An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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: 5 July 2006
STATE OF NORTH CAROLINA
Nos. 02 CRS 051491
DECARLOS MOSS 04 CRS 000145
Appeal by defendant from judgments entered 28 May 2004 by
Judge Steve Balog in Person County Superior Court. Heard in the
Court of Appeals 20 April 2006.
Attorney General Roy Cooper, by Special Deputy Attorney
General Buren R. Shields, III, for the State.
Nora Henry Hargrove for defendant appellant.
Decarlos Moss (defendant) appeals from conviction and judgment
for first-degree murder, conspiracy to commit robbery with a
dangerous weapon, and robbery with a dangerous weapon. We hold that
he received a fair trial, free from prejudicial error.
The State's evidence tended to show the following: On 25
April 2002 defendant, his brother Antonio Moss, and friend Chase
Parker were at the home of defendant's sister, Crystal. Defendant,
Antonio and Chase were consuming alcohol. At some point, the three
men took a pair of rifles, a Marlin and an Enfield, into Crystal's
backyard to fire the weapons. Defendant discharged the Marlinrifle, and Antonio discharged the Enfield. Antonio was burned
slightly when the Enfield backfired.
Defendant commented about a pending child support case, and
formulated a plan to rob a taxi driver to get the money to pay his
child support. The men called for a taxi, which arrived at
approximately 2:00 p.m. The taxi's driver, Harold Whitfield,
pulled into Crystal's driveway, where he saw a pair of youths.
Whitfield asked if anyone had called for a taxi. Defendant
responded that no one had called for a taxi, and Whitfield left.
Antonio, Chase, and defendant then made calls to several
people, attempting to convince someone to call another cab for
them. Christian Tuck, Chase's girlfriend, ultimately placed a call
to Burton Taxi. The house adjacent to the home of defendant's
sister, Crystal, was given as the pick-up address.
Before the cab arrived, Antonio received a telephone call from
a woman named Paige Garrett. Paige came to see Antonio shortly
after 7:00 p.m., and they visited in her car for approximately
While Antonio and Paige were talking, defendant and Chase
continued to plan the robbery. Crystal's house was located at the
end of a long dirt and gravel driveway that led through the woods.
The house was not visible from the main road. Defendant and Chase
planned to stop the taxi by blocking the driveway and to then
Paige and Antonio watched as defendant and Chase removed a
Marlin rifle wrapped in a white sheet from the backseat of an oldwhite car parked in the yard. Defendant and Chase, dressed in dark
clothes and ski masks, walked down the hill to the driveway next
door. They blocked the drive with a log, and waited for the taxi
to arrive. The taxi made a wrong turn and drove away.
Defendant and Chase returned to Crystal's house and telephoned
Chase's girlfriend. They instructed her to call for another cab
and to be more specific with the directions. Defendant and Chase
then went back outside, again placed a log across the driveway in
order to detain the cab driver, and waited.
A taxi van arrived and stopped at the log. Chase attempted to
break the passenger side window by throwing a rock at it, but the
rock bounced off the window. Defendant ran up to the driver's side
window and shattered it with the rifle. He then demanded money
from the driver, Lila Burton McGhee. McGhee gave defendant her
purse, and then put the van in reverse in an attempt to leave. The
van struck defendant and knocked him to the ground. Defendant
thereafter regained his footing and fired several shots into the
back of the van, injuring McGhee. The van rolled to a stop, and
defendant and Chase ran back to Crystal's house. Defendant hid the
Marlin rifle in the stairwell leading to the basement.
Paige and Antonio testified that they both noticed a Burton
Taxi pass by the house three times. After Paige left, Antonio went
back to Crystal's house and went on the front porch to make a
telephone call. While on the phone, Antonio heard shots fired
nearby. He went inside to speak to Crystal about the gunfire, and
then heard several more shots. Moments later, defendant and Chaseran into the house. Both seemed out of breath, and neither of them
answered questions about what had happened.
Defendant and Chase changed clothes, and defendant hid the
clothes they had taken off in the bathroom. Defendant also
retrieved the Marlin rifle from where he had hidden it in the
stairwell, and hid it under the backseat of the old white car.
Chase sat in the white car and examined the contents of McGhee's
McGhee was found in the driveway by a pair of girls, whose
mother ultimately contacted the authorities. Detective Dennis
Allen arrived at the scene with Detective Mike Clayton and Sergeant
Mitch Carr. McGhee told the officers she had been robbed by two
masked men. Regrettably, McGhee subsequently died from the gunshot
The police investigated the area as emergency medical personal
arrived to treat McGhee. They located several spent rifle
cartridges near the van. With consent, the officers searched
Crystal's house and found Chase hiding, at which point he was taken
The next morning, Antonio telephoned Detective Clayton and
told him where the Marlin rifle had been hidden. According to
Antonio, defendant had called him earlier that morning, asking him
to dispose of the weapon. When police arrived, they found the
rifle under the backseat of the old white car. Police also
discovered a purse on the roof of Crystal's house, with a business
card from Burton's Taxi Company nearby. Agent Thomas Trochum with the State Bureau of Investigation
(SBI) tested the shell casings retrieved from the crime scene.
Agent Trochum offered an opinion that the shell casings recovered
from the scene had been chambered and extracted from the Marlin
rifle recovered from the white car parked at Crystal's house.
Prior to trial, defendant sought to be declared incompetent.
After conducting a hearing, the trial court determined that
defendant was competent to stand trial.
At trial, defendant contended that Antonio was the perpetrator
of the murder rather than defendant. Specifically, defendant
pointed to the favorable plea agreement that Antonio received from
the State for offering evidence against defendant and to Antonio's
admission that he had told several lies to the police during the
investigation of the case. The defense also relied upon the
testimony of a defense investigator who testified that he had found
another shell casing. The shell casing was never admitted in
evidence because the investigator did not indicate where he found
A Person County jury convicted defendant of first-degree
murder, conspiracy to commit robbery with a dangerous weapon, and
robbery with a dangerous weapon, and the trial court entered
judgment for each conviction. Defendant now appeals.
By three separate arguments on appeal, defendant challenges
the trial court's determination that he was competent to stand
The relevant facts concerning defendant's competency hearing
are as follows: Defendant made a pretrial motion to be declared
incompetent to stand trial. At a hearing held on this motion,
defendant presented evidence which tended to show that he was a
mentally compromised individual and that he could not assist his
attorneys with his defense. The State presented evidence which
tended to show that defendant was competent, including, inter alia,
the testimony of Dr. Karla de Beck, a forensic psychiatrist at
Dorothea Dix Hospital, who offered an opinion that defendant was
competent to proceed. Dr. de Beck testified that, in her opinion,
defendant was malingering, and he was competent to stand trial.
Dr. de Beck based her opinion on testing of defendant that she had
done herself and on reports of another mental health expert who had
tested defendant and had concluded that he was malingering.
Following the hearing, the trial court found that defendant
[was] able to understand the nature and the object of the
proceedings against him, to comprehend his own situation in
reference to the proceedings, and to assist in his defense in a
rational and reasonable manner. The trial court concluded
defendant [was] capable of proceeding.
Defendant first argues that he must receive a new trial based
on the potential violation of his constitutional due processrights, which he claims may have occurred because the trial court
failed to explicitly state the burden of proof it applied to
determine that he possessed the capacity to proceed to trial.
According to defendant, this omission makes it impossible for this
Court to determine whether the trial court applied a constitutional
[T]he criminal trial of an incompetent defendant violates
[constitutional] due process [rights]. Medina v. California, 505
U.S. 437, 453, 120 L. Ed. 2d 353, 368, reh'g denied, 505 U.S. 1244,
120 L. Ed. 2d 946 (1992). In our state, a defendant's competency
to stand trial is governed by N.C. Gen. Stat. § 15A-1001 (2005),
No person may be tried, convicted, sentenced,
or punished for a crime when by reason of
mental illness or defect he is unable to
understand the nature and object of the
proceedings against him, to comprehend his own
situation in reference to the proceedings, or
to assist in his defense in a rational or
In accordance with this statute, the general test for determining
incapacity to proceed is whether a defendant has capacity to
comprehend his position, to understand the nature of the
proceedings against him, to conduct his defense in a rational
manner and to cooperate with his counsel so that any available
defense may be interposed. State v. Jackson, 302 N.C. 101, 104,
273 S.E.2d 666, 669 (1981). However, a defendant need not be at the
highest stage of mental alertness or ability to be considered
competent in order to face trial. State v. Avery, 315 N.C. 1, 337S.E.2d 786 (1985). In North Carolina, the defendant bears the
burden of persuasion on his motion to be declared incompetent to
proceed under N.C. Gen. Stat. § 15A-1001. State v. Baker, 312 N.C.
34, 43, 320 S.E.2d 670, 677 (1984).
The United States Supreme Court has held that a state may
require that a defendant prove his incompetency by a preponderance
of the evidence, as such a burden does not run contrary to due
process concerns. Medina v. California, 505 U.S. 437, 120 L. Ed.
2d 353 (1992). A state may not, however, place a higher burden of
persuasion upon a defendant seeking to be declared incompetent,
such as clear and convincing evidence. Cooper v. Oklahoma, 517
U.S. 348, 134 L. Ed. 2d 498 (1996).
Significantly, in the instant case, the trial court did not
resolve defendant's motion to be declared incompetent on the issue
of whether defendant had satisfied his burden of persuasion.
Rather, the trial court made findings which indicate that the court
found the State's evidence, especially the testimony of Dr. de
Beck, to be persuasive. Based on the State's evidence, the court
made an affirmative finding that defendant was competent to
Given the manner in which the trial court resolved the issue
of defendant's competency, we are able to discern that the trial
court applied the appropriate burden of persuasion, i.e., the
preponderance of the evidence standard. Accordingly, there is no
merit to defendant's argument that the trial court's determinationwas potentially unconstitutionally vague as to the standard applied
to determine that defendant was competent.
The corresponding assignment of error is overruled.
Defendant also argues that the trial court committed plain
error by allowing Dr. de Beck to testify during the competency
hearing regarding the conclusions of another expert. Specifically,
defendant argues this testimony violated his rights under the
confrontation clause of the United States Constitution, as
enunciated in Crawford v. Washington, 541 U.S. 36, 158 L. Ed. 2d
By its terms, the Sixth Amendment right of a defendant to
confront the witnesses against him only applies "[i]n all criminal
prosecutions." U.S. Const. amend. VI. Accordingly, our Supreme
Court has specifically noted that a competency determination does
not implicate [a] defendant's confrontation rights and does not
have a substantial relation to his opportunity to defend. State v.
Davis, 349 N.C. 1, 18, 506 S.E.2d 455, 464 (1998), cert. denied,
526 U.S. 1161, 144 L. Ed. 2d 219 (1999).
Further, even assuming arguendo that Sixth Amendment
confrontation rights apply to competency hearings, this Court has
held that an expert witness may, without violating confrontation
concerns, base her opinions on tests conducted by a non-testifying
person because those tests are corroborative and . . . helped form
the basis of the opinion. See State v. Walker, 170 N.C. App. 632,
685, 613 S.E.2d 330, 333, disc. review denied, 359 N.C. 856, 620 S.E.2d 196 (2005). We conclude that the challenged testimony of
Dr. de Beck was admissible pursuant to this reasoning.
The corresponding assignment of error is overruled.
Defendant also argues that the evidence he presented was
compelling enough to warrant a ruling by the court that he was
incompetent to proceed. The issue of competency is within the
"trial court's discretion and, if supported by the evidence, it is
conclusive on appeal." State v. Wolfe, 157 N.C. App. 22, 30, 577
S.E.2d 655, 661, disc. review denied and appeal dismissed, 357 N.C.
255, 583 S.E.2d 289 (2003). As the trial court's competency
determination is supported by competent evidence in the record, its
ruling must be affirmed.
The corresponding assignment of error is overruled.
Defendant further contends that the trial court erred by
overruling objections to certain statements made during the
prosecutor's closing argument and by denying a motion for a
mistrial based on these statements.
The circumstances surrounding the challenged remark by the
prosecutor were as follows: At trial, defendant contended that
Antonio was the perpetrator of the murder for which defendant was
being tried. Further, the defense sought to show that the police
had not investigated the case very carefully once they had a
statement from Antonio which placed the blame upon defendant. A
defense investigator had located a shell casing, which hadultimately been submitted to the SBI; however, the trial court
refused to admit this shell casing into evidence because the
investigator did not testify concerning the location where he found
the item. In its closing argument, the State suggested that the
defense investigator had not provided information as to the
location at which he found the shell casing, because it was found
in the backyard of the home of defendant's sister where defendant
and Antonio had been firing separate rifles together several hours
before the murder. Specifically, the prosecutor said,
Why is it that we didn't hear, well that shell
casing that didn't get introduced into
evidence but got sent to the lab; it was in
the Enfield. Why didn't we hear where [the
defense investigator] got that from? And I
argue to you because [the investigator] found
it in the backyard of the Crawford residence,
where Antonio Moss shot it that afternoon.
The trial court overruled a defense objection to this statement, at
which point the prosecutor continued, So, we don't know where that
shell casing came from, except it was produced by a defense private
investigator, and was intended to take your attention away from the
proofs that are reliable. This comment comprised approximately
four sentences of the State's twenty-four-page closing argument.
We first address whether the trial court erred by overruling
defendant's objections to the prosecutor's argument.
"It is axiomatic that counsel are given wide latitude in
arguments to the jury and are permitted to argue the evidence that
has been presented and all reasonable inferences that can be drawnfrom that evidence." State v. Richardson, 342 N.C. 772, 792-93, 467
S.E.2d 685, 697, cert. denied, 519 U.S. 890, 136 L. Ed. 2d 160,
(1996). So long as the prosecutor's argument is 'consistent with
the record and does not travel into the fields of conjecture or
personal opinion,' it is not improper. State v. Ali, 329 N.C.
394, 411, 407 S.E.2d 183, 193 (1991) (citation omitted). The
scope of jury arguments is left largely to the control and
discretion of the trial court[.] State v. Call, 349 N.C. 382,
419, 508 S.E.2d 496, 519 (1998).
Accordingly, "[t]he standard of review for improper closing
arguments that provoke timely objection from opposing counsel is
whether the trial court abused its discretion by failing to sustain
the objection." State v. Jones, 355 N.C. 117, 131, 558 S.E.2d 97,
106 (2002). There is no abuse of discretion unless the ruling is
so arbitrary that it could not have been the result of a reasoned
decision." State v. Burrus, 344 N.C. 79, 90, 472 S.E.2d 867, 875
(1996). When applying the abuse of discretion standard to closing
arguments, [we] first determine if the remarks were improper[;]
. . . [n]ext, we determine if the remarks were of such a magnitude
that their inclusion prejudiced defendant, and thus should have
been excluded by the trial court. Jones, 355 N.C. at 131, 558
S.E.2d at 106.
Given the facts and circumstances of the instant case, we
conclude that the remarks at issue were not improper. The defense
investigator testified that he found a shell casing which had not
been found during a police investigation of the crime scene;however, the investigator did not testify concerning the location
at which he found this shell casing. The prosecutor was permitted
to draw an inference that defendant had not provided information
concerning where his investigator found the shell casing because
such information would undermine the defense's theory of the case.
Further, there was evidence that defendant and Antonio had been
firing rifles at another location, the backyard of defendant's
sister, and the prosecutor could permissibly infer that the shell
casing had come from the backyard. Thus, the challenged
prosecutorial remarks did not amount to mere conjecture or personal
opinions such that the trial court was compelled to sustain
defendant's objection. Further, even presuming that the remarks
were speculative, we conclude that they did not prejudice the
defendant given that the remarks amounted to only a few sentences
in a lengthy closing argument, and there was considerable evidence
of defendant's guilt.
The corresponding assignments of error are overruled.
We next address whether the trial court erred by denying
defendant's motion for a mistrial based on the challenged
Whether to grant a motion for mistrial is within the sound
discretion of the trial court, and its ruling will not be disturbed
on appeal unless it is so clearly erroneous as to amount to a
manifest abuse of discretion. State v. McCarver, 341 N.C. 364,
383, 462 S.E.2d 25, 36 (1995), cert. denied, 517 U.S. 1110, 134 L.Ed. 2d 482 (1996), cert. denied, 348 N.C. 507, 510 S.E.2d 667
(1998). In the instant case, we conclude that the prosecution's
statement did not amount to such a serious impropriety as to make
it impossible for defendant to receive a fair and impartial
verdict. Accordingly, we discern no abuse of discretion in the
trial court's denial of defendant's motion for a mistrial.
The corresponding assignment of error is overruled.
In his final argument on appeal, defendant challenges the
short-form indictment which was used to charge him with first-
degree murder. Defendant concedes that the North Carolina Supreme
Court has held that short form indictments for first-degree murder
meet the requirements of the United States and North Carolina
, State v. Braxton
, 352 N.C. 158, 531
S.E.2d 428 (2000), cert. denied
, 531 U.S. 1130, 148 L. Ed. 2d 797
(2001). The corresponding assignment of error is overruled.
Judges CALABRIA and STEELMAN concur.
Report per Rule 30(e).
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