Opinion
No. 07-792.
Filed April 15, 2008.
Alamance 04CRS54562, 04CRS54508, 04CRS12022.
Appeal by defendant from judgment entered 4 November 2005 by Judge James C. Spencer, Jr. in Alamance County Superior Court. Heard in the Court of Appeals 16 January 2008.
Attorney General Roy Cooper, by Assistant Attorney General John G. Barnwell, for the State. Appellate Defender Staples S. Hughes, by Assistant Appellate Defender Charlesena Elliott Walker, for defendant-appellant.
Rufus Bishop (defendant) belatedly appeals by writ of certiorari from a judgment entered 4 November 2005 after a jury found him guilty of first degree murder.
During opening statements, defendant's counsel conceded that on 24 May 2004 defendant shot his ten year old daughter, Myiesha Bishop. Four days after the shooting, physicians at the University of North Carolina Hospital at Chapel Hill pronounced Myiesha brain dead, and an autopsy confirmed the cause of death to be a single gun shot wound to the back of the head. She had no other injuries.
In November 2003, defendant and his wife of eleven years, Karen Bishop, separated after Karen discovered defendant with another woman. Karen took their daughter, Myiesha, but remained in the vicinity, living in an apartment.
On 22 May 2004, two days before the shooting, Karen awoke at 5:00 a.m. to find defendant in her bedroom, standing in his underwear; she had not given him permission to be there. Karen testified she was "very uncomfortable" and "scared," but they talked. Two hours later, while defendant was preparing to leave, Karen noticed defendant had a hypodermic needle and syringe. When asked about his intent, defendant stated he was going to leave himself as a surprise on Karen's sofa.
After defendant left, Karen called 911 and went to the Mebane Police Department to report the break-in. Officers were unable to serve a warrant on defendant for burglary; nevertheless Karen allowed Myiesha to remain with defendant for the weekend.
During the evening and early morning hours of 23-24 May 2004, defendant made several calls to Karen Bishop. Karen testified that in one call he stated, "If he couldn't have his family, no one would. That [Karen] needed to start making another baby." In the early morning hours of 24 May 2004, defendant called Karen crying. He said, "I did it" and hung up. Shortly thereafter, one of defendant's neighbors called Karen. Defendant's house was on fire, and defendant wanted Karen to know.
Police and fire department personnel arrived at defendant's house around 3:00 a.m. to find smoke coming from defendant's garage. Inside the house, investigators found matches, burned paper, and a gas can on the stairs. They determined the fire was intentionally set with an ignitable fluid.
Police found Myiesha in the back yard, lying on her back, unconscious, bleeding from her ear, and gasping for breath. She was taken to the University of North Carolina Hospital at Chapel Hill.
That same morning, a State Bureau of Investigation (SBI) agent submitted an affidavit and application for a warrant to search defendant's residence. The warrant was approved at 7:16 a.m.
Pursuant to the warrant, investigators searched defendant's house and, in an upstairs bedroom, found a mattress with "two large pools of blood" at the head, a pillow with an apparent gunshot hole and significant gunshot residue, two .45 caliber shell casings, and a bed sheet hanging from an open window.
Around 7:30 that morning, officers located defendant hiding beside a nearby creek. Defendant had what appeared to be a Smith and Wesson .45 caliber semiautomatic handgun. Before officers took him into custody, defendant stated he was going to kill himself. Defendant also asked if Myiesha was alive. He stated it was an accident, and he helped his daughter by bringing her out of the burning residence.
The medical examiner who performed the autopsy on Myiesha recovered a bullet from her body, but noted no stippling (i.e. pinpoint holes from burning gunpowder) around the entry wound. He later testified that anything placed between the gun and the entry wound would prevent stippling. An expert in forensic firearms examination concluded the bullet recovered during the autopsy was fired from defendant's .45 caliber Smith and Wesson.
Defendant was charged with first degree murder, first degree arson, felony child abuse, and first degree burglary. A jury found defendant guilty of first degree murder — predicated on malice, premeditation and deliberation, and predicated on the first-degree felony-murder rule, with underlying felonies of arson and felonious child abuse. The jury also found defendant guilty of first degree arson, felonious breaking or entering, and felonious child abuse. The trial court entered judgment on the charge of first-degree murder, sentencing defendant to life imprisonment without parole and continued prayer for judgment on the remaining charges.
Defendant raises the following four issues on appeal: (I) (IV) whether the trial court erred by denying defendant's motion to dismiss the charge of first-degree felony murder; (II) whether the trial court committed reversible error by denying defendant's motion to suppress evidence; and (III) whether the trial court committed reversible error by denying defendant's motion to sever. For the reasons set forth below, we find no error with respect to the trial court's rulings on these issues.
I IV
Defendant's first and fourth issues are whether the trial court committed prejudicial error by denying defendant's motions to dismiss the charge of first-degree felony murder predicated on felonious child abuse and arson, respectively. Defendant argues (1) the felonious child abuse merged with the killing and precluded a conviction of first-degree murder predicated on felonious child abuse, and (2) evidence was insufficient to prove the victim was in the house when the fire was set, a required element for first degree arson.
Nevertheless, even assuming defendant's argument has merit, our North Carolina Supreme Court has held that where a defendant should not have been convicted of first-degree murder by virtue of the felony-murder rule, "the verdict cannot be disturbed if the evidence supports a conviction based on premeditation and deliberation." State v. McLemore, 343 N.C. 240, 249, 470 S.E.2d 2, 7 (1996) (citation omitted); see also State v. Mays, 158 N.C. App. 563, 577, 582 S.E.2d 360, 369 (2003) (holding "any error in allowing a jury to consider felony murder does not require a new trial if the jury also found the defendant guilty based on premeditation and deliberation") (citation omitted).
Here, a jury found defendant guilty of felony-murder and guilty of first-degree murder based on premeditation and deliberation. However, defendant has presented this Court with no argument that the judgment of first-degree murder based on premeditation and deliberation is in error, and our review of the record shows no error in such judgment. Therefore, defendant's conviction for first-degree murder will not be disturbed.
II Defendant next asserts the trial court committed reversible error when it denied defendant's motion to suppress evidence collected during a search of defendant's house. We disagree.
Defendant argues that in the affidavit used to establish probable cause for the search, the affiant "falsely and intentionally and with reckless disregard to the truth made at least two material false statements. . . ." The first statement was the averment a homicide had occurred at the time the affidavit and application for a search warrant were submitted, and the second, the affiant falsely and knowingly alleged "a history of domestic violence between Rufus and Karen Bishop" without supplying any facts to suggest the information was credible.
"[W]hen addressing whether a search warrant is supported by probable cause, a reviewing court must consider the totality of the circumstances . . . [and] determine whether the evidence as a whole provides a substantial basis for concluding that probable cause exists." State v. Sinapi, 359 N.C. 394, 398, 610 S.E.2d 362, 365 (2005) (citations and quotations omitted).
Under North Carolina General Statute 15A-978,
A defendant may contest the validity of a search warrant and the admissibility of evidence obtained thereunder by contesting the truthfulness of the testimony showing probable cause for its issuance. The defendant may contest the truthfulness of the testimony by cross-examination or by offering evidence. For the purposes of this section, truthful testimony is testimony which reports in good faith the circumstances relied on to establish probable cause.
N.C. Gen. Stat. § 15A-978(a) (2007). "G.S. 15A-978(a) permits a defendant to challenge only whether the affiant acted in good faith in including the information used to establish probable cause. The statute does not permit a defendant to attack the factual accuracy of the information relied upon to establish probable cause." State v. Langdon, 94 N.C. App. 354, 357, 380 S.E.2d 388, 390 (1989) (citation omitted). "A defendant must make a preliminary showing that the affiant knowingly, or with reckless disregard for the truth, made a false statement in the affidavit. Only the affiant's veracity is at issue in the evidentiary hearing." State v. Severn, 130 N.C. App. 319, 322, 502 S.E.2d 882, 884 (1998) (citations and quotations omitted).
The affidavit used to establish probable cause included the following statements:
There is probable cause to believe that . . . forensic evidence constitutes the crimes of Homicide and arson.
. . .
Affiant has attended numerous training sessions regarding crime scenes and death investigations. Affiant is familiar with the ways and means in which persons inflict the crime of homicide on another. Affiant has investigated the crime of homicide, which has led to the arrest and subsequent prosecution of the perpetrator. Affiant is familiar [sic] that in many instances, suspects use arson to cover their crime of Homicide.
On Monday, May 24, 2004, at approximately 3:16 a.m., the Mebane Police Department received a 911 call of a residential house fire [at defendant's address]. Upon the arrival of the Mebane Fire and Police Departments, 12 year old Myesha [sic] Bishop, black female, and daughter of Rufus Bishop was found lying unresponsive outside the residence on the back lawn. Myesha [sic] Bishop was found to have a single gun shot wound to the back of her head. Emergency Services transported Myesha [sic] Bishop to UNC-Chapel Hill hospital where she received treatment.
. . .
Affiant request [sic] the Court to issue a Search Warrant to search the residence of . . . [defendant], to search for evidence which may be used to link [defendant] to the homicide of his daughter, Myesha [sic] Bishop.
At the trial court's hearing on the motion to suppress, defendant examined no witnesses. Rather defendant, through counsel, argued the presence of "two obvious misstatements of fact." "First was the age of the child. Second, that [Myiesha] wasn't dead."
Hospital personnel declared Myiesha Bishop brain dead and removed her life support four days after the search warrant was authorized. [St. Br.4-5; R. 16].
This Court first considers defendant's argument that the affiant falsely and knowingly alleged "a history of domestic violence between Rufus and Karen Bishop." We note that this argument was not presented to the trial court for consideration in its ruling. "This Court will not consider arguments based upon matters not presented to, or adjudicated by the trial tribunal." State v. Hairston, 123 N.C. App. 753, 761, 475 S.E.2d 242, 247 (1996) (citation omitted). Thus, defendant is procedurally barred from asserting this argument.
We next consider defendant's argument that at the time the affidavit and application to search defendant's house was submitted, the affiant "falsely and intentionally and with reckless disregard to the truth" stated a homicide had occurred, while Myiesha Bishop was still alive. Defendant argues the magistrate was intentionally misled into believing Myiesha Bishop was the victim of a homicide because the affidavit fails to acknowledge that at the time the affidavit was submitted Myiesha was still alive.
We note the unchallenged information known to the affiant at the time the affidavit was submitted: "Myiesha Bishop was found to have a single gun shot wound to the back of her head. Emergency Medical Services transported Myesha [sic] Bishop to UNC — Chapel Hill hospital where she received treatment." Given the unchallenged information known to the affiant at the time the affidavit was submitted and the lack of information to contradict the affiant's veracity, we cannot say "the affiant knowingly, or with reckless disregard for the truth, made a false statement in the affidavit." Severn, 130 N.C. App. at 322, 502 S.E.2d at 884 (citations and quotations omitted). At worst, the affiant's averment that at the time the affidavit was submitted a homicide had occurred amounts to a misstatement of fact. As G.S. 15A-978(a) "does not permit a defendant to attack the factual accuracy of the information relied upon to establish probable cause[,]" Langdon, 94 N.C. App. at 357, 380 S.E.2d at 390, defendant's argument is without merit.
We next consider whether, based on the totality of the circumstances, there were sufficient grounds to grant a warrant to search defendant's house.
The affidavit is sufficient if it supplies reasonable cause to believe that the proposed search for evidence probably will reveal the presence upon the described premises of the items sought and that those items will aid in the apprehension or conviction of the offender. Probable cause does not mean actual and positive cause nor import absolute certainty. The facts set forth in an affidavit for a search warrant must be such that a reasonably discreet and prudent person would rely upon them before they will be held to provide probable cause justifying the issuance of a search warrant. A determination of probable cause is grounded in practical considerations.
State v. Arrington, 311 N.C. 633, 636, 319 S.E.2d 254, 256-57 (1984) (citations and quotations omitted). Yet, "great deference should be paid a magistrate's determination of probable cause and . . . after-the-fact scrutiny should not take the form of a de novo review." Sinapi, 359 N.C. at 398, 610 S.E.2d at 365 (italics omitted). "A magistrate may draw such reasonable inferences as he will from the material supplied to him by applicants for a warrant. . . ." State v. Riggs, 328 N.C. 213, 221, 400 S.E.2d 429, 434 (1991) (citation and quotations omitted).
Based on the averments in the affidavit, we hold the magistrate had sufficient basis to find probable cause to issue a warrant to search defendant's yard and home for forensic evidence relating to the shooting of his daughter. Accordingly, defendant's assignment of error is overruled.
III
Defendant next asserts the trial court committed reversible error when it denied defendant's motion to sever the burglary charge from the murder, arson, and child abuse charges. We disagree. Defendant argues the events underscoring the burglary charge, which occurred 22 May 2004, involve a different offense, a different location, and a different victim than the events which occurred 24 May 2004 and gave rise to murder, arson, and felonious child abuse charges. Defendant argues the events giving rise to the burglary charge, were not transactionally related to the events giving rise to the charges for murder, arson, and felonious child abuse. Defendant further argues the joinder of offenses was unfairly prejudicial in that it only suggested he was a bad person, prone to violence.
The determination "[w]hether offenses should be joined is a matter addressed to the sound discretion of the trial judge. His ruling will be overturned only upon a showing that he abused his discretion." State v. Bracey, 303 N.C. 112, 117, 277 S.E.2d 390, 394 (1981) (citations omitted). "A ruling committed to a trial court's discretion is to be accorded great deference and will be upset only upon a showing that it was so arbitrary that it could not have been the result of a reasoned decision." State v. Rasmussen, 158 N.C. App. 544, 555, 582 S.E.2d 44, 53 (2003) (citation omitted).
Under North Carolina General Statute 15A-926(a), "[t]wo or more offenses may be joined in one pleading or for trial when the offenses, whether felonies or misdemeanors or both, are based on the same act or transaction or on a series of acts or transactions connected together or constituting parts of a single scheme or plan." N.C. Gen. Stat. § 15A-926(a) (2005). Furthermore, our public policy favors joinder where there is a transactional connection. See State v. Jenkins, 83 N.C. App. 616, 617-18, 351 S.E.2d 299, 301 (1986) (citation omitted). Here, there does exist a transactional connection between the events giving rise to the burglary charge and those giving rise to the murder, arson, and child abuse charges.
Also, we note that defendant fails to argue the consolidation deprived him of the ability to present a defense and while defendant argues joining the offenses prejudiced him he fails to show any prejudice.
Accordingly, this assignment of error is overruled.
No error.
Judges HUNTER and JACKSON concur.
Report 30(e).