know, 20 to 100 different components that
we have to look at and compare. And so that's
what I looked for.
He continued by giving reasons he may not have found accelerants,
such as they might have evaporated or burned away or displaced
during the fire fighting effort.
At this point in Lee's testimony, a bench conference was held
as to whether the trial court would allow Lee to testify that the
items tested contained some of the components of gasoline, although
not enough of them to support a conclusion that gasoline was
definitively present. These facts were contained in his notes, but
were not in his report. The trial court, even though it expressed
concern, allowed Lee to continue over defendant's objection.
Lee then testified that gasoline may contain between 100 and
150 detectable components and/or ingredients. During his analysis
of the items, he found that the Trnkova doormat contained eight of
these components and the threshold debris contained six of these
components. These amounts were insufficient to base a definitive
determination that the items contained the accelerant gasoline.
The piece of carpet contained 20 to 25 components of gasoline.
Lee was thoroughly cross-examined by defendant. It was
brought to light that there were a myriad of reasons these items
may contain gasoline components independent of having gasoline
applied to them. For instance, they could have come from other
burned objects such as rubber and other material. This was the
extent of Special Agent Lee's testimony. Defendant argues on appeal that the trial court failed in its
gatekeeper duties by allowing Lee to testify as to the components
found in the doormat and other debris.
“[A]n expert is not competent to testify as to
a causal relation which rests upon mere
speculation or possibility.” Whether
scientific opinion evidence is sufficiently
reliable and relevant is a matter entrusted to
the sound discretion of the trial court.
Implicit in the rules governing the
admissibility of an expert's opinion is a
precondition that the matters or data upon
which the expert bases his opinion be
recognized as sufficiently reliable and
relevant by the scientific community.
Further, our Supreme Court has identified
several indices of reliability including:
“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.”
Leatherwood v. Ehlinger, 151 N.C. App. 15, 23-24, 564 S.E.2d 883,
889 (2002) (citations omitted), disc. review denied, ___ N.C. ___,
___ S.E.2d ___ (filed 1 May 2003).
According to defendant, by Lee's own testimony his self-
imposed standards did not lend themselves to an opinion that the
items reviewed by him contained gasoline. By allowing him to tell
the jury that he found components in the materials that are
consistent with gasoline, but not enough to make a determination of
gasoline, allowed the State to place before the jury its theory
that defendant poured gasoline onto materials and intentionallystarted the fire. This amounts to speculation and error. We
disagree.
This case dealt with circumstantial evidence. Special Agent
Lee testified that the carpet from inside defendant's van
definitely had gasoline on it. Further, he testified that he could
not say that other materials taken from the area in front of the
Trnkova's apartment had gasoline on them. He was allowed to
explain that this was because these materials had so few
components, or ingredients, of gasoline on them. This evidence is
relevant, especially considering the theory of the State and the
testimony concerning the reasons why more components were not
found. The trial court did not abuse its discretion in allowing
this testimony, and properly allowed the jury to draw its own
conclusions.
The expert did not go so far as to claim that he knew the
cause of the fire. He merely reported the findings of an
investigation. These findings were thoroughly explored on cross-
examination, primarily on the basis that the expert could not say
with impunity that gasoline had once been on the items and the many
reasons those few components were on the items independent of the
presence of gasoline. This evidence properly went to the weight of
Special Agent Lee's testimony, and not its admissibility.
This assignment of error is overruled.
II.
Defendant's only other assignment of error states that the
trial court erred by allowing the statements made by defendant whenhe was confined at the jail into evidence in violation of
defendant's
Miranda rights.
[T]he Fifth Amendment provides that “no
evidence obtained from a defendant through
custodial interrogation may be used against
that defendant at trial, unless the
interrogation was preceded by (1) the
appropriate warnings of the rights to remain
silent and to have an attorney present and (2)
a voluntary and intelligent waiver of those
rights.”
Custodial interrogation is “questioning
initiated by law enforcement officers after a
person has been taken into custody or
otherwise deprived of his freedom of action in
any significant way.”
State v. Stokes, 150 N.C. App. 211, 221, 565 S.E.2d 196, 203 (2002)
(citations omitted),
rev'd on other grounds, ___ N.C. ___, 518
S.E.2d 51 (2003).
Defendant was involved in a conversation with a High Point
Police Officer. Testimony at trial was as follows:
Q. Did he spontaneously make statements in
your presence?
A. Uh, yes.
Q. What statements did he make?
[Def. Atty.]: Objection.
THE COURT: Overruled. You may answer.
A: I-
Q. Let me ask you this, have you documented
these in your report?
A. Yes.
Q. And do you have them in quotes?
A. Uh, yes, I do.
Q. Just read those to the jury.
A. He first stated, “This is bullshit. This
is just a waste of my time. I was just trying
to get a piece of ass. I was over there to
see my girlfriend. She lives in the one that
went up.” And that's when I said, uh, I
stated, “I hope it was worth it.”
[Def. Atty.]: Object at this point. Now
we're getting into some statements
designed -
THE COURT: I can't hear you.
[Def. Atty.]: I'm objecting at this
point because he is now making comments to
[defendant] to get information.
THE COURT: All right. Step up here for
a second.
(Conference at the bench)
THE COURT: Overruled. Repeat your
question.
[Prosecutor]: Yes, ma'am.
Q. Officer Castle, I believe you said some
statement you made in the defendant's
presence. And you noted that in your report?
A. Yes, I did.
Q. What did you say?
A. I said, “I hope it was worth it.”
Q. And did the defendant say something after
that?
A. Yes, he did.
[Def. Atty]: Object. Line objection after
this.
THE COURT: Overruled. Go ahead.
A. He said she wasn't even there.
Q. And did you say something to him?
A. I did.
Q. What did you say?
A. At that point, I said, “How do you know?”
Q. And did the defendant answer you?
A. Yes, he did.
Q. What did he say?
[Def. Atty]: Objection.
THE COURT: Overruled.
A. He said, “I knocked on the door just
before it went up.”
Defendant relies on
Stokes, 150 N.C. App. 211, 565 S.E.2d 196
as support for his position that the trial court erred by admitting
the substance of the above conversation. In
Stokes, the defendant
was in custody when an officer walked up to his cell. Defendant
asked the officer what he wanted, and the officer asked him, “How?”
Id. at 221-22, 565 S.E.2d at 203-04. The question was whether or
not the defendant was being “interrogated.”
“Interrogation,” as that term is used in the
Fifth Amendment cases, is defined as “'any
words or actions on the part of police (other
than those normally attendant to arrest and
custody) that the police should know are
reasonably likely to elicit an incriminating
response from the suspect.'”
Id. at 222, 565 S.E.2d at 203 (citations omitted).
This Court found that the officer had violated the defendant's
Fifth Amendment rights and granted a new trial.
Id. at 223, 565
S.E.2d at 204. The defendant did not voluntarily blurt out aconfession, but responded to a question posed by an officer.
Regardless of whether the officer expected the type of response
given by the defendant, it was still not spontaneous on the part of
the defendant. The focus was on the fact that the officer initiated
the communication, and thus it was an interrogation.
Id.
The Supreme Court has since reversed this Court's opinion in
Stokes, ___ N.C. ___, 581 S.E.2d 51. Rather than directly
reviewing the holding of this Court, though, the Supreme Court
analyzed and reversed the case on different grounds not pertinent
to this case. Thus, the
Stokes opinion relied upon by defendant
holds no precedential value but the reasoning from that opinion is
instructive to this panel.
In the present case, defendant admits that the exchange was
initiated by defendant. However, defendant argues that it is also
clear that the officer engaged in questioning that continued the
conversation and was likely to elicit incriminating statements.
However, this Court is of the opinion that the statement by the
officer, “I hope it was worth it,” is not the type of statement
that is eliciting an incriminating response or even one that is
designed to further conversation.
However, the question, “How do you know?” poses a much closer
question, as it is virtually identical with the question in
Stokes
that was found to be improper. Yet, even if we assume that “How do
you know?” was improper, this would not end the inquiry. “A
violation of the defendant's rights under the Constitution of the
United States is prejudicial unless the appellate court finds thatit was harmless beyond a reasonable doubt. The burden is upon the
State to demonstrate, beyond a reasonable doubt, that the error was
harmless.” N.C. Gen. Stat. § 15A-1443(b) (2001). The question
elicited the response that defendant had been at the apartment
complex before it burned up. While under different circumstances
this may have been a significant statement, in the present case it
was known that defendant had been to the apartment of Teresa
Trnkova early in the morning before the fire. Her father, Robert
Trnkova testified to the fact that defendant knocked on the door
looking for Teresa and that he had told him she was not home.
Thus, defendant's statement only corroborated earlier testimony.
We fail to see any prejudicial effect this may have had on the
jury.
Therefore, this assignment of error is overruled.
No prejudicial error.
Judges TYSON and CALABRIA concur.
Report per Rule 30(e).
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