STATE OF NORTH CAROLINA,
v
.
Durham County
Nos. 02 CRS 49147, 49149-50;
03 CRS 1782
MICHAEL BERNARD SULLIVAN
Attorney General Roy A. Cooper, III, by Special Deputy
Attorney General Buren R. Shields, III, for the State.
Thomas R. Sallenger, for defendant-appellant.
JACKSON, Judge.
On 5 June 2002, Lois Cannady (“victim”) was found shot to
death in her home. Five men were accused of stealing one of her
vehicles, breaking into her home, shooting and killing her, and
attempting to steal a second vehicle from her. Michael Sullivan
(“defendant”), Ricky Morris (“Morris”), Jerome Freeman (“Freeman”),
Marcus Hawley (“Hawley”), and Gregory Lee (“Lee”) were accused of
acting in concert in the murder of Ms. Cannady.
The evidence presented at trial tended to show that defendant
had not known the other four men for very long prior to 5 June
2002. On the morning of 5 June 2002, Ms. Cannady discovered that
her white Chevrolet Corsica had been stolen. Lee, who lived acrossthe street from the victim, knew the victim and knew where she kept
the keys to her cars. Lee was seen driving the victim's car on 5
June 2002, and picked up the other four men in the car.
On 5 June 2002, Lee picked up defendant and the other men in
Durham in a white Corsica. The men then drove to Roxboro, where
they proceeded to sit in a Wal-Mart parking lot for several hours
watching a car shop where Lee allegedly had a vehicle being
repaired. While sitting in the parking lot, the men smoked
marijuana, and at one point Lee went into Wal-Mart and bought
bullets for a shotgun, and Hawley and Freeman went in and purchased
bullets for an SKS rifle. Morris testified that the men returned
to Durham after dark, where Lee and defendant shot at a parked
vehicle with the shotgun and SKS rifle. The men then returned to
Lee's house, where they parked the white Corsica down the street,
and walked to Lee's home. Morris and Freeman both testified that
the men's plan was to steal the victim's other car, and that Lee
said that it would be easy to get the keys as he had done before.
Morris and Freeman testified that at all times during the
events at the victim's house that night, defendant had the SKS
rifle, Lee had the shotgun, and Morris had another gun. Defendant
and the other four men went to the victim's house, where they
kicked in the back door after having cut off the power to the
house. The men then rushed into the house, at which point the
victim fired a shot at the men. Morris and Freeman testified that
they ran, and that Lee and Sullivan were in the house when Morris
heard a shot fired from the SKS rifle. All five men then ran fromthe victim's house, and Lee proceeded to fire a shot from the
shotgun into the victim's car in her driveway. Testimony from the
State's witness who performed the autopsy on the victim determined
that the victim died as a result of a large, single gunshot wound.
The bullet that killed the victim was recovered in her home, and
testimony was presented showing that the fatal bullet had been
fired from the SKS rifle recovered by police in the backyard of the
residence of defendant's girlfriend.
Freeman later plead guilty to the second-degree murder of
Cannady along with other charges in conjunction with the murder, in
exchange for his participation in the prosecution of the other men,
although he did not receive any deal concerning the type of
sentence he would receive. Morris also plead guilty to second
degree murder and other charges, all of which stem from these
events. Like Freeman, Morris did not receive any deal concerning
sentencing, and he was required to aid in the prosecution of the
other men involved.
Defendant testified that while he was with the four men during
the afternoon of 5 June 2002, he was not with them that evening
when the shooting occurred at the victim's home. Defendant stated
that the four men dropped him off at the bus station, and that he
did not see the four men again until around 12:20 a.m. when the men
came over to defendant's girlfriend's home. Defendant and his
girlfriend, Tonya Halsey, both testified that defendant was at
Halsey's home that entire evening. On 3 February 2003, defendant was indicted for first degree
murder, first degree burglary, attempted robbery with a dangerous
weapon, and felony possession of a stolen vehicle. On 25 October
2004, a jury found him guilty on all charges, and defendant was
sentenced to an active term of imprisonment for life without
parole. Defendant was sentenced only on the charge of first degree
murder, with a prayer for judgment continued for the remaining
three charges. Defendant now appeals from all of his convictions.
Defendant first argues the trial court erred in allowing
witness Rebecca Reid (“Reid”) to testify as an expert in the field
of fingerprint comparison and identification. Defendant contends
on appeal that the evidence presented showed that Reid's
qualifications and experience were inadequate to allow her to
qualify as an expert.
Rule 702(a) of the North Carolina Rules of Evidence provides:
If scientific, technical or other specialized
knowledge will assist the trier of fact to
understand the evidence or to determine a fact
in issue, a witness qualified as an expert by
knowledge, skill, experience, training, or
education, may testify thereto in the form of
an opinion.
N.C. Gen. Stat. § 8C-1, Rule 702 (2004). “'Thus, under our Rules
of Evidence, when a trial court is faced with a proffer of expert
testimony, it must determine whether the expert is proposing to
testify to scientific, technical, or other specialized knowledge
that will assist the trier of fact to determine a fact in issue.'”
State v. Berry, 143 N.C. App. 187, 202, 546 S.E.2d 145, 156, disc.
review denied, 353 N.C. 729, 551 S.E.2d 439 (2001) (citationomitted). The trial court's “acceptance of a witness as an expert
and 'the admission of expert testimony are within the sound
discretion of the trial court and will not be upset absent a
showing of an abuse of discretion.'” Id. (quoting State v. Willis,
109 N.C. App. 184, 192, 426 S.E.2d 471, 475 (1993)). Our courts
further have held that experts need not have specific credentials
in order to be considered an “expert.” State v. Bullard, 312 N.C.
129, 140, 322 S.E.2d 370, 376 (1984).
The central issue in determining whether a witness qualifies
as an expert, is to determine if she, “'through study or
experience, has acquired such skill that [s]he was better qualified
than the jury to form an opinion on the subject matter'” in
question. State v. Tyler, 346 N.C. 187, 204, 485 S.E.2d 599, 608,
cert. denied, 522 U.S. 1001, 139 L. Ed. 2d 411 (1997) (quoting
State v. Mitchell, 283 N.C. 462, 467, 196 S.E.2d 736, 739 (1973)).
In the instant case, the trial court heard testimony from Reid
during voir dire concerning her training and experience in the
field of fingerprint comparison and identification. Reid testified
that although she did not have an undergraduate degree, she had
graduated from high school, and had taken some classes at Durham
Technical Community College. She stated that she had worked for
the Durham Police Department as a Crime Scene Investigator for the
previous nine years, during which time she had received over one
hundred hours of training on fingerprint classification, comparison
and identification. Reid testified that since early 2002, her soleduties had included examination of latent fingerprint evidence and
making fingerprint comparisons and identifications.
Reid stated that she had not obtained certification yet
through the International Association of Identification, due to her
ineligibility as a result of her lacking the required five years of
full-time experience working as a latent print examiner. She
stated that she is a member of the association, and that she is
working to become certified. Reid also testified that she
previously had been qualified to testify as an expert in the field
of fingerprint comparison and identification on four separate
occasions, twice in juvenile court and twice in superior court.
Following voir dire, during which both parties questioned
Reid, the court made findings of fact concerning Reid's
qualifications, training and experience. The trial court found
that she had the knowledge, skill, experience and training to
testify as an expert in this field. Defendant has not challenged
these findings of fact by the trial court, thus the court's
findings of fact concerning Reid's knowledge, skill, training and
experience are conclusive on appeal, as they are supported by the
evidence in the record. See State v. Braxton, 344 N.C. 702, 709,
477 S.E.2d 172, 176 (1996).
In general, “[a] court may not rule that a witness is expert
on the basis that another court has found that witness to be an
expert.” State v. Oliver, 85 N.C. App. 1, 10, 354 S.E.2d 527, 532
(1987). However, the trial court in this case did not rely solely
upon Reid's testimony that she testified previously as an expertwitness on four occasions. The court also relied upon her
testimony as to her knowledge, skills, experience, training and
education. Since there was sufficient evidence upon which the
trial court could base its decision that Reid was an expert in the
field of fingerprint comparison and identification, we hold the
trial court did not abuse its discretion in allowing Rebecca Reid
to testify as an expert.
Defendant next contends the trial court committed reversible
error when it instructed the jury on the issue of “acting in
concert” as part of the felony murder instruction. Defendant
contends, on appeal, that there was insufficient evidence presented
at defendant's trial which would support the instruction.
During the charge conference, the trial court informed both
the State and defendant that it intended to instruct the jury on
the issue of “acting in concert” in connection with defendant's
charges of first degree burglary, attempted robbery with a
dangerous weapon and felony possession of a stolen vehicle.
Neither party objected to the trial court's proposed instructions,
and the proposed instructions were given to the jury without
objection by either party. During deliberations, the jury sent a
question to the trial court asking if the “acting in concert”
instruction given in connection with the burglary, robbery, and
possession of a stolen vehicle charges also applied to defendant's
charge of first degree murder based on the felony murder rule.
Over defendant's objection, the trial court instructed the jury onthe issue of “acting in concert” in connection with the elements of
felony murder.
Defendant objected to the trial court's instruction on “acting
in concert” in connection with the charge of felony murder, arguing
that an “acting in concert” instruction was inappropriate in a
felony murder case. Defendant argued that instead, an instruction
on “aiding and abetting” would be more appropriate. Defendant did
not object to the “acting in concert” instruction given in
connection with the instructions on burglary, robbery, or
possession of a stolen vehicle. Defendant's objection to the
instruction on “acting in concert” was not based on the fact that
the evidence presented at trial failed to support such an
instruction, as is now argued on appeal. Rather, defendant's
counsel objected only on the ground that an instruction on “acting
in concert” was inappropriate for a felony murder charge.
“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 [trial] court to make if the specific grounds were not
apparent from the context.” N.C. R. App. P. 10(b)(1) (2005).
Further, “[a] party may not assign as error any portion of the jury
charge or omission therefrom unless he objects thereto before the
jury retires to consider its verdict, stating distinctly that to
which he objects and the grounds of his objection.” N.C. R. App.
P. 10(b)(2) (2005).
Our Supreme Court “has long held that where a
theory argued on appeal was not raised beforethe trial court, 'the law does not permit
parties to swap horses between courts in order
to get a better mount'” in the appellate
courts. . . . “The defendant may not change
his position from that taken at trial to
obtain a 'steadier mount' on appeal.”
State v. Holliman, 155 N.C. App. 120, 123, 573 S.E.2d 682, 685
(2002) (citations omitted). On appeal, defendant now attempts to
argue that the evidence was insufficient to support the instruction
on “acting in concert” for the first degree murder charge.
Defendant does not argue on appeal, as he did at trial, that the
instruction on “acting in concert” does not apply in a felony
murder case. Further, defendant did not present to the trial court
the grounds which he now asserts on appeal. Therefore, defendant
has failed to preserve this argument for our review. As defendant
also has failed to argue that the trial court's instruction
amounted to plain error, we need not review the purported error
under a plain error standard of review. We therefore dismiss
defendant's argument that the trial court erred in instructing the
jury on “acting in concert” as part of the felony murder
instruction.
Finally, defendant contends the trial court erred in denying
his motion to dismiss the charges of first degree murder, first
degree burglary, attempted robbery with a firearm, and felony
possession of a stolen vehicle, based on insufficient evidence
being presented at trial which would support a conviction on each
of the charges.
Per Rule 10(b)(3) of the North Carolina Rules of Appellate
Procedure, A defendant in a criminal case may not assign
as error the insufficiency of the evidence to
prove the crime charged unless he moves to
dismiss the action . . . at trial. If a
defendant makes such a motion after the State
has presented all its evidence and has rested
its case and that motion is denied and the
defendant then introduces evidence, his motion
for dismissal . . . made at the close of
State's evidence is waived. Such a waiver
precludes the defendant from urging the denial
of such motion as a ground for appeal.
A defendant may make a motion to dismiss the
action . . at the conclusion of all the
evidence, irrespective of whether he made an
earlier such motion. If the motion at the
close of all the evidence is denied, the
defendant may urge as ground for appeal the
denial of his motion made at the conclusion of
all the evidence. However, if a defendant
fails to move to dismiss the action . . . at
the close of all the evidence, he may not
challenge on appeal the sufficiency of the
evidence to prove the crime charged.
N.C. R. App. P. 10(b)(3) (2005). During defendant's trial, his
counsel made the following motion at the close of the State's case:
Defense counsel: Judge, at this time, at
the close of State's
evidence, I would make a
motion to dismiss the
possession of stolen
motor vehicle charge in
that, even taking
evidence in the light
most favorable to the
State, that they have not
proved that he,
[defendant], was in
possession of that motor
vehicle.
Defendant's motion was denied, and defendant proceeded with
presenting evidence in his case. At the close of all evidence,
defendant renewed his earlier motion, stating: Defense counsel: Yes, Judge. At the close
of all the evidence, I'd
like to renew my motion
to dismiss as to the
possession of a stolen
motor vehicle.
This motion also was denied. At no time did defendant make a
motion to dismiss the charges of first degree murder, first degree
burglary, or attempted robbery with a firearm.
Defendant's assignments of error argue that the trial court
erred, or in the alternative committed plain error, in failing to
dismiss the murder, burglary, and robbery charges based on an
insufficiency of the evidence to support these charges. However,
defendant's brief fails to present any argument as to how the trial
court committed plain error in failing to dismiss the charges sua
sponte after defense counsel failed to preserve the issues for
appellate review by entering a motion to dismiss on all of
defendant's charges. As defendant has failed to present argument
as to the trial court's plain error in failing to dismiss the
charges based on an insufficiency of the evidence, this argument is
deemed abandoned. N.C. R. App. P. 28(b)(6) (2005). Therefore, as
to the charges of first degree murder, first degree burglary, and
attempted robbery with a firearm, defendant's assignments of error
that the trial court erred in denying his motion to dismiss the
charges are dismissed, as he has failed to preserve the issues for
appeal.
We therefore need only address defendant's argument that the
trial court erred in failing to grant his motion to dismiss the
charge of felony possession of a stolen vehicle. In reviewing thedenial of a motion to dismiss, our role is to determine whether the
evidence, when taken in the light most favorable to the State,
would permit a reasonable juror to find defendant guilty of each
essential element of the offense beyond a reasonable doubt. State
v. Etheridge, 319 N.C. 34, 47, 352 S.E.2d 673, 681 (1987).
Defendant was charged with felony possession of a stolen
vehicle, in violation of North Carolina General Statutes, section
20-106. In order for a defendant to be found guilty of felony
possession of a stolen vehicle, the State must prove that the
defendant was in possession of a stolen vehicle, and that he knew
or had reason to know that the vehicle had been stolen or taken
unlawfully. State v. Bailey, 157 N.C. App. 80, 86, 577 S.E.2d 683,
688 (2003). At trial, defendant argued that the State offered
insufficient evidence that he was in possession of the victim's
stolen white Chevrolet Corsica.
In order to survive a motion to dismiss, the State need only
offer “substantial evidence of each essential element of the
offense charged and of the defendant being the perpetrator of the
offense.” State v. Crawford, 344 N.C. 65, 73, 472 S.E.2d 920, 925
(1996). “Substantial evidence” is that which “a reasonable mind
might accept as adequate to support a conclusion.” Id. The trial
court does not weigh the evidence presented, instead it merely
considers the sufficiency of the evidence to support the offenses
charged, and the determination of any witness' credibility is left
for the jury to decide. Id. The trial court must resolve allcontradictions and discrepancies in the evidence in favor of the
State. Id. at 73, 472 S.E.2d at 926.
“Circumstantial evidence may be utilized to overcome a motion
to dismiss '“even when the evidence does not rule out every
hypothesis of innocence.”'” State v. Golphin, 352 N.C. 364, 458,
533 S.E.2d 168, 229 (2000) (quoting State v. Thomas, 350 N.C. 315,
343, 514 S.E.2d 486, 503 (1999)). When the trial court has found
there to be substantial evidence, whether direct or circumstantial,
“'to support a finding that the offense charged has been committed
and that the defendant committed it, the case is for the jury and
the motion to dismiss should be denied.'” Id. (quoting State v.
Locklear, 322 N.C. 349, 358, 368 S.E.2d 377, 383 (1988)). However,
if the evidence “'is sufficient only to raise a suspicion or
conjecture as to either the commission of the offense or the
identity of the defendant as the perpetrator, the motion to dismiss
must be allowed.'” Id. at 458, 533 S.E.2d at 229-30 (quoting State
v. Malloy, 309 N.C. 176, 179, 305 S.E.2d 718, 720 (1983)).
The evidence presented at trial tended to show that defendant
was in the victim's stolen Corsica for an extended period of time
on the day of the shooting. Not only were defendant's fingerprints
found inside and outside of the vehicle, but defendant also
testified that he had ridden in the vehicle that day. Both Morris
and Freeman testified that defendant was with them when all five
men rode in the car to a Wal-Mart in Roxboro, later returned to
Durham where defendant and Lee shot at an Escalade, and then went
to Lee's home prior to going to the victim's home. Defendant testified that when Lee picked up defendant and the
other men in the white Corsica, defendant and the other men pulled
numerous items out of the car, including a cane and pillow, and
left the items in the parking lot of a tire service station.
Freeman testified that the items taken out of the car also included
pictures and a walker. The walker was later identified by the
victim's grandson as a walker belonging to the victim which she
kept in the backseat of her car. Defendant testified that he did
not know who the items belonged to, but he did not think they would
be returning to retrieve the items later.
Freeman testified that Lee told him that the white Corsica Lee
was driving belonged to the victim. In testifying about his
relationship with Lee, defendant stated that he had only known Lee
for about a week, but that he had stayed at Lee's home one night,
and that he had never seen the white Corsica prior to 5 June 2002.
Although defendant offered evidence that he was not with the other
individuals when they returned to the victim's home, and that Lee
told him the car belonged to Lee's father, it was for the jury to
weigh the credibility of the testimony and to determine which
version of events to believe.
Based on the evidence presented, including the fact that prior
to this night, defendant had never seen the vehicle during his
multiple interactions with Lee, the fact that defendant and the
other men dumped items out of the car and left them in a parking
lot, when the vehicle allegedly belonged to Lee's father, and the
fact that the other men in the vehicle knew that it was stolen, we hold there was sufficient evidence presented to the jury to support
the jury's finding that defendant knew or had reason to know that
the victim's white Corsica in which he was riding was stolen. We
also hold there was sufficient evidence presented to support a
finding that defendant was in possession of the stolen vehicle, in
that he was in the car for an extended period of time and he
exercised dominion and control over the contents of the vehicle.
Therefore, we hold the trial court acted properly in denying
defendant's motion to dismiss the charge of felony possession of a
stolen vehicle.
No error.
Judges BRYANT and CALABRIA concur.
Report per Rule 30 (e).
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