Appeal by defendant from judgment entered 16 March 2006 by
Judge Cy A. Grant, Sr., in Superior Court, Bertie County. Heard in
the Court of Appeals 26 April 2007.
Attorney General Roy A. Cooper, III, by Assistant Attorney
General C. Norman Young, Jr. for the State.
Glenn Gerding for defendant-appellant.
STROUD, Judge.
Defendant Dennie Lee Cherry, Jr., appeals from judgment
entered pursuant to conviction for first-degree murder in Bertie
County Superior Court. Defendant contends that he is entitled to
a new trial, because the trial court erred by: (1) denying
defendant's request to represent himself, (2) allowing Special
Agent Jennifer Elwell to testify as an expert, (3) allowing the
State to present evidence that defendant had been convicted in 2000
of assaulting the victim with a deadly weapon inflicting serious
injury, (4) allowing the State to present evidence that defendant
shot the victim in 1977, and (5) denying defendant's motion to
dismiss the charge of first-degree murder on the grounds ofinsufficient evidence to sustain a conviction. Upon careful review
of the record and defendant's assignments of error, we disagree,
and conclude defendant received a fair trial, free of plain or
prejudicial error.
I. Background
On 16 November 1999, defendant fired a shotgun at his wife,
Mrs. Shirley Cherry (“victim”), hitting her in the side. As a
result, he was convicted on 3 February 2000 of assault with a
deadly weapon inflicting serious injury and placed on probation.
He violated his probation, and began serving an active sentence on
2 October 2000. On 20 June 2001, while serving his sentence,
defendant was assigned to a Department of Corrections (“DOC”) work
crew picking up trash at a local high school. While purportedly
taking a bathroom break, defendant left the work crew and went to
the home he had shared with his wife. Defendant entered the home,
leaving his DOC work crew shirt and hat beside the steps.
A search for defendant led law enforcement officers to the
home. The house was surrounded, and no one entered or left
thereafter. Around 5:00 p.m., several witnesses heard what was
described as thunder, thumping, stomping, pounding, glass breaking,
and footsteps running through the house.
At about 2:00 a.m. the morning of 21 June 2001, law
enforcement officers kicked in the door to the home and entered.
Officers found defendant on the floor in a bedroom, and found the
victim in the living room, dead from severe head injuries. On 30 July 2001, the Bertie County Grand Jury indicted
defendant Dennie Lee Cherry, Jr., for first-degree murder.
Defendant was tried before a jury in superior court on 13 to 16
March 2006, and found guilty of first-degree murder. Thereafter,
the trial court sentenced defendant to life imprisonment without
parole. Defendant appeals.
II. Discussion
Defendant contends the trial court erred when it denied
defendant's request to represent himself. Defendant relies on
State v. Thomas, 331 N.C. 671, 673, 417 S.E.2d 473, 475 (1992),
arguing that it is “well settled in North Carolina that a defendant
'has a right to handle his own case without interference by, or the
assistance of, counsel forced upon him against his wishes.'”
Id.
(quoting
State v. Mems, 281 N.C. 658, 670-71, 190 S.E.2d 164, 172
(1972)).
It is true that a criminal defendant has a right to waive
appointed counsel and handle his own case. 331 N.C. at 673, 417
S.E.2d. at 475. However, “courts indulge in every reasonable
presumption against waiver . . . of the right to counsel.”
Brewer
v. Williams, 430 U.S. 387, 404, 51 L. Ed. 2d 424, 440 (1977).
Thus, “the trial court must conduct a thorough inquiry” before it
allows a criminal defendant to waive appointed counsel.
Thomas,
331 N.C. at 674, 417 S.E.2d at 476 (granting a new trial when the
trial court allowed the defendant to waive appointed counsel
without conducting a thorough inquiry to ensure that defendant
understood the consequences of proceeding
pro se). On the recordbefore us, we find that the trial court conducted a thorough
in
camera inquiry of defendant's request to waive counsel, and after
the inquiry, defendant decided not to waive appointed counsel.
Accordingly, we find this assignment of error to be without merit.
Defendant next assigns error to the qualification of Special
Agent Jennifer Elwell as a blood stain expert. Citing Rule 702 of
the North Carolina Rules of Evidence, he argues that Agent Elwell
did not possess the requisite knowledge, skill, experience,
training, or education to qualify her to testify as an expert.
A trial court's determination that a witness is qualified to
testify as an expert is reviewed only for abuse of discretion.
State v. Bullard, 312 N.C. 129, 140, 322 S.E.2d 370, 376 (1984) (“A
finding by the trial judge that the witness possesses the requisite
skill will not be reversed on appeal unless there is no evidence to
support it.” (Citation and quotation omitted.)). In reviewing the
trial court's qualification of an expert,
[i]t is not necessary that an expert be
experienced with the identical subject matter
at issue or be a specialist, licensed, or even
engaged in a specific profession. It is
enough that the expert witness because of his
expertise is in a better position to have an
opinion on the subject than is the trier of
fact.
State v. Goode, 341 N.C. 513, 529, 461 S.E.2d 631, 640 (1995)
(internal citations and quotations omitted).
The record in the case
sub judice shows that Agent Elwell is
a Special Agent with the North Carolina State Bureau of
Investigation (SBI), assigned to the laboratory in the forensics
biology section as a forensics DNA analyst. She was trained by theSBI for two years in the fields of body fluid analysis, blood
grouping analysis, and enzyme analysis. She worked in the body
fluid unit of the SBI for about thirteen years. She also had
training in crime scene investigation, including blood stain
pattern interpretation. She had attended seminars on body fluid
analysis and had previously testified numerous times as an expert
witness in the fields of forensic serology, DNA analysis, and blood
spatter analysis. On the evidence before it, the trial court did
not abuse its discretion when it decided to qualify Ms. Elwell as
an expert in the field of blood spatter analysis.
(See footnote 1)
Accordingly,
this assignment of error is without merit.
Defendant next contends that the trial court erred when it
allowed the clerk of superior court to testify that defendant had
been convicted for the 16 November 1999 assault on the victim with
a deadly weapon inflicting serious injury. Defendant relies on
State v. Wilkerson, 356 N.C. 418, 571 S.E.2d 583 (2002). In
Wilkerson, the North Carolina Supreme Court reversed this Court's
decision, 148 N.C. App. 310, 559 S.E.2d 5 (2002),
per curiam for
the reasons stated in Judge Wynn's dissent, which opined that the
bare fact of a prior conviction, elicited from the clerk of court
only for the purpose of showing intent under Rule 404(b), isirrelevant and should be excluded by Rule 402.
Wilkerson, 148 N.C.
App. at 320, 559 S.E.2d at 11-12 (Wynn, J., dissenting).
The State contends that testimony of the prior conviction was
relevant because it helped show the context of the crime, that is,
it was relevant for the State to show that defendant was in prison
because the presence of his DOC t-shirt and hat beside the steps of
the victim's home was circumstantial evidence linking him to her
murder. Alternatively, the State contends that even if this
testimony was irrelevant, its admission was harmless because an
eyewitness to the 16 November 1999 assault testified at trial.
Defendant did not object at trial to the admission of this
evidence, so we review only for plain error. N.C.R. App. P.
10(c)(4). “To satisfy the requirements of the plain error rule,
the Court must find error, and that if not for the error, the jury
would likely have reached a different result.”
State v. Holmes,
120 N.C. App. 54, 64, 460 S.E.2d 915, 921 (1995).
Assuming, without deciding, that the admission of the clerk's
testimony as to defendant's conviction was error, we conclude that
it did not rise to the level of plain error. Eyewitness testimony,
which was not assigned as error, recounted the 16 November 1999
assault in detail, and identified defendant as the perpetrator. In
light of this testimony, which was clearly relevant to defendant's
motive and intent,
State v. Harris, 149 N.C. App. 398, 404, 562
S.E.2d 547, 550 (2002), we perceive no likelihood that the jury
would have reached a different result absent the testimony that
defendant had been convicted of the 16 November 1999 assault. Defendant next assigns error to testimony that he shot the
victim in 1977. He argues that his actions in 1977 are too
dissimilar and too attenuated in time to be relevant to
establishing malice or ill will toward victim in 2001.
The North Carolina Supreme Court has “repeatedly held that a
defendant's prior assaults on the victim, for whose murder
defendant is presently being tried, are admissible for the purpose
of showing malice, premeditation, deliberation, intent or ill will
against the victim.”
State v. Alston, 341 N.C. 198, 229, 461
S.E.2d 687, 703 (1995). “Furthermore, in cases where a husband is
accused of killing his wife, the State may introduce evidence that
encompasses his married life in order to prove malice, intent, and
ill will toward the victim.”
State v. Allen, 346 N.C. 731, 740,
488 S.E.2d 188, 193 (1997) (emphasis added).
We conclude that evidence that defendant shot the victim in
1977
(See footnote 2)
was relevant to show malice, intent or ill will, and the
trial court did not err when it admitted that evidence.
Accordingly, this assignment of error is overruled.
Defendant lastly contends that the trial court erred when it
denied his motion to dismiss the charge of first-degree murder. He
argues that the State failed to establish the essential elements of
the crime, including premeditation and deliberation. N.C. Gen. Stat. § 15A-1227 (2005) allows a
defendant to move to dismiss a criminal charge
when the evidence is not sufficient to sustain
a conviction. Evidence is sufficient to
sustain a conviction when, viewed in the light
most favorable to the State and giving the
State every reasonable inference therefrom,
there is substantial evidence to support a
jury finding of each essential element of the
offense charged, and of defendant's being the
perpetrator of such offense. The denial of a
motion to dismiss for insufficient evidence is
a question of law which this Court reviews
de
novo.
State v. Bagley, ___ N.C. App. ___, ___, 644 S.E.2d 615, 621 (2007)
(internal citations and quotations omitted). First-degree murder
is the unlawful killing of a human being with
malice, premeditation, and deliberation. The
element of premeditation requires the state to
show that the accused formed the specific
intent to kill at some time, however brief,
before the killing took place. Deliberation
is the intention to kill, and it must be
formed not in the heat of passion, but while
defendant is in a cool state of blood.
State v. Nicholson, 355 N.C. 1, 37, 558 S.E.2d 109, 134 (2002)
(internal citations and quotations omitted).
The State presented evidence that defendant had shot the
victim at least two times over the course of their married life.
Furthermore, on the day that the victim was killed, defendant
entered the home occupied by the victim, and defendant and the
victim were alone together in the trailer for several hours. Law
enforcement officers heard sounds consistent with a struggle. When
police entered the home, they found broken furniture, broken glass
and blood spatters in several areas of the home. The victim was
found dead of severe head injuries. The victim's skull was
shattered and her brain was “essentially . . . pulverized.” Theseverity and extent of the victim's wounds are circumstances from
which the jury may infer premeditation and deliberation.
Bullard,
312 N.C. at 161, 322 S.E.2d at 388. This evidence, viewed in the
light most favorable to the State, is substantial evidence to
support a jury finding that defendant acted with malice,
premeditation and deliberation in killing the victim. Accordingly,
we hold that the trial court did not err in denying defendant's
motion to dismiss the charge of first-degree murder.
III. Conclusion
For the reasons stated above, we conclude that the trial court
did not err when it denied defendant's request to represent
himself. We also conclude that the trial court did not err when it
allowed Agent Elwell to testify as a blood stain expert.
Additionally, we conclude that the trial court did not commit plain
error when it allowed the clerk of superior court to testify that
defendant had previously been convicted of assaulting victim with
a deadly weapon inflicting serious injury. We further conclude
that the trial court did not err when it allowed the State to
present testimony that defendant had shot the victim in 1977.
Finally, we conclude that the trial court did not err when it
denied defendant's motion to dismiss the charge of first-degree
murder on the grounds of insufficient evidence to sustain a
conviction. Accordingly, we hold that defendant received a fair
trial, free of plain or prejudicial error.
NO ERROR.
Judges McCULLOUGH and BRYANT concur.
Report per Rule 30(e).
Footnote: 1