State v. Spellman ( 2014 )


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  • An unpublished opinion of the North Carolina Court of Appeals does not constitute
    controlling legal authority. Citation is disfavored, but may be permitted in
    accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of
    A   p   p    e   l   l   a    t   e       P   r    o   c   e   d    u   r   e   .
    NO. COA13-1192
    NORTH CAROLINA COURT OF APPEALS
    Filed: 1 July 2014
    STATE OF NORTH CAROLINA
    v.                                    Edgecombe County
    Nos. 12 CRS 51319—21, 12 IFS
    450
    MELISSA NATASHA SPELLMAN,
    Defendant.
    Appeal by defendant from judgments entered 5 March 2013 by
    Judge Walter H. Godwin, Jr., in Edgecombe County Superior Court.
    Heard in the Court of Appeals 8 April 2014.
    Attorney General Roy Cooper, by Assistant Attorney General
    Tammera S. Hill, for the State.
    Appellate Defender Staples Hughes, by Assistant Appellate
    Defender Kathleen M. Joyce, for defendant-appellant.
    BRYANT, Judge.
    Where the trial court conducted a balancing test pursuant
    to Rule 403, the trial court did not abuse its discretion by the
    admission of evidence.        Where a prosecutor’s closing remarks are
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    a reiteration of the evidence, such remarks are proper and do
    not require the trial court to intervene ex meru moto.
    On 24 September 2012, defendant Melissa Natasha Spellman
    was indicted by an Edgecombe County Grand Jury on one count each
    of   second-degree      murder,   aggravated         felony   serious   injury    by
    vehicle, driving while license revoked, reckless driving, and
    failure to stop at a stop sign.                Defendant pled not guilty to
    all counts, and the charges came on for trial at the 4 March
    2013 Criminal Session of Edgecombe County Superior Court.
    The State’s evidence tended to show the following.                      On 12
    May 2012, eyewitness Daryle Whitfield was driving with his son
    on Highway 43.          Whitfield testified that a motorcyclist was
    driving   in    front    of    his   car;      the     motorcyclist     was   later
    identified     as   Chris     Taylor.         As     Whitfield   approached      the
    intersection of Highway 43 and State Road 1003, he noticed “a
    white sedan coming to that intersection at a high rate of speed”
    and thought to himself that “they ain’t got time to stop.”                       The
    intersection was clearly marked with stop signs and flashing red
    stop lights for traffic driving along State Road 1003.
    As the white sedan came through the intersection, it hit
    Taylor, causing the sedan to flip.                 Whitfield testified that he
    saw Taylor moving immediately after the accident and told Taylor
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    that he was going to get help.           Taylor was later pronounced dead
    at the scene, and the cause of death was attributed to “massive
    head injury from a motor vehicle collision.”                 Whitfield stated
    that when he approached the white sedan which had flipped onto
    its roof, he saw three people inside.           Whitfield testified that
    two of the sedan’s occupants, defendant and a man, were moving
    while a third, a female in the back seat, was not and appeared
    to be dead.
    State Highway Patrol Trooper Kearstin Howald testified that
    as she began to investigate the accident scene, she noticed that
    the white sedan “reeked of beer” and saw a beer can inside the
    vehicle.     Trooper Howald stated that when she went to Vidant
    Edgecombe Hospital to speak with the occupants of the white
    sedan, she spoke first with defendant.           Trooper Howald testified
    defendant smelled strongly of alcohol, had red, glassy eyes and
    slurred speech, and was very talkative.             Defendant, who was then
    nineteen years old, told Trooper Howald she had been driving the
    white sedan but it was not her car; she thought she had been in
    a single-car wreck caused by her losing control on a curve in
    the road near the intersection; and that she had been drinking
    that   day   but   was   not   drunk.     Trooper   Howald    testified   that
    defendant told her she had consumed a bottle of Corona beer and
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    a     vodka    shot     earlier       that       day.         A     chemical          analysis     of
    defendant’s       blood       determined            that    defendant’s          blood        alcohol
    content (“BAC”) at the time of the accident was approximately
    0.40, five times the legal limit.
    Defendant        identified         to       Trooper        Howald       the     two     other
    occupants of the white sedan as her friends Brandon Harrell and
    Mareshah McCray.             The accident left McCray in a coma.                               McCray
    suffered       brain    trauma,       fractures         in    her    neck,       spine,       collar
    bone,    and    ribs,     her      ear    was       severed,       and    she    would        require
    facial reconstruction.              Harrell was not seriously injured.
    Defendant testified she had been drinking with Harrell and
    McCray the day of the accident but drove the white sedan because
    she    “felt     like,       you   know,        I    would     be    the       one     to     drive.”
    Defendant       stated       she   did     not      learn     of    Taylor’s          death     until
    Trooper       Howald     told      her      at       the     hospital;          Trooper       Howald
    testified       that     when       defendant           learned          of     Taylor’s        death
    defendant       became        upset       and       said      “I    shouldn’t          have      been
    drinking.”
    Before trial on 30 January 2013, the State filed a notice
    of    intent    to     introduce         evidence       concerning            defendant’s       prior
    conviction       on     21    October        2010       for       driving       while       impaired
    (“DWI”). Defendant filed a motion to exclude evidence of her
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    prior DWI conviction under Rule 404(b), and a motion to exclude
    evidence of social networking activity.                         The trial court denied
    defendant’s         motion     to     exclude        evidence         of    her     prior      DWI
    conviction at the beginning of trial, and reserved judgment on
    the motion to exclude evidence of social networking activity
    until    the    State     sought      to   introduce           such    evidence         into   the
    trial.
    At trial, the court excluded evidence of a photograph taken
    from     defendant’s         Facebook      page,          but    allowed          evidence      of
    defendant’s “About Me” statement made on her Facebook page.
    On 5 March 2013, a jury convicted defendant of all counts.
    Defendant was sentenced to consecutive sentences totaling 182 to
    243 months on the felony counts and received a consolidated
    sentence       of   45    days       and   a    $100.00         fine       for    the    traffic
    misdemeanors.        Defendant appeals.
    _________________________
    Defendant raises two issues on appeal: whether the trial
    court    erred      (I)      under     Rule     403       in    admitting         evidence      of
    defendant’s Facebook statement; and (II) by failing to intervene
    ex mero motu during the State’s closing argument.
    I.
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    Defendant    argues     that     the     trial      court    erred     in      not
    conducting a Rule 403 balancing test prior to admitting evidence
    of defendant’s Facebook statement.              We disagree.
    Pursuant    to   Rule   403     of     the    North    Carolina       Rules    of
    Evidence, “[a]lthough 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. Gen. Stat.
    § 8C-1, Rule 403 (2013).              We review a trial court’s Rule 403
    ruling for abuse of discretion.             State v. Beckelheimer, 
    366 N.C. 127
    , 130, 
    726 S.E.2d 156
    , 159 (2012).
    The State sought to introduce into evidence, pursuant to
    Rule    404(b),    a    photograph      and     a    personal       statement        from
    defendant’s    Facebook      page.      After       hearing      arguments    by     both
    sides concerning the photograph’s admissibility pursuant to Rule
    404(b), the trial court conducted a Rule 403 balancing test and
    determined that although the photograph was relevant, it could
    not    be   authenticated;      therefore,          its    probative      value      was
    outweighed    by   its    prejudicial         effect      and,    thus,   should      be
    excluded from evidence.
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    The State then sought to introduce evidence of defendant’s
    “About Me” Facebook statement during its cross-examination of
    defendant.           Defendant’s   statement    was     as    follows:   “Getting
    wasted is my lifestyle.            If you don’t like it, then f*** off.
    I’m a party animal and a rapper and, oh, yeah, I’m a f******
    boss.”
    In    its offer of proof outside the jury’s presence, the
    State argued that defendant’s Facebook statement was admissible
    for   the   same      reasons   the   State    sought    to    have   defendant’s
    Facebook photograph admitted into evidence because this evidence
    went to the issue of malice.             In admitting the statement into
    evidence, the trial court noted that:
    You got a difference in what she wrote and
    authenticated.   She just sat there during
    the offer of proof and said it was her
    facebook page and that is what she wrote on
    it.
    .   .    .
    That's different than the picture that she
    says someone else [took].   So my ruling is
    is [sic] that the picture cannot come in as
    I ruled before, but what she wrote on that
    limited thing on what he is offering it as
    proof may be admitted.
    In reviewing a Rule 403 balancing test, this Court has held
    that a specific finding as to probative value versus prejudicial
    effect is not required provided it is clear from the procedure
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    used that the trial court conducted a balancing test.                    See State
    v. Washington, 
    141 N.C. App. 354
    , 367, 
    540 S.E.2d 388
    , 397—98
    (2000) (“Here, when defendant objected, the trial court excused
    the jury, conducted a voir dire examination of [a witness] to
    determine the substance of her testimony, and then considered
    arguments of counsel before overruling defendant and permitting
    the jury to hear the testimony.                Although the trial court did
    not make a specific finding that the probative value of the
    evidence outweighed its prejudicial effect, the procedure that
    was followed demonstrated that the trial court conducted the
    balancing test under Rule 403.                We cannot say that the trial
    court   abused        its      discretion     in    admitting    the     evidence.
    Accordingly, this assignment of error is overruled.”).
    Here, as in Washington, the trial court held a voir dire
    out of the presence of the jury as to the proposed statement and
    listened     to   the    arguments    of    counsel,      including    the   State’s
    offer   of    proof     that    the   statement     was    evidence    of    malice.
    Although the trial court did not make specific findings on the
    record that it found the probative value was outweighed by any
    prejudicial effect, it is clear from the record that the trial
    court   considered       the    substance    of    the    proposed    statement   of
    defendant     and       the    arguments      of    counsel     before       allowing
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    defendant’s      Facebook     statement           into    evidence    and     that     such
    decision was made pursuant to a Rule 403 balancing test.                                See
    
    id.
         Therefore, the trial court did not abuse its discretion in
    admitting the evidence.          
    Id.
    Defendant       further    contends          the     trial     court     erred       in
    admitting her Facebook statement because had this evidence not
    been admitted, the jury would have reached a different result.
    Specifically,        defendant    contends         that    the     admission     of    her
    Facebook statement was prejudicial error in that it caused the
    jury to convict her of second-degree murder rather than the
    lesser charge of involuntary manslaughter.                       As we have held the
    trial    court   did    not     err    in    admitting         defendant’s      Facebook
    statement, defendant’s prejudicial argument is without merit.
    Nevertheless,        assuming    arguendo          the    trial    court      erred,       we
    address defendant’s argument alleging prejudicial error.
    "The    test    for    prejudicial          error   is   whether       there    is    a
    reasonable possibility that, had the error not been committed, a
    different result would have been reached at trial."                             State v.
    Scott, 
    331 N.C. 39
    , 46, 
    413 S.E.2d 787
    , 791 (1992) (citation
    omitted).
    In     pursuing    a    charge    of        second-degree       murder     against
    defendant, the State needed to show that defendant acted with
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    malice when she drove while intoxicated.             This Court has held
    that malice can be shown through evidence of defendant’s prior
    convictions for DWI.        See State v. Edwards, 
    170 N.C. App. 381
    ,
    385, 
    612 S.E.2d 394
    , 396 (2005) ("[P]rior driving convictions of
    a defendant are admissible to show malice . . . in a second-
    degree murder case[.]” (citation omitted)).
    The State’s evidence showed: defendant admitted to driving
    the white sedan that struck and killed Taylor; defendant was
    noticeably intoxicated after the accident and her BAC was 0.40,
    five times the legal limit; and defendant was nineteen-years-old
    at the time of the accident, two years below the legal drinking
    age.    In addition, the State’s evidence concerning defendant’s
    prior conviction for DWI showed: defendant was in a serious one-
    car wreck exactly two years prior to her fatal accident with
    Taylor; defendant was seventeen-years-old at the time of the
    accident; chemical analysis showed defendant had a 0.29 BAC at
    the time of the accident; defendant’s license was revoked after
    the accident, and she failed to undergo substance abuse classes
    or   perform    community   service   to   restore    her   license;   and,
    defendant spent time in jail for failure to perform community
    service.       While defendant’s statement beginning with “Getting
    wasted is my lifestyle . . .” was certainly damaging, her own
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    actions which showed serious drinking (0.29) at seventeen-years-
    old which resulted in a serious accident, loss of license, and
    failure     to    perform     required     community   service,        were   more
    damaging than her words.            Therefore, even absent defendant’s
    statement there was sufficient evidence for the jury to find
    defendant guilty of second-degree murder.              Defendant’s argument
    is overruled.
    II.
    Defendant next argues that the trial court erred by failing
    to intervene ex mero motu during the State’s closing argument.
    We disagree.
    Prosecutors are allowed wide latitude in the scope of their
    argument.      State v. Monk, 
    286 N.C. 509
    , 515, 
    212 S.E.2d 125
    , 131
    (1975).       A prosecutor's argument is not improper where it is
    consistent with the record and does not travel into the fields
    of conjecture or personal opinion.              State v. Craig, 
    308 N.C. 446
    , 457—58, 
    302 S.E.2d 740
    , 747 (1983) (citations omitted).                     A
    prosecutor       can   make    closing     arguments   based      on     evidence
    presented as well as reasonable inferences which can be drawn
    therefrom.       State v. Williams, 
    317 N.C. 474
    , 481, 
    346 S.E.2d 405
    ,    410      (1986)     (citations     omitted).      Only     where       the
    prosecutor's argument affects the right of the defendant to a
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    fair trial will the trial judge be required to intervene where
    no objection has been made.           State v. Harris, 
    308 N.C. 159
    , 169,
    
    301 S.E.2d 91
    , 98 (1983).         "[F]or an inappropriate prosecutorial
    comment to justify a new trial, it must be sufficiently grave
    that it is prejudicial error."            State v. Soyars, 
    332 N.C. 47
    ,
    60,   
    418 S.E.2d 480
    ,     487—88    (1992)     (citation    and    quotation
    omitted).
    Defendant    contends     the    trial    court   erred   in    failing   to
    intervene    ex   meru   moto   during     the    State’s   closing     argument
    because     the   closing   remarks      were    “grossly   improper.”          As
    previously discussed in Issue I, the trial court allowed the
    State to present evidence of defendant’s “About Me” statement on
    her Facebook page.       The statement, which defendant acknowledged
    was hers, was read into evidence by defendant in open court.                    In
    its closing argument, the State made the following remarks:
    Now, I'll tell you something, ladies
    and gentlemen, [there are] not many cases
    that you can look into a person's mind. You
    know, nine times out of ten when a judge
    talks about what's on somebody's mind, he
    tells you that you have to infer that from
    the person's actions because we can't read
    minds.
    It's rare that we get evidence of
    what's on somebody's mind.    We have it in
    this case. About [defendant], you know, this
    was a youthful thing and that culture and
    all this and it doesn't have any meaning
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    according to her argument.
    Well, getting wasted is my lifestyle.
    Well, it's interesting that      [defendant]
    wants you to say, well, she didn't mean
    that.   Well, her actions sure indicate she
    meant it.    She got wasted in 2010 to the
    point of a .29 and she got wasted on that
    day.   So she told the truth here.   She was
    wasted.
    And if you don't like it, then, blank
    off. I'm a party animal and rapper and, oh,
    yeah, I'm a blanking boss.    Her words, not
    mine.    Party animal and I like to get
    wasted. You don't like it, blank off.
    Well, I'll tell you.   I'm going to sit
    down. This is in your hands. You've heard
    it. You can adopt the mailbox empty or the
    mailbox full.   You heard the evidence.  I'm
    not going to belabor the point.     But I do
    feel compelled to say this to you.
    If you find her guilty of anything in
    this case but second-degree murder, then you
    will join her by telling this man and this
    family to blank off.
    "A lawyer's function during closing argument is to provide
    the jury with a summation of the evidence, which in turn serves
    to sharpen and clarify the issues for resolution by the trier of
    fact, and should be limited to relevant legal issues."                 State v.
    Jones, 
    355 N.C. 117
    , 127, 
    558 S.E.2d 97
    , 103 (2002) (citations
    and quotation omitted).           Thus, during closing argument “[a]n
    attorney   may,   however,   on    the   basis   of   his   analysis    of   the
    -14-
    evidence, argue any position or conclusion with respect to a
    matter in issue.”       N.C. Gen. Stat. § 15A-1230(a) (2013).
    Here, the State used defendant’s own words in making its
    closing argument to remind the jury that defendant had acted
    with malice when she drove while intoxicated and killed Taylor
    and, thus, was guilty of second-degree murder.              As such, the
    State used defendant’s Facebook statement to argue a “conclusion
    with respect to a matter in issue.”       Id.   Therefore, defendant’s
    argument   that   the    State   prejudiced   the   jury   with   improper
    remarks and the trial court erred by failing to intervene is
    overruled.
    No error.
    Judges HUNTER, Robert C., and STEELMAN concur.
    Report per Rule 30(e).
    

Document Info

Docket Number: 13-1192

Filed Date: 7/1/2014

Precedential Status: Non-Precedential

Modified Date: 10/30/2014