An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 Procedure.
NORTH CAROLINA COURT OF APPEALS
Filed: 15 November 2005
STATE OF NORTH CAROLINA
v. Bladen County
No. 03 CRS 1867, 1869
FURMAN LINDELL JACOBS
Appeal by defendant from judgments entered 13 April 2004 by
Judge James Floyd Ammons, Jr., in Bladen County Superior Court.
Heard in the Court of Appeals 20 September 2005.
Attorney General Roy Cooper, by Special Deputy Attorney
General Ronald M. Marquette, for the State.
Hardison & Leone, L.L.P. by Richard B. Glazier for the
Defendant Furman Jacobs appeals from judgments entered upon
his convictions of first degree murder and second degree rape. We
Defendant was indicted for first degree murder, first degree
kidnaping, and first degree rape, all arising from events allegedly
occurring 18 April 2003. He was tried non-capitally in April 2004.
The State's evidence at trial is summarized as follows: Aniko Ross
(Ross) testified that she and the defendant met in 2000 and dated
for two years. Ross lived with her parents, and defendant met
Ross's parents on numerous occasions while they were dating. Her
parents sometimes referred to the defendant as Swindell. In February 2003 Ross began dating Gerald Williams. Ross and
Williams planned to go out for supper on the evening of 18 April
2003. At around 5:00 p.m. on the 18th, while Ross was at home
getting ready to go out, she saw defendant outside the house. She
waited about fifteen minutes, then went outside and asked defendant
to leave. He began kissing her neck and asking Ross to give [him]
a little bit. When Ross pulled away and told the defendant that
her father was in the house, the defendant said he would fix that
and went to his car. Ross thought defendant was going to leave;
instead, he returned from the car with a handgun. He pushed past
her into the house, and went to the bedroom where Ross's father,
Charles Ross, was sleeping. Defendant fired one shot at Charles
Ross, grazing his leg and entering his abdominal area.
After he shot Charles Ross, defendant warned Ross she was
going to give it up, one way or another; forced her at gunpoint
into his car, and drove to an isolated rural cemetery. At the
cemetery, defendant ordered Ross to get out of the car, lie down on
the ground, and to remove her pants. Defendant then raped her.
After assaulting Ross, defendant ordered her back into the car, and
they drove to a country store a few minutes away. As defendant and
Ross were walking into the store, Ross began screaming for help,
whereupon the defendant took off and drove away. Store personnel
called an ambulance, and Ross was taken to Pender Memorial
Hospital, where she was treated and released. While Ross was at
the hospital, she was interviewed by law enforcement officers. The testimony of other witnesses generally corroborated Ross's
trial testimony, including testimony by: Laurie Tompkins, clerk at
the store where defendant released Ross; Mary Ann Stanley, nurse at
Pender Memorial Hospital; Larry Guyton, investigator with the
Bladen County Sheriff's Department; and Gerald Williams, Ross's
boyfriend. Williams testified that on 18 April 2003 he drove to
Ross's residence at around 6:00 p.m. On his arrival, Williams saw
Charles Ross lying in the open doorway of the house. Charles
Ross's leg was bleeding, and he was on the telephone with a 911
operator. Charles Ross kept repeating that 'Swindell' shot him and
took his daughter. Charles Ross was having trouble breathing, so
Williams took the phone and continued the conversation with the 911
operator. In a few minutes, an ambulance arrived and Williams left
to find Ross. He and Ross met later at the hospital.
The jury heard a tape recording of the call Charles Ross made
to the 911 operator. Expert medical evidence was introduced that
Charles Ross died from internal bleeding caused by a single gunshot
wound. Several law enforcement officers testified about their
investigation, the arrest of defendant, and about the officers'
discovery in defendant's house of a receipt for a gun the same
caliber as that used in the shooting. The testifying officers were
cross-examined about discrepancies between Ross's testimony and her
earlier statement to police, and about certain omissions in the
investigation, including failure to test for gunshot residue, dust
for fingerprints, or make tire track molds. Defendant presented ten character witnesses who testified
generally that defendant had a reputation for truthfulness and
peacefulness in his community; that he was reliable, honest, and
hardworking; that he was a good father to his daughter; and that he
had never been known to behave inappropriately towards women. In
addition, defendant's brother, Donnell Jacobs, testified that the
defendant was with members of his family at the time that Charles
Ross was shot. Defendant also presented expert testimony that he
was mildly mentally retarded. Defendant did not testify.
After the presentation of evidence, the jury found defendant
guilty of (1) first degree felony murder, based on kidnaping; (2)
first degree kidnaping; and (3) second degree rape. Defendant was
sentenced to life imprisonment without parole for first degree
murder, and 73 - 97 months for second degree rape. From these
convictions and judgments, defendant appeals.
Defendant argues first that the trial court committed
reversible error by refusing to allow James Merritt to testify as
an expert witness on the subject of proper forensic police
practices. We disagree.
Defendant called Merritt as a defense witness, offering him as
an expert in police procedures and related subfields. Defense
counsel informed the trial court that the purpose of Merritt's
testimony was to inform the jury that the investigation in the case
was inconsistent with professional [law enforcement] standards.
Specifically, defendant sought to elicit testimony that theinvestigating officers were remiss in their failure to conduct
gunshot residue tests or fingerprint analysis, to conduct follow-up
interviews with Ross, or to conduct timely crime-scene
investigations. The trial court ruled that (1) Merritt was not an
expert in the field; (2) Merritt's testimony was irrelevant to the
issue of defendant's guilt or innocence; and (3) even if relevant,
Merritt's testimony should be excluded on the grounds that any
relevance was vastly outweighed by the likelihood that Merritt's
testimony would sidetrack and confuse the jury, and would waste the
jury's time. We conclude that the trial court's ruling was not
Relevant evidence is defined by Rule 401 of the North
Carolina Rules of Evidence as evidence with any tendency to make
the existence of any fact that is of consequence to the
determination of the action more probable or less probable than it
would be without the evidence. N.C. Gen. Stat. § 8C-1, Rule 401
(2003). Although 'the trial court's rulings on relevancy
technically are not discretionary and therefore are not reviewed
under the abuse of discretion standard applicable to Rule 403, such
rulings are given great deference on appeal.' Dunn v. Custer, 162
N.C. App. 259, 266, 591 S.E.2d 11, 17 (2004) (quoting State v.
Wallace, 104 N.C. App. 498, 502, 410 S.E.2d 226, 228 (1991)).
Defendant argues that after law enforcement officers spoke
with Ross, they immediately decided that defendant was guilty, and
therefore failed to perform various standard forensic tests. The
gist of Merritt's proposed testimony was that the officers'omission of certain forensic tests fell below established standards
of police investigative procedures. Defendant contends that
Merritt's testimony would have helped demonstrate that law
enforcement officers then performed an inadequate investigation.
However, defendant fails to articulate how this fact, if believed,
would tend to make it more or less likely that defendant committed
the charged offenses, particularly since the jury already heard in
cross-examination that investigating officers had not conducted
gunshot residue tests, fingerprint analysis, crime scene
investigation, or other forensic tests. Moreover, the State's case
was largely based on the testimony of Ross, and on the dying
declarations of Charles Ross. Accordingly, the credibility of this
testimony, not the reliability of scientific evidence, was the
central issue in the case.
We conclude that the trial court did not err by excluding
Merritt's testimony. This assignment of error is overruled.
Defendant argues next that the trial court erred by allowing
the medical examiner to testify concerning the likely effects of
alcohol on the victim at around the time of his death. We
Dr. Deborah Radish, associate medical examiner for North
Carolina, testified regarding the cause of Charles Ross's death,
and noted that, at the time of his death, Charles Ross had a blood
alcohol level of .08. Defendant cross-examined Dr. Radish
extensively on issues pertaining to Charles Ross's blood alcohollevel, such as the likelihood that Charles Ross was intoxicated,
the variation in response to alcohol shown by different people, Dr.
Radish's lack of information about Charles Ross's history with
respect to alcohol, and whether alcohol-related thinning of the
blood might change the length of time before a gunshot victim bled
In response to defendant's cross-examination, the State asked
Dr. Radish on redirect whether, based on the 911 tape, Dr. Radish
had an opinion as to (1) whether alcohol impaired Charles Ross's
ability to speak or remember, and (2) whether the tape's length was
consistent with the length of time Charles Ross likely survived
after being shot. Dr. Radish answered that Charles Ross appeared
to answer questions appropriately on the 911 tape, but that, even
had he sounded confused on the tape, she would have been unable to
determine the cause. She also testified that it was not possible
from the tape to reconstruct the exact length of time Charles Ross
lived after he was shot.
We conclude that the defendant opened the door to this
testimony by cross-examining Dr. Radish on issues pertaining to
Charles Ross's having a blood alcohol level of .08. 'Where one
party introduces evidence as to a particular fact or transaction,
the other party is entitled to introduce evidence in explanation or
rebuttal thereof[.]' State v. Walters, 357 N.C. 68, 87, 588
S.E.2d 344, 355 (2003) (quoting State v. Albert, 303 N.C. 173, 177,
277 S.E.2d 439, 441 (1981)). Therefore, since defendant 'opened
the door' to this testimony, the prosecutor was entitled toquestion defendant about this evidence. Walters, 357 N.C. App. at
87, 588 S.E.2d at 355. This assignment of error is overruled.
In a related argument, defendant contends that the trial court
erred by allowing the State to play the 911 tape for Dr. Radish on
redirect examination. For the reasons discussed above, we conclude
that the trial court did not err by allowing the State to replay
the 911 tape on redirect examination. This assignment of error is
Defendant next argues that the trial court erred by overruling
defendant's objection to admission into evidence of a receipt found
in defendant's house. We disagree.
As part of their investigation in this case, law enforcement
officers performed a consent search of defendant's mobile home.
Just inside the trailer's front door, they found a cardboard box
containing a .380 caliber semiautomatic pistol. Earlier forensic
testing indicated that Charles Ross had been shot by a .380 caliber
firearm; however, scientific tests determined that the .380 caliber
weapon found in defendant's house was not the gun used to shoot
Charles Ross. The box also contained various receipts, including
several receipts for other firearms. Among these was a handwritten
receipt for a different .380 firearm. Written on this receipt were
the words Rocky Point Shooters World; the name David Jacobs;
and a description and serial number for a .380 pistol. Further
search of defendant's house revealed eight other firearms, somewith matching receipts in the cardboard box; however, the officers
never found the .380 gun described on the handwritten receipt.
Defendant argues that the trial court erred by admitting the
handwritten receipt into evidence, on the grounds that it was not
properly authenticated, was irrelevant, and, if relevant, was
unduly prejudicial. We will consider these arguments in turn.
Authentication of documents is governed by N.C. Gen. Stat. §
8C-1, Rule 901 (2003), which provides in relevant part that the
requirement that evidence be authenticated is satisfied by
evidence . . . that the matter in question is what its proponent
claims. Rule 901(a). Further, the rule lists, as an example of
proper authentication, evidence of an item's appearance, contents,
or other distinctive characteristics, taken in conjunction with
circumstances. Rule 901(b)(4). This rule was applied in State v.
, 153 N.C. App. 462, 570 S.E.2d 116 (2002), in which this Court
upheld admission of a business card found at defendant's house,
Although the statement on the card was not in
defendant's handwriting and defendant did not
testify to the card's authenticity, the card
was properly authenticated by the State based
on its distinctive characteristics, . . .
includ[ing]: (1) the card being one of many .
. . in a box in defendant's bedroom during the
search; . . . and (3) defendant being the sole
occupant of the house in which the card was
found. . . . [T]his Court has previously held
that a showing that defendant was the sole
occupant of the residence where documents were
found is sufficient for [those documents] to
be admitted into evidence, and the weight
given the evidence is for the jury to decide
, 153 N.C. App. at 467, 570 S.E.2d at 120 (quoting State v.
, 89 N.C. App. 714, 716, 367 S.E.2d 9, 11 (1988)) (emphasis
In the instant case, the handwritten receipt was found during
a search of defendant's house, and he was the only occupant of the
house. Based on Reed,
we conclude that the receipt was properly
We also conclude that the receipt was relevant to the issue of
defendant's guilt or innocence. Forensic evidence showed that
Charles Ross was shot by a .380 weapon. This firearm was never
found; however, the receipt at issue was for a gun the same caliber
as the missing weapon. Moreover, it was in defendant's house,
among defendant's other receipts for firearms, and referred to a
buyer or seller of the last name Jacobs, which is defendant's last
name. The receipt was relevant in that it tended to make it more
likely that defendant had at some point been in possession of a
firearm of the same caliber as the murder weapon.
Defendant also argues that admission of the receipt was
prejudicial. Certainly, the evidence was prejudicial to the
defendant in the sense that any evidence probative of the State's
case is always prejudicial to the defendant. [T]he trial court did
not abuse its discretion under the balancing test of Rule 403,
however, in concluding in this case that the probative value of the
[receipt] evidence outweighed any possible unfair prejudice.
State v. Stager
, 329 N.C. 278, 310, 406 S.E.2d 876, 895 (1991).
We conclude that the trial court did not err by admitting
evidence of the handwritten receipt found in defendant's mobile
home. This assignment of error is overruled.
We have considered defendant's remaining assignments of error
and find them to be without merit. For the reasons discussed
above, we conclude that the defendant received a fair trial, free
from reversible error.
Judges WYNN and JACKSON concur.
Report per Rule 30(e).
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