Opinion
No. COA 15-1290
06-07-2016
STATE OF NORTH CAROLINA, Plaintiff, v. MILDRED MICHEL HINTON-DAVIS, Defendant.
Attorney General Roy Cooper, by Special Deputy Attorney General Melissa L. Trippe, 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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. Granville County, No. 14 CRS 50995 Appeal by Defendant from judgment entered 14 May 2015 by Judge Henry W. Hight, Jr. in Granville County Superior Court. Heard in the Court of Appeals 27 April 2016. Attorney General Roy Cooper, by Special Deputy Attorney General Melissa L. Trippe, for the State. Patterson Harkavy LLP, by Narendra K. Ghosh, for Defendant-Appellant. HUNTER, JR. Robert N., Judge.
Mildred Hinton-Davis ("Defendant") appeals from a jury verdict convicting her of second degree murder. Defendant contends the State's closing arguments are improper in presenting facts not in evidence and the trial court committed plain error in its failure to intervene ex mero motu. Defendant also contends the trial court erred by ordering restitution where no evidence was presented in support of the amount of restitution. We hold the trial court did not commit plain error in failing to intervene in the State's closing arguments. We vacate the order of restitution and remand it to the trial court for further proceedings consistent with this opinion.
I. Factual and Procedural History
On 26 May 2014, a grand jury indicted Defendant for the second degree murder of William Albert McMillan ("decedent"). The trial began on 11 May 2015. The State presented sixteen witnesses. Below, we summarize the relevant testimony.
On 26 May 2014 Sergeant J.R. Long of Butner Public Safety ("BPS") responded to a 9-1-1 call around 5:40 p.m. Along with Officer Tyler Duke, Sgt. Long arrived at Defendant's residence and found Defendant on the front porch. Defendant said to them "I shot my boyfriend and he's in the back of the house, and the weapon is in the kitchen." Sgt. Long entered the home and found the decedent in a back room of the house, unresponsive. Sgt. Long and Officer Duke attempted to revive the decedent using CPR and AED techniques until Emergency Medical Services arrived on scene.
Following the arrival of medical personnel, Sgt. Long and other Butner officers observed "[n]othing . . . out of place or out of the ordinary[.]" Long described Defendant's demeanor throughout the police's time on scene as "cooperative." As the officers searched the residence, Officer Tyler Duke located a Ruger LCP .380 pistol in a kitchen cabinet. Lieutenant G.B. Perry retrieved the weapon and secured it in the rear of his patrol car.
The medical services team ceased revival efforts. BPS took Defendant into custody. Defendant did not request medical attention, nor did she complain of any injuries. Officer Duke noted no fresh wounds on Defendant. Officer Amanda Avery photographed Defendant upon Defendant's arrival at BPS headquarters. Avery photographed fresh blood on Defendant's bottom lip. Avery could not distinguish "if it was bleeding due to her biting it or due to someone hitting her." Avery observed no other fresh wounds, except fresh blood on Defendant's right pinky finger, which Avery did not "know if it was from a scratch or if it was blood from her lip."
Sgt. C.S. Massey of BPS, investigator on duty on 26 May 2014, obtained and executed a search warrant of Defendant's residence around 8:40 p.m. Sgt. Massey gathered video evidence of the residence, showing nothing "turned over or out of place." He observed only one abnormality during his investigation: a small picture that had fallen from the hallway wall. The decedent's body remained in the house where the decedent had fallen as Sgt. Massey conducted his search. Sgt. Massey noted a spent shell casing located two feet from the decedent's head, and a single gunshot wound located below the decedent's left ear.
BPS later contacted Donna Jackson, a forensic firearms analyst with the Durham Police Department, to analyze the firearm and shell casing recovered at the scene. Jackson determined the shell casing matched the Ruger LCP .380 handgun BPS officers had recovered at the scene.
Dr. Lauren Scott, a forensic pathologist with the Office of the Chief Medical Examiner, testified the gunshot wound to the head was the cause of death of the decedent. Dr. Scott also testified other than the gunshot wound decedent's body showed no evidence of physical harm.
The State called Mildrea and Naquiria McMillan, daughters of decedent. Mildrea testified about the "off and on" relationship between Defendant and the decedent. Naquiria described the "very argumentative" nature of the relationship between the Defendant and decedent. Naquiria recalled Defendant stating she would "put poison in [decedent's] food, or pee over his insulin." Naquiria noted Defendant's heated temper toward the decedent regarding situations where the decedent had not told Defendant where he was going for the day. Prior to the decedent's death, he lived at Defendant's residence in Butner. On 24 May 2014, he accompanied Joanne Keith, another woman, along with some of their mutual children, to a nearby zoo.
The State rested its case. Defendant then moved to dismiss the charge, which the court denied.
Defendant testified on her own behalf. She had known the decedent since the third grade, and their first romantic interaction occurred in their thirties. At various times throughout their relationship, she and decedent had discussed marriage, which never materialized. The decedent "had too many secrets," which prevented their relationship from ever becoming serious and long-lasting. In 2010, she purchased a Ruger LCP .380 pistol for personal protection. In February of 2014, the decedent moved in with Defendant, for what they planned to be a temporary arrangement.
On the day of the incident, Defendant awoke at 4:00 in the afternoon. Her prescription of Methadone, Celebrex, Lyrica, Cymbalta, Atenolol, and a probiotic affected her sleep schedule. She agreed her medication did not affect her ability to think clearly. Defendant asked decedent to cut the grass. Decedent replied he had plans to go out, and suggested they call his brother to ask for help with the grass. After this conversation, Defendant testified a scuffle ensued, during which the decedent hit the Defendant. Defendant then retrieved her pistol, and found the decedent rummaging through a pile of clothes. She "thought he was looking for something to hurt me." Defendant then fired one round into the decedent's head, and called 9-1-1.
After the defense rested, Defendant again moved to dismiss the charge, which the court denied. In its closing argument, the State argued, in pertinent part, as follows:
This was not a shooting of [decedent] because the Defendant was in fear; it was because she was enraged. And this rage, it didn't start on May 26th, 2014, when she took the life of [decedent]. It started sooner.
She was mad . . . not about what had just happened in that living room. . . . He was trying to leave again, and she was determined that she was not going to let him leave that house that day.
[H]e's been gone . . . and he's finally back in town, and rather than spend time with [Defendant], he chooses to spend time with his family. And that family included Joanne Keith . . . who he had been in an on-and-off again relationship at the same time he'd been in a relationship with the Defendant.
[Decedent] was leaving again. . . . She just became enraged with it.
The defense did not object to the State's closing argument. Following the defense's closing arguments, the jury returned a verdict of guilty on the charge of second degree murder.
After Judge Hight released the jury, the court immediately proceeded to sentencing. Upon commencement of sentencing, the prosecutor stated as follows:
Your Honor, if I may approach with Ms. Hinton-Davis's worksheet. We're also - I have a restitution worksheet in which we're requesting $11,319.96; $5,000 of that is for victim's compensation.Neither the State nor the defense presented any evidence or testimony pursuant to restitution. The defense moved for judgment notwithstanding the verdict, which the trial court denied. The court sentenced Defendant to 240 to 300 months imprisonment. Further, the court ordered restitution in the amount of $11,319.96. Defendant timely gave oral and written notice of appeal.
II. Jurisdiction
Jurisdiction lies in this Court pursuant to N.C. Gen. Stat. § 7A-27(b), which provides for an appeal of right to the Court of Appeals from any final judgment of a superior court.
III. Standard of Review
We review these issues on appeal under two different standards. This Court reviews for plain error where a defendant contests a closing argument on appeal without objection at trial. State v. Jones, 355 N.C. 117, 133, 558 S.E.2d 97, 107 (2002). For an error to constitute plain error, a defendant must demonstrate a fundamental error occurred at trial. State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983). Plain error exists where the argument in question was so "grossly improper that the trial court committed reversible error by failing to intervene ex mero motu." Jones, 355 N.C. at 133, 558 S.E.2d at 107. Defendant must show the argument "so infected the trial with unfairness that it render[s] the conviction fundamentally unfair." State v. Robinson, 346 N.C. 586, 607, 488 S.E. 2d 174, 187 (1997).
We review an order of restitution under a different standard of review. Where a trial court orders a payment of restitution, that amount must be supported by "competent evidence presented at trial or sentencing." State v. Mauer, 202 N.C. App. 546, 551, 688 S.E.2d 774, 777 (2010). While the "quantum of evidence needed to support a restitution award is not high," competent evidence must include more than the State's unsworn statement to sufficiently support an order of restitution. State v. Moore, 365 N.C. 283, 285, 715 S.E. 2d 847, 849 (2011); see State v. Smith, 210 N.C. App. 439, 444, 707 S.E. 2d 779, 782 (2011) (vacating and remanding an order of restitution where the only evidence introduced was the State's unsworn statement).
IV. Analysis
A. Closing Argument
Trial counsel exercises "wide latitude" in closing arguments and "may argue all of the evidence which has been presented as well as reasonable inferences which arise therefrom." State v. Guevara, 349 N.C. 243, 257, 506 S.E. 2d 711, 721 (1998) (citations omitted). The trial court has discretion "over the latitude of counsel's argument," not to "be disturbed absent any gross impropriety in the argument that would likely influence the jury's verdict." State v. Call, 353 N.C. 400, 417, 545 S.E. 2d 190, 201 (2001) (citations omitted). A trial court should intervene ex mero motu if:
[T]he argument in question strayed far enough from the parameters of propriety that the trial court, in order to protect the rights of the parties and the sanctity of the proceedings, should have intervened on its own accord and: (1) precluded other similar remarks from the offending attorney; and/or (2) instructed the jury to disregard the improper comments already made.State v. Jones, 355 N.C. 117, 133, 558 S.E. 2d 97, 107 (2002).
Trial counsel's closing argument "must be viewed in context and in light of the overall factual circumstances to which [it] refer[s]." State v. Alston, 341 N.C. 198, 239, 461 S.E. 2d 687, 709 (1995). An attorney may not inject his own opinions or refer to "events and circumstances outside the evidence." Jones, 355 N.C. at 131, 558 S.E. 2d at 106.
Here, Defendant contends the State's closing argument was grossly improper, due to the State's usage of facts and conclusions not supported by evidence or testimony. She contends the State's argument that she acted out of rage that began prior to 26 May 2014 was unsupported by the evidence, as was the State's assertion that she acted in order to prevent decedent from leaving the house that day. Defendant contends the State's closing argument that she acted out of anger and rage because decedent was leaving her again to spend more time with another woman was not supported by the evidence. At trial, Defendant argued she did not act with malice, but in self-defense in response to an altercation she and decedent had. Defendant contended decedent had physically harmed her, and she was fearful he might be searching for another object with which to inflict further harm to Defendant. Defendant argues the State's assertions of facts not in evidence in its closing arguments were highly prejudicial, and the trial court committed reversible error by failing to intervene ex mero motu. We are not persuaded.
The State called decedent's daughters who testified as to the "off and on" relationship of Defendant and decedent. The daughters also noted Defendant's frustration with decedent when he failed to notify her of his planned whereabouts on a given day. In her testimony, Defendant described how she and decedent had at one time contemplated marriage, to no avail. She described her perspective on decedent's "many secrets," and how that negatively affected their marriage prospects.
The daughters testified about a trip decedent took with another woman, Joanne Keith, to a nearby zoo two days before the murder. The daughters also testified as to decedent's living arrangement with Defendant that had been ongoing since February of 2014.
Based upon the testimony of decedent's daughters concerning his trip to the zoo with Joanne Keith, another woman, it is a reasonable inference that Defendant acted out of rage toward decedent. Moreover, Defendant's testimony regarding her frustration with decedent's secrets and the effect of those secrets on their romantic relationship supports a reasonable inference regarding her long-term frustration with the decedent. The reasonable inferences made by the State do not rise to the grossly improper nature of the closing arguments in State v. Jones. 355 N.C. 117, 134, 558 S.E. 2d 97, 108 (2002). Based on reasonable inferences from facts established within the evidence, it was within trial counsel's wide latitude to craft a closing argument that Defendant acted out of long-standing rage toward the decedent. We hold the State's closing argument was not grossly improper. The trial court did not commit error in failing to intervene ex mero motu since the State's argument was founded upon evidence that had been presented as well as reasonable inferences arising from that evidence.
B. Order of Restitution
A defendant's failure to object to an order of restitution at trial does not preclude the issue from appellate review, pursuant to N.C. Gen. Stat. § 15A-1446(d)(18). State v. Reynolds, 161 N.C. App. 144, 149, 587 S.E. 2d 456, 460 (2003). Where a trial court orders restitution, the specific amount must be supported by evidence introduced at trial or sentencing. State v. Wilson, 340 N.C. 720, 726, 459 S.E. 2d 192, 196 (1995). This Court has held a restitution worksheet that is unsupported by documentation or testimony is insufficient to support an order of restitution. State v. Mauer, 202 N.C. App. 546, 552, 688 S.E. 2d 774, 778 (2010). A restitution worksheet must be supported by evidence or testimony, to sufficiently support an order of restitution. Id. (vacating and remanding an order of restitution where the State offered only a restitution worksheet unsupported by evidence or testimony).
Defendant argues the trial court committed reversible error by ordering restitution where no evidence or testimony supported the restitution order. Defendant argues that the order of restitution should be vacated, and remanded to the trial court for further proceedings. We agree.
The record on appeal contains no evidence or testimony to support an order of restitution. Neither the State nor the Defendant presented any evidence or testimony during trial or sentencing to support an amount of restitution. The State submitted only a restitution worksheet, "requesting $11,319.96; $5,000 of that is for victim's compensation." The trial court ordered restitution against Defendant in the amount of $11,319.96. We hold the order of restitution was not supported by competent evidence or testimony offered at trial or sentencing.
V. Conclusion
For the foregoing reasons, we hold the trial court did not commit plain error by failing to intervene ex mero motu during the State's closing argument. We vacate and remand the order of restitution.
NO ERROR IN PART; VACATE AND REMAND IN PART.
Judges CALABRIA and TYSON concur.
Report per Rule 30(e).