Opinion
No. COA10-1216
Filed 19 April 2011 This case not for publication
Appeal by defendant from judgment entered 20 May 2010 by Judge W. Allen Cobb, Jr., in Craven County Superior Court. Heard in the Court of Appeals 7 March 2011.
Attorney General Roy Cooper, by Assistant Attorney General K.D. Sturgis, for the State. Geoffrey W. Hosford for defendant appellant.
Craven County No. 08 CRS 54078.
Desmond Johnson, Jr. ("defendant") appeals from a judgment based upon his conviction for second-degree murder. For reasons discussed herein, we find no error and affirm the decision of the trial court.
I. Background
On 24 August 2008, thirty-year-old April Torres went to pick up eighteen-year-old Rafel Moultrie to take him out to eat for his eighteenth birthday. Over a six-month period, the two had become "friends with benefits," consisting of a casual, but sexual relationship. Torres first went by Moultrie's house in Havelock, Craven County, where he lived with his parents, but she was told that he was at a friend's place. She left her son at Moultrie's to play with Moultrie's little brother and went to pick up Moultrie at his friend's house.
The two went to eat in New Bern and were on their way back to Havelock when Torres exclaimed, "Oh, oh, s_ _ _." Moultrie asked her what was wrong and she replied that she had just seen defendant. Shortly thereafter, the vehicle in which defendant was riding turned around and began following Torres.
Defendant had been hanging out with Robbie Garrett earlier in the day. Garrett testified that defendant had been in a fight on the phone with Torres, "his girlfriend," earlier that morning. Garrett and defendant drank beer at the beach for a few hours, and while at the beach Garrett noticed that defendant appeared to be looking around for Torres. Defendant and Garrett left the beach and returned to a friend's house. After leaving the friend's house, defendant and Garrett were driving back to Garrett's house when Garrett felt defendant jerk the wheel and tell him to "[t]urn the f_ _ _ _ _ _ car around . . . I'm ready." Garrett turned the car around and began following Torres and Moultrie. Defendant appeared very upset.
Garrett pulled up next to Torres and defendant jumped out of the car window. As defendant climbed out of the car he yelled, "[g]et him out of the f car," and Torres quickly pulled away. Defendant got back into Garrett's car and repeatedly told Garrett, "[f]_ _ _ this s_ _ _. I'm ready." Torres attempted to lose them, because she knew defendant would want to fight. Both drivers were driving recklessly as Torres attempted to lose them. Torres decided that it would be best to go back to Moultrie's parents' house because she thought his father would be there. However, when they arrived at Moultrie's house the garage door was open, meaning that his parents were out.
Torres pulled into the driveway at Moultrie's house and the two quickly ran inside. Moultrie ran to a bedroom to call the police while Torres stepped back outside to try to talk to defendant. As Garrett and defendant pulled up, defendant hopped out of the car and ran towards the house. He did not have a weapon with him.
From the car, Garrett was able to see a silhouette of defendant in the garage squatting down and hitting someone between two and six times. Defendant returned to the car with an injured, bloody hand and told Garrett, "[d]on't f worry about it . . . [j]ust drive." Defendant would not tell Garrett what happened and asked Garrett to drop him off at a friend's apartment. As soon as Garrett heard about Torres' injuries later that evening, he called the police and gave a statement.
From inside his house, Moultrie heard Torres' son scream and ran out to the garage to find blood all over the place. Torres was on the ground in a pool of blood and blood was all over the walls. She had blood coming out of her ears, nose, eyes and mouth. Her face was caved in with her eyes swollen shut and a lot of her teeth were knocked out. Moultrie's uncle, Jerry Vaughn, approached just as defendant was returning to Garrett's car. He found Torres in the garage in a pool of blood. He had seen Torres a few days before, but could not recognize her because of the injuries. He went inside to call 911.
After calling 911, Vaughn went back outside to help. A neighbor had come over and was also trying to help. The neighbor attempted to roll her over and push her tongue down with a screwdriver to keep her from choking on her own blood. The neighbor had met Torres on a few occasions, but also could not recognize her because of the injuries. He could tell it was Torres from her tattoos, though. Soon thereafter, the police and paramedics arrived. Vaughn noticed that Torres stopped breathing. She went into cardiac arrest, but the paramedics were able to restart her heart. She was transferred by helicopter to the hospital in Greenville, but did not survive.
At the apartment complex, defendant ran into a family friend and told the friend that he had gotten into a fight with a man. The friend noticed that defendant's hand was bleeding and that he had a cut on his foot. Later that night, defendant called a friend, Brittany Mirise, and told her he needed a place to sober up and talk. Mirise had introduced Torres and defendant. She told him that he could come by and sober up. She testified that when he arrived, he reeked of alcohol and appeared upset. He told her that he had hit Torres and that he thought it was bad. Defendant recounted the events and told her that he had initially wanted to talk to Torres, but that she ran into the garage. He had proceeded to grab Torres by the hair and hit her in the face. He told Mirise that he "blacked out" and "couldn't stop." Mirise and defendant's sister suggested that he turn himself in to the police.
Defendant ended up calling another family friend, who was also a detective, and the detective was able to determine defendant's whereabouts. When the police arrived at Mirise's, defendant attempted to flee, but was subsequently caught. He told the arresting officer that he had "hit her and did not mean to hurt her."
At her death Torres had multiple fractures of the bones of the face. A forensic pathologist, Dr. William Oliver, testified that through an internal examination of the skull, he determined that Torres died as a result of blunt trauma to the head, causing subdural hemorrhage and subarachnoid hemorrhage, which became a cerebral edema. The hemorrhaging indicated multiple blows to the head and caused the brain to herniate into the spine. Even though it could not be determined which blow to Torres was fatal, the injuries to her brain were the cause of her death. Dr. Oliver testified that the injuries were unlikely to be due solely to fist strikes. At trial, the prosecutor presented eight autopsy photos for Dr. Oliver to use in explaining the extent of Torres' injuries.
Torres was approximately five feet, eight and a half inches tall, and weighed about 147 pounds. Defendant was slightly over five feet, eleven inches and weighed between 180 and 190 pounds. He was also muscular. Defendant had cuts on one hand and one foot. He told a friend that he was fighting his girlfriend's boyfriend and that "he punched and punched and punched, kicked, wrestled and all that."
At trial, an issue arose as to whether or not a juror was eligible to serve on the panel. The judge received a letter from the juror bringing her own eligibility into question. The issue involved whether or not North Carolina was the juror's state of domicile. After the judge reviewed the juror's letter with counsel from the defense and the State, the judge determined that the juror was under "no legal disqualification and she is appropriately eligible to serve as a juror in this case." Defendant objected to the allowance of the juror.
Defendant did not present any evidence at trial. The trial court instructed the jury, using N.C.P.I. — Crim. 206.13 for first-degree murder with a deadly weapon, and the jury came back with a conviction of second-degree murder with a deadly weapon. Defendant appeals.
II. Analysis
A. Autopsy Photographs
Defendant first alleges that the State's use of eight autopsy photographs was repetitive with the autopsy report and the coroner's testimony, and done solely to inflame the jury's passions. The State presented autopsy photographs with the victim's skull pulled back to show the hemorrhaging that led to her death. Defendant argues that the use of the photographs was more prejudicial than probative. We disagree.
This Court reviews a trial court's decision on the admissibility of illustrative photographic evidence for abuse of discretion. State v. Hennis, 323 N.C. 279, 285, 372 S.E.2d 523, 527 (1988). "Abuse of discretion 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." Id. The North Carolina Supreme Court has thoroughly examined the use of photographic evidence in a murder trial. In State v. Hennis, the Supreme Court held:
Photographs are usually competent to explain or illustrate anything that is competent for a witness to describe in words, and properly authenticated photographs of a homicide victim may be introduced into evidence under the trial court's instructions that their use is to be limited to illustrating the witness's testimony. Thus photographs of the victim's body may be used to illustrate testimony as to the cause of death[.] Photographs may also be introduced in a murder trial to illustrate testimony regarding the manner of killing so as to prove circumstantially the elements of murder in the first degree, and for this reason such evidence is not precluded by a defendant's stipulation as to the cause of death. 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.
In general, the exclusion of evidence under the balancing test of Rule 403 of the North Carolina Rules of Evidence is within the trial court's sound discretion. Whether the use of photographic evidence is more probative than prejudicial and what constitutes an excessive number of photographs in the light of the illustrative value of each likewise lies within the discretion of the trial court.
Id. at 283-85, 372 S.E.2d at 526, 527 (citations omitted).
The photographs in question were presented by the State during examination of Dr. Oliver, a forensic pathologist, who conducted an autopsy on the victim and testified regarding her injuries and cause of death. A pathologist may testify about a victim's injuries and cause of death and in doing so may also illustrate his testimony with photographs. State v. Williams, 308 N.C. 47, 62, 301 S.E.2d 335, 345 (1983). "[T]here is no bright line indicating at what point the number of crime scene or autopsy photographs becomes too great. The trial court's task is rather to examine both the content and the manner in which photographic evidence is used and to scrutinize the totality of circumstances composing that presentation." Hennis, 323 N.C. at 285, 372 S.E.2d at 527. The Supreme Court in Hennis found that the State's use of twenty-six repetitive autopsy photographs used to illustrate forensic pathologists' testimony did not add anything to the State's case and had too great a potential to inflame jurors. Id. at 286, 372 S.E.2d at 528.
In the case at hand, Dr. Oliver used the photographs to show Torres' injuries and cause of death. The details of the injuries and cause of death were also before the jury in relation to the second-degree murder charge and defendant's use of his hands and feet in the murder. The State only used eight different autopsy photographs to aid Dr. Oliver in his testimony. Even more, the trial court gave a limiting instruction to the jury that the photographs were only to be considered for illustrative purposes. Therefore, the State's use of the eight autopsy photographs to explain the extent of the victim's injuries and cause of death was not repetitive or overly prejudicial to qualify as an abuse of discretion by the trial court.
B. Jury Instruction
Defendant next contends that the trial court erred by using N.C.P.I. — Crim. 206.13 for first-degree murder where a deadly weapon is used, because the State failed to prove that defendant caused the victim's death by attacking her with a deadly weapon. Defendant argues that the State did not present enough evidence to show that defendant used his hands and feet in the murder of the victim. Defendant also argues that the facts of the case do not support a finding that defendant's hands and feet constitute a deadly weapon. We disagree.
The choice of proper jury instructions "is a matter within the trial court's discretion and will not be overturned absent a showing of abuse of discretion." State v. Nicholson, 355 N.C. 1, 66, 558 S.E.2d 109, 152 (2002). "A deadly weapon is `any article, instrument or substance which is likely to produce death or great bodily harm.'" State v. Lawson, 173 N.C. App. 270, 279, 619 S.E.2d 410, 416 (2005) (quoting State v. Sturdivant, 304 N.C. 293, 301, 283 S.E.2d 719, 725 (1981). "[A] defendant's fists can be considered a deadly weapon depending on the manner in which they were used and the relative size and condition of the parties." Id. at 279, 619 S.E.2d at 416.
In this case, the State presented proper evidence to warrant a jury instruction on first-degree murder with a deadly weapon. The State first presented evidence that defendant used his hands and feet in the murder through Garrett's testimony that he saw defendant hitting someone lying beneath him and the fact that defendant did not have a weapon. Garrett also noticed that defendant had injuries to his hand after getting back in the car. Another friend testified that defendant had a cut on his hand and one on his foot. Defendant further admitted to the friend that he had hit and kicked someone.
The State also presented evidence of the victim and defendant's relative sizes. Defendant was muscular, a few inches taller than the victim, and weighed between thirty and forty pounds more than her. The victim was also thirty years old, while defendant was only twenty-one.
Defendant incorrectly attempts to rely on the reasoning of State v. Lang, 309 N.C. 512, 308 S.E.2d 317 (1983), in arguing that the jury instruction for first-degree murder should not have been used because there was a lack of malice on behalf of defendant. In Lang, the North Carolina Supreme Court held that, where there is not enough evidence for the jury to find that a killing was committed in the heat of passion, then the trial court should instruct the jury that they must presume malice; but where "there was also evidence which would support but not compel a finding that the killing was in the heat of passion suddenly aroused," then "the mandatory presumptions of malice and unlawfulness disappear." Id. at 527, 308 S.E.2d at 325. In this case, because there was sufficient evidence that would support a killing in the heat of passion, the trial court properly instructed the jury that:
If the State proves beyond a reasonable doubt that the defendant intentionally killed the victim with a deadly weapon or intentionally inflicted a wound upon the victim with a deadly weapon that proximately caused the victim's death, you may infer, first, that the killing was unlawful, and, second, that it was done with malice, but you are not compelled to do so.
(Emphasis added.)
The trial court properly removed the "mandatory presumptions," and therefore the defendant's reliance on Lang is misplaced. Based on the evidence, the trial court did not abuse its discretion by using N.C.P.I. — Crim. 206.13, for first-degree murder with a deadly weapon.
C. Juror Qualification
Defendant's final issue is whether the trial court erred by failing to dismiss a juror based on concerns over her residency. The juror raised the issue of her residency by submitting a letter to the trial court. In the letter, the juror stated that in October 2007 she and her husband purchased a home and moved to New Bern to be near their daughters. The juror and her husband obtained driver's licenses, registered their vehicles, and registered to vote in North Carolina. They kept their property in Florida because of the poor housing market.
Towards the end of 2008 the two decided that they would split time between New Bern and Pensacola, Florida. As a property tax advantage, the juror and her husband claimed Pensacola as their primary residence by reregistering their driver's licenses and vehicles in Florida. The couple made two trips to Florida in 2009, but her husband's health kept them predominately in New Bern. The two had not been to Pensacola for ten months, so in May 2010 they put their Florida home on the market.
"After a jury has been impaneled, further challenge of a juror is a matter within the sound discretion of the trial judge." State v. Harris, 323 N.C. 112, 123, 371 S.E.2d 689, 696 (1988). The jury commission shall compile the list of prospective jurors on "July 1 of every odd numbered year," using "the list of registered voters and persons with drivers license records supplied to the county by the Commissioner of Motor Vehicles." N.C. Gen. Stat. § 9-2(a), (b) (2009). "All persons are qualified to serve as jurors and to be included on the jury list who are citizens of the State and residents of the county[.]" N.C. Gen. Stat. § 9-3 (2009).
Here, the juror in question was still a registered voter in North Carolina. For the determination of voter registration, a residence is that place "in which that person's habitation is fixed, and to which, whenever that person is absent, that person has the intention of returning." N.C. Gen. Stat. § 163-57(1) (2009). The juror and her husband resided in New Bern for the ten months prior to the trial and the two were also trying to sell their home in Florida, confirming their intent to reside in New Bern. In State v. Tirado, 358 N.C. 551, 573-74, 599 S.E.2d 515, 531 (2004), a trial court removed a juror because the juror no longer resided in Cumberland County. The juror had her permanent address as her mother's home in Cumberland County, but she had resided in Wake County for a sufficient period of time to no longer make her a resident of Cumberland County. Id. The fact that the juror's driver's license in our case was issued in Florida is insignificant, because at the time, based on all the facts, the juror was a resident of Craven County for the purpose of jury duty. Therefore, defendant failed to show that the trial court abused its discretion in allowing the juror to serve on the panel.
III. Conclusions
We affirm the trial court's judgment for the State against defendant and find that the trial court did not abuse its discretion.
No error.
Chief Judge MARTIN and Judge McGEE concur.
Report per Rule 30(e).