State v. Oaks ( 2014 )

An unpublished opinion of the North Carolina Court of Appeals does not constitute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 Appellate Procedure.
NO. COA13-701
NORTH CAROLINA COURT OF APPEALS
Filed: 4 February 2014
STATE OF NORTH CAROLINA
v. Cumberland County
Nos. 09 CRS 56531–32
ZACHARY LEE OAKS
Appeal by Defendant from judgments entered 29 November 2012
by Judge James F. Ammons Jr. in Cumberland County Superior
Court. Heard in the Court of Appeals 11 December 2013.
Attorney General Roy Cooper, by Assistant Attorney General
Jess D. Mekeel, for the State.
Unti & Lumsden LLP, by Sharon L. Smith, for Defendant.
STEPHENS, Judge.
Background
This case arises from the death of James “Jimmy” Ali
McCullen1 (“the decedent”) and the stabbing of Linda Paige.
1
There is some discrepancy regarding the decedent’s last name.
The State refers to him as Jimmy McCullough, and he is listed as
such in the warrant for Defendant’s arrest. However, the
transcript and Defendant’s brief exclusively refer to him as
Jimmy McCullen. Relying on the transcript as authoritative, we
employ that spelling here.
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Around 9:00 p.m. on 14 April 2009, the decedent was seen walking
outside the Club Spectrum, near Bragg Boulevard in Fayetteville,
dressed in drag. The decedent was working as a prostitute. Later
that night, the decedent was found lying in a pool of blood with
five stab wounds. A gray shirt and footprints indicating a
struggle were discovered nearby. No one at the scene knew the
identity of the perpetrator.
A few weeks later, on 8 May 2009, Defendant hired a female
prostitute, Linda Paige, to perform oral sex. This occurred
behind a vacant house near Mickey’s, a nightclub. Once Paige
finished, Defendant “snapped” and attacked her, stabbing her
several times. While Paige was helpless, Defendant took back his
payment and left the scene of the attack. According to
Defendant, people then started to chase him, and he ran to
Mickey’s. There he approached the bouncer, Nathaniel Butler, and
claimed that he was being chased by someone who was trying to
kill him. Butler put Defendant in a cab and told him to leave.
When Butler learned that police were coming, however, he removed
Defendant from the cab. Butler then frisked Defendant and found
a large knife in his sock.
Paramedics and police arrived at the scene of the stabbing.
They discovered Paige on the ground, “hurting and kind of crying
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[hysterically],” and Officer Alexander Herrera was informed that
the perpetrator had gone to Mickey’s. Paige was taken to the
hospital and released later that night. She did not testify at
trial. Herrera proceeded to the nightclub and asked the crowd
standing outside “who stabbed the lady across the street.”
Defendant stood up and responded, “I stabbed her.” Defendant was
then taken into custody, and one of the bouncers gave the knife
to Herrera.
Defendant was questioned on 9 May 2009. During the
interrogation, Defendant agreed to speak to the investigators
and waived his right to an attorney. Defendant then admitted to
murdering the decedent and stabbing Paige. He explained that he
had previously solicited a prostitute for oral sex without
realizing that the person was biologically male. When he
discovered this fact, Defendant became angry and wanted revenge.
According to Defendant, the desire for revenge against male
prostitutes became so strong that he “went up [Bragg Boulevard]
and I got the first one I saw,” i.e., the decedent. Defendant
admitted that he wanted the decedent to die and stabbed the
decedent multiple times “[a]ll over his body[,] all over his
body. I wanted to make sure he was dead.” Defendant also
referenced voices in his head, suicidal thoughts, and the
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feeling that there were demons inside him trying to escape.
Defendant was charged with assault with a deadly weapon
with intent to kill inflicting serious injury and first-degree
murder. Those charges were joined for trial.2 On 7 February 2011,
Defendant’s attorney filed a motion for a competency evaluation.
No further documentation regarding the request for such an
evaluation exists in the record on appeal, and Defendant’s
appellate counsel states that she “was unable to locate either a
transcript of a pre-trial hearing regarding [Defendant’s]
capacity to proceed or a written order by the trial court
finding him capable of proceeding to trial.”
The trial began on 26 November 2012 in Cumberland County
Superior Court. During the trial, a laboratory analyst for the
State Bureau of Investigation (“SBI”) testified regarding the
deoxyribonucleic acid (“DNA”) test results from the blood on the
decedent’s clothes and the gray shirt found at the scene. The
blood from the shirt was consistent with the decedent’s DNA, and
samples obtained from under the armpits and neck were consistent
with Defendant’s DNA. Additionally, the videotape of the
interrogation of Defendant was shown to the jury, and the
2
The record contains a copy of the motion and order for joinder,
but lacks a transcript of the hearing on that motion.
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transcript was admitted into evidence. After the evidence was
presented, the jury found Defendant guilty of first-degree
murder and assault with a deadly weapon inflicting serious
injury. Defendant was sentenced to life imprisonment without
parole for the murder and 25 to 39 months for the assault.
Defendant appeals.
Discussion
On appeal, counsel for Defendant states her opinion that
there are no meritorious issues for appellate review in this
case and files her brief pursuant to the procedure established
in Anders v. California, 386 U.S. 738, 18 L. Ed. 2d 493 (1967)
and State v. Kinch, 314 N.C. 99, 331 S.E.2d 665 (1985).
Accordingly, counsel requests that this Court conduct an
independent examination of the record for any possible error and
properly appends a letter informing Defendant that she was
unable to identify any meritorious arguments on appeal. Counsel
also properly informed Defendant that he has the right to submit
his own written arguments in support of his appeal and provided
him with the necessary contact information to “request
additional time to prepare and submit [his] argument.” Counsel
included a copy of her brief and the record on appeal with her
letter to Defendant. She also indicated that she would provide a
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copy of the trial transcript if Defendant elected to file a
brief with this Court. This comports with the requirements set
forth in Anders and Kinch. See Kinch, 314 N.C. at 101–02, 331
S.E.2d at 667.
Defendant has failed to file any arguments with this Court.
Though counsel for Defendant believes there are no meritorious
arguments on appeal, she has directed our attention to two
possible issues: (1) whether the trial court abused its
discretion in allowing the State’s motion for joinder and (2)
whether the trial court erred in admitting the testimony of the
SBI analyst. After reviewing those issues and the entire record
on appeal, we find no error.
I. Joinder of Charges Against Defendant
The first possible issue suggested by defense counsel is
“[w]hether the trial court abused its discretion in joining the
two charges for trial, as joinder [may have] prejudiced Mr.
Oaks’[s] right to a fair trial.” We conclude that it did not.
“The motion to join is within the sound discretion of the
trial judge, and the trial judge’s ruling will not be disturbed
absent an abuse of discretion.” State v. Simmons, 167 N.C. App.
512, 516, 606 S.E.2d 133, 136 (2004), appeal dismissed and disc.
review denied, 359 N.C. 325, 611 S.E.2d 845 (2005). “Abuse of
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discretion results where 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. Hennis, 323
N.C. 279, 285, 372 S.E.2d 523, 527 (1988).
Two or more offenses may properly be joined
for trial if the offenses 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) (2003)
. . . . This Court has held that in ruling
upon a motion for joinder, a trial judge
must utilize a two-step analysis: (1) a
determination of whether the offenses have a
transactional connection and (2) if there is
a connection, a consideration of whether the
accused can receive a fair hearing on the
consolidated offenses at trial.
Simmons, 167 N.C. App. at 516, 606 S.E.2d at 136 (certain
citations omitted; emphasis in original). Joinder is generally
favored on public policy grounds because it “expedites the
administration of justice, reduces the congestion of trial
dockets, conserves judicial time, lessens the burden upon
citizens who must sacrifice both time and money to serve on
juries[,] and avoids the necessity of recalling witnesses who
would otherwise be called upon to testify only once.” State v.
Maness, 321 N.C. 454, 458, 364 S.E.2d 349, 351 (1988).
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As the State notes in its brief, the offenses in this case
were clearly connected by a series of acts as contemplated by
section 15A-926(a):
(1) [B]oth victims were prostitutes; (2) the
stabbings were committed in a span of mere
weeks and in roughly the same geographical
location; (3) the victims were stabbed
multiple times . . . ; and (4) [D]efendant’s
apprehension for and confession to the
second stabbing led directly to his
confession to the first stabbing.
We agree and, therefore, conclude that joining these offenses
did not deprive defendant of a fair trial. Accordingly, we hold
that the trial court did not abuse its discretion in allowing
the State’s motion for joinder.
II. The Testimony of the SBI Analyst
The second possible issue suggested by defense counsel is
whether the trial court erred in admitting the testimony of the
SBI analyst to show random match probability, where such
testimony may have relied on the “prosecutor’s fallacy” as
discussed in State v. Ragland, __ N.C. App. __, 739 S.E.2d 616
(2013). We conclude that the trial court did not err in allowing
the analyst’s testimony.
The North Carolina Supreme Court “has elected to review
unpreserved issues for plain error when they involve either (1)
errors in the judge’s instructions to the jury, or (2) rulings
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on the admissibility of evidence.” State v. Gregory, 342 N.C.
580, 584, 467 S.E.2d 28, 31 (1996). The testimony of the SBI
analyst was admitted at trial without objection and, thus, is
reviewed for plain error. Plain error arises when the alleged
error is “so basic, so prejudicial, so lacking in its elements
that justice cannot have been done.” State v. Odom, 307 N.C.
655, 660, 300 S.E.2d 375, 378 (1983) (citation and internal
quotation marks omitted). “Under the plain error rule, [the]
defendant must convince [the appellate court] not only that
there was error, but that absent the error, the jury probably
would have reached a different result.” State v. Jordan, 333
N.C. 431, 440, 426 S.E.2d 692, 697 (1993) (citation omitted).
According to the United States Supreme Court,
[t]he prosecutor’s fallacy is the assumption
that the random match probability is the
same as the probability that the defendant
was not the source of the DNA sample. In
other words, if a juror is told the
probability a member of the general
population would share the same DNA is 1 in
10,000 (random match probability), and he
takes that to mean there is only a 1 in
10,000 chance that someone other than the
defendant is the source of the DNA found at
the crime scene (source probability), then
he has succumbed to the prosecutor’s
fallacy. It is further error to equate
source probability with probability of
guilt, unless there is no explanation other
than guilt for a person to be the source of
crime-scene DNA. This faulty reasoning may
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result in an erroneous statement that, based
on a random match probability of 1 in
10,000, there is a .01% chance the defendant
is innocent or a 99.99% chance the defendant
is guilty.
McDaniel v. Brown, 558 U.S. 120, 128, 175 L. Ed. 2d 582, 588
(2010) (citation omitted; emphasis added). The critical element
of the prosecutor’s fallacy is not the existence of testimony
about random match probability. Rather, it is the act of
assuming that such evidence also constitutes source probability
or — at the very least — the failure to correct such an
assumption.
In McDaniel, the defendant did not challenge
the State’s expert’s random match
probability opinion that only 1 in 3,000,000
people would have the same DNA profile as
the rapist. However, the Court explained
that the State’s expert failed to properly
dispel the prosecutor’s fallacy when the
prosecutor asked the State’s expert, in a
classic example of erroneously equating
source probability with random match
probability, whether “it would be fair to
say that . . . the likelihood that [the DNA
was] not the defendant[’s] would be
.000033,” and the State’s expert ultimately
agreed that it was not inaccurate to state
it that way.
State v. Ragland, __ N.C. App. __, __, 739 S.E.2d 616, 624
(2013) (brackets, ellipses, and certain internal quotation marks
omitted; emphasis added) (citing McDaniel, 558 U.S. at 128–29,
175 L. Ed. 2d at 588). Similarly, in Ragland, we held that an
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investigator “properly testified” at trial when he stated that
“the probability of randomly selecting an unrelated individual
with the DNA profile that matches the DNA profile obtained [in
this case] is greater than 1 trillion, which is more than the
world’s population for North Carolina Caucasian, Black, Lumbee
Indian[,] and Hispanic populations.” Id. at __, 739 S.E.2d at
625. It was only when the analyst expanded on his testimony by
concluding that the random match probability meant, “if it’s
over the world’s population, . . . that there could be no one
else other than [the defendant] in the world” and opined that
the DNA evidence in that case could “be no one other than [the
defendant]” that he engaged in the logical fallacy. Id.
Like the investigator in Ragland, the SBI analyst in this
case testified that, as to both the decedent and Defendant, the
“probability of randomly selecting an unrelated individual with
a DNA profile that matches the DNA profile obtained from the
cutting of the shirt [(i.e., random match probability)] . . . is
one in greater than one trillion which is more than the world’s
population in the North Carolina Caucasian, [B]lack, Lumbee,
Indian[,] and Hispanic populations.” Following that statement,
the analyst explained that it is “scientifically unreasonable”
to believe that the DNA obtained from the shirt could have
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originated from anyone other than the decedent or Defendant
unless either had an identical twin. This conclusion does not
assume that the random match probability is the same as the
source probability (i.e., the likelihood that Defendant and the
decedent are the sources of the DNA). Rather, it offers an
opinion regarding whether Defendant and the decedent are the
sources of the DNA pursuant to the low random match probability.
This is not a logical fallacy. Therefore, we hold that the trial
court did not err — much less plainly err — in admitting the
analyst’s testimony.
After carefully reviewing the transcript and record, we are
unable to find any possible prejudicial error at trial. The
offenses in this case were clearly connected by a series of
acts, and the trial court did not commit plain error in
admitting the testimony of the SBI analyst. Accordingly, we find
no error in Defendant’s trial.
NO ERROR.
Judges STEELMAN and DAVIS concur.
Report per Rule 30(e).