State v. Thompson , 250 N.C. App. 158 ( 2016 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA16-94
Filed: 18 October 2016
Mecklenburg County, Nos. 12CRS055383-055394, 12CRS253233-253235,
12CRS253237-253238
STATE OF NORTH CAROLINA, Plaintiff,
v.
DRAYTON LAMAR THOMPSON, Defendant.
Appeal by defendant from judgments entered 11 September 2015 by Judge
Hugh B. Lewis in Mecklenburg County Superior Court. Heard in the Court of
Appeals 11 August 2016.
Attorney General Roy Cooper, by Assistant Attorney General Catherine F.
Jordan, for the State.
Massengale & Ozer, by Marilyn G. Ozer, for defendant-appellant.
ZACHARY, Judge.
Defendant appeals from judgments entered upon the following convictions: (1)
two counts of first-degree rape, one count of first-degree sex offense, and one count of
second-degree kidnapping committed against “Alice”; (2) two counts of first-degree
rape and one count of first-degree kidnapping committed against “Patricia”; and (3)
two counts of first-degree sex offense, one count of first-degree kidnapping, one count
of first-degree rape, and one count of conspiracy to commit first-degree kidnapping
STATE V. THOMPSON
Opinion of the Court
and first-degree rape, committed against “Louise”.1 The offenses were committed by
two men in 1991. Defendant was charged in 2012, after forensic testing revealed a
match between defendant’s DNA profile and DNA evidence collected at the time of
the offenses. On appeal, defendant argues that the trial court erred by admitting the
statements given by Patricia and Alice to a law enforcement officer and by denying
his request for funds with which to retain an expert in order to retest the DNA
samples. Defendant also asserts that the trial court committed plain error in its
instructions to the jury. We conclude that the trial court did not err by admitting the
witnesses’ statements or by denying defendant’s motion seeking funds with which to
retain an expert to retest the DNA evidence, and did not commit error or plain error
in its instructions to the jury.
I. Factual and Procedural Background
In 1991, Alice, Patricia, and Louise were kidnapped and subjected to sexual
assault in separate incidents. On 17 December 2012, defendant was indicted for the
following offenses:
1. Three counts of first-degree rape, two counts of first-
degree sex offense, and one count of first-degree
kidnapping, committed against Patricia.
2. Three counts of first-degree rape, one count of first-
degree sex offense, and one count of second-degree
kidnapping, committed against Alice.
1 To preserve the privacy of the victims, we will use pseudonyms in this opinion.
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3. One count of first-degree rape, three counts of first-
degree sex offense, one count of first-degree kidnapping,
and one count of conspiracy to commit first-degree
kidnapping and first-degree rape, committed against
Louise.
Defendant was tried before a jury beginning on 26 August 2015. Prior to trial,
three different attorneys were appointed to represent defendant. The first two were
removed at defendant’s request. When defendant expressed dissatisfaction with his
third appointed counsel, the trial court ruled that defendant had forfeited his right to
be represented by appointed counsel. Defendant represented himself at trial, with
his third appointed attorney serving as standby counsel. Defendant does not raise
any appellate issue regarding his pro se representation.
At the outset of trial, the State sought to join for trial the charges pertaining
to Alice, Patricia, and Louise. Although defendant opposed joinder of the charges, he
has not challenged the joinder on appeal. The trial took place twenty-four years after
the offenses were committed, during which time Alice and Patricia had died of natural
causes. Louise testified at trial about the offenses committed against her. The
evidence establishing the commission of criminal offenses against Alice and Patricia
came from statements they made to medical personnel at the time of the assaults.
The trial court also admitted as corroborative evidence the statements made by Alice
and Patricia to Charlotte Police Major LaFreda Lester.
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Opinion of the Court
The trial evidence established factual similarities among the cases. All of the
charged offenses occurred in Charlotte between May and August, 1991. In each case,
an African-American woman in her twenties was walking in Charlotte late at night,
and was kidnapped by two African-American men driving a car. In each instance,
after the victim was in the car she was blindfolded, attacked, and threatened. The
two men drove each of the women to a house in an unknown location, where both men
sexually assaulted the victim. All three women were subjected to both forced vaginal
intercourse and forced oral sex. Following the assaults, the men allowed the victims
to get dressed, drove them to a different location, and let them out of the car. In each
case, the victim did not recognize either of the attackers, and no suspects were
arrested in 1991. Forensic examination later revealed a statistically significant
match between defendant’s DNA profile and DNA evidence collected from each victim
in 1991. Finally, in each case, the victim gave statements to medical personnel
describing the kidnapping and sexual assaults. Additional factual details about the
offenses are discussed below, as relevant to the issues raised on appeal.
Prior to submitting the charges to the jury, the prosecutor dismissed one
charge of first-degree rape committed against Alice, and the trial court dismissed one
charge of first-degree rape and one charge of first-degree sex offense committed
against Patricia, as well as one charge of first-degree sex offense committed against
Louise. On 11 September 2015, the jury found defendant guilty of: (1) one count of
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Opinion of the Court
first-degree kidnapping and two counts of first-degree rape of Patricia; (2) one count
of first-degree sex offense, one count of second-degree kidnapping, and two counts of
first-degree rape of Alice; and (3) one count of conspiracy to commit first-degree
kidnapping and first-degree rape, two counts of first-degree sex offense, one count of
first-degree kidnapping, and one count of first-degree rape of Louise. The jury found
defendant not guilty of one count of first-degree sex offense of Patricia.
Because the offenses were committed in 1991, defendant was sentenced under
the Fair Sentencing Act. The trial court imposed three consecutive sentences of life
imprisonment: a consolidated sentence in cases Nos. 12 CRS 55384-85 and 12 CRS
55391; a second consolidated sentence of life imprisonment in cases Nos. 12 CRS
55383, 12 CRS 253233, 12 CRS 25324, 12 CRS 253235, and 12 CRS 253237; and a
third consolidated life sentence in cases Nos. 12 CRS 55387-89, and 12 CRS 55394.
The court also ordered defendant to register as a sex offender for the remainder of his
life and to enroll in satellite-based monitoring if he were released from prison.
Defendant gave notice of appeal in open court.
II. Admission of Statements by Deceased Witnesses to Major Lester
Defendant argues first that the trial court erred by admitting the statements
made by Alice and Patricia to Major Lester to corroborate the women’s statements to
medical personnel. Defendant contends that the statements were “not corroborative
as they were used by the State and the court for the truth of the matter asserted in
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Opinion of the Court
the statements” and that the admission of these statements “violated [defendant’s]
constitutional guarantee to confrontation” under the North Carolina and United
States Constitutions. Defendant does not challenge the admission of Louise’s
statement to Major Lester, as Louise was available for cross-examination at trial.
Therefore, this issue pertains only to defendant’s convictions for offenses committed
against Alice and Patricia. We conclude that the trial court did not err by admitting
the witnesses’ statements as corroboration of their statements to medical personnel.
A. Preservation of Constitutional Issue
We first address the State’s argument that defendant failed to preserve for
appellate review his argument that admission of these statements violated his rights
under the Sixth Amendment to the United States Constitution. When Major Lester
was asked to read Patricia’s statement, defendant objected to the introduction of
Patricia’s statement and asked to be heard outside the presence of the jury. The trial
court overruled defendant’s objection and denied his request to be heard. After Major
Lester read the statement, defendant addressed the trial court outside of the jury’s
presence and moved for a mistrial on the grounds that he was unable to cross-
examine Patricia. Defendant read aloud from the discussion in Crawford v.
Washington, 541 U.S. 36, 158 L. Ed. 2d 177 (2004), concerning the constitutional right
to cross-examine the declarant of a statement introduced for substantive purposes.
The trial court ruled that Patricia’s statement to Major Lester was admissible to
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Opinion of the Court
corroborate her statements to medical personnel and denied defendant’s motions for
a mistrial and to exclude the statement. Defendant also objected to the introduction
of Alice’s statement to Major Lester. We conclude that defendant properly preserved
this issue for our review.
B. Standard of Review
“When a defendant objects to the admission of evidence, we consider, whether
the evidence was admissible as a matter of law, and if so, whether the trial court
abused its discretion in admitting the evidence.” State v. Blackwell, 207 N.C. App.
255, 257, 699 S.E.2d 474, 475 (2010). “The standard of review for alleged violations
of constitutional rights is de novo.” State v. Graham, 200 N.C. App. 204, 214, 683
S.E.2d 437, 444 (2009), disc. review denied, 363 N.C. 857, 694 S.E.2d 766 (2010).
C. Discussion
Defendant argues that the trial court erred by admitting the statements of
Alice and Patricia to Major Lester, on the grounds that the statements were not
admitted as corroborative evidence. Defendant contends that the admission of these
statements violated his right to confront the witnesses against him as guaranteed by
the Sixth Amendment to the United States Constitution. We disagree.
Hearsay is defined as “a statement, other than one made by the declarant while
testifying at the trial or hearing, offered in evidence to prove the truth of the matter
asserted.” N.C. Gen. Stat. § 8C-1, Rule 801(c) (2015). “As a general rule, hearsay is
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Opinion of the Court
inadmissible at trial.” State v. Morgan, 359 N.C. 131, 154, 604 S.E.2d 886, 900 (2004).
In Crawford v. Washington, 541 U.S. 36, 158 L. Ed. 2d 177 (2004), the United States
Supreme Court held that the admission of an out-of-court testimonial statement
made by an unavailable declarant who did not testify at trial and who was not
previously available for cross-examination by the defendant is barred by the
Confrontation Clause of the Sixth Amendment. However:
“[If] evidence is admitted for a purpose other than the truth
of the matter asserted,” such as when evidence is admitted
solely for purposes of corroboration, then “the protection
afforded by the Confrontation Clause against testimonial
statements is not at issue.” . . . According to our Supreme
Court, North Carolina case law establishes “the rule that
prior consistent statements are admissible even though
they contain new or additional information so long as the
narration of events is substantially similar to the witness’
in-court testimony.”
State v. Ross, 216 N.C. App. 337, 346-47, 720 S.E.2d 403, 409 (2011) (quoting State v.
Walker, 170 N.C. App. 632, 635, 613 S.E.2d 330, 333 (2005), and State v. Williamson,
333 N.C. 128, 136, 423 S.E.2d 766, 770 (1992)), disc. rev. denied, 366 N.C. 400, 735
S.E.2d 174 (2012). “Prior statements admitted for corroborative purposes are not to
be received as substantive evidence.” State v. Harrison, 328 N.C. 678, 681, 403 S.E.2d
301, 303-04 (1991) (citation omitted). “[A]dmission of nonhearsay raises no
Confrontation Clause concerns.’ State v. Gainey, 355 N.C. 73, 87, 558 S.E.2d 463, 473
(2002).
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STATE V. THOMPSON
Opinion of the Court
The trial court admitted statements by Alice and Patricia to the health care
personnel who treated them at the time of the assaults, under the exception to the
hearsay rule contained in Rule 803(4), for statements given for purposes of medical
diagnosis or treatment. Defendant does not challenge the admission of these
statements, and the witnesses’ statements to Major Lester were admitted to
corroborate their statements to medical personnel. We conclude that the challenged
statements meet the requirements for admission as corroborative evidence.
Patricia was treated by Nurse Janet Gillespie, who testified at trial. Nurse
Gillespie testified that Patricia told her that at around 2:30 a.m. on 7 May 1991, she
was walking near a location in Charlotte known as The Plaza, when she accepted a
ride with two African-American men whom Patricia did not know. When Patricia got
into the front seat of the car, the man in the back seat put a towel over her head and
an iron bar against her neck. The men drove to a house where they led Patricia inside
with the towel over her head. The men forced her to engage in vaginal intercourse
and fellatio. Patricia was also treated by Dr. David Maxwell Gray, who testified as
an expert in emergency medicine. Dr. Gray’s testimony included the following
summary of Patricia’s statements to him:
Dr. Gray: She says she was walking home and accepted a
ride in a car that had two men in it. One moved to the
backseat when she got in the front seat, and she was
attacked from behind with a crowbar across her neck. That
part I remember. And she had a towel put over her head
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Opinion of the Court
and was driven -- actually, I’ll read it word for word, I'm
sorry.
...
Dr. Gray: Was attacked from behind with a crowbar in
front of neck. Attackers put a towel over patient’s head and
took patient to house. . . . One placed a penis in her mouth
and then had vaginal intercourse, and the second attacker
repeated the same things as the first attacker but with the
addition of attempting anal intercourse.
Major Lester testified that on 7 May 1991, she took a statement from Patricia,
who told Major Lester that she had accepted a ride with two unknown African-
American men. After Patricia got into the car, the men put a towel over her head and
choked her with an iron bar. The men took Patricia to a house where they forced her
to engage in vaginal intercourse and fellatio. Patricia’s statement to Major Lester
included additional details about the incident, but was substantially similar to her
statements to medical personnel.
Alice was treated by Nurse Gillespie and Dr. Russell Howard Greenfield. On
19 July 1991, Alice told Nurse Gillespie that she had been sexually assaulted by two
unknown African-American men a few hours earlier. The men had threatened her
with a knife, choked and blindfolded her, and subjected her to forcible vaginal
intercourse, anal intercourse, and fellatio. Dr. Greenfield testified as an expert in
emergency medicine. Alice told Dr. Greenfield that she and her sister had voluntarily
gotten into a car with two men. When Alice’s sister got out of the car at a convenience
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Opinion of the Court
store, the passenger in the car covered Alice’s head, choked her, and threatened to
stab her. The men took Alice to a house and raped her. Dr. Greenfield testified that
the results of his pelvic examination of Alice were consistent with her having been
sexually assaulted by two men.
Major Lester took a statement from Alice on 16 July 1991. Alice told Major
Lester that earlier that night she and her sister got into a car with two unknown
African-American men. After a short drive, Alice’s sister got out of the car. A man in
the car then covered Alice’s head, choked her, hit her with his fist, and threatened to
stab her. They drove her to a house where both men forced her to engage in vaginal
intercourse. One man also attempted to have anal intercourse and placed his penis
in her mouth. We conclude that Alice’s statement to Major Lester was substantially
similar to her statements to health care personnel.
Based upon our review of the transcript of this case, we conclude that the
statements by Patricia and Alice to Major Lester were properly admitted to
corroborate their statements to the medical personnel who treated them shortly after
each witness was sexually assaulted. In reaching this conclusion, we have carefully
considered defendant’s arguments for a contrary result.
On appeal, defendant does not argue that the statements of Patricia and Alice
to Major Lester were inadmissible as corroborative evidence because the statements
contradicted, rather than corroborated, the witnesses’ statements to medical
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Opinion of the Court
personnel. Defendant contends, however, that the trial court “must not consider the
corroborative nature of the statement when determining whether it qualifies as an
exception to hearsay.” Defendant cites State v. Champion, 171 N.C. App. 716, 722,
615 S.E.2d 366, 371 (2005), in support of this position. In Champion, however, the
issue was whether a statement qualified under the residual hearsay exception in N.C.
Gen. Stat. § 8C-1, Rule 804(b)(5). Champion does not hold that the trial court should
not consider the corroborative nature of a statement in determining whether it falls
within the exception for corroborative statements.
Defendant’s primary argument is that the statements contained additional
information not included in the witnesses’ statements to health care workers and that
the statements were admitted as substantive evidence for the truth of these
additional details, rather than as corroborative evidence. However, the mere fact
that a corroborative statement contains additional facts not included in the statement
that is being corroborated does not render the corroborative statement inadmissible:
“In order to be admissible as corroborative evidence, a
witness’ prior consistent statements merely must tend to
add weight or credibility to the witness’ testimony.
Further, it is well established that such corroborative
evidence may contain new or additional facts when it tends
to strengthen and add credibility to the testimony which it
corroborates.” Moreover, “if the previous statements are
generally consistent with the witness’ testimony, slight
variations will not render the statements inadmissible, but
such variations . . . affect [only] the credibility of the
statement.”
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Opinion of the Court
State v. Walters, 357 N.C. 68, 88-89, 588 S.E.2d 344, 356-57 (2003) (quoting State v.
Farmer, 333 N.C. 172, 192, 424 S.E.2d 120, 131 (1993), and State v. Martin, 309 N.C.
465, 476, 308 S.E.2d 277, 284 (1983)).
Defendant contends that the statements to Nurse Gillespie and the treating
physicians were “bare-bones,” but that Patricia’s statement to Major Lester “provided
the State with evidence, not available from the medical records, which was necessary
to convict [defendant] of many counts.” Defendant does not identify any specific
charge for which the evidence was insufficient without information in the statements
to Major Lester, and our review of the evidence establishes that the statements of
Patricia and Alice to health care personnel, in combination with the DNA evidence
discussed below, provided sufficient evidentiary support for all of the charges that
were submitted to the jury.
When Patricia spoke with the health care professionals who treated her shortly
after she was assaulted, she described being kidnapped and subjected to forcible
sexual intercourse and forcible oral sex with two men. The charges pertaining to
Patricia that were submitted to the jury were two charges of first-degree rape, one
charge of first-degree sex offense, and one charge of first-degree kidnapping. These
charges were adequately supported by Patricia’s statements to medical personnel.
The charges submitted to the jury in which Alice was the alleged victim were two
charges of first-degree rape, one charge of first-degree sex offense, and one charge of
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Opinion of the Court
second-degree kidnapping. These charges were supported by the statements that
Alice gave to medical personnel. Defendant does not specify which convictions
required evidence contained only in the witnesses’ statements to Major Lester and
does not argue that the State’s evidence was insufficient as to any element of any
charged offense in the absence of Patricia’s or Alice’s statement to Major Lester. We
conclude that this argument lacks merit.
Defendant also argues that the “State’s dependence on the statements for
substantive evidence is shown in the State’s . . . closing argument.” Defendant cites
no authority, and we know of none, holding that the State’s reference in a closing
argument to arguably inadmissible evidence establishes that the State had offered
insufficient evidence to convict a defendant without the challenged evidence.
Defendant additionally asserts that the trial court “used the police statements
in charging the jury,” citing a quote from the transcript in which defendant contends
that the trial court was discussing information that “was only available in [Patricia’s]
statement to the police.” However, the quote identified by defendant came not from
the trial court’s charge to the jury, but from a discussion between the trial court, the
prosecutor, and defendant concerning which charges could properly be submitted to
the jury. In fact, the prosecutor and the trial court dismissed those charges that were
not adequately supported by the witnesses’ statements in the hospital. Defendant
also argues that the introduction of the witnesses’ statements for substantive
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purposes is demonstrated by the fact that in the prosecutor’s argument for the joinder
of offenses for trial, he referred to information from these statements:
The court also depended on the testimonial statements to
grant the State’s motion for joinder and for admission of
404(b) evidence, by finding the State had established
sufficient facts relating to mode of operation, similar
scheme and location, based on the State’s list of similarities
which was derived from the testimonial statements.
N.C. Gen. Stat. § 15A-926(a) (2015) provides in relevant part that two or more
offenses may be joined for trial when the offenses are based “on a series of acts or
transactions connected together or constituting parts of a single scheme or plan.” In
this case, the State’s motion for joinder included the following circumstances that
were not, as contended by defendant, “derived from the testimonial statements.”
1. Location – All offenses were committed in Charlotte.
2. Date and Time – All offenses occurred late at night
between May and August, 1991.
3. Victims - All of the victims were African-American
females in their 20s who had been drinking.
4. Modus Operendi - In each case:
a. The victim was walking before getting into a car
with the assailants.
b. The victim was physically assaulted in the car,
and something was put on her head.
c. Similar sexual assaults were perpetrated against
each victim.
d. All of the victims were taken by car to an unknown
location where the sexual assaults occurred.
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5. DNA - In each case, defendant’s DNA matched the DNA
taken from evidence collected at the time of the assaults.
The circumstances noted above were sufficient to support the trial court’s
decision to allow joinder of the offenses, notwithstanding the fact that the State’s
motion for joinder also included the following circumstances included in the victims’
statements to Major Lester, but not in their statements to medical personnel: (1) all
of the victims were released at a location different from where they were abducted,
and (2) the victims’ descriptions to Major Lester of the car and the assailants’
appearance were similar.
The record does not contain a formal written order allowing joinder, and “[t]he
rule is that a trial judge sitting without a jury is presumed to have considered only
the competent, admissible evidence and to have disregarded any inadmissible
evidence that may have been admitted.” Woncik v. Woncik, 82 N.C. App. 244, 249,
346 S.E.2d 277, 280 (1986) (citing City of Statesville v. Bowles, 278 N.C. 497, 180 S.E.
2d 111 (1971)). We conclude that the trial court’s ruling allowing joinder was
supported by the circumstances established from sources other than Patricia’s and
Alice’s statements to Major Lester, and that the record contains no basis on which to
assume that the trial court relied upon other factors.
Defendant further contends that the admission of the testimony of Ms. Eva
Fernandez pursuant to North Carolina Rule of Evidence 404(b) was dependent upon
details found only in Patricia’s and Alice’s statements to Major Lester. Defendant
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Opinion of the Court
argues that in the State’s argument to the trial court for admission of this evidence,
the State referred to the specific location in Charlotte where Ms. Fernandez was
picked up, and linked it to the location where Patricia had been dropped off, and that
this information was only found in Patricia’s statement to Major Lester. However,
there were significant similarities between the charged offenses and Ms. Fernandez’s
experience. In 1991, Ms. Fernandez, like the other victims, was walking in Charlotte
at night, was intoxicated, and accepted a ride from two unknown African-American
men. Once she was in the car, the men hit her on the head with “something silver”
and put a cloth over her head. Fortunately, Ms. Fernandez was able to escape from
the car. We conclude that these similarities, not derived from Patricia’s statement to
Major Lester, were sufficient to support the trial court’s admission of the evidence.
The record does not contain a written or oral order indicating that the trial court
relied upon inadmissible evidence, and we presume that the trial court based its
ruling on admissible evidence. Therefore, even if the prosecutor improperly referred
to the location where Patricia was released in his argument for admission of Ms.
Fernandez’s testimony, there is no basis upon which to conclude that the trial court
based its ruling in part upon this information. We also note that defendant did not
object in the presence of the jury to Ms. Fernandez’s testimony, and does not argue
on appeal that it was inadmissible.
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Opinion of the Court
Defendant also argues that the statements given by Patricia and Alice to Major
Lester provided the only evidence to support certain “indicted” charges. However, at
the close of all the evidence the trial court, the prosecutor, and defendant reviewed
the evidence and dismissed charges that were not supported by Patricia’s and Alice’s
statements to health care personnel. Defendant specifically limits his argument to
“indicted” offenses and does not challenge the evidentiary support for the charges
that were actually submitted to the jury.
The only basis for defendant’s argument that the statements were inadmissible
is that they were admitted for the truth of the matters asserted. We have rejected
this argument and conclude that (1) the statements were admissible to corroborate
the witnesses’ statements to medical personnel, and (2) there was sufficient evidence
to support submission of the various charges to the jury based on the witnesses’
statements to medical personnel and on the overwhelming statistical likelihood that
defendant’s DNA matched that found on the victims.
Finally, defendant argues that the details in the statements increased the
likelihood of a verdict based on emotion. We have concluded that it was not error to
admit the witnesses’ statements. Accordingly, we do not reach defendant’s argument
that the alleged error was a constitutional violation. N.C. Gen. Stat. § 15A-1443(a)
provides that a criminal defendant is prejudiced by non-constitutional errors only if
“there is a reasonable possibility that, had the error in question not been committed,
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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.”
In this case, defendant has failed to establish that there is a reasonable possibility
that he would have been acquitted if the statements had been excluded.
For the reasons discussed above, we conclude that the trial court did not err by
admitting the statements given by Patricia and Alice to Major Lester to corroborate
the witnesses’ statements to the medical personnel who treated them at the time of
the assaults. Defendant’s arguments to the contrary do not have merit.
III. Denial of Defendant’s Motion for Retesting of DNA Samples
Defendant argues next that the trial court erred by denying his motion seeking
funds with which to hire an expert to retest the DNA samples. We disagree.
In October 2009, Charlotte Mecklenburg Police Department DNA team leader
Eve Rossi, who testified at trial as an expert in forensic DNA analysis, conducted
DNA testing of evidence obtained in the assault cases of Patricia, Alice, and Louise,
and found an unknown DNA profile that was common to all three cases. In March
2011, defendant voluntarily provided a buccal swab from which a DNA profile could
be established. In April 2011, Ms. Rossi conducted a DNA analysis of the sample
obtained from defendant and found that it matched the DNA profile of the unknown
subject identified in the three cases.
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When Ms. Rossi was asked to quantify the statistical probability that the DNA
obtained from evidence collected in Alice’s case had originated from someone other
than defendant, she testified that the “probability of selecting an unrelated person at
random who could be the source of that major DNA profile within the vaginal swabs
is approximately 1 in 60.6 trillion.” Ms. Rossi explained that this probability meant
that she "would need to look at or do DNA typing on 60.6 trillion individuals to find
somebody else who would have a DNA profile that also matched that DNA profile
from the vaginal swabs.” Regarding the match between defendant’s DNA profile and
the DNA samples obtained from Patricia, Ms. Rossi testified that the probability of
selecting an unrelated person at random who could be the source of the major DNA
profile obtained in that case was approximately 1 in 1.62 quadrillion. For Louise’s
case, Ms. Rossi testified that the statistical probability of selecting an unrelated
person at random who could be the source of that DNA profile was approximately 1
in 323 billion. Ms. Rossi also testified that the earth’s population was approximately
7.2 billion.
Prior to trial, defendant retained Dr. Maher Noureddine to perform a review
of Ms. Rossi’s analysis of the DNA samples and prepare a report summarizing the
results of his examination. In his report, Dr. Noureddine criticized certain procedures
used in the DNA analysis and took issue with some of Ms. Rossi’s characterizations
of the degree of similarity between various DNA samples. However, Dr. Noureddine
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did not dispute the ultimate results of the DNA analysis. After Dr. Noureddine
submitted his report, defendant filed a pro se motion for funding with which to hire
another expert to retest the DNA samples. The trial court denied defendant’s motion
in an order finding in relevant part that:
1. The Defendant is charged with multiple felonies related
to alleged sexual assaults that took place with three
alleged victims in 1991.
2. There is DNA evidence in all three cases which has been
tested by the State and purports to link the Defendant to
the alleged crimes.
3. Defendant seeks to have the DNA evidence retested by a
defense expert.
4. Previously appointed counsel for the Defendant retained
the services of a DNA expert, Dr. Noureddine.
5. Dr. Noureddine reviewed the DNA analysis performed
by the State and took exception to the some of the
procedures followed by the State, but did not conclude that
the DNA analysis, had it been performed differently, would
have reached a different result.
6. Dr. Noureddine did not recommend the use of a new,
more accurate testing procedure that was not available at
the time of the State’s DNA test.
A trial court’s determination as to whether to provide funding for expert
evaluation of evidence rests within the trial court’s discretion and will not be
disturbed absent a showing of abuse of that discretion. State v. Gardner, 311 N.C.
489, 498-99, 319 S.E.2d 591, 598 (1984). Defendant argues that the trial court abused
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Opinion of the Court
its discretion and challenges the evidentiary support for the trial court’s statements
in Findings Nos. 5 and 6, that Dr. Noureddine “did not conclude that the DNA
analysis, had it been performed differently, would have reached a different result”
and that Dr. Noureddine “did not recommend the use of a new, more accurate testing
procedure that was not available at the time of the State’s DNA test.” Defendant
argues that because “Dr. Noureddine’s report finds procedures, analysis and
conclusions of the CMPD crime laboratory to be contrary to accepted scientific
practice, suggests re-testing evidence and finds one conclusion to be overreaching and
absurd, the court’s findings of fact and conclusions of law are incorrect.” However, the
criticisms that defendant notes from Dr. Noureddine’s report do not identify any
statement or conclusion by Dr. Noureddine either that “the DNA analysis, had it been
performed differently, would have reached a different result,” or that there currently
exists “a new, more accurate testing procedure that was not available at the time of
the State's DNA test.” As a result, defendant’s contentions do not establish that the
trial court’s findings were not supported by the evidence.
Dr. Noureddine had several criticisms of the procedures and methodology
employed by the State’s analysts, including the following:
1. Dr. Noureddine criticized the lab for performing the
analysis of two cases at the same time, because this might
increase the chance of contamination.
2. Dr. Noureddine criticized the quality of the DNA sample
obtained from Patricia and suggested that the lab should
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STATE V. THOMPSON
Opinion of the Court
have “considered” repeating the analysis of the cheek swab
from Patricia.
3. Dr. Noureddine criticized the terminology used by the
State lab in characterizing a particular DNA profile as a
“major contributor” instead of a “partially predominant”
contributor and in using the term “match” to describe the
relationship between Louise’s DNA and that found in the
evidence from Louise’s case.
4. In Patricia’s case, Dr. Noureddine was concerned about
whether the samples had been properly sealed.
In Dr. Noureddine’s report, he summarized the procedures used to conduct the
DNA analysis and noted that in each case the State had made statistical calculations
regarding the match between defendant’s DNA and that obtained from the evidence
collected in 1991. Significantly, in his report Dr. Noureddine does not express any
doubt or concern regarding the statistical conclusions reached by the State. In other
words, Dr. Noureddine’s report does not dispute the ultimate conclusion reached in
each case that it was statistically all but impossible for anyone other than defendant
to have been the source of the DNA profiles obtained from the evidence. Instead, Dr.
Noureddine’s “Final Conclusion” is that “[b]ased on the forensic DNA and serology
evidence that was developed by the CMPD Lab for case #s 1991-0507-040800, 1991-
0716-000400, and 1991-0812-042601, it is my conclusion that Mr. Thompson cannot
be excluded as a potential contributor of DNA in all three cases.”
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STATE V. THOMPSON
Opinion of the Court
We conclude that the trial court accurately summarized the results of Dr.
Noureddine’s analysis and did not abuse its discretion by denying defendant’s motion
seeking funds with which to hire an expert to retest the DNA samples.
IV. Instruction on Acting in Concert
Finally, defendant argues that the trial court committed plain error by
instructing the jury in such a manner that defendant “could be found guilty either by
acting by himself or acting together with another in violation of the prohibition
against double jeopardy.” Defendant cites State v. Graham, 145 N.C. App. 483, 549
S.E.2d 908 (2001), in support of his contention. However, in Graham, the verdict
sheets submitted to the jury included one verdict sheet asking the jury to determine
whether the defendant was guilty of committing a particular offense alone and
another, separate, sheet asking the jury to decide whether the defendant was guilty
of the same offense, either acting alone or with another. On the facts of Graham, the
jury might have convicted the defendant twice for the same offense, once for acting
alone and once for acting either alone or with another. No such circumstance is
present in this case.
For the reasons discussed above, we conclude that defendant had a fair trial,
free of reversible error.
NO ERROR.
Judges STEPHENS and McCULLOUGH concur.
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