An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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: 19 December 2006
STATE OF NORTH CAROLINA
00 CRS 11820-25
JUSTIN JAMEL MCDONALD,
Appeal by defendant from a judgment entered 27 August 2002 by
Judge Richard L. Doughton in Davidson County Superior Court. Heard
in the Court of Appeals 20 September 2006.
Attorney General Roy Cooper, by Special Deputy Attorney
General Steven M. Arbogast, for the State.
David Belser for the defendant.
Justin Jamel McDonald (defendant) appeals from a 27 August
2002 judgment consistent with a jury verdict finding him guilty of
three counts of first degree murder and two counts of first degree
kidnapping. Defendant was sentenced to three terms of life without
parole for the first degree murder convictions and one term of 133
to 169 months for one of the first degree kidnapping convictions,
to run consecutively.
Facts and Procedural History
In February 1999, Robin and Kimberly Rhyne and their two-year-
old son, Hunter Rhyne, were found murdered near their home in
Statesville, North Carolina. Prior to their murders, Robin and
Kimberly began smoking crack cocaine. They received their supplyfrom Deek Lackey. Lackey sold crack for defendant and defendant's
roommate, Russell McIntosh.
On 18 January 1999, Robin met with defendant, intending to
sell defendant Robin's 1988 Porsche. Defendant, Brian McDonald
(defendant's cousin) and Lackey drove to Robin's residence. Once
there, defendant and Robin got in the Porsche and drove to the
location where defendant and McIntosh sold and kept drugs (Mindon
Place). Defendant's cousin and Lackey followed in a separate
vehicle. While at Mindon Place, defendant was seen walking over
to a parked, inoperable vehicle which was identified as a storage
place for drugs and firearms. When defendant and Robin left Mindon
Place, defendant was seen wearing a black leather jacket that he
had borrowed from Lackey two days earlier. Shortly after leaving
Mindon Place, defendant was seen operating Robin's Porsche alone.
Defendant went to the home of Takesha Tasha Reid and gave her a
ride in the Porsche. While seated in the Porsche, Tasha saw the
black leather jacket on the back seat and asked if she could wear
it. However, defendant stated he had thrown up on the jacket
earlier that evening and did not allow Tasha to wear it. During
the early morning hours of 19 January 1999, a family living near
Mindon Place testified defendant came to their house, wearing a
black leather jacket, and woke them up in order to use their
bathroom. The school-aged daughter testified that she observed
defendant wash blood off his hands through a crack in the bathroom
door. Also on 19 January 1999, Dale Jordan, a friend of the Rhyne
family had observed defendant driving Robin's Porsche. In speaking
with Kim Rhyne at the Rhyne residence, Jordan learned that Robin
had not yet returned after leaving with defendant the previous day.
While Jordan was at the Rhyne residence, Kim received a call and
demanded the caller tell her where her husband was or she would
tell the police where every crack house in town was. After the
phone call, Lackey arrived at the Rhyne residence and Jordan and
Lackey left around 10:00 p.m. to search for Robin. When Jordan and
Lackey returned to the Rhyne residence, Kim's car was gone and no
one was home.
On 15 March 1999 defendant was indicted for two counts of
first degree kidnapping, three counts of first degree murder and
one count of armed robbery. In November 1999, the trial court
declared a mistrial, as the jury was unable to reach a unanimous
verdict. The trial court also granted defendant's motion to
dismiss the indictment for armed robbery. On 11 July 2002, a
second trial commenced in Davidson County Superior Court. On 27
August 2002, a jury found defendant guilty of first degree murder
of Robin Rhyne, based on premeditation and deliberation; first
degree murder of Kimberly Rhyne, based on premeditation and
deliberation and the felony murder rule; first degree murder of
Hunter Rhyne based on the felony murder rule; and guilty of two
counts of first degree kidnapping of Kimberly and Hunter Rhyne.
Defendant raises fourteen issues on appeal summarized as
follows: whether the trial court erred in (I) denying defendant's
motions to dismiss the first degree murder charges; (II) denying
defendant's motions to dismiss the kidnapping charges; (III) giving
the jury instruction on acting in concert as to Kim and Hunter
Rhyne; (IV) admitting the photographs of Robin's grave; (V)
limiting the cross-examination of a jailhouse informant; (VI)
admitting all expert testimony; and (VII) denying the jury's
request for a transcript.
I. Motions to Dismiss First Degree Murder Charges
Defendant first contends the trial court erred in denying his
motions to dismiss first degree murder charges as to Robin, Kim and
Hunter Rhyne. When considering a motion to dismiss, the trial
court must determine only whether there is 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).
Evidence is substantial if it is relevant and
adequate to convince a reasonable mind to
accept a conclusion. In considering a motion
to dismiss, the trial court must analyze the
evidence in the light most favorable to the
State and give the State every reasonable
inference from the evidence. The trial court
must also resolve any contradictions in the
evidence in the State's favor. The trial
court does not weigh the evidence, consider
the evidence unfavorable to the State, or
determine any witness' credibility.
State v. Robinson
, 355 N.C. 320, 336-37, 561 S.E.2d 245, 256, cert.
, 537 U.S. 1006, 154 L. Ed. 2d 404 (2002). First degree murder is the unlawful killing of another with
malice, premeditation and deliberation. State v. Misenheimer
N.C. 108, 113-14, 282 S.E.2d 791, 795-96 (1981). When a killing
occurs intentionally and with a deadly weapon, two presumptions
arise: (1) the killing was unlawful; and (2) the killing was done
with malice. State v. Faust
, 254 N.C. 101, 106, 118 S.E.2d 769,
772, cert. denied
, 368 U.S. 851, 7 L. Ed. 2d 49 (1961).
[P]remeditation and deliberation are mental processes and
ordinarily are not susceptible to proof by direct evidence.
Instead, they usually must be proved by circumstantial evidence.
State v. Brown
, 315 N.C. 40, 59, 337 S.E.2d 808, 822-23 (1985),
, 476 U.S. 1165, 90 L. Ed. 2d 733, overruled on other
grounds by State v. Vandiver
, 321 N.C. 570, 364 S.E.2d 373 (1988).
Evidence was presented at trial tending to establish that
defendant murdered Robin. Robin died from four contact gunshot
wounds to the head and he suffered injuries consistent with
defensive wounds to the hand/arm. Defendant was the last person
seen with Robin in Robin's car. Defendant was driving Robin's car
after Robin disappeared. Robin's car was recovered by the police
and contained Robin's blood and defendant's bloody palm print.
Also found was a black leather jacket worn by defendant with
Robin's blood on it. Defendant was observed washing blood off his
hands the night Robin was missing. The murder weapon was found at
an apartment where defendant lived and the victim's buried body was
found at defendant's former residence. While in jail, defendant
told jailhouse inmates of his involvement in the murder. Evidence was presented that defendant admitted that he and
McIntosh abducted Kimberly and Hunter from their home. They were
taken to a remote wooded area where McIntosh had formerly resided
and were executed. Kim's body was found wearing only socks and
with bruises, scrapes and cuts on her feet, legs and knees. She
died from nine gunshot wounds, seven to the head and face. Hunter
suffered a single gunshot wound to the back of his head. The Rhyne
residence was found disheveled, the phone line had been cut, and a
number of personal possessions and items for Hunter remained in the
home. Further evidence showed defendant and McIntosh were drug
dealers and Kim had threatened to provide the police with
information of drug dealing locations. Viewing the evidence in the
light most favorable to the State the trial court did not err in
denying defendant's motion to dismiss and submitting the first
degree murder charge as to all victims to the jury. These three
assignments of error are overruled.
II. Motions to Dismiss Kidnapping Charges
Defendant argues the trial court erred in denying defendant's
motion to dismiss the kidnapping charges as to Kim and Hunter
Rhyne. We disagree.
Kidnapping is the unlawful confinement, restraint, or removal
of a person from one place to another for the purpose of: (1)
holding that person for a ransom or as a hostage, (2) facilitating
the commission of a felony or facilitating flight of any person
following the commission of a felony, (3) doing serious bodily harm
to or terrorizing the person, or (4) holding that person ininvoluntary servitude. N.C. Gen. Stat. . 14-39(a) (2005).
Kidnapping is in the first degree when the victim is not released
in a safe place or is seriously injured or sexually assaulted
during the commission of the kidnapping. State v. Bell, 359 N.C.
1, 25, 603 S.E.2d 93, 110 (2004), cert. denied, 544 U.S. 1052, 161
L. Ed. 2d 1094 (2005).
The State presented evidence that defendant and McIntosh lived
together and dealt drugs together, that defendant had murdered
Kim's husband and that Kim threatened to inform police about drug
dealing in the area unless she found her husband. Witnesses
testified to defendant's statements regarding breaking into the
Rhyne home, abducting Kim and Hunter, taking them into the woods
and shooting them. The murder weapon was discovered in McIntosh's
apartment. Viewed in the light most favorable to the State, the
evidence was substantial as it was relevant and adequate to
convince a reasonable mind that Kim and Hunter were victims of
first degree kidnapping. The trial court did not err in denying
defendant's motion to dismiss. These assignments of error are
III. Acting in Concert Jury Instruction
Defendant contends the trial court erred in giving the jury
instruction on acting in concert as to the kidnapping and murder of
Kim and Hunter Rhyne. We disagree. Jury instructions, viewed in
their entirety, are sufficient where the law of the case is
presented in such a manner as to not mislead the jury. State v.
Blizzard, 169 N.C. App. 285, 296-97, 610 S.E.2d 245, 253 (2005). Before the court can instruct the jury on the
doctrine of acting in concert, the State must
present evidence tending to show two factors:
(1) that defendant was present at the scene of
the crime, and (2) that he acted together with
another who did acts necessary to constitute
the crime pursuant to a common plan or purpose
to commit the crime.
State v. Robinson, 83 N.C. App. 146, 148, 349 S.E.2d 317, 319
(1986). The doctrine of acting in concert occurs when two persons
join in a common 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. State v. Westbrook, 279 N.C. 18, 41-42, 181 S.E.2d 572,
586 (1971), sentence vacated on other grounds by, 408 U.S. 939, 33
L. Ed. 2d 761 (1972).
Defendant has failed to show how the jury was misled by
receiving the acting in concert instruction. Based on the State's
evidence showing the relationship between defendant and McIntosh,
the location where they had lived and dealt drugs together, and
evidence that defendant murdered Robin with the weapon found in
McIntosh's apartment, the acting in concert jury instruction was
proper. This assignment of error is overruled.
IV. Admission of Robin's Grave Photographs
Defendant argues the trial court erred in admitting the
photographs of Robin's grave. For the reasons below, we find no
error. A trial court's ruling under Rule 403 of the North Carolina
Rules of Evidence is reviewed for abuse of discretion, which
results where the court's ruling is manifestly unsupported by
reason or is so arbitrary that it could not have been the result of
a reasoned decision. State v. Hennis
, 323 N.C. 279, 285, 372
S.E.2d 523, 527 (1988). Rule 403, states that, [a]lthough
relevant, evidence may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice,
confusion of the issues, or misleading the jury, or by
considerations of undue delay, waste of time, or needless
presentation of cumulative evidence. N.C. Gen. Stat. § 8C-1, Rule
403 (2005). Unfair prejudice for purposes of the Rule means an
undue tendency to suggest a decision on an improper basis, usually
an emotional one. Hennis
, 323 N.C. at 283, 372 S.E.2d at 526
(holding the trial court had erred in allowing the State to
introduce thirty-five photographs taken at a murder scene and
autopsy, many of which were repetitive in content; to make
duplicate slides of these photos and project them at trial onto a
large screen located just above the defendant's head; and to then
distribute the actual photos themselves to the jury just before the
State rested its case, in a slow, silent process that took a full
At trial, the State offered a series of photographs of the
grave site where the body of Robin Rhyne was discovered. The
photographs were admitted as illustrative evidence to assist thetestimony of an SBI Agent
(See footnote 1)
and were used to illustrate the area
where the body was located, the clothing, a driver's license, a
check card, and other items important in identifying the body and
determining when the murder took place. See State v. Lester
N.C. 220, 240 S.E.2d 391 (1978) (Photographs may be introduced in
a murder trial to illustrate testimony regarding the manner of
killing so as to prove circumstantially the elements of first
Defendant alleges the photographs are excessive and unduly
prejudicial. However, at trial defendant objected to only one
photograph as being repetitious. Further defendant has included no
photographs in the record on appeal. Defendant has failed to show
the trial court did not properly exercise its discretion in
admitting the photograph for illustrative purposes.
(See footnote 2)
there is no showing of abuse of discretion in admitting all of the
photographs as illustrative of the SBI Agent's testimony. See
State v. Hyde
, 352 N.C. 37, 55, 530 S.E.2d 281, 293 (2000)
(quotations omitted) (no abuse of discretion admitting fifty-one
photographs which illustrated the condition of the victim's body,
its location, and the crime scene [and] corroborated defendant'sconfession in that they demonstrated that the victim was attacked
in his bedroom, that he fell to the floor with his head toward the
closet, that he was stabbed while on the floor, and that his neck
was cut with a saw while on the floor.), cert. denied
, 531 U.S.
1114, 148 L. Ed. 2d 775 (2001). This assignment of error is
V. Cross-Examination of Jailhouse Informant
Defendant argues the trial court erred in limiting cross-
examination of a jailhouse informant. We disagree. The trial
judge has the duty to keep cross-examination within reasonable
bounds, and we see no abuse of discretion or error prejudicial to
defendant. State v. Little
, 27 N.C. App. 467, 474, 219 S.E.2d
494, 498, disc. review denied
, 288 N.C. 732, 220 S.E.2d 621 (1975).
The State's witness, Michael Camp, testified to statements
made by defendant while they were incarcerated together in the
Davidson County jail in 2001. On cross-examination, defendant
sought to elicit testimony from Camp as to statements made two
years earlier while they were incarcerated in Charlotte. However,
the trial court ruled that the State had not opened the door to
such statements and therefore defendant was not permitted to cross-
examine Camp regarding the 1999 statements. State v. Weeks
N.C. 152, 367 S.E.2d 895 (1988); State v. Lovin
, 339 N.C. 695, 454
S.E.2d 229 (1995); State v. Vick
, 341 N.C. 569, 461 S.E.2d 655
(1995). The statement that defendant sought to introduce was not
part of the same verbal transaction as that testified to on direct
, 341 N.C. at 579, 461 S.E.2d at 660. Defendantwas not seeking to cross examine Mr. Camp in order to introduce
parts of the 2001 statement testified to on direct, but rather
sought to introduce a statement made by defendant which was part of
another discussion at a different time that had not been elicited
by the State. State v. Davis
, 289 N.C. 500, 223 S.E.2d 296, death
, 429 U.S. 809, 50 L. Ed. 2d 69 (1976). Defendant
was not entitled to introduce the earlier statements made in
Charlotte in 1999 since the State had not opened the door for such
, 322 N.C. at 167, 367 S.E.2d at 904. Defendant
has failed to show an abuse of discretion by the trial court in
limiting defendant's cross-examination of Camp. This assignment of
error is overruled.
VI. Expert Evidence Admitted
Defendant argues the trial court erred in admitting all expert
testimony introduced at trial.
(See footnote 3)
Defendant contends the trial court
failed to make findings as to the reliability and methodology of
each expert and therefore, the evidence testified to by each expert
was not properly admitted. Defendant's arguments are misplaced.
The trial court followed North Carolina Rule 702 of the Rules
of Evidence in accepting each expert and determined: (1) whether
the expert's proffered method of proof [was] reliable, (2) whether
the witness presenting the evidence qualifie[d] as an expert in
that area, and (3) whether the evidence [was] relevant. State v.Morgan, 359 N.C. 131, 160, 604 S.E.2d 886, 903-04 (2004), cert.
denied, ___U.S.___, 163 L. Ed. 2d 79 (2005); Howerton v. Arai
Helmet, Ltd., 358 N.C. 440, 458, 597 S.E.2d 674, 686-87 (2004);
State v. Goode, 341 N.C. 513, 461 S.E.2d 631 (1995). [R]ulings
under Rule 702 will not be reversed on appeal absent an abuse of
discretion. Id. at 160, 604 S.E.2d at 904, accord State v.
Anderson, ___ N.C. App. ___, 624 S.E.2d 393, 397 (2006).
A review of the transcript reveals the trial court considered
each expert's reliability based on their individual qualifications
and expertise. Defendant has failed to show an abuse of discretion
by the trial court. This assignment of error is overruled.
VII. Jury Request for Transcript
Defendant argues the trial court erred in denying the jury's
request for a transcript. Defendant contends the trial court
abused its discretion by making no further inquiry regarding the
jury's request to see the transcript. We disagree.
Where the trial court clearly indicates it is exercising
discretion, a decision to deny a jury request will be upheld.
State v. White, 163 N.C. App. 765, 770, 594 S.E.2d 450, 453 (2004).
During deliberations of the guilt/innocence phase of the trial, the
trial court received a note from the jury requesting transcripts.
The trial court denied the request and the jury foreman was
informed by the trial court that it was the duty of each juror to
recall and remember the evidence that was submitted and to rely on
their memories. Our review of the record reveals no indication
that the trial court failed to exercise its discretion in denyingthe jury's request. See N.C. Gen. Stat. .15A-1233(a) (2005) (If
the jury after retiring for deliberation requests a review of
certain testimony . . . [t]he judge in his discretion . . . may
direct that requested parts of the testimony be read to the jury
[.]) (emphasis added). This assignment of error is overruled.
Judges TYSON and LEVINSON concur.
Report per Rule 30(e).
Photographs are usually competent to explain or illustrate
anything that is competent for a witness to describe in words.
State v. Holden
, 321 N.C. 125, 362 S.E.2d 513 (1987), cert. denied
486 U.S. 1061, 100 L. Ed. 2d 935 (1988).
Photographs of a homicide victim 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. Murphy
, 321 N.C. 738, 365 S.E.2d 615 (1988).
Expert evidence introduced at trial included testimony as to
fingerprinting; forensic chemistry, fiber and hair analysis;
forensic serology, blood fluid and bloodstain pattern; and
molecular genetics and DNA analysis.
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