Summary
In Velasquez-Cardenas I, there was testimony that the State Bureau of Investigation ("SBI") also "confirmed that the hair found in Decedent’s hand was a match to Defendant’s hair[.
Summary of this case from State v. Velasquez-CardenasOpinion
No. COA12–1567.
2013-06-18
STATE of North Carolina v. Flavio Jo VELASQUEZ–CARDENAS.
Attorney General Roy Cooper, by Special Deputy Attorney General Francis W. Crawley, for the State. Appellate Defender Staples Hughes, by Assistant Appellate Defender Benjamin Dowling–Sendor, for Defendant.
Appeal by Defendant from judgment entered 16 February 2012 by Judge William R. Pittman in Wake County Superior Court. Heard in the Court of Appeals 21 May 2013. Attorney General Roy Cooper, by Special Deputy Attorney General Francis W. Crawley, for the State. Appellate Defender Staples Hughes, by Assistant Appellate Defender Benjamin Dowling–Sendor, for Defendant.
STEPHENS, Judge.
Evidence and Procedural History
On Saturday, 27 June 2009, police officers discovered Ms. Patsy Barefoot (“Decedent”) dead in her apartment. Decedent was lying in her bed under the covers and initially appeared to have “passed away in her sleep.” After a closer inspection, however, authorities suspected that “something wasn't right.” The resulting investigation uncovered the following evidence:
When Decedent was found in her bed, she was wearing only her undergarments and the high-top sneakers that she had taken to work. Her undershirt was partially pulled up and her panties were pulled down below her buttocks. Decedent's arm was awkwardly positioned behind her back. In addition, Decedent's car and credit card were missing. Decedent's couch and chair had been moved from their normal positions in the apartment, as evidenced by indentations left in the carpet. The toilet seat was left in the “up” position, even though Decedent lived alone, which “indicated to [an officer that,] at some point, ... a man ... had been in the apartment[.]” A takeout box with an uneaten meal had been left in the kitchen. Decedent's khaki work shorts were missing. Foreign hairs were found around Decedent's genital region, on the bed sheet, and in Decedent's left palm. Decedent's apartment was “very warm” and the thermostat read approximately 85 degrees. A security camera captured video showing Decedent's vehicle entering the parking lot at 4:27 p.m. and a woman who appeared to be Decedent walking into the apartment. The same video showed the car leaving the apartment complex at 6:16 p.m.; no one was seen leaving the apartment.
When investigators followed up on Decedent's missing credit card, they learned that it had been used in Manning, South Carolina, on 26 June 2009. The following day—the same day Decedent's body was discovered—the card was used in Miami, Florida. Around that time, investigators also learned that the apartment of one of Decedent's neighbors (“the Neighbor”) had been subject to a break-in a few weeks before Decedent was killed. The Neighbor's personal laptop and cell phone were taken. Investigators determined that the stolen cell phone had been used to make calls to a Miami phone number belonging to Mr. Hugo Velasquez (“Mr.Velasquez”). On 23 August 2009, Decedent's car was found in Miami displaying a stolen Florida license plate. The Neighbor's stolen cell phone was found inside.
At that point, officers traveled to Miami to continue their investigation. They met with a detective from the Miami Police Department and sought out Mr. Velasquez. When they arrived in Miami, they learned that the fingerprints found in Decedent's car belonged to Defendant Flavio Jo Velasquez–Cardenas, the brother of Mr. Velasquez. In an interview with investigators, Mr. Velasquez stated that his brother was in a vacant office building just outside Miami. They proceeded to the office building and found Defendant sleeping in a locked room. Defendant was arrested and taken to the Miami Police Department.
When Defendant arrived at the police station, investigators asked him: “What was it that happened?” and “[W]hat happened with that lady[?]” Speaking in Spanish, Defendant responded that he “lost control ... I don't know. I don't know at what moment I was[.] I was not under the influence of drugs or anything[.]” Later in the interview, however, Defendant admitted to killing Decedent “with [his] hand,” stating again that he “lost control” and ended up choking her to death on the floor of the living room, though he did not hit her. He also admitted to: (1) throwing Decedent's shorts away after he killed her, (2) having sex with Decedent's corpse, (3) taking Decedent's car and credit card, (4) replacing Decedent's license plate with a stolen one, (5) breaking and entering at the Neighbor's apartment, and (6) stealing the Neighbor's cell phone and laptop. At a number of points throughout the interview, Defendant affirmed that he did not use drugs during or leading up to these activities.
Though the trial transcript only highlights a small portion of this interview, it was published to the jury in full.
Defendant's ability to speak English is limited. Accordingly, Defendant's English-language statements as described in this opinion are the product of third-party interpretations.
At trial, the medical examiner testified that—other than “some small little burst blood vessels that were beneath the surface of the vaginal mucosa”—there was no evidence of sexual assault on Decedent's body. However, the medical examiner found bruises and abrasions on Decedent's face and multiple rib fractures, which she concluded were not the result of chest compressions. Given her findings, the medical examiner concluded that Decedent's death was caused by “asphyxia[tion].” The State Bureau of Investigation (“SBI”) also confirmed that the hair found in Decedent's hand was a match to Defendant's hair.
According to the SBI, the probability that the hair found on Decedent belongs to anyone other than Defendant is one in greater than one trillion.
At the close of the State's evidence, Defendant moved to dismiss the charge of first degree murder on grounds that the State failed to meet its burden of proving a specific intent to kill as evidenced by premeditation and deliberation. That motion was denied. Defendant then took the stand, offering the following testimony in his own defense:
Defendant consumed a large bag of cocaine through his nose around midday on Friday, 26 June 2007. Later that day, Defendant entered Decedent's apartment, at her request, to fix the air conditioning. On entry, Defendant flirted with Decedent by taking her hand and kissing her on the cheek. She responded amorously, and the two participated in consensual sex. Afterward, Defendant went to the bathroom to use more cocaine. Decedent then opened the bathroom door and became upset by Defendant's behavior, screaming and “saying a bunch of stuff.” This caused Defendant to become “very desperate,” and he “put her against the wall” in an attempt to calm her down. Decedent then fell to the ground. According to Defendant, she appeared calm; he did not immediately realize that she was dead. When he discovered this fact, Defendant became “even more” desperate and moved her body onto the bed. Defendant then took her shorts off because they had become stained with his own blood and he did not want to leave his blood in her apartment. Defendant took Decedent's credit card and car, and he drove to Miami.
Defendant said he used cocaine regularly while living in Raleigh.
Regarding his involvement with the Neighbor, Defendant testified that he did not personally break into her apartment. He further testified that, though he was present during the theft, a third party actually broke into the Neighbor's home and stole her laptop and cell phone. Defendant waited outside during this event and, when the third-party thief came out, Defendant started making calls on the Neighbor's cell phone. Further, despite the State's evidence that the cell phone was found in Decedent's car, Defendant testified that he did not take the phone with him when he left for Miami.
Defendant was tried noncapitally during the 13 February 2012 criminal session of Wake County Superior Court. On 16 February 2012, Defendant was convicted of first-degree murder on the basis of “[m]alice, [p]remeditation [, ] and [d]eliberation” and “[u]nder the ... [f]elony [m]urder [r]ule.” Defendant appealed in open court.
Discussion
Defendant argues on appeal that the trial court erred in its instructions to the jury regarding (1) Rule 404(b) of the North Carolina Rules of Evidence and (2) the extent to which the jury verdict has to be unanimous under the Constitution of North Carolina. We are unpersuaded.
I. The Trial Court's Rule 404(b) Jury Instruction
Because Defendant did not object to the trial court's Rule 404(b) jury instruction at trial, our review is limited to plain error. “In criminal cases, an issue that was not preserved by objection noted at trial and that is not deemed preserved by rule or law without any such action nevertheless may be made the basis of an issue presented on appeal when the judicial action questioned is specifically and distinctly contended to amount to plain error.” N .C.R.App. P. 10(a)(4); see also State v. Goss, 361 N.C. 610, 622, 651 S.E.2d 867, 875 (2007), cert. denied,555 U.S. 835, 172 L.Ed.2d 58 (2008). The North Carolina Supreme Court “has elected to review unpreserved issues for plain error when they involve either (1) errors in the judge's instructions to the jury, or (2) rulings on the admissibility of evidence.” State v. Gregory, 342 N.C. 580, 584, 467 S.E.2d 28, 31 (1996). Plain error arises when the error is “so basic, so prejudicial, so lacking in its elements that justice cannot have been done[.]” State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983) (citation and quotation marks omitted). “Under the plain error rule, [the] defendant must convince [the appellate court] not only that there was error, but that absent the error, the jury probably would have reached a different result.” State v. Jordan, 333 N.C. 431, 440, 426 S.E.2d 692, 697 (1993).
Before the State introduced evidence regarding the breaking and entering and larceny at the Neighbor's apartment, the trial court gave the following limiting instruction:
This evidence [tending to show that Defendant committed a breaking and entering prior to the date when Decedent was killed] is being received solely for the purpose of showing the motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of [mistake,] entrapment or accident of [Defendant]. You may not consider it as evidence for any other purpose. You may not convict [Defendant] based on something he did in the past.
(Emphasis added). The trial court gave a second instruction to the same effect in its jury charge at the end of the trial. On appeal, Defendant argues that the trial court's Rule 404(b) jury instruction constituted plain error because “[n]othing in the instruction prevented the jury from improperly considering the evidence of the prior crime” when determining whether Defendant “acted with specific intent to kill [Decedent] formed after premeditation and deliberation[.]” We disagree.
Rule 404(b) provides that:
Evidence of other crimes ... is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake, entrapment or accident.
N.C.R. Evid. 404(b) (2011) (emphasis added). To the extent that the trial court's instruction may have been improper, we conclude that it was not so lacking in its elements that justice could not otherwise have been done or that, absent the error, the jury would likely have reached a different result. Though Defendant testified that he did not intend to kill Decedent, we find that there is sufficient evidence to the contrary to obviate any prejudicial error in the trial court's instruction.
[P]remeditation and deliberation are processes of the mind [and] are not ordinarily subject to direct proof[,] but generally must be proved[,] if at all [, ] by circumstantial evidence. The brutal manner of the killing and the nature of the victim's wounds are circumstances from which the jury can infer premeditation and deliberation. The jury may infer premeditation and deliberation from the circumstances of [the] killing, including that death was by strangulation.
State v. Richardson, 328 N.C. 505, 513, 402 S.E.2d 401, 406 (1991) (citations and quotation marks omitted). As our Supreme Court noted in Richardson, death by strangulation constitutes evidence of premeditation and deliberation. See id. In this case, the State presented evidence that Defendant admittedly choked Decedent to death. Accordingly, we hold that the trial court's Rule 404(b) jury instruction did not rise to the level of plain error because the jury already had adequate evidence that Defendant developed a specific intent to kill after a period of premeditation and deliberation.
II. Defendant's Right to a Unanimous Verdict
Defendant next contends that the trial court erred in its jury instructions because it should have informed jurors that “they had to unanimously find at least one of the three predicate felonies of felony murder in order to convict [Defendant] of first-degree murder based on felony murder.”
Where the error violates a defendant's right to a unanimous jury verdict under Article I, Section 24, [of the North Carolina Constitution,] we review the record for harmless error. The State bears the burden of showing that the error was harmless beyond a reasonable doubt. An error is harmless beyond a reasonable doubt if it did not contribute to the defendant's conviction.
State v. Wilson, 363 N.C. 478, 487, 681 S.E.2d 325, 331 (2009).
As Defendant notes in his brief, “this [second] issue affects only the jury's verdict on first-degree murder based on felony murder. It does not affect the jury's verdict based on specific intent to kill formed after premeditation and deliberation[.]” Because we have already determined that the trial court did not commit plain error in its Rule 404(b) jury instruction, we find that any error under the unanimity requirement of the North Carolina Constitution is harmless under Wilson. Even if the trial court erred in its jury instruction with regard to felony murder, we have already upheld Defendant's conviction of first-degree murder based on premeditation and deliberation. Accordingly, we conclude that Defendant received a fair trial free of prejudicial error.
NO PREJUDICIAL ERROR.