STATE OF NORTH CAROLINA
v
.
Scotland County
No. 03 CRS 51400
DEXTER ANTONIO HOWELL
Attorney General Roy Cooper, by Special Deputy Attorney
General Jill Ledford Cheek, for the State.
Cheshire, Parker, Schneider, Bryan & Vitale, by John Keating
Wiles, for defendant-appellant.
CALABRIA, Judge.
Dexter Antonio Howell (“defendant”) appeals from judgment
entered on a jury verdict finding him guilty of second-degree
murder. We find no error.
The evidence presented at trial showed the following.
Defendant started dating Cristol Radford (“Radford”) around
September of 2002, and as of December 2002, the couple were engaged
to be married. Radford and defendant began living together in
October 2002 and moved to the residence where the events at issue
occurred in January 2003. On the morning of 14 April 2003, Radford
returned from her night shift work, and defendant was not home.
Around 6:00 p.m., Radford went to pick up Larry Pearson(“Pearson”), a man with whom Radford had a relationship in March
2002. Radford and Pearson purchased food and alcohol then went to
the home Radford shared with defendant. According to Radford, she
and Pearson entered the home, turned on the TV, kissed a few times,
and fell asleep on the couch around 11:30 p.m.
They were awakened when defendant returned and accused Radford
of having sexual relations with Pearson. Defendant was accompanied
by DeAngelo Terry (“Terry”) at the time defendant discovered
Radford and Pearson. The testimony is conflicting about whether
defendant and Pearson then walked outside, or whether defendant
threw Pearson outside. Defendant said in his statement to police
that, while he and Pearson were outside the home, defendant told
Pearson he was engaged to Radford, and Pearson replied he did not
care, so defendant hit him in the face. Radford testified that,
after Pearson fell to the ground, defendant kicked him in the ribs.
Radford then told defendant that she had not had sexual relations
with Pearson, and defendant calmed down.
After defendant calmed down, he said that he would put Pearson
in his car and drop him off in front of Pearson's girlfriend's
house, but Radford urged him not to drop Pearson off. As the
argument ensued, Terry informed defendant, “Hey, [Pearson is]
leaving.” Defendant “looked out and saw Pearson going behind the
house across the street.” Defendant found Pearson “lying a couple
of yards behind the house” and “dragged him to the road so someone
would see him and call the police.” Terry had called Otis Harrell
(“Harrell”) and Shawn Allen (“Allen”) to come pick up Pearson. Radford saw Pearson lying near the street, and she asked defendant
about Pearson's condition. Defendant replied that Pearson was fine
and that he had passed out. Between 12:30 and 1 o'clock in the
morning, Harrell and Allen arrived. Harrell testified he noticed
that Pearson was “not breathing right,” but he did not call the
police because he heard defendant say the police were on their way.
Allen testified that when he arrived he saw blood on the victim's
shirt but he did not observe any injuries to the victim. Allen did
not testify who said the police were on their way, but upon hearing
the police had been called, he said, “Let's go. The police [are]
supposed to be on their way.” As Terry, Harrell, and Allen were
leaving, Harrell said there was discussion about putting Pearson in
Allen's car and taking him for help; however, Allen “didn't want to
do it because that was not his car.” Allen testified, however,
that he did not remember any such discussion. Radford testified
that, when the three left, she trusted that Pearson would be
alright, and Allen also testified that he had no ill will toward
Pearson and would have helped him, under certain circumstances, if
he had believed it to be a life-threatening situation.
Defendant also said in his statement a man next door pulled up
in a truck. Defendant said he was going to ask the man to put
Pearson in the bed of his truck and take him to the hospital, but
Radford asked defendant not to make the request. Defendant
subsequently left to go to the hospital to get his swollen hand
examined. Defendant checked on Pearson on his way to the hospital,
and he also checked on Pearson when he returned to his home atabout 3:30 a.m. Defendant stated that he found Pearson sleeping
and snoring when he checked on him. Defendant and Radford
subsequently went to bed.
The morning of 15 April Radford awoke and noticed an ambulance
and two police cars in the area where Pearson was lying. Radford
woke defendant, and defendant told her the ambulance would just
take Pearson to the hospital and then Pearson would go home. The
officers subsequently asked Radford and defendant to accompany them
to the police station. When Radford told defendant about the
officers' request, defendant asked Radford to tell the police that
when defendant had gotten home Pearson had already been assaulted.
Pearson was taken to the hospital. Jerlean Bradley
(“Bradley”), Pearson's mother, testified that the doctors told
Pearson's family that he was brain-dead, and the family decided to
remove life support. An autopsy conducted by the State's Chief
Medical Examiner, John D. Butts (“Butts”), revealed that Pearson's
body was scraped and bruised and that his jaw was broken in two
places. The right side of Pearson's brain had swelled and a large
blood clot, known as a “subdural hematoma,” had developed,
resulting in brain herniation. Butts testified that the
hemorrhages in Pearson's brain resulted from the swelling and the
subdural hematoma rather than occurring directly upon the impact
from defendant's blows. The autopsy also revealed that Pearson's
liver was larger than usual, and Butts testified that “[o]ne of the
more common causes of that type of change in the liver . . . isheavy alcohol abuse.” Butts also noted that “alcoholics,
medically, are more prone to subdural hematomas.”
Edward Friedlander (“Friedlander”) served as defendant's
medical expert. Friedlander testified that Pearson's liver
condition was most likely a sign of alcohol abuse and that a
subdural hematoma was “just waiting to happen.” When Friedlander
was asked whether Pearson would have shown “any medical signs of
fatal injury, to the average person,” Friedlander responded, “you
think . . . they'll be fine,” and “it would not have been obvious
that this man was dying.” He also testified that a subdural
hematoma can result from activities such as riding a roller
coaster, break dancing, impact to the head, fistfights, and in
sports like boxing and football.
Based on this evidence, the trial court charged the jury on
involuntary manslaughter, voluntary manslaughter, and second-
degree murder. The jury found defendant guilty of second-degree
murder, and the trial court sentenced defendant to a minimum of 220
months to a maximum of 273 months in the North Carolina Department
of Correction. Defendant appeals.
I. Motions to Dismiss
In his first assignment of error, defendant argues that the
trial court erred in denying his motions to dismiss. “When
considering a motion to dismiss, the trial court must view the
evidence in the light most favorable to the State, giving the State
the benefit of all reasonable inferences.” State v. Morgan, 359
N.C. 131, 161, 604 S.E.2d 886, 904 (2004) (citations omitted). “Ifsubstantial evidence exists to support each essential element of
the crime charged and that defendant was the perpetrator, it is
proper for the trial court to deny the motion.” Id. (citations
omitted). “It is not the rule in this jurisdiction that the trial
court is required to determine that the evidence excludes every
reasonable hypothesis of innocence before denying a defendant's
motion to dismiss.” State v. Vause, 328 N.C. 231, 237, 400 S.E.2d
57, 61 (1991).
“Murder in the second degree is the unlawful killing of a
human being with malice but without premeditation and
deliberation.” State v. Snyder, 311 N.C. 391, 393, 317 S.E.2d 394,
395 (1984) (citations omitted). “While an intent to kill is not a
necessary element of murder in the second degree, that crime does
not exist in the absence of some intentional act sufficient to show
malice and which proximately causes death.” State v. Lang, 309
N.C. 512, 524-25, 308 S.E.2d 317, 323 (1983).
Defendant concedes that the killing was unlawful and
proximately caused by his conduct in striking Pearson with his
fist, but he argues that the evidence does not show an “intentional
act sufficient to show malice.” Malice may be shown in a
second-degree murder prosecution in at least three ways:
(1) express hatred, ill-will, or spite; (2)
commission of inherently dangerous acts in
such a reckless and wanton manner as to
manifest a mind utterly without regard for
human life and social duty and deliberately
bent on mischief; or (3) a condition of mind
which prompts a person to take the life of
another intentionally without just cause,
excuse, or justification, [which is
established by intentional infliction of awound with a deadly weapon that results in
death.]
State v. Coble, 351 N.C. 448, 450-51, 527 S.E.2d 45, 47 (2000).
Our Supreme Court has also said, “any act evidencing wickedness of
disposition, hardness of heart, cruelty, recklessness of
consequences, and a mind regardless of social duty and deliberately
bent on mischief, though there may be no intention to injure a
particular person, is sufficient to supply malice necessary for
second-degree murder.” State v. Wilkerson, 295 N.C. 559, 581, 247
S.E.2d 905, 917 (1978) (quotations omitted).
Defendant argues that striking with hands or kicking with
feet, when the hands and feet are not used as deadly weapons,
cannot result in an inference of malice as a matter of fact or law.
In State v. Lang, our Supreme Court held:
The fact that a defendant struck a person with
his hand or kicked a person and proximately
caused that person's death would not support
either a presumption of malice as a matter of
law or an inference of malice as a matter of
fact unless the defendant was using his hands
or feet as deadly weapons.
309 N.C. 512, 524, 308 S.E.2d 317, 323 (1983).
Moreover, it has long been the law of this state that:
[I]n a fight between men, the fist or foot
would not, generally, be regarded as
endangering life or limb. But it is manifest,
that a wilful blow with the fist of a strong
man, on the head of an infant, or the stamping
on its chest, producing death, would import
malice from the nature of the injury, likely
to ensue.
State v. West, 51 N.C. 505, 509 (1859). See also State v. Elliot,
344 N.C. 242, 269, 475 S.E.2d 202, 213 (1996) (“Malice is notimplied where death ensues from an attack made with the hands or
feet on a strong or mature person, death not ordinarily being
caused by such an attack.”) “If the assault were committed under
such circumstances as to indicate a total disregard for human life,
it would support a finding of implied malice and a verdict of
second degree murder[.] . . . However, . . . a mere assault which
proximately results in death, but which does not indicate a total
disregard for human life and is committed with no intent to kill or
to inflict serious bodily injury, will support, at most, a verdict
of involuntary manslaughter.” Wilkerson, 295 N.C. at 583, 247
S.E.2d at 919.
The State argues that it “did not rely either on any legal
presumption of malice resulting from the use of a deadly weapon, or
on any inference of fact as to malice resulting from use of hands
or feet as a deadly weapon, [so] the holding of State v. Lang . .
. and other cases upon which defendant relies have no
applicability[.]” Specifically, the State argues that malice is
evident from defendant's actions in that “defendant brutally
assaulted the victim and then refused to call, or to allow another
to call, for aid for the victim.” Our review of the transcript
indicates that the State presented evidence from which a jury could
find that defendant knew of the severity of Pearson's condition
and, nonetheless, failed to render aid such that a jury could have
found malice. See State v. Baldwin, 139 N.C. App. 65, 74, 532
S.E.2d 808, 814 (2000) (saying that failure to render aid or show
mercy is inherent in malice). Viewed in the light most favorableto the State, defendant failed to render aid to Pearson despite the
fact that Pearson was “not breathing right.” Defendant then told
Harrell and Allen that the police were on the way, and they left
without aiding Pearson. Subsequently, defendant left Pearson
despite going to the hospital to seek medical treatment for
himself. Accordingly, we hold that there was enough evidence to
send the second-degree murder charge to the jury and that the trial
court properly denied defendant's motions to dismiss this claim.
State v. Horner, 248 N.C. 342, 344-45, 103 S.E.2d 694, 696 (1958)
(“If there is more than a scintilla of competent evidence to
support the allegations in the warrant or indictment, it is the
court's duty to submit the case to the jury”).
Defendant next argues that the trial court “erred when it
sustained the State's objection to testimony by the defendant's
expert in clinical and anatomical pathology that he saw nothing in
the autopsy that there was an intent to use deadly force.” We
disagree.
At trial, the following exchange occurred:
Q. And based on the decedent's health
condition with the liver and the alcohol, if
you would, tell the jury what your opinion is
as to the type of force necessary to cause
these type of injuries to the brain.
A. I don't see anything in this autopsy that
there's an intent to use deadly force.
Ms. Manis: Objection
The Court: Sustained
Q. Tell the _- Do you have an opinion as to
the type of force it would cause _- would be
needed to cause the type of injuries in this
case?
A. I think it's a fistfight. In determining the admissibility of this evidence, we note that
“[a] trial court is afforded wide latitude of discretion when
making a determination about the admissibility of expert testimony”
and “a trial court's rulings under Rule 702 will not be reversed on
appeal absent an abuse of discretion.” State v. Morgan, 359 N.C.
131, 160, 604 S.E.2d 886, 903-04 (2004) (quotations omitted). In
this case, Friedlander was qualified as an expert in “clinical and
anatomical pathology.” Defendant has failed to establish how this
area of expertise qualified Friedlander to testify to whether
defendant had “an intent to use deadly force.” Moreover, through
the initial question, defense counsel sought to show that because
of the victim's health conditions non-deadly force could have
caused the victim's death. Although excluding testimony about
defendant's intent, the trial court then allowed the expert to
testify that he thought victim's injury could have resulted from a
fistfight. This was the response which defendant's counsel has
initially solicited. Given that defendant ultimately made the
point which he elicited and that malice was established in this
case by defendant's failure to aid the victim, even assuming
arguendo that the challenged testimony was admissible under State
v. Teague, 134 N.C. App. 702, 708, 518 S.E.2d 573, 578 (1999), we
hold that any error was non-prejudicial. See State v. Martin, 322
N.C. 229, 238-39, 367 S.E.2d 618, 623-24 (1988) (stating in order
to prove prejudicial error “an appellant must show that there is a
reasonable possibility that, had the error not been committed adifferent result would have been reached at trial”). Accordingly,
we hold this assignment of error is without merit.
Defendant has failed to argue his remaining assignments of
error on appeal, and we deem them abandoned pursuant to N.C. R.
App. P. 28(b)(6) (2005).
No error.
Judges HUDSON and BRYANT concur.
Report per Rule 30(e).
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