Appeal by defendant from judgments entered 8 November 2005 by
Judge Ripley Eagles Rand in Guilford County Superior Court. Heard
in the Court of Appeals 7 March 2007.
Attorney General Roy Cooper, by Special Deputy Attorney
General James P. Longest, Jr., for the State.
Richard E. Jester for defendant-appellant.
Defendant James Franklin Michaux appeals from his convictions
for first degree murder of his seven-month-old son, J.T.M., and
felony child abuse inflicting serious bodily injury. With respect
to defendant's contentions on appeal regarding the admissibility of
various testimony, we hold that defendant either himself elicited
that testimony or has failed to demonstrate that he was prejudiced
by the testimony. We have further concluded that, contrary to
defendant's position, the trial court properly instructed the jury
regarding admissions since statements made by defendant to his wife
and to a social worker qualified as admissions. Accordingly, we
hold defendant received a trial free of prejudicial error.
At trial, the State's evidence tended to show the following
facts. In 2002, the Rockingham County Department of Social
Services ("DSS") began providing treatment services to defendant;
his wife, Serita Michaux; and their two young children. Later in
2002, Ms. Michaux gave birth to twins, one of whom was J.T.M. The
social worker assigned to the family testified regarding
defendant's domination of Ms. Michaux and his hostility to
receiving assistance from DSS.
On one occasion, after J.T.M.'s birth, a restaurant owner, who
had known defendant since he was a young boy, observed defendant
playing too roughly with the child. After she told defendant,
"you're going to hurt that baby," defendant responded: "It's my
damn baby. I'll do what I want to." When defendant learned that
an employee of the restaurant had urged Ms. Michaux to leave him,
defendant threatened to slap the employee and said, "Bitch, . . .
I'll burn your house down with you in it."
Following a DSS safety assessment during which defendant was
"explosive," DSS concluded that the environment for defendant's
children was "unsafe" and, on 25 October 2002, placed J.T.M. and
his twin with a foster family. In mid-February 2003, defendant and
Ms. Michaux were allowed to have the twins for intermittent trial
placements. After one such trial placement, J.T.M. returned to the
foster family with noticeable scabbing and bruise marks, including
bruising on his abdomen, groin area, and the backs of his thighs. Nonetheless, on 24 March 2003, physical custody of the twins
was restored to defendant and Ms. Michaux. Shortly thereafter, on
8 April 2003, J.T.M. was admitted to Morehead Memorial Hospital.
Nurse Amy White and other hospital staff examined J.T.M. and
observed that he suffered from critical dehydration, a rash on his
bottom, and bloody tissue around his rectum. According to Nurse
White, J.T.M. was not behaving like a six-month-old, but rather
"more like two months" because "he wouldn't lift his head up[,] he
wouldn't try to lift his arms[,] he wouldn't put his eyes on you .
. .[;] [h]e was just totally weak." X-rays taken at that time
showed fractures to J.T.M.'s ninth and eleventh ribs that could
have been caused by squeezing or a blow.
On 15 May 2003, emergency personnel were dispatched to
defendant's residence at about 10:30 p.m. for a "cardiac
respiratory emergency." When Chief Frazier of the Colfax Fire
Department arrived, Ms. Michaux directed him to the back room of
the house where defendant was holding J.T.M. When Chief Frazier
took the child, he found no pulse and began CPR. Paramedic David
Wilkins of the Guilford County Emergency Medical Services attempted
to intubate the child in order to provide a direct line of air into
the child's lungs. There was no obstruction in the airway prior to
the intubation attempt. When J.T.M. could not be revived at the
scene, he was transported to High Point Regional Hospital.
When the child arrived shortly after 11:00 p.m. at the
hospital, Nurse Misty Hooper noticed that the baby had bruising on
the left side of his head, down the left side of his abdomen, onhis right lower back, on his leg, and around his diaper line. The
child's foot also appeared as if "several layers of skin . . . had
been peeled back," and his rectum "was macerated . . . very
abnormal appearing . . . [r]aw, almost." Defendant and Ms. Michaux
were asked by hospital staff about J.T.M.'s medical history, but
they refused to provide the hospital staff with any information.
Emergency room physician Dr. David Fisher unsuccessfully tried to
resuscitate J.T.M. and then pronounced the seven-month-old dead.
Defendant was subsequently interviewed at the hospital by
Rhonda Oboh, a social worker with the Guilford County Department of
Social Services. He told Ms. Oboh "that he was feeding the child
and playing with the child and then the child all of a sudden went
limp." Defendant claimed that "he went to stick the bottle in the
baby's mouth, and that the child would not take the bottle, and
that at that point he knew that something was wrong." Defendant
stated that he panicked, attempted CPR, and began tapping the child
on his stomach, legs, and chest in order to get the child to
Dr. John D. Butts, Chief Medical Examiner for the State of
North Carolina, performed an autopsy of the victim on 16 May 2003.
Dr. Butts observed a number of injuries on the child's body:
bruises on the chin, forehead, chest, lower abdomen, and legs;
tissue loss on the heel; both fresh and healing fractures to
several ribs; and bruising in the wall of the small bowel and
mesentery. Dr. Butts believed that "these injuries are all blunt
force injuries," that "a child of this age isn't capable ofincurring these injuries by itself," and that they "were caused by
another party." Based on his findings, Dr. Butts concluded that
the victim exhibited signs of "battered child syndrome."
In September 2004, defendant was indicted for felony child
abuse inflicting serious bodily injury and first degree murder. A
superseding indictment on the felony child abuse charge was filed
in August 2005. The case proceeded to trial during the 31 October
2005 criminal session of Guilford County Superior Court.
Ms. Michaux, who was herself indicted on murder and child
abuse charges, testified at defendant's trial pursuant to a plea
agreement. According to Ms. Michaux, on the morning of J.T.M.'s
death, she and defendant went to court and regained legal custody
of their four children. Later in the day, the family accompanied
defendant to his workplace. When the family returned home around
10:00 p.m., Ms. Michaux saw defendant take J.T.M. into the bedroom.
After putting food in the oven for the older two children, Ms.
Michaux went back to the bedroom and saw defendant choking the
victim with his left hand. Ms. Michaux testified that she told
defendant to stop, but defendant replied "it was his kid[,] he
could do what he wanted to."
Ms. Michaux left the room to get laundry. She then heard
defendant yell that the baby was not breathing. In response, Ms.
Michaux called 911. According to Ms. Michaux, defendant instructed
her to never tell anyone about what happened the night of J.T.M.'s
death. Ms. Michaux testified further that she did not tell the
emergency personnel about defendant's choking J.T.M. because she
was scared of her husband. She stated that her husband had, in the
past, choked her, threatened her with a jigsaw, kicked her in the
leg with steel-toed boots, broken a picture over her head, thrown
a glass at her, and hit her in the stomach when she was pregnant
with the twins.
During her testimony, Ms. Michaux also described various
instances of defendant's physical abuse of J.T.M. before the night
of his death. Defendant gave J.T.M. blood blisters by smacking his
feet with a remote control; burned the victim's ear with a lit
cigarette; held the child's nose shut so he could not breathe; and
taped the child to the rails of his crib with black tape in order
to keep him still while he pushed on his stomach and smacked his
Dr. Butts testified at trial that he reached an initial
conclusion, following his autopsy, regarding the cause of death:
My opinion _ based on the constellation of
injuries I saw and the lack of any obvious
natural process, congenital disease or
something that might explain the death, it was
my opinion and feeling this child had died as
a result of external forces or causes of some
type. But I didn't _ I was unable to identify
a specific mechanism by which the child had
died or had been killed.
Dr. Butts testified that he subsequently received additional
information that prompted him to reassess his initial opinion.
Based on this new information, Dr. Butts revised his initial
opinion to reflect that "the death was the result of asphyxiationor consistent with asphyxiation" secondary to neck compression.
During cross-examination by defendant's counsel, Dr. Butts
explained that the information was from a written statement
provided by Ms. Michaux to the police that indicated she saw
defendant choke the victim in the bedroom on the night of 15 May
At trial, defendant offered evidence from several witnesses.
Dr. Donald Jason, a professor in pathology who reviewed Dr. Butts'
autopsy records, disputed Dr. Butts' diagnosis of battered child
syndrome and testified that all the evidence was "perfectly
consistent with the child choking on formula." He explained
further that "[a]ny attempt at CPR . . . would be expected to leave
some bruising, depending on how forceful it was. And I found some
bruising . . . consistent with two fingers over the child's
abdomen." Dr. Jason went on: "In any case, this is not a child
that died of being beaten to death. This is a child that
apparently asphyxiated to death in some manner, although not by
strangulation . . . ."
In addition, defendant presented evidence that Ms. Michaux had
stated, on the night of J.T.M.'s death, that defendant was
innocently trying to feed the child when he stopped breathing.
Other witnesses testified that defendant was gentle with the
children and a good parent, with any bruising on the child coming
from one of the older Michaux children playing roughly around the
child. The jury found defendant guilty of felony child abuse
inflicting serious bodily injury and first degree murder. On 8
November 2005, the trial court sentenced defendant to life
imprisonment without parole for the murder conviction and to a term
of 100 to 129 months imprisonment for the felony child abuse
conviction. Defendant timely appealed to this Court.
Defendant first argues that the trial court erred in allowing
Dr. Butts to testify as to his revised opinion that the victim's
"death was the result of asphyxiation or consistent with
asphyxiation" secondary to neck compression. Anticipating that the
State would seek to introduce evidence of Dr. Butts' revised
opinion, defendant made a motion in limine
to exclude it. After a
voir dire examination of Dr. Butts, the trial judge ruled:
With respect to the defendant's motion in
limine about Dr. Butts' testimony, I will
allow him to testify about his revised cause-
of-death conclusion. However, I will limit
that testimony with respect to the information
that he received that prompted him to make
that revised conclusion.
He will not be allowed to testify on
direct examination about the fact that that
statement came from Serita Michaux or that the
statement was that the defendant was the one
who was "choking" the victim in this case.
Defendant contends that, despite the court's narrowly-tailored
ruling, the admission of Dr. Butts' revised opinion had the effect
of impermissibly bolstering the credibility of Ms. Michaux and
suggests, moreover, it was "unfair for a medical expert to changehis opinion with no other basis than a statement of an accused
Contrary to defendant, we discern no prejudicial error because
defendant himself created the prejudice of which he now complains.
Following its motion in limine
ruling, the trial court remarked to
defense counsel: "whether or not you want to get into the specifics
of [the source of the information] on cross and use [Dr. Butts] as
a vehicle to attack Serita Michaux's credibility, that's up to
you." This strategy is exactly what defendant's counsel elected to
During the direct examination of Dr. Butts, the prosecution
fully complied with the court's ruling, and no mention was made
that Ms. Michaux was the source of the information relied upon by
Dr. Butts. On cross-examination, however, defense counsel elicited
the following testimony:
Q. Specifically, is the information you used
to change your opinion statements that were
made by Serita Michaux?
A. That's my understanding.
Q. The mother of the child?
A. Yes, sir.
Q. And is one of the statements that you used
to change your opinion "When I got to the
door, I never went inside the bedroom 'cause I
seen [defendant] choking [J.T.M.] with one of
his hands. Not both hands. [Defendant] was
lying on the bed next to [J.T.M.] and I got
scared, because I seen [J.T.M.'s] tongue
hanging out of his mouth"?
Is that one of the statements you used to
change your opinion?
A. Yes, sir.
Had defendant chosen not to introduce Ms. Michaux's name during
cross-examination, the source of Dr. Butts' "additional
information" would have remained entirely unknown to the jury.
Further, not only did defendant's counsel introduce Ms. Michaux as
the source of the information, but he even read directly from Ms.
Michaux's statement to the police.
Thus, any bolstering of Ms. Michaux's credibility resulted
from the cross-examination and not the direct examination. Under
these circumstances, any prejudice suffered by defendant is not
remediable on appeal because it resulted from his own trial
tactics. See State v. Mitchell
, 342 N.C. 797, 806, 467 S.E.2d 416,
421 (1996) ("[D]efendant contends that statements made by Detective
Harris . . . were hearsay. However, while the statement made by
Detective Harris was hearsay, it was elicited from Detective Harris
by defense counsel. Defendant cannot assign error to hearsay
testimony which he elicited."); N.C. Gen. Stat. § 15A-1443(c)
(2005) ("A defendant is not prejudiced . . . by error resulting
from his own conduct."). Moreover, defendant used Dr. Butts'
opinion regarding asphyxiation to anticipate the defense theory _
later put forth by Dr. Jason _ that J.T.M. likely died from choking
on baby formula. We, therefore, overrule this assignment of error.
We decline to address defendant's separate contention that,
aside from the credibility issue, it is somehow "unfair for a
medical expert to change his opinion with no other basis than a
statement of an accused codefendant." Defendant cites no authorityto support this proposition and, therefore, any such argument is
abandoned. N.C.R. App. P. 28(b)(6) ("Assignments of error . . . in
support of which no reason or argument is stated or authority
cited, will be taken as abandoned.").
Defendant next argues that the trial court erred in allowing
Dr. James Hilkey, a psychologist who had evaluated Ms. Michaux, to
testify in a manner that bolstered Ms. Michaux's credibility.
Defendant points to the following testimony, addressing whether Ms.
Michaux would lie to protect her husband: "It does not surprise me
that Ms. Michaux would lie. Again, this is a person who has many,
many deficits, many, many inadequacies, and is extremely insecure.
And if she believes that lying would get her what she believes she
needs, I think that she would do it." Defendant maintains that Dr.
Hilkey's testimony suggested "that Serita Michaux is now telling
the truth, because she was lying before."
that the admission of Dr. Hilkey's testimony
was error, we fail to perceive how defendant was prejudiced by it.
During closing argument, defense counsel exploited this testimony
in defendant's favor:
And you know, the State, through their
own evidence, told you exactly why Serita
Michaux was not telling the truth.
Remember Dr. Hilkey? The last thing Dr.
Hilkey said when he left the witness stand?
In my opinion, I have no doubt _ in my
opinion, I have no doubt that she believes
that lying _ I have no doubt if she believed
that lying will get her what she needs, thatthere's no doubt that she'd do it. She'd lie
to get whatever she needs.
And that was their witness. Not mine.
Last thing he said.
. . . .
So when do you first hear these stories?
When she's in jail. And when, I contend to
you, she wants to get out of jail. Then you
have these three or four, five stories that
she tells Detective Rogers. That's the first
time you hear them.
Why do you hear those? Because she
needed to get something. She needed to get
out of jail. So here comes the stories.
Thus, defendant took full advantage of Dr. Hilkey's disputed
testimony to undermine Ms. Michaux's credibility.
"A defendant is prejudiced by errors . . . when there is a
reasonable possibility that, had the error in question not been
committed, a different result would have been reached at the trial
out of which the appeal arises." N.C. Gen. Stat. § 15A-1443(a).
In light of the fact that defendant found much to be gained from
the precise testimony of Dr. Hilkey now challenged on appeal, we
hold that defendant has failed to demonstrate the prejudice
required under N.C. Gen. Stat. § 15A-1443(a). See State v. Moses
350 N.C. 741, 765, 517 S.E.2d 853, 868 (1999) (rejecting argument
that defendant was prejudiced by inadmissible testimony of expert
witness in part because "defense counsel actually turned [expert's]
statement to his advantage and impeached him on that statement"
during closing argument), cert. denied
, 528 U.S. 1124, 145 L. Ed.
2d 826, 120 S. Ct. 951 (2000). This assignment of error is
Defendant next argues that the court erred in allowing Amy
White, a registered nurse, to testify on redirect examination as to
possible causes of the various conditions afflicting J.T.M. when he
was hospitalized in April 2003, the month prior to his death.
Defendant contends that Nurse White's statements were improper lay
opinion testimony since she had not been qualified as an expert
We need not decide whether Nurse White could properly give
opinion testimony of the type offered here because defendant
"opened the door" to testimony by her as to possible causes of the
child's condition. As our Supreme Court has explained:
[T]he law wisely permits evidence not
otherwise admissible to be offered to explain
or rebut evidence elicited by the defendant
himself. Where one party introduces evidence
as to a particular fact or transaction, the
other party is entitled to introduce evidence
in explanation or rebuttal thereof, even
though such latter evidence would be
incompetent or irrelevant had it been offered
State v. Albert
, 303 N.C. 173, 177, 277 S.E.2d 439, 441 (1981).
When Nurse White testified on direct examination, the
prosecutor limited her testimony to the physical symptoms exhibited
by the child. On cross-examination, however, defense counsel went
beyond the observable conditions and inquired whether there might
be innocent causes _ unrelated to child abuse _ that could explain
the occurrence of those conditions. Then, on redirect examination,
and over defendant's objections, the prosecutor asked a series of
questions concerning whether the child's conditions might just aslikely have been caused by child abuse. This line of questioning
was acceptable on redirect given that defendant himself opened the
door by asking questions regarding possible causation. See State
, 336 N.C. 748, 754, 446 S.E.2d 1, 4 (1994) ("The purpose
of redirect examination is to clarify any questions raised on
cross-examination concerning the subject matter of direct
examination and to confront any new matters which arose during
cross-examination."). Accordingly, we overrule this assignment of
Finally, defendant contends that the trial court erred in
providing the following jury instruction on "admissions" modeled on
If you find from the evidence presented
that the defendant has admitted a fact
relating to the crime charged in this case,
then you should consider all of the
circumstances under which the admission was
made in determining whether it was a truthful
admission and in determining the weight you
will give to it.
"A trial court must give a requested instruction that is a correct
statement of the law and is supported by the evidence." State v.
, 345 N.C. 319, 328, 480 S.E.2d 626, 629, cert. denied
U.S. 876, 139 L. Ed. 2d 134, 118 S. Ct. 196 (1997). In addition,
"[a]n admission is a statement of pertinent facts which, in light
of other evidence, is incriminating." State v. Trexler
, 316 N.C.
528, 531, 342 S.E.2d 878, 879-80 (1986).
The record in this case reveals the following exchange between
the prosecutor and Ms. Michaux: Q. What did [defendant] say when you told him
to stop choking [J.T.M.]?
A. He said it was his kid; he could do what
he wanted to.
Ms. Michaux then testified that defendant later instructed her not
to tell anyone what had happened. These incriminating statements
attributed to defendant are sufficient to support an instruction on
admissions. See State v. Cummings
, 353 N.C. 281, 295, 543 S.E.2d
849, 858 (admissions instruction was proper in trial for first
degree murder where defendant had told a detective that "[a] man
meant to kill the lady because all you would have had to do was to
push her down"), cert. denied
, 534 U.S. 965, 151 L. Ed. 2d 286, 122
S. Ct. 375 (2001).
Further, the instruction was appropriate in connection with
defendant's theory that J.T.M. likely died from choking on baby
formula. On the night of his son's death, defendant told social
worker Rhonda Oboh that "he went to stick the bottle in the baby's
mouth, and that the child would not take the bottle, and that at
that point he knew that something was wrong." Defendant's
statement to Ms. Oboh, which tends to show that the child refused
the bottle and, therefore, would not have ingested any formula, was
relevant to the jury's determination whether the child died
innocently from choking on the formula or whether he was strangled.
We conclude, in short, that an instruction on admissions was
supported in the evidence and was, therefore, appropriately given
to the jury.
Judges TYSON and ELMORE concur.
Report per Rule 30(e).
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