Opinion
No. COA02-375
Filed 17 June 2003 This case not for publication
Appeal by defendant from judgment entered 9 April 2001 by Judge Thomas D. Haigwood in Harnett County Superior Court. Heard in the Court of Appeals 22 April 2003.
Attorney General Roy Cooper, by Assistant Attorney General Daniel P. O'Brien, for the State. Daniel Shatz for defendant.
Harnett County No. 99 CRS 10795.
Quincy Marquies Amerson ("defendant") appeals from a jury verdict and conviction for first-degree murder based on premeditation and deliberation and from a judgment sentencing him to life imprisonment without parole. The jury found defendant not guilty of first-degree kidnapping and felony murder. We find no prejudicial error.
I. Background A. State's Evidence
On Saturday, 7 August 1999, at approximately 4:15 a.m., Denise Parker drove her vehicle from her home and headed northeast on Cameron Hill Road, a two-lane paved state secondary road, toward N.C. Highway 24, on her way to catch a flight from the Fayetteville airport. The road was "extremely dark." Parker observed the body of a young girl lying in the southwest lane of Cameron Hill Road, as it leads toward its intersection with Hillman Grove Road. Ms. Parker turned her vehicle around on Wilderness Lane, drove back toward the body, and parked on the shoulder off the road. She tried, but was unable to reach 911 on her cell phone and called her husband, who called 911. Parker testified that she believed the girl was already dead.
While waiting for her husband and the police to arrive on the scene, she observed a vehicle, coming from the direction of Highway 24 and traveling on Cameron Hill Road toward Hillman Grove Road, run over the girl's body in the road. That vehicle, driven by Elizabeth Hogg, turned around in Yorkshire Plantation, returned to the scene, and parked facing Ms. Parker's vehicle. When Ms. Hogg and her boyfriend, Ronald Anderson, realized that the girl lying in the road was dead and learned that the authorities had been called, they left the scene. Ms. Hogg's car was later seized and searched by law enforcement officers.
Ryan Gautier testified that he was driving down Cameron Hill Road from Highway 24 at approximately 4:05 that morning. He saw something not moving in the middle of the road and attempted to "straddle it." He testified, "As I straddled it, it hit the underneath rear of my truck."
Cathy Bryant testified that she was delivering papers along Cameron Hill Road that morning. She did not see anything in the roadway when she went by the scene between 2:15 and 2:30 a.m. Around 3:00 a.m., Ms. Bryant noticed a small, dark-colored car and a white SUV or mini van coming from the direction of Highway 24 and traveling on Cameron Hill Road toward Hillman Grove Road.
Thomas Bradshaw and Clinton Hill had attended a party at a residence off of Cameron Hill Road that night. As he and his friend were traveling down Cameron Hill Road toward Highway 24 after the party at approximately 3:45 a.m., Bradshaw noticed a blue or black Honda Accord pulling away from the side of the road near where the body of the girl was later found. Both observed the body laying in the road. Because of Hill's concern for his daughter and nieces, who were spending the night close by, Bradshaw turned around without going off the road and went to check on the girls. Bradshaw called 911 from Hill's sister's house and was told that the police had already been informed of the body in the road. Bradshaw, Hill, and Hill's sister returned to the scene and encountered the Parkers, waiting for the police to arrive.
Trooper D.L. Hawkins of the Highway Patrol arrived on the scene and "determined it was definitely not an accident. In [his] opinion, it was an intentional death." One basis for his determination was that blood spray was evident in both directions although the body lay in one lane.
Agent Michael East of the State Bureau of Investigation found tire imprints both on and off the road in a field near the body which indicated that a vehicle had turned around there. Officers also found blood, pieces of tissue, earrings, charms, hair bows, a bracelet, a necklace, and more tire impressions and marks at the scene. Police also found a vehicle's wheel well liner located on the Highway 24 side of the body at the edge of the roadway in the northeast lane.
The body was identified to be Sherita Rivera ("Sherita") by her school principal. Trooper Hawkins drove with Agent East, Sabrina Currin of the Harnett County Sheriff's Office, and Trooper Stallings of the Highway Patrol to Sherita's home. Although a vehicle was parked in the driveway, no one answered when the officers knocked on the locked door. Trooper Hawkins heard a child crying inside the house. Because of the suspected murder of Sherita and the child crying, the agents decided "to do a forced entry into the house." Inside the house, Deputy Currin found an infant male alone and crying in his room, and removed him from the house. In the master bedroom, officers found the dead body of Patrice Rivera ("Patrice"), Sherita's mother. Patrice's throat was slashed and her chest contained multiple stab wounds. Patrice was a sergeant in the U.S. Army stationed at Fort Bragg. Her husband also served in the Army and was stationed in Korea at the time of the deaths.
Defendant lived approximately 75 yards away from the Rivera home. During a canvass of the neighborhood and because of defendant's previous relationship with Patrice, Agent East interviewed defendant on Saturday afternoon. Defendant stated that he had known Patrice for approximately two years and had spoken with her the previous afternoon. Defendant stated that the last time he had sexual relations with Patrice was one month prior to her death at her residence, which was the last time he was inside her residence. Defendant stated he did not own a vehicle and received rides from his girlfriend, Regina Garrett ("Garrett"), when he needed to travel. Defendant was restricted to an 8:00 p.m. probation curfew. Defendant spent Friday afternoon driving around in Garrett's black Honda Accord. He stated that he saw Patrice outside her residence at 8:00 p.m. talking to a neighbor. Later that evening, defendant left his residence to purchase alcohol and drove along Gilcrest Road. Defendant stated that he returned home at approximately 1:00 a.m., but then left a few minutes later to spend the night with Garrett. Garrett drove defendant home at approximately 10:00 a.m. the following morning.
When defendant was told that Patrice and Sherita had been murdered, defendant "sat back and said, `Oh,' very casual." Defendant stated that he had not killed them and that the only individual who would want to hurt Patrice was Tony Yarborough. Agent East subsequently learned that Yarborough was incarcerated in Harnett County Jail at the time of the murder. Agent East attempted to interview defendant again at the Harnett County Law Enforcement Center, but defendant made no further statements at the time.
The police met with Garrett and impounded her black Honda Accord on Sunday, 8 August 1999, after she returned home from attending a wedding in Charlotte. The police noticed that the wheel well liner was missing from the right front of Garrett's vehicle and discovered blood and human tissue underneath the vehicle. The wheel well liner found at the scene was later determined to have come off of Garrett's Honda. After impounding the car, the police re-interviewed defendant. Defendant stated that, between 10:30 and 11:00 p.m. on Friday night, he drove alone to a convenience store on Highway 87 to purchase "blunts" and then drove to Gilcrest Road and conducted a narcotics transaction. Defendant stated he called Garrett from his residence between 1:00 and 1:30 a.m. and told her he was on his way to her residence. He arrived at Garrett's home around 2:00 a.m.
Defendant stated he was not sure which route he had taken to Gilcrest Road because he was "F — ked up" on alcohol and marijuana. Agent East then asked defendant:
why did he did [sic] not tell Special Agent East that he had traveled on Cameron Hill Road on the previous interview. [Defendant] replied, quote, "When I went down that road, I didn't feel no bumps or whatever," end quote.
Defendant stated that he turned left on Cameron Hill Road from Bradford Estates. Cameron Hill Road eventually intersected with Hillman Grove Road. He turned right onto Hillman Grove Road. Garrett lived near the intersection of Hillman Grove Road and Highway 24.
After telling Agent East of prior damage to the car, defendant stated:
that maybe he ran over some of Sherita Rivera's brains or blood in the roadway and that he did not hit her body. Detective Webb then advised [defendant] that, if he was traveling in the direction which [defendant] had previously indicated, then he would have had to have run over Sherita Rivera's body because it was in his lane. [Defendant]stated, quote, "Maybe I ran over pieces of her in the road," end quote.
Agent East informed defendant that officers had found pieces of the Honda several hundred yards away, between Highway 24 and Sherita's body. East advised defendant that the plastic wheel well liner would not have fallen off prior to the vehicle running over the body. "[Defendant] stated that he had a lot of enemies and that somebody put pieces of Sherita Rivera's blood and hair, clothing, and human tissue up under his car to frame him." However, defendant did not identify anyone. Defendant was arrested for the murder of Sherita.
Sergeant William H. Thompson of the Highway Patrol testified for the State as an accident reconstruction expert. Sergeant Thompson stopped his vehicle on the Highway 24 side of the scene, prior to reaching Sherita's body. As he started walking toward the body, "The first thing I observed was a plastic [auto] body part on the left-hand side of the roadway, which appeared to be a wheel well liner out of a vehicle." Thompson continued walking toward the body noticing pieces of human tissue. "[W]e originally thought it was . . . an accident, until we started gathering evidence at the scene and finding different things at the scene that we, then, therefore, drew a conclusion that this in fact was not an accident; it was an intentional act."
Based on the location of the blood spots and other evidence found on the scene, Sergeant Thompson opined that "this body had originally been on the shoulder of the roadway; that, at some point in time, this body was either placed there and then struck in the head or some other part to cause bleeding, and had been placed there and ran over intentionally." Based on the blood splatter, "[i]t appeared that the body had been lifted and had gone around in a complete circle." The circular blood splatter showed that the "body had to have been moved from some other location; that they had — these droppings could not have occurred by this body being struck in the roadway." Sergeant Thompson testified that Sherita was never struck while in an upright position.
Three sets of tire impressions were located between 160 to 251 feet from the body's location toward Hillman Grove Road. Sergeant Thompson opined that "they were made separate and apart. Each separate tire impression was made from one single — or, one tire from one wheel from that vehicle at separate times," and that the front-wheel drive vehicle would have been traveling between 20 and 25 miles per hour when it made those marks. The tire impressions showed that the vehicle was traveling toward Hillman Grove Road, turned around, and headed back toward Highway 24. Multiple sets of tire impressions and turn around marks were found on the Highway 24 side of the body.
Sergeant Thompson testified:
It is my opinion that, with the presence of blood spatter and tissue matter being on the underside of this, after having found the wheel well — wheel well liner that we found with blood — traces of blood and denim and then finding blood under — in this area of this vehicle indicated to me — and my opinion is that this vehicle had to travel over that body more than once. Once with the wheel well liner in place, and subsequent times with the wheel well liner missing — . . . My opinion is, after a thorough investigation of the scene itself, after viewing the — all the vehicles involved, it's my opinion that Sherita Rivera was ran over several times intentionally by the black Honda in question.
Michael Brandon Herring was incarcerated for larceny when he testified for the State at defendant's trial. Herring was acquainted with defendant and had previously supplied defendant with marijuana. Hogg and Anderson came to his house on the morning of 7 August 1999 and told him that they had just run over the body of a little girl.
On 5 April 2000, Herring was in the Harnett County Jail on pending larceny charges. Defendant was jailed within Herring's cellblock. That night, Herring, defendant, and others in the cellblock were drinking "homemade wine." Herring consumed approximately one glass while defendant consumed approximately four or five cups. Herring testified that defendant made statements to him concerning the death of Sherita:
[Defendant] said that him and Greg Porter killed her mother, took the little girl and beat her unconscious, put them in the car — in the mother's car, took them to Cameron Hill Road, dropped her out. He said he went back home. He went back to where the house was, said he got in his car, him and Greg Porter, said he dropped Greg Porter off on Gilcrest Road and he went back to Cameron Hill Road to run over the little girl and make sure she was dead. . . . He said a plastic piece of his car had come off the fender.
Herring testified that he had received nothing from the State in exchange for his testimony, but was testifying because "it'd take a sick person to do something like that and then brag about it."
B. Defendant's Evidence
Defendant recalled Detective Steven Hale, a crime scene investigator for the Harnett County Sheriff's office, who had previously testified for the State. Detective Hale testified that he had located bloodstains on the door of Patrice's master bedroom. He also collected bloodstains from Patrice's headboard, the door to the children's bedroom, and the wall of Patrice's room and latent prints from the doorknob to the children's bedroom, the microwave door, the front storm door, and the front door. Detective Hale testified on cross-examination that he collected a shoe impression, which appeared to be that of a small child, from defendant's house.
Keisha Jackson, a friend of Patrice, testified that she went with Patrice and others to the store on the afternoon of Friday, 6 August 1999 and returned around 5:30 p.m. to Patrice's house. Jackson testified that while at Patrice's house, Patrice made several telephone calls and requested Jackson to make telephone calls for Patrice to Randolph Hinton, a Sergeant Major in the U.S. Army.
Defendant attempted to elicit testimony that Patrice called Hinton to "cuss him out." Patrice left messages on Hinton's voice mail "telling him that she was going to, of course, tell everybody that they had been having sex; she was going to cut him up; she was going to kill him; and, that she was going to basically tell everybody; she was going to make him lose everything he had." Patrice asked Jackson to call Hinton and invite him over for a cookout that Patrice and Jackson were having on Friday night. After a hearing, the trial court excluded the evidence. Sharanda Yarborough also visited Patrice's house on Friday afternoon, 6 August 1999, and was present when Patrice made telephone calls. Yarborough testified that Patrice "was mad" and cursing on the telephone.
Special Agent David Rogers of the United States Army Criminal Investigation Command testified that he went to Hinton's house on Saturday, 7 August 1999. Agent Rogers found car washing materials and noticed "the driveway had been recently wetted down from possibly the vehicle being washed." Rogers testified that a Commander's Inquiry was convened to examine allegations of an improper sexual relationship between Hinton and Patrice. The results stated "I believe Sergeant Major Hinton used extremely poor judgment by counseling Sergeant Rivera in her quarters. I was unable to find any physical evidence to support the accusation against Sergeant Major Hinton, that he violated Article 134 by committing adultery or fraternizing in an unprofessional manner with [Patrice]."
Defendant tendered Allen Eberhart, Ph.D., an Engineer with Accident Reconstruction Analysis, as an expert in the field of accident reconstruction and mechanical engineering. Dr. Eberhart testified that, from the written reports and documents, he did an actual road test with Garrett's Honda at the scene along with a comparative rear-wheel drive vehicle. A videotape of the reconstruction road test was shown to the jury.
Dr. Eberhart compared the results of the driving tests to the tire marks found at the scene and opined that the tire marks found on the Hillman Grove Road side of the body on Cameron Hill Drive were not made by Garrett's Honda. Dr. Eberhart testified that the marks were made by a rear-wheel drive vehicle and not a front-wheel drive vehicle like Garrett's Honda. Defendant attempted to elicit Dr. Eberhart's opinion that, based on photographs of the Honda and Hogg's vehicle and the blood splatter underneath, it was possible for the blood splatter inside the Honda's wheel well to result from a single pass over the body. The Court excluded that testimony. Defendant did not testify.
The jury found defendant guilty of the first-degree murder of Sherita Rivera under a theory of premeditation and deliberation. The jury found defendant not guilty of kidnapping and first-degree murder under the felony murder rule. After a capital sentencing hearing, defendant was sentenced to life imprisonment without parole and defendant appealed.
II. Issues
Defendant contends the trial court erred in (1) denying defendant's motion to dismiss, (2) excluding evidence of Patrice's threats against Hinton, (3) sustaining objections to Dr. Eberhart's testimony, (4) admitting autopsy photographs of the victim, (5) admitting opinion testimony of Thompson, (6) excluding defendant's exhibits, (7) denying defendant the effective assistance of counsel, (8) failing to intervene ex mero motu in prosecution's closing argument, and (9) denying defendant's motion to dismiss the indictment.
III. Insufficient Evidence
Defendant contends the trial court erred in failing to dismiss the charge of first-degree murder and argues the State failed to present sufficient evidence beyond defendant's jailhouse confession to support submitting first-degree murder to the jury. We disagree.
At the close of both the State's evidence and all evidence, defendant moved to dismiss the charge of first-degree murder based on premeditation and deliberation. The State must submit substantial evidence of every element of the crimes charged to survive a motion to dismiss. State v. Bruton, 344 N.C. 381, 387, 474 S.E.2d 336, 341 (1996). "Substantial evidence is evidence from which any rational trier of fact could find the fact to be proved beyond a reasonable doubt." State v. McDowell, 329 N.C. 363, 389, 407 S.E.2d 200, 215 (1991) (quoting State v. Sumpter, 318 N.C. 102, 108, 347 S.E.2d 396, 399 (1986)). The evidence is to be viewed in a light most favorable to the State and the State is entitled to every reasonable inference from the evidence. Id. (citing State v. Earnhardt, 307 N.C. 62, 296 S.E.2d 649 (1982)).
"First-degree murder is the intentional and unlawful killing of a human being with malice and with premeditation and deliberation." State v. Thomas, 350 N.C. 315, 346, 514 S.E.2d 486, 505, cert. denied, 528 U.S. 1006, 145 L.Ed.2d 388 (1999). "An act is premeditated if it was thought over beforehand, but no particular length of time is required and the time can be quite short. . . . Deliberation is the `intent to kill formed by defendant in a cool state of blood, and not as a result of a violent passion arising from legally sufficient provocation.'" State v. Farmer, 138 N.C. App. 127, 134, 530 S.E.2d 584, 589 (2000) (quoting State v. Taylor, 344 N.C. 31, 45, 473 S.E.2d 596, 604 (1996)).
Prior to 1985, the State was required to present "corroborative evidence, independent of the defendant's confession, which tends to prove the commission of the crime charged" to survive a motion to dismiss. State v. Parker, 315 N.C. 222, 229, 337 S.E.2d 487, 491 (1985). Our Supreme Court in Parker held:
We adopt a rule in non-capital cases that when the State relies upon the defendant's confession to obtain a conviction, it is no longer necessary that there be independent proof tending to establish the corpus delicti of the crime charged if the accused's confession is supported by substantial independent evidence tending to establish its trustworthiness, including facts that tend to show the defendant had the opportunity to commit the crime.
Id. at 236, 337 S.E.2d at 495. Our Supreme Court determined that "[t]he pre- Parker rule is still fully applicable in cases in which there is some evidence aliunde the confession which, when considered with the confession, will tend to support a finding that the crime charged occurred." State v. Trexler, 316 N.C. 528, 532, 342 S.E.2d 878, 880 (1986).
The State presented evidence that Sherita was intentionally killed by being repeatedly run over separate and apart from defendant's statements. Sherita's blood was present on the wheel well liner, from a vehicle defendant admitted driving, which was found in a location inconsistent with defendant's statement to police that he was traveling from Highway 24 toward Hillman Grove Road and accidentally ran over the victim once. Without any reference to defendant's confession, Sergeant Thompson testified that in his expert opinion, the black Honda Accord driven by defendant that night intentionally ran over Sherita multiple times. This evidence is sufficient to support the denial of defendant's motion to dismiss for insufficient evidence. This assignment of error is overruled.
IV. Threats to Hinton
Defendant contends that evidence of Patrice's threats to Hinton were improperly excluded by the trial court. We disagree.
Presuming without holding that the phone messages left on Hinton's voice mail that threatened to expose their adultery were wrongly excluded as showing third-party guilt, the jury was allowed to hear that Patrice left threatening messages for Hinton. Further, defendant presented other evidence of the guilt of Hinton through the military investigation of Hinton for adultery and Hinton's conversations with Patrice on Friday before the murder.
Defendant has the burden of showing that he was prejudiced by the errors he assigned. N.C. Gen. Stat. § 15A-1443(a) (2001). An error is prejudicial only "when there is a reasonable probability that, had the error in question not been committed, a different result would have been reached at the trial out of which defendant appeals." N.C. Gen. Stat. § 15A-1443(a). Defendant has failed to meet that burden. This assignment of error is overruled.
V. Dr. Eberhart's Testimony
Defendant contends the trial court erred in excluding Dr. Eberhart's opinion regarding the blood and tissue found under the Honda.
During an offer of proof, the following exchange took place between defendant's attorney and Dr. Eberhart:
Q. Based on your experience in accident reconstruction and the fact that you were advised, in Sergeant Thompson's reconstruction report, the wheel well liner was off the vehicle, what, if anything, did you determine from those photograph[s] [of the wheel well of the Honda and the underside of the Honda and Hogg's vehicle] you've been shown?
A. They clearly show blood splatter underneath that left wheel liner area. Once the liner's been removed, there's blood spatter there. When the wheel liner comes off of a vehicle, the vehicle continues to move and, if there's blood and tissue, whatever, in the tire tread, it'll continue to sling that for quite some distance. It wouldn't be unusual that it could actually sling that for a hundred feet, 200 feet, even further, particularly tissue. The wheel liner itself is only about — its total length is only about 5 feet. One turn of the tire is over 6 feet. So, once the edge of the wheel liner is underneath the tire, it rips the wheel well liner off in less than one rotation of the tire. The tire continues to rotate, and whatever's on the tire — and this, of course, is coming in contact with the road, even further down the road or where it's already come in contact with blood or tissue, it's going to continue to be on that tire, and it's going to be slinging it off. The amount of blood that I see here is certainly not inconsistent with that. It's a relatively small amount of blood. It could easily have come off that tire after the wheel well was ripped off on a single pass.
Without further argument or findings, the trial court excluded the testimony.
Presuming without deciding that the trial court erred in excluding this testimony, defendant has failed to show that there was a reasonable possibility that, but for the error, the jury would have reached a different verdict. N.C. Gen. Stat. § 15-1443(a). Defendant argues that because the State relied on the blood spatter inside the wheel well to show that defendant repeatedly ran over Sherita in the Honda, the exclusion of the evidence from Dr. Eberhart was prejudicial. We disagree.
The amount of blood located on the inside of the wheel well was shown through photographs and could be determined by the jury. The proffered testimony showed that sling from the tires would continue for 200 yards or more. However, the proffered testimony did not include any information explaining (1) that the wheel well liner was located over a quarter mile away from the body toward Highway 24, (2) that the body lay in the northeast lane of traffic, and (3) that the wheel well liner was found near turn around tire marks.
Defendant's own statements contradict a single pass of the vehicle as shown in the proffer. Defendant testified that he traveled to Garrett's house from Highway 24 in the southwest lane of Cameron Hill Road toward Hillman Grove Road. Traveling as he stated and making only one accidental pass over the body, defendant would have had to have lost the wheel well liner prior to passing over the body and in the opposite lane of traffic.
Defendant has failed to show "there is a reasonable probability that, had the error in question not been committed, a different result would have been reached at the trial." N.C. Gen.Stat. § 15A-1443(a). We find no prejudicial error in the exclusion of the proffered testimony of Dr. Eberhart. This assignment of error is overruled.
VI. Photographs
Defendant contends the trial court erred in admitting into evidence and allowing the jury to see multiple autopsy photographs of Sherita. We disagree. The admissibility of photographs "`lies within the sound discretion of the trial court, and the trial court's ruling should not be overturned on appeal unless the ruling was `manifestly unsupported by reason or [was] so arbitrary that it could not have been the result of a reasoned decision.'" State v. Haseldon, ___ N.C. ___, ___, ___ S.E.2d ___, ___ (28 March 2003) (quoting State v Goode, 350 N.C. 247, 258, 512 S.E.2d 414, 421).
Photographs of victims of homicide are admissible even if gory, gruesome, horrible or revolting "so long as they are used for illustrative purposes and so long as their excessive or repetitious use is not aimed solely at arousing the passions of the jury." State v. Blakeney, 352 N.C. 287, 310, 531 S.E.2d 799, 816 (2000). "Even where a body is in advanced stages of decomposition and the cause of death and identity of the victim are uncontroverted, photographs may be exhibited showing the condition of the body and its location when found." Id.
After a hearing and voir dire, the trial court ruled that ten autopsy photographs were admissible for the limited purpose of illustrating the testimony of Dr. Butts, the medical examiner. The testimony showed that the photographs (1) were not repetitious, (2)helped to show the condition of the body as it was found, and (3) further illustrated that Sherita was not vertical when she was run over by the vehicles.
The multiple passes of other cars over the body subsequent to death does not render the photographs inadmissible. See State v. Bates, 343 N.C. 564, 595, 473 S.E.2d 269, 285 (1996), cert. denied, 519 U.S. 1131, 136 L.Ed.2d 873 (1997) (admitting photos showing body in advanced state of decomposition in water, with damages by river scavengers post death); State v. McCollum, 334 N.C. 208, 228, 433 S.E.2d 144, 154-55 (1993) (admitting autopsy photos of decomposing face).
Defendant has failed to show that the trial court abused its discretion in admitting the ten autopsy photographs to illustrate Dr. Butt's testimony. This assignment of error is overruled.
VII. Expert Testimony of Sergeant Thompson
Defendant contends the trial court committed plain error in allowing Sergeant Thompson to state his opinion as an expert witness. Defendant contends that Sergeant Thompson failed to meet the reliability test established by the United States Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 125 L.Ed.2d 469 (1993), as interpreted by our Supreme Court in State v. Goode, 341 N.C. 513, 461 S.E.2d 631 (1995). We disagree.
Under N.C. Gen. Stat. § 8C-1, Rule 702 (2001), in order for expert testimony to be admitted, the expert must be qualified by "knowledge, skill, experience, training, or education." "North Carolina case law requires only that the expert be better qualified than the jury as to the subject at hand, with the testimony being `helpful' to the jury." State v. Jones, 147 N.C. App. 527, 544, 556 S.E.2d 644, 654 (2001) (citation omitted), appeal dismissed and disc. review denied, 355 N.C. 351, [562] S.E.2d [427] (2002). The trial court's decision with respect to whether a witness possesses the necessary qualifications and is in a better position than the jury to form an opinion on the matter to assist the jury in understanding the evidence "is within the sound discretion of the trial court and will not be reversed by the appellate court unless there is a complete lack of evidence to support it." Pelzer v. United Parcel Service, 126 N.C. App. 305, 309, 484 S.E.2d 849, 851-52, disc. review denied, 346 N.C. 549, 488 S.E.2d 808 (1997); see also State v. Miller, 142 N.C. App. 435, 444, 543 S.E.2d 201, 207 (2001) (abuse of discretion occurs where "`ruling is manifestly unsupported by reason or is so arbitrary that it could not have been the result of a reasoned decision'" (citation omitted)).
State v. Holland, 150 N.C. App. 457, 461-62, 566 S.E.2d 90, 93 (2002).
Similar to the trooper who testified in Holland, Sergeant Thompson had been employed by the Highway Patrol for over twenty-two years at the time of trial. He testified to hundreds of hours of training including: 249 hours of vehicle accident reconstruction training; 40 hours of bicycle and pedestrian accident reconstruction; 40 hours of commercial motor vehicle reconstruction; 40 hours accident victims and witness interrogation and interview training; and, 6 hours of advanced pedestrian accident investigation. At the time of the accident, Sergeant Thompson had (1) investigated approximately 2,000 accidents, (2) been involved in the actual reconstruction of approximately 45 collisions, and (3) testified in court as an expert witness on at least 6 occasions. Thompson had also taught accident investigation, both basic and advanced. The trial court did not abuse its discretion in determining that Sergeant Thompson was more qualified than the jury to interpret the scene.
Further, defendant did not object at trial, either to the tender of Sergeant Thompson as an expert witness or to his opinion that a front-wheel drive vehicle made the tire impressions at the scene or that Sherita was intentionally run over multiple times at the scene by Garrett's Honda Accord.
As with the decision on whether the witness qualifies as an expert, the decision on what expert testimony to admit is within the discretion of the trial court. Holland, 150 N.C. App. at 462, 566 S.E.2d at 93 (citing State v. Washington, 141 N.C. App. 354, 362, 540 S.E.2d 388, 395 (2000)). "[N]othing in Daubert or Goode requires that the trial court re-determine in every case the reliability of a particular field of specialized knowledge consistently accepted as reliable by our courts, absent some new evidence calling that reliability into question." Taylor v. Abernethy, 149 N.C. App. 263, 274, 560 S.E.2d 233, 240 (2002).
This Court has held that where the principles underlying the expert testimony have been repeatedly recognized as reliable and admissible, "the trial court was not required to launch into a full analysis of the reliability of the underlying principles." Holland, 150 N.C. App. at 463, 566 S.E.2d at 93. "Expert testimony in the field of accident reconstruction has been widely accepted as reliable by the courts of this State." Id. See, e.g., Griffith v. McCall, 114 N.C. App. 190, 194, 441 S.E.2d 570, 573 (1994) (upholding admission of accident reconstruction expert testimony to assist jury in understanding central issues and noting that it is the function of cross-examination to expose any weaknesses in the expert testimony); State v. Purdie, 93 N.C. App. 269, 276, 377 S.E.2d 789, 793 (1989) (expert testimony on accident reconstruction admissible where based on expert's review of accident report, an interview with the investigating officer, photographs of the accident scene, and review of witness' testimony, because such information is that which is reasonably relied upon by experts in the field; where dispute existed over sequence of events, expert's testimony would clearly assist jury in interpreting physical evidence). Under Holland, relying on Taylor, "this alone sufficiently supports the admission of [Sergeant Thompson's] expert testimony, as defendant failed to set forth any new evidence calling the reliability of the methods of accident reconstruction into question." Holland, 150 N.C. App. at 463, 566 S.E.2d at 93.
Defendant has failed to show that the trial court committed plain error or abused its discretion in admitting the testimony of Sergeant Thompson. This assignment of error is overruled.
VIII. Discovery Violations
Defendant contends the trial court erred in excluding four exhibits intended to be used to illustrate the computer "photogramatry" employed by defendant's expert witness, Dr. Eberhart, in his reconstruction testimony. We disagree.
The trial court granted the State's motion to exclude the exhibits for discovery violations. Choice of remedies for discovery violations lies within the sound discretion of the trial court. N.C. Gen. Stat. § 15A-910(3). Defendant has failed to show that the trial court abused its discretion. The Court found repeated discovery violations by defendant during trial, violations of a specific order from the trial court for defendant to provide discovery to the State, and excluded the exhibits.
Further, Dr. Eberhart was allowed to testify to and describe the facts and conclusions in the exhibits. Defendant has failed to show that any error in excluding the exhibits resulted in a reasonable probability that "a different result would have been reached at the trial." N.C. Gen. Stat. § 15A-1443. This assignment of error is overruled.
IX. Ineffective Assistance of Counsel
Defendant contends he was denied his right to effective assistance of counsel because his court-appointed counsel failed to request a continuance to allow Dr. Eberhart time to finish his work. We disagree.
To show ineffective assistance of counsel, the performance of the counsel must be deficient and the deficiency must be "so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Strickland v. Washington, 466 U.S. 668, 687, 80 L.Ed.2d 674, 693 (1984). See also State v. Grooms, 353 N.C. 50, 64, 540 S.E.2d 713, 722-23 (2000) Defendant must show that "but for" the defective assistance of counsel, the outcome of the trial would have been different. Id.
Defendant's counsel stated to the trial court:
[O]ur people told us they could have [the photogramatry exhibits] ready by the time we got ready to come to trial. We did not — this case had already been delayed with attorneys going in it — it'd been set and all that kind of stuff. We were doing what we could, rather than to try to delay it again. We've got a client in jail under no bond. We're doing what we could to try to move the case forward.
Counsel for the defendant chose as a trial strategy, based on what they believed best for their client, not to ask for a continuance until Dr. Eberhart produced the documents.
Defendant has failed to show that counsel's actions were deficient, or that "but for" the failure to ask for a continuance, the result at trial would have been different. This assignment of error is overruled.
X. Closing Arguments
Defendant contends the trial court erred in failing to intervene ex mero motu in response to "grossly improper argument" by the prosecution during closing arguments. Defendant contends the State misstated evidence, traveled outside the record, expressed personal opinion, and became abusive.
Control of the arguments of counsel rests in the discretion of the trial court. This Court "ordinarily will not review the exercise of the trial judge's discretion in this regard unless the impropriety of counsel's remarks is extreme and is clearly calculated to prejudice the jury in its deliberations." State v. Johnson, 298 N.C. 355, 369, 259 S.E.2d 752, 761 (1979) (citing State v. Taylor, 289 N.C. 223, 221 S.E.2d 359 (1976)). "[T]he impropriety of the argument must be gross indeed in order for this Court to hold that a trial judge abused his discretion in not recognizing and correcting ex mero motu an argument which defense counsel apparently did not believe was prejudicial when he heard it." Id.
Defendant assigns plain error to three statements made by the State during closing arguments. The State first stated:
In the video you saw, that Dr. Eberhart showed you yesterday, it didn't show a Honda Accord with the tire — wheels turned all the way. Front-wheel drive, you can turn the wheel a lot further, I submit, than what was shown on the video. . . . What you saw was a video produced by the defense, by Dr. Eberhart, for $12,000 — taxpayers' $12,000. They can manipulate the test any way the party wants; but, it was the defendant's tire impression that was on the wheel well liner that was found a quarter of a mile away, and they were tire impressions of a front wheel drive on the roadway.
The State also made statements during closing arguments regarding what Dr. Eberhart did not testify about including: blood and tissue on the undercarriage, the wheel well liner found on the road, bloody tire impressions on the wheel well liner, and "the blood spatter on the underside of the wheel well, which your common sense tells you must have occurred after the Honda ran over her and after the Honda had already lost the wheel well liner." Finally, the State argued that Dr. Butts opined that Sherita had been sexually assaulted immediately prior to her death.
Presuming arguendo that the statements of which defendant complains were improper, the impropriety was not so gross or excessive to compel us to hold that the trial judge abused his discretion in not correcting them without objection by defendant or without a motion that defendant is entitled to a new trial. This assignment of error is overruled.
XI. Short Form Indictment
Defendant contends the trial court erred in denying his motion to dismiss for failure of the indictment to allege every element of first-degree murder. Our Courts have repeatedly and consistently held that the short-form indictment is constitutionally sufficient to allege first-degree murder based on premeditation and deliberation. See e.g., State v. Walters, ___ N.C. ___, ___, ___ S.E.2d ___, ___ (2 May 2003) ("[T]his Court has repeatedly addressed and rejected this argument. Defendant has presented no compelling reason for this Court to reconsider the issue in the present case.") (citing State v. Braxton, 352 N.C. 158, 173-75, 531 S.E.2d 428, 437-38 (2000), cert. denied, 531 U.S. 1130, 148 L.Ed.2d 797 (2001); State v. Wallace, 351 N.C. 481, 504-08, 528 S.E.2d 326, 341-43, cert. denied, 531 U.S. 1018, 148 L.Ed.2d 498 (2000)). We have reviewed over fifty additional decisions in which this issue has been raised and rejected by our Supreme Court and this Court in the last three years. These decisions consistently hold that the short form murder indictment is constitutional. This assignment of error is without merit and is overruled.
XII. Conclusion
The trial court did not commit prejudicial error during the trial or sentencing of defendant for the first-degree murder of Sherita Rivera.
No prejudicial error.
Chief Judge EAGLES and Judge STEELMAN concur.
Report per Rule 30(e).