Opinion
No. COA15-979
04-19-2016
STATE OF NORTH CAROLINA v. KEITH TYRON HENDERSON
Roy Cooper, Attorney General, by David P. Brenskelle, Special Deputy Attorney General, for the State. Patterson Harkavy LLP, by Narendra K. Ghosh, for defendant-appellant.
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure. Mecklenburg County, No. 13 CRS 223780 Appeal by defendant from judgment entered 13 November 2014 by Judge Richard L. Doughton in Mecklenburg County Superior Court. Heard in the Court of Appeals 10 February 2016. Roy Cooper, Attorney General, by David P. Brenskelle, Special Deputy Attorney General, for the State. Patterson Harkavy LLP, by Narendra K. Ghosh, for defendant-appellant. DAVIS, Judge.
Keith Tyron Henderson ("Defendant") appeals from his conviction for voluntary manslaughter. On appeal, he contends that the trial court erred by (1) failing to properly instruct the jury on the offense of voluntary manslaughter; and (2) allowing improper opinion testimony into evidence. After careful review, we conclude that Defendant received a fair trial free from error.
While the parties refer to Defendant's middle name as "Tryon," the underlying judgment from which he appeals lists his middle name as Tyron.
Factual Background
The State presented evidence at trial tending to establish the following facts: At around 12:30 p.m. on 10 June 2013, Defendant and Eric Stokes ("Stokes") were together in a car at a gas station in Charlotte, North Carolina. Stokes, who appeared to be intoxicated, got out of the car and spoke to other customers at the gas station. Upon getting back into the car, Stokes tapped Defendant on the face and said something to him. The two men began "swinging hits" at each other and, after approximately a minute of wrestling, Defendant "was on top of [Stokes] and had him in a choke hold." Stokes attempted to free himself but was unable to do so. While choking Stokes, Defendant demanded that Stokes "[s]ay you won't disrespect me no more." In a faint voice, Stokes responded, "Okay. I had enough." He also stated: "Okay, okay, I give up."
Defendant continued to choke Stokes even after he stopped talking. After Defendant finally released Stokes, he slapped Stokes on the buttocks and told him to get up, but Stokes "just laid there," his body resting across the front seats of the vehicle.
Defendant placed Stokes in the passenger seat of the vehicle and drove to Defendant's home, which took approximately fifteen minutes. Defendant later told police that he did not think Stokes looked well so he left Stokes in the car, believing that Stokes was "taking a nap." Defendant then went inside his house. Upon returning to the car at approximately 9:00 p.m., he found Stokes unresponsive. A 911 call was placed, and upon examining Stokes, the responding officer found that he did not have a pulse. Doctor James Sullivan ("Dr. Sullivan"), a medical examiner for the Mecklenburg County Medical Examiner's Office, determined that Stokes had died as a result of strangulation.
On 24 June 2013, Defendant was indicted for murder. A jury trial was held on 3 November 2014 in Mecklenburg County Superior Court before the Honorable Richard L. Doughton. At the close of the evidence, the trial court determined that the case would go to the jury only on the lesser-included offenses of voluntary manslaughter and involuntary manslaughter. The jury found Defendant guilty of voluntary manslaughter, and the trial court sentenced Defendant to 97 to 129 months imprisonment. Defendant gave oral notice of appeal in open court.
Analysis
I. Jury Instructions
Defendant's first argument on appeal is that the trial court failed to properly instruct the jury on the elements of voluntary manslaughter. Because Defendant failed to raise this issue below, our review is limited to plain error. State v. Goforth, 170 N.C. App. 584, 587, 614 S.E.2d 313, 315 ("Because defendant failed to object to the jury instructions at trial, the standard of review therefore is plain error."), cert. denied, 359 N.C. 854, 619 S.E.2d 854 (2005).
Although Defendant's counsel argued during the charge conference that there was insufficient evidence of voluntary manslaughter, he subsequently agreed to the wording of the trial court's instruction on that offense. Therefore, he failed to raise in the trial court the specific issue for which he now seeks appellate review.
[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. Lawrence, 365 N.C. 506, 516-17, 723 S.E.2d 326, 333 (2012) (citation and quotation marks omitted).
Voluntary manslaughter is "the unlawful killing of a human being without malice, express or implied, and without premeditation and deliberation." State v. McNeil, 350 N.C. 657, 690, 518 S.E.2d 486, 506 (1999) (citation and quotation marks omitted), cert. denied, 529 U.S. 1024, 146 L.Ed.2d 321 (2000). The trial court instructed the jury on the offense of voluntary manslaughter, in pertinent part, as follows:
Voluntary manslaughter is the unlawful killing of a human being by an intentional act. For you to find the defendant guilty of voluntary manslaughter, the State must prove two things beyond a reasonable doubt.This language tracks the applicable pattern jury instruction for voluntary manslaughter in cases where — as here — the defendant does not assert self-defense. See 1 N.C.P.I—Crim. 206.41 (2014).
First, that the defendant killed the victim by an intentional and unlawful act.
Second, that the defendant's act was a proximate cause of the victim's death. . . .
Defendant acknowledged during the charge conference that he was not raising a claim of self-defense.
Defendant argues that the trial court erred by not instructing the jury on the meaning of the phrase "intentional and unlawful act." He further contends that the trial court should have instructed the jury that "the unlawful act must be an assault that constitutes a felony or is likely to cause death or serious injury." See State v. Jackson, 145 N.C. App. 86, 90, 550 S.E.2d 225, 229 (2001) (explaining that in the context of voluntary manslaughter, "[i]ntentional killing refers to the fact that the act which resulted in death is intentionally committed and is an assault which in itself amounts to a felony or is likely to cause death or serious bodily injury").
"It is recognized by this Court that the preferred method of jury instruction is the use of the approved guidelines of the North Carolina Pattern Jury Instructions." State v. Tyson, 195 N.C. App. 327, 335, 672 S.E.2d 700, 706 (2009) (citation and quotation marks omitted); see State v. Ballard, 193 N.C. App. 551, 555, 668 S.E.2d 78, 81 (2008) ("Jury instructions in accord with a previously approved pattern jury instruction provide the jury with an understandable explanation of the law." (citation and quotation marks omitted)).
Defendant points to no legal authority requiring a trial court to supplement the pattern jury instructions for the offense of voluntary manslaughter by specifically defining the phrase "intentional and unlawful act" or by specifying what conduct constitutes an "unlawful act." We are unable to discern any basis for requiring such additional instructions by the trial court here.
Defendant argues that the instruction as given allowed the jury to find that "because [Defendant] intentionally started wrestling with Stokes after Stokes hit him, that intentional decision alone was sufficient to meet the first element of voluntary manslaughter." However, this contention ignores the fact that the trial court clearly instructed the jury that in addition to being intentional the act at issue must also be unlawful.
Furthermore, the act of placing a victim in a chokehold until the victim dies from strangulation is a felonious assault under North Carolina law. See N.C. Gen. Stat. § 14-32.4(b) (2015) ("[A]ny person who assaults another person and inflicts physical injury by strangulation is guilty of a Class H felony."). This Court has held that "evidence that [a] defendant applied sufficient pressure to [a victim's] throat such that [the victim] had difficulty breathing" is sufficient to sustain a conviction for strangulation under N.C. Gen. Stat. § 14-32.4(b). State v. Braxton, 183 N.C. App. 36, 43, 643 S.E.2d 637, 642, disc. review denied, 361 N.C. 697, 653 S.E.2d 4 (2007).
Here, multiple eyewitnesses testified that Defendant, acting in an "aggressive" manner, placed Stokes in a chokehold for several minutes. Dr. Sullivan determined that Stokes died from strangulation. Therefore, even assuming arguendo that the trial court erred by not giving the additional instructions, Defendant has not shown that its failure to do so "had a probable impact on the jury's finding that [he] was guilty" so as to satisfy the heavy burden of establishing plain error. Lawrence, 365 N.C. at 517, 723 S.E.2d at 333 (citation and quotation marks omitted). Accordingly, Defendant's argument on this issue is overruled.
II. Dr. Sullivan's Testimony
In his final argument, Defendant asserts that the trial court erred in allowing Dr. Sullivan to testify that Stokes' death was a homicide. Dr. Sullivan — who the trial court accepted as an expert in the field of forensic pathology — testified, in pertinent part, as follows:
Q . . . . Do you classify manners of death in the report?
A Yes. We fill out the report and we list the manner of death. It has to be listed as natural death, homicide, accident, sometimes suicide, and sometimes undermined [sic]. Those are the categories of manner of death we are required to fill out in the State of North Carolina.
Q Where does this information go?
A It goes on the death certificate. Also, it goes on the Medical Examiner's report. Let's make it clear that is a medical opinion. It's not necessarily a legal opinion. It should have no sway, so to speak, in a courtroom.
Q Did you determine the manner of death in this case?
A Yes, I did.
Q What was that?
MR. GSELL: Objection, Your Honor. It's a legal opinion, not a medical opinion.
THE COURT: Overruled.
THE WITNESS: I put on Mr. Stokes' death certificate that the manner of death was homicide.
Defendant contends that the trial court erred in allowing this testimony because it constituted an improper legal opinion under the North Carolina Rules of Evidence. Rule 704 provides that "[t]estimony in the form of an opinion or inference is not objectionable because it embraces an ultimate issue to be decided by the trier of fact." N.C.R. Evid. 704. However, "[a]n expert may not testify regarding whether a legal standard or conclusion has been met at least where the standard is a legal term of art which carries a specific legal meaning not readily apparent to the witness." State v. Parker, 354 N.C. 268, 289, 553 S.E.2d 885, 900 (2001) (citation and quotation marks omitted), cert. denied, 535 U.S. 1114, 153 L.Ed.2d 162 (2002).
Defendant's argument is foreclosed by our Supreme Court's decision in Parker, where the Court held the trial court did not err in admitting a medical examiner's testimony that the victim's manner of death was "homicide." Id at 290, 553 S.E.2d at 900. In so holding, the Supreme Court explained as follows:
Dr. Thompson used the word "homicide" to explain the factual groundwork of his function as a medical examiner. Dr. Thompson did not use the word as a legal term of art. He explained how he determined the death was a homicide instead of death by natural causes, suicide, or accident. Dr. Thompson's testimony conveyed a proper opinion for an expert in forensic pathology, and the trial court properly allowed it.Id.
Our Court has reached a similar conclusion on several occasions. See, e.g., State v. Hayes, ___ N.C. App. ___, ___, 768 S.E.2d 636, 644 (finding no error because pathologists "used the words 'homicide by undetermined means' and 'homicidal violence' within the context of their functions as medical examiners, not as legal terms of art, to describe how the cause of death was homicidal . . . instead of death by natural causes, disease, or accident" (quotation marks and brackets omitted)), appeal dismissed and disc. review denied, ___ N.C. ___, 776 S.E.2d 203 (2015); State v. Trogdon, 216 N.C. App. 15, 21-22, 715 S.E.2d 635, 639-40 (pathologists' "testimony did not use 'homicide' as a legal term of art" but rather used it to describe how victim died), disc. review denied, 365 N.C. 370, 719 S.E.2d 35 (2011).
As in the cases noted above, the challenged testimony here was not an improper legal opinion. Dr. Sullivan's use of the term "homicide" occurred in the course of his explanation of the manner of death, an opinion that was based on his medical findings. Furthermore, Dr. Sullivan explicitly testified that he was offering a medical opinion rather than a legal one. Accordingly, the admission of the testimony was not improper.
Defendant also argues that Dr. Sullivan's testimony on this issue was unfairly prejudicial under Rule 403. See N.C.R. Evid. 403. However, because Defendant did not raise a Rule 403 objection below, the issue is not preserved for appeal, and we will not consider it. See Russell v. Buchanan, 129 N.C. App. 519, 521, 500 S.E.2d 728, 730 ("Defendants, for the first time on appeal, cite Rule 403 for the proposition that this evidence should have been excluded because its probative value was substantially outweighed by the danger of unfair prejudice. As defendants failed to make this argument at trial, they cannot swap horses between courts in order to get a better mount on appeal." (internal citation, quotation marks, and brackets omitted)), disc. review denied, 348 N.C. 501, 510 S.E.2d 655 (1998). --------
Conclusion
For the reasons stated above, we conclude that Defendant received a fair trial free from error.
NO ERROR.
Judges CALABRIA and TYSON concur.
Report per Rule 30(e).