State v. Gallion ( 2022 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
2022-NCCOA-164
No. COA21-375
Filed 15 March 2022
Buncombe County, Nos. 17 CRS 83204, 17 CRS 83209, 17 CRS 83792
STATE OF NORTH CAROLINA,
v.
TIMOTHY ROBERT GALLION.
Appeal by defendant from judgment entered 11 February 2020 by Judge Carla
Archie in Buncombe County Superior Court. Heard in the Court of Appeals 14
December 2021.
Attorney General Joshua H. Stein, by Special Deputy Attorney General Robert
C. Montgomery and Special Deputy Attorney General Daniel P. O’Brien, for the
State.
William D. Spence for Defendant-Appellant.
CARPENTER, Judge.
¶1 Defendant appeals from judgment after a jury convicted him of first degree
murder, possession of a firearm by a felon, and driving while impaired. After careful
review of the record, we find no error.
I. Factual & Procedural Background
¶2 The State’s evidence presented at trial tends to show the following: Defendant’s
wife, Ms. Gallion, testified that on 22 March 2017, Defendant made the following
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statement to her: “I’m going to kill your mother, I’m going to kill your sister, and I’m
going to kill everybody that knows you, and then I’ll kill you.” Ms. Gallion further
testified that on the same day Defendant communicated the threats, she took out a
warrant for his arrest.
¶3 At around 3:46 p.m. that day, officers of the Buncombe County Sheriff’s
Department were dispatched to Defendant’s home to arrest him. The officers
attempted to contact Defendant or Ms. Gallion but could locate neither of them on
the property. They observed through the window of a workshop on Defendant’s
property “a handful of bullets on a shelf.”
¶4 Sergeant Nathan Ball (“Sergeant Ball”) of the Buncombe County Sheriff’s
Office oversaw the department’s Community Enforcement Team, which handles
community complaints including warrant services. He testified his team responded
to the call to Defendant’s home. Upon Sergeant Ball learning from his team
Defendant was not at the residence, he went to the nearby intersection of Wittemore
Branch Road and Barnardsville Highway, where Defendant might cross if he were to
return home. As he was talking with his colleague Captain Elkins regarding the
matter, they heard a dispatch for the fire department regarding a structure fire on
Dillingham Road.
¶5 Sergeant Ball headed to the area of the fire, as he knew Defendant “had a
previous address on Dillingham Road.” On his way there, Sergeant Ball saw someone
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getting into a green Dodge pickup truck, matching the description of Defendant’s
vehicle, parked beside Sheena’s Restaurant. Sergeant Ball dispatched other
members of his team to the location. The officers left Defendant’s home, heading in
the direction of the restaurant. Sergeant Ball knew Defendant was a convicted felon.
¶6 At around the same time that afternoon, Defendant went to the property of
Tommy Carson (“Carson”), the uncle of Defendant’s former wife, at 397 Dillingham
Road where Carson’s house is located and where Carson used to operate a grocery
store. Carson testified Defendant approached and first asked him for beer or wine,
but when Carson did not have these items, Defendant asked to borrow ten dollars.
After Carson responded he did not have any money either, Defendant showed him his
“bulletproof” jacket with a Buncombe County Sheriff’s Office SWAT team patch
affixed to an arm and a “9 millimeter Uzi” firearm.
¶7 Carson advised he was heading out but could pick up money for Defendant at
the bank if Defendant wanted to follow him there. Defendant declined the offer
telling Carson, “he had to go up the road to take care of some business.” Carson
witnessed Defendant get in his truck and go up the road. Carson drove away with
Brooke Blagg (“Blagg”) who lived on his property. Defendant ultimately left Carson’s
property shortly after Carson at 4:24 p.m. At 4:31 p.m. a call came into the fire
department regarding a fire in Carson’s building. Defendant stated in an interview
with investigators on 23 March 2017 that he headed over to Sheena’s Restaurant
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after leaving Carson’s house. According to Defendant, he asked the owner of the
restaurant for twenty dollars, then went home. He also admitted to drinking six
beers and “maybe four” Johny Bootlegger spirited beverages on 22 March 2017.
¶8 Blagg saw Defendant on Carson’s property on 22 March 2017 and testified she
and Carson “left the store and [Defendant] went up to the church and turned around
and came back down” to Carson’s property. She confirmed she saw Defendant leave
the store and drive towards the house of Bobby Pegg (“Pegg’”), the victim. She added,
“because right past the church [on Dillingham Road] is where [Defendant] had lived
at with [Pegg].” “The church . . . it’s going in the direction” of Pegg’s house.
¶9 Officers located Defendant traveling on Barnardsville Highway and followed
him after he turned on Wittemore Branch Road. Defendant did not stop his vehicle
when two police cars pursued him with blue lights and sirens activated.
¶ 10 Officers eventually stopped Defendant via a roadblock. They approached his
vehicle with guns drawn and removed Defendant from the vehicle after he refused to
show his hands. In Defendant’s vehicle, officers found two firearms in plain view.
The officers also observed “blood on the steering wheel, on a door, [and on] the driver’s
seat.” Officers arrested Defendant at approximately 4:43 p.m. and took inventory of
his truck. They recovered firearms including a Ruger 9-millimeter “shotgun” and a
Cobray 9-millimeter pistol as well as three 9-millimeter magazines, one 9-millimeter
flash suppressor, and 9-millimeter ammunition. The 9-millimeter ammunition
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included “silver-colored casings with the headstamp of FC LUGER 9 MM.” Officers
performed a pat down of Defendant and located a GPS monitoring device on his left
ankle. They also “noticed a strong odor of alcohol” coming from Defendant’s person.
Defendant was transported to a detention center where he refused to perform an
alcohol breath test; his blood was drawn for analysis pursuant to a search warrant.
¶ 11 Deputy Leslie Meade (“Deputy Meade”) of the Buncombe County Sheriff’s
Department performed standardized field sobriety tests on Defendant. Deputy
Meade testified Defendant showed six of six clues on the horizontal gaze nystagmus
(“HGN”) test, and seven of eight clues on the walk and turn test. Defendant refused
to complete the one-legged stand test.
¶ 12 At approximately 2:00 p.m. the following day—23 March 2017—Pegg’s niece,
Summer Riddle (“Riddle”) and his mother, Jeanette Pegg, arrived at Pegg’s house on
665 Dillingham Road to check on him after they had not heard from him since 21
March 2017. Defendant’s brother owned the house where Pegg lived, and Defendant
had performed carpentry work and repairs on the house.
¶ 13 Pegg was last seen alive on 22 March 2017 at about 1:00 p.m. by his neighbor
who witnessed Pegg standing in his driveway. Riddle and Jeanette Pegg found Pegg’s
deceased body sitting on the couch in the living room. Riddle testified the kitchen
door was unlocked when she arrived at the house, and it was normal for Pegg to leave
the house unlocked when he was home. Riddle and Jeanette Pegg called 911 within
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minutes of arriving on the scene. Law enforcement responded to the 911 call and
initiated a homicide investigation. Officers found silver-colored shell casings with
the headstamp “FC LUGER 9 MM,” matching the description of the bullets found in
Defendant’s vehicle, around Pegg’s body.
¶ 14 An autopsy revealed Pegg died from gunshot wounds to his head, although an
exact date or time of death could not be determined from the examination. The
autopsy report shows Pegg had three gunshot wounds to his head. Two of the wounds
had “soot and stippling” around them, indicating the muzzle of the gun was close to
Pegg when fired. The third wound did not have soot or stippling, indicating the gun
was fired at an “indeterminate range” from the deceased.
¶ 15 On 29 January 2020, Defendant filed a pretrial motion to suppress any
evidence seized during the search of his home address on the basis the search warrant
affidavit “fails to implicate the premises,” as required by N.C. Gen. Stat. § 15A-244,
the North Carolina Constitution, and the United States Constitution. Defendant also
moved to suppress evidence of GPS data on the grounds his statutory rights were
violated when privileged information, namely GPS data of his movements, was orally
provided by the North Carolina Department of Public Safety (‘DPS”) to law
enforcement before a court order was issued. On 3 February 2020, the trial court
heard Defendant’s motion to suppress and orally announced its findings of facts and
conclusions of law in open court. The trial court concluded there had been no
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substantial violation of Chapter 15A that warranted suppression and denied
Defendant’s motion.
¶ 16 A jury trial began on 3 February 2020 before the Honorable Carla Archie in
Buncombe County Superior Court. Defendant admitted to having been previously
convicted of three charges of driving while impaired, resulting in a conviction of
habitual driving while impaired.
¶ 17 At trial, Alyssa Tinnin (“Tinnin”) was tendered by the State as an expert in the
field of forensic toxicology. Tinnin testified she conducted a chemical analysis on the
blood sample identified as that taken from Defendant. Tinnin opined Defendant’s
blood sample contained 0.17 grams of alcohol per 100 milliliters.
¶ 18 Elizabeth Wilson (“Wilson”), is a firearms examiner who, at the time of the
hearing, was employed by the North Carolina State Crime Laboratory. Wilson was
tendered as an expert in the area of firearms identification and examination. Wilson
testified that she performs all tests on firearms based on reliable facts and data. She
examined the Cobray 9-millimeter and Ruger 9-millimeter firearms seized from
Defendant’s vehicle. Wilson also did comparison examinations of the shell casings,
bullets, and projectiles that were collected from the homicide crime scene. Based on
the results of her examination, Wilson concluded that seven shell casings found
around Pegg’s’ body, the “caliber .38 class fired copper jacket” fragment that was
imbedded in wood at Pegg’s home, the “caliber .38 class fired copper jacket” collected
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from Pegg’s temple, and the “caliber .38 class fired jacketed bullet” collected from
Pegg’s jaw were all fired from the same Cobray 9-millimer pistol seized from
Defendant.
¶ 19 On 27 March 2017 at approximately 1:58 p.m., Sergeant Ryan Jordan
(“Sergeant Jordan”) of the Buncombe County Sheriff’s Department obtained a search
warrant for Defendant’s GPS monitoring data obtained from Defendant’s previously
mandated post-release electronic monitoring device. The search warrant was
executed at 2:13 p.m. that afternoon. Sergeant Jordan testified he obtained the
information sought in the search warrant from Joan McCurry (“McCurry”), the Chief
Probation and Parole Officer for DPS, approximately three days after he executed the
search warrant.
¶ 20 At trial, McCurry testified regarding the GPS communication device
Defendant was wearing and the business records created from such a device.
McCurry testified at the suppression hearing she verbally provided Defendant’s GPS
data pinpoints for the date of 22 March 2017 to Captain Elkins and Sergeant Jordan
upon their request and before a search warrant was issued.
¶ 21 Michelle Wilson, an account manager for BI Incorporated, also testified. BI
Incorporated contracted with the Department of Public Safety of the State of North
Carolina to provide an electronic curfew monitoring service that the State uses for its
adult probation and parole section. Michelle Wilson explained that due to
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atmospheric conditions, GPS points could drift but depending on how many satellites
are tracking at a given time, the GPS data is generally accurate within a range of 25
to 100 feet. She testified the GPS data for Defendant showed Defendant was at the
address of 665 Dillingham Road, Pegg’s home, at 4:07 p.m. on 22 March 2017. The
State also offered evidence through Michelle Wilson tending to show Defendant was
at Pegg’s home between the hours of 3:00 p.m. to 4:22 p.m. on 22 March 2017.
¶ 22 A search warrant for Defendant’s home was issued on 27 March 2017 at
approximately 7:59 p.m. and was executed that evening at 8:29 p.m. Officers seized
9-millimeter ammunition with the headstamp “FC LUGER 9 MM” from inside
Defendant’s workshop and seized ammunition, handwritten notes, and numerous
firearms from Defendant’s home.
¶ 23 On 22 March 2017, Defendant was charged with driving while impaired,
driving while license revoked for impaired driving, possession of a firearm by a felon,
second degree arson, and first degree murder. On 7 August 2017, a Buncombe County
grand jury indicted Defendant on the charges of driving while licensed revoked, in
violation of N.C. Gen. Stat. § 20-28(a1); habitual impaired driving, in violation of N.C.
Gen. Stat. § 20-138.5; possession of a firearm by a felon, in violation of N.C. Gen. Stat.
§ 14.415.1; second degree arson, in violation of N.C. Gen. Stat. § 14-58; and first
degree murder, in violation of N.C. Gen. Stat. § 14-17.
¶ 24 At the close of the State’s evidence, Defendant moved to dismiss the charges of
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second degree arson and first degree murder based on insufficiency of evidence. The
trial court denied his motion. Defendant renewed his motion to dismiss at the close
of all evidence, which was also denied. On 11 February 2020, the State dismissed the
charge of driving while licensed revoked. On the same day, the jury found Defendant
guilty of driving while impaired, possession of a firearm by a felon, and first degree
murder; the jury found Defendant not guilty of second degree murder. Defendant
gave oral notice of appeal in open court.
II. Jurisdiction
¶ 25 This Court has jurisdiction to address Defendant’s appeal from a final
judgment pursuant to N.C. Gen. Stat. § 7A-27(b)(1) (2021) and N.C. Gen. Stat. § 15A-
1444(a) (2021).
III. Issues
¶ 26 The issues before this Court are whether: (1) probable cause existed for the
magistrate to issue the search warrant for Defendant’s residence; (2) the findings of
fact are supported by competent evidence and whether the findings of fact in turn
support the conclusions of law in the trial court’s ruling on Defendant’s motion to
suppress evidence seized from his residence; (3) the trial court committed plain error
in refusing to suppress electronic monitoring data where the Secretary of DPS
allowed Defendant’s GPS data to be orally released before a search warrant was
issued; (4) the trial court erred by refusing to allow Defendant to cross-examine a
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witness about a Facebook message; (5) the trial court committed plain error by
admitting testimony on firearms identification and examination from the State’s
expert witness; and (6) the trial court erred by denying Defendant’s motion to dismiss
the first degree murder charge.
IV. Motion to Suppress Evidence Obtained from Defendant’s Residence
¶ 27 In his first argument, Defendant challenges the sufficiency of the search
warrant application for his residence as well as the trial court’s denial of his motion
to suppress all evidence seized through a search warrant of this address.
A. Sufficiency of the Search Warrant Application
¶ 28 We first consider Defendant’s argument that the search warrant affidavit is
defective because it fails to implicate his home address and does not provide a basis
to support probable cause.
¶ 29 The Fourth Amendment to the Constitution of the United States, made
applicable to the states through the Fourteenth Amendment, protects “[t]he right of
the people to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures . . . .” U.S. Const. amends. IV, XIV. Under the
Fourth Amendment, a search warrant may be issued only “upon probable cause,
supported by [o]ath or affirmation, and particularly describing the place to be
searched, and the persons or things to be seized.” U.S. Const. amend. IV.
¶ 30 “Article I, Section 20 of the Constitution of North Carolina likewise prohibits
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unreasonable searches and seizures and requires that warrants be issued only on
probable cause,” although the language of the North Carolina Constitution differs
from that of the United States Constitution. State v. Allman, 369 N.C. 292, 293, 794
S.E.2d 301, 302–03 (2016); see N.C. Const. art. I, § 20; see also N.C Gen. Stat. § 15A-
245 (2021).
¶ 31 The North Carolina Supreme Court adopted the “totality of the circumstances
test to determine whether probable cause exists under Article I, Section 20” of the
North Carolina Constitution. Allman, 369 N.C. at 293, 794 S.E.2d at 303. “Our case
law makes clear that when an officer seeks a warrant to search a residence, the facts
set out in the supporting affidavit must show some connection or nexus linking the
residence to illegal activity. Such a connection need not be direct, but it cannot be
purely conclusory.” State v. Bailey, 374 N.C. 332, 335, 841 S.E.2d 277, 280 (2020).
¶ 32 Under North Carolina law, an application for a search warrant must meet
certain requirements, including that it “be made in writing upon oath or affirmation.”
See N.C. Gen. Stat. § 15A-244 (2021). Additionally, each application must contain:
(1) The name and title of the applicant; and
(2) A statement that there is probable cause to believe
that items subject to seizure under [N.C. Gen. Stat.
§] 15A-242 may be found in or upon a designated or
described place, vehicle, or person; and
(3) Allegations of fact supporting the statement. The
statements must be supported by one or more
affidavits particularly setting forth the facts and
circumstances establishing probable cause to believe
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that the items are in the places or in the possession
of the individuals to be searched; and
(4) A request that the court issue a search warrant
directing a search for and the seizure of the items in
question.
N.C. Gen. Stat. § 15A-244(1)–(4).
¶ 33 A search warrant “affidavit is sufficient if it supplies reasonable cause to
believe that the proposed search for evidence of the commission of the designated
criminal offense will reveal the presence upon the described premises of the objects
sought and that they will aid in the apprehension or conviction of the offender.” State
v. Vestal, 278 N.C. 561, 575–76, 180 S.E.2d 755, 765 (1971) (citations omitted); see
also N.C. Gen. Stat. § 15A-244. “A magistrate must make a practical, common-sense
decision, based on the totality of the circumstances, whether there is a fair probability
that contraband will be found in the place to be searched.” State v. McKinney, 368
N.C. 161, 164, 775 S.E.2d 821, 824 (2015) (citations and internal quotation marks
omitted). Additionally, “a magistrate is entitled to draw reasonable inferences from
the material supplied to him by an applicant for a warrant.” State v. Sinapi, 359 N.C.
394, 399, 610 S.E.2d 362, 365 (2005).
¶ 34 It is well-established that “great deference should be paid a magistrate’s
determination of probable cause and . . . after-the-fact scrutiny should not take the
form of a de novo review.” State v. Lewis, 372 N.C. 576, 584, 831 S.E.2d 37, 43 (2019)
(citation omitted). “Instead, a reviewing court is responsible for ensuring that the
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issuing magistrate had a substantial basis for . . . conclud[ing] that probable cause
existed.” McKinney, 368 N.C. at 165, 775 S.E.2d at 825 (citations and internal
quotation marks omitted).
¶ 35 Here, Sergeant Jordan included with his application for a search warrant an
affidavit stating his name and title, as well as the following statement regarding
probable cause:
Based on my training and experience, and the facts as set
forth in this affidavit, I believe that in records in and
around the residence, outbuildings, and curtilage of
[Defendant’s residence] in Barnardsville, NC there exists
evidence of a crime and contraband or fruits of that crime.
¶ 36 After reciting his training and experience in the affidavit, Sergeant Jordan
made the following allegations of fact to support his statement of probable cause:
(1) On 3-23-2017, the Buncombe County Emergency
Operations Center received a call on 911 stating that
an individual had been discovered with an apparent
gunshot [wound] at 665 Dillingham Rd,
Barnardsville, NC. First Responders arrived on
scene and located Bobby Ray Pegg II deceased in his
home. Detectives with the Buncombe County
Sheriff’s Office (BCSO) responded to the residence
and began conducting an investigation.
(2) During the investigation, detectives located several
silver colored spent 9mm shell casings in the area
around Pegg’s body. All the silver colored spent
9mm shell casings were head stamped with “F C
LUGER 9MM.”
(3) Detectives discovered the last time Pegg had been
seen alive, was on 3-22-2017 at approximately 12:30
p.m.
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(4) On 3-22-2017 it was reported to the BCSO that
throughout the day, Timothy Robert Gallion had
been making threats to his family stating that he
would kill them, kill any law enforcement that
attempted to apprehend him, and then kill himself.
An arrest warrant was obtained by family members
for Communicating Threats.
(5) Deputies traveled to Gallion’s residence . . . on 03-
22-17 to search for Gallion. While there, deputies
went to a workshop just down the driveway from the
residence. A deputy looked into the window to see if
Gallion was in the workshop and observed a handful
of bullets on a shelf.
(6) Gallion was located on Whittemore Branch Rd in
Barnardsville, NC, driving a green 1996 Dodge Ram
Pickup Truck, where he was arrested for his open
warrants. Gallion was located at approximately
4:43 pm on 3-22-2017. Whittemore Branch Rd is in
close proximity to 665 Dillingham Rd.
(7) During the arrest, multiple firearms were seen in
plain view in the 1996 Dodge Ram Pickup Truck.
Two (2) of the firearms located in the pickup truck
were 9mm pistols. Also located inside the truck,
were multiple boxes of ammunition. All 9mm
ammunition had silver colored shell casings with the
head stamp of “F C LUGER 9MM.” This
ammunition is similar to the spent shell casings
located in the proximity of Pegg’s body.
(8) During the arrest, the arresting officers observed
that Gallion was intoxicated. Gallion was
subsequently charged with Driving While Impaired.
(9) During the inventory of the 1996 Dodge Ram
Pickup, officers observed blood smears inside the
vehicle on the steering wheel, driver’s seat, and
interior portion of the driver’s side door. Gallion also
had blood on his hands.
(10) Detectives interviewed a witness who stated that on
3-22-2017, he spoke with Gallion at 456 Dillingham
Rd. When asked about Adrian Gallion, Timothy
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Gallion’s brother, Timothy Gallion became upset
and stated that he was angry for not being paid for
work he had done on a home his brother owned. This
residence is the home located at 665 Dillingham Rd,
Barnardsville, NC where Pegg was found deceased
on 3-23-2017.
(11) The witness stated Gallion showed him a pistol
during their conversation. The pistol matched the
description of one of the 9mm pistols found in the
green Dodge Ram Pickup truck when Gallion was
arrested.
(12) The witness stated that later in the conversation,
Gallion pointed at a Buncombe County Sheriff’s
Office patch affixed to his shirt and made the
comment that the patch could get him out of trouble.
At the time of Gallion’s arrest, he was wearing
clothing with the Buncombe County Sheriff’s Office
patch affixed to it.
(13) The witness described Gallion as being intoxicated
at the time of their conversation.
(14) Detectives spoke with a separate witness who stated
they observed Gallion driving in the direction of 665
Dillingham Rd. The time was estimated to be at
approximately 3:30 pm.
(15) The affiant knows that Gallion was charged in an
incident in 2012 involving the discharge of a firearm
at another person, which resulted in a conviction.
¶ 37 Sergeant Jordan included in his description of items to be seized, inter alia,
bloodstains, DNA evidence, weapons, ammunition, drugs, and drug paraphernalia.
¶ 38 Defendant points to State v. Campbell, 282 N.C. 125, 191 S.E.2d 752 (1972)
and State v. Armstrong, 33 N.C. App. 52, 234 S.E.2d 197 (1977) to argue the trial
court erroneously denied his motion to suppress because Sergeant Jordan’s affidavit
“fail[s] to reveal any underlying facts or circumstances implicating the
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premises/outbuildings at [his residence] to any crime.” Specifically, Defendant
contends “[n]othing connects the [allegation in the affidavit that there were] ‘bullets
on a shelf’” in his workshop, to the bullets found in his truck or the bullet casings
found near the homicide victim. We disagree.
¶ 39 In Campbell, officers sought a warrant to search the residence of suspected
drug dealers for illegal drugs, but the search warrant did not state any underlying
facts about the residence other than the suspects lived in the house. 282 N.C. at 130,
191 S.E.2d at 756. Our Supreme Court held that the search warrant affidavit was
“fatally defective” because it “did not provide a sufficient basis for a finding of
probable cause to search the premises described in the warrant . . . .” Id. at 131–32,
191 S.E.2d at 757. The Court reasoned that “nothing in the . . . affidavit affords a
reasonable basis upon which the issuing magistrate could conclude that any illegal
possession or sale of narcotic drugs had occurred, or was occurring, on the premises
to be searched. Id. at 131, 191 S.E.2d at 757.
¶ 40 Similarly, in Armstrong, an officer received a warrant to search the residence
of a suspect who was alleged to have participated in illegal sales of marijuana. 33
N.C. App. at 55, 234 S.E.2d at 198. Our Court concluded that there was “no allegation
[in the search warrant affidavit] that any marijuana was ever seen, kept, sold, or
delivered” at the defendant’s residence. Id. at 55, 234 S.E.2d at 199.
¶ 41 Here, there is no direct evidence linking the “handful of bullets on a shelf” seen
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in Defendant’s workshop to the charge of first degree murder. See Bailey, 374 N.C.
at 335, 841 S.E.2d 277 at 280. However, other facts alleged in the affidavit show
“some connection or nexus” to link Defendant’s residence to the murder. See id. at
335, 841 S.E.2d 277 at 280 (emphasis added). The allegations include: (1) Defendant
was arrested and found with two 9-millimeter firearms in his truck; (2) the
ammunition found in Defendant’s truck, following his arrest, was consistent with the
shell casings found around the murder victim’s body; (3) there were blood smears
inside of Defendant’s truck and on his hands when he was arrested; (4) Defendant
was arrested near the scene of the crime; (5) Defendant made statements to a witness
on the day he was arrested which implied he had motive to kill the victim, and
Defendant showed the witness a pistol during the conversation; and (6) the pistol
Defendant showed the witness matched the description of the firearm found in
Defendant’s truck.
¶ 42 We conclude the allegations in Sergeant Jordan’s affidavit were sufficient to
allow a magistrate to reasonably infer that evidence related to the murder such as
weapons, ammunition, bloodstains, and DNA evidence could likely be found at
Defendant’s residence and would aid in the apprehension or conviction of the
offender. See Vestal, 278 N.C. at 575–76, 180 S.E.2d at 765; Sinapi, 359 N.C. at 399,
610 S.E.2d at 365; see also State v. Rook, 304 N.C. 201, 221–22, 283 S.E.2d 732, 745
(1981) (holding an affidavit clearly established probable cause to believe that a
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wooden club and bloody clothing constituted evidence of the crime being investigated,
and that the items were probably located in the defendant’s home even though there
was no direct evidence linking the crime to the home). Given the totality of the
circumstances, “the issuing magistrate had a substantial basis for . . . conclud[ing]
that probable cause existed” in this case. See McKinney, 368 N.C. at 165, 775 S.E.2d
at 824–25.
B. The Trial Court’s Findings of Fact & Conclusions of Law
¶ 43 Defendant next contends the evidence and record do not support the trial
court’s finding of fact stating:
[b]ased on Officer Jordan’s training and experience and
facts uncovered as part of law enforcement’s investigation,
he articulated as part of both search warrants items that
he was looking for that were relevant to the investigation
and that would aid in the apprehension or conviction of a
suspect, namely the defendant.
Moreover, Defendant contends that the remaining findings do not support the trial
court’s conclusion of law finding sufficient probable cause for the issuance of the
search warrant.
¶ 44 This Court’s review of a trial court’s decision on a motion to suppress “is strictly
limited to determining whether the trial judge’s underlying findings of fact are
supported by competent evidence, in which event they are conclusively binding on
appeal, and whether those factual findings in turn support the judge’s ultimate
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conclusions of law.” State v. Cooke, 306 N.C. 132, 134, 291 S.E.2d 618, 619 (1982).
¶ 45 Following the hearing on Defendant’s motion to suppress, the trial court ruled
on the motion, announcing its findings of fact and conclusions of law in open court.
The trial court made the following findings of fact:
(1) On March the 23rd, 2017, Buncombe County
Emergency Operations Center received a 911 call
stating that an individual had been discovered with
an apparent gunshot [wound] at 665 Dillingham
Road.
(2) First responders arrived on the scene and located
Bobby Pegg deceased in his home. They also located
several silver-colored spent 9 millimeter shell
casings in the area around Pegg’s body.
(3) The shell casing were headstamped with FC LUGER
9 MM.
(4) Officers uncovered that the defendant, Timothy
Gallion, was making threats against his wife and
that she or someone in the family took out warrants
against the defendant for communicating threats.
(5) He was stopped in a green pickup truck on March
the 22nd, 2017, in close proximity to the scene of the
murder.
(6) He was served with the outstanding warrant for
communicating threats. And as part of the search of
the pickup truck, officers located two 9 millimeter
pistols, as well as 9 millimeter ammunition with
silver-colored shell casings and a headstamp of FC
LUGER 9 MM. That ammunition was similar to the
ammunition located near the homicide victim’s body.
(7) Officers also found in the pickup truck blood smears
on the steering wheel, driver’s seat, and interior
portion of the driver’s side door. The defendant also
had blood stains on his hands.
(8) Officers talked to a witness who had a recent
conversation with the defendant. The witness
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stated that later in the conversation [the defendant]
pointed at a Buncombe County Sheriff’s Office patch
affixed to his shirt and said the comment, and made
the comment that the patch could get him out of
trouble. At the time of the defendant’s arrest, he
was wearing clothing with a Buncombe County
Sheriff’s Office patch affixed to it.
(9) On March the 27th, 2017, at 1:58 p.m. Officer Jordan
with the Buncombe County Sheriff’s Department
obtained a search warrant for GPS monitoring data.
That search warrant was executed at 2:13 p.m. on
the same day.
(10) At 7:59 p.m. Officer Jordan obtained a search
warrant for the defendant’s residence at 95 Christy
Lane. That search warrant was executed at 8:29
p.m. the same day.
(11) Prior to obtaining the search warrant for GPS data,
Detective Elkins contacted Joan McCurry with the
Department of Public Safety Probation and Parole
Office. Detective Elkins asked for GPS location data
of the defendant.
(12) On or about March the 22nd, 2017, Ms. McCurry
provided Detective Elkins verbal information that
the defendant’s location points were clustered
around points of interest in the investigation.
(13) After receiving a search warrant, Ms. McCurry
provided a spreadsheet to Detective Jordan with
detailed location records for the defendant’s
electronic monitoring.
(14) Prior to locating the defendant as part of the traffic
stop, officers went to the defendant’s residence
searching for him in order to serve the outstanding
communicating threats warrant. They looked into
the window of a workshop outbuilding and saw
bullets on a shelf of unknown type, brand, or caliber.
(15) Based on Officer Jordan’s training and experience
and facts uncovered as part of law enforcement’s
investigation, he articulated as part of both search
warrants items that he was looking for that were
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relevant to the investigation and that would aid in
the apprehension or conviction of a suspect, namely
the defendant.
(16) [T]he Secretary of the North Carolina Department of
Public Safety has issued Administrative Memo
01.14 10-13 dated October 24, 2013, and updated by
Tip of the Month dated May 2016 directing that
Probation and Parole release electronic monitoring
information to law enforcement without the need for
a court order.
¶ 46 The trial court then made the following conclusions of law:
(1) Based on the foregoing findings of fact, the Court
concludes as a matter of law that there was
sufficient probable cause for the issuance of both
search warrants.
(2) [T]here has been no substantial violation of Chapter
15A that warrants suppression, and, therefore, the
defendant’s motion to suppress is denied.
¶ 47 At the suppression hearing on 3 February 2020, Sergeant Jordan testified that
based on his “training and experience” he knows that “rounds are [typically] stored
not only with the weapon, but also typically in the home of an individual.” He further
testified based on his training and experience, information about a firearm, such as
proof of purchase and documentation, is typically located in residences. Sergeant
Jordan’s investigation uncovered the fact that Defendant had bullets of an unknown
type on the shelf at his residence as well as casings head-stamped with “FC LUGER
9 MM” found inside of his truck on 22 March 2017; Sergeant Jordan found casings
matching the same description at the homicide scene of Bobby Pegg on 23 March
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2017. Based on these facts, Sergeant Jordan requested items from Defendant’s home
in the search warrant which he and his team “believed probably existed at
[Defendant’s] residence,” including bloodstain evidence, DNA evidence, electronic
and telephonic communications, prescription drugs, controlled substances,
photographs, weapons, and other types of evidence such as casings.
¶ 48 In light of Sergeant Jordan’s testimony and the affidavit itself, there was
competent evidence to support the finding challenged by Defendant. See Cooke, 306
N.C. at 134, 291 S.E.2d at 619. The trial court’s findings of fact were supported by
competent evidence, and thus, conclusively binding on appeal. See id. at 134, 291
S.E.2d at 619. Further, the trial court’s ultimate conclusions of law are supported by
its findings of fact. See id. at 134, 291 S.E.2d at 619. Therefore, the trial court did
not err in denying Defendant’s motion to suppress evidence from his residence.
V. Motion to Suppress Evidence of Defendant’s Electronic Monitoring
Data
¶ 49 In his second argument, Defendant contends the trial court erred in refusing
to suppress electronic monitoring data and allowing the State to introduce the data
at trial because DPS released Defendant’s electronic monitoring information to law
enforcement without a court order, in violation of N.C. Gen. Stat. § 15-207. The State
argues Defendant is not entitled to a new trial because: “(1) the evidence introduced
was obtained pursuant to a court order; (2) the Secretary of [DPS] consented to
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disclosure of the evidence; (3) the evidence was not subject to suppression; and (4)
officers would have sought a search warrant for the records regardless of any
statutory violation.” As discussed below, we agree with the State that no plain error
occurred at trial.
¶ 50 Here, Sergeant Jordan was investigating the death of Bobby Pegg. In the
course of the investigation, Sergeant Jordan found out from Captain Elkins, who was
also investigating Pegg’s death, that Defendant was a suspect and wore an electronic
monitoring device. Sergeant Jordan and Captain Elkins spoke with McCurry about
obtaining Defendant’s GPS information, and she provided the requested data
verbally over the telephone. Sergeant Jordan subsequently prepared and executed a
search warrant for the GPS data, which was located in the care, custody, and control
of DPS, and he received that information pursuant to the search warrant.
¶ 51 Although Defendant filed a pre-trial motion to suppress the GPS data, he
acknowledges he did not object to the introduction of GPS evidence during the trial
on the basis DPS released privileged information to law enforcement without a court
order. Rather, Defendant objected at trial on the grounds the witness testifying
regarding the DPS records did not “lay the proper foundation that th[e] GPS
communication device was working properly . . . .” See State v. Oglesby, 361 N.C. 550,
554, 648 S.E.2d 819, 821 (2007) (“[A] trial court’s evidentiary ruling on a pretrial
motion is not sufficient to preserve the issue of admissibility for appeal unless a
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defendant renews the objection during trial.”); see also N.C. R. App. P. 10(a)(1) (“In
order to preserve an issue for appellate review, a party must have presented to the
trial court a timely request, objection, or motion, stating the specific grounds for the
ruling the party desired the court to make if the specific grounds were not apparent
from the context.”). Thus, Defendant did not properly preserve the issue for appeal
as to the trial court’s alleged statutory violation under N.C. Gen. Stat. § 15-207. See
N.C. R. App. P. 10(a)(1). Therefore, we review the alleged statutory violation under
the plain error standard. See N.C. R. App. P. 10(a)(4).
[T]he plain error rule . . . is always to be applied cautiously
and only in the exceptional case where, after reviewing the
entire record, it can be said the claimed error is a
fundamental error, something so basic, so prejudicial, so
lacking in its elements that justice cannot have been done,
or where [the error] is grave error which amounts to a
denial of a fundamental right of the accused, or the error
has resulted in a miscarriage of justice or in the denial to
appellant of a fair trial or where the error is such as to
seriously affect the fairness, integrity or public reputation
of judicial proceedings or where it can be fairly said the
instructional mistake had a probable impact on the jury’s
finding that the defendant was guilty.
State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983) (citing United States v.
McCaskill, 676 F. 2d 995, 1002 (4th Cir. 1982) (internal quotation marks omitted).
¶ 52 N.C. Gen. Stat. § 15-207 creates a qualified privilege for:
[a]ll information and data obtained in the discharge of
official duty by any probation officer shall be privileged
information, shall not be receivable as evidence in any
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court, and shall not be disclosed directly or indirectly to any
other than the judge or to others entitled under this Article
to receive reports, unless and until otherwise ordered by a
judge of the court or the Secretary of Public Safety.
N.C. Gen. Stat. § 15-207 (2019); see State v. Craft, 32 N.C. App. 357, 361, 232 S.E.2d
282, 285, disc. rev. denied, 292 N.C. 642, 235 S.E.2d 63 (1977) (concluding the
qualified privilege created by N.C. Gen. Stat. § 15-207 was inapplicable to case where
“the items seized were not information and data”).
¶ 53 For multiple reasons, we reject Defendant’s argument the trial court erred in
admitting his GPS data in this case. First, Defendant moved to suppress pursuant
to N.C. Gen. Stat. § 15A-974 any evidence related to the search warrant seeking
Defendant’s GPS data obtained from the monitoring device he was wearing. Under
N.C. Gen. Stat. § 15A-974(a)(2), evidence must be suppressed if “[i]t is obtained as a
result of a substantial violation of the provisions of [Chapter 15A].” N.C. Gen. Stat.
§ 15A-974(a)(2) (2019) (emphasis added). Thus, Section 15A-974(a)(2) does not
provide a mechanism by which Defendant could allege evidence was obtained as a
result of a substantial violation of Chapter 15, the chapter under which the
controlling statute, N.C. Gen. Stat. § 15-207, is found.
¶ 54 Second, the qualified privileged belonged to DPS, and DPS waived that
privilege by releasing data to law enforcement as to where Defendant traveled on 22
March 2017. See Craft, 32 N.C. App. at 361, 232 S.E.2d at 285; see also State v. Hardy,
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293 N.C. 105, 126, 235 S.E.2d 828, 841 (stating a qualified privilege can be waived).
Pursuant to DPS’s Administrative Memorandum 01.14.10-13 effective 24 October
2013, DPS was allowed to “[p]rovide location information [of offenders subject to
electronic monitoring] to law enforcement at their request.” The policy was re-
published in DPS’s May 2016 Tip of the Month interoffice memorandum. Copies of
both documents were admitted into evidence during the suppression hearing.
¶ 55 Lastly, McCurry, on behalf of DPS, complied with the search warrant in
providing the data to law enforcement, and it was this data that was actually
admitted at trial. Therefore, we conclude no plain error occurred at trial with respect
to the admission of GPS data concerning Defendant. See Odom, 307 N.C. at 660, 300
S.E.2d at 378.
VI. Refusal to Allow Cross-Examination
¶ 56 In his third argument, Defendant contends the trial court erred by not allowing
him to cross-examine Pegg’s niece, Riddle, regarding a Facebook message that Pegg
sent his mother. He argues that if the message had “been properly allowed in
evidence, it would have cast sufficient doubt upon the State’s case to have resulted in
the jury having reached a different result.” We disagree.
¶ 57 “The trial court’s determination as to whether an out-of-court statement
constitutes hearsay is reviewed de novo on appeal.” State v. Castaneda, 215 N.C.
App. 144, 147, 715 S.E.2d 290, 293 (emphasis added), appeal dismissed, 365 N.C. 354,
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718 S.E.2d 148 (2011).
¶ 58 “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 (2021). Hearsay is generally
inadmissible. N.C. Gen. Stat. § 8C-1, Rule 802 (2021).
¶ 59 In this case, Riddle attempted to testify regarding a Facebook message sent by
Pegg to his mother on 22 March 2017. Pegg’s message stated: “Knife to a gunfight it
is. Heading to Haw Branch with a knife alone, but I saw Jared heading that way.
Two birds, one stone or knife, whatever.” The trial court conducted a voir dire
examination regarding the admissibility of testimony concerning Pegg’s message.
The trial court ruled Riddle’s testimony regarding the Facebook message was hearsay
because Riddle’s grandmother told her about the Facebook message. The trial court
did not err in finding Riddle’s testimony about the Facebook message was hearsay
because the evidence was being offered for the truth of the matter asserted—to show
Pegg headed to Haw Branch to partake in a fight on the day he was murdered. See
N.C. Gen. Stat. § 8C-1, Rules 801. Therefore, the proposed testimony was
inadmissible. See N.C. Gen. Stat. § 8C-1, Rule 802.
¶ 60 Defendant relies on State v. McElrath in support of his argument that the trial
court erred in excluding the Facebook message. 322 N.C. 1, 366 S.E.2d 442 (1988).
In McElrath, the trial court refused to admit into evidence the defendant’s exhibit
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which was a “drawing found by law enforcement officers among the victim’s personal
effects [including] a rough map of the area surrounding [the] defendant’s North
Carolina home and numerous written notations indicating a possible larceny scheme”
targeting the defendant’s home. Id. at 11, 366 S.E.2d at 448. The defendant also
offered evidence to show the victim had argued with several other persons and left
with those persons on the date that the victim disappeared. Id. at 6–7, 366 S.E.2d at
443. Our Supreme Court held that the trial court erred in refusing to admit the
document because it “was relevant to a crucial issue in th[e] case,” and the defendant
met his burden to show the error was prejudicial. Id. at 14, 366 S.E.2d at 449–50.
¶ 61 Defendant argues “this case is the same as McElrath,” and had the trial court
admitted the Facebook message, “it would have cast sufficient doubt upon the State’s
case to have resulted in the jury having reached a different result; thus, he contends
the error was prejudicial. We disagree with Defendant’s assessment.
¶ 62 We have previously held:
[t]he rule of relevancy for evidence of [guilt of one other
than the defendant] is that it must do more than cast doubt
over the defendant’s guilt merely because it is possible
some other person could have been responsible for the
crime with which he has been charged.
Evidence that another committed the crime for which the
defendant is charged generally is relevant and admissible
as long as it does more than create an inference or
conjecture in this regard. It must point directly to the guilt
of the other party. Under Rule 401[,] such evidence must
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tend both to implicate another and be inconsistent with the
guilt of the defendant.
State v. Israel, 353 N.C. 211, 217, 539 S.E.2d 633, 637 (2000).
¶ 63 In this case, the Facebook message indicates Pegg may have headed to Haw
Branch at some time on 22 March 2017 with the intention to fight an undisclosed
person; however, Pegg’s message does no “more than cast doubt over [D]efendant’s
guilt merely because it is possible some other person could have been responsible for
the crime; it does not “point directly to the guilt of [another] party.” See Israel, 353
N.C. at 217, 539 S.E.2d at 637. This conclusion is particularly bolstered given Pegg
was murdered while he was sitting on his living room couch, and the State’s evidence
tends to show the bullets and shell casings found at Pegg’s home matched bullets in
Defendant’s possession and were fired from a gun that was in Defendant’s possession.
Furthermore, the record tends to show Defendant was at the address of Pegg’s house
on 22 March 2017 during a time when the offense could have been committed and
after Pegg was last seen alive. Unlike McElrath, Defendant in this case did not
present any other evidence to cast doubt upon the State’s theory of the case; he solely
created an inference that another person was responsible for Pegg’s death. See id. at
217, 539 S.E.2d at 637. Thus, the proposed evidence is too remote and speculative to
be relevant. See id. at 217, 539 S.E.2d at 637. Therefore, the trial court properly
denied admitting Pegg’s Facebook message at trial.
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VII. Firearm Identification Evidence
¶ 64 In his fourth argument, Defendant contends that the trial court erred by
allowing the State’s firearm expert to opine the empty, fired, shell casings; the 9mm
fired, copper-jacket bullet; and the jacket fragment were all fired from the same
Cobray firearm on the basis her opinion lacked a proper foundation. He further
contends Wilson did not testify as to how she applied the principles and methods she
normally uses in examining firearms and bullets to this case. The State argues
Wilson’s “extensive testimony showed the principles and methods used by her in
identifying the murder weapon were reliable.” For the following reasons, we agree
with the State.
¶ 65 Defendant acknowledges that he failed to object to the admission of Wilson’s
expert testimony at trial, but nevertheless argues the trial court committed plain
error by allowing her testimony.
¶ 66 “Under the plain error rule, [the] defendant must convince this Court not only
that there was error, but that absent the error, the jury probably would have reached
a different result.” State v. Griffin, 268 N.C. App. 96, 99, 834 S.E.2d 435, 437 (2019)
(citation omitted).
¶ 67 N.C. Gen. Stat. § 8C-1, Rule 702 provides:
(a) [i]f 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
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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:
(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. Gen. Stat. § 8C-1, Rule 702(a) (2019); see State v. McGrady, 368 N.C. 880, 889–
90, 787 S.E.2d 1, 8–9 (2016). As we explained in State v. McPhaul, “[t]he precise
nature of the reliability inquiry will vary from case to case depending on the nature
of the proposed testimony.” 256 N.C. App. 303, 313, 808 S.E.2d 294, 303 (2017), disc.
rev. improvidently allowed, 371 N.C. 467, 818 S.E.2d 102 (2018). “[A] trial court’s
ruling on the admissibility of expert testimony will not be reversed on appeal absent
a showing of abuse of discretion.” State v. Godwin, 369 N.C. 605, 610–11, 800 S.E.2d
47, 51 (2017) (internal quotation marks omitted).
¶ 68 The State cites to State v. Griffin to argue Wilson’s testimony was proper, and
the trial court did not commit plain error with respect to the admission of her
testimony. 268 N.C. App. 96, 834 S.E.2d 435 (2019). In Griffin, our Court rejected
the defendant’s contention that the trial court plainly erred where the expert witness
testified:
(1) she was formally educated and trained in forensic
science and in the field of firearms examination;
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(2) she tested and analyzed the firearm, bullets, and
cartridge casings in keeping with the procedures and
methods learned during her specialized training in
firearms examination;
(3) her tests generated data, which she analyzed and
used to form an opinion on whether or not the bullets
and casings came from the recovered firearm; and
(4) the data and conclusion were described in a written
report and subsequently peer-reviewed by one of
[her] colleagues in the Firearms Unit.
Id. at 108, 834 S.E.2d at 441. Furthermore, the expert witness testified on cross-
examination as to national standards set for firearms examination as well as reports
and studies conducted in the field of firearms analysis. Id. at 108, 834 S.E.2d at 442.
We concluded the testimony of the expert witness “show[ed] that her opinion was the
product of reliable principles and methods, and that she reliably applied the
principles and methods to the facts of the case”; thus, we held the trial court did not
abuse its discretion or commit plain error in admitting her testimony. Id. at 109, 834
S.E.2d at 442.
¶ 69 In the instant case, Wilson was tendered as an expert in the area of firearms
identification and examination without objection upon testifying regarding her
formal education and training. According to Wilson, after receiving a master’s degree
in forensic science, she completed a two-year in-house training program in the
firearms section of the North Carolina State Crime Lab. She was a firearms examiner
for the North Carolina State Crime Lab from 2011 to 2017. The training involved
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both written and practical components, and consisted of a wide range of study topics,
including: the history of firearms, ammunition, mechanics of firearms, disassembling
and reassembling multiple types of firearms, safety features, the manufacture of
firearms, microscopic comparisons, class characteristics, individual characteristics,
serial number restorations, and distance determinations. The training also included
a final, practical competency examination involving forensic firearm identification.
¶ 70 Wilson worked as a firearms examiner for the Minnesota Bureau of Criminal
Apprehension since January of 2018. The number of comparisons she has performed
as a firearms examiner “go[es] into the thousands.” Wilson had testified as an expert
in firearms examination and identification in North Carolina courts approximately
twenty-five times.
¶ 71 When asked by the State what makes forensic firearm identification possible,
Wilson testified:
The identification is possible because of the marks that are
imparted onto a firearm during the manufacturing process.
During the manufacturing process, a manufacturer will
make some choices about what kind of firearm they’re
going to manufacture, and there are some characteristics
that they choose and they select. Examples of that would
be the number of lands and grooves that they are going to
put inside a barrel. Those are raised and lowered portions
on the inside of the barrel that grip the bullet and they
twist to the right or the left, and that’s what imparts spin
and stability onto the bullet.
So a manufacturer may choose that they want five lands
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and grooves and they’re going to twist to the right, or they
may opt to have six lands and grooves and twist to the left.
Those are class characteristics. So those are more broad
and could apply to multiple firearms, multiple models, et
cetera.
Another example would be the shape of the firing pin that
they are going to manufacture for that firearm. It may be
hemispherical. It may be elliptical. These are all decisions
that are made prior to the manufacturing process, and
these are the class characteristics, or a much broader group
of characteristics.
Additionally, during the manufacturing process, but not
controlled by the manufacturer, are the individual
characteristics. These are aspects of the firearm that are
unique to that particular firearm, and it’s because of the
manufacturing process, it’s because of the tools that are
used to manufacture, and the mechanisms used to
manufacture.
During the manufacturing process, the tools used to
manufacture the firearms are stronger. That’s how they’re
able to cut away from basically a steel tube and turn it into
a barrel. But during this process, the tools themselves will
change to a small degree. Think of it as a piece of
sandpaper on wood. As you brush the sandpaper on the
wood, the sandpaper is removing particles of that wood.
But over time that sandpaper also changes such that it gets
dulled and eventually has to be replaced. It’s that same
aspect with the manufacturing of firearms. So those tools
will change, and therefore, they’re imparting different
marks onto the firearms, one from the next. And then, as
well, the tools have to be changed or resharpened as they
dull.
The other way that firearms can take on individual
characteristics is after they leave the manufacturer,
through use, through abuse, through rust, corrosion; all of
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those aspects can create individual characteristics.
Those individual characteristics are useful for the
comparative process when they are reproducible, meaning
that they are copied into multiple bullets or multiple
cartridge cases. As a firearms examiner, I’m looking for
that detail that can be seen, that gets copied onto the
cartridge cases or onto the bullets, for example, from the
firearm.
¶ 72 Wilson then testified regarding the process by which she typically examines a
firearm when it comes into her office:
Initially, I would examine the firearm looking for any
damaged or missing components, looking at just the overall
condition of the firearm. I’m going to do a function test on
the firearm. That’s going to include examining all the
safety features that are present and testing them to see if
they are functioning properly. That also includes a trigger-
pull determination, which is a measurement of how much
weight has to be applied to the trigger in order for the
firearm to fire. And then as the final step of the function
test, the firearm is test fired. That is where ammunition is
placed into the firearm. This is laboratory ammunition,
typically, and the firearm is test fired. So the trigger is
pulled, the firearm is fired, and the cartridge case and
bullets are collected.
Test firing is generally done in a water tank, which is a big
steel tank full of water. And by shooting into this tank of
water, it slows down the projectiles, the bullets, such that
you can retrieve those bullets, and they are in a pristine or
near pristine condition for any future comparisons in the
case, and this also serves as the last step of the function
exam to show that the firearm is capable of firing.
¶ 73 Next, Wilson testified that she performed the tests described above on the
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Ruger 9-millimeter and Cobray 9-millimeter that she examined and had the following
exchange with the State prosecutor regarding her findings:
[Wilson]: [t]he K-1 Cobray pistol functions properly and
has a single action trigger pull greater than
four pounds, but less than or equal to five
pounds.
The K-2 Ruger pistol functions properly. The
K-2 Ruger pistol has a single action trigger
pull greater than five pounds, but less than or
equal to six pounds and a double action
trigger pull greater than 11-and-a-half
pounds, but less than or equal to 13 pounds.
[State]: And so did both of those firearms fire
properly?
[Wilson]: Yes, that’s correct.
[State]: And as part of your firearms examination do
you look at – you said you examine the
firearm itself; is that right?
[Wilson]: Yes.
[State]: Do you ever examine the firing pin on these
weapons?
[Wilson]: Yes.
[State]: Was there anything that you noticed about
the firing pin on either of these items?
[Wilson]: Yes. As a part of looking at the class
characteristics, I note the – for examination
purposes if it’s going to be used for
comparison, then I will look at the shape of
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the firing pin to see if that is in agreement on
class characteristics to anything else that I
would be comparing it to.
[State]: And did you examine the firing pin on the
Ruger 9 millimeter?
[Wilson]: I did not end up comparing the Ruger 9
millimeter to anything in this case. So I did
not specifically examine the firing pin.
[State]: Did you examine the firing pin on the Cobray?
[Wilson]: Yes, I did.
[State]: And what, if anything, did you notice about
the firing pin on the Cobray?
[Wilson]: I noted that it left a rectangular shaped firing
pin impression when firing.
[State]: And based on your training and experience in
the time you’ve been doing firearms
examinations, is there anything unique about
a rectangular firing pin?
[Wilson]: That is extremely uncommon for a center fire
firearm, that would be a firearm that hits the
cartridge in the center. While rectangular
firing pins are common for your rim-fire
caliber firearms, such as your .22 caliber
firearms, they are not common for the center-
fire firearms such as a 9 millimeter Luger
pistol.
¶ 74 Wilson went on to testify regarding how she performs a comparison test:
A comparison examination is going to be conducted using a
comparative microscope. This is a microscope that has a
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single eyepiece, but it has two separate stages. So you can
put one item on one stage and a separate item on the other
stage. And when you look through the eyepiece you are
able to see both items simultaneously. So you can lay them
side-by-side and do essentially, a microscopic comparison
between those two.
For the purposes of firearms examination, first what I’ll do
is I’ll look at those test fired bullets or cartridge cases that
I acquired through the test firing process. I’m looking at
those to see what kind of detail is replicating and suitable
for comparison purposes.
When we do comparative examinations, first we look at
those class characteristics. So those, as I spoke of earlier,
are a more broad category of characteristics. We group
items based off of those class characteristics. If all the
discernible class characteristics are in agreement, then we
continue the examination using the comparative
microscope on individual characteristics. However, if there
is a difference in the class characteristics, such as a bullet
has five land and groove impressions, but the firearm
submitted for comparison has six land and groove
impressions, or lands and grooves . . . then that is a
difference in class characteristics, and that bullet could not
have been fired by that firearm, and therefore, it is
eliminated and the examination is completed at that time.
But if those class characteristics are all in agreement, then
we move on to the individual comparison, and that is done
through the comparative microscope.
¶ 75 Wilson testified she applied the methods and principles of comparison testing,
described above, to the items that were received in this case, including the firearms,
shell casings, bullets, and projectiles. Based on the data, she prepared a report of her
examinations. Wilson concluded items Q-1, Q-2, Q-3, Q-4, Q-5, Q-6, and Q-7, the
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silver-colored spent shell casings found around Pegg’s body, were all fired from the
K-1 Cobray pistol. Item Q-13, a one caliber .38 class fired copper jacket collected from
Pegg’s jaw, “was determined to have been fired from the same firearm as the Q-8
bullet, the Q-11 jacket fragment [found embedded in wood inside Pegg’s home], and
the Q-15 bullet. And the Q-13 jacket was fired from the K-1 Cobray pistol.” Item Q-
15, a one caliber .38 class fired copper-jacketed bullet collected from Pegg’s jaw, “was
fired from the same firearm as the Q-8 bullet, the Q-11 jacket fragment, and the Q-
13 jacket. And the Q-15 bullet was fired from the K-1 Cobray pistol.”
¶ 76 On cross-examination, Wilson testified regarding ammunition and the type of
ammunition she used in performing the comparison tests in the instant case. She
further testified it was not possible that two different weapons fired the rounds she
examined.
¶ 77 Like the expert witness’s testimony in Griffin, Wilson’s testimony
demonstrates it was “based upon sufficient facts or data” and “is the product of
reliable principles and methods.” See N.C. Gen. Stat. § 8C-1, Rule 702(a); Griffin,
268 N.C. App. at 108, 834 S.E.2d at 442. We conclude Wilson’s testimony shows she
“applied the principles and methods reliably to the facts of the case.” See N.C. Gen.
Stat. § 8C-1, Rule 702(a). Therefore, we hold the trial court did not plainly err by
admitting Wilson’s expert testimony.
VIII. Motion to Dismiss the First Degree Murder Charge
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¶ 78 In his final argument, Defendant argues the trial court erred in denying his
motion to dismiss the charge of first degree murder. Specifically, Defendant contends
the State’s evidence was insufficient to show malice, premeditation, and deliberation
or that he committed the killing. We disagree.
We review the trial court’s denial of a motion to dismiss de
novo. A motion to dismiss for insufficient evidence is
properly denied if 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. Substantial evidence is such
relevant evidence as a reasonable mind might accept as
adequate to support a conclusion. All evidence, both
competent and incompetent, and any reasonable inferences
drawn therefrom, must be considered in the light most
favorable to the State. Additionally, circumstantial
evidence may be sufficient to withstand a motion to dismiss
when a reasonable inference of defendant’s guilt may be
drawn from the circumstances. If so, it is the jury’s duty to
determine if the defendant is actually guilty.
State v. Blakney, 233 N.C. App. 516, 518, 756 S.E.2d 844, 846 (2014) (citation
omitted). “The State is entitled to every reasonable inference to be drawn from the
evidence. Contradictions and discrepancies do not warrant dismissal of the case;
rather, they are for the jury to resolve. Defendant’s evidence, unless favorable to the
State, is not to be taken into consideration.” State v. Franklin, 327 N.C. 162, 172,
393 S.E.2d 781, 787 (1990) (citations omitted).
¶ 79 To convict a defendant of first degree murder under N.C. Gen. Stat. § 14-17,
“the State must prove: (1) an unlawful killing; (2) with malice; (3) with the specific
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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), cert. denied, 552 U.S. 1271,
128 S. Ct. 1682, 170 L. Ed. 2d 377 (2008).
¶ 80 “[T]o overcome a motion [to dismiss in a murder case] and justify a conviction
of the defendant, the State must offer evidence from which it can be reasonably
inferred (1) that deceased died by virtue of a criminal act, and (2) that the act was
committed by the defendant.” State v. Lee, 294 N.C. 299, 302, 240 S.E.2d 449, 451
(1978) (citations omitted). “In order for the trial court to submit a charge of first
degree murder to the jury, there must have been substantial evidence presented from
which a jury could determine that the defendant intentionally . . . killed the victim
with malice, premeditation and deliberation.” State v. Corn, 303 N.C. 293, 296, 278
S.E.2d 221, 223 (1981).
¶ 81 Here, the parties do not dispute Pegg “died by virtue of a criminal act”; thus,
we turn to the issue of whether the act was committed by Defendant. See Lee, 294
N.C. at 302, 240 S.E.2d at 451.
C. Substantial Evidence of Defendant as the Murderer
¶ 82 Our Courts have considered factors such as “proof of motive, opportunity,
capability, and identity” when determining whether the evidence shows that a
particular person committed a particular crime. 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). Although these
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factors are not essential elements of first degree murder, they “are circumstances
which are relevant to identify an accused as the perpetrator of a crime.” Id. at 238,
309 S.E.2d at 467. “[W]here the evidence is sufficient only to raise a suspicion or
conjecture as to either the commission of the offense or the identity of the defendant
as the perpetrator of it, the motion to dismiss should be allowed.” State v. Hayden,
212 N.C. App. 482, 484, 711 S.E.2d 492, 494 (2011) (citation and internal quotation
marks omitted).
¶ 83 Relying on North Carolina Supreme Court cases of State v. Cutler, 271 N.C.
379, 156 S.E.2d 679 (1967), State v. White, 293 N.C. 91, 235 S.E.2d 55 (1977), State
v. Lee, 294 N.C. 299, 240 S.E.2d 449 (1978), State v. Jones, 280 N.C. 60, 184 S.E.2d
862 (1971), and State v. Hood, 77 N.C. App. 170, 334 S.E.2d 421 (1985), Defendant
argues the State’s circumstantial evidence was insufficient to show he committed the
murder.
¶ 84 In State v. Cutler, the Court held that there was insufficient evidence to
establish that the defendant had an opportunity to commit the crime charged,
although it could be reasonably inferred from the evidence that the defendant was at
the home of the deceased around the time the victim died. 271 N.C. at 383, 156 S.E.2d
at 682.
¶ 85 In State v. White, the Court held that the State had established that the
defendant had an opportunity to commit the crime charged, but there was no other
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evidence of the defendant’s guilt. 293 N.C. at 97, 235 S.E.2d at 59.
¶ 86 In State v. Lee, the Court held the defendant’s motion to dismiss was
erroneously denied because the “State failed to offer substantial evidence that the
defendant was the one who shot [the victim]” despite any “inference that the
“defendant bore malice toward [the victim].” 294 N.C. at 302–03, 240 S.E.2d at 451.
¶ 87 In State v. Jones, the Court reversed a trial court’s grant of the defendant’s
motion to dismiss. 280 N.C. at 67, 184 S.E.2d at 866. The State presented evidence
sufficient to show the defendant had an opportunity to commit the crime, but the
“State failed to offer substantial evidence that [the] defendant was the one who shot
his wife” to link the empty cartridges found in the defendant’s pocket to the bullets
that killed the victim. Id. at 65–67, 184 S.E.2d at 865–66.
¶ 88 Finally, in State v. Hood, the Court held that “neither motive nor opportunity”
could be reasonably inferred from the evidence of the case. 77 N.C. App. at 173, 334
S.E.2d at 423 (emphasis omitted). A witness heard a gunshot fired in the direction
of the victim’s residence and then saw the defendant drive away. Id. at 173, 334
S.E.2d at 423. The Court noted that “[t]here [was] no evidence that [the] defendant
had access to the [victim’s residence] or that he otherwise gained entrance to it. There
[was] no evidence that [the] defendant was armed or that the deceased was present
in [his residence] at the time.” Id. at 173, 334 S.E.2d at 423.
¶ 89 The above cases are distinguishable from the instant case where there is
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substantial evidence Defendant had the opportunity to commit the crime and was
capable of doing so. See Bell, 65 N.C. App. at 238, 309 S.E.2d at 467. Furthermore,
there is substantial evidence that Defendant possessed the murder weapon as well
as the same ammunition that was used to shoot Pegg, and he was armed at a time
when a reasonable jury could find Defendant committed the crime. See Jones, 280
N.C. at 67, 184 S.E.2d at 866. Finally, the record shows Pegg’s house was unlocked
when he was at home; Defendant could have easily gained entrance to the home given
it was unlocked, and Defendant was presumably familiar with the home given the
prior work he performed at the house. See Hood, 77 N.C. App. at 173, 334 S.E.2d at
423. We now discuss Defendant’s opportunity and capability of committing the
murder of Pegg.
1. Opportunity
¶ 90 Defendant argues there is “absolutely no evidence of . . . opportunity” in this
case. The State contends there is sufficient evidence to show Defendant had the
opportunity as well as the means to commit murder.
¶ 91 “In order for this Court to hold that the State has presented sufficient evidence
of [the] defendant’s opportunity to commit the crime in question, 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.
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¶ 92 In this case, the State’s evidence showed Defendant’s electronic monitoring
device placed Defendant in the vicinity of Pegg’s home and at the scene of the crime
on 22 March 2017—one day before the deceased body was found and on the same day
Pegg was last seen alive, and at a time when a reasonable jury could find the crime
could have been committed. See State v. Miles, 222 N.C. App. 593, 601, 730 S.E.2d
816, 823 (2012) (holding testimony that the defendant was seen at the victim’s house
coupled with phone records pinpointing the defendant to the vicinity of the victim’s
home and site of the crime established the defendant had the opportunity to commit
the murder in light of the State’s evidence as a whole), aff’d, 366 N.C. 503, 750 S.E.2d
833 (2013).
¶ 93 Additionally, the State presented the testimony of Carson, whom Defendant
told he, “was going up the road to take care of some business,” while Defendant was
located on the same road as the victim’s house. Defendant made his statement after
he showed Carson a firearm matching the description of the murder weapon.
Considering the evidence in the light most favorable to the State, a reasonable jury
could conclude that Defendant was in the vicinity of Pegg’s home and the scene of the
crime at the time of Pegg’s death, which would establish Defendant had the
opportunity to commit the murder. See Blakney, 233 N.C. App. at 518, 756 S.E.2d at
846.
2. Capability
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¶ 94 Our courts have held evidence of opportunity by itself is insufficient to carry a
first degree murder case to the jury. See Bell, 65 N.C. App. at 238–39, 309 S.E.2d at
467. Thus, we next consider whether Defendant was capable of committing the
murder. See id. at 238, 309 S.E.2d at 467.
¶ 95 In the instant case, silver-colored shell casings with the headstamp of FC
LUGER 9 MM found around the victim’s body matched the ammunition that was
found in Defendant’s truck by law enforcement on 22 March 2021, shortly after
Defendant was in the vicinity of Pegg’s home, based on GPS data provided at trial.
The search of Defendant’s truck and home also revealed Defendant possessed
multiple guns, one of which was later determined to be the murder weapon. Thus,
the record contains sufficient evidence to permit a reasonable jury to find he had the
capability to commit first degree murder. See Lee, 294 N.C. at 302, 240 S.E.2d at 451.
¶ 96 Although the State’s evidence was solely circumstantial in this case, the
evidence did more than “raise a suspicion or conjecture as to . . . the identity of
[D]efendant as the perpetrator of it.” See Hayden, 212 N.C. App. at 484, 711 S.E.2d
at 494. Rather, the evidence was sufficient to survive a motion to dismiss as a
reasonable jury could infer Pegg’s death was a result of Defendant’s criminal act. See
Blakney, 233 N.C. App. at 518, 756 S.E.2d at 846; Bell, 65 N.C. App. at 238, 309
S.E.2d at 467. We hold there was substantial evidence that Pegg’s murder was
committed by Defendant when we consider all of the evidence in the light most
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favorable to the State. See id. at 518, 756 S.E.2d at 846; Lee, 294 N.C. at 302, 240
S.E.2d at 451.
3. Motive, Premeditation, & Deliberation
¶ 97 Defendant asserts the State’s case failed to present substantial evidence of
malice, premeditation, and deliberation. We disagree.
¶ 98 It is well-established by our Courts that “malice is presumed where the
defendant intentionally assaults another with a deadly weapon, thereby causing the
other’s death.” State v. Leazer, 353 N.C. 234, 238, 539 S.E.2d 922, 925 (2000) (citation
omitted). “Premeditation means that the act was thought over beforehand for some
length of time; however, no particular amount of time is necessary for the mental
process of premeditation.” State v. Trull, 349 N.C. 428, 509 S.E.2d 178 (1998), cert.
denied, 528 U.S. 835, 120 S. Ct. 95, 145 L. Ed. 2d 80 (1999). “Deliberation means an
intent to kill carried out by the defendant in a cool state of blood, in furtherance of a
fixed design for revenge or to accomplish an unlawful purpose and not under the
influence of a violent passion, suddenly aroused by lawful or just cause or legal
provocation.” State v. Hamlet, 312 N.C. 162, 170, 321 S.E.2d 837, 842–43 (1984)
(citation omitted). “The phrase ‘cool state of blood’ means that the defendant’s anger
or emotion must not have been such as to overcome the defendant’s reason.” Id. at
170, 321 S.E.2d at 843 (citation omitted).
¶ 99 “Premeditation and deliberation are mental processes which are ordinarily not
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susceptible to proof by direct evidence.” State v. Olson, 330 N.C. 557, 565, 411 S.E.2d
592, 596 (1992). Our Supreme Court
has identified several examples of circumstantial evidence,
any one of which may support a finding of the existence of
[premeditation and deliberation]: (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.
State v. Childress, 367 N.C. 693, 695, 766 S.E.2d 328, 330 (2014) (citation omitted).
¶ 100 Here, there is a presumption of malice given the evidence tends to show Pegg
was intentionally killed with a deadly weapon. See Leazer, 353 N.C. at 238, 539
S.E.2d at 925. There is also substantial evidence the killing was premeditated and
deliberate. See Blakney, 233 N.C. App. at 518, 756 S.E.2d at 846; Childress, 367 N.C.
at 695, 766 S.E.2d at 330. Pegg was found in a seated position on his couch with
multiple gunshot wounds to his head. A reasonable jury could conclude Pegg did
nothing to provoke Defendant. See State v. Rose, 339 N.C. 172, 195, 451 S.E.2d 211,
224 (1994) (stating the victim’s position of sitting in a chair with a pillow or blanket
on his chest indicated a lack of provocation on his part), cert. denied, 515 U.S. 1135,
115 S. Ct. 2565, 132 L. Ed. 2d 818 (1995). The multiple shots fired support an
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inference of Defendant’s premeditation and deliberation. See State v. Taylor, 362
N.C. 514, 533, 669 S.E.2d 239, 258 (2008), cert. denied, 558 U.S. 851, 130 S. Ct. 129,
175 L. Ed. 2d 84 (2009). At around the time that a reasonable jury could infer the
murder occurred, Defendant showed Carson a 9-millimeter firearm, consistent with
the description of the murder weapon. He also told Carson he “had to go up the road
to take care of some business.” A reasonable jury could infer that Defendant intended
to travel up Dillingham Road to Pegg’s house to kill Pegg. See State v. Williams, 151
N.C App. 535, 540, 566 S.E.2d 155, 159 (2002) (reasoning that bringing a revolver to
a meeting indicated “some preparation and intent to do [the victim] harm”).
¶ 101 The evidence tends to show Defendant fired three shots into Pegg’s head, two
of which were discharged at close range. This indicates Pegg was shot after he had
been felled and rendered unconscious, and he was killed in a brutal manner. See
Childress, 367 N.C. at 695, 766 S.E.2d at 330. In light of such evidence, we hold there
was substantial evidence of premeditation and deliberation; thus, the trial court did
not err in denying Defendant’s motion to dismiss the charge of first degree murder
and submitting the charge to the jury. See Blakney, 233 N.C. App. at 518, 756 S.E.2d
at 846; Corn, 303 N.C. at 296, 278 S.E.2d at 223.
IX. Conclusion
¶ 102 We hold the trial court did not err in denying Defendant’s motion to suppress
any evidence seized during the search of his residence because the affidavit was
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sufficient on its face. Further, the trial court’s findings of fact are supported by
competent evidence, and its conclusions of law are supported by findings of fact in its
order on the motion to suppress. The trial court did not commit plain error by denying
Defendant’s motion to suppress any evidence of Defendant’s electronic monitoring
data because Defendant did not cite to a statutory mechanism allowing him to
suppress such evidence, DPS waived its privilege with respect to the data by verbally
releasing it to law enforcement, and the GPS evidence actually admitted at trial was
the product of law enforcement’s search warrant.
¶ 103 The trial court did not err by disallowing the State’s witness to testify
concerning the murder victim’s Facebook message because it was hearsay. Even if
the message was offered for a non-hearsay purpose, Defendant failed to show the
message was relevant because he did no more than create an inference as to another
person’s guilt of the crime. The trial court did not plainly err in admitting testimony
of the State’s expert witness on firearm identification and examination because her
testimony met the requirements under N.C. Gen. Stat. § 8C-1, Rule 702(a). Lastly,
the trial court did not err in denying Defendant’s motion to dismiss because the State
presented substantial evidence that Defendant committed the murder, and that he
acted with malice, premeditation, and deliberation. Accordingly, we conclude
Defendant received a fair trial, free of prejudicial error.
NO ERROR.
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Judges TYSON and GORE concur.