State v. Holmes , 263 N.C. App. 289 ( 2018 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA17-1237
Filed: 18 December 2018
Mecklenburg County, No. 15 CRS 207135
STATE OF NORTH CAROLINA
v.
KARLOS ANTONIO HOLMES, Defendant.
Appeal by Defendant from judgment entered 26 May 2017 by Judge Nathaniel
J. Poovey in Mecklenburg County Superior Court. Heard in the Court of Appeals 7
August 2018.
Attorney General Joshua H. Stein, by Special Deputy Attorney General Isham
Faison Hicks, for the State.
Appellate Defender Glenn Gerding, by Assistant Appellate Defender Amanda S.
Zimmer, for defendant-appellant.
MURPHY, Judge.
The victim, Ms. Claiborne, lived with and was engaged to Defendant, Karlos
Antonio Holmes. The couple had a tumultuous relationship after their engagement.
On Sunday, 24 November 2013, Ms. Claiborne sent Defendant a text message telling
him to move out of the home and that she would be changing the locks and continuing
to request child support. Ms. Claiborne went to a concert that Sunday night and
returned home afterwards. The next morning, her friends and colleagues, concerned
that Ms. Claiborne was absent from work and not responding to text messages, went
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to Ms. Claiborne’s home to check on her. Once they gained entry to the home, they
found Ms. Claiborne lying dead in the bathtub along with a hair dryer. The police
arrived and found white feathers throughout the home and a feather pillow in the
room where Defendant had been staying. A subsequent autopsy found petechiae
under Ms. Claiborne’s eyelids and an internal bruise under her skull. While the
forensic pathologist stated it was her medical opinion that Ms. Claiborne did not die
from electrocution, he was unable to determine a cause of death with certainty.
Defendant was charged with and convicted of first-degree murder.
On appeal, Defendant argues the trial court erred in (A) denying his motion to
dismiss the first-degree murder charge; (B) failing to instruct on the lesser-included
offenses of second-degree murder and voluntary manslaughter; (C) admitting letters
detailing Defendant’s debts; (D) overruling his objection to a statement made by the
State during closing argument; and (E) admitting testimony from two expert
witnesses. We find no error in part and no prejudicial error in part.
BACKGROUND
Defendant and Ms. Claiborne had a romantic relationship and were the
parents of a young child, Christopher1. Ms. Claiborne and Christopher lived in
Charlotte in a home Ms. Claiborne owned. In early 2013, Defendant came to
Charlotte to visit Ms. Claiborne and assist in her recovery after laparoscopic surgery
1 A pseudonym is used to protect the privacy of the minor-child.
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for endometriosis. Defendant’s move to Charlotte and his stay at Ms. Claiborne’s
home became permanent and the two became engaged late in 2013.
As of November 2013, the two were having relationship troubles. Ms.
Claiborne’s cousin testified that “a lot of animosity” existed between Defendant and
Ms. Claiborne and that the two barely spoke during their engagement party. Ms.
Claiborne told her cousin that she did not want “to continue with the wedding because
[Defendant] was having financial issues and he was basically spending all of her
money and she was using all of her money for wedding stuff.”
On Sunday, 24 November, Christopher was with Ms. Claiborne’s mother in
Virginia, and Ms. Claiborne had plans to attend a concert with two friends and
colleagues, Ms. Carlisle (“Carlisle”) and Ms. Horne (“Horne”). Carlisle arrived at Ms.
Claiborne’s home before the concert to curl Ms. Claiborne’s hair. Ms. Claiborne had
just taken a shower and was putting on clothes, and Carlisle noted that there were
no bruises on Ms. Claiborne’s body when she fully disrobed. Carlisle then used a
curling iron to curl Ms. Claiborne’s hair. While in Ms. Claiborne’s room, Carlisle
noted that “everything was put up and organized nice and neat.” The two then left
Ms. Claiborne’s home in Ms. Claiborne’s BMW for the concert, where they met Horne
and other friends. Ms. Claiborne and Carlisle arrived back at Ms. Claiborne’s home
at approximately 10:00 P.M. that night. Defendant’s Volkswagen was not at the
home when they arrived, and Carlisle watched Ms. Claiborne safely enter the home.
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The next morning, Horne texted a group chat with Carlisle and Ms. Claiborne,
and Ms. Claiborne never responded. Carlisle then sent Ms. Claiborne an individual
text message asking whether she was at work and if she was okay. Ms. Claiborne
never responded. Carlisle did not “feel right about the situation,” and told her
supervisor that she would be leaving work for an hour. Horne texted Defendant about
Ms. Claiborne’s whereabouts, to which he responded:
I’m sorry for the delayed response, but I just got out of a –
out of a meeting for work. She went out with [Carlisle] last
night, but I left early this morning and [she] wasn’t there
when I went to work. I’ll call to check on her in a little bit,
I think she had another doctor’s appointment.
Horne replied to the text message and asked whether Ms. Claiborne’s BMW was at
home earlier that day. Defendant did not respond.
Carlisle and Horne went to Ms. Claiborne’s home, where they found
Defendant’s Volkswagen, but not Ms. Claiborne’s BMW. All the doors and windows
to the home were locked, so Carlisle had to lift the garage door for Horne to enter
through an unlocked door inside the garage. While searching for Ms. Claiborne in
the home, Horne entered the bedroom and found it to be “a disaster.” Her clothes,
shoes, and bags were strewn across the floor. Horne then looked in the bathroom,
where she found Ms. Claiborne unresponsive in the bathtub with a blow dryer in her
lap. Horne pulled out and unplugged the blow dryer, and unsuccessfully tried to find
a pulse on Ms. Claiborne.
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Defendant arrived at the home shortly after emergency personnel, alone and
driving Ms. Claiborne’s BMW. Defendant stated he was unaware that Ms. Claiborne
was supposed to go to work that morning. He also told a paramedic that he had
spoken to Ms. Claiborne approximately 30 to 45 minutes before he arrived at the
home and that she told him she planned to take a bath.
When police arrived at the scene, they found a white feather in the bathroom
where Ms. Claiborne was found. They further found the furniture had been moved
in Ms. Claiborne’s bedroom and that her closet was “a mess[,]” with a pile of clothes,
broken hangers, and Ms. Claiborne’s engagement ring hidden in a shoebox under two
feet of clothing. In the bedroom with an air mattress where Defendant was staying,
police found clothing and shoes scattered across the floor and a black duffle bag across
the room containing white socks in the original packaging. There were also white
feathers on the floor of the room and a feather pillow behind the air mattress. A
subsequent search of the kitchen revealed white feathers on wet socks found in the
trashcan, and additional white feathers were found in the trash bin outside of the
home.
A search of Ms. Claiborne’s BMW revealed a broken end table from Ms.
Claiborne’s bedroom, Defendant’s keys to his vehicle, and a Ziploc bag containing
mail. The mail in the Ziploc bag consisted of thirteen parcels addressed to Defendant
containing notices of delinquent child support payments and other debts.
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DNA analysis indicated that Defendant’s DNA was found under one of Ms.
Claiborne’s fingernails and on one of the ends of the hair dryer’s electrical cord. The
autopsy performed on Ms. Claiborne revealed a large bruise around her hip and upper
thigh, a scratch on her right thigh, and petechiae inside her eyelids. The forensic
pathologist found no indication that Ms. Claiborne ingested alcohol or drugs, no
evidence supporting electrocution, and no water in her lungs to indicate drowning.
However, because there were no “strong, solid physical indications that point to an
exact thing that [caused the death],” the forensic pathologist was unable to determine
a cause of death.
Defendant was arrested approximately three months after Ms. Claiborne’s
death and was charged with first-degree murder. A jury convicted Defendant on that
charge and the trial court entered judgment, sentencing Defendant to life without
parole. Defendant timely appeals.
ANALYSIS
A. Motion to Dismiss
The trial court’s denial of a motion to dismiss is reviewed
de novo on appeal. Upon defendant’s motion for dismissal,
the question for the Court is whether there is substantial
evidence (1) of each essential element of the offense
charged, or of a lesser offense included therein, and (2) of
defendant’s being the perpetrator of such offense. If so, the
motion is properly denied.
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State v. Pressley, 235 N.C. App. 613, 616, 762 S.E.2d 374, 376 (internal citations and
quotation marks omitted), disc. review denied, ___ N.C. ___, 763 S.E.2d 382 (2014).
“Substantial evidence is such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion.” State v. Smith, 300 N.C. 71, 78-79, 265 S.E.2d
164, 169 (1980). In reviewing claims of sufficiency of the evidence, we consider all
evidence in the light most favorable to the State, drawing all reasonable inferences
in its favor. State v. Everette, 361 N.C. 646, 651, 652 S.E.2d 241, 244 (2007).
To convict Defendant of first-degree murder under N.C.G.S. § 14-17, the State
must prove Defendant committed: “(1) an unlawful killing; (2) with malice; (3) with
the specific intent to kill formed after some measure of premeditation and
deliberation.” State v. Peterson, 361 N.C. 587, 595, 652 S.E.2d 216, 223 (2007). Thus,
to survive a motion to dismiss on the first-degree murder charge, the State was
required to offer substantial evidence of each element and of Defendant’s identity as
the perpetrator of the unlawful killing. Defendant claims the State failed to meet
this burden with respect to two specific elements: (1) the unlawful killing and (2)
Defendant’s identity as the perpetrator. We discuss each contention in turn.
1. Unlawful Killing
Defendant contends the State failed to show that Ms. Claiborne died by virtue
of a criminal act and, therefore, failed to offer substantial evidence of an “unlawful
killing.” We disagree.
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In proving first-degree murder, the State must show that the victim’s
“immediate cause of death is the natural result of [Defendant’s alleged] criminal
acts.” State v. Cummings, 301 N.C. 374, 378, 271 S.E.2d 277, 280 (1980). “There is
no proper foundation . . . for a finding by the jury as to the cause of death without
expert medical testimony where the cause of death is obscure and an average layman
could have no well grounded opinion as to the cause.” State v. Minton, 234 N.C. 716,
722, 68 S.E.2d 844, 848 (1952). Minton, however, does not place a requirement on
the State to offer expert medical testimony that arrives at a final, determined cause
of death in order for the jury to make a finding as to the cause of death.
Here, the State presented expert medical testimony by the forensic pathologist,
Dr. Thomas Darrell Owens (“Dr. Owens”), who performed the autopsy on Ms.
Claiborne. While Dr. Owens testified that he was unable to clinically determine a
cause of death, the State presented substantial evidence from which the jury could
determine that the cause of Ms. Claiborne’s death was the natural result of a criminal
act. At trial, Dr. Owens testified that the autopsy he performed revealed petechiae,
red dots similar to bruising, on the inside of Ms. Claiborne’s eyelids. Dr. Owens
testified that petechiae are caused by pressure in the head when blood is “flowing in,
but the drainage can’t drain out[,]” leading to burst blood vessels. The presence of
petechiae led Dr. Owens to believe that “there was potentially some type of pressure
around [Ms. Claiborne’s] upper chest or her neck and head area so that the blood got
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trapped and the little blood vessels popped in the skin because the blood couldn’t
drain out.” Indeed, Dr. Owens testified that the presence of petechiae is “more
consistent with pressure on the chest and neck, as in a sitting, pressing or pressure
around the neck” and that such pressure, in the form of suffocation, “almost never”
leaves a mark in the area where the pressure is applied.
Dr. Owens also testified that he found a large bruise around Ms. Claiborne’s
right side around her hip in the upper part of her thigh that was less than 18 hours
old, along with a superficial linear abrasion on the side of her right thigh. Carlisle
testified that the night before Ms. Claiborne’s death, she saw Ms. Claiborne fully
naked as she was dressing and did not see such a bruise. Additionally, Dr. Owens
noted a subgaleal hemorrhage on the inside of Ms. Claiborne’s scalp that “would
indicate her head was hit by something or her head hit into something to cause that
deep bruise.”
Dr. Owens also offered expert medical testimony as to what, in his opinion, did
not cause Ms. Claiborne’s death. Ms. Claiborne’s toxicology report came back
negative for alcohol and all drugs tested. This was notable, as “the vast majority [of
cases of suicide] are positive for alcohol” when suicide is carried out by
instrumentation and suicides involving drugs usually involve high levels of drugs.
Moreover, Dr. Owens ruled out drowning, as there was no water found in Ms.
Claiborne’s lungs. Finally, Dr. Owens found no evidence to support a finding that
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Ms. Claiborne died of electrocution, and it was Dr. Owens’s expert medical opinion
that “she did not die of electrocution.”
Taken in the light most favorable to the State and affording it the benefit of all
reasonable inferences, the evidence presented was sufficient such that a reasonable
juror could accept the evidence as adequate to support the conclusion that the cause
of Ms. Claiborne’s death was the natural result of a criminal act.
2. Defendant as Perpetrator
Defendant contends the State also failed to offer substantial evidence that
Defendant was the perpetrator of the crime. We, again, disagree.
The evidence offered by the State was circumstantial; however,
“[c]ircumstantial evidence may be sufficient to overcome a motion to dismiss ‘even
when the evidence does not rule out every hypothesis of innocence.’” State v. Hayden,
212 N.C. App. 482, 484, 711 S.E.2d 492, 494 (2011) (quoting State v. Stone, 323 N.C.
447, 452, 373, S.E.2d 430, 433 (1988)). When the evidence of a defendant’s identity
as the perpetrator is circumstantial:
[C]ourts often speak in terms of proof of motive,
opportunity, capability and identity, all of which are
merely different ways to show that a particular person
committed a particular crime. In most cases these factors
are not essential elements of the crime, but instead are
circumstances which are relevant to identify an accused as
the perpetrator of a crime.
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State v. Bell, 65 N.C. App. 234, 238, 309 S.E.2d 464, 467 (1983), aff'd, 311 N.C. 299,
316 S.E.2d 72 (1984). Such a question of “[w]hether the State has presented sufficient
evidence to identify defendant as the perpetrator of the offense is not subject to an
easily quantifiable bright line test.” State v. Miles, 222 N.C. App. 593, 600, 730 S.E.2d
816, 823 (2012), aff’ed, 366 N.C. 503, 750 S.E.2d 833 (2013). Thus, while evidence of
either motive or opportunity, standing alone, is insufficient to withstand a motion to
dismiss, we assess “the quality and strength of the evidence as a whole.” Id.Regarding motive, the State presented substantial evidence of a tumultuous
relationship between Defendant and Ms. Claiborne that was colored by Defendant’s
financial troubles. It was known that Ms. Claiborne and Defendant had relationship
problems after their engagement and that animosity existed between the two, which
was apparent at the couple’s engagement party. Ms. Claiborne explicitly stated to a
friend that she did not want “to continue with the wedding because [Defendant] was
having financial issues and he was basically spending all of her money and she was
using all of her money for wedding stuff.” Additionally, the day before Ms. Claiborne
was killed, she sent a text message to Defendant stating, “You have until Tuesday at
8:00 as I’m leaving to go out of town Wednesday or Thursday. And my locks will be
changed. So do my [sic] act stupid. Thanks.” She then sent an additional text stating,
“I will also be [sic] send a request not to stop child support FYI.” Law enforcement
later found a Ziploc bag of notices about Defendant’s child support payments and
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commercial debts. Defendant’s financial hardships, coupled with his tempestuous
relationship with Ms. Claiborne and her threat to end the relationship and remove
Defendant from her home, are sufficient for a reasonable juror to conclude Defendant
had motive to kill Ms. Claiborne. See State v. Gray, ___ N.C. App. ___, ___, 820 S.E.2d
364, ___ (Sept. 18, 2018) (No. COA17-1162) (holding “motive tended to be sufficiently
established with testimony concerning the hostility that existed” between the
defendant and victim).
In order to show opportunity, “the State must have presented at trial evidence
not only placing the defendant at the scene of the crime, but placing him there at the
time the crime was committed.” Hayden, 212 N.C. App. at 488, 711 S.E.2d at 497.
Ms. Claiborne was found with her body already in rigor mortis. The forensic
pathologist testified that the onset of rigor mortis is first noticeable in the fingers and
jaw after 30 minutes to an hour after death and the body progressively stiffens over
the next 6 to 8 hours. As the 911 call was placed at 11:48 A.M., this indicates that
Ms. Claiborne’s death occurred during the night or early morning.
The State presented evidence that Defendant was in the home between the
time that Ms. Claiborne returned home from the concert the night before and when
her body was found the next day. Ms. Claiborne arrived home from the concert in her
BMW and Carlisle watched Ms. Claiborne enter the home. When Defendant arrived
the next day after Ms. Claiborne’s body was found, he was driving Ms. Claiborne’s
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BMW. Thus, Defendant was necessarily at the home during this time period to take
possession of Ms. Claiborne’s car. Moreover, the broken end table found in the BMW
that Defendant was driving when he arrived at the home was circumstantial evidence
placing Defendant at the scene when Ms. Claiborne was killed.
Defendant argues that his presence at the home during this time is insufficient
to show opportunity, as “[h]e had access to the house during this time because he
lived there.” However, we have made it clear that presence at or near the scene of a
killing around the time it was committed is sufficient for a reasonable juror to
conclude Defendant had the opportunity to commit the killing. Miles, 222 N.C. App.
at 601, 730 S.E.2d at 823 (“Taking the State’s evidence as a whole and resolving all
contradictions in favor of the State, a reasonable juror could conclude that defendant
was in the vicinity of the victim’s home and the scene of the crime at the time of death,
thereby establishing defendant’s opportunity to commit the murder.”)
As previously stated, a reasonable mind might accept the evidence, viewed in
the light most favorable to the State and affording it the benefit of all reasonable
inferences, as adequate to support the conclusion that Ms. Claiborne was suffocated
to death. The State introduced evidence tending to establish that Defendant had the
capability of carrying out this method of killing and evidence establishing his identity
as the perpetrator of such an action. A white feather pillow was found behind the air
mattress in the room in which Defendant stayed. Also found in Defendant’s room
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was an opened pack of white socks still in the original packaging. White feathers
were found on the floor in the bedroom, in a trash bin outside the home, and in the
bathroom where Ms. Claiborne’s body was found. A pair of wet white socks was found
in the trashcan in the kitchen with a feather on the socks. This evidence, viewed in
the light most favorable to the State, would allow a reasonable juror to conclude that
Defendant had the means of suffocating Ms. Claiborne with the feather pillow found
in his room and that this evidence connected Defendant to the means of the killing.
Based upon this evidence, there was sufficient evidence from which a
reasonable inference of Defendant’s guilt could be drawn. Accordingly, it was for “the
jury to decide whether the facts, taken singly or in combination, satisfy [it] beyond a
reasonable doubt that [Defendant was] actually guilty.” State v. Fritsch, 351 N.C.
373, 379, 526 S.E.2d 451, 455 (2000). The trial court did not err in denying
Defendant’s motion to dismiss.
B. Instruction on Lesser-Included Offenses
Defendant argues the trial court erred in failing to submit an instruction to the
jury on second-degree murder and/or voluntary manslaughter. Specifically,
Defendant contends the evidence negated premeditation and deliberation. We
disagree.
“We review the trial court’s denial of the request for an instruction on the lesser
included offense de novo.” State v. Laurean, 220 N.C. App. 342, 345, 724 S.E.2d 657,
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660 (2012). A trial court is required to give a jury instruction on a lesser-included
offense “only if the evidence would permit the jury rationally to find defendant guilty
of the lesser offense and to acquit him of the greater.” State v. Millsaps, 356 N.C.
556, 561, 572 S.E.2d 767, 771 (2002). Still, the “trial court should refrain from
indiscriminately or automatically instructing on lesser included offenses. Such
restraint ensures that the jury’s discretion is . . . channelled so that it may convict a
defendant of only those crimes fairly supported by the evidence.” State v. Taylor, 362
N.C. 514, 530, 669 S.E.2d 239, 256 (2008) (citation, alteration, and internal quotation
marks omitted). Our caselaw has made it clear when the trial court shall submit an
instruction for second-degree murder as a lesser-included offense to first-degree
murder:
If the evidence is sufficient to fully satisfy the State's
burden of proving each and every element of the offense of
murder in the first degree, including premeditation and
deliberation, and there is no evidence to negate these
elements other than defendant's denial that he committed
the offense, the trial judge should properly exclude from
jury consideration the possibility of a conviction of second
degree murder.
Millsaps, 356 N.C. at 560, 572 S.E.2d at 771.
In order to satisfy its burden that Defendant’s act was premeditated, the State
must show that “the act was thought over beforehand for some length of time,
however short.” Taylor, 362 N.C. at 531, 669 S.E.2d at 256 (quoting State v. Leazer,
353 N.C. 234, 238, 539 S.E.2d 922, 925 (2000)). To establish deliberation, Defendant
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must have possessed “an intent to kill, carried out in a cool state of blood . . . and not
under the influence of a violent passion or a sufficient legal provocation.” Id.Premeditation and deliberation are typically proven through circumstantial evidence.
State v. Childress, 367 N.C. 693, 695, 766 S.E.2d 328, 330 (2014). Our Supreme Court
“has identified several examples of circumstantial evidence, any one of which may
support a finding of the existence of these elusive qualities.” Id. Such examples
include:
(1) absence of provocation on the part of the deceased, (2)
the statements and conduct of the defendant before and
after the killing, (3) threats and declarations of the
defendant before and during the occurrence giving rise to
the death of the deceased, (4) ill will or previous difficulties
between the parties, (5) the dealing of lethal blows after the
deceased has been felled and rendered helpless, (6)
evidence that the killing was done in a brutal manner, and
(7) the nature and number of the victim's wounds.
Id.Here, the State offered substantial evidence to support a finding of
premeditation and deliberation. As discussed above, Defendant and Ms. Claiborne
had a tumultuous relationship with ill-will existing between the two. Ms. Claiborne
planned to call off the wedding and sent Defendant a text message telling him that
he needed to move out of the home and that she would be changing the locks.
Moreover, she informed Defendant, who had financial troubles, that she would
continue to seek child support payments. The next day her body was found. After
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the killing, Defendant gave inconsistent statements regarding the morning Ms.
Claiborne’s body was found. He told Ms. Claiborne’s friend, Horne, that he left early
for work and Ms. Claiborne was not there. He also stated that he thought she had a
doctor’s appointment. However, Defendant had Ms. Claiborne’s BMW and the keys
to his own car with him, leaving Ms. Claiborne with no vehicle the morning her body
was found. Indeed, when Horne asked Defendant whether the BMW was at the home
when he went to work, he never responded. Moreover, there was no evidence that
Ms. Claiborne provoked Defendant in any way. Accordingly, there was substantial
evidence to support the jury’s finding of premeditation and deliberation.
However, the sufficiency of the evidence to satisfy the State’s burden in proving
the elements of first-degree murder does not end our inquiry. The key issue here is
whether there was evidence to negate a finding of premeditation and deliberation and
support a conviction of second-degree murder. “An instruction on the charge of
second-degree murder requires that the unlawful killing of a human being occur
without premeditation and deliberation.” Laurean, 220 N.C. App. at 347-48, 724
S.E.2d at 662. “[I]f the purpose to kill was formed and immediately executed in a
passion, especially if the passion was aroused by a recent provocation or by mutual
combat, the murder is not deliberate and premeditated.” State v. Misenheimer, 304
N.C. 108, 113, 282 S.E.2d 791, 795 (1981). Stated differently, the specific intent to
kill must be “formed under the influence of the provocation of the quarrel or struggle
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itself” in order to negate premeditation and deliberation. Id. at 114, 282 S.E.2d at
795-96.
The only evidence Defendant claims negates premeditation and deliberation
are the text from Ms. Claiborne telling Defendant to move out of the home and the
signs of the struggle indicated by strewn clothes and broken furniture. From this
evidence, Defendant claims premeditation and deliberation were negated because
“the jury could have concluded” that an argument arose that “aroused a sudden
passion in him.” However, these two pieces of evidence do not negate premeditation
and deliberation.
Ms. Claiborne sent Defendant the text message telling him to move out of the
home and that she would continue to request child support on Sunday, the day before
her body was found. In order to negate premeditation and deliberation by showing a
sufficient provocation, the intent to kill must be formed and immediately executed in
the passion caused by that provocation. There is no evidence that Defendant formed
and immediately executed the intent to kill under the provocation of that text
message when he received it. Even assuming Defendant and Ms. Claiborne did later
argue about the text message, “evidence that the defendant and the victim argued,
without more, is insufficient to show that the defendant’s anger was strong enough
to disturb his ability to reason.” State v. Solomon, 340 N.C. 212, 222, 456 S.E.2d 778,
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785 (1995). Nevertheless, there is no such additional evidence in the record before
us.
Additionally, the strewn clothes and broken furniture that Defendant says
indicate signs of a struggle do not negate premeditation and deliberation in this case.
Our appellate courts have never held that evidence of a struggle, fight, or victim
resistance necessarily negates premeditation and deliberation. See State v.
Hightower, 340 N.C. 735, 744, 459 S.E.2d 739, 744 (1995) (“[A]ny attempts by [the
victim] at hitting or kicking defendant on or near the dirt road prior to his stabbing
her were the direct result of defendant’s pursuit of her.”). The mere fact that there
were strewn clothes and a broken end table, alone, are not evidence that show a
provocation sufficient to render Defendant incapable of deliberating his actions.
We find Defendant’s reliance on State v. Beck, 163 N.C. App. 469, 594 S.E.2d
94 (2004), rev’d in part on other grounds, 359 N.C. 611, 614 S.E.2d 274 (2005),
misplaced and unpersuasive. In Beck, we held there was evidence sufficient to negate
premeditation and deliberation where the defendant was “very drunk” when he went
to see the victim, the victim initiated a physical attack on the defendant, and the
victim made numerous threats to the defendant’s child during the fight that ensued.
Id. at 473-74, 594 S.E.2d at 97. The record here contains no evidence of any of these
circumstances that would require an outcome similar to Beck. Defendant claims the
jury “could have concluded” an argument occurred that aroused a sudden passion in
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Defendant that negated premeditation and deliberation; however, the mere
possibility of such an argument or altercation is insufficient to render the trial court’s
decision not to instruct on second-degree murder erroneous. Defendant has not
pointed us to any evidence that he was incapable of deliberating his action or that he
was unable to reason due to a sufficient provocation. Because the evidence does not
establish that Defendant formed the intent to kill Ms. Claiborne under the influence
of provocation such that premeditation and deliberation are negated, the trial court
did not err in failing to instruct the jury on second-degree murder.
The trial court similarly did not err in failing to instruct the jury on voluntary
manslaughter. “Voluntary manslaughter is the unlawful killing of a human being
without malice and without premeditation and deliberation.” State v. Norris, 303
N.C. 526, 529, 279 S.E.2d 570, 572 (1981). “Killing another while under the influence
of passion or in the heat of blood produced by adequate provocation is voluntary
manslaughter.” State v. Allbrooks, ___ N.C. App. ___, ___, 808 S.E.2d 168, 172 (2017).
“To reduce the crime of murder to voluntary manslaughter, the defendant must either
rely on evidence presented by the State or assume a burden to go forward with or
produce some evidence of all elements of heat of passion on sudden provocation.” Id.Defendant did not present such evidence, and the State’s evidence does not establish
a sudden provocation, much less that he acted under an “immediate grip of sufficient
passion” to warrant a voluntary manslaughter instruction. Without evidence of such
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Opinion of the Court
a provocation and heat of passion, the trial court did not err in failing to instruct the
jury on voluntary manslaughter.
C. Letters
Defendant argues the trial court erred in admitting letters detailing his
outstanding debts over his timely objection that the letters were not relevant under
Rule 401. In the alternative, Defendant contends that the trial court abused its
discretion in admitting the letters, as the probative value was substantially
outweighed by the danger of unfair prejudice under Rule 403. We disagree with both
contentions.
“The admissibility of evidence is governed by a threshold inquiry into its
relevance. In order to be relevant, the evidence must have a logical tendency to prove
any fact that is of consequence in the case being litigated.” State v. Griffin, 136 N.C.
App. 531, 550, 525 S.E.2d 793, 806 (citation and internal quotation marks omitted),
appeal dismissed and disc. review denied, 351 N.C. 644, 543 S.E.2d 877 (2000); see
also N.C.G.S. § 8C-1, Rule 401 (2017). Trial court rulings on relevancy technically
are not discretionary. Dunn v. Custer, 162 N.C. App. 259, 266, 591 S.E.2d 11, 17
(2004). However, because we have noted the trial court “is better situated to evaluate
whether a particular piece of evidence tends to make the existence of a fact of
consequence more or less probable,” rulings on relevancy are given great deference
on appeal. Id.- 21 -
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Opinion of the Court
Evidence may be excluded under Rule 403 even if it is relevant:
Although relevant, evidence may be excluded if its
probative value is substantially outweighed by the danger
of unfair prejudice, confusion of the issues, or misleading
the jury, or by considerations of undue delay, waste of time,
or needless presentation of cumulative evidence.
N.C.G.S. § 8C-1, Rule 403 (2017). Rule 403 determinations “are discretionary, and a
trial court’s decision on motions made pursuant to Rule 403 are binding on appeal,
unless the dissatisfied party shows that the trial court abused its discretion.” State
v. Chapman, 359 N.C. 328, 348, 611 S.E.2d 794, 811 (2005). Abuse of discretion
occurs when the trial court’s ruling “is manifestly unsupported by reason or is so
arbitrary that it could not have been the result of a reasoned decision.” State v.
Hennis, 323 N.C. 279, 285, 372 S.E.2d 523, 527 (1988).
Whether Defendant had a motive to murder Ms. Claiborne was a strongly
contested issue in this case. The State alleged that Defendant was facing financial
difficulties and that those difficulties created a financial motive to kill Ms. Claiborne.
We have previously held that evidence of financial difficulties may be relevant to such
a contested issue. See State v. Britt, 217 N.C. App. 309, 317, 718 S.E.2d 725, 731
(2011) (holding that trial court did not abuse its discretion in admitting letters
detailing the defendant’s financial hardship because the letters “support[ed] the
State’s theory that defendant had a financial motive to kill his wife.”); State v.
Peterson, 179 N.C. App. 437, 465, 634 S.E.2d 594, 615 (2006) (holding that “evidence
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Opinion of the Court
of a potential inheritance of a great deal of money combined with current financial
difficulties may be evidence of a motive for murder.”), aff’ed, 361 N.C. 587, 652 S.E.2d
216 (2007), cert. denied, 552 U.S. 1271, 170 L.Ed.2d 377 (2008). The letters here
indeed indicated that Defendant faced financial hardships with both consumer and
child support debt. This, coupled with evidence that Ms. Claiborne had threatened
to remove Defendant from the home and expressed that she would continue to request
child support, indicate that the letters made the existence of a financial motive to
murder Ms. Claiborne more probable.
Defendant attempts to distinguish this case from those where we have held
evidence was relevant to a financial motive to murder, noting that the amount of debt
was not as high and that Defendant stood to gain no monetary benefit from a life
insurance policy. We find this argument unpersuasive. “Relevant evidence is that
which has any tendency, however slight, to make the existence of any fact of
consequence to the determination of the action more or less probable than it would
be without the evidence.” Britt, 217 N.C. App. at 317, 718 S.E.2d at 731 (emphasis
added). Because Defendant’s financial difficulties were “calculated to throw . . . light
upon the supposed crime[,]” the trial court did not err in admitting the letters. See
State v. Hamilton, 264 N.C. 277, 286-87, 141 S.E.2d 506, 513 (1965). The weight of
such evidence was for the jury. See id. at 287, 141 S.E.2d at 513.
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Opinion of the Court
Additionally, we do not find that the trial court’s Rule 403 determination that
the probative value of the letters was not outweighed by the danger of unfair
prejudice was manifestly unsupported by reason. The trial court here indeed limited
the danger of unfair prejudice by prohibiting the State from publishing to the jury
letters which indicated a criminal action against Defendant. The trial court did not
abuse its discretion in admitting the letters.
D. State’s Closing Argument
During its closing argument, the State made the remark that Defendant “has
absolutely no money.” Defendant argues on appeal that the trial court abused its
discretion in overruling his timely objection to this statement based on his contention
that the content of the statement was not in evidence. We disagree.
“The standard of review for improper closing arguments that provoke timely
objection from opposing counsel is whether the trial court abused its discretion by
failing to sustain the objection.” State v. Jones, 355 N.C. 117, 131, 558 S.E.2d 97, 106
(2002). “In order to assess whether a trial court has abused its discretion when
deciding a particular matter, [we] must determine if the ruling could not have been
the result of a reasoned decision.” Id. (citation and internal quotation marks
omitted). Our Supreme Court in Jones instructed:
When applying the abuse of discretion standard to closing
arguments, this Court first determines if the remarks were
improper. . . . [I]mproper remarks include statements of
personal opinion, personal conclusions, name-calling, and
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Opinion of the Court
references to events and circumstances outside the
evidence, such as the infamous acts of others. Next, we
determine if the remarks were of such a magnitude that
their inclusion prejudiced defendant, and thus should have
been excluded by the trial court.
Id. A defendant is prejudiced by a non-Constitutional error “when there is a
reasonable possibility that, had the error in question not been committed, a different
result would have been reached at the trial out of which the appeal arises. The burden
of showing such prejudice under this subsection is upon the defendant.” N.C.G.S. §
15A-1443(a) (2017).
We need not decide whether the content of the statement that Defendant “has
absolutely no money” referenced circumstances outside of the evidence, as Defendant
has failed to show that such an alleged error prejudiced him. Preceding the
statement, the State detailed Defendant’s debts, all of which were in evidence. The
State also noted that Defendant lived in the home that Ms. Claiborne owned.
Moreover, the State acknowledged that Defendant had in fact started a new job the
day Ms. Claiborne’s body was found. With all of this evidence before the jury, there
is no reasonable probability that the outcome of the trial would have been different
absent the contested hyperbole.
E. Expert Testimony
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Opinion of the Court
Defendant next argues the trial court erred in admitting the expert opinions of
Michael Kale (“Kale”) and Michael McFarlane (“McFarlane”). We consider each in
turn and find no error.
It remains well-established that “the trial judge is afforded wide latitude of
discretion when making a determination about the admissibility of expert
testimony[,]” and the trial court’s determination is reviewed for abuse of discretion.
State v. Bullard, 312 N.C. 129, 140, 322 S.E.2d 370, 376 (1984); State v. King, 366
N.C. 68, 75, 733 S.E.2d 535, 539-40 (2012). “The trial court’s decision will not be
disturbed on appeal unless ‘the court’s ruling is manifestly unsupported by reason or
is so arbitrary that it could not have been the result of a reasoned decision.’” State v.
Mendoza, ___ N.C. App. ___, ___, 794 S.E.2d 828, 834 (2016) (quoting State v. Ward,
364 N.C. 133, 139, 694 S.E.2d 738, 742 (2010)). Thus, “[t]rial courts act as a
gatekeeper in determining admissibility of expert testimony, and a trial court's
decision to admit or exclude expert testimony will not be reversed on appeal unless
there is no evidence to support it.” State v. Walston, 369 N.C. 547, 551, 789 S.E.2d
741, 745 (2017) (citation and internal quotation marks omitted).
Under Rule 702:
(a) If scientific, technical or other specialized knowledge
will assist the trier of fact to understand the evidence or to
determine a fact in issue, a witness qualified as an expert
by knowledge, skill, experience, training, or education, may
testify thereto in the form of an opinion, or otherwise, if all
of the following apply:
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Opinion of the Court
(1) The testimony is based upon sufficient facts or
data.
(2) The testimony is the product of reliable principles
and methods.
(3) The witness has applied the principles and
methods reliably to the facts of the case.
N.C.G.S § 8C-1, Rule 702 (2017). In order for expert testimony to be admissible, it
must satisfy the three prongs of Rule 702: the expert testimony must pass a relevance
inquiry, the expert must be appropriately qualified, and the expert testimony must
be reliable by satisfying the three inquiries enumerated in Rule 702(a)(1)-(3). State
v. McGrady, 368 N.C. 880, 889-90, 787 S.E.2d 1, 8-9 (2016).
1. Kale
Defendant first contends that Kale was not qualified to offer expert testimony
that a running hair dryer dropped in a tub of water would not create current leakage
if there is no path to the ground for the electrical current.
Kale testified that he is an inspection supervisor for Mecklenburg County Code
Enforcement specializing in electrical code enforcement, a position he has held for 15
years. In 2001, Kale received a Level III inspection certification, the highest level of
certification for electrical inspectors. He continues to take 60 hours in continuing
education classes in the field per year. Prior to his current position, Kale had been
an electrical contractor since 1987. Kale stated that in the early 1980s, he began
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Opinion of the Court
constructing electrical wiring systems and continued to do so until his current
position where he switched from constructing to inspecting such systems. More
specifically, Kale’s current responsibilities as an inspection supervisor include
checking “the installation of electrical systems and power distribution systems” by
testing and visually inspecting electrical wiring to ensure compliance with national
and state codes. Kale testified that an appliance with a running circuit placed in a
bathtub with water, with no pathway to the ground, would not create electrical
leakage, as “the only path back to ground is the circuit [to which] it’s attached . . . .”
Given Kale’s knowledge, experience, and training in electrical systems, which
encompasses how electricity moves, it was not an abuse of discretion for the trial court
to determine that Kale had the necessary qualifications to provide this opinion.
Defendant cites Leary v. Nantahala Power & Light Co., 76 N.C. App. 165, 332
S.E.2d 703 (1985) in support of his argument that Kale was not qualified. However,
Leary is readily distinguishable from the case at hand. In Leary, a witness was
tendered as an expert in the field of “operation and maintenance of electrical
distribution systems.” Leary, 76 N.C. App. at 173, 332 S.E.2d at 709. The witness,
however, studied education in school, failed to complete his course of instruction as a
lineman, and was responsible in his current position for “talking with prospective
residential customers, obtaining rights-of-way for provision of service to their homes,
determining the location of the power poles, scheduling line crews and specifying the
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STATE V. HOLMES
Opinion of the Court
materials to be used in providing electrical service systems to the residences.” Id. In
contrast, Kale began his career in the 1980s constructing electrical wiring systems
and subsequently advanced to inspecting such systems for 15 years. While Kale
lacked a post-secondary degree in electrical engineering, we have never required such
a formal credential. State v. Norman, 213 N.C. App. 114, 124, 711 S.E.2d 849, 857,
disc. review denied, 365 N.C. 360, 718 S.E.2d 401 (2011) (holding that the witness’s
“extensive practical experience” in the relevant fields qualified him to testify as an
expert despite his lack of a formal degree). Kale’s experience, training, skill, and
experience in the electrical systems field are distinguishable to the witness in Leary.
Defendant next contends that Kale’s opinion on how an appliance would react
when placed in water was not based on reliable methods. Specifically, Defendant
claims that Kale “formed his opinion . . . when he witnessed a fire department
instructor throw a hair dryer into a similar tub of water” and it kept running.
However, this contention mischaracterizes the testimony. After testifying to the
potential effect of placing an appliance in water with respect to the electrical system,
the State asked Kale, “have you ever witnessed this . . . phenomenon demonstrated?”
Kale’s response to the question describing the demonstration he witnessed merely
assisted in illustrating Kale’s preceding testimony. The testimony was not an
experiment “requiring substantially similar circumstances to test the validity of such
a hypothesis” and did not serve as the basis for Kale’s preceding opinion. See State
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Opinion of the Court
v. Anderson, 200 N.C. App. 216, 222, 684 S.E.2d 450, 455 (2009). Rather, “[the]
illustration enabled the jury to better understand his testimony and to realize
completely its cogency and force.” See id. Defendant’s argument is accordingly
without merit.
2. McFarlane
Defendant contends the trial court abused its discretion in admitting evidence
of McFarlane’s experiment. McFarlane worked for the Federal Bureau of
Investigation as a forensic examiner of electronic devices and was tendered as an
expert in electrical systems and forensic electricity. McFarlane testified that
appliances such as a hairdryer have an ALCI safety plug, which disables the electrical
current going to the device when a certain amount of current leakage occurs. To test
whether the ALCI on the hairdryer found with Ms. Claiborne was working and to
determine the exact amount of leakage at which the ALCI would disable the current,
McFarlane conducted an experiment. He set up “a trough with water in it” and
attached wires to the hairdryer that he then placed in the water. At the other end of
the trough, he placed additional wires to provide a secondary pathway for the current
to leak to the ground. McFarlane then moved the hairdryer closer to the other wires
to determine the exact amount of leakage from the hair dryer circuit to the secondary
pathway that occurred before the ALCI plug disabled the current going to the hair
dryer.
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STATE V. HOLMES
Opinion of the Court
“An experiment is a test made to demonstrate a known truth, to examine the
validity of a hypothesis, or to determine the efficacy of something previously untried.”
State v. Golphin, 352 N.C. 364, 433, 533 S.E.2d 168, 215 (2000) (citation and internal
quotation marks omitted), cert. denied, 532 U.S. 931, 121 S.Ct. 1380, 149 L.E.2d 305(2001).
Experimental evidence is competent and admissible if the
experiment is carried out under substantially similar
circumstances to those which surrounded the original
occurrence. The absence of exact similarity of conditions
does not require exclusion of the evidence, but rather goes
to its weight with the jury. The trial court is generally
afforded broad discretion in determining whether
sufficient similarity of conditions has been shown.
State v. Locklear, 349 N.C. 118, 147, 505 S.E.2d 277, 294 (1998) (internal citations
omitted), cert. denied, 526 U.S. 1075, 119 S. Ct. 1475, 143 L.Ed.2d 559 (1999). We
have held that “the substantial similarity requirement for experimental evidence
does not require precise reproduction of circumstances[,]” but the “trial court must
consider whether the differences between conditions can be explained by the
witnesses so that any effects arising from the dissimilarity may be understood by the
jury . . . .” State v. Chapman, 244 N.C. App. 699, 715, 781 S.E.2d 320, 331 (2016).
Here, McFarlane conducted the experiment to test the amount of current that
would need to be leaked in order for the ALCI safety plug to disable the current going
to the device. McFarlane used the same hair dryer that was found with Ms. Claiborne
in the bathtub. He also used a “trough with water in it” to recreate the bathtub.
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Opinion of the Court
Additionally, McFarlane testified that when he turned on the hair dryer, it functioned
correctly with the attached wires. McFarlane’s failure to say what the trough was
made of or whether it had a metal drain did not render the experiment void of
substantial similarity as Defendant suggests. McFarlane testified that the presence
of a metal drain is relevant in determining whether the drain is connected to
something that would provide an alternative pathway for the current to reach the
ground. However, this experiment was testing the amount of leakage that causes the
ALCI safety plug to disable the current and did not concern the medium through
which the current travels once it is already leaked. Affording the trial court broad
discretion, we do not find that the trial court abused its discretion in admitting this
evidence.
The State later asked McFarlane whether “based on your examination, using
that trough of water, potentially does electricity prefer to go through this hair dryer
circuit, or does it like to go through the water instead?” McFarlane responded, “Given
the tap water that I was using from Quantico, Virginia, the preference of the hair
dryer circuit was to go through the hair dryer and not through the water.” Our review
of the record and the context of McFarlane’s testimony indicates that the “truth” or
“hypothesis” to be tested was not the medium through which the current preferred to
go. However, even assuming this test was an experiment within the meaning of our
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Opinion of the Court
caselaw to test such a hypothesis, the trial court did not abuse its discretion in
admitting the evidence in this context.
We have held that “candid acknowledgment of dissimilarities and limitations
of the experiment is generally sufficient to prevent experimental evidence from being
prejudicial.” Chapman, 244 N.C. App. at 715-16, 781 S.E.2d at 331-32 (citation,
alteration, and internal quotation marks omitted). The prosecutor qualified his
question with the term “potentially,” indicating the same result will not always
happen. Moreover, McFarlane made it clear that the current continues to go through
the hair dryer circuit only in “an ideal bathtub situation” where there is no alternative
pathway to the ground and indicated that an alternative pathway to the ground could
alter the result he observed. McFarlane was also cross-examined on whether the
bathtub in question had a metal drain and what implications this could have.
Accordingly, we find no error.
We also reject Defendant’s contention that McFarlane’s testimony that the
current preferred to go through the hair dryer circuit was not based on reliable
methods as required by Rule 702. McFarlane testified as to the nature and behavior
of electrical currents, the workings of electrical circuits, and specifically how the
electrical circuit within a hair dryer works. McFarlane then explained that he was
employing these principles of electricity to test the amount of current-leakage
necessary to trigger the safety device on the hair dryer. From this test, McFarlane
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Opinion of the Court
specifically indicated that, given the tap water in Quantico, Virginia and the water
trough he was using, the current preferred to go through the hair dryer’s electrical
current. He never opined based on this test that the water definitively preferred to
go through the water in Ms. Claiborne’s situation. Rather, he was describing the
“ideal bathtub situation” based on the nature of electricity and electrical circuits. The
trial court thus acted within its discretion in its determination that McFarlane’s
testimony was based upon sufficient facts and data and was the product of reliable
principles and methods.
CONCLUSION
The trial court did not err in denying Defendant’s motion to dismiss where
substantial evidence, taken in the light most favorable to the State and affording it
every reasonable inference, established each essential element of first-degree murder
and that Defendant was the perpetrator of such offense. Additionally, the trial court
did not err in failing to instruct the jury on second-degree murder and voluntary
manslaughter where there was no evidence to negate premeditation and deliberation.
The trial court also did not abuse its discretion in admitting letters detailing
Defendant’s financial troubles where the letters were probative of a financial motive
to kill the victim and were not unfairly prejudicial to Defendant. Defendant further
failed to show prejudice from the State’s remark that he has “absolutely no money”
during closing argument when the jury heard evidence on Defendant’s full financial
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Opinion of the Court
status. Finally, the trial court did not err in admitting expert testimony and evidence
of an experiment where that determination was not manifestly unsupported by
reason. Accordingly, Defendant received a fair trial.
NO ERROR IN PART; NO PREJUDICIAL ERROR IN PART.
Judges CALABRIA and ARROWOOD concur.
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