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TRANSCRIPT
NO. COA 09-1348EIGHTH JUDICIAL
DISTRICT
NORTH CAROLINA COURT OF APPEALS
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STATE OF NORTH CAROLINA ) 06 CrS 56066-68) Wayne County
v. ))
RODERICK MILES DAVIS, JR. )
*****************************************************************************BRIEF FOR APPELLANT
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Reita PendryCounsel for AppellantNC Bar No. 5789Post Office Box 5432Charlotte, NC 28299704-532-6232704-537-7536 [email protected]
INDEXPage
TABLE OF CASES AND AUTHORITIES
iv
QUESTIONS PRESENTED
vi
STATEMENT OF THE CASE
1
STATEMENT OF GROUNDS FOR APPELLATE REVIEW
2
STATEMENT OF FACTS
2
ARGUMENT
I. THE TRIAL COURT ERRED IN ADMITTINGTHE TESTIMONY OF CANDY YOUNG, BECAUSE SHE WAS INCOMPETENT TOTESTIFY.
18
II. THE TRIAL COURT ERRED IN ADMITTINGTHE OUT OF COURT STATEMENT OFCANDY YOUNG AS A PRIOR RECORDEDSTATEMENT BECAUSE THE STATE DIDNOT SATISFY THE REQUIREMENTS FORADMISSION ON THAT BASIS, AND THESTATEMENT WAS HEARSAY.
23
III. THE TRIAL COURT ERRED IN DENYINGDAVIS’ MOTION TO DISMISS COUNTSONE AND TWO, AS THE STATE INTRODUCED INSUFFICIENT EVIDENCE TO PERMIT AJURY TO FIND GUILT BEYOND A REASONABLE DOUBT.
26
-i-
IV. THE TRIAL COURT ERRED IN DENYING
DAVIS’ MOTION TO DISMISS COUNTSSEVEN THROUGH FIFTEEN, AS THE STATE INTRODUCED INSUFFICIENT EVIDENCE TO PERMIT A JURY TO FIND GUILT BEYOND A REASONABLE DOUBT.
29
V. THE TRIAL COURT ERRED IN DENYINGDAVIS’ MOTION TO DISMISS COUNTSSEVENTEEN AND NINETEEN, AS THE STATE INTRODUCED INSUFFICIENT EVIDENCE TO PERMIT A JURY TO FIND
GUILT BEYOND A REASONABLE DOUBT.
29
VI. THE TRIAL COURT PLAINLY ERRED INPERMITTING THE STATE’S FORENSIC PATHOLOGIST TO TESTIFY ABOUT ANAUTOPSY WHICH SHE DID NOT PERFORM,IN VIOLATION OF DAVIS’ RIGHTS UNDERTHE SIXTH AMENDMENT TO THE UNITEDSTATES CONSTITUTION.
30
VII. THE TRIAL COURT PLAINLY ERRED INADMITTING THE AUTOPSY REPORTPREPARED BY A NON-TESTIFYING FORENSIC PATHOLOGIST, IN VIOLATION OF DAVIS’ RIGHTS UNDERTHE SIXTH AMENDMENT TO THE UNITEDSTATES CONSTITUTION.
33
VIII. THE TRIAL COURT PLAINLY ERRED INADMITTING AUTOPSY PHOTOGRAPHSTAKEN BY A NON-TESTIFYING FORENSIC PATHOLOGIST, IN
VIOLATION OF DAVIS’ RIGHTS UNDERTHE SIXTH AMENDMENT TO THE UNITEDSTATES CONSTITUTION.
34-ii-
IX. THE TRIAL COURT PLAINLY ERRED INADMITTING THE AUTOPSY DIAGRAMPREPARED BY A NON-TESTIFYING FORENSIC PATHOLOGIST, IN VIOLATION OF DAVIS’ RIGHTS UNDERTHE SIXTH AMENDMENT TO THE UNITEDSTATES CONSTITUTION.
34
X. THE TRIAL COURT ERRED IN DENYING DAVIS’ MOTION FOR MISTRIAL AFTERAN OUTBURST IN THE COURTROOM BYONE DECEDENT’S RELATIVE DURINGDAVIS’ CLOSING ARGUMENT.
35
CONCLUSION
37
CERTIFICATE OF WORD COUNT
38
CERTIFICATE OF FILING AND SERVICE
38
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TABLE OF AUTHORITIESPage
Cases
Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354 (2004)
Melendez-Diaz v. Massachusetts, 129 S.Ct. 2527 (2009)
31
In re Will of Leonard, 82 N.C. app. 646, 347 S.E. 2d 478 (1986)
21
State v. Anderson, 175 N.C. Ap. 444, 624 S.E. 2d 393 (2006)
23
State v. Bell, 359 N.C. 1, 603 S.E. 2d 93 (2004) 26
State v. Chapman, 359 N.C. 328, 611 S.E. 2d 794 (2005)
26
State v. Dais, 22 N.C. App. 379, 26 S.E. 2d 759 (1974)
35
State v. Ford, 136 N.C. App. 634, 525 S.E. 2d 218 (2000)
21
State v. Galindo, 683 S.E. 2d 785 (N.C. App., 2009) 31
State v. Kivett, 321 N.C. 404, 364 S.E. 2d 404 (1988)
21
State v. Legett, 135 N.C. App. 168, 519 S.E. 2d 328 (1999) 24
State v. Locklear, 363 N.C. 438, 681 S.E. 2d 298 (2009) 31
State v. Mobley, 2009 N.C. App. LEXIS 1713 (Nov. 3 2009) 31
State v. Moore, 335 N.C. 567, 440 S.E. 2d 797 (1994) 36
State v. Powell, 340 N.C. 674, 459 S.E. 2d 219 (1995)
36
State v. Pugh, 138 N.C. App. 60, 530 S.E. 2d 328 (2000)
18
-iv-
State v. Watson, 338 N.C. 168, 449 S.E. 2d 694 (1994) 27
Statutes
N.C.G.S. 8C-1, North Carolina Rule of Evidence 601
18
N.C.G.S. 8C-1, North Carolina Rule of Evidence 803(5) 24
N.C.G.S. 15A-1061
35
Other Authorities
Rule 2, North Carolina Rules of Appellate Procedure 32
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NO. COA 09-1348 EIGHTH JUDICIAL DISTRICT
NORTH CAROLINA COURT OF APPEALS
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STATE OF NORTH CAROLINA ) 06 CrS 56066-68) Wayne County
v. ))
RODERICK MILES DAVIS, JR. )
******************************************************************
QUESTIONS PRESENTED
I. DID THE TRIAL COURT ERR IN ADMITTINGTHE TESTIMONY OF CANDY YOUNG, BECAUSE SHE WAS INCOMPETENT TOTESTIFY?
II. DID THE TRIAL COURT ERR IN ADMITTINGTHE OUT OF COURT STATEMENT OFCANDY YOUNG AS A PRIOR RECORDEDSTATEMENT, WHEN THE STATE DIDNOT SATISFY THE REQUIREMENTS FORADMISSION ON THAT BASIS, AND THESTATEMENT WAS HEARSAY?
III. DID THE TRIAL COURT ERR IN DENYINGDAVIS’ MOTION TO DISMISS COUNTSONE AND TWO, WHEN THE STATE INTRODUCED INSUFFICIENT EVIDENCE TO PERMIT AJURY TO FIND GUILT BEYOND A REASONABLE DOUBT?
-vi-
IV. DID THE TRIAL COURT ERR IN DENYING
DAVIS’ MOTION TO DISMISS COUNTSSEVEN THROUGH FIFTEEN, WHEN THE STATE INTRODUCED INSUFFICIENT EVIDENCE TO PERMIT A JURY TO FIND GUILT BEYOND A REASONABLE DOUBT?
V. DID THE TRIAL COURT ERR IN DENYINGDAVIS’ MOTION TO DISMISS COUNTSSEVENTEEN AND NINETEEN, WHEN THE STATE INTRODUCED INSUFFICIENT EVIDENCE TO PERMIT A JURY TO FIND GUILT BEYOND A REASONABLE DOUBT?
VI. DID THE TRIAL COURT PLAINLY ERR INPERMITTING THE STATE’S FORENSIC PATHOLOGIST TO TESTIFY ABOUT ANAUTOPSY WHICH SHE DID NOT PERFORM,IN VIOLATION OF DAVIS’ RIGHTS UNDERTHE SIXTH AMENDMENT TO THE UNITEDSTATES CONSTITUTION?
VII. DID THE TRIAL COURT PLAINLY ERR INADMITTING THE AUTOPSY REPORTPREPARED BY A NON-TESTIFYING FORENSIC PATHOLOGIST, IN VIOLATION OF DAVIS’ RIGHTS UNDERTHE SIXTH AMENDMENT TO THE UNITEDSTATES CONSTITUTION?
VIII. DID THE TRIAL COURT PLAINLY ERR INADMITTING AUTOPSY PHOTOGRAPHS
TAKEN BY A NON-TESTIFYING
-vii-
FORENSIC PATHOLOGIST, IN VIOLATION OF DAVIS’ RIGHTS UNDERTHE SIXTH AMENDMENT TO THE UNITEDSTATES CONSTITUTION?
IX. DID THE TRIAL COURT PLAINLY ERR INADMITTING THE AUTOPSY DIAGRAMPREPARED BY A NON-TESTIFYING FORENSIC PATHOLOGIST, IN VIOLATION OF DAVIS’ RIGHTS UNDERTHE SIXTH AMENDMENT TO THE UNITEDSTATES CONSTITUTION?
X. DID THE TRIAL COURT ERR IN DENYING DAVIS’ MOTION FOR MISTRIAL AFTERAN OUTBURST IN THE COURTROOM BYONE DECEDENT’S RELATIVE DURINGDAVIS’ CLOSING ARGUMENT?
-viii-
STATEMENT OF THE CASE
This cause came on for trial by jury at the March 16, 2009 Session of the
Wayne County Superior Court, the Honorable Paul G. Gessner presiding.
Roderick Miles Davis, Jr. was charged in a nineteen-count indictment with two
counts of first degree murder, in violation of NCGS 14-17 (06 CrS 56066-67)
(counts one and two); attempted first degree murder, in violation of NCGS 14-17
(06 CrS 56068) (count 5); two counts of assault with a deadly weapon with intent to
kill inflicting serious injury, in violation of NCGS 14-32(a) (06 CrS 56068) (counts
4 and 6); nine counts of discharging a firearm into a conveyance in motion, in
violation of NCGS 14-34 (06 CrS 56068) (counts 7-15); one count of discharging a
firearm into a conveyance in motion, and inflicting serious bodily injury, in
violation of NCGS 14-34 (06 CrS 56068) (count 16); and three counts of
discharging a firearm into an occupied dwelling, in violation of NCGS 14-34 (06
CrS 56068) (counts 17 - 19). At the close of the State’s case in chief, the trial court
dismissed counts 3, 4, 5, 6, 16 and 18. At the close of all the evidence, the State
moved to dismiss count 11 and the motion was granted. On March 24, 2009, the
jury returned verdicts of guilty on the remaining counts. Judgment was arrested on
counts 7-10 and 12-16, predicate felonies for the convictions of felony murder
(counts one and two). On that same date, Mr. Davis was sentenced to consecutive
terms of imprisonment of life without parole on counts one and two, and to terms of
imprisonment of 64 to 86 months on counts 17 and 19, to run consecutive to each
other but concurrent to the life sentences. Notice of appeal was given in open court
on March 24, 2009.
STATEMENT OF GROUNDS FOR APPELLATE REVIEW
Defendant appeals pursuant to N.C. Gen. Stat. 7A-27(b) from a final
judgment of the Wayne County Superior Court.
STATEMENT OF FACTS
State’s Evidence.
Kim Davis saw Roderick Davis (no relation) on August 21, 2006, around
6:00 or 6:30 p.m., at her liquor house in Goldsboro, North Carolina. He was in his
work clothes. T. 202-03.1 Davis lived on Slaughter Street, about a block away. T.
204. He had a drink, left and returned about 30 minutes later, wearing just pants
and a black and white bandana around his neck. He had a rifle, similar to State’s
Exhibit 1A, hanging on his shoulder. He had a couple shots of liquor. T. 204-05,
210. She asked him about the way he was dressed, and he said he was at war. T.
207. About an hour after seeing Davis, she learned that two men had been shot on
1“T” refers to the consecutively-paginated trial transcript.
Olivia Lane, near her home. T. 208.
Candy Young was fourteen years old in August, 2006. T. 217-18. Young
was close to Jaron Russell. T. 219-20.2 On the evening of August 21, 2006, she
saw Russell inside a car, near the liquor house. She saw nothing in the car. T. 220.
After a voir dire examination, Young acknowledged that she had given a
signed statement to police on September 6, 2006. The statement was identified as
State’s Exhibit 2. T. 250-51. According to the statement: Young saw Jaron
Russell on the night of the shootings, in the front seat of Davis’ car, there were guns
in the car, and Russell had a gun on his lap, T. 251-53; Davis was driving the car
and Russell was in the passenger seat ; three other men were in the back seat of the
car; just after Young saw guns in the car, she heard the shootings on Olivia Street;
she saw guns hanging out of Davis’ blue Cadillac, T. 253-57; she saw gunfire
coming from the blue Cadillac; she did not see sparks coming from Slick’s [James
Croom] car. T. 289.3
Thomas Collins was a police officer for the Goldsboro Police Department
(GPD). T. 272. On August 21, 2006, he responded to a shooting on Oliver Lane.
T. 273. When he arrived, a wrecked silver Stratus was on the grass between a tree
2Russell was charged as a co-defendant with Davis. The State filed a pretrial motion to join Russell and Davis for trial, but announced at the start of Davis’ trial that it would not proceed against Russell at that time. T. 4.
3Young’s testimony, and the admission of the statement, are addressed in Arguments II and III below.
and bushes. T. 273. The driver had a gunshot wound to the head and was not
responsive. The passenger had a gunshot wound to the head, but was still
breathing. Collins started chest compressions, and when the ambulance arrived,
assisted in transporting the passenger to the hospital. T. 274-75.
Chris Outlaw was an officer with the GPD. T. 282. On August 20, 2006, he
responded to a call that a man had been shot in the 600 block of Slaughter Street.
T. 283. When he arrived, he saw Davis holding a SKS assault rifle, State’s Exhibit
2, and screaming that his boy had been shot. T. 283-84, 288-89. Davis handed his
rifle to Outlaw, got into a bluish-gray Cadillac and sped away. T. 284, 292.
Outlaw remained on the scene. Jaron Russell was there, and identified the victim to
Outlaw as Mileek Oates. T. 285. Outlaw secured Davis’ gun in the trunk of his
car. T. 286. The gun was loaded, and had a loaded ammunition clip, but had not
been fired. T. 287. Davis’ father came to the scene and identified the rifle as his.
Outlaw returned it to Davis’ father after recording the serial number. T. 287-88.
John Rea, formerly with the State Bureau of investigation (SBI) crime lab,
recovered a SKS-type rifle from Davis’ parents’ house. T. 307-08. Davis’ mother
and uncle showed him where the weapon was located, between a barn and fence,
under some debris, wrapped in plastic. T. 309, 313. The serial number of State’s
Exhibit 1A matches the rifle he recovered. T. 313-14.
Dr. Maryanne Gafney-Kraft is a forensic pathologist and an associate chief
medical examiner for the State of North Carolina. T. 320. She performed an
autopsy on Croom. T. 324. She found four gunshot wounds, one in the neck,
another in the lip, one in the left upper arm and one in the left thigh. T. 325-26. The
bullet to the neck hit the carotid artery, fractured the skull, and caused brain injury.
T. 326-27. Projectiles were recovered from the body. T. 327. Croom died from
multiple gunshot wounds. T. 335. The trajectory of all projectiles into the body
was left to right. T. 338-39.
From the report of another forensic pathologist, Dr. Thomas Clark, Gaffney-
Kraft determined that Gerald died of a single gunshot wound to the head, entering
from left to right. T. 343, 347. Neither Croom or Gerald were shot from close
range. T. 366.4
Pat Matthews was a special agent with the SBI. On August 21, 2006,
Matthews was requested by the GPD to assist in crime scene searches. T. 380-81.
She removed a victim from a car parked in the grassy area just off Oliver Lane, and
wrapped his hands in bags before Emergency Medical Services transported him to
the morgue. T. 381-82. She searched the car, collected evidence from it, and had
it impounded. T. 382. Several apartments on Olivia Lane were struck by bullets.
T. 398, 416-19.
4Gaffney-Kraft’s testimony about the autopsy of Gerald, and the cause of death, is discussed in Argument IV below.
Matthews found shell casings between houses at 801 and 803 Olivia Lane.
T. 415. She recovered bullet fragments from inside an apartment. T. 415, 466, 469.
A .40 caliber shell casing was found in the street where the shooting took place. T.
475. She found 9 gunshot hits to the victims’ car. T. 504-06. One gunshot
originated from inside the car, going out. T. 509. A .45 caliber shell casing was
found in the back seat; the shot originated from inside the car. A .45 caliber semi-
automatic pistol with a magazine was removed from the car. T. 509, 519-20.
Catherine Braswell lived on Olivia Lane. T. 455. On August 21, 2006,
sometime after 5:00 p.m., she heard shooting. Bullets hit her television and the
ceiling of her apartment. T. 456-57.
Mike Spruill lived on Olivia Lane. On August 21, 2006, he heard shooting
and got down on the floor. Bullets came through his doors and a bullet hit the air
conditioner of his apartment. T. 459-60.
Pamela Kornegay, lived at the corner of Hugh Street and Olivia Lane. T.
462. On August 21, 2006, at about 8:00 p.m. she was lying on a chair when bullets
came into the apartment she shared with her daughters. Bullets came through the
window, through the drapes, through the lampshade and narrowly missed her chest.
T. 463. She felt an impact, like a burn. T. 464.
Neal Morin, a firearms analyst with the SBI, identified fifteen cartridge cases
which were fired from State’s Exhibit 1A, the SKS rifle. T. 567, 575. The rifle was
a semi-automatic, which ejected cartridge cases left to right, no further away than
twelve feet. T. 571, 573. The rifle was fired from a corner, because the projectiles
were all toward Olivia Lane. He could not tell the position of the shooter or
whether the bullets ricocheted. T. 574-75.
Two shell casings were found on the body of one of the victims. The casings
matched the .45 caliber pistol recovered from the car. A cartridge found in the
backseat matched the pistol. The pistol had six unspent bullets. T. 575-78.
He matched a fragment found inside an apartment on Hugh Street to the SKS
rifle. T. 580. The projectiles recovered from Croom’s body at autopsy were fired
from the rifle. T. 581.
One of the .40 caliber shell casings found on Olivia Lane matched a .40
caliber fired cartridge case recovered from Davis’ residence on Slaughter Street on
August 20, 2006, when Maleek Oates was shot. T. 583-87, 595-96.
Dale Foster of the GPD Investigation Division spoke with Davis on August
23, 2006, when Davis came to the station and asked to speak with Foster. T. 599.
Davis cried, and said, “I shot those two guys.” Davis told him where the gun was
located. Davis agreed to give a signed statement. T. 599-600, 602, 606. Foster
prepared a statement, which Davis signed. T. 602. Davis’ statement was admitted
into evidence as State’s Exhibit 283. After Davis gave the statement, Foster told
Davis he was free to leave, and that he did not have a warrant for his arrest. Davis
told Foster to go ahead and get the warrants, and he remained at the police station.
T. 607.
The Defense Evidence.
Roderick Miles Davis, Jr. testified that he was 22 years old in August, 2006.
T. 638. He suffered a learning disability, which made him slow to comprehend,
and he had dyslexia. T. 638. He shot into the car that had the two victims in it. T.
644. He bought a SKS assault rifle on August 18, 2006. He got two boxes of
ammunition with the gun, and a banana clip. T. 645.
Davis was employed for three years at Seymour Johnson Air Force Base, as a
food service worker. He lived in a home inherited by his mother. T. 648-49. Davis
had no prior criminal record. T. 650.
Davis had known Croom and Geald since they were children, and had never
had any problems with them until shortly before the shooting. T. 651-52.
Early on the morning of August 19, 2006, Jamie Oates and some others came to
Davis’ house. T. 656-57. As Jamie was telling Davis about a fight, two cars of
people came by and started shooting. T. 658. Jamie told Davis that Croom and
Gerald were known as the Jungle Boys. T. 658-59. Davis tired back, four rounds.
T. 659. He was scared. T. 660. After the shooting, police cars drove by, but did
not stop. T. 661. Davis was afraid to tell the police who did the shooting. He
knew the Jungle Boys shot at people. T. 661-62.
Davis worked from 5:00 a.m. to 2:00 p.m. He did not tell anyone what
happened. T. 666-67. Davis thought the shooting happened because Jamie Oates
had been in a fight with one of the Jungle Boys. T. 667.
When Davis got home from work, Jamie came to his house. T. 668. As
Davis was talking to Oates, he saw Gerald in one of the cars that had fired shots
earlier in the day. Gerald fired about five rounds into Davis’ back yard, and then
drove away. T. 668, 674-75. Davis did not tell the police about this shooting
because he feared retaliation. T. 675-76.
Davis enlisted a friend to talk to Gerald or Croom and smooth things over.
T. 677-78. Later that day, men wearing red flags on their heads stopped in front of
Davis’ house. T. 678. The red flags were to show that the men were affiliated with
the Bloods gang, of which the Jungle Boys are part. T. 678. Davis was scared and
upset. T. 679.
The next day, Sunday, Davis went to work at 5:00 a.m. and got off work at
2:00 p.m. T. 680. On the way home, Davis stopped to talk to Maleek Oates, who is
Jamie’s brother. T. 681. Davis then went home, and while he was in the back yard,
Maleek Oates pulled up on his scooter, parked in the yard, and walked toward
Davis’ front yard. Shots rang out, then a car sped off. Davis had his gun, because
of the shootings that had happened and because he was afraid. T. 681-83. Oates
told Davis that “Slick” shot him. Davis called 911 and told them there was a drive-
by shooting at 621 Slaughter Street. He bandaged Oates’ foot, put Oates in his car
and drove him to the hospital. T. 683-84. Before he left, a police officer came,
Davis told him his boy5 had been shot and gave the officer his gun. T. 685.
When Davis returned to his home, family members and friends were in his
yard. T. 687-88. Davis’ father returned the rifle to Davis. T. 686-88. Davis saw a
Suburban with four men with red flags in it. He asked his family and friends to
leave, and they did. He remained at his house but then was too scared to stay alone,
so he went to his mother’s house. T. 688-89. As he got in his car, Croom pulled up
in a car and shot two times toward Davis. One bullet went through the wheel to the
door of the car. Defense Exhibit 5 is a photograph of the car with the bullet hole in
the door. T. 691. After Croom shot at him, Davis went to his mother’s house at
407 Banks Avenue and stayed the night. He was a nervous wreck, scared to death.
T. 695.
Davis woke for work late, and called his supervisor. When he got to work,
he told her what was going on and she suggested he speak with someone in Human
Resources. He did. He broke down when he was talking about what had happened.
T. 696. When he went on a break, his friend who was to mediate said he had talked
to Croom and Gerald’s brother, who said their problems were with the Oates boys,
not Davis. That did not relieve Davis’ anxiety, because his friend talked to them on
5Davis used the term “boy” to mean home boy or friend. T. 691.
Saturday, and on Sunday, they shot at Davis again. T. 699-701.
Davis left work at 2:00 that day and went to his mother’s house. He was
scared to talk about what was going on; he did not want the police involved. T.
701-02.
The next day, Monday, Davis went to his home, where a friend, Jerome
Russell, stopped by. Davis went to the store on Slaughter Street. Two men warned
him that the boys had been riding through all day and that he should be careful.
Davis had his gun, because he was being shot at every day. T. 703-04. Davis went
home, and he and Russell stayed in his back yard for a while. Some other friends
came to his house. Davis and one of his friends walked to the friend’s house, where
Davis drank a beer and smoked some marijuana. T. 706-08. When Davis returned
to his home, his friends were still there. T. 708. Davis went to Ms. Davis’ liquor
house, where he would go about every other day after work. This time he was
shirtless. T. 708. Russell stayed in the front seat of Davis’ car. Lamonte Helms,
Clavelias Johnson and Nole Brown were in the back seat. They had been in Davis’
back yard. Davis had his gun with him, but did not take it into the liquor house. T.
710-11. Davis told Ms. Davis that he was at war, meaning that he was being shot
at, not that he was going after people. T. 712.
At about 7:00 p.m. on Monday, he and his friends were headed to Davis’
house when Davis turned on Slaughter Street and noticed a Stratus at a stop sign.
T. 713-15. Someone in Davis’ car told him that Croom was driving the Stratus.
Davis saw the car slow down so he sped up and headed home. He thought the
people in the Stratus were going to shoot and he was very afraid. T. 714-16. As
Davis pulled back in his yard, he heard a car and saw that Croom was driving.
Davis was scared, and pulled his car all the way into his back yard. T. 717-18. He
was wearing his rifle, with the clip, and took off running out of the yard. Everyone
from the car also took off running. T. 718-19. Davis had left his keys in the car’s
ignition, and his cell phone on the ground. He did not stop to get them, because he
was scared to death. T. 720.
Davis ended up on the corner of Hugh and Crawford Streets, between two
homes at 801 and 803. T. 721, 724. He looked up and saw Gerald and Croom in
the Stratus at the stop sign on Crawford Street. T. 725. Croom was driving, and
when he saw Davis, he made a left turn with his pistol drawn. T. 726. The Stratus
was going about 5 miles per hour, and Croom’s window was partially down. Davis
raised his gun and started shooting. T. 726. Davis saw Croom pointing a gun at
him as soon as the Stratus made a turn, and he thought Croom fired at him. T. 784.
Davis fired at the Stratus because he thought Croom was going to kill him.
Croom had been shooting at him constantly. Croom shot Maleek Oates the day
before. He shot at Davis, and missed by inches. T. 727. Davis could not recall
how many times he fired at the car. T. 728. When the car came to a complete stop,
Davis ran to his house. He threw the gun in the back seat of his car, and drove off.
T. 729. He did not go home after the shooting because he was afraid the people in
the car would come and shoot him. He did not know if he hit anyone. T. 731-32.
He went to a hotel because he feared the Bloods would come looking for him. T.
732. He watched the news and learned that the men were dead. T. 733. He did not
call police because he was afraid he would get locked up, and also because he was
told that someone took a gun from the driver of the car and he did not know what
was going on. T. 734. Although he was miserable that he had shot the men, he felt
it was justified because they were trying to kill him. T. 734-35. He hid the gun
beside his father’s barn and covered it with leaves. T. 736-37.
Two days later, he told his mother what happened. She and Davis told his
uncle, and they all went to the police station so Davis could turn himself in. T. 737-
738. He talked to Investigator Foster and the station. He gave a signed statement.
T. 739-41.
William Battle was sitting on a porch talking to an elderly man for whom he
was a caregiver when the shooting happened in August 2006 on Olivia Lane. T.
793, 798. A shot hit near his door, he pushed the elderly man inside and called 911.
He saw the car on Hugh Street, by a tree. As he was approaching the car, Battle
saw someone take a weapon from the car and ride away on a bike. He told the
police what happened. T. 796-97.
Anna Edmundson was formerly the Human Resources officer at Seymour
Johnson Air Force base. T. 799-800. Sometime around August 21, 2006, she had a
conversation with Davis. T. 800-01. He came to her office, started crying and then
told her that guys were after him, that they were trying to kill him and his two sons.
He told her about the guys shooting at his house and his car. He talked about the
gangs in the neighborhood wearing red bandanas. He said on Sunday, his buddy
got shot and he had to pick him up and run with him. T. 804-05. He was scared
and shaking. She talked to him for about two hours. He said he tried hard to get
out of the life he was living. He tried to join the Army but could not pass the test.
T. 805. He said he’d rather go to prison than have his sons killed or hurt. T, 804,
806.
Gwendolyn Olivia Arnold worked with Davis two and a half years. He was a
good worker and a truthful person. T. 811-12. On the morning of August 21, 2006,
Davis was upset at work and she sent him to Ms. Edmundson. T. 812.
Jodie Davis lived at 407 Banks Avenue. Ricky Davis is her son. T. 814. He
has dyslexia and has a problem receiving information correctly. T. 816. He
worked regularly, since age 15, and often had to walk to work when his car was
broken down. T. 816, 820. Davis stayed with her the night of the Oates shooting.
She next saw him Wednesday after the shooting. T. 823. He fell apart and told her
what happened. Her brother, Walter Collins, was home and Davis told him what
happened. T. 825 He said he wanted to go turn himself in and that is what he did.
T. 825-26.
Pastor Louis Lee visited Davis in the jail. Davis and his son used to attend
his church about once a month. Davis was always honest with him. T. 829-30.
Eddie Baker is Davis’ great uncle. Davis has always been honest with him.
T. 831-32
Rebuttal Evidence.
Sgt. T. Cox of the Goldsboro Police Department is Davis’ aunt. T. 836. On
August 24, 2006, she assisted In collecting a .40 caliber bullet and two SKS rounds
from the driveway at 621 Slaughter Street, next door to where Davis was living. T.
837-38. She was not assigned to investigate the shooting of Maleek Oates. T. 838-
39. She got a call from that someone had found shell casings at 623 Slaughter
Street. She was in the area, so she went by. She called her supervisor, who told her
to go ahead and collect the evidence and bring it to the police department. T. 839.
She told her supervisor she was Davis’ aunt. T. 842.
Davis did not ask her to help him or report that he was having trouble with
people. She learned that Oates had been shot near Davis’ house. She told Davis’
mother about the shooting. T. 840. Cox’s husband is Davis’ mother’s brother. T.
844. Her husband told his sister to have Davis call him. T. 841.
Sgt. Warren Baker is an officer at the Wayne County Sheriif’‘s Office
Detention Center, where Davis was confined. T. 843-44. On April 17, 2008.
Davis told Baker about the events of August 21, 2006. T. 845. Davis said he was
not in a gang, but the people coming around to see him were. Davis said he did
what he had to do to protect himself and his family. He said he got a gun and went
and took them out. He said he had two bodies on him. He asked, “Isn’t that self
defense?” Davis said, “I guess the car was coming around because I took out their
OG (original gangster, per Baker).” T. 846. Davis never said anything about
Croom doing anything to him. T. 847.
Davis did tell Baker that a green car came to his house several times, with
two people with red bandanas over their faces. He said he knew they were Bloods
and were from The Jungle. Davis said he knew people from the Jungle were crazy
and he had to defend himself. T. 848. Davis said the people came around looking
for someone else. He said they were coming around to his house and shooting up
his house. T. 848-49.
Pat Matthews (recalled) is an SBI agent. When she first arrived on the scene
and found Crooms in the car, she put paper bags on his hands and taped them at his
wrist. T. 853-54. She bagged Croom’s hands when he was on the stretcher. He
had been covered with a sheet prior to her arrival. T. 855. She had to uncover him.
Croom was lifted out and put on a gurney and then she bagged his hands, he was
put in a body bag, which was sealed and secured. T. 856.
Elizabeth Patel is a forensic chemist with the SBI. T. 859. She found no
particles of gunshot residue on Crooms. She found elevated levels of barium and
antimony, consistent with his being in a car where a weapon was fired. If he had
fired a gun, it might or might not be possible to find lead on his fingers. T. 862-65.
She could not say whether Crooms fired a gun. She did find particles characteristic
of gunshot residue from adhesive lifts collected from the front and rear doors of the
Stratus car. T. 867-68.
ARGUMENT
I. THE TRIAL COURT ERRED IN ADMITTINGTHE TESTIMONY OF CANDY YOUNG, BECAUSE SHE WAS INCOMPETENT TOTESTIFY.
Assignment of Error 1, R. 108.
Standard of Review.
A determination regarding the competency of a witness rests in the sound
discretion of the trial court and will be overturned only for abuse of discretion.
State v. Pugh, 138 N.C. App. 60, 64, 530 S.E. 2d 328 (2000).
Analysis.
Rule 601 of the North Carolina Rules of Evidence, N.C.G.S. 8C1, provides in
relevant part as follows:
....(b) Disqualification of witness in general. – A person is disqualified to testify as a witness when the court determines that he is (1) incapable of expressing
himself concerning the matter as to be understood, either directly or through interpretation by one who can understand him, or (2) incapable of understanding the duty of a witness to tell the truth....
Candy Young was called as a witness for the State. T. 217. When she was
asked by the prosecutor whether she saw Jaron Russell on August 21, 2006 in a car,
near the liquor house, she responded that she did. T. 221. When the prosecutor
inquired whether she saw something in the car, she responded that she did not. T.
219-22. The prosecutor then asked her whether she had answered differently in a
conference with him earlier that day. T. 222. Upon defense objection, a discussion
was had outside the presence of the jury, and the witness was examined on voir
dire. T. 229 et seq. During the voir dire, Young testified that she did not want to
testify because she had been threatened. T. 232. She then said she did not see
anything in the car with Russell, and that she had not said earlier that morning that
she did see something in the car. T. 230-31. The prosecutor showed Young a
document marked as Exhibit 2. She verified that the signatures on the document
were hers, and that an officer had talked to her and produced the document. T. 235-
36. Young said she did not remember telling the officer that when she saw Russell
in the car, he had a gun on his lap and that she saw guns in the car. T. 237-39. She
said she had a bad memory, but that since the document bore her handwriting, she
must have told the officer that. T. 2238. She said her recall was about ten to fifteen
seconds. Id. Young also said she could not recall what she told the prosecutor
when she talked to him earlier. T. 238.
Defense counsel argued that the witness was not competent, citing her
memory problems and the “validity of her testimony.” T. 239-40. The court found
that the witness’s responses were somewhat inconsistent, that she was evasive,
hostile and unwilling , and ruled that the State could treat her as a hostile witness
under Rule 607 of the North Carolina Rules of Evidence, and examine her by
leading questions. T. 241.
The defense was then permitted to question Young concerning her
competence. She said she had not been personally threatened, but that her aunt
related that some unidentified person said she should not testify. T. 243-44. She
testified that she could not recall when the shooting happened, whether she saw
Russell on the day of the shooting, what he said, who else she saw. T. 244-45.
The court reiterated its ruling that the State could question her, as a hostile
witness, by leading questions. T. 246. Young’s direct examination consisted of the
prosecutor’s reading from State’s Exhibit 2 and questioning her about the
statement.6
After Young’s testimony, the defense moved to strike her testimony, citing
Rule 601. T. 303. The defense argued that she suffered mental defects that made
her unreliable. T. 305. The court denied the motion, finding that Rule 601 was
6The introduction of Young’s statement to police is addressed in Argument II below.
inapplicable, and that the jury would be instructed it could determine whether to
believe her testimony. T. 305.
The test for competence of a witness under Rule 601 is the capacity of the
witness to understand and relate under the obligation of an oath facts which will
assist the jury in determining the truth of matters it is called on the decide. State v.
Kivett, 321 N.C. 404, 40, 364 S.E. 2d 404 (1988) (cites omitted). The court must
rely on its observations of the witness’ demeanor and response to questions to
ascertain the witness’ competence. State v. Ford, 136 N.C. App. 634, 639, 525 S.E.
2d 218 (2000). The witness must be able to give a correct account of the matters
about which she seeks to testify. In re Will of Leonard, 82 N.C. App. 646, 649, 347
S.E. 2d 478 (1986), citing State v. Benton, 276 N.C. 641, 174 S.E. 2d 793 (1970).
In the instant case, the trial court never squarely ruled on Davis’ objection
that Young was not competent to testify. The court focused instead on whether she
was a hostile witness the State could examine by leading questions. The court’s
conclusion that Rule 601 was not applicable, and its denial of Davis’ motion to
strike her testimony, was an abuse of discretion. It was clear that Young had no
memory of events of August 21, 2006. Her testimony was contradictory, confusing
and could not have assisted the jury in determining the matters before it. She
testified that:
– she did not know if her recall was better in 2006 than at the time of her
testimony, T. 252;
– she did not know whether the statement she gave police was true and
accurate, T. 253-54;
– as to every detail of the statement, she said, “That’s what’s there,” but did
not adopt the statement, T. 258 -59, 261, 264-65, 266;
– she had no memory of giving the statement, T. 266;
– she had no memory of the day the shootings took place, T. 266-67;
– she had no memory of talking to the police, T. 267;
– she has had memory problems her whole life, T. 268, 271;
– she had no memory of being at the scene, or seeing anyone with guns, T.
270;
– she had no memory of events of the morning of her testimony, T. 268.
Given her total lack of memory of the events about which she was called to testify,
her testimony should not have been permitted, and the trial court abused its
discretion in not precluding her testimony as incompetent, and in not striking it
when it became apparent that she had no independent recollection of the events
about which she was called to testify.
Davis was clearly prejudiced by her testimony. Although she admitted that
she had no recollection of guns in the car Davis was allegedly driving just before
the shootings, the State was allowed to introduce evidence that she had previously
stated to police that she saw the guns in the car, including one in the lap of the
passenger in the car, Jaron Russell. Without Young’s testimony, there would have
been no evidence that there were guns in the car other than the one Davis admitted
carrying for his protection. The State’s evidence, through Young, of guns in the car
just before the shooting undermined Davis’ self defense. Without the evidence of
guns in the car, it is likely the verdict would have been different. Davis is entitled
to a new trial as a consequence of the admission of testimony from a witness who
was not competent under the Rule.
II. THE TRIAL COURT ERRED IN ADMITTINGTHE OUT OF COURT STATEMENT OFCANDY YOUNG AS A PRIOR RECORDEDSTATEMENT BECAUSE THE STATE DIDNOT SATISFY THE REQUIREMENTS FORADMISSION ON THAT BASIS, AND THESTATEMENT WAS HEARSAY.
Assignment of Error 3, R. 108.
Standard of Review. Whether a trial court properly admitted evidence is
reviewed for abuse of discretion. State v. Anderson, 175 N.C. App. 444, 624 S.E.
2d 393, 397 (2006).
Analysis. When at trial, Candy Young testified that she did not remember
telling a police officer that she saw guns in a car with Jaron Russell, parked in front
of the liquor house, just before the shootings on August 21, 2006, the State was
allowed to use s statement she allegedly gave police on September 6, 2006 as a
recorded recollection. T. T. 304-05.
Rule 803(5) of the North Carolina Rules of Evidence, N.C.G.S. 8C-1
provides in relevant part as follows:
(5) Recorded Recollection. – A memorandum or recordconcerning a matter about which a witness once had knowledge but now has insufficient recollectionto enable him to testify fully and accurately, shownto have been made or adopted by the witness whenthe matter was fresh in his memory and to reflectthat knowledge correctly. If admitted, the memorandumor record may be read into evidence but may not itselfbe received as an exhibit rules offered by an adverse party.
The requirements for introduction of a prior recorded statement under the
Rule are that the writing is one the witness previously signed, which was adopted as
true when it was signed, it was made while the events in issue were still fresh, and
the witness can not recall the matters at trial. State v. Legett, 135 N.C. App. 168,
173, 519 S.E 2d 328 (1999). The witness must testify that she knew the events at
the time but has forgotten by the time of trial. Id., citing State v. Hollingsworth, 78
N.C. Ap. 578, 337 S.E. 2d 674 (1985).
The statement at issue in the instant case could not qualify as a recorded
recollection. Ms. Young testified that she had no memory of the statement, of the
officer to whom it was made, or of the events to which it related. Moreover, she
testified that she did not remember giving the statement at all. T. 266. She testified
that she did not believe she read the statement before signing it. T. 252. The most
she would ever acknowledge about the statement is that the prosecutor correctly
read its content; she never acknowledged the truth of the matters asserted in the
statement. T. 258-59, 260-61, 264, 266. She said she did not know if the
statement was true and accurate. T. 253. She also said she did not recall whether
she told the truth to the officer. T. 254. She could not recall the statement when
she spoke with the prosecutor on the morning before she was called to testify. T.
238-239. The statement did not include an attestation to its truthfulness, and the
officer who allegedly took the statement did not testify about how the statement was
taken.
Given the foregoing, it was error for the trial court to admit the statement, by
having the statement read to the jury when the witness was on the stand, and the
statement should have been excluded. Without the statement, the result of the
proceedings would have been different. There was little evidence to contradict
Davis’ version of the events, that he shot at the car in self-defense. The statement
includes that a passenger in Davis’ car had a gun in his lap just before the
shootings, and that there were other guns in the car. The statement also includes
that shots were fired from Davis’ car and that a bicyclist did not have anything in
his hands as he rode away from the car after the shooting.
Because the statement was not properly admitted, it was hearsay, and Davis
was prejudiced by its erroneous admission, Davis is entitled to a new trial.
III. THE TRIAL COURT ERRED IN DENYINGDAVIS’ MOTION TO DISMISS COUNTSONE AND TWO, AS THE STATE INTRODUCED INSUFFICIENT EVIDENCE TO PERMIT AJURY TO FIND GUILT BEYOND A REASONABLE DOUBT.
Assignment of Error No. 8, R. 109.
Standard of Review. Whether the trial court properly denied a motion to
dismiss indictments for insufficiency of evidence is a question of law which this
court reviews de novo. State v. Chapman, 359 N.C. 328, 374, 611 S.E. 2d 794
(2005) When the court rules on a motion to dismiss, the court must determine
whether the prosecution has presented substantial evidence of each essential
element of the crime, and that the defendant was the perpetrator. “Substantial
evidence” is that amount of relevant evidence that a reasonable mind might accept
as adequate to support a conclusion. In making its decision, the trial court must
view the evidence in the light most favorable to the State. State v. Bell, 359 N.C. 1,
603 S.E. 2d 93, 110 (2004).
Analysis.
Davis was convicted of first degree premeditated murder and of felony
murder. His defense was that he acted in self-defense. The State had the burden of
proving beyond a reasonable doubt that he did not act in self-defense. State v.
Watson, 338 N.C. 168, 178, 449 S.E. 2d 694 (1994) (citations omitted). The State
failed to carry that burden.
Perfect self-defense requires evidence of four factors: (1) it appeared to
defendant and he believed it necessary to kill the decedent to save himself from
death or great bodily harm; (2) defendant’s belief was reasonable in light of the
circumstances as they appeared to him at the time; (3) defendant was not the
aggressor in bringing about the affray; and (4) defendant did not use more force
than necessary to protect himself. If the State fails to disprove any one of these
elements, the jury must acquit the defendant. Id. at 180.
Imperfect self-defense is not a complete defense to killing, but results in a
verdict of voluntary manslaughter. Imperfect self-defense exists when the State
fails to disprove beyond a reasonable doubt the existence of either of the first two
elements set out above. To negate self-defense altogether, the State has to prove the
non-existence of element 1 or 2 beyond a reasonable doubt. Id.
In the instant case, Davis testified to a course of conduct by the decedents
sufficient to engender fear for his life. The decedents repeatedly fired at Davis or at
his property, when others were present. Davis tried to arbitrate but decedents
continued to fire at him, even after sending word that their dispute was with others
and not Davis. The decedents were armed during the confrontation that resulted in
their deaths. A .45 caliber weapon was found in the car, and a shell casing was
found showing that the gun was fired from the car. Another shell casing was found
on the roadway by the car. A passerby was seen to remove a weapon from
decedent’s car before the police arrived.
No one testified that Davis set upon the decedents. The State’s evidence was
that Davis fired shots from a semi-automatic rifle from between two buildings near
the place where decedents’ car came to rest. Candy Young’s out-of-court statement
that she saw guns in Davis’ car before the shooting should not be considered, for
the reasons set forth in Arguments I and II above. Even so, her statement does not
negate Davis’ evidence that when he fired at the car in which decedents were
traveling, he did so because decedent Croom pointed a gun at him and he was sure
Croom meant to shoot him.
The State failed to meet its burden to negate the four elements of self-
defense. For that reason, the trial court should have granted the motions to dismiss
counts one and two of the indictment. Davis’ convictions on these counts should be
reversed.
IV. THE TRIAL COURT ERRED IN DENYINGDAVIS’ MOTION TO DISMISS COUNTSSEVEN THROUGH FIFTEEN, AS THE STATE INTRODUCED INSUFFICIENT EVIDENCE TO PERMIT A JURY TO FIND GUILT BEYOND A REASONABLE DOUBT.
Assignment of Error No. 9, R. 109.
Standard of Review. Same as Argument III above.
Analysis. Self-defense is a defense to firing into an occupied vehicle, and
the jury was so instructed. R. 75-76. For the reasons set forth in Argument III,
above, the State failed to prove beyond a reasonable doubt that Davis did not act in
self-defense in firing into the car occupied by Croom and Gerald, and therefore
counts seven through fifteen of the indictment should have been dismissed. Davis’
convictions on these counts should be reversed.
V. THE TRIAL COURT ERRED IN DENYINGDAVIS’ MOTION TO DISMISS COUNTSSEVENTEEN AND NINETEEN, AS THE STATE INTRODUCED INSUFFICIENT EVIDENCE TO PERMIT A JURY TO FIND GUILT BEYOND A REASONABLE DOUBT.
Assignment of Error No. 10, R. 109.
Standard of Review. Same as Argument III above.
Analysis. Self-defense is a defense to firing into an occupied dwelling, and
the jury was so instructed. R. 78-79. For the reasons set forth in Arguments III and
IV, above, the State failed to prove beyond a reasonable doubt that Davis did not act
in self-defense in firing into the car occupied by Croom and Gerald, inadvertently
hitting buildings, and therefore counts seventeen and nineteen of the indictment
should have been dismissed. Davis’ convictions on these counts should be
reversed.
VI. THE TRIAL COURT PLAINLY ERRED INPERMITTING THE STATE’S FORENSIC PATHOLOGIST TO TESTIFY ABOUT ANAUTOPSY WHICH SHE DID NOT PERFORM,IN VIOLATION OF DAVIS’ RIGHTS UNDERTHE SIXTH AMENDMENT TO THE UNITEDSTATES CONSTITUTION.
Assignment of Error No. 4, R. 108.
Standard of Review. Whether the admission of evidence violated Davis’
rights under the Confrontation Clause of the Sixth Amendment to the United States
Constitution is a question of law which this court reviews de novo. State v.
Chapman, 359 N.C. 328, 348, 611 S.E. 2d 794 (2005).
Analysis. Dr. Maryanne Gaffney-Kraft testified at trial about an autopsy of
decedent Gerald performed by Dr. Thomas Clark, who did not testify. T. 320, 343-
44. From Clark’s report, she determined the cause of death to be a gunshot wound
to the head, the trajectory to be left to right, that the bullet track showed too much
force for a ricocheting bullet, that the bullet plowed through the top of the skull. T.
343-47. She testified that the wound to Gerald’s head would not be considered a
close range wound. T. 366.
After the trial of this case, the North Carolina Supreme Court decided State v.
Locklear, 363 N.C. 438, 681 S.E. 2d 293 (2009). In that case, the Court relied upon
Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 (2009), to hold that the admission
of testimony by a pathologist as to cause of death based on work of a non-testifying
pathologist and dentist violated defendant’s Sixth Amendment right to confront the
witnesses against him. 363 N.C. at 451-52. Following Locklear, this court held
that the testimony of a crime lab supervisor as to the weight of cocaine found in the
defendant’s residence, based on a lab technician’s report, violated the defendant’s
Sixth Amendment rights to confront witnesses against him. State v. Galindo, 683
S.E. 2d 785 (N.C. App. 2009), citing Melendez-Diaz and Locklear. And very
recently, in State v. Mobley, 200 N.C. App. LEXIS 1713, November 3, 2009, this
court held that Melendez-Diaz applied to one DNA expert testifying about the work
of another DNA expert.
Davis did not object to the doctor testifying to the autopsy performed by Dr.
Clark. In Mobley, this court found that even though there was no objection to the
testimony about the DNA analysis, Rule 2 of the North Carolina Rules of Appellate
Procedure permitted the court to review the Sixth Amendment claim to prevent
manifest injustice to the defendant. The review was for plain error, requiring the
defendant to show that a different result would probably have been reached but for
the error, or that the error was so fundamental as to result in a miscarriage of
justice, citing State v. Bishop, 346 N.C. 365, 385, 488 S.E. 2d 769 (1997).
Davis submits that his case is appropriate for the application of Rule 2 to
redress a violation of his Sixth Amendment rights. The pathologist testified as to
Gerald’s cause of death, the path of the fatal wound, and the injuries caused by the
bullet, without having conducted the autopsy, and without the State’s showing that
Dr. Clark was unavailable and that Davis had previously had an opportunity to
cross-examine him.
In Melendez-Diaz, the Court held that Crawford v. Washington, 541 U.S. 36,
124 S.Ct. 1354 (2004) bars admission of testimonial evidence unless the declarant
is unavailable and the accused has had a prior opportunity to cross-examine the
declarant, and that a chemist affidavits as to the nature of suspect substances fell
within Crawford’s definition of testimonial evidence. Melendez-Diaz v.
Massachusetts, 129 S.Ct. at 2529.
Davis submits that admission of the pathologist’s testimony was plain error.
A different result would probably have obtained on the count two had the State not
been able to offer hearsay evidence as to the cause of Gerald’s death. The jury in
this case was instructed that an element of the offense of first degree murder is that
the actions of the accused proximately caused the death of the decedent. R. 48.
Without the pathologist’s testimony as to cause of death, the State failed to prove
beyond a reasonable doubt an essential element of the offense of first degree
murder, and the jury would have acquitted on count two.
Because it was plain error for the trial court to allow the pathologist to testify
about an autopsy performed by a non-testifying pathologist, Davis is entitled to a
reversal of his conviction on count two.
VII. THE TRIAL COURT PLAINLY ERRED INADMITTING THE AUTOPSY REPORTPREPARED BY A NON-TESTIFYING FORENSIC PATHOLOGIST, IN VIOLATION OF DAVIS’ RIGHTS UNDERTHE SIXTH AMENDMENT TO THE UNITEDSTATES CONSTITUTION.
Assignment of Error No. 5, R. 108.
Standard of Review. See Argument VI above.
Analysis. Because the State was able to admit the autopsy report, State’s
Exhibit 27, through the testimony of Dr. Gaffney-Kraft, in violation of Davis’ Sixth
Amendment rights, his conviction on count two should be reversed. Davis realleges
and incorporates by reference Argument VI above.
VIII. THE TRIAL COURT PLAINLY ERRED INADMITTING AUTOPSY PHOTOGRAPHSTAKEN BY A NON-TESTIFYING FORENSIC PATHOLOGIST, IN VIOLATION OF DAVIS’ RIGHTS UNDERTHE SIXTH AMENDMENT TO THE UNITEDSTATES CONSTITUTION.
Assignment of Error No. 6, R. 108.
Standard of Review. See Argument VI above.
Analysis. Because the State was able to admit the autopsy photographs,
State’s Exhibits 20-22, through the testimony of Dr. Gaffney-Kraft, in violation of
Davis’ Sixth Amendment rights, his conviction on count two should be reversed.
Davis realleges and incorporates by reference Argument VI above.
IX. THE TRIAL COURT PLAINLY ERRED INADMITTING THE AUTOPSY DIAGRAMPREPARED BY A NON-TESTIFYING FORENSIC PATHOLOGIST, IN VIOLATION OF DAVIS’ RIGHTS UNDERTHE SIXTH AMENDMENT TO THE UNITEDSTATES CONSTITUTION.
Assignment of Error No.7, R. 108.
Standard of Review. See Argument VI above.
Analysis. Because the State was able to admit the autopsy diagram, State’s
Exhibit 26, through the testimony of Dr. Gaffney-Kraft, in violation of Davis’ Sixth
Amendment rights, his conviction on count two should be reversed. Davis realleges
and incorporates by reference the Argument VI above.
X. THE TRIAL COURT ERRED IN DENYING DAVIS’ MOTION FOR MISTRIAL AFTERAN OUTBURST IN THE COURTROOM BYONE DECEDENT’S RELATIVE DURINGDAVIS’ CLOSING ARGUMENT.
Assignment of Error No. 15, R. 109.
Standard of Review. A motion for mistrial is addressed to the sound
discretion of the trial judge; the ruling on the motion will be reversed if it
constitutes an abuse of discretion. State v. Dais, 22 N. C. App. 379, 384, 206 S.E.
2d 759 (1974).
Analysis. N.C.G. S. 15A-1061 provides in relevant part as follows:
....The judge must declare a mistrial upon the defendant’s
motion if there occurs during the trial an error or legal defect in the proceedings, or conduct inside or outside the courtroom, resulting in substantial and irreparable prejudice to the defendant’s case....
In the instant case, decedent Gerald’s sister interrupted Davis’ closing
argument to shout that her brother was being maligned by defense counsel and
calling defense counsel obscene names. T. 975. The court gave an instruction that
the jury should disregard the outburst, but did not poll the jury as to the effect of the
outburst or whether the jury could be fair in light of the outburst. Davis moved for
a mistrial but the motion was denied. T. 1180.
A key factor in cases in which this court has upheld the denial of a motion for
mistrial when an outburst such as the one in this case has occurred is that the trial
judge polled the jurors, and the jurors gave their assurances that the outburst would
not affect their deliberations. See, State v. Powell, 340 N.C. 674, 692, 459 S.E 2d
219 (1995) (no error from denial of motion for mistrial based on outbursts after
verdict and before capital sentencing, where court warned spectators as to contempt,
gave a contemporaneous instruction, and questioned each juror as to the impact of
the outburst); State v. Moore, 335 N.C. 567, 597, 440 S.E. 2d 797 (1994) (court
inquired of all jurors whether the emotional display by the assistant district attorney
affected them so that they could not be fair and impartial, and the jurors assured the
court it did not); (State v. Dais, 22 N.C. App. 379, 382, 206 S.E. 2d 759 (1974)
(trial court questioned jurors and they represented that they could be fair and
impartial in spite of the emotional state of the prosecutrix and her father’s assault on
defendant).
In the instant case, no effort was made to ascertain the impact the outburst
had on the jury. The outburst occurred in the defense closing, and the defense
attorney had no opportunity to remedy the outburst by showing that the sister was
not present at the scene of the shootings and was not aware of what happened or
why, that she was not present at the scene of the shootings where Gerald or Crooms
fired at Davis or into his yard, and that she had no knowledge to dispute the
assertions of defense counsel. Defense counsel was powerless to ameliorate the
sister’s outburst, and it is certain to have had an adverse and prejudicial effect on
the jury’s deliberations. Because the trial court did not cure the prejudice of the
outburst, the motion for mistrial should have been granted. Davis’ convictions
should be overturned and he should be granted a new trial.
CONCLUSION
For the reasons set forth above, Davis’ convictions should be vacated.
Respectfully submitted,
/s/___________________________REITA P. PENDRY, NC Bar #5789Counsel for Appellant Davis
Post Office Box 5432Charlotte, NC [email protected]
CERTIFICATE OF WORD COMPLIANCE
I hereby certify that the Brief for Appellant contains less than 8,750 words, which is the maximum word length permitted by North Carolina Rules of Appellate Procedure, Rules 28(j)(2)(A)(2).
/s/_____________________________Reita P. Pendry
CERTIFICATE OF FILING AND SERVICE
I hereby certify that I have this day filed the original of the Brief for Appellant with the Clerk of the North Carolina Court of Appeals, by electronic filing, and I further certify that I will on the next business day serve a copy of the Brief for Appellant upon the State, by mailing a copy, postage prepaid, addressed to Danielle Marquis Elder, Esq., Special Deputy Attorney General, Department of Justice, 114 West Edenton Street, 5th Floor, Raleigh, NC 27601.
This 2nd day of December, 2009.
/s/___________________________Reita P. Pendry