Appeal by defendant from judgment entered 28 July 2003 by
Judge W. Douglas Albright in Rockingham County Superior Court. Heard in the Court of Appeals 18 November 2004.
(See footnote 1)
Attorney General Roy Cooper, by Special Deputy Attorney
General Norma S. Harrell, for the State.
MEGERIAN & WELLS, by Franklin E. Wells, Jr., for defendant-
Brian Keith Murphy (defendant) appeals his conviction for
second-degree murder. For the reasons discussed herein, we hold
that defendant received a trial free of prejudicial error, but we
remand the case for resentencing.
The State's evidence presented at trial tends to show the
following: During November 2002, defendant and Michelle May
(Michelle) shared a residence with Michelle's two children,
three-year-old Brian (Brian) and six-year-old Blair (Blair).
On 4 November 2002, defendant was babysitting Brian while Michelle
was at work. At approximately 1:00 p.m., defendant went to Brian's
room and discovered that Brian was wrapped in the covers of his bed
and was not moving. Defendant noticed that Brian's lips were blue
and that Brian had no pulse and was not breathing. After
unsuccessfully attempting to revive Brian via CPR, defendant called
9-1-1 and informed the emergency operator that Brian had
At approximately 1:04 p.m., Emergency Medical Technician James
Cockrill (Cockrill) arrived at defendant's residence. Cockrill
immediately initiated CPR on Brian and asked defendant how long hehad been down. Defendant responded that Brian had laid down in
bed at 9:00 a.m. that morning, and that after defendant had heard
gurgling coming from Brian's bedroom, he discovered Brian
twisted up in a blanket on the bed. Cockrill noticed that Brian
had a large bruise on his left jaw and several bruises on his
shoulder. Defendant informed Cockrill that the bruises were from
prior injuries. A short time later, several other emergency
responders arrived at the scene. Brian was placed in an ambulance
and transported to an area hospital, but medical personnel were
unable to revive him.
Rockingham Sheriff's Department Deputy Mark Kennon (Deputy
Kennon) was the first law enforcement official to arrive at
defendant's residence. Deputy Kennon encountered defendant as he
attempted to follow the ambulance to the hospital, and Deputy
Kennon informed defendant that he needed to gather some information
regarding the incident. Defendant told Deputy Kennon that at
approximately 9:00 a.m., defendant assisted Brian in using the
restroom and then followed Brian back into his bedroom, where he
watched Brian return to bed. Defendant informed Deputy Kennon that
he then returned to the living room of the residence, where he
slept until approximately 12:00 p.m. At approximately 12:00 p.m.,
defendant went to Brian's bedroom and discovered Brian covered in
blankets and unresponsive. Defendant told Deputy Kennon that
before calling the emergency operator, he tried unsuccessfully to
revive Brian via CPR.
After defendant related the story to Deputy Kennon, Rockingham
County Sheriff's Department Detective Phillip Smith (Detective
Smith) arrived at defendant's residence. At approximately 4:00p.m., Detective Smith drove defendant to the Detective Division of
the Sheriff's Department, where defendant would be able to provide
a formal statement of the events and answer more questions.
Following their arrival at the Detective Division, defendant and
Detective Smith were joined by Rockingham County Sheriff's
Department Lieutenant Perry Brookshire (Lieutenant Brookshire),
who had questioned defendant earlier at his residence. Lieutenant
Brookshire advised defendant of his Miranda rights and informed
defendant that he was not under arrest and could leave at any time.
The officers then began questioning defendant regarding the
During the ensuing interview, defendant initially recounted
the version of the incident he provided to the officers at his
residence. However, after approximately an hour and a half of
questioning, defendant broke down and started crying[,] and
thereafter provided a second version of the incident. In his
second version of the incident, defendant stated that at
approximately 7:15 a.m., he heard Brian call out from his room.
Defendant went into Brian's room and picked Brian up under his arm
and around his waist. Defendant stated that he then dropped
[Brian] and tried to catch him [but] [a]ll [he] got was [Brian's]
ankles and [he] yanked [Brian], trying to keep him from hitting the
floor. Defendant stated that Brian's head hit the floor
twice[,] and when defendant tried to catch it, it was like a
whipping effect that caused his head to hit the floor. Defendant
then picked [Brian] up by his thighs and noticed that Brian
looked like he was out of breath. Defendant took Brian into the
living room of the residence, where he examined Brian for injuries. After seeing no injuries, defendant asked [Brian] several times if
he was okay and he said un-huh. At approximately 9:00 a.m.,
defendant took Brian to his room, placed Brian in bed, and covered
him up. At approximately 12:45 p.m., defendant returned to Brian's
room and tried [unsuccessfully] to wake Brian up.
In a letter sent to Michelle on 4 December 2002, defendant
provided a third version of the incident. In the letter, defendant
purported to tell Michelle [t]he real truth about what happened
that day. The letter explains that after he helped Brian use the
restroom, defendant started telling Brian I'm going to get you!
[G]oing to get ya! like he always did. However, while he was
chasing Brian down the hall, Brian suddenly stopped, or tr[i]ed to
stop and turn around. In the letter, defendant states that when
Brian tried to stop, Brian fell back and fell down. Defendant
then provides the following explanation for Brian's injuries:
I heard him hit his head when he fell back on
the floor. Well when he turned and fell I was
right on top of him, and I meant to take a
short step so I could leap over him but I
misjudged where he was because I was worried
about me falling forward, and I stepped right
on his mid section. I didn't see where
because I wasn't looking down but I know it
was his mid section. . . . I picked him up
[and] held him, and sat down on the couch with
him. I didn't think that I had stepped on him
that hard. Well I held him until he stopped
crying[.] . . . I kept asking him if he was
O.K. and he keep telling [me] uh-uh (yes),
like he did. So I ask him if he wanted to lay
back down, and he said he did so he got back
[in bed and] I went back into the living
room. . . . Michelle, at no time did I think
he was badly injured or he was at any risk
when I put him back to bed. Believe me I was
as shocked as anyone, but I did do everything
I could to save him.
On 3 February 2003, defendant was indicted for the first-degree murder of Brian. Defendant's trial began the week of 21
July 2003. Prior to trial, defendant moved the trial court to
suppress the State's medical experts' conclusions and opinions
regarding Brian's injuries. Specifically, defendant objected to
the experts' statements that Brian's injuries were intentionally
inflicted and were not accidental. The trial court denied
defendant's motion, and the case proceeded to trial.
At trial, defendant testified that his third version of the
incident was a true account of the events, and that he told
Detective Smith and Lieutenant Brookshire the second version of the
incident after they kept telling [him] that if it was an accident
there would be nothing wrong with that; [he] would be free to go.
Following the close of all the evidence, the trial court instructed
the jury regarding both first-degree and second-degree murder. On
28 July 2003, the jury found defendant guilty of second-degree
murder. The trial court subsequently found as aggravating factors:
(i) that the victim of the crime was very young; (ii) that
defendant took advantage of a position of trust or confidence to
commit the offense; and (iii) that defendant was absent without
leave from the United States Army at the time of the offense. As
a mitigating factor, the trial court found that defendant had a
good reputation in the community in which he lived. After
concluding that the aggravating factors outweighed the mitigating
factor, the trial court sentenced defendant to 192 to 240 months
imprisonment. Defendant appeals.
 We note initially that defendant's brief does not contain
arguments supporting each of the original assignments of error. Pursuant to N.C.R. App. P. 28(b)(6) (2005), the omitted assignments
of error are deemed abandoned. Therefore, we limit our present
review to those assignments of error properly preserved by
defendant for appeal.
The issues on appeal are: (I) whether the trial court erred
by denying defendant's motion to exclude testimony from medical
experts; (II) whether the trial court erred by limiting testimony
regarding defendant's interaction with other children; and (III)
whether the trial court erred in instructing the jury.
 Defendant first argues that the trial court erred by
denying his motion to exclude testimony from the State's medical
experts. Defendant asserts that the medical experts should have
been prohibited from testifying that, in their opinion, Brian's
injuries could not have been the result of an accident. We
The Rules of Evidence allow an expert witness to offer
testimony in the form of opinion, even if it embraces the ultimate
issue to be decided by the factfinder. N.C. Gen. Stat. § 8C-1,
Rules 702, 704 (2003). Expert testimony as to a legal conclusion
or standard is inadmissible, however, at least where the standard
is a legal term of art which carries a specific legal meaning not
readily apparent to the expert witness. State v. Jennings
N.C. 579, 598, 430 S.E.2d 188, 196, cert. denied
, 510 U.S. 1028,
126 L. Ed. 2d 602 (1993).
In the instant case, Dr. Deborah Radisch (Dr. Radisch), a
forensic pathologist who performed an autopsy on Brian, testified
to several head injuries sustained by Brian prior to his death.
Dr. Radisch testified in pertinent part as follows: Q: And are either one of these injuries that
you described, either one of the three
that you said were distinct, alone would
have caused the death or a combination of
A: I can't really say which one or a
combination. I think that at least two
of them have the potential to cause
unconsciousness and death. It's
difficult just by looking at the
contusions to tell how severe the injury
was, and I can't tell by the brain
examination which one of those or which
one of any of them caused the brain
injury; but there are indications on the
scalp that two of them were severe scalp
-- at least severe scalp contusions.
Q: Which two are those?
A: The one at the left back of the head and
the one over the left side of the head.
Q: And do you have an opinion how long this
child could have lived after the onset of
A: Well, in this case we know that he was
unresponsive and practically dead when he
got to the emergency room. It could be
several hours until his brain -- could be
anywhere from -- it's always difficult to
say. An hour to maybe several hours, he
would just eventually lapse into a [coma]
and die without any intention.
Q: And are these the type of injuries that a
three-year-old could inflict upon
A: I don't think -- do I need to have a
mechanism for that? Inflicted by himself
in what way?
Q: By falling down on the floor?
A: In my opinion this [is] not an accidental
injury, none of the head trauma is.
Dr. Aaron Gleckman (Dr. Gleckman), a second forensic
pathologist who consulted on Brian's autopsy, offered the following
pertinent testimony at trial: Q: In your examination of Baby Brian's
brain, were you able to determine how
many injuries you were looking at?
A: Well, along with the brain, I took a look
at the external photos of the autopsy. I
was not present at the autopsy, but Dr.
Radisch showed me the photographs. In
seeing those and seeing the findings, I
came to the conclusion -- and knowing
that there were at least four impact
sites on the scalp, I concurred with Dr.
Radisch and was clear that the cause of
death was from blunt force head trauma.
. . . .
Q: Based on your opportunity to examine Baby
Brian Keith May's brain, do you have an
opinion about the cause of death?
A: Yes, I do.
Q: What is your opinion?
A: It's blunt force head trauma.
Q: In your opinion is this the kind of --
could this injury have been consistent
with an accident?
. . . .
A: Absolutely not.
A: If you all have children, nieces and
nephews you take care of, they fall down
all the time. Numerous, numerous studies
have shown that children, especially age
three, don't die from ground-level falls,
that type of an accident; and if they
did, we probably would have no one grow
up past the age of five because children
fall all the time. In this case there
are several impacts to the head. If he
had been in a fall and it was from a
significant height, he'd have one, if
any; he might have none.
Defendant contends that this evidence should have been
suppressed because it allowed the doctors to tell the jury thatthe [S]tate had met its burden of proof on one of the elements
necessary to the murder charge, that the injuries leading to death
were inflicted intentionally. However, N.C. Gen. Stat. § 8C-1,
Rule 702(a) provides that [i]f 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. Our
Supreme Court has recognized that
in determining whether expert medical opinion
is to be admitted into evidence[,] the inquiry
should be not whether it invades the province
of the jury, but whether the opinion expressed
is really one based on the special expertise
of the expert, that is, whether the witness
because of his expertise is in a better
position to have an opinion on the subject
than is the trier of fact.
State v. Wilkerson
, 295 N.C. 559, 568-69, 247 S.E.2d 905, 911
(1978). Thus, [t]he test is . . . whether the 'opinion required
expert skill or knowledge in the medical or pathologic field about
which a person of ordinary experience would not be capable of
satisfactory conclusions, unaided by expert information from one
learned in the medical profession.' Id
. at 569, 247 S.E.2d at 911
(quoting State v. Powell
, 238 N.C. 527, 530, 78 S.E.2d 248, 250
In the instant case, both Dr. Radisch and Dr. Gleckman offered
evidence via testimony and opinion consistent with the testimony
and opinion previously allowed by this Court. See State v. McAbee
120 N.C. App. 674, 686, 463 S.E.2d 281, 288 (1995) (holding that
the trial court did not abuse its discretion by allowing two
pathologists to offer their opinion as to whether child's injurieswere intentionally or accidentally inflicted), disc. review denied
342 N.C. 662, 467 S.E.2d 730 (1996); State v. West
, 103 N.C. App.
1, 8, 404 S.E.2d 191, 197 (1991) (Our appellate courts have held
that, based on a child's clinical presentation and history, a
medical expert may testify that the wounds presented are
inconsistent with accidental origin. The question and answer in
this case falls under this general rule. (citations omitted)).
Dr. Radisch and Dr. Gleckman both based their opinions upon their
years of experience as pathologists, during which they performed
and consulted on numerous autopsies. Dr. Radisch explained that
she based her determination on the location of Brian's injuries,
noting that the curvature of Brian's skull would have prevented the
four distinct areas of contact on Brian's scalp from occurring as
a result of an accidental fall. Dr. Radisch testified that she
believed Brian suffered at least two separate injuries, or at
least two impacts, and that the lack of any distinct contrecoup
brain contusions led to her conclusion that Brian had not been
injured by a fall. As detailed above, Dr. Gleckman based his
conclusion on his recognition that children do not die from ground
level falls, and that the amount of injuries to Brian's head
prevented him from determining that Brian had fallen from a height
significant enough to kill him. In light of the foregoing, we
conclude that the trial court did not err by allowing the doctors
to testify that, in their opinion, Brian suffered intentionally,
rather than accidentally, inflicted injuries. Therefore,
defendant's first argument is overruled.
 Defendant next argues that the trial court erred by
limiting testimony from defense witnesses regarding defendant'sinteraction with other children. At trial, defendant offered
testimony from several mothers of other children that defendant
babysat. In order to allow defendant to elicit testimony
concerning his character for peacefulness, the trial court allowed
defendant to question the witnesses regarding his interaction with
other children. However, the trial court prohibited defendant from
specifically questioning the witnesses regarding whether he had
abused other children. Defendant asserts that the trial court
erred by restricting the witnesses' testimony, in that such
evidence was admissible as competent character evidence. We
The transcript reveals that the trial court based its decision
upon this Court's opinion in State v. Hoffman
, 95 N.C. App. 647,
383 S.E.2d 458 (1989), disc. review denied
, 326 N.C. 52, 389 S.E.2d
101 (1990). In Hoffman
, the defendant argued that the trial court
erred by not allowing [his] witnesses to testify that he had not
molested their children and by not allowing several children to
testify that he had not molested them. Id
. at 648, 383 S.E.2d at
459. This Court disagreed with the defendant's argument, holding
that [s]uch testimony was totally irrelevant to the defendant's
. We conclude that our decision in Hoffman
to the instant case.
Rules 404 and 405 of the Rules of Evidence address the
admission of character evidence at trial. While Rule 404 provides
for the circumstances in which character evidence is admissible,
Rule 405 provides for the form in which it may be presented.
State v. Bogle
, 324 N.C. 190, 200-01, 376 S.E.2d 745, 751 (1989).
Although Rule 404(a) is a general rule of exclusion, prohibitingthe introduction of character evidence to prove that a person acted
in conformity with that evidence of character[,] the Rule permits
the accused to offer evidence of a 'pertinent trait of his
character' as circumstantial proof of his innocence. Id
. at 201,
376 S.E.2d at 751 (quoting N.C. Gen. Stat. § 8C-1, Rule 404(a)(1)).
In criminal cases, in order to be admissible as a 'pertinent'
trait of character, the trait must bear a special relationship to
or be involved in
the crime charged. Bogle
, 324 N.C. at 201, 376
S.E.2d at 751 (emphasis in original). Thus, in the case of a
defendant charged with a crime of violence, the peaceable character
of the defendant would be 'pertinent[.]' Id
In the instant case, as discussed above, defendant attempted
to elicit testimony during direct examination regarding specific
acts of nonviolence towards other children. However, Rule 405
provides that, where evidence of character or a trait of character
is admissible under Rule 404, proof may be made by testimony as to
reputation or by testimony in the form of an opinion. N.C. Gen.
Stat. § 8C-1, Rule 405(a) (2003). Specific incidents of conduct
may be explored during cross-examination. Id
. We note that [i]n
cases in which character or a trait of character of a person is an
essential element of a charge, claim, or defense, proof may also be
made of specific instances of his conduct. N.C. Gen. Stat. § 8C-
1, Rule 405(b). However, we also note that
Of the three methods of proving character
provided by the rule, evidence of specific
instances of conduct is the most convincing.
At the same time it possesses the greatest
capacity to arouse prejudice, to confuse, to
surprise, and to consume time. Consequently
the rule confines the use of evidence of this
kind to cases in which character is, in the
strict sense, in issue and hence deserving ofa searching inquiry. When character is used
circumstantially and hence occupies a lesser
status in the case, proof may be only by
reputation and opinion.
N.C. Gen. Stat. § 8C-1, Rule 405 (commentary).
In the instant case, although defendant's allegedly peaceable
character was pertinent to the charge of first-degree murder,
neither defendant's character nor a trait of his character were
essential elements of the charge or defendant's defense. Thus,
elicitation of evidence regarding defendant's character during
direct testimony must have been accomplished via opinion or
reputation testimony rather than specific instance testimony.
Therefore, in light of the foregoing, we conclude that the trial
court did not err by limiting defendant's witnesses to testimony
regarding defendant's reputation for peacefulness. Accordingly,
defendant's second argument is overruled.
 Defendant next argues that the trial court erred in
instructing the jury. At the close of all the evidence, the trial
court provided the following pertinent instructions to the jury:
Malice may be inferred from evidence that the
victim's death was done by an attack by hand
alone without the use of other weapons, where
the attack was made by a mature man upon a
Defendant asserts that the trial court improperly instructed the
jury regarding malice because unequivocal evidence of severe
beating is necessary for such an instruction. We disagree.
Contrary to defendant's assertion, there is no requirement in
our case law that evidence of a severe beating exist in order for
the trial court to provide a malice-inference instruction.
Instead, our Supreme Court has held that malice may be inferredfrom the 'willful blow by an adult on the head of an infant.'
State v. Elliott
, 344 N.C. 242, 268, 475 S.E.2d 202, 213 (1996)
(quoting State v. Perdue
, 320 N.C. 51, 58, 357 S.E.2d 345, 350
(1987)), cert. denied
, 520 U.S. 1106, 137 L. Ed. 2d 312 (1997).
Similarly, in State v. Huggins
, where the defendant argued that in
order to find malice, there must have been a sustained attack or
pattern of abuse, this Court rejected the defendant's argument
and held that, while a finding of malice may be supported by
evidence of a sustained attack of short duration or sustained abuse
that proximately causes a child's death, case law has not
establish[ed] a minimum standard by which malice must be judged.
71 N.C. App. 63, 67-68, 321 S.E.2d 584, 587 (1984), disc. review
, 313 N.C. 333, 327 S.E.2d 895 (1985). Therefore, while
malice is not necessarily inferred where death results from an
attack upon a strong or mature person, malice may be inferred where
death results from an attack made by a strong person and inflicted
upon a young child, because [s]uch an attack is reasonably likely
to result in death or serious bodily injury to the child. Elliot
344 N.C. at 269, 475 S.E.2d at 213.
Whether an attack made with hands or feet
alone which proximately causes death gives
rise to either a presumption of malice as a
matter of law or to an inference of malice as
a matter of fact will depend upon the facts of
the particular case. For example, if an
assault were committed upon an infant of
tender years or upon a person suffering an
apparent disability which would make the
assault likely to endanger life, the jury
could, upon proper instructions by the trial
court, find that the defendant's hands or feet
were used as deadly weapons. Nothing else
appearing, the trial court properly could
instruct the jury that, should they find the
defendant used his hands or feet as deadly
weapons and intentionally inflicted a woundupon the deceased proximately causing his
death, the law presumes that the killing was
unlawful and done with malice. See State v.
, 51 N.C. 505 (1859); State v. Sallie
N.C. App. 499, 186 S.E.2d 667, cert. denied
281 N.C. 316, 188 S.E.2d 900 (1972) and cases
cited therein. See generally
Annot. 22 A.L.R.
2d 854 (1952).
State v. Lang
, 309 N.C. 512, 525-26, 308 S.E.2d 317, 324 (1983).
In the instant case, defendant was a twenty-eight-year-old
male, and Brian was a three-year-old child who was suffering from
a broken collarbone. Evidence introduced at trial tended to show
that Brian received multiple traumatic blows to the head, which
were intentionally inflicted while Brian was in defendant's care.
We conclude that this evidence is sufficient to support the trial
court's instruction, and accordingly, we overrule defendant's third
 In two motions for appropriate relief filed with his
appeal, defendant argues that the trial court erred by sentencing
him in the aggravated range. Defendant asserts that the trial
court was prohibited from sentencing him in the aggravated range
because the aggravating factors were not submitted to the jury. We
Our Supreme Court has recently examined the constitutionality
of this state's structured sentencing scheme in light of the United
States Supreme Court's decisions in Apprendi v. New Jersey
U.S. 466, 147 L. Ed. 2d 435 (2000) and Blakely v. Washington
U.S. 296, 159 L. Ed. 2d 403 (2004). State v. Allen
, 359 N.C. 425,
359 S.E.2d 437 (2005). In Allen
, the Court concluded that, when
[a]pplied to North Carolina's structured sentencing scheme, the
rule of Apprendi
is: Other than the fact of a priorconviction, any fact that increases the penalty for a crime beyond
the prescribed presumptive range must be submitted to a jury and
proved beyond a reasonable doubt. 359 N.C. at 437, ___ S.E.2d at
___ (citing Blakely
, 542 U.S. at ___, 159 L. Ed. 2d at 413-14;
, 530 U.S. at 490, 147 L. Ed. 2d at 455; N.C. Gen. Stat. §§
15A-1340.13, 15A-1340.14, 15A-1340.16, 15A-1340.17).
In the instant case, following defendant's conviction for
second-degree murder, the trial court found as aggravating factors:
(i) that the victim of the crime was very young; (ii) that
defendant took advantage of a position of trust or confidence to
commit the offense; and (iii) that defendant was absent without
leave from the United States Army at the time of the offense. The
trial court found these factors unilaterally, failing to submit the
factors to the jury for proof beyond a reasonable doubt. The State
argues that the trial court's errors were harmless and do not
require reversal under the circumstances. However, in Allen
Court rejected application of the harmless error doctrine to such
sentencing errors, noting that [b]ecause 'speculat[ion] on what
juries would have done if they had been asked to find different
facts' is impermissible, the Washington Supreme Court concluded, as
do we, that '[h]armless error analysis cannot be conducted on
Sixth Amendment violations.' 359 N.C. at 448, ___ S.E.2d
at ___ (quoting State v. Hughes
, 154 Wash. 2d 118, 148, 110 P.3d
192, 208 (2005)). Thus, in light of our Supreme Court's decision
, we conclude that the trial court committed reversible
error by sentencing defendant in the aggravated range.
(See footnote 2)
Therefore,we remand the case for resentencing.
No error at trial; remanded for resentencing.
Judges TYSON and GEER concur.