Opinion
No. COA15-972
04-19-2016
STATE OF NORTH CAROLINA, v. MIGUEL MELO NOLASCO, Defendant.
Roy Cooper, Attorney General, by Marc Bernstein, Special Deputy Attorney General, for the State. Glover & Petersen, P.A., by Ann B. Petersen, 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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. Guilford County, No. 12 CRS 79176, 14 CRS 24368 Appeal by defendant from judgment entered 23 January 2015 by Judge A. Moses Massey in Guilford County Superior Court. Heard in the Court of Appeals 22 February 2016. Roy Cooper, Attorney General, by Marc Bernstein, Special Deputy Attorney General, for the State. Glover & Petersen, P.A., by Ann B. Petersen, for defendant-appellant. ZACHARY, Judge.
Where the trial court instructed the jury to disregard any testimony from any witness concerning the results of a blood test, any error in introducing said testimony was rendered harmless. Where evidence other than said testimony connected defendant with the crime scene, the introduction of said testimony regarding blood test results was not prejudicial. Where evidence did not permit the jury to acquit defendant of first-degree murder and convict him of second-degree murder, the trial court did not err in declining to instruct the jury on second-degree murder.
I. Factual and Procedural Background
On the morning of 24 May 2012, utility line repairmen discovered the body of a woman in a blood-soaked silver Oldsmobile, at the intersection of Camp Burton Road and Huffine Mill Road. They called 911. Investigating officers determined that the body was that of Glenda Carolina Magana, and that the cause of death was incised wounds to the neck. She also suffered multiple stab wounds to the chest and neck, cuts on her jaw and fingers, and bruises on her face, hands, and arms.
Magana was an employee at Garibaldi's Family Restaurant in Greensboro. On the night of 23 May 2012, Magana was at work. Miguel Nolasco (defendant) was there that night, and had invited several women working there to drink with him. The DJ at the time, Victor Chaves Zepeda (Meme), observed numerous interactions between Magana and defendant, including an angry Magana taking defendant's medallion from his neck.
On 25 May 2012, defendant, while working at Greensboro Auto Auction, received a phone call that Magana was dead. Sixto Rodriguez, defendant's coworker, contacted corrections officers to inform them that defendant, who knew Magana and had pictures of her on his cell phone, might be a person of interest.
Rodriguez' report was passed on to George Moore, the head of the Major Crimes Unit for the Guilford County Sheriff's Office. Moore called defendant on 25 May 2012 and asked to speak with him about Magana. Defendant told Moore that he had been at Garibaldi's on the night of 23 May 2012, that he was with Magana and others, that Magana had been behaving oddly, and that when Magana left, she was followed by a dark colored car.
On 27 May 2012, Moore went to speak with defendant at defendant's residence. The interview, conducted in Spanish, was recorded, and a transcript translated into English was provided at trial. Defendant told Moore that he had spoken with Magana on 23 May 2012, and that she had said that she had a falling out with someone on Facebook, and that she would tell him about it that night at Garibaldi's. At Garibaldi's that night, she was angry with him, and left; nobody knew why. Defendant told Moore that he saw Magana leave Garibaldi's around 2:30 a.m., followed by a dark colored car. He called her several times and told her to wait for him, sending her a text as late as 4:00 a.m. Defendant claimed that he received no response.
At the end of the interview, Moore asked defendant if they could search his white Suburban SUV for blood. Defendant consented, and police searched the vehicle. The police found that the vehicle had not been cleaned in a while, and did not notice anything incriminating.
On 31 May 2012, police again interviewed defendant, this time at his place of work. Detective David Lyndrup, who was fluent in Spanish, conducted the interview, which was substantially the same as the first. Detective Lyndrup accused defendant of not telling the truth, and told defendant that police had forensic evidence that proved that defendant killed Magana. Detective Lyndrup asked why defendant would be following Magana, and told defendant that police had video showing defendant's Suburban SUV following Magana's car. Defendant admitted that he made up part of his story because he believed that, based on an argument he had with Magana at Garibaldi's, police would try to pin the murder on him. Defendant further admitted that he followed Magana, but asserted that he became annoyed when she turned in a different direction than he anticipated, and that he left and went home.
Defendant was arrested for Magana's murder. He was taken to a hospital where a nurse collected samples of head hair, pubic hair, and cheek swabbings pursuant to a warrant. Warrants to search his residence and Suburban SUV were also executed. Several items were seized from defendant's residence, including a pair of men's shoes and a belt. Preliminary tests revealed the presence of blood.
On 16 July 2012, the Guilford County Grand Jury indicted defendant for the first-degree murder of Magana. On 23 June 2014, the Grand Jury indicted defendant for the felony murder of Magana's unborn child. This latter charge was subsequently dismissed.
At trial, Rodriguez testified for the State that he had a later conversation with defendant about Magana, in which defendant stated that Magana was a bit drunk, so he went looking for her, and found her slumped over her steering wheel. According to Rodriguez, when defendant pulled her head back, he saw the stab wounds and left the scene. Another witness, Wade Hampton Griffin, described Rodriguez as a person who embellishes stories.
Lamont Prysock was a delivery man who drove a route that included the location where Magana's body was found. Prysock testified that he had seen a large white SUV, like the vehicle that defendant drove, and a four-door sedan along that road. He saw the SUV, driven by a man, pull onto the road, but did not see the sedan, driven by a woman with long brown hair, move.
The jury was shown a surveillance video from a storefront, showing passing traffic between midnight and 5:00 a.m. on 24 May 2012. At 2:43 a.m., the video showed a car passing, and another following ten seconds later.
Latent prints were collected from Magana's vehicle. A fingerprint outside of the driver's door was identified as coming from defendant.
On 22 January 2015, the jury found defendant guilty of first-degree murder. On 23 January 2015, the trial court sentenced defendant to life imprisonment without parole.
Defendant appeals.
II. Blood Evidence
In his first argument, defendant argues that the trial court erred by admitting evidence of the presence of blood. We disagree.
A. Standard of Review
"[T]he trial judge is afforded wide latitude of discretion when making a determination about the admissibility of expert testimony." State v. Bullard, 312 N.C. 129, 140, 322 S.E.2d 370, 376 (1984). "The trial court's decision regarding what expert testimony to admit will be reversed only for an abuse of discretion." State v. Alderson, 173 N.C. App. 344, 350, 618 S.E.2d 844, 848 (2005).
B. Analysis
Defendant contends first that forensic examiners who testified concerning the blood found on his shoes and belt were not tendered as experts, and thus their testimony was lay, and second that the test itself was merely preliminary, did not identify the blood, and had the potential for false positives.
Assuming, arguendo, that this evidence was improper, either due to a failure to tender expert testimony or the lack of sufficient basis for the tests, this error was cured by the trial court's instruction to the jury. Pursuant to defendant's motion, the trial court instructed the jury that it may not consider any testimony regarding the results of blood testing, from any witness, in its deliberations. "Generally, when a trial court properly instructs jurors to disregard incompetent or objectionable evidence, any error in the admission of the evidence is cured." State v. Gayles, ___ N.C. App. ___, ___,756 S.E.2d 46, 53 (2014) (quoting State v. Diehl, 147 N.C. App. 646, 650, 557 S.E.2d 152, 155 (2001), cert. denied, 356 N.C. 170, 568 S.E.2d 624 (2002)). Because the trial court instructed the jury to disregard any testimony from any witness concerning the results of the blood tests, we hold that the admission of such evidence, if error, was harmless.
Further, this instruction was specifically requested and approved by defendant. Defendant now asserts that, with the exclusion of the results of the test, the trial court still committed error in permitting the jury to consider the fact that the test was performed at all. This Court has consistently denied appellate review to defendants who attempt to assign error to the granting of their own requests. "A criminal defendant will not be heard to complain of a jury instruction given in response to his own request." State v. Wilkinson, 344 N.C. 198, 213, 474 S.E.2d 375, 383 (1996) (quoting State v. McPhail, 329 N.C. 636, 643, 406 S.E.2d 591, 596 (1991)). Defendant proposed the jury instruction given by the trial court; he cannot now take issue with it.
Moreover, even if this evidence were admitted in error, such evidence was not prejudicial. Evidence was admitted at trial that defendant's phone connected to the cell tower that serviced the area encompassing the murder site forty-seven times in the thirty-two minutes between 3:03 a.m. and 3:35 a.m. Prysock, on his delivery route along Camp Burton Road and Huffine Mill Road, saw a car resembling defendant's with a car resembling Magana's, with a man driving the former and a woman behind the wheel of the latter. Storefront video footage offered jurors an opportunity to see for themselves a vehicle, purportedly defendant's, following another, purportedly Magana's. Defendant himself admitted to lying to police in an earlier interview. In sum, there was substantial other evidence from which a jury could have inferred guilt; the purportedly erroneous admission of the blood tests was not the sole basis on which a verdict could have been reached.
This argument is without merit.
III. Lesser Included Offense
In his second argument, defendant contends that the trial court erred by denying defendant's request to instruct the jury on the lesser included offense of second-degree murder. We disagree.
A. Standard of Review
"An instruction on a lesser-included offense must be given only if the evidence would permit the jury rationally to find defendant guilty of the lesser offense and to acquit him of the greater." State v. Millsaps, 356 N.C. 556, 561, 572 S.E.2d 767, 771 (2002).
"[Arguments] challenging the trial court's decisions regarding jury instructions are reviewed de novo by this Court." State v. Osorio, 196 N.C. App. 458, 466, 675 S.E.2d 144, 149 (2009).
B. Analysis
During the trial charge conference, and later in a written request, defendant sought to have the jury instructed on the lesser included offense of second-degree murder. These requests were denied. Defendant now asserts that the evidence of premeditation and deliberation, the elements that distinguish first-degree murder from second-degree murder, was not unequivocal, and could have permitted the jury to find defendant guilty of second-degree murder and acquit him of first-degree murder.
The evidence at trial showed that defendant had a confrontation with Magana at Garibaldi's, that he grabbed her by the hands and neck, and that she injured him and took his medallion. Also admitted was evidence that defendant followed Magana, that he entered the cell phone sector where the murder occurred, and that he remained there for over thirty minutes. Moreover, the evidence revealed a particularly grisly murder, with multiple stab wounds that indicated no purpose other than to deliberately kill. See State v. Zuniga, 320 N.C. 233, 261, 357 S.E.2d 898, 916 (1987) (refusing an instruction on second-degree murder where a gruesome stab wound to the neck compelled a finding of premeditation and deliberation). By the time of the murder, defendant and Magana were several hours removed from the altercation at Garibaldi's, having traveled in separate cars. All of this evidence points to a deliberate mental state on the part of defendant.
In his argument, defendant merely contends that the evidence supported a possible determination by the jury that his actions were the result of a rage, not of premeditation and deliberation. He cites testimony of his reputation as a good, peaceful, law-abiding person, maintains that nobody saw an argument that night, and concludes that the only reason he might have done such a thing is sudden rage in response to provocation. Defendant suggests no specific evidence, however, that would suggest a reason for him to have flown into a rage, which might otherwise support a conviction for a lesser offense.
Because defendant fails to demonstrate that there was evidence that might have permitted the jury to acquit him of first-degree murder and to convict him of the lesser included offense of second-degree murder, we hold that the trial court did not err in declining to instruct the jury on the latter offense.
This argument is without merit.
IV. Conclusion
In sum, because the trial court instructed the jury to disregard any testimony concerning the results of the blood test, any error which resulted from such testimony was rendered harmless. In that substantial other evidence supported a finding that defendant was at the crime scene, any error resulting from the introduction of the blood test testimony was not prejudicial. Inasmuch as defendant fails to demonstrate that there was evidence that might have permitted the jury to acquit him of first-degree murder and to convict him of second-degree murder, the trial court did not err in declining to instruct the jury on second-degree murder.
NO ERROR.
Chief Judge McGEE and Judge STROUD concur.
Report per Rule 30(e).