Opinion
No. COA12–1329.
2013-08-6
STATE of North Carolina v. Demarius Derron MASSEY.
Attorney General Roy Cooper, by Assistant Attorney General Joseph L. Hyde, for the State. Ryan McKaig, for defendant appellant.
Appeal by defendant from judgment entered 4 June 2012 by Judge Jesse B. Caldwell III, in Mecklenburg County Superior Court. Heard in the Court of Appeals 10 April 2013. Attorney General Roy Cooper, by Assistant Attorney General Joseph L. Hyde, for the State. Ryan McKaig, for defendant appellant.
McCULLOUGH, Judge.
On 4 June 2012, a jury unanimously convicted Demarius Derron Massey (“defendant”) of conspiracy to commit robbery with a firearm. On appeal, defendant argues the trial court erred in allowing testimony under Rules 404(b) and 403 of the North Carolina Rules of Evidence, necessitating a new trial. We find no error.
I. Background
On the night of 30 July 2009, Kelvin Bell (“Bell”) was shot and killed by intruders at his apartment on Twisted Oaks Road in Charlotte, North Carolina (“the Twisted Oaks apartment”). Bell shared the apartment with his fiance, Andrea Coleman (“Coleman”), and a roommate, Michaelos Foxworth (“Foxworth”). Foxworth was a known marijuana dealer and sold marijuana to other individuals from the Twisted Oaks apartment.
Approximately one week prior to 30 July 2009, defendant stated to Travis Neal (“Neal”) that defendant was planning to rob the Twisted Oaks apartment. Neal was familiar with the Twisted Oaks apartment, as he previously had visited the complex and had purchased marijuana from someone inside that apartment. Neal relayed to defendant the best route to travel from the Twisted Oaks apartment to Neal's residence approximately five minutes away in order to avoid police.
On the night of 30 July 2009, defendant and Treshina Everett (“Everett”) borrowed the car of a friend, Shaquena Graham (“Graham”), who was the girlfriend of and resided together with Neal. Everett and defendant then travelled to a house on Erskine Drive where they met Nikiala Merritt (“Merritt”) and Benjamin Watkins (“Watkins”). Defendant stated to Merritt that they were “going to get some money.” Everett, Merritt, Watkins, and defendant then proceeded to the Twisted Oaks apartment. During the drive, Everett and defendant discussed that there should be money and drugs inside that apartment. Merritt observed that both Watkins and defendant were armed with handguns.
Upon arriving at the Twisted Oaks apartment, Everett went to the door and rang the doorbell, accompanied by Merritt. Foxworth opened the door and welcomed Everett inside; however, before Everett or Merritt stepped inside the door, defendant “ran with his gun in the air” and attempted to enter the residence. Upon seeing defendant, Foxworth tried to close the door, but defendant pushed his way inside the residence, followed by Watkins. When Merritt reached the inside of the apartment, she observed that Foxworth was bleeding from his head and that defendant was holding Foxworth by the collar with a gun to Foxworth's head. Merritt also observed that Watkins and Everett were searching through cabinets and drawers in the kitchen area. Watkins then grabbed Foxworth by the collar, put a gun to his head, and began searching Foxworth's pockets.
Defendant proceeded down a hallway to the back bedroom of the apartment, where he twisted the doorknob but could not get the door open. Defendant then came back to the front of the apartment, grabbed Foxworth by the collar, and instructed him to “get the door open.”
Bell and Coleman were inside the back bedroom eating dinner on the bed when they heard Foxworth yell for Bell and a knock on the bedroom door, which was locked. As Bell began to open the bedroom door, he was shot in the chest. Upon hearing the gunshot, Coleman jumped into the bedroom closet and hid under some clothing. While hiding in the closet, Coleman heard a loud, unfamiliar male voice ask Foxworth, “[W]here is the money?” Approximately one minute later, when Coleman no longer heard voices outside the bedroom, she exited the closet and found Bell lying on his side on the floor. Coleman immediately called 911 and reported the shooting. Bell was taken to the hospital and pronounced dead by a single gunshot wound to the chest.
Following the incident at the Twisted Oaks apartment, Everett, Merritt, Watkins, and defendant drove to the residence of Neal and Graham, where they divided up a quantity of marijuana that they had taken from the Twisted Oaks apartment. Graham testified that upon returning to the apartment with her car, defendant stated that he had shot someone, and the four continued to talk about a robbery. Graham observed that defendant was carrying a firearm on his waist at that time. Neal testified that he also heard defendant state that he had shot someone during a robbery and that he had seen defendant with a High Point handgun.
At the scene, investigators recovered DNA evidence from the exterior front door of the Twisted Oaks apartment that matched defendant's DNA profile. Investigators also recovered a spent shell casing along the rear wall of the apartment's hallway and a projectile lying atop the bed in the back bedroom of the apartment. The spent shell casing was a Winchester nine millimeter Luger.
Approximately one month later, on the evening of 29 August 2009, Officer Aksone Inthison (“Officer Inthison) with the Charlotte–Mecklenburg Police Department (“CMPD”) was patrolling on Erskine Drive when he heard three to four shots fired nearby. Officer Inthison shone his spotlight on a vehicle several yards ahead of him, and the vehicle “took off at a high rate of speed.” Officer Inthison observed the vehicle turn onto Shamrock Drive, followed by Farley Street, where the vehicle failed to stop at a stop sign, causing Officer Inthison to activate his patrol lights and siren. The vehicle then circled back onto Herrin Avenue and stopped, and Officer Inthison observed the driver of the vehicle jump out and flee the scene. Two passengers remained in the vehicle, Delia Scales (“Scales”)—defendant's girlfriend at the time, and Everett.
Scales testified at trial over defendant's objection that defendant was the driver of the vehicle on 29 August 2009 and that defendant had fired a gun from the car's window while sitting in the driver's seat. Investigators collected three spent shell casings from the vehicle: (1) a Cascade Cartridges Incorporated nine millimeter Luger casing located in the floorboard between the driver's seat and the driver's door; (2) a Winchester nine millimeter Luger casing located in the floorboard in front of the driver's seat; and (3) a Winchester nine millimeter Luger casing located in the floorboard behind the front passenger seat. Officers also located a nine millimeter High Point handgun on the curb of Shamrock Drive between Herrin Avenue and Erskine Drive.
Gene Rivera (“Rivera”), a firearm and toolmark examiner with the CMPD, testified as an expert as to his determination that the three shell casings found in the vehicle on 29 August 2009 were fired from the High Point handgun found on the same night. Rivera also testified as to his determination that the Winchester nine millimeter Luger shell casing found in the Twisted Oaks apartment on 30 July 2009 was fired from the same handgun.
Officers presented Foxworth with a photographic lineup, during which Foxworth indicated that a man wearing dreadlocks had been the shooter who killed Bell on 30 July 2009. Evidence at trial established that Watkins wore dreadlocks.
On 16 November 2009, defendant was indicted on charges of first-degree murder, robbery with a dangerous weapon, and conspiracy to commit robbery with a dangerous weapon. Defendant was tried by a jury beginning 21 May 2012. On 4 June 2012, the jury returned a verdict finding defendant guilty of conspiracy to commit robbery with a firearm, and the trial court entered judgment on the verdict, sentencing defendant to 46 to 65 months' imprisonment. The trial court declared a mistrial on the remaining two charges. Defendant gave oral notice of appeal in open court.
II. Standard of Review
Our Supreme Court has recently clarified the appropriate standards of review to be applied when reviewing a challenge to the admissibility of evidence under Rules 404(b) and 403 of the North Carolina Rules of Evidence:
[W]hen analyzing rulings applying Rules 404(b) and 403, we conduct distinct inquiries with different standards of review. When the trial court has made findings of fact and conclusions of law to support its 404(b) ruling, ... we look to whether the evidence supports the findings and whether the findings support the conclusions. We review de novo the legal conclusion that the evidence is, or is not, within the coverage of Rule 404(b). We then review the trial court's Rule 403 determination for abuse of discretion.
State v. Beckelheimer, 366 N.C. 127, ––––, 726 S.E.2d 156, 159 (2012).
III. Discussion
Defendant's only argument on appeal is that the trial court erred in allowing Scales' testimony concerning the 29 August 2009 shooting under Rules 404(b) and 403 of the North Carolina Rules of Evidence. Defendant contends that the evidence was improper under Rule 404(b) in that it had no connection to the events on 30 July 2009 and that the prejudicial effect of the evidence outweighed any probative value under Rule 403.
Upon hearing defendant's objection to the challenged portions of Scales' testimony, the trial court rendered the following ruling:
The Court has made its ruling as to this evidence with regard to 404(b) as it relates to any other purpose than identity, the Court still suppresses the evidence on any of those firsts.
However, the Court is going to rule that the testimony of witness Delia Scales with regard to the events of August 29th, 2009....
....
Regarding the defendant firing a weapon, is admissible under Rule 404(b) for the sole purpose of proof of identity. It being the State's forecast of evidence that this incident about which Ms. Scales will testify before the jury, gives rise to an investigation by law enforcement wherein a weapon was found upon the defendant, but after he had fled, according to the testimony of the witness Scales.
The State's forecast of evidence will link the gun found on August 29th, 2009 with the murder weapon of the victim on July 30th, 2009. The Court's ruling is a forecast of the ultimate admissibility of the gun into evidence.
The Court's ruling further involves its discretionary finding that the probative value of this evidence is not substantially outweighed by the danger of unfair prejudice, confusion of the issues or misleading the jury, or upon consideration of undue delay, waste of time or needless presentation of cumulative evidence.
So again to be clear, I think that this is admissible for this one purpose, and I certainly can see what [defense counsel] says. This gun was not taken from the defendant on the 29th, the defendant was not apprehended on the 29th. But there is circumstantial evidence that this was the gun that was used to be fired and was the gun fired from the vehicle on the 29th of August. I think that's a jury question. Again, dealing with the admissibility of it later.
So when I admit this, I'm going to tell the jury it's for the sole purpose of the State contending it's for proof of identity. All right, note the defendant's exception.
Thereafter, prior to allowing Scales' testimony, the trial court instructed the jury as follows:
Members of the Jury, the evidence that you are about to hear, as I understand the forecast of it, relates to a date subsequent to July 30th of 2009. As I understand it[,] it involves the 29th of August 2009.
This evidence, Members of the Jury, is going to be received into evidence by a limiting order of this Court. It's going to be received for one sole purpose only. It is being received for the single purpose, Members of the Jury, as proof that the State seeks to offer with regard to the sole issue of identity.
Identity of the defendant Massey as being an individual who the State contends committed robbery with a dangerous weapon, conspiracy to commit robbery with a dangerous weapon, and murder on July 30th, 2009.
Now, whether or not this evidence you are about to hear does help prove or show identity of the defendant Massey as an individual involved in the robbery and conspiracy to commit robbery and the murder on July 30th, 2009, is for you and you alone to determine. It's for you to decide.
Now, I'm not saying by allowing this evidence in for the sole purpose of identity that this shows identity or that it proves identity or not. You hear the evidence and you determine what the facts are from the evidence. I'm simply saying that I'm allowing this evidence for one purpose and one purpose alone, identity.
Now, it may be difficult for you to understand right now before you've even heard what the testimony is, how that could be the case. However, it's something that the State's going to offer that occurred a month later to be regarded—to be related to identity on July 30th, 2009.
That will be up to the State to convince you beyond a reasonable doubt. There's no burden upon the defendant to prove anything. The defendant is still presumed innocent. You are still to presume him innocent even up to this point, and up until the point that you go to deliberate after you've heard all the evidence, the lawyers['] final arguments and my legal instructions.
Then and only then will you begin to deliberate on the evidence and begin to formulate an opinion. So right now you don't necessarily need to be worried about how could this be related to the event. Listen to the evidence, and I just want you to know that usually evidence is received without stating one purpose or what the reason is.
But I am narrowing and limiting this evidence for that one purpose only, and that is the issue of identity, if in fact you find it does tend to prove the defendant's identity as someone involved in the robbery, conspiracy to commit robbery and the murder on July 30th, 2009. This evidence will be received for that sole purpose of identity.
Rule 404(b) of the North Carolina Rules of Evidence provides:
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake, entrapment or accident.
N.C. Gen.Stat. § 8C–1, Rule 404(b) (2011). Rule 404(b) is a “general rule of inclusion of relevant evidence of other crimes, wrongs or acts by a defendant, subject to but one exception requiring its exclusion if its only probative value is to show that the defendant has the propensity or disposition to commit an offense of the nature of the crime charged.” State v. Coffey, 326 N.C. 268, 278–79, 389 S.E.2d 48, 54 (1990).
Nonetheless, “the rule of inclusion described in Coffey is constrained by the requirements of similarity and temporal proximity .” State v. Al–Bayyinah, 356 N.C. 150, 154, 567 S.E.2d 120, 123 (2002). “The admission of evidence under Rule 404(b) is constrained by how similar in manner and how close in time the prior acts were to the crimes with which the defendant is currently charged.” State v. Brockett, 185 N.C.App. 18, 22, 647 S.E.2d 628, 632 (2007). “Prior crimes or acts by the defendant are deemed similar when there are ‘some unusual facts present in both crimes or particularly similar acts which would indicate that the same person committed both[.]’ “ Id. at 22, 647 S.E.2d at 632–33 (alteration in original) (quoting State v. Moore, 309 N.C. 102, 106, 305 S.E.2d 542, 545 (1983)). “ ‘[I]t is not necessary that the similarities between the two situations rise to the level of the unique and bizarre. Rather, the similarities simply must tend to support a reasonable inference that the same person committed both the earlier and later acts.’ “ Id. at 22,647 S.E.2d at 633 (quoting State v. Stager, 329 N.C. 278, 304, 406 S.E.2d 876, 891 (1991)).
In the present case, we conclude that the requirement of temporal proximity is clearly met, as the 29 August 2009 shooting occurred within one month of the 30 July 2009 robbery and murder. This Court has previously upheld the admissibility of evidence under Rule 404(b) when the crimes or acts occurred within two months or more of each other. See, e.g., State v. Christian, 180 N.C.App. 621, 627, 638 S.E.2d 470, 474 (2006) (upholding admissibility of testimony referencing other incidents that occurred “only two months” prior to the shooting for which the defendant was on trial). Moreover, “ ‘remoteness in time generally affects only the weight to be given such evidence, not its admissibility.’ “ State v. Locklear, 363 N.C. 438, 448, 681 S.E.2d 293, 302 (2009) (quoting Stager, 329 N.C. at 307, 406 S.E.2d at 893).
In addition, although defendant's primary contention is that the requirement of similarity was not met in this case, we conclude otherwise. In the present case, the evidence shows that the three spent shell casings recovered from the vehicle on 29 August 2009 were ejected from the High Point handgun found in the area on the same night. No other shell casings were found inside the vehicle. The evidence further shows that the spent shell casing recovered from the murder scene on 30 July 2009 was also ejected from that same handgun. Thus, the High Point handgun recovered by officers on 29 August 2009 was used in both the robbery and murder of Bell at the Twisted Oaks apartment on 30 July 2009 and the shooting on Erskine Drive on 29 August 2009. Neal testified that defendant carried a High Point handgun, and both Merritt and Graham testified that defendant was armed with a handgun on the night of the robbery and murder. Scales' testimony identifies defendant as the only occupant to fire a gun inside the vehicle from which the shell casings, linked to the High Point handgun found in the area and linked to the murder of Bell, were retrieved on 29 August 2009. This chain of circumstantial evidence was admissible to show the identity of defendant as having fired the same handgun in perpetrating the robbery and murder on 30 July 2009. See State v. Perry, 293 N.C. 97, 100–01, 235 S.E.2d 52, 54–55 (1977).
In Perry, our Supreme Court held that evidence consisting of testimony regarding a robbery of a Kwik–Pik convenience store and shooting of the store clerk by a masked man using a long, black gun and a .22–caliber cartridge recovered from the floor of the Kwik–Pik on 5 November 1975, for which the defendant was positively identified as the perpetrator, was “clearly relevant” under Rule 404(b) “for the consideration of the jury on the issue of identity” of the defendant as the perpetrator of a subsequent robbery of a Food Mart convenience store on 18 November 1975, in which the store clerk was shot and killed by a masked man using a long, black gun and where a .22–caliber cartridge was retrieved at the scene and was found to have been fired from the same gun as the cartridge recovered from the Kwik–Pik scene. Id. Similarly, in State v. Brockett, 185 N.C.App. 18, 647 S.E.2d 628 (2007), this Court held that testimony by an expert in the field of firearm identification establishing that the same firearm was used to commit the shootings for which the defendant was on trial and armed robberies, for which the defendant had pled guilty, that had occurred within two months of the shootings was relevant to prove identity and therefore was properly admissible under Rule 404(b). Id. at 23, 647 S.E.2d at 633. We see no meaningful difference in the circumstances presented in Brockett and those presented in the present case.
Here, as in Brockett, it is clear that the evidence regarding defendant's participation in the shooting on 29 August 2009 “established more than that [d]efendant had the propensity to break the law.” Id. As in Brockett, the evidence challenged by defendant on appeal in the present case established not only that defendant had used a firearm in an illegal manner in the recent past; significantly, the evidence demonstrated that defendant “had used or had access to the same firearm” within one month of the armed robbery and murder of Bell for which defendant was on trial. See id. “At a minimum, this evidence was relevant to prove identity and plainly supports ‘a reasonable inference that the same person committed both the earlier and later acts.’ “ Id. (quoting Stager, 329 N.C. at 304, 406 S.E.2d at 891). Thus, we hold Scales' testimony in the present case was properly admitted under Rule 404(b) for the purpose of proving identity.
We next address defendant's remaining argument that the prejudicial effect of the evidence outweighed any probative value under Rule 403 of our Rules of Evidence. Pursuant to Rule 403 of the North Carolina Rules of Evidence, “[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 (2011).
Here, the challenged evidence was not unfairly prejudicial to defendant under Rule 403. Scales' testimony that defendant fired a handgun from the vehicle does not so inflame the passions of the jury that it might have swayed their verdict to convict defendant of conspiracy to commit robbery with a firearm. The trial court conducted a voir dire of Scales prior to ruling on the admissibility of her testimony. The trial court also heard arguments from counsel regarding the Rule 404(b) issue and subsequently determined that the probative value of Scales' testimony was not substantially outweighed by the considerations listed under Rule 403. The record reveals the trial court properly balanced the evidence and that the decision was not arbitrary or unsupported by reason. Furthermore, the trial court gave a thorough limiting instruction to the jury prior to admitting the challenged evidence. Thus, we find no abuse of discretion in the trial court's ruling under Rule 403. See Brockett, 185 N.C.App. at 23–24, 647 S.E.2d at 633.
Moreover, the State presented overwhelming evidence of defendant's guilt in participating in the conspiracy for which he was convicted. Neal testified that approximately one week prior to the armed robbery at the Twisted Oaks apartment, defendant stated that he planned to rob the Twisted Oaks apartment and obtained from Neal directions from the Twisted Oaks apartment to Neal's apartment in order to avoid police detection. Merritt testified that defendant and Everett picked her up, along with Watkins, and defendant stated to Merritt that they were “going to get some money” from the Twisted Oaks apartment. Merritt also testified that defendant was armed with a handgun and forced his way into the Twisted Oaks apartment behind Everett. Merritt further testified that defendant held an occupant of the Twisted Oaks apartment at gunpoint while Watkins and Everett searched the kitchen area and that the group took some marijuana from the Twisted Oaks apartment and divided it among themselves. Coleman testified that one of the intruders asked Foxworth where “the money” was, and Graham testified that upon returning to the residence she shared with Neal, the group continued to talk about a robbery. This evidence, taken together, is more than sufficient to establish that defendant entered into an agreement with at least one other person to commit a robbery with a firearm of the Twisted Oaks apartment with the intent that that agreement be carried out. Evidence linking defendant to the gun found on 29 August 2009, established through expert testimony to be the gun used to murder Bell during the robbery, was inapposite to defendant's conviction for conspiracy to commit robbery with a firearm. Defendant's arguments are without merit.
IV. Conclusion
We hold the trial court properly admitted Scales' testimony under Rule 404(b) of the North Carolina Rules of Evidence for the purpose of proving identity, and the trial court did not abuse its discretion in allowing Scales' testimony under Rule 403 of the North Carolina Rules of Evidence. We find no error in defendant's trial.
No error. Judges BRYANT and HUNTER, JR. (ROBERT N.) concur.
Report per Rule 30(e).