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All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
STATE OF NORTH CAROLINA v. ANDRE IJARN EDWARDS, Defendant
Filed: 15 November 2005
1. Discovery-_motion for production--laboratory protocols associated with DNA
The trial court did not commit prejudicial error in a prosecution for first-degree murder,
first-degree rape, and other crimes by denying defendant's written motion to allow into evidence
the laboratory protocols associated with DNA testing that would be presented at trial, because the
error was harmless beyond a reasonable doubt when the question of defendant's identity was not
at issue during this trial based on defendant's choice of defense. Thus, the State did not need the
DNA evidence to link defendant to the crimes. N.C.G.S. § 15A-903(e).
2. Evidence--failure to allow expert testimony--psychologist
The trial court did not err in a prosecution for first-degree murder, first-degree rape, and
other crimes by excluding testimony of defendant's psychologist concerning certain conversations
he had with defendant, because the State did not choose to explore the basis for the defense
expert's opinion at trial, and thus, the trial court was not obligated to allow the expert to testify
regarding the statements made by defendant.
3. Homicide--attempted murder--motion to dismiss--sufficiency of evidence
The trial court did not err by denying defendant's motion to dismiss the charge of
attempted murder of an 11-month old child because the evidence viewed in the light most
favorable to the State revealed that: (1) a jury could reasonably conclude from the facts that
defendant knew that no one would discover the mother's body and the child for a long time in a
deserted area; and (2) the evidence was sufficient for a jury to decide that defendant would not
expect an 11-month-old child to survive in a remote location, but would starve, die of
dehydration, and/or exposure, or suffer from such effects of nature as insects and wild animals
before anyone found him.
4. Appeal and Error--preservation of issues--failure to argue
Assignments of error that defendant did not argue on appeal are deemed abandoned under
N.C. R. App. P. 28(a).
Appeal by defendant from judgments entered 26 March 2004 and
11 October 2004 by Judge Quentin T. Sumner in Nash County Superior
Court. Heard in the Court of Appeals 22 August 2005.
Attorney General Roy Cooper, by Special Deputy Attorney
General A. Danielle Marquis, for the State.
Winifred H. Dillon for defendant-appellant.
This appeal arises out of defendant Andre Ijarn Edwards'
conviction of a number of charges resulting from a carjacking and
the subsequent rape and murder of Ginger Hayes and the attempted
murder of her 11-month-old son, Nicholas. On appeal, defendant
argues that the trial court erred by denying his motion to allow
into evidence the laboratory protocols associated with DNA testing
in this case. We hold this error to be harmless beyond a
reasonable doubt because the question of defendant's identity was
not at issue during his trial, and therefore the State did not need
the DNA evidence to link defendant to the crimes. Defendant also
argues that the trial court erred by not allowing his psychologist
to testify to the substance of certain conversations he had with
defendant. Because, however, the State did not choose to explore
the basis for defendant's expert's opinion at trial, the trial
court was not obligated to allow the expert to testify regarding
the statements made by defendant. As for defendant's final
contention, we hold, based on our review of the record, that the
trial court properly denied defendant's motion to dismiss the
charge of attempted murder.
The State's evidence in this case tended to show the
following. On 30 June 2001, Jeremy and Ginger Hayes, their 11-
month-old son Nicholas, and Ginger's brother Tony West were driving
a Ford Focus from Supply, North Carolina to their home in Virginia
Beach, Virginia. The family stopped for a break at a CVS pharmacyin Greenville, North Carolina, the halfway point of their trip.
While Tony and Jeremy went inside the store to purchase snacks and
drinks, Ginger remained outside to change Nicholas' diaper in the
Ginger had the back passenger side door open and was bending
over changing Nicholas' diaper, when defendant approached and
pushed her into the back seat. Defendant followed her into the car
and made her crawl up to the front passenger side, while he crawled
up to the driver's seat. Defendant then backed the car out of the
CVS parking lot and drove away with Ginger and Nicholas. A postal
worker who was passing through the CVS parking lot witnessed these
events and immediately called the police on his cell phone. Jeremy
and Tony meanwhile came out of the store and also contacted the
police when they realized that Ginger, Nicholas, and the car were
Approximately an hour later, a surveillance camera at a Food
Lion grocery store in Rocky Mount, North Carolina filmed defendant
and Ginger purchasing batteries and withdrawing $100.00 in cash
with Ginger's debit card. The video captured defendant standing
directly behind Ginger and whispering in her ear as she was
completing the transaction at the register.
Less than an hour later, defendant appeared at a friend's
house in Nashville, North Carolina, driving the red Focus. Ginger
and Nicholas were not with him. Defendant bragged about jewelry he
had recently gotten, including a gold chain, a bracelet, and rings.
He told his friends he had met a girl from Virginia. That evening, approximately eight hours after defendant had
forced Ginger into the car at the CVS, C.D. Thompson of Nashville
was walking his dog Charlie through a deserted field about a half
mile from his house. Charlie alerted to something in the tall
grass, and Mr. Thompson, thinking the dog had found a snake, went
to investigate. He found Nicholas lying face down in briars and
honeysuckle. The baby, who was wearing nothing but a diaper, was
sunburned and surrounded by flies. Approximately 50 feet away, Mr.
Thompson saw Ginger lying on the ground. Neither Nicholas nor
Ginger were moving or making any noise, and Mr. Thompson thought
they were both dead.
Mr. Thompson returned home and called 911. The police arrived
shortly thereafter, and as investigators approached the scene,
Nicholas lifted his head. He was transported to the hospital still
alive, where he was treated for first and second degree sunburn,
scratches, and dehydration. A pediatric critical care expert
testified that Nicholas' injuries, especially the sunburns, were
life-threatening and that if he had not been found before nightfall
he could have died as a result of exposure and dehydration.
Ginger was not alive when investigators reached her. An
autopsy revealed that she had been raped and strangled and had
suffered a broken neck and a skull fracture as the result of at
least four heavy blows to the head. Her head, back, and shoulders
bore rust-colored, circular marks, which were later determined to
have come from an old tire rim that had been deposited in the fieldnear her body. A forensic pathologist testified that Ginger died
of head and neck trauma.
Defendant was arrested the same day. At the time of his
arrest, he was in possession of Ginger's jewelry and some cocaine.
He was charged with first degree murder, attempted first degree
murder, three counts of armed robbery, two counts of first degree
kidnapping, first degree rape, possession of cocaine, and
unauthorized use of a motor vehicle. He was tried capitally and
convicted of all charges, except that instead of three counts of
armed robbery, he was convicted of one count of armed robbery for
the jewelry he took from Ginger and two counts of common law
robbery for the $100.00 withdrawn from the ATM and for the Ford
Focus. Following a capital sentencing proceeding, the jury was
unable to agree on a recommendation as to punishment, and on 26
March 2004, defendant received a sentence of life in prison without
parole for his first degree murder conviction, as well as various
other consecutive aggravated sentences for his other nine
 Defendant's first argument on appeal is that the trial
court committed prejudicial error in denying portions of his
written motion for production of evidence. Specifically, defendant
contends he was entitled to receive from the State a copy of the
laboratory protocols related to any DNA test results that would be
presented at trial. The State argued at the motion hearing that
defendant was not entitled to these protocols because "[thedefense] can get that from the person that testifies. I don't know
why that makes any matter at all before _ for their individual to
look at." The trial court subsequently denied defendant's motion
for production with respect to the protocols.
N.C. Gen. Stat. § 15A-903(e) (2003), repealed by 2004 N.C.
Sess. Laws 154 § 4, at 517-20, which was in effect at the time of
defendant's trial, provides:
Upon motion of a defendant, the court must
order the prosecutor to provide a copy of or
to permit the defendant to inspect and copy or
photograph results or reports of physical or
mental examinations or of tests, measurements
or experiments made in connection with the
case, or copies thereof, within the
possession, custody, or control of the State,
the existence of which is known or by the
exercise of due diligence may become known to
the prosecutor. In addition, upon motion of a
defendant, the court must order the prosecutor
to permit the defendant to inspect, examine,
and test, subject to appropriate safeguards,
any physical evidence, or a sample of it,
available to the prosecutor if the State
intends to offer the evidence, or tests or
experiments made in connection with the
evidence, as an exhibit or evidence in the
This Court has held that "Section 15A_903(e) must be construed as
entitling a criminal defendant to pretrial discovery of not only
conclusory laboratory reports, but also of any tests performed or
procedures utilized by chemists to reach such conclusions." State
v. Cunningham, 108 N.C. App. 185, 195, 423 S.E.2d 802, 808 (1992).
"This information is necessary for the defendant to understand the
testing procedure and to conduct an effective cross-examination of
the State's expert witness." State v. Fair, 164 N.C. App. 770,
774, 596 S.E.2d 871, 873 (2004) (granting a new trial after a trialcourt erred in not requiring the State to provide discovery of data
collection procedures because the requested information constituted
laboratory protocols). Based on this Court's prior interpretations
of N.C. Gen. Stat. § 15A-903(e), the State concedes, and we are
compelled to hold, that the trial court erred in denying defendant
access to the protocols that he requested before his trial.
Defendant has, however, failed to demonstrate sufficient
prejudice from this error. It is not entirely clear whether this
Court should apply a harmless error analysis under N.C. Gen. Stat.
§ 15A-1443(a) (2003) or whether the State is required to prove
harmless error beyond a reasonable doubt under § 15A-1443(b). See
Cunningham, 108 N.C. App. at 196_97, 423 S.E.2d at 809 (applying
the harmless beyond a reasonable doubt standard when the State
improperly failed to produce an SBI laboratory report). We need
not resolve this question since we have concluded that the error
was harmless beyond a reasonable doubt.
Here, defendant argues that the DNA evidence was the only
evidence offered by the State to support the charge of first degree
rape. He has overlooked the fact that defendant's trial counsel
asserted in his opening statement that "[t]he facts of what
happened in this case are not in dispute" and that defendant
"accepts responsibility for what happened on that day." Throughout
the trial, the defense focused on defendant's mental state and not
on whether defendant was in fact the perpetrator of the crimes,
including the rape. Indeed, defendant conducted no cross-
examination at all of the State's DNA expert. In short, the DNAtesting became, in effect, immaterial to the trial because of
defendant's choice of defense. Any error regarding production of
the protocols was, therefore, harmless beyond a reasonable doubt.
Cf. State v. Thompson, 110 N.C. App. 217, 225, 429 S.E.2d 590, 595
(1993) (court's failure to allow defendant's fingerprint expert to
testify was harmless error when the prosecution did not need to use
the fingerprints to link defendant to the crime).
 Defendant next argues that the trial court erred by
excluding testimony of defendant's psychiatrist, Dr. James Hilkey,
concerning conversations that the psychiatrist had with defendant.
Defendant contends that since these conversations formed the basis
for Dr. Hilkey's expert opinion as to defendant's mental state at
the time of the crimes, they should have been admissible at trial
under N.C.R. Evid. 705.
Rule 705 provides:
The expert may testify in terms of
opinion or inference and give his reasons
therefor without prior disclosure of the
underlying facts or data, unless an adverse
party requests otherwise, in which event the
expert will be required to disclose such
underlying facts or data on direct examination
or voir dire before stating the opinion. The
expert may in any event be required to
disclose the underlying facts or data on
cross-examination. There shall be no
requirement that expert testimony be in
response to a hypothetical question.
According to the official commentary, N.C.R. Evid. 705 is designed
to allow an "expert to give his opinion without prior disclosure of
the underlying facts unless an adverse party requests otherwise." N.C. Gen. Stat. § 8C-1, Rule 705 cmt. (2003). It is well-
established, however, that "'Rule 705 does not . . . make the bases
for an expert's opinion automatically admissible.' . . . 'Only if
an adverse party requests disclosure must the trial court require
the expert to disclose the underlying facts of his opinion.'"
State v. Workman, 344 N.C. 482, 495, 476 S.E.2d 301, 308 (1996)
(quoting State v. Baldwin, 330 N.C. 446, 456, 412 S.E.2d 31, 37
(1992)). See also Baldwin, 330 N.C. at 456_57, 412 S.E.2d at 37_38
(holding that the trial court's decision to exclude defendant's
hearsay statements, which defendant contended should have been
admitted under Rule 705, was not an abuse of discretion); State v.
Ballard, 127 N.C. App. 316, 320_21, 489 S.E.2d 454, 457 (1997)
(same), rev'd on other grounds, 349 N.C. 286, 507 S.E.2d 38 (1998).
Here, because the State did not choose to explore the basis
for Dr. Hilkey's opinion, the trial court was not obligated to
allow the expert to testify as to statements that formed the basis
for this opinion. The only statements that defendant contends
should have been admitted are (1) a statement of remorse and (2) a
statement that defendant claimed to have little memory of the
events at issue. Since defendant's remorse was not relevant to his
ability to premeditate and deliberate, and since the trial court
allowed Dr. Hilkey to testify extensively regarding his opinion and
what he relied upon, excluding only the actual words used by
defendant, we can perceive no abuse of discretion. See State v.
Bullard, 312 N.C. 129, 140, 322 S.E.2d 370, 376 (1984) (holding
that the trial court is "afforded wide latitude of discretion whenmaking a determination about the admissibility of expert
 Defendant's final argument on appeal is that the trial
court erred in denying defendant's motion to dismiss the charge of
attempted murder of Nicholas. He contends that the State failed to
present sufficient evidence that defendant had the requisite intent
to kill, as Nicholas' death was not a foregone conclusion at the
time defendant abandoned him in the field. In so arguing,
defendant is incorrectly viewing the evidence in the light most
favorable to him rather than to the State.
When considering a motion to dismiss based on the
insufficiency of the evidence, the trial court must determine
whether the State has presented substantial evidence of every
essential element of the crime and that the defendant was the
perpetrator. State v. Robinson
, 355 N.C. 320, 336, 561 S.E.2d 245,
255, cert. denied
, 537 U.S. 1006, 154 L. Ed. 2d 404, 123 S. Ct. 488
(2002). "'Substantial evidence is such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.'"
State v. Matias
, 354 N.C. 549, 552, 556 S.E.2d 269, 270 (2001)
(quoting State v. Brown
, 310 N.C. 563, 566, 313 S.E.2d 585, 587
(1984)). The court must view the evidence "in the light most
favorable to the State, giving the State the benefit of every
reasonable inference and resolving any contradictions in its
favor." State v. Rose
, 339 N.C. 172, 192, 451 S.E.2d 211, 223(1994), cert. denied
, 515 U.S. 1135, 132 L. Ed. 2d 818, 115 S. Ct.
Because "[t]he crime of attempt requires an act done with the
specific intent to commit the underlying offense," one must
specifically intend to kill in order to commit the crime of
attempted first degree murder. State v. Coble
, 351 N.C. 448, 449,
527 S.E.2d 45, 46 (2000). Rather than simply showing that the
defendant committed an intentional act that could have resulted in
death, the State "must show that the defendant intended for his
action to result in the victim's death." State v. Keel
, 333 N.C.
52, 58, 423 S.E.2d 458, 462 (1992). "'An intent to kill is a
mental attitude, and ordinarily it must be proved, if proven at
all, by circumstantial evidence, that is, by proving facts from
which the fact sought to be proven may be reasonably inferred.'"
State v. Alexander
, 337 N.C. 182, 188, 446 S.E.2d 83, 86-87 (1994)
(quoting State v. Ferguson
, 261 N.C. 558, 561, 135 S.E.2d 626, 629
"'[T]he nature of the assault, the manner in which it was
made, the weapon, if any, used, and the surrounding circumstances
are all matters from which an intent to kill may be inferred.'" Id.
(quoting State v. White
, 307 N.C. 42, 49, 296 S.E.2d 267, 271
(1982)). "Moreover, an assailant 'must be held to intend the
natural consequences of his deliberate act.'" State v. Grigsby
N.C. 454, 457, 526 S.E.2d 460, 462 (2000) (quoting State v. Jones
18 N.C. App. 531, 534, 197 S.E.2d 268, 270, cert. denied
, 283 N.C.
756, 198 S.E.2d 726 (1973)). After reviewing the record, we hold that the State presented
sufficient evidence to allow a reasonable juror to find that
defendant possessed the specific intent to kill Nicholas. The
evidence, considered in the light most favorable to the State,
shows that defendant took the 11-month-old, who was too young to
walk, with his mother to a deserted area, where defendant beat the
mother to death before driving off, leaving the child in a field
with weeds and grass a foot high, wearing only a diaper and with
most of his body exposed to the hot midsummer sun. Since defendant
had lived in an abandoned house not far from this field, he was
familiar with the area, which was a quarter mile from the road and
not easily accessible by vehicle. A jury could reasonably conclude
from these facts that defendant knew _ indeed, intended _ that no
one would discover Ginger and the child for a long time. Further,
this evidence is sufficient for a jury to decide that defendant
would not expect a child of this age to survive in this remote
location, but rather would expect that _ but for the fortuitous
arrival of the dog Charlie and Mr. Thompson _ the child would
starve, die of dehydration and/or exposure, or suffer from such
effects of nature as insects and wild animals before anyone found
Since the death of Nicholas would have been a natural
consequence of the deliberate acts of defendant, a jury could infer
that defendant intended that consequence. Therefore, we hold that
the State presented sufficient evidence of defendant's specific
intent to kill the child. See State v. Evangelista
, 319 N.C. 152,
158-59, 353 S.E.2d 375, 380-81 (1987) (upholding denial of motion
to dismiss when there was "sufficient evidence from which areasonable mind might conclude that the defendant had the requisite
specific intent to kill," where defendant barricaded himself in a
railroad compartment with the children he had kidnapped, and
refused all offers of food, water, and other nourishment for the
children, ultimately resulting in one infant's death from
malnourishment); see also State v. Brewer
, 328 N.C. 515, 402 S.E.2d
380 (1991) (finding sufficient evidence of specific intent to kill
where defendant centered her car, containing her 16-year-old
handicapped child in the front seat, on train tracks, and then
exited the vehicle immediately before a train struck the car). The
trial court, therefore, properly denied defendant's motion to
dismiss with respect to the attempted murder charge.
 Since defendant has not chosen to argue his other
assignments of error on appeal, they are deemed abandoned under
N.C.R. App. P. 28(a).
Chief Judge MARTIN and Judge BRYANT concur.
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