Opinion
No. COA10-765
Filed 3 May 2011 This case not for publication
Appeal by Defendant from judgments entered 27 January 2010 by Judge Milton F. Fitch, Jr. in Wilson County Superior Court. Heard in the Court of Appeals 11 January 2011.
Attorney General Roy Cooper, by Special Deputy Attorney General Gary R. Govert, for the State. Russell J. Hollers, III, for Defendant.
Wilson County Nos. 07 CRS 54285, 54293, 08 CRS 3568.
Darryl Wilkes (Defendant) appeals from judgments entered on his convictions of two counts of robbery with a dangerous weapon, one count of first degree burglary, and one count of first degree murder. For the following reasons, we conclude there is no error.
On 7 April 2008, Defendant was indicted on two counts of robbery with a dangerous weapon and one count of first degree burglary. On 14 July 2008, a short-form bill of indictment charging Defendant with first degree murder was returned. All four charges arose in connection with a 28 July 2007 home invasion in Stantonsburg, North Carolina, which resulted in the death of a man named Song Ni. The matter came on for trial at the 19 January 2010 Criminal Session of Wilson County Superior Court.
At trial, Reginald Atkinson testified for the State, pursuant to a plea agreement, that he and his nephew, Stacey Atkinson, had met Defendant at a park in Farmville, North Carolina, where they discussed a plan to rob the proprietors of a Chinese restaurant in Stantonsburg. The plan was to borrow a stolen Chrysler Pacifica from a man named Bart and enter the victims' home, which was across the street from their business, after they closed the restaurant for the night. Reginald testified that on 28 July 2007, he, his nephew, and Defendant drove to Stantonsburg around 2:00 in the afternoon to take a look at the target residence and determine how to execute the proposed robbery. The three men decided to return that night and then stopped at a convenience store before returning to Farmville.
Around 8:00 p.m. on 28 July 2007, Defendant and the Atkinsons picked up the Pacifica and first stopped in LaGrange where they made an unsuccessful robbery attempt before driving to Stantonsburg. Reginald testified that Defendant, who was driving the Pacifica, parked behind a community center near the victims' residence. The men walked across a thin line of woods and into the victims' backyard before hiding behind a shed and waiting for the occupants to return home. When two people approached from the restaurant across the street, Defendant said that he was "going to take these two down" and instructed Reginald and Stacey to "secure everybody else in the house." Armed with "either a .9 or .45" caliber automatic pistol, Defendant encountered the couple with his gun drawn and forced them inside. Reginald and Stacey followed Defendant into the house and then continued down the hallway to check the other rooms while Defendant remained in the kitchen. As Reginald observed a man closing a door to one of the rooms in the house, he ran in that direction and his gun discharged, sending the bullet through the door. The man inside the room, later identified as Song Ni, was struck in the chest by Reginald's .22 caliber bullet and ultimately died from the gunshot wound. Upon entering the room, Reginald saw that Ni had been shot and then began rummaging through a night stand, where he found a black bag filled with money. Reginald took the bag, ran from the room, and joined the other two men in fleeing the victims' home.
Reginald further testified that the three men ran back to the Pacifica behind the community center and, as they drove away from the scene, Defendant pulled out a wallet, a cell phone, and about twenty one-dollar bills that he had taken from the people he had restrained in the kitchen. The men stopped at a pond outside of Farmville to split up the $5,400 that was in the bag Reginald had taken and threw the remaining items they had stolen into the water. They subsequently abandoned the Pacifica on a country road in Greene County before returning to Farmville. Bart Davis later testified that he had procured the Chrysler Pacifica for Defendant and the Atkinsons so that they could use it for a robbery in Stantonsburg.
When Reginald was arrested a few days after the killing, he agreed to be interviewed by investigators and made a statement that was substantially the same as his testimony at Defendant's trial. Reginald was confined to the Wilson County jail, where, over one year later in December of 2008, he received a letter that upset him because it threatened harm to Reginald's family should he testify against Defendant and Stacey. Reginald later learned from his attorney that the letter had been sent by Defendant, and a second similar letter was received by Reginald the following month. Special Agent Nikkola Russell with the State Bureau of Investigation testified as an expert in latent print examination that she found several fingerprints on these letters and that the latent prints belonged to Defendant.
Captain Billy Radford with the Wilson County Sheriff's Department had responded to the incident in Stantonsburg, arriving at the scene around 11:45 p.m. on 28 July 2007. After receiving the results of a canine track from another officer, Radford went to investigate the area to the rear of the victims' house. He observed fresh footprints and a spot that appeared to be damper than others on the ground behind a shed that was located behind the residence. After Radford confirmed with the canine tracker that his dog did not urinate in that area, a swab of the wet spot was taken for evidence. Expert forensic DNA analyst, Kathryn Moyse, testified that, pursuant to an analysis of the evidence sample and generation of a DNA profile obtained from the swab, the biological fluid present on the sample recovered from behind the shed came from Defendant.
In addition to that of numerous other law enforcement officers, the State also sought the testimony of Sergeant Robert Abbott, supervisor for the electronic monitoring program in the Pitt County Sheriff's Office. Abbott testified that at the time of Ni's murder, both Defendant and Stacey were participating in the Pitt County electronic monitoring program. He explained that the program, which tracks the whereabouts of an offender being monitored, requires the participant to wear an ankle bracelet and carry a personal tracking unit (PTU) with them. Abbott described the ankle bracelet and the PTU as being "married to each other," where the bracelet transmits a signal to the PTU, and the PTU is tracked by the satellite-based Global Positioning System (GPS). If these two components of the monitoring unit are separated, the tracking system registers a violation, and when the participant returns to the vicinity of the PTU, the violation clears. Abbott testified that a company called iSECUREtrac leases equipment and provides a computer program to Pitt County, which tracks the movements of the County's electronically monitored offenders. The program depicts an offender's movements by generating a map that plots points gathered from GPS signals, which identify the individual's geographic location at specific times, and contains an animation tool that illustrates his route of travel on a given date.
Prior to trial, Defendant had filed a motion in limine, arguing that, unless given by an expert pursuant to a reliability assessment, any opinion testimony as to his whereabouts on 28-29 July 2007 that was based on information acquired through the electronic monitoring program should be excluded. During a voir dire hearing conducted on the third day of trial, Defendant examined Abbott and Lorraine Johnson, an account manager for iSECUREtrac. Following their testimony, Defendant argued that the witnesses had failed to demonstrate the reliability of the GPS locating devices at issue, iSECUREtrac's program and methodology, and the electronic monitoring industry's standards. As such, Defendant's primary argument was that the criteria required to establish that an expert's proffered scientific or technical method of proof is sufficiently reliable, had not been met. The trial court ruled, however, "that these witnesses are not testifying as an expert [sic]" and allowed their testimony "to come in under the lay witness subpoena." Accordingly, Abbott used the iSECUREtrac program to illustrate to the jury Defendant's location at various times during the afternoon of 28 July 2007.
Abbott testified that at 2:36 p.m., Defendant was in Stantonsburg and then made several turns before stopping, at 2:37 p.m., for a brief period of time in the vicinity of the victims' home. Ten minutes later, Defendant was "outside of Stantonsburg returning back to Farmville." Abbott provided similar information regarding Stacey's movements during the same time frame, including the fact that Stacey arrived at the same location as Defendant, and stated his opinion that the two had been traveling together. As to Defendant's movements later that evening, Abbott explained that no location data was available for either Defendant or Stacey because both were on "cuff leave violations," which meant that they had separated themselves from and were traveling without their PTUs, and therefore there was no way to recreate a map of their movements with the program. Abbott testified that Defendant's cuff leave violation began at 7:59 p.m. on 28 July 2007 and cleared early in the morning on 29 July 2007 at 1:43 a.m.; Stacey's violation began at 8:05 p.m. and ended at 12:11 a.m. on those same dates. The State then tendered as exhibits, and the trial court admitted without objection, maps of the points locating Defendant and Stacey's travels on 28 July 2007. Relating the maps to the crime, Captain Radford returned to the stand and testified that he was familiar with the streets, intersections, and crime scene location in Stantonsburg; traced the movements of Stacey and Defendant around the town, as reported by the electronic monitoring system; and stated that the track was consistent with Reginald's testimony regarding the trip the three men had taken during the afternoon of 28 July 2007 in the course of planning a robbery for later that night.
On 27 January 2010, the jury found Defendant guilty of two counts of robbery with a dangerous weapon, first degree burglary, and first degree murder. The trial court entered judgment on Defendant's convictions and sentenced him to life imprisonment without parole plus a consecutive term of 117 to 150 months. Defendant appeals, arguing that the trial court erred by admitting the DNA lab report into evidence; allowing Abbott to testify about GPS tracking; and denying Defendant's motion to dismiss the "short form" murder indictment.
I.
The trial court denied Defendant's motion in limine, argued outside the presence of the jury, and then, during Abbott's trial testimony, admitted his opinion based on information gathered from the operation of GPS locating devices. Defendant argues that the trial court erred in allowing Abbott to testify about GPS tracking and about the information that the Pitt County GPS-based electronic monitoring system revealed regarding Defendant's whereabouts on 28 July 2007. Specifically, Defendant contends that, where Abbott was not proffered as an expert, his testimony was inadmissible as a lay opinion and could have been allowed only if Abbott were an expert-or if some other expert testified-and established the reliability of iSECUREtrac's GPS monitoring software and technology. Defendant further argues that his Sixth Amendment right to confrontation was violated by the trial court's admission of Abbott's testimony.
Initially, we note that although the trial court indicated that "[e]xception is noted and preserved in the record" following Abbott's voir dire examination and the trial court's denial of the motion, Defendant did not renew his objection or object further at any point during Abbott's trial testimony two days later. Moreover, when the State offered as exhibits the reports mapping Defendant and Stacey's routes of travel on 28 July 2007, which were compiled and generated by iSECUREtrac's technology for use by law enforcement, the trial court admitted both and published them to the jury "without objection."
"Rulings on motions in limine are preliminary in nature and subject to change at trial, depending on the evidence offered, and thus an objection to an order granting or denying the motion is insufficient to preserve for appeal the question of the admissibility of the evidence." State v. Tutt, 171 N.C. App. 518, 520, 615 S.E.2d 688, 690 (2005) (internal quotation marks and citation omitted). Rather,
"[a] party objecting to an order granting or denying a motion in limine, in order to preserve the evidentiary issue for appeal, is required to object to the evidence at the time it is offered at the trial (where the motion was denied) or attempt to introduce the evidence at the trial (where the motion was granted)."
State v. Hill, 347 N.C. 275, 293, 493 S.E.2d 264, 274 (1997) (internal quotation marks and citation omitted). Thus, "[o]n appeal the issue is not whether the granting or denying of the motion in limine was error, as that issue is not appealable, but instead whether the evidentiary rulings of the trial court, made during the trial, are error." TT Development Co. v. Southern Nat. Bank of S.C., 125 N.C. App. 600, 602-03, 481 S.E.2d 347, 349 (1997).
Where Defendant failed to object to Abbott's testimony at the time it was offered and to the reports reflecting GPS data gathered and illustrated by iSECUREtrac, he has not properly preserved his challenge to the admission of this evidence. Cf. State v. Ray, 364 N.C. 272, 277, 697 S.E.2d 319, 322 (2010) (holding the "defendant failed to preserve for appellate review the trial court's decision to admit [the challenged] evidence" where he "objected to the admission of [such] evidence . . . only during a hearing out of the jury's presence," thus "object[ing] to the State's forecast of the evidence, but . . . not then subsequently object[ing] when the evidence was `actually introduced at trial'"). Furthermore, Defendant has not argued that the trial court's admission of Abbott's testimony and the related documentary exhibits amounted to plain error, and we are thus constrained to hold that this issue is not properly before us. See State v. Oglesby, 361 N.C. 550, 554, 648 S.E.2d 819, 821 (2007) (holding a legislative amendment to N.C. Rule of Evidence 103(a)-purporting to excuse a party from renewing an objection or making an offer of proof to preserve a claim of error for appeal when a trial court "makes a definitive ruling on the record admitting or excluding evidence, either at or before trial"-unconstitutional to the extent it conflicts with the Rules of Appellate Procedure); State v. Nobles, 350 N.C. 483, 514-15, 151 S.E.2d 885, 904 (1999) (holding the defendant waived appellate review of the issue when he neither objected at trial nor "specifically and distinctly contended" in his brief that the judicial action challenged amounted to plain error, pursuant to what is now Rule 10(a)(4) of our appellate rules). Accordingly, this argument is dismissed.
We do note that even if this argument had been preserved for our review, any alleged error in the trial court's admission of Abbott's testimony was harmless. While Defendant argues that such testimony unfairly bolstered the credibility of Reginald, who provided "the only direct evidence that [Defendant] was involved" and "who had cut a deal with the [S]tate for his testimony," Reginald's testimony was entirely uncontroverted and even corroborated in part by Bart Davis, the witness who had lent Defendant and the Atkinsons the Chrysler Pacifica. Moreover, as further discussed below, Defendant's DNA was obtained from a spot on the ground outside the victims' residence shortly after the crimes occurred. Thus, this forensic evidence locates Defendant at the scene, where the GPS evidence suggested only that he had been in the vicinity earlier that day, and Defendant cannot meet his burden, under review for either plain error or prejudicial error, that the jury might have reached a different result without Abbott's testimony.
II.
Defendant argues that the trial court erred in admitting the DNA lab report into evidence in violation of his Sixth Amendment rights to confrontation and cross-examination pursuant to Melendez-Diaz v. Massachusetts, 557 U.S. ___, 174 L. Ed. 2d 314 (2009).
Forensic DNA analyst Kathryn Moyse testified that she had been working at DNA Security, Inc. in Burlington, North Carolina when the laboratory received an evidence sample, specifically "a swab of clear fluid," collected from the Stantonsburg crime scene for testing. She referred to the team of analysts when she stated that "we" obtained a partial DNA profile from the evidence and then offered her opinion that the likelihood of obtaining this partial profile, which was consistent with the DNA profile obtained from Defendant, from a randomly selected individual in the general population was less than one in 382 trillion. The State then submitted an exhibit that Moyse described as "a copy of the report that was given to the client in this case after we had finished all the testing," and the DNA report was admitted into evidence without objection. Moyse believed that the evidence sample originated from Defendant, explaining:
It's my opinion — because that profile obtained from that evidence swab, while it was a partial profile, it still had that frequency of less than one in 382 trillion in the general world population and that partial profile was consistent with the profile obtained from Darryl Wilkes. So it is my opinion that the biological fluid present on that sample had to come from Darryl Wilkes.
On cross-examination, Defendant sought to establish that Moyse did not produce the report, but the analyst clarified that she had been working as part of a team and her partner actually signed the lab's report. When defense counsel asked, "Now you didn't do the DNA testing in this case; did you?," Moyse explained:
I performed parts of it. At the time there was [sic] two of us analysts employed at the laboratory and we worked very much as a team. There's [sic] a lot of steps that go into developing a DNA profile. I would do some steps. She would do other steps and all of that is tracked throughout our case file. The other analyst is the one who did sign the report . . .; however I, as a second analyst, did some of the steps in the analysis as well as a full technical and administrative review of the entire case file.
Still, Defendant argues that Moyse "used the word `we' rather than `I' because she did not produce the report" and, writes in his brief that, "anticipat[ing] that the [S]tate would not call the report's author as a witness," Defendant had filed a motion to exclude Moyse from testifying to her opinion regarding the DNA results and the State from offering the DNA report signed by another analyst. He continues that "[t]he trial court conducted a hearing on the motion and denied it." Defendant, however, has failed to preserve this contention of error, and we must likewise dismiss his second issue. Not only did Defendant fail to object at any point during Moyse's testimony or when the State offered the DNA report (as discussed above), but he also failed to argue for exclusion of the DNA evidence on confrontation grounds during said hearing.
While Defendant did file a pre-trial motion objecting to Moyse's testimony, the record contains no ruling on that motion. Rather, the transcript reveals that Defendant argued for exclusion of the DNA evidence on a different motion, which was premised on the grounds that the State's testing had consumed essentially all of the biological material on the swab submitted as an evidence sample and, therefore, destroyed potentially exculpatory evidence that might have been obtained through independent testing. The trial court then denied the motion "concerning the exclusion of the DNA based on loss and destruction of exculpatory evidence." Moyse then proceeded to testify as to her opinion about the source of the DNA contained on the swab, and the State offered the lab report into evidence without any objection by Defendant. By failing to obtain a ruling on the issue he now seeks to argue-that based on the constitutional question of whether admission of the testimonial DNA report violated his Sixth Amendment confrontation rights-Defendant has not preserved this issue for review. Nor has he argued that admission of Moyse's testimony or the challenged report was plain error, and we dismiss Defendant's second issue as well.
III.
Defendant's final argument is that the "short form" murder indictment was constitutionally and jurisdictionally deficient because it failed to allege every element of first degree murder.
While "[c] onstitutional questions not raised and passed upon in the trial court will not ordinarily be considered on appeal[,] . . . where an indictment is alleged to be invalid on its face, thereby depriving the trial court of its jurisdiction, a challenge to that indictment may be made at any time," even for the first time on appeal. State v. Braxton, 352 N.C. 158, 173, 531 S.E.2d 428, 436-37 (2000) (internal quotation marks and citations omitted). However, our Supreme Court "has consistently and unequivocally upheld short-form murder indictments as valid under both the United States and the North Carolina Constitutions." State v. Hunt, 357 N.C. 257, 274, 528 S.E.2d 593, 604 (2003) (citing Braxton, 352 N.C. at 173-75, 531 S.E.2d at 437; State v. Wallace, 351 N.C. 481, 503-08, 528 S.E.2d 326, 341-43 (2000); State v. Kilpatrick, 343 N.C. 466, 472, 471 S.E.2d 624, 628 (1996); State v. Avery, 315 N.C. 1, 12-14, 337 S.E.2d 786, 792 (1985)). Where the indictment in this case complied with the short-form indictment authorized by N.C. Gen. Stat. § 15-144 and, as Defendant concedes, his contention has been rejected by our Supreme Court, we overrule this argument.
In light of the foregoing, we conclude that the trial court committed no error in entering judgment upon the jury's verdict of guilty for first degree murder, as supported by the short-form indictment, and dismiss the remainder of Defendant's appeal for failure to preserve the issues for appellate review.
No error in part; Dismissed in part.
Judges McGEE and BRYANT concur.
Report per Rule 30(e).