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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. MATTHEW LAWRENCE TAYLOR
Filed: 18 July 2006
1. Discovery_criminal_statutory only--interviewing prosecution witnesses_not
included in statute
A detective was not required to submit to an interview with defense counsel against his
wishes before trial. Pretrial discovery is statutory rather than a constitutional or common law
right, and the General Assembly has not included the right to interview the State's witnesses in a
criminal trial in the discovery statute. N.C.G.S. § 15A-903(a)(1).
2. Evidence_hearsay exception_plan for future act_murder victim's statement
A murder victim's statement of his plans for the night on which he was killed was
admissible pursuant to the hearsay exception in N.C.G.S. § 8C-1, Rule 803(3), as a then-existing
plan to engage in a future act.
3. Search and Seizure_probable cause to search residence_binding findings
The trial court correctly determined that probable cause existed to search a murder
defendant's residence where there were unchallenged findings that it was reasonable to conclude
that a crime had been committed, that defendant was involved, and that his residence might
contain items missing from the victim's car and the weapon used in the crime.
4. Evidence_testimony that cellular phone images existed_no details_no prejudice
There was no prejudice in a prosecution for first-degree murder and other crimes in
admitting testimony that defendant had a cellular telephone with stored photos. No evidence was
presented about the contents of the images (guns), the jury did not see the images, and
presuming the telephone was improperly seized, defendant failed to show that a different result
would likely have been reached if that evidence had been excluded.
5. Appeal and Error_preservation of issues_evidence previously admitted without
The benefit of an objection is lost if the evidence has previously been admitted without
objection. Defendant here failed to preserve his objection for appellate review where he did not
object when the prior written statements were offered or admitted, but did object when the State
sought to publish the statements to the jury. The court properly gave a limiting instruction.
6. Discovery_school records of witness_reviewed in camera_not discoverable
The school records of a tenth grader (an accomplice to first-degree kidnapping and
murder) who testified in defendant's trial pursuant to a plea agreement were reviewed in camera
on appeal and held to contain no information favorable and material to defendant's guilt and
punishment, nor any evidence adversely affecting the witness's credibility. Therefore, the trial
court properly denied defendant's motion to be allowed to review those records for impeachment
7. Evidence_autopsy photographs_illustrations of victim's wounds
There was no abuse of discretion in admitting autopsy photographs of a murder victim
where a forensic pathologist testified that each photograph depicted a distinct aspect of the
victim's wounds and would provide the jury with a helpful illustration of the wounds.
8. Evidence_pathologist's opinion_time required for death
An expert forensic pathologist's testimony about the time a victim's death from his
wounds would have required had he not drowned was within the witness's area of expertise and
was relevant and appropriate to show the number and severity of the wounds. The trial court did
not abuse its discretion by admitting it.
9. Witnesses_last-minute_not abuse of discretion
The trial court did not abuse its discretion in a first-degree murder prosecution by
admitting testimony from a surprise witness, a telephone company manager who retrieved text
messages between the victim's telephone number and one assigned to defendant.
10. Evidence_transcript of text messages_authentication_confrontation issue not
The trial court did not abuse its discretion by admitting into evidence transcripts of text
messages. There was testimony sufficient to authenticate the exhibits; moreover, defendant both
failed to cite on appeal any authority to support the argument that his right to confront witnesses
was denied and did not object at trial on constitutional grounds.
11. Constitutional Law_cruel and unusual punishment_life sentence for sixteen-year-
The argument that a life sentence without parole for a sixteen-year-old defendant was
cruel and unusual was not raised at trial and was not preserved. Even so, defendant did not show
that his sentence violated his constitutional rights.
12. Appeal and Error_assignments of error_insufficient
Assignments of error were deemed abandoned where defendant merely recited the
standards of review and stated that he chose not to elaborate other than to state the argument and
cite authorities for the court's review.
Appeal by defendant from judgments entered 20 July 2005 by
Judge Henry W. Hight in Durham County Superior Court. Heard in the
Court of Appeals 8 June 2006.
Attorney General Roy Cooper, by Assistant Attorney General Amy
C. Kunstling, for the State.
James M. Bell, for defendant-appellant.
Matthew Lawrence Taylor (defendant) appeals from judgments
entered after a jury found him to be guilty of first-degree murder,
first-degree kidnapping, and robbery with a dangerous weapon of
Sean Owens (the victim). We find no prejudicial error.
The victim, age twenty-three, lived with his mother,
stepfather, and sister in Franklinton. The victim's sister,
Tiffany McFalls (McFalls) testified the victim was an openly
homosexual male. On 17 February 2004, the victim walked into the
kitchen, where McFalls was washing dishes, and told her he was
going to Durham to meet someone nicknamed Blue and that he was
going to go get some black meat tonight. McFalls testified she
interpreted this statement to mean the victim was going to Durhamto have sex with a black person. The victim told McFalls he had
communicated with Blue through his cellular telephone, which
contained internet access, was going to check on some things at
work, and would be back home in a little bit. The victim left
home driving his mother's 1998 burgundy Ford Contour automobile.
McFalls became concerned after she was unable to contact the
victim and he did not return home by 5:00 p.m. The victim's family
reported him as a missing person on 20 February 2004.
On 21 February 2004, Durham police and paramedics responded to
a report of a dead body floating in the river at Old Farm Park in
Durham. The body was found face down approximately twenty feet
below the river embankment. The body was identified as the victim.
On 22 February 2004, Durham police were dispatched to 614
Shepard Street where they found a 1998 burgundy Ford Contour
belonging to the victim's mother partially burned and still
smoldering. Investigators recovered a broken beaded necklace
belonging to the victim from the floorboard of the car.
Investigators determined the fire had been intentionally set with
a lit newspaper.
On 4 March 2004, Durham police executed a search warrant of
defendant's residence. Shelton Epps (Epps) and Derrick Maiden
(Maiden) were present at defendant's residence. Defendant was at
school when police executed the warrant. Defendant agreed to go tothe police station, where he gave a statement to Detective Wallace
Early (Detective Early).
A. Defendant's Statement
Defendant told Detective Early that he came home early from
school on 17 February 2004 because he had an upset stomach. Epps
and Maiden were present at defendant's residence. Maiden asked
defendant if he could use his cellular telephone. Maiden told
defendant that someone was coming over. About thirty minutes
later, the victim called defendant on his cellular telephone.
Defendant told the victim that he did not know him, and handed the
telephone to Maiden. Maiden told defendant, let's go to the
clubhouse. Defendant accompanied Epps and Maiden to the Eno Trace
Clubhouse. The victim had parked the burgundy Ford Contour
automobile in the parking lot when defendant, Epps, and Maiden
The victim drove defendant, Epps, and Maiden to Old Farm Park.
All four men exited the car and began walking toward a picnic
table. Defendant stated he was walking in front and the other
three men were behind him. Defendant heard a gunshot, turned
around, and saw Epps chasing the victim across the park with a gun
in his hand. Epps wrestled the victim to the ground, and Maiden
and Epps began to punch and kick the victim. Epps put the gun to
the back of the victim's head and shot him again. Either Epps or
Maiden choked the victim. Epps and Maiden dragged the victim tothe river and threw him in. Maiden drove the victim's car away
from the scene with defendant and Epps as passengers, and dropped
defendant off at his residence. The next day at school, Maiden
told defendant a boot had been placed on the car. Maiden gave
money to Jimetrus Harris (Jimetrus) to pay the fine to have the
boot removed. Maiden drove defendant home after school in the
victim's mother's burgundy Ford Contour. After defendant gave his
statement, Detective Early spoke with two other detectives and
placed defendant under arrest.
Defendant was indicted for first-degree murder, first-degree
kidnapping, and robbery with a dangerous weapon. Defendant was
tried in the Durham County Superior Court in July 2005. Defendant
was seventeen years of age at the time of trial.
B. The Murder Weapon
Derek Taylor (Taylor) testified for the State that he had
known defendant for a couple of months before February 2004.
Taylor knew defendant by the name Blue. During that time, Taylor
saw defendant in possession of a handgun on four or five occasions.
Taylor later bought that gun from a man named Wood for $132.00.
After the victim's murder, Taylor had a conversation with Wood
and turned the gun over to police. State Bureau of Investigation
Forensic Firearms Examiner Adam Tanner (Examiner Tanner)
testified he identified the gun as a .32 caliber Smith & Wesson
revolver. Examiner Tanner opined the bullets recovered from thevictim's body were fired from this firearm and this firearm
The jury found defendant to be guilty of all three charges.
Defendant was convicted of first-degree murder under the Felony
Murder Rule rather than on the basis of malice, premeditation, and
The trial court arrested judgment on defendant's robbery
conviction. Defendant was sentenced to life imprisonment without
parole for the first-degree murder conviction and a consecutive
sentence of seventy-three to ninety-seven months for the kidnapping
conviction. Defendant appeals.
Defendant argues the trial court erred by: (1) denying his
motion to allow an interview with the police investigator; (2)
overruling his objection to McFalls's hearsay testimony regarding
what the victim said to her on 17 February 2004; (3) denying his
motion to suppress evidence gathered in the search of his residence
where probable cause did not support the issuance of the search
warrant; (4) overruling his objection to testimony regarding the
existence of a cellular telephone and photographic images contained
therein where such cellular telephone was taken from him without
issuance of a search warrant; (5) overruling his objection to
allowing written statements to be published to the jury which were
inconsistent with Jimetrus's and his sister, Andrea Harris's,(Andrea) testimonies in court; (6) denying him the opportunity to
review and use school records to impeach Maiden; (7) overruling his
objection to the admission of certain autopsy photographs; (8)
overruling his objection to speculative testimony by Dr. Gulledge
regarding how long it would have taken the victim to die as a
result of his injuries; (9) overruling his objection to testimony
by surprise witness Michael Woods (Woods); (10) overruling his
objection to admission of State's Exhibits 87 and 88, transcripts
of cellular telephone text messages; (11) denying his motion to
dismiss at the close of all evidence; (12) denying his motion to
vacate the jury's verdict due to insufficient evidence; and (13)
imposing a sentence of life in prison without parole in violation
of his Eighth and Fourteenth Amendment Rights.
III. Interview with the Police Investigator
 Defendant argues the trial court erred in denying his
motion to allow an interview with the police investigator. We
Defense counsel requested a meeting with Detective Early, the
lead police investigator. Detective Early refused to meet with
defense counsel. Defense counsel moved the trial court to allow an
interview with Detective Early and the trial court denied
defendant's motion. The trial court entered findings of fact and
conclusions of law in support of its order denying the motion. The trial court's findings of fact state that Detective Early
did not want to and was told by his supervisors that he was not
required to meet with defense counsel. Detective Early knew that
it was the unofficial policy of the Durham Police Department for
an officer to refrain from talking with defense counsel. The trial
court found that Detective Early was never advised he was
prohibited from meeting with defense counsel by anyone with the
Durham County District Attorney's Office.
Defendant did not assign error to any of the trial court's
findings of fact. Where no exception is taken to a finding of
fact by the trial court, the finding is presumed to be supported by
competent evidence and is binding on appeal. Koufman v. Koufman,
330 N.C. 93, 97, 408 S.E.2d 729, 731 (1991) (citations omitted).
The trial court concluded, no attorney with the Durham County
District Attorney's Office has obstructed the Defendant's attempts
to conduct an interview with W.L. Early, and that W.L. Early's
refusal to meet with Defendant's attorneys was not the product of
any improper directive by anyone with the Durham County District
Defendant bases his argument on N.C. Gen. Stat. § 15A-
903(a)(1) (2005), which provides in pertinent part:
(a) Upon motion of the defendant, the court
must order the State to:
(1) Make available to the defendant the
complete files of all law enforcement andprosecutorial agencies involved in the
investigation of the crimes committed or the
prosecution of the defendant. The term file
includes the defendant's statements, the
codefendants' statements, witness statements,
investigating officers' notes, results of
tests and examinations, or any other matter or
evidence obtained during the investigation of
the offenses alleged to have been committed by
Defendant claims the spirit if not the letter of this statute
entitles his counsel to interview Detective Early for purposes of
clarifying discovery material provided by the State.
Our Supreme Court held, [t]here is no general constitutional
or common law right to discovery in criminal cases. State v.
Haselden, 357 N.C. 1, 12, 577 S.E.2d 594, 602, cert. denied, 540
U.S. 988, 157 L. Ed. 2d 382 (2003) (citing Weatherford v. Bursey,
429 U.S. 545, 559, 51 L. Ed. 2d 30, 42 (1977); State v. Alston, 307
N.C. 321, 335, 298 S.E.2d 631, 641 (1983)). The right to pre-
trial discovery is a statutory right. State v. Phillips, 328 N.C.
1, 12, 399 S.E.2d 293, 298, cert. denied, 501 U.S. 1208, 115 L. Ed.
2d 977 (1991). Prior to the 2004 amendment of N.C. Gen. Stat. §
15A-903, our Supreme Court held, Nothing in the statutory
provisions compels State witnesses to subject themselves to
questioning by the defense before trial. Id. Nothing in the 2004
amendments to N.C. Gen. Stat. § 15A-903 appears to have changed
this rule. The General Assembly could have provided but failed to
include defendant's right to interview State's witnesses in thestatute. Under our Supreme Court's precedent in Phillips,
Detective Early was not required to submit to an interview by the
defense counsel against his wishes prior to trial. Id. This
assignment of error is overruled.
IV. Hearsay Testimony
 Defendant argues the trial court erred by overruling his
objection to hearsay testimony from McFalls regarding what the
victim stated to her on 17 February 2004. We disagree.
McFalls testified as follows:
Q: Tiffany, that morning or that afternoon
when you were talking with Sean, what did he
tell you? What did he tell you that morning,
February 17th, 2004?
. . . .
A: He came into the kitchen while I was
washing dishes. He had his cell phone in his
hand. Then he said he was going to go get
some black meat tonight. Well, he told me his
name, which was Taylor's name. I couldn't
remember it at the time.
. . . .
Q: Tiffany, when he said he was going to get
some black mean [sic] tonight, what did he say
to you after that?
A: He was going to meet Blue.
Rule 803 of the North Carolina Rules of Evidence sets forth
exceptions to the hearsay rule. The Rule provides:
The following are not excluded by the hearsay
rule, even though the declarant is available
as a witness:
. . . .
(3) Then Existing Mental, Emotional, or
Physical Condition. _ A statement of the
declarant's then existing state of mind,
emotion, sensation, or physical condition
(such as intent, plan, motive, design, mental
feeling, pain, and bodily health) . . . .
N.C. Gen. Stat. § 8C-1, Rule 803(3) (2005). The victim's
statements to McFalls is admissible under this exception to the
hearsay rule. The victim's statement tended to show his plan or
intent to engage in a future act. See State v. McElrath, 322 N.C.
1, 17, 366 S.E.2d 442, 451 (1988) (telephone message written by a
neighbor from the victim to his roommate that the victim was
traveling to North Carolina with the defendant was admissible under
Rule 803(3) because it was a statement of the victim's
then-existing intent to do an act in the future); State v.
Braxton, 352 N.C. 158, 190-91, 531 S.E.2d 428, 447 (2000) (Moore's
statement to McCombs that he was going to approach the defendant
about straightening out the victim's debt was admissible as
evidence of Moore's then-existing intent to engage in a future
act.), cert. denied, 531 U.S. 1130, 148 L. Ed. 2d 797 (2001);
State v. Taylor, 332 N.C. 372, 385-86, 420 S.E.2d 414, 422 (1992)
(witness's testimony that the victim had requested the day off from
work and said that the Taylor guy was coming to pay him the money
was admissible to show then-existing intent and plan to engage in
a future act). As in McElrath, Braxton, and Taylor precedents, McFalls's
testimony showed the victim's then-existing plan to engage in a
future act. The trial court properly admitted the testimony
pursuant to N.C. Gen. Stat. § 8C-1, Rule 803(3). This assignment
of error is overruled.
V. Motion to Suppress
 Defendant asserts the trial court erred in denying his
motion to suppress the items seized from his residence and argues
the search warrant was not supported by probable cause. We
Our Supreme court stated in State v. Sinapi
[W]hen addressing whether a search warrant is
supported by probable cause, a reviewing court
must consider the totality of the
circumstances. In applying the totality of
the circumstances test, this Court has stated
that an affidavit is sufficient if it
establishes reasonable cause to believe that
the proposed search . . . probably will reveal
the presence upon the described premises of
the items sought and that those items will aid
in the apprehension or conviction of the
offender. Probable cause does not mean actual
and positive cause nor import absolute
certainty. Thus, under the totality of the
circumstances test, a reviewing court must
determine whether the evidence as a whole
provides a substantial basis for concluding
that probable cause exists.
In adhering to this standard of review, we are
cognizant that great deference should be paid
a magistrate's determination of probable cause
and that after-the-fact scrutiny should not
take the form of a de novo review.
359 N.C. 394, 398, 610 S.E.2d 362, 365 (2005) (internal quotations
omitted). Finding of Fact Number 15 in the trial court's order
summarizes the information set forth in the affidavit in support of
the search warrant. In Finding of Fact Number 16, the trial court
found it is reasonable to conclude that a crime has been
committed, that the defendant was involved in that crime and that
his residence might contain certain items missing from Sean Owens
car and the weapon used to commit the crime. Defendant did not
assign error to these findings of fact and they are binding on
appeal. Koufman, 330 N.C. at 97, 408 S.E.2d at 731.
After a careful review of the trial court's order, the trial
court correctly determined probable cause existed for the search,
and did not err in denying defendant's motion to suppress. This
assignment of error is overruled.
VI. Evidence of Defendant's Cellular Telephone
 Defendant argues the trial court erred in admitting
testimony regarding the existence of his cellular telephone and
photographic images contained therein, because the cellular
telephone was taken from him without issuance of a search warrant.
The police took a cellular telephone capable of taking
photographs from defendant at the police station on 4 March 2004.
This telephone was not the same cellular telephone the text
messages were sent to and received from the victim. Sergeant David
Rose testified on voir dire that stored images of two guns wererecovered from the cellular telephone. Defendant moved to suppress
this evidence on the grounds the cellular telephone had been
impermissibly seized from him. The trial court ordered the State
not to present the contents of the photographic images stored
within the cellular telephone to the jury unless the State could
show the cellular telephone was properly seized from defendant.
No evidence was presented to the jury regarding the contents
of the photographic images stored on the cellular telephone. The
only evidence presented to the jury was that defendant possessed a
cellular telephone with photographic images stored within upon his
arrest. The jury did not see the photographic images or hear
evidence regarding their contents. Presuming arguendo the cellular
telephone was improperly seized, defendant has failed to
demonstrate any prejudice. Defendant has failed to show that a
different outcome likely would have been reached if the evidence
would have been excluded. State v. Mann, 355 N.C. 294, 306, 560
S.E.2d 776, 784, cert. denied, 537 U.S. 1005, 154 L. Ed. 2d 403
(2002). This assignment of error is overruled.
VII. Witnesses' Prior Statements
 Defendant argues the trial court erred in admitting the
prior written statements of Jimetrus and Andrea Harris to police
for corroborative purposes.
Jimetrus and Andrea were fellow students with defendant at
Northern High School. Jimetrus and defendant were teammates on thehigh school football team. Jimetrus drove defendant home from
school occasionally. On 18 February 2004, defendant told Jimetrus
a boot had been placed on his car in the school parking lot.
Jimetrus did not know what car defendant was talking about.
Jimetrus told defendant that he would have to go to the school
office and pay $25.00 to have the boot removed. Defendant and
Jimetrus went to the school office together. Defendant gave
Jimetrus $25.00 and asked him to pay to have the boot removed
because he did not have his driver's license with him. Jimetrus
paid the fine and the boot was removed. Defendant then asked
Jimetrus to retrieve the car for him. The car was parked behind
the school cafeteria in a lot restricted to students. Jimetrus
drove the vehicle, a 1998 burgundy Ford Contour, to the front of
the school where he met defendant. On a prior occasion, defendant
had told Jimetrus that he owned a gun. Andrea testified that she
knew defendant by the nickname Blue.
Defendant failed to object when the prior written statements
were offered or admitted into evidence. Defendant did object when
the State sought to publish the statements to the jury. The trial
court noted that defendant's objection was a little late because
defendant failed to object upon their admission into evidence. The
trial court overruled defendant's objection to the statements being
published to the jury. The trial court instructed the jury thatthe statements were admitted solely to corroborate the witnesses'
in- court testimonies.
In order to preserve a question for appellate review, a party
must have presented to the trial court a timely request, objection
or motion, stating the specific grounds for the ruling the party
desired the court to make if the specific grounds were not apparent
from the context. N.C.R. App. P. 10(b)(1) (2006). Our Supreme
Court has held, Where evidence is admitted over objection, and the
same evidence has been previously admitted or is later admitted
without objection, the benefit of the objection is lost. State v.
Whitley, 311 N.C. 656, 661, 319 S.E.2d 584, 588 (1984). The trial
court properly gave a limiting instruction to the jury. Defendant
failed to preserve this issue for our review. This assignment of
error is dismissed.
VIII. Derrick Maiden
Defendant argues the trial court erred in denying his motion
to review and use Maiden's school records to impeach his testimony.
Maiden was also charged with first-degree murder, robbery with
a dangerous weapon, and first-degree kidnapping in connection with
the victim's death. The State offered Maiden a plea bargain for
second degree murder. Maiden testified for the State at
defendant's trial under a plea agreement in exchange for truthful
A. Maiden's Testimony
In February 2004, Maiden was a tenth grade student at Northern
High School. Maiden had been friends with defendant, whom he
called Blue, since Maiden was ten years old. Maiden was also
friends with Epps, who resided in defendant's home.
On 17 February 2004, Maiden and defendant left school early
due to snow and went to defendant's house. Epps was present at
defendant's house and played video games with Maiden. Defendant
went outside the house speaking on his cellular telephone.
Defendant reentered his home and told Maiden and Epps the whip was
on the way. Maiden testified that whip meant car. Maiden,
Epps, and defendant left defendant's house to meet the victim at
the clubhouse. Defendant went back inside the house, returned with
a gun, and handed it to Epps. Defendant and Epps discussed who
would carry the gun. Maiden testified Epps carried the gun, but
defendant stated he would shoot him if the guy resisted.
The three men entered the victim's car upon arrival at the
clubhouse. Defendant sat in the front passenger's seat. The
victim drove to a Donut King and then to the store to buy a cigar
to use to roll marijuana. Defendant possessed marijuana in a
plastic bag. The victim drove defendant, Maiden, and Epps back to
the park at approximately 1:00 p.m.
According to Maiden, the four men exited the victim's car and
began walking towards a park bench. Epps shot the victim in theback of the head. The victim began running and stated, please
don't do this to me. Defendant and Epps chased after the victim
and wrestled him to the ground. The victim got up and ran towards
his car. As the victim attempted to enter his car, defendant hit
him again. Epps tried to shoot the victim a second time. Epps
handed Maiden the gun, and Maiden handed the gun to defendant.
Defendant handed the gun back to Epps. Maiden testified that
somewhere along the line the victim was shot a second time.
After the victim fell to the ground, Epps began choking the victim,
saying he won't die. Epps stomped the victim in the head. After
these incidents, Maiden testified he thought [the victim] was
Defendant and Maiden carried the victim to the river bank.
Epps kicked the victim into the river. The three men reentered the
victim's mother's car. Epps pulled the car over to wash the
victim's blood off of him with snow. Defendant, Maiden, and Epps
drove around for an hour or two smoking marijuana before returning
to defendant's house. Defendant drove the car.
Defendant drove Maiden to school the following day in the
victim's car. Defendant did not want to pay for a parking pass and
parked the car behind the cafeteria. Epps gave Maiden a pair of
boots from the victim's car. Maiden was wearing the victim's boots
when he was arrested on 4 March 2004. On 19 February 2004, Epps sprayed lighter fluid into the car
and set in on fire. Defendant, Maiden, and Epps had wiped the car
down with Clorox the night before. Maiden testified the plan on 17
February 2004 was to steal the victim's car. He also testified
that defendant had tried unsuccessfully about a month or two
earlier to contact someone on a chat line and steal that person's
B. Maiden's School Records
 Defendant asked to be provided with Maiden's juvenile and
school records to determine if any impeachment material was
contained in those records. Maiden had no prior juvenile record.
The trial court received and reviewed Maiden's school records in
camera. The trial court concluded there is nothing in them which
is discoverable in this matter. The trial court ordered Maiden's
school records to be resealed and placed in the record for
Defendant has requested this Court to examine Maiden's sealed
records and determine whether they contain information favorable
and material to defendant's guilt and punishment. State v.
McGill, 141 N.C. App. 98, 102, 539 S.E.2d 351, 355 (2000). If the
sealed records contain evidence which is both 'favorable' and
'material,' defendant is constitutionally entitled to disclosure of
this evidence. Id. (citing Pennsylvania v. Ritchie, 480 U.S. 39,
60, 94 L. Ed. 2d 40, 59 (1987)). 'Favorable' evidence includesevidence which tends to exculpate the accused, as well as 'any
evidence adversely affecting the credibility of the government's
witnesses.' Id. (quoting U.S. v. Trevino, 89 F.3d 187, 189 (4th
Cir. 1996)). 'Evidence is material only if there is a reasonable
probability that, had the evidence been disclosed to the defense,
the result of the proceeding would have been different. A
'reasonable probability' is a probability sufficient to undermine
confidence in the outcome.' Id. at 103, 539 S.E.2d at 356
(quoting United States v. Bagley, 473 U.S. 667, 682, 87 L. Ed. 2d
481, 494, (1985)).
After reviewing Maiden's sealed school records, we hold they
do not contain information favorable and material to defendant's
guilt and punishment, nor any evidence adversely affecting Maiden's
credibility as a witness. Id. This assignment of error is
IX. Autopsy Photographs
 Defendant argues the trial court erred by admitting
certain autopsy photographs into evidence. We disagree.
This Court recently discussed the admission of autopsy
Pictures of a victim's body may be introduced
even if they are gory, gruesome, horrible or
revolting, so long as they are used for
illustrative purposes and so long as their
excessive or repetitious use is not aimed
solely at arousing the passions of the jury.
State v. Hennis, 323 N.C. 279, 284, 372 S.E.2d523, 526 (1988). While noting that there is
no bright line test to determine what is an
excessive amount of photographs, Hennis
instructs that courts should examine the
content and the manner in which the evidence
is used and the totality of circumstances
comprising the presentation. Id. at 285, 372
S.E.2d at 527. The decision as to whether
evidence, including photographic evidence, is
more probative than prejudicial under Rule 403
of the Rules of Evidence and what constitutes
an excessive number of photographs lies within
the sound discretion of the trial court.
State v. Sledge, 297 N.C. 227, 232, 254 S.E.2d
579, 583 (1979).
State v. Anderson, 175 N.C. App. 444, 451, 624 S.E.2d 393, 399
Here, Dr. Christopher Gulledge (Dr. Gulledge) testified
during voir dire that each of the photographs depict distinct
aspects of the victim's wounds, and each photograph would be
helpful to illustrate the victim's wounds to the jury. Defendant
has failed to show the trial court abused its discretion in
admitting the autopsy photographs. This assignment of error is
X. Dr. Gulledge's Testimony
Defendant argues the trial court erred in overruling his
objection as speculative to testimony by Dr. Gulledge regarding
how long it took the victim to die. We disagree.
Dr. Gulledge performed an autopsy on the victim's body. Dr.
Gulledge found a number of blunt force injuries to the victim'sface and two gunshot wounds on the right side of the victim's head.
One of the gunshot wounds was a point blank or contact wound. Dr.
Gulledge opined neither of the two gunshot wounds to the victim's
head would not have been immediately lethal, and that the cause of
the victim's death was drowning.
The following exchange took place during the State's direct
examination of Dr. Gulledge:
Q: Now, Dr. Gulledge, you told the jury that
the injuries that you observed were bruises on
the face, is that right, and scrapes and
A: That is correct.
Q: And from looking at those bruises and
scrapes and scratches on his face, were those
injuries in and of themselves, enough to cause
Sean to die?
A: I do not believe so.
Q: And then I believe the next thing you
talked to the jury about was a gunshot to the
ear, is that right?
A: That's correct.
Q: And that injury of itself, was that enough
to cause Sean to die?
A: It would not be immediately lethal. It may
have been lethal over time without medical
attention, but would not _ it would not have
been an immediately lethal injury.
Q: And do you have an estimate as to how long
it would have _ by itself, that wound would
have taken him to die if he hadn't gotten
DEFENSE COUNSEL: Objection to the speculation.
THE COURT: Overruled.
A: On the order of hours.
Q: And what about the second gunshot wound?
A: The gunshot wound to the back of the head
caused the depressed skull fracture would not
_ also would not have been immediately lethal.
A depressed skull fracture is a serious
medical emergency and would require surgical
attention, but it would not be immediately
We review the trial court's admission of expert testimony under an
abuse of discretion standard. State v. Washington, 141 N.C. App.
354, 362, 540 S.E.2d 388, 395 (2000), disc. rev. denied, 353 N.C.
396, 547 S.E.2d 427 (2001).
Dr. Gulledge was allowed to testify without objection as a
medical expert witness in the field of forensic pathology. An
expert witness may testify in the form of opinion if scientific,
technical or other specialized knowledge will assist the trier of
fact to understand the evidence or to determine a fact in issue.
N.C. Gen. Stat. § 8C-1, Rule 702 (2005)
In State v. Bearthes, the medical examiner testified that the
victim received twenty-three life-threatening wounds and died from
these wounds within a three-to-five-minute period. 329 N.C. 149,
162, 405 S.E.2d 170, 177 (1991). The medical examiner then
testified regarding how long it would have taken the victim to die
from each individual wound. Id. Our Supreme Court explained, Indetermining whether a defendant acted after premeditation and
deliberation, the nature of wounds to a victim is a circumstance to
be considered. Id. (citing State v. Bray, 321 N.C. 663, 365
S.E.2d 571 (1998). At bar, defendant was tried for first-degree
murder on the basis of malice, premeditation, and deliberation and
under the Felony Murder Rule.
Here, as in Bearthes, Dr. Gulledge's opinions were within his
area of expertise and . . . were relevant and appropriate to show
the number and severity of the wounds. Id. at 162-63, 405 S.E.2d
at 177. This assignment of error is overruled.
XI. State's Surprise Witness
 Defendant argues the trial court erred in allowing
testimony from the State's surprise witness, Woods. Woods's name
was not included on the State's witness list provided to defendant.
The State called Woods as a witness and was allowed to testify over
Maiden had previously testified defendant's cellular telephone
number was 919-423-2117. The victim worked at Wireless Express
with Woods and had been issued a company-owned cellular telephone
with the number 919-279-7004. The victim's telephone could send
and receive text messages and could access the internet.
Woods was the manager of Wireless Express and had retrieved
text messages received by and sent from the telephone number
assigned to the victim's telephone on 16 and 17 February 2004. These text messages were admitted as State's Exhibits 87 and 88.
These exhibits include sexually explicit text messages setting up
a rendezvous that were sent to and received from telephone number
919-423-2117. Woods testified regarding the text messages sent to
and received from the victim's company issued cellular telephone
number and the telephone number 919-423-2117, which Maiden had
testified belonged to defendant. We review the trial courts
admission of surprise witness testimony for an abuse of
discretion. Kinlaw v. N.C. Farm Bureau Mutual Ins. Co., 98 N.C.
App. 13, 19, 389 S.E.2d 840, 844 (1990).
N.C. Gen. Stat. § 15A-903(a)(3) (2005) provides that at the
beginning of jury selection, the State is required to give a
defendant a written list of the names of all other witnesses whom
the State reasonably expects to call during the trial. The
statute further provides:
If there are witnesses that the State did not
reasonably expect to call at the time of the
provision of the witness list, and as a result
are not listed, the court upon a good faith
showing shall allow the witnesses to be
called. Additionally, in the interest of
justice, the court may in its discretion
permit any undisclosed witness to testify.
Id. Defendant objected to allowing the State to present the
subject of the text messages sent and received between the victim's
cellular telephone and the cellular telephone with the number 919-
423-2117. Defendant argued earlier the State had failed to presentevidence to show the identity of the person who had retrieved the
text messages. The State contacted Woods, who had retrieved the
text messages. The State notified the court and defendant of its
intention to call Woods as a witness. Woods was present to testify
in court with less than an hour's notice. Defendant objected on
the grounds that Woods was not included on the State's witness
list. The State pointed out that the Custodian of Nextel Phone
Records was included on the State's witness list. Woods's name
was also listed within Detective Early's file, which had been
provided to defendant during discovery. Transcripts of the text
messages were also provided to defendant during discovery.
The trial court allowed Woods to testify for the State. The
court said it would give the defense as much time as needed to meet
with Woods and prepare a cross-examination. The defense requested
to meet with Woods at the end of the day and be prepared to cross-
examine him the following day. The trial court agreed to this
Although Woods was not listed by name as a witness the State
reasonably expected to call, the State did disclose it would call
the Custodian of Nextel Phone Records, and provided Woods's name
to defendant as listed in Detective Early's file. Defendant was
also provided with the transcript of the text messages during
discovery. Defendant has failed to show the trial court abused itsdiscretion in admitting Woods's testimony pursuant to N.C. Gen.
Stat. § 15A-903(a)(3). This assignment of error is overruled.
XII. Admission of Text Messages
 Defendant argues the trial court erred in denying his
motion in limine and admitting State's Exhibits 87 and 88 into
evidence. These exhibits are printouts or transcripts of the text
messages sent to and from the telephone number assigned to the
victim's company issued cellular telephone. We disagree.
Defendant argues the text messages were not properly
authenticated. The trial court made written findings of fact
stating the reasons the court was satisfied that State's Exhibits
87 and 88 are what they purport to be, copies of the incoming and
outgoing text messages for cellular telephone number 919-279-7004.
Defendant did not object to the trial court's findings of fact and
they are binding on appeal. Koufman, 330 N.C. at 97, 408 S.E.2d at
731. We review the trial court's denial of defendant's motion in
limine for an abuse of discretion. State v. Williams, 355 N.C.
501, 547, 565 S.E.2d 609, 636 (2002), cert. denied, 537 U.S. 1125,
154 L. Ed. 2d 808 (2003).
Rule 901 of the North Carolina Rules of Evidence provides,
The requirement of authentication or identification as a condition
precedent to admissibility is satisfied by evidence sufficient to
support a finding that the matter in question is what its proponent
claims. N.C. Gen. Stat. § 8C-1, Rule 901(a) (2005). The statuteprovides several methods to authenticate evidence. N.C. Gen. Stat.
§ 8C-1, Rule 901(b). This list includes testimony of a witness
with knowledge that a matter is what it is claimed to be. N.C.
Gen. Stat. § 8C-1, Rule 901(b)(1).
Brent Jones (Jones), a strategic care specialist with Nextel
Communications (Nextel), testified at trial. Jones testified
Nextel keeps a record of all incoming and outgoing text messages to
and from its customers. The content of text messages and the times
they are received and sent are stored in the Nextel database.
Customers of Nextel may access a record of their text messages via
the internet by visiting Nextel's website and inserting their
access code. Jones testified that he does not have access to the
text messages stored in Nextel's database.
Woods testified at trial as a manager of the Wireless Express
Store in Raleigh in February 2004. Woods assigned and issued the
victim a Nextel cellular telephone with the number 919-279-7004.
The victim's cellular telephone contained the capacity to send and
receive text messages. Woods was authorized to access the Nextel
website for text messages to and from cellular telephone number
919-279-7004. Woods identified State's Exhibit 87 to be what he
had retrieved from the Nextel website as the stored incoming text
messages for cellular telephone number 919-279-7004. Woods also
identified State's Exhibit 88 to be what he had retrieved from theNextel website as the stored outgoing text messages for cellular
telephone number 919-279-7004.
Jones and Woods are both witnesses with knowledge of how
Nextel sent and received text messages and how these particular
text messages were stored and retrieved. This testimony was
sufficient to authenticate States Exhibits 87 and 88 as text
messages sent to and from the victim's assigned Nextel cellular
telephone number on 16 and 17 February 2004.
Defendant argues no showing was made of who actually typed and
sent the text messages. The text messages contain sufficient
circumstantial evidence that tends to show the victim was the
person who sent and received them. See N.G. Gen. Stat. § 8C-1,
Rule 901(b)(4) (provides authentication may be made through
Appearance, contents, substance, internal patterns, or other
distinctive characteristics, taken in conjunction with
circumstances.). The messages include information that the person
would be driving a 1998 Contour, and the sender self-identified
himself twice as Sean, the victim's first name.
Although this issue has not been considered in this
jurisdiction, other jurisdictions have upheld admission of
electronic messages as properly authenticated. See U.S. v.
Whitaker, 127 F.3d 595, 601 (7th Cir. 1997) (rejecting the
defendant's argument that the government failed to authenticate
computer records where the government presented testimony of an FBIagent who was present when records were retrieved); U.S. v.
Safavian, __ F. Supp. __, __ (D.C. Cir. 2006) (2006 U.S. Dist. Ct.
LEXIS 32284) (e-mail messages held properly authenticated where the
e-mail addresses contain distinctive characteristics such as,
inter alia, the @ symbol and a name of the person connected to
the address, the bodies of the messages contain a name of the
sender or recipient, and the contents of the e-mails also
authenticate them as being from the purported sender and to the
purported recipient); Massimo v. State, 144 S.W.3d 210, 216-17
(Tex. App. 2004) (e-mail message held properly authenticated where,
inter alia, the e-mail was sent to the victim's e-mail address
shortly after she and defendant had a physical altercation and the
e-mail referenced that altercation, and the victim recognized
defendant's e-mail account address.).
Defendant argues he was denied his Sixth Amendment right to
confront witnesses against him. Defendant failed to object on this
ground at trial. Constitutional issues not raised and passed upon
at trial will not be considered for the first time on appeal.
State v. Benson, 323 N.C. 318, 322, 372 S.E.2d 517, 519 (1988)
(citation omitted). Further, defendant failed to cite any
authority in support of this argument, and it is deemed abandoned.
N.C. R. App. P. 28(b)(6) (2006) (Assignments of error not set out
in the appellant's brief, or in support of which no reason orargument is stated or authority cited, will be taken as
The State properly authenticated the text messages pursuant to
N.C. Gen. Stat. 8C-1, Rule 901. The trial court did not abuse its
discretion in denying defendant's motion in limine and admitting
State's Exhibits 87 and 88. This assignment of error is overruled.
Defendant's attempt to argue lack of ability to confront witnesses
is abandoned and dismissed.
XIII. Life Imprisonment Without Parole
 Defendant argues the trial court erred in sentencing him
to life in prison without parole in violation of the Eight
Amendment's prohibition against cruel and unusual punishment
because he: (1) was not proven to be the shooter; (2) was sixteen
years old at the time the victim was shot; and, (3) had no prior
Defendant also failed to preserve this argument for appellate
review. He did not raise the issue or object to the sentencing
before the trial court. Constitutional issues not raised and
passed upon at trial will not be considered for the first time on
appeal. State v. Benson
, 323 N.C. 318, 322, 372 S.E.2d 517, 519
(1988) (citation omitted).
defendant had properly raised and preserved
this assignment of error, defendant has failed to show his sentence
of life in prison without parole violated his constitutionalrights. Only in exceedingly unusual non-capital cases will the
sentences imposed be so grossly disproportionate as to violate the
Eighth Amendment's proscription of cruel and unusual punishment.
State v. Ysaguire
, 309 N.C. 780, 786, 309 S.E.2d 436, 441 (1983).
Defendant was convicted of first-degree murder on a felony murder
theory. In State v. Hightower
, 168 N.C. App. 661, 669-70, 609
S.E.2d 235, 240-41, disc. rev. denied
, 359 N.C. 639, 614 S.E.2d 533
(2005), this Court rejected the defendant's argument that the trial
court's imposition of a life in prison without parole sentence for
felony murder was cruel and unusual.
Defendant asserts the lack of evidence presented to show he
was the shooter renders his sentence cruel and unusual. Evidence
presented tended to show that defendant arranged for the meeting
with the victim, helped beat the victim, and helped carry the
victim to the riverbank where Epps kicked him into the river. Dr.
Gulledge testified the cause of the victim's death was drowning.
In State v. Mann
, our Supreme Court stated:
[I]f two persons join in a purpose to commit a
crime, each of them, if actually or
constructively present, is not only guilty as
a principal if the other commits that
particular crime, but he is also guilty of any
other crime committed by the other in
pursuance of the common purpose . . . or as a
natural or probable consequence thereof.
355 N.C. at 306, 560 S.E.2d at 784 (citations and quotations
omitted), cert. denied
, 537 U.S. 1005, 154 L. Ed. 2d 403 (2002). Defendant also asserts the sentence imposed is cruel and
unusual in light of his age at the time of the victim's death. In
State v. Lee
, this Court held a sentence of life in prison without
parole imposed on a defendant who was fourteen years old at the
time he committed murder was not cruel and unusual. 148 N.C. App.
518, 524-25, 558 S.E.2d 883, 888, appeal dismissed
, 355 N.C. 498,
564 S.E.2d 228, cert. denied
, 537 U.S. 955, 154 L. Ed. 2d 305
(2002). Defendant has failed to show his life in prison without
parole sentence rises to the level of cruel and unusual punishment.
In defendant's eleventh and twelfth assignments of error,
he argues the trial court erred in denying his motion to dismiss at
the close of all evidence and denying his motion to vacate the
jury's verdict based on insufficient evidence. In these
assignments of error, defendant merely recites the standards of
review and states, the Appellant chooses not to elaborate . . .
other than to state the above argument and cite the above
authorities for this honorable court's review. Because defendant
has set forth no reason or argument in support of these
assignments of error, they are deemed abandoned. N.C. R. App. P.
The trial court did not err in denying defendant's motion to
require the police investigator to submit to a pretrial interview
with defense counsel. Detective Early was not required to submit
to an interview against his wishes by defense counsel prior to
, 328 N.C. at 12, 399 S.E.2d at 298; N.C. Gen.
Stat. § 15A-903(a)(1). The trial court properly admitted hearsay
testimony from McFalls regarding what her brother, the victim,
stated to her on 17 February 2004 pursuant to N.C. Gen. Stat. 8C-1,
Rule 803(3). The trial court properly concluded the search warrant
of defendant's residence was supported by probable cause, and
properly denied defendant's motion to suppress the items seized
from his residence.
Defendant has failed to show he was prejudiced by the
admission of testimony regarding the existence of his cellular
telephone containing images of two guns where the contents of those
images were not revealed to the jury. Defendant failed to properly
preserve his argument regarding the admission into evidence of
Jimetrus and Andrea Harris' prior statements. Defendant failed to
object when the statements were admitted.
After review of Maiden's sealed school records, we hold they
neither contain information favorable and material to defendant's
guilt and punishment, nor evidence adversely affecting Maiden's
credibility as a witness. The trial court did not abuse its discretion in: (1)
admitting the autopsy photographs of the victim; (2) allowing Dr.
Gulledge's testimony regarding how long it would have taken the
victim to die as a result of his injuries; (3) admitting printouts
of the text messages sent to and received from the victim's
cellular telephone; and (4) allowing Woods to testify as a
Defendant's eleventh and twelfth assignments of error
regarding his motion to dismiss and motion to vacate the jury's
verdict are deemed abandoned. Although defendant failed to object
or properly preserve the trial court's imposition of a life in
prison without parole sentence, his arguments reveal no errors in
his sentence. Defendant received a fair trial free from
prejudicial errors he preserved, assigned, and argued.
No prejudicial error.
Judge MCCULLOUGH and HUDSON concur.
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