State v. Borders

NO. COA13-1208
NORTH CAROLINA COURT OF APPEALS
Filed: 2 September 2014
STATE OF NORTH CAROLINA
Plaintiff
v. Cleveland County
Nos. 09 CRS 57186
09 CRS 57187
10 CRS 285
DONALD EUGENE BORDERS
Defendant
Appeal by defendant from judgments entered 29 January 2013
by Judge Richard D. Boner in Cleveland County Superior Court.
Heard in the Court of Appeals 22 May 2014.
Attorney General Roy Cooper, by Assistant Attorney General
Mary Carla Hollis, for the State.
Rudolf Widenhouse & Fialko, by M. Gordon Widenhouse Jr.,
for defendant-appellant.
HUNTER, JR., Robert N., Judge.
Donald Eugene Borders (“Defendant”) appeals from a jury
verdict finding him guilty of raping and murdering Margaret
Tessneer (“Ms. Tessneer”). Defendant argues (i) that the trial
court erred by admitting DNA evidence obtained by officers after
effectuating an arrest based on an unrelated warrant at his
domicile; (ii) that the trial court erred by denying his motion
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for a change of venue because pretrial publicity made it
impossible to empanel an impartial jury; and (iii) that the
trial court abused its discretion in allowing the admission of
expert testimony that Ms. Tessneer died from asphyxiation
because the testimony was unreliable and lacked a proper
foundation. After careful review, we find no error in the trial
court’s judgments.
I. Facts & Procedural History
Defendant was indicted on 11 January 2010 for rape and
felonious breaking and entering in File Nos. 09 CRS 057186 and
09 CRS 05187. Defendant was also indicted on 8 March 2010 for
first-degree murder in File No. 10 CRS 00285. Defendant stood
trial in Cleveland County Superior Court, beginning on 13
November 2012 and ending on 29 January 2013. The record and
trial transcript below tended to show the following facts.
Immediately prior to Defendant’s trial, the trial court
held a suppression hearing concerning a DNA sample acquired from
a cigarette used by Defendant, the facts surrounding which are
discussed in Section III infra. After the hearing on
Defendant’s motion to suppress the DNA evidence, Defendant twice
moved for a change of venue; neither request was granted. The
jury was empaneled and the State called Amy Fredell (“Ms.
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Fredell”), a Service Division Supervisor with the Shelby Police
Department, as its first witness.
A. Events of 20 September 2003
Ms. Fredell testified that on 20 September 2003, the Shelby
Police Department received a 911 call requesting that an officer
be dispatched to 1024 Railroad Avenue, where a death had
occurred. Patrol Officer Victor Haynes (“Officer Haynes”) was
dispatched to the residence, where Officer Haynes saw Ms.
Tessneer, an elderly woman, lying on a bed in the home. Ms.
Tessneer’s feet were on the floor, she was clothed in a light-
colored nightgown, her eyes were fixed, and her mouth was open.
Officer Haynes observed false teeth next to her body on the bed.
Officer Haynes did not find a pulse or observe her breathing.
Officer Haynes stated that Ms. Tessneer felt cold. Officer
Haynes cleared the residence and then went outside to ensure
that emergency medical service personnel (“EMS”) came to the
residence.
Louie Ledford (“Mr. Ledford”) of EMS arrived at the scene.
Mr. Ledford entered with Officer Haynes, checked Ms. Tessneer’s
vital signs, and found that Ms. Tessneer had passed away.
Officer Haynes surveyed the home and found two cement blocks
stacked outside of Ms. Tessneer’s bedroom window as well as some
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phone lines that had been cut on the same side of the house.
Mr. Ledford testified Ms. Tessneer was not breathing when he
arrived at her home. After taking Ms. Tessneer’s pulse, Mr.
Ledford told Officer Haynes that she was dead, closed her eyes
with his gloved fingers, and covered her body with a sheet. Mr.
Ledford described the body as “morbid,” having bruising on the
wrists and arms, and stated that a pool of blood collected
around Ms. Tessneer’s body. Mr. Ledford did not notice any
signs of struggle.
Ms. Tessneer’s daughter, Libby Clark (“Ms. Clark”),
testified that on 20 September 2003, Ms. Clark took her husband
to the doctor’s office, stopped by Hardee’s to purchase a
biscuit, and purchased another biscuit to take to her mother.
Ms. Clark arrived at her mother’s home at around 11 A.M. Ms.
Clark stated that upon leaving her car, she noticed a cement
block underneath her mother’s bedroom window, which she thought
was unusual. Ms. Clark then walked up the home’s steps and
through the unlocked screen door, which her mother usually kept
locked. Ms. Clark then saw her mother laying on her bed. Ms.
Clark ran to Ms. Tessneer’s phone to dial 911, but found that
the phone did not work. Ms. Clark tried another phone, which
also did not work. Ms. Clark then ran to a neighbor’s home,
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asking the woman inside to dial 911 and then went to her uncle’s
home, which was near Ms. Tessneer’s residence.
Another of Ms. Tessneer’s daughters, Peggy Sparks (“Ms.
Sparks”), testified. Ms. Sparks spent her lunch break on 19
September 2003 with her mother. Ms. Sparks stated that her
mother was “in good spirts,” that Ms. Tessneer was laughing and
that Ms. Sparks enjoyed the visit. Ms. Sparks stated that her
mother was not dating anyone at the time and showed no signs of
injuries on 19 September 2003. Ms. Sparks described her
mother’s habit of locking both her screen door and main door at
her home. Ms. Sparks stated that both doors were locked when
she visited her mother on 19 September 2003 and that the screen
door did not appear damaged.
Crime Scene Investigator Todd Vickery (“Investigator
Vickery”) performed the crime scene walkthrough on 20 September
2003. Investigator Vickery observed that Ms. Tessneer’s false
teeth were lying next to her on the bed, that some pantyhose
were also on the bed, and that some blood was on the bed’s
mattress pad. Investigator Vickery also noticed a small tear on
the entry door to the screened-in front porch, near the door’s
latch. Investigator Vickery then dusted for fingerprints, took
photographs, and began collecting physical items. Investigator
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Vickery stated that “[o]ther than the area around Ms. Tessneer,
the house appeared to be neat and in order.”
Gaston Memorial Hospital pathologist Dr. Steven Tracy (“Dr.
Tracy”) testified at trial as an expert in forensic pathology,
over Defendant’s objection. Dr. Tracy performed an autopsy of
Ms. Tessneer on 22 September 2003. Dr. Tracy stated that Ms.
Tessneer had bruising to her arms, legs, one of her feet, left
shoulder, and abdomen. Dr. Tracy believed Ms. Tessneer’s
injuries occurred within twenty-four hours of her death. Ms.
Tessneer also had hemorrhaging over the surface of her arms.
Dr. Tracy noted that many elderly people have surface
hemorrhages. Dr. Tracy stated that without knowing Ms.
Tessneer, he did not know whether the hemorrhages were there
before or after the bruising occurred. Ms. Tessneer’s right
forearm also contained an abrasion near her hemorrhages.
Dr. Tracy described a tear to the outer portion of Ms.
Tessneer’s panties and a small amount of blood on the panties.
Dr. Tracy also stated that Ms. Tessneer had a small abrasion to
her vagina.
Dr. Tracy also used an SBI sexual assault evidence
collection kit (“sexual assault kit”) and took swabs from Ms.
Tessneer’s vagina, cheek, and rectum. In February 2004, the
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North Carolina State Bureau of Investigation Crime Laboratory
(“SBI”) reported that its testing showed the presence of sperm
on the vaginal swab taken from Ms. Tessneer’s sexual assault
kit. A DNA profile of the evidence was created from the vaginal
swab, but no DNA match was made at that time.
Immediately after the autopsy, Dr. Tracy withheld his
opinion as to the cause of death. Dr. Tracy stated that the
bruises on the body did not in and of themselves account for Ms.
Tessneer’s death, and no other anatomical findings apparent at
that point explained her cause of death. Dr. Tracy’s autopsy
report lists the cause of death as undetermined, but contained a
discussion stating that Dr. Tracy was “considering suffocation.”
Dr. Tracy stated that he waited for microscopic slides and a
toxicology report to come back, and after ruling out “any other
reasonable cause of death to a reasonable degree of medical
certainty,” Dr. Tracy opined that Ms. Tessneer died of
asphyxiation secondary to suffocation. Dr. Tracy stated that
this may have occurred after Ms. Tessneer’s mouth was covered
with a soft object, “such as a pillow or cushion, a piece of
clothing or a hand.” Dr. Tracy also testified that markings or
injuries typically do not appear if the suffocation was
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effectuated by a soft object, and that injuries from suffocation
are often very difficult to detect.
Dr. Tracy testified that police contacted him in 2009 and
asked if he would consider changing his 2003 opinion about the
cause of death. Dr. Tracy stated that the police did not
suggest suffocation. Dr. Tracy also has not modified his
written autopsy report to reflect suffocation. Dr. Tracy stated
that he was willing to add an addendum to his report indicating
that Ms. Tessneer died of asphyxiation, secondary to
suffocation, but had not amended the autopsy report to reflect
that view. Dr. Tracy stated that he always believed “to a
reasonable degree of medical certainty that Ms. Tessneer died of
asphyxiation.” Dr. Tracy became even more confident in this
opinion after receiving information about the examination of the
sexual assault kit and lack of other findings as to Ms.
Tessneer’s cause of death.
Dr. John D. Butts (“Dr. Butts”), a retired chief medical
examiner for the State of North Carolina, testified at trial.
Defendant did not object to Dr. Butts being tendered as an
expert in the field of forensic pathology. Dr. Butts stated
that he had consulted with Dr. Tracy in December 2003 and that
the two had agreed the best designation for the cause and manner
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of Ms. Tessneer’s death was “undetermined” because “the evidence
was overwhelmingly [sic] that Ms. Tessneer’s death was not the
result of natural causes” but that there was not sufficient
evidence to state the cause of death.
Dr. Butts later learned about the sexual assault kit’s
contents in 2009 after being contacted by the local district
attorney. Dr. Butts prepared another report after learning of
the evidence derived from the sexual assault kit’s contents in
which he opined that Ms. Tessneer had died from “external forces
or causes rather than some natural process” at the hands of
another individual. Dr. Butts stated in this report that “the
environment and circumstances under which [Ms. Tessneer] was
found were highly suspicious. There was evidence of entry into
the house. Her telephone line had been cut or disabled.” Dr.
Butts also testified that her body was found in an unusual
position for a natural death, that there was injury to her body,
disturbances to her clothing, bruises on her body, and bruises
in the entrance to Ms. Tessneer’s vagina. Dr. Butts testified
the toxicological tests revealed the presence of the pain
medication Ms. Tessneer used, but that the amount was not
excessive. Dr. Butts also noted the lack of a catastrophic
natural event, findings consistent with an advanced disease
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process, or stroke, or any “evidence of a significant underlying
medical condition either in her history or in the autopsy report
upon examination that would explain her death.” Dr. Butts
testified that given the circumstances, the “most common
mechanism of death would be an asphyxiation.” Dr. Butts also
testified that the autopsy report was not amended and that no
one had coerced him into changing his opinion concerning the
cause of death.
B. 2009 Investigation of Ms. Tessneer’s Death
Agent John Kaiser (“Agent Kaiser”) testified that he was
contacted by Detective Rich Ivey (“Detective Ivey”) in April
2009 to assist in the investigation of Ms. Tessneer’s death.
Detective Ivey was working in the Shelby Police Department at
that time. Agent Kaiser and Detective Ivey worked through the
case file and devised an investigative strategy. The two
noticed that there was a suspect book in the case file as well
as a DNA profile from the sexual assault kit; they resolved to
work through the suspect book to clear individuals in the book
or to find a match. There were around thirty individuals listed
in the book, including Defendant.
On 4 May 2009, Detective Ivey and Agent Kaiser found
Defendant at his mother’s residence in Cherryville, where he
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lived. Defendant refused to comply with or submit to police
officers’ request for a DNA sample. Officers visited Defendant
on a total of four separate occasions at his home and requested
a DNA sample; officers visited on 4 May 2009, 6 May 2009, 8 May
2009, and once more after 8 May 2009 and prior to Defendant’s
arrest on 16 May 2009.
Agent Kaiser contacted Officer James Brienza (“Officer
Brienza”) on 13 May 2009 and asked Officer Brienza to serve an
active warrant for assault on a female on Defendant. Agent
Kaiser asked Officer Brienza to obtain DNA evidence from
Defendant, “either from a drink can or some abandoned material.”1
Officer Brienza verified that the assault on a female warrant
was still active and then served the warrant on Defendant on 16
May 2009 at his mother’s residence in Cherryville.
Officer Brienza arrived at the Cherryville residence
between 12:00 A.M. and 2:00 A.M. on 16 May 2009. Officer
Brienza knocked at the door and spoke with Defendant’s mother.
Defendant’s mother allowed Officer Brienza into her home, where
Officer Brienza found Defendant asleep. Officer Brienza woke
Defendant up and told Defendant to come with him so he could
1
Agent Kaiser stated that he purposefully left his instruction
to Officer Brienza vague so that Officer Brienza would obtain a
DNA sample off of a drink can, a cigarette, or another object.
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serve the arrest warrant. Defendant got dressed and was taken
outside in handcuffs. Defendant was handcuffed in the front of
his body.2
Officer Brienza noticed a pack of cigarettes on the
nightstand near where he found Defendant and “felt like there
was a good opportunity to take advantage of possible D.N.A.
gathering at that point from a cigarette butt.” Officer Brienza
“asked [Defendant] if he wanted to smoke a cigarette before we
left,” to which Defendant replied affirmatively.
Officer Brienza testified that Defendant smoked a cigarette
“[o]utside in the front porch area towards the driveway, next to
the car. We had walked from the front porch area and down to my
vehicle” where Defendant smoked the cigarette. Officer Brienza
testified that Defendant did not smoke the entire cigarette, but
that Defendant was allowed “enough time to take several hits off
of the cigarette – several drags.” After Defendant took these
cigarette drags, Officer Brienza “asked him if he would like me
[to] discard the cigarette and told him that we needed to
2
In his affidavit attached to the motion to suppress, Defendant
asserts that he was handcuffed with his hands behind his back.
Defendant also stated that one of the police officers pulled a
cigarette from his cigarette pack and placed it in his mouth so
he could smoke. During Officer Brienza’s testimony at trial,
Officer Brienza stated that he handcuffed Defendant in front of
his body and no other evidence was provided tending to show that
Defendant was handcuffed behind his back.
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leave.” Officer Brienza stated that Defendant responded
affirmatively to his offer to discard the cigarette.
Officer Brienza, who was wearing gloves, “took the
cigarette from his mouth and acted like [he] was going to get
rid of the cigarette.” Officer Brienza then “extinguished the
end of the cigarette on the ground and cupped it, put it in a
plastic bag[,] and took [Defendant] to jail.” Defendant
objected to the admission of this evidence under the Fourth
Amendment of the United States Constitution, under “Article 19 –
Article 1, Section 19, 20 and 23 of the North Carolina
Constitution and also under State versus Reed.” Defendant’s
objection was overruled by the trial court.
Officer Brienza stated that no part of the cigarette which
touched Defendant’s mouth had made contact with the ground.
Officer Brienza also testified that after processing Defendant
at the jail, he called Agent Kaiser to tell him about the
evidence he had gathered and released the cigarette into his
custody thereafter. Officer Brienza was the only officer to
serve the warrant and approach Defendant initially, although
other officers arrived later in a “support role.”
Officer Brienza testified that he had two goals that
evening: (i) to serve a warrant and (ii) to obtain a DNA sample.
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Officer Brienza stated that obtaining the DNA sample was the
primary goal of his visit. Officer Brienza recounted that
Defendant carried the cigarette outside and that Defendant was
in his custody when Defendant smoked the cigarette, as well as
when Defendant was asked whether he wanted Officer Brienza to
discard the cigarette.
After Officer Brienza delivered the cigarette butt to Agent
Kaiser, Agent Kaiser sent the cigarette butt to the SBI, which
performed DNA tests on the cigarette butt. After Agent Kaiser
learned that the DNA test results matched the DNA profile
derived from a swab in Ms. Tessneer’s sexual assault kit, Agent
Kaiser obtained a second arrest warrant charging Defendant for
murder, rape, and breaking and entering. Agent Kaiser and
Officer Brienza served Defendant with the warrants at his
mother’s home on 28 December 2009. Agent Kaiser and Officer
Brienza showed Defendant a picture of Ms. Tessneer and asked
whether he recognized her; Defendant said he did not recognize
her and denied ever having been in contact with her. Agent
Kaiser and Detective Ivey also obtained a search warrant
authorizing them to collect a suspect evidence collection kit
from Defendant, whereby Defendant was required to provide the
officers with a cheek swab. The DNA profile extracted from the
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cheek swab matched the DNA profile collected from the sperm
found in Ms. Tessneer’s sexual assault kit.
After the State rested its case at trial, Defendant moved
to dismiss the case, and his motion was denied by the trial
court. Defendant did not testify at trial, nor did Defendant
present evidence. The trial court denied Defendant’s renewed
motion to dismiss. On 28 January 2013, the jury returned
verdicts finding Defendant guilty of first-degree murder on a
felony murder theory; first-degree rape; and felonious breaking
and entering. The trial court arrested judgment with respect to
the first-degree rape conviction. The trial court then
sentenced Defendant to life in prison without the possibility of
parole based upon the first-degree murder conviction. The trial
court also sentenced Defendant to a concurrent term of ten to
twelve months imprisonment based upon the felonious breaking and
entering conviction. Defendant provided timely notice of appeal
on 29 January 2013.
II. Jurisdiction & Standard of Review
Defendant appeals as of right from a decision of the trial
court. N.C. Gen. Stat. §§ 7A–27(b), 15A–1444(a) (2013).
The first issue concerns whether the trial court erred in
denying a motion to suppress the DNA evidence. This Court
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reviews conclusions of law stemming from the denial of a motion
to suppress de novo. State v. Barnhill, 166 N.C. App. 228, 230,
601 S.E.2d 215, 217, disc. rev. denied, 359 N.C. 191, 607 S.E.2d
646 (2004).
“Under de novo review, we examine the case with new eyes.”
State v. Young, ___ N.C. App. ___, ___, 756 S.E.2d 768, 779,
cert. granted ___ N.C. ___ (2014). “[D]e novo means fresh or
anew; for a second time, and an appeal de novo is an appeal in
which the appellate court uses the trial court’s record but
reviews the evidence and law without deference to the trial
court’s rulings.” Parker v. Glosson, 182 N.C. App. 229, 231,
641 S.E.2d 735, 737 (2007) (quotation marks and citations
omitted). “Under a de novo review, the court considers the
matter anew and freely substitutes its own judgment for that of
the lower tribunal.” Craig v. New Hanover Cnty. Bd. of Educ.,
363 N.C. 334, 337, 678 S.E.2d 351, 354 (2009) (quotation marks
and citation omitted).
The second issue on appeal concerns the trial court’s
denial of Defendant’s motions for a change of venue. The third
issue concerns Defendant’s objections to expert testimony
regarding the cause of death. Both the second and third issue
are reviewed under an abuse of discretion standard. State v.
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Ward, 364 N.C. 133, 139, 694 S.E.2d 738, 742 (2010) (reviewing
the admissibility of expert testimony under an abuse of
discretion standard); State v. Whitaker, 43 N.C. App. 600, 603,
259 S.E.2d 316, 318 (1979) (reviewing the denial of a change of
venue motion under an abuse of discretion standard).
“Abuse of discretion results where the court’s ruling is
manifestly unsupported by reason or is so arbitrary that it
could not have been the result of a reasoned decision.” State
v. Hennis, 323 N.C. 279, 285, 372 S.E.2d 523, 527 (1988).
III. Analysis
A. Motion to Suppress DNA Evidence
Defendant makes three principal arguments concerning the
first issue. First, Defendant argues that he did not willfully
relinquish control of his cigarette butt to Officer Brienza.
Second, Defendant argues that because the cigarette butt was
given to Officer Brienza within the curtilage of his home,
Defendant had a reasonable expectation of privacy in the
cigarette butt and the DNA derived from it. Third, Defendant
argues that the ruse crafted by Officer Brienza and Agent Kaiser
to obtain his DNA violated the Fourth Amendment.
In this section, we first set forth the facts established
at the hearing concerning Defendant’s motion to suppress. We
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then discuss the fundamental principles that guide our inquiry,
including our binding precedents relating to searches within the
curtilage, trickery, and abandoned property. We then apply our
precedents to address Defendant’s arguments.
i. Pre-Trial Hearing and Order on Motion to Suppress
The trial court held a pretrial hearing concerning
Defendant’s motion to suppress the DNA evidence obtained as a
result of Officer Brienza’s seizure of a cigarette butt
containing Defendant’s DNA. At the hearing, Agent Kaiser noted
that Defendant had denied officers’ earlier requests to provide
a DNA sample on four separate occasions prior to Officer
Brienza’s arrest of Defendant on 16 May 2009.
Agent Kaiser and Detective Ivey initially approached
Defendant at his mother’s residence on 4 May 2009 and told
Defendant that they were investigating the death of three
elderly women in 2003. Defendant refused to consent to the
giving of a DNA sample. Defendant refused to provide a DNA
sample three additional times and told police that he had
retained an attorney after the fourth request. Agent Kaiser did
not believe the police had sufficient evidence to request the
issuance of a search warrant or an arrest warrant in connection
with Ms. Tessneer’s death at that time.
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After Defendant refused to voluntarily provide a DNA
sample, Agent Kaiser spoke with Vivian Borders, Defendant’s ex-
wife. Vivian Borders told police that she had sought two
warrants for Defendant’s arrest, one for damage to personal
property and another for assault on a female. Agent Kaiser
located the warrant for assault on a female, which was active
and held in the Gaston County Warrant Repository. Agent Kaiser
then contacted Officer Brienza and requested that he serve the
assault on a female warrant on Defendant.3 Agent Kaiser also
requested that Officer Brienza collect DNA from Defendant, and
made suggestions about collecting a soda can or a cigarette.
Agent Kaiser also wanted Officer Brienza to take the DNA sample
without Defendant’s knowledge. Agent Kaiser said he wasn’t sure
what he told Officer Brienza, but that he “had in [his] mind
[that] it could be at the jail. It could be in the car in
transit. It could be, you know, any different scenarios that
could have played out.”
Agent Kaiser described Defendant’s arrest at 2 A.M. on 16
May 2009 and Defendant’s smoking of a cigarette before leaving
his mother’s home that evening. Agent Kaiser said that Officer
Brienza offered Defendant a cigarette, which Defendant smoked
3
The assault on a female charge was eventually dismissed.
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prior to entering Officer Brienza’s patrol car. Officer Brienza
“asked [Defendant] if he — meaning [Defendant] — wanted Brienza
to discard the cigarette. [Defendant] told Brienza he did and
allowed Brienza to take the cigarette butt from his mouth.”
Agent Kaiser stated that if Officer Brienza was not
initially successful in obtaining a DNA sample upon arrest, the
purpose of serving the warrant in the late evening was to keep
Defendant in custody and develop another plan to capture his
DNA.
Officer Brienza recounted the same facts as Agent Kaiser,
saying that he offered Defendant a cigarette and “asked if he
would let me dispose of the cigarette.” On cross, Officer
Brienza was asked if he had said “you want me to take that and
throw it away,” and Officer Brienza responded affirmatively.
Officer Brienza said he took the cigarette from Defendant’s
mouth, extinguished it, cupped it in his hand, and placed the
cigarette into an evidence bag. Officer Brienza confirmed that
he was wearing latex gloves. Officer Brienza also said he would
not have allowed Defendant to bring the cigarette into the
police car.
The trial court entered an order denying Defendant’s motion
to suppress the DNA evidence collected from the cigarette butt.
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In its order, the trial court made these relevant findings of
fact:
8. When Officer Brienza said it was time to
leave the premises, the officer asked the
defendant if he wanted the officer to
dispose of the cigarette. The defendant
replied affirmatively. Officer Brienza
removed the cigarette from the defendant’s
lips. Unbeknownst to the defendant, the
officer kept the cigarette butt in his
cupped hand. The officer later placed the
cigarette butt in a plastic evidence bag.
9. The defendant did not give consent to
the officer’s removal of the cigarette butt
from the premises of the residence, and he
was unaware that the cigarette butt had been
taken by the officer.
. . .
20. Officer Brienza obtained the cigarette
butt while the he [sic] and the defendant
were standing in the driveway of the
residence of the defendant’s mother. The
driveway was bounded on both sides by the
front yard of the residence.
The trial court then concluded as a matter of law that
1. The area where Officer Brienza obtained
the cigarette butt was located within the
curtilage of the residence, and it was an
area in which the defendant had a reasonable
expectation of privacy.
2. The defendant consented to the removal of
the cigarette from his lips, and he
authorized Officer Brienza to dispose of the
butt. By doing so the defendant
relinquished possession of the butt and any
reasonable expectation of privacy with
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regard to it. That he did so in a protected
area as a result of trickery is of no
consequence.
ii. Guiding Principles in Search and Seizure Jurisprudence
The guiding principles in this case are derived from the
Fourth Amendment to the United States Constitution and Section
20 of the North Carolina Constitution:
The right of the people to be secure in
their persons, houses, papers, and effects,
against unreasonable searches and seizures,
shall not be violated, and no Warrants shall
issue, but upon probable cause, supported by
Oath or affirmation, and particularly
describing the place to be searched, and the
persons or things to be seized.
U.S. Const. amend. IV; N.C. Const. art. I, § 20 (“General
warrants, whereby any officer or other person may be commanded
to search suspected places without evidence of the act
committed, or to seize any person or persons not named, whose
offense is not particularly described and supported by evidence,
are dangerous to liberty and shall not be granted.”); see also
N.C. Const. art. I, § 19 (“No person shall be taken, imprisoned,
or disseized of his freehold, liberties, or privileges, or
outlawed, or exiled, or in any manner deprived of his life,
liberty, or property, but by the law of the land. No person
shall be denied the equal protection of the laws; nor shall any
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person be subjected to discrimination by the State because of
race, color, religion, or national origin.”).
“[T]he touchstone of [Fourth] Amendment analysis has been
. . . whether ‘a person has a constitutionally protected
reasonable expectation of privacy.’” Oliver v. United States,
466 U.S. 170, 177 (1984) (quoting Katz v. United States, 389
U.S. 347, 360 (1967) (Harlan, J., concurring). Further:
The Amendment does not protect the merely
subjective expectation of privacy, but only
those expectations that society is prepared
to recognize as reasonable. No single
factor determines whether an individual
legitimately may claim under the Fourth
Amendment that a place should be free of
government intrusion not authorized by
warrant. In assessing the degree to which a
search infringes upon individual privacy,
the Court has given great weight to such
factors as the intention of the Framers of
the Fourth Amendment, the uses to which the
individual has put a location, and our
societal understanding that certain areas
deserve the most scrupulous protection from
government invasion.
State v. Phillips, 132 N.C. App. 765, 770, 513 S.E.2d 568, 572
(1999) (citation, quotation marks, and alterations omitted).
An individual’s expectation of privacy is
“necessarily . . . of a diminished scope” when taken into police
custody. Maryland v. King, ___ U.S. ___, ___, 133 S. Ct. 1958,
1978 (2013) (citation, quotation marks, and alterations
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omitted). DNA evidence may also be obtained without consent of
a suspect after “officers make an arrest supported by probable
cause to hold for a serious offense . . . .” Id. at ___, 133 S.
Ct. at 1980. Our General Statutes allow for compulsory DNA
sample collection from a suspect arrested for any one of several
offenses. N.C. Gen. Stat. § 15A-266.3A(f) (2013). Defendant
was initially arrested pursuant to N.C. Gen. Stat. § 14-33(c)(2)
(2013), which is not one of the enumerated offenses for which
police officers may compel the collection of DNA evidence. See
N.C. Gen. Stat. § 15A-266.3A(f).
“Searches conducted without warrants have been held
unlawful ‘notwithstanding facts unquestionably showing probable
cause,’ for the Constitution requires that the deliberate,
impartial judgment of a judicial officer . . . be interposed
between the citizen and the police . . . .” Katz, 389 U.S. at
357 (citations and quotation marks omitted). “[S]earches
conducted outside the judicial process, without prior approval
by judge or magistrate, are per se unreasonable under the Fourth
Amendment—subject only to a few specifically established and
well-delineated exceptions.” Id.
One such exception allows police to conduct warrantless
searches of garbage left for regular curbside collection.
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California v. Greenwood, 486 U.S. 35, 38 (1988). Our Supreme
Court has recognized that “a reasonable expectation of privacy
is not retained in garbage simply by virtue of its location
within the curtilage of a defendant’s home.” State v. Hauser,
342 N.C. 382, 386, 464 S.E.2d 443, 446 (1995). However, Hauser
also held that “the defendant may have retained some expectation
of privacy in garbage placed in his backyard out of the public’s
view, so as to bar search and seizure by the police themselves
entering his property.” Id. at 388, 464 S.E.2d at 447 (emphasis
added). This Court identified three factors relevant to the
Hauser inquiry in State v. Reed, 182 N.C. App. 109, 112, 641
S.E.2d 320, 322, writ denied, review denied, appeal dismissed,
361 N.C. 701, 653 S.E.2d 155 (2007): “(1) the location of the
garbage; (2) the extent to which the garbage was exposed to the
public or out of the public’s view; and (3) ‘whether the garbage
was placed for pickup by a collection service and actually
picked up by the collection service before being turned over to
police.’” See id. (quoting Hauser, 342 N.C. at 386, 464 S.E.2d
at 446). This exception becomes relevant in conjunction with
the principles governing the seizure of abandoned property
discussed infra.
-26-
The State may also not violate a constitutional right
indirectly if the State was not permitted to take that same
action directly. State v. Griffin, 154 N.C. 611, 615, 70 S.E.
292, 293 (1911) (“‘What the state may not do directly it may not
do indirectly.’” (quoting Bailey v. State of Alabama, 219 U.S.
219, 244 (1911))); see also Henderson v. Mayor of City of New
York, 92 U.S. 259, 263 (1875) (“That which cannot be done
directly will not be permitted to be done indirectly.”); State
v. Behrman, 114 N.C. 797, 807, 19 S.E. 220, 223 (1894) (“A
declaration excluded by the Constitution, as in violation of
individual right, will not be allowed to accomplish indirectly
what it is not permitted to do directly.”).
“Evidence obtained in violation of the Fourth Amendment’s
guarantee against unreasonable searches and seizures is
generally excluded at trial.” State v. Banner, 207 N.C. App.
729, 732, 701 S.E.2d 355, 358 (2010). The exclusionary rule
that has developed under Fourth Amendment jurisprudence is also
applicable to “evidence obtained in violation of the North
Carolina Constitution.” Id.; see also State v. Carter, 322 N.C.
709, 724, 370 S.E.2d 553, 562 (1988). “[O]ur constitution
demands the exclusion of illegally seized evidence. The courts
cannot condone or participate in the protection of those who
-27-
violate the constitutional rights of others.” Carter, 322 N.C.
at 723, 370 S.E.2d at 561.
iii. Curtilage
“The Fourth Amendment ‘indicates with some precision the
places and things encompassed by its protections’: persons,
houses, papers, and effects.” Florida v. Jardines, ___ U.S.
___, ___, 133 S. Ct. 1409, 1414 (2013). However, “when it comes
to the Fourth Amendment, the home is first among equals.” Id.
At the core of the Fourth Amendment is the “‘right of a man to
retreat into his own home and there be free from unreasonable
governmental intrusion.’” Id. (quoting Silverman v. United
States, 365 U.S. 505, 511 (1961)). The area “immediately
surrounding and associated with the home” is known as the
curtilage, and is considered “part of the home itself” for
Fourth Amendment purposes. Id. (citation and quotation marks
omitted). “This area around the home is ‘intimately linked to
the home, both physically and psychologically,’ and is where
‘privacy expectations are most heightened.’” Id. at 1415
(quoting California v. Ciraolo, 476 U.S. 207, 213 (1986)).
Curtilage includes the “yard around the dwelling house as
well as the area occupied by barns, cribs, and other
outbuildings.” State v. Rhodes, 151 N.C. App. 208, 214, 565
-28-
S.E.2d 266, 270, writ denied, review denied, 356 N.C. 173, 569
S.E.2d 273 (2002). Evidence obtained from a trash can located
within the curtilage may also be subject to the exclusionary
rule if not placed there for routine collection. Rhodes, 151
N.C. App. at 215, 565 S.E.2d at 271 (“[B]ecause the trash can
was within the curtilage of [the] defendant’s home and because
the contents of the trash can were not placed there for
collection in the usual and routine manner, [the] defendant
maintained an objectively reasonable expectation of privacy in
the contents of his trash can.”).
iv. Trickery
“The known official may engage in deception leading the
consenting party to conclude that the official’s objective is
other than criminal prosecution or that the official’s objective
relates to a form of criminal activity different from that which
actually prompted the official to seek consent.” Wayne R.
LaFave, 4 Search & Seizure § 8.2(n) 176 (5th ed. 2012).
However, “there is no common understanding as to what
constitutes permissible deception in enforcing the criminal
law.” Id. at 181.
Employing fraud or trickery in collecting evidence does
not, by itself, render evidence inadmissible. State v. Jackson,
-29-
308 N.C. 549, 574, 304 S.E.2d 134, 148 (1983), overruled on
other grounds as stated in State v. Abbott, 320 N.C. 475, 481,
358 S.E.2d 365, 369 (1987).(“The use of trickery by police
officers in dealing with defendants is not illegal as a matter
of law. The general rule in the United States, which this Court
adopts, is that while deceptive methods or false statements by
police officers are not commendable practices, standing alone
they do not render a confession of guilt admissible. The
admissibility of the confession must be decided by viewing the
totality of the circumstances . . . .” (internal citations
omitted)); State v. Chambers, 92 N.C. App. 230, 233, 374 S.E.2d
158, 160 (1988) (holding that a police officer did not
unlawfully obtain a statement from a defendant by asking him
whether he would find “ass prints” on the hood of a vehicle in a
rape case). Further, “the state of mind of the police is
irrelevant to the question of the intelligence and voluntariness
of respondent’s election to abandon his rights.” Moran v.
Burbine, 475 U.S. 412, 423 (1986). While “police deception
might rise to a level of a due process violation,” it did not do
so in a case in which the police deliberately did not allow a
defendant to speak with his attorney absent the defendant’s
request for an attorney. Id. at 415, 432, 433–34.
-30-
Other state courts have also allowed officers to use
trickery to obtain DNA evidence in connection with the service
of valid arrest warrants for unrelated crimes. See Com. v.
Ewing, 854 N.E.2d 993, 1001 (Mass. App. Ct. 2006), aff’d, 873
N.E.2d 1150 (Mass. 2007) (holding that “[t]he defendant had no
expectation of privacy in cigarette butts” and a drinking straw
that the defendant “voluntarily abandoned as trash” while being
interviewed at the police station house after law enforcement
served an arrest warrant for an unrelated crime); see also State
v. Athan, 158 P.3d 27, 31–33 (Wash. 2007) (upholding a ruse by
police against a challenge lodged under the Washington
Constitution where a defendant was sent a letter from a
fictitious law firm and his saliva was collected from an
envelope on the return letter).
v. Abandoned Property
“The protection of the Fourth Amendment does not extend to
abandoned property.” State v. Cromartie, 55 N.C. App. 221, 225,
284 S.E.2d 728, 730 (1981); see also Robert L. Farb, Arrest,
Search, and Investigation in North Carolina 175 (4th ed. 2011)
(“The Fourth Amendment does not apply to searching or seizing
abandoned property. The reason is fairly clear. A person
cannot assert a violation of a legitimate expectation of privacy
-31-
if he or she has intentionally relinquished an interest in the
property.”). There is not a reasonable expectation of privacy
when a person “voluntarily puts property under the control of
another . . . [and] he must be viewed as having relinquished any
prior legitimate expectation of privacy with regard to that
property, as it becomes subject to public exposure upon the whim
of the other person.” State v. Jordan, 40 N.C. App. 412, 415,
252 S.E.2d 857, 859 (1979). If a party abandons property,
“[t]here can be nothing unlawful in the Government’s
appropriation of such abandoned property.” Abel v. United
States, 362 U.S. 217, 241 (1960); see also Phillips, 132 N.C.
App. at 771, 513 S.E.2d at 572 (upholding a trial court’s
decision to deny a motion to suppress because “defendant lost
any expectation of privacy he might have had” in property by
giving the property directly to a friend).
However, property may not be abandoned if it is done as a
direct result of a law enforcement officer’s illegal search or
seizure. See California v. Hodari D, 499 U.S. 621, 627–29
(1991) (holding that abandoned cocaine was not the “product of
an unlawful seizure” and was thus not excluded); Hester v.
United States, 265 U.S. 57, 58 (1924) (upholding officers’
examination of illegal whiskey bottles dropped by defendant and
-32-
a companion); State v. Cooke, 54 N.C. App. 33, 44, 282 S.E.2d
800, 808 (1981), modified as aff’d, 306 N.C. 132, 291 S.E.2d 618
(1982) (holding that when one discards property as the product
of an illegal search, a reasonable expectation of privacy exists
and the property is not abandoned); State v. Williams, 71 N.C.
App. 136, 138, 321 S.E.2d 561, 563 (1984) (holding that a
dropped jacket in a public place was abandoned); Cromartie, 55
N.C. App. at 223–24, 284 S.E.2d at 730 (holding there was
abandonment when the defendant discarded the property into a
public street and abandoned the property).
This Court has also held that “for abandonment to occur,
the discarding of property must occur in a public place; one
simply cannot abandon property within the curtilage of one’s own
home.” Reed, 182 N.C. App. at 114, 641 S.E.2d at 323; see also
People v. Gallego, 117 Cal. Rptr. 3d 907, 911 (Cal. Ct. App.
2010) (holding that a defendant does not have a reasonable
expectation of privacy in a cigarette butt that was discarded on
a public sidewalk). In Reed, police arrived at the defendant’s
apartment seeking a DNA sample, where they met the defendant on
his patio. Reed, 182 N.C. App. at 110, 641 S.E.2d at 321. The
defendant did not agree to provide a DNA sample, and spoke with
police while he smoked two cigarettes on his patio. Id. The
-33-
defendant took apart the first cigarette butt, removed the
filter’s wrapper and “shred[ed] the filter before placing the
remains in his pocket.” Id. The defendant flicked the second
cigarette butt at a trash pile in the corner of his patio. Id.
The butt “struck the pile of trash and rolled between defendant
and one of the detectives,” the detective kicked the butt into a
“grassy common area,” and the detective thereafter collected the
cigarette. Id. The State thereafter presented evidence showing
that the DNA on the cigarette butt matched a stain found on the
alleged victim’s shirt. Id. This Court held that the defendant
had a reasonable expectation of privacy on his patio and that
the trial erred by allowing the evidence to be admitted at
trial. Id. at 110–11, 641 S.E.2d at 321.
vi. Application
This is a close case that lies squarely at the intersection
of the foregoing principles of law. Officer Brienza’s search
was conducted as part of serving an unrelated arrest warrant.
The arrest was effectuated despite Defendant’s refusal on four
separate occasions to provide officers with a DNA sample. The
arrest was effectuated at his residence at 2:00 A.M. by a police
officer who was explicitly asked by another officer to collect a
DNA sample from Defendant. Defendant also relinquished the
-34-
cigarette butt directly to a police officer, rather than
throwing the cigarette butt to the ground within the curtilage
or placing it in a trash receptacle in the home or its
curtilage.
We address first Defendant’s argument that he did not
relinquish control of the cigarette butt willingly. The record
tends to show that Defendant was cuffed in front of his body and
that Officer Brienza escorted him from his bedroom to the
carport. Officer Brienza gave Defendant the option to smoke a
cigarette in the carport area, which Defendant chose to do.
Officer Brienza then lit the cigarette for Defendant. Officer
Brienza then asked Defendant “[w]ould you like me to take that
cigarette from you and throw it away.” Defendant agreed to let
Officer Brienza take the cigarette, which Officer Brienza
removed from Defendant’s mouth and placed into an evidence bag.
Officer Brienza said he would not have allowed Defendant to take
the cigarette into his vehicle.
Based upon the foregoing facts, the trial court concluded
that Defendant relinquished control of the cigarette willingly.
Officer Brienza asked Defendant first if he wanted to smoke a
cigarette, to which Defendant responded affirmatively. Officer
Brienza then asked Defendant if he could take the cigarette to
-35-
throw it away, and Defendant agreed. Officer Brienza then took
the cigarette from Defendant’s mouth and placed it in the
evidence bag.
Defendant was handcuffed in the front of his body and took
several puffs of his cigarette, although it is unclear whether
he used his hands to smoke the cigarette. If Defendant had the
ability to move his hands, he had the ability to throw the
cigarette away himself and could have told Officer Brienza that
he did not wish to give him the cigarette. If Defendant did not
have the ability to move his hands, he then would have had the
ability to spit the cigarette from his mouth into the curtilage.
If Officer Brienza had collected the cigarette under any of
those scenarios, admission would be barred under Reed and
Rhodes. Reed, 182 N.C. App. at 110–11, 641 S.E.2d at 321;
Rhodes, 151 N.C. App. at 215, 565 S.E.2d at 271. In short,
there is evidence tending to indicate that Defendant voluntarily
accepted Officer Brienza’s offer to throw away the cigarette
butt and accordingly Defendant’s first argument fails.
Defendant next argues that the attendant circumstances
surrounding this case give rise to a reasonable expectation of
privacy that requires suppression of the cigarette butt as
evidence. The controlling inquiry is whether Defendant had a
-36-
reasonable expectation of privacy in the cigarette butt that he
voluntarily provided to Officer Brienza. Based upon controlling
case law, we are bound to hold that he did not.
The location where Officer Brienza seized the cigarette
butt was clearly within the curtilage of the residence:
Defendant was standing in between the carport and the officer’s
police vehicle. The trial court properly held as much in its
order denying the motion to suppress. Under Reed, Rhodes, and
Hauser, Defendant could have spit the cigarette butt onto the
ground in the carport, placed the cigarette into a trash can
that was not intended to be collected, or left the cigarette
butt somewhere else in the curtilage and the cigarette butt
would have been subject to suppression. Hauser, 342 N.C. at
386, 464 S.E.2d at 446; Reed, 182 N.C. App. at 110–11, 641
S.E.2d at 321; Rhodes, 151 N.C. App. at 215, 565 S.E.2d at 271.
However, the cigarette was not placed within a trash can, on the
ground, or in any other container; the cigarette butt was placed
in the gloved palm of Officer Brienza. As such, the trial court
found that Defendant “relinquished possession of the butt and
any reasonable expectation of privacy with regard to it” and
that the location where Defendant relinquished control was “of
no consequence.” We agree with the trial court’s assessment.
-37-
As in Phillips and Jordan, Defendant relinquished control
of property, here a cigarette butt, to another party. Phillips,
132 N.C. App. at 771, 513 S.E.2d at 572; Jordan, 40 N.C. App. at
415, 252 S.E.2d at 857. In Phillips, the defendant threw drugs
into a friend’s lap after seeing police and while both were
inside the defendant’s car. 132 N.C. App. at 767, 513 S.E.2d at
570. The defendant told the friend to bring the drugs to
defendant’s apartment. Id. The defendant’s friend left drugs
in the defendant’s mailbox, which was affixed to the front door
of his apartment. Id. at 767, 769–70, 513 S.E.2d at 569–70.
The defendant’s friend told officers where the drugs were
hidden, and officers seized the drugs from the mailbox. Id. at
766, 513 S.E.2d at 570. The defendant argued that he had a
reasonable expectation of privacy in the mailbox, but this Court
held that the defendant’s actions in throwing the drugs into his
friend’s lap removed “any expectation of privacy he might have
had in his property.” Id. at 771, 513 S.E.2d at 572.
Similarly, this Court held in Jordan that a defendant who put
drugs into his female passenger’s purse had relinquished his
expectation of privacy in that item by placing the property
under the control of another. 40 N.C. App. at 415, 252 S.E.2d
at 859. In both Phillips and Jordan, property was relinquished
-38-
to another person inside a vehicle, an area which also creates a
higher expectation of privacy than a public area. See Phillips,
132 N.C. App. at 771, 513 S.E.2d at 572; Jordan, 40 N.C. App. at
415, 252 S.E.2d at 857. In both cases, this Court upheld
admission of the evidence.
Here, Defendant gave a cigarette butt to a police officer
while in handcuffs and while in the officer’s custody.
Certainly a reasonable person’s expectation of privacy would be
diminished while in custody and handcuffed. See, e.g.,
Williamson v. State, 993 A.2d 626, 635–36, 635–36 n.1 (Md.
2010), aff'd as stated in Corbin v. State, 52 A.3d 946, 952
(2012) (holding that the defendant did not have an expectation
of privacy in a cup he “voluntarily discarded” on the floor of
his jail cell, because he “could not reasonably expect that the
police would not collect, and potentially investigate, the trash
he discarded in his cell”), cert. denied, ___ U.S. ___, 131 S.
Ct. 419 (2010). Accordingly, as the trial court found, the fact
that Defendant placed the cigarette butt in Officer Brienza’s
control inside of the curtilage of his home is of no consequence
to the analysis because Defendant ceded control of the property
to Officer Brienza voluntarily after Officer Brienza’s request.
Thus, Defendant’s second argument on appeal fails.
-39-
Defendant lastly argues that Agent Kaiser and Officer
Brienza’s use of trickery to obtain the cigarette butt requires
that the evidence be suppressed. We note initially that we are
troubled by the actions of Agent Kaiser and Officer Brienza in
serving the earlier warrant upon Defendant. The use of one
warrant for the intended purpose of conducting a search not
supported by probable cause may, under other circumstances,
violate the prohibition against general warrants in the North
Carolina Constitution. See N.C. Const. art. I, § 20. Secondly,
the officers’ actions in this case also very nearly run afoul of
the general prohibition that the State may not take actions
having the effect of violating an individual’s constitutional
rights indirectly if they could not take that same action
directly. See, e.g., Griffin, 154 N.C. 611, 70 S.E. 292, 293
(1911). However, because the police did not commit an illegal
act in effectuating the valid arrest warrant and because the
subjective motives of police do not affect the validity of
serving the underlying arrest warrant, we cannot agree with
Defendant’s final challenge to the trial court’s decision.
Defendant also did not argue that the police had used the
initial arrest warrant as a general warrant. There may be
circumstances in which an appellate court prohibits law
-40-
enforcement officers from using an arrest warrant to effectuate
the ends sought to be achieved by a general warrant; however,
without such an argument, it is not this Court’s duty to decide
a doctrine of this constitutional scope affecting the
jurisdiction of the State.
When an individual “discards property as the product of
some illegal police activity, he will not be held to have
voluntarily abandoned the property or to have necessarily lost
his reasonable expectation of privacy with respect to it.”
Cromartie, 55 N.C. App. at 225, 284 S.E.2d at 731. However, as
stated supra, the underlying motivations for stopping a motorist
or effectuating an arrest are not relevant so long as the
underlying arrest was valid. See, e.g., State v. Parker, 183
N.C. App. 1, 8, 644 S.E.2d 235, 241 (2007) (“A law enforcement
officer’s subjective motivation for stopping a motorist is
irrelevant to the validity of a traffic stop if the stop is
supported by probable cause.”).
Standing alone, deception does not render a defendant’s
confession or relinquishment of evidence inadmissible. See
Jackson, 308 N.C. at 574, 304 S.E.2d at 148 (“[W]hile deceptive
methods or false statements by police officers are not
commendable practices, standing alone they do not render a
-41-
confession of guilt inadmissible . . . .”); State v. Graham, ___
N.C. App. ___, ___, 733 S.E.2d 100, 105 (2012), review denied,
366 N.C. 432, 736 S.E.2d 492 (2013)(“[D]eception is not
dispositive where a confession is otherwise voluntary.”).
There is no indication that Defendant’s arrest for the two-
year-old charge of assault on a female was invalid. While it is
apparent that Officer Brienza and Agent Kaiser strategized to
use this arrest warrant for the purposes of obtaining a DNA
sample from Defendant, “the state of mind of the police is
irrelevant to the question of the intelligence and voluntariness
of respondent’s election to abandon his rights.” Moran, 475
U.S. at 423; see also Ewing, 854 N.E.2d at 1000 (upholding
arrest of a defendant on an unrelated warrant, which police used
to obtain a DNA sample). While we agree with Defendant that
abandonment of property resulting from illegal police conduct is
not abandonment, there was no such illegal activity here. Cf.
State v. Joe, ___ N.C. App. ___, ___, 730 S.E.2d 779, 783 (2012)
(holding that because officers only discovered a bag of cocaine
near where Defendant was unlawfully arrested and handcuffed, the
contraband was the product of an illegal arrest and was properly
suppressed). Without illegal activity by the police, the
abandoned property was properly seized, even though police did
-42-
not have probable cause to obtain it in the absence of
abandonment. See State v. Johnson, 98 N.C. App. 290, 297, 390
S.E.2d 707, 711 (1990). Thus, Defendant’s third principal
argument for suppression fails.
Because Defendant voluntarily gave Officer Brienza his
cigarette butt after Officer Brienza offered to throw away the
cigarette butt, Defendant abandoned the cigarette butt and no
longer had a reasonable expectation of privacy in the property.
As the property was abandoned, the officers’ subjective intent
in effectuating the valid assault on a female warrant was
irrelevant. For the foregoing reasons, we affirm the trial
court’s denial of Defendant’s motion to suppress the DNA
evidence. We now turn to Defendant’s arguments concerning his
motion for change of venue and the admission of expert testimony
at trial.
B. Change of Venue
Defendant next argues that the trial court abused its
discretion by denying his motion to change venue. We disagree.
If a trial court determines that there is “so great a
prejudice against the defendant that he cannot obtain a fair and
impartial trial,” the trial court must transfer the proceeding
to another county in the prosecutorial district or order a
-43-
special venire. N.C. Gen. Stat. § 15A-957 (2013). “To obtain a
change of venue, a defendant must show a specific and
identifiable prejudice against him as a result of pretrial
publicity.” State v. Rogers, 355 N.C. 420, 429, 562 S.E.2d 859,
866 (2002). In meeting this burden, “a defendant must show
inter alia that jurors with prior knowledge decided the case,
that defendant exhausted his peremptory challenges, and that a
juror objectionable to defendant sat on the jury.” State v.
Robinson, 355 N.C. 320, 327, 561 S.E.2d 245, 250–51 (2002)
(quotation marks, citation, and alterations omitted). Further,
“[t]he determination of whether a defendant has carried his
burden of showing that pre-trial publicity precluded him from
receiving a fair trial rests within the trial court’s sound
discretion.” State v. Yelverton, 334 N.C. 532, 540, 434 S.E.2d
183, 187 (1993).
Juror voir dire may present “persuasive evidence that the
pretrial publicity was not prejudicial or inflammatory” through
the jurors’ responses to questioning about their knowledge of
the case. State v. Richardson, 308 N.C. 470, 480, 302 S.E.2d
799, 805 (1983). In Richardson, nearly every juror “admitted to
having read about the case in the newspaper or having heard
about it on television.” Id. When the jurors were questioned
-44-
further about the details of the particular incident, several of
the jurors apologized for not remembering details and all of the
jurors “unequivocally answered in the affirmative when asked if
they could set aside what they had previously heard about
defendant’s case and determine defendant’s guilt or innocence
based solely on the evidence introduced at trial.” Id.
Accordingly, our Supreme Court held that the trial court did not
abuse its discretion in Richardson. Id. at 481, 302 S.E.2d at
805; see also State v. Walters, 357 N.C. 68, 78, 588 S.E.2d 344,
351 (2003) (“[E]ach juror about whom defendant complains
indicated that he or she would be fair and impartial and decide
the case on the evidence that was presented. Also, the jurors
indicated that they would disregard any information they heard
or read prior to the trial.”); State v. Wallace, 351 N.C. 481,
513, 528 S.E.2d 326, 346 (2000).
Ultimately, “[i]f each juror states unequivocally that he
can set aside what he has heard previously about a defendant’s
guilt and arrive at a determination based solely on the evidence
presented at trial, the trial court does not err in refusing to
grant a change of venue.” State v. Moore, 335 N.C. 567, 586,
440 S.E.2d 797, 808 (1994).
-45-
Here, potential jurors were questioned at length about
their knowledge of Defendant’s case and the pretrial publicity
concerning Defendant’s case. When prospective jurors indicated
that they had knowledge of the case and formed an opinion about
the case that they could not set aside, they were removed from
the jury.
Five of the twelve jurors (“Jurors A–E”) indicated that
they had not seen, heard, or read any information about the case
before jury selection. One juror (“Juror F”) did not have any
knowledge of the case prior to jury selection, but saw
Defendant’s photograph on the front page of a newspaper at
Walgreens in between the first and second day of the jury
selection process. Juror F did not read any information
contained in the article and said she would follow the judge’s
instructions concerning the presumption of Defendant’s
innocence.
Another juror (“Juror G”) said, during voir dire, that he
seemed to have “heard something about it years and years ago,”
that his memory was vague, that he had not read or heard any
information recently, and that he had not formed an opinion
about the case. One juror (“Juror H”) said she read headlines
in the local paper around a week and a half before jury
-46-
selection and that she didn’t remember anything about the case
except that “it was an up and coming something.” Juror H also
said she understood that the newspaper was not evidence, that
the newspaper did not cause her to form an opinion, and that she
had no presumptions about Defendant’s guilt or innocence in the
case.
Two jurors (“Juror I” and “Juror J”) were familiar with
media accounts of the case. Juror I said she had read a
paragraph in a newspaper article in which she learned that the
case was a “cold case” reopened because of DNA, that the
underlying incident concerned occurred in 2003, and that the
incident was in Cleveland County. Juror I swore that she knew
the newspaper story was not evidence, that she should disregard
that information, and that she had not formed an opinion. Juror
J said he saw a television story two nights prior to jury
selection. Juror J said “[a]bout all I heard was that they was
[sic] looking for jurors for the case,” that he was using his
computer while watching it and that he did not know any other
facts prior to jury selection. Juror J also said “[a] man’s
innocent until he’s proven guilty” and that he would have no
problem returning a not guilty verdict if the State could not
prove its case. Juror J also said he saw a news report that “a
-47-
man had raped this older woman and killed her” and that the
woman’s name was Tessneer.
“Juror K” had read a “small article on Yahoo” about the
case and said he had not formed any opinions about Defendant’s
guilt or innocence. Juror K said the article reported that
“jury selection was about to begin,” and that it caught his eye
because he had been summoned for jury duty. Juror K said the
article described the charges and that “[i]t did, though, talk
about that there were two other cases out there that, I’m not
sure who but somebody, they said related.”
“Juror L” had read in the Shelby Star newspaper that
Defendant was accused of “breaking in and killing a woman in
Cherryville, and there were two other murders that were
considered to be similar, although he has not been accused of
those.” Juror L also said she remembered that the victims lived
close together. Juror L said she had not formed an opinion
about the guilt or innocence of the defendant, but did read that
there was “some information about DNA evidence” and that she was
“a believer in DNA.” Juror L said she would have no hesitation
about returning a not guilty verdict if the State did not meet
its burden of proof. Juror L said she had discussions with
friends at work about the case. Juror L said the conversation
-48-
was that the court would be looking for jurors, but the group
did not discuss the facts of the case. One gentleman who was
Juror L’s supervisor said “he went to church with the daughter
of one of the victims” but was unsure which person he was
referring to. Juror L said there were three crimes and that one
was linked to this case, but that she did not know that
Defendant had any relation to any of the victims in the case,
including Ms. Tessneer. Juror L also said that she would
presume Defendant to be innocent, put aside the article she
read, listen to the evidence, and begin with a “clean slate.”
Neither of the alternate jurors had read or heard anything
about the case prior to jury selection. The foregoing tends to
show that all jurors either indicated that they had no prior
knowledge or that if they had read any information, they could
put it aside at trial.
Defendant argues that his case resembles State v. Jerrett,
309 N.C. 239, 307 S.E.2d 339 (1983). However, this case is
distinguishable from Jerrett. In Jerrett, ten of the twelve
jurors, as well as both alternate jurors, “had heard about the
case.” Id. at 257, 307 S.E.2d at 349. Four jurors knew the
defendant’s family or relatives. Id. The jury’s foreman said
he had personally heard one of the victim’s family members
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“emotionally discussing the case.” Id. Six of the jurors knew
or were familiar with the State’s witnesses. Id. The jury was
examined collectively, rather than individually. Id. at 257–58,
307 S.E.2d at 349. The crime occurred in Alleghany County,
which had a population of 9,587 at that time. Id. at 252 n.1,
307 S.E.2d at 346 n.1.
Here, six of the jurors had no knowledge of the case prior
to the jury selection process. Neither of the alternate jurors
had knowledge of the case prior to jury selection. The jury was
selected using individual voir dire. None of the jurors
selected knew any of the State’s witnesses. The population of
Cleveland County was 97,489 according to Defendant, a population
87,902 larger than the population of Allegheny County considered
in Jerrett. Accordingly, we do not believe the situation
presented here is similar to Jerrett and hold that Defendant did
not meet his burden of showing that the trial court improperly
denied his motion for a change of venue.
C. Expert Testimony
Defendant next argues that the expert opinion testimony of
Dr. Tracy and Dr. Butts was unreliable and should not have been
admitted at trial under the rules of evidence. We disagree.
North Carolina Rule of Evidence 702(a) controls the
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admission of expert opinion testimony:
If scientific, technical or other
specialized knowledge will assist the trier
of fact to understand the evidence or to
determine a fact in issue, a witness
qualified as an expert by knowledge, skill,
experience, training, or education, may
testify thereto in the form of an opinion.
N.C. Gen. Stat. § 8C-1, Rule 702 (2009).4 The admissibility of
the expert testimony in the present case is evaluated under the
three-step inquiry, outlined by our Supreme Court in Howerton v.
Arai Helmet, Ltd., 358 N.C. 440, 458, 597 S.E.2d 674, 686
(2004): “(1) Is the expert’s proffered method of proof
sufficiently reliable as an area for expert testimony? (2) Is
the witness testifying at trial qualified as an expert in that
area of testimony? (3) Is the expert’s testimony relevant?” Id.
(citations omitted).
As far as the first portion of the Howerton inquiry is
concerned, reliability is a “preliminary, foundational inquiry
into the basic methodological adequacy of an area of expert
4
Rule 702 was amended by the General Assembly in 2011, but that
change does not apply to Defendant’s case since he was indicted
on 11 January 2010. See 2011 Sess. Laws 1048, 1049, ch. 283, §
1.3 (stating that the amendment applies to defendants indicted
after 1 October 2011). The federal standard announced in
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579
(1993) now applies in North Carolina under this Court’s ruling
in State v. McGrady, ___ N.C. App. ___, ___, 753 S.E.2d 361, 367
(2014), review allowed, ___ N.C. ___, 758 S.E.2d 864 (2014).
-51-
testimony.” Id. at 460–61, 597 S.E.2d at 687–88. The expert’s
opinion does not have to be conclusively proven or conclusively
reliable to be admitted into evidence. Id. Any questions that
remain about the “quality of the expert’s conclusions” go to the
weight that the trier of fact may give the testimony, rather
than the testimony’s admissibility. Id. Further, “the trial
court should look to precedent for guidance in determining
whether the theoretical or technical methodology underlying an
expert’s opinion is reliable.” Id. at 459, 597 S.E.2d at 687.
State v. Annadale, 329 N.C. 557, 406 S.E.2d 837 (1991)
provides an example in which our Supreme Court allowed an expert
in forensic pathology to opine about the victim’s cause of death
when no physical evidence existed to show the cause of death.
Id. at 573, 406 S.E.2d at 842. In Annadale, the forensic
pathologist listed the cause of death as an “incision of the
throat,” which the pathologist admitted was based on information
provided by law enforcement officers. Id. at 573, 406 S.E.2d at
847. In Annadale, our Supreme Court also noted that the
forensic pathologist was the Chief Medical Examiner, was
accepted as an expert in forensic pathology, and was well-
qualified to provide an opinion that was helpful to the jurors.
Id. The forensic pathologist was also subjected to cross-
-52-
examination by the defendant’s counsel. Id. Our Supreme Court
held under these circumstances, the trial court did not err in
allowing the forensic pathologist to provide his opinion
concerning the cause of the victim’s death, even without
physical evidence showing the cause of death. Id.
We face a similar situation in this case. Here, the
forensic pathologists examined the body and eliminated other
causes of death while drawing upon their experience, education,
knowledge, skill, and training. Both doctors knew from the
criminal investigation into her death that Ms. Tessneer’s home
was broken into, that she had been badly bruised, that she had
abrasions on her arm and vagina, that her panties were torn, and
that DNA obtained from a vaginal swab containing sperm matched
Defendant’s DNA samples. The doctors’ physical examination did
not show a cause of death, but both doctors drew upon their
experience performing such autopsies in stating that suffocation
victims often do not show physical signs of asphyxiation. The
doctors also eliminated all other causes of death before
arriving at asphyxiation, which Defendant contends is not a
scientifically established technique. However, the reliability
criterion at issue here is nothing more than a preliminary
inquiry into the adequacy of the expert’s testimony. Howerton,
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358 N.C. at 460–61, 597 S.E.2d at 687–88. Accordingly, the
doctors’ testimony met the first prong of Howerton so that “any
lingering questions or controversy concerning the quality of the
expert’s conclusions go to the weight of the testimony rather
than its admissibility.” Id. at 461, 597 S.E.2d at 688
(emphasis added).
Concerning the second portion of the Howerton inquiry, “the
trial court must determine whether the witness is qualified as
an expert in the subject area about which that individual
intends to testify.” Howerton, 358 N.C. at 461, 597 S.E.2d at
688. “Whether a witness has the requisite skill to qualify as
an expert in a given area is chiefly a question of fact, the
determination of which is ordinarily within the exclusive
province of the trial court.” State v. Goodwin, 320 N.C. 147,
150, 357 S.E.2d 639, 641 (1987) (emphasis added). “[A] jury may
be enlightened by the opinion of an experienced cellar-digger,
or factory worker, or shoe merchant, or a person experienced in
any other line of human activity. Such a person, when
performing such a function, is as truly an ‘expert’ as is a
learned specialist . . . .” 2 Kenneth S. Broun, Brandis & Broun
on North Carolina Evidence § 184 at 701–02 (7th ed. 2011)
(footnotes omitted).
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Here, the trial court accepted both Dr. Tracy and Dr. Butts
as experts in forensic pathology. Defendant did not object to
Dr. Butts being qualified as an expert in the field of forensic
pathology, but did unsuccessfully object to Dr. Tracy being
qualified as an expert in forensic pathology. Dr. Butts had
performed around 6,700 to 6,800 forensic autopsies. Both Dr.
Butts and Dr. Tracy were cross-examined by Defendant. The trial
court conducted voir dire prior to allowing their testimony.
Under these facts, it is clear that the trial court did not
abuse its discretion.
The third component in the Howerton test is whether the
testimony is relevant. Relevant evidence is defined as “having
any tendency to make the existence of any fact that is of
consequence to the determination of the action more probable or
less probable than it would be without the evidence.” N.C. Gen.
Stat. § 8C–1, Rule 401 (2013). “Evidence is relevant if it has
any logical tendency, however slight, to prove a fact in issue
in the case.” State v. Tadeja, 191 N.C. App. 439, 444, 664
S.E.2d 402, 407 (2008) (quotation marks, citation, and
alterations omitted).
Defendant argues that “[t]his evidence was extremely
prejudicial,” although Defendant also argues that “[t]he cause
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of death was important,” noting that a different result might
have been reached had the jury not heard the doctors’ opinions
as to the cause of death. Defendant essentially argues that the
evidence was important and relevant, but makes an additional
argument that the evidence was prejudicial. We find Defendant’s
argument concerning relevancy without merit. Accordingly, we
hold that the trial court did not abuse its discretion in
allowing the expert testimony of Dr. Tracy and Dr. Butts.
IV. Conclusion
For the reasons stated above, we find no error in the trial
court’s judgments.
NO ERROR.
Judges ERVIN and DAVIS concur.